Abdul-Rahman Suleiman v. Barack Obama

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~nit£b ~tat£z QIourt of J\pp£alz
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 16,2011 Decided January 27,2012
No. 10-5292
ABDUL-RAHMAN ABDO ABULGHAITH SULEIMAN,
ApPELLANT
v.
BARACK OBAMA, PRESIDENT, ET AL.,
ApPELLEES
Appeal frOlu the United States District Court
for the District of Colmubia
(No.1 :05-cv-02386)
Thomas P. Sullivan argued the cause for the appellant.
With hilu on the briefs was Som P. Dalal.
John A. Drennan argued the cause for the appellees. With
hin1 on the briefs were Tony West and Robert M. Loeb.
Before: TATEL, GARLAND, and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
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GRIFFITH, Circuit Judge: * Abdul-Rahman Abdo
Abulghaith Sulei111an appeals the district court's denial of his
petition for a writ of habeas corpus challenging his detention
at Guantanamo Bay. For the reasons set forth below, we
affin11 the district court's order.
I
Sulei111an's appeal challenges both the finding of the
district court that he was part of the Taliban and its conclusion
that such a finding justifies his detention. On this latter point,
Suleiman argues that detention based solely on being part of
the Taliban violates the Due Process and Ex Post Facto
Clauses of the Constitution and is not pennitted by the
Authorization for Use of Military Force (AUMF), § 2(a), Pub.
L. No. 107-40, 115 Stat. 224, 224 (2001) (reprinted at 50
U.S.C. § 1541 note). But we need not take up these legal
argunlents because Suleiman failed to make them below. See
Salazar v. District of ColUlnbia, 602 F.3d 431, 436 (D.C. Cir.
2010) ("To preserve a clai111 of en-or on appeal, a party
typically must raise the issue before the trial court .... 'No
procedural principle is l110re familiar ... than that a ... right
111ay be forfeited in crinlinal as well as civil cases by the
failure to 111ake timely assertion of the right before a tribunal
having jurisdiction to detenlline it. '" (quoting In re Sealed
Case, 552 F.3d 841, 851-52 (D.C. Cir. 2009)) (internal
quotation 111 arks omitted)). In any event, our precedent
provides a clear rule of decision: if Suleiman was part of the
Taliban, he can be detained. See Al Alwi v. Obama, 653 F.3d
11, 16 (D.C. Cir. 2011) ("As this cou1i has now repeatedly
* NOTE: Portions of this opinion contain Classified Information,
which has been redacted.
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held, the AUMF 'gives the United States government the
authority to detain a person who is found to have been "part
of' al Qaeda or Taliban forces.'" (quoting Al Odah, 611 F.3d
at 10)).
The only issue we need examine then is whether the
district court erred in concluding that Suleiman was part of
the Taliban. That detenllination is a mixed question of law
and fact. See Awad v. Obama, 608 F.3d 1, 10 (D.C. Cir. 2010)
("Detennining whether Awad is 'part of al Qaeda is a mixed
question of law and fact."). The district couli's findings about
what actually occurred - the route Suleiman traveled, where
he stayed, and what he did - are questions of fact we review
for clear error. Whether those facts are sufficient to conclude
that Suleiman was part of the Taliban is a question of law that
we review de novo. On both questions, we affinn the district
court.
II
Although there was contested evidence about Suleiman's
alleged relationship to Al Qaeda, the district couli based
its decision on three unchallenged pieces of evidence:
Suleilllan's own testimony before the district court; a Federal
Bureau of Investigation field docUlllent sumlllarizing an April
17, 2002, interview; and a Departlllent of Defense record of
an August 19, 2004, interview. See Sulayman v. Obwna, 729
F. Supp. 2d 26,42 (D.D.C. 2010).
Suleilllan was born in Taiz, Yelllen, in 1979. Shortly after
completing high school, he n1et a Taliban recruiter named
Abu Khulud at a lllosque in Taiz. Suleiman claims that he did
not know that Khulud was a Taliban recruiter when they met.
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Khulud suggested that Sulein1an travel to Afghanistan, where
he could own a home and find a wife, and Sulein1an agreed to
go. Khulud provided hin1 with a Yelneni passport, an airplane
ticket to Karachi, Pakistan, and $100 cash.
Once in Karachi, Suleilnan took a bus to Quetta,
Pakistan, where he stopped for an hour at the Daftur
guesthouse, which Khulud had told Suleilnan was affiliated
with the Taliban. Suleilnan next traveled by car from Quetta
over the border at Spin Buldak to Kandahar, Afghanistan, and
stayed for approxin1ately two weeks at a guesthouse that he
described as "the Arab house," which had "Afghan guards"
and "weapons stored in a slnall rOOln." FrOln Kandahar,
Suleiman traveled to Kabul and stayed for seven months at a
guesthouse owned by a Yemeni national, Hamza Al-Qa'eity,
who lived there with his farnily. While there, Suleiman paid
for neither his food nor his lodging, Inade no attempt to find a
wife or job, and did no work. He clailns he spent his time
eating, sleeping, reading, and praying.
Others living at the Al-Qa'eity guesthouse while
Suleiman was there traveled to and from the nearby
battlefront to fight with the Taliban against the Northern
Alliance. Suleilnan hilnself twice visited an area he described
as a "safe place" that was used by Taliban fighters as a
staging area for final preparations before fighting at the front.
On his first visit, which took place while he was living with
AI-Qa'eity, Suleilnan stayed for seven days and fired a
machine gun, although he clailns he did so only for
an1usement. His second visit, which lasted twelve days, can1e
as he was fleeing Kabul to escape aerial bOlnbing by the
United States in retaliation for the attacks of Septelnber 11,
2001, and the don1estic reprisals following the assassination
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of Northern Alliance leader Alu11ad Shah Massoud. During
this second visit to the Taliban "safe place," Sulei111an was
aImed with an AK-47. FrOl11 there, he l11ade his way toward
Pakistan and into the mountains outside Jalalabad. He
eventually crossed by foot into Pakistan, where he was
captured by Pakistani authorities in late December 2001. Soon
after, he was transferred to the custody of the United States
l11ilitary, and in February 2002, he was sent to Guantana1110
Bay.
III
Our task is to dete1111ine whether this undisputed
evidence provides a legally adequate basis for the district
court's conclusion that Sulei111an was part of the Taliban. We
have previously stated that "the purely independent conduct
of a freelancer is not enough to establish that an individual is
'part of al-Qaida," and the same is true for being part of the
Taliban. Salahi v. Obama, 625 F.3d 745,752 (D.C. Cir. 2010)
(quoting Bensayah v. Obama, 610 FJd 718, 725 (D.C. Cir.
2010)). But the facts here show that Suleiman was no
freelancer.
There is no dispute that Suleil11an' s travel was initiated at
the suggestion of and facilitated by a Taliban recruiter, and
that he traveled a well-wo111 path to Afghanistan frequently
used by Taliban recruits. We have stated that such travel 111ay
indicate that an individual traveled to Afghanistan to join the
Taliban. See Al Odah v. United States, 611 F.3d 8, 14 (D.C.
Cir. 2010) ("[I]nterrogation reports of a third party concerning
al Qaeda and Taliban travel routes into Afghanistan . . .
although far from conclusive ... suggest[] that an individual
using this travel route to reach Kandahar l11ay have done so
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because it was a route used by SOlTIe individuals seeking to
enter Afghanistan for the purpose of jihad." (internal citations
OlTIitted)).
And Suleinlan did lTIuch lTIOre than travel the route of a
Taliban recruit. He lived at the Al-Qa'eity guesthouse for
seven nl0nths. Suleiman argues that he was allowed to live
there out of charity, and that he did nothing more while there
than eat, sleep, read, and pray. The district court did not find
this explanation credible, and we find no clear error in its
credibility determination. The Al-Qa'eity guesthouse was
hardly the monastery for contenlplation that SuleilTIan
suggests. His Taliban fighter housenlates used it as a base to
travel to and frOlTI the battlefront during the tilTIe Suleiman
was there. See SulaYl1'zan, 729 F. Supp. 2d at 47. We have
previously held that "a voluntary decision to lTIOVe to an al-
Qaida guesthouse, a staging area for recruits heading for a
nlilitary training cmTIp, makes it lTIOre likely - indeed, very
likely - that [the individual] was himself a recruit." Al-Adahi
v. Obama, 613 F.3d 1102, 1108 (D.C. Cir. 2010). The sanle
is true for a stay at a Taliban guesthouse. Suleiman was hardly
stopping by; he spent seven nl0nths there. In addition, the
ermTIent introduced a declaration before the district couli
e serv as a an-spons
guesthouse for Arab lTIujahedeen in Kandahar" and "was used
as a transition point and in-processing location for individuals
going to train at various training camps." Id. at 31. The
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Finally, we see no enor in the district court's conclusion
that Taliban fighters would be unlikely to allow an armed
Suleiman to twice visit their staging area and be among
fighters preparing for battle unless he was part of them. See
Sulayman, 729 F. Supp. 2d at 52.
From these undisputed facts, we conclude that the
evidence on which the district court relied was sufficient to
determine that Suleiman was more likely than not part of the
Taliban. Because these facts alone are enough to support our
conclusion, we agree with the district court that the
government's other claims regarding Suleiman's alleged
activities in Afghanistan need not be considered. ld. at 44
n.14.
Suleilnan also seeks leave to file a supplemental
appendix that includes a new translation of his October 27,
2004, Combatant Status Review Tribunal (CSRT) testimony.
We grant the motion and conclude that there are no significant
differences in the new translation of the CSRT that change
our analysis.
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IV
F or the foregoing reasons, the order of the district couli is
Affirmed.