The Significance of Guesthouses and Training II

A number of readers have written in to argue that my attempt to complicate the D.C. Circuit's emerging doctrine on guesthouse stays and training camps is itself too simple. These readers point out from a variety of perspectives that I focused on only one element of the doctrinal puzzle: whether the D.C. Circuit should really be treating guesthouse stays as though they were as probative of Al Qaeda membership as training camps. There's another question here, though: variability within the relevant categories. That is, are all guesthouse stays sufficiently alike and all training sufficiently alike to allow the fact of either to drive a legal conclusion. Different readers have urged different conclusions based on this observation. Some have argued that not all training should create a presumption of a detainee's having joined the enemy group. Others have suggested that the meaning of a guesthouse stay can be very fact-specific. For example, one reader sent in the following:

Al Qaida guesthouses aren't as simple as they sound. The guesthouse where you stayed can be an indicator of where you fit in the training/fighting cycle or even indicate your place in the organization hierarchy. Lumping all guesthouses together is an oversimplification that should be avoided. Guesthouses often had a specific purpose. For example, there were guesthouses for people transiting into Afghanistan, houses for people about to attend training, houses for people who completed basic training, houses for people about to attend advanced training, houses for fighters heading to the front lines, houses specifically for senior AQ members, etc. Staying "at an al Qaeda guesthouse" can mean you're a trained fighter who has been in Afghanistan since the late 1990's or it can mean you just arrived in Afghanistan and had yet to attend a training camp. It all depends on which guesthouse you stayed at. The question is: do the courts realize this? Do they effectively differentiate between known guesthouses when weighing a guesthouse stay along with the other evidence?

Conversely, another reader points out that not all training camps were Al Qaeda affiliated. The broad point is that it is not enough to know that a detainee attended some training or spent time in some guesthouse. To understand what functional role a given detainee was playing, if any, in an enemy group, one needs to know which training camp or guesthouse. At least based on the many fact-patterns I have looked at in both Guantanamo habeas cases and the CSRT and ARB documents that came before them, I think this point has much more merit with respect to guesthouses than it does with respect to training camps--which is one of the reasons I would not treat guesthouse stays as nearly as probative of membership as training. Guesthouse stays, as I argued before and as my correspondent fleshes out, can mean very different things depending on the guesthouse in question. Different guesthouses imply very different circumstances surrounding the stay. In and of themselves, the guesthouse stay does not tell a court that much, though it is always somewhat probative and a stay at a particular guesthouse may tell all that a court needs to know. I am also persuaded that that there are certain cases in which an acknowledged training camp stay should not lead ineluctably to the conclusion that a detainee joined up. The most obvious example of such a case would be, for example, where there is an attenuated link between the group operating the camp in question and an AUMF-covered group. But in contrast to the guesthouse question, this does not suggest that the courts shouldn't generally draw broad conclusions based on a detainee's taking training. It suggests, rather, only a minor adjustment to the doctrinal test I proposed. Where the government shows that a detainee took training from a particular group, it is a reasonable inference for a court in the context of this sort of habeas case that the detainee joined that group. If membership in that group would not imply detention under the AUMF, that fact would not in and of itself imply detainability. And even where it would imply detention, the presumption of membership should be rebuttable, so a detainee who can--to use an extreme but real example--show that he was imprisoned and tortured by the Taliban and Al Qaeda after his training, might well persuade a court that the relationship established by his training had been severed since his joining up. The point is that, yes, there is variability within each category, as well as between categories, but the degree of variability differs--and the framework I propose is designed to accommodate roughly the degree of variability I have seen in both categories. This point is, of course, academic, because the D.C. Circuit has repeatedly said that it considers either finding to be on its own "overwhelming" evidence of membership--if not dispositive evidence of it. I have no reason to think the judges are looking to back off of this too-simple test. But at least as a thought exercise, I think the approach I have outlined presents a better, more analytically sound, means of considering these two recurring factual claims, when the government successfully proves them.