A federal appeals court in Washington today sided with the Justice Department in vacating a judge's order to release a Guantánamo Bay detainee who once swore allegiance to al-Qaida but never fought for the group.
The government sought to keep Mohammedou Ould Salahi detained on the ground that his oath of allegiance to al-Qaida made him a part of the organization at the time of his capture. DOJ lawyers abandoned claims that Salahi aided the September 11 terrorist attacks.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously agreed with DOJ, reversing a trial judge’s ruling and remanding the case for further proceedings in the U.S. District Court for the District of Columbia. The court refused to outright direct the trial judge to deny Salahi’s habeas petition.
The panel judges—Chief Judge David Sentelle heard the case with judges David Tatel and Janice Rogers Brown—said additional fact-finding is necessary to determine whether Salahi was a “part of” al-Qaida. Tatel, writing for the appeals court, said several recent opinions in detainee cases offer guidance that the trial judge didn’t have at the time of his ruling. The D.C. Circuit opinion is here.
Salahi was captured in Mauritania in November 2001 and has been held at Guantánamo since 2002. Government lawyers allege Salahi helped al-Qaida recruit, host leaders and execute money transfers.
In the trial court, DOJ lawyers relied heavily on statements Salahi made to interrogators. Salahi, who alleged that interrogators abused him, testified during an evidentiary hearing. Senior Judge John Robertson, who has since retired from the bench, cited “extensive and severe mistreatment” in giving little weight to statements that lacked independent corroboration, the appeals court said.
DOJ lawyers said Salahi has the burden to prove he cut ties with al-Qaida after swearing allegiance to the group in 1991. That presumption may be justified in some scenarios, the appeals court said, but not in Salahi’s case. At the time Salahi swore allegiance, the court noted, the United States and al-Qaida shared the same goal to overturn Afghanistan’s communist government.
The appeals court said it was concerned the trial judge may have evaluated Salahi’s oath to al-Qaida in isolation. Also, the court said one problem with the trial court ruling is that “it treats the absence of evidence that Salahi received and executed orders [from al-Qaida] as dispositive.”
In today’s ruling, the circuit judges pose a series of question that could become central to additional hearings in the case. Among them: Even if Salahi did not receive express orders from al-Qaida, was there a tacit understanding that he would refer prospective fighters to the organization? Can the trial judge infer, based on Salahi’s ties to al-Qaida, that he remained a trusted member of the group?
“With answers to questions like these, which may require additional testimony, the district court will be able to determine in the first instance whether Salahi was or was not ‘sufficiently involved with [al-Qaida] to be deemed part of it,’” Tatel wrote in the opinion.