WASHINGTON -- A federal appeals court judge Tuesday called on the president and Congress to consider a different approach to the handling of legal cases of Guantanamo Bay prisoners.
Judge Harry T. Edwards made the comment at the end of a written opinion in which he reluctantly concurred with a three-judge panel's decision rejecting a Guantanamo prisoner's challenge to his detention.
Edwards wrote that the prisoner's challenge fails because of the precedent established by the U.S. Court of Appeals for the District of Columbia Circuit.
"However, when I review a record like the one presented in this case, I am disquieted by our jurisprudence," wrote Edwards, who was appointed by President Jimmy Carter, adding that the judges on the circuit have "strained" to make sense of the law and follow Supreme Court commands.
"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," he wrote.
The detainee's challenge should be granted, Edwards wrote, "but his claim is doomed to fail because of the vagaries of the law."
Edwards' comments came as President Barack Obama makes another run at trying to close the prison at the Guantanamo Bay Naval Base in Cuba. The president has chosen a Washington lawyer, Clifford Sloan, to be the State Department's special envoy for closing it down.
In the majority opinion, Judge Thomas Griffith wrote that the detainee, Abdul al Qader Ahmed Hussain, was properly detained because he was likely part of an enemy force when he was captured in 2002. According to the opinion, which upheld a lower court ruling, Hussain had moved to Afghanistan in 2000 and lived near the front lines of war between the Taliban and the Northern Alliance. His Taliban housemates supplied him with an AK-47 rifle and trained him to use it.
Under the Authorization for Use of Military Force, which Congress passed after the Sept. 11, 2001, attacks, the president can detain people who "planned, authorized, committed, or aided" the attacks. Griffith wrote that the D.C. Circuit has held that this authority justifies holding a detainee at Guantanamo if the government shows, by a preponderance of the evidence, that the detainee was part of al Qaeda, the Taliban, or associated forces when he was captured.
"Evidence that Hussain carried an assault rifle given him by Taliban forces while living among Taliban forces near a battle line fought over by Taliban forces brings to mind the common sense view in the infamous duck test," Griffith wrote, invoking the "if it looks like a duck, walks like a duck and quacks like a duck, it's a duck" logic. Griffith, an appointee of President George W. Bush, was joined in the majority opinion by Karen LeCraft Henderson, who was appointed by President George H.W. Bush.
In his concurring opinion, Edwards called the duck test "quite invidious because, arguably, any young, Muslim man traveling or temporarily residing in areas in which terrorists are known to operate would pass the `duck test.'" (In a footnote, Griffith replied, "The district court cared not a whit whether Hussain is Muslim (or not). Neither do we.")
Edwards said that Hussain was a teenager when he was taken into custody, and that he claimed he had the weapon for self-defense. The judge wrote that the government didn't contend that Hussain used the weapon for any purpose or that he ever joined enemy forces on the front lines.
Edwards wrote that the evidence against Hussain doesn't meet the "preponderance of the evidence" test to detain him, but that it might meet a lower threshold test. Because the D.C. Circuit precedent "conflates" the two standards, the end result is that Hussain's challenge is denied, he wrote.
"I am constrained by the law of the circuit to concur in the judgment of the court," he wrote.
Follow Fred Frommer on Twitter: http://twitter.com/ffrommer