The Supreme Court has relisted for conference three times a pending Guantánamo habeas petition, Hussain v. Obama, No. 13-638.  The Court will consider the case for the fourth time at its conference this morning; it might rule on the petition for certiorari as early as Monday.

The case hardly seems like the sort the Court would be inclined to consider on the merits.  The petitioner isn’t arguing that the court of appeals has adopted an improper legal standard for assessing habeas claims, let alone that there is a circuit split or any deviation from the Supreme Court’s own doctrine.  Instead, Hussain’s claim is that this case is emblematic of a practice of the U.S. Court of Appeals for the D.C. Circuit of not implementing the proper legal standard in applying the law to the facts of particular Guantánamo habeas cases.

The court of appeals has held that the Authorization for Use of Military Force authorizes detention of an individual at GTMO until the end of hostilities if the government establishes by a preponderance of the evidence–i.e., that it is more likely than not–that the detainee was part of al Qaeda or Taliban forces at the time of his capture.  Hussain’s cert. petition does not take issue with this legal standard.  But he argues that the court is not applying that lawful standard, and is instead denying habeas petitions whenever the government merely offers any “substantial evidence” that the individual was part of enemy forces, without requiring the government to satisfy the “more likely than not” standard.

How might that be so in Hussain’s case?  The court of appeals and the United States primarily relied upon a single fact as establishing that the government met its burden–namely, that from November 2000 to September 2001, Hussain, a teenaged Yemeni citizen, lived among Taliban forces near a battle line in Afghanistan, and there carried an assault rifle that Taliban forces had given him and taught him to use.  “Evidence that Hussain bore a weapon of war while living side-by-side with enemy forces on the front lines of a battlefield,” the court of appeals wrote, “at least invites – and may very well compel – the conclusion that he was loyal to those forces.  We have repeatedly affirmed the propriety of this common-sense inference” (quoting an earlier case that “it is difficult to believe that Taliban fighters would allow an individual to infiltrate their posts near a battle zone unless that person was understood to be a part of the Taliban”).

The district court, and the court of appeals, in essence concluded that that single fact, and the absence of any benign explanation for Hussain’s ten-month stay north of Kabul, made it more likely than not that Hussain was a part of Taliban forces, at least until he left Afghanistan shortly after the September 11th attacks.  He “was not simply in the wrong place at the wrong time,” wrote the court of appeals.  “He was in the wrong place, at the wrong time, with the wrong people, doing the wrong things.  Our precedent, to say nothing of common sense, supports the inference that the district court drew and which we affirm.”  (Hussain had argued that his Taliban housemates gave him the AK-47 for protection from wild animals and thieves, and that they were not living all that close to the lines of battle.  “But the district court permissibly rejected this version of the uncontested facts in favor of the government’s far more plausible explanation,” reasoned the court of appeals.)

It’s hard to imagine that any of the Justices would be inclined to grant certiorari in the case simply to review whether that particular factual assessment was clearly erroneous.

[The next two paragraphs updated to take account of the district court’s description of the facts.]  What might make Hussain’s case a bit trickier, however, is that he left his Taliban hosts, and then Afghanistan altogether, months before he was apprehended in March 2002, by Pakistani authorities in Faisalabad.   Hussain left the front, north of Kabul, shortly before the September 11th attacks, and was in Kabul when those attacks occurred.  He left Kabul to travel to Pakistan a couple of days after the September 11th attacks.  This is conduct one would not necessarily expect of a true member of Taliban forces, or at least of someone who intended to remain part of those forces.  Hussain was not an Afghan citizen who was “enlisted” in, or otherwise formally a part of, its armed forces.  He was instead, on the government’s theory, a Yemeni teenager who had taken up arms with the Taliban.  Isn’t it possible, perhaps even more likely than not, that his flight to Pakistan was a result of his change of heart after he saw what al Qaeda did on September 11th and when he realized that the United States was about to commence war with the Taliban?

The problem for Hussain, however–at least according to the court of appeals–is his own account of his travels in August and September 2001.  Hussain filed a declaration stating that by August 2001, “the excitement and adventure of traveling in the area and providing aid to war victims had ended,” and that “[t]he conditions in th[e] northern part of Kabul] . . . were quite difficult, and the experience of being in the area of conflict and seeing all the suffering of the poor and those displaced by the war grew draining.”  He further testified that he left Kabul for Pakistan just after September 11th both to return to Yemen to be with his family and possibly to marry, and to live in Pakistan to study, either computers or the Koran.  According to the court of appeals, however,

the record lends no support to either story.  Once he left Afghanistan, Hussain stayed in Pakistan until his capture, and although he moved from Lahore to Faisalabad, he made no effort to return to Yemen or to attend any school.  We agree with the district court that “all of the petitioner’s explanations seem to be little more than post hac [sic] attempts to present goals that change as necessary to support his presence in one part of the world or another.  The sum of the petitioner’s inexplicable explanations for his actions renders his testimony completely incredible.”  That finding was not clear error and, under our precedent, provides evidence of Hussain’s continued affiliation with enemy forces after leaving Afghanistan.  In other detainee cases, we have found that false cover stories, like those spun by Hussain, “are evidence—often strong evidence—of guilt.”  Al-Adahi v. Obama, 613 F.3d 1102, 1107 (D.C. Cir. 2010); see Uthman, 637 F.3d at 407.  In Almerfedi, we stated that “‘false exculpatory statements’ amount to evidence in favor of the government.”  Almerfedi, 654 F.3d at 7 (quoting Al-Adahi, 613 F.3d at 1107) (emphasis added).

This is the part of Hussain’s case that presumably has raised concerns with one or more of the Justices.  Even if the courts below were correct that a preponderance of the evidence supported the conclusion that Hussain was part of Taliban forces as of September 11, 2001, has the government demonstrated it is more likely than not he remained part of those forces seven months later, based primarily on the fact that the only explanations Hussain offered for leaving Afghanistan were likely “false cover stories,” and without any affirmative explanation for why such movement–first away from the front, and then later to Pakistan–is consistent with a likelihood that Hussain remained part of Taliban forces?

The Supreme Court does not often grant cert. on such case-specific, application-of-fact-to-law questions.  If I had to predict, therefore, I’d wager that the Court will eventually deny cert.  But it has relisted the case three times, which suggests that at least one Justice is troubled, and that we might expect a separate concurring or dissenting opinion, even if the Court does deny the petition.  In any event, it’s one GTMO habeas case to keep an eye on.