International terrorism

The U.S. has detained Mohammedou Ould Salahi at Guantanamo Bay since 2002. He was born in Mauritania and in 1990 went to Afghanistan to join the mujahedeen in their efforts to overthrow the Soviet-supported Communist government. He attended a training camp run by al-Qaida, swore allegiance (bayat), but alleged (sic) severed all ties with al-Qaida in 1992. In 2004, Salahi appeared before a Combatant Status Review Tribunal (CSRT), which considered him lawfully detained. Salahi filed the present habeas petition n the federal District Court for the District of Columbia.

The U.S. put on evidence that Salahi allegedly encouraged three of the September 11, 2001, attackers to travel to Afghanistan to link up with al- Qaida. Also, one of Salahi’s cousins was a spiritual adviser to Usama bin Laden and a high-ranking leader of al-Qaida. The District Court granted Salahi’s habeas petition because it concluded that Salahi was an al-Qaida sympathizer but not an active part of al-Qaida.

The U.S. Court of Appeals for the District of Columbia Circuit vacates the district court judgment and remands for the district court to resolve key factual questions so that the courts can decide whether—as a matter of law—Salahi was part of al-Qaida at the time of his capture. The particular issue in this case is that the U.S. is seeking Salahi’s detention because he associated with al-Qaida. There is no evidence, however, that Salahi was an active member of al-Qaida at the time of his capture.

“... Salahi’s March 1991 oath of bayat is insufficiently probative of his relationship with al-Qaida at the time of his capture in November 2001 to justify shifting the burden to him to prove that he disassociated from the organization. In so concluding, we have no doubt about the relevance of Salahi’s oath to the ultimate question of whether he was ‘part of’ al-Qaida at the time of his capture. We conclude only that given the facts of this particular case, Salahi’s oath does not [alone] warrant shifting the burden of proof.”

“The government next challenges the district court’s use of the ‘command structure’ test -a standard that district judges in this circuit, operating without any meaningful guidance from Congress, developed to determine whether a Guantanamo habeas petitioner was ‘part of’ al-Qaida. See Hamlily v. Obama, 616 F.Supp.2d 63, 75 (D.D.C. 2009) ... As applied by the district court in this case, the command-structure test required the government to prove that Salahi...