D.C. Circuit Affirms District Court in Hussain v. Obama
A three-judge panel (Judges Henderson, Griffith and Edwards) of the D.C. Circuit has affirmed the District Court's decision to deny Guantanamo detainee Abdul al Qader Ahmed Hussain's petition for a writ of habeas corpus. The appellate court concluded that the habeas court's findings of fact were not "clearly erroneous," and that the findings support the conclusion that Hussain was more likely than not a member of enemy forces. The majority opinion was authored by Judge Griffith.
Senior Circuit Judge Harry Edwards wrote a concurring opinion.
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A three-judge panel (Judges Henderson, Griffith and Edwards) of the D.C. Circuit has affirmed the District Court's decision to deny Guantanamo detainee Abdul al Qader Ahmed Hussain's petition for a writ of habeas corpus. The appellate court concluded that the habeas court's findings of fact were not "clearly erroneous," and that the findings support the conclusion that Hussain was more likely than not a member of enemy forces. The majority opinion was authored by Judge Griffith.
Senior Circuit Judge Harry Edwards wrote a concurring opinion. It ended with this provocative language:
Is it really surprising that a teenager, or someone recounting his teenage years, sounds unbelievable? What is a judge to make of this, especially here, where there is not one iota of evidence that Hussain “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such . . . persons”? I do not mean to suggest that a teenager cannot be a terrorist or an enemy combatant or that, if so, he should get a pass because of his age. Rather, the salient point is quite simple: the burden of proof was on the Government to make the case against Hussain by a preponderance of the evidence. In my view, it failed to carry this burden. This said, I am constrained by the law of the circuit to concur in the judgment of the court. The majority opinion is unassailable in holding that our precedent (which conflates the preponderance of the evidence and substantial evidence standards) supports the result reached. I have no authority to stray from precedent. However, when I review a record like the one presented in this case, I am disquieted by our jurisprudence. I think we have strained to make sense of the applicable law, apply the applicable standards of review, and adhere to the commands of the Supreme Court. The time has come for the President and Congress to give serious consideration to a different approach for the handling of the Guantanamo detainee cases.Here are both the opinions.
Raffaela Wakeman is a Senior Director at In-Q-Tel. She started her career at the Brookings Institution, where she spent five years conducting research on national security, election reform, and Congress. During this time she was also the Associate Editor of Lawfare. From there, Raffaela practiced law at the U.S. Department of Defense for four years, advising her clients on privacy and surveillance law, cybersecurity, and foreign liaison relationships. She departed DoD in 2019 to join the Majority Staff of the House Permanent Select Committee on Intelligence, where she oversaw the Intelligence Community’s science and technology portfolios, cybersecurity, and surveillance activities. She left HPSCI in May 2021 to join IQT.
Raffaela received her BS and MS in Political Science from the Massachusetts Institute of Technology in 2009 and her law degree from Georgetown University Law Center in 2015, where she was recognized for her commitment to public service with the Joyce Chiang Memorial Award. While at the Department of Defense, she was the inaugural recipient of the Office of the Director of National Intelligence’s General Counsel Award for exhibiting the highest standards of leadership, professional conduct, and integrity.
