Guantanamo detainee and alleged al Qaeda member Abdul Razak Ali was denied habeas relief by the D.C. Circuit on Tuesday, noting that circumstantial evidence is sufficient to detain an enemy combatant.
In the latest appeal in Abdul Razak Ali v. Obama, Ali claimed that when he was captured in an al Qaeda camp in Pakistan in 2002, that it was really just a case of wrong place/wrong time.
The D.C. Circuit did not buy it.
Guilt by Guesthouse
Although there are definite disputes in the record, neither parties dispute that Ali was found among several well known al Qaeda trainers, explosives, and bomb assembling equipment. Ali had been there for almost three weeks before he was captured by American forces.
Ali's response? He simply mistook the al Qaeda training camp for a public guesthouse, and the lower court's ruling is merely presuming his guilt by association. In criminal law -- to which Ali must be alluding -- mere association with criminals is not sufficient to indicate guilt. But that isn't exactly the whole story.
It is not impermissible for the state to use the company one keeps as indicia of one's involvement in gang or criminal activity. And federal courts have consistently reaffirmed restrictions which prohibit probationers and parolees from associating with known felons.
That said, this isn't a criminal proceeding, so different rules apply. And the D.C. Circuit has repeatedly ascribed substantial weight to presence at a terrorist guesthouse when determining whether a detainee was part of an enemy force.
The Return of the 'Duck Test'
Since this request for habeas relief comes out of an exercise of the 2001 Authorization for Use of Military Force, this isn't exactly a habeas petition from your average criminal convict.
As the court affirmed in Hussain v. Obama, membership of a detainee in al Qaeda in these sorts of "guesthouse" cases turns on preponderance of the evidence -- not beyond a reasonable doubt. And as Judge Edwards argued in Hussain, if a detainee walks, looks, talks, and acts like al Qaeda (i.e., the "duck test"), it's more likely than not that he is a member of the enemy forces.
It also doesn't help your case that you're not al Qaeda when, like Ali, you lie to the feds about your identity and maintain a false cover story for two years.
While it certainly could be the case that Ali is just a fantastically unlucky liar who ended up traveling to al Qaeda guesthouse by mistake, the weight of coincidence was great enough to satisfy the D.C. Circuit to deny habeas relief.
- D.C. Circuit Affirms Habeas Denial in Ali v. Obama (Lawfare)
- Denial of Guantanamo Bay Detainee's Habeas Petition Affirmed (FindLaw's D.C. Circuit Blog)
- Habeas Waiver in Plea Doesn't Bar Ineffective Counsel Claim (FindLaw's U.S. 7th Circuit Blog)
- New Book Tracks History of Habeas Corpus in America (FindLaw's U.S. Supreme Court Blog)