Abdul Al Qader Ahmed Hussain v. Obama

• Decision Date: 21 August 2013
• Docket Number: No. 11–5344.,11–5344.
• Citation: 718 F.3d 964
• Parties: Abdul Al Qader Ahmed HUSSAIN, Detainee, Appellant v. Barack Hussein OBAMA, President of the United States, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

718 F.3d 964

Abdul Al Qader Ahmed HUSSAIN, Detainee, Appellant

v.Barack Hussein OBAMA, President of the United States, et al., Appellees.

No. 11–5344.

United States Court of Appeals,District of Columbia Circuit.

Argued Oct. 18, 2012.

Decided June 18, 2013.

Rehearing En Banc Denied Aug. 21, 2013.

Appeal from the United States District Court for the District of Columbia (No. 1:05–cv–02104).

Wesley R. Powell argued the cause and filed the briefs for appellant.

Henry C. Whitaker, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Stuart F. Delery, Acting Assistant Attorney General, Ian Heath Gershengorn, Deputy Assistant Attorney General, and Robert M. Loeb, Attorney.

Before: HENDERSON and GRIFFITH, Circuit Judges, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GRIFFITH.

Opinion filed by Senior Circuit Judge EDWARDS, concurring in the judgment.

GRIFFITH, Circuit Judge:

The district court denied appellant's petition for a writ of habeas corpus challenging his detention at Guantanamo Bay. We affirm the district court because its findings of fact were not clearly erroneous, and those facts support the conclusion that appellant was more likely than not a part of enemy forces at the time of his capture.

I

The background of this case is set forth in the district court's thorough opinion, see Hussein v. Obama, 821 F.Supp.2d 67, 68–75 (D.D.C.2011), on which we rely to recite those facts relevant to this appeal. Appellant Abdul al Qader Ahmed Hussain ¹ is a citizen of Yemen detained at the United States Naval Base at Guantanamo Bay. Sometime in 1999, Hussain left his home in Yemen for Pakistan. He initially spent a few weeks in Karachi and then traveled to Quetta, where he stayed for about three months. While in Quetta, he lived in a mosque run by the Jama'at al-Tablighi (JT) organization. From Quetta, Hussain traveled to Afghanistan, where he spent approximately three months. After that, Hussain returned again to a JT mosque in Quetta in April or May of 2000 until about June, when he left for Kabul, Afghanistan. In approximately August 2000, he returned once again to Quetta for another three-month stay at a JT mosque. Then, in November 2000, Hussain moved to Afghanistan and settled for ten months in an area north of Kabul that was ravaged by war between the Taliban and the Northern Alliance. Hussain lived near the front lines with three armed Taliban guards. Hussain's Taliban housemates supplied him with an AK–47 rifle and trained him in its use. After al Qaeda attacked the United States on September 11, 2001, Hussain fled Afghanistan and returned to Pakistan where he lived at yet another JT mosque in Lahore. He was captured in Faisalabad in March 2002,² and was transferred to Guantanamo Bay soon thereafter.

Seeking to challenge his detention, Hussain filed a petition for a writ of habeas corpus with the district court on October 27, 2005. Uncertain of its jurisdiction to hear habeas petitions from detainees at Guantanamo Bay, the district court stayed the case in January 2006. In the wake of the Supreme Court's decision in Boumediene v. Bush, 553 U.S. 723, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008), the district court heard Hussain's petition, but denied him relief. The district court concluded that Hussain was part of al Qaeda or the Taliban at the time of his capture, based on evidence of what he did and with whom he stayed in Pakistan and Afghanistan as well as his efforts to explain away that evidence, which the court found implausible. See Hussein, 821 F.Supp.2d at 79. Hussain now appeals.

We review the district court's factual findings for clear error. We review de novo the ultimate legal determination of whether those facts support detention. See Barhoumi v. Obama, 609 F.3d 416, 423 (D.C.Cir.2010) (“Determining whether a detainee was ‘part of’ an associated force is a mixed question of law and fact” because “whether a detainee's alleged conduct ... justifies his detention under the AUMF is a legal question” and “whether the government has proven that conduct” is a factual one. (internal citations omitted)).

II

The Authorization for Use of Military Force (AUMF), enacted in response to the terrorist attacks of September 11, 2001, permits the President to detain individuals who “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such ... persons.” Pub.L. No. 107–40, § 2(a), 115 Stat. 224 (2001); see Hamdi v. Rumsfeld, 542 U.S. 507, 519, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (stating that the AUMF “clearly and unmistakably authorized detention” of enemy combatants). As we have stated repeatedly, this authority justifies holding a detainee at Guantanamo if the government shows, by a preponderance of the evidence, that the detainee was part of al Qaeda, the Taliban, or associated forces at the time of his capture. See Khairkhwa v. Obama, 703 F.3d 547, 548 (D.C.Cir.2012); Uthman v. Obama, 637 F.3d 400, 403 (D.C.Cir.2011); Salahi v. Obama, 625 F.3d 745, 751–52 (D.C.Cir.2010); Bensayah v. Obama, 610 F.3d 718, 725 (D.C.Cir.2010); Awad v. Obama, 608 F.3d 1, 11–12 (D.C.Cir.2010); Al–Bihani v. Obama, 590 F.3d 866, 872 (D.C.Cir.2010). ³ Hussain challenges this standard on two grounds, which he acknowledges we have rejected before. Appellant Br. 15 n. 2. We do so again.

Hussain argues that the government must show that he was involved in the “command structure” of al Qaeda or the Taliban, rather than merely “part of” these organizations. But “[n]owhere in the AUMF is there a mention of command structure.” Awad, 608 F.3d at 11. While such a showing would be enough to sustain Hussain's detention, it is not necessary. Id. We have long held that requiring proof that a detainee was part of the “command structure” is too demanding; the sweep of the Executive's detention authority under the AUMF is broader. See Uthman, 637 F.3d at 403;see also Salahi, 625 F.3d at 751–52 (quoting Bensayah, 610 F.3d at 725).

Hussain also argues that the government must show that he personally picked up arms and engaged in active hostilities against the United States. But again, this argument demands more than the AUMF requires. See Khairkhwa, 703 F.3d at 550 (collecting cases that reject the notion that a detainee must have engaged in hostilities); Awad, 608 F.3d at 11 (Once the government demonstrated that the detainee was part of al Qaeda, “the requirements of the AUMF were satisfied.”); Al–Bihani, 590 F.3d at 869 (permitting the detention of a detainee who “worked as the [55th Arab B]rigade's cook and carried a brigade-issued weapon, but never fired it in combat”). As we noted in Khairkhwa, permitting detention only for those detainees who engaged in active hostilities would be inconsistent with the realities of “modern warfare” in which “commanding officers rarely engage in hand-to-hand combat; supporting troops behind the front lines do not confront enemy combatants face to face; supply-line forces, critical to military operations, may never encounter their opposition.” Khairkhwa, 703 F.3d at 550. Nothing has changed since we rejected these arguments only months ago. We are bound by our precedent and therefore reject Hussain's challenges. Having done so, we offer a brief overview of how we evaluate evidence in these cases.

We have adopted no categorical rules to determine whether a detainee is “part of” an enemy group. Instead, we look at the facts and circumstances in each case. See Bensayah, 610 F.3d at 725 (“It is impossible to provide an exhaustive list of criteria for determining whether an individual is ‘part of’ al Qaeda.”). We look at each piece of evidence “in connection with all the other evidence” in the record, and not in isolation. Almerfedi v. Obama, 654 F.3d 1, 4 (D.C.Cir.2011); see also Salahi v. Obama, 625 F.3d at 753 (“Merely because a particular piece of evidence is insufficient, standing alone ... does not mean that the evidence may be tossed aside.... The evidence must be considered in its entirety in determining whether the government has satisfied its burden of proof.” (internal citation and quotation marks omitted)). The facts the district court found and the inferences the district court drew from them support the conclusion that Hussain was a part of al Qaeda or the Taliban when he was captured.

III

Perhaps the most damning evidence supporting the district court's conclusion that Hussain was part of an enemy force when he was captured is his ten-month stay near the front lines of battle in war-torn Afghanistan. Hussain does not contest that he lived near the battlefront with Taliban warriors who gave him an AK–47 and taught him how to use it. Evidence that Hussain carried an assault rifle given him by Taliban forces while living among Taliban forces near a battle line fought over by Taliban forces brings to mind the common sense view in the infamous duck test. See, e.g., Dole v. Williams Enterprises, Inc., 876 F.2d 186, 188 n. 2 (D.C.Cir.1989) (adopting the “now-infamous ‘duck-test,’ dressed up in appropriate judicial garb: ‘WHEREAS it looks like a duck, and WHEREAS it walks like a duck, and WHEREAS it quacks like a duck, WE THEREFORE HOLD that it is a duck.’ ”).⁴ Evidence that Hussain bore a weapon of war while living side-by-side with enemy forces on the front lines of a battlefield at least invites—and may very well compel—the conclusion that he was loyal to those forces. We have repeatedly affirmed the propriety of this common-sense inference. Alsabri v. Obama, 684 F.3d 1298, 1306 (D.C.Cir.2012) (“[I]t is difficult to believe that Taliban fighters would allow an individual to infiltrate their posts near a battle zone unless that person was understood to be a part of the Taliban.” (internal quotation marks omitted)); see also Suleiman v. Obama, 670 F.3d 1311, 1313–14 (D.C.Cir.2012); Al–Madhwani v. Obama, 642 F.3d 1071, 1075 (D.C.Cir.2011). Hussain suggests a more benign...