Alsabri v. Obama

• Decision Date: 03 May 2012
• Docket Number: No. 11–5081.,11–5081.
• Citation: 684 F.3d 1298
• Parties: Mashour Abdullah Muqbel ALSABRI, Petitioner–Appellant v. Barack OBAMA, et al., Respondents–Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

684 F.3d 1298

Mashour Abdullah Muqbel ALSABRI, Petitioner–Appellant

v.Barack OBAMA, et al., Respondents–Appellees.

No. 11–5081.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 24, 2011.

Decided April 27, 2012.

Reissued May 3, 2012.

Appeal from the United States District Court for the District of Columbia (No. 1:06–cv–01767).

Brian J. Neff argued the cause for appellant. Donald A. Klein was on the briefs.

Michael P. Abate, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Tony West, Assistant Attorney General, and Robert M. Loeb, Attorney.

Before: GARLAND and KAVANAUGH, Circuit Judges, and GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge:

Petitioner Mashour Abdullah Muqbel Alsabri, a detainee at the United States Naval Station at Guantanamo Bay, Cuba, appeals the district court's denial of his petition for a writ of habeas corpus. For the reasons set forth below, we affirm the judgment of the district court.¹

I

The facts leading to the petitioner's detention are extensively chronicled in the district court's opinion. See Alsabri v. Obama, 764 F.Supp.2d 60 (D.D.C.2011). The following synopsis relies on the district court's most significant findings.

Alsabri is a Yemeni citizen who was born and raised in Saudi Arabia. He lived in Saudi Arabia until he was deported to Yemen in 1998, following an arrest for allegedly harboring an individual wanted for passport forgery. In Yemen, he associated with veteran jihadist fighters, including members of al Qaeda, and decided to travel to Afghanistan to fight with the Taliban or al Qaeda. In the summer of 2000, he traveled to Afghanistan by way of Pakistan, assisted by the Taliban and in the company of several men who expressed a desire to become martyrs. Once in Afghanistan, Alsabri stayed at several guesthouses affiliated with the Taliban and al Qaeda. He actively sought out and received military training from the Taliban or al Qaeda, and thereafter—with the authorization of one of Osama bin Laden's lieutenants—traveled to the front lines of the Taliban's fight against the Northern Alliance.

After leaving the front, Alsabri went to Jalalabad, Afghanistan. As Coalition forces approached that city in late 2001, following al Qaeda's September 11, 2001 attacks against the United States, Alsabri fled eastward to a village near the border of Afghanistan and Pakistan. There he says he remained for nearly a month before crossing into Pakistan, where he was captured by Pakistani authorities in early 2002. The Pakistanis turned Alsabri over to the custody of the United States military, and he was subsequently transferred to Guantanamo Bay.

In October 2006, Alsabri filed a petition for a writ of habeas corpus. The petition was held in abeyance until the Supreme Court ruled, in Boumediene v. Bush, that aliens detained as enemy combatants at Guantanamo are “entitled to the privilege of habeas corpus to challenge the legality of their detention,” 553 U.S. 723, 771, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008), and that the federal courts have jurisdiction over such challenges, id. at 791–92, 128 S.Ct. 2229. In November 2010, the district court held a four-day habeas hearing. Following the hearing, the court concluded, based on a preponderance of the evidence, that “the petitioner was part of the Taliban, al-Qaida or associated forces and is therefore lawfully detained.” Alsabri, 764 F.Supp.2d at 62;see id. at 96. The court based its conclusion on five findings: (1) that Alsabri traveled to Afghanistan for the purpose of fighting with the Taliban or al Qaeda; (2) that once in Afghanistan he stayed at multiple Taliban and al Qaeda guesthouses; (3) that he sought and received military training from the Taliban or al Qaeda; (4) that he traveled to the front lines of the Taliban's battle against the Northern Alliance; and (5) that he remained a part of the Taliban, al Qaeda, or associated forces at the time of his capture.

On appeal, Alsabri raises several challenges to the district court's denial of his habeas petition. First, he disputes certain factual findings by the district court, as well as its ultimate conclusion that he was part of the Taliban, al Qaeda, or associated forces. Second, he argues that the district court committed procedural error in admitting certain pieces of evidence over his objections. Finally, he maintains that the court's decision rests on several legal errors. We address Alsabri's factual disputes in Part II, his evidentiary objections in Part III, and his legal arguments in Part IV.

II

Following al Qaeda's attacks against the United States, Congress passed the Authorization for Use of Military Force (AUMF), which provides:

[T]he 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) (codified at 50 U.S.C. § 1541 note). We have held that the AUMF grants the President the authority “to detain individuals who are ‘part of forces associated with Al Qaeda or the Taliban.’ ” Khan v. Obama, 655 F.3d 20, 23 (D.C.Cir.2011) (quoting Al–Bihani v. Obama, 590 F.3d 866, 872 (D.C.Cir.2010)). Applying that standard to the facts of this case, the district court held that “the petitioner was part of the Taliban, al-Qaida or associated forces and is therefore lawfully detained.” Alsabri, 764 F.Supp.2d at 62.

The district court's decision denying the writ presents a mixed question of law and fact. See Khan, 655 F.3d at 26;Awad v. Obama, 608 F.3d 1, 10 (D.C.Cir.2010). We review the court's specific factual determinations about what happened—why Alsabri traveled to Afghanistan, where he stayed, and what he did—for clear error, see Khan, 655 F.3d at 26;Barhoumi v. Obama, 609 F.3d 416, 423 (D.C.Cir.2010), which we may find only if, “ ‘on the entire evidence,’ we are ‘left with the definite and firm conviction that a mistake has been committed,’ ” Barhoumi, 609 F.3d at 423 (quoting Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)). The “question whether evidence is sufficiently reliable to credit is [also] one we review for clear error.” Al Alwi v. Obama, 653 F.3d 11, 19 (D.C.Cir.2011); see Khan, 655 F.3d at 26;Awad, 608 F.3d at 8. The district court's overall conclusion as to “whether a detainee's alleged conduct is sufficient to make him part of” the Taliban, al Qaeda, or associated forces for purposes of the AUMF, however, is a “legal question[ ] that we review de novo.” Khan, 655 F.3d at 26 (internal quotation marks omitted); see Al Alwi, 653 F.3d at 16;Barhoumi, 609 F.3d at 423.

A

We begin with the district court's determination that Alsabri traveled to Afghanistan for the purpose of fighting with the Taliban or al Qaeda. The court based that determination on four subsidiary findings regarding: (a) Alsabri's association with veteran jihadists while in Yemen; (b) the role of a former Taliban fighter in encouraging Alsabri to travel to Afghanistan; (c) the influence of a fatwa issued by two Saudi clerics; and (d) Alsabri's travel route and travel companions. Alsabri contests various individual pieces of evidence underlying these findings, but he does not dispute the greater part of the evidence on which the district court relied. Indeed, the court's findings are supported primarily by Alsabri's own admissions, which he has not repudiated.²

Alsabri concedes that, at some point before traveling to Afghanistan, he stayed for approximately two weeks at a boardinghouse in Sana'a, Yemen with a group of veteran fighters. At least two of them were members of the Taliban or al Qaeda; one would go on to become one of the suicide bombers of the U.S.S. Cole. See Alsabri, 764 F.Supp.2d at 63, 72–76; Pet'r Br. 8–9. After leaving the boardinghouse, Alsabri maintained relationships with several of those individuals and inquired about the whereabouts of one of them while he was in Afghanistan. Alsabri, 764 F.Supp.2d at 75 (citing GTMO Intelligence Report at 3 (Jan. 10, 2004) (J.A. 818)). Although not dispositive, such “evidence of association with other al Qaeda members is itself probative” of membership in al Qaeda or associated forces. Uthman v. Obama, 637 F.3d 400, 405 (D.C.Cir.2011). Alsabri also admits that two of the primary influences on his decision to travel to Afghanistan were his discussions with a former Taliban fighter who told Alsabri about his military training,³ and a fatwa issued by two Saudi clerics who encouraged Islamic men to go to Afghanistan to assist the Taliban. Alsabri, 764 F.Supp.2d at 76–80;see Interrogation Report at 3 (Feb. 21, 2002) (J.A. 788); Interrogation Report at 5 (May 24, 2002) (J.A. 803).

Alsabri further states that, upon departing Sana'a, he flew to Karachi, Pakistan, and then traveled on to Quetta, Pakistan, before finally crossing the border into Afghanistan and arriving at a guesthouse in Kandahar. Alsabri, 764 F.Supp.2d at 81 (citing, inter alia, Interrogation Report at 6 (Feb. 21, 2002) (J.A. 791)); see Interrogation Report at 5–6 (May 24, 2002) (J.A. 803–04). This is the same route taken by the detainee in the Uthman case, which we described as “a common al Qaeda route” that “can be probative evidence that the traveler was part of al Qaeda.” 637 F.3d at 405–06;see Al Odah v. United States, 611 F.3d 8, 16 (D.C.Cir.2010). Moreover, while in Quetta, Alsabri stayed at a guesthouse known as the “Daftar al-Taliban,” which Alsabri understood was operated by the Taliban. Alsabri, 764 F.Supp.2d at 83 (citing interrogation reports). The district court found that Taliban personnel at that house ...