Two Thoughts on Judge Walton's Al-Bihani Decision
I have now read Judge Reggie Walton’s opinion affirming the detention of Guantanamo detainee Toffiq Nasser Awad Al-Bihani. In keeping with my usual practice, I will leave it to others to discuss the case's effect on the "scorecard." The case, like the one I wrote about the other day that Judge John Bates decided, is not an especially tough one on the merits.
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I have now read Judge Reggie Walton’s opinion affirming the detention of Guantanamo detainee Toffiq Nasser Awad Al-Bihani. In keeping with my usual practice, I will leave it to others to discuss the case's effect on the "scorecard." The case, like the one I wrote about the other day that Judge John Bates decided, is not an especially tough one on the merits. The detainee concedes so much that one would have to be extremely credulous of explanations for which he offers no evidence to hold that his detention is unlawful. That said, two aspects of the opinion are worth noting.
First, like another recent decision by Judge Colleen Kollar-Kotelly (which I discuss here), it illustrates a shift among the district court judges on the question of how to treat incredible statements by detainees. I won't repeat my entire discussion of this issue, but it is an important methodological change. To summarize, in the wake of the D.C. Circuit's decision in Al Adahi, the courts have gone from avowedly refraining from holding a detainee's unbelievable statements against him to considering a detainee's lies as affirmative evidence of his detainability. On page 16 of Judge Walton's opinion, for example, he writes:
In sum, the Court finds that the petitioner's version of the events leading up to his detention, as construed by the Court from a collective evaluation of his testimony, his declaration, and the stipulated facts in this case, reveals numerous material inconsistencies that completely undermine his credibility. In fact, the inherent incongruity in the petitioner's account strongly suggests that he is providing "false exculpatory statements" to conceal his association with al-Qaeda, and such statements "are evidence--often strong evidence--of guilt." Al Adahi, _ F.3d at _, 2010 WL 2756551, at *5.
While the detainee's credibility is not dispositive in this case, there have been cases in the past where such an approach would, I suspect, have led to different bottom-line outcomes.
Second, Judge Walton takes, I think, a subtly different approach to the burden of proof and standard of evidence than do some of his colleagues. Most of the judges interpret their job as simply throwing all of the proven facts into a pot, stirring up the pot, and determining whether the stew that results is more likely than not to describe someone who is "part of" enemy forces. Judge Walton here describes a somewhat different approach, one that draws on the language of the Supreme Court's plurality opinion in Hamdi. Here is how Judge Walton describes the matter:
Collieries, 512 U.S. 267, 281 (1994).[T]he government has the initial burden of producing evidence in support of its claim for detention, and should the government produce evidence sufficient to establish a prima facie case for detention, then the burden of producing evidence to rebut the government's case shifts to the petitioner. See Hamdi v. Rumsfeld, 542 U.S. 507, 534 (2004) (observing that "once the Government puts forth credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria," and that such a "burden-shifting scheme" would not offend the Constitution). After both parties have presented all of their evidence, the Court must weigh the evidence to determine whether the government has met its burden of showing that its evidence "is ... more convincing than the evidence ... offered in opposition to it." Greenwich Collieries v. Dir., Office of Workers' Compo Programs, 990 F.2d 730,736 (3d Cir. 1993). If the government is successful in making this showing, then the Court must deny the habeas petition. But, where the petitioner's evidence demonstrates that his version of the facts is more likely to be true, or where "the evidence is evenly balanced," the Court must rule in favor of the petitioner. Dir. Office of Workers' Compo Programs v. Greenwich
Again, I don't think the difference in approach has any effect on the outcome in this case, but it does seem to me to organize the burden in a fashion that might yield different outcomes in some cases.
Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.
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