Almerfedi v. Obama

• Decision Date: 10 June 2011
• Docket Number: No. 10–5291.,10–5291.
• Citation: 397 U.S.App.D.C. 361,654 F.3d 1
• Parties: Hussain Salem Mohammed ALMERFEDI, Detainee and Salem Mohammed Salem Abdulla Almerfedi, as next friend of Hussain Salem Mohammed Almerfedi, Appelleesv.Barack OBAMA, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

654 F.3d 1

397 U.S.App.D.C. 361

Hussain Salem Mohammed ALMERFEDI, Detainee and Salem Mohammed Salem Abdulla Almerfedi, as next friend of Hussain Salem Mohammed Almerfedi, Appellees

v.Barack OBAMA, et al., Appellants.

No. 10–5291.

United States Court of Appeals, District of Columbia Circuit.

Argued April 11, 2011.Decided June 10, 2011.

Appeal from the United States District Court for the District of Columbia (No. 1:05–cv–01645).Robert M. Loeb, Attorney, U.S. Department of Justice, argued the cause for appellants. With him on the briefs were Tony West, Assistant Attorney General, Ian Heath Gershengorn, Deputy Assistant Attorney General and Douglas N. Letter and Matthew M. Collette, Attorneys.

S. William Livingston argued the cause for appellees. With him on the brief were Jason A. Levine and David H. Remes. Judith B. Chomsky, Brian E. Foster, and Alan A. Pemberton entered appearances.Before: ROGERS and KAVANAUGH, Circuit Judges, and SILBERMAN, Senior Circuit Judge.Opinion for the Court by Senior Circuit Judge SILBERMAN.Opinion concurring in part and concurring in the judgment by Circuit Judge ROGERS.SILBERMAN, Senior Circuit Judge:

The United States appeals from the district court's decision granting Hussain Salem Mohammed Almerfedi's petition for a writ of habeas corpus. The district court concluded that the government failed to demonstrate by a preponderance of the evidence that Almerfedi was, as alleged, “part of” al Qaeda. The government contends that this conclusion was erroneous because the district court incorrectly found certain evidence unreliable, thereby improperly excluding it from consideration, and failed to give sufficient weight to the reliable evidence it did consider. We agree, and conclude as a matter of law that the government has demonstrated by a preponderance of the evidence that Almerfedi can be detained. We therefore reverse the district court's decision granting Almerfedi's petition.

I.

Almerfedi was captured in Tehran by Iranian authorities sometime after September 11, 2001. He was turned over to Afghani authorities in March 2002 as part of a prisoner exchange. Then, in May 2003, he was, in turn, transferred to Guantanamo Bay by United States forces. Little in the record indicates the circumstances of his apprehension in Iran, or his Afghan custody. The evidence the government presents to support its allegation that Almerfedi is “part of” al Qaeda comes from two sources: Almerfedi's own admissions and the statements of another Guantanamo detainee, Humoud al-Jadani.

A Yemeni national, Almerfedi submits that he left his home of Aden, in southern Yemen, sometime in 2001 in order to seek a better life in Europe. He set out with approximately $2,000, which he asserts he obtained by doing various menial jobs and by selling qat. Almerfedi said that he bribed a guard at the Pakistan Embassy to obtain a visa, and thereafter traveled to Lahore, Pakistan, where he stayed at the headquarters of Jama'at Tablighi, an Islamic missionary organization, which U.S. intelligence has designated a Terrorist Support Entity. That is a category of organizations that has “demonstrated intent and willingness to provide financial support to terrorist organizations,” or to provide “witting operational support” to terrorist groups.

Almerfedi stayed at the Jama'at Tablighi center for two and one half months. He acknowledged that he stayed for free, paying only for food. He said that he kept to himself during this time because there were very few Arabic speakers like himself at the headquarters. He asserts that, in fact, he met only one other Arabic speaker while at the headquarters—Mohammad Ali. Ali, according to Almerfedi, offered to help Almerfedi travel to Europe by smuggling him into Iran, then to Turkey, and finally to Greece. Almerfedi accepted, paying Ali much of his life savings. They traveled from Lahore to the Iranian border, bribing border guards to cross into Iran before moving into Tehran. But then, instead of traveling towards Turkey, the two went in the opposite direction— 896 kilometers east—to Mashad, Iran, where they spent a month. They then returned to Tehran, where Almerfedi was captured by the Iranian authorities. When captured, Almerfedi admits that he still had at least $2,000 in cash, which the Iranians confiscated.

The government contends that Almerfedi, after he had returned to Tehran from Mashad, stayed at an al Qaeda-affiliated guesthouse. To support this allegation, the government relies on statements Almerfedi made to al-Jadani while both were at Guantanamo Bay. Al–Jadani reported that Almerfedi told him that Almerfedi was housed in a guesthouse in Tehran maintained by al Qaeda in 2002 or 2003. And al-Jadani disclosed that other, unnamed detainees had said that a “Hussain al-Adeni” was an al Qaeda facilitator who resided at a guesthouse in Tehran. The government believes that Hussain al-Adeni was the same person as Almerfedi because the nisha ¹ “al-Adeni” means “from Aden,” which is where Almerfedi is from. According to the government, there was only one Hussain from Aden at Guantanamo Bay.

Although Almerfedi does not contest much of the government's narrative, he disputes that he ever stayed at an al Qaeda-affiliated guesthouse in Tehran. He points out that the dates al-Jadani reports Almerfedi having been at a guesthouse in Tehran are obviously incorrect—because it is undisputed that Almerfedi was captured by the Iranians in December 2001 or January 2002, Almerfedi could not have been at a guesthouse in 2002 or 2003.

Almerfedi, moreover, offers an innocent explanation for his travels. He says that he began his journey by proceeding through Pakistan for two reasons: he thought it would be easier for him to obtain a visa to Europe from Pakistan than from Yemen, and he wished to travel to Europe with Jama'at Tablighi in the hope that he could take advantage of the travel discounts it gives to its members, even though he admits that he was not a member of the organization and he repeatedly resisted attempts by Tablighi members to recruit him. He does not explain how they spoke to him since he contends he spoke only Arabic, or why they permitted him to remain at the headquarters despite his continued rebuffs.

The September 11 attacks, according to Almerfedi, interfered with his plans to travel to Europe with the Jama'at Tablighi, and so he paid Ali to smuggle him to Europe. He explains that he went to Mashad because he was in Ali's control and had little independent experience with foreign travel, and stayed there because Ali remained there. After his month in Mashad—during which time Almerfedi said that he sat all day in a house rented by Ali—Almerfedi claims that he began to worry that Ali had deceived him because the two took no further steps towards Europe. After raising this concern, Almerfedi contends that he and Ali returned to Tehran, where he was arrested.

Following his detention at Guantanamo Bay, Almerfedi petitioned for a writ of habeas corpus. The government alleged that Almerfedi was “part of” al Qaeda because he served as an al Qaeda facilitator, which is why he possessed an unexplained large amount of cash at the time of his capture.² The district court granted Almerfedi's petition. It refused to consider al-Jadani's statements, finding them unreliable. The district court, however, did recognize that Almerfedi's explanations for his travels were both “perplexing” and “not ... convincing.” Nevertheless, after reviewing all of the evidence, the court concluded that the government had not met its burden to show by a preponderance of the evidence that Almerfedi was “part of” al Qaeda.³

II.

The government, on appeal, points out that the district court's decision was issued before we decided Al–Adahi v. Obama, 613 F.3d 1102 (D.C.Cir.2010), holding that district courts must not consider each piece of government evidence by itself, but rather in connection with all the other evidence. It is argued that the district court erroneously rejected al-Jadani's statements as unreliable without considering them in light of the balance of the government's evidence. The government also contends that the district court committed error by giving insufficient weight to the rest of the evidence—particularly the incredible nature of Almerfedi's explanations. The government maintains that these errors are errors of law and seeks a remand to order the district court to reevaluate the evidence.

Almerfedi argues, rather persuasively, that at least as to the government's argument concerning al-Jadani's statement, it is really challenging the district court's fact finding—which we can only reverse under a clear error standard. As for the remaining evidence, Almerfedi contends that the district court properly weighed it to conclude that the government had not demonstrated by a preponderance of the evidence that Almerfedi was “part of” al Qaeda.

* * *

At oral argument, able counsel for petitioner compared the government's evidence in this case against two standards: first, the evidence the government has produced in other cases, and second, the burden of proof necessary for a criminal conviction—which is, of course, beyond a reasonable doubt. With regard to the first comparison, the government's evidence may well have been stronger in previous cases than in this case. But that is irrelevant; all of those cases were not close. See, e.g., Esmail v. Obama, 639 F.3d 1075 (D.C.Cir.2011); Uthman v. Obama, 637 F.3d 400 (D.C.Cir.2011); Al–Adahi, 613 F.3d 1102; Barhoumi v. Obama, 609 F.3d 416 (D.C.Cir.2010); Awad, 608 F.3d 1. We listed all the evidence supporting the government in those cases without needing to consider the minimum amount of evidence that would establish a preponderance.

Turning to counsel's criminal case comparison, we understand why counsel would seek to analogize a habeas case to a criminal case—in the latter situation, which is appealed after trial only by a defendant...