A recent study by Professors Mark Denbeaux and Jonathan Hafetz of Seton Hall School of Law concludes that the D.C. Circuit’s 2010 decision in Al Adahi v. Obama marked a turning point in the district court’s adjudication of Guantanamo habeas petitions. According to Judge Randolph’s opinion, the district court had “wrongly required each piece of the government’s evidence to bear weight without regard to all (or indeed any) other evidence in the case.” This amounted to a logical error.
“Many mundane mistakes in reasoning can be traced to a shaky grasp of the notion of conditional probability.” JOHN ALLEN PAULOS, INNUMERACY: MATHEMATICAL ILLITERACY AND ITS CONSEQUENCES 63 (1988). The key consideration is that although some events are independent (coin flips, for example), other events are dependent: “the occurrence of one of them makes the occurrence of the other more or less likely. . . . Those who do not take into account conditional probability are prone to making mistakes in judging evidence. They may think that if a particular fact does not itself prove the ultimate proposition (e.g., whether the detainee was part of al-Qaida), the fact may be tossed aside and the next fact may be evaluated as if the first did not exist.
Thus after Al Adahi, the habeas court must consider the government’s evidence as a whole rather than viewing each piece in isolation.
According to the Seton Hall report, however, Al-Adahi‘s underlying message was more sinister: “stop scrutinizing the government’s factual allegations so closely.” The report points out that before Al Adahi, 56% percent of Guantanamo litigants prevailed in the district court; after Al Adahi, only one of 12 detainees has had his habeas petition granted. That single grant was reversed by the D.C. Circuit in Latif v. Obama, which held that the district court had failed to apply the conditional probability lesson of Al Adahi.
Summarizing the report’s findings, Lyle Denniston reported at SCOTUSblog that the D.C. Circuit’s more recent decision in Latif v. Obama “continued a trend of rulings by Circuit Court panels against detainees.” And the Associated Press reported that “the outcome in Latif’s case was essentially foretold by” Al-Adahi.
Benjamin Wittes is perplexed by the report’s unproven conclusion that Al Adahi has had a negative effect on case outcomes. ”The fact that detainees are no longer winning does not mean either that the D.C. Circuit is wrong or that it has gutted Boumediene.”
- Andrew Tutt & Jasmeet K. Ahuja, The New Terms of Resistance: Evidentiary Rules Governing Guantánamo Bay Habeas Petitions, SSRN (Mar. 6, 2012) (“By blurring the line between examining the likelihood that evidence is reliable and the degree to which it proves the proposition it is introduced to show, the ‘mosaic’ theory sometimes lends unreliable evidence too much weight. More importantly, it opens up the possibility that two pieces of unreliable evidence might falsely corroborate each other.”).
- Robert M. Pallitto, The Mosaic Theory in Individual Rights Litigation: On the Genealogy and Expansion of a Concept, Expresso (2012) (“In essence, the [Al Adahi] panel chose to accept the government’s ‘composite’ view of the evidence over the lower court’s validity judgments about each piece. This was a sort of ‘mosaic theory writ large,’ in the sense that it was not only about what the evidence in this case meant, but also about the proper way to review evidence in general. Associated events raise probabilities, the court seemed to say: if X and Y are common characteristics of terrorists, then a suspect who exemplifies both X and Y is more likely to be terrorist than one who simply exhibits X but not Y. This approach may work well in intelligence analysis, as the lower court said, but it certainly shortchanges concerns about the probity of the evidence.”).