Monday, May 7, 2012

The Full AlSabri Opinion Released

The D.C. Circuit in Alsabri released its full opinion, available here (thanks Lawfare), late last week. It is unredacted and also unsurprising.

As revealed its the earlier one-page judgment, the Circuit upheld Judge Urbina's lower court decision that held that Alsabri was lawfully detained.  I previously discussed Judge Urbina's evaluation of the 92-page collection of captured documents, AFGP-2002-800321 (originals and translations), including his assessment of the authenticity and reliability of the documents and the importance, in my view, of separately considering the context of individual pages and the value of consulting the original documents. I ended by stating that it was "unclear what, if anything, the D.C. Circuit might make of these issues."

In its opinion, the D.C. Circuit does briefly discuss the captured documents, but largely avoids substantively examining the issues they raise in any depth by applying a highly deferential "clearly erroneous" standard to its evaluation of Judge Urbina's decision.  In a passage that seems to confirm that only English translations were consulted, the Circuit summarizes that:
the government introduced evidence that Alsabri did in fact receive weapons training. The principal evidence was an English-language translation of a 92-page collection of documents that the government maintains were internal Taliban or al Qaeda records. A Defense Intelligence Agency (DIA) record, which the government submitted as a supplemental exhibit, indicates that the documents were captured by Coalition forces from the "Director of Al-Qa'ida Security Training Office," and are "similar to other materials recovered from enemy forces."
The Circuit then notes that "Alsabri contends that the district court erred in concluding that the records of scheduled and completed training refer to him." It does not engage the arguments in detail, however, but rather simply holds that "the district court did not clearly err in finding that the documents refer to Alsabri."

In a footnote the Circuit Court also notes that Alsabri specifically took issue with Judge Urbina's characterization of a list of "arriving brothers" as a "training roster" when not even the government had argued that the "arriving brothers" were necessarily "arriving" to a training camp.  On this point the Circuit commits, in my view, the same error as Judge Urbina and assumes that because the 92 pages of documents form part of AFGP-2002-800321 in the Harmony database they necessarily are related to one another rather than being, as Alsabri had argued (and the originals provide some support), a "hodgepodge of materials."  Specifically, the Circuit states that "[g]iven the context provided by the remainder of the documents" Judge Urbina's "characterization of the list is not clearly erroneous." The "context" on which the Circuit is relying here may unfortunately be nothing more than an artificial context created by the individual that chose to scan these 92 pages together as one file and assign one Harmony number (for an explanation of that process, see the Standard Operating Procedures for the Combined Media Processing Center in Qatar available here).