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Hussain v. Obama and the D.C. Circuit: The Duck Test

By Aditi Mukherji, JD on June 27, 2013 | Last updated on March 21, 2019

In Hussain v. Obama, A three-judge panel of the D.C. Circuit has affirmed the district court’s decision to deny Guantanamo detainee Abdul al Qader Ahmed Hussain’s petition for a writ of habeas corpus.

The court determined that the habeas court’s findings of fact were not “clearly erroneous.” Instead, the court found the findings support the conclusion that Hussain was more likely than not a member of enemy forces.

Terrorist Ducks

Pointing out the crux of the evidentiary issue is Benjamin Wittes of the Brookings Institution, writing for Lawfare. Wittes explains that detainees often do things that are consistent with, but not definitively probative of, membership in enemy groups.

They admit, for example, staying in an Al Qaeda guest house, or taking training, or being recruited to travel to Afghanistan for jihad-like activity -- but they deny actually fighting or joining up. So how should one categorize such people?

The Duck Test

To answer that question, the court turned to the "duck test" from Dole v. Williams Enterprises, Inc., dressed up in appropriate judicial garb: Quotes Judge Griffith for the majority: 'WHEREAS it looks like a duck, and WHEREAS it walks like a duck, and WHEREAS it quacks like a duck, WE THEREFORE HOLD that it is a duck.'"

Here, the court ruled 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 is enough to prove that Hussain was more likely than not a member of enemy forces.

Though they didn't have direct evidence of him participating in terrorist acts, he looked/walked/quacked like a terrorist duck, and concluded he was probably a terrorist duck.

The court, Wittes argues, was basically on the hunt for a duck.

Flying in the Face of the Flock

Senior Circuit Judge Harry Edwards technically wrote a concurring opinion, but in effect flew the coop with a dissent. He rejected the majority's use of the "walks like a duck test" to determine whether Hussain was loyal to enemy forces.

He believed it misapplied the preponderance of the evidence test because, arguably, any young, Muslim man traveling or temporarily living in areas in which terrorists are known to operate would pass the "duck test."

He asked what a judge should do when there's not "one iota of evidence that Hussain 'planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such ... persons?'"

In a way, he wanted a "walks the walk, and talks the talk" test. Though Edwards concurred in the name of precedent, he insisted it's deeply flawed precedent that conflates the preponderance of the evidence and substantial evidence standards. His concluding thoughts signal a deep concern and a provocative call for government action:

When I review a record like the one presented in this case, I am disquieted by our jurisprudence. I think we have strained to make sense of the applicable law, apply the applicable standards of review, and adhere to the commands of the Supreme Court. 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.

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