Mashour Alsabri v. Barack Obama

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 24, 2011 Decided April 27, 2012
Reissued May 3, 2012
No. 11-5081
MASHOUR ABDULLAH MUQBEL ALSABRI,
PETITIONER-APPELLANT
v.
BARACK OBAMA , ET AL.,
RESPONDENTS-APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:06-cv-01767)
Brian J. Neff argued the cause for appellant. Donald A.
Klein was on the briefs.
Michael P. Abate, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were Tony
West, Assistant Attorney General, and Robert M. Loeb,
Attorney.
Before: GARLAND and KAVANAUGH , Circuit Judges, and
GINSBURG , Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GARLAND .
2
GARLAND , Circuit Judge: Petitioner Mashour Abdullah
Muqbel Alsabri, a detainee at the United States Naval Station at
Guantanamo Bay, Cuba, appeals the district court’s denial of his
petition for a writ of habeas corpus. For the reasons set forth
below, we affirm the judgment of the district court.1
I
The facts leading to the petitioner’s detention are
extensively chronicled in the district court’s opinion. See
Alsabri v. Obama, 764 F. Supp. 2d 60 (D.D.C. 2011). The
following synopsis relies on the district court’s most significant
findings.
Alsabri is a Yemeni citizen who was born and raised in
Saudi Arabia. He lived in Saudi Arabia until he was deported to
Yemen in 1998, following an arrest for allegedly harboring an
individual wanted for passport forgery. In Yemen, he associated
with veteran jihadist fighters, including members of al Qaeda,
and decided to travel to Afghanistan to fight with the Taliban or
al Qaeda. In the summer of 2000, he traveled to Afghanistan by
way of Pakistan, assisted by the Taliban and in the company of
several men who expressed a desire to become martyrs. Once
in Afghanistan, Alsabri stayed at several guesthouses affiliated
with the Taliban and al Qaeda. He actively sought out and
received military training from the Taliban or al Qaeda, and
thereafter -- with the authorization of one of Osama bin Laden’s
lieutenants -- traveled to the front lines of the Taliban’s fight
against the Northern Alliance.
1
All descriptions of facts and events are taken from unclassified
or declassified documents and briefs that are on the public record in
this case. There are no redactions from the opinion.
3
After leaving the front, Alsabri went to Jalalabad,
Afghanistan. As Coalition forces approached that city in late
2001, following al Qaeda’s September 11, 2001 attacks against
the United States, Alsabri fled eastward to a village near the
border of Afghanistan and Pakistan. There he says he remained
for nearly a month before crossing into Pakistan, where he was
captured by Pakistani authorities in early 2002. The Pakistanis
turned Alsabri over to the custody of the United States military,
and he was subsequently transferred to Guantanamo Bay.
In October 2006, Alsabri filed a petition for a writ of habeas
corpus. The petition was held in abeyance until the Supreme
Court ruled, in Boumediene v. Bush, that aliens detained as
enemy combatants at Guantanamo are “entitled to the privilege
of habeas corpus to challenge the legality of their detention,”
553 U.S. 723, 771 (2008), and that the federal courts have
jurisdiction over such challenges, id. at 791-92. In November
2010, the district court held a four-day habeas hearing.
Following the hearing, the court concluded, based on a
preponderance of the evidence, that “the petitioner was part of
the Taliban, al-Qaida or associated forces and is therefore
lawfully detained.” Alsabri, 764 F. Supp. 2d at 62; see id. at 96.
The court based its conclusion on five findings: (1) that Alsabri
traveled to Afghanistan for the purpose of fighting with the
Taliban or al Qaeda; (2) that once in Afghanistan he stayed at
multiple Taliban and al Qaeda guesthouses; (3) that he sought
and received military training from the Taliban or al Qaeda; (4)
that he traveled to the front lines of the Taliban’s battle against
the Northern Alliance; and (5) that he remained a part of the
Taliban, al Qaeda, or associated forces at the time of his capture.
On appeal, Alsabri raises several challenges to the district
court’s denial of his habeas petition. First, he disputes certain
factual findings by the district court, as well as its ultimate
conclusion that he was part of the Taliban, al Qaeda, or
4
associated forces. Second, he argues that the district court
committed procedural error in admitting certain pieces of
evidence over his objections. Finally, he maintains that the
court’s decision rests on several legal errors. We address
Alsabri’s factual disputes in Part II, his evidentiary objections in
Part III, and his legal arguments in Part IV.
II
Following al Qaeda’s attacks against the United States,
Congress passed the Authorization for Use of Military Force
(AUMF), which provides:
[T]he 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.
Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2001) (codified at 50
U.S.C. § 1541 note). We have held that the AUMF grants the
President the authority “to detain individuals who are ‘part of
forces associated with Al Qaeda or the Taliban.’” Khan v.
Obama, 655 F.3d 20, 23 (D.C. Cir. 2011) (quoting Al-Bihani v.
Obama, 590 F.3d 866, 872 (D.C. Cir. 2010)). Applying that
standard to the facts of this case, the district court held that “the
petitioner was part of the Taliban, al-Qaida or associated forces
and is therefore lawfully detained.” Alsabri, 764 F. Supp. 2d at
62.
The district court’s decision denying the writ presents a
mixed question of law and fact. See Khan, 655 F.3d at 26; Awad
5
v. Obama, 608 F.3d 1, 10 (D.C. Cir. 2010). We review the
court’s specific factual determinations about what happened --
why Alsabri traveled to Afghanistan, where he stayed, and what
he did -- for clear error, see Khan, 655 F.3d at 26; Barhoumi v.
Obama, 609 F.3d 416, 423 (D.C. Cir. 2010), which we may find
only if, “‘on the entire evidence,’ we are ‘left with the definite
and firm conviction that a mistake has been committed,’”
Barhoumi, 609 F.3d at 423 (quoting Anderson v. Bessemer City,
470 U.S. 564, 574 (1985)). The “question whether evidence is
sufficiently reliable to credit is [also] one we review for clear
error.” Al Alwi v. Obama, 653 F.3d 11, 19 (D.C. Cir. 2011); see
Khan, 655 F.3d at 26; Awad, 608 F.3d at 8. The district court’s
overall conclusion as to “whether a detainee’s alleged conduct
is sufficient to make him part of” the Taliban, al Qaeda, or
associated forces for purposes of the AUMF, however, is a
“legal question[] that we review de novo.” Khan, 655 F.3d at 26(internal quotation marks omitted); see Al Alwi, 653 F.3d at 16;
Barhoumi, 609 F.3d at 423.
A
We begin with the district court’s determination that Alsabri
traveled to Afghanistan for the purpose of fighting with the
Taliban or al Qaeda. The court based that determination on four
subsidiary findings regarding: (a) Alsabri’s association with
veteran jihadists while in Yemen; (b) the role of a former
Taliban fighter in encouraging Alsabri to travel to Afghanistan;
(c) the influence of a fatwa issued by two Saudi clerics; and (d)
Alsabri’s travel route and travel companions. Alsabri contests
various individual pieces of evidence underlying these findings,
but he does not dispute the greater part of the evidence on which
the district court relied. Indeed, the court’s findings are
6
supported primarily by Alsabri’s own admissions, which he has
not repudiated.2
Alsabri concedes that, at some point before traveling to
Afghanistan, he stayed for approximately two weeks at a
boardinghouse in Sana’a, Yemen with a group of veteran
fighters. At least two of them were members of the Taliban or
al Qaeda; one would go on to become one of the suicide
bombers of the U.S.S. Cole. See Alsabri, 764 F. Supp. 2d at 63,
72-76; Pet’r Br. 8-9. After leaving the boardinghouse, Alsabri
maintained relationships with several of those individuals and
inquired about the whereabouts of one of them while he was in
Afghanistan. Alsabri, 764 F. Supp. 2d at 75 (citing GTMO
Intelligence Report at 3 (Jan. 10, 2004) (J.A. 818)). Although
not dispositive, such “evidence of association with other al
Qaeda members is itself probative” of membership in al Qaeda
or associated forces. Uthman v. Obama, 637 F.3d 400, 405
(D.C. Cir. 2011). Alsabri also admits that two of the primary
influences on his decision to travel to Afghanistan were his
discussions with a former Taliban fighter who told Alsabri about
his military training,3 and a fatwa issued by two Saudi clerics
2
Alsabri’s admissions were recorded in interrogation reports, as
to which the district court found “ample evidence . . . to support their
reliability.” Alsabri, 764 F. Supp. 2d at 68. The court observed that
the reports were largely based on Alsabri’s personal knowledge, that
they were “replete with specific details,” and that there was “no
evidence that any of the statements were elicited through undue
coercion.” Id. The court also noted that many of the admissions upon
which it relied were “repeated by the petitioner in multiple
interrogations and corroborated by the statements of third-party
detainees.” Id.3
Alsabri contends that this individual only encouraged him to go
to Afghanistan to find a wife and a job and to enjoy “peace and
security.” Pet’r Br. 48. The district court reasonably discounted that
7
who encouraged Islamic men to go to Afghanistan to assist the
Taliban. Alsabri, 764 F. Supp. 2d at 76-80; see Interrogation
Report at 3 (Feb. 21, 2002) (J.A. 788); Interrogation Report at
5 (May 24, 2002) (J.A. 803).
Alsabri further states that, upon departing Sana’a, he flew
to Karachi, Pakistan, and then traveled on to Quetta, Pakistan,
before finally crossing the border into Afghanistan and arriving
at a guesthouse in Kandahar. Alsabri, 764 F. Supp. 2d at 81
(citing, inter alia, Interrogation Report at 6 (Feb. 21, 2002) (J.A.
791)); see Interrogation Report at 5-6 (May 24, 2002) (J.A. 803-
04). This is the same route taken by the detainee in the Uthman
case, which we described as “a common al Qaeda route” that
“can be probative evidence that the traveler was part of al
Qaeda.” 637 F.3d at 405-06; see Al Odah v. United States, 611
F.3d 8, 16 (D.C. Cir. 2010). Moreover, while in Quetta, Alsabri
stayed at a guesthouse known as the “Daftar al-Taliban,” which
Alsabri understood was operated by the Taliban. Alsabri, 764
F. Supp. 2d at 83 (citing interrogation reports). The district
court found that Taliban personnel at that house “arranged for
[Alsabri’s] entry into Afghanistan.” Id.After spending two or three days at Daftar al-Taliban,
Alsabri traveled by taxi with three other men to the border of
contention, both because there was no credible evidence that Alsabri
ever looked for a job or pursued marriage prospects while in
Afghanistan, and because it was facially implausible to expect that
Afghanistan would provide peace and security in the midst of the
ongoing conflict between the Taliban and the Northern Alliance.
Alsabri, 764 F. Supp. 2d at 77-78. The district court further noted
Alsabri’s admission that he did not tell anyone, including his family,
that he was planning to travel to Afghanistan. See id. at 64. As the
court said, this lends additional support to the conclusion that he did
not travel to Afghanistan for a benign purpose. Id. at 78.
8
Afghanistan. Id. at 81. One of them told Alsabri that he was
going to Afghanistan for jihad, and all three told him that they
intended to become martyrs. Id. (citing Interrogation Report at
3 (July 17, 2002) (J.A. 832); Interrogation Report at 2 (July 18,
2002) (J.A. 838)). At the border, the men switched from the taxi
to motorcycles because, Alsabri said, motorcycles “were not
required to stop at the border.” Interrogation Report at 1 (Feb.
27, 2002) (J.A. 808). Then, once inside Afghanistan, the taxi
picked the men up again and took them to a guesthouse in
Kandahar. Alsabri, 764 F. Supp. 2d at 81. As the district court
noted, “the elaborate arrangements made by the Taliban office
in Quetta to ferry the petitioner across the border without
detection by border patrol calls into question the legitimacy” of
Alsabri’s contention that he was traveling to Afghanistan for a
purpose other than to join the Taliban and/or al Qaeda. Id.In light of this evidence, considered as a whole, we find no
clear error in the district court’s conclusion “that the petitioner
traveled to Afghanistan in order to fight with the Taliban, al-
Qaida or associated enemy forces.” Id. at 82. Although such an
“intention to fight is inadequate by itself to make someone ‘part
of’” the Taliban or al Qaeda, “it is nonetheless compelling
evidence when . . . it accompanies additional evidence of
conduct consistent with an effectuation of that intent.” Awad,
608 F.3d at 9. As discussed below, the district court properly
found that, after entering Afghanistan, Alsabri took further steps
consistent with that intent.
B
The district court found that “throughout his time in
Afghanistan, the petitioner stayed at multiple guesthouses that
he knew were affiliated with al-Qaida and the Taliban.” Alsabri,
764 F. Supp. 2d at 88. Alsabri does not dispute this finding. See
Oral Arg. Recording at 2:30-2:45. In light of the evidence that
9
al Qaeda-associated guesthouses were not generally open to the
public, see Expert Decl. at 3 (Sept. 19, 2008) (J.A. 870), this
court has recognized that staying at such houses can be
“powerful” evidence that a detainee was part of al Qaeda and/or
the Taliban. Uthman, 637 F.3d at 406; see Almerfedi v. Obama,
654 F.3d 1, 6 n.7 (D.C. Cir. 2011); Al-Madhwani v. Obama, 642
F.3d 1071, 1075 (D.C. Cir. 2011); Al-Adahi v. Obama, 613 F.3d
1102, 1108-09 (D.C. Cir. 2010); Al-Bihani, 590 F.3d at 873 n.2.
The Kandahar guesthouse where Alsabri stayed after his
taxi trip from Pakistan was the Haji Habash house. Alsabri, 764
F. Supp. 2d at 83-84. Alsabri concedes that Haji Habash was a
Taliban guesthouse operated by an al Qaeda leader, id. (citing
interrogation reports), and he admits that it served as a staging
ground for “‘people from different nations’” who “‘were there
waiting to go on training missions at either [the] Al Farouq or
Abu Baida’” training camps, Alsabri, 764 F. Supp. 2d at 84(quoting GTMO Intelligence Report at 2).4 Alsabri turned over
his passport when he arrived, id., which was consistent with
“‘standard al Qaeda and Taliban operating procedure[]’ when
checking into an al Qaeda guesthouse in Afghanistan,” Uthman,
637 F.3d at 406 (quoting Al Odah, 611 F.3d at 15). He also
admits that, during his stay at Haji Habash, he paid a daily visit
to the al Qaeda-affiliated Islamic Institute across the street.
Alsabri, 764 F. Supp. 2d at 84 (citing interrogation reports). As
the district court noted, statements by other Guantanamo
detainees confirmed that the “Institute was headed by Abu Hafs
al-Mauritania, a senior al-Qaida leader who associated with
high-ranking Taliban and al-Qaida leaders.” Id.; see Esmail v.
4
See also Expert Decl. at 3 (Sept. 19, 2008) (J.A. 870) (describing
the Haji Habash guesthouse as “a Taliban-sponsored guesthouse for
Arab mujahedeen in Kandahar”); id. (stating that Haji Habash “was
used as a transition point and in-processing location for individuals
going to train at various training camps, including al-Farouq”).
10
Obama, 639 F.3d 1075, 1076 (D.C. Cir. 2011) (describing the
Institute as “al Qaeda-affiliated”).
After leaving the Haji Habash guesthouse, Alsabri’s next
stop was a guesthouse in Kabul run by one of Osama bin
Laden’s lieutenants, Hamza al-Ghamdi. See Alsabri, 764 F.
Supp. 2d at 85 & n.36 (citing statements by several detainees
describing al-Ghamdi’s role in al Qaeda). This was an
important stop for at least two reasons. First, while at this
house, Alsabri observed a visit by Ramsi bin al-Shibh, who has
been identified as a coordinator of the September 11 terrorist
attacks. See Resp’ts Br. 22; Alsabri, 764 F. Supp. 2d at 86
(citing Interrogation Report at 5; THE 9/11 COMMISSION
REPORT : FINAL REPORT OF THE NAT ’L COMM ’N ON TERRORIST
ATTACKS UPON THE UNITED STATES, at 434 (2004)). It is hardly
unreasonable to infer that al-Ghamdi would not have allowed a
non-affiliated guest to stay at the house during a visit by
someone as important to al Qaeda as bin al-Shibh. Second,
al-Ghamdi himself played an important role in determining who
was to receive military training and in arranging the travel of
fighters to the front lines. See Alsabri, 764 F. Supp. 2d at 85 &
n.36 (citing detainee statements). As we have recognized, a
detainee’s “voluntary decision to move to an al-Qaida
guesthouse, a staging area for recruits heading for a military
training camp, makes it more likely -- indeed, very likely -- that
[the detainee] was himself a recruit.” Al-Adahi, 613 F.3d at
1108. Moreover, as discussed below, Alsabri admitted that he
repeatedly sought al-Ghamdi’s permission to go to the battle
lines and eventually succeeded in obtaining his permission
during a return visit to al-Ghamdi’s house. Alsabri, 764 F.
Supp. 2d at 85-86.
11
Taken together, this evidence regarding Alsabri’s stays at
the Haji Habash and al-Ghamdi guesthouses5 provides powerful
support for the district court’s conclusion that Alsabri was “part
of” the Taliban or al Qaeda.
C
Alsabri’s associations with the Taliban and al Qaeda were
not limited to interacting with their members and staying at their
guesthouses. Rather, the district court found that Alsabri also
actively “sought out and received military-style training from
the Taliban or al-Qaida” during his time in Afghanistan.
Alsabri, 764 F. Supp. 2d at 62. Those findings are not clearly
erroneous.
To begin with, the government introduced an English
translation of a document appearing to be Alsabri’s application
to attend an al Qaeda training camp. Id. at 89; see J.A. 945.
According to a March 2002 FBI memorandum, the document
was one of several “applications for training at Al Qaeda camps”
that Coalition forces recovered from an “‘Arab’ office in
Kandahar, Afghanistan” in December 2001. Alsabri, 764 F.
Supp. 2d at 89 (citing FBI Memorandum at 1). The document
includes an entry listing one of the kunyas, or aliases, that
Alsabri used while in Afghanistan, along with biographical
details consistent with those of Alsabri’s life. Id.; see J.A. 945.
The document also states that the applicant was “referred to the
camp” by two individuals, one of whom Alsabri acknowledges
was an al Qaeda member he met in Sana’a. Alsabri, 764 F.
Supp. 2d at 89 (citing J.A. 945). At the conclusion of this entry,
5
The district court also found that, after departing the al-Ghamdi
guesthouse for the second time, Alsabri “stayed in at least one other
Taliban and al-Qaida guesthouse near the front.” Alsabri, 764 F.
Supp. 2d at 88.
12
the applicant lists his “‘[p]lans after training’” as: “‘Jihad.’” Id.(quoting J.A. 945).
Alsabri does not dispute that he is the individual referenced
in that document. Instead, he argues only that “[t]here was no
evidence in the record that the [document] was filled out by
[Alsabri], rather than by [a Taliban] recruiter or someone else
using information that Alsabri provided.” Pet’r Br. 49 n.7. But
it is immaterial whether Alsabri filled out the application
himself, or simply provided his biographical information to
someone who then transcribed it. The important point is that
Alsabri provided detailed personal information about himself on
a document that indicates his desire to obtain military training
for the purpose of engaging in jihad.
In addition to the application document, the government
introduced evidence that Alsabri did in fact receive weapons
training. The principal evidence was an English-language
translation of a 92-page collection of documents that the
government maintains were internal Taliban or al Qaeda
records. A Defense Intelligence Agency (DIA) record, which
the government submitted as a supplemental exhibit, indicates
that the documents were captured by Coalition forces from the
“Director of Al–Qa’ida Security Training Office,” and are
“similar to other materials recovered from enemy forces.”
Alsabri, 764 F. Supp. 2d at 90-91 (internal quotation marks
omitted). The DIA, which prepared the translation of the
documents, describes them as “contain[ing] [t]he names of the
students admitted to the training in the tactics of [a]rtillery,
communication, infantry and their distribution,” as well as the
“training starting times, programs, [and] instructions about the
subject matters.” Id. at 91.
The documents include multiple entries that appear to be
references to Alsabri: his kunya, for example, appears on a list
13
of “arriving brothers” in September 2000, along with
biographical information that matches the information provided
in the application document that Alsabri does not deny refers to
him. See id. at 91-92; J.A. 989; Resp’ts Br. 34-35. Indeed, at
oral argument, counsel for Alsabri conceded that the entry on
the “arriving brothers” list also refers to him. Oral Arg.
Recording at 15:45-16:15.6
The same kunya that appears on the “arriving brothers” list
-- or another transliteration thereof -- also appears on a roster of
individuals scheduled to attend a “communications class” in
February 2001. Alsabri, 764 F. Supp. 2d at 91-92; see J.A. 975.
Another page of the document collection shows that as of
August 2001, that individual had “‘graduated from Anti Air
Missiles’” class. Alsabri, 764 F. Supp. 2d at 91 (quoting J.A.
1018). As a consequence, he was to be given “‘priorit[y] in
joining the Artillery Session[]’” scheduled for the next day. Id.Alsabri contends that the district court erred in concluding
that the records of scheduled and completed training refer to
him, arguing that the “names that comprise his alleged kunya --
‘Salman’ (meaning ‘peaceful’) and ‘al Makki’ (‘from Mecca’) --
are extremely common -- essentially, the Arabic equivalent of
‘Bob, from New York.’” Pet’r Br. 50. But the district court did
not clearly err in finding that the documents refer to Alsabri.
The court carefully canvassed the evidence, noting that the
6
Alsabri does take issue with the district court’s reference to this
“arriving brothers” list as a “training roster.” Pet’r Br. 42. Given the
context provided by the remainder of the documents, however, the
district court’s characterization of the list is not clearly erroneous. But
even if the document is “merely a list of guesthouse residents,” as
Alsabri contends, id., that would not render the district court’s finding
that he received military training clearly erroneous, for the reasons
discussed in the balance of this section.
14
internal corroboration of the names, dates, and biographical
information in the various records “provides substantial
evidence of their authenticity and reliability,” and that the
significant overlap between the documents and Alsabri’s
statements to interrogators -- including his statements regarding
his travel companions, several of whose names or aliases also
appear in the training records -- “provide[s] further support” for
the government’s assertions. Alsabri, 764 F. Supp. 2d at 91-92;
cf. Barhoumi, 609 F.3d at 428 (assessing the reliability of a
translated diary “by evaluating the diary’s internal coherence as
well as its consistency with uncontested record evidence,
including [the detainee’s] own statements”).
To buttress its conclusion that Alsabri received military
training, the district court also properly relied on the sequence
of Alsabri’s requests to travel to the front lines. Alsabri, 764 F.
Supp. 2d at 92-93. Alsabri told his interrogators that he asked
al-Ghamdi for permission to go to the Taliban battle lines at
least twice. Id. The first time, “Al-Ghamdi denied that request
‘since he did not have any weapons training.’” Id. at 93(quoting Interrogation Report at 4). Alsabri then traveled to
Jalalabad. After several months there, he “‘decided to return to
Al Ghamdi’s Arab house in Kabul to try and get to the fighting
at the front line.’” Id. (quoting Interrogation Report at 5). This
time, al-Ghamdi “‘finally authorized [him] to go to the 2nd line
of defense near Bagram.’” Id. at 86 (quoting Interrogation
Report at 6). In light of this evidence, the district court was not
unreasonable in inferring “that between his first and second
stays at al-Ghamdi’s guesthouse, [Alsabri] remedied the
deficiency identified by al-Ghamdi by obtaining weapons
training.” Id. at 93.7 And, as we have held before, “training at
7
Noting that only one of several interrogation reports mentions
the first request to travel to the front, Alsabri’s counsel suggests that
the report may have been inaccurate -- perhaps “due to a translation
15
. . . al Qaeda training camps is compelling evidence that the
trainee was part of al Qaeda.” Esmail, 639 F.3d at 1076; see Al-
Madhwani, 642 F.3d at 1075; Al-Adahi, 613 F.3d at 1108;
Al-Bihani, 590 F.3d at 873 n.2.
D
Alsabri’s admission that, with al-Ghamdi’s authorization,
he traveled to the battle lines of the Taliban’s fight against the
Northern Alliance just months before his capture also weighs
heavily in favor of the conclusion that he was part of the Taliban
or al Qaeda. Alsabri “admitted in two separate interrogations
that he went to the front to assist Taliban fighters.” Alsabri, 764
F. Supp. 2d at 94 (emphasis added); see Interrogation Report at
3 (Feb. 27, 2002) (J.A. 810) (“During the later part of the year,
Al-Sabri began traveling to Bagram to assist Taliban fighters in
their efforts against the Northern Alliance fighters.”);
Interrogation Report at 6 (July 17, 2002) (J.A. 835) (stating that
he went to the front “to support the Taliban who were positioned
to fight [Massoud’s] Northern Alliance troops”).8 Although
Alsabri did not admit to actively participating in the fighting, he
conceded that “there was fighting going on there,” and that he
error, or because the interrogators misunderstood what Alsabri said,
or because they misread their own notes from the interrogation.” Pet’r
Br. 26-27. But counsel’s speculation cannot alone render reliance on
the report unreasonable, particularly given the absence of any
declaration by Alsabri himself that he did not make the initial request.
8
Alsabri’s counsel suggests that these admissions of his purpose
to assist Taliban fighters may merely “have been the interrogators’
gloss on what Alsabri said.” Pet’r Br. 53. But as we have just noted,
supra note 7, Alsabri never filed a declaration denying that he made
the statements or suggesting they were untrue, and counsel’s
speculation is insufficient to render the district court’s reliance on the
statements unreasonable.
16
was “always armed.” Interrogation Report at 6 (May 24, 2002)
(J.A. 804).
Alsabri now maintains that he traveled to the front lines
solely “out of curiosity and to visit a friend,” Pet’r Br. 53, an
explanation that the district court was entitled to discredit in
light of his previous admissions. As the district court further
noted, it is difficult to believe that “Taliban fighters would allow
an individual to infiltrate their posts near a battle zone unless
that person was understood to be a part of the Taliban.” Alsabri,
764 F. Supp. 2d at 94 (internal quotation marks omitted).
In response to the latter point, Alsabri calls our attention “to
an expert report explaining that there was a long history” of the
Taliban permitting individuals who were not “member[s] of
their forces (or of al-Qaida) to visit” the battle lines. Pet’r Br.
43-44. The expert described this kind of travel as a “jihad
tour[]” for “so-called ‘Gucci jihad[i]s.’” Decl. of Dr. Brian
Williams ¶ 10 (Jan. 1, 2009) (J.A. 1496). But even if his
expert’s report is correct, Alsabri admits that he was never a
“Gucci jihadi.” See Pet’r Br. 44; Oral Arg. Recording at 17:45-
17:50. Nor could he have claimed to be, given that Gucci
jihadis -- as the name suggests -- were usually “wealthy (at least
by Afghan standards),” Pet’r Br. 43, while Alsabri was indigent.
Moreover, as the district court properly found, the fact that
Alsabri sought and received authorization to travel to the battle
lines from al-Ghamdi, a senior al Qaeda leader, indicates that he
was not acting as an independent “freelancer,” but rather as a
part of the Taliban or al Qaeda. Alsabri, 764 F. Supp. 2d at 94;
cf. Bensayah v. Obama, 610 F.3d 718, 725 (D.C. Cir. 2010).
E
Finally, although Alsabri does not specifically challenge it,
the district court’s further finding that he remained a part of the
17
Taliban or al Qaeda at the time of his capture, “just months”
after he left the front lines, Alsabri, 764 F. Supp. 2d at 95, is also
not clearly erroneous. Alsabri proffers no evidence that he took
steps to dissociate himself from those groups in the months
between his departure from the battle lines and his capture. Nor
did the district court commit clear error in rejecting as
implausible Alsabri’s story concerning his whereabouts during
that period: that he first went to Jalalabad, and then fled to a
village near the Pakistan border, where he spent a month waiting
patiently for a friend to return his passport. The district court
reasonably concluded that it was “not credible” that Alsabri
“would have waited a month in a hostile war zone simply to
retrieve his passport, given that he had entered the country
surreptitiously in the first place.” Id. Alsabri’s inability to
recall the name of the village where he said he waited, despite
his “demonstrated ability to recall specific details about names
and locations” in other contexts, casts further doubt on that
story. Id. Indeed, as the district court found, Alsabri’s
“descriptions of his time” in the period before his capture were
“strikingly vague when compared to his accounts of other
periods in Yemen and Afghanistan.” Id. at 96. Moreover, he
“provided no evidence that he established contacts with anyone
in Afghanistan outside the Taliban/al–Qaida network, that he
took any steps to obtain employment or that he took any other
affirmative actions inconsistent with being ‘part of’ al-Qaida” or
the Taliban. Id.-----------------------
In sum, we discern no clear error in the district court’s
findings “that the petitioner traveled to Afghanistan to fight with
the Taliban or al-Qaida, stayed at Taliban or al-Qaida
guesthouses, received military training at [an] al-Qaida facility,
traveled to the battle lines” of the Taliban’s fight against the
Northern Alliance, and did not “dissociate[ from] these enemy
18
forces at any point prior to his capture.” 764 F. Supp. 2d at 96.
And like the district court, we conclude that “[e]ven if none of
these findings would independently justify his detention, viewed
as a whole, they plainly establish that the petitioner was ‘part of’
the Taliban, al-Qaida or associated enemy” forces, so as to
render his detention lawful under the AUMF. Id.9
III
Alsabri also contends that the district court erred by
considering two pieces of evidence over his objections: the DIA
document the government offered to authenticate the 92-page
collection of training records; and the text of a fatwa authored
by Sheikh Hammoud al Aqla, one of the two Saudi religious
scholars who issued the fatwa that Alsabri said influenced his
decision to travel to Afghanistan. Pet’r Br. 30-37; see Alsabri,
764 F. Supp. 2d at 79-80, 90-91 & n.40. We review the district
court’s evidentiary decisions for abuse of discretion. See Khan,
655 F.3d at 25; Al Alwi, 653 F.3d at 15.
Alsabri objects to the district court’s consideration of the
DIA document on the ground that it was not in the record prior
to the merits hearing. Rather, the government offered the
document on rebuttal in response to Alsabri’s challenge to the
92-page collection as unreliable. In permitting the government
to respond, the district court did not abuse its “broad discretion
in determining whether to admit or exclude rebuttal evidence.”
United States v. Fench, 470 F.2d 1234, 1239 (D.C. Cir. 1972).
To the contrary, we have previously held it “proper[ to] afford[]
the government an opportunity to submit ‘sufficient additional
9
By the same token, “we do not imply that all of the evidence in
this case is necessary to find someone part of” al Qaeda or the
Taliban; “we hold only that the evidence in this case is sufficient” for
such a finding. Uthman, 637 F.3d at 407 n.8.
19
information . . . permit[ting the factfinder] to assess [the]
reliability’” of a document that, “standing alone, lacked
adequate indicia of reliability.” Khan, 655 F.3d at 27 (quoting
Bensayah, 610 F.3d at 725-26). Moreover, although Alsabri
protests that he “had no meaningful opportunity to respond to
the . . . document,” Pet’r Br. 35, the district court told Alsabri’s
counsel that he would “have an opportunity to examine” the
exhibit and that, “if something arises after you examine it that
prompts you to believe that you should be heard or that the
record should be supplemented, you will be permitted [to] do
that,” Hr’g Tr. at 39 (Nov. 15, 2010) (J.A. 754). Alsabri did not
take advantage of that opportunity.10
Alsabri objects to the court’s consideration of the fatwa on
the ground that there was no evidence that the al Aqla fatwa that
was read into the record was the same one that influenced his
decision to travel to Afghanistan: the fatwa he read, he says,
urged believers to go to Afghanistan “to assist” the Taliban,
Alsabri, 764 F. Supp. 2d at 79 (quoting Interrogation Report at
5 (May 24, 2002) (J.A. 803)), while the one the government read
into the record urged them “‘to assist the Taliban Regime and to
make Jihad,’” in a context indicating that the call was to take up
arms in the Taliban’s war against the Northern Alliance, id.(emphasis added) (quoting Gov’t’s Mot. for Judgment on the
Record at 12-13 (June 4, 2010) (J.A. 297-98)).11 Although the
10
Although Alsabri also challenges the court’s consideration of
the document on the ground that it was never entered into evidence,
Pet’r Br. 36 n.3, the record reveals otherwise, see Hr’g Tr. at 39 (Nov.
15, 2010) (J.A. 754).
11
Alsabri also objects on the ground that the fatwa was not
included as an exhibit to the government’s factual return. Although
this might have given the district court discretion to exclude it, the
court’s contrary decision was not an abuse of discretion because as
early as June 2010, the government had provided Alsabri with a
20
district court acknowledged that the fatwa proffered by the
government might not have been “the exact fatwa that
influenced the petitioner,” 764 F. Supp. 2d at 79, the court
concluded that it was still probative because it was “written by
the same cleric[] about the same conflict during roughly the
same time period” and was consistent with al Aqla fatwas
described by other detainees, id. at 80 n.30; see id. at 79 & n.28.
Moreover, the court noted, “given the petitioner’s documented
awareness of the conflict in Afghanistan, it is not plausible that
the petitioner could have understood the . . . call to ‘assist the
Taliban’ as anything other than a call to take up arms.” Id. at
80. In any event, even if the admission of the fatwa were error,
it was harmless: the fatwa was plainly the least significant of at
least four factors that amply support the court’s finding that
Alsabri traveled to Afghanistan for the purpose of fighting with
the Taliban or al Qaeda. See supra Part II.A.12
translation of the fatwa’s text and the archived internet address where
it could be found. See Gov’t’s Mot. for Judgment on the Record at
12-13 (June 4, 2010) (J.A. 297-98).
12
Alsabri further objects to the district court’s reliance on
statements by Humud Dakhil al-Jadani, another detainee at
Guantanamo Bay, whom Alsabri characterizes as an “admitted liar.”
Pet’r Br. 27-28. But the court closely scrutinized al-Jadani’s
statements, relying only on those that were sufficiently corroborated
by other evidence in the record. See, e.g., Alsabri, 764 F. Supp. 2d at79 n.28, 84 nn.34-35, 85 n.36. In any event, the only statements by
al-Jadani that Alsabri contends should not have been admitted -- that
the Haji Habash guesthouse was guarded by a Taliban guard and that
the Islamic Institute was headed by a member of al Qaeda, see Pet’r
Br. 27-28 -- are not seriously in dispute. Alsabri himself
acknowledged that Haji Habash was a “Taliban guesthouse,” Alsabri,
764 F. Supp. 2d at 83 (citing GTMO Intelligence Report at 2), and
statements by another Guantanamo detainee who worked at the
Islamic Institute confirm that the Institute was run by a senior al-
21
IV
Finally, Alsabri charges that the district court committed a
number of legal errors that denied him a fair hearing.
First, he contends that the district court’s Case Management
Order placed improper limitations on his discovery from the
government, an argument we rejected in the Al Alwi, Al-
Madhwani, and Bensayah cases. See Al Alwi, 653 F.3d at 25-26;
Al-Madhwani, 642 F.3d at 1077; Bensayah, 610 F.3d at 723-24.
Second, he maintains that the court’s admission of hearsay
evidence, particularly reports of Alsabri’s own statements, was
error. We have repeatedly held, however, “that hearsay
evidence is admissible in this type of habeas proceeding if the
hearsay is reliable.” Awad, 608 F.3d at 7; see Khan, 655 F.3d at
26; Al Alwi, 653 F.3d at 19; Barhoumi, 609 F.3d at 422, 432-33;
Al-Bihani, 590 F.3d at 879. The question of whether evidence
is sufficiently reliable to credit is one we review for clear error,
Al Alwi, 653 F.3d at 19, and Alsabri offers no grounds for
finding clear error here, see, e.g., supra notes 2, 12. Third,
Alsabri maintains that the district court erred in applying a
preponderance-of-the-evidence rather than clear-and-
convincing-evidence standard. But 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.’” Khan, 655 F.3d
at 26 (quoting Al Odah, 611 F.3d at 13); see Almerfedi, 654 F.3d
Qaeda leader, see Interrogation Report at 1 (Dec. 3, 2002) (J.A. 820);
see also Esmail, 639 F.3d at 1076 (describing the Islamic Institute as
“al Qaeda-affiliated”).
22
at 5; Al-Madhwani, 642 F.3d at 1078; Awad, 608 F.3d at 10-
11.13
As is apparent, all of Alsabri’s legal arguments are
foreclosed by Circuit precedent, a point his counsel forthrightly
acknowledges. See Pet’r Br. 60 n.10. As is appropriate, counsel
notes his disagreement with our rulings and includes the
arguments in order to preserve the issues. Id.
V
For the foregoing reasons, we reject Alsabri’s challenge to
the district court’s conclusion that he was “part of” the Taliban
or al Qaeda. We therefore affirm the court’s determination that
Alsabri is lawfully detained pursuant to the AUMF.
So ordered.
13
Alsabri also argues that the district court improperly shifted the
preponderance burden from the government to him on two subsidiary
factual issues, one involving the fatwa he saw in Yemen and the other
involving the training documents that contained his kunya. Pet’r Br.
62. As was true in Al-Bihani, we believe this argument is “based on
a strained reading” of the district court’s decision. 590 F.3d at 881.
The district court did not require Alsabri to prove anything. It simply
found that the government’s evidence on these matters was sufficient
in the absence of any evidence to the contrary.