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Moath Hamza Ahmed Al Alwi, Detainee v. Barack Obama

July 22, 2011

MOATH HAMZA AHMED AL ALWI, DETAINEE,
APPELLANT
v.
BARACK OBAMA, PRESIDENT OF THE UNITED STATES, ET AL.,
APPELLEES



Appeal from the United States District Court for the District of Columbia (No. 1:05-cv-02223)

The opinion of the court was delivered by: Garland, Circuit Judge:

Argued November 4, 2010

Before: TATEL and GARLAND, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GARLAND.

This is an appeal from the denial of the petition of Moath Hamza Ahmed Al Alwi -- a detainee at the United States Naval Base at Guantanamo Bay, Cuba -- for a writ of habeas corpus. For the reasons stated below, we affirm the judgment of the district court.

I

Al Alwi is a Yemeni citizen who was raised in Saudi Arabia. According to the government, he traveled to Afghanistan sometime in or around 2000, intending to join the Taliban's fight against the Northern Alliance. By the government's account, Al Alwi stayed in several guesthouses associated with the Taliban, and in at least one that was associated with al Qaeda where he turned over his passport. Taliban fighters escorted him between two of the guesthouses. Thereafter, he traveled to a Taliban-linked training camp near Kabul, where he was trained to fire a rocket-propelled grenade launcher and was issued a Kalashnikov rifle, ammunition magazines, and grenades. Al Alwi then joined a combat unit, led by a high-ranking al Qaeda official, that fought with the Taliban on two different fronts. Al Alwi did not leave the unit until well after September 11, 2001, by which time his unit had been bombed by United States warplanes responding to the terrorist attacks of that date. Al Alwi fled to Pakistan, where he was captured and subsequently turned over to U.S. authorities. Since then, Al Alwi has been a detainee at Guantanamo Bay.

In 2005, Al Alwi -- through his cousin as next friend -- filed a petition for a writ of habeas corpus, which was held in abeyance until the Supreme Court ruled, in Boumediene v. Bush, that "the constitutional privilege of habeas corpus" extends to aliens detained as enemy combatants at Guantanamo. 553 U.S. 723, 732 (2008). In the meantime, pursuant to the Detainee Treatment Act of 2005 (DTA), Pub. L. No. 109-148, tit. X, 119 Stat. 2680 (codified at 28 U.S.C. § 2241 (2005)), Al Alwi filed an appeal from the determination of his Combatant Status Review Tribunal (CSRT) that he was an enemy combatant, an appeal that was subsequently dismissed for lack of jurisdiction.*fn1 In the summer of 2008, after the Supreme Court issued

Boumediene, the district court reinitiated his habeas proceedings. On December 16-17, 2008, the court held a habeas hearing for Al Alwi.

Following the hearing, the district court found that a preponderance of the evidence supported the government's account of Al Alwi's activities in Afghanistan. Dist. Ct. Op. at 4, 6, 10 (Jan. 9, 2009) (J.A. 1797, 1799, 1803).*fn2 It reached this conclusion largely on the basis of Al Alwi's own interrogation statements, the majority of which were not disputed by his counsel at the habeas hearing.*fn3 In light of its factual findings, the court determined that Al Alwi was being lawfully detained because it was "more probable than not that [Al Alwi] was 'part of or supporting Taliban or al Qaeda forces' both prior to and after the initiation of U.S. hostilities in October 2001." Dist. Ct. Op. at 10 (J.A. 1803). Accordingly, the court denied Al Alwi's habeas petition.

On appeal, Al Alwi raises two categories of challenges to the denial of his petition. He argues that the district court erred in determining that he was being lawfully detained on the record as it stood before that court. And he further argues that the court's procedural errors deprived him of a meaningful opportunity to develop a record upon which he could challenge his detention. We consider these arguments in Parts II and III.

II

Al Alwi challenges, on two grounds, the district court's substantive determination that he was being lawfully detained. First, he contends that the court applied the wrong detention standard. Second, he maintains that the court erred in resting its determination primarily on his own statements because those statements were not sufficiently corroborated. "We review the at 12-13, 16-20 (J.A. 385-86, 389-93); see Al-Adahi v. Obama, 613 F.3d 1102, 1108 (D.C. Cir. 2010) (noting that "[a]t least eight of the September 11th hijackers had trained at Al Farouq"). Al Alwi did not make such admissions during his interrogations, and his counsel vigorously disputed them at the habeas hearing. In light of its finding that the account of Al Alwi's activities contained in his own statements was sufficient to justify his detention, the district court declined to evaluate the evidence supporting those additional charges. See Dist. Ct. Op. at 10 n.2 (J.A. 1803). We decline to do so as well. See Uthman v. Obama, 637 F.3d 400, 404 n.5 (D.C. Cir. 2011).

A

Following the al Qaeda attacks against the United States on September 11, 2001, Congress passed the Authorization for Use of Military Force (AUMF).*fn4 Adopting a detention standard offered by the government, the district court held that the United States has authority, pursuant to the AUMF, to detain an individual who, more likely than not: was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners.

Al Alwi v. Bush, 593 F. Supp. 2d 24, 27 (D.D.C. 2008). After examining the evidence, the court found that "it is more probable than not that petitioner was supporting the Taliban and al Qaeda in a manner consistent with the [detention standard]this court has adopted." Dist. Ct. Op. at 9-10 (J.A. 1802-03); see Al Odah v. United States, 611 F.3d 8, 13 (D.C. Cir. 2010) ("It is now well-settled law that a preponderance of the evidence standard is constitutional in considering a habeas petition from an individual detained pursuant to authority granted by the AUMF.").

Subsequent to the district court's decision, the government adopted a narrower detention standard, which it has relied on in this and other Guantanamo appeals. See, e.g., Bensayah, 610 F.3d at 722 n*; Barhoumi v. Obama, 609 F.3d 416, 423 (D.C. Cir. 2010); Al-Bihani, 590 F.3d at 870 n.1. The new standard retains the original "part of" prong of the former standard, but modifies the "support" prong to require "substantial" support. Under this standard, the government may detain an individual who, more likely than not: [was] 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.

Gov't Br. 19 (emphasis added) (internal quotation marks omitted). For purposes of this appeal, Al Alwi does not dispute the lawfulness of this standard. See Pet'r Br. 47-48, 64 n.18; see also Al-Bihani, 590 F.3d at 872. Al Alwi maintains that we should remand this case to the district court so that it can decide, in the first instance, whether the government's evidence meets the "substantial support" standard.

As we have explained, "whether 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" that we review de novo. Barhoumi, 609 F.3d at 423; see Almerfedi v. Obama, No. 10-5921, 2011 WL 2277607, at *4 (D.C. Cir. June 10, 2011); Uthman v. Obama, 637 F.3d 400, 403 (D.C. Cir. 2011).*fn5 "On review, we ask whether the evidence in the whole record . . . establishes that a petitioner's detainability is more likely justified than not." Almerfedi , 2011 WL 2277607, at *4. Accordingly, if we are persuaded that the record evidence establishes the petitioner's detainability, a remand is not required. See id. at *1 (concluding "as a matter of law that the government has demonstrated by a preponderance of the evidence that [the petitioner] can be detained," and reversing without remanding "the district court's decision granting [the detainee's] petition"); see also Uthman, 637 F.3d at 402; Al-Adahi v. Obama, 613 F.3d 1102, 1106 (D.C. Cir. 2010). There may, of course, be cases in which a remand is warranted because further fact-finding by the district court is necessary or would be helpful. See Salahi v. Obama, 625 F.3d 745, 752-53 (D.C. Cir. 2010) (vacating the district court's grant of the writ, but remanding "[b]ecause additional fact-finding is required to resolve" whether the detainee was "part of" al Qaeda "under this circuit's evolving case law"). But where "the facts found by the District Court, along with uncontested facts in the record, demonstrate that [the detainee] more likely than not" falls within the detention standard, we may resolve the matter on our own. Uthman, 637 F.3d at 402.

Nor need we consider whether the detainee "substantially supported" al Qaeda or the Taliban if we are persuaded that he was "part of" either entity. As this court has now repeatedly held, the AUMF "gives the United States government the authority to detain a person who is found to have been 'part of' al Qaeda or Taliban forces." Al Odah, 611 F.3d at 10; see Awad v. Obama, 608 F.3d 1, 11-12 (D.C. Cir. 2010); Al-Adahi, 613 F.3d at 1103; see also Esmail v. Obama, 639 F.3d 1075, 1076 (D.C. Cir. 2011) (noting that we review de novo whether the detainee satisfies the "part of" standard). Hence, if we conclude that the record establishes that it is more likely than not that Al Alwi was "part of" al Qaeda or the Taliban, there is no need for us to address the "substantial support" prong of the detention standard or to remand the case. See Uthman, 637 F.3d at 402 (concluding "that the facts found by the District Court, along with uncontested facts in the record, demonstrate that [the detainee] more likely than not was part of al Qaeda," and therefore reversing the contrary judgment of that court without requiring a hearing on remand); Al-Adahi, 613 F.3d at 1106 (reversing and remanding with instructions to deny the detainee's petition because the evidence showed that the detainee "was -- at the very least -- more likely than not a part of al-Qaida"); see also Almerfedi, 2011 WL 2277607, at *6.

Here, the facts found by the district court are alone sufficient for us to conclude that Al Alwi was "'part of' al Qaeda or Taliban forces."*fn6 The district court found that Al Alwi traveled to Pakistan, and then on to Afghanistan, "specifically in order to join the Taliban's fight against the Northern Alliance." Dist. Ct. Op. at 4-5 (J.A. 1797-98). Along the way, the court found, he stayed in "at least three guesthouses closely associated with the Taliban and/or al Qaeda." Id. Al Alwi described his escorts between the first two guesthouses as Taliban fighters. Id. at 5 (J.A. 1798). The court also found that the second guesthouse, the al-Ansar guesthouse in Kandahar, Afghanistan, "had strong connections to al Qaeda." Id. at 4 (J.A. 1797). Al Alwi identified the assistant to the guesthouse's leader in a photograph with Osama Bin Laden. Id. Upon arrival at the Kandahar guesthouse, Al Alwi turned over his ...


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