Thoughts on Al Kandari, the Burden of Proof, and Matt Waxman

The Al Kandari opinion declassified yesterday does not present a particularly interesting fact pattern. The case, however, is deeply interesting in one respect, which is that it shows methodological movement in the district court on the question of the burden of proof in Guantanamo habeas cases. Specifically, it shows movement on the question of how to think about implausible statements by detainees. When a judge finds that a detainee is likely lying in presenting his own story, does that fact bolster the government's case? Or, in the alternative, do we draw no negative inference from the detainee's lie, because the burden of proof falls on the government?
Until this opinion, the state of play on this issue among the district judges strongly favored the latter approach. As Bobby and I and Rabea Benhalim summarized the matter in our report earlier this year,

[T]the allocation of the burden of proof to the government . . . has proven significant in at least three merits decisions, all of which involve detainees who failed to offer credible exculpatory accounts of their activities. In El Gharani, Al Mutairi, and Mohammed, Judges Colleen Kollar-Kotelly, Richard Leon, and Gladys Kessler openly doubt the petitioners’ credibility, describing their versions of the events in their cases as respectively “implausible,” “troubling,” and “fantastic.” But because the burden of proof lies with the government, the judges observe, this failure could not on its own permit the government to prevail.

For example, in El Gharani, Judge Richard Leon concludes that “notwithstanding the substantial and troubling uncertainties regarding the petitioner’s conduct and whereabouts prior to his detention by Pakistani officials, the Government has failed to establish by a preponderance of the evidence that [the] petitioner… was ‘part of or supporting’ al Qaeda or the Taliban prior to or after the initiation of force by the U.S. in 2001.” Specifically, Judge Leon determines that the government’s evidence “reveals nothing about the petitioner with sufficient clarify . . . that can be relied upon by [the] Court.”

Likewise, in Al Mutairi, Judge Kollar-Kotelly describes the petitioner’s version of events as “implausible and, in some respects, directly contradicted by other evidence in the record.” Nonetheless, she reads nothing into the fact that the detainee is, in her judgment, likely lying about his own conduct. She concludes, rather, that although his “described peregrinations within Afghanistan lack credibility, the Government has not filled in these blanks nor supplanted… [the petitioner’s] version of his travels and activities with sufficiently credible and reliable evidence to meet its burden by a preponderance of the evidence.”

Most dramatically, in Mohammed, Judge Kessler concludes not merely that the detainee’s story is “patently fantastic” but also that the government has proven that he used fake identities and passports, frequented radical mosques in London where a “recruiter . . . then paid for and arranged his trip to Afghanistan,” and stayed in a guest house in that country “with direct ties to al-Qaida and its training camps.” Despite these findings, however, she declines to draw any negative inference from the petitioner’s lies.

In all of these cases, the judges determine that even though it is unlikely that the events had occurred as the petitioner contended, the government has not established the likelihood that its version was accurate either—and rule in favor of the detainee.

This approach now seems to be changing. The reason is the D.C. Circuit's opinion in Al Adahi. One of the less-noticed features of this opinion is its redirection of the lower court on this point and its implicit instruction to let a detainee's lack of credibility contribute to the case against him. The three-judge panel complained in that case that the lower court had not evaluated the credibility of the detainee's statements "despite the well-settled principle that false exculpatory statements are evidence--often strong evidence--of guilt." And it later went on:

One of the oddest things about this case is that despite an extensive record and numerous factual disputes, the district court never made any findings about whether Al-Adahi was generally a credible witness or whether his particular explanations for his actions were worthy of belief. The court's omissions are particularly striking in light of the instructions in al-Qaida's training manuals for resisting interrogation. For those who belong to al-Qaida, "[c]onfronting the interrogator and defeating him is part of your jihad." To this end al-Qaida members are instructed to resist interrogation by developing a cover story, by refusing to answer questions, by recanting or changing answers already given, by giving as vague an answer as possible, and by claiming torture. Put bluntly, the instructions to detainees are to make up a story and lie. Despite this the district court displayed little skepticism about Al-Adahi's explanations for his actions.

In Al Kandari, Judge Kollar-Kotelly has clearly gotten the appeals court's message. She spends a good deal of the opinion assessing the credibility of the detainee, finds it lacking, and then--in contrast to her earlier approach--holds that against him. The key passage reads:

In summary, then, the Court finds that Al Kandari's explanation for his travel to and activities within Afghanistan is not plausible for the reasons set forth above. While Al Kandari does not bear the burden of proving his innocence, the Court's finding that his version of events is not worthy of belief is itself of some probative value. Recent D.C. Circuit precedent counsels that the provision by a detainee of an implausible explanation for his activities in Afghanistan is a relevant consideration in these habeas proceedings given the "well-settled principle that false exculpatory statements are evidence--often strong evidence--of guilt." . . . The Government has also introduced evidence that the particular explanation provided by Al Kandari in this case is consistent with al Qaeda counter-interrogation tactics. . . . Evidence that Al Kandari provided an implausible explanation for his reasons for traveling to and his activities within Afghanistan, and that the explanation provided is consistent with al Qaeda counter-interrogation tactics, therefore supports a reasonable inference that Al Kandari was not in Afghanistan solely to assist with, and did not engage solely in, charitable work, as claimed. While this inference standing alone is insufficient to find that Al Kandari became "part of" the forces of the Taliban or al Qaeda, the Court finds that this evidence is probative and shall be considered in the context of the other record evidence (emphasis added).

This seems to me a significant methodological shift. It probably is not important to the disposition of Al Kandari's case, since Judge Kollar-Kotelly clearly finds the government's evidence against Al Kandari very strong. But in closer cases, putting a finger on the government's side of the scale when the detainee does not present a credible story will make a big difference.
In a related development, as Bobby noted yesterday, a cert petition in Al Odah also raises burden of proof questions. This development is worthy of note not because the court is likely to grant cert here (in my view, it isn't), but because it shows just how contested the burden of proof ground really is. Recall that all of the judges on the district court have used the preponderance of the evidence standard. The D.C. Circuit, however, in Al Adahi strongly intimated that it thought this standard was too rigorous. Only because the government did not urge a lower standard, did the court decline to reach the question. And it only now uses the preponderance standard on an arguendo basis. But in this cert petition, Al Odah's counsel argue that Due Process requires a standard far higher than preponderance:

The Court of Appeals erred by approving the application of a preponderance of the evidence standard to Petitioner’s case. This minimal standard is particularly inappropriate in a situation where Petitioner was detained without access to any factfinding court for more than seven years before his case was heard, and where the evidence presented was stale and almost entirely flimsy and untestable hearsay. With essentially no judicial gatekeeping on the quality of evidence, there must be some heightened standard for the quantum of evidence to justify indefinite imprisonment.
In fact, no decision by this Court has ever approved anything less than proof by clear and convincing evidence in a case involving prolonged detention.

In other words, the range of active possibility on a matter as elemental as the burden of proof runs from a standard like probable cause or "some evidence" to something as rigorous as clear and convincing evidence or even higher. (Query to Human Rights First and the Constitution Project: Are you really so sure that "Habeas Works" as a way of making good rules in this area, and will you stand by that bromide if the government's burden ends up being lower than the preponderance of the evidence?)
All of this discussion of the relevant standard of proof brings me, finally, to two papers by Matthew Waxman, which deal richly with the subject. The first asks, as Matt puts it in the abstract,

To the extent that a state can detain terrorists pursuant to the law of war, how certain must the state be in distinguishing suspected terrorists from nonterrorists? This Article shows that the law of war can and should be interpreted or supplemented to account for the exceptional aspects of an indefinite conflict against a transnational terrorist organization by analogizing detention to military targeting and extrapolating from targeting rules. A targeting approach to the detention standard-of-certainty question provides a methodology for balancing security and liberty interests that helps fill a gap in detention law and helps answer important substantive questions left open by recent Supreme Court detention cases, including Boumediene v. Bush. Targeting rules include a reasonable care standard for dealing with the practical and moral problems of protecting innocent civilians from injury amid clouds of doubt and misinformation, though the application of this standard in the detention context must account for differences such as a temporal dimension, available procedural mechanisms, and political and strategic context. Applying a targeting law methodology, this Article offers a law of war critique of past and current U.S. government detention policies. It recommends several ways to remedy them, including through an escalating standard of certainty as time in detention elapses, comparative consideration of accuracy-enhancing adjudication procedures, and greater decisionmaking transparency.

The second, more-recent article deals with some of the district court cases and argues that,

that embedded in seemingly straightforward judicial standard-setting with respect to proof and evidence are significant policy questions about competing risks and their distribution. How one approaches these questions depends on the lens through which one views the problem: Through that of a courtroom concerned with evidence or through that of a battlefield clouded by imperfect intelligence. All three branches of government should play significant roles in answering these questions, which are critical to establishing sound detention policy.