A 2008 Supreme Court decision allowing those held at Guantanamo Bay, Cuba, to challenge their detention was followed by an initial round of district court rulings that ordered the release of dozens of terrorism suspects after the government’s evidence was found wanting.
But the more recent appeals court decisions, which have drawn little attention, have scuttled that trend as circuit judges have displayed more skepticism about detainees’ stories. That has meant an easing of pressure on the Obama administration to resettle or repatriate the men.
“I doubt any of my colleagues will vote to grant a petition if he or she believes that it is somewhat likely that the petitioner is an al-Qaeda adherent or an active supporter,” Judge Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit wrote in April.
The appeals court has not only reversed judgments against the government but has also compelled the lower courts to assess evidence in a manner that is much more sympathetic to government arguments. In one ruling, the appellate judges said the lower courts should consider that “two unreliable pieces of information may corroborate each other.”
“The D.C. Circuit is much more deferential to the government than the district courts are, on average,” said Benjamin Wittes, a senior fellow at the Brookings Institution who has written extensively on detention issues. “And there is a tolerance for the idea that these judgments may end up being imperfect.”
A lower bar
These cases often turn on whether prosecutors can prove that a “preponderance of evidence” shows that a detainee was “a part of or substantially supported” al-Qaeda or the Taliban, and was in the armed forces of one of those groups when captured.
That burden of proof is significantly lower than what is required in criminal courts, where evidence must be “beyond a reasonable doubt.” But even so, prosecutors in the detainee cases often failed the “preponderance of evidence” standard, according to U.S. district court judges in Washington, where 38 detainees won their cases.
Many more cases from among the 170 detainees remaining at the Guantanamo Bay military prison are in the pipeline, but now the government is winning.
In one case, Hussain Salem Mohammed Almerfedi, a Yemeni who was arrested in Iran and turned over to Afghan authorities and then to the United States, argued that he was an economic refugee who was attempting to get to Western Europe when he was picked up by the Iranians in late 2001.
In July 2010, U.S. District Court Judge Paul L. Friedman ruled that the evidence against Almerfedi was too weak to justify his continued detention.