A lawyer for a Guantanamo Bay detainee urged a federal appeals court in Washington today to uphold a judge's ruling that the government failed to establish the man's connection to enemy forces and should be freed.
In the U.S. Court of Appeals for the D.C. Circuit, the lawyer, S. William Livingston, senior counsel at Covington & Burling, said the detainee is not affiliated with al-Qaida or the Taliban. Last year, Judge Paul Friedman of Washington federal district court ruled against the Justice Department, saying there was no evidence that the detainee, Hussain Almerfedi, had the likely skills necessary to serve as an al-Qaida facilitator.
Livingston today dismissed government allegations that Almerfedi made up a cover story to conceal his ties to enemy combatants. The government alleges Almerfedi, a Yemeni citizen, facilitated the movement of enemy soldiers.
The government, Livingston said, relied in large part on “jailhouse gossip” at Guantanamo to justify the continued detention of Almerfedi, imprisoned at the naval facility since May 2003. Iranian authorities first detained Almerfedi in 2001, accusing him of spying for the United States, Livingston said. In court papers, Almerfedi’s lawyers said both the Bush and Obama administrations have cleared him for release.
Friedman, according to Livingston, looked at the evidence in whole in granting Almerfedi’s petition for habeas corpus in July 2010. Livingston said the judge appropriately applied the preponderance of the evidence standard before issuing his decision. The government, Livingston said during one exchange in court today, has a “burden of proof, not a burden of maybe.”
The Justice Department’s Robert Loeb of the Civil Division argued Friedman did not examine the evidence altogether. Among other pieces of evidence, Loeb said today in court that Almerfedi was carrying more than $2,000 when he was detained—money for which there was no reasonable explanation. The government, Loeb said, presented “mutually reinforcing” pieces of evidence—including allegations that Almerfedi admitted to a fellow prisoner that he stayed at a guesthouse in Tehran—that cut against Almerfedi’s contention he had no ties to enemy forces.
“The district court must view the evidence collectively rather than in isolation,” DOJ lawyers said in D.C. Circuit court papers. “It cannot unduly atomize individual pieces of evidence, nor may it toss aside an individual fact that does not itself prove that a petitioner is a part of al-Qaida or the Taliban and then consider the next fact as if the first did not exist.”
D.C. Circuit Judges Judith Rogers and Brett Kavanaugh and Senior Judge Laurence Silberman heard argument today for nearly an hour in an open courtroom before closing the session to the public to discuss classified information.
Silberman twice questioned whether federal trial judges in Washington are using the preponderance standard—where a decision is made on a “more likely than not” basis. Silberman, who noted he’s been thinking a lot about preponderance recently, said he’s “concerned” and “worried” the reasonable doubt standard—the threshold in a criminal case—has pervaded district court judges’ evaluation of the evidence in Guantanamo cases.
At one point, when Livingston said Almerfedi is being detained for a crime he did not commit, Silberman corrected the lawyer, saying that the trial court proceeding is not a criminal one. The appeals court did not immediately rule today.