U.S. Court of Appeals for the D.C. Circuit

The U.S. Court of Appeals for the D.C. Circuit became decisive in Mohamedou Ould Slahi’s habeas case when it reversed the order for his release and remanded the case for rehearing. Its ruling changed the standard governing whether the government could detain him, while leaving unresolved the question of whether the evidence against him met that standard.

Role in the Habeas Litigation

When James Robertson considered Slahi’s petition in 2009, district courts hearing Guantánamo habeas cases were asking whether the government could show that a petitioner was an active member of al-Qaeda when detained. Robertson concluded that Slahi’s intermittent contacts with people who remained active in the organization did not establish that he was then a member. Some interactions might have involved gestures of support, but, in his assessment, they did not amount to criminal material support for terrorism.

On March 22, 2010, Robertson granted Slahi’s petition and ordered his release. The Obama administration filed a notice of appeal four days later. On November 5, the U.S. Court of Appeals for the D.C. Circuit reversed the release order and sent the case back to district court for rehearing.

The Governing Standard

The appellate ruling came amid a wider shift in habeas litigation. By April 1, 2010, the government had lost 34 of 46 such cases. In appeals from several decisions, it had persuaded the U.S. Court of Appeals for the D.C. Circuit to accept a looser test for deciding whether a detainee was part of al-Qaeda. Under the approach applied in Slahi’s appeal, the government no longer had to show that he was carrying out the organization’s orders or directions when he was taken into custody.

The court explained that Slahi’s sporadic connections with active members could remain relevant even if those connections, considered on their own, did not prove that he was part of al-Qaeda. They might nevertheless make it more likely that he remained a member when captured. This distinction altered the legal significance of the same contacts that Robertson had considered insufficient under the standard applied in the district court.

Scope of the Case

The appellate court also delineated what the government was—and was not—arguing. It emphasized that Slahi had not been criminally indicted for providing material support to terrorists or to al-Qaeda. Nor, the court said, was the government seeking to detain him under the Authorization for Use of Military Force on the grounds that he aided the September 11 attacks or purposefully and materially supported al-Qaeda-associated forces in hostilities against U.S. coalition partners.

Instead, the government’s argument centered on whether Slahi’s intermittent interactions with active al-Qaeda members during the 1990s meant that he remained a member of the organization. The court’s account thus separated the question of whether he was detainable under the applicable standard from claims of criminal guilt or direct participation in the September 11 attacks.

Remand and Unresolved Questions

The remand returned the case to district court for reconsideration under the broader standard. The government’s assertedly most damaging connection was Slahi’s relationship with Abu Hafs, his cousin and brother-in-law, who had been a member of al-Qaeda’s Shura Council. The book notes that this relationship could itself attract scrutiny at rehearing, while also recording that Abu Hafs opposed the September 11 attacks, later renounced his ties to al-Qaeda, and was living as a free man after his 2012 release in Mauritania.

The appellate ruling did not itself resolve whether Slahi remained a member of al-Qaeda when captured. The case was still pending at the time represented by the book, and Slahi remained at Guantánamo. The court’s decision therefore marked a consequential procedural reversal, not a final determination of the government’s case against him.