March 1, 2011 | Weekly Standard

Reconnecting the Dots

In an editorial published yesterday (“A Right Without a Remedy”), the New York Times complained that the D.C. Circuit Court “has dramatically restricted” the Supreme Court’s Boumediene ruling, which granted Guantanamo detainees the right to petition federal courts for their habeas corpus rights. The Times has long championed the idea that U.S. courts should determine whether Guantanamo detainees are properly held. But the Old Gray Lady is upset because the D.C. Circuit Court and Judge Raymond Randolph have overturned rulings issued by D.C. District Court judges.

“Respected lawyers say they are subverting the Supreme Court and American justice,” the Times’s editors write.

The Times doesn’t name any “respected lawyers” who hold this position, but this is an argument that has been made repeatedly by the “Gitmo Bar” – that is, the Guantanamo detainees’ lawyers. Of course the detainees’ lawyers are upset with Judge Randolph and his Circuit Court colleagues. They’ve intervened in a haphazard process that clearly benefitted the detainees, oftentimes at the expense of reality. 

Instead of chastising Judge Randolph and his colleagues, then, we should be thanking them.

What the Times’s editors didn’t tell readers is that the Boumediene decision failed to provide a framework to guide D.C. district judges. Moreover, as Justice Antonin Scalia pointed out in his dissent of the Boumediene decision (which was decided narrowly by a vote of 5 to 4), the Supreme Court’s ruling effectively transferred decisions on “how to handle enemy prisoners in this war” to the branch of government “that knows least about the national security concerns that the subject entails.” This two-fold dynamic (no guidelines plus judicial inexperience) was bound to be problematic, as even the district judges (who asked Congress to intervene) have recognized.

And history has proven Scalia right. The first batch of habeas rulings was, by and large, inconsistent with America’s national security concerns. Over time, the habeas rulings have improved, but only because the D.C. Circuit Court has repeatedly issued much-needed clarifications.

Consider just a handful of examples.

In early 2010, a D.C. district judge ordered Mohamedou Slahi, a notorious al Qaeda recruiter who helped recruit three of the suicide hijacker pilots for 9/11, freed from Guantanamo. The U.S. government appealed and Slahi’s habeas corpus petition was sent back down to the D.C. District Court for further proceedings. The D.C. Circuit Court did not outright overturn the district court’s decision in this instance, but it could have.

Slahi’s defense centered on his claim that he renounced al Qaeda in the early 1990s and was not, therefore, still a member of bin Laden’s terror organization at the time of his detention. But D.C. District judge James Robertson’s ruling contained a lengthy timeline of evidence showing that Slahi continued to work with and assist various al Qaeda members long after he claimed to have renounced his al Qaeda membership. That is, Slahi’s claim is not at all consistent with the evidence heard and accepted by the district court. The district court now gets a second chance to get Slahi’s case right thanks to the D.C. Circuit Court.

In more than one ruling, district judges have likened al Qaeda and Taliban guesthouses to “youth hostels,” thereby dismissing the importance of a detainee’s stay at one or more such facilities. In granting Saeed Hatim’s habeas petition in late 2009, District judge Ricardo Urbina accepted the “youth hostel” analogy. Urbina’s decision was vacated by the D.C. Circuit Court last month. And in a separate habeas ruling released to the public on February 18, Urbina reversed himself, finding that these guesthouses are not at all like youth hostels. 

In reality, al Qaeda and Taliban guesthouses are secure facilities that are used to send al Qaeda operatives to and from terrorist training camps and the frontlines for fighting. This has long been known in counterterrorism circles, but it took the courts some time to figure it out. And that process of figuring it out was greatly assisted by the D.C. Circuit Court, which has rightly concluded that a detainee’s stay at terrorist guesthouses is strong evidence that he was part of al Qaeda or the Taliban.

In other cases, district judges have weighed the government’s evidence in a manner that defies basic logic. In Mohammed al-Adahi v. Obama, for instance, the government presented evidence that a Guantanamo detainee had stayed in al Qaeda guesthouses, attended an al Qaeda training camp, and had ties to Osama bin Laden. District judge Gladys Kessler considered each piece of evidence in isolation, arguing that each individual piece of evidence did not justify al Adahi’s detention in and of itself, and therefore granted his habeas petition. The D.C. Circuit Court, in an opinion authored by Judge Randolph, rectified this by giving Judge Kessler a tutorial in “conditional probability analysis.” The D.C. Circuit Court explained “that although some events are independent (coin flips, for example), other events are dependent.” That is, if one event occurs, then this makes other events “more or less likely.”

Judge Randolph’s approach is called “connecting the dots.” In writing the D.C. Circuit Court’s opinion in al Adahi, therefore, Judge Randolph reconnected the dots, undoing the D.C. District Court’s dissembling.

Finally, the Times laments the case of five Uighur Gitmo detainees, who supposedly “are not enemies, let alone enemy combatants” but have declined to be resettled in the Pacific island nation of Palau “because they have no connection to the island.” The irony of the Uighurs’ decision to stay at Guantanamo instead of being freed in a tropical environment is lost on the Times. Perhaps, contrary to countless Times editorials, Guantanamo isn’t so bad after all. And the Times overlooks the fact that the Uighurs “have no connection” to mainland America either, but that is where their attorneys want them freed.

We’ve covered this ground numerous times before, so there is no need to recount all of the facts about who the Uighur detainees are again. Suffice it to say that they were trained by Abdul Haq, who the Obama administration designated a top al Qaeda terrorist. Haq has since succumbed to a Predator missile in northern Pakistan. But before his demise he could not have legally entered the United States. The Times, however, would have no problem with Haq’s trainees being freed in the U.S. since the Uighur’s appeal of a D.C. Circuit Court ruling “in no way threatens national security.”

Interestingly, the D.C. District Court opinion the Times defends does not recognize the importance of Abdul Haq and his training of the Uighur detainees – the key fact about them. (Full disclosure: I previously coauthored an amicus brief pointing out the Uighur detainees’ ties to known al Qaeda operatives.)

The Times would have readers believe that Judge Randolph is the villain here, standing in the way of the “vital judicial power to check undue use of executive power.” The truth is precisely the opposite.

Judge Randolph and the D.C. Circuit Court have checked the D.C. District Courts’ unreasonable approach to handling detainee matters.

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

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