Adham Awad v. Barack Obama

Prtiteh 9tcrtes Maurt af &p)real~
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 5,20 10 Decided June 2,2010
ADHAMMOHAMMED AWAD,
ALI U.S.
DETAINEE, NAVAL
BASE,
GUANTANAMO CUBA,
BAY,
APPELLANT
BARACK
OBAMA,
PRESIDENT THE UNITED
OF STATES, AL.,
ET
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(NO. 1105-CV-02379-JR)
John L. Ewald argued the cause and filed the briefs for
appellant. Catherine Y. Lui entered an appearance.
August E. Flentje, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief was
Robert M. Loeb, Attorney.
Before: SENTELLE,Chief Judge, GARLAND,
Circuit Judge,
and SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge SENTELLE.
SENTELLE, Chief Judge: Adham Mohammed Ali Awad, a
detainee at Guantanamo Bay, Cuba, appeals from the district
court's denial of his petition for a writ of habeas corpus. We
find no reversible error in the district court's finding that Awad
was "part of' a1 Qaeda in December of 200 1. Awad admits that
he traveled to Afghanistan in mid-September 2001 for the
purpose of engaging in armed conflict against U.S. and allied
forces. Evidence from multiple sources clearly supports the
proposition that in December of 200 1 Awad joined a group of a1
Qaeda fighters who had barricaded themselves inside a hospital
and that these a1 Qaeda fighters treated Awad as one of their
own. The correctness of the district court's factual findings is
fbrther confirmed by the appearance of Awad's name on several
a1 Qaeda documents. We also reject Awad's challenges to the
district court's legal holdings as the issues have already been
resolved by a prior decision of this court. Accordingly, we
affirm the district court's denial of Awad's petition for a writ of
habeas corpus.
I. BACKGROUND
A. Legal Framework
In the wake of the terrorist attacks of September 11,2001,
the Congress of the United States passed a joint resolution
"[tlhat the President is authorized to use all necessary and
appropriate force against those nations, organizations, or persons
he determines planned, authorized, committed, or aided the
terrorist attacks that occurred on September 11, 2001, or
harbored such organizations or persons, in order to prevent any
future acts of international terrorism against the United States by
such nations, organizations, or persons." Authorizationfor Use
o Military Force, Pub. L. No. 107-40, 115 Stat. 224 (200 1)
f
("AUMF"). Acting under the authority of the AUMF, the
United States initiated a military campaign in Afghanistan
against the Taliban regime and the a1 Qaeda forces it protected.
In pursuit of this campaign and in other parts of the world, still
acting under the AUMF, the United States has captured and
detained members of the enemy force. See Hamdi v. Rumsfeld,
542 U.S. 507, 5 18-524 (2004) (plurality op.).
The United States houses some of the detainees it captures
at a secure military base at Guantanamo Bay, Cuba. The proper
role of federal courts in evaluating the military's long-term
detention of individuals held at Guantanamo Bay has developed
over the past decade and has involved all three branches of
government. The history of the litigation over the jurisdiction
of federal courts to review the United States's detention of
individuals at Guantanamo Bay is set forth in Boumediene v.
Bush, 128 S. Ct. 2229,2240-42 (2008), and we need not repeat
the history here. Boumediene settled the question of our
jurisdiction by holding that United States courts do have
jurisdiction to entertain petitions for writs of habeas corpus from
such prisoners. The present case involves such a petition.
B. The Events at Minvais Hospital
On or about December 7,2001, a small number of injured
a1 Qaeda fighters (around nine) entered the Mirwais Hospital in
Afghanistan. These fighters went to the second floor, barricaded
themselves inside, and held their position through the display of
weapons and the threat of killing everyone in the building.
Local Afghan and allied forces laid siege to the hospital to try
and break the a1 Qaeda barricade. This siege was to last for
almost two months. During this time, the part of the hospital not
under a1 Qaeda control continued to function and treat patients.
Only two people left the barricaded area alive. On
December 2001, Majeed a1 Joudi ("a1 Joudi"), purportedly
one of the a1 Qaeda fighters, was tricked into leaving the
barricaded area and was captured by Afghan forces. His
captors quickly turned him over to United States forces.
Interrogators obtained a number of statements from a1 Joudi
during subsequent interrogations. Then on December 1 2001,
the a1 Qaeda fighters surrendered a man with an amputated right
leg to the Afghan forces at the hospital. This man was quickly
transferred to U.S. control. During subsequent interrogation, the
United States was able to identify this man as Adham
Mohammed Ali Awad ("Awad"), a Yemeni national who had
traveled to Afghanistan in mid-September 2001, and the
petitioner before us.
The siege on the hospital continued for another month. In
early January, one of the a1 Qaeda fighters was killed by his own
grenade as he attempted to escape from the barricaded area. The
standoff finally ended the last week of January 2002, when
Afghan and allied forces killed the remaining a1 Qaeda fighters
and retook the area of the hospital they had held.
C. This Litigation
Awad, who has been held at Guantanamo Bay, Cuba, since
shortly after his capture in 2001, filed a petition in 2005 for a
writ of habeas corpus in the United States District Court for the
District of Columbia. The district court stayed Awad's petition
during the jurisdictional litigation leading to Boumediene. After
Boumediene established that federal courts have jurisdiction to
hear petitions for writs of habeas corpus from detainees at
Guantanamo Bay, the district court lifted the stay of Awad's
case.
The government responded to Awad's petition and asserted
that it had the authority to detain Awad under the AUMF. As
part of its defense of its detention of Awad, the government filed
a factual return in the district court.
The government introduced into evidence multiple
statements from Awad's interrogations. Awad told his
interrogators that he was born in 1982 in Khor Maxar, Yemen.
He traveled to Kandahar, Afghanistan in mid-September 2001.
In either November or December of 200 1, he was injured in an
air raid; his injuries were serious enough to require eventual
amputation of his right leg. At multiple times, Awad told his
interrogators that his purpose in traveling to Afghanistan was to
receive weapons training and to fight U.S. and allied forces. See
ISN 88 Knowledgeability Brief (Feb. 6, 2002) ("he went to
Afghanistan to become a fighter,"); ISN 88 SIR (July 23,2005)
("I went there [to Afghanistan] for two reasons: to visit an
Islamic nation, and to have weapons training."); ISN 88 SIR
(July 8, 2008) (the purpose of his trip was to "relax, gain
weapons training and join the fight in Afghanistan.").
The government also introduced into evidence a list of
names known as the "Tarnak Farms Document." It is
undisputed that Tarnak Farms was an a1 Qaeda training camp in
Afghanistan that provided advanced weapons training to
militants. When U. S. and allied forces captured the facility, they
found a 100-page undated document. One of the items within
the document was a list of names. In the list of names, the name
"Abu Waqas" was listed twice, with one of the entries being
crossed out. The government alleges that "Abu Waqas" is
Awad's kunya, his honorific or pseudonym. Along with the list
of names, this document also contained: "Notes from a weapons
course. Instructions in small arms such as AK47, M16, S.V.D.
sniper rifle, rocket launchers such as RPG2, RPG7, HAN, Z.K.I.
Notes on aiming and distance calculations. Notes on types of
ammunition and its specifications. Instruction from a sniper-
training course." Joint Appendix 59 1-92.
The government also introduced several statements of a1
Joudi, the other person captured at Mirwais Hospital. On
Decemberm 2001 ( 0 a1 Joudi gave ,
his interrogators the names and descriptions of the eight a1
Qaeda fighters he had seen in the Mirwais Hospital. One of the
descriptions was of "Abu ((Wakaas)), a 28-year old Yemeni
m
male; had his right leg amputated." Dec. 2001 interrogation
report of a1 Joudi. The government alleges that "Abu
(Wakaas))" is another transliteration of Awad's kunya. Five of
the names provided by a1 Joudi (including Awad's) match with
names on the list in the Tarnak Farms Document.
To further bolster its case, the government introduced into
evidence contemporaneous news reports describing what
occurred at the Minvais Hospital. Several of these news reports
provided the general background of the siege at the hospital and
the events that occurred within. See Thomas E. Ricks and Karl
Vick, U S . Reports Calm in Afghanistan on Christmas Eve; At
Kandahar Hospital, Arrest Brings Gunfire, WASH. POST,Dec.
25, 200 1, at A2 1; Drew Brown, Armed Patients, Not the Sick,
Biggest Concern at Hospital, MIAMI HERALD, Dec. 26,2001, at
21A.
Some of the other news articles directly implicate Awad as
being part of the a1 Qaeda force at the hospital. One article
described how the a1 Qaeda fighters "turned over a sick comrade
yesterday, saying they could not care for him . . . The fighters
surrendered their comrade because they believed his amputated
leg had become infected, witnesses said." Drew Brown, Al-
Qaeda Group Holed Up in Hospital; The Seven Wounded
Fighters Threatened to Commit Suicide. One Seriously Injured
Man was Released., PHIL.INQ., Dec. 30, 200 1, at A10. The
reporter went on to quote an eyewitness to the exchange who
described the a1 Qaeda fighters as saylng when handing over the
man with the amputated leg: "He is our friend, but we cannot
take care of him, so we must turn him over to you, regardless of
what you do with him." Id. Another news report quoted a
doctor who went in to talk to the people behind the barricade.
Karl Vick, For A Qaeda Patients, Cautious Care; With
1
Grenades Strapped to Their Sides, Injured Fighters Focus
Wrath on U S . ,WASH. POST, Dec. 20,200 1, at A27. The doctor
reported that all the people said: "We have just one way, and
that is jihad against America." Id.In support of his petition, Awad introduced into evidence an
unsigned "affidavit," a declaration from his counsel, and
additional statements he made to his interrogators. Awad argued
that he had purposes in going to Afghanistan other than to fight
U.S. and allied forces. He contended that while he traveled to
Afghanistan to fight, he did not succeed in his goal of joining
the fight. He claimed that he was injured by an airstrike while
walking through a market in Kandahar, not near the Kandahar
airport as the government maintains. Awad asserted that he
went to the hospital for care, and in some way ended up behind
the barricade. He denied having become "part o f ' a1 Qaeda.
After making their filings, the parties cross-filed for judgment
on the record. The district court held a hearing on the parties'
cross-motions on July 3 1,2008.
On August 12, 2009, the district court entered a
memorandum order denying Awad's petition for a writ of
habeas corpus. Awad v. Obama, 646 F.Supp.2d 20 (D.D.C.
2009). The district court said that it "formally 'received' all the
evidence offered by either side but . . . assessed it item-by-item
for consistency, the conditions in which the statements were
made and documents found, the personal knowledge of a
declarant, and the levels of hearsay." Id. at 23. The district
court dealt first with the legal issues in the case. It held that the
government had the burden of establishing by a preponderance
of the evidence the lawfulness of Awad's detention. Id. at 23-
24. The court also held that the government's authority to
continue to detain Awad depended on the continuation of
hostilities, not on the individual threat posed by Awad if he were
released. Id. at 24.
The court then proceeded to its factual analysis. The court
found that the reason Awad went to Afghanistan was to "join A1
Qaida to fight against the U.S. after the September 11 attack on
the World Trade Center." Id. With regard to the Tarnak Farms
Document, the court rejected Awad's denial that the name "Abu
Waqas" referred to him because he had identified himself with
such a name previously. Id. But the court found the
government's claim that Awad had received training at Tarnak
Farms unsupported because "[wle do not know the purpose of
the list or when it was written." Id. at 25.
The court made a factual finding that Awad was injured on
November 1 or 2, 2001 and went to the hospital shortly
thereafter. Id. at 26. The court then discussed the remaining
evidence. Id. at 26-27.
he court concluded, based on
all these factual findings, that "it appears more likely than not
that Awad was, for some period of time, 'part o f a1 Qaida. At
the very least Awad's confessed reasons for traveling to
Afghanistan and the correlation of names on a the [sic] list and
clearly tied to a1 Qaida make it more likely than not
that he knew the a1 Qaida fighters at the hospital and joined
them in the barricade." Id. The district court denied his petition
for a writ of habeas corpus. Id. Awad appeals from this adverse
judgment.
II. ANALYSIS
Awad makes several legal and factual challenges to the
district court's decision. Before considering the legal
challenges, we will first address Awad's challenges to the
factual findings of the district court.
A. Evidentiary Challenges
Awad makes three types of evidentiary arguments. First, he
challenges the district court's reliance on certain individual
pieces of evidence. Second, he defends two of the district
court's factual findings that were favorable to him. Third, he
argues that considering all of the evidence before the court, it
was clear error to find that he was "part of' a1 Qaeda through his
actions behind the barricade in Mirwais Hospital. We will
consider these challenges in turn.
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 Bessemer, 470 U.S. 564, 572 (1985). "We
f
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 Carriers, 595 F .3d 1290, 1294
f
(D.C. Cir. 20 10) (quoting Halberstam 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 o Bessemer, 470 U.S. at 573-74)
f
(omission in Overby).
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. Cf: United States v. Bowie, 198 F.3d
905, 912 (D.C. Cir. 1999) ("[Wle have been mindful of our
responsibility to evaluate the impact of the undisclosed evidence
not in isolation, but in light of the rest of the trial record.").
Awad makes a general attack that the district court
committed error in relying upon unreliable hearsay evidence.
This general attack, however, does not further Awad's case. We
have already held that hearsay evidence is admissible in this
type of habeas proceeding if the hearsay is reliable. See Al-
Bihani v. Obama, 590 F.3d 866, 879 (D.C. Cir. 2010) ("[Tlhe
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."). The Supreme Court's plurality opinion
in Hamdi, 542 U.S. at 533-34, expressly states:
[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 Government in such a
proceeding.
Thus, the 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. This Awad has not done.
The district court relied upon the Tamak Farms Document
to corroborate the statements of a1 Joudi and -
.
Awad alleges it was error for the district court to use the Tamak
Farms Document for any purpose, as it had previously refused
to rely on the Tamak Farms Document to show that Awad
trained at Tamak Farms. Awad misreads the district court's
opinion. The district court did not hold that the Tarnak Farms
Document was useless or unreliable. The district court only
found that the document was not necessarily a list of trainees, so
it could not substantiate a finding that Awad trained at Tarnak
Farms. 646 F.Supp.2d at 25. But such a finding does not
preclude the district court from using the document for other
purposes. Even though the district judge did not know what the
purpose of the list of names was, he knew that it was a list found
in an a1 Qaeda document discovered at a terrorist training camp
that contained two listings of Awad's kunya. Awad does not
challenge the district court's factual finding that the references
in the document are to him. The district court took the Tamak
Farms Document, considered the circumstances of the
document, and weighted it accordingly in its analyses of the
various questions with which it was presented. It was not error
for the district court to find the document relevant on some
issues, but not others.
Awad attacks the district court's reliance on statements of
a1 Joudi. Awad asserts that the government assessed a1 Joudi
was lying when he denied his own involvement in a1 Qaeda, and
therefore, none of his statements should be believed. But a1
Joudi made two types of statements: he made statements
exculpating himself and statements incriminating others. The
government interrogators noted disbelief of a1 Joudi's
exculpatory statements, but made no such notations as to a1
Joudi's statements incriminating others. Awad argues that since
the government assessed a1 Joudi to be a liar on one topic
(whether he was part of a1 Qaeda), it was clear error to rely on
his statements about different topics (whether others were part
of a1 Qaeda).
Such an argument is contrary to long established analysis of
witness testimony. It is a standard jury instruction that a juror
can choose to believe all of what a witness says, some of what
a witness says, or none of what a witness says. See US. v.
Glover, 73 1 F.2d 41,44 n. 6 (D.C. Cir. 1984) ("You are the sole
judge of the credibility of the witnesses. In other words, you
alone are to determine whether to believe any witness and the
extent to which any witness should be believed.") (quoting
Criminal Jury Instructions for the District of Columbia,
Instruction 2.11). In a1 Joudi's case, it accords with common
sense that he may have had a motivation to lie about his own
involvement in nefarious activity but not have the same
motivation to lie about the involvement of another.
Of course, the fact that a witness may have lied on one topic
may be considered in determining the credibility of his
statements about other matters. But that assessment, that
weighing, is for the finder of fact. Our review of the fact
finder's decision to credit some of the statements of an
individual but not others is reviewed for clear error. Awad
makes no showing that the district court committed clear error
in crediting a1 Joudi's statements identifying the a1 Qaeda
-
fighters inside the hospital.
Awad attacks the district court's reliance on correlation of
names among the a1 Joudi list, the Tamak Farms Document, and
because the names in the various lists do not
match perfectly. But the govemment need not, and does not,
assert that there is perfect correlation. Rather, the govemment
asserts just what the district court found: the correlation of
names on the lists is too great to be mere coincidence. There is
no requirement of 100% overlap for one document to
corroborate another. The listing of identical names in the
and in a1 Joudi's list indicates that a1 Joudi's
statements identifylng the other a1 Qaeda fighters were reliable.
The district court did not err in finding that the correlation
among names in the four lists lent credibility to a1 Joudi's
statements identifylng the a1 Qaeda fighters.
Awad defends two favorable factual findings of the district
court: that Awad did not train at Tarnak Farms and that Awad
amved at Minvais Hospital one month before the a1 Qaeda
fighters arrived. The first argument is not relevant to our
review; the government is not challenging the district court's
factual finding that Awad did not train at Tarnak Farms and is
not placing any reliance upon any such training for its authority
to continue to detain Awad pursuant to the AUMF.
As to the second argument, regarding when Awad arrived
at the hospital, the district court found that Awad amved at the
hospital on or about November 1,200 1. 646 F.Supp.2d at 26.
The government argues that this factual finding was clearly
erroneous and that he arrived in the first week of December
along with the group of a1 Qaeda fighters who created the
barricade. We need not decide this issue, as it does not affect
the outcome of the case. The government's evidence that Awad
was "part of' a1 Qaeda does not depend on when Awad arrived
at the hospital. Rather, the factual assertion is simply that when
the a1 Qaeda fighters took over part of Mirwais Hospital, Awad
joined them behind the barricade. The truth of that assertion is
unrelated to his arrival date. It is immaterial whether Awad had
already been at the hospital for a month, a week, or a day. This
factual issue is irrelevant to whether Awad was "part of' a1
Qaeda. None of Awad's evidentiary arguments demonstrate
clear error by the district court.
We next consider whether the district court, in light of aN
of the evidence, made an erroneous finding that Awad was "part
of' a1 Qaeda. Reviewing all the evidence, it is plain that the
district court made no error in its ultimate conclusion. Awad's
statements of intent are undisputed. Awad repeatedly told U.S.
interrogators that the reason he traveled to Afghanistan in mid-
September 2001 was to join the fight against U.S. and allied
forces. The district court found that the reason Awad traveled
to Afghanistan was to fight, and Awad does not challenge that
finding on appeal. The government acknowledges that intention
to fight is inadequate by itself to make someone "part of' a1
Qaeda, but it is nonetheless compelling evidence when, as here,
it accompanies additional evidence of conduct consistent with
'
an effectuation of that intent.
Other unchallenged evidence includes Awad's concession
that he "was surrendered by the insurgents and detained by
Afghan forces at Mirwais Hospital on December 200 1 . . . ."
Appellant's Br. 5. The further evidence of the events at the
hospital underscores how incriminating this concession is. A
group of a1 Qaeda fighters took over part of the Minvais
Hospital. The part of the hospital not under a1 Qaeda control
continued functioning and treating patients. Awad admits that
he was "surrendered by the insurgents." This supports the
district court's understanding that Awad was behind the a1
Qaeda barricade at the Mirwais Hospital. If Awad had not been
behind the barricade with the a1 Qaeda fighters, he could not
have been "surrendered" to U.S. allied forces. Awad could
simply have left. But, as he tells us, he was surrendered by a1
Qaeda forces. The district court could properly find that Awad
was behind the barricade with the a1 Qaeda fighters.
The district court also had before it evidence identifying
'
Of course, the AUMF grants authority to the
President to detain individuals for reasons other than for
being members of a1 Qaeda or the Taliban.
Both the a
The -
Awad as one of the a1 Qaeda fighters. The statements of a1
Joudi identified Awad as being one of the a1 Qaeda fighters.
This identification even specifically identified that Awad had an
amputated leg.
identification because of the overlap of names.
n
corroborates this
d the Tarnak Farms Document
include names used by Awad. Awad does not challenge the
district court's factual finding that he used those names on
appeal. While the appearance of his name on a1 Qaeda
documents may not, by itself, be adequate to support a factual
finding that he was "part of' a1 Qaeda, it certainly provides
support for the district court's overall factual conclusion that
Awad was "part of' a1 Qaeda.
The court also had before it multiple news reports. These
accounts support the finding that Awad was one of the a1 Qaeda
fighters. While the news reports are hearsay, the district court
could properly treat them as reliable. The reports were written
contemporaneouslywith the events that occurred. The reporters
who wrote the articles in December of 2001 had no reason to
even imagine that the events occurring at the hospital would
eventually be at issue in a court of law of the United States.
They had no reason to falsify their reports. The information in
the reports is hearsay, but as we discussed above, hearsay may
be relied upon in this type of proceeding if the district court has
reason to believe that the hearsay is reliable.
To summarize, the evidence before the district court was
that: Awad traveled to Afghanistan for the purpose of fighting
against U.S. and allied forces; he was with the a1 Qaeda fighters
behind the barricade in the hospital; he was surrendered by the
a1 Qaeda fighters; a1 Joudi, who was there, identified him as
being one of the a1 Qaeda fighters; a1 Joudi's statements were
corroborated by documentary evidence; and Awad's name
appeared in two highly relevant pieces of documentary
evidence. Additionally, contemporaneous newspaper reports
identified Awad as one of the a1 Qaeda fighters. Against this
evidence, the district court had only Awad's self-serving
statements of innocence, which the district court, as finder of
fact, did not credit.
Determining whether Awad is "part of' 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. Simply
recounting the evidence establishes that under either standard of
review, the district court's conclusion that Awad was "part of'
a1 Qaeda was not erroneous. Awad has not come close to
meeting his burden of showing reversible error in the district
court's finding that Awad was "part of' a1 Qaeda at Minvais
Hospital during December 200 1.
B. Legal Challenges
Awad challenges three of the district court's legal holdings.
These we review de novo. See Al-Bihani, 590 F.3d at 870.
First, Awad challenges the district court's holding that the
government must prove its authority to continue to detain him
by a preponderance of the evidence. He argues that the
government has to meet its burden by clear and convincing
evidence. He is incorrect. We have already explicitly held that
a preponderance of the evidence standard is constitutional in
evaluating a habeas petition from a detainee held at Guantanamo
Bay, Cuba. See Al-Bihani, 590 F.3d at 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.").
The Al-Bihani holding follows the Supreme Court's
guidance to lower courts in the Hamdi plurality. See Hamdi,
542 U.S. at 534 ("Thus, once the Government puts forth credible
evidence that the habeas petitioner meets the enemy-combatant
criteria, the onus could shift to the petitioner to rebut that
evidence with more persuasive evidence that he falls outside the
criteria. A burden-shifting scheme of this sort would meet the
goal of ensuring that the errant tourist, embedded journalist, or
local aid worker has a chance to prove military error while
giving due regard to the Executive once it has put forth
meaningful support for its conclusion that the detainee is in fact
an enemy combatant."). Our precedent in Al-Bihani is clear, and
"[wle, of course, are without authority to overturn a decision by
a prior panel of this Court." Louisiana Public Service Comm 'n
v. FERC, 522 F.3d 378,390 (D.C. Cir. 2008). Awad seems to
argue that there is some uncertainty in the evidentiary standard.
Lest there be any hrther misunderstandings, let us be absolutely
clear. A preponderance of the evidence standard satisfies
constitutional requirements in considering a habeas petition
from a detainee held pursuant to the AUMF.*
Awad next argues that the district court erred in denying his
petition without a specific factual finding that Awad would pose
a threat to the Untied States and its allies if he were released.
Again, Al-Bihani forecloses this argument. Al-Bihani makes
plain that the United States's authority to detain an enemy
combatant is not dependent on whether an individual would
pose a threat to the United States or its allies if released but
rather upon the continuation of hostilities. 590 F.3d at 874.
Awad again attempts to insert uncertainty into this court's prior
holding where there is none. Whether a detainee would pose a
Like the Al-Bihani court, 590 F.3d at 878 n. 4, we
note that our analysis here does not establish that
preponderance of the evidence is the constitutionally-required
minimum evidentiary standard.
threat to U.S. interests if released is not at issue in habeas corpus
proceedings in federal courts concerning aliens detained under
the authority conferred by the AUMF.
Awad's last challenge is that it is not enough that he was
found to be "part of' a1 Qaeda. He argues that there must be a
specific factual finding that he was part of the "command
structure" of a1 Qaeda. There is no such requirement under the
AUMF. See AUMF ("That the President is authorized to use all
necessary and appropriate force against those nations,
organizations, or persons he determines planned, authorized,
committed, or aided the terrorist attacks that occurred on
September 11,2001, or harbored such organizations or persons,
in order to prevent any future acts of international terrorism
against the United States by such nations, organizations, or
persons."). Nowhere in the AUMF is there a mention of
command structure.
The distinction here is between defining what is necessary
and what is sufficient. If the government can establish by a
preponderance of the evidence that a detainee was part of the
"command structure" of a1 Qaeda, this satisfies the requirement
to show that he was "part of' a1 Qaeda. But there are ways other
than making a "command structure" showing to prove that a
detainee is "part of' a1 Qaeda. For example, if a group of
individuals were captured who were shooting at U.S. forces in
Afghanistan, and they identified themselves as being members
of a1 Qaeda, it would be immaterial to the government's
authority to detain these people whether they were part of the
"command structure" of a1 Qaeda. Once Awad was "part of' a1
Qaeda by joining the a1 Qaeda fighters behind the barricade at
the hospital, the requirements of the AUMF were satisfied. See
Al-Bihani, 590 F.3d at 872 (holding that under the AUMF, a
person may be lawfblly detained if, inter alia, he was "part of'
a1 Qaeda forces). Awad points us to no authority from this court
or the Supreme Court that would counsel a different decision.
III. CONCLUSION
The federal judiciary now has the duty of evaluating the
United States military's detention of those it deems part of
enemy forces. Because of the unique nature of the conflict in
which the United States is now involved, the Supreme Court has
recognized that we may need to alter or amend our normal
procedures to accommodate the important national security and
practical concerns created by bringing these cases before Article
1 1courts. In some cases district courts have ordered detainees
1
released for lack of evidence, but this is not such a case. Awad
admits that the reason he traveled to Afghanistan was to join the
fight against U.S. and allied forces. He then succeeded in that
goal by joining a group of a1 Qaeda fighters who took over part
of a hospital and barricaded themselves therein. We also reject
Awad's legal challenges. Prior decisions of this court clearly
hold that a preponderance of the evidence standard is
constitutional and that there is no requirement that the
government must show that a detainee would be a threat if
released in order to detain him. Further, Awad points us to no
legal authority for the proposition that he must be a part of a1
Qaeda's "command structure" to be detained. Accordingly, we
affirm the district court's denial of his petition for a writ of
habeas corpus.
So ordered.