Memo to the D.C. Circuit: Staying at a guesthouse is not the same as taking military training.
Ever since the D.C. Circuit’s decision in Al Bihani last year, its opinions have repeated some language that was originally buried in a footnote in Judge Janice Rogers Brown’s opinion in that case concerning how the courts should treat “evidence suggesting that [a detainee] attended Al Qaeda training camps in Afghanistan and visited Al Qaeda guesthouses.” Judge Brown–writing for herself and Judge Brett Kavanaugh–noted that “evidence supporting the military’s reasonable belief of either of those two facts with respect to a non-citizen seized abroad during the ongoing war on terror would seem to overwhelmingly, if not definitively, justify the government’s detention of such a non-citizen.” The language was by no means a holding, but it has nonetheless become part of the court’s boilerplate language in subsequent opinions about the scope of detention authority. In yesterday’s Almerfedi decision, for example, Judge Laurence Silberman, also in a footnote and citing Al Bihani, wrote that, “of course, that a petitioner trained at an al Qaeda camp or stayed at an al Qaeda guesthouse ‘overwhelmingly’ would carry the government’s burden.”
The court’s emerging doctrine on this point seems to me to reflect an unexamined assumption–and one that I think is empirically flawed. So readers should consider this my amicus brief to the D.C. Circuit on the general question of what weight guesthouse attendance and terrorist training should carry in Guantanamo habeas cases. To put the matter simply, I think the court should treat them differently from one another–and should treat neither the way the Bihani language proposes.