Fawzi Khalid Al Odah v. United States ( 2010 )

s
f
V x i t ~ S ate5 aourf of appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 6,2010 Decided June 30,2010
FAWZIKHALIDABDULLAH
FAHAD ODAH,DETA~NEE
AL AND
KEIALED ODAH,
AL NEXTFRIEND OF FAWZI
KHALID
ABDULLAH
FAHAD ODAH,
AL
APPELLANTS
UNITEDSTATES AMERICA, AL.,
OF ET
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(NO. 1:02-cv-00828-CKK)
David J. Cynanzon argued the cause for appellants. With
him on tlne briefs were Mattlzew J. Maclean and Tlzol~zasG.
Alleiz.
Clzarles W Scarborough, Attorney, U. S. Department of
Justice, argued the cause for appellees. With hiin on the brief
were Ialz Heath Gershengom, Deputy Assistant Attori~ey
General, and Robert M. Loeb, Attomey. Atigtist E. Flentje,
Attomey, entered an appearance.
Before: SENTELLE,
Clzief Judge, ROGERSand GARLAND,
Circuit Judges.
Opinion for the Court filed by Clzief Judge SENTELLE.
SENTELLE, Chief Judge: Fawzi Khalid Abdullah Fahad a1
Odah, a detainee at Guailtanamo Bay, Cuba, and his next friend
appeal from the district court's denial of his petition for a writ
of habeas corpus. Appellants contend that the preponderance of
the evidence standard employed by the district court is
unconstitutioi~al. That argument is foreclosed by precedent.
Appellants hrther coiltend that the district court erred in
admitting hearsay evidence. Again, controlling precedent is
against them. Lastly, they argue that the evidence is insufficient
to show that a1 Odah was "part o f ' a1 Qaeda and Taliban forces.
We hold that the evidence is sufficient to support the district
court's finding. Accordingly, we affirm the district court's
denial of a1 Odah's petition for a writ of habeas corpus.
I. BACKGROUND
The legal framework that governs habeas petitions from
detainees held at Guantanaino Bay, Cuba has been thoroughly
explained in Al-Bihani v. Obama, 590 F.3d 866, 869 (D.C. Cir.
2010)andAwadv.Obama,No.09-5351, F.3d ,slipop.
at 2-3 (D.C. Cir. June 2, 2010). As relevant to this appeal,
Boullzediene v. Bush, 128 S. Ct. 2229 (2008), held that federal
courts have jurisdiction over habeas petitions from individuals
detained at Guantanamo Bay, Cuba. The Azrtlzorizationfor Use
o Militaly Force, Pub. L. No. 107-40, 115 Stat. 224 (200 1)
f
("AUMF"), provides:
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
orgailizations or persons, in order to prevent any future
acts of international terrorisin against the United
States by such nations, organizatioils or persons.
This gives the United States government the authority to detain
a persoil who is found to have been "part o f ' a1 Qaeda or Taliban
forces. See Awad, slip op. at 19; Al-Bihani, 590 F.3d at 871-72;
see also Barhounzi v. Obanza, No. 09-5383, F.3d , slip
op. at 12-14 (D.C. Cis. June 11,2010).
A. Factual Background
Fawzi Khalid Abdullah Fahad a1 Odah ("a1 Odah") was born
ill Kuwait City, Kuwait in 1977. In August of 2001, a1 Odah
traveled to Afghanistan. A1 Odah, a teacher, contends that he
went there to do charity work and teach the Koran to the poor
and needy for two weeks before the start of his next school year.
The government coiltends that a1 Odah's purpose in making the
trip was to join the Taliban in its fight against the Northern
Alliance.
On August 13,2001, a1 Odah paid cash for a one-way ticket
and flew from Kuwait to Dubai, United Arab Emirates. The next
day, he paid cash for a one-way ticket and flew froin Dubai to
Karachi, Pakistan. A1 Odah stayed in Karachi for a day or two,
and then paid cash for a one-way ticket and flew from Karachi
to Quetta, Pakistan. A1 Odah then traveled by car froin Quetta,
Pakistan to Spill Buldak, Afghanistan.
Buldak, a1 Odah met with a man named
was an official wi bail government. A1
Odah claii~zsthat he inet with seeking guidance on
where he could teach the Koran. The United States asserts that
a1 Odali sought out a Taliban official to find information on
joining a1 Qaeda and the Taliban. A1 Odah contends that
Etook him around the countryside to teach at several
schools in the area. The government argues, and tlie district
court found, that this contention was not credible because a1
Odah could not provide tlie names of ally of the students he
taught, the names of any of the schools at which he taught, or the
naines of aiiy of his fellow teachers.
-
After some period of time, took a1 Odali to a
Taliban-run camp for a day. While at this camp, a1 Odah admits
that he engaged in target shooting with a Kalashnikov AK-47
rifle. At some point (exactly when is unclear), a1 Odah then
traveled with from Spin Buldak to Kandahar.
A1 Odali was in Kandahar on the day of tlie September 11,
2001 terrorist attacks. After September 11, on 'S
recoi~lmendation, Odali rented a car and drove from Kandaliar
a1
to Logar Province, Afghanistan. A1 Odali argues that he made
this trip to try to stay safe and get out of Afghanistan. The
governillent points out that if a1 Odah felt unsafe, he could have
left Afghanistan more quickly by retracing the route by which he
arrived.
While in Logar Province, a1 Odah sought out
man recommei~ded b y . The evidence
a1 Odah stayed in Logar Province a t ' s home, free of
charge, for about a month. A1 Oda
passport, and other documents with . There is no
evidence as to what a1 Odah did during this month.
After his time in Logar Province, a1 Odali, at
suggestion, traveled to Jalalabad, Afghanistan. In Ja
Odah stayed with a man named . There were a
number of other people staying in s house. Some of
the inen there carried weapons. A1 Oda11 stayed at 'S
out ten days. At some point during these ten days,
gave a1 Odah a Kalashnikov AK-47 rifle.
A1 Odah the11 left Jalalabad and, on foot, headed through the
White Mountains in the Tora Bora region. He traveled with a
group of about 150 men, some of whom were armed. A1 Odah
carried his AK-47 with him throughout this journey. The group
wit11 which a1 Odah was traveling was attacked by US and allied
air strikes, but a1 Odah himself was never injured.
When a1 Odah reached the Afghanistan-Pakistan border, he
was detained by Pakistani guards. The exact date he was
detained is disputed, but it was sometime between mid-
November and mid-December 2001. At the time of his capture,
a1 Odah still had his AK-47 wit11 him. A1 Odah was transferred
to US custody, and has been detained at Guantanaino Bay, Cuba
since early 2002.
Since a1 Odah's initial detention, additional incriminating
evidence has come to light.
Additionally, a1 Odah's
name and phone number appeared on a document on a1 Qaeda's
official website.
- - - -
Lastly, a1 Odah's passport, which he left with
in Logar Province, was later recovered from an a1 Qaeda
safehouse in Kar an. Also at this safehouse, an
individual nained was captured.
B . Procedural Background
On May 1,2002, a1 Odah, through his next friend, Khaled a1
Odah, along wit11 eleven other Guantanamo Bay detainees filed
a petition for a writ of habeas corpus in the United States District
Court for the District of Columbia. Since then, the liabeas
petitions have been the subject of extended litigation involving
jurisdictional questions. See Rasul v. Bush, 215 F. Supp. 2d 55
(D.D.C. 2002); Al-Odah v. United States, 321 F.3d 1134 (D.C.
Cir. 2003); Rasul v. Bush, 542 U.S. 466 (2004); In re
Guantananzo Detainee Cases, 355 F. Supp. 2d 443 (D.D.C.
2005); Bounzediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007);
Bou~nediene Bush, 128 S. Ct. 2229 (2008). After Bou~nediene
v.
v. Bush established that the district court had jurisdiction to hear
a1 Odah's petition, the court considered a1 Odali's petition on the
merits.
After receiving the government's factual return and the
parties' various filings, the district court held a three-day
hearing. On August 24,2009, the district court denied a1 Odah's
petition for a writ of habeas corpus. A1 Odah v. United States,
648 F. Supp. 2d 1 (D.D.C. 2009).
In Hanzdi v. Runzsfeld, 542 U.S. 507, 533-34 (2004)
(plurality op.), the Supreme Court said:
[Tlhe exigencies of the circumstances may demand
that, aside from these core elements, enemy-
combatant proceedings may be tailored to alleviate
their uncommon potential to burden the Executive at
a time of ongoing military conflict. Hearsay, for
example, may need to be accepted as the most
reliable available evidence from the Governi~lentin
such a proceeding.
Relying upon this language from the Supreme Court, the district
comt stated that it would allow the use of hearsay by both
parties. 648 F. Supp. 2d at 4-5. The district judge reasoned
"[tlhe Court is fully capable of considering whether a piece of
evidence (whether hearsay or not) is reliable . . . ." Id. at 5. The
court denied the government's motion to have its evidence
admitted with a presumption of accuracy and authenticity. Id.
at 5-6. The court then discussed how intelligence documents can
be unreliable. Id. With regards to a1 Odah's motion to exclude
certain pieces of evidence, the court declined to do so, and
instead held that "the better approach is to make such
determinations after considering all of the evidence in the record
and hearing the parties' arguments thereto . . . . Accordingly, the
Court's consideration of the evidence proffered by the parties
shall encompass inquiries into authenticity, reliability, and
relevance." Id. at 6.
The court held that the government had the burden of
demonstrating by a preponderance of the evidence that a1 Odah
was lawfully detained. Id. at 8. It further held that the President
had the authority under the AUMF to detain a1 Odah if the
government established according to that evidentiary standard
that he was "part o f ' the Taliban, a1 Qaeda, or associated enemy
forces. Id. at 6-7.
In weighing the evidence, the court found that a1 Odah had
not offered any credible explanation for his trip to Dubai en route
to Afghanistan. Id. at 8-9. It also found that a1 Odah's travels
through Afghanistan contradicted his other statements that his
intention was only to teach in Afghanistan for two weeks. Id. at
9. The court also found that a1 Odah's offered reason for going
to Afghanistan lacked credibility because although he claimed lie
taught at schools in Afghanistan for two weeks, he was unable to
provide the names of the places where he taught, the names of
any of his fellow teachers, or the names of ally of his students.
Id. at 9-10. The court discussed evidence that the travel route
used by a1 Odah was a comlnon travel route for those going to
Afghanistan to join the Taliban. Id. at 9- 10. It found "that this
record supports a reasonable inference that A1 Odah may have
also been traveling to Afghanistan to engage in jihad, and not to
teach the poor and needy for two weeks." Id. at 10.
The district court also found that the reasons a1 Odah offered
for not leaving Afghanistan immediately after September 11
lacked credibility and were not consistent with his other
statements. Id. at 11-12. The court found that a1 Odah's pattern
of staying at houses and his surrendering of his passport were
consistent with a1 Qaeda and Taliban operating procedures. Id.
at 12. The court recounted the time line of a1 Odah's travels, and
found that his capture occurred on or around December 18,200 1,
id. at 12-13, a date that corresponds with the Battle of Tora Bora,
which occurred between approximately December 6 and 18,
2001.
The court noted that a1 Odah's statements failed to account
for one inontl~ his time in Afghanistan. Id. at 13. It stated that
of
a1 Odah's explanation for why he was traveling through the Tora
Bora nzountains was not credible. Id. at 13-14. The district court
wrote that the "evidence reflects that A1 Odah made a conscious
choice to ally himself with the Taliban instead of extricating
himself from the country." Id. at 15. The court found, based on
-
this evidence, that it was "more likely than not that A1 Odah
became part of the Taliban's forces." Id.
The court noted that there was other evidence presented
(eyewitness identification of a1 Odah and
,)- but that it did not need to
consider that evidence because it had already found that the
Government had presented adequate factual information to meet
its burden by a preponderance of the evidence to show that a1
Odah was "part o f ' a1 Qaeda and the Taliban. Id. at 15,11. 17.
The court also made an additional finding that the camp that
a1 Odah attended where he engaged in the target shooting with
the AK-47 was "more likely than not A1 Farouq," a terrorist
training camp. Id. at 16. The court discussed similarities in
geography and operation between the camp a1 Odah attended and
the A1 Farouq camp. Id. The court noted the fact that there was
a trainer at A1 Farouq who went by the name ,which was
very siinilar to the name of the Taliban official from whom a1
Odah followed directions for several weeks. Id. at 16-17. It also
noted similarities between the physical descriptions of the two.
Id. at 17. The court then concluded
that the Government has met its burden based on the
evidence in the record without specifically identifying
that the Taliban-run camp attended by A1 Odah was,
in fact, A1 Farouq. Nevertheless, the Court also finds
that it is more likely than not that the camp was A1
Farouq, which also makes it more likely than not,
when combined wit11 the other evidence in t l ~ record,
e
that A1 Odah became a part of the forces of the
Taliban and a1 Qaeda.
Id. at 18. On September 8, 2009, a1 Odah filed a notice of
appeal.
11. ANALYSIS
A1 Odah challenges the procedure followed by the district
court in admitting evidence and the sufficiency of the evidence
to support its findings and judgment. Because the procedural
issues inform our analysis of the sufficiency questions, we shall
address the procedural challenges first.
A. Procedural Challenges
A1 Odah makes two procedural challenges. As we noted
above, the district court held both that the government had to
meet its burden by a preponderance of the evidence and that it
would admit hearsay evidence subject to review for reliability.
A1 Odah argues that the preponderance of the evidence standard
is unconstitutional and that the district court cannot admit
hearsay evidence unless it complies with the Federal Rules of
Evidence. We review a1 Odah's challenge to the evidentiary
standard de novo because it is a question of law. See Awad, slip
op. at 17; Al-Bihani, 590 F.3d at 870. Our review of the district
court's admission of evidence, including its admission of hearsay
evidence, is for abuse of discretion. See United States v. Bailey,
3 19 F.3d 5 14,5 17 (D.C. Cir. 2003); Morrison v. Int'l Programs
Consortium, Inc., 253 F.3d 5, 9 (D.C. Cir. 2001). We can
dispatch both of these assignments of error in short order.
A1 Odah argues that the government can deprive a person of
his liberty only if it meets its evidentiary burden by clear and
convincing evidence. But this argument fails under binding
precedent in this circuit. It is now well-settled law that a
preponderance of the evidence standard is constitutional in
considering a habeas petition from an individual detained
pursuant to authority granted by the AUMF. See Awad, slip op.
at 17-18 ("A preponderance of the evidence standard satisfies
constitutional requirements in considering a habeas petition from
a detainee held pursuant to the AUMF."); Al-Biha~zi, F.3d at
590
878 ("Our narrow charge is to determine whether a
preponderance standard is unconstitutional. Absent more
specific and relevant guidance, we find no indication that it is.");
see also Barhounzi, slip op. at 11 (holding that under circuit
precedent "a preponderance of the evidence standard is
constitutional in evaluating a habeas petition from a detainee
held at Guantanarno Bay, Cuba," and that the detainee's
argument that "the Government should have been required to
establish that [he] is lawfully detained under a standard of at
least clear and convincing evidence" is "foreclosed by circuit
precedent") (internal quotation marks omitted).
A1 Odah's second procedural argument fares no better. He
argues that the Federal Rules of Evidence and the habeas corpus
statute, 28 U.S.C. 5 2241 et seq., restrict the situations in which
a district court may admit hearsay evidence in considering a
petition from a person detained pursuant to the AUMF. The law
is against him. As we quoted above, the Supreme Court in
Hamdi stated that "[hlearsay . . . may need to be accepted as the
most reliable available evidence from the Government" in this
type of proceeding. 542 U.S. at 533-34. We applied the
teachings of Hanzdi in Awad, in which we explicitly held that
"[Tlhe fact that the district court generally relied on items of
evidence that contained hearsay is of no consequence. To show
error in the court's reliance on hearsay evidence, the habeas
petitioner must establish not that it is hearsay, but that it is
unreliable hearsay." Slip op. at 11; see also Barhoumi, slip op.
at 10 (holding that under circuit precedent, "hearsay evidence is
admissible in this type of habeas proceeding if the hearsay is
reliable") (internal quotation marks omitted); Al-Bihani, 590
F.3d at 879 ("[Tlhe question a habeas court must ask when
presented wit11 hearsay is not whether it is admissible . . . but
what probative weight to ascribe to whatever indicia of reliability
it exhibits.").
Whether a piece of evidence is hearsay is not at issue in this
appeal. Rather, we review the decision of the district court as to
whether the hearsay is reliable. The government offered reasons
why its hearsay evidence had indicia of reliability, and the court
considered the reliability of the evidence in deciding the weight
to give the hearsay evidence. For example, in considering
interrogation reports of a third party concerning a1 Qaeda and
Taliban travel routes into Afghanistan, the court noted that this
hearsay was corroborated by "multiple other examples of
individuals who used this route to travel to Afghanistan for the
purpose of jihad." 648 F. Supp. 2d at 10. The court indicated
that it was aware of the limitations of this evidence when it
concluded that "[allthough far froin conclusive, the
Government's evidence suggests that an individual using this
travel route to reach Kandahar may have done so because it was
a route used by some individuals seeking to enter Afghanistan
for the purpose of jihad." Id. This is exactly the analysis of
hearsay which we subsequently approved in Al-Bihani and Awad.
The district court correctly applied the law, and therefore, there
was no abuse of its discretion.
Having thus rejected a1 Odah's two procedural challenges,
we proceed to his challenges to the sufficiency of the evidence.
B. Sufficiency of the Evidence
A1 Odah argues that the evidence submitted to the district
court was insufficient to establish that he was "part o f ' a1 Qaeda
and Taliban forces. A1 Odah has a heavy burden to meet to have
this court reverse the district court's factual findings that are the
underpinnings of its deterrnination. As we have recently stated
in an appeal with an identical procedural context:
We review a district court's factual findings for clear
error, regardless of whether the factual findings were
based on live testimony or, as in this case,
documentary evidence. See Anderson v. City o f
Bessemer, 470 U.S. 564, 572 (1985). "We further
note that '[tlhis standard applies to the inferences
drawn from findings of fact as well as to the findings
themselves. "' Overby v. Nat '1 Ass 'n o Letter
f
Carriers, 595 F.3d 1290, 1294 (D.C. Cir. 2010)
(quoting Halberstanz v. Welch, 705 F.2d 472, 486
(D.C. Cir. 1983) (alteration in Overby). "A finding is
'clearly erroneous' when although there is evidence
to support it, the reviewing court on the entire record
is left with the definite and firm conviction that a
mistake has been committed." Boca Investerings
Partnership v. US., 3 14 F.3d 625, 629-30 (D.C. Cir.
2003) (quoting United States v. United States Gypsum
Co., 333 U.S. 364, 395 (1948)). But "[ilf the district
court's account of the evidence is plausible in light of
the record viewed in its entirety, the court of appeals
may not reverse it . . . Where there are two
permissible views of the evidence, the factfinder's
choice between them cannot be clearly erroneous."
Overby, 595 F.3d at 1294 (quoting City ofBessen?er,
470 U.S. at 573-74) (omission in Overby).
Awad, slip op. at 10.
A1 Odah makes several challenges to individual pieces of
evidence. In considering these challenges to the individual
pieces of evidence, we must keep in mind that the purpose of our
inquiry is to determine whether, overall, the district court's
finding was supported by sufficient evidence. See Awad, slip op.
at 10-11 ("We will begin with Awad's challenges to the
individual items of evidence. In evaluating these challenges, we
do not weigh each piece of evidence in isolation, but consider all
of the evidence taken as a whole.").
A1 Odah argues that the district court made several errors in
not adopting his understanding of the facts and in drawing
inferences unfavorable to him from the undisputed evidence. A1
Odah defends his following instructions froin . He
argues that while I was a Taliban official, he was a
civilian official and not part of the Taliban's military. A1 Odah
argues that it was reasonable for him, a foreigner in a strange
country at a time of war, to seek out and follow the advice of
knowledgeable locals. But this argument asks the court to ignore
all the other evidence in the case. What matters is not only the
formal positioil of in the Taliban government, but
what kind of instructions he gave that a1 Odah followed.
t o o k a1 Odah to a camp where he trained on a Kalashnikov
AK-47 rifle. I instructions on where to
gave a1 Odah
go after the September 11,2001 attacks. A1 Odah followed I
' s instructions to go to a house. At this house, a1 Odah
gave the person in charge of this house his passport and major
possessions, which was standard a1 Qaeda and Taliban operating
procedures. gave a1 Odah instructions on where to
receive weapons training, where to go after the September 11
terrorist attacks, where he could stay for free, and introduced him
to people from whom he acquired an AK-47. For several
months, a1 Odah followed instructions of a military nature from
a member of the Taliban. We uphold the district court's
rejection of a1 Odah's attempt to put an innocuous gloss over
these undisputed facts.
A1 Odah also argues that it was not nefarious for him to
carry a rifle while in Afghanistan. A1 Odah argues that rifles
were common in Afghanistan, and that he carried the AK-47 for
self defense. Again, a1 Odah is asking this court to examine this
single piece of evidence in isolation. A1 Odah did not simply
possess a weapon. Rather, the evidence shows that , -
a Taliban official, took a1 Odah to a Taliban-run camp to train on
an AK-47 rifle. then provided a1 Odah a
recoinmendation to find a person, who subsequently introduced
him to another person who gave a1 Odah the same type of AK-47
rifle as that on which he trained. A1 Odah the11 carried this rifle
for days during an armed march through the Tora Bora
mountains, a march during which a1 Odah and his fellow
travelers were attacked by US and allied warplanes.
A1 Odah argues that the district court was also in error to
fault him for not leaving Afghanistan immediately after
September 11,2001, and that the district court failed to consider
that he was stuck in a foreign country trying to do the best he
could in a chaotic situation. But the district court considered
exactly that. It considered, and rejected, a1 Odah's argument that
he chose what he thought was the quickest way to leave the
country. It found that when a1 Odah had a choice to head out of
the country or to stay, he consistently chose to remain in
Afghanistan following directions of a member of the Taliban.
A1 Odah further argues that there are benign reasons why
someone would not travel with his passport while in
Afghanistan. Perhaps there may be valid reasons for such
behavior, but the district court considered this fact in the context
of all the evidence in the case and found it to be incriminating.
It was not clear error for the district court to do so.
We have considered, and rejected, a1 Odah's challenges to
the individual pieces of evidence. The only remaining question
is whether all the evidence before the district court was sufficient
to support its finding that a1 Odah was "part of' the Taliban and
a1 Qaeda forces. To simply recite the evidence and the
inferences the district court drew therefrom is to answer the
question in the affirmative regardless of the standard of review
we use. See Awad, slip op. at 17 ("Determining whether Awad
is 'part o r a1 Qaeda is a mixed question of law and fact.
Whether our review of the district court's finding on this
question is de novo or for clear error does not matter in this case
because the evidence is so strong.").
A1 Odah traveled to Afghanistan on a series of one-way
plane tickets purchased with cash in a manner consistent with
travel patterns of those going to Afghanistan to join the Taliban
and a1 Qaeda. Once in Afghanistan, a1 Odah sought out a
Taliban official. This Taliban official led a1 Odah for a month
doing we know not what, but culminated in the Taliban official
taking a1 Odah to a Taliban-run camp to train on an AK-47 rifle.
After the September 11, 200 1, terrorist attacks, I told
a1 Odah where he should go and who he should seek out to help
him. A1 Odah did what I recommended to him. He
gave up his passport and other possessions, and obtained an AK-
47 rifle, as he stayed with several individuals over several
months. He then went on a march through the Tora Bora region
for ten days with 150 men, some of whom, including a1 Odah,
were armed. This march was attacked by US and allied
warplanes.
A1 Odah attempts to rebut the government's case only by
presenting a gloss of innocent activity over several of the
undisputed facts. The district court considered all the evidence,
rejected a1 Odah's explanation of the evidence, and held that a1
Odah was "part o f ' a1 Qaeda and Taliban forces. There was no
error in this finding, under either a de novo or clear error
standard of review.
The district court had before it further evidence that
supported the correctness of its conclusion. The district court did
not need to rely upon this further evidence because of the weight
of the other evidence, but it mentioned the existence of the
evidence, and we note it to emphasize that it is further support
for the district court's finding.
discovered in an a1 Qaeda safehouse. Two other individuals
have identified a1 Odah as a Taliban and a1 Qaeda member. All
this evidence is above and beyond what is necessary for us to
affirm the district court's coilclusion that a1 Odah was "part o f '
a1 Qaeda and Taliban forces.
The district court's alternative basis for finding that a1 Odah
was "part of' a1 Qaeda and Taliban forces was that he trained at
the A1 Farouq training camp. A1 Odah raises several challenges
to the factual findings underlying this conclusion by the district
court. But as we have upheld the district court's finding that a1
Odah was "part o f ' a1 Qaeda and the Taliban by his activities in
Afghanistan separate from the allegations that the camp he
attended was A1 Farouq, we do not need to consider this issue.
Once the government has established by a preponderance of the
evidence that a1 Odah was "part of' a1 Qaeda and Taliban forces,
the requirements of the AUMF are satisfied and the government
has authority to detain a1 Odah.
111. CONCLUSION
The law of this circuit is that a preponderance of the
evidence standard is constitutional in considering a habeas
petition from an alien detained pursuant to authority granted by
the AUMF. Awad, slip op. at 17-18. Decisions of this court and
of the Supreme Court have established that in this type of habeas
proceeding, hearsay evidence is admissible if it is reliable. In
our review of the record, we see strong support for the district
court's finding that a1 Odah was "part of' a1 Qaeda and Taliban
forces in the fall of 2001. Accordingly, we affirm the district
court's denial of a1 Odah's petition for a writ of habeas corpus.
So ordered.