Ali v. Obama

• Decision Date: 03 December 2013
• Docket Number: No. 11–5102.,11–5102.
• Citation: 736 F.3d 542
• Parties: Abdul Razak ALI, Detainee, Appellant v. Barack OBAMA, President, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

736 F.3d 542

Abdul Razak ALI, Detainee, Appellant
v.
Barack OBAMA, President, et al., Appellees.

No. 11–5102.

United States Court of Appeals,
District of Columbia Circuit.

Argued Sept. 27, 2013.
Decided Dec. 3, 2013.

[736 F.3d 543]

Appeal from the United States District Court for the District of Columbia (No. 1:10–cv–01020).
H. Candace Gorman argued the cause and filed the briefs for appellant.

Sydney Foster, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Stuart F. Delery, Principal Deputy Assistant Attorney General, Ian Heath Gershengorn, Deputy Assistant Attorney General, and Robert M. Loeb, Attorney, U.S. Department of Justice. Matthew M. Collette and Douglas N. Letter, Attorneys, U.S. Department of Justice, entered appearances.

Before: KAVANAUGH, Circuit Judge, and EDWARDS and WILLIAMS, Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge KAVANAUGH.
Opinion concurring in the judgment filed by Senior Circuit Judge EDWARDS.

KAVANAUGH, Circuit Judge:

The United States is engaged in an ongoing war against al Qaeda, the Taliban, and associated forces. In March 2002, as part of that war, Abdul Razak Ali was captured by U.S. and Pakistani forces at a four-bedroom house in Faisalabad, Pakistan. After Ali's capture, the U.S. military detained him as an enemy combatant. Since June 2002, Ali has been held at the U.S. Naval Base in Guantanamo Bay, Cuba.

When captured at the house in Pakistan, Ali was with an al Qaeda-associated terrorist leader named Abu Zubaydah. Also present were four former trainers from a terrorist training camp in Afghanistan, multiple experts in explosives, and an individual who had fought alongside the Taliban. Their living quarters contained documents bearing the designation “al Qaeda,” electrical components, and a device typically used to assemble remote bombing devices. At the time of his capture, Ali had been at the terrorist guesthouse for about 18 days. Soon after the capture, an FBI interrogator asked Ali for his name and nationality. Ali falsely identified himself as Abdul Razzaq of Libya. Ali maintained that lie for the next two years.

That much is undisputed. In addition, the record strongly suggests, and the District Court found, two other significant facts: Ali, a native Algerian, traveled to Afghanistan after September 11, 2001, in order to fight in the war against U.S. and Coalition forces. And while at the Pakistan guesthouse, Ali participated in Abu Zubaydah's terrorist training program by taking English lessons.

Under our precedents, we conclude that those facts justify the President's decision to detain Ali as an enemy combatant pursuant to the 2001 Authorization for Use of Military Force. SeePub.L. No. 107–40, § 2(a), 115 Stat. 224 (2001); Hamdi v. Rumsfeld, 542 U.S. 507, 518, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004). We therefore affirm the judgment of the District Court denying Ali's petition for a writ of habeas corpus.

[736 F.3d 544]

I

Shortly after the attacks against the United States on September 11, 2001, Congress passed and President George W. Bush signed the Authorization for Use of Military Force. The 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 persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Pub.L. No. 107–40, § 2(a), 115 Stat. 224 (2001); see U.S. Const. art. I, § 8.

This Court has stated that the AUMF authorizes the President to detain enemy combatants, which includes (among others) individuals who are part of al Qaeda, the Taliban, or associated forces. See Hussain v. Obama, 718 F.3d 964, 967 (D.C.Cir.2013).¹ Detention under the AUMF may last for the duration of hostilities. See Hamdi v. Rumsfeld, 542 U.S. 507, 521, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004); Uthman v. Obama, 637 F.3d 400, 402 (D.C.Cir.2011). This Court has assumed without deciding that, to justify detention of a member of al Qaeda, the Taliban, or an associated force, the Government must prove the detainee's status by a preponderance of the evidence. See Hussain, 718 F.3d at 967 n. 3;Uthman, 637 F.3d at 403 n. 3;Al–Bihani v. Obama, 590 F.3d 866, 878 & n. 4 (D.C.Cir.2010). In a prior case involving a Guantanamo detainee captured in the same Faisalabad guesthouse as Ali, we recognized that the force commanded by Abu Zubaydah constitutes an “associated force” for purposes of the AUMF. See Barhoumi v. Obama, 609 F.3d 416, 423 (D.C.Cir.2010). Ali does not dispute that conclusion here.

The only question, then, is whether Ali more likely than not was part of Abu Zubaydah's force. Ali says that he was not. He admits that he was captured with Abu Zubaydah in the Faisalabad, Pakistan, guesthouse. Ali also admits that he lied about his identity from the time of his capture in March 2002 until late 2004, when he admitted that he is really Saeed Bakhouche of Algeria, not Abdul Razzaq of Libya.² Ali insists, however, that he mistook the Abu Zubaydah facility for a public guesthouse, and that he had nothing to do with the terrorist activity being planned there.

In 2005, Ali filed a habeas petition contesting his detention. After the Supreme Court ruled in Boumediene v. Bush, 553 U.S. 723, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008), that the habeas corpus right extends to Guantanamo, the District Court

[736 F.3d 545]

took up Ali's case and held a three-day hearing. Based on Ali's presence at the guesthouse with Abu Zubaydah, his participation in Abu Zubaydah's training program, his admission to traveling to Afghanistan to fight in the war against U.S. and Coalition forces, and other evidence connecting Ali to Abu Zubaydah fighters, the District Court concluded that “it is more probable than not that” Ali “was in fact a member of Abu Zubaydah's force.” Ali v. Obama, 741 F.Supp.2d 19, 27 (D.D.C.2011).

On appeal, Ali argues that the Government failed to justify his detention by a preponderance of the evidence. He also contests several procedural aspects of the habeas proceeding, including the Government's alleged failure to disclose evidence that could have undermined the credibility of two detainees who linked Ali to Abu Zubaydah's force.

This Court reviews the District Court's ultimate habeas determination de novo, its underlying factual findings for clear error, and its procedural rulings for abuse of discretion. See Barhoumi, 609 F.3d at 423.

II

The central fact in this case is that Ali was captured in 2002 at a terrorist guesthouse in Pakistan. This Court has explained that a detainee's presence at an al Qaeda or associated terrorist guesthouse constitutes “overwhelming” evidence that the detainee was part of the enemy force. Uthman v. Obama, 637 F.3d 400, 406 (D.C.Cir.2011) (quoting Al–Adahi v. Obama, 613 F.3d 1102, 1108 (D.C.Cir.2010)); see Alsabri v. Obama, 684 F.3d 1298, 1302 (D.C.Cir.2012); Suleiman v. Obama, 670 F.3d 1311, 1314 (D.C.Cir.2012); Almerfedi v. Obama, 654 F.3d 1, 6 n. 7 (D.C.Cir.2011); Al–Madhwani v. Obama, 642 F.3d 1071, 1075 (D.C.Cir.2011); Al–Bihani v. Obama, 590 F.3d 866, 873 n. 2 (D.C.Cir.2010). We have previously affirmed the detention of an individual captured in the same terrorist guesthouse as Ali. See Barhoumi v. Obama, 609 F.3d 416, 425, 427 (D.C.Cir.2010).

Ali contends that he simply mistook the Abu Zubaydah guesthouse for a public guesthouse. He argues that reliance on his capture in the Abu Zubaydah guesthouse unfairly presumes guilt by association—or, as he styles it, “guilt by guesthouse.” Ali Br. 42. That argument has two flaws.

To begin with, we are not talking about “guilt.” This is not a criminal proceeding in which the Government asks a court to find Ali guilty and punish him for past behavior by sentencing him to a defined term of imprisonment. In other words, this is not a federal criminal trial or a military commission proceeding for war crimes. Rather, this case involves military detention. The purpose of military detention is to detain enemy combatants for the duration of hostilities so as to keep them off the battlefield and help win the war. Military detention of enemy combatants is a traditional, lawful, and essential aspect of successfully waging war. See Hamdi v. Rumsfeld, 542 U.S. 507, 518, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004); William Winthrop, Military Law and Precedents 788 (rev.2d ed.1920) (military detention during wartime “is neither a punishment nor an act of vengeance, but merely a temporary detention which is devoid of all penal character”) (internal quotation marks and citation omitted). The standard of proof for military detention is not the same as the standard of proof for criminal prosecution, in part because of the different purposes of the proceedings and in part because military detention ends with the end of the war.

[736 F.3d 546]

Moreover, determining whether an individual is part of al Qaeda, the Taliban, or an associated force almost always requires drawing inferences from circumstantial evidence, such as that individual's personal associations. Unlike enemy soldiers in traditional wars, terrorists do not wear uniforms. Nor do terrorist organizations issue membership cards, publish their rosters on the Internet, or otherwise publicly identify the individuals within their ranks. So we must look to other indicia to determine membership in an enemy force. As this Court has stated before, a person's decision to stay with the members of a terrorist force at a terrorist guesthouse can be highly probative evidence that he is part of that force and thus a detainable enemy combatant. One does not generally end up at al Qaeda or other terrorist guesthouses in Afghanistan or Pakistan by mistake—either by the guest or by the host. See Uthman, 637 F.3d at 406.

In...