i hon. reggie b. walton, district judge i · qader ahmed hussain; petitioner-appellant, i - v. i ....

~----~

I UNCLASSIFIEDIIFOR PUBLIC RELEASE

Filed with Cla~sifie~I ORAL ARGUMENT NOT YET scllfllmllim secun~

Case No 11-5344 CTSO ~ I Date c 25rtz

I ~TEDSTATESCOURTOFAPPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

I ABDUL AL QADER AHMED HUSSAIN

I Petitioner-Appellant

I - v shy

I BARACK OBAMA et al

Respondents-Appellees

I On appeal from The United States District Court I for the Pistrict OfColumbia Civil Action No 05-CV-2104

Hon Reggie B Walton District Judge

I I BRIEF FOR APPELLANT ABDUL AL QADER AHMED HUSSAIN

I Wesley R Powell WlLLKIE F ARR amp GALLAGHER LLP

I 787 7th Avenue New York NY 10019

I (212) 728-8890

Counsel for the Petitioner-Appellant

I Dated April 23 2012

Imiddot I 1 UNCLASSIFIEDIIFOR PUBLIC RELEASE

USCA Case 11-5344 Document 1375157 Filed 05232012 of 56


I CERTIFICATION AS TO PARTIES RULINGS AND RELATED CASES

I I Pursuant to Circuit Rule 28(a)(1) counsel for petitioner-appellant

certifies as follows Parties and amici Abdul Al Qader Ahmed Hussain1 (ISN

I 690) is one of several petitioners in the civil action captioned Issam Hamid Ali Bin

Al Jayji et al v Barack H Ohama et ai No 05-2104 filed October 27 2005

I Mr Hussain is the real party in interest and appellant in this court

I The respondents in the District Court and the appellees in this Court

I

I

are Barack Obama President of the United States Leon E Panetta Secretary of

I Defense Army Col Donnie Thomas Commander Joint Detention Group

Guantanamo Bay and Admiral Jeffrey Harbeson United States Navy

Commander Joint Task Force-GTMO (hereafter the Government)

I I Rulings under review The rulings at issue in this appeal are the

order and classified memorandum opinion issued by Judge Reggie B Walton on

I October 12 2011 The memorandum opinion was unclassified and entered in the

I docket on October 27 2011 The order is in the Classified Joint Appendix at

I JA00570 and the memorandum is at JA00549

I Due to inconsistency in Arabic to English transliteration Mr Hussains

I middot1 name has been spelled a variety of ways in the course of this litigation in

pleadings and the underlying record For consistency herein Appellant uses the spelling ofhis name as it appeared in the caption of his original petition


USCA Case 11-5344 Document 1375157 Filed 05232012 Page 2 of 56


I Related cases The case on review DDC Civil Action No 05shy

I 2104 was previously before this court in In re Guantanamo Bay Detainee

I Litigation08-442 an appeal by Respondents-Appellees from the District Courts

I order in those consolidated actions requiring advance notice of the transfer of

I detainees from Guantanamo Bay

I Other than the foregoing counsel is not aware of any related cases

within the meaning of Circuit Rule 28(a)(1)(c) although some related issues are

I raised by different Guantanamo petitioners in multiple other actions in the District

I Court and in the Court ofAppeals

I I I I I I I I I 11




I TABLE OF CONTENTS

I

I I CERTIFICATION AS TO PARTIES RULINGS AND RELATED CASES i

TABLE OF CONTENTS iii

I

TABLE OF AUTHORITIES v

I GLOSSARy vii

PRELIMINARY STATEMENT 1

STATEMENT OF JURISDICTION 3

I I STATEMENT OF ISSUES 4

RELEVANT STATUTES AND REGULATIONS 5

STATEMENT OF FACTS 6

I STATEMENT OF CASE 11

I SUMMARY OF ARGUMENT 12

STANDARD OF REVIEW 14I ARGUMENT 15

I I THE DISTRICT COURT APPLIED AN ERRONEOUS LEGAL STANDARD FOR DETENTION 15

I A The Part Of Standard Exceeds the Pennissible Scope of Detention Under the AUMF 15

I 1 The AUMF does not authorize the detention of individuals who have not engaged in hostilities

I against the United States 18

2 The part of standard deprives detainees of theirI right to a meaningful review of their detention 19

I III




I 3 The District Court improperly affirmed Mr

I Hussains detention on a guilt by association theory 21

I II ALMERFEDI v OBAMA DOES NOT CONTROL THE DECISION IN THIS CASE 22

I A The District Court Deprived Mr Hussain of an Individualized Determination of His Detainability 22

I B This Case Is Distinguishable from Almerfedi 25

I III THE DISTRICT COURTS FACTUAL FINDINGS WERE INSUFFICIENT TO SUPPORT ITS CONCLUSION THAT MR HUSSAIN WAS PART OF THE TALIBAN OR ALI QAEDA 30

A The District Court Erred in Failing to Distinguish I Between Purported Evidence of an Affiliation with Al Qaeda and Purported Evidence of an Affiliation with the

I Taliban 30

B The Fact That Mr Hussain Stayed at IT Mosques While I in Pakistan Does Not Support His Detention 32

I C The Fact that Mr Hussain Befriended Thee Taliban Guards and Was Shown How to Use a Kalashnikov Is Insufficient to Support Detention 36

I D The Alleged Conflicts in Mr Hussains Testimony About

His Travel Plans After September 11 2001 Do NotI Support His Detention 42

I CONCLUSION 46

CERTIFICATE OF COMPLIANCE 47

I I I IV




I TABLE OF AUTHORITIES

I FEDERAL CASES

I AI-AdaM v Obama 613 F3d 1102 (DC Cir 2010) 31

AI-Bihani v Obama 590 F3d 866 (DC Cir 2010) 14 16 19

I

I

middotAlmerfedi v Obama 654 F3d 1 (DC Cir 2011) 22-2533353943

I Almerfedi v Obama 725 F Supp 2d 18 (DDC 2010) 21

Awad v Obama 608 F3d 1 (DC Cir 2010) 14 1624

Barhoumi v Obama 609 F3d 416 (DC Cir 2010) 1424

I

I

middotBensayah v Obama 610 F3d 718 (DC Cir 2010) 14 17212242

I Boumediene v Bush 533 US 723 (2008) 3 16 17 1920

Elbrandt v Russell 384 US 11 (1966) 21

Gherebi vObama 609 F Supp 2d43 (DDC 2009) 20

I Hamdi v Rumsfeld 542 US 507 (2004) 171819

I Hamlily v Obama 616 F Supp 2d 63 (DDC 2009) 20

McKnight v General Motors Corp 511 US 659 (1994) 15I

NAACPv Overstreet 384 US 118 (1966) 21

I Odah v United States 611F3d 8 (DC Crr 2010) 24

I Authorities upon which the Petitioner-Appellant chiefly relies are marked with asterisks

I I I v




I SalaM v Obama 625 F3d 745 (DC Cir 2010) 25

I Sulayman v Obama 729 F Supp 2d 26 (DDC 2010) 36373840

I FEDERAL STATUTES

I I 28 USC sect 1291 3

28 uSC sect 1331 3

28 USC sect 2241 3

I 28 USC sect 2253 3

I Fed R Civ P 52 14

The Authorization for Use of Military Force (AUMF) Pub 1 107shyI 40 115 Stat 224 515

Military Commission Act of 2006 Pub L No 109-366 sect7 120 Stat I 2600 236-37 (2006)

I I I I I I I I

11

VI

UNCLASSIFIEDIIFOR PUBLIC RELEASE I



I GLOSSARY

I Pursuant to DC Circuit Rule 28(a)(3) the following is a glossary of

I abbreviations and acronyms used in this brief

I IAUMF Authorization for Use of Military Force r-------------~

ISN Internment Serial Number

I J A Joint Appendix

I [-]-T------1--I-Jamaat Tablighi

I I I I I I I I I I

______________--

I Vll




I PRELIMINARY STATEMENT

I

I

Abdul Al Qader Ahmed Hussain was fourteen years old when he left

I his home in Al Mukulla Yemen and traveled to Karachi Pakistan and later to

Afghanistan in 1999 JA01303 JA0276115-16 JA027643-10 JA0276920-22

JA0277316-20 In approximately March 2002 Mr Hussain was arrested by I I

Pakistani authorities in Faisalabad Pakistan where he was residing in a house

affiliated with Salafi University JAO 1309 JA02835 10-12 After several weeks

I in a Pakistani prison he was transferred to the custody of the United States and

I moved to the prison at Guantanamo Bay where he has remained for almost ten

years See lAO 13 10 JA01334

I I The District Court denied Mr Hussains petition for habeas relief

from indefinite military detention condemning him to imprisonment potentially

I for life In doing so the District Court made three reversible errors (1) it applied

I an incorrect legal standard for detention (2) it deprived Mr Hussain ofhis right to

I a meaningful review of his detention by holding that a prior decision of this Court

I controlled the habeas determination in his case and (3) it erroneously concluded

that certain uncontested evidence in the record was sufficient to carry the

I Governments burden ofproving a factual basis for Mr Hussains detention under

I the AUMF

I I I

UNCLASSIFIEDIIFOR PUBLIC RELEASE



I Mr Hussains detention cannot be supported on the basis of the

I limited uncontested evidence the District Court considered The judgment below

I should be reversed and Mr Hussain who has now spent his entire adult life

imprisoned at Guantanamo Bay should be released In the alternative the

I judgment of the lower court should be vacated and the case remanded for

I rehearing

I I I I I I I I I I I I

2




I STATEMENT OF JURISDICTION

I The District Court had jurisdiction over this petition for writ ofhabeas

I corpus pursuant to 28 USC sectsect 1331 and 2241(c)(l) and (3) See Boumediene v

I Bush 553 US 723 (2008)

I The District Court issued an order JA00570 and memorandum

opinion JA00549 on October 122011 denying the petition for writ ofhabeas

I corpus The petitioner-appellant filed a timely notice of appeal on December 9

I 2011

I The District Courts order ofOctober 12 2011 constitutes a final

judgment disposing of all parties claims This Court has appellate jurisdiction

I over the final judgment and order denying the petition pursuant to 28 USC sectsect

I 1291 and 2253(a)

I I I I I I I 3




I I STATEMENT OF ISSUES

1 Whether the District Court applied an incorrect legal standard for

I detention under the AUMF

I 2 Whether the District Court improperly deprived petitioner of his right to

I a meaningful review of his detention by concluding that the habeas

determination was controlled by a prior decision of this Court

I 3 Whether the District Court erred in concluding that certain uncontested

I evidence in the record was sufficient to satisfy the Governments burden

I of proving a factual basis for Mr HussainJs detention under the AUMF

I I I I I I I I I 4




I RELEVANT STATUTES AND REGULATIONS

I The AUMF Pub L 107-40 115 Stat 224 sect 2(a)(2001) provides

I That the President is authorized to use all necessary and appropriate force against those nations organizations or persons he determines planned authorized committed or I aided the terrorist attacks that occurred on September 11 2001 or harbored such organizations or persons in order to

I prevent any future acts of international terrorism against the United States by such nations organizations or persons

I I I I I I I I I I I I 5




I STATEMENT OF FACTS

I A Childhood in Yemen

I Mr Hussain was born in November 1984 in Al Mukulla Yemen

I located on the Arabian Sea coast JA01303 JA01303 He comes from a stable

home and is the oldest of five siblings See JA0276122-25 His father

I I I JA00288-89 JAOOI705 JA027657-I5 Mr

I Hussain was educated at the Al Falah Local Primary Schools in Al Mukulla and

received religious education in several local mosques JA00289

I B Travel to Pakistan and Afghanistan (1999-2002)

I I In 1999 when Mr Hussain was fourteen years old his father

encouraged him to travel to Pakistan to continue his education and engage in

charitable work JA01303 JA027643-10 JA027665-JA0276723 After

I obtaining a Yemeni passport and Pakistani entry visa Mr Hussain flew from

I Sanaa Yemen to Karachi Pakistan using an airline ticket and with travel funds

I both provided by his father JA01303-04 JA02767 17-19 lA028437-15

I After a brief stay in Karachi Mr Hussain traveled to Quetta Pakistan

where he stayed at a local mosque operated by JT an Islamic charitable

I organization for a period of about three months JA01304-06 lA027752-3

I 6




I

I

JA027772-6 During his time at the JT mosque Mr Hussain studied the Koran

I and looked for opportunities to pursue his charitable mission See JA02777S-IS

For Mr Hussain the IT mosque was a safe comfortable resting place where he

could pursue the purposes of his travel - to study the Koran and participate in

I I

charitable relief efforts J AO1306 At no time did Mr Hussain join the JT

organization indeed his association with JT was limited to brief stays at two JT

I mosques one in Quetta and one in Lahore Pakistan JA01306-07

I Between approximately February of2000 and March of2002 Mr

Hussain made a series of trips from Quetta to Kabul Afghanistan in an effort to

I I

assist the victims of war in the Kabul area who were left orphaned disabled and

impoverished See JA01304-06 JA01331 JA027793-1S Prior to his first trip to

I Kabul Mr Hussain met a man named Kahn who offered to help Mr Hussain

I arrange his travel and other logistics for his trip JA013S JA027792S-JA027802

Mr Hussain ultimately traveled with Mr Kahn to Kabul on his first visit there

I I

JA02781 10-19 JA027824-5 After staying in Afghanistan for approximately

three months during this first trip Mr Hussain returned to Quetta and the JT

I mosque in approximately April or May 2000 JA01307 JA027891S-JA027902

I In approximately June of 2000 Mr Hussain again traveled to the Kabul area for a

period of approximately three months by the same route and method of travel he

I I 7




I followed previously JA027902-JA02791 2 He returned to Quetta and the JT

I mosque in approximately August 2000 JA01307 JA0279118-23

I In approximately November of2000 (around the time of his sixteenth

I birthday) Mr Hussain took his final trip to Kabul JA01331 JA027923-5

During this visit to Afghanistan Mr Hussain became acquainted with three young

I Afghani men whom he learned were members of the Taliban JA01307

I JA027938-9 JA027941-3 JA0279521-23 The Taliban was the ruling force in

I Kabul at this time and thus Mr Hussain was neither surprised nor alarmed to

I meet Taliban soldiers See JA01307 JA0279612-18

In early 2001 these young men informed Mr Hussain that they would

I be traveling to an area north of Kabul and invited Mr Hussain to accompany them

I JA0279318-25 JA0279424-JA027958 This area known as the Shornali Plain

I and once considered the breadbasket of Afghanistan had by this time been

I heavily impacted by the war between the Taliban and Northern Alliance See

JA02008 JA027994-10 JA028006-20 Although the area in which these men

I resided was no longer itself an area of battle (the battle lines instead were some

I distance away) prior fighting in the area and surrounding region had rendered it

I home to thousands ofwar refugees and the site ofhumanitarian relief work

I JA02008-09 JA027994-10 JA028006-24 JA0280317-18 Because he was

I 8




I I

interested in assisting civil war refugees Mr Hussain accompanied these men to

the Shomali Plain region JA01308 JA027953-8 During his time there Mr

I Hussain resided in a detached room in the house where his travel companions were

I staying JA0280211-13 JA028039-ll Afghani civilians lived in neighboring

houses JA0279925-JA02800 I JA02803 17-22

I I

Although Mr Hussain understood his travel companions were

associated with the Taliban at no point during the time he spent with them did they

I ask him to join or otherwise assist the Taliban and at no point did he enlist with or

I otherwise provide assistance to the Taliban JA01308 lA0281112-17 At no

point did Mr Hussain participate in or even witness battle between the Taliban

I and the Northern Alliance or any other opposing force JA01308 JA0281115-17

I

I JA0280022-24

I By August 2001 Mr Hussain had grown tired of the rough conditions

in the Shomali Plain and he longed to return to his family in Yemen whom he had

not seen in approximately two years See lAO 1308 JA01332 JA02811 6-11 Mr

I Hussain therefore returned to Kabul with the goal of continuing to Pakistan to

I arrange travel home JA01332-33 Upon arriving in Kabul Mr Hussain began

I planning his return travel to Pakistan JA01333 JA0289411-18 His goal was to

I travel to Islamabad Pakistan where he would visit the Yemeni embassy to obtain

I 9



I UNCLASSIFIEOIIFOR PUBLIC RELEASE

I

I the necessary travel papers for his return to Yemen JA01333 JA028963-6 He

I then intended to arrange his air travel home to Yemen JA0282820-23

JA028974-7

While in Kabul the events of September 112001 occurred which

I I

Mr Hussain heard about on the radio JA0282617-JA028272 A few days after

the events of September 11 2001 Mr Hussain left Kabul for Pakistan

I JA02893 11 Because the taxi services he used for his prior travel route to

I Pakistan were fully occupied JA01332 Mr Hussain arranged to travel by car from

Kabul to Khost Afghanistan where he transferred to a car that took him to Lahore

I I

Pakistan JA01332 JA028273-JA028284

Mr Hussain arrived in Lahore Pakistan in early October 2001 and

I stayed for approximately two weeks at another JT mosque JA028273-16 Upon

I his arrival Mr Hussain learned that Pakistani local authorities were arresting Arab

men en masse for reasons that Mr Hussain did not then fully understand

I JA00295 JA01308-09 Mr Hussain then learned from a visitor to the JT mosque

I about a house in Faisalabad associated with the Salafi University that had room

I available and was reportedly a safer place for a young Arab to stay JAO 1309

I JA028302-24 Mr Hussain determined that moving to the house in Faisalabad

would be both a safer place to stay given the risks to Arab travelers in Pakistan and

I I 10




I afford him an opportunity to continue his Koran studies (with the ultimate goal of

I memorizing the Koran) prior to returning to Yemen JA01309 He therefore

I moved into that house and stayed there for approximately six months until he was

I arrested in approximately March of2002 JA02835 10-12

I STATEMENT OF CASE

On October 272005 Mr Hussains counsel filed a Petition for Writ

I

I

of Habeas Corpus on behalf of Mr Hussain and five other Yemeni detainees in the

I action captioned Al Jayfi et al v Obama et at Case No 05CV2104 On

January 31 2007 the District Court entered an order staying Mr Hussains case

pending the resolution ofjurisdictional questions raised by the Military I

Commission Act of2006 Pub L No 109-366 sect7 120 Stat 2600 236-37 (2006)

I

I

on appeal in Boumediene v Bush 533 US 723 (2008) Following the Supreme

I Courts issuance of its decision in Boumediene on June 30 2008 Mr Hussain

moved for an order to lift the stay to permit his case to proceed on the merits The

District Court granted that motion and reopened the case on July 3 2008

I I

On Apri122 2009 the District Court issued a memorandum opinion

in another Guantanamo habeas case establishing the legal standard for the

I Governments authority to detain individuals at Guantanamo Bay which the

I opinion stated would apply in all Guantanamo habeas cases pending before the

District Court JA00230 JA00277 On December 142009 Mr Hussain filed a

I 11




I Motion for Judgment seeking dismissal of the Governments case against Mr

I Hussain That motion was denied in a memorandum and order dated January 27

I 2010 JA00368 JA00382 Mr Hussains merits hearing occurred over three days

I in May 2010 with closing arguments in September 2010 JA02534-3101 The

I court issued its decision and order on October 122011 JA00549 JA00570 The

court denied the writ holding that the Government presented sufficient evidence

I to justify the petitioners detention JA00565 This appeal followed

I SUMMARY OF ARGUMENT

I This Court should reverse the District Courts judgment because it

committed three reversible errors First the District Court applied the wrong legal

I I

standard in determining whether the Government had the authority to detain Mr

Hussain To establish the Governments power to detain Mr Hussain the AUMF

I and Supreme Court precedent require proofthat Mr Hussain was both part of an

I enemy organization and engaged in hostilities against the United States or its allies

The District Court concluded that Mr Hussain was part of AI Qaeda or the

I Taliban (which Mr Hussain contests) but did not conclude that Mr Hussain

I engaged in hostilities against the United States or its allies Nonetheless the

I District Court found that certain uncontested evidence was sufficient to support the

I Governments authority to detain because it demonstrated that Mr Hussain was

part of the Taliban or Al Qaeda

I 12




I I The District Court also erred in determining that its review of Mr

Hussains detention was constrained by prior precedent of this Circuit which the

I

I

District Court concluded controlled the outcome of Mr Hussains habeas petition

I Purporting to follow that prior decision the Court limited its evaluation of the

record to certain uncontested facts which it concluded were sufficient to support

detention notwithstanding the substantial differences between the Governments I

allegations and evidence presented in the two cases As a result the District Court

I

I

deprived Mr Hussain of a meaningful case-specific review of whether the

I evidence in the record was sufficient to justify his indefinite detention

Finally the District Court erred in concluding that the purportedly

uncontested evidence on which it relied was sufficient to satisfy the Governments I I

burden to establish by a preponderance of the evidence its authority to detain Mr

Hussain under the part of standard More specifically the District Court

I wrongly concluded that uncontested evidence purporting to establish three

I particular findings of fact was sufficient to justify Mr Hussains indefinite

detention

I I

This Court should reverse the judgment below and direct the District

Court to enter an order granting the writ of habeas corpus or alternatively vacate

I the judgment of the District Court and remand the case for further proceedings

I 13


bull



I STANDARD OF REVIEW

I The District Courts legal conclusions including its ultimate habeas

I determination are reviewed de novo while its factual findings are reviewed for

I clear error See Bensayah v Obama 610 F3d 718 723 (DC Cir 2010) Awad v

Obama 608 FJd 1 7 (DC CiT 2010) Fed R Civ P 52(a)(6) Whether a

I detainee was part of At Qaeda or the Taliban is a mixed question of law and fact

I whether certain detainee conduct warrants detention pursuant to the AUMF is a

I legal question the court reviews de novo see Bensayah 610 F3d at 723 whether

I the Government has presented evidence sufficient to prove a detainee engaged in

such conduct is a factual question reviewed for clear error See Barhoumi v

I Obama 609 F3d 416423 (DC Cir 2010)

I I I I I I I I 14




I ARGUMENT


I A The Part or Standard Exceeds the Permissible Scope of Detention Under the AUMF

I The Governments authority to detain prisoners at Guantanamo Bay

I derives from the AUMF which authorizes the President to

I use all necessary and appropriate force against those nations organizations or persons he detennines planned

I authorized committed or aided the terrorist attacks that occurred on September 11 2011 or harbored such organizations or persons in order to prevent any future I acts of international terrorism against the United States by such nations organizations or persons

I AUMF 115 Stat 224 By its plain terms the AUMF limits the Presidents

I detention authority to persons who are (1) responsible for the September 11 2011

I attacks (or those who knowingly sheltered them) and (2) who must be detained in

I order to prevent future acts of terrorism against the United States See id

I Petitioner acknowledges that the arguments related to detention authority

I presented in this section are foreclosed by Circuit precedent See Al-Bihani v Obama 590 F3d 866 (DC Cir 2010) Awad v Obama 608 F3d 1 (DC Cir 2010) Petitioner respectfully asserts these arguments in order to

I I preserve them for potential Supreme Court review See McKnight v

General Motors Corp 511 US 659 660 (1994) (filing an appeal on an issue foreclosed by Circuit precedent was the only way the petitioner could preserve the issue pending a possible favorable decision by this Court)

I 15




I While the Supreme Court in Boumediene 553 US 723 (2008) held

I that individuals detained by the Government were entitled to the privilege of

I habeas corpus to challenge the legality of their detention it also concluded that

I the extent of the showing required of the Government in these cases is a matter to

be determined in future proceedings Id at 787 Following this directive the

I

I

District Court held in a related case that to justify detention the Government must

I show that a detainee had some sort of structured role in the hierarchy ofthe

enemy force JA00273 (explaining that only persons who receive and execute

I orders within [a terrorist organizations] command structure are analogous to

combantants in international armed conflicts) This was the legal standard that

I governed this case at the time of Mr Hussains habeas corpus hearing

I However in a series ofdecisions issued between Mr Hussains

I habeas hearing and the District Courts issuance of the decision below this Court

I rejected the command structure and similar standards formulated in the District

I Courts of this Circuit See AI-Bihani v Obama 590 F3d 866871 (DC Cir

2010) Awad v Obama 608 F3d 1 11-12 (DCCir 2010) (rejecting appellants

I argument that there must be a specific factual finding that he was part of the

I command structure of al Qaeda and noting that nowhere in the AUMF is there

I a mention of command structure) This Court instead held that the Government

I 16




I may establish the lawfulness of the petitioners detention by showing that he is

I

I

part of the Taliban al Qaeda or associated forces Al-Bihani 590 F3d at 872

I Bensayah 610 F3d at 725 ([W]e have made clear that the AUMF authorizes

the Executive to detain at the least any individual who is functionally part of al

Qaeda) Awad 608 F 3d at 11 (Once [a petitioner is shown to be] part of alI Qaeda the requirements of the AUMF [are] satisfied) The District Court

I

I

followed those decisions in denying the writ to Mr Hussain holding that [o]nce

I the Government has established by a preponderance of the evidence that the

petitioner was part ofal Qaeda and Taliban forces the requirements of the A UMF

are satisfied and the Government has the authority to detain the petitioner I

(internal quotations omitted) JA00569

I The standard applied by the District Court was inconsistent with the

I limits on Executive detention that are inherent in the plain language of the

I authorizing statute and were recognized by the Supreme Court in Hamdi v

I Rumseld 542 US 507526 (2004) and Boumediene 553 US at 733 Applying

I the part of test the District Court found that the Government had satisfied its

burden ofproofand that Mr Hussain was lawfully detained under the AUMF The

I AUMF however does not support detention where as here the Government has

I failed to offer any proof that the detainee participated in the command structure of

I 17




I either the Taliban or Al Qaeda or otherwise engaged in hostilities against the

I United States or its allies Because the District Court applied an incorrect legal

I standard the judgment must be reversed

I I

1 The AUMF does not authorize the detention of individuals who have not engaged in hostilities against the United States

The AUMF contains no express authorization for military detention

I its focus is on the use of military force See Hamdi v Rumseld 542 US 507 547

I (2004) (Souter 1 concurring) (noting that the statute never so much as uses the

I word detention) In Hamdi however the Supreme Court held that the detention

of a narrowly-defined category of individuals was so fundamental and accepted

I an incident to war as to be an exercise of the necessary and appropriate force

I Congress has authorized the President to use under the AUMF ld at 518

I The Supreme Court went on to define that category of detainable

I individuals noting that

I Under the definition of enemy combatant that we accept today as falling within the scope of Congress

I authorization Hamdi would need to be part of or supporting forces hostile to the United States or coalition partners and engaged in an armed conflict against the I United States to justify his detention in the United States for the duration of the relevant conflict

I I 18




I Id at 526 (emphasis added) Again in Boumediene the Court reiterated that the

I AUMF authorizes detention of individuals who fought against the United States

I

I

in Afghanistan 553 US at 733 The detention standard approved by the

I Supreme Court is conjunctive - that is the Government must show not only that a

detainee is part of hostile force but also that he engaged in armed conflict

against the United States I I The District Court however found only that Mr Hussain was part

of either the Taliban or Al Qaeda It reached no conclusion as to whether Mr

I Hussain had ever engaged in hostilities against the United States or coalition

I partners contrary to Hamdi and Boumediene None of the evidence introduced

I and none of the District Courts bases for denial of the writ is directed to or

I establishes that Mr Hussain fought or engaged in hostilities against the United

States Because the Government failed to prove an essential part of its burden the

I denial of the writ ofhabeas corpus should be reversed

I I

2 The part of standard deprives detainees of their right to a meaningful review of their detention

In Boumediene the Supreme Court recognized that the privilege of

I habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that

I he is being held pursuant to the erroneous application or interpretation of relevant

I 19




I law See Boumediene 553 US at 779 (emphasis added) The District Court

I however applied an interpretation of the AUMF so limited that it renders

I meaningless the right ofhabeas corpus

I By rejecting the command structure test originally adopted by the

District Court below and several other District Courts in this Circuit3 the District

I Court effectively deprived the part of standard of any ascertainable criteria that

I would assist a judge in determining whether a detainee is part of Al Qaeda or the

I Taliban Because the part of standard is so flexible as to permit detention under

I virtually any set of facts Guantanamo detainees right to habeas review is illusory

The District Courts application of the legally incorrect part of standard requires

I the judgment to be reversed

I I

3I Prior to this Courts decision in Al-Bihani several District Courts held that the key inquiry in determining whether a detainee was a part of enemy

I forces is whether the individual functions or participates within or under the command structure of the organization - i e whether he receives or executes orders or directives Hamlily v Obama 616 F Supp 2d 63 (DDC 2009) I Gherebi vObama 609 F Supp2d 43 (DDC 2009) Unlike the part of standard the command structure test required the respondents to show more

I I than mere sympathy for or association with an enemy organization as well

as some level ofknowledge or intent to be part of Al Qaeda or the Taliban Hamlily 616 F Supp 2d at 75 (internal citations and quotations omitted

I 20




I I

3 The District Court improperly affirmed Mr Hussains detention on a guilt by association theory

This Court has repeatedly held that in detennining whether a detainee

I is part of Al Qaeda or the Taliban the inquiry should focus on the actions of the

I individual in relation to the organization Bensayah 610 F3d at 725 (emphasis

I added) However in applying the part of standard to justify Mr Hussains

I detention the District Court improperly relied on his peripheral associations with

individuals Although Mr Hussain may have had interactions with individuals

I who themselves may have been properly detainable under the AUMF these

I associations cannot justify his indefinite detention under the AUMF

I The Supreme Court has long held that the concept of guilt by

I association has no place in American jurisprudence See Elbrandt v Russell 384

US 11 19 (1966) A law which applies to membership without the specific

I intent to further the illegal aims of the organization infringes unnecessarily on

I protected freedoms It rests on the doctrine of guilt by association which has no

I place here Such a law cannot stand Id (citations omitted) accord NAACP v

I Overstreet 384 US 118 122-123 (1966) The concept of guilt by association has

also been specifically rejected by this Court in the context of Guantanamo

I detainees See Bensayah 610 F3d at 725 (holding that there may be other indicia

I that a particular individual is sufficiently involved with the organization to be

I 21




I deemed part of it but the purely independent conduct of a freelancer is not

I enough)

I

I

The District Court relied on Mr Hussains brief relationship with

I three Taliban guards and his temporary residences at JT facilities to justify his

detention Evidence demonstrating that Mr Hussain had relationships with

individual members of the Taliban or that he had a potential opportunity to I

associate with Al Qaeda members while living at JT facilities does not in any way

I

I

indicate that Mr Hussain participated in either the Taliban or Al Qaeda

I organizations The AUMF does not tolerate detention on the basis of mere

associations~ particularly with individuals Accordingly the decision must be

reversed and the writ granted I I

II ALMERFEDI v OBAMA DOES NOT CONTROL THE DECISION IN THIS CASE

A The District Court Deprived Mr Hussain of an Individualized

I Determination of His Detainability

This Court has repeatedly held that the determination of whether an

I I

individual is part ofAl Qaeda or the Taliban must be made on a case-by-case

basis by focusing on the the actions of the individual in relation to the

I I organization See Bensayah 610 F3d at 725 (emphasis added) Rather than

conducting the individualized inquiry required by this Court the District Court

performed a truncated review based on its erroneous conclusion that the District

I 22




I of Columbia Circuits decision in Almerfedi v Obama 654 F3d 1 (DC Cir 2011)

I controls the disposition of this case JA00563

I I

The District Court failed to properly explain how Almerfedi a case

with its own different facts could possibly mandate a particular outcome in Mr

I Hussains habeas case The District Court appears to have interpreted Almerfedi as

I mandating a fonnula for habeas detenninations that three facts probative of an Al

Qaeda or Taliban affiliation combined with purported inconsistency in a

I petitioners testimony render an individual detainable Compare Almerfedi 645

I F3d at 6 (holding that all three facts when considered together are adequate to

I carry the governments burden) with JA00566 (holding that these [three] facts

I when viewed together are more than sufficient to constitute the level of damning

circumstantial evidence that is needed to satisfy the governments burden ofproof

I in this case)

I The District Court of course was bound to apply prior precedent of

I this Circuit with respect to the legal standard for detention and to draw from those

I decisions guidance on how to apply that standard to the facts of this case But the

I District Court went much further here Rather than evaluating the full record in

light ofAlmerfedi and this Courts other Guantanamo detainee decisions the I I 23




I District Court ended its analysis after reaching three findings offact4 The District

I Court determined that Almeredi required a denial of Mr Hussains petition based

I on those findings alone

I As discussed further below however the District Courts reliance on

I Almeredi was misplaced because it is factually distinguishable from this case But

I beyond this the District Courts termination of its analysis based on these limited

findings resulted in a failure to consider the entire record a requirement well

I established in this Circuit See Barhoumi v Obama 609 F3d at 423 Odah v

I United States 611 F3d 8 15 (DC Cir 2010) Furthermore this Court has held

I that a District Courts failure to properly view the evidence as a whole - rather

I than isolating particular allegations or pieces of evidence - is an error of law

I Although the District Court states in its decision that it carefully considered the evidence presented by both parties and the arguments ofcounsel during the merits hearing that commenced on May 252010 and concluded

I September 1 2010 as well as the various documents that have been filed by the parties in this matter and the exhibits attached to these filings JA00549 the District Court only cites to Mr Hussains Declarations his testimony at I the merits hearing and the uncontested facts contained in the Parties Joint Pre-Hearing Statement The District Court did not rely on or make findings

I with respect to purported statements by Mr Hussain or other detainees found in the Governments summary interrogation and intelligence reports all ofwhich Mr Hussain contested on substantive and grounds SeeI JA00565 n12 (the Court need not assess the reliability of the Governments hearsay evidence because the Court finds the Governments

I burden ofproofmet based on the stipulated facts the petitioners sworn declarations and his testimony)

I 24




I requiring reversal See Awad 608 FJd at 6-7 Salahi v Obama 625 F3d 745

I 754 (DC Cir 2010) Because the District Court failed to conduct a proper review

I of the evidence in this case its decision must be reversed

I I B This Case Is Distinguishable from Almerfedi

Even if this court concludes that the District Courts approach to Mr

Hussains habeas review was not improper the District Courts reliance on

I Almerfedi was misplaced in light of the substantial differences between the facts of

I the two cases

I

I The most significant distinction between the two cases is that in

I Almerfedi the Government alleged a single consistent narrative concerning the

petitioners role in al Qaeda the government alleged that Almerfedi was part of

al Qaeda because he served as an al Qaeda facilitator Almerfedi 654 F3d at 3

I To prove that Mr Almerfedi was an AI Qaeda facilitator the Government

I contended that he had engaged in a pattern of behavior consistent with the role of

I an Al Qaeda facilitator In support of this contention the Government proffered

I three key pieces of evidence which this Court found were sufficient - when

combined with Mr Almerfedis incredible explanations of his behavior to

I

I

justify Mr Almerfedis detention (i) he had stayed at the headquarters of JT in

I Lahore Pakistan (ii) while claiming the intent to travel to Europe from his native

25




I Yemen Mr Almerfedi instead traveled to Pakistan (to an area near the Afghan

I border where Al Qaeda was fighting) and then Iran and (iii) he was captured in

I possession ofleast $2000 of unexplained cash Almerfedi 654 F3d at 6middot7

I Although evidence of Mr Almerfedis stay at the JT headquarters by itself

I presumably would not be sufficient to carry the governments burden because there

are surely some persons associated with [JT] who are not affiliated with almiddotQaeda

I the Court found that with the addition of evidence of Mr Almerfedis travel route

I and unexplained cash the governments case that Almerfedi is an al Qaeda

I facilitator is on firmer ground Id at 6

I I Here in contrast the Government never alleged a consistent narrative

concerning Mr Hussains purported role in either the Taliban or Al Qaeda

organizations Indeed the Government has never taken a clear position on whether I

Mr Hussain was specifically part of the Taliban or instead part of Al Qaeda

I

I

Rather the Government has shifted between accusations of an association with the

I Taliban and an association with Al Qaeda depending on which piece of evidence

the Government was advancing For example in its Factual Return the

Government alleged Mr Hussain was a member of or associated with a1-Qaida

I I

and did not contend he was associated with the Taliban JAOO189 By contrast

during the merits hearing the Government argued that Mr Hussains behavior was

I 26




I instead consistent with that of a new recruit to the Taliban forces JA025839shy

I 11 JA025847-13 In other instances the Government declined to choose which

I organization Mr Hussain was associated with or what his role was in either or

I both organizations rather the Government simply contended that Mr Hussain was

part of or substantially supported al Qaeda and the Taliban JA00256810-11

I The Governments lack of specificity and consistency is significant I

and it undermines the District Courts reliance on Almerfedi for several reasons

I

I

Whereas in Almerfedi the Court found all three key pieces of evidence specifically

I supported the theory that petitioner was an Al Qaeda facilitator the three pieces of

evidence cited by the District Court do not collectively point to an association

specifically with either the Taliban or Al Qaeda First the Court in AlmerfediI

found that JT was closely aligned with al Qaeda Almerfedi 654 F3d at 6

I

I

(internal quotations omitted) The Government has not claimed nor does

I Almerfedi establish any connection between JT and the Taliban Thus Mr

Hussains visits to JT mosques in Quetta do not support the Governments

contention that Mr Hussain was a new recruit to the Taliban On other hand the

I I

Government contended and the District Court concluded that Mr Hussains

relationship with three Taliban guards pointed to an association with the Taliban

I JA00565 JA025839-11 JA025847-13 But the Government presented no

I 27




I evidence demonstrating nor did the District Court conclude that Mr Hussains

I relationship with these Taliban guards suggested he was a member of or

I associated with Al Qaeda

I

I

Also significant while Mr Almerfedi admitted staying at the IT

I headquarters in Lahore Pakistan Mr Hussain testified and the District Court

found that Mr Hussain stayed at JT mosques in Quetta and Lahore See

Almerfedi 725 F Supp 2d 1822 (DDC 2010) JA00565 JA01306-07 I JA027775-6 IA0282815-16 This Courts conclusion in Almerfedi that a two

I

I

and one half month stay at the headquarters of an organization with ties to Al

I Qaeda supports the Governments theory that a detainee was an Al Qaeda

facilitator does not mean that temporary residence at two of the many IT-affiliated

mosques attended by the many JT adherents in Pakistan and surrounding countries I

supports a conclusion that Mr Hussain was a Taliban recruit or had some

I undefined association with Al Qaeda5

I I As discussed below the record before the District Court is essentially devoid

of evidence about JT because the Government did not advance at the merits hearing a theory that Mr Hussains stays at JT mosques suggested I membership or other association with Al Qaeda or the Taliban Accordingly any references herein to purported facts about JT are derived

I entirely from this Courts Almerfedi opinion and the District Courts opinion in that case

I 28




I Finally and as discussed further below the Court made a critical

I error in concluding that this Courts analysis of the JT-related evidence in

I I Almerfedi required it to reach the conclusion that Mr Hussains stays at JT

mosques supported his detention given that the Government did not introduce

evidence showing that Mr Hussains interaction with JT connected him to AlI Qaeda The Governments own documents in the record in Almerfedi (but not in

I the record here) describe IT as a legitimate Islamic missionary group

I I Almerfedi 725 FSupp 2d at 29 Yet the Government claimed in Almerfedi that

the particular details ofpetitioners association with JT including his admission

that he was a member of JT in Yemen despite that he is not religious and had no I interest in participating in JTs religious activities suggested his association with

I JT resulted from his Al Qaeda affiliation Almerfedi 725 FSupp 2d at 30 Given

I I that the Government introduced no equivalent evidence of Mr Hussains history

with the organization beyond his visits to JT mosques the District Court

incorrectly concluded its decision was constrained by the analysis of the evidence I

in Almerfedt

I Given these substantial distinctions the District Court erred in

I finding Almerfedt controlled its decision below

I I 29




I III THE DISTRICT COURTS FACTUAL FINDINGS WERE

I INSUFFICIENT TO SUPPORT ITS CONCLUSION THAT MR

I

HUSSAIN W AS PART OF THE TALIBAN OR AL QAEDA

I The District Court based its denial ofMr Hussains petition on three

conclusions of fact that (1) he stayed at two JT mosques (2) he traveled with

II three Taliban guards to an area near the battle lines where he was loaned a rifle

and shown how to use it and (3) his testimony about his actions after the

I

I

September 11 2001 terrorist attacks conflicted with his stated innocent intention of

I returning home to Yemen Whether considered collectively or individually these

factual findings were insufficient to sustain the Governments indefmite detention

of Mr Hussain and the District Courts decision should be reversed I A The District Court Erred in Failing to Distinguish Between I Purported Evidence of an Affiliation with Al Qaeda and

Purported Evidence of an Affiliation with the TaUban

I

I

As discussed above the Government has never taken a clear and

I consistent position on which enemy organization Mr Hussain was part of or

what role Mr Hussain played in the organization nor did the District Court

conclude which organization Mr Hussain was part of or what his role was in the I I

organization Rather the Government has consistently sought to mask the

disparate nature of its factual allegations and purported evidence by declining to

I choose between these two organizations Indeed it remains unclear from the

I 30




I record even now whether the Government contends that Mr Hussain was (i) part

I of both the Taliban and Al Qaeda or (ii) was part of one or the other but it

I cannot be certain which The decision below is equally unclear The District

I Court simply held the Governments evidence was sufficient to establish Mr

Hussain was part of Al Qaeda or the Taliban JA00563

I This lack of distinction between which organization Mr Hussain I

allegedly was part of set up the faulty framework by which the District Court

I

I

analyzed the evidence on which it relied The Court recognized that under Circuit

I law it must consider the evidence in its entirety JA00563 (internal quotations

and citations omitted) and this Court has held that District Courts must apply a

conditional probability approach to assessing evidence offered in support ofI

detention AI-Adahi v Obama 613 F3d 1102 1105 (DCCir 2010) But

I

I

whether one piece of evidence supports detention when combined with another

I necessarily depends on the proposition for which the evidence is offered As

discussed above the District Court concluded Mr Hussains relationship with

three Taliban soldiers was probative of an alleged affiliation with the Taliban I I

JA00565 JA00566 and separately concluded based onAlmerfedi that Mr

Hussains time in two JT mosques is probative of an Al Qaeda affiliation See

I I 31




I JA00565 But it was error to conclude that the JT finding about an al Qaeda

I affiliation reinforces the District Courts finding about a Taliban affiliation

I

I

The fact that the Taliban has provided support to AI Qaeda both

I before and since September 11 2001 does not mean that purported evidence of an

affiliation with one organization necessarily reinforces evidence of an affiliation

I with the other The two organizations have separate leadership military command

structures and recruiting practices See JA00191-92 JA00637 JA02009 The

I

I

Court committed a fundamental analytical error by combining its three factual

I findings without regard to these distinctions or the Governments specific

allegations concerning Mr Hussains affiliation As a result the Court erred in

I concluding that its three factual findings taken together are sufficient to satisfy

the Governments burden ofproof

I B The Fact That Mr Hussain Stayed at IT Mosques While in

I Pakistan Does Not Support His Detention

The District Courts conclusion - based almost entirely on AlmerfediI

- that Mr Hussains temporary residence at two JT mosques while in Pakistan is

I probative evidence in favor ofdetention is clearly erroneous for several reasons

I First in contrast to Almerfedi the Government did not contend that

I Mr Hussains time in JT mosques in Pakistan demonstrated that he was part of

I 32




I

I

JT the Taliban or Al Qaeda Consistent with the District Courts procedures for

I the merits hearing the Government presented four factual contentions which it

sought to prove in order to establish that Mr Hussain was part of the command

structure of the Taliban or Al Qaeda an association with JT was not one of them

I I

See JA02563-69 In fact apart from a few references to JT in certain documents in

the record see eg JA00596 evidence of the association between Al Qaeda and

I JT played no role in the Governments affirmative case against Mr Hussain

I Rather the District Court derived the purported evidence of the alleged connection

between JT and Al Qaeda from Almerfedi

I I Second the JT-related evidence the Government presented and which

was central to the Court ofAppeals decision in Almerfedi is quite distinct from

I

I

the limited evidence concerning JT in the record in this case As discussed above

I the Court in Almerfedi reasoned that Mr Almerfedi s stay for over two months in

the actual headquarters of the JT organization when considered in connection with

I other record evidence was probative of the Governments theory that Mr

Almerfedi was an Al Qaeda facilitator Almeredi 654 F3d at 6-7 This was

I

I

because although JT historically has been a legitimate Islamic missionary group

I the Government had presented evidence that members of religious extremist

organizations including Al Qaeda have infiltrated JT and used it as a cover for

I 33




I terrorist activities Almeifedi 725 F Supp 2d at 29 Here the Government did

I not claim that Mr Hussain ever visited the JT headquarters and Mr Hussain did

I not testify to that fact Nor did the Government claim that Mr Hussain had as Mr

Almerfedi did a long-standing connection to JT starting when he lived in Yemen

I and Mr Hussain offered no testimony to this effect Id at 30 Nor did the

I Government contend that Mr Hussains headquarter-level connection with JT was

I consistent with his role as an Al Qaeda facilitator or other high-level operative as

I in Almerfedi

I Also significant in Almerfedi the District Court noted that the

petitioners extended stay at a JT facility was suspicious given that he is not

I religious and had no interest in participating in JTs religious activity and that he

I failed to provide[] a convincing explanation for why he stayed in the JT center for

I two and on half months See id at 30 By contrast Mr Hussain has consistently

I maintained that one of his goals in traveling to Pakistan was to study and

memorize the Koran a mission which is entirely consistent with staying at a JT

I mosque JA01303 JA027666-7 JA028874-7

I Finally in contrast to Almerfedi the record reflects that Mr Hussain

I has consistently maintained that he stayed at the JT mosques because they

I provided a safe affordable religious environment for a young muslim traveler to

I 34




I stay in See JA00290 JAO 1306-07 Moreover Mr Hussain presented substantial

I expert evidence which the District Court ignored that it was not at all uncommon

I during this time frame for young travelers such as Mr Hussain to seek out rent-

I free quarters such as guesthouses or Jamaat Al Tabligh mosques which are

maintained to give lodging to students ofthe Quran JA01651 Even if as the

I

I

Government suggests members of enemy organizations also used these facilities

I from time to time this would not imply that a teenaged Yemeni Quaran student

would be aware or infonned of their activities Jd JAOl632 (while I cannot

I state that there are no guesthouses associated with terrorist groups in Pakistan the

fact that such an association is uncommon undermines any claim that Mr

I Hussains long-tenn stays in guesthouses (and local mosques with guest facilities)

I implies that he was associated with terrorist activity) 6

I Given the Court of Appeals recognition in Almerfedi that there are

I surely some persons associated with Jamaat Tablighi who are not affiliated with

I al-Qaeda see Almerfedi 654 F3d at 6 Mr Hussains testimony about his time at

these JT mosques - which is the only material evidence in the record about IT

I 6 Notably while the Government contended that Mr Hussains visits to

I certain guesthouses in Afghanistan suggested an association with Al Qaeda

I - a contention Mr Hussain refuted at the merits hearing - it did not rely on his visits to the JT mosques in support of this contention See JA00200-03

I JA02644-53

35




I alone cannot show he was part of Al Qaeda Moreover given the complete lack of

I record evidence of any connection between JT and the Taliban Mr Hussains

I visits to JT mosques are not probative of a connection between Mr Hussain and

I the Taliban For all of these reasons the District Courts conclusion that Mr

I Hussains temporary residence at JT mosques in Pakistan constitutes probative

evidence in favor ofdetention was clearly erroneous

I C The Fact that Mr Hussain Befriended Three Taliban Guards and I Was Shown How to Use a Kalashnikov Is Insufficient to Support

Detention

I The fact that Mr Hussain befriended three young Taliban guards and

I I those individuals temporarily loaned him a Kalashnikov rifle and showed him how

to fire it does not demonstrate that Mr Hussain was as the Government

contended a new Taliban recruit JA025847-13 or otherwise part of the

I Taliban7 The District Court found that the fact that Mr Hussain was entrusted

I with a powerful weapon near the battle lines was probative ifnot conclusive

I evidence supporting the petitioners detention JA00565 Relying on the

I reasoning in Sulayman v Obama 729 F Supp 2d 26 (DDC 2010) the District

Court concluded that this fact suggest[ s] that [the guard] trusted the petitioner

I I 7 The Government has not specifically contended that this shows Mr Hussain

was part of Al Qaeda

I 36




I because he was loyal to their cause JA00566-67 (quoting Suiayman 729 F Supp

I 2d at 51 (explaining that it would be beyond any sense of reason that a

I Taliban guard would allow a noncombatant to be present in an area near the battle

I lines with a deadly weapon) (internal quotations omittedraquo This inference is not

I supported by the record for a number of reasons

I First in reaching this conclusion the District Court focused heavily

on the contention that this activity took place in an area near the lines ofbattleI I

see JA00565 (quoting Suiayman 729 F Supp2d at 50 (concluding that a

detainees presence in a location he described as a staging area near the zone of

I battle is by itself highly probative evidence ofthe detainees status as part of the

I Talibanraquo In this respect however the District Court has misconstrued Mr

Hussains testimony concerning the location where he came in contact with the

I gun

I Although Mr Hussain did reference his location as near the battle

I

I

lines JA01307 he made clear that he was not on the battle lines and he never

I saw the scene ofbattle lA027999-10 JA0280022-24 Rather he testified that

he understood (but never saw for himself) that the Talibans battle against the

Northern Alliance was taking place some distance away I dont know exactly I but I knew that [the battle] was far from where I was and I didnt hear any noise or

I 37




I like people fighting or anything like thae JA0280022-24 Moreover Mr

I Hussain never described his location in the Shomali area as a staging area as the

I detainee described his location in Sulayman 729 F Supp2d at 50

I

I Moreover the District Court concluded that Mr Hussains claim that

I he was provided the gun for protection from wild animals and thieves is

inexplicable because it would be beyond any sense of reason that [a] Taliban

guard would allow a noncombatant to be present in an area near the battle lines

I I

with a deadly weapon JA00567 (quoting Sulayman 729 FSupp2d at 51) But

this again misconstrues Mr Hussains testimony about his location The District

I Court appears to assume that Mr Hussain was in some sort of military barracks (or

I staging area) where only the Taliban military personnel were admitted To the

contrary Mr Hussain testified that the house where he stayed was far from the

I battle and that Afghani civilians including lots of children and lots of women

I were living in neighboring houses JA02803 17-22 Mr Hussains testimony

I about civilian presence is consistent with evidence from his expert witness Dr

I Brian Glyn Williams (an expert on Afghanistan and its civil war during this

time frame ) who opined that a large number of refugees lived in this area during

I this time frame as did workers from relief organizations JA02008-09

I I 38




I

I Based in no small part on this erroneous characterization of Mr

I Hussains location the District Court discredited Mr Hussains explanation that he

was in this area not for purposes of assisting the Taliban but to explore relief

work with refugees Dr Williams opinion (which the District Court did not

I reference) however supports Mr Hussains testimony in this regard [t]here was

I an immense need for charitable work and many international aid organizations

I operated in the area near the lines ofbattleH in the Shomali Plain JA02008 Dr

I Williams further opined that Mr Husseins route (including to the Shomali Plain)

is entirely consistent with a plan to perform charitable work since it follows the

I largest flow ofAfghan refugees into areas where relief efforts were under way

I JA02009 The Government did not present a rebuttal expert to respond to Dr

I Williams nor did it challenge his qualifications as an expert

I I It is against this evidentiary backdrop that the District Court should

have evaluated Mr Hussains testimony concerning his access to a gun Mr

Hussain testified that the three young Taliban guards with whom he traveled to the I

Shomali Plain rented him a room outside the house where the Taliban guards

I

I

were staying and that neighboring houses were occupied by civilians JA028039shy

I 11 18-23 When those Taliban guards were about to leave their house adjacent to

Mr Hussains room they offered him a rifle for protection and briefly showed him

I 39




I how to fire it JA028073-17 JA0280919-23 Mr Hussain testified that he never

I in fact fired the gun JA02802 16-19 and the District Court made no such finding

I

I Indeed the District Court made no findings that Mr Hussains

I lesson in firing this weapon was akin to formal weapons training or was provided

at the direction of the Taliban organization nor did the District Court conclude that

Mr Hussain carried the weapon in battle or even left the house with it This

I distinguishes Mr Hussains case from other Guantanamo cases that have addressed

I weapons possession and training See eg Almerfedi 654 F3d at 6 n 7 (the

I government could satisfy its burden by showing that an individual was carrying an

I AK-47 on a route typically used by Al Qaeda fighters) Suiayman 729 FSupp 2d

at 51 amp n18 (petitioner took possession of a powerful weapon during each of his

I visits to the Taliban staging area and also receive[d] rudimentary training on

I the operation of an 82mm mortar)

I

I

The Courts conclusion nonetheless that Mr Hussains testimony

I about his contact with this weapon shows he was part of the Taliban ignores

affirmative evidence in the record that demonstrates that - even apart from Mr

Hussains denial of an association with the Taliban - he would be a highly

I

I

unlikely Taliban recruit Dr Williams opined that it would be highly unlikely that

I the Taliban would have sought to recruit a young Arab such as Mr Hussain in this

40




I timeframe See JA020l0 (concluding that it is improbable that a lone young

I Arab like Mr Hussain would travel to the Shomali Plain and join a Pashtushy

I speaking Taliban force during the period from 2000 to 2001) As Dr Williams

explained Arabs who traveled to Afghanistan to fight generally were not permitted

I to join the Taliban because of the Talibans animosity towards Arabs and the

I practical matter that they generally did not speak the local language See id The

I District Court ignored this evidence which undercuts the Governments contention

I that evidence of Mr Hussains visit to the Shomali Plain and access to a weapon

were sufficient to demonstrate that Mr Hussain was recruited by or provided

I assistance to the Taliban

I A review of Mr Hussains full testimony concerning his relationship

I with three members of the Taliban and his brief contact with the weapon at issue

I when considered in conjunction with the expert opinion of Dr Williams

I demonstrate that it is at least equally plausible that Mr Hussain was given shortshy

term access to the weapon because ofhis friendship with these three individuals

I not because as the District Court concluded he was loyal to their cause

I JA0566 Put differently this evidence (whether considered in isolation or in

I conjunction with the District Courts other findings of fact) does not satisfy the

I GovemmenCs burden on demonstrating that Mr Hussain was part ofeither the

I 41




I Taliban or Al Qaeda rather than just an independent freelancer JA00561

I (internal citations and quotations omitted) The District Courts contrary

I conclusion was clear error

I D The Alleged Conflicts in Mr Hussains Testimony About His Travel Plans After September 112001 Do Not Support His

I Detention

I Finally the District Court concluded that Mr Hussains testimony

about his purpose in leaving Afghanistan after September 11 2001 and following a

I

I

certain travel route was not credible Specifically the District Court found Mr

I Hussains failure to return to Yemen immediately or to formally enroll at the Salafi

University while residing in the house in Faisalabad where he was captured was

quite at odds with his stated innocent intentions to return home to Yemen and I study the Koran JA00566 This finding of fact however fails to support a

I conclusion that Mr Hussain was part of Al Qaeda or the Taliban

I First this Court has held that questions about a petitioners

I whereabouts or unexplained circumstances may serve to undermine his credibility

I but they do not independently support a conclusion that the petitioner was

I functionally a member of either al Qaeda or the Taliban See Bensayah v Obama

610 F3d 718 727 (DC Cir 2010) (holding that serious questions raised about

I Bensayahs whereabouts at various points at most undermine [his] credibility

I 42




I and in no way demonstrate that Bensahay had ties to and facilitated travel for al

I

I

Qaeda) In this regard while it questioned the credibility of Mr Hussains

I testimony about this travel route and future plans after leaving Afghanistan in

September 2001 the District Court made no finding that the route he traveled was

one frequented by members of the Taliban or Al Qaeda Rather the District Court I I

concluded that its impression that Mr Hussains story did not ring true was an

independent [t]hird piece ofevidence justifying Mr Hussains detention See

I JA00566 This was a clearly erroneous conclusion

I In this respect the District Court again mistakenly relief on Almeifedi

I There this Court found that the detainees travel route - from Yemen to Lehore

I to Tehran to Mashad and then back to Tehran - was when considered with the

other evidence damning circumstantial evidence in favor ofdetention See

I

I

Almeifedi 654 F3d at 6 Although the Court noted that Almerfedis travel route

I was quite at odds with his professed desire to travel to Europe it was not simply

the discrepancy between his intentions and actions that the court found probative

I of his membership in Al Qaeda Id Rather the Court found that Almerfedis

travel route itself which brought him closer to the Afghan border where al Qaeda

I was fighting was circumstantial evidence supporting the Governments

I contention that Mr Almerfedi was an Al Qaeda facilitator Id The District Court

I 43




I made no similar finding here - eg that Mr Hussains travel route was consistent

I with the path of a member or affiliate of Al Qaeda or the Taliban

I Moreover even if Mr Hussains explanation of his travel route is not

I credible (which Mr Hussain contests) the Court does not explain how exactly this

I lack of credibility lends support to the District Courts two other findings

I concerning Mr Hussains time in JT mosques or his access to a Kalashnikov while

north of Kabul The District Court did not conclude that Mr Hussains alleged

I lack of truthfulness about his travel route in particular corroborated the purported

I Al Qaeda connection suggested by his contact with IT Nor did it specifically

I conclude that Mr Hussain had fabricated his testimony about his travel route out

I ofAfghanistan in order to mask his purported Taliban connection established north

ofKabul Put differently the District Court failed to establish that Mr Hussains

I purported dishonesty about his travel route is probative ofAn Al Qaeda or Taliban

I affiliation

I

I Finally the District Court ignored the fact that the individual who

I was testifying about his plans upon leaving Afghanistan was only I 6 years old at

the time of his travel and that his uncertainty and confusion about the best course

of action to continue his Koran studies and get home to Yemen was consistent with

I his youth and inexperience For example the District Court deemed nonsensical

I 44




I Mr Hussains belief that a flight from Pakistan to Yemen with several1ayovers

I

I

was likely to be more expensive than a flight with less layovers See JA00567

I The District Court viewed this explanation as implausible given that the more

layovers a traveler must experience to reach his or her final destination generally

results in a less expensive ticket JA005678 Even assuming arguendo that this I

proposition about the price impact ofmore layovers is true the District Court

I ignores the fact that Mr Hussain was not an experienced air traveler and his last

I flight prior to this occurred when he was 14 years old See JA01303

I Similarly the District Court ignores Mr Hussains youth

I inexperience and related lack ofjudgment in concluding that his decision to stay at

I the Faisalabad house without enrolling in Salafi University is inexplicable See

JA00568 Far from being evidence of an affiliation with Al Qaeda or the Taliban

I Mr Hussains conduct in this regard is at least as consistent with a Yemeni

I teenagers uncertainty about how to navigate his way home during a time when

I young Arab men were being arrested en masse in Pakistan in the wake of the

I September II attack on the United Sates See JA000295

I The District Court presumably based this view on personal experience given

I that neither party submitted evidence about the cost of air travel under these different scenarios and the opinion cites no source

I 45




I In any event the Courts conclusion that a purported lack of veracity

I and consistency in portions of Mr Hussains testimony whether considered alone

I or in conjunction with its other findings satisfies the Governments burden of

proofwas clearly erroneous

I CONCLUSION

I For the foregoing reasons this Court should reverse the judgment and direct

I the District Court to enter an order granting the writ of habeas corpus or

I alternatively vacate the judgment of the District Court and remand the case for

I further proceedings

Respectfully submitted

I I Wesley R Po ell DC CIrcUlt Bar 49913

WILLKIE F ARR amp GALLAGHER LLP 787 Seventh Avenue I New York NY 10019 (212) 728-8000

I (212) 728-9000 (facsimile) Email wpowellwillkiecom

I I I

April 23 2012

I I 46




I CERTIFICATE OF COMPLIANCE

I Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C) and DC

Circuit Rule 32(a) the undersigned certifies that this brief complies with the I applicable type-volume limitations Exclusive of the portions exempted by Federal

I Rule of Appellate Procedure 32(a)(7)(B)(iii) and DC Circuit Rule 32(a)(1) this

I brief contains 9689 words This certificate was prepared in reliance on the word-

I count function of the word-processing system (Microsoft Office Word 2003) used

to prepare this brief I I Dated Apri123 2012





I CERTIFICATE OF SERVICE

I I Wesley R Powell hereby certify that on April 23 2012 a true and

I correct copy of the foregoing Briefand the accompanying Joint Appendix was

served via the Court Security Office on counsel for the Government at the

I following address

I I I I I I I I I I I I I I UNCLASSIFIEDIIFOR PUBLIC RELEASE



I CERTIFICATION AS TO PARTIES RULINGS AND RELATED CASES

I I Pursuant to Circuit Rule 28(a)(1) counsel for petitioner-appellant

certifies as follows Parties and amici Abdul Al Qader Ahmed Hussain1 (ISN

I 690) is one of several petitioners in the civil action captioned Issam Hamid Ali Bin

Al Jayji et al v Barack H Ohama et ai No 05-2104 filed October 27 2005

I Mr Hussain is the real party in interest and appellant in this court

I The respondents in the District Court and the appellees in this Court

I

I

are Barack Obama President of the United States Leon E Panetta Secretary of

I Defense Army Col Donnie Thomas Commander Joint Detention Group

Guantanamo Bay and Admiral Jeffrey Harbeson United States Navy

Commander Joint Task Force-GTMO (hereafter the Government)

I I Rulings under review The rulings at issue in this appeal are the

order and classified memorandum opinion issued by Judge Reggie B Walton on

I October 12 2011 The memorandum opinion was unclassified and entered in the

I docket on October 27 2011 The order is in the Classified Joint Appendix at

I JA00570 and the memorandum is at JA00549

I Due to inconsistency in Arabic to English transliteration Mr Hussains

I middot1 name has been spelled a variety of ways in the course of this litigation in

pleadings and the underlying record For consistency herein Appellant uses the spelling ofhis name as it appeared in the caption of his original petition

















I TABLE OF CONTENTS

I



I


I GLOSSARy vii














I III











I Taliban 30





I CONCLUSION 46


I I I IV





I FEDERAL CASES



I

I





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I











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I FEDERAL STATUTES


28 uSC sect 1331 3

28 USC sect 2241 3


I Fed R Civ P 52 14



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April 23 2012

I I 46



















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I TABLE OF CONTENTS

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I Taliban 30





I CONCLUSION 46


I I I IV





I FEDERAL CASES



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I I I IV





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April 23 2012

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April 23 2012

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April 23 2012

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April 23 2012

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April 23 2012

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April 23 2012

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April 23 2012

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April 23 2012

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April 23 2012

I I 46



















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April 23 2012

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April 23 2012

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April 23 2012

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April 23 2012

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April 23 2012

I I 46



















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April 23 2012

I I 46



















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April 23 2012

I I 46



















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April 23 2012

I I 46



















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April 23 2012

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April 23 2012

I I 46



















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April 23 2012

I I 46



















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April 23 2012

I I 46



















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April 23 2012

I I 46



















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April 23 2012

I I 46



















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April 23 2012

I I 46



















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April 23 2012

I I 46



















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April 23 2012

I I 46



















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April 23 2012

I I 46



















I following address






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April 23 2012

I I 46



















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April 23 2012

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April 23 2012

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I I I

April 23 2012

I I 46



















I following address

















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I CONCLUSION









I I I

April 23 2012

I I 46



















I following address





I

I


















I 45








I CONCLUSION









I I I

April 23 2012

I I 46



















I following address








I CONCLUSION









I I I

April 23 2012

I I 46



















I following address



















I following address



i hon. reggie b. walton, district judge i · qader ahmed hussain; petitioner-appellant, i - v. i ....

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