UNCLASSIFIEDIIFOR PUBLIC RELEASE FILED WlT · UNCLASSIFIEDIIFOR PUBLIC RELEASE FILED WlTH THE COU. ... Nazem Saeed El Haj Obaid, I . ... Was Part Of AI-Qaida 1

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FILED WlTH THE COU. RT.ffECUI}ITY OFFICER

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I [ORAL ARGUMENT NOT YF;.T SCHEDULED] No. 10-5235

I IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

I MAHMOAD ABDAH, et aI.,I Petitioners,

I UTHMAN ABDUL RAHIM MOHAMMED UTHMAN, Petitioner-Appellee,

I v.

I BARACK H. OBAMA, et al., Respondents-Appellants.

I ON APPEAL FROM THE UNITED STATES DISTRICT COURT

I FOR THE DISTRICT OF COLUMBIA

I BRIEF FOR RESPONDENTS-APPELLANTS

I IAN HEATH GERSHENGORN

I Deputy Assistant Attorney General

DOUGLAS N. LETTER

I ROBERT M. LOEB DANA KAERSVANG

(202) 307-1294 I Attorneys, Appel/ate Staff Civil Division, Room 7230

I U.S. Department ofJustice

I 950 Pennsylvania Ave., N. W. Washington, D.C. 20530-0001

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Case: 10-5235 Document: 1270481 Filed: 10/07/2010 Page: 1

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

I Pursuant to Circuit Rule 28(a)( 1), the undersigned counsel certifies as follows:

A. Parties and Amici J

Petitioners in the district court are Mahmoad Abdah, Malunoad Abdah Ahmed, ,

Majid Mahmoud Ahmed, Mahmoud Ahmed, Abdul Malik Abdul Wahhab Al-Rahabi,

I

i

Ahmed Abdul Wahhab, Makhtar Yahia Naji AI-Wrafie, Foade Yahia Naji Al-Wrafie,

I ArefAdb II Rheem, ArefAbd Al Rahim, Yasein Khasem Mohammed Esmail, JarneI

Khasem Mohammad, Adnan Farhan Abdul Latif, Mohamed Farhan Abdul Latif,

, Jamal Mar'i, Nabil Mohamed Mar'i, Uthman Abdul Raheem Mohammad Uthman, I

Araf Abdul Raheem Mohammed, Adil EI Haj Obaid, Nazem Saeed El Haj Obaid,

I Mohamed Mohamed Hassan Odaini, Bashir Mohamed Hassan Odaini, Sadeq

) Mohammed Said, Abd Alsalem Mohammed Saeed, FaroukAli Ahmed Saif, Sheab

I Al Mohamedi, Salman Yahaldi Hsan Mohammed Saud, Yahiva Hsane Mohammed ....J

Saud Al-Rbuaye. The district court's opinion pertained only to Abdul Rahim

Mohammed Uthmari (ISN 27), who is the real party in interest and appellee in this

I Court.

~ The respondents in the district court and appellants in this Court are Barack

Obama, Robert Gates, Tom Copeman, and Donnie Thomas. .I

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Charles B. Gittings, Jr., participated as amicus in the district court. The New

York Times Company, USA Today, and the Associated Press were movants in the

'district court. ~

B. Rulings Under Review )

The government appeals from the February 24,20I0 order ofthe district court

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(KelUledy, J.) granting Uthman Abdul Rahim Mohammed Uthman's petition for a

I writ ofhabeas corpus and the May 12,2010 order denying the government's motion

for reconsideration.

c. Related Cases I I

This case was previously before this Court. See Abdah v. United States, Nos.

I 05-5115,05-5116 (D.C. Cir.). These appeals were remanded to the district court for

I further proceedings in light of the Supreme Court's opinion in Boumediene v. Bush,

553 U.S. 723 (2008). See Ai Odah v. United States, Judgment, No. 05-5064 (D.C. j Crr. June 25, 2008).

( This case was also before this Court on appeal from a discovery order. See

Abdah v. United States, No. 05-5127. It was remanded to the district court. See Ai

Odah v. United States, 559 F.3d 539 (D.C. Cir. 2009).

There is also an appeal currently pending before this Court regarding the

district court's order requiring the government to give petitioners 30 days notice

before any transfer. See Abdah v. Obama, Nos. 05-5224 (D.C. Cir.).

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There are several other appeals of district court orders granting or denying a

writ of habeas corpus to individuals detained at Guantanamo Bay, Cuba. Those

cases, however, do not involve the "same parties," and are thus not related pursuant I

to Circuit Rule 28(a)(l)(c). I Counsel is not aware at this time ofany other related cases within the meaning

I ofCircuit Rule 28(a)(l)(c).

I ~k~Dtu-I Dana Kaersvang

Counsel for Respondents-Appellants I

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TABLE OF CONTENTS

TABLE OF AlITHORlTIES 1

GLOSSARYI STATEMENT OF ruRISDICTION

I QUESTIONS PRESENTED

I CONSTITUTIONAL AND STATUTORY PROVISIONS :

STATEMENT OF THE CASE .. ,I . )

STATEMENTOFTIffiFACTS

I A. The Government's Evidence Showing That Uthman

Was Part Of AI-Qaida

1. Uthman's education at the Furqan Institute I and relationships with al-Qaida members

J 2. Uthman's decision to travel to Afghanistan and the financing ofhis trip by Sheik AI-Wadi

3. Uthman's travel to Afghanistan along the route used by al-Qaida recruits·

1 4. Uthman's role as an Usama bin Laden bodyguard

~ 5. Uthman's stays at al-Qaida guesthouses and attendance at an al-Qaida training camp

J B. Uthman's Explanation Onlis Actions

J C. The District Court's Opinion

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SUMMARY OF ARGUlV1ENT 21

STANDARD OF REVIEW 25

ARGU1'vfENT ...........••.. , 26j

I. THE DISTRICT COURT APPLIED AN INCORRECT j LEGAL STANDARD FOR DETENTION 26

I II. PROPERLY VIEWED UNDER THIS COURT'S PRECEDENT, THE DISTRICT COURT'S FACTUAL FINDINGS MANDATE DENIAL OF THE WRIT 32

I m. THE DISTRICT COURT ALSO ERRED AS A

MAnER OF LAW IN FAILING TO GIVE WEIGHT j TO ITS CONCLUSION rnAT lITHMAN' S COVER STORY WAS NOT BELlEVABLE 37

I I

N. THE DISTRICT COURT ERRED BY FAILING TO PROPERLY CONSIDER THE EVIDENCE AS A WHOLE 43

J I V. IF THE CASE IS REMANDED, THE DISTRICT

COURT SHOULD BE REQUIRED TO APPROPRIATELY CONSIDER AND MAKE THE NECESSARY FACTUAL FINDINGS REGARDING ADDITIONAL EVIDENCE SUBMITTED BY THE

.II GOVERNMENT ' 47

CONCLUSION 53 J

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(7)(C)

~ OF THE FEDERAL RULES OF APPELLATE PROCEDURE

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TABLE OF AUmORITIES

Cases:

*AI-Adahi v. Obama, _F.3d_, 2010 WL 2756551 (D.C. Cir. 2010)

Al Alwi v. Obama, No. 05-2223 (D.D.C. Jan. 9, 2010),

appeal pending, No. 09-5125

*AI-Bihani v. Obama, 590F.3d 866 (D.C. Cir. 2010)

*AI Odah v. Obama, 648 F. Supp. 2d 1 (D.D.C. 2009), aff'd 611 F.3d 8 (D.C. Cir. 2010)

*Awad v. Obama, . 608 F.3d 1 (D.C. Cir. 2010)

*Barhoumi v. Obama, 609 F.3d 416 (D.C. Cir. 2010)

*Bensayah v. Obama, 610 F.3d 718 (D.C. Cir. 2010)

Boca Investerings Partnership v. U.S., 314 F.3d 6225 (D.C. Cir. 2003)

Boumediene v. Bush, 128 S. Ct. 2229 (2008) ,

Bourjaily v. United States, . 483 U.S. 171 (1987)

23-24,26,29,31,34-37,43-44,46

16,39

19,21,25,26,27,28,29,30,31

29,40,42,44,46

22,23,25,26,30,31,36,43

22,25,26,30,31

, 22,26,27,28,30,43

25

27

43

* Cases upon which we chiefly rely are marked with an asterisk.

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Cuddy v. Cannen, 762 F.2d 119 (D.C. Cir. 1985) 25

Gherebi v. Obama, 609 F.Supp.2d 43 (D.D.C. 2009) 18,30,31

Hamlily v. Obama, 616 F.Supp.2d 63 (D.D.C. 2009) ' 18

Kiyemba v. Obama, 561 F.3d 509 (D.C. Cir. 2009) , .. 1

Sulayman v. Obama, _ F. Supp. 2d -,2010 WL 3069568 (D.D.C. 2010) 35

U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711 (1983) 32

Statutes:

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28 U.S.C. § 1291 '.' . , 2

I 28 U.S.c. § 1292(a)(1) 2

28 U.S.c. § 2241(a) 1

28 U.S.C. § 2253(a) , 2

Pub. L. 107-40, 115 Stat. 224 (2001) 3,21,26

I Other Authorities:

C. Bradley & J. Goldsmith, Congressional Authorization and the War on ~ Terrorism, 118 Harv. L. Rev. 2047 (2005) (collecting sources) '. '" 28

I DePar1:n1ent ofDefense Directive 231 O.OlE (Sept. 5, 2006) , ' 3

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GLOSSARY

AUMF Authorization for Use ofMilitary Force

I ISN Internment Serial Number

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[ORAL ARGUMENT NOT YET SCHEDULED]

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 10-5235 I I MAHMOAD ABDAH, et aI.,

Petitioners,

l UTHMAN ABDUL RAHIM MOHAMMED UTHMAN, Petitioner-Appellee

v.I BARACK H. OBAMA, et al.,

I Respondents-Appellants.

j ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

1

J BRIEF FOR RESPONDENTS-APPELLANTS

I

) STATEMENT OF JURISDICTION

The district court's jurisdiction in this habeas case brought by several detainees

at Guantanarno Naval Base, Cuba, was based on 28 U.S.c. § 2241 (a). See Kiyemba

~

I v, Obama, 561 F.3d 509, 512-513 (D.C. Cir. 2009). On February 24, 2010, the

district court entered judgment granting Uthrnan's habeas petition and ordering him

released. JA 238. This was a ":fmal order" in relation to Uthman's habeas .J

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proceeding. See 28 U.S.c. § 2253(a). The government moved for reconsideration,

which the district court denied on May 12,2010. The government filed a timely

notice of appeal on July 9,2010. This Court's jurisdiction is based on 28 U.S.c. I

§§ 1291, 1292(a)(l), and 2253(a).

] QUESTIONS PRESENTED

I

I 1. Whether the district court erred when it held that the government's detention

j authority extends only to individuals who were part of the command structure

of a1-Qaida.

2. Whether the district court erred in concluding that petitioner was not part ofal

( Qaida where the district court found that "Uthman (1) studied at a school at

I which other men were recruited to fight for AI Qaeda; (2) received money for

his trip to Afghanistan from an individual who supported jihad; (3) traveled to ]

J Afghanistan along a route also taken by AI Qaeda recruits; (4) was seen at two

AI Qaeda guesthouses in Afghanistan; and (5) was with Al Qaeda members in

the vicinity of Tora Bora after the battle that occurred there." JA 262.

I 3. Whether the district court erred by failing to give weight to the fact that

petitioner put forward a wholly implausible cover story. ~ - 4. Whether the district court erred when it failed to consider the evidence as a

I whole.

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5. Whether the district court should be ordered to consider certain additional

evidence if the case is remanded.I CONSTITUTIONAL AND STATUTORY PROVISIONS

I The Authorization for Use ofMilitary Force, Pub. L. 107-40, § 2(a), 115 Stat.

I 224 (2001) (AUMF) provides that:

\ the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned,

I authorized, conunitted, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United

1 States by such nations, organizations or persons.

l STATEMENT OF THE CASE

I This appeal arises from a petition for a writ ofhabeas corpus filed by petitioner

Abdul Rahim Mohammed Uthman (ISN 27), I challenging the lawfulness of his

] military detention by the United States at Guantanamo Naval Base, Cuba. The

J district court granted the writ. The government appeals.

l I ~

I ISN stands for "InternmentSerial Number." DepartmentofDefenseDirective J 23101E requires that each detainee held at Guantanamo Bay be assigned such a number as soon as possible after capture. Department ofDefense Directive 231O.OlE

J at 3 (Sept. 5, 2006).

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- ,I STATEMENT OF THE FACTS

A. The Government's Evidence Showing That Uthman Was Part Of A1Qaida

I 1. Uthman's education at the Furqan Institute and relationships with al-Qaida members

I Uthman Abdul Rahim Mohammed Uthman was born in Burayqah, Aden,

I Yemen in approximately 1979. See JA 1071 (giving date ofbirth as 1980); JA 626

(giving date ofbirth as 1978 or 1979). Starting in 1996, Uthman spent approximately j

three years at the Furqan Institute in Taiz, Yemen. JA 1071. I I I j

relationships with members of al-Qaida. Uthman stated that he personally knew J

several ofthe individuals suspected in the USS COLE attack. JA 642. One, an imam

I named Fahd al-Quso, lived near Uthman in Burayqah. Ibid. Another, Muhammed

I Parama, was related to Uthman by marriage and was his personal friend. Ibid.

Uthman may also have known other USS COLE suspects. ~

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Friends ofUthman from the Furqan Institute also became members ofal-Qaida

and the Taliban. Utlunan was captured with Matunoud al-Mujahid (ISN 31), Abed

ai-Malek Ahmad aJ-Wahab Aboud al-Rahbi (ISN 37), and Majid Majmud Abdu

Ahmad (ISN 41), all graduates ofthe Furqan Institute. See JA 628 (admitting that he

knew Majid Majmud and al-Rahbi from school); JA 630 (identifying al-Mujahid as

\ travel companion); JA 712 (al-Mujahid attended Furqan Institute). Al-Rahbi and al-

I Mujahidhave since admitted to being guards forUsama bin Laden, JA519, 1029, and

Majid Majmud has admitted to fighting for the Taliban, JA 668. Majid Majmud ]

stated that it was at the Furqan Institute that he first learned of jihad and became

j motivated to fight in Afghanistan. JA 670.

I 2. Uthman's decision to travel to Mghanistan and the financing of his trip by Sheik AI-Wadi

I After three years at the Furqan Institute, Uthman decided to travel to

J Afghanistan. Uthman admitted that, prior to this trip, he went to see Sheik Mukbil

AI-Wad? to ask if the fatwa calling for jihad was legitimate. JA 710. Uthman stated

that Sheik AI-Wadi confinned the fatwa. JA 710. Uthman also said that Sheik AI)

Wadi then gave him US$I,OOO to pay for his trip to Afghanistan. JA 710.

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2 This name is spelled in a variety ofways in the various reports in the record.

.J J See, e.g., JA 633 ("Sheik Mukbil AI Wadei"); JA 661 ("Sheik Muqbil AI-Wadi); JA

674 ("Sheik Muqbal Al Wadiee"). For simplicity, it is spelled Sheik Mukbil AI-Wadi throughout this document except in direct quotes.

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Some individuals captured with Uthman stated that Sheik AI-Wadi also paid

for or encouraged their travel to Afghanistan to fightjihad. 3 See JA 261; see also JA

671 (Majid Majmudreceived his fatwa from AI-Wadi); JA 774 (Rahed Ghazi (ISN

26) read about Sheik Al-Wadi's fatwa and visited the Sheik, who encouraged him to

go to Afghanistan and gave him between five and six hundred U.S. dollars for the

1 trip). Another detainee, Abdel Saed ai-Hajj (ISN 165), provided information about

the facilitation oftravel ofthose who received a fatwa from Sheik AI-Wadi, including J

providing money, tickets, guides and information about travel routes. JA 740. 1

I 3. Utbman's travel to Afghanistan along the route used by al-Qaida

recruits

Uthman stated that, after giving him money to travel to Afghanistan, Sheik Al-I

Wadi arranged for him to meet with a man named Abdul Rahman. JA 634. Abdul

] Rahman, in turn, provided him with travel instructions to Afghanistan. Ibid; JA 637.

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3 . Some detainees claimed that the Sheik only encouraged people to go to

I Afghanistan to teach the Koran. JA 661 (Abdel Qadir Hussein Al-Mudhaffari (ISl'J 40) said that he studied under Sheik Mukbil AI-Wadi and became interested in traveling to Afghanistan to teach Koran after hearing from Sheik AI-Wadi ofthe need ~

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for teachers); JA 674 (Ali al-Rahiz, (ISN 45) stated that he spoke to SheikMukbil Al, Wadi when deciding to travel to Afghanistan to teach the Koran and Sheik AI-Wadi j supported the idea but told him to avoid becoming involved with Afghanistan's

internal problems); JA693 (Hajj stated that Sheik Al-Wadi was against the jihad and never provided financial assistance to people traveling to Afghanistan to fight jihad).

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These instructions included detailed directions on how to reach the Taliban House in

Quetta, Pakistan. JA 626-27.

Uthman flew from Sana'a, Yemen to Karachi, Pakistan. There he checked Intoj a hotel that he was directed to by Abdul Rahman, and an employee at the hotel

I arranged for him to take a bus to Quetta. JA 637. Uthman stated that, upon arriving

\ at Quetta, he went to the Taliban headquarters. Ibid. There he met a man named

j Namatullah, who made arrangements for his travel into Afghanistan. JA 627, 637.

Namatullah either arranged his transport in a shared vehicle, JA 627, or drove him to 1

Kandahar the following day, JA 637.

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Uthman's travel routematches that taken by other detainees who have admitted

to being part of al-Qaida. JA 261. For example, AI-Rahbi also took this route, JA

1027 (describing travel from Yemen to Karachi to Peshawar, where he met with the

Taliban and traveled into Mghanistan on a small Taliban bus), as did other detainees,

JA 536.

I 4~ Uthman's role as an Usama bin Laden bodyguard

I The government submitted evidence that Uthman became a bodyguard for

Usama bin Laden and went by the kunya Hudaifa al Adani. JA 243. Sharqwi Abdu ~

J Ali AI-Hajj (ISN 1457), who admitted to facilitating travel ofYemenis to Mghanistan

and staying with Usama bin Laden's bodyguards when in Afghanistan, JA 703-04,

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identified Uthman as such during questioning. JA 705. Another detainee, Abd Al

Hakim Abd Al Karim Arnin Bukhari (ISN 493) identified Uthman as a member of

Usama bin Laden's "security detail." JA 250 (quoting JA 934). Corroborating Hajj's

identification ofUthman by the kunya Hudaifa al Adani

Additionally, the government's evidence indicated that Uthman would have

had the opportunity to become a bodyguard. The government submitted a statement

from Hajj that Usama bin Laden's bodyguards recruited new bodyguards from their

acquaintances. JA 705. Mahmoud al-Mujahid (ISN 31), a graduate of the Furqan

Institute, with whom Uthman was captured, was "'veryproud ofbeing an [Usama bin.

Laden] bodyguard,''' JA 252 (quoting JA 519). In addition, al-Rahbi and Majid

Majmud, b.oth ofwhom Uthman knew from the Furqan Institute and With whom he

was captured near Tora Bora, were also Usama bin Laden bodyguards. JA 628, 630,

668, 1029.

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5. Uthman's stays at al-Qaida guesthouses and attendance at an alQaida training camp

Other detainees provided additional infonnation about Uthman's activities in

Afghanistan. Richard Dean Belmar (lSN 817) stated that Uthman may have been a

lower amir, or leader, at the Kandahar guesthouse. JA 716.

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JA604.

The government's evidence showed that Uthman also participated in the

fighting in Kabul. Abdul AI-Rahman Moaza Zafer AI-Amri (ISN 199) stated that

Uthman, whom he ,called Yasser al-MadanV [ought on the front lines in Kabul at the

OmarSeifposition. JA 689, 753, 755 (mappingphoto.o Uthman's ISN), 891 (AI-

Amri was at the Omar Seifposition). Salim Ahmed Salim Hamdan (lSN 149), who

admitted to training at the al-Qaida training camp of AI Farouq and meeting with

Usama bin Laden, JA 684, stated that he saw Uthman at the Saudi Embassy House,

JA 685. The Saudi Embassy House, as an al-

Qaida guesthouse in a building that had fonnedy served as the residence ofthe Saudi

Arabian ambassador. JA 884, 900. It was run by an aI-Qaida operative Abd al-Hadi

aI-Iraqi, JA 604, who was also in charge of the. troops at the Omar Seifposition in

4 "Al-Madani" may be an erroneous transcription ofal Adani, JA 257, meaning "from Aden, Yemen," JA 582. Uthman is from Aden. JA 1071.

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Kabul, where AI-Amri saw Uthman, JA 891, 689, 753, 755 (mapping photo.o

Uthman's ISN).

Additionally, the government's evidence showed that Uthman attended an al-I

Qaida training camp. The name "Abu Huthayfah AI-Adani," a variant ofUthrnan's

I kunya,. appears on a training roster of al-Qaida members taking a tactics

I course on March 24,2001, which was recovered byU.S. Coalition forces from an al-

Qaida house in Kandahar. JA 784. (The date listed for the course, 29/12/1421, )

translates to March 24, 2001 in the Gregorian calendar. SeeI http://www.Islamicfinder.orglHCallhdate_hj.php.)

I B. Utbman's Explanation OfRis Actions

I Uthman stated that he went to Mghanistan to teach the Koran. This story is at

odds with his own admission that he went to Afghanistan in response to the fatwa, I after consulting with Sheik AI-Wadi to ensure that the call for jihad was legitimate.

-' See JA 710.

I Uthman told a number of different stories about how he paid for his travel to

I Mghanistan, although he consistently stated that he had approximately $1 ,000 for his

trip. See e.g., JA 634,637,641,918. He first stated, in March 2002, that his brother ~j had paid for his travel. JA 627. In September ofthat same year, he reversed himself

I and stated that Sheik AI-Wadi had paid for his travel. JA 633. The following month,

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he asserted that his travel was paid for by a "Sheik Ahmad Uthman." JA 637. But

he soon reverted to saying that Sheik Al-Wadi had paid for his travel. See JA 641

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(Nov J1, 2002); JA 918 (June 9,2003); see also JA 795 (Nov. 4, 2005). Finally, he

elaborated, explaining that Sheik ~l.Wadi gave him the money when he went to see

the Sheik to ask if the fatwacallingfor jihad was legitimate. JA 710. In the

declaration he prepared in 2009 for this proceeding, however, Uthman asserted for

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I the first time that he paid for the trip himself, using $1 ,200 he had saved from summer

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jobs selling fish and fruit at a roadside stand and teaching the Koran. JA 1071-72.

The government submitted evidence from the World Bank that the average annual

per-capita income in Yemen during 1996-99 was US$280-US$3 80, demonstrating the

improbability of this new assertion. See JA 989; see also JA 991-1002 (additional

I infonnation about incomes in Yemen). The district court found that Sheik Al-Wadi

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had paid for Uthman's travel. JA 262.

Uthman stated that he taught at a school in Kabul called Jamma HadratUthman

Bin Affan Radillah Taala Arm. JA 634-35. He claimed that he taught at the school

J for nine or ten months, ibid., and lived next to the school. JA 638. However, he

~ admitted that he could not provide any details about the school, including its address·

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orlocation. JA 635. He also was unable to provide the names ofany ofhis students.

JA 642. In his 2009 declaration, Uthman changed his story, stating that he lived at

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the home of a local businessman in exchange for teaching the man's children. But

Uthman still failed to provide the names ofthe children or the location ofthe house.

JA 1073. I Moreover, Uthrnan admitted that he does not speak. Pashtu, the language that

I his alleged students spoke. JA 637, 1073. He stated that Fadul Rahman, a man he

\ met during his six-day stay in Kandahar, served as his interpreter. JA 637-38.

Uthman states that he depended on Rahman for all of his communication. JA 1073. I

Indeed, he stated that was so dependent onRahman that he accompanied RaJunan on I

periodic visits to Rahman's family near Khowst. Ibid. However, in spite of

I Uthman's claimed unwillingness to be separated from Rahman, Uthman stated that

I I they did not travel to Kabul together. Instead, Rahman drove to Kabul and Uthman

joinedhim several days later by airplane. Ibid. Although Rahman became Utlunan' s .

close friend, the two men lived together in Kabul, and Rahman supposedly worked J as Uthman's translator at the school, Uthman did not know if Rahman was paid for

I his translation services. JA 635.

explanations as to why he did not have his passport. He said that his passport was

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At some point, Uthman was separated from his passport.

JA 605. Uthman provided a variety of

I

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I taken by the Taliban in Quetta when he tried to change his·mind about traveling to

Afghanistan. JA 795. Uthman said that he gave his passport to Rahman for

safekeeping. JA 638. He also said that his passport was stolen by Rahman or byI Rahman's brother, JA 628, 919. But ·he contradicted himself about whether Rahman

I had a brother at all. JA 628.

I Uthman's actions after September 11th are not what one would expect of an

innocentteacher. Four thousand people crossed into Pakistan from Afghanistan each I

day during the week following September 11,2001, JA 1228, but Uthman stated that I

he did not immediately leave Afghanistan after September 11,200I. He remained in

I Kabul even after ground operations to take over Kabul began on October 19,2001.

I JA 970. He stated that he heard the bombs falling at night. JA 1073. But it was not

until November 15, after the allies had taken control of Kabul, that Uthman said he I

decidedto leave the area for his safety. JA 63 8 (Uthman stated that he left Kabul two -J

days before Ramadan, which would have been November 15, 2001);JA 1074 (stating

I

1

that he left "a few days before Ramadan"); JA 970 (allies took control of Kabul

j without incident on November 14); JA 970 (air strikes in the Kabul area lasted until

mid-November).

From Kabul, Uthman claimed that he traveled with Rahman to Rahman's J

family village in Khowst province. JA 1074. Uthman claimed he stayed with

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Rahman until December 7,2001. See ibid. (stating that he left on the 22nd day of

Ramadan). He then left Khowst and traveled towards Pakistan for his safety. Ibid.

However,' rather than take the road from Khowst into Pakistan, a journey of

approximately 20 miles along a primary road, JA 1008, Uthman stated that he

traveled with a guide for eight days on foot over difficult terrain in harsh weather,

I JA 1074. He eventually entered Pakistan on December 15 in the vicinity of Tora

Bora. JA 628, 638-39, 1008. I

Uthman claimed that he met up with other foreigners who were also leaving I

Afghanistan along this difficult route, including jihadists whom he knew from the

] Furqan Institute (Majid Majmud, al-Mujahid, and ai-Rabbi), JA 628,630, 712, and

J other confessed Usama bin Laden bodyguards and Taliban fighters, JA 630; JA 519;

JA 1029; JA 668. Uthman arrived in Pakistan on December 15, 2001. JA 1074 I, (reached Pakistan eight days after the 22nd day of Ramadan, 200 I).

~, The government submitted evidence that non-Afghans who entered Pakistan

J from Tora Bora were not refugees. JA 856. According to evidence submitted.

j "few, ifany noncombatants would have been in the

vicinity during" the battle. Ibid. There were other direct routesavailable to refugees -1 seeking to escape Afghanistan. JA 855. The most likely path out of Mghanistan

J would have involved travel east from Jalalabad, through the Khyber Passrrorkham

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_ SEeltB'f/lN_OPORI1.

Gate, and into Pakistan toward Peshawar. Ibid. There were also relatively easily

traversable routes from Khowst into Pakistan. Ibid. In contrast, "the Tora Bora cave

complex was in very rugged inaccessible mountainous terrain." JA 855. A map of ]

the region submitted into evidence shows two roads between Khowst and Pakistan;

I

I

the trek from Khowst to Tora Bora andfrom there into Pakistan is a·much longer

I journey and involves traversing areas with elevation above 9,000 feet. JA 1008.

Uthman provided no explanation for why he chose to approach Pakistan through this

circuitous and difficult route during heavy fighting rather than leave Afghanistan byI

a primary road taken by escaping refugees.

I

I

Uthman's admitted travel coincides with the movements of al-Qaida fighters.

j Othman left Kabul the day after the city fell to the allies, JA 970, at a time when many

al-Qaida fighters were traveling to Tora Bora, JA 854. He began his trek through the

mountains around Tora Bora, toward Pakistan, the day after coalition forces began -J

heavily bombing fighting positions at Tora Bora. JA 974 (battle began on December

] 6); JA J.074. Coalition forces' assault on Tora Bora lasted until December 18, JA

1 J 977, with the heaviest use of force against al-Qaida fighting positions between

December 10 and 17, JA 854.

_robablyon December 14. JA 855. UthmanenteredPakistan the next day. JA

J 1074.

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Statements from Uthman's traveling companions confmn that they were not

innocent refugees, but rather a retreating group of enemy fighters. Uthrnan's friend

from school, al-Rahbi (ISN 37) admitted to being an Usama bin Laden 90dyguard and

having a close relationship with bin Laden. JA 1029, JA 1031. He described the men

he left Afghanistan with as "brothers" who were retreating out ofTora Bora. JA 1034.

I AI-Mujahid also admitted to being a bin Laden bodyguard. See JA 519 (AI-Mujahid's

admission); see also JA 771 (Uthrnan identifies Fahed Ghazi (ISN 26), Al AIwi (ISN I

I 28), and AI-Mujahid (ISN 31)).

Uthman's story about teaching the Koran is similar to cover stories admittedly ,I

I

I

told by others in his group. Another traveling companion and friend ofUthman's,

I Majid Mahmud, stated that, during his escape from Afghanistan, when he met up with

Uthrnan and others from the Furqan Institute, he fabricated a cover story about

J teaching the Koran. JA 668. Several ofUthman's other companions also admitted

that their stories about teaching the Koranwere fabricated. JA 532 (Ghazi); JA 774-76

J (Ghazi); JA 648 (AI-Mujahid); JA 519 (Al-Mujahid); JA 654 (al-Rahbi); JA 1027

1034 (al-Rahbi); JA 658 (statement of Ali Hamza Ahmed Suliman (ISN 39) that he

j was never far from Usama bin Laden's side during the month after September 11,

J 2001);AIAlwiv. Obama, ClassifiedMemorandumOpinion, No. 05-2223, at 3 (D.D.C.

Jan. 9,2010) (noting, in upholding petitioner's detention, that AI Alwi had retracted

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his story about teaching the Koran). Another of Uthman's traveling companions

described the group, JA 759, and stated that they were instructed to tell the Americans

thatthey were in Afghanistan teaching Islam. JA 682 (StatementofMuhammed Yahia I

Mosin AIZayla (ISN 55)); JA 765; see also JA 600-0 I

I

I Indeed, before admitting his involvement in al-Qaida, JA 519, al

Mujahid told a story almost identical to Uthrnan's. Specifically, al-Mujahid stated I that, before leaving on his trek for Pakistan, he stayed with "Fadl ul-Rahrnan"s in a

J

small village near Khowst and that Rahman hired the -guide to take him to

I Afghanistan. JA 648.

I C. The District Court's Opinion

I. The district court gave "credence to evidence that Uthrnan (I) studied at aI

J school at which other men were recruited to fight for AI Qaeda; (2) received money

for his trip to Afghanistan from an individual who supported jihad; (3) traveled to

I Afghanistan along a route also taken by AI Qaeda recruits; (4) was seen at two Al

.1 Qaeda guesthouses in Afghanistan; and (5) was withAl Qaedamembers in the vicinity

ofTera Bora after the battle that occurred there." JA 262. The court also found that -~

J .J 5 This is an alternate spelling ofFadul ai-Rahman.

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at least some of the men Uthman knew in the group "were likely coming from Tora

I Bora." JA 256.

The court stated that the government's evidence, "at first blush, is quite I

incriminating ofUthman and supportive of the position that he is lawfully detained."

\ JA 263. The district court, however, concluded that these facts do not make Uthman

I detainabfe under the AUMF because, in the court's view, "the key question is whether

an individual receives and executes orders from the enemy force's combat apparatus." I

JA 239-40 (quoting Hamlily v. Obama, 616 F.Supp.2d 63,69-70 (DD.C. 2009) and j

Gherebi v. Obama, 609 F.Supp.2d 43,69 (D.D.C. 2009)) (internal quotation marks

I omitted). And applying that requirement, the court found that "[e]ven taken together,

I these facts do not convince the Court by a preponderance ofthe evidence that Uthman

received and executed orders from AI Qaeda. Although this information is consistent I with the proposition that Uthman was part of Al Qaeda, it is not proof of that

allegation." JA 262. The court went on to explain that "[c]ertainly none ofthe facts

I respondents have demonstrated are true are direct evidence of fighting or otherwise

I 'receiv[ing] and execut[ing] orders. '" JA 262-63 (quoting Gherebi, 609 F.Supp. 2d

...~ at 69).

, In so ruling, the court credited the government's evidence that Uthman was I

arrested in the vicinity of Tora Bora with friends who were al-Qaida members. JA

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254-55. The court, however, concluded that "the record does not contain reliable

evidence that Uthman * * * fought for Al Qaeda," JA 262. The court failed to give

any weight to the government's argument that Uthman's capture near the site of an,I

ongoing battle and known location of Usama bin Laden in the company ofother al- .

I Qaida fighters strongly suggests that he was coming from Tora Bora and therefore part

I' of al-Qaida. JA 254. In addition, the court acknowledged this Court's statement in

I AI-Bihani, that evidence that a detainee "visited Al Qaeda guesthouses would'seem to

l overwhelmingly, ifnot definitively, justify" detention. JA 263 (quoting AI-Bihani v.

Obama, 590 F.3d 1166, 873 n.2 (D.C. Cir. 2010)), The court, however, dismissed that

I statement as "dicta" in a case where the government had "presented significantly

I stronger evidence," JA 263,and therefore did not properly recognize the significance

ofthat record evidence here. \

J The court also disregarded evidence that Uthman was an Usama bin Laden

bodyguard who used the kunya Hudaifa AI-Adani. The court refused to consider any )

statements from Hajj (ISN 1457) or Sanad al Kazimi (ISN 1453) on the basis that

I petitionerhad submitted declarations stating that Hajj and Kazimi had previously been

abused. JA 247. The court credited statements fro i'

I criminal investigator ho interviewed

, Hajj and Kazimi at Bagram~ad not seen any signs of abuse, JA 245, and

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which were supported by

detainees were relaxed, showed no signs ofabuse, appeared truthful, and did not feel

compelled to simply teUlllwhateveriliwanted to hear, JA 401. The court (

nevertheless concluded that the statements of Hajj and Kazimi could not be used

1 because they had been tortured before they came to Bagram, and that the torture of

I Hajj was "ongoing" when he was questioned at Bagram. JA 247.

j The district court also refused to credit evidence that Uthman attended advanced

al-Qaida training and fought on the front lines in Kabul. The district court refused toj ...\.,

consider a document

I The court found that the government did not provide enough information about the

t

J reliability and, m exammmg its reliability, did not consider other evidence of

Uthman's activities JA 249. The court found that the )1

training roster listing "Abu Huthayfah AI-'Adani" was not sufficient evidence that

I Uthman had attended the training because it had rejected the government's evidence

linking Uthman to the kunyaHudaifa AI-Adani, and because there was evidence that .~ someone else had used that name. JA 259. The district court also disregarded AI

)

Amri's statement that Uthman, whom he called Yasser aI-Madani, fought on the front r

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lines in Kabul. Without considering the factthatAI-Arnri had identified a photograph

ofUthman as someone who had fought on the front lines, the district court found that

it was not more likely than not that Dthman was a fighter in Kabul because there was

no other evidence in the record that Uthman used Yasser as a kunya. JA 257.

2. Applying its understanding that the legal standard required proof that

petitioner executed orders and/or participated in the fighting and its approach of

i considering pieces ofevidence individually, the district court concluded that Dthman

was not properly detained. The court granted the habeas petition and ordered the j government to "take all necessary and appropriate diplomatic steps to facilitate

I Uthman's release forthwith." Abdah v. Obama, Order, No. 04-1254 (D.D.C. Feb. 24,

j

J

2010).

. 1 After the district court denied the government's motion for reconsideration, the

government filed a notice ofappeal on July 15,2010. The government also moved in

district court for a stay pending appeal. The district court granted the stay on August l;

10,2010.

I SUMMARY OF ARGUMENT.

d Under the Authorization for Use ofMilitary Force, Pub. L. 107-40, § 2(a), 115

Stat. 224 (2001) (AUMF),the government may detain individuals on the basis that .J

they were "part of the Taliban, al Qaeda, or associated forces," among other reasons. j

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8130RB'f'1fN8P8Rff Al-Bihani, 590 F.3d at 872. Contrary to the district court's dispositive ruling here, it

is not necessary to show that "an individual operates within al Qaeda's formal

command structure." Bensayah v. Obama, 610 F.3d 718, 725 (D.C. Cir. 2010). And

contrary to the district court's focus on whether Uthman fought, it is unnecessary to

provide evidence that he engaged in fighting. See Awad v_ Obama, 608 F.3d I, 10

(D.C. Cir. 2010); Barhoumi v. Obama, 609 F.3d 416, 427 (D.C. Cir. 2010). Rather,

the determination of whether an individual is part of al-Qaida "must be made on a

case-by-base basis by using a functional rather than a formal approach and by focusing

upon the actions ofthe individual in relationto the organization." Bensayah, 610 F.3d

at 725.

Because it applied an incorrect legal standard, th~"-district court incorrectly

concluded that Uthman was not detainable in spite of the considerable and "quite

incriminating" evidence in the record that he was part of al-Qaida forces. The court

erroneously required the government to provide evidence that Uthrnan was part ofthe

al-Qaida command structure and/or fought for al~Qaida. JA 239-40, 262-63. That

error caused the court to disregard or minimize evidence that this Court has held can

- strongly support detention, such as Uthman's capture with other fighters in proximity

to the battle ofTora Bora, and his stays at al-Qaida guesthouses. _

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Under the correct legal standards, the district court's own factual findings,

considered together, mandate the conclusion that Uthman was part of al-Qaida. The

district court gave "credence to evidence that Uthman (1) studied at a school at which

other men wer:e recruited to fight for Al Qaeda; (2) received money for his trip to

Afghanistan from an individual who supportedjihad; (3) traveled to Afghanistan along

a route also taken by Al Qaeda recruits; (4) was seen at two AI Qaeda guesthouses in

Afghanistan; and (5) was with Al Qaeda memberS in the vicinity ofTora Bora after

the battle that occurred there." JA 262. The district court also found that at least some

ofthe men with whom Uthman was traveling had likely come from ToraBora, JA 254,

and that Uthman's account ofhis actions was "less than entirely believable," JA 262.

There is no need for a remand here because the distri6t court's factual [mdings,

under this Court's precedent, require a finding that Uthman is subject to detention

. under the AUMF. See Awad, 608 F.3d at 12; Al-Adahi v. Obama, F.3d ,2010

WL 2756551, *7 (D.c.eir. 2010).

In addition, Uthman put forward a "less than entirely believable" cover stol)'

that he was in Afghanistan teaching children, JA 262, although he did not speak their

language and could not remember their names or the location of the school. He also

falsely asserted that he paid for his travel to Afghanistan with his own money. And

Uthman claimed that he attempted to leave Afghanistan by taking an eight-day trek

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through Tora Bora when he could have taken a vastly shorter, paved road. These

fantastical tales further confinn that he is more likely than not properly detainable.

See Ai-Adahi, 2010 WL 2756551,*5 ("[F]alse exculpatory statements are evidence-

often strong evidence - of guilt.").

The district court compounded its errors by failing to consider the evidence as

a whole, consistent with the approach directed by this Court in Ai-AdaM. When

assessed as a whole, the record establishes a reliable accountthat Uthman traveled to

Afghanistan to fight, was housed by al-Qaida once he arrived, and was captured with

other al-Qaida fighters as he tried to flee. Under the "conditional probability analysis"

required by Ai-Adahi, such facts are mutually reinforcing and overwhelmingly

establish that Uthman was part of al-Qaida. Had the court correctly viewed the

evidence, including false or implausible explanations offered by petitioner, it would

have found, as a matter oflaw, that Uthman was properly detainable under the AUMF.

Because the district court's own factual findings, especially in light of the full

record taken as a whole, compel the conclusion that Uthman was more likely than not

a part of al-Qaida, this Court should reverse the district court order granting the

petition and direct the court to enter an order denying the writ of habeas corpus. At

the very least, however, the district court's legal errors require that this Court vacate

the grant of Uthman's habeas petition and remand the case to the district court.

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Should the case be remanded, the district court should be instructed to appropriately

consider all of the evidence and to make the necessary findings.

STANDARD OF REVIEW

This Court reviews for clear error the district court's factual findings on habeas

corpus review. AI-Biham~ 590 F.3d at 870. "A fmding is 'clearly erroneous' when

although there is evidence to support it, the reviewing court on the entire record is left

with the definite and firm conviction that a mistake has been committed." Awad, 608

F.3dat7 (quotingBoca Investerings Partnership v. Us., 314F.3d 6225, 629-30 (D.c.

Cir. 2003); see also Cuddy v. Carmen, 762 F.2d 119, 124 (D.c. Cir. 1985) (findings

without "sufficient evidentiary support" are clearly erroneou~). The district court's

legal conclusions, along with the ultimate habeas determinat,ton, are reviewed de novo.

Barhoumi, 609 F.3d at 423.

"[W]hether a detainee's alleged conduct - e.g., visiting an al-Qaida guesthouse

or training at an al-Qaida camp - justifies his detention under the AUMF is a legal

question." Barhoumi, 609 F.3d at 423. "The question whether the government has'

proven that conduct - e.g., whether he in fact stayed at an al-Qaida guesthouse or

trained at an al-Qaida camp - is a factual question that [this Court] review[s] for clear

error." Ibid. A district court's overall approach to the evidence - e.g., looking at each

item of evidence separately, as opposed to taking into account the mutually

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I

reenforcing nature of the evidence - can be considered a fundamental mistake that

infects the court's analysis of the record, and is therefore subject to de novo review.

See Al-Adahi, 20ID WL 2756551, at *3.

ARGUMENT (

I. THE DISTRICT COURT APPLIED AN INCORRECT LEGAL STANDARD FOR DETENTION'j: The district court required the government to establish that Uthman was part

j of the "command structure" ;;f al-Qaida and stressed that the government failed to

I establish that Uthman fought in battle. This Court, however, has explicitly rejected

each ofthose requirements. These legal errors penneated the district court's ruling, J

and led it to erroneously grant the petition here. See Al-Bihani v. Obama, 590 F.3d J

at 873-74; Awad, 608 F.3d at 10; Barhoumi, 609 F.3d at 427; Bensayah, 610 F.3d at

, J 725.

'I A. The Authorization for Use ofMilitary Force, Pub. L. 107-40, § 2(a), 115

Stat. 224 (2001) (AUMF) provides that: I· the President is authorized to use all necessary and appropriate force i against those nations, organizations, or persons he detennines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11,2001, or harbored such organizations or persons, in order-I to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. ,J

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Interpreting the AUMF, this Court explained in AI-Bihani that the government

I may establish the lawfulness ofthe petitioner's detention by showing, inter alia, that

I he "is part ofthe Taliban, al Qaeda, or associated forces," AI-Bihani, 590 F.3dat 872.

This Court explained that it is "impossible to provide an exhaustive list ofcriteria for

1 determining whether an individual is 'part of al Qaeda." Bensayah, 610 F.3d at 725.

) This "determination must be made on a case-by-base basis by using a functional

I rather than afonnal approach and by focusing upon the actions of the individual in

relation to the organization." Ibid.1 These determinations are made in a unique context - court scrutiny of military

'] detention during an ongoing war - in which the "procedural and substantive

] standards" to be applied in these habeas proceedings must be crafted with "proper

,1 deference * * * to the political branches." Boumediene v, Bush, 128 S. Ct. 2229,

2276 (2008). The law "must accord the Executive substantial authority to apprehend J

and detain those who pose a real danger to our security." Id. at 2277. And courts

J may not "disregard the dangers the detention in these cases was intended to prevent."

J Id. at 2276. The Court emphasized the need for deference tomilitary concerns when

it pointed out that "most federal judges" do not "begin the day with briefings that may ~J describe new and serious threats to our Nation and its people * * *." Id. at 2276-77.

oJ Consistent with this need for deference in such sensitive public safety matters,

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detention. Ibid. A finding that an individual is part ofal-Qaida or Taliban forces can

also be based in part on evidence that the person's movements and activities - such

as traveling to Tora Bora and then fleeing the region with admitted fighters - were

consistent with the movements of other individuals who are known to be part ofal-

Qaida or Taliban forces. See Al Odah v. Obama, 648 F. Supp. 2d I, IS (D.D.C. 2009)

("AI Odah's movements throughout the country were consistent with someone who

was taking orders from the Taliban and who decided to join the fight against coalition

forces."), ajJ'd 611 F.3d 8 (D.C. Cir. 2010). At bottom, the inquiry is whether "a

particular individual is sufficiently involved with the organization to be deemed part

of it." Bensayah, 610 F.3d at 725.

Thus, evidence that a person moved toward an acti\e battlefield rather than

away from it; that he followed travel routes used by the fighting forces; or that he was

present at Tora Bora during al-Qaida and associated forces' retreat to that area, are

all types of probative evidence that, when evaluated in the full context of the

government's case, may show that the person is part of al-Qaida or TaIiban forces.

See Al Odah, 611 F.3d i1t 16. Likewise, this Court recognized in Al-Adahi that

evidence that an individual attended al-Qaida training camps and stayed at aI-Qaida

guesthouses can constitute "'overwhelming' evidence that the United States had

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authority to detain that person." 20 10 WL 2756551, "'7 (quoting Al-Bihani, 590 F.3d

at 873 n.2).

C. In concluding that its factual findings were not sufficient to support

detention, the district court applied a much more demanding legal standard for

detention under the AUMF than the one adopted by this Court. The district court

followed the holding of Gherebi v. Obama, that "only 'persons who receive and

execute orders' from the enemy's 'command structure' can be considered members

ofthe enemy's armed forces." 609 F. Supp. 2d 43,68 (D.D.C. 2009). Applying this

test, the district court here did not consider the evidence sufficient to establish "that

Uthman received and executed orders from Al Qaeda." JA 262..

By applying the Gherebi standard, the district couit committed legal error.

Gherebi's command structure test has been definitively rejected by this Court. This

Court has expressly and clearly held that evidence that an individual operates within

al-Qaida's formal command structure is sufficient, but "is not necessary to show he

is 'part of' the organization." Bensayah, 610 F.3d at 725; accord Al-Bihani v.

Obama, 590 F.3d at 873-74. Nor is it necessary for the government to show that an

individual participated in combat. See Awad, 608 F.3d at 10; Barhoumi, 609 F.3d at

427.

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The district court's erroneous reliance on Gherebi's command structure test

was critical to its ultimate conclusion on the merits. The district court held that the

"key question is whether an individual 'receivers] and execute[s] orders' from the

enemy force's combat apparatus." JA 239-40 (quoting Gherebi, 609 F. Supp. 2d at

69). Because the district court did not credit evidence that Uthman "was a body

guard for Usama bin Laden or fought for Al Qaeda," and found that "none ofthe facts

respondents have demonstrated are true are direct evidence of fighting or otherwise

'receiv[ing] and execut[ing] orders, '" the district court granted the petition. JA 262

63 (quoting Gherebi, 609 F. Supp.2d at 69).

Led astray by its command structure test, the district court failed even to

consider Uthman's presence near Tora Bora, around the ti~e ofthe battle there, in its

determination of whether it was more likely than not that he was part of al-Qaida

forces. JA 255. The district court deemed it inconsequential that Uthman was with

the enemy forces at Tora Bora absent proof"that Uthman was a bodyguard for Usama

bin Laden or fought for AI Qaeda." JA 262. But this position has been rejected by

this Court. See Awaa', 608 F.3d at 10; Barhoumi, 609 F.3d at 427. The district court

compounded its error by failing to follow this Court's guidance that evidence that a

detainee visited al-Qaida guesthouses is "powerful - indeed 'overwhelming'

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evidence that the individual is part of al-Qaida." AI-AdaM, 2010 WL 2756551, *6

(quoting AI-Bihani, 590 F.3d at 873 n.2).

Thus, the district court applied an erroneous legal standard that penneated its

ruling. As we explain below (see Section II), the facts found by the district court,

when examined under the" proper legal standard, mandate a conclusion that Uthman

was part ofal-Qaida. Thus, this Court should reverse and order the writ to be denied.

In the alternative, because the court's decision to grant Uthman's habeas corpus

petition was manifestly "influenced by its mistaken view of the law" that governed"

the assessment of the evidence in this case, u.s. Postal Service Bd. a/Governors v.

Aikens, 460 U.S. 711, 717 (1983), this Court should at a minimum vacate the district

court's judgment and remand this case to that court for a d~cision under the corre~t

legal standards, see ibid.

II. PROPERLY VIEWED UNDER TmS COURT'S PRECEDENT, THE DISTRICT COURT'S FACTUAL FINDINGS MANDATE DENIAL OF THE WRIT

In this case, there is no need for a remand to the district court. Nor is there a

need to engage in clear error review. Rather, this Court can and should reverse as a

matter of law based on the district court's own factual findings. When examined

under the proper legal standards, the district court's own factual findings, along with

the evidence the court expressly credited, mandate the conclusion, as a matter oflaw,

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that Uthman is detainable as part of al-Qaida. The district court gave "credence to

I evidence that Uthman (I) studied at a school at which other men were recruited to

I fight for Al Qaeda; (2) received money for his trip to Afghanistan from an individual

who supported jihad; (3) traveled to Afghanistan along a route also taken by AI

1 Qaeda recruits; (4) was seen at two Al Qaeda guesthouses in Afghanistan; and (5)

\ was with Al Qaeda members in the vicinity ofTora Bora after the battle that occurred

j there." JA 262. The district court also found that at least some of the men with

I whom" Uthman was traveling had likely come from Tora Bora, JA 254, and that

Uthman's account of his actions was "less than entirely believable," JA 262. These

l established facts, viewed together as this Court instructed in AI-Adahi, leave no doubt

I that, as a matter of law, Uthman is properly detained as part of al-Qaida.

] A. First, the evidence expressly credited by the district court establishes that

Uthman was present near the battle of Tora Bora. He was captured towards the end I of the battle, in the vicinity ofTora Bora, with al-Qaida fighters coming from Tora

J

J

Bora. The government's evidence showed that Tora Bora was the location ofa "last

J stand" in al-Qaida's fight against the United States and its allies in Afghanistan, that

the heaviest fighting occurred between December 10 and 17,2001, and that "few, if

any noncombatants would have been in the vicinity during this time." JA 254 J (discussing JA 853-54, 856). As the district court noted, many fighters escaped the

J BBO~lJll9F91Ui

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I I


. ..BBORB'fIlN8peR!N

cave complex, led by local Afghan guides to Pakistan. JA 254 (discussing JA 855).

One ofUthman's travel companions confinned that the group had been leaving Tora

Bora, JA 1034, and the district court found that at least some ofhis companions were

likely coming from Tora Bora, JA 255. Three ofthe men in Uthrnan' s group admitted

to being part ofal-Qaida or the Taliban. JA 255; JA 1027-34 (statementofal-Rahbi);

JA 668 (statement ofMajid Majmud); IA 519 (statement ofal-Mujahid).

B. Second, the district court also credited evidence that Uthman was seen at

al-Qaidaguesthouses. JA 262. The govemmentsubmitted a declaration from.

facilitations hubs

JA 605. They "served as training camp

tations for

which was credited by the district court, IA 262 (stating that the guesthouses where

Uthman was seen were al-Qaida guesthouses), and which explained that these

frontline fighters associated with al-Qaida and the Taliban." JA 603.

JA 605.

Accordingly, Uthman's presence at these guesthouses, considered in light ofthe other

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evidence tying him to al-Qaida, constitutes significant evidence in this case that

Uthman was part of al-Qaida. AI-Adahi, 2010 WL 2756551, * 6.

The district court credited evidence that Uthman may have been a lower arnir,

or leader, at the Kandahar guesthouse. JA 256-57, 259-60; see also JA 716. The

district court also credited the government's evidence that the Kandahar guesthouse

was an al-Qaida guesthouse. JA 262. The _eclaration explained.

The district court also credited testimony from Salim Ahmed Salim Hamdan

(ISN 149), who admitted to training at the al-Qaida training camp ofAI Farouq and

meeting with Usama bin Laden, JA 684, stating that he ~kw Uthman at the Saudi

Embassy House, JA 685. The district court expressly found that fact to support the

contention that Uthman was present at an "al-Qaida guesthouse." JA 262. The

_eclaration explains that this guesthouse, which was also ~own as

and was located in the residence of the Saudi Arabian ambassador, JA

JA 604. It was run by an al-Qaida operative' 884,900, was unde

Abd al-Hadi ai-Iraqi, JA 604, who was also in charge of the troops at the Omar Seif

position in Kabul. JA 891, 689, 753, 755 (mapping photo.to Uthrnan's ISN).

sBemw:/NOPORN

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While not all stays at guesthouses will make one "part of' al-Qaida, see

Sulayman v. Obama,_ F. Supp. 2d_, 2010 WL 3069568, *15-*16 (D.D.C. 2010),

a stay at an al-Qaida guesthouse, particularly when combined with other evidence of

involvement with al-Qaida, makes it "likely - indeed very likely," that Uthman was

a part of al-Qaida. Al-Adahi, 2010 WL 2756551, *6.

C. Other evidence credited by the district court further buttresses the legal

conclusion that Uthman is properly detained. Uthman's association with al-Qaida

members and bin Laden bodyguards, although not itself conclusive, serves, in light

ofthe additional facts found by the court, to make it more likely than not that Uthman

was part ofal-Qaida. See Al-Adahi, 2010 WL 2756551, *5 ("That close association

made it far more likely that AI-Adahi was or became part dfthe organization."). In

addition, that Uthman received "money for his trip to Afghanistan from an individual

who supported jihad" and "traveled to Afghanistan along a route also taken by Al

Qaeda recruits," JA 262, makes it more likely than not, in light of the other record

evidence, that he is part of al-Qaida. Likewise, the fact that Uthman admitted to

going to Afghanistan in response to a fatwa makes it more likely that his presence

near the battle was deliberate. Like the detainee in Awad, Uthman stated that he

responded to a fatwa, JA 710, and then Uthman was captured near the site ofa battle.

See Awad, 608 F.3d at 12 ("Awad admits that the reason he traveled to Afghanistan

36

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was to join the fight against the U.S. and allied forces. He then succeeded in that goal

by joining a group of al Qaeda fighters who took over part of a hospital.").

At bottom, the district court's own findings ofclose association with other al-

Qaida members, taken together with the findings of travel to Afghanistan along a

route also taken by al-Qaida recruits, visits to al-Qaida guesthouses, and presence

with other al-Qaida members in the vicinity ofTora Bora, require a conclusion that

Uthman is properly detained as part of al-Qaida. The district court reached the

opposite conclusion only by imposing a command structure test and a fighting

requirement, both subsequently rejected by this Court, Once the proper standards are

applied, the district court's own findings, considered along with the evidence it

" credited, mandate denial ofthe writ. Accordingly, the district court's ruling should

be vacated, and the matter remanded with instructions to deny the writ.

Ill. THE DISTRICT COURT ALSO ERRED AS A MATTEROFLAW IN FAILING TO GIVE WEIGHT TO ITS CONCLUSION THAT UTHMAN'S COVER STORY WAS NOT BELIEVABLE

Uthman's reliance on a false and unbelievable cover story provides further

support for the conclusion that he was part of al-Qaida. A petitioner's telling of a

false, exculpatory story supports a conclusion that the government's allegations are

true. See Al-Adahi, 2010 WL 2756551, *5 ("false exculpatory statements are

evidence - often strong evidence - ofguilt."). "Accordingly, this Court in Al-Adahi

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.found that the district court erred when it failed to make findings about Al-Adahi's

credibility and the likelihood ofhis alternative story, instead ruling only on the basis

that the government's evidence was not determinative.

In this case, the district court found Uthrnan's statement that he paid for his

travel to Afghanistan to be false. JA 262. The district court also found that his story

about his reason for traveling to Afghanistan and his activities there was "less than

entirely believable." Ibid. Although the district court found some of Uthrnan's

statements to be unbelievable, it failed to properly consider Uthman's various false

and implausible exculpatory'statements in determining whether the government had

carried its burden by a preponderance ofthe evidence. The court's failure to properly

consider this evidence was legal error, requiring reversal. " ""

A. The district court did not credit Uthman's tale that he paid for his travel to

Mghanistan out ofhis summer earnings. JA 262 (giving "credence to evidence that

Uthman * * * received money for his trip to Afghanistan from an individual who ! •

supported jihad"). Indeed, as the government explained, it was entirely incredible

that Uthman could save US$1,200 for his trip from his earnings from summer jobs

selling fish and fruit at a roadside stand and teaching the Koran, when average annual

per capita income in Yemen at the time was US$280-US$380. See JA 989. However,

,. dleilistrict court made no mention ofUthrnan's false statements in determining that

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the preponderance ofthe evidence did not show that Uthman was properly detainable.

See JA 262-63.

B. Likewise, the district court found that Uthman's story that he was in

Afghanistan teaching children was "less than entirely believable," particularly as

Uthman does not speakPashtu, the primary language spoken in the country. JA 262;

see also JA 1073. In spite ofthe district court's doubts about Uthman's story, it again

failed to give any weight in its analysis as to whether the government had carried its

burden. See JA 262-63. Had the district court,performed the correct analysis, this

incredible cover story would have buttressed the conclusion that Uthman was part of

al-Qaida. ,

Additiomil evidence in the record, but not discussed by the district court, casts

further doubt on Uthman's cover story. Uthman stated that he did not know the

address or location ofthe school at which he claimed to teach in Kabul, in spite ofthe

fact that he claimed to have spent 10 months teaching there, JA 635, and said that he

lived rent-free in a building next to the school, JA 638. On another occasion, Uthmail

said that he stayed in the house of a local businessman and taught his children. JA

1073. Yet Uthman was also unable to provide the names of any of the students he

taught in Afghanistan, presumably including the children with whom he claimed to

have lived. JA 642.

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Uthman's traveling companions also admitted that the story about teaching the

Koran was a lie, JA 532 (Ghazi); JA 774-76 (Ghazi); Al Alwi v. Obama, Classified

I Memorandum Opinion, No. 05-2223, at 3 (D.D.C. Jan. 9, 2010) (al-Alwi), appeal

pending, No. 09-5125; JA 648; JA 519 (A1-Mujahid); JA 654; JA 1027-34 (Al

1., Rahbi); JA 668 (Majid Majmud). One of them, Al Zayla, stated that they were told

J to use this sto~at the _ail in which they were initially held,

JA 762, 765. That Uthman's traveling companions admitted to fabricating the same 1 story, combined with the fact that Uthman could not communicate with his students

r and could not say where his school was located or name a single student, leaves little

] doubt that his story is fabricated. Cf. Al Odah, 611 F.3d 8, 10 (D.C. Cir. 2010)

[ (noting that "al Odah could not provide the names of any of the students he taught

[or] the names of any ofthe schools at which he taught"). j Instead of considering these patent flaws and inconsistencies in Uthman's

J cover story, the court focused only on whether Uthman could have taught the Koran

J without being able to communicate with his Pashtu-speaking students. JA 262. The

J court relied on Uthman's explanation that an Afghani by the name ofFadul Rahman,

whom he met in Kandahar, accompanied him everywhere in Afghanistan and served j as his interpreter during all of his classes. JA 262, 1073. However, the court failed

.J to consider that, not only is this story incredible in itself, since Uthman and Rahman

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~\ _ SB8RB'f'{/N8P8Rfi

lmew each other for only a few days when Rahman supposedly agreed to travel to

Kabul and devote himself to help a virtual stranger teach the Koran, JA 638, but also

Uthman's lack ofknowledge ofRahman's situation makes this story even less likely. 1

Specifically, Uthman claimed that he has no idea whether Rahman, with whom he

J lived and who became his close friend, was paid for his translation-services. JA 635.

J The district court also relied on Uthman's explanation that his knowledge ofYemeni

I Arabic is a valuable job skill in the education sector in Afghanistan, JA 262, despite

the fact that Uthman provided no details as to whether he put that knowledge to use J

at the school where he supposedly taught.

1 C. Uthman's story about why he was in the Tora Bora region with a group of

J al-Qaida fighters around the time ofthe battle ofTora Bora is even more fantastical

] .than his stories as to how and why he went to Afghanistan in the first place. Uthman.

J claims that he was trekking through the Tora Bora region in order to escape the

fighting in Afghanistan. That someone rushing to leave a war zone would eschew a

J direct and accessible route over a paved road, and instead trek for eight days over

] extremely difficult terrain in the very area of a battle simply defies belief. Not

surprisingly, Uthman has never explained why he would choose this route. The~J district court, however, apparently accepted Uthman's story without questioning it,

i J and thus failed to take its implausibility into account when detennining whether the

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preponderance of the evidence shows Uthman is part ofal-Qaida. Again, this was in

error.

I D. That Uthman's implausible story supports the government's case is also

clear from its similarity to the petitioner's story in AI-Odah. In Al Odah, this Court

I affirmed the denial of the writ to a detainee who falsely claimed that he was in

) Afghanistan teaching the Koran. 611 F.3d at 10. The detainee traveled to

j Afghanistan "in a manner consistent with travel patterns of those going to

Afghanistan to join the Taliban and al Qaeda," id. at 16, traveled to Tora Bora at the J

time ofthe battle there, id. at 12, and was captured after a ten-day "march through the

1 Tora Bora region," id. at 16. This Court affirmed the district court's rejection of. .

J petitioner's attempt to present "a gloss of innocent activity over several of the

undisputed facts." Ibid.

J J

As in Al Odah and AI-Adahi, Uthman's transparent lies about his motives and

his movements confirm what is already clear from the district court's factual findings:

1 Uthman is properly detained under the AUMF. In failing to give weight to these false

J and implausible statements as evidence of Uthman's guilt, the district court

j committed legal error.

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IV. THE DISTRICT COURT ERRED BY FAILING TO PROPERLY CONSIDER THE EVIDENCE AS A WHOLE

I As discussed above, the facts found by the district court by themselves mandate

I the legal conclusion that Uthman is detainable as part of al-Qaida. That legal

I conclusion is further buttressed by Uthman's false stories and failure to rebut the

I government's evidence. The case for finding Uthman detainable is even stronger

still, once the full record, beyond the specific facts credited by the district court, is j

properly viewed as a whole.

J This Court has explained that, in perfonning preponderance of the evidence

j analysis, the district court is required to "consider all of the evidence taken as a

I whole." Awad, 608 F.3d at 7. A court cannot "toss[] aside" a fact that does not itself

prove that a petitioner is part of al-Qaida or the Taliban and then consider the next

J fact "as if the first did not exist." Al-Adahi, 2010 WI.. 2756551, *3. Rather, a court

J must look at all ofthe facts linking a petitionerto al-Qaida together, and examine the

"conditional probability" of his being part of al-Qaida based on that totality of theJ evidence. Ibid.; see also Bourjaily v. United States, 483 U.S. 171, 179-180 (1987)

J ("[I]ndividual pieces ofevidence, insufficient in themselves to prove a point, may in

j cumulation prove it," because the "sum of an evidentiary presentation may well be

J greater than its constituent parts."). Likewise, evidence of uncertain reliability can

J BBeRlH'IIN9F9RM

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SI!l6RiJ'f} }NSF9RH

be used to corroborate other evidence. See Bensayah, 610 F.3d at 726. Thus,

multiple pieces of evidence of uncertain reliability can corroborate each other and

establish a fact as true. Ibid. 1

Contrary to this precedent, the district court here improperly disregarded

r individual inculpatory facts, which it considered individually to be inconclusive,

I without considering the evidence as a whole. For example, the district court failed

to attach any weight to Uthman's relationships with al-Qaida members and bin Laden J

I bodyguards. The district court simply stated that "[a]ssociations with AI Qaeda

members, or institutions to which AI Qaeda membershave connections, are not alone

I

l

enough to demonstrate that, more likely than not, Uthman was part ofAI Qaeda." JA

) .. 263 (emphasis added). But the question is not whether this evidence is enough on its

own. It is whether this evidence, together with all of the other evidence, makes it

more likely than notthat Uthman is properly detainable. See AI-Adahi, 2010 WL J

2756551, *5 ("That close association made it far more likely that AI-Adahi was or

I became part of the organization.").

J The court likewise failed to give weight to the fact that Uthman did not have

I his passport when captured, stating that "[a]lthough respondents are correct that this j

information is consistent with a conclusion that Uthman stayed at an Al Qaeda ! I .J

guesthouse, it is not independent evidence of that theory." JA 258. Again this was

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. __SEleft:E'i'!/ff6F6RNi III error. This Court explained in Al Odah that giving up one's passport and

I belongings "was standard at Qaeda and Taliban operating procedure[]." Al-Odah,

I 611 F.3d at 15. Thus, the fact that petitioner gave up his passport provided "further

support" for the denial of the habeas petition. See id. at 17.

I In this case, the government likewise established, and the district court found,

J that giving up one's passport was "consistent" with a stay at an al-Qaida guesthouse.

j JA 258. The government submitted a declaration discussing al-Qaida guesthouses

J

]

J

)

J JA 605. Other Taliban and al

Qaida fighters captured after the battle ofTora Bora did not have passports. JA 666,

J 671, 681. Specifically, the friends with whom Uthman was captured, who have

J admitted to being al-Qaida, JA 1027-34 (Al-Rahbi), or Taliban fighters, JA 668

(Majid Majmud), also did not have passports, JA 641. Indeed, it is probative of=J Uthman's status as part ofenemy forces that he .J

JA 619. When this evidence is

J SEleRM'{ {N9P9RH

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I

viewed in the context ofall the other evidence in this case Jinking Uthman to al-Qaida

and considering Uthman's shifting explanation for his lost passport, see JA 795

(stating that his passport was taken by the Taliban in Quetta); JA 638 (stating he gave

the passport to Rahman for safekeeping); JA 9 J9 (stating that Rahman's brother took )

his passport); JA 628 (Uthman contradicting himself about whether Rahman had a

j brother), it is clear that the court erred in not weighing this factor more heavily in

favor of a finding that Uthman is properly detained. J

While the fact that Uthman did not have his passport is not itself conclusive J

evidence that he stayed in an al-Qaida guesthouse, when viewed in combinationwith

I the other evidence - including evidence that the court credited that Uthman had been

J seen at two al-Qaida guesthouses - it provides further support for the conclusion that

I he did stay at a guesthouse. See Al Odah, 611 F.3d at 17.

The district court should have given weight to all of this evidence and J

considered whether that evidence increased the probability that Uthman was indeed

J part of aJ-Qaida. See AI-Adahi, 2010 WL 2756551, *3. As discussed above, the

J district court's own findings require a legal conclusion that Uthman is part of al

Qaida. Ifthere was any doubt in that regard, those findings and the evidence credited =1 by the district court, when properly viewed together with the totality ofthe evidence

...1 . (as required by circuit precedent), would have required the district court to conclude

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it was more likely than not that Uthman was part ofal-Qaida. Thus, this Court should

reverse the district court's ruling and order the district court to deny the writ.

V. IF THE CASE IS REMANDED, THE DISTRICT COURTI SHOULD BE REQUIRED TO APPROPRIATELY CONSIDER AND MAKE THE NECESSARY FACTUAL FINDINGS

I REGARDING ADDITIONAL EVIDENCE SUBMITTED BYTHE GOVERNMENT

) A. If the case is remanded, the district court should be required to

I appropriately consider additional probative evidence submitted by the government

I supporting the finding that Uthman was part of al-Qaida. In addition to the other

evidence establishing that Uthman was part ofal-Qaida, the Government submitted

I a statement from Sharqawi aI Hajj (ISN 1457, also known as "Riyadh the Facilitator"

1 (JA 333)), a person who knew many of Usama bin Laden's bodyguards and

I associates. Hajj identified a photograph ofUthman. JA 70S. Hajj said the person in

the photograph was "Hudaifa al Adani,'J further stated that the person in the photograph had been a bodyguard for Usama bin

J Laden. JE 705.

J The Government also submitted a statement from Sanad al Kazimi (ISN 1453),

d who admitted that he had himself been a bodyguard for Usama bin Laden. He too

J identified a photograph ofUthman and likewise said the person in the photograph

was known by the kUnya "Hudaifa." Kazimi said that Hudaifa "was in Kabul in the

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SliileRB'PIIHOPORfi

front line." JA 697. He did not know first hand whether Hudaifa had been a .[

bodyguard, but had heard that he had been for "20-30 days, along with a group of

I Yemenis." Ibid.

These reports on their own show that the detainees being questioned were not

I simply telling the government whatever it wanted to hear. The detainees fr.eely

~I denied knowledge ofmany of the individuals whose photographs were shown and,

I

] even where they identified individuals, the infonnation they provided was often less

than incriminating. JA 693-708, 361.

The reports were also supported by the in-court testimony from the person who

I took the statements of both Hajj and Kazimi criminal

I J . investigator JA 322, 325, 328-29.

provided detailed live testimony about the setting, nature and

! conduct of the interviews. JA 333-401. The district court found "persuasive" the

evidence that did not mistreat Hajj or Kazimi or "observe any

j torture, or even any signs of abuse in the demeanor or physical state of either man."

J JA 245. Rather than appearing to be subjectto coercion, both men were relaxed, and

o appeared to be sincere and truthful to the expert interviewer. JA 40 I .

J J J

•

SliileRliillf'/ /N9F9Rfl

48

pecifiCaIIY testified that both witnesses did not simply teIl.verythin.

wanted to hear.llexplained, in regard to Kazimi, for example, the it ~as "quite the



---------------------------

c----------------------- -----~


BBeRlfillN8P8RfiI opposite." JA 361. He denied involvement in many activities and there were

numerous photographs he failed to identify. Ibid.I The district court held that it would not even consider the incriminating )

statements provided by Hajj or Kazimi because petitioner raised concerns that Hajj

I and Kazimi may have been tortured before being brought to Bagram and the relevant

j interviews "occurred in Bagram, where torture ofHajj was ongoing." JA 247. The

district court's findings were, however, inadequate to support the conclusion that 1

there was ongoing torture of Hajj or anyone else at Bagrarn. Further, the court's j findings do not adequately explain why the alleged prior abuse was not sufficiently

1 attenuated, in time, place, and manner, from the subsequent interviews conducted.

] The district court's fleeting reference to the "ongoing" torture of Hajj was

patently inadequate. The district court neither made any finding about the nature ofJ

the "ongoing" torture at Bagram; nor did it explain the basis for its finding. If the

J record were otherwise pellucid about this matter, this flaw could possibly be

J overlooked. Here, however, the error cannot be ignored in light ofthe government's

evidence. estimony showed not only that Hajj felt relaxed .~

J during the interviews at Bagrarn, JA 401, but that he felt free to complain about

matters regarding his treatment and conditions of confinement. For example, Hajj

J SElGRIH'l l'N9F9R1'l

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I




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requested tha_have him moved to a cell closer to the bathroom, which was

done. JA 702. Hajj did not, however, complain that "he was kept in a two-by-three I foot wooden cage with no bathroom." JA 1275; see also JA 541. Indeed, his )

are inconsistent with such an allegation. When

I he told _that he was uncomfortable because his cell was not closer to the

J bathroom, hedid not mention that he was being held in a tiny wooden cage. See JA

702. In light ofthe fact that Hajj but did not complain J

I any abuses at Bagram that could be called "torture" - the district court's unexplained

reference to ongoing torture at Bagrarn cannot simply be overlooked.

J The district court also erred in suggesting that the government had not argued

j that the statements provided ere sufficiently attenuated

] from any past alleged abuses. JA 247. In fact, at the hearing, and on reconsideration,

the government argued that there was no nexus between the alleged abuse and the J

statements of Hajj and Kazimi, and that the totality of the circumstances of their

J demonstrated that they were not the products of

J coercion. Tr. 2/1/10 at 145:5-17. Apart from the temporal relation between the

j alleged abuse and the detainees' interviews with

J

the district court

made no specific findings on any of the remaining factors relevant to an'attenuation

analysis. If this case is remanded, this Court should order the district court to

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interviews



SiiEl~//:N9F9RN

consider whether the statements ofHajj and Kazimi were sufficiently attenuated from

. any alleged torture. In considering that matter, the court should be required to afford

appropriate weight to the expert observations e.g., that the

detainees were relaxed, showed no signs ofabuse, appeared truthful, and did not feel

compelled to simply tel.hateve.anted to hear. The court should also give

] .) appropriate weight to the facts, inter alia, (1) that Hajj and Kazimi were selective in

I the information they provided - they did not identify everyone in the photographs or

always provide incriminating information about those they knew, (2) that Hajj felt ]

free to complai bout his treatment and the conditions of

I detention, and (3) that Hajj later disavowed other statements he made, but that he

I never disavowed these statements in regard to Uthman mad

] JA 268, 540-41.

B. The district court also should be required to reexamine its statement that J

"respondents have not demonstrated a link between Uthman and the name 'Hudaifa.'''

J JA 248. Both Hajj and Kazimi independently identified Uthman's photograph.

identified Uthman by the same kunya, one ofthose (Hajj) provided strong evidence

J BI!l8RB'P( /H9FeRN

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:=1

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and said he used that name.

In the end, three sources independently



BB8RB'fI/N8P8Rftl

that he was a bodyguard, a second (Kazimi) provided supporting information that he

was a bodyguard

I C. The court also refused to consider Al-Amri 's statement that Uthman fought

I with him at the Omar Seifposition in Kabul because Al-Amri called Uthman "Yasser

I AI-Madani." JA 257; see also JA 891 (Al-Amri's statement that he fought at the

I Omar Seif position); JA 753, 755 (identifying Uthman from his picture as having

foughtat the Omar Seifposition). The district court acknowledged that "AI-Madani" I

may be an erroneous transcription of al Adani, JA 257, meaning "from Aden,

1 Yemen," JA 582. However, it refused to consider the identification because there is

) no other evidence in the record that links Uthman to the kunya "Yasser." JA 257. In

j reaching this conclusion, the district court apparently failed entirely to consider that

Al-Amri recognized Uthman's picture and did not base his identificationon the name. J

If this case is remanded, the district court should also be required to consider the

J weight that should be given to this identification of Uthman from his photograph.

J This additional evidence, not adequately addressed by the district court, further

j strengthens the government's already strong case that Uthman is part of al-Qaida,

J The district court should be required to appropriately consider this evidence and make

the necessary findings if this case is remanded.

J BB8RM//N8P91Ul

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.I UNCLASSIFIEOIIFOR PUBLIC RELEASE



BBeRM'//N8F8RN

CONCLUSION

For the foregoing reasons, this Court should reverse the judgment and direct I

I the district court to enter an order denying the writ of habeas corpus. In the

alternative, this Court should remand to the district court with instructions to examine

I the evidence as a whole in light of this Court's precedent and make appropriate

i findings.

Respectfully submitted, 1

IAN HEA1H GERSHENGORNI Deputy Assistant Attorney General

DOUGLAS N. LETTER n, -rII,/} 1 A1 ROBERT M. LOEB f (A.A ....v~ ~

DANA KAERSVANG OlMN- {~/t"\Lj' (202) 307-1294 /' Attorneys, Appellate Staff

] Civil Division, Room 7230 u.s. Department ofJustice 950 Pennsylvania Ave.• NWI Washington, D.C. 20530-0001

I September 8, 2010

I

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.J SSSmR//N8F8RN

J S3




SBeREl'i'! /N8F8ftN

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(7)(C) OF THE FEDERAL RULES OF APPELLATE PROCEDURE

I hereby certifY, pursuant to Fed. R. App. P. 32(a)(7)(C) and D.C. CircuitRule I 32(a), that the foregoing briefis proportiOli.ally spaced inTimes New Roman l4-point

I type, and that it contains 12,220 words, excluding the portions of the brief excluded

t by Fed. R. App. P. 32(a)(7)(B)(iii).

1

) Counsel for Respondents

I J

1

J

J

j

j

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SEeU'fI/N8P9RM

J J


Robert M. Loeb



SBeRfYP/!N8P8RN

CERTIFICATE OF SERVICE

I hereby certiry that on September 8, 2010, I filed and served the foregoing

Brief for Respondents-Appellants by delivering an original and seven copies for the 1

Court, and two paper copies for counsel ofrecord listed below, to the Court Security

I Officer.

I S. William Livingston Allen Pemberton

I Anthony Phillips Covington & Burling 1201 Pennslyvania Ave., N.W. I Washington, D.C. 2004-2401

I David H. Rernes 1106 Noyes Drive Silver Spring, MD 20910

J Marc Falkoff Northern Illinois University J College ofLaw Dekalb, IL 60115

J

J ~& Robert M. Loeb Counsel for Respondeiits

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J .J

SBeRB'fIINM8Rff

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Documents

UNCLASSIFIEDIIFOR PUBLIC RELEASE FILED WlT · UNCLASSIFIEDIIFOR PUBLIC RELEASE FILED WlTH THE COU. ... Nazem Saeed El Haj Obaid, I . ... Was Part Of AI-Qaida 1