They say you can’t tell how a case is going to come out from an oral argument. Sometimes you can, and today is one of those days. Hussain Salem Mohammad Almerfedi is going to have his head handed to him on platter by Judges Brett Kavanaugh and Laurence Silberman. The decision granting him habeas corpus is toast. The only question for the detainee bar is how ugly it’s going to be, and whether Judge Judith Rogers will also be party to the massacre. Judge Silberman in particular was flirting with some big themes here. Unless the desire for unanimity holds him back, this case could make some big new law. If I had a Guantanamo client, I would be very nervous about it.
As Larkin gave an account of the case last night, I will assume some reader familiarity with the facts.
The case gets under way a mere 13 minutes late, which is miraculously prompt for the D.C. Circuit. Robert Loeb rises for the government and declares that Judge Paul Friedman’s opinion should be reversed and remanded because of two interrelated errors. The first is Judge Friedman’s failure to account for the detainee’s false cover story. The D.C. Circuit has since insisted–most recently in Uthman–that false exculpatory statements can be strong evidence in the government’s favor. Judge Friedman had found Almerfedi’s story incredible, Loeb argues, but he did not consider this as evidence in support of the government’s case.
Judge Silberman cuts him off. This point, he says, is somewhat parallel to the Title 7 employment discrimination context, when a company responds to an employment discrimination claim with a pretext for the adverse action at issue in the case. That response can itself be evidence of discrimination, right? Loeb agrees and notes as well that there are parallels in the criminal context, where a false exculpatory statement can be taken by the jury as evidence of guilt. He quickly tacks back to his main argument.