Thoughts on Alsabri
I have been meaning for some time to post thoughts on the recent habeas denial in the case of Mashour Abudllah Muqbel Alsabri. It has slipped, however, because the opinion by Judge Ricardo Urbina, at 60 pages, is both chunky and actually breaks no significant new ground on matters either of substantive law or procedure. And it therefore took me a while to figure out what intrigued me about it.
On its own terms, Alsabri's is a pretty easy case.
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I have been meaning for some time to post thoughts on the recent habeas denial in the case of Mashour Abudllah Muqbel Alsabri. It has slipped, however, because the opinion by Judge Ricardo Urbina, at 60 pages, is both chunky and actually breaks no significant new ground on matters either of substantive law or procedure. And it therefore took me a while to figure out what intrigued me about it.
On its own terms, Alsabri's is a pretty easy case. As Judge Urbina describes the facts:
the government has established by a preponderance of the evidence that the petitioner traveled from Yemen to Afghanistan in 2000 to fight with the Taliban, al Qaida or associated forces, stayed in Taliban and al-Qaida guesthouses, sought out and received military-style training from the Taliban or al-Qaida, traveled to the battle lines in Afghanistan as part of the Taliban or al-Qaida and remained part of those forces at the time of his capture in early 2002.
The details, as you get into the case, get worse for Alsabri in several ways. So to put it simply, this is not a fact pattern that pushes the boundary. What makes the case interesting is the strikingly different tone Judge Urbina takes in this opinion versus the tone he took a year ago in Hatim—a case that involved similar allegations that were similarly based largely on prior interrogation statements by the detainee. In that case, Judge Urbina's opinion, which has since been remanded by the D.C. Circuit, gave the government no quarter. Every inference the judge could draw in favor the detainee, he drew. He very conspicuously refused to draw connections between those pieces of evidence he found—or to draw negative inferences from facts that might reasonably give rise to those inference. So even when he assumed the truth of government claims that Hatim trained at Al Farouq, for example, he complained that there was no evidence that he knew it was an Al Qaeda camp and no evidence that he took orders from the Al Qaeda command structure there. Even where he found that Hatim stayed in guesthouses, he dismissed this as showing nothing that would support his detention. And he wrote at the end that amalgamating the facts together avails the government nothing: "the government's justification for detention fares no better when the court views all of the evidence as a whole." Alsabri, by contrast, reads very differently. In this case, Judge Urbina shows no hesitation about amalgamating incriminating facts into a picture that is far more inculpatory than are those facts in isolation. He shows no hesitation about treating evidence of training as serious evidence of affiliation. Ditto stays in guesthouses. If I were Hatim's counsel, I would consider the Alsabri opinion a bad signal about how Judge Urbina's current thinking will affect my own case on remand. There are, I suspect, two reasons for the difference in approach—one evidentiary and the other legal. The first reason is that in Hatim, the statements in question were alleged to be the fruits of coercion. This colors the entire case. As a result of the coercion claims, which the government did not seek to contest and which Judge Urbina credited, Judge Urbina is significantly less willing to find alleged facts and much more apt to put innocent constructions on those he does find. On remand, this problem will remain for the government. The second reason, however, is that the legal landscape has shifted considerably since Hatim, and Judge Urbina in Alsabri is conscientiously endeavoring to assimilate D.C. Circuit statements on a variety of subjects. The appeals court has emphasized that guesthouse stays are important, for example, and it has taken training seriously without regard to a detainee's knowledge or state of mind. More fundamentally, it has rejected the notion that the hallmark of being "part of" the enemy is taking orders from its command structure, and it has emphasized that a court should evaluate the probative value of each piece of evidence in light of the other pieces of evidence it finds. All of these teachings are evident in Alsabri. And while I would not go so far as to say that Alsabri would have gone the other way a year ago, I do think it would have been a much harder case under the standards and assumptions Judge Urbina applied in Hatim. Between these two cases, written by the same district judge barely a year apart, one can see the evolution of detention law rather vividly along several different axes.
Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.
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