A federal judge called June 18 on members of Congress and the president to give serious consideration to formulating a different approach for the handling of Guantánamo Bay detainee cases. The US Court of Appeals for the District of Columbia Circuit released their opinion in the case of Abdul al-Qader Hussain v. Barack Obama (opinion, PDF) in which Judge Harry Edwards wrote a concurring opinion. The majority opinion found that Abdul al-Qader Ahmed Hussain had been affiliated with al-Qaeda and the Taliban, and was therefore properly detained. In his concurrence Edwards conceded that while the president was authorized to detain Hussain under the Authorization for Use of Military Force (AUMF), there was no evidence that he had “aided” those who engaged in terrorist attacks.
I am constrained by the law of the circuit to concur in the judgment of the court. The majority opinion is unassailable in holding that our precedent (which conflates the preponderance of the evidence and substantial evidence standards) supports the result reached. I have no authority to stray from precedent. However, when I review a record like the one presented in this case, I am disquieted by our jurisprudence. I think we have strained to make sense of the applicable law, apply the applicable standards of review, and adhere to the commands of the Supreme Court. The time has come for the President and Congress to give serious consideration to a different approach for the handling of the Guantanamo detainee cases.
Edwards also voiced the opinion that the court was setting bad precedent potentially allowing the government to detain “any young, Muslim man” who is traveling through or residing in an area where there is a terrorist presence.
From Jurist, June 20. Used with permission.