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UNCLASSIFIEDIIFOR PUBLIC RELEASE

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[ORAL ARGUMENT NOT YET SCHEDULED] No. 10-5282

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

YASEIN KHASEM MOHAMMAD ESMAIL, Petitioner- Appellant,

v.

BARACK H. OBAMA, et aI., Respondents-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRIEF FOR RESPONDENTS-APPELLEES

TONY WEST Assistant Attorney General

DOUGLAS N. LETTER ROBERT M. LOEB ANNE MURPHY

(202) 514-3688 Attorneys, Appellate Staff Civil Division, Room 7644 U.S. Department ofJustice 950 Pennsylvania Ave., N. W. Washington, D.C. 20530-0001

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Case: 10-5282 Document: 1284373 Filed: 12/22/2010 Page: 1


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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to Circuit Rule 28(a)( 1), the undersigned counsel certifies as follows:

A. Parties and Amici. Petitioners in the district court are Mahmoad

Abdah, Mahmoad Abdah Ahmed, Majid Mahmoud Ahmed, Mahmoud Ahmed, Abdul

Malik Abdul Wahhab Al-Rahabi, Ahmed Abdul Wahhab, Makhtar Yahia Naji

Al-Wrafie, Foade Yahia Naji Al-Wrafie, Aref Adb 11 Rheem, Aref Abd Al Rahim,

Yasein Khasem Mohammed Esmail, Jamel Khasem Mohammad, Adnan Farhan

Abdul Latif, Mohamed Farhan Abdul Latif, Jamal Mar'i, Nabil Mohamed Mar'i,

Uthman Abdul Raheem Mohammad Uthman, ArafAbdul Raheem Mohammed, Adil

EI Haj Obaid, Nazem Saeed El Haj Obaid, Mohamed Mohamed Hassan Odaini,

Bashir Mohamed Hassan Odaini, Sadeq Mohammed Said, Abd Alsalem Mohammed

Saeed, Farouk Ali Ahmed Saif, Sheab Al Mohamedi, Salman Yahaldi Hsan

Mohammed Saud, Yahiva Hsane Mohammed Saud Al-Rbuaye. Appellees agree with

Appellant that the only party to this appeal is petitioner-appellant Yasein Khasem

Mohammad Esmail.

Appellees in this Court are: Barack Obama, President of the United States;

Robert Gates, Secretary of Defense; Admiral Jeffrey Harbeson, United States Navy,

Commander, Joint Task Force-GTMO; and Army Col. Donnie Thomas, Commander,

Joint Detention Group, Guantanamo Bay.

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SEeRETHt~OFORN

No intervenors or amici have appeared in the district court or this Court.

B. Rulings Under Review.

The district court's rulings before this Court for review are the trial court's

April 8, 2010 opinion and order denying the petition for habeas corpus (JA 243 and

244), and its June 14,2010 order denying petitioner's motion for reconsideration (id.

287).

C. Related Cases.

The consolidated proceeding in the district court has given rise to appeals

previously before this Court. See Abdah v. United States, Nos. 05-5115, 05-5116

(D.C. Cir.). These appeals were remanded to the district court for further proceedings

in light ofthe Supreme Court's opinion in Boumediene v. Bush, 553 U.S. 723 (2008).

See Al Odah v. United States, Judgment, No. 05-5064 (D.C. Cir. June 25, 2008).

This case was also before this Court on appeal from a discovery order. See

Abdah v. United States, No. 05-5127. It was remanded to the district court. See Al

Odah v. United States, 559 F.3d 539 (D.C. Cir. 2009).

There is also an appeal currently pending before this Court regarding the

district court's order requiring the government to give petitioners 30 days notice

before any transfer. See Abdah v. Obama, No. 05-5224 (D.C. Cir.).

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Several other appeals of district court orders granting or denying a writ of

habeas corpus to individuals detained at Guantanamo Bay, Cuba, are pending in this

Court. See,e.g.,Abdahv. Obama, Nos. 10-5235, 10-5319(D.C.Cir.). Thosecases,

however, do not involve the "same parties," and are thus not related pursuant to

Circuit Rule 28(a)(l)(c).

Counsel is not aware at this time of any other related cases within the meaning

of Circuit Rule 28(a)(l)(c).

Anne Murphy Counsel for Respondents-Appellees

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iii




TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES

GLOSSARY

STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

QUESTIONS PRESENTED 2

STATEMENT OF THE CASE 3

STATEMENT OF THE FACTS 3

A. The Government's Evidence Showing That Esmail Was Part Of AI-Qaida 4

1. Esmail Leaves Yemen for Afghanistan at the Urging of a Known al-Qaida Recruiter, Specifically To Train For Jihad 4

2. Esmail Stays At al-Qaida Guesthouses And Trains Extensively At al-Qaida Paramilitary Training Camps 6

3. Esmail Travels To Tora Bora, Where He Is Captured With Other al-Qaida Fighters 10

B. Esmail's Revised Account of his Actions 12

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C. Esmail's Allegations of Serious Abuse and the Government's Evidence Rebutting Them. . . . . . . . . . . . . . . . . . . . . 14

1. Bagram 16

2. Kandahar.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

3. Guantanamo Bay. . 20

D. The District Court's Opinion 21

1. Legal Standard for Detention 21

2. Factual Findings 22

THE DISTRICT COURT CORRECTLY HELD THAT ESMAIL IS LAWFULLY DETAINED UNDER THE AUMF BECAUSE HE IS PART OF AL-QAIDA

SUMMARY OF THE ARGUMENT 27

STANDARD OF REVIEW 31

ARGUMENT 32

A. The District Court's Factual Findings Strongly Support Its Conclusion That Esmail Was "Part Of' Al-Qaida 32

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B. The District Court's Findings Were Not Clearly Erroneous. " 36

1. The District Court Had Ample Evidentiary Support For Rejecting Esmail's Repudiation of His 2002-2004 Statements 36

2. Esmail's Challenges To The Findings That He Knowingly Received Training From AI-Qaida and Stayed At AI-Qaida Guesthouses Are Without Merit. 54

C. The District Court Did Not Err In Failing To Apply A Corroboration Requirement For Jury Trials In Criminal Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

CONCLUSION

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(7)(C) OF THE FEDERAL RULES OF APPELLATE PROCEDURE

CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES

Cases: Page

*AI Adahi v. Obama, 613 F.3d 1102 (D.C. Cir. 2010) 34,35,36,41,55,56,59

Al Alwi v. Obama, D. C. Cir. No. 09-5125 (argued November 4,2010) 59

*AI Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010) 33,34,35,36,59,60,61

AIOdah v. United States, 611 F.3d 8 (D.C. Cir. 2010), pet. for cert.filed, No. 10-439 (S. Ct. Sept. 28, 2010) 31,35,36

Anderson v. City ofBessemer, 470 U.S. 564 (1985) 32,39,51

*Awad v. Obama, 608 F.3d 1 (D.C. Cir. 2010) 27,31,32,33,35

Barhoumi v. Obama, 609 F.3d 423 31,33,35

Bensayah v. Obama, 610 F.3d 718 (D.C. Cir. 2010) , 33,35

Boumediene v. Bush, 128 S. Ct. 2229 (2008) 1

*Cases upon which we chiefly rely are marked with asterisks. Daeche v. United States,

250 F. 566 (2d Cir. 1918) 60

Elliott v. u.s. Dep 't ofAgriculture, 596 F.3d 842 (D.C. Cir. 2010) 59

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Gherebi v. Obama, 69 F. Supp. 2d 43 (D.D.C. 2009) 22,33

Kiyemba v. Obama, 561 F.3d 509 (D.C. Cir. 2009) 1

Opper v. United States, 348 U.S. 84 (1954) 62

*Salahi v. Obama, 2010 WL 4366447, No. 10-5087 (D.C. Cir. Nov. 5,2010) 33-34,35

Smith v. United States, 348 U.S. 147 (1954) 59,60,61

United States v. Brown, 334 F.3d 1161 (D.C. Cir. 2003) 32

United States v. Dickerson, 163 F.3d 639 (D.C. Cir. 1999) 60

United States v. Hart, 324 F.3d 740 (D.C. Cir. 2003) 35

United States v. Johnson, 589 F.2d 716 (D.C. Cir. 1978) 62

United States v. McCoy, 242 F.3d 399 (D.C. Cir. 2001) 39

Statutes:

28 U.S.C. § 1291 " 2

28 U.S.c. § 1292(a)(1) 2

28 U.S.C. § 2241(a) 1

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28 U.S.c. § 2253(a) 2

The Authorization for Use of Military Force, Pub. L. 107-40, 115 Stat. 224 (2001) 32

Other Authorities:

Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization & the War on Terrorism, 118 Harv. L. Rev. 2047 (2005)..... 34

Department of Defense Directive 2310.01E (Sept. 5,2006) 3

MCCORMICK ON EVIDENCE § 145 (6th ed. 2006) 60.61,62

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GLOSSARY

AUMF Authorization for Use of Military Force

CSRT , Combatant Status Review Tribunal

FBI. Federal Bureau of Investigation

ISN Internment Serial Number

RPG .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. Rocket-propelled Grenade

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[ORAL ARGUMENT NOT YET SCHEDULED]

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 10-5282

YASEIN KHASEM MOHAMMAD ESMAIL, Petitioner- Appellant,

v.

BARACK H. OBAMA, et aI., Respondents-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRIEF FOR RESPONDENTS-APPELLEES

STATEMENT OF JURISDICTION

Petitioner Yasein Khasem Mohammad Esmail invoked the district court's

jurisdiction under 28 U.S.C. § 2241(a), see Kiyemba v. Obama, 561 F.3d 509,

512-513 (D.C. Cir. 2009), and directly under the Constitution, see Boumediene v.

Bush, 128 S. Ct. 2229, 2278 (2008) (Souter, J., concurring) ("Subsequent

legislation eliminated the statutory habeas jurisdiction over these claims, so that




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there must now be constitutionally based jurisdiction or none at all"). On April 8,

2010, the district court entered judgment denying Esmail's petition. JA 243. This

was a "final order" in relation to Esmail's habeas proceeding. See 28 U.S.c. §

2253(a). Esmail sought reconsideration, which the district court denied on June

14,2010. See JA 290. Esmail filed a timely notice of appeal from both orders on

August 11,2010. JA 291. This Court has jurisdiction under 28 U.S.C. §§ 1291,

1292(a)(1), and 2253(a).

QUESTIONS PRESENTED

I. Whether the district court erred when it concluded that petitioner was part

of al-Qaida, based on the following factual findings: that petitioner was

urged by an al-Qaida facilitator to travel from Yemen to Afghanistan for

jihadist training, and petitioner made that trip; and that when petitioner

arrived in Afghanistan he attended al-Qaida military training camps, took

advanced weapons training, stayed at al-Qaida guesthouses, and fought for

al-Qaida in Tora Bora.

II. Whether the district court's factual findings were clearly erroneous, either

because the district court should have accepted Esmail' s later repudiations

of his statements about his al-Qaida activities, or because the evidence did

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not support the trial court's finding that Esmail knew the training camps and

guesthouses he used were run by al-Qaida.

III. Whether the trial court erred by failing to apply a corroboration rule for

criminal jury trials, when that rule does not apply in this habeas proceeding

and the statements at issue are, in any event, adequately corroborated.

STATEMENT OF THE CASE

This appeal arises from a petition for a writ ofhabeas corpus filed by

petitioner Yasein Khasem Mohammad Esmail (ISN 522),1 challenging the

lawfulness of his military detention by the United States at Guantanamo Naval

Base, Cuba. The district court denied the writ and Esmail appeals.

STATEMENT OF THE FACTS

The trial court held a three-day merits hearing in Esmail' s habeas

proceeding. Esmail chose not to testify.

1 ISN stands for "Internment Serial Number." Department ofDefense Directive 2310 IE requires that each detainee held at Guantanamo Bay be assigned such a number as soon as possible after capture. Department ofDefense Directive 2310.01 E at 3 (Sept. 5,2006).

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A. The Government's Evidence Showing That Esmail Was Part Of AI-Qaida.

1. Esmail Leaves Yemen for Afghanistan at the Urging of a Known al-Qaida Recruiter, Specifically To Train For Jihad.

In late January 2002, Esmail said that he had "entered Afghanistan

approximately two years [earlier] in order to join the Chechen jihad, but never got

there." JA 853.2 Esmail was encouraged to travel to Afghanistan by Abu Khalud,

whom he met at the Furqan mosque in Taiz, Yemen. See JA 867; see also JA 860

(Abu Khalud "traveled between [Yemen] and [Afghanistan] to recruit male

Muslims for military training," and "used the Farkun mosque in Taiz, *

* * [Yemen] as a recruitment site.").3 Esmail "believed Khalud supported AI-

Qaeda and the jihad against America." JA 867. Esmail decided to go to Chechnya

to fight the Russians there, and "Khalud explained that [E]smail should first go to

Afghanistan where he could receive the proper military training." JA 868. See

also JA 874 ("Khalud said there was no doubt [Esmail] could go [to] Chechnya,

2 Although some of the intelligence reports are written entirely in capital letters, this brief quotes them using standard lower- and upper-case text.

3 This intelligence report designates Esmail by the serial number _instead of by the ISN later assigned to him at Guantanamo.

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but that he must go to Afghanistan first to train")

Esmail knew personal details about Abu Khalud. Khalud was a Yemeni

who had "worked and lived in Bosnia" before taking up his current job as an al-

Qaida travel facilitator. JA 860; see also JA 863. Esmail reported, for example,

that Khalud had a "round scar in [the] middle of [his] forehead from [a] bullet

injury." JA 868. (Another detainee had also told interrogators that Abu Khalud

suffered a gunshot wound to his head while in Bosnia JA 980.4)

Abu Khalud "made travel arrangements" for Esmail from Yemen to al

Qaida's Al Farouq training camp in Afghanistan. JA 863; see also JA 860 ("I do

not know who paid for the tickets, but Abu Khalud took my information and asked

if 1 was ready to go."). Khalud took Esmail's passport and an extra passport

photograph. JA 868. Two months later, Esmail received a telephone call from an

unknown caller, who told him to travel to Sanaa, the capital of Yemen, and stay at

a particular hotel. Ibid. Esmail followed these directions. Ibid. When Esmail

reached the hotel, a man he did not know returned his passport, together with a

visa for Pakistan and an airline ticket to Karachi. Ibid. Esmail did not pay the

4 This second detainee also reported that Abu Khalud twice swore bayat to Usama bin Laden. See JA 980.

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man for his visa or ticket. Ibid.; see also JA 1271 (Esmail's CSRT testimony that

"somebody else got the ticket for me").

Esmail flew from Yemen to Karachi, via Dubai, with two other Yemenis.

JA 863; see also JA 868. A few days later, the three Yemenis were joined by a

Pakistani man, Abu Uthman, and the four traveled together by bus to Quetta,

Pakistan, and then to Kandahar, Afghanistan. Ibid. See also Add. 1 (map);5 JA

863, 861 (this was the usual route for recruits).

2. Esmail Stays At al-Qaida Guesthouses And Trains Extensively At al-Qaida Paramilitary Training Camps

In Kandahar, Esmail and his companions went to a guesthouse "[d]iagonally

across the street" from the Haji Habash mosque. JA 869. "Khalud was already at

the guesthouse awaiting [E]smail." Ibid. According to Esmail, some men used

this "guesthouse for transit to a training camp while others stayed to continue to

other countries." Ibid. Other government evidence showed that this particular al-

Qaida guesthouse "was used as a transition point an for

individuals going to train at various training camps JA 954

5 A regional map is included as an Addendum to this brief because the reproductions of the maps in the Joint Appendix (at 1640-1641) are not clear enough to read.

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(Declaration ("Guesthouses") of Senior Intelligence Analyst

Ibid.

After a brief stay in a second al-Qaida guesthouse, see JA 869, Esmail, in a

group of ten to fifteen other men, "boarded a former military style bus" and was

taken to a military training camp, ibid. Esmail on numerous occasions identified

this camp as Al Farouq. See JA 853, 861, 863,.

_ JA 939 (Declaration ("Terrorist Training Camps") of Senior

Intelligence Analyst Ibid.

JA 939, 940.

After basic training, Esmail was selected for advanced training at Al

Farouq. See, e.g.

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JA 911 (after basic training at Al

Farouq, Esmail "attended mountain tactics training" there for "approximately two

months"). Esmail admitted that he also went on to advanced training outside Al

Farouq. See, e.g., JA 856 (Esmail had "trained at 3 different camps"); JA 870

(Esmail reported sessions at "the Malek training camp" and "the Aasil training

camp"); JA 875 (Esmail took "anti aircraft, heavy artillery and Surface to Air

Missile (SAM 7) courses" at "the Malek training camp"); JA 912 (two one-month

courses at Malek)

7

The government's evidence detailed how Esmail "received much more

training tha[n] the average fighter in Afghanistan." JA 858. (January 2002

Summary Intelligence Report for Esmail). Esmail "received specialized training in

air defense, artillery, PK machine gun and mine laying," ibid., including courses

on "anti aircraft, heavy artillery and Surface to Air" missiles, and training in

7 After May 2004, although Esmail continued to acknowledge that he attended "the AI-Farouq training camp for four months" he refused to discuss attendance at any other camp "because he [was] tired of answering the same questions over and over." JA 916.

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"mortars and seventy-five and eighty-two mil[l]imeter cannons," JA 875. See also

JA 912 (detailing the different types of mines Esmail had been trained to use, and

his training in "the placement, extraction and camouflage of anti-tank and anti

personnel mines."). This advanced training on heavy weapons complemented

Esmail's basic training on lighter weapons, such as the Kalashnikov rifle, and his

courses on topography and explosives. See JA 875.

Between his paramilitary training sessions, and again shortly before he

joined the battle, Esmail said he had stayed at al-Qaida guesthouses or safehouses.

See, e.g., JA 875 (describing numerous guesthouse stays, including one at the

Azam guesthouse in Kabul); JA 883 (Esmail knew that the Azam guesthouse had

al-Qaida connections); JA 876 (Esmail stayed at the "Ejm al Jihad" ("star of the

struggle," JA 871) guesthouse in Jalalabad); JA 871 (also reporting the stay at

"Najma AI-Jihad" guesthouse). Esmail reported that "food and drink were free in

the guesthouses." JA 893. At one of the guesthouses he stayed at in Kabul he saw

Richard Reid, a member of al-Qaida known as the shoe bomber. JA 872. Esmail

stated that he saw Usama bin Laden, al-Qaida's leader, at three separate al-Qaida

guesthouses - one in Kabul, one in Kandahar, and the one in Jalalabad. Ibid. See

also JA 901; JA 906.

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Between periods ofparamilitary training in Afghanistan, Esmail spent

approximately four months at the Institute for Islamic!Arabic Studies, see JA 870,

an organization the government's evidence showed was funded entirely by al-

Qaida and run by one ofal-Qaida's senior leaders. See JA 991 ("the Islamic

Institute was financed directly by Usama bin Laden"); JA 900 (Abu Hafs, "a

committed jihadist," was "the religious leader for the Islamic school in

[K]andahar") JA 1006 (Bin Laden chose Abu

Hafs "as the Sharia group committee leader of al Qaida"). See also JA 853, 870

(Esmail was associated with the Institute). Further, the Islamic Institute was in the

building formerly used as an al-Qaida guesthouse - the guesthouse where Abu

Khalud had first taken Esmail. lA.870.

3. Esmail Travels To Tora Bora, Where He Is Captured With Other al-Qaida Fighters

On September 11,2001, the date of the terrorist attacks on the United

States, Esmail was in Kandahar. JA 871. Soon afterwards, Esmail went to Kabul,

then to the Najma AI-Jihad al-Qaida guesthouse in Jalalabad. Ibid. Hearing that

Arabs were heading to Tora Bora, Esmail and others headed for the Tora Bora

mountain region. Ibid. "He stayed with fifteen * * * others in the mountains for

approximately one month." Ibid. See also JA 876 (Esmail "stayed in Jalalabad for

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two weeks, then went to Tora Bora"); JA 1329 (those at the Jalalabad guesthouse

who wanted to escape the U.S. bombing campaign went to Khost, whereas "those

who went to Tora Bora stayed to fight"); JA 899 (Esmail claimed not to fight at

Tora Bora but admitted he had "narrowly missed being shot by a tank"); but see

JA 1270 (CSRT testimony) ("I was not in Tora Bora for more than one day").

"Tora Bora is the name of a cave complex situated in the White Mountains

of Eastern Afghanistan * * *." JA 1323 (2008 expert declaration of Senior

Intelligence Analyst Natural caves in the complex were

"enhanced with hydroelectric power," stocked with "food, water and ammunition,"

and "capable of housing more than one thousand fighters." Ibid. Usama bin

Laden had used Tora Bora as his headquarters in the 1990s, ibid., and he returned

there by early November, 2001, with "other al-Qaida and Taliban leaders, and an

estimated one to two thousand fighters," JA 1324.

for al-Qaida. JA 949 (2009

expert declaration of Senior Intelligence Analyst

Ibid.

In November, 2001, "a small contingent of U.S. and Afghan forces began to

infiltrate Tora Bora to trap bin Ladin and his fighters." JA 1324. Usama bin

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Laden issued a "widely known call for fighters to join him and his cadre of al-

Qaida leaders at Tora Bora for a last battle against the U.S. and its allies * * *."

JA 950. "The battle of Tora Bora ensued with significant air strikes" by the

United States and almost two months of fighting. JA 1324.

Esmail was taken into custody in a "village near Tora Bora" after he and

two other men "surrendered" after they had "descended from" the mountains. J.A

848. Both Esmail's companions also surrendered, and both were al-Qaida fighters

who fought at Tora Bora. See JA 1828-1829 (one of Esmail' s companions, Omar

Saeed Salem al-Daini (ISN 549), "was shown to a position" on the al-Qaida line in

Tora Bora); JA 1166 (the second companion, Khalid Ahmed Kassim (rSN 242),

was captured "in Tora Bora * * * with" Esmail, and first met Esmail at Tora Bora);

JA 1159 (Kassim was "fleeing the Tora Bora" with Esmail). Al-Daini had been

"wounded in the leg by a missile," JA 1829, and Esmail helped his injured comrade

down from the mountains, see JA 908.

B. Esmail's Revised Account of his Actions.

As outlined above, the government's evidence demonstrated that after

Esmail first arrived in United States custody in early 2002, see JA 931, he reported

that his travel to Afghanistan had been arranged by an al-Qaida facilitator, that he

had stayed in al-Qaida guesthouses and received both basic and advanced

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paramilitary training at various al-Qaida camps, that he had been closely enough

associated with al-Qaida to have seen Usama bin Laden three times, and that he

had traveled to the Tora Bora region and been captured coming down from the

Tora Bora mountains with al-Qaida fighters.

Starting with his statement to a Combatant Status Review Tribunal in June

2004, however, Esmail's story changed. See JA 1269. At the CSRT hearing,

Esmail testified he had wanted to get married in Yemen "but for some reason my

marriage was not approved." Ibid. See also JA 1629 (Esmail's January 2009

declaration) .

In his declaration prepared in 2009 for his habeas proceeding, Esmail said

that he spent his own money on a ticket to Afghanistan, JA 1630, and was able to

make his way in Afghanistan without much money because "everything was very

cheap there," ibid. Esmail described his two years in Afghanistan as a "peaceful,

reflective, spiritual, and solitary experience." JA 1631. Even in 2009, however,

Esmail admitted that his peace was interrupted by "some weapons training * * * at

the al Farouq camp," which Esmail now said he "thought * * * was simply a

charity camp, another form of the Pashtun hospitality." Ibid. Esmail went back a

second time for "additional weapons training at the al Farouq camp." Ibid.

According to Esmail's revised account, he took weapons training "to occupy [his]

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spare time," and never realized that the camp was affiliated with al-Qaida. Ibid.

Esmail now maintains that the militants who supplied Esmail's training did not ask

him who he was before they allowed him to participate, or try to recruit him once

he was trained. Ibid.

Esmail also retracted his statements about traveling to Tora Bora after

September 11, 2001. In 2009, Esmail said instead that he had been kidnapped in

Kabul by "men in Taliban clothing" and held for approximately 2 months, until

December 12,2001. JA 1632. Esmail's kidnappers then allegedly took him "to a

place in the mountains near the Afghan-Pakistan border where they picked up two

other Yemenis." Ibid. Esmail's captors then allegedly took him to a prison in

Jalalabad. Ibid. See also JA 1874-1875 (Esmail's 2010 Declaration providing a

more elaborate version of the kidnapping story). Esmail stated that the prison

gave "a piece of paper the size of a Subway napkin" as a "receipt" for the Yemeni

captives. JA 1875.

c. Esmail's Allegations of Serious Abuse and the Government's Evidence Rebutting Them.

Esmail's recent declarations account for the abrupt change in his story by

alleging that his earlier statements were "lies" he invented to protect himself from

abuse or torture. JA 1885. In 2010, Esmail alleged that in the Afghan prison in

~!CIU!T7J I~O"OI\I~

14




3I!eft:I!TJ J14ereft:14

Jalalabad, he was tortured and, to avoid torture, he "invented details" about

whatever statements "the interrogators seemed to believe or like." JA 1880.8 "For

example, they liked to hear about training camps, so, even though I only ever

trained at al Farouq, I told them I received training at other places in Afghanistan."

Ibid. From then on, according to Esmail, he repeated "the lies that had saved him"

earlier. JA 1885. Esmail also explained why he decided to change his story when

he attended his CSRT hearing. Before that hearing, Esmail testified, there was "no

law" and "no attorneys to defend me." JA 1891.

At the current juncture in his habeas case, Esmail alleges that he has been

seriously abused in each of the three locations where he has been held in United

States custody: at Bagram Air Base in Afghanistan from approximately January

20,2002, until February 2,2002; at a detention facility in Kandahar, Afghanistan,

from February 2, 2002 to May 1, 2002; and finally at Guantanamo Bay. See JA

247-248. Esmail's two declarations, from January 2009 and March 2010 (id. 927

and 1873, respectively), include these allegations. His March, 2010 declaration

8 In February 2002, Esmail told an FBI interviewer that Afghan guards at the prison in Kabul "beat and tortured him." JA 871. But Esmail provided no details and did not say that the alleged abuse was intended to induce false statements by Esmail, or that it in any way affected his statements to the FBI.

3I!eft:I!TJ J14ereft:14

15




also alleges that Esmail was abused in Afghan custody before he was handed over

to the United States.

1. Bagram. In January 2009, Esmail alleged that at Bagram he was held

"outdoors in extremely cold conditions," and beaten, and that American soldiers

stood on him. JA 932. In March 2010, in a second declaration submitted only

four days before trial, Esmail added new allegations that upon his arrival at

Bagram, he had been thrown from a helicopter so hard that he broke his nose, JA

1883, and that he was stripped naked during processing into the facility, ibid.

Esmail also first alleged in March, 2010 that his "first interrogation did not take

place in an interrogation room or inside the airport hangar," but "in a ditch that the

soldiers and prisoners used as a toilet." JA 1884. After being interrogated with

"many questions" in the ditch, Esmail's captors "took me out and rinsed me off

with water from a hose," before interrogating him again. Ibid.

In response to Esmail's 2009 declaration, the government submitted

evidence rebutting the allegations of torture and other abuse at Bagram. This

evidence included a declaratio~(JA 1261-1267), an Army

interrogator who interviewed Esmail when he first arrived at Bagram. See JA

1262.~as present at Bagram during Esmail's detention there, JA 1262,

and he had an opportunity to describe, from personal experience, the detainees'

5Eeft:E'fHI~eFeft:l~

16




5EeRETt/t~eFeRt~

living conditions and the way they were treated, see JA 1262-1264.

explained the intake procedures for Bagram detainees, which included hooding

and a visual strip search. See JA 1262-63. He stated that during interrogations,

detainees "were not stripped, hooded or shackled." JA 1263. Nor were dogs used

-_"did not see a military working dog while [he] was at Bagram." Ibid.

_'did not employ any coercive interrogation techniques" at Bagram. JA

1264-1265.

_confirmed that the Bagram detainees were housed in a "very large

airplane hangar" that was "chilly" because the "hangar door remained open and it

was winter." JA 1265. A wooden floor built to insulate detainees from the cement

underneath had to be removed when detainees used nails from the wood flooring

as weapons. Ibid. Because detainees could also use boots as weapons, "they were

given heavy wool booties" like hiking boot liners. JA 1266. During this period,

detainees and U.S. servicemembers alike ate military rations, lived in quarters

"exposed, at least in part, to the elements, and had no washing facilities." Ibid.

In a second declaration _stated that while he was at Bagram

during the same period as Esmail, he had never heard of any detainee "being

thrown in or interrogated in a latrine." JA 1856. who actually saw the

latrine at Bagram being dug, see JA 1857, explained why Esmail's allegations 9E@ftETNU8P8RU

17




5Eeft:E'fIfI~eFe ft:1~

about being questioned in a latrine make little sense. During this period, a very

large latrine trench (at least ten feet long, three feet wide and twelve feet deep),

was almost covered by boards or pallets that ran the length of the ditch, with only

a foot-wide gap between them. See JA 1857. "Throwing a detainee into the

latrine would have been very difficult" because one of these very heavy boards or

pallets would have had to be moved. Ibid. Moreover, "there was no running

water at the Bagram detention facility," and _who interviewed Esmail

almost daily, did not see anyone who looked or smelled as if they had fallen or

been pushed into the latrine. Ibid.

2. Kandahar. In 2009, Esmail alleged that he was subjected to the

following types of abuse at Kandahar: religious abuse, beatings and electric

shocks; being "forced to remain on our knees in the heat of summer;" being

stripped naked and hooded; and being frequently terrorized by dogs. JA 932. In

his March 2010 declaration, Esmail added that upon his arrival in Kandahar he

was thrown from the plane, JA 1888; that his clothes were cut off and a lengthy

intake interview was conducted while he was naked, JA 1888-1889; that his

subsequent interviews were conducted late at night, JA 1889; and that he was

buried up to his neck in a hole in the ground, JA 1890.

5ECRE'fIlHOFORH

18




5E@RE"SU8P8RU

To rebut Esmail's 2009 declaration, the government submitted the

declaration of a Special Agent with the FBI who interviewed

detainees every day at the Kandahar detention facility from February 7 to March

21,2002.9 See JA 1294.•was able to describe, from personal experience,

the way detainees were questioned at the time when Esmail was there. JA 1296

98. In each interview,. and his partner followed standards of practice that

included being "friendly and establish[ing] a rapport" with the detainees, and

never used threats or coercion. JA 1295.•never saw detainees being abused

at Kandahar, never saw "any evidence" of abuse, and never heard any detainee

complain of abuse. JA 1296. He "never observed detainees without clothing"

except during intake procedures, "never observed military dogs being used to

threaten detainees," and never observed any United States official "interfering

with the detainees' prayer time or disrespecting the Koran." Ibid.•

remembered Esmail, and testified that when he interviewed Esmail, Esmail

"appeared healthy," and showed no physical injuries. JA 1298. Esmail "did not

display any hostility or fear" during his interview. Ibid.

9 Esmail arrived in Kandahar on February 2,2002. JA 247. 5E@RE"SU8fi8RU

19




SEfRE'fNU8P8RU

_ second declaration, rebutting Esmail's 2010 allegations, explained

that detainees arriving at Kandahar walked down a ramp from the plane to the

ground. JA 1859. Although detainees undressed as part of the intake procedure,

• "never saw a detainee's clothing cut off or forcibly removed." JA 1860.

Detainees were usually interviewed during the day, and. did not recall any

interviews of detainees occurring after 11 p.m. JA 1861.•"never observed

or heard of anyone pointing a gun at a detainee during an interview." Ibid.

Finally,. stated that although the base at Kandahar "did have bunkers

covered with metal pallets where personnel at the base could take shelter during

incoming mortar shelling," he saw no area "that could accommodate burying a

man up to his neck in dirt," as Esmail had claimed. Ibid.

3. Guantanamo Bay. Esmail alleged at his CSRT hearing in 2004 that

there was "something tom in my shoulder" because guards at Guantanamo Bay

had trussed him and thrown him on the floor. JA 1273. Esmail alleged in 2009

that he was thrown from the plane "up into the air" upon his arrival at

Guantanamo, JA 932, and that when he fell to the ground, he "suffered a broken

shoulder and tom muscles," JA 933. In 2010, Esmail alleged that shortly before

landing at Guantanamo, he was "forced to swallow a pill,"and when Esmail was

"taken off the plane," some one beat him on his shoulder. JA 1890, 1891. 31!!l!I\I!!TJ J14erel\14

20




31!!!~I!!T//I.el"e~l.

The government produced Esmail's medical records from Guantanamo Bay,

see JA 1353-1624, and arranged for the records to be reviewed by a physician,

Colonel (Dr.) Gregory M. Winn, M.D., see JA 1249. Dr. Winn explained that

during Esmail's "in-processing physical on May 1, 2002," Esmail had "abrasions"

on the front of his left shoulder. JA 1250. The "abrasions were not deep and did

not penetrate the epidermal layer," ibid., and Esmail's shoulder retained its normal

strength, with "no motor or neurological deficits," JA 1251. Because Esmail's

minor injury was "similar to a scraped knee," JA 1250, it was treated with

"Bacitracin and 4X4 gauze" and it healed by May 11,2002, JA 1251.

The government's medical expert also reviewed Esmail's 209 allegations of

severe abuse, including beatings, a broken nose and a broken shoulder. See JA

1254. Dr. Winn concluded that "the medical records do not show evidence of

abuse, especially of the extreme nature alleged." Ibid. The types of serious abuse

petitioner alleged would have left "some physical evidence * * * such as bruising,

scabbing, or range of motion deficits." Ibid. "Notably, none of the examinations

and evaluations showed any type of ligament/tendon injury or other physical

trauma normally associated with the type of abuse as alleged in Petitioner's

Declaration." JA 1255.

31!!!ItI!!T;; l.el"e~l.

21




5Ee~Eflfl~eFeIU~

D. The District Court's Opinion.

1. Legal Standard for Detention. The district court held that the

government could establish the lawfulness ofEsmail's detention by showing that

Esmail was "'part of' al-Qaida or Taliban forces. JA 245. In the district court's

view, the government would have to show that Esmail was '''part of' al-Qaida by

establishing that Esmail received and executed orders "'from the enemy force's

combat apparatus.'" JA 245-246 (quoting Gherebi v. Obama, 69 F. Supp. 2d 43,

69 (D.D.C. 2009)).

2. Factual Findings. The district court held that the government had

carried its burden of showing that Esmail was part of al-Qaida. As a threshold

matter, the district court found that it could not credit Esmail's most serious

allegations of abuse, and that the statements Esmail made while he was detained at

Bagram and Kandahar were reliable evidence. See JA 248-263.

The court found that Esmail had "traveled to Afghanistan with the

assistance of Abu Khalud, a member of Al Qaeda," who had made passport

arrangements for Esmail and arranged other logistical details of his trip. JA 265.

Although the district court "accept[ed] * * * as true" Esmail's claim that he had

left Yemen because he could no longer marry a particular woman, JA 266, it

pointed out that Esmail's personal disappointment "does not explain why he chose 31!l!ft1!TJ J14ereftl4

22




3!el\!T;; 14erel\14

to go to Afghanistan" rather than somewhere else, or why he "accepted the

assistance ofAbu Khalud," the al-Qaida facilitator. JA 267. Moreover, Esmail's

statements showed that "he knew at the time he began his trip to Afghanistan that

he was doing so with the assistance of members of Al Qaeda and that Al Qaeda

was a militant group." JA 268.

The district court further found that Esmail had accepted military training at

al-Qaida training camps and stayed at al-Qaida guesthouses, knowing in both

settings that the facilities he was using were affiliated with al-Qaida. The district

court cited Esmail's own numerous statements establishing that he had trained at

al-Qaida's flagship paramilitary training camp, Al Farouq. JA 269. As the court

noted, Esmail admitted that "his courses covered topics including light weapons,

rocket propelled grenades, machine gun, explosives, topography, antiaircraft

weapons, and mines." Ibid. Esmail had graduated to advanced training and been

taught to use advanced weapons, such as "surface-to-air SAM-7 weapons." Ibid.

The court cited the statement of another detainee who had given a very similar

account of the Al Farouq weapons training program, explaining that after basic

training recruits could sign up for more advanced training, '''go home,'" or "go to

the front line and fight Jihad. '" JA 270. The court further noted that Esmail never

recanted his statements that he trained at Al Farouq. See ibid. §EfRE'ffft.6F6rtt.

23




The district court rejected Esmail's argument that despite taking both basic

and advanced weapons training at "two locations of Al Qaeda's Al Farouq training

camp," JA 272, Esmail somehow did not know that al-Qaida was providing his

paramilitary training. "It would require a suspension ofdisbelief," explained the

court, to "find that Esmail was not aware while attending these courses that Al

Qaeda ran them." Ibid. Reasoning that "over a month" of paramilitary training

was most likely an ''understatement,'' ibid, and pointing out that "the purpose of

training camps, beyond teaching skills to be used in warfare, was indoctrination,"

JA 273, the court concluded that it was "simply not believable that at no time

during Esmail's several courses did the subject of against whom or for what

purpose the trainees might fight arise," ibid. Based upon these subsidiary facts,

the district court found as a fact that "Esmail knowingly received instruction from

Al Qaeda." Ibid.

Similarly, the district court found that Esmail's own statements showed that

he had stayed in al-Qaida's Haji Habash guesthouse. See JA 274. The court

found it "more likely than not that he stayed at other Al Qaeda guesthouses as

well," including the Najima Al Jihad guesthouse in Jalalabad. Ibid.; ibid. n.21. As

the court explained, "it strains credulity to ask the Court to believe that after two

years of intermittently residing at guesthouses - to which he was first led by a SEeRETi,'r~eFeRr~

24




51!@Rl!ifHU8f8RU

member of Al Qaeda - and attending training camps, Esmail did not know that he

was staying at locations affiliated with Al Qaeda." JA 275.

The district court also found that Esmail had spent "a number of months" at

the Institute for Islamic/Arabic Studies in Kandahar, Afghanistan. JA 275. The

"Institute was sponsored and led by key Al Qaeda figures," and its students "were

taught Islamic doctrine in a manner twisted to serve the purposes of Al Qaeda."

JA 277. The court concluded that Esmail's decision to study at the institute and

his attendance there were "certainly consistent with becoming a part of Al Qaeda *

* *." Ibid.

Finally, the district court found that Esmail remained in Afghanistan after

the attacks of September 11, 2001 and the United States' subsequent campaign

against al-Qaida and the Taliban in Afghanistan, and that he fought at the battle of

Tara Bora and was captured with other soldiers retreating from the battle. In his

habeas proceeding, Esmail claimed that although he had intended to leave for

Yemen when the September 11 attacks occurred, he had traveled to Kabul, where

he had been kidnapped by some men who held him in a house until mid-December

and then took him up into the mountains where they met up with the other

Yemenis captured with Esmail. See JA 281-283. The district court rejected

Esmail's account of his actions. Esmail's decision to head to Kabul en route to 5EeKE'fh'r~eFeKr~

25




5Ee~E'/;'t~eFe~t~

Yemen was illogical, and Esmail "did not explain what advantage such a route had

over" the shortest and most direct route, "leaving Afghanistan by going from

Kandahar to Quetta." JA 283. Moreover, it struck the district court "as unlikely

that kidnappers would take Esmail, who was allegedly already captured, from a

city or village into mountainous terrain where travel is difficult." JA 284. By

contrast, the district court found the government's interpretation of the facts about

Esmail's travel from Kandahar to Tora Bora to be "credible," especially as by

going to Kabul and "staying in an Al Qaeda guesthouse, Esmail placed himself in

the company of Al Qaeda members who were prepared to engage in military

conflict." JA 283.

The district court also found as a fact that Esmail had "acted as a fighter for

Al Qaeda." JA 285. Recognizing that it was "necessarily dealing in

probabilities," the court reasoned that all the circumstances of Esmail 's presence

in Tora Bora showed that he "was more likely than not an Al Qaeda fighter." JA

284. Instead of returning to Yemen, Esmail chose "to move closer to, and

ultimately arrive[] at Tora Bora," and given the conflict there at the time, "[o]nly

an individual who was part of [AI Qaeda] would feel safe traveling with fighters to

the site of a battle." Ibid. Once in Tora Bora, at the battleground, it was

"reasonable to infer" that Esmail would have "made use of' his "extensive training JI!!!ft'I!!T;; 14ereft'14

26




5Ee~E'f;,;'r~eFe~r~

in the use of military weapons." Ibid. And Esmail was taken into custody

together with two other men who "were involved in the battle at Tora Bora." Ibid.

The court concluded that it was "quite unlikely that Esmail would have been with

these two men, especially one who was wounded in battle, if he were not part of

the Al Qaeda forces at Tora Bora." JA 285.

Based on these findings, the court held that the Government had shown "by

a preponderance of the evidence that Esmail was 'part of Al Qaeda and is

therefore lawfully detained." Ibid.

SUMMARY OF THE ARGUMENT

1. The district court correctly held, based upon the evidence before it, that

Esmail was part of al-Qaida. Without the benefit of this Court's more recent

holdings in Awad and Bensayah, the district court required the government to

present evidence that Esmail had taken or received formal orders from al-Qaida.

As this Court has now held, such evidence is sufficient, but not necessary, to show

that a detainee is part of al-Qaida. Under this Court's functional standard for

detention, the district court's findings even more strongly support its conclusion

that Esmail is lawfully detained. The court found that Esmail had engaged in

numerous activities that, under this Court's precedents, conclusively show him to

be functionally part of al-Qaida: Esmail came to Afghanistan specifically to train SECRETHNOFORN

27




SEERETN~~OFOR~~

for jihad, at the urging of an al-Qaida recruiter; Esmail received advanced

Esmail stayed at al-Qaida guesthouses; Esmail

remained in Afghanistan during the United States-led military offensive, traveled

to Tora Bora, fought for al-Qaida at the battle in the Tora Bora mountains, and

surrendered in the company of other al-Qaida fighters. The district court did not

err in concluding that this evidence was sufficient to establish that Esmail was part

of al-Qaida.

2. The district court's underlying factual findings are not clearly erroneous.

The district court relied upon the numerous statements Esmail gave interrogators

in 2002-2004, which were detailed and internally consistent, as well as on expert

declarations and corroborating statements given by other detainees.

In particular, the district court did not clearly err when it refused to credit

Esmail's 2009 and 2010 allegations of severe abuse. Rather, the court correctly

discharged its function as fact-finder when it weighed Esmail's dramatic

allegations against the government's substantial rebuttal evidence and found that it

could not credit Esmail's allegations. In so finding, the district court relied, in

part, upon two government declarants who had been present at the facilities where

Esmail was held during the periods he was held there and had interrogated Esmail. SEERETIIUOFOR~~

28




SECRETflt~OFORt~

These declarants could describe from personal knowledge how detainees were

interrogated and treated. Esmail's medical records from Guantanamo Bay,

showing that Esmail was healthy and had none of the residual impairments that

would have resulted from the types of serious mistreatment he had alleged, further

supported the district court's conclusion, as did Esmail's failure to make some of

his most dramatic allegations until just a few days before his merits hearing. The

district court did not clearly err in finding the government's declarations to be

credible and reliable, and from concluding from the declarations and from the

other evidence that Esmail's allegations of serious mistreatment had no basis in

fact.

Esmail's brief on appeal argues that the district court should have

disregarded Esmail's 2002-2004 statements because Esmail was allegedly abused

by Afghanis, before he was transferred to the custody of the United States. The

district court correctly concluded, however, that Esmail' s allegations of abuse in

Afghan custody did not make his later statements to U.S. interrogators unreliable.

The district court made no finding that Esmail suffered any abuse when in Afghan

custody. Further, the reasons the court gave for refusing to credit Esmail's

allegations of serious abuse in detention at Bagram and Kandahar- including

Esmail's medical records and the credible statements of government declarants SEeRET/lt~OFORt~

29




SEeRET/lt~OFORt~

who disproved some of Esmail's allegations and cast doubt on the veracity of all

of them - also apply to evaluating Esmail's treatment by Afghanis.

Esmail's brief is also mistaken in arguing that the district court should not

have considered Esmail's decision to make new allegations of serious abuse only

a few days before the merits hearing in his habeas proceeding. The district court

made clear that it was skeptical about Esmail's new claims not just because they

were raised at the last moment but because, as a substantive matter, Esmail's

decision not to mention such serious allegations in his 2009 declaration for his

habeas proceeding led to serious inconsistencies between the 2009 and 2010

declarations in the descriptions of Esmail's past treatment. The district court did

not clearly err in concluding that Esmail had in 2010 "embellished his statements

with false allegations * * *." JA 260.

The district court also did not clearly err in concluding that Esmail

knowingly received training from al-Qaida, and knowingly stayed at al-Qaida

guesthouses. The district court properly considered all the evidence in context

when it found that Esmail's recruitment by an al-Qaida operative, his extensive

weapons training at al-Qaida military camps, his numerous stays at al-Qaida

guesthouses and his surrender in the Tora Bora region all supported the finding

SEERETNUOFORt.

30




5ECItEl'lIt~6F6Itt~

that Esmail had been aware that al-Qaida was responsible for the paramilitary

training camps and guesthouses where Esmail stayed.

3. Finally, Esmail's brief argues for the first time on appeal that the district

court should have required independent corroboration ofEsmail's statements. Not

only is this argument forfeited because the district court had no chance to address

it, but it also relies upon a rule of criminal procedure for jury trials that does not

apply in this habeas corpus proceeding. Even if the criminal rule did apply,

moreover, Esmail's statements are amply corroborated.

STANDARD OF REVIEW

Determining whether a detainee was a part of al-Qaida forces is a mixed

question of law and fact. See Awad v. Obama, 608 F.3d 1, 10 (D.C. Cir. 2010).

"[W]hether a detainee's alleged conduct - e.g., visiting an al-Qaida guesthouse or

training at an al-Qaida camp - justifies his detention under the AUMF is a legal

question." Barhoumi v. Obama, 609 F.3d 416,423 (D.C. Cir. 2010) (citation

omitted). "[W]hether the government has proven that conduct - e.g., whether he

in fact stayed at an al-Qaida guesthouse or trained at an al Qaida camp - is a

factual question that we review for clear error." Ibid.

A detainee has a "heavy burden to meet to have this court reverse the

district court's factual findings that are the underpinnings of its determination" SEERETh'U8F8RU

31




SECRET/lt~OFORt~

that a detainee was a part of al-Qaida forces. Ai Odah v. United States, 611 F.3d

8,14 (D.C. Cir. 2010),pet.for cert.fiied, No. 10-439 (S. Ct. Sept. 28,2010).

More generally, a finding will not be overturned as clearly erroneous unless "the

reviewing court on the entire record is left with the definite and firm conviction

that a mistake has been committed." Awad, 608 F.3d at 7 (citation omitted). This

Court also gives "due weight" to inferences a district court draws from the facts.

United States v. Brown, 334 F.3d 1161, 1164 (D.C. Cir. 2003) (citation omitted);

see generally Anderson v. City ofBessemer, 470 U.S. 564, 574 (1985) (clear error

review applies where the district court's factual findings are based upon

"inferences from other facts.").

ARGUMENT

THE DISTRICT COURT CORRECTLY HELD THAT ESMAIL IS LAWFULLY DETAINED UNDER THE AUMF BECAUSE HE IS PART OF AL-QAIDA

A. The District Court's Factual Findings Strongly Support Its Conclusion That Esmail Was "Part or' AI-Qaida

The Authorization for Use of Military Force, Pub. L. 107-40, § 2(a), 115

Stat. 224 (2001) (AUMF) provides that:

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

!l!!el\l!!"/fl~ell"eftH

32




SECRETIIU8F8RU

persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Interpreting the AUMF, this Court has explained that the government may

lawfully detain individuals who "were part of, or substantially supported, Taliban

or al-Qaida forces or associated forces that are engaged in hostilities against the

United States or its coalition partners, including any person who has committed a

belligerent act or has directly supported hostilities in aid of such enemy armed

forces." Barhoumi, 609 F.3d at 419-20; Al Bihani v. Obama, 590 F.3d 866, 872

(D.C. Cir. 2010).

The district court here stated that the government could establish that

Esmail's detention was lawftil only by showing that Esmail received and executed

orders "'from the enemy force's combat apparatus.'" JA 245-246 (quoting Gherebi

v. Obama, 69 F. Supp. 2d 43,69 (D.D.C. 2009)). This Court in Awad and

Bensayah rejected that litmus test for determining whether a person is "part of' al-

Qaida. See Awad, 608 F.3d at 11-12; Bensayah v. Obama, 610 F.3d 718, 725

(D.C. Cir. 2010) ("That an individual operates within al Qaeda's formal command

structure is surely sufficient but is not necessary to show he is 'part of the

organization"). Rather, the detention authority under the AUMF extends to all

individuals who are functionally part of organizations subject to the use of force

SECRETllt~OFORt~

33




5ECRE'fllr~6F6Rr~

under the AUMF. Bensayah, 610 F.3d at 725; accord Awad, 608 F.3d at 11;

Salahi v. Obama, - F.3d -,2010 WL 4366447, No. 10-5087 (D.C. Cir. Nov. 5,

2010). This Court, accordingly, has repeatedly "ma[de] clear," that the

determination of whether a person is part of al-Qaida "must be made on a case-by

case basis by using a functional rather than a formal approach and by focusing

upon the actions of the individual in relation to the organization." Salahi, 2010

WL 4366447, *6 (quoting Bensayah, 610 F.3d at 725).

The nature of al-Qaida underscores why a functional test must be used to

determine whether a person acted as part of al-Qaida. Many of al-Qaida's

operations are carried out by terrorist cells made up of volunteers acting with

significant autonomy, but taking direction from al-Qaida leadership. See Curtis A.

Bradley & Jack L. Goldsmith, Congressional Authorization & the War on

Terrorism, 118 Harv. L. Rev. 2047,2109 (2005) (collecting sources). Moreover,

individuals who are part of al-Qaida typically seek to hide their association. They

do not wear uniforms or carry "official membership card[s]," Al Bihani, 590 F.3d

at 873, and may purposefully attempt to disguise their connection to the

organization.

This Court has accordingly recognized that a number of factors, ordinarily

present in combination, may bear on whether an individual is part of al-Qaida. 5EeRETf)t~OFORt~

34




6E6AETOtt9F8A:tt

This Court recognized in Al Adahi that evidence that an individual attended al-

Qaida training camps and stayed at al-Qaida guesthouses can constitute

"'overwhelming' evidence that the United States had authority to detain that

person." Al Adahi v. Obama, 613 F.3d 1102, 1108 (D.C. Cir. 2010) (quoting Al

Bihani, 590 F.3d at 873 n.2). A finding that an individual is part of al-Qaida

forces can also be based in part on evidence that the person's movements and

activities - such as traveling to Tora Bora and then fleeing the region with

admitted fighters - were consistent with the movements of other individuals who

are known to be part of al-Qaida forces. See, e.g., Barhoumi, 609 F.3d at 424, 430

(travel patterns, and detainee's presence in Tora Bora); Al Odah v. Obama, 611

F.3d 8, 17 (D.C. Cir. 2010) (attending Taliban-run camp, obtaining an AK 47 rifle

and marching through Tora Bora with 150 other men). At bottom, the inquiry is

whether "a particular individual is sufficiently involved with the organization to

be deemed part of it." Bensayah, 610 F.3d at 725.

The district court's requirement here that the government submit evidence

that Esmail received or executed orders was harmless. Such evidence, is, of

course, strong, if not dispositive, in showing that an individual is part of al-Qaida.

See Salahi, 2010 WL 4366447, *6. As this Court has explained, such a finding is

"sufficient but is not necessary to show [the detainee] is 'part of' the SEERETf}~.OFORU

35




SECRETHt~OFORt~

organization." Awad, 608 F.3d at 11. Here, in addition to the "sufficient" finding

of receiving and executing orders, the district court found, among other facts, that

Esmail had attended al-Qaida paramilitary training camps for weapons training,

and had later fought for al-Qaida at Tora Bora. Under this Court's broader,

functional approach, the district court's factual findings even more strongly

support its conclusion that Esmail was "part of' al-Qaida. See Al Adahi, 613 F.3d

at 1108-1109 (close relationships with senior al-Qaida leaders, stays at al-Qaida

guesthouses and paramilitary training camps); Al Bihani, 590 F.3d. 866, 873 n.2

(guesthouses and camps); id., 590 F.3d at 872 (accompanying brigade on the

battlefield with a brigade-issued weapon); Al Odah, 611 F.3d at 17-18

(guesthouse, training camp and presence at Tora Bora).

B. The District Court's Findings Were Not Clearly Erroneous

1. The District Court Had Ample Evidentiary Support For Rejecting Esmail's Repudiation of His 2002-2004 Statements.

On appeal, Esmail's primary argument is that the district court clearly erred

in refusing to credit his later repudiation of his 2002-2004 statements. Those

statements established Esmail's extensive paramilitary/terrorist training, his

frequent stays at al-Qaida guesthouses, and his presence at Tora Bora during the

battle there.

36




5EeRET""~f9F9R~f

For example, Esmail repeatedly described his weapons training at al

Qaida's primary training camp, Al Farouq. JA 853 (Esmail "spent two months at

Farouq camp for basic training"); id. 861 (Esmail "attended training at AI-Farouq

training camp); id. 863 (Esmail received both basic and advance training at "camp

Farouq"); id

Esmail explained that, after basic training, he was selected for advanced training.

See, e.g.,

Esmail admitted that he

went on to advanced training outside Al Farouq. See, e.g., JA 856 (Esmail said he

had "trained at 3 different camps"); JA 870 (Esmail reported sessions lasting three

weeks and one month, respectively, at "the Malek training camp," and an

additional week of training at the Asil training camp). That additional training

included "anti aircraft, heavy artillery and Surface to Air Missile (SAM 7)

courses." JA 87,.

Esmail's 2002-2004 statements also detail his many stays at al-Qaida

guesthouses. See, e.g., JA 875 (describing numerous guesthouse stays, including

one at the Azam guesthouse in Kabul); JA 883 (Esmail knew that the Azam

guesthouse had al-Qaida connections); JA 876 (Esmail stayed at the "Ejm al SEERETh't~OFORt~

37

UNCLASSIFIEOIlFOR PUBLIC RELEASE


I


SEERETllt~OFORt~

Jihad" ("Star of the Struggle," JA 871) guesthouse in Jalalabad); JA 872 (also

reporting the stay at "Najma AI-Jihad" guesthouse). Esmail stated that he saw al

Qaida's leader Usama bin Laden at three separate guesthouses - one in Kabul, one

in Kandahar, and the one in Jalalabad. Ibid. See also JA 901 (also reporting that

Esmail saw bin Laden three times in these cities); JA 906 (Esmail saw bin Laden

three times).

Finally, Esmail's 2002-2004 statements also describe Esmail's deployment

to Tora Bora after September 11,2001. As the government's expert declarations

established

Analys

JA 949 (2009 expert declaration of Senior Intelligence

After the battle of Tora Bora, Esmail was taken into

custody in a "village near Tora Bora" after he and two other men "surrendered"

after they had "descended from" mountains. JA 848. Both Esmail's companions

also surrendered, and both were al-Qaida fighters who fought at Tora Bora. See

JA 1828-1829 (al-Daini took up a military position in Tora Bora); JA 1166

(Kassim was captured "in Tora Bora * * * with" Esmail); JA 1159 (Kassim was

"fleeing the Tora Bora" with Esmail). AI-Daini had been wounded in the leg,

JA1829, and in a 2004 statement, Esmail admitted to helping al-Daini down from

the mountains, see JA 908. SEERETh't~OFORt~

38




SEeRETHt~OFORt~

On appeal, Esmail does not contend that the interrogation reports of his

many detailed statements made between 2002 and 2004, relied upon by the district

court here, do not accurately record what he said. Rather, he claims that the

district court erred in refusing to credit his later repudiation of some of the facts

set out in those reports. He argues that the district court should have credited the

allegations of severe abuse detailed in his 2009 and 20 I0 declarations, and found

some of his earlier admissions to have been a result of that abuse.

The district court's findings were well grounded, and are far from clearly

erroneous. As the Supreme Court has explained, a factual finding, such as that

made by the district court here, "based on determinations regarding the credibility

of witnesses * * * demands even greater deference to the trial court's findings"

than clear error review ordinarily requires. Anderson, 470 U.S. at 575. See also

United States v. Hart, 324 F.3d 740, 747 (D.C. Cir. 2003) (a "'district court's

credibility determinations are entitled to the greatest deference from this court on

appeal '''). Credibility determinations warrant such deference even when they are

based upon documentary evidence, rather than live testimony. See United States

v. McCoy, 242 F.3d 399, 408 n.15 (D.C. Cir. 2001) (credibility determinations

based upon transcripts). And "[w]hen a trial judge's finding is based on his

decision to credit" one witness rather than another and that witness's testimony is !§Ee~E'ftl,~eFe~,~

39




SECRETHN8F8RN

both "coherent and facially plausible" and not "contradicted by extrinsic

evidence," then the trial court's decision "can virtually never be clear error."

Anderson, 470 U.S. at 575. That is the case here.

Esmail did not testify at his habeas hearing to support his revised version of

events or his newly-asserted claims of abuse and mistreatment. Rather, he relied

upon his 2009 and 2010 declarations. The district court made a factual finding

that Esmail "did not endure the severe abuse" described in his 2009 and 2010

declarations, and also found that Esmail' s "descriptions of abuse," particularly

those in the 2010 declaration, were "exaggerated." JA 253. The district court did

not clearly err in finding that Esmail's allegations of serious abuse could not be

credited. Rather, as we detail below, the trial court gave logical and well-

supported reasons why Esmail's allegations were not worthy of belief.

a. As the district court recognized, this was not a case where the allegations

of abuse were left unrebutted. The government submitted declarations from.

_and , who described the intake and interrogation

procedures at Bagram and Kandahar. The district court did not clearly err when it

found the declarations of_and. "believable and relevant * * *." JA

257. Both declarants had been present at the facilities where Esmail was held

during the period he was held there, and both were able to speak from personal SEERETNt~OFORt~

40




SEeRETh't~OFORt~

knowledge about the conditions and the treatment of the detainees. See JA 1262

1264 1296-1298 _ In addition,. remembered Esmail

individually. JA 1296. As the district court found, the declarations of_

and. "demonstrat[ed]" that "at least some" ofEsmail's most serious

allegations were "entirely untrue." JA 257. _ declaration established that

Esmail himself showed no physical injuries,"appeared healthy" during his

interview and "did not display any hostility or fear." JA 1298. Both declarants

agreed, from personal knowledge, that although conditions were not optimal for

either detainees or United States personnel at these battlefield locations, detainees

were not coerced or abused. See JA 1262-1264, 1295-1298. The district court did

not clearly err in finding that these declarations were sufficient to "discredit the

possibility" of allegations such as "Esmail's being threatened with dogs or thrown

in a ditch of waste." JA 257. Nor did the district court clearly err in concluding

that these and other falsities in Esmail's later recantations (e.g., Esmail's

statements that he did not know that Al Farouq was an aI-Qaida training camp, JA

272-273), also gave it good cause to question other aspects ofEsmail's

recantation. See JA 257 (Esmail's known falsehoods "cast serious doubt on the

validity of all of Esmail' s assertions of serious abuse"); Ai Adahi, 613 F.3d at

SI!!!@IU:,..Huer8R:U

41




SEERETOU8F8RU

1107 (applying in this habeas context the "well-settled principle that false

exculpatory statements are evidence - often strong evidence - of guilt").

b. The district court's factual finding that Esmail did not suffer the extreme

abuse he alleged is further supported by Esmail's medical records from

Guantanamo Bay. The district court "accept[ed] the conclusions of the physician

who reviewed Esmail's medical records," Dr. Winn. JA 259. Dr. Winn

determined that Esmail's shoulder was scraped, not broken ("the abrasions were

not deep," JA 258), that Esmail's shoulder was otherwise sound, ibid., and that in

general Esmail's '''medical records do not show evidence of abuse, especially of

the extreme nature alleged. ,,, JA 259. The court had the medical records before it

and did not clearly err in relying upon the physician's well-supported conclusion

that "nothing in the records indicate[s] 'any injuries consistent with a broken nose,

broken shoulder and/or tom muscles'" or of any "physical trauma normally

associated with the type of abuse as alleged in [Esmail' s] declaration. '" JA 259

(quoting the declaration of Dr. Winn). Rather, the court reasonably concluded that

the medical evidence supported both a finding that there was "no evidence of the

repeated beatings to which Esmail asserts he was subjected," and its inference that

this fact called "into serious question the truthfulness of Esmail 's most serious

allegations of torture." JA 259-260. SEERETIIU8F8RU

42




!!:CI\!:Tiil~O~OI\I~

Esmail's brief on appeal ("Br.") does not repeat Esmail's most dramatic

allegations of abuse - the supposed interrogation in the Bagram latrine and burial

alive in Kandahar - and it mentions only in passing Esmail's allegedly broken

nose and "severely injured" shoulder. Br. 32; see also JA at 11 (describing the

less serious ofEsmail's allegations). By no longer basing any argument on

Esmail's most serious allegations, Esmail' s brief appears to acknowledge that they

were baseless.

The brief argues, however, that the district court clearly erred when it found

that Esmail's allegations of abuse in Afghani custody, rather than in the custody of

the United States, did not make his later 2002-2004 statements at Bagram,

Kandahar and Guantanamo Bay unreliable. See Br. 27-30. As a threshold matter,

petitioner's brief is mistaken in contending that Esmail suffered "undisputed abuse

while in Afghan custody," Br. 30. The district court made no finding of

mistreatment in Afghan custody. To the contrary, the district court plainly rejected

Esmail's allegations of serious abuse and his suggestion that his 2002-2004

statements were affected by any such abuse.

Moreover, Esmail's allegations about supposed abuse by the Afghanis

suffer from the flaws identified by the district in rejecting his other allegations of

serious abuse. Esmail' s 2009 Declaration is devoid of any allegations of abuse in SEeRETh't~OFORt~

43




SEERETHU8F8RU

Afghan custody, JA 931-932, and his sensational allegations that he was held in an

underground prison in Kabul and tortured every day, see JA 1878-79, were made

for the first time in March 2010, raising the inference that they were invented. See

Al Adahi, 613 F3d 1110-1111 ("a1-Qaida members are instructed to resist * * * by

recanting and changing answers already given * * * and by claiming torture").

Esmai1's medical records showed that he was physically sound and rebutted

the allegations of serious abuse of a type that would have caused medical trauma

with lasting physical effects. See JA 1255 (Declaration of Dr. Winn); compare JA

1879 (Esmail alleges beatings with chains that "targeted boney areas such as my

shins, elbows and head"). Esmail's initial screening documents from Bagram and

Kandahar (id. 848-849, 849-850) also showed that his condition when he arrived

in Bagram was "good," JA 849, and that when he reached Kandahar, he

complained only of "back pain," JA 851. Esmail's false allegations of abuse

allegations disproven by medical evidence and "directly contradicted" by the

• and_declarations, JA 288 - cast serious doubt on all his other

allegations of abuse, including his allegations that he was abused by his Afghan

jailers.

Moreover, any alleged abuse in Afghan custody, JA 263 n.15, would have

been attenuated by the time of Esmail 's later statements made in the custody of the !;Efft:ETf,'146F6ft:l4

44




SEeft:E'f;';'I~eFeft:l~

United States, see ibid. The declarations of_and. which the

district court credited, stated that detainees were questioned at Bagram and

Kandahar without the use of any coercive techniques. See JA 1264-1265

JA 1295 _ Esmail's own statements, the court found, did not

"read as they likely would were the interviewee speaking out of fear." JA 261.

Rather, Esmail felt free to refuse to answer some of his Bagram interviewers'

questions. See JA 261. This evidence confirms that the district court did not

clearly err in finding that Esmail' s detention in Afghan custody did not call into

question the truthfulness of his statements to American interrogators.

c. The district court's factual finding that Esmail' s allegations of serious

mistreatment were incredible was also supported by the timing and nature of

Esmail's 2009 and 2010 declarations and the inconsistencies between them. The

district court explained that Esmail's decision to make the most sensational and

shocking allegations only four days before trial- including allegations of "being

given electric shocks, hit with chains and almost fully buried in the ground," JA

260, "no hint of which" had appeared in Esmail's earlier declaration - was further

evidence that Esmail was being untruthful. As the court explained, "it is

reasonable to infer" from these new allegations "that could reasonably be expected

to appear" when Esmail first alleged that he had been mistreated, "that Esmail has SEeft:E"fll~eFeft:l~

45




SEeRETNt~OFORt~

embellished his statements with false allegations in an effort to create an

advantage for himself in this litigation." Ibid. 1O

The district court did not clearly err in finding that at least some of Esmail's

new allegations were demonstrably false. For example, Esmail alleged in 2010

that he had been interrogated in the latrine at Bagram and rinsed down with a hose.

JA 932. But_explained - and the district court credited his statement-

that the design of the latrine at Bagram would have made this scenario virtually

impossible, and there was, in any event, no running water at Bagram at the time.

See JA 1857. This type of blatant and proven untruth provides strong support for

the district court's conclusion that Esmail, at a minimum, embellished his

statements.

Esmail's brief mistakenly argues that the district court erred in "discounting

Esmail's allegations of abuse based on the timing of their submission to the court."

10 The allegations Esmail submitted on the eve of the merits proceeding were notably different from his earlier allegations in another way as well; Esmail pointed out three times in his 2010 declaration that the abuse he was now alleging "did not leave a mark * * *." See JA 1884 (alleged interrogation in the Bagram), 1889 (allegations ofbeing questioned naked), 1886 (alleged live burial). These statements, made in response to government's medical evidence that Esmail was physically sound when he arrived at Guantanamo, raise an inference that Esmail was deliberately alleging types of mistreatment that the medical evidence would not immediately disprove.

:;EeKE'fl>'I~6F6IU~

46




SEERETH~~OFOR~~

Br. 20 (initial capitalization omitted). The court clarified that it did not regard the

late submission of the second declaration, for which Esmail's attorney's were

responsible, to be a relevant consideration. JA 260. Rather than questioning the

timing of the document, the district court found that the differences between the

substance of the two documents raised doubts about Esmail's credibility. See ibid.

In denying reconsideration, the trial court emphasized that it had considered many

factors besides the timing of the allegations in finding Esmail's allegations of

abuse not credible. See JA 289 ("that Esmail's counsel rather than Esmail decided

not to include some details in Esmail's first declaration, does not change the

Court's conclusion, which relied on a variety of factors").

Moreover, Esmail's complaints regarding the timing of the government's

rebuttal evidence are without merit. The government timely produced its evidence

for submission at trial, including the declarations and medical records rebutting

Esmail's earlier allegations of abuse, as part of the government's opposition to

Esmail's motion for judgment on the record. When Esmail' s counsel realized that

"the Government intended to attempt to rebut Esmail's allegations of abuse," Br.

21, they then submitted a second declaration with additional new claims of severe

abuse. The district court accepted that second declaration, despite its late filing,

but also then properly allowed the government an opportunity to rebut the new SECRETllt.OFORt.

47




SECRETNNOFORN

allegations - which it did with the supplemental declarations of _and

-Esmail argues (Br. 25) without any foundation that the district court had a

legal obligation to draw favorable inferences from his 2010 declaration raising

new claims of abuse. The district court, as trier of fact, had no such obligation.

Rather, its role was to weigh the 2010 declaration, taking into account its last

minute filing, that the allegations had not been made previously despite every

incentive to make them in the 2009 declaration or before, the inconsistencies in

the two declarations, the intrinsic reliability of the detailed 2002-2004 statements,

and the reliable rebuttal declarations submitted by the government. The court

performed that task and did not clearly err in finding that the 2002-2004

statements continued to be reliable, while the newly-asserted claims of severe

abuse were not credible.

Likewise, there is no legal or factual basis for Esmail's view that the district

court should have drawn "adverse credibility inferences" against the government

because the government "could and should have" submitted and

_ supplemental declarations "much earlier." JA 26. The government's

evidence was rebuttal evidence that addressed new allegations of abuse raised by

Esmail. The government had no possible reason to inform the court of the details !!!ft:!,./f14ep'eft:14

48




SECRETh't~OFORt~

of the toilet arrangements at Bagram, for example, until after Esmail had come

forward with the allegation that he had been interrogated in a latrine there. And as

the district court recognized, the idea that Esmail needed "to submit a detailed

declaration responding to the Government's newly-disclosed evidence" rebutting

the abuse allegations, Br. 22, is nonsensical. Esmail would have known what

abuse he suffered regardless of any government evidence, and, as the district court

pointed out, he had every reason to make all ofhis allegations from the outset.

See JA 260 (Esmail's most serious allegations "could reasonably be expected to

appear in the First Declaration").

Petitioner's brief is also mistaken in characterizing Esmail's 2010

declaration as just a more detailed version of his 2009 declaration. See Br. 24.

Esmail makes numerous new specific allegations of abuse in the 2010 declaration.

See JA 1876-1882 (allegations of abuse in Afghan custody); id. 1884-1885

(allegations of being interrogated in Bagram latrine, and bribed and intimidated at

Bagram); id. 1889-1890 (allegations oflate-night interrogations and burial alive at

Kandahar). Moreover, in fundamental respects, Esmail's second declaration is

inconsistent with the first. Compare, e.g., JA 932, 933 (Esmail was thrown from

the plane at Guantanamo, and on landing he "suffered a broken shoulder and tom

!!C~!T111~O"O~I~

49




muscles"), with JA 1890 (Esmail was "forced to swallow a pill" before his plane

landed at Guantanamo, and someone "beat" his shoulder).

d. The district court's credibility finding is further buttressed by its

conclusion that evidence intrinsic to Esmail's own statements suggested that

Esmail's allegations of severe abuse were false. As the court pointed out, Esmail's

interrogation reports "do not read as they likely would were the interviewee

speaking out of fear." JA 261. 11 Rather, Esmail's interrogators noted that far from

telling them whatever they wanted to hear, Esmail felt free to refuse to answer

certain questions. Ibid. The district court also did not clearly err in finding that

Esmail could not have "invented" the names and facts he reported to interrogators,

as Esmail contended, because the record showed independently that the facts were

true. See JA 261-262. Esmail did not, for example, "invent" Abu Khalud, the al-

Qaida operative who had worked in Bosnia and had a scar on his forehead from a

11 The district court cited Esmail's statement that "'he didn't care what we did to him, or how long he sat here, even if it was 100 years, that he wasn't talking. ,,, JA 261, quoting JA 856. Numerous other statements Esmail made before his CSRT proceeding confirm the district court's finding that these were not the statements of a tortured and terrified detainee. See, e.g., JA 916 (Esmail refused to provide information "because he is tired ofanswering the same questions over and over"); JA 904 (Esmail "was fine and had no problems with his cell," but would not "answer questions regarding his case unless the questions were new ones"); JA 897 (Esmail "does not personally have any complaints regarding his health or the facility but does not like the guards.").

SECRETHU8F8RU

50



UNCLASSIFIEDIfFOR PUBLIC RELEASE

SEeRET/lt~OFORt~

bullet injury, because independent evidence in the record showed that an al-Qaida

facilitator, Abu Khalud, had indeed received a bullet wound in the head in Bosnia.

See JA 262. And the district court reasonably took into consideration the fact that

Esmail's most detailed statements were given when he first arrived at Bagram,

before there was an "opportunity for Esmail to be affected by mistreatment in U.S.

custody" that might have had some bearing upon his willingness to tell the truth.

JA 263.

Esmail's argues that the district court failed to consider the totality of

Esmail's evidence of abuse, Br. 31-32, and criticizes the manner in which the

district court resolved conflicts in the evidence. But the district court, as finder of

fact, was entitled to resolve those conflicts, and to conclude from the evidence that

Esmail had lied about the alleged abuse. This Court need not - and should not

"duplicat[e] the trial judge's efforts" as fact-finder, Anderson, 470 U.S. at 574

575, and Esmail has fallen far short of establishing clear error in the district

court's evaluation of this evidence. 12

12 Esmail' s brief mischaracterizes the record. It is not true that "the medical records indicate[] that Esmail 's shoulder was severely injured * * *." Br.32. On the contrary, and as the district court found, Esmail had a mild abrasion that was treated with Bacitracin and a bandage. JA 258. Nor is it true that the government's evidence "often corroborated Esmail 's claims" oftorture and other mistreatment. Br.32. The district court identified only two limited areas of corroboration, see JA 257, derived

SEeRETltt~OFORt~

51




SECRETllt~OFORt~

e. Finally, while rejecting Esmail's clams of severe abuse, the district court

stated that it was "not convinced that Esmail was not subjected to mistreatment by

his American captors * * *." JA 263. The court, however, found that whatever

relatively minor mistreatment Esmail experienced did not detract from the weight

of Esmail's numerous, detailed, and consistent statements provided between 2002

and 2004. See JA 261 n.12 ("There are far more consistencies in [Esmail's]

statements, regarding a range of topics, than discrepancies."). Rather, the court

found that "nothing about the summaries ofEsmail's statements suggests to the

Court that they are the product of coercion, whereas there are indications to the

contrary." JA 263.

The court's finding is well supported and not clearly erroneous. The district

court's most specific statement about Esmail's treatment in United States custody

was that the government declarants _and. corroborated "some

portions of Esmail's description of his treatment, such as being forced to be naked

in the presence of guards and being held in a cold location," JA 257. _

and. whose statements the district court accepted as "believable and

relevant," ibid., did not describe any improper or harsh coercive treatment.

from_and_ statements that detainees might briefly be naked during intake procedures, a~statement that the Bagram facility was cold.

SECRETIfHOFORH

52




SEeRETffl~eFeRI~

Rather, they stated that detainees were briefly naked while changing their clothes

1296,1860 _ Bothduring the intake procedures. See JA 1263

men also declared under penalty ofperjury, however, that detainees were not

naked once they had received their new clothing. JA 1263 (detainees were not

"stripped, hooded or shackled" during their interrogations at Bagram); JA1296

("Other than during the intake process * * * I never observed detainees without

clothing" at Kandahar); JA 1280 (detainees occasionally went through a "two

minute[]" basic question and answer session during intake "while naked, before

they received their camp uniforms" when intake was crowded).

Similarly, while_ agreed that the detention facility at Bagram was

cold for everyone held or stationed there, see JA 1265, 1266 (the hangar was

"chilly" but "the detainees were living in the same conditions as were the

Coalition forces"), efforts were made to keep the detainees as comfortable as

possible. See JA 1265-1266 (detainees were provided gas heaters, wooden

flooring, jumpsuits, blankets and heavy wool booties).13 The government's

13 declaration explained that a wooden floor built to insulate detainees from the cooler cement underneath had to be removed when detainees used nails from the wood flooring as weapons. JA 1265. Also, because detainees could also use boots as weapons, "they were given heavy wool booties" like hiking boot liners, to keep their feet warm. JA 1266.

SECRET/fUOFORt~

53




SEeRETIINOFORt~

evidence thus would have corroborated a finding of a degree of discomfort for

detainees, which might be expected in the operation of a war-zone detention

facility for battlefield detainees, but not any ill-treatment remotely like Esmail's

dramatic allegations of serious abuse.

The district court therefore did not clearly err in finding that Esmail's

allegations of serious abuse were incredible, that Esmail's proven lies "cast serious

doubt" on his other allegations, JA 257, and that only allegations about brief

nakedness and cold had independent support in the record. Nor did the court

clearly err when it found the government declarants to be truthful in explaining

that detainees generally, and Esmail in particular, were not mistreated at Bagram

or Kandahar during the period when Esmail was there. Based upon these factual

findings, and on the detailed and consistent nature ofEsmail's 2002-2004

statements themselves, the district court did not err in finding that Esmail's 2002

2004 statements were not the product of coercion, but were reliable evidence.

2. Esmail's Challenges To The Findings That He Knowingly Received Training From AI-Qaida and Stayed At AI-Qaida Guesthouses Are Without Merit.

a. In his appeal brief, Esmail argues that the district court clearly erred in

finding that he knowingly received training from al-Qaida. Even in his brief,

however, Esmail admits to having "attended two training courses at the Al Farouq SEeRETNNOFORt~

54



-------------- -- ------


~EC~E'fi/I~OFO~I~

camp." Br. 39. The basic training lasted two months, JA 853, and the advanced

(anti-aircraft, surface-to-air missile, artillery, and machine gun training) lasted

another two months (JA 911,. Notably, Al Farouq is not just any paramilitary

training camp. As the government's expert declaration explained,

JA 939.

JA 273, 939. This Court has recognized the

importance of evidence that a habeas petitioner trained at this camp, and Esmail

completed both basic and advanced training courses there. In At Adahi, for

example, this Court held that an admission that an individual trained at al Farouq,

"standing alone," could possibly be enough to show that someone was part of al-

Qaida. 613 F.3d at 1109.

Esmail argues that the evidence of his basic and advanced training at Al

Farouq should be ignored because he claims he did not know the camp was

affiliated with al-Qaida. As an initial matter, this argument incorrectly presumes

that in addition to establishing that Esmail trained repeatedly at Ai Farouq and had

other ties to al-Qaida, the government must also show his subjective intent or

knowledge. This Court in At Adahi rejected the view that in a context like this, a

detainee's motivation for training at Al Farouq or his subjective beliefs about the

SEERETIIUOFORt.

55




§ECRET}f~.OFOR~.

military training are relevant: "When the government shows that an individual

received and executed orders from al-Qaida members in a training camp, that

evidence is sufficient (but not necessary) to prove that the individual has affiliated

himse1fwith al-Qaida." 613 F.3d at 1109. Here, as inAl Adahi, other strong

evidence tied Esmail to al-Qaida; Esmail was recruited by an al-Qaida operative,

stayed at al-Qaida guesthouses, and studied at an institute funded and operated by

al-Qaida. The district court did not clearly err in finding that Esmail had

knowingly received training from al-Qaida.

In any event, the district court also found as a fact that Esmail went on to

fight for al-Qaida at Tora Bora. Even if Esmail had somehow failed to grasp that

al-Qaida had trained him at Al Farouq, his want of such knowledge would not

alter the conclusion that he was part of al-Qaida when he surrendered outside of

Tora Bora.

Nor did the district court clearly err in finding that Esmail's claim that he

did not know of Al Farouq's link to al-Qaida was fanciful. For example, as the

district court noted, the government produced evidence that the books used at the

Al Farouq training camp were all marked "AI Qaida." JA 271; 963.

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SEeRETIINOFORt~

JA 940. The district court explained

that given Esmail' s time at the training camp and the camp's proven purpose of

indoctrinating its trainees, it was "simply not believable that at no time during

Esmail's several courses did the subject of against whom and for what the purpose

the trainees might fight arise." JA 273. This and other relevant evidence led the

court to specifically find that "Esmail knowingly received instruction from Al

Qaeda." Ibid. That finding is well supported and plainly not clearly erroneous.

b. Esmail accuses the district court of not examining the evidence about

Esmail's frequent guesthouse stays in its totality. But the district court did exactly

that. The district court found that "it strains credulity to believe that after two

years of intermittently residing at guesthouses - to which he was first led by a

member of Al Qaeda - and attending training camps, Esmail did not know that he

was staying at locations affiliated with Al Qaeda." JA 275.

The district court also found that it was more likely than not that Esmail had

stayed at the Najima Al Jihad guesthouse in Jalalabad, JA 274 n.21, and at the

Haji Habash House. JA 274. The government's expert declaration explained that

the Haji Habash House, where Esmail again saw Abu Khalud, the al-Qaida

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operative who recruited Esmail for military-style training and paid for his ticket to

Afghanistan, JA 871, was used asa transition point for those_ to and

from training camps. JA 954. This and other al-Qaida associated houses were

used as safe houses. Ibid.

Ibid.

Further, Esmail was allowed to be in the Najima Al Jihad guesthouse at the same

time as Usama bin Laden after the September 11 terrorists attacks, JA 872, and he

knew that people were leaving the guesthouse to fight in Tara Bora, JA 871.

With this expert declaration and the evidence of Esmail's training and

movement between houses before it, the district court did not clearly err in finding

that it could infer that Esmail had knowledge that the houses were affiliated with

al-Qaida. JA 274-75. In any event, given Esmail's extensive paramilitary training

and the district court's finding that Esmail fought for al-Qaida at Tora Bora,

Esmail is clearly part of al-Qaida, even ifhe remained ignorant of the affiliation of

some or even all of the al-Qaida guesthouses in which he stayed.

C. The District Court Did Not Err In Failing To Apply A Corroboration Requirement For Jury Trials In Criminal Cases

Esmail's brief argues that the district court erred in relying upon Esmail's

2002-2004 statements at Bagram, Kandahar and Guantanamo Bay. He argues that

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58




5Eeft:E'fHr~eFeft:r~

the district court was required to apply a common-law rule of criminal

evidence-that "an accused may not be convicted on his own uncorroborated

confession." Smith v. United States, 348 U.S. 147, 152 (1954). See Br. 35.14 His

brief then argues that "[o]nce Esmail's early admissions are properly discounted"

by applying the rule, the government's evidence was insufficient to establish that

Esmail was part of al-Qaida. Both the legal and factual elements of Esmail' s

argument are wrong: the rule does not apply in these habeas proceedings, and

Esmail's admissions are adequately corroborated in any event.

As a threshold matter, Esmail did not present to the district court this new

argument that Esmail's statements must be corroborated. He has therefore

forfeited it. See Elliott v. u.s. Dep't ofAgriculture, 596 F.3d 842, 851 (D.C. Cir.

2010).

Second, the corroboration rule is limited to criminal jury trials and is not

relevant here, where even the hearsay rules do not bar consideration of reliable

evidence. Al Bihani, 590 F.3d at 876. As this Court has explained, detainees'

habeas proceedings are not "subject to all the protections given to defendants in

criminal prosecutions." Al Adahi, 613 F.3d at 1111 n.6. Instead, "the Suspension

14 This argument is also presented inAI Alwi v. Obama, No. 09-5125 (D.C. Cir.) (argued November 4, 2010).

....!!~C..."'·!.,T..,.lJ,..7141..0~~fIIIO.."',...I41...

59




SECft:ETf/l~6F6~1~

Clause protects only the fundamental character of habeas proceedings, and any

argument equating that fundamental character with all the accoutrements of habeas

for domestic criminal defendants is highly suspect." Al Bihani, 590 F.3d at 876.

The corroboration rule is not "fundamental" to habeas proceedings. The

rule provides that a criminal conviction "cannot rest on a defendant's out-of-court

statements made subsequent to the crime ... unless the government produces

substantial independent evidence which would tend to establish the

trustworthiness of the statement." United States v. Dickerson, 163 F.3d 639, 641

(D.C. Cir. 1999). The rule "stem[s] from common law," rather than from the

constitution. Ibid.; see also MCCORMICK ON EVIDENCE § 145, at 593 (6th ed.

2006) (noting that the "[c]onstitutional considerations ... do not demand" the

corroboration rule). And this Court, among others, has questioned the necessity of

the rule even in criminal prosecutions. See Dickerson, 163 F.3d at 644 n.2 (noting

that "Judge Learned Hand doubted as early as 1918 whether the corroboration rule

'has in fact any substantial necessity in justice'" and expressing "doubt[] ... that

the Supreme Court would rule today as it did [in Smith]" (quoting Daeche v.

United States, 250 F. 566, 571 (2d Cir. 1918)); MCCORMICK ON EVIDENCE, supra,

§ 145, at 596-97 & n.29 (collecting sources critical of the corroboration rule).

:;ECftETffl~6F6ft:1~

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Nor is the corroboration rule necessary to ensure that detainees are afforded

"meaningful" habeas procedures. Al Bihani, 590 F.3d at 875. Esmail, like other

detainees, had ample opportunity to explain his interrogation statements at trial,

including through live testimony. He chose not to testify. Moreover, the

corroboration rule is principally based on the concern that juries will "accept

confessions uncritically," without adequate consideration of the risk of false

confession. MCCORMICK ON EVIDENCE, supra, § 145, at 595 & n.19; Smith, 348

U.S. at 153 (holding that empirical evidence of "false confessions voluntarily

made ... justifi[ies] a restriction on the power of the jury to convict, for this

experience with confessions is not shared by the average juror"). But, as this

Court has explained, "district judges are experienced and sophisticated fact

finders" whose "eyes need not be protected from unreliable information in the

manner the Federal Rules of Evidence aim to shield the eyes of impressionable

juries." See Al Bihani, 590 F.3d at 880. Because of this and because these are not

criminal proceedings, this Court has accordingly declined to impose ordinary

hearsay evidence rules in these proceedings. Ibid. It should similarly decline to

adopt a rule that mechanically bars consideration of a detainee's own admissions.

In any event, moreover, Esmail's 2002-2004 statements are amply

corroborated. As this Court has explained, "[t]raditionally, [the rule's] purpose

3EeftETfll.el8eftl.

61




has been to forestall convictions based on confessions to crimes that never

occurred." United States v. Johnson, 589 F.2d 716, 718 (D.C. Cir. 1978); see also

MCCORMICK ON EVIDENCE, supra, § 145 at 595. The corroboration requirement

has limited scope, requiring that the government only to provide evidence that

"'supports the essential facts admitted sufficiently to permit a jury inference of

their truth.'" Johnson, 589 F.2d at 718 (quoting Opper v. United States, 348 U.S.

84, 93 (1954)).

The government easily satisfied those requirements here. Abu Khalud's

role as an al-Qaida facilitator who helped with travel to Afghanistan is

corroborated by another detainee, whose statement the district court found to be

credible. JA 262 and JA n.13. Esmail himself still does not deny that he obtained

for at least two separate periods of training. JA

930. And detainee statements and documentary evidence place Esmail in Tora

Bora at the time of the battle there. JA 1159, 1166, 848. Thus, even ifEsmail's

statements required corroboration - and they do not - the government's

corroboration was sufficient.

5Eeft:ETlft~eFeftt~

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CONCLUSION

For the foregoing reasons, this Court should affirm the judgment of the

district court.

Respectfully submitted,

TONY WEST Assistant Attorney General

DOUGLAS N. LETTER ROBERT M. LOEB ANNE MURPHY

(202) 514-3688 Attorneys, Appellate Staff Civil Division, Room 7644 u.s. Department ofJustice 950 Pennsylvania Ave., NW Washington, D.C. 20530 0001

NOVEMBER 2010

gEeft:E'fiil~eFeft:l~

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CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(7)(C) OF THE FEDERAL RULES OF APPELLATE PROCEDURE

I hereby certify, pursuant to Fed. R. App. P. 32(a)(7)(C) and D.C. Circuit

Rule 32(a), that the foregoing brief is proportionally spaced in Times New Roman

14-point type, and that it contains 13, 853 words according to the wordcount

feature of WordPerfect 12, excluding the portions of the brief excluded by Fed. R.

App. P. 32(a)(7)(B)(iii).

Anne Murphy Counsel for Respondents

~Eeft:E'fiiHOf'Oft:I~




5ECRE"fffl~OFORH

CERTIFICATE OF SERVICE

I hereby certify that on November 19,2010, I filed and served the foregoing

Brief for Respondents-Appellees by delivering an original and seven copies for the

Court, and two paper copies for counsel of record listed below, to the Court

Security Officer.

Alan A. Pemberton Brian Foster Danielle S. Barbour Covington & Burling 1201 Pennsylvania Ave., N.W. Washington, D.C. 2004-2401

David H. Remes 1106 Noyes Drive Silver Spring, MD 20910

Anne Murphy Counsel for Respondents

SECRETlIt~OFORt~



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