UNCLASSIFIEDIIFOR PUBLIC RELEASE I CO....UNCLASSIFIEDIIFOR PUBLIC RELEASE . I . I . There are several cases that present similar issues currently pending in . I . this Court. These

-~-------

UNCLASSIFIEDIIFOR PUBLIC RELEASE FILED INITio! 'n4E CO.§RliYOFFiCER

eso· .. ,.--SECRBTllNOFORNI DATE: - L;;)

I [ORAL ARGUMENT SCHEDULED FOR NOVEMBER 4,2010]

I I No. 09-5125

IN THE

United States Court of AppealsI FOR THE DISTRICT OF COLUMBIA CIRCUIT

I MOATH HAMZA AHMED AL ALWI,

I Petitioner!Appellant,

I v.

BARACK OBAMA, et ai., I Respondents/Appellees,

I ,I ON APPEAL FROM THE UNITED STATES DISTRICT COURT

I FOR THE DISTRICT OF COLUMBIA

BRIEF FOR APPELLANT MOATH HAMZA AHMED AL-ALWI

I William J. Murphy John J. Connolly

Murphy & Shaffer LLCI 36 S. Charles St., Suite 1400 Baltimore, Maryland 21201

-I (410) 783-7000

I

Ramzi Kassem Zachary P. Katznelson

Main Street Legal Services, Inc. City University ofNew York

School of Law 65-21 Main Street Queens, NY 11367

(718) 340-4558

Attorneys for Appellant

I -I

SECRE'I'NNOPORN

I UNCLASSIFIEDIIFOR PUBLIC RELEASE

Case: 09-5125 Document: 1264231 Filed: 09/04/2010 Page: 1

UNCLASSIFIEOIIFOR PUBLIC RELEASE

I I CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES

I Appellant Moath Harnza Ahmed al-Alwi hereby submits this

Certificate pursuant to D.C. Circuit Rule 28(a)(1).

I Parties and Amici

I Petitioner-Appellant is Moath Hamza Ahmed al-Alwi. Respondents

I Appellees are President Barack Obama, Secretary of Defense Robert Gates,

I Admiral Jeffrey Harbeson and Colonel Donnie Thomas.

Rulings Under Review

I Appellant appeals from the final judgment dated January 9,2009, the

I December 30, 2009 unclassified order and the January 9, 2010 classified

I order of the United States District Court for the District of Columbia (Judge

I Richard J. Leon) denying Appellant's petition for a writ of habeas corpus,

and all subsidiary orders thereto. The final judgment is found in the Joint

I Appendix Volume I, p.361. The December 30,2009 order is found in the

I Joint Appendix Volume I, p.352. The January 9,2009 order is found in the

I Joint Appendix Volume III, p.1794.

I Related Cases

Al A/wi v. Gates, No. 07-1251, was an original action under the , Detainee Treatment Act of 2005. This action was dismissed on March 26,

2009.



UNCLASSIFIEDIIFOR PUBLIC RELEASE

I I There are several cases that present similar issues currently pending in

I this Court. These cases may include Al-Bihani v. ahama, No. 09-5051; Sliti

v. ahama, No. 09-5104; Basardh v. ahama, No. 09-5203; Mohammed v.I

Ohama, No. 10-5034; Hatim v. Ohama, No. 10-5048; Salahi v. Ohama, No.

I 10-5087; Al-Assani v. Ohama, No. 10-5126; Al-Nahdi v. Ohama, No. 10

I 5127; Al-Wrafie v. ahama, No. 10-5170; AI-Madhwani v. Ohama, No. 10

I 5172; Al-Harbi v. ahama, No. 10-5217; Abdah v. ahama, No. 10-5235; and

Khalifh v. ahama, No. 10-5241.

I I

amzi Kassem

I I Zachary Katzne1son

Main Street Legal Services, Inc. City University of New York School of Law 65-21 Main Street

I Queens, NY 11367 (718) 340-4558

I William J. Murphy John 1. Connolly

I MURPHY & SHAFFER LLC 36 S. Charles St., Suite 1400 , Baltimore, Maryland 21201 (410) 783-7000 [email protected]

1 [email protected]

Counsel for Appellant



UNCLASSIFIEDffFOR PUBLIC RELEASE

I SECRE'F//NOFORN

I TABLE OF CONTENTS

I JURISDICTIONAL STATEMENT 1

STATEMENT OF THE ISSUES 1

I I

STATEMENT OF FACTS 2

Difficulties in Generating a Factual Record 2

I Facts Presented at the Hearing and Relied on by the District Court 4

I Facts Presented at the Hearing but not Relied on by the District Court 8

Procedure in the District Court 11

I I

SUMMARY OF ARGUMENT 19

STANDARD OF REVIEW , 21

I ARGUMENT , 22

I I. THE DISTRICT COURT DEPRIVED PETITIONER OF HIS RIGHT TO A MEANINGFUL OPPORTUNITY TO CHALLENGE HIS IlVIPRISONMENT , , 22

I I

A. The District Court Abused its Discretion by Denying Petitioner's Consent Motion for Time to Prepare 24

1. Court-imposed obstacles compounded the challenges of

I Guantanamo litigation and necessitated additional time 24

2. The district court's denial ofa continuance was arbitrary I and capricious , ; 29

I 3. The district court's refusal to allow needed time undermined

I the attorney-client relationship and deprived Mr. al-Alwi of a meaningful opportunity to challenge his imprisonment 36

I SECRE:IYH'(OFO~(

I1


. ',"



I SFJCRE'FlfNOFORN

I B. The District Court Abused its Discretion by Rejecting Petitioner's Discovery Requests 38

I C. Remand Is Required To Detennine Whether the Government Produced Relevant Exculpatory Evidence 44

I I

II. THE DISTRICT COURT ERRED IN ITS SELECTION AND APPLICATION OF A DETENTION STANDARD 46

A. The Government Later Disavowed as Overbroad the Detention

I Standard Utilized by the District Court 46

B. No Evidence Suggested that Omar SayefGroup was Engaged I in Hostilities Against the United States at the Time of the Hearing 48

I I

III.THE DISTRICT COURT ERRED BY FAILING TO REQUIRE THE GOVERNMENT TO CORROBORATE STATEMENTS ATTRIBUTED TO MR. AL-ALWI.. 51

I A. Corroboration of Mr. al-Alwi 's Statements is Required 51

I B. The District Court Erroneously Found Statements Attributed To Petitioner were Reliable 54

I C. Petitioner's Statements were Insufficiently Corroborated 58

I 1. Guesthouse stays 58

2. Less than a day's training at the Khalid Center 60

I 3. Supporting Taliban forces on two fronts 61

I 4. Actions after September 11 62 ~ .. 'J.

I CONCLUSION 65 .. ~'.'

I I

SECRIJ'I))'NOIi'OftN

I 11




I I STATUTORY ADDENDUM

I Authorization for Use ofMilitary Force, Pub. L. No. 107-40 (Sep. 18,2001), codified at 50 U.S.c. § 1541 note

CERTIFICATE OF COMPLIANCE I

CERTIFICATE OF SERVICE

I I I I I I I I I I I I I I SECREl)~OFORN

III




I SECRE'l'HNOFORN

I TABLE OF AUTHORITIES

I Cases: l

Abdah v. Obama, 2010 W.L. 1626073 (D.D.C. Apr. 18,2010) 5,10I I

Abdah v. Obama, 2010 W.L. 1798989 (D.D.C. Apr. 18,2010) 39

Anam v. Obama, 696 F. Supp. 2d 1 (D.D.C. 2010) 55

I Al-Adahi v. Obama, 698 F. Supp. 2d 48, 55-56 54

I

I A/-Ansi v. Obama, 647 F. Supp. 2d 1 (D.D.C. 2009), reconsideration granted in part, 671 F. Supp. 2d 139 (D.D.C 2009) 39

I A/-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010) 47,48

Al-Darbi v. Obama, 680 F. Supp. 2d 7 (D.D.C. 2009) 39, 42

A/-Ginco v. Obama, 626 F. Supp. 2d 123 (D.D.C. 2009) 50

I AI-Harbi v. Obama, 2010 WL 2398883 (D.D.C. May 13,2010) 42, 54, 64

I AI-Odah v. United States, 648 F. Supp. 2d 1 (D.D.C. 2009), aff'd, 2010 WL 2679752 (D.C. Cir. June 30, 2010) 54

I Anderson v. Bessemer City, 470 U.S. 564 (1985)

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

I Barker v. Wingo, 407 U.S. 514 (1972)

I Basardh v. Obama, 612 F. Supp. 2d 30 (D.D.C. 2009)

*Bensayah v. Obama, No. 08-5537

I (D.C. Cir. June 28, 2010)

I I Cases principally relied on are identified by asterisk.

I SECRE"fHNOFORN IV

I UNCLASSIFIEOIIFOR PUBLIC RELEASE

22

21, 49

36

50

21-23, 44,54,57,59 .'



I Sf:JCRE'f'h'NOFORN

I I Bin Attash v. Obama, 628 F. Supp. 2d 24 (D.D.C. 2009)

Bloate v. United States, 130 S. Ct. 1345 (2010)

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

I I

Cooper v. Oklahoma, 517 U.S. 348 (1996)

*Hamdi v. Rumsfeld, 542 U.S. 507 (2004)

I In re Territo, 156 F.2d 142 (9th Cir. 1946)

I In re RA.B., 399 A.2d 81 (D.C. Ct. App. 1979)

Johnson v. Zerbst, 304 U.S. 458 (1938

I Khalifh v. Obama, 2010 WL 2382925 (D.D.C. 2010)

I Lassiter v. Dep't ofSocial Services, 452 U.S. 18 (1981 )

I Maryland v. Shatzer, 130 S. Ct. 1213 (2010)

42

31

13, 19,21-24,34,36

32

23,50

50

64

36

53

23

36

I

Mohamed v. Jeppesen Dataplan, Inc., 579 F.3d 943 (9th Cir. 2009), I review en banc granted, 586 F.3d 1108 (9th Cir. 2009) 48

I Moore v. Hartman, 571 F.3d 62 (D.C. Cir. 2009) 48

Opper v. United States, 348 U.S. 84 (1954) 53

Paracha v. Obama, 2009W.L. 2751788 (D.D.C. 2009) 39

I *Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008) 49,55,57,59,62

I Rabbani v. Obama, 656 F. Supp. 2d 45 (D.D.C. 2009) 39

I Rasul v. Bush, 542 U.S. 466 (2004) 11

I Rumi v. Bush, 06-CV-0619-RJL (D.D.C. Dec. 17,2008) 35

SalaM v. United States, 2010 WL 1443543 (D.D.C. 2010) 28

I SECRElYlNOFORN

I v




I

I I Shargowi LNUv. Obama, 656 F. Supp. 2d 187 (D.D.C. 2009) 39

Smith v. United States, 348 U.S. 147 (1954) 52-53

Smith-Haynie v. Dist. ofColumbia, 155 FJd 575 (D.C. Cir. 1998) 46

I Sulayman v. Obama, 05-CV-2386 (RBW) (D.D.C. July 20,2010) 26

I Ungar v. Sarafite, 376 U.S. 575 (1964) 36

I United States v. Abu Ali, 528 FJd 210 (4th Cir. 2008) 53, 55

I United States v. Bryce, 208 F.3d 346 (2d Cir. 2000) 64

United States v. Calderon, 348 U.S. 160 (1954) 53

I United States v. Dickerson, 163 F.3d 639 (D.C. Cir. 1999) 52

I United States v. Ewell, 383 U.S. 116 (1966) 36

I United States v. Fearn, 589 F.2d 1316 (7th Cir. 1978) 64

I

United States v. Flynt, 756 F.2d 1352 (9th Cir. 1985), amended,I 764 F.2d 675 (9 th Cir. 1985) 33

I United States v. Garner, 507 F.3d 399 (6th Cir. 2007) 33

United States v. Poston, 902 F.2d 90 (D.C. Cir. 1990) 30

United States v. Saro, 252 F.3d 449 (D.C. Cir. 2001) 46

I United States v. Stephens, 482 F.3d 669 (4th Cir. 2007) 62, 64

I Wong Sun v. United States, 371 U.S. 471 (1963) 52

I Zedner v. United States, 547 U.S. 489 (2006) 31

I Zuhair v. Obama, 08-CV-864 (D.D.C. Mar. 13,2009) 47

I SECRE'f';'fNOPORN VI




I SECRE'FIRiOFORN

I Statutes and Rules:

I 18 U.S.C. § 3161 31

28 U.S.C. § 1291 1

I 28 U.S.C. § 2241 1

I 28 U.S.C. § 2253 1

I Authorization for the Use of Military Force (AUMF) Pub. 1. No. 107-402(a), 115 Stat. 224 (Sep. 18,2001) 21

I Detainee Treatment Act of 2005 Pub. 1. No. 109-148, 119 Stat. 2742 13,22

I Other Authorities:

I Amnesty International, Cruel and Inhuman: Conditions ofisolation for detainees at Guantlmamo Bay (2007), available at http://www.

I anmestyusa.org/document.php?id=ENGAMR510512007&lang=e........ 25-26

P. Cockburn, The Warlords Casting a Shadow Over Afghanistan, I THE INDEPENDENT (May 11, 2009) 51

I Stephen ColI, GHOST WARS (2004) : 51

I M. Davis, Historical Perspective on Guantanamo Bay, 2009 CASE W. REs. J. INT'L LAW at 1 26

I Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug., 12, 1949, art. 118 50

I Tim Golden, The Battlefor Guantanamo, NEW YORK TIMES (Sept. 17, 2006) ..... 26

I Joint Task Force Guantanamo, Camp Delta Standard

I Operating Procedures (Mar. 28,2003), available at http://www.dod.gov/pubs/foi/detainees/index.html 25

I SECRE'F/",OPO~ Vll

I UNCLASSIFIEOIIFOR PUBLIC RELEASE



I SECRE'F/fNOFORfi

I Carol D. Leonnig & Dana Priest, Detainees Accuse Female Interrogators; Pentagon Inquiry is Said to Confirm Muslims' Accounts

I of Sexual Tactics at Guantanamo, WASH. POST, Feb. 10, 2005 25

Jane Mayer, The Experiment, THE NEW YORKER (July 11 & 18,2005) 25I I

Omar Razek, Regret and Resentment at Guantanamo, BBC NEWS (Oct. 18, 2006), available http://news.bbc.co.uk/2/hi/americas/6057262.stm 43

I I I I I I I I I I I I I SECRE'fYINOFORN

viii




I SECRETNNOPORN

I GLOSSARY

I ARB - Administrative Review Board

AUMF - Authorization for the Use of Military Force I

CMO - Case Management Order

I CSRT - Combatant Status Review Tribunal

I OSG - Oroar Sayef Group

I RPG - Rocket-Propelled Grenade

I I • v·

I I I I I I I I I I UNCLASSIFIEDIIFOR PUBLIC RELEASE



I SECRETHNOFORN

I JURISDICTIONAL STATEMENT

I The district court had jurisdiction of this matter pursuant to 28 U.S.C.

§ 2241. The district court issued a final order and judgment dated January 9,

I I

2009. Petitioner filed a motion for reconsideration on January 27, 2009,

which the district court denied on February 20, 2009. Petitioner filed a

I notice of appeal on April 10,2009. This Court has jurisdiction pursuant to

I 28 U.S.C. §§ 1291 and 2253(a).

STATEMENT OF THE ISSUES

I 1. Whether the district court abused its discretion by denying

I Petitioner's unopposed request for an extension of time to prepare his case,

I where counsel's access to Petitioner was severely impeded by the court's

I prior orders, which compounded the difficulties inherent in Guantanamo

representation.

I 2. Whether the district court abused its discretion by denying Mr. al

I Alwi's requests for discovery.

I ..'

I

3. Whether remand is required to determine if the government

produced all relevant exculpatory evidence.

4. Whether the district court erred in utilizing a detention standard that .,";

I the government has since disavowed as too broad.

I I

'. ..

SF3C~Th':P',OFORN




I SECRE'l'iINOFORN

I I 5. Whether the government has authority to detain an individual who

was supporting forces "associated" with the Taliban or al-Qaida if the

associated force was not demonstrably engaged in hostilities at the time of

I the hearing.

I 6. Whether the district court erred by concluding that Petitioner was

I detainable based solely on uncorroborated statements by Petitioner.

I 7. Whether the district court erred by concluding that Petitioner

"supported" Taliban or al-Qaida forces.

I STATEMENT OF FACTS

I Difficulties in Generating a Factual Record

I Moath Harnza Ahmed al-Alwi's eight years of incarceration at

Guantanamo have been arduous. He was abused during interrogations, I threatened with rape and extraordinary rendition, beaten, and sexually

I

I

humiliated. III.JA.1446-57. On several occasions, Mr. al-Alwi went on

I hunger strike in protest. IIJA.802-03.

As a result, Mr. al-Alwi never trusted Americans who came to meet

him, whether interrogators or lawyers. LJA.335-36. He did not select his I original counsel; rather, his cousin, acting as his next friend, secured

I Clifford Chance to file a habeas petition. Id. Mr. al-Alwi met with his

I lawyers only five times before his case went to a hearing. See IILJA.1229

I SECRE'F/INOFORN

I 2 UNCLASSIFIEOIIFOR PUBLIC RELEASE



I SECRBThc.NOFORN

I I 30. Mr. al-Alwi speaks only Arabic, ILJA.802, and communications were

impeded by the need to use an interpreter. Id. Three of the meetings were

for only two hours each, IILJA.1230, and a fourth ended abruptly after Mr.

I al-Alwi, in the eighth day of a hunger strike, lost consciousness. IIJA.803

I 804.

I I As set forth below, Mr. al-Alwi's prior counsel informed the district

court of their difficulties in meeting with Mr. al-Alwi and sought more time

to prepare. The government consented to the motion, but the district court

I denied it anyway. Having no alternative, his lawyers were forced to accept

I

I the record as it stood.

I Thus, the proceedings below centered almost exclusively on

government-selected interrogation reports. These reports were vague,

cryptic, and often contradictory. The government itself had great difficulty

I reconciling them into a coherent theory. The court ultimately declined to

I rely on the government's principal allegations, but concluded that Mr. al

I Alwi was detainable based on secondary arguments. The district court

I pointedly noted that Mr. al-Alwi had not "offer[ed] an alternative narrative."

IILJA.1795.

I After the hearing, Mr. al-Alwi discharged his counsel and engaged

I undersigned counsel. His lead appellate counsel (Mr. Kassem) has

I SECRE'fHNOFORN

I 3 UNCLASSIFIEDIIFOR PUBLIC RELEASE



I SECRETI/NO:FORN

I I represented a number of Guantanamo detainees and speaks Arabic. New

counsel has also had more time with Petitioner. Perhaps for these reasons,

Mr. al-Alwi has begun to furnish the "alternative narrative" that the court I . ~: .

. ..':found absent in the proceedings below. For the first time, Mr. al-Alwi has

I signed a declaration and put counsel in contact with his family. Because this

I I narrative is not part of the record, Petitioner has not included it here. '.

However, this Court should be aware that a remand for a new hearing would

result in a very different record. I

I Facts Presented at the Hearing and Relied on by the District Court

I

I According to the record, Mr. al-Alwi was born in 1978. He is a

I Yemeni citizen but was raised in Saudi Arabia. He attended high school but

it is not clear whether he graduated. He appears to have been a devout

Muslim who studied and taught at mosques following high school.

I II.JA.478.

I In 2000 or early 2001, Mr. al-Alwi decided to travel to Afghanistan to

I I teach the Quran and live in a society that appeared from afar to honor the

ideals of Islam. IIJA.570. He traveled from Saudi Arabia to Yemen to

I 1 Petitioner has filed a motion to supplement the record on appeal with a sworn declaration from Mr. al-Alwi and a corresponding declaration from

I undersigned counsel. These declarations show that Petitioner was prejudiced by the district court's procedural orders.

I SECRE'fWNOFORN




I SECRE'FHNOFORN

I I obtain the necessary visa. Id. From Yemen he flew to Karachi, Pakistan,

and then traveled by land, first to Quetta, Pakistan, and then to Kandahar,

Afghanistan. IIJA.486-87.2

I I

The government alleged, based on raw intelligence reports, that Mr.

al-Alwi stayed in Taliban "and/or" al-Qaida guesthouses in Quetta and

I Kandahar. IIJA.381-84. The district court relied especially on the

I allegation that Mr. al-Alwi stayed in a guesthouse known as al-Ansar.

IILJA.1797. The government

I I

admitted, however, that '" AI-Ansar' was a name assigned to multiple

guesthouses," IIJA.382, and the evidence that the guesthouse in question

I was affiliated with al-Qaida was exceedingly thin. ILJA.448.

I Mr. al-Alwi subsequently traveled to Kabul. IIJA.487. The

government claimed that Mr. al-Alwi obtained "several hours training (short

I of a full day) in the operation and firing of an RPG" at a Kabul-area training

I 2 Among the implausible theories the government presented, one was

that Mr. al-Alwi first traveled to Afghanistan "in late 1997 or early 1998." I IIJA.381. The government relied for that allegation on another Guantanamo detainee, Sharqawi Abdu Ali aI-Hajj. No other evidence suggested that Mr.

I a1-A1wi was in Afghanistan prior to 2000, and the government seemed to abandon the allegation--effectively concluding that aI-Hajj was mistaken. Id. at n.!. But the government continued to rely on a1-Hajj's statement, I uttered in virtually the same breath, that Mr. al-Alwi was "sometimes with bin Laden's guards." IIJA.39l, 655. At least one judge would not rely on a

I similar statement after seeing evidence that aI-Hajj had been tortured. Abdah v. Obama, 2010 WL 1626073, at *3-5 (D.D.C. 2010).

I SECRE'lY/NOFORN




I SECR-ET;(;'~,OFORN

I I camp known as "Khalid Center." [d. The government also alleged that Mr.

al-Alwi was issued a Kalishnikov rifle and ammunition while at Khalid

Center. [d. Mr. al-Alwi denied ever attending Khalid Center. IIIJA.1445. I

The government contended that Mr. al-Alwi thereafter was assigned

I

I

in some vague capacity to an armed force known as Omar Sayef Group

I (OSG), which was allegedly connected to the Taliban. ILJA.572. At the

time, the Taliban were fighting the Northern Alliance, not the United States,

and OSG was not the Taliban. IIIJA.180 1. The government claimed Mr.

I I

al-Alwi went to a "middle line position" and spent his time "gathering

firewood, cooking, and praying." II.JA.487. No evidence was presented

I that Mr. al-Alwi fired a weapon at anyone during this period. Instead, the

I government cited a terse statement in one intelligence report that Mr. al

Alwi was "subjected to several artillery attacks" and "saw other fighters

I die." I1JA.488. The report did not state that Mr. al-Alwi was involved in a

I firefight.

I At some unknown point Mr. al-Alwi traveled to a village called

I Khwaja Ghar in northern Afghanistan. IILJA.1730, II.JA.488. The

evidence of what Mr. al-Alwi was supposedly doing in the north was unclear

I and conflicting. Mr. al-Alwi said he spent most of his time swimming.

I IIJA.573. The government claimed that Mr. al-Alwi engaged in a skirmish

I St:JCRt!/W,lNOFORN

I 6 UNCLASSIFIEDIlFOR PUBLIC RELEASE



I

I SECRE'F/fNOFORN

I of sorts, although its evidence was minimal to say the least. The government

and the district court relied on a stray line in an interrogation report stating

that Mr. al-Alwi "exchanged fire across a river with the Tajiks."I

" ;

I IILJA.1800, II.JA.574. Tajikistan is immediately north of the Khwaja Ghar

area of Afghanistan, ILJA.787, but the government never offered any

I evidence about whether OSG, the Taliban, or any other Afghan group was

I fighting Tajikistan in sununer/fa1l2001.

Petitioner was in northern Afghanistan on September 11, 2001.

I I

IILJA.1445. The U.S. bombing operation began on October 7. The

government relied heavily on an interrogation report that "most of the people

I [Mr. al-Alwi] served with were killed by U.S. bombs and he recalled

I actually seeing two or three bombing operations before fleeing the [Khwaja

Ghar] area." ILJA.488. The government interpreted this to mean that Mr.

I aI-AIwi was engaged in combat against the United States, but the district

I court found "there is no evidence of petitioner actually using arms against

I U.S. or coalition forcys." LJA.359. Another interrogation report stated

I simply that "[d]etainee believes American planes killed his friends while

they were in the north, but not while on duty at the line." IIJA.572.

I The government conceded that Mr. al-Alwi left the north after seeing

I a U.S. bombing operation. I1.JA.389. But the government argued, and the

I SHCRE'f'IR',OFORN




I SECRETNNOFORi"l

I district court ultimately concluded, that Mr. al-Alwi remained with his

I "unit," whatever it was, "for a period of time" after the bombing operations.

IILJA.1802. He allegedly stopped at Khowst, Afghanistan and then made I I

his way to Pakistan. IIJA.488. The parties disputed the circumstances of

Mr. al-Alwi's arrival and capture in Pakistan, and the court did not resolve

I the dispute.

I Facts Presented at the Hearing but not Relied on by the District Court

The government also presented more inflammatory contentions that

I I

appeared to follow a contradictory timeline. The district court did not rely

on these theories. This alternative timeline had Mr. al-Alwi attending an al

I Qaida training camp known as al-Farouq, apparently in April 2001. Some

I time after al-Farouq, Mr. al-Alwi allegedly "served as a bodyguard for

Usama bin Laden." ILJA.389-91. He supposedly followed bin Laden to

I Tora Bora in late 2001, and left Tora Bora for Pakistan with a group of 30

I bin Laden bodyguards toward the end of2001. II.JA.391-92. This group of

I 30 reportedly turned themselves over to Pakistani authorities III

I December 2001. IIJA.393.

I Mr. al-Alwi

I consistently denied these allegations. E.g., IIJA.480, 488; IILJA.1446.

I SECRE~fNOFORN




I SECRE~/;'NOPOI@l

I I Most of this alternative theory either emanated from or relied

exclusively on interrogations of Yasim Basardah, a notorious detainee who

made false allegations against many Guantanamo detainee·I

I.JA.37 (dkt.

I

I

123). Nevertheless, the government relied on Basardah exclusively for its

I allegation that Mr. al-Alwi attended al-Farouq. ILJA.385. Basardah

supposedly recognized a photo of Mr. al-Alwi as "Arsalan" and claimed that

they stayed together at a guesthouse before attending al-Farouq. II.JA.512.I I

Basardah also claimed that he saw "Arsalan" in Tora Bora after 9111 and

that Arsalan was fighting for Ibn Sheik al-Libi. Basardah then stated that he

I "personally saw [Mr. al-Alwi] with [bin Laden] approximately one month

I before Ramadan in the Ktal region." Id.

The government did not offer a timeline explaining how Mr. aI-AIwi

I could have attended al-Farouq in April 2001, when Basardah was there, and

I still been at other places far from the camp. II.JA.5ll, 515. Mr. al-Alwi

I flatly denied attending al-Farouq. IILJA.1445. Nor did the government

I explain how someone assigned to the "middle lines," who spent his time

cooking, praying, and collecting firewood, also managed to serve as a

I bodyguard for Usama bin Laden. The government emphasized that bin

I Laden's bodyguards ''were chosen based upon their discipline and

I S£CRBTfINOPORN




I SECImTlfNOFORN

I willingness to obey orders" and "underwent rigorous training," II.JA.389,

I ..."

but no evidence placed Mr. al-Alwi (who is about 5'4" and 125 pounds) in

either category. One of the government's sources for the bodyguardI

allegation, Uthman Abdul Uthman, was later determined not to be a bin

I

I

Laden bodyguard in his own habeas case. Abdah v. Obama, 2010 WL

I 1626073, at *6-7 (D.D.C. 2010).

The government's other sources for these theories were equally

unreliable. A tortured detainee, Ahmed Rabbani, allegedly recognized a

I I

photograph of "Arsalan." Rabbani initially claimed he knew Arsalan "from

his time at Khalden training camp and in Kandahar." ILJA.567. Rabbani . " .

I I claimed he saw Arsalan "pulling security duty" at a gate to a bin Laden

compound at Kandahar airport. Id. No other evidence linked Mr. al-Alwi to

the Khalden training camp, or the Kandahar airport, or the bin Laden

I compound.3 Rabbani, morever, was brutally tortured in Pakistan and

I Afghanistan around the same time he supposedly implicated Mr. al-Alwi.

I ILIA. 1050.

I I 3 The government admitted that Khalden "was not an al-Qaida

facility." ILJA.458. It closed in 2000. ILJA.459.

I I

SECRETH~,OFORN




I

I SECRH'f'J;lf,OFORf,

I Both parties agreed that Mr. al-Alwi was seized in Pakistan, but they

did not agree on the most basic circumstances of his arrest. The government

in mid-December with 30 ~.

I claimed that Mr. al-Alwi was seize

I ~hO allegedly traveled together from Tara Bora. IIJA.393,

I 758. Mr. al-Alwi said that he was actually arrested in Peshawar, Pakistan, in

I I

The government never offered a Pakistani police or

"bodyguards"

was with only a guide at the time. IILJA.1446.

mid-November and that he

I military arrest report that might have settled the issue.

I Procedure in the District Court

I Prior to Rasul v. Bush, 542 U.S. 466 (2004), Guantimamo detainees

had no access to United States courts and virtually no ability to engage I I

counsel. After Rasul, detainees still had little ability to communicate with

counsel, so family members typically served as next friends. Mr. al-Alwi's

I cousin engaged the Clifford Chance finn, I.JA.78-79, and on November 15,

I 2005, Clifford Chance attorneys filed a habeas petition on behalf of Mr. al

Alwi and five other Guantanamo pnsoners. I.JAAO. Counsel had not

I communicated with Mr. al-Alwi at that point, and they had minimal

I information about him. LJA.44. Mr. al-Alwi did not participate in his

I StJCRE'f'h'NOFORN




I SECRE't'ffNOFORN

I Combatant Status Review Tribunal (CSRT) hearing held at Guantanamo,

I .....

III.JA.1 069, so even after public release in 2006 of redacted CSRT

transcripts, little information was available about him.I The government promptly moved to stay the Petition pending

I

I

jurisdictional appeals in other cases. IJA.87. The government represented

I that it did not intend "to block counsel access to properly represented

petitioners" and did "not object to entry of the protective orders previously

entered in other Guantanamo detainee cases ... to permit such access." I

I.JA.90; I.JA.I04.

I

I

Mr. al-Alwi opposed in part the motion and requested entry of a

I protective order that would permit counsel to travel to Guantanamo and to

review classified evidence. I.JA.III. Petitioner also urged the Court to

order the government to file a factual return, so counsel could investigate the I I

allegations and have a meaningful dialogue with their client during any stay.

IJA.I07-109. In a minute order dated April 24, 2006, the district court

I granted the motion to stay, I.JA.16-17, but it did not enter a protective order

I or require a factual return, unlike most other Guantanamo cases. E.g.,

I.lA.IIO & n.l.

I The stay remained in place from 2006 through the middle of 2008 as

I all three branches of government considered the rights of detainees to

I SHCRE't'f1'NOFORN




I SECRE'fHNOFOR!'i

I petition for habeas relief. Finally, on June 12,2008, the Supreme Court held

I in Boumediene v. Bush, 128 S.Ct. 2229 (2008), that Guantanamo detainees

had a constitutional right to habeas relief. I

On July 2, 2008, the district court, "having decided not to transfer" its

I Guantanamo cases to Judge Hogan for consolidation on procedural issues,

I ordered the parties to submit status reports. I.JA.124. On July 16, Mr. al-

I Alwi's counsel moved again for entry of the protective order, and this time

the district court granted the motion.4 I.JA.126, 120. On July 31, 2008, the I

district court lifted the stay and scheduled briefing of procedural issues.

I I.JA.142. The parties filed extensive briefs on issues of first impression,

I 4 A protective order was entered on September 6, 2007 in a separate

I action filed pursuant to the Detainee Treatment Act (DTA) for Mr. al-Alwi and others. IIIJA.1229. Even with the DTA protective order in place, previous counsel had no allegations to discuss with Mr. al-Alwi.I III.JA.1229-l230. The government refused to provide the classified CSRT record (containing respondents' purported justification for detention at the

I time) because Mr. al-Alwi had not directly authorized Clifford Chance to represent him. Id.

I Former counsel traveled to Guantanamo at the earliest practical opportunity after receiving security clearance, and met Mr. al-Alwi for the

I first time on May 19,2008. I1I.JA.1230. They met for just two hours. Id.

I

A second visit during the week of August 11, 2008, also lasted two hours. Id. After the meeting, Clifford Chance was able to provide evidence ofI authorization from Mr. al-Alwi, but it was laced with mistrust. Mr. al-Alwi refused to sign any authorization and insisted that he retain the right to withdraw his consent. I.JA.335. Former counsel still did not have Mr. alAlwi's CSRT to review with him. IIIJA.1230.

I I

SECItE'fh'NOPORN 13




I St3CREJWNOFORN

I such as the detention standard, discovery, and admissible evidence. I.JA.22

I 23. The court also ordered the government to file its factual return by

September 23,2008. I.JA.143. I I

On September 23, however, the court granted the government a 30

day extension to file the return, I.JA.330, over Mr. al-Alwi's objection.

I I.JA,32l-28. By then, the court had already made clear to all parties that it

I intended to finish its Guantanamo cases before January 2009-the change in

administration. I.JA.125P ("It seems to me that these decisions have to be

I I

made before we fall into the black hole of a transition and the Department of

Justice doesn't have at its senior ranks confirmed appointees in a position to

I make decisions."); I.JA.152 ("[T]he Court remains committed to conducting

I these hearings, all 24 of them, between now and Cluistmas."); III.JA.1792

(same).

I The government's return was finally provided to counsel on October

I 22,2008. I.JA.338. It consisted of a ''Narrative'' and several hundred pages

I of documents, mostly classified intelligence reports. II.JA,370-791. An

I unclassified (and heavily redacted) version of the return---one that could be

shared with Mr. al-Alwi-was not made available until November 5, 2008,

I I.JA.29, and a corrected version (including omitted exhibits) was filed on

I November 13, 2008. II.JA.752.

I St3CRi3'ft'J'f',OFOftP,




I

I I Despite these delays, on October 31, 2008, the court ordered that all

discovery be completed by December 1, 2008, LJA.342, 340, and that Mr.

al-Alwi file his traverse on December 4, 2008, LJA.343, only six weeks after I

the government first provided counsel with the return and exactly three

I

I

weeks after counsel received a complete version that they could discuss with

I Mr. al-Alwi. The court scheduled the hearing to begin 12 days after the

traverse was due, on December 16,2008. LJA.340.

Counsel had arranged to travel to Guantanamo during the week ofI I

October 6, 2008, thinking that the government would meet the court's initial

deadline of September 23 for filing the return. ILJA.800. However, no

I return was filed until two weeks after that visit, so counsel focused their visit

I on other clients. IIJA.801.

Counsel scheduled another client visit for November 14-15, 2008. I

ILJA.80 1-02. Counsel intended to discuss for the first time the allegations in

I the factual return, and to identify additional evidence to be gathered, whether

I through discovery or other methods. ILJA.802. Because legal mail to

I Guantanamo takes weeks to translate and deliver, counsel would not have

had an opportunity prior to that visit to inform Mr. al-Alwi of the court's

I October 31 scheduling order.

I I

SECRET/fNOFORN




I SECRE'f'lfNOFORti

I I On November 14,2008, two attorneys and an interpreter met with Mr.

al-Alwi for approximately six hours. Id. Mr. al-Alwi stated he was on

hunger strike to protest conditions at Guantanamo, and that he had not I consumed food or drink during the seven preceding days. Id. Mr. al-Alwi

I

I

was unable to focus and ill through much of the day. ILJA.803. When

I counsel arrived the next morning, Mr. al-Alwi was slumped over the table.

Id. at ~ 12. He reported a severe headache after falling and hitting his head

the night before. His limbs were swollen and his hands and feet numb, and I I

he had difficulty breathing. Id. He was soon removed on a stretcher.

II.JA.804. Counsel were not permitted to meet with him the remainder of

I the day, and they had to leave the base the next morning. Id.

I On November 20, 2008, promptly after returning from Guantanamo,

Mr. al-Alwi filed a motion for an additional 30 days to complete discovery

I

I

I and file a traverse. II.JA.792. Petitioner's counsel laid out the difficulty

they had meeting with Mr. al-Alwi the prior week, and discussing the

I allegations against him under the court's compressed schedule. IIJA.791

94.

The government did not oppose Petitioner's motion to extend the

I existing deadlines. Nevertheless, the court denied the motion in a minute

I I

SE3CRt3'f'/INOFORN




I

I SECRE'¥//NOItORN

I order entered four days later. LJA.30. During a subsequent hearing on

discovery issues conducted on December 1, 2008, the court explained that:

Mr. al-Alwi is the author of his own delay in this

I I case. He is the one who chose to go on a hunger

strike. No one else. No one else. He is the one who chose to engage in a protest action in

I

Guantanamo. No one else. If you weren't able to meet with him because he chose to put himself in a

I position where he couldn't effectively meet with you, that was his choice; and the Court is not going to prejudice the schedule that affects, reverberates on other detainees to delaying this case.

I I IIJA.846.

Although the court stated it would consider an amendment to the

traverse, it warned Petitioner's counsel not to use any amendment to "launchI I

into a whole new line of defense," because then the government would not

have enough time to prepare. IIJA.843. As counsel tried to point out,

I however, Petitioner could not launch into a new line of defense because he

I still had not seen most of the allegations against him. IIJA.843-44.

The district court denied virtually all of Petitioner's discovery

I requests. See, infra, Argument Section LB. The court held that the requests

I were not narrowly tailored or sufficiently justified by evidence. The court

I disregarded counsel's argument that their attempt to obtain the necessary

I evidence had been hampered by their near-total inability to discuss the

government's evidence with Petitioner. IIJA.850.

I SFJCR+J'f'HNOPORN




I

I I The court held a merits hearing for a full day on December 16 and a

half day on December 17. No witness testified live. Mr. ai-AIwi was

pennitted to listen to a brief portion of the opening argument conducted on I the public record. IILJA.1450. The court then went into closed session, and

I

I

the parties essentially summarized the materials set forth in the return and

I traverse and offered related inferential arguments.

On December 30, 2008, the court issued an unclassified Memorandum

Opinion and Order denying the Petition. IJA.352. On January 9, 2009, the I

court released a classified Memorandum Opinion further detailing its

I

I

decision. The court concluded that Mr. al-Alwi met the standard for

I detention because he stayed at "at least three guesthouses closely associated

with the Taliban and/or al Qaeda," IILJA.1797; received military training,

joined OSO, and supported the Taliban through that group, IIIJA.1799; and I

"saw two or three u.s. bombing operations" in Afghanistan and did not

I immediately disengage from his "unit" thereafter. IILJA.1802. The court

I did not examine the government's contentions that Mr. al-Alwi was a bin

I Laden bodyguard, attended the al-Farouq training camp,

ILJA.1803.

I I I

SECRE'FHNOFOltPi




I Sfi:€RE'f'n'NOFORN

I SUMMARY OF ARGUMENT

I After years of abuse and detention at the U.S. military prison in

Guantanamo Bay, Cuba, Moath al-Alwi still has not received a meaningful I

opportunity to challenge the legality of his imprisonment, a constitutional

I right recognized by the Supreme Court in Boumediene v. Bush, 128 S.Ct.

I 2229 (2008). Instead, the district court stayed his petition for a writ of

I habeas corpus for three years without giving him access to counselor

evidence, and then rushed through his case after Boumediene in order toI I

meet an arbitrary deadline of its own making. Petitioner was one of the last

original Guantanamo prisoners to see the government's evidence against

I him, but one of the first to go through a merits. hearing.

I The court's compressed schedule compounded the considerable

difficulties that characterize the representation of Guantanamo prisoners. By

I giving former counsel-who for years were denied access to their c1ient

I only three weeks to review with Petitioner a small fraction of the

I government's case, the court made it impossible for counsel to earn

I Petitioner's trust and work with him to develop a defense. Counsel in other

cases, by contrast, had access to their clients and to the government's

I evidence for years prior to a hearing. Moreover, Petitioner was on a

I peaceful hunger strike when his counsel arrived to prepare for the hearing.

I Sfi:€R£'f'/fNOFORN



UNCLASSIFIEDIfFOR PUBLIC RELEASE

I SECREIWNOFORN

I I The meeting had to be aborted when Petitioner fell unconscious and was

removed from the interview room on a stretcher. The court, without taking

any evidence or argument, denied an unopposed motion for an extension, on I

the ground that Petitioner was "the author of his own delay."

I

I

The court also denied virtually all of Petitioner's requests for critical

I discovery and exculpatory evidence-information that many district judges

ordered the government to prod\lce to other detainees as of right. As a

result, Petitioner's counsel had no practical ability to rebut the government's

I case. The court's case management decisions, whether taken together or

I separately, effectively deprived petitioner of a meaningful opportunity to

I challenge his imprisonment.

I After a day-and-a-half-long hearing focused principally on the

government's hearsay intelligence reports, the court denied the petition.

I That ruling errs in its reliance on a detention authority standard that has

I since been abandoned by the government as overinc1usive. Moreover, the

I court misapplied its standard, omitting a necessary finding that the

I "associated force" Petitioner had purportedly supported was engaged III

hostilities against the United States or its allies at the time of the hearing.

I I I

SECR£'f'HNOFORN




I SECftE~fNOt'ORN

I I In reaching its conclusion, the court rested primarily on facially

umeliable and uncorroborated statements attributed to Petitioner. Both

corroboration and judicial verification of reliability were required. I In sum, the district court erred in its procedural decisions, on the legal

I standard it chose as well as its application, and in its consideration of the

I evidence in this case. To Moath al-Alwi, the promise of Boumediene has

I remained largely illusory. This Court should vacate the judgment and

remand for a new hearing. I

STANDARD OF REVIEW

I

I

This Court reviews the district court's findings of fact for clear error,

I and its evidentiary rulings for abuse of discretion. Barhoumi v. Obama, 609

F.3d 416, 423 (D.C. CiT. 2010). Conclusions of law, including ultimate

denial of the writ, are reviewed de novo. Bensayah v. Obama, No. 08-5537, I I

slip. op. at 7 (D.C. CiT. June 28, 2010). Whether a prisoner's conduct

justifies detention under the Authorization for the Use of Military Force

I (AUMF), 115 Stat. 224 (2001), is a legal question.5 Whether the

I government has proven that conduct is a factual question that the Court

reviews for clear error. ld. at 12-13. Clear error means whether "on the

I I 5 A copy of the AUMF is contained in an addendum bound together

with this brief.

I SECRE'iYfNOt'Oft:N




I

I SECRR'f'HNOFORN

I entire evidence," the Court is "left with the definite and finn conviction that

a mistake has been committed." Id. at 13 (quoting Anderson v. Bessemer

City, 470 U.S. 564, 573 (1985)) (citations omitted). I

ARGUMENT

I I. THE DISTRICT COURT DEPRIVED PETITIONER OF HIS RIGHT TO A MEANINGFUL OPPORTUNITY TO

I I CHALLENGE IDS IMPRISONMENT

In Boumediene v. Bush, 128 S.Ct. 2229 (2008), the Supreme Court

held that Guantanamo prisoners "are entitled to a prompt habeas corpus I I

hearing" and have a constitutional right to a "meaningful opportunity to

demonstrate that [they are] being held pursuant to the erroneous application

I or interpretation of relevant law." 128 S.Ct. at 2266, 2275 (quotations

I omitted). The Court added that "[fJederal habeas petitioners long have had

the means to supplement the record on review [and that] [h]ere that

I opportunity is constitutionally required." 128 S.Ct. at 2270 (citations

I omitted).

I Although the Court did not give "a comprehensive summary of the

I requisites" for a "constitutionally adequate" habeas proceeding, id. at 2266

67, the Boumediene decision found that the procedures enacted by Congress

I in the Detainee Treatment Act of 2005 (DTA), 119 Stat. 2742, were

I I I

SECRETHNOFORN 22




I St3CREl'HNOftORN

I insufficient. [d. at 2240. Habeas requires more.6 As set forth below, under

I all the circumstances of this case, the district court failed to give Mr. al-Alwi

I a meaningful opportunity to challenge his imprisonment and present

evidence. In Bensayah v. Obama, No. 08-5537 (D.C. Cir. June 28, 2010),

I this Court remanded for consideration of "additional corroborative

I evidence" not yet submitted by the government. Slip op. at 17. Mr. al-Alwi

I is entitled to the same opportunity to submit all relevant facts for

I 6 Implicit in Boumediene's "meaningful opportunity" is a right to counsel, notwithstanding the usual rule that habeas petitioners have no right

I to counsel under the Sixth Amendment. But see Lassiter v. Dep't of Social Services, 452 U.S. 18, 31 (1981) (noncriminal defendants may have constitutional right to counsel under Due Process clause). Similarly toI Boumediene, in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), six justices of the Supreme Court held that a U.S. citizen detained as an enemy combatant had

I a right, exercisable through habeas, to a "meaningful opportunity to contest the factual basis for [his] detention before a neutral decisionmaker." Id. at 509 (plurality opinion); id. at 553 (concurring and dissenting opinion ofI Justice Souter, joined by Justice Ginsburg). 111e plurality specifically held that a meaningful opportunity included a right to counsel, id. at 539, and

I Justice Souter agreed. [d. at 553. Although the Boumediene Court did not specifically mention a right to counsel, there is no reason to believe that a "meaningful opportunity" to challenge detention as an enemy combatant I includes a right to counsel for citizens, but not for noncitizens. Indeed, the Boumediene Court's rejection of the DTA procedures, which had included

I "full access to appellate counsel," Boumediene, 128 S.Ct. at 2288-89 (Roberts, C.J., dissenting), bolsters the argument that Guantanamo detainees have a right to counsel in their habeas proceedings. It is difficult to imagine I how an Arabic-speaking detainee with an incomplete high-school education and little access to the outside world could possibly have a meaningful

I opportunity to challenge his detention in federal court in Washington without counsel.

I SECRe"f'h'NOFORN




I SECRE'tWNOFORN

I examination on remand, including, critically, his never-presented alternative

I narrative.

A. The District Court Abused its Discretion by DenyingI Petitioner's Consent Motion for Time to Prepare

I 1. Court-imposed obstacles compounded the challenges of

I

Guantanamo litigation and necessitated additional time.

I Habeas corpus is "an adaptable remedy," Boumediene, 128 S.Ct. at

2267, and the novel challenges of Guantanamo litigation necessitate a

flexible procedure. The singularity of these Guantanamo habeas casesI cannot be overstated. Unlike most habeas proceedings over the past 200

I

I

years, the district court could not review or rely upon a trial record in which

I the facts were aired in an adversarial hearing before a neutral magistrate; the

evidentiary record was developed from scratch. The events at issue occurred

at least seven years prior to the hearing, and half a world away, in countries I I

with few English-speakers.

Mr. al-Alwi was detained for years without access to counsel, family,

I or friends, much less advocates who could gather evidence from

I Afghanistan. He was interrogated extensively by American

officials. American authorities designed their interrogation and detention

I practices to break detainees' psyches and induce in them a learned

I helplessness and an abject dependence on interrogators. Joint Task Force

I SECRE'fHNOFORN

24I UNCLASSIFIEDIIFOR PUBLIC RELEASE



I SHCRE'f'/fNOFORN

I I Guantanamo, Camp Delta Standard Operating Procedures (Mar. 28, 2003)

at §4-20a.7

Petitioner confirms that he was abused and threatened by • I

officials.8 IILJA.I446. He was housed in a nine-by-American

I five foot cell, often kept at a freezing or sweltering temperature, with the

I lights on around the clock, with little reading material, and generally

I permitted to leave only for interrogation and one hour of exercise per week.

Mem. of Points and Authorities in Supp. of Pls.-Pet'rs' Mot. for a Prelim. I '"...~.

Inj. and Provisional Mot. to Modify Stay at 3-6, Al-Odah v. United States,

I 02-CV-828-CKK (Mar. 14, 2005) (dkt. 215). He was held

I virtually incommunicado, permitted to receive only occasional, and often : ....

I heavily-censored, letters from family. Amnesty International, Cruel and

Inhuman: Conditions of isolation for detainees at Guantcmamo Bay (2007).9

I I 7 Available at http://www.dod.gov/pubs/foi/detainees/index.html.

8 Sexual provocation, humiliation, and abuse have been widely

I reported and in many cases confirmed by the military. E.g. Carol D. Leonnig and Dana Priest, Detainees Accuse Female Interrogators; Pentagon Inquiry is Said to Confirm Muslims' Accounts of Sexual Tactics at

'"

I I Guantanamo, WASH. POST, Feb. 10, 2005, at A01; Jane Mayer, The

Experiment, THE NEW YORKER, July 11 & 18, 2005 (detailing how former Guantanamo army intelligence analyst revealed that interrogators systematically used sex to unnerve detainees during interrogation).

I I

SECRE'f'/fNOFORN




I

I I Guards frequently interfered with the practice of religion. Tim Golden, The

Battle for Guantanamo, NEW YORK TIMES (Sept. 17, 2006).

In this environment, the core "evidence" presented at the hearing by

I I

the goven1ment-raw intelligence reports generated at Guantanamo-is

inherently error-prone. The government has consistently emphasized that

I Guantanamo was designed for intelligence-gathering, not criminal

I investigation, see M. Davis, Historical Perspective on Guantanamo Bay,

2009 CASE W. REs. J. INT'L LAW at 1, and the resulting reports are thick with

I speculation, inappropriate commentary, and factual errors. III.JA.1271

I 1278. The interrogation reports are not transcripts, recordings, or even

I contemporaneous notes, and they were subject to gross errors in

I interpretation. 10

I 9 Available at

I http://www.amnestyusa.org/document.php?id=ENGAMR510512007&lang= e.

10 As discussed further below, the district court erroneously denied I discovery requests which would have likely demonstrated the inaccuracy of the reports. Interpretation accuracy is particularly critical where, as here,

I fundamental elements of the government's case turned on a single sentence

I

attributed to Mr. al-Alwi in a five-year-old interrogation report-for instance, attendance at a training camp, the truth of which Mr. al-Alwi I denies. The interpretation problems at Guantanamo have been so great that one judge recently refused to consider any statement purportedly from a prisoner without evidence of the interpreter's qualification. Sulayman v. Obama, 05-CV-2386-RBW, Mem. Gp. at 22 (D.D.C. July 20,2010).

I St3CRl~:r¥h'NOFORN




I

I SECRE'f'ffl',OFOm,

I The realities of Guantanamo make a trusting attorney-client

relationship vital to the proper pursuit of a habeas case yet extremely

difficult to establish. Attorney-client relations were impeded from the outset I

by the detainees' practical inability to select counsel on their own; by the

I

I

government's onerous restrictions on counsel's travel to Guantanamo; by

I limits on the time counsel could spend with clients; by lack of telephonic

access to clients; by over-classification of documents, which often meant

prisoners were not allowed to review their own statements; and by language, I I

cultural, and social barriers between Muslim men separated from their

homes and families and American lawyers who looked and sounded like the

I detainees' captors and interrogators. Visiting Guantanamo to discuss a case

I with a client is unlike visiting any other U.S. prison. Visit requests must be

lodged weeks beforehand; airplane seats are scarce; and security-cleared

I interpreters are scarcer (and even more expensive).

I Over the years, the government erected many other obstacles to the

I development of normal attorney-client relationships. There have been

I numerous reports of interrogators posing as attorneys. Decl. of Clive

Stafford Smith at 18, Nabit v. Bush, 05-CV-1504-RMC (D.D.C. Nov. 18,

I 2005) (dkt. 17-2). Prisoners were often told by guards that they had an

I interrogation session, only to find it was really a legal visit. See, e.g., David

I S:t!CRR~fNOFOR?,




I SEC~~h'NOIi'OftN

I Luban, Lawfare and Legal Ethics in Guantimamo, GEO. L. FAC. WORKING

I PAPERS 12-13, 14 (2008). Some interrogators attempted to denigrate lawyers

I in the eyes of their observant Muslim clients. Id. at 16-17. Meetings with

lawyers were often followed by onerous interrogation sessions where

I

I

officials demanded to lmow exactly what the prisoner had told counsel.

I Smith Decl., supra, at 18-19. Even attending a meeting with counsel often

required a strip search, shackling, blindfolding, and a ride in a prison van.

Detainees were often transported to the site of their meeting with counsel I hours in advance, and left in isolation until the meetings concluded. Id. at

I

I

17-18; see Salahi v. United States, 2010 WL 1443543, at *3 (D.D.C. Apr. 9,

I 2010) ("[H]ow can Guantanamo detainees-locked up for years on a remote

island, cut off from the world, without resources, with only such access to

intelligence sources and witnesses as the government deigns to give themI

how can such people possibly carry the burden of rebuttal, even against

I

I

weak government cases?").

I On top of these problems faced by most Guantfmamo detainees, Mr.

al-Alwi faced additional court-imposed obstacles. The court's refusal to

enter a protective order and to order a factual return for three years severely I I

handicapped counsel's ability to represent their client. For those years,

counsel had virtually no information about the allegations against Mr. al-

I St!!CRi3~';'f(OFOI~N




I SECRETh'triOFORN

I I Alwi and could not meaningfully meet or communicate with him, When

counsel raised these concerns in their November 2008 motion for an

extension, the court suggested that the Boumediene petitioners faced the I same schedule and obstacles and had been able to prepare for a merits

I

I

hearing. II.JA.843. This was error: counsel in the Boumediene case had a

I protective order entered in November 2004, and therefore had years to build

rapport with their clients. Boumediene v. Bush, 04-CV-11 66-RJL (dkt. 50)

(D,D.C, Nov. 5, 2004). They also had access to a factual return as early asI I

November 15, 2004, so they could investigate the government's and their

clients' claims. Resp'ts' Notice of Submission of Factural Returns to Pets.

I for Writ of Habeas Corpus Under Seal, id. (Nov. 15,2004) (dkt. 62). As the

I district court itself recognized in an earlier case, "in order for any meeting at

I .',

I

Guantanamo Bay to be really meaningful, [counsel] need to see what it is

that [the government is] producing before they go and interview the client."

LJA.115. This differential treatment significantly prejudiced Mr. al-Alwi.

I 2. The district court's denial of a continuance was arbitrary and capricious.

I The court's rationale for insisting on expedition was a desire to

I conclude its Guantanamo docket before the end of the. Bush administration.

I Petitioner is aware of no legal principle that would support denial of a

I SECRETHNOFORf',




I SHCRETHNOFORN

I continuance on that basis, particularly in a case where individual liberty is at

I stake.

Although criminal cases on continuances are an imperfect analogy for I

this action, they contain a set of principles rationally related to whether a

I continuance advances the cause of justice. This Court has cited the

I following factors to consider when weighing a motion for continuance in a

I criminal case:

[T]he length of the requested delay; whether other

I I continuances have been requested and granted; the

balanced convenience or inconvenience to the litigants, witnesses, counsel, and the court;

I

whether the requested delay is for legitimate reasons, or whether it is dilatory, purposeful, or

I contrived; whether the defendant contributed to the circumstance which gives rise to the request for a continuance; ... whether denying the continuance will result in identifiable prejudice to defendant's case, and if so, whether this prejudice is of a

I I material or substantial nature; the complexity of

the case; and other relevant factors which may apply in the context of any particular case.

United States v. Poston, 902 F.2d 90, 97 (D.C. Cir. 1990).

I Virtually all of these factors suggest that a continuance was warranted

I in this case. Petitioner was not requesting a lengthy delay. He asked for an

I additional thirty days to take discovery and file a traverse, which would have

I postponed the hearing to the next date available for the court. After nearly

seven years of incarceration and more than three years of habeas

I SHCRH'f'fINOFORN




I

I SECRE'iY/-NOFORN

I proceedings, Petitioner's requested delay was trivial. Petitioner had not

sought other continuances and, on the contrary, had consistently pressed

forward until his counsel received a 400-page return six weeks before the I I

traverse was due, and then were unable to discuss the allegations with their

client. Given the government's consistent requests for delay and its

I acquiescence to the motion at issue, there was no inconvenience to either

I party. The court's suggestion of inconvenience-that it did not have time to

reschedule the hearing before the change in administrations-was wholly

I arbitrary. The request for delay was not in any sense dilatory, purposeful, or

I contrived; counsel urgently needed to meet with their client and investigate

I his claims.

I Moreover, the societal interests that often counsel against

continuances in criminal cases do not apply here. The Speedy Trial Act, 18

I U.S.C. § 3161, does not govern, and the public (as opposed to Petitioner)

I does not have the same interest in "the swift administration of justice" for

I Guantanamo detainees as it does for criminal defendants, where concerns

I like prevention of crimes conunitted while on bail, deterrence, and the

effectiveness of rehabilitation may predominate in cases that are, moreover,

I initiated by the public. See Bloate v. United States, 130 S.Ct. 1345, 1356

I (2010); Zedner v. United States, 547 U.S. 489,502 (2006).

I SECR:B'fWNOFORN




I SBCaBTh'NOFORN

I I Even in the criminal context, the recognized public interest in speedy

disposition is far from absolute, but rather is qualified to account for the very

considerations of fairness to the accused at issue here. Cooper v. Oklahoma,

I I

517 U.S. 348, 364-65 (1996) (recognizing state interest in prompt

disposition, but holding it modest in comparison with necessity for fair

I appraisal of defendant's competency to stand trial).

I Denying the extension was plainly prejudicial to Mr. al-Alwi.

Previous counsel did not have enough time to gain Mr. al-Alwi's trust and

I I

develop his responses to the allegations. Counsel were forced to proceed

without a declaration from Petitioner and with virtually no infonnation to

I corroborate the incomplete account provided during a hunger strike. As a

I result, the hearing consisted of little more than the government's review of

statements in the return, and counsel's arguments attacking those statements.

I Petitioner's case was exceedingly complex-not conceptually but in

I the quality and location of relevant evidence. Few cases raise more

I obstacles for a litigant: language barriers; severe (if understandable) client

I" ~.. ... . :;;,,:.:' mistrust; unparalleled difficulties in client access and communication;

remoteness of relevant witnesses; difficulty of communicating with

I witnesses, even if identified; and secrecy of critical evidence. On the other

I side, the government had nearly seven years to prepare its case, and during

I SECRE'fflNOFORN




I

I SECRETHNOFORN

I those seven years it had unfettered, ex parte access to Petitioner. The

government had countless ways to frighten or goad Petitioner into making

inculpatory statements, which formed the core of the government's case.

I Yet the court concluded that six weeks after receiving the retum-"and

I three weeks after receiving it in a format that could be shared with Mr. al

I Alwi-was sufficient time for Petitioner to prepare his response,

I notwithstanding an uncontroverted declaration from Petitioner's counsel

detailing their difficulties in meeting with Petitioner. Cf United States v.

I Garner, 507 F.3d 399, 408 (6th Cir. 2007) (abuse of discretion to deny

I continuance to investigate records provided by government at start of trial);

I United States v. Flynt, 756 F.2d 1352 (9th Cir. 1985) (reversing contempt

I conviction after district court refused continuance to allow defendant time to

obtain psychiatric examination to support mental incapacity defense),

I amended 764 F.2d 675 (9th Cir. 1985). The court's stubborn refusal to adjust

I its schedule would have been error even if Mr. al-Alwi had not been on

I hunger strike when his lawyers arrived to discuss the allegations against him

I for the first and only time in seven years.

Here, the court was aware that counsel's first and most significant

I opportunity to meet with Mr. al-Alwi and discuss the return was interrupted

I when Petitioner, on the eighth day of a hunger strike, was carried out of the

I SECRE'f'7i'tiOFORN




I

I SECRE'f'I'fl,OFOftN

I interview room on a stretcher. Mr. al-Alwi was physically unable to review

even the limited portions of the government's case against him that were

accessible and had been translated in time. The court erred by failing toI

credit this reality.

I

I

Mr. al-Alwi's physical situation alone should also have been enough

I to warrant the short delay requested. Petitioner's hunger strike was not

designed to delay his hearing to secure some undue advantage. Mr. al-Alwi

had been on and off hunger strikes for years, and there was no evidence that

I I

he was aware ofhis habeas schedule when he began the strike at issue, much

less that he went on strike to delay the hearing. Furthermore, at that time,

I Mr. al-Alwi would not have known of the import of the hearing about to take

I place. A young Yemeni with a high school education obviously would have

understood nothing about habeas proceedings in American courts, let alone

I that these proceedings would be different from previous ones deemed flawed

I by the Supreme Court. Boumediene, 128 S.Ct. at 2240. The court's

I conclusion that Mr. al-Alwi was the "author of his own delay" was

I unreasonable, and it should not have been a factor in deciding whether to

postpone the hearing.

I Petitioner's request for more time was not prejudicial to the

I government. Indeed, the government freely consented to the extension. Mr.

I SBCR-ETHNOFORN




I

I St3CRF3'f'l/NOFORN

I al-Alwi was in a remote, off-shore prison, exactly where the government

wanted him, and he was not seeking bail. So far as undersigned counsel are

aware, the Bush administration's legal representatives never stated that they I

wanted a single Guantanamo case resolved before the end of the

I

I

administration. On the contrary, in virtually all Guantanamo cases, the

I government requested significant delays throughout the summer and fall of

2008 (as it did in this case).

The court seemed to believe that because of its self-imposed deadline,

I I

any delay in Petitioner's: case would prejudice some other Guantanamo

detainee, apparently because the court's docket was filled through the end of

I the Bush administration. Again, however, there was no clear basis for this

I reasoning. Petitioner's case could have been postponed until after all other

cases on the court's docket were concluded, even if that meant proceeding

I after President Obama took office.! I

I I II In fact, several of the district court's Guantanamo cases were

postponed until after President Obama took office, which presumably

I opened spaces on the court's calendar during the Bush administration. On the same day as Mr. al-Alwi's merits hearing, Judge Leon delayed a merits

,..

hearing for 60 days, based on a consent motion from the petitioner. Rumi v.I Bush, 06-CV-0619-RJL, Minute Order (D.D.C. Dec. 17, 2008) (delaying hearing for 60 days; hearing originally scheduled for January 16,2009).

I I

SECRi!;kf7'fflOFOftNI 35




I S:eCRE'f'rINOFORN

I The clear import of Boumediene was that courts mus~ craft procedures

I flexibly to ensure that justice is done in GuanUmamo cases, not just that they

are decided swiftly. A constitutional right cannot be waived by the court, I I

Maryland v. Shatzer, 130 S.Ct. 1213, 1219 (2010) (citing Johnson v. Zerbst,

304 U.S. 458 (1938)) ("The State must show that the waiver was knowing,

I intelligent, and voluntary."), nor can the court override a right based on

I expediency. United States v. Ewell, 383 U.S. 116, 120 (1966) (noting

"deleterious effect" on all parties of "requirement of unreasonable speed"); I

Barker v. Wingo, 407 U.S. 514, 521 (1972) ("[J]ustice is supposed to be

I swift but deliberate."). The court's insistence on a rapid hearing that neither

I side wanted, and that Petitioner could not prepare for, was an inflexible and

I irrational exercise of its authority. Id. at 532 ("[T]he inability of a defendant

adequately to prepare his case skews the fairness of the entire system.");

I Ungar v. Sarafite, 376 U.S. 575, 589 (1964) ("[A] myopic insistence upon

I expeditiousness in the face of a justifiable request for delay can render the

I right to defend with counsel an empty formality.").

3. The district court's refusal to allow needed timeI undermined the attorney-client relationship and deprived Mr. al-Alwi of a meaningful opportunity to

I challenge his imprisonment.

I Petitioner's counsel had insufficient time to review and assess the

government's classified allegations; to overcome years of government-

I I

S:eCRE'FfINOFORN 36



UNCLASSIFIEDIlFOR PUBLIC RELEASE

I SECR-E3'fYfNOF0 RN"

I imposed obstacles to an adequate attorney-client relationship and build trust

I with their client; to elicit from him an unadulterated rebuttal of the

government's allegations and a recital of pertinent facts from his point ofI I

view; to investigate those facts and attempt to corroborate them from sources

in distant lands; and to discuss meaningfully with Mr. al-Alwi the possibility

I of signing a declaration or testifying live at the hearing.

I In Guantanamo litigation, these tasks can take years to accomplish,

but the court gave Mr. al-Alwi's counsel only a few weeks. As a result, his

I lawyers were forced to accept the record as it stood and argue inferences

I from the facts. Their hands were tied in presenting a defense~tied by years

I of government abuse and interference with Mr. al-Alwi's rights, and tied by

I a court hurtling toward a hearing without due regard for Mr. al-Alwi's

constitutional right that the hearing be meaningful. The result was a hearing

I with no signed declaration from Petitioner, much less live testimony, and no

I opportunity for thorough investigation or rebuttal of the government's

I allegations.

I For all these reasons, the court abused its discretion in denying

Petitioner's request for an extension of time. The habeas proceeding was

I Mr. al-Alwi's only opportunity to challenge detention that could last a

I lifetime. Because the court's orders deprived him of a meaningful hearing,

I SECRETffNOFORN




I

I I this Court should vacate the judgment of the district court and remand for a

new hearing.

B. The District Court Abused its Discretion by Rejecting I Petitioner's Discovery Requests

I Petitioner's counsel sought leave to serve interrogatories and requests

for production of documents under the court's CMO. IIJA.807. The

I

I

discovery requests focused on matters that were clearly probative of the

I issues raised in the government's return, such as: video or audio recordings,

notes, transcripts, or other memorializations of Petitioner's statements,

ILJA.830-31, 836; evidence of torture or mistreatment of Petitioner,I ILJA.83I ; and Petitioner's medical records, ILJA.836.

I

I

The court denied all discovery requests except one, reqUlnng the

I government to produce a few additional statements. Citing its CMO,

ILJA.921-22, the court held the government need not produce evidence that

Mr. al-Alwi was tortured or abused because "Petitioner has given the Court I no reason to believe that he was subject to the treatment described in the

I

I

request and thus has given the Court no reason to believe a request is likely

I to produce relevant and material evidence." II.JA.882. Nor would the court

require the government to produce the source documents underlying the

summary interrogation reports in the return, because Mr. al-Alwi "fail[ed] toI

demonstrate how they are likely to produce evidence both relevant and

I SECR-E't'//r,OFORf,




I

I SI3CRE'F/fNOFORN

I material . . .. Petitioner's speculation that these requests may produce

information that undermines the credibility of the reports already produced

or information that otherwise supports Petitioner's case is insufficient to

I meet the CMO standard." II.JA.92 1-22. The court denied the request for

I

I

Mr. al-Alwi's medical records on the same basis. IIJA.921.

I The court's discovery rulings were flatly inconsistent with orders in

many other Guantanamo cases requiring production of all forms of a

detainee's statements, including transcriptions and notes, e.g., Rabbani v.

I Obama, 656 F.Supp.2d 45, 49 (D.D.C. 2009); of abusive interrogation and

I torture evidence, e.g., id. at 53; Al-Darbi v. Obama, 680 F.Supp.2d 7, 12

I (D.D.C. 2009); Shargowi LNU v. Obama, 656 F.Supp.2d 187, 193-94

I (D.D.C. 2009) (collecting other cases); and of medical records and other

"circumstances of statements" evidence. E.g., Rabbani, 656 F.Supp.2d at

I 49; Abdah v. Obama, 2010 WL 1798989, at *8 (D.D.C. Apr. 18, 2010);

I Paracha v. Obama, 2009 WL 2751788, at *1 CD.D.C. Aug. 28, 2009); Al

I Ansi v. Obama, 647 F.Supp.2d 1, 8 (D.D.C.), subsequent op., 671 F.Supp.2d

I 139 (D.D.C. 2009).

The court's rejection of these discovery requests was an abuse of

I discretion. As set forth above, Petitioner's counsel were denied an

I opportunity to elicit the very evidence that the court required to support a

I SI3CR-E'Fh~,OFORN




I SECRElWNOFORN

I request for discovery. Under the court's schedule, counsel had to move for

I discovery shortly after their first substantive, aborted meeting with Mr. al·

I I I interrogators. Asaffected any statements he made to U.S.

Counsel had no realistic chance to obtain a declaration from Petitioner

Alwi, and immediately after the court declined to postpone its deadlines.

explaining that he had been abused and tortured-and how that treatment . "r

I counsel stated at the discovery hearing:

I I I I

[S]everal places in ... Mr. Al Alwi's discovery Motion [sic] the Government has taken the argument that we should have supplemented a particular item with evidence from him or more specific allegations as to why a particular document is required. Again, that is a consequence of Mr. Al Alwi being unavailable for us to receive that information. I would hope that that would not prejudice your decision in the discovery Motion anyway.

I IIJ.A.850.

I For the same reasons, counsel could not produce evidence, at the time

I I time to work meaningfully with Mr. al-Alwi and obtain his full rebuttals to

of the motions hearing, that the reports were not reliable reflections of what

Petitioner actually said. The court simply had not given counsel sufficient

I the government's allegations.

I I I UNCLASSIFIEDIIFOR PUBLIC RELEASE

The court also abused its discretion by imposing any evidentiary

SECRB'f';'/NOFORN 40

burden on Petitioner before granting, at minimum, discovery of (1) source



I SECRt5'fYfNOFOftN

I I materials underlying Petitioner's statements, (2) torture or abuse of

Petitioner in U.S. custody, and (3) records showing Petitioner's medical

I condition at the time of the statements. The government's case against Mr.

al-Alwi rested almost entirely on his own alleged statements. Anything that

I

I

tended to undennine or explain those statements was fundamentally

I probative. The "statements" at issue were all second-hand intelligence or

interrogation reports that had no facial reliability: they were unsworn; they

were prepared at unknown times after the interviews; they were reported by I I

interrogators who were either unidentified or of unknown and unproven

reliability; they were undertaken through interpreters of unknown skill; and

I they made no attempt to quote Petitioner verbatim.

I The court should have required the government to produce recordings,

notes, transcripts, and other source documents underlying the "statements" it

I I

relied on. The intelligence and interrogation reports included with the return

were not even close to direct statements by Mr. al-Alwi. In some instances,

I Petitioner denied making statements attributed to him, III.JA.1445, 1446

I (denying that he was at Khalid Center and stating that he was arrested in

Peshawar, , and he told an interrogator that he lied in at least

I two prior interrogations. II.JA.570. Source documents, such as notes,

I transcripts, or recordings of the interviews at issue, may have resolved the

I SECRETffNOFORN




I SECREl'h'NOPORN

I parties' differences; indeed, in evidentiary terms, these documents are far

·1 more probative than the reports included with the return, because they are at

least one step closer to any words that actually came out of Petitioner'sI mouth. E.g., Al-Harbi v. Obama, 2010 WL 2398883, at *3 (D.D.C. May 13,

I

I

2010) (emphasizing that "documents that are summaries of interrogations

I should not be equated with verbatim recitations of those interrogations" and

noting that a particular report "leaves out some information included in the

notes, and, in at least one instance, [attributes to petitioner] information that I

appears to be the interrogator's extrapolation").

I The underlying notes may have revealed discrepancies undermining ., I

I I the reports ultimately relied upon by the court or otherwise calling into

i

question "the interpreter's translation, transcription of notes during the

interview, [or] the drafting of the report." Id. at 23. It made no sense to

I I

require Petitioner to show how these records contained relevant and material

evidence: they were fundamentally more relevant and material than the

I evidence the government offered.

I In addition, if Petitioner was tortured or abused while in U.S. custody,

evidence of that treatment inevitably would taint Petitioner's statements-as

I many other district judges have concluded. E.g., AI-Darb;, supra, 680

I F.Supp.2d at 12; Bin Attash v. Obama, 628 F.Supp.2d 24, 39-40 (D.D.C.

I SECR:E'fYI'NOFORN



I I I I I I I I I I I

I

I I I

II

I~


2009). It was error to require Petitioner to prove that he was tortured before

requiring the government to produce evidence of his torture.

Finally, Petitioner's medical records were inherently relevant and

material to any statements he made to interrogators. The government has

acknowledged that its interrogation practices were designed to isolate and

confuse its captives, creating broken and subservient prisoners wholly

dependent on their interrogators. Joint Task Force Guantanamo, supra,

Camp Delta Standard Operating Procedures at §4-20a. Many detainees

developed significant mental health problems. Omar Razek, Regret and

Resentment at Guantanamo, BBC NEWS (Oct. 18, 2006).12 As early as

2002, according to an interrogation report relied on by the government, Mr.

al-Alwi stated that he "was depres~ed and wished to return to his cell.

, ILJA.475. He frequently engaged in hunger strikes that

affected his ability to think and behave nonnally. Those facts alone indicate

that Petitioner's medical records might have included information probative

of the reliability of Petitioner's ex parte statements to interrogators.

For all these reasons, the court abused its discretion by denying

Petitioner's discovery requests.

. , "

. :'

12 Available at http://news.bbc.co.uk/2/hi/americas/6057262.stm.

SECRE'f'h'NOFORN 43

UNCLASSIFIEDIIEOR PIIBI Ie RELEASE



I SECRETl-lNOFORN

I C. Remand is Required to Determine Whether the Government Produced Relevant Exculpatory Evidence

I After this Court's ruling in Bensayah v. Obama, No. 08-5537 (D.C.

I Cir. June 28, 20 I0), remand is required to ensure that the government

I produced exculpatory evidence. In Bensayah, this Court held that, under the

same CMO that governed this case, "[i]nformation that undermines the

I reliability of other materials, e.g., inculpatory evidence, also tends materially

I to undermine the Government's theory as to the lawfulness of the

I petitioner's detention and hence must be disclosed by the Government."

I Slip op. at 9 (citations omitted). The Court further held that:

Bensayah's primary concern seems to be that the disclosure

I requirement allows the Government to withhold exculpatory evidence because personnel from other agencies will pass only inculpatory evidence on to the attorneys actually "developing I the return" and "preparing for the hearing." That practice is not permissible, however, under the current disclosure requirement.

I Any information that has been strategically filtered out of the record in order to withhold exculpatory evidence is plainly "material reviewed in developing the return" - and hence

I I subject to the disclosure requirement - even if the individual

doing the filtering works for a government agency other than the Department of Justice.

Id. at 9-10. I In this case, the court stated the government was required only to

I "produce any exculpatory evidence that they saw in the course of reviewing

I the documents that they reviewed to prepare the return." IIJA.868. The

I SRCRE'f'HNOFORN




I SeCRE'fHNOFORN

I I government in turn represented that "pursuant to paragraph 1F of the CMO

we produced any and all information that may materially undermine our

client." II.JA.869. However, nowhere did the district court or theI I

government define who "they" or "we" were. Nowhere was it stated

whether "they" or "we" included any government agency employee, or

I solely the Department of Justice lawyers assigned to the case. In fact, when

I Mr. al-Alwi demonstrated that the government possessed exculpatory

information that it had failed to produce--evidence counsel had obtained I

independently-the court brushed it aside. ILJA.884-889. Compounding

I this problem, the court stated that the government was not required to tum

I over exculpatory information that it deemed cumulative. ILJA.886-887

I (declining to require government to produce more than one report

undermining government witness Basardah).

I

I

On this vague record, the court erred In concluding that the

I government had met its requirement to tum over all exculpatory evidence.

I On remand in Bensayah, the government will have to comply with this

Court's controlling construction of the CMO's exculpatory disclosure

obligation. Absent remand in this case, Petitioner is left with an incomplete

I record containing only some of the materials that would have been produced

I under this Court's articulation of the disclosure obligation. Accordingly,

I SeCR-ETlfNOFORN




I I this Court should remand for a determination about this critical matter.

I In sum, the court's rulings on scheduling, discovery, and exculpatory

evidence, taken jointly or separately, deprived petitioner of a meaningful I

opportunity to challenge his imprisonment. 13

I II. THE DISTRICT COURT ERRED IN ITS SELECTION AND APPLICATION OF A DETENTION STANDARD

I I

A. The Government Later Disavowed as Overbroad the Detention Standard Utilized by the District Court

The district court held that the government had authority to detain an

I "enemy combatant," defined as:

I [A]n individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United I States or its coalition partners. This includes any person who has committed a belligerent act or has

I 13 Whether Mr. al-Alwi was provided a meaningful opportunity toI contest his imprisonment is a legal question for this Court to review de novo.

Case management and evidentiary decisions by the district court are

I normally examined for abuse of discretion. However, the district court .., necessarily decided that, as a matter of law, Mr. al-Alwi received a .",.

"meaningful opportunity" absent a continuance or discovery under these I factual circumstances. Therefore, de novo review is appropriate. Cf United States v. Sara, 252 F.3d 449, 455 n.9 (D.C. Cir. 2001) (even though

I equitable tolling usually reviewed for abuse of discretion, when court

I

"appeared" to find as matter of law that equitable tolling unjustified by facts, de novo review applied); Smith-Haynie v. Dist. of Columbia, 155 F.3d 575, I 578 n.4 (D.C. Cir. 1998) (applying de novo review because district court found as matter of law that facts could not support equitable tolling). Even were the Court to apply an abuse of discretion standard, however, the facts warrant reversal.

I SECRETffNOFORN




I

I I directly supported hostilities in aid of enemy

armed forces.

I I.JA.356; see also Al-Bihani v. Obama, 590 F.3d 866, 870-72 (D.C. Cir.

I 2010). The court apparently did not find that Mr. al-Alwi was "part of'

Taliban or al-Qaida forces. III.JA.1802-03 ("Taking these findings together

... this Court concludes that it is more probable than not that petitioner was

I supporting the Taliban and al Qaeda in a manner consistent with the enemy

I combatant definition this Court has adopted.").

I Shortly after the court's decision, the government acmowledged that

I the standard utilized by the court (and promoted at the time by the

govemment) was too broad because it allowed detention based on support

I rather than substantial support. See, e..g., Resp'ts' Mem. Regarding the

I Gov't's Detention Authority Relative to Detainees Held at Guantanamo Bay

I at 2, Zuhair v. Obama, 08-CV-864 (D.D.C. Mar. 13, 2009) (dkt. 160).

I Guantanamo cases decided below since then have required proof of

substantial support at minimum. Although this Court has not expressly

I endorsed the substantial support standard, it has acknowledged that the

I government should have a measure of discretion in determining the

I appropriate standard. See Al-Bihani, 590 F.3d at 872.

I This Court should vacate the judgment in this matter and remand so

the district court can decide in the first instance whether the government's

I SECRETNNOFORN




I SECRH~r/'NOF'OR:N

I I evidence met the "substantial support" standard. See Moore v. Hartman, ",

571 F.3d 62,69 (D.C. Cir. 2009) (remanding so district court could re-weigh

evidence under proper legal standard, even though de novo standard ofI review gave this Court discretion to make determination in first instance);

I (9th

I

Mohamed v. Jeppesen Dataplan. Inc., 579 F.3d 943, 961 Cir.)

I (remanding for district court to apply correct legal standard in first instance,

and collecting authority), pet'n for en banc review granted, 586 F.3d 1108

(9th Cir. 2009). A remand for reconsideration under the "substantialI I

support" standard could well change several of the court's key findings,

given the weakness of the evidence presented by the government. See infra,

I Section III.

B. No Evidence Suggested that Omar Sayef Group wasI Engaged in Hostilities Against the United States at the Time of the Hearing

I

I

When detention authority is predicated on links to "associated forces"

I rather than to Taliban or al-Qaida forces, the government is required to .

prove that the associated forces "are engaged in hostilities against the

I United States or its coalition partners." Al-Bihani, 590 F.3d at 872

(emphasis added). The court concluded that Petitioner was part of or

I supported an "associated force," the Omar Sayef Group (OSG), which in

I turn supported the Taliban. IILJA.1800-0 1. The court acknowledged that

I I

SECREl'lfNOFOItN 48




I SECR:E'FlfNOFORN

I I the government had presented "little direct evidence that explicitly links

petitioner's combat unit [in Omar Sayef] to the Taliban," IILJA.180l, but

the court found "that such an association is more likely than not based on

I petitioner's own admissions and the circumstances." [d. However, the court

I did not find-and the government never presented-any evidence showing

I that osa was engaged in hostilities against the United States or its allies at

I the time of the hearing. For that reason, the government failed to meet its

burden to show that Mr. al-Alwi's alleged links to osa authorized his

I detention under the AUMF ~

I This argument does not rest on a hypertechnical construction of a verb

I tense in the definition of "enemy combatant." The use of the present tense

I cannot be presumed accidental or meaningless. Whether an "associated

force" is engaged in hostilities is a critical inquiry when assessing detention

I authority under the law of war as well as the definition adopted by the

I govemment and the court in this matter. Compare Parhat v. Gates, 532 F.3d

I 834, 843 (D.C. Cir. 2008) (describing one element of government's case as

I proof that an associated force, the East Turkestan Islamic Movement, "is

engaged in hostilities against the United States or its coalition partners"); see

I also Barhoumi v. Obama, 609 F.3d 416, 420 (D.C. Cir. 2010) (affirming

I district court finding that detainee was "part of' an al-Qaida "associated

I S£CR+3'FIINOFOR?,




I

I SBCftBTHONOFORN

I force that was engaged in hostilities against the United States or its coalition

partners") (quotations omitted).

The purpose of detention during war is to ensure that a combatant

I I

does not return to the fight. Hamdi v. Rums/eld, 542 U.S. 507,518 (2004)

(plurality). The prerequisite, of course, is that the fight be ongoing; if it is

I not, the law of war manifestly requires release of detainees, and the fact that

I the detainees incontrovertibly were part of an enemy fighting force at the

time of capture is innnaterial. See In re Territo, 156 F.2d 142, 145 (9th Cir.

I 1946) ("The object of capture is to prevent the captured individual from

I serving the enemy. He is disarmed and from then on must be removed as

I completely as practicable from the front, treated humanely and in time

I exchanged, repatriated or otherwise released.") (footnote omitted); Geneva

Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12,

I 1949, art. 118 ("Prisoners of war shall be released and repatriated without

I delay after the cessation of active hostilities."); cf Al Ginco v. Obama, 626

I F.Supp.2d 123, 128-30 (D.D.C. 2009) (petitioner who ends his relationship

I with al-Qaida before capture not detainable). Indeed, in Basardh v. Obama,

612 F.Supp.2d 30 (D.D.C. 2009), a district judge interpreting Hamdi granted

I the writ to a Guantanamo petitioner who was unlikely to return to his unit,

I even though the unit was actively fighting.

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I Where the detained person was part of an associated force, moreover,

I the standard prudently focuses on whether the associated force is currently

engaged in the fight. If it is not, there is no reason to retain the combatant. I I

Indeed, the Afghan conflict illustrates the wisdom of this principle. For

decades, Afghan warlords and other "forces" have changed allegiances or

I dropped out of the fight altogether. See P. Cockburn, The Warlords Casting

I a Shadow Over Afghanistan, THE INDEPENDENT (May 11, 2009). Many

warlords were our enemies before they were our friends, and many of our

I enemies were once our allies. E.g., Stephen ColI, GHOST WARS at 164-166,

I 167, 521 (2004). IfOSG is no longer fighting the United States or its allies,

I and indeed there was no evidence that it even still exists, there is no longer a

I reason to detain Petitioner on the basis ofprior association with that group.

Accordingly, because the government failed to prove that OSG forces

I were engaged in hostilities against the United States or its allies during the

I relevant timeframe, the Court should remand for the district court to

I deternline whether the remaining evidence supports Mr. al-A1wi's continued

I imprisonment.

III. THE DISTRICT COURT ERRED BY FAILING TO REQUIRE

I THE GOVERNMENT TO CORROBORATE STATEMENTS ATTRIBUTED TO PETITIONER

I A. CorrOboration of Mr. al-Alwi's Statements is Required

I SECRE'fHNOFORN




I SRCREYfllNOFORN

I "[A]n accused may not be convicted on his own uncorroborated

I confession." Wong Sun v. United States 371 U.S. 471,488-89 (1963); Smith

v. United States, 348 U.S. 147, 152 (1954).I

The rule is required because:

I [c]onfessions may be unreliable because they are coerced or induced, and although separate

I doctrines exclude involuntary confessions ... further caution is warranted because the accused may be unable to establish the involuntary nature I of his statements. Moreover, though a statement may not be 'involuntary' within the meaning of

I this exclusionary rule, still its reliability may be suspect if it is extracted from one who is under the pressure of a police investigation-whose words I may reflect the strain and confusion attending his predicament rather than a clear reflection of his

I I past. Finally, the experience of the courts, the

police, and the medical profession recounts a number of false confessions voluntarily made.

Smith, 348 U.S. at 153.

I Corroboration is required if an admission or confession is "made after

I the fact to an official charged with investigating the possibility of

I wrongdoing" and "embraces an element vital to the Government's case."

I Smith, 348 U.S. at 155, 157 n.4; see also United States v. Dickerson, 163

F.3d 639, 641 (D.C. Cir. 1999) ("[N]o defendant can be convicted on the

I basis of an uncorroborated out-of-court statement, whether that statement is

I used by the prosecution to prove a formal element of the crime charged or a

I SECRi3~'/NOFOftN




I SECRE'f'HNOFORN

I fact subsidiary to proving an element of the crime."). The government must

-I provide "substantial independent evidence that the offense has been

committed." Smith, 348 U.S. at 156; Opper v. United States, 348 U.S. 84, I 93 (1954).

I

I

A later admission "standing uncorroborated cannot serve to

I corroborate [a defendant's] other admissions." United States v. Calderon,

348 U.S. 160, 165 (1954). Nor is "remarkable detail" found in an admission

or confession enough to establish the trustworthiness of the statement; the I

corroborative evidence must be independent of the statement. United States

I v. Abu Ali, 528 F3d 210, 236 n.9 (4th Cir. 2008).

I I Although this is not a criminal case, the same rule should apply here.

First, the repercussions for Mr. al-Alwi are the same: deprivation of liberty.

Mr. al-Alwi has been imprisoned for over eight years and, if the district I

court's ruling stands, he may never leave Guantanamo. Second, the same

I concerns giving rise to the rule in criminal cases-the fundamentally

I unreliable nature of in-custody statements against interest-are far more

I acute in the purposely coercive environment of Guantanamo. Courts have

applied this concept to these cases already. See, e.g., Khalifh v. Obama,

I 2010 WL 2382925, at *5 (D.D.C. May 28, 2010) (rejecting allegation that

I petitioner was in Tora Bora in part because government failed to provide any

I .. ;.

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I SECRi!1'f';';'~OFOm~

I I corroboration of petitioner's confessions); Al-Harbi v. Obama, 2010 WL

2398883, at *10 (D.D.C. May 13,2010) (rejecting allegation that petitioner

was a Taliban fighter for lack of corroboration of supporting statement); AII Odah v. United States, 648 F.Supp.2d 1, 15-18 (D.D.C. 2009) (denying

I

I

petition because petitioner's admissions were corroborated by various pieces

I of independent evidence), ajJ'd, 2010 WL 2679752 (D.C. Cir. June 30,

2010); see also Al-Adahi v. Obama, 698 F.Supp.2d 48, 55-56 (D.D.C. 2010)

("One consequence of using intelligence reports and sunnnaries in lieu ofI

direct evidence is that ... [s]izeab1e gaps may appear in the record and may

I

I

well remain unfilled. . ., Accordingly, [the] existing evidence must be

I weighed and evaluated as to its strength, its reliability, and the degree to

which it is corroborated."); cf Bensayah, supra, slip. op. at 14-16 (reversing

due to lack of evidence corroborating document with questionable source I

and lack of detail about how information was gathered).

I B. The District Court Erroneously Found Statements Attributed to Petitioner Were Reliable

I I

Evidence in the record suggests that Mr. al-Alwi was abused,

threatened, and humiliated. III.JA.1446. Mr. al-A1wi informed his

I interrogators that he had lied in statements relied on by the government.

I II.JA.570. Yet the court relied heavily and in some instances exclusively on

Petitioner's own statements.

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I I The court found Mr. al-Alwi's statements reliable because (1) he

"consistently reported the essential details of the story ... over the course of

multiple interrogation sessions;" (2) he did not deny the reports; (3)I

insufficient evidence linked abuse to the statements in question; and (4) the

I

I

reports themselves lacked indicia of unreliability. IILJA.1796. Each of

I these propositions is erroneous.

"Remarkable detail" found m an admission or confession is not

enough to establish the trustworthiness of the statement; corroboration

I I

evidence must be independent. Abu Ali, 528 F.3d at 236 n.9; see also Anam

v. Obama, 696 F.Supp.2d 1, 9 (D.D.C. 2010) (consistency of petitioner's·

I past statements does not mean they are reliable-"[t]hat the Government

I continued to drink: from the same poisoned well does not thereby make the

water clean"). A statement is not true just because a detainee, any more than

I a government official, "said it thrice." Parhat, 532 F3d at 848.

I Mr. al-Alwi's counsel did not deny parts of the reports because they

I had insufficient opportunity to develop a full defense with Petitoner and

I argued only inferences instead. However, Mr. al-Alwi expressly told his

interrogators that he was lying when he made supposedly inculpatory

I statements. Indeed, the three primary interrogations of Mr. al-Alwi relied on

I I

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I SECRB'Flfl'lOFORN

I I by the court (Return Exhibits 12, 28 _ ILJA.485-88, IIJA.568-76,

as Mr. al-Alwi stated contemporaneously, were lies.

The chronology of the three interrogations is revealing. The most I I

recent, Return Exhibit 28, occurred on May 2, 2003. II.JA.568-76. The

report reads: "Detainee stated that

I he lied to them. He mentioned another time he lied." IIJA.570.

I I

Mr. al-Alwi stated, and the government did

abused him during interrogation.

I

I

twelve hours without

I interruption, refusing to allow him to use the bathroom or pray. Id. They

punched him and threatened him with extraordinary rendition. Id. As a

result, he lied to them. 15

I I

'nterrogated him for IILJA.l446.

not contest,

I I

15 Because the court denied discovery of source documents underlying I interrogation reports, as well as documents relating to the circumstances of interrogations and medical records, Petitioner was unable to demonstrate

I additional links between the uncontroverted abuse he suffered and the interrogations relied on by the court.

I SECRB'FHNOFORN




I SECR-E'f'IfNOFORf',

I The third key interrogation took place on IIJA.485

I 488. This is probably the other time Mr. al-Alwi lied; this report contains

very similar statements Mr. al-Alwi wasI

telling the same lies each time. The court erred by finding these reports

I

I

reliable.

I The court also erred in concluding that Petitioner had not linked abuse

to his statements. Mr. al-Alwi described being abused

then lying to them, and on another occasion as well. For the same reason,

I the reports demonstrate indicia of unreliability: Mr. al-Alwi expressly stated

I he had lied.

I Corroboration was also critical because the court relied on two

I contravention of this Court's holding in Parhat v. Gates, 532 F.3d 834, 843

I

I See Bensayah, supra,

I slip op. at 12-13 (emphasizing importance ofjudicial evaluation of reliability

I

I I

of unsourced and unevaluated evidence).

I SECRB'f'IfNOFORN


and

Inunsourced documents,

(D.C. Cir. 2008).



I S~CRf3'F;';'NOFOR1',

I I I I I I

Both lack sufficient I

infonnation for a court to assess their reliability. Under Parhat and now

I Bensayah, the court should not have relied on them.

I C. Petitioner's Statements Were Insufficiently Corroborated

I 1. Guesthouse stays.

The only evidence the court relied on to find that Mr. al-Alwi stayed

I in any guesthouse came from Mr. al-Alwi himself. The court found that Mr.

I al-Alwi stayed at the al-Ansar guesthouse, which was supposedly linked to

I al-Qaicla, based on Return Exhibits 12,28,_ III.JA.1797.

The sole independent corroboration for the supposed link between alI Ansar and al-Qaida was Exhibit 4, an expert declaration the court deemed

I credible. II.JA.446-50. However, that declaration failed to indicate the

I source for its one-line conclusion that "the al-Ansar Guesthouse in Kandahar

I I

SECRE'fm.iOFORN 58




I S£CRE'I'/fNOFORN

I ... had strong connections to al-Qaida." IIJA.448. Nothing in the record

I suggests that the expert had a basis for his opinion finner than multi-layer

I hearsay from unreliable sources. In all likelihood, that infonnation

originated with a Guantanamo prisoner-possibly Petitioner himself.

I

I

Passing the infonnation through an "expert" does not make it more reliable.

I In any event, under Parhat and Bensayah, the court should not have credited

the declaration without inforn1ation about the basis for the government

witness's conclusion. 16

I Other evidence undermined this allegation. Mr. al-Alwi unwaveringly

I

I

denied any connection to al-Qaida. IIJA.541_ IILJA.1445. He

I referred to al-Ansar as an Afghan guesthouse, not an al-Qaida one.

II.JA.487; III.JA.1445. The government's expert declaration states that.

I ILJA.449. But there was no evidence that Mr. al-Alwi ever was under the

I

I

control of al-Qaida, and substantial evidence suggested the contrary. He

I came and went from the guesthouse at will, going shopping and to local

restaurants. II.JA.572. Mr. al-Alwi stated he never visited a guesthouse

16 The court also found corroboration in a statement b the sameI government declarant that something Mr. al

I Alwi reportedly admitted doing. IILJA.1798. Here, too, the declaration fails to give a source for its conclusion. II.JA.449.

I SECfti'3'fIINOIfOftN




I SF3CRE'fHNOFORN

I under orders from anyone, including anyone affiliated with the Taliban or al

I Qaida. III.JA.1445.

I 2. Less than a day's training at the Khalid Center.

The sole basis for the court's conclusion that Mr. al-Alwi received a

I

I

few hours training at a Taliban-related camp was Mr. al-Alwi's own

I statements, which he denied in his amended traverse. IIIJA.l445. No

witness, and no other evidence, linked Mr. al-Alwi to the so-called "Khalid

Center."I Even if Mr. al-Alwi did go to the Khalid Center, no evidence

I

I

connected the Center to the Taliban or suggested that Mr. al-Alwi received

I orders from anyone there. The government's expert declaration on training

camps never mentions the Khalid Center. IIJA.450-59. The court

erroneously surmised that the camp was linked to the Taliban, in large part I I

because the Taliban controlled Afghanistan at the time. But the Taliban did

not control the entire country, particularly north of Kabul, where this center

I supposedly was located. See, e.g., IILJA.1440 (reporting that in early

I October 2001, Northern Alliance foreign minister was "sipping tea in an

elegant garden ... just 50 miles from Kabul"). The record evidence,I

including Mr. al-Alwi's statements, did not support a finding that Mr. al

I Alwi attended a "Taliban-related camp."

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60I UNCLASSIFIEDIIFOR PUBLIC RELEASE



I SECRETh'.NOFORN

I 3. Supporting Taliban forces on two fronts.

I The court concluded that Mr. al-Alwi participated in a "combat unit

that fought the Northern Alliance and related forces on two fronts."I III.JA.1799. The sole evidence relied on by the court that Mr. al-Alwi

I

I

participated In any "combat unit" came from reports of his own

I interrogations.

There was almost no evidence that Mr. al-Alwi ever engaged in

combat as part of a unit, merely that he witnessed it. While in northern I I

Afghanistan, Mr. al-Alwi reported that he "swam in the river and relaxed

and did not do much else." ILJA.573. The only hint of fighting there was a

I report of shots fired across a border river at "the Tajiks." IIJA.574. But the

I government presented no evidence that "the Tajiks" were in fact the

Northern Alliance-or any other enemy of the Taliban. I I

The court acknowledged that "the Government provides little direct

evidence that explicitly links petitioner's combat unit to the Taliban."

I IILJA.I80 1. Instead, the court took judicial notice that "at that time the

I Taliban controlled the country and were in a civil war with the Northern

Alliance." Id. But fighting in Afghanistan was as commonplace as it was

I protean. Groups shifted allegiances, and individual soldiers switched sides

I or walked away. Even if Mr. al-Alwi was a soldier-a questionable

I St1COltBTHNOFORN




I

I SI3CRETHNOFORN

I proposition on this record-the evidence never established his allegiance to

an enemy of the United States.

The only evidentiary link in the record between OSG and the Taliban I

is the man Mr. al-Alwi reportedly stated led the group, Abdul-Hadi aI-Iraqi.

I

I

The government did not corroborate a link between Mr. al-Alwi's "unit" and

I aI-Iraqi. See, e.g., United States v. Stephens, 482 F.3d 669, 673 (4th Cir.

2007) (finding insufficient corroboration of confession to cocaine deal with

drug dealer known as "Red" who drove white Mazda, even where agent

I I

recognized description of Red as suspected drug dealer who drove white

Mazda). Moreover, the evidence of aI-Iraqi's ties to al-Qaida and the

I Taliban fails under Parhat. The court relied upon a single unsourced line in

I a document prepared for another prisoner's ARB. ILJA.1395. That

document bears no indicia of reliability whatsoever.

I 4. Actions after September 11.

I Finally, the court found that Mr. al-Alwi "was with, and was

I supporting, Taliban forces that were attacked by the United States ... and

I stayed with his Taliban unit[17] for a period to time thereafter." IIIJA.1802.

I 17 The court, perhaps inadvertently, converted a group for which there was "little direct evidence that explicitly links [it] to the Taliban," into a "Taliban unit." The two are fundamentally different, particularly under the I detention standard applied by the court. No evidence put Mr. al-Alwi with a "Taliban unit."

I , I.

SECRE'FHNOPORN




I S£CRB'fYH'fOFORN

I I The only evidence that describes Mr. al-Alwi's actions after September II

comes from his own supposed statements. No evidence corroborated his

alleged witnessing of U.S. bombing, his fleeing to safety in Pakistan, or his I I

capture and transfer to U.S. custody.

Mr. al-Alwi reportedly stated that he witnessed two to three U.S.

I bombing runs before fleeing. Ofcourse, witnessing bombing in Afghanistan

I can hardly satisfy the detention standard, or very many Afghans, including

civilians and children, would be subject to detention. The court also relied I I

on an interrogation report that Mr. al-Alwi said most people he was with

were killed by U.S. bombs. II.JA.488. But the report does not say that he

I witnessed their deaths. In fact, the other report the court cited suggests he

I did not. See II.JA.572 (Mr. al-Alwi "believes American planes killed his

friends while they were in the north") (emphasis added).

I The interrogation accounts relied on by the court do not fit with an

I image of Mr. al-Alwi as a fighter. Mr. al-Alwi paid for his own airplane

I ticket to northern Afghanistan, and he purchased his own horse. II.TA.573.

I Those are the acts of civilians, not soldiers.

Mr. al-Alwi explained that after hearing of the September 11 attacks,

I he returned to Kabul for a couple of days, then began his flight to Pakistan.

I III.JA.1446. He took a route common for refugees: from Kabul, to Khowst,

I SECM'f'f;'NOFORt,




I SECRt3THNOFORN

I I to Pakistan. See AI-Harbi v. Obama, 2010 WL 2398883, at *12-13 (D.D.C.

May 13, 2010). Although soldiers could have taken the same route, the

route alone was not evidence of a military affiliation. I I

The court erred by failing to require independent evidence

corroborating Mr. al-Alwi's statements. See, e.g., Stephens, 482 F.3d at 673;

I United States v. Bryce, 208 F.3d 346, 356 (2d Cir. 2000) (noting "absence of

I corroboration by independent evidence"); United States v. Fearn, 589 F.2d

1316, 1326 (7th Cir. 1978) (holding "[t]here was no substantial, or even

I slight evidence, other than the admission"); In re R.A.B., 399 A.2d 81, 83-84

I (D.C. Ct. App. 1979) (running from crime scene, when not linked to crime

I itself, was not independent corroboration of confession). Because the record

I does not contain sufficient corroborative evidence of Mr. al-Alwi's

statements, which on their own are unreliable, this Court should reverse the

I judgment and remand for reconsideration of the remaining evidence. 18

I I I 18 Mr. al-Alwi recognizes that this Court has already foreclosed or not

I

considered various issues that he raised in the district court, including: (1) whether a preponderance of the .evidence standard of proof isI constitutionally adequate; (2) whether hearsay is admissible, even with indicia of reliability; and (3) whether detention authority exists under the law of war for "substantial support." However, Mr. al-Alwi respectfully preserves these issues for possible future review.

I SECRETHNOFORN

I 64 UNCLASSIFIEDffFOR PUBLIC RELEASE



I I CONCLUSION

I For the foregoing reasons, this Court should vacate the judgment of

the district court and remand for a new hearing and a meaningful

I opportunity for Mr. aI-AIwi to challenge his indefinite imprisonment.

I Dated: August 9, 20 I0

I Respectfully submitted, .. ~ ."., .,-. _.~ ~_.=:::>

I ~ --Rarnzi Kassem

I Zachary Katznelson

I Main Street Legal Services, Inc. City University ofNew York School of Law 65-21 Main Street

I Queens, NY 11367 (718) 340-4558

I

William 1. Murphy John J. Connolly MURPHY & SHAFFER LLC 36 S. Charles St., Suite 1400 Baltimore, Maryland 21201 (410) 783-7000

Counsel for Petitioner-Appellant Moath Hamza Ahmed al-Alwi

I I I I I I I

SECftE3'F/f!',Ofi'O~




I I I I STATUTORY ADDENDUM

I Authorization for the Use ofMilitary Force (AUMF) Pub. L.No. 107-402(a), 115 Stat. 224 (Sep. 18,2001)

I I I I I I I I I I I I I I UNCLASSIFIEDIIFOR PUBLIC RELEASE


I I

115 STAT. 224 I I I I

Sept. 18, 2001

[S.J. Res. 23]

I I I I

Authorization for

I Use of Military Force. 50 USC 1541 note.

I President.

I I I I I I I


PUBLIC LAW 107--40-SEPT. 18,2001

Public Law 107-40 107th Congress

Joint Resolution To authorize the use of United States Armed Forces against those responsible

for the recent attacks launched against the United States.

Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and

Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and

Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and

Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and

Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it

Resolued by the Senate and House of Representatiues of the United States ofAmerica in Congress assembled,

SECTION 1. SHORT TITLE.

This joint resolution may be cited as the "Authorization for Use of Military Force". SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) IN GENERAL.-That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, 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 States by such nations, organizations or persons.

(b) WAR POWERS RESOLUTION REQUIREMENTS.(1) SPECIFIC STATUTORY AUTHORIZATION.-Consistent with

section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.




I I I PUBLIC LAW 107-4O-SEPT. 18,2001 115 STAT. 225

I (2) APPLICABILITY OF OTHER REQUIREMENTS.-Nothing in

this resolution supercedes any requirement of the War Powers Resolution.

Approved September 18, 2001.

I I I I I I I I I I I LEGISLATIVE HISTORY-S.J. Res. 23 m.J. Res. 64):

CONGRESSIONAL RECORD, Vol. 147 (2001): Sept. 14, considered and passed Senate and House.

WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 37 (2001): Sept. 18, Presidential statement.I o

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I 32(a)(7)(B) because this brief contains 13985 words, excluding the parts of

I the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). As permitted by Fed.

I R. App. P. 32(a)(7)(B), the undersigned has relied upon the word count

I feature of this word processing system in preparing this certificate.

The brief has been prepared in proportionally-spaced typeface using

I Microsoft Word 2002 in l4-point Times New Roman font.

I ----J2iI .~~

Main Street Legal Services, Inc. City University ofNew York

I I School of Law

65-21 Main Street Queens, NY 11367 (718) 340-4558

I I I I I I I I UNCLASSIFIEDffFOR PUBLIC RELEASE



I I CERTIFICATE OF SERVICE

I hereby certify that on this 9th day of August, 2010, I caused two

I copies of the foregoing brief and one copy of the Joint Appendix to be

I served via the Court Security Officer on counsel for the government at the

I following address:

I Robert M. Loeb Sarang Damle

I U.S. Department ofJustice Civil Division, Appellate Staff 950 Pennsylvania Avenue, N.W. I Washington, DC 20530-0001

I I I I I I I I I I I




I I I I I I I I I I I I I I I I I I I UNCLASSIFIEDIIFOR PUBLIC RELEASE


Documents

UNCLASSIFIEDIIFOR PUBLIC RELEASE I CO....UNCLASSIFIEDIIFOR PUBLIC RELEASE . I . I . There are several cases that present similar issues currently pending in . I . this Court. These