Razak Ali v. Obama: A Case of Mistaken Identity, or "Guilty By Guesthouse"?

On March 8, 2011, Saeed Bakhouch, an Algerian GTMO detainee also known as Razak Ali, noted an appeal of the District Court’s January 2011 denial of his petition for a writ of habeas corpus.  Oral argument on the merits is scheduled for September 27, 2013 before D.C. Circuit Judges Brett Kavanaugh, Harry Edwards and Stephen Williams. Read Bakhouch’s initial brief, the government’s response brief, and the petitioner’s reply brief.  (A motion to recuse Judge Kavanaugh, on the basis of his prior work in the White House before his appointment, was today denied.) In the decision below, U.S. District Judge Richard Leon ruled that the government “more than adequately” established that the petitioner was in league with Abu Zubaydah---himself allegedly a top Al Qaeda lieutenant.  Appellate briefing was completed this past January, but some filings were only recently made available to the public in redacted form. The case turns on the petitioner's identity. Saeed Bakhouch claims that he is innocent, and that the United States confused him with another person; the United States unsurprisingly brushes this theory aside, insisting that it has the right man. The petitioner’s principal argument on appeal is that evidence cited by the district court as justification for his detention---chiefly his presence at the same guesthouse where Abu Zubaydah was captured---was insufficient. From the petitioner’s opening appellate brief:

Since Petitioner was arrested in the same guesthouse as Abu Zubaydah, the District Court eventually concluded, that regardless of the unreliability of all of the other evidence, it was undisputed that Petitioner was arrested at the same place as Abu Zubaydah, and hence, Petitioner must be a bad guy, and that was enough to justify the legality of the government’s decision to detain him forever.

That was error, according to Bakhouch.  Articulating why the D.C. Circuit should find the lower court's “guilty by guesthouse” theory unconvincing, the petitioner quotes---of all things---Lawfare posts authored by---of all people---Ben, on the differences between training in a military camp and staying in a guesthouse.  (The latter isn’t itself probative of membership in an AUMF-covered group, claims Bakhouch.) The lower court's errors extended beyond overemphasizing Bakhouch’s guesthouse stays, he argues.  The habeas hearing also did not comport with requirements established in Boumediene.  He could not, for example, see ex parte government filings. The detainee likewise was precluded from presenting evidence of his abuse during interrogation, he contends. And finally, he claims that the District Court acquiesced in various kinds of government “malfeasance”--- the latter’s deliberate failure to provide exculpatory evidence provided to the court after the habeas hearing, its submission of an allegedly fraudulent document to justify detaining Bakhouch,  and its engagement in “gamesmanship” with respect to the petition’s amended return and exhibits.  The District Court, the detainee argues, facilitated and amplified this gamesmanship. The petitioner separately denies having ever traveled to Afghanistan.  And though he concedes that he journeyed to Pakistan, the petitioner claims that he did so solely to study the Koran, and that his subsequent guesthouse stay was unrelated to Abu Zubaydah's.  As for the al-Suri diary and the detainee-witness statements, both are unreliable, he argues---the former because the diary is but a collection of “random” documents and a “fantasy account,” the latter because the detainee in question first identified the petitioner in a photo, but later recanted. Finally, Bakhouch argues that the FBI interview on which the government relies was not an interview with the petitioner but, instead, with a Libyan with the same or similar pseudonym as him, Abdul Razzaq. The government, unsurprisingly, has a different view of the case. It points to evidence of Bakhouch's terrorist affiliations.  He allegedly went by the pseudonym of “Adul Razzaq,” and in an FBI agent interview, a fellow with that name allegedly admitted to having traveled to Afghanistan.  Two detainee-witnesses also connected the petitioner to Abu Zubaydah's force.  Finally, the  “al-Suri diary," identified petitioner---again by a pseudonym, Usamah al Jaza'iri---as a member of Zubaydah's group.  (The D.C. Circuit deemed the diary reliable in a different habeas case, Barhoumi.)  All this, in the government's view, demonstrates petitioner's close association with Zubaydah and, therefore, his detainability under the AUMF. As for the petitioner’s attacks on the proceedings below, the government says these lack merit: for example, though the government concededly submitted ex parte, potentially exculpatory documents regarding the petitioner, it only did so in accordance with settled law---and, in any case, the government has since elected not to rely on the documents in question.