Sufyian Barhoumi v. Barack Obama ( 2010 )

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FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 20, 2010 Decided June 11, 2010
No. 09—5383
SUFYIAN BARHOUMI, DETAINEE,
APPELLANT
BARACK OBAMA, PRESIDENT OF THE UNITED STATES, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(N0. 1:05-cv—01506-RMC)
Scott S. Barker argued the cause for appellant. With him
on the briefs were Jonathan S. Bender, Danielle R. Voorhees,
and Shayana Kadz'dal.
Sharon Swingle, Attorney, US. Department of Justice,
argued the cause for appellee. With her on the brief were Ian
Heath Gershengorn, Deputy Assistant Attorney General, and
Robert M Loeb, Attorney. Jonathan H. Levy, Attorney,
entered an appearance.
2
Before: GINSBURG, TATEL, and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Sufyian Barhoumi, a detainee held
at the US. naval base in Guantanamo Bay, Cuba, appeals the
district court’s denial of his petition for a writ of habeas
corpus. The district court found that Barhoumi was “part of”
an al-Qaida-associated force engaged in hostilities against the
United States or its coalition partners and was therefore
lawfully detained under the Authorization for Use of Military
Force. Barhoumi contends that the court erred as a matter of
law in admitting hearsay diary evidence and in applying a
preponderance of the evidence standard of proof. These
arguments, however, are foreclosed by prior decisions of this
court. Barhoumi further argues that even if the diary evidence
was admissible, the district court erred in relying on it and in
concluding that the evidence showed that he was “part of” an
associated force. Finding no reversible error, we affirm.
I.
In response to the September 11, 2001, terrorist attacks
on the Pentagon and World Trade Center, Congress enacted a
joint resolution authorizing the President “to use all necessary
and appropriate force against those nations, organizations, or
persons he determines planned, authorized, committed, or
aided the terrorist attacks” 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.” Authorization for Use of Military
Force (AUMF), Pub. L. No. 107-40, § 2(a), 115 Stat. 224,
224 (2001) (reprinted at 50 U.S.C. § 1541 note). Shortly
thereafter, the President ordered US. military forces to invade
Afghanistan, where the Taliban regime had been harboring al—
Qaida.
11
Comm ’n v. FERC, 522 F.3d 378, 390 (DC. Cir. 2008). Thus,
to show that the district court erred in considering the diary
evidence, Barhoumi must “establish not that it is hearsay, but
that it is unreliable hearsay”—a question that we address in
Part III, below. Awad, slip 0p. at 11.
Preponderance 0f the Evidence
In Boumedz'ene, the Supreme Court stated that the “extent
of the showing required of the Government in these
[Guantanamo habeas] cases is a matter to be determined.”
128 S. Ct. at 2271. Filling that void, the CMO provides that
the “government bears the burden of proving by a
preponderance of the evidence that the petitioner’s detention
is lawful.” CMO, 2008 WL 4858241 at *3. Barhoumi
challenges the district court’s use of this standard, arguing
that the “Government should have been required to establish
that Barhoumi is lawfully detained under a standard of at least
clear and convincing evidence.” Appellant’s Br. 32—33.
This argument is also foreclosed by circuit precedent. In
Al—Bihanz’, the detainee similarly argued for “at least” a clear
and convincing evidence standard, while the government
argued for a preponderance standard. Al—Bz‘hani, 590 F.3d at
878. We concluded that “the govemment’s argument stands
on more solid ground,” stating: “Our narrow charge is to
determine whether a preponderance standard is
unconstitutional. Absent more specific and relevant
gmidance, we find no indication that it is.” Id.
Barhoumi attempts to recast this language as mere dicta,
but again, that argument is barred by Awad. There the panel
interpreted Al-Biham‘ as holding that “a preponderance of the
evidence standard is constitutional in evaluating a habeas
petition from a detainee held at Guantanamo Bay, Cuba.”
Awad, slip op. at 17. That resolves the question here as well.
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III.
This brings us to Barhoumi’s factual challenge. He
argues that even if the diaries are admissible hearsay, the
district court should have disregarded them on the ground that
they are inherently unreliable. He further asserts that the
government failed to establish that he was “part of’ an
associated force and that the district court therefore erred in
denying his habeas petition. In resolving these claims, our
job is aided considerably by several key points of agreement
that serve to narrow the issue before us.
To begin with, as Barhoumi’s counsel acknowledged at
oral argument, Barhoumi does not challenge the detention
standard advanced by the government and adopted by the
district court: the President has authority, pursuant to the
AUMF, “to detain persons who were part of[,] or
substantially supported, Taliban or al Qaida forces or
associated forces that are engaged in hostilities against the
United States or its coalition partners, including any person
who has committed a belligerent act or has directly supported
hostilities in aid of such enemy armed forces.” Hr’ g Tr. at 4.
Nor does Barhoumi dispute that Zubaydah’s militia qualifies
as an “associated force” that engaged in hostilities against
US. or coalition forces. The only dispute, then, is whether
Barhoumi was, as the district court found, “part of”
Zubaydah’s organization.
The parties also agree on our standard of review. “We
review the district court’s findings of fact for clear error, its
habeas determination de novo, and any challenged evidentiary
rulings for abuse of discretion.” Al-Bihani, 590 F.3d at 870
(internal citations omitted). Determining whether a detainee
was “part of ’ an associated force is a mixed question of law
and fact. Awad, slip op. at 17. That is, whether a detainee’s
alleged conduct—cg, visiting an al-Qaida guesthouse or
training at an al—Qaida camp—justifies his detention under the
13
AUMF is a legal question. Cf Al—Bihani, 590 F.3d at 873 n.2.
The question whether the government has proven that
conduct—cg, whether he in fact stayed at an al—Qaida
guesthouse or trained at an al-Qaida campwis a factual
question that we review for clear error.
When reviewing for clear error, we may not reverse a
trial court’s factual findings “even though convinced that had
[we] been sitting as the trier of fact, [we] would have weighed
the evidence differently.” Anderson v. Bessemer City, 470
U.S. 564, 574 (1985). Rather, we ask whether, “on the entire
evidence,” we are “left with the definite and firm conviction
that a mistake has been committed.” Id. at 573 (quoting
United States v. US. Gypsum Co., 333 US. 364, 395 (1948))
(internal quotation marks omitted). We apply this deferential
standard, moreover, “even when the district court’s findings
do not rest on credibility determinations, but are based instead
on physical or documentary evidence or inferences from other
facts.” Id. at 574. In evaluating a challenge to a district
court’s factual findings, “we do not weigh each piece of
evidence in isolation, but consider all of the evidence taken as
a whole.” Awad, slip op. at 11. Equally well settled, the
preponderance of the evidence standard “simply requires the
trier of fact to believe that the existence of a fact is more
probable than its nonexistence before [she] may find in favor
of the party who has the burden.” Concrete Pipe & Prods,
Inc. v. Constr. Laborers Pension Trust, 508 US. 602, 622
(1993) (internal quotation marks omitted).
Given this common ground, the ultimate and relatively
narrow question we must answer here is this: did the district
court commit reversible error in finding that it is more likely
than not that Barhoumi was “part of’ Zubaydah’s associated
force? To answer that question, we first address the evidence
advanced by the government in support of Barhoumi’s
detention. As we shall explain, that evidence is sufficient to
sustain the district court’s decision, provided—and this is the
14
central issue in this case—that the al-Suri diary is sufficiently
reliable. Applyn'ng the reliability requirement set forth by this
court in Parhat v. Gates, 532 F.3d 834 (DC. Cir. 2008), we
conclude that the district court did not clearly err in relying on
the diary.
Evidence Supporting Barhoumi ’s Detention
In support of his challenge to the district court’s
determination that the evidence showed that he was “part of ’
an associated force, Barhoumi argues that the district court
improperly relied on a “guilt-by—association theory”
predicated on its observation that “the travel pattern of Mr.
Barhoumi as he describes it, is consistent with the travel
pattern of Mr. Zubaydah and Mr. a1 Suri.” Appellant’s Br.
37; Hr’g Tr. at 5. Membership in an “associated force,”
Barhoumi argues, cannot be established by “evidence that the
person’s movements and activities were similar to the
movements of individuals who are known to be affiliated with
al—Qaida or Taliban forces.” Reply Br. 15 (quoting
Appellees’ Br. 30) (internal quotation marks omitted).
Likewise, Barhoumi asserts, “mere sympathy for or
association with an enemy organization does not render an
individual a member” of that associated force. Appellant’s
Br. 36 (quoting Hamlily v. Obama, 616 F. Supp. 2d 63, 75
(D.D.C. 2009)) (internal quotation marks omitted). Rather,
the “key inquiry” is “whether the individual functions and
participates within or under the command structure of the
organization—Le, whether he receives and executes orders or
directions.” Id. (quoting Hamlily, 616 F. Supp. 2d at 75)
(internal quotation marks omitted). According to Barhoumi,
the record is devoid of any evidence that Barhoumi “was a
member of Zubaydah’s purported ‘army,’ much less within
the command structure,” or that he “received or executed any
orders from Zubaydah, al—Suri or any other ‘member’ of
Zubaydah’s army.” Id. at 37.
15
Although this court has yet to delineate the precise
contours of the “part of” inquiry—a legal issue—we need not
do so here because we conclude that even under the test
espoused by Barhoumi, the district court committed no error
in determining that it is more likely than not that he was “part
of” Zubaydah’s militia. Cf. Awad, slip op. at 19 (noting that
the AIHVIF contains no requirement that a detainee be “part
of’ the “command structure” of al-Qaida). That is because in
focusing exclusively on the travel pattern evidence, Barhoumi
ignores other probative evidence put forth by the government
that supports the district court’s finding that he was “part of”
Zubaydah’s organization.
To begin with, Barhoumi was captured along with
Zubaydah at the Faisalabad guesthouse, a fact he
acknowledges. Barhoumi also acknowledges that he trained
at the Khaldan camp, though at oral argument Barhoumi’s
counsel challenged the govemment’s claim that the Khaldan
camp was linked to Zubaydah. The sole support for that
connection, according to counsel, is a “Background
Declaration” prepared by a senior intelligence analyst from
the Defense Intelligence Agency regarding “Terrorist
Training Camps.” This declaration, prepared on September
19, 2008, for use in “federal court litigation,” provides an
overview of alleged training camps in Afghanistan and states
that “[w]hile the Khaldan camp was not an al—Qaida facility,
Abu Zubaydah had an agreement with bin Ladin to conduct
reciprocal recruiting efforts whereby promising trainees at the
Khaldan camp . . . could join al-Qaida if desired.” According
to Barhoumi’s counsel, this declaration suffers from the same
defect as did the intelligence reports deemed unreliable in
Parhat, namely that “there’s no information contained in that
paragraph from which the court can assess the reliability of
the information contained in the document.” Oral Arg. Tr. at
9.
16
We shall have more to say about Parhat shortly. For
now, however, it suffices to point out that, contrary to
counsel’s argument, the government did put forth additional
record evidence in support of its assertion regarding
Zubaydah’s role at the Khaldan camp. Specifically, an FBI
report prepared in May 2001 describes interrogation
statements made by Ahmed Ressam, a Khaldan trainee who
was subsequently convicted in federal district court for his
role in the “Millennium” plot to detonate explosives at Los
Angeles International Airport on December 31, 1999. See
generally United States v. Ressam, 593 F.3d 1095 (9th Cir.
2010) (describing circumstances of Ressam’s conviction).
Ressam told his interrogators that _ was “the overall
leader of Khalden and Deronta Camps” and that there “is no
one to whom — must report in terms of a
superior.” He further described _ as “an associate of
[Usama bin Laden]” who “coordinates and cooperates with
[bin Laden] in the conduct of training and trainee movements
between — camps and [bin Laden] camps.”
Consistent with this report, Ressam later testified in the
federal trial of an alleged coconspirator in the Millennium
bomb plot that Zubaydah is “the person in charge” of the
Khaldan camp and who “takes care of the expenses of the
camps” under his authority. Trial Tr. at 547, United States v.
Haouarz', No. 00-15 (S.D.N.Y. July 3, 2001). Thus, unlike
the “bare assertions” at issue in Parhat, 532 F .3d at 847, the
government’s assertion here that Zubaydah ran the Khaldan
camp is backed up by testimony from a self-professed
Khaldan trainee who, in proceedings having nothing to do
with Barhoumi and which predated the September 11, 2001,
attacks, attested to Zubaydah’s connection to Khaldan.
Barhoumi’s exclusive focus on the sufficiency of the
travel pattern evidence also overlooks what is perhaps the
most probative record evidence that he was in fact “part of”
Zubaydah’s associated force. On the last page of his diary,
al-Suri lists fifteen members of Zubaydah’s militia and
17
describes each person’s role in the group. The relevant
portion of this passage reads as follows:
Sayf Al-‘Adil and Abu Muhammad Al-Masri and
those with them are trying to take over this group,
especially Tariq, and benefit from us and lead us to
join Shaykh ‘Usama Bin Laden. Tariq told me that
if anything happened to him, we should join Sayf Al—
‘Adil to be under his wing and that of Al-Qa’ida.
The Group is:
1- Tariq: Abu Zubaydah Al-Filastini: The
commander
2- Myself, Abu Kamil Al—Suri: Permanent
***
8- ‘Ubaydah Al—Jaza’iri: Permanent
Mat:
12- ‘Abdullah Al Muslim . . . . Hatib and ‘Abdullah
are undergoing training at this time on electronics by
‘Ubaydah Al-Jaza’iri and will leave us to go inside
(Afghanistan) and to work with explosives and
electronic[s] . . . for the brothers inside. The brothers
will depend on both of them in the future for
operations against the Americans inside of
Afghanistan, God is willing.
“Tariq” is the name al-Suri uses to refer to Zubaydah
throughout the diary, and, as noted above, the district court
found that “Ubaydah Al-Jaza’iri” refers to Barhoumi. Thus,
contrary to Barhoumi’s assertion that the government failed to
put forth “any” evidence that he “was a member of
Zubaydah’s purported ‘army,’” Appellant’s Br. 37, the al—Suri
diary—a veritable membership list—expressly states that
Barhoumi (referred to by his alias Ubaydah al-Jaza’iri) was 21
“Permanent” member of Zubaydah’s militia and that he was
18
providing explosives training to other members intending to
fight US. forces in Afghanistan.
Dismissing this portion of the diary as merely
aspirational, Barhoumi’s counsel stated, “if you look at that
diary entry, that was a hypothetical about what might happen
in the future. It wasn’t a description of a present fact.” Oral
Argument Tr. at 76—77. True, several portions of the excerpt
reflect future intent—for example, al—Suri’s statement that the
two militia members trained by Barhoumi “will leave us” to
use explosives against Americans operating in Afghanistan.
The rest of the passage, however, speaks to the present. It
reports that “[t]he Group is” made up of the identified
members, including Ubaydah al-Jaza’iri, who is described as
a “Permanent” militia member. (Emphasis added.) And it
states that “Hatib and ‘Abdullah are undergoing training at
this time on electronics by ‘Ubaydah Al-Jaza’iri.” (Emphasis
added.) Far from a mere “prediction about what might
happen in the future,” Oral Arg. Tr. at 77, this portion of al—
Suri’s diary describes the status of Zubaydah’s group as it
then existed.
Counsel further insisted that the al—Suri diary “arguably
doesn’t mention our client” at all, and that the “Ubaydah Al—
Jaza’iri,” referred to as a “Permanent” member of Zubaydah’s
group, is “not necessarily our client.” Oral Arg. Tr. at 15.
Although Barhoumi never squarely presses this argument in
his appellate briefs, we think the issue, critical as it is, merits
our full consideration.
There is no doubt that Barhoumi went by the alias
Ubaydah al-Jaza’iri, which in Arabic means Ubaydah “the
Algerian.” Barhoumi concedes as much. In his district court
filings, Barhoumi, who is in fact Algerian, referred to himself
as “Sufyian Barhoumi, a/k/a Abu Obaida, Ubaydah al
Jaza’iri, and Shafiq,” Pet’r’s Pub. Traverse to the Gov’s
Return to the Pet. for Habeas Corpus at 2, Barhoumi v.
19
Obama, Misc. No. 05-1506 (D.D.C. Feb. 13, 2009), and
Barhoumi told his interrogators that he was known as
Ubaydah when staying at various guesthouses in Afghanistan
and Pakistan. The only question, then, is whether the
“Ubaydah Al-Jaza’iri” referenced in al-Suri’s diary refers to
Barhoumi, or to some other Ubaydah al-Jaza’iri.
We think record evidence amply supports the district
court’s conclusion that “Ubaydah Al-Jaza’iri” and Barhoumi
are one and the same person: al-Suri’s diary refers to
“Ubaydah” as returning to the Pakistan guesthouse where al-
Suri and Zubaydah were staying, and, shortly thereafter,
Zubaydah and Barhoumi were in fact captured together in the
same Pakistan guesthouse raid; al-Suri’s diary refers to
“Ubaydah Al-Jaza’iri” as an explosives expert, and Barhoumi
admitted to receiving instruction in the use and diffusion of
landmines at multiple training camps; al-Suri’s diary
describes “Ubaydah” as “one of the trainers at Khaldun,” and
Barhoumi concedes that he trained at the Khaldan camp
(though not that he was a trainer there). Barhoumi’s theory—
that he is not the “Ubaydah” referred to in al-Suri’s diary—
therefore must rest on the premise that there was a second
Algerian staying with Zubaydah at the same Pakistan
guesthouse who, like Barhoumi, also went by the alias
Ubaydah al-Jaza’iri, was at the Khaldan camp, and trained in
the use of landmines or explosives. Without hazarding a
guess as to the probability of such a coincidence, we have
little difficulty concluding that the district court did not
clearly err in finding that “Ubaydah Al-Jaza’iri’b—
Barhoumi’s admitted alias—in fact refers to Barhoumi.
In sum, then, record evidence shows (1) that Barhoumi
trained at the Khaldan camp, which was associated with
Zubaydah; (2) that he was later captured along with Zubaydah
in the same Pakistan guesthouse; and (3) that he functioned as
a “Permanent” member of Zubaydah’s group who provided
explosives training to other militia members “for operations
20
against the Americans inside of Afghanistan.” This evidence
shows more than “mere sympathy” toward Zubaydah’s
organization: al-Suri’s diary singles him out as a member of
that organization, actively engaged in training other members.
Hamlily, 616 F. Supp. 2d at 75 (quoting Gherebi v. Obama,
609 F. Supp. 2d 43, 68 (D.D.C. 2009)). This certainly
qualifies as “function[ing] and participat[ing] within or under
the command structure of the organization,” id., and, contrary
to Barhoumi’s argument, amounts to more than just “guilt by
association” based on an “attenuated correlation in his travel
patterns with Zubaydah and the mysterious al-Suri,”
Appellant’s Br 37. We therefore conclude that all of this
evidence, if reliable—a question we turn to in the next
section~—is sufficient to sustain the district court’s
determination that the United States is lawfully detaining
Barhoumi under the AUMF.
In reaching this conclusion, we emphasize that we have
not relied on -’s diary. This obviates the need to
determine whether, as Barhoumi contends, that diary is
unreliable by virtue of _’s alleged mental illness, or
whether, as the government argmes, the _ and al-Suri
diaries serve to corroborate each other. Nor have we relied on
interrogation statements made by another detainee, Benyam
Muhammad, who identified Barhoumi as “Ubaida” and stated
that Barhoumi was providing “Abu Muslim” and “Hatit” with
electronics training at the Faisalabad guesthouse, but whom
Barhoumi asserts is an unreliable source because he was
allegedly rendered abroad and tortured some time prior to
making these statements.
Reliability 0fthe al-Suri Diary
Although under Al—Bz‘hani and Awad hearsay evidence is
always admissible in Guantanamo habeas proceedings, such
evidence must be accorded weight only in proportion to its
reliability. See Al—Bihani, 590 F.3d at 879 (“[T]he question a
3
This case concerns Sufyian Barhoumi, who was captured
during the ensuing hostilities and has, pursuant to the AUMF,
been held at the US. naval base in Guantanamo Bay, Cuba,
for the last eight years. A 37-year-old Algerian citizen,
Barhoumi left Algeria after completing high school and
travelled throughout northern Africa and Europe, ultimately
settling in London, where he lived for about two years. At his
Combatant Status Review Tribunal (CSRT) and
Administrative Review Board (ARB) hearings, Barhoumi
recounted that while in London he attended a mosque where
he saw films depicting Russian atrocities committed against
Muslims in Chechnya. Inspired by these films, Barhoumi
travelled to Karachi, Pakistan, and then to Jalalabad,
Afghanistan, where he trained to fight alongside the Chechens
in their struggle against the Russian government.
By his own admission, Barhoumi trained at several
military camps in Afghanistan. In 1999, he trained at a camp
located between Jalalabad and Kabul, where he received
instruction in the use of rifles, small arms, and landmines.
While practicing mine diffusion, he lost four fingers and
badly damaged his thumb when a landmine he had unearthed
exploded in his left hand. After recovering from his injuries,
Barhoumi trained at another camp, Khaldan, from 1999 to
2000. Located in the Khowst region of eastern Afghanistan,
the Khaldan camp was associated with Abu Zubaydah, a
reputed terrorist leader who commanded his own fighting
force and who figures prominently in this case. Although the
Khaldan camp was not an al-Qaida facility, a government
intelligence report states that Zubaydah had agreed with
Usama bin Laden to coordinate training efforts and allow
Khaldan recruits to join al-Qaida. According to the report,
21
habeas court must ask when presented with hearsay is not
whether it is admissible—it is always admissible—but what
probative weight to ascribe to whatever indicia of reliability it
exhibits”). Barhoumi contends that the al—Suri diary is
unreliable and that the district court therefore clearly erred in
considering it. In pressing this argument, Barhoumi leans
heavily on Parhat. Although we agree with Barhoumi that
Parhat sets the guideposts for our inquiry into the reliability
of the hearsay diary evidence, we disagree with his
characterization of that case and with his assertion that Parhat
dictates that the al-Suri diary is inherently unreliable.
In Parhat, we reviewed a CSRT determination that the
petitioner, a Chinese citizen of Uighur ethnicity, qualified as
an enemy combatant because he was affiliated with a Uighur
independence group “associated” with al-Qaida and the
Taliban. The Tribunal’s conclusion rested almost entirely on
hearsay statements contained in four classified intelligence
documents—one from the State Department and three from
the Department of Defense—regarding activities allegedly
undertaken by the independence group. Although the CSRT
procedures allowed for consideration of hearsay evidence, the
intelligence documents relied on by the CSRT merely
described activities as “having ‘reportedly’ occurred, [and] as
being ‘said to’ or ‘reported to’ have happened.” Parhat, 532
F.3d at 846. The documents did not state “who ‘reported’ or
‘said’ or ‘suspected’ those things. Nor [did] they provide any
of the underlying reporting upon which the documents’
bottom—line assertions [were] founded.” Id. at 846—47.
Explaining that these deficiencies precluded both the Tribunal
and the court from assessing the reliability of the assertions
made in those documents, we set aside the CSRT’s enemy
combatant determination, thus rejecting “the govemment’s
contention that it can prevail by submitting documents that
read as if they were indictments or civil complaints, and that
simply assert as facts the elements required to prove that a
22
detainee falls within the definition of enemy combatant.” Id.
at 850,
According to Barhoumi, the al—Suri diary, like the
intelligence reports at issue in Parhat, lacks sufficient indicia
of reliability to justify the district court’s decision to rely on
it. But the problem with the intelligence reports at issue in
Parhat was that they failed to provide “any of the underlying
reporting upon which the documents’ bottom-line assertions
are founded,” thus inhibiting our ability to evaluate the
reliability of those assertions. Id. at 846—47. Here, the diary,
more than 65 pages of detailed observations recorded by a
self—professed associate of both Zubaydah and Barhoumi, is
the underlying reporting on which the government’s
assertions are founded. Thus, unlike the situation we faced in
Parhat, here we are “able to assess the reliability of [the]
evidence ourselves” by evaluating the diary’s internal
coherence as well as its consistency with uncontested record
evidence, including Barhoumi’s own statements and the
circumstances of his capture. 1d. at 848. Conducting that
assessment, which was not possible in Parhat, we conclude
that the al—Suri diary contains sufficient indicia of reliability
to justify the district court’s reliance on it.
To begin with, Barhoumi acknowledges that the diary
was recovered in the This provides
independent verification of al-Suri’s diary entry, just a few
days before their capture, that Zubaydah and Barhoumi were
staying in the same Pakistan guesthouse, which, again,
Barhoumi himself acknowledges. It also reduces any concern
that the diary is a government fabrication. Further reinforcing
its reliability, the diary refers accurately and in great detail to
verifiable real-world events. For example, the diary paints a
detailed portrait of the battle of Tora Bora, which al-Suri
correctly reports as having taken place in December 2001.
Al—Suri also makes reference to several key players in the
war: he alludes to injuries sustained by Dr. Ayman al-
23
Zawahiri when fleeing Tora Bora at bin Laden’s behest;
Mohamed Atta’s role as an “airplane hero” in the September
11, 2001, attacks; Mullah Omar’s efforts to reconstitute the
Taliban in the wake of the US. invasion; and the assumption
of the presidency by Hamid Karzai, whom al-Suri refers to as
a “carbon copy of the former King Zhahir Shah.” Of course,
we recognize that al—Suri could have discovered this
information from readily available news sources. Our only
point is that al-Suri’s lengthy and highly detailed descriptions
of real-world persons, places, and events tend to enhance the
credibility of the diary as a whole.
Furthermore, although it is true, as Barhoumi
emphasizes, that the government has provided no information
about al-Suri, the diary itself suggests that al-Suri possessed
first-hand knowledge of Zubaydah and his organization. Al-
Suri refers to himself as a “Permanent” member of
Zubaydah’s militia who, like Barhoumi, had trained at the
Khaldan camp. Al-Suri also demonstrates a familiarity with
Zubaydah’s activities—not just his comings and goings, but
also more intimate details such as where he sleeps and when
he shaves. Indeed, the circumstances of the diary’s
recovery
reinforces
the conclusion that al-Suri knew both Zubaydah and
Barhoumi, thus enhancing the credibility of his depiction of
Barhoumi’s role in Zubaydah’s organization.
Barhoumi’s own statements further buttress the diary’s
reliability. As noted above, Barhoumi admitted to being
trained in mine diffusion; the diary refers to him as an
explosives expert. Barhoumi admitted to training at the
Khaldan camp; the diary refers to him as “one of the trainers
at Khaldun.” The al-Suri diary is therefore a far cry from the
“bare assertions” deemed unreliable in Parhat, 532 F.3d at
847, as it possesses both endogenous and exogenous indicia
of reliability.
24
Challenging this conclusion, Barhoumi argues that
because the government chose to present the al-Suri diary as
part of a “raw” intelligence report, Parhat compels us to
conclude that it “‘lack[s] sufficient indicia of the statements’
reliability’ to be reliable.” Appellant’s Br. 28—29 (quoting
Parhat, 532 F.3d at 836). But nothing in Parhat establishes a
per se rule that information contained in an intelligence report
is inherently unreliable. Indeed, in Parhat we clarified that
“we do not suggest that hearsay evidence is never reliable—
only that it must be presented in a form, or with sufficient
additional information, that permits . . . [the] court to assess
its reliability.” 532 F.3d at 849. We also acknowledged that
an intelligence report’s reliability can be assessed by
comparison to “exogenous infonnation”—so long as such
information is, in fact, available. Id. at 848. Even though the
al—Suri diary is contained in an intelligence report, it
represents a discrete piece of physical evidence, and the
nature and reliability of that evidence is not altered just
because it bears the label “intelligence.”
Barhoumi also challenges the reliability of the al-Suri
diary by pointing to alleged inconsistencies with -’s
diary. As noted above, we have not relied on ’s
diary to accept the district court’s conclusion that the
evidence shows that it is more likely than not that Barhoumi
was “part of” Zubaydah’s organization. Nevertheless, we
cannot disregard Barhoumi’s claim of inconsistency, as any
significant discrepancy between the diaries could serve to
undermine the credibility of al—Suri’s diary as a whole.
The primary inconsistency identified by Barhoumi
relates to the diaries’ passages concerning Barhoumi’s alleged
return from Tora Bora. The district court concluded that both
diaries tell essentially the same story: that Barhoumi returned
from Tora Bora and reported that 300 “brothers” engaged in
battle there. The court made this assumption even though the
relevant portion of —’s diary referred simply to a
25
“brother” as arriving from Tora Bora, while al-Suri cited
“Ubaydah” as making that trip. Barhoumi complains that the
government’s assertion that the two diaries refer to “the same
person is pure speculation because _” provides
neither a name nor any “other identifying information for the
‘brother.”’ Reply Br. 10. Reinforcing this argument,
Barhoumi points out that, as the district court recognized,
these diary entries are dated roughly three weeks apart:
-’s is dated January 30, 2002; Al-Suri’s is dated
February 21, 2002.
We agree with Barhoumi that three weeks is too large a
mismatch to support the district court’s conclusion that the
diary entries depict the same event. That said, al—Suri’s diary
includes another description of a “brother” arriving from Tora
Bora that is more in line with _’s entry. Dated
February 4, 2002, the al-Suri diary entry reports that “[a]fter
breakfast, our brother Sulman al-Najdi (who came from Tora
Bora) told us about a battle he witnessed.” Recounting the
battle, al—Najdi reported that the “bombardment was
accompanied with malicious attacks by the spiteful, the
hypocrite and the collaborator Shi’a and the tribe of ((Hadrat
‘A1i)) who still is causing worries to the Taliban in
Jalalabad.” This report is similar to -’s, dated just
five days earlier, which recounts that the “brother” who came
from Tora Bora described “the betrayal of some tribes and
apostate commanders, such as (Hadrat Ali), may God afflict
him with what he deserves,” In other words, both
and al-Suri seem to recount the same story about a “brother”
who arrived from Tora Bora and detailed the perceived
betrayal suffered there at the hands of a hostile tribe—and
that “brother” is not Barhoumi. Under this interpretation,
then, the date discrepancy between the - and al—Suri
entries describing the 300 fighters who remained at Tora Bora
does nothing to undermine the reliability of al—Suri’s account;
the dates differ simply because, as Barhoumi himself
suggests, the reports stem from different sources. Only the al—
26
Suri diary refers to Barhoumi as arriving from Tora Bora, and
_’s diary contains nothing that contradicts that
account.
Barhoumi’s remaining challenge to the reliability of the
al—Suri diary is somewhat more troubling. He argues that the
govemment’s refusal to make available a facsimile of the al-
Suri diary in its original Arabic or to provide any information
as to the qualifications or motives of its translator raises
further doubts as to its reliability. In support, Barhoumi cites
to a line of cases concerning the “language conduit rule,”
which holds that “except in unusual circumstances, an
interpreter is no more than a language conduit and therefore
his translation does not create an additional level of hearsay.”
United States v. Martinez—Gaytan, 213 F.3d 890, 892 (5th Cir.
2000) (internal quotation marks omitted). Some courts have
carved out a “narrow exception” to this rule “where the
particular facts of a case cast significant doubt upon the
accuracy of a translated confession.” United States v.
Vidacak, 553 F.3d 344, 352 (4th Cir. 2009) (internal
quotation marks omitted). Contending that this is just such a
case, Barhoumi suggests that the same underlying reliability
concerns that cause some courts to deem a translation to be
hearsay means that the translation of al-Suri’s diary is
unreliable. We disagree.
As an initial matter, we note that the language conduit
rule pertains to the question whether a translation, usually of a
party—opponent’s statements, creates an additional level of
hearsay and is thus inadmissible unless the translator testifies
in court. Here, however, we have already crossed that bridge:
the al—Suri diary is unquestionably hearsay, but nonetheless
admissible as a matter of law pursuant to Al—Biham' and
Awad. The question in this case, then, is not a binary one—
admissibility vs. inadmissibility—but rather concerns the
degree of reliability exhibited by the diary. Although we
accept that the additional layer of hearsay added by the
27
diary’s translation renders it somewhat less reliable than it
otherwise would be (particularly if the government had
provided information regarding its translation), we
nonetheless reject Barhoumi’s contention that the district
court therefore clearly erred in relying on the diary.
The only translation deficiencies alleged by Barhoumi
spring from translator notations appearing in the section of
the diary discussing Ubaydah Al-Jaza’iri’s description of his
flight from Tora Bora. One such notation states as follows:
“(TN: The following subparagraph presents text from the
page numbered 56 by the Author. The page is undated, but
seems to be a continuation of the entry begun on 21 February
in subparagraph (ZZ) above)”. In part because these
notations reflect some uncertainty as to whether the passage
in question comes immediately after the report that Ubaydah
arrived from Tora Bora, Barhoumi contends that there “is no
indication whatsoever in the al—Suri Diary that the person
describing the battle [in the subsequent passage] was
‘Ubaydah,”’ nor “that the person providing the report
participated in the battle.” Reply Br. 13; see also Oral Arg.
Tr. at 39—40 (suggesting that “gaps in the diaries” cast doubt
on the Tora Bora account). But we need not accept the
government’s assertion that Barhoumi fought at Tora Bora to
sustain the district court’s conclusion that Barhoumi was “part
of” Zubaydah’s militia; as Barhoumi himself concedes, it is
sufficient for the government to show that he was “part of” an
“associated force” engaged in hostilities against US. or
coalition forces. See Al—Bihani, 590 F.3d at 872 (explaining
that under the “part of” criterion, the President can lawfully
detain “an individual who was part of . . . Taliban or al Qaeda
forces, or associated forces that are engaged in hostilities
against the United States or its coalition partners” (internal
quotation marks omitted)). Thus, although it seems clear to
us that the person describing the battle in al—Suri’s diary was
in fact “Ubaydah,” any lack of clarity on that score is
immaterial.
28
More generally, we reject Barhoumi’s suggestion that the
translator’s forthrightness regarding uncertainties surrounding
the date of particular diary entries somehow taints the
reliability of the diary as a whole. If our analysis of the
district court’s decision rested on al—Suri writing a particular
passage on a particular date, the absence of a date on that
page of the diary might well have significance. But al-Suri’s
statement that Barhoumi is a “Permanent” member of
Zubaydah’s militia is inculpatory regardless of the date on
which that statement was made, and Barhoumi gives us little
reason to suspect—nor does he even argue—that the
translator erred in translating this portion of the diary.
Indeed, Barhoumi’s only argument regarding the
“membership list” passage is that the district court erred in
concluding that he is the “Ubaydah Al—Jaza’iri” referred to in
that entry—an argument we reject above.
We understand Barhoumi’s frustration about the
government’s steadfast refusal to provide any information
regarding al-Suri or the circumstances surrounding the
translation of his diary. Ultimately, however, our charge is to
determine whether, based on the entirety of the evidence, the
district court clearly erred in relying on the diaryhnot
whether we would have accorded it different weight had we
been sitting as trier of fact. See Awad, slip op at. 1415
(considering “whether the district court, in light of all of the
evidence, made an erroneous finding that [the detainee] was
‘part of” al Qaeda”). The diary was recovered in the
; its
author displays first-hand knowledge of both Zubaydah and
Barhoumi, as well as the operations of Zubaydah’s militia;
and the diary bears numerous consistencies with Barhoumi’s
own uncontested testimony and verifiable real~w0rld events.
Given this, and notwithstanding some of the legitimate
concerns raised by Barhoumi, we cannot say that we are “left
with the definite and firm conviction that a mistake has been
committed” by the district court in relying on the al-Suri
29
diary. Anderson, 470 US. at 573 (internal quotation marks
omitted).
IV.
For the reasons set forth above, we detect no reversible
error in the district court’s finding, based on the al-Suri diary,
Barhoumi’s uncontested testimony, and the circumstances of
his capture, that it is more likely than not that Barhoumi was
“part of” an al-Qaida-associated force and therefore properly
detained pursuant to the AUMF. We therefore affirm the
district court’s denial of Barhoumi’s petition for a writ of
habeas corpus.
S0 ordered.
4
At the Khaldan camp, Barhoumi received additional
small arms training, as well as instruction in tactical
movement, navigation, artillery, mortars, radio
communication, and military tactics used in Chechnya.
Barhoumi left Khaldan in May 2000, but unable to make it to
Chechnya——crossing the border apparently proved too
dangerous—Barhoumi shuttled between a series of
guesthouses in Kabul, Khandahar, and Jalalabad. Although
the government claims he provided military training to others
at these guesthouses, Barhoumi denied doing so, insisting that
he spent this time teaching children the Koran and Arabic.
Barhoumi admitted that he received additional antipersonnel
mine instruction at another training camp during this period,
though he later backtracked, claiming that he trained at only
two military camps in Afghanistan, not three.
After US. and coalition forces commenced military
action in Afghanistan, Barhoumi decided to leave the country.
At some point in late fall of 2001 (the precise timing is
disputed), Barhoumi fled Afghanistan through the mountains
into Pakistan, initially staying at a guesthouse in Waziristan,
the mountainous region along the border, and then moving on
to various guesthouses in Peshawar and Lahore. In his ARB
hearing, Barhoumi testified that he travelled to a guesthouse
in Faisalabad, Pakistan, in February 2002. Approximately ten
days after he arrived there, Pakistani police officers raided the
house and arrested him—along with Abu Zubaydah, who was
also staying at the Faisalabad guesthouse. In May 2002, the
US. military took Barhoumi into custody and transferred him
to Guantanamo, where he has been detained ever since. Abu
Zubaydah is also being held at the Guantanamo naval base.
In July 2005, Barhoumi filed a petition for a writ of
habeas corpus in the US. District Court for the District of
Columbia. Although the district court granted the
government’s motion to dismiss on the ground that section 7
of the Military Commissions Act of 2006 (MCA), 28 U.S.C. §
5
2241(e), deprived the court of jurisdiction over habeas claims
brought by aliens detained as enemy combatants, it later
vacated that dismissal in light of the Supreme Court’s
decision in Boumediene v. Bush, 128 S. Ct. 2229 (2008).
There the Supreme Court held that the constitutional privilege
of habeas corpus extends to aliens detained at Guantanamo
and struck down the MCA’s jurisdiction-stripping provision
as an unconstitutional suspension of the writ.
Following Boumediene, the judges of the district court,
meeting in executive session, decided to coordinate
proceedings in most Guantanamo habeas cases, including
Barhoumi’s. In re Guantanamo Bay Detainee Ling, Misc.
No. 08-442 (D.D.C. July 2, 2008). On November 6, 2008,
Judge Hogan, the coordinating judge, issued a Case
Management Order governing the consolidated proceedings.
In re Guantanamo Bay Detainee Litig, Misc. No. 08-442,
2008 WL 4858241 (D.D.C. Nov. 6, 2008) (“CMO”). The
CMO provided, among other things, that (1) individual judges
hearing habeas corpus petitions may admit and consider
hearsay evidence, and (2) the government bears the burden of
proving by a preponderance of the evidence that the
petitioner’s detention is lawful. 1d,, 2008 WL 4858241 at *3.
Ruling from the bench, the district judge hearing
Barhoumi’s petition explained that the AUMF authorized the
President “to detain persons who were part of[,] or
substantially supported, Taliban or al Qaida forces or
associated forces that are engaged in hostilities against the
United States or its coalition partners, including any person
who has committed a belligerent act or has directly supported
hostilities in aid of such enemy armed forces.” Hr’ g Tr. at 4,
Barhoumi v. Obama, No. 05-1506 (D.D.C. Sept. 3, 2009).
Applying this standard, the court concluded that Barhoumi
was properly detained and therefore denied his habeas
petition.
6
In reaching this conclusion, the district court relied on
Barhoumi’s own testimony in the CSRT and ARB
proceedings, as well as on two diaries recovered at the
The first of these diaries was authored by
The second was written by one Abu
Kamil al-Suri, who claimed in his diary to be a member of
Zubaydah’s militia. Although the record does not contain the
al-Suri diary itself, it does contain an intelligence report that
includes an English translation of the diary. In his diary, al-
Suri described staying in a guesthouse in Pakistan along with
Zubaydah and a person identified as “Ubaydah Al-Jaza’iri,”
which the district court concluded referred to Barhoumi, who
had admitted to using that alias. The court observed that “the
travel pattern of Mr. Barhoumi[,] as he describes it, is
consistent with the travel pattern of Mr. Zubaydah and Mr. a1
Suri,” as described in the - and al-Suri diaries: “each
of them started in Afghanistan, crossed mountains into
Pakistan, moved through Pakistan, went to Lahore and ended
up in Faisalabad where they were arrested together.” Id. at 5.
The district court also relied on the two diaries’
descriptions of fighting at Tora Bora, the cave complex in the
mountains of eastern Afghanistan where Taliban and al—Qaida
fighters—reportedly including bin Laden—holed up after the
commencement of hostilities and were besieged by US. and
coalition forces. According to _’s diary, after the
beginning of the war Zubaydah fled to Waziristan to help
fighters escape from Tora Bora. Al—Suri recounts in his diary
that “[i]n the evening, ‘Ubaydah Al-Jaza’iri, one of the
trainers at Khaldun[,] came in from Tora Bora” and reporte
that “300 of the brothers were gathered” there. _’s
diary similarly refers to “one of our brothers who came from
(Tora Bora)” and who reported that “300 brothers” fought
there. Given the consistency of these diary entries, the district
court determined that Barhoumi was in fact the person
7
referred to in both diaries as coming from Tora Bora to the
Pakistan guesthouse where Zubaydah was staying.
Based on all this evidence, the district court concluded
that Barhoumi was “part of” Zubaydah’s militia—an
“associated force that was engaged in hostilities against the
United States or its coalition partners”—and therefore
lawfully detained pursuant to the AUMF. Hr’ g Tr. at 12.
Barhoumi now appeals the district court’s denial of his habeas
petition. In considering this appeal, we have benefitted from
the superb briefs and excellent oral argument by counsel for
both parties.
II.
We begin with two threshold legal issues. Barhoumi
argues that the district court erred in admitting into evidence
the al-Suri and - diaries, which are hearsay. See
FED. R. EVID. 801(0). He further argues that the district court
should have applied a clear and convincing evidence standard
of proof rather than a preponderance standard. We consider
each issue in turn.
The Diaries
Barhoumi contends that in admitting the diaries, the
district court adjudicating his habeas petition failed to comply
with the CMO, which set forth the following procedures
regarding the admission of hearsay evidence:
On motion of either the petitioner or the government,
the Merits Judge may admit and consider hearsay
evidence that is material and relevant to the legality
of the petitioner’s detention if the movant establishes
that the hearsay evidence is reliable and that the
provision of nonhearsay evidence would unduly
burden the movant or interfere with the
8
government’s efforts to protect national security.
The proponent of hearsay evidence shall move for
admission of the evidence no later than 7 days prior
to the date on which the initial briefs for judgment
on the record are due.
CMO, 2008 WL 4858241 at *3 (internal citation omitted).
Barhoumi points out that the government never timely filed a
motion specifically requesting admission of the diaries, as
required by the CMO. Rather, the government submitted a
memorandum in which it made general assertions regarding
the admission and reliability of hearsay evidence in all the
Guantanamo detainee cases, but made no mention of the
diaries or any other evidence in specific connection to
Barhoumi’s factual return. Later, after the deadline
established in the CMO had passed, the government filed a
motion in Barhoumi’s case to supplement the record with the
diaries. The district court admitted all the hearsay evidence,
including the two diaries, explaining:
Because these Guantanamo proceedings are unique
and difficult, I have decided to receive and consider
all of the evidence offered by both sides, but have
assessed it item by item for consistency[,] the
conditions in which the statements were made and
the documents found. The personal knowledge of
the declarant and the levels of hearsay. I have given
the evidence the weight I think it deserves.
Hr’g Tr. at 4.
Barhoumi argues that the district court’s decision
violated the CMO not only because the government failed to
timely move to admit the diary evidence (according to
Barhoumi, the generic hearsay memorandum, though timely,
failed to qualify as a motion to admit the diaries), but also
because the government never demonstrated that “the
9
provision of nonhearsay evidence would unduly burden the
movant or interfere with the government’s efforts to protect
national security,” as the CMO required. CMO, 2008 WL
4858241 at *3. Quoting the Federal Circuit, Barhoumi states
that “parties must understand that they will pay a price for
failure to comply strictly with scheduling and other orders,
and that failure to do so may properly support severe
sanctions and exclusions of evidence.” Appellant’s Br. 20
(quoting 02 Micro Int ’1 Ltd. v. Monolithic Power Sys., Inc,
467 F.3d 1355, 1369 (Fed. Cir. 2006)) (internal quotation
marks omitted); see also Rosario—Diaz v. Gonzalez, 140 F .3d
312, 315 (lst Cir. 1998) (“[L]itigants have an unflagging duty
to comply with clearly communicated case-management
orders”). Given this, Barhoumi argues, the district court’s
alleged failure to comply with the CMO in and of itself
constitutes grounds for reversal. We disagree.
Although the cases Barhoumi cites hold that parties have
a duty to comply with case management orders, he cites no
authority for the proposition that judges are required to follow
their own*much less another judge’s—case management
order. In any event, the CMO governing the Guantanamo
habeas cases expressly authorizes judges assigned to
adjudicate habeas petitions to “alter the framework [set out in
the CMO] based on the particular facts and circumstances of
their individual cases.” CMO, 2008 WL 4858241 at *1 n.l.
That is precisely what the district court did here. Citing the
“unique and difficult” circumstances inherent in the
Guantanamo proceedings, the district court decided—after
giving Barhoumi an opportunity to respond to the
govemment’s motion to supplement the record—that the
circumstances of Barhoumi’s case justified admitting all
hearsay evidence. Hr’ g Tr. at 4. Other district judges have
made the same determination in similar circumstances. See,
e.g., Awad v. Obama, 646 F. Supp. 2d 20, 23 (D.D.C. 2009)
(receiving all evidence offered by either side but assessing it
“item-by—item for consistency, the conditions in which
10
statements were made and documents found, the personal
knowledge of a declarant, and the levels of hearsay”). We
therefore conclude that the district court did not abuse its
discretion in departing from the CMO’s procedural
framework regarding the admissibility of hearsay. See Potter
v. District of Columbia, 558 F.3d 542, 546 (DC. Cir. 2009)
(case management decisions reviewed for abuse of
discretion).
Barhoumi next contends that irrespective of the district
court’s fidelity to the CMO, the court erred in admitting the
diaries absent a demonstration by the government that they
fall within an established hearsay exception in the Federal
Rules of Evidence. This argument, however, runs counter to
this court’s decision in Al-Bihani v. Obama, 590 F.3d 866(DC. Cir. 2010), another Guantanamo habeas case in which
the detainee also challenged the district court’s admission of
hearsay evidence. Relying in part on the Supreme Court’s
suggestion in Hamdi v. Rumsfeld, 542 US. 507, 533—34
(2004), that hearsay “may need to be accepted as the most
reliable available evidence” in enemy combatant proceedings,
the court stated that “the question a habeas court must ask
when presented with hearsay is not whether it is admissible—
it is always admissible—but what probative weight to ascribe
to whatever indicia of reliability it exhibits,” AZ—Bihani, 590
F.3d at 879 (emphasis added).
Barhoumi seeks to sidestep this language by
characterizing it as mere dicta that is “neither binding nor
persuasive.” Appellant’s Br. 20. Since oral argument in this
case, however, another panel of this court has squarely
foreclosed his theory. In Awad v. Obama, No. 09-5351 (DC.
Cir. June 2, 2010), the panel explained that Al—Bihani stands
for the proposition that “hearsay evidence is admissible in this
type of habeas proceeding if the hearsay is reliable.” Id., slip
op. at 11. “We, of course, are without authority to overturn a
decision by a prior panel of this Court.” La. Pub. Serv.