July 20, 2010 | Weekly Standard

Disconnecting the Dots, Part 2

Late last Friday, the U.S. Supreme Court refused to block the transfer of a Guantanamo detainee named Farhi Saeed Bin Mohammed to his home country of Algeria. Mohammed claims that he will be tortured or killed if he is returned to Algeria. The Obama administration argued that his fears are unfounded as none of the other Gitmo detainees transferred to Algeria have been subjected to such treatment. The Supreme Court sided with the government and Mohammed will likely be transferred in the near future.

But, should he be?

The chief reason offered in the press for Mohammed’s impending transfer is that he was granted his petition for a writ of habeas corpus by District Judge Gladys Kessler. Coincidentally, the D.C. Circuit Court of Appeals eviscerated Judge Kessler’s opinion in another habeas matter, Mohammed Al-Adahi v. Obama, last week.

Using the guidelines set forth by the D.C. Circuit Court in Al-Adahi, it is easy to see how the Obama administration could win an appeal in Farhi Saeed Bin Mohammed’s case.

It is indisputable that Mohammed was recruited by al Qaeda at two London mosques with known extremist ties, traveled to Afghanistan with assistance from al Qaeda, and stayed at an al Qaeda guesthouse. Judge Kessler conceded as much in her memorandum opinion. Yet, the judge still ordered Mohammed freed.

Why? Judge Kessler ruled that while there is a “preponderance of evidence indicating that [Mohammed] was prepared to join al-Qaida and/or the Taliban, and that he set out for Afghanistan with the intention of doing so,” he “did not actually join or substantially support enemy forces simply by virtue of his attendance at the two mosques, recruitment, travel, and guesthouse stay.”

It is evident from reading the D.C. Circuit Court’s opinion in Al-Adahi that the circuit court probably would not agree. Using al-Adahi as a guide, the following arguments would all support an appeal.    

First, Judge Kessler relied on the “preponderance of evidence” standard in deciding Mohammed v. Obama, but the D.C. Circuit Court has argued that a lesser standard may be acceptable in habeas proceedings.

In Farhi Saeed Bin Mohammed v. Obama, Kessler argued that the government “bears the burden of establishing that detention is justified” and “[i]t must do so by a preponderance of the evidence.”

But in its dissection of Kessler’s opinion in Al-Adahi, the D.C. Circuit Court disagreed. The D.C. Circuit Court ruled “that the preponderance-of-the-evidence standard is constitutionally permissible” but has “yet to decide whether that standard is required.” The three-judge circuit panel noted that district judges frequently employ the preponderance standard, but said their “rationale is unstated.”

Furthermore, the D.C. Circuit Court found that only “some evidence” is typically required to suspend the writ of habeas corpus and concluded: “we doubt…that the Suspension Clause requires the use of the preponderance standard.”

Meeting the preponderance standard is more difficult than offering only “some evidence.” In general, the preponderance standard requires showing that a detainee more likely than not became part of, or substantially supported, al Qaeda. “Some evidence” is a far easier threshold to meet.

The D.C. Circuit Court has paved the way for the Obama administration’s lawyers to argue that only “some evidence” is required to justify detentions. But the Obama administration did not advance that argument in Al-Adahi, and if it does not appeal Kessler’s decision in Mohammed, then it will forgo another opportunity to do so.

Second, even relying on the preponderance standard, there is clear evidence in the court record establishing that Mohammed “more likely than not” became part of al Qaeda. In Mohammed, Judge Kessler wrote:

Here, the Government has demonstrated that [Mohammed] stayed at a guesthouse with links to al-Qaida. It has also shown that he traveled to that location with the assistance of a network of individuals tied to al-Qaida, and that he was brought to this particular guesthouse by those men. Further, while his attendance at the two London mosques may not, in and of itself, demonstrate membership in or substantial support of al-Qaida and/or the Taliban at the time it took place, his subsequent conduct (both using the recruiters and [sic] and relying on their travel guides), when viewed along with his attendance at the mosques, does demonstrate that it is more likely than not that the time he spent at those mosques was the beginning of his journey toward affiliation with al-Qaida.

In short, Judge Kessler agreed with the government that Mohammed was recruited by al Qaeda at extremist mosques in London, traveled to Afghanistan with the assistance of al Qaeda’s recruiters, and stayed in an al Qaeda guesthouse in Afghanistan. Incredibly, in Judge Kessler’s mind, this somehow does not add up to Mohammed being a part of al Qaeda – as if he could travel half around the world under al Qaeda’s auspices for a reason other than serving al Qaeda.

The D.C. Circuit Court’s ruling in Al-Adahi provides a clear rebuke to Kessler’s reasoning.  On behalf of the three-judge circuit court panel, U.S. Senior Circuit Judge A. Raymond Randolph wrote (emphasis added):

“Al-Adahi’s voluntary decision to move to an al-Qaida guesthouse, a staging area for recruits heading for a military training camp, makes it more likely – indeed, very likely – that Al-Adahi was himself a recruit. There is no other sensible explanation for his actions. This why we wrote in Al-Bihani that an individual’s attendance at an al-Qaida guesthouse is powerful – indeed ‘overwhelming[]’ – evidence that the individual was part of al-Qaida.”

This parallels Mohammed’s case precisely. Mohammed was recruited by al Qaeda and then stayed in an al Qaeda guesthouse in Afghanistan. For Judge Kessler, this should have been “powerful” and “overwhelming” evidence indicating that Mohammed was a part of al Qaeda.

Third, Mohammed’s absurd cover story is strong evidence that he was hiding his nefarious activities. Judge Kessler writes:

While in Europe, [Mohammed] claims he attended mosques and met people who suggested that he go to Afghanistan to find a particular Swedish woman known to Rahim (a recruiter) who would be willing to marry him so that he could obtain citizenship to stay in Europe.

Judge Kessler did not buy his story, finding it was “entirely implausible.” Of course it is. Judge Kessler went on to demonstrate, correctly, that Mohammed’s tale is just as ridiculous as it sounds at first blush. It does not survive any measure of scrutiny – no one knew anything about this mysterious Swedish woman, including Mohammed or his al Qaeda handlers.

But Judge Kessler missed an obvious point. In Al-Adahi, Judge Randolph noted it is a “well-settled principle that false exculpatory statements are evidence – often strong evidence – of guilt.”

According to memos prepared at Gitmo, Mohammed traveled to Pakistan on June 2, 2001, and continued on to Afghanistan shortly thereafter. He was detained by Pakistani officials in December 2001. What was Mohammed doing in Afghanistan for six months?

If U.S. intelligence officials used Judge Kessler’s methodology, they would be unable to conclude the obvious: that Mohammed was in Afghanistan as a part of al Qaeda. Mohammed cannot offer any other reasonable explanation for what he was doing in Afghanistan, and neither could Judge Kessler.

Fourth, Judge Kessler’s analysis of the evidence is highly speculative and accepts outrageous “torture” claims made by other detainees at face value.

The government did present evidence that Mohammed trained at al Qaeda’s notorious al Farouq camp and went on to fight alongside al Qaeda and Taliban forces. Judge Kessler dismissed this evidence, mostly for specious reasons.

She dismissed the testimony of Binyam Mohamed, a former Gitmo detainee who identified Farhi Saeed Bin Mohammed as one of his fellow trainees at al Farouq. Even though Binyam Mohamed’s testimony was given in “non-abusive,” “cordial” sessions with an FBI Special Agent, Judge Kessler threw out his testimony because Binyam claims he was tortured in the months beforehand. 

There are a lot of problems with Judge Kessler’s justifications for excluding Binyam Mohamed’s testimony, not the least of which is that she took his torture claims at face value even though no evidence has surfaced to support his most sensational allegations. For instance, Binyam claims that his penis was repeatedly cut with a scalpel over the 18-month period he was in Moroccan custody. No evidence has been offered to support Binyam’s allegation in this regard. And the only publicly available evidence suggests that Binyam was subjected to treatment that was far less severe, such as sleep deprivation.

Nonetheless, Judge Kessler accepts Binyam’s allegation and repeats it verbatim.

All of Binyam’s alleged mistreatment occurred prior to his transfer to Bagram and then Guantanamo. It was at those sites that an FBI special agent created numerous reports based on his interviews of Binyam, who the FBI agent said demonstrated a “polite and cooperative demeanor” and was “kind, polite, and relaxed through [their] meetings at Guantanamo.” Binyam did not raise any torture allegations during his time with the FBI’s special agent.

The FBI’s special agent did not think that Binyam’s testimony was coerced. But Judge Kessler proposed an elaborate theory in which Binyam was programmed (through torture) to recount a damning tale involving his ties to senior al Qaeda leaders, and then elaborated upon that tale in order to please the FBI’s man. Judge Kessler proposed that one bit of elaboration was Binyam’s identification of Farhi Saeed Bin Mohammed as one of his fellow al Qaeda trainees. Judge Kessler suggests that Binyam may have added this into his story in order to “please” the FBI’s special agent. She does not explain why this would have pleased the FBI special agent, or why the FBI’s man could be so easily duped.

Judge Kessler’s argument is entirely speculative. Moreover, it is contradicted by a piece of evidence that the judge obviously missed. Binyam identified Farhi Saeed Bin Mohammed as a fellow trainee during interview sessions with the FBI on October 29, 2004 and November 5, 2004. Binyam was interviewed by his personal representative at Gitmo less than two weeks later, on November 18, 2004. If Binyam was really under the spell of torture, as Judge Kessler speculated, then he surely would have repeated the same programmed story to his personal representative. Binyam did not. Instead, Binyam denied the most serious allegations against him, denied any wrongdoing, and admitted only that he received training at an al Qaeda camp.

Binyam’s interview with his personal representative is entirely inconsistent with Judge Kessler’s theory of his testimony. In addition, it is worth noting that Binyam provided specific details about Farhi Saeed Bin Mohammed, including his kunya, age range, and the fact that he had come from Italy (where Farhi Saeed Bin Mohammed had in fact lived). There is no convincing explanation for how Binyam could have known these details other than through firsthand knowledge.  

What is truly remarkable about Judge Kessler’s analysis of Binyam Mohamed’s testimony is that she notes that Binyam has admitted training at an al Qaeda camp even after he was released from U.S. custody. In other words, that part of Binyam’s dossier is not even in dispute. Is it that much of a stretch to believe that he accurately identified some of his fellow trainees during friendly interview sessions with the FBI at Guantanamo? Hardly.

In any event, Judge Kessler’s discussion of Binyam Mohamed’s story is almost entirely beside the point. Regardless of whether or not Binyam Mohamed’s testimony is included in the evidence, there are ample reasons to detain Farhi Saeed Bin Mohammed. 

The Obama administration should appeal Judge Kessler’s ruling in Farhi Saeed Bin Mohammed v. Obama. 

Thomas Joscelyn is a senior fellow at the Foundation for Defense of Democracies.