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[ORAL ARGUMENT NOT YET SCHEDULED] No. 10-5282
IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
YASEIN KHASEM MOHAMMAD ESMAIL, Petitioner- Appellant,
v.
BARACK H. OBAMA, et aI., Respondents-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
BRIEF FOR RESPONDENTS-APPELLEES
TONY WEST Assistant Attorney General
DOUGLAS N. LETTER ROBERT M. LOEB ANNE MURPHY
(202) 514-3688 Attorneys, Appellate Staff Civil Division, Room 7644 U.S. Department ofJustice 950 Pennsylvania Ave., N. W. Washington, D.C. 20530-0001
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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
Pursuant to Circuit Rule 28(a)( 1), the undersigned counsel certifies as follows:
A. Parties and Amici. Petitioners in the district court are Mahmoad
Abdah, Mahmoad Abdah Ahmed, Majid Mahmoud Ahmed, Mahmoud Ahmed, Abdul
Malik Abdul Wahhab Al-Rahabi, Ahmed Abdul Wahhab, Makhtar Yahia Naji
Al-Wrafie, Foade Yahia Naji Al-Wrafie, Aref Adb 11 Rheem, Aref Abd Al Rahim,
Yasein Khasem Mohammed Esmail, Jamel Khasem Mohammad, Adnan Farhan
Abdul Latif, Mohamed Farhan Abdul Latif, Jamal Mar'i, Nabil Mohamed Mar'i,
Uthman Abdul Raheem Mohammad Uthman, ArafAbdul Raheem Mohammed, Adil
EI Haj Obaid, Nazem Saeed El Haj Obaid, Mohamed Mohamed Hassan Odaini,
Bashir Mohamed Hassan Odaini, Sadeq Mohammed Said, Abd Alsalem Mohammed
Saeed, Farouk Ali Ahmed Saif, Sheab Al Mohamedi, Salman Yahaldi Hsan
Mohammed Saud, Yahiva Hsane Mohammed Saud Al-Rbuaye. Appellees agree with
Appellant that the only party to this appeal is petitioner-appellant Yasein Khasem
Mohammad Esmail.
Appellees in this Court are: Barack Obama, President of the United States;
Robert Gates, Secretary of Defense; Admiral Jeffrey Harbeson, United States Navy,
Commander, Joint Task Force-GTMO; and Army Col. Donnie Thomas, Commander,
Joint Detention Group, Guantanamo Bay.
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No intervenors or amici have appeared in the district court or this Court.
B. Rulings Under Review.
The district court's rulings before this Court for review are the trial court's
April 8, 2010 opinion and order denying the petition for habeas corpus (JA 243 and
244), and its June 14,2010 order denying petitioner's motion for reconsideration (id.
287).
C. Related Cases.
The consolidated proceeding in the district court has given rise to appeals
previously before this Court. See Abdah v. United States, Nos. 05-5115, 05-5116
(D.C. Cir.). These appeals were remanded to the district court for further proceedings
in light ofthe Supreme Court's opinion in Boumediene v. Bush, 553 U.S. 723 (2008).
See Al Odah v. United States, Judgment, No. 05-5064 (D.C. Cir. June 25, 2008).
This case was also before this Court on appeal from a discovery order. See
Abdah v. United States, No. 05-5127. It was remanded to the district court. See Al
Odah v. United States, 559 F.3d 539 (D.C. Cir. 2009).
There is also an appeal currently pending before this Court regarding the
district court's order requiring the government to give petitioners 30 days notice
before any transfer. See Abdah v. Obama, No. 05-5224 (D.C. Cir.).
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Several other appeals of district court orders granting or denying a writ of
habeas corpus to individuals detained at Guantanamo Bay, Cuba, are pending in this
Court. See,e.g.,Abdahv. Obama, Nos. 10-5235, 10-5319(D.C.Cir.). Thosecases,
however, do not involve the "same parties," and are thus not related pursuant to
Circuit Rule 28(a)(l)(c).
Counsel is not aware at this time of any other related cases within the meaning
of Circuit Rule 28(a)(l)(c).
Anne Murphy Counsel for Respondents-Appellees
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TABLE OF CONTENTS
CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES
GLOSSARY
STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
QUESTIONS PRESENTED 2
STATEMENT OF THE CASE 3
STATEMENT OF THE FACTS 3
A. The Government's Evidence Showing That Esmail Was Part Of AI-Qaida 4
1. Esmail Leaves Yemen for Afghanistan at the Urging of a Known al-Qaida Recruiter, Specifically To Train For Jihad 4
2. Esmail Stays At al-Qaida Guesthouses And Trains Extensively At al-Qaida Paramilitary Training Camps 6
3. Esmail Travels To Tora Bora, Where He Is Captured With Other al-Qaida Fighters 10
B. Esmail's Revised Account of his Actions 12
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C. Esmail's Allegations of Serious Abuse and the Government's Evidence Rebutting Them. . . . . . . . . . . . . . . . . . . . . 14
1. Bagram 16
2. Kandahar.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3. Guantanamo Bay. . 20
D. The District Court's Opinion 21
1. Legal Standard for Detention 21
2. Factual Findings 22
THE DISTRICT COURT CORRECTLY HELD THAT ESMAIL IS LAWFULLY DETAINED UNDER THE AUMF BECAUSE HE IS PART OF AL-QAIDA
SUMMARY OF THE ARGUMENT 27
STANDARD OF REVIEW 31
ARGUMENT 32
A. The District Court's Factual Findings Strongly Support Its Conclusion That Esmail Was "Part Of' Al-Qaida 32
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B. The District Court's Findings Were Not Clearly Erroneous. " 36
1. The District Court Had Ample Evidentiary Support For Rejecting Esmail's Repudiation of His 2002-2004 Statements 36
2. Esmail's Challenges To The Findings That He Knowingly Received Training From AI-Qaida and Stayed At AI-Qaida Guesthouses Are Without Merit. 54
C. The District Court Did Not Err In Failing To Apply A Corroboration Requirement For Jury Trials In Criminal Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
CONCLUSION
CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(7)(C) OF THE FEDERAL RULES OF APPELLATE PROCEDURE
CERTIFICATE OF SERVICE
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TABLE OF AUTHORITIES
Cases: Page
*AI Adahi v. Obama, 613 F.3d 1102 (D.C. Cir. 2010) 34,35,36,41,55,56,59
Al Alwi v. Obama, D. C. Cir. No. 09-5125 (argued November 4,2010) 59
*AI Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010) 33,34,35,36,59,60,61
AIOdah v. United States, 611 F.3d 8 (D.C. Cir. 2010), pet. for cert.filed, No. 10-439 (S. Ct. Sept. 28, 2010) 31,35,36
Anderson v. City ofBessemer, 470 U.S. 564 (1985) 32,39,51
*Awad v. Obama, 608 F.3d 1 (D.C. Cir. 2010) 27,31,32,33,35
Barhoumi v. Obama, 609 F.3d 423 31,33,35
Bensayah v. Obama, 610 F.3d 718 (D.C. Cir. 2010) , 33,35
Boumediene v. Bush, 128 S. Ct. 2229 (2008) 1
*Cases upon which we chiefly rely are marked with asterisks. Daeche v. United States,
250 F. 566 (2d Cir. 1918) 60
Elliott v. u.s. Dep 't ofAgriculture, 596 F.3d 842 (D.C. Cir. 2010) 59
5EERETh'I.6r6RI.
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Gherebi v. Obama, 69 F. Supp. 2d 43 (D.D.C. 2009) 22,33
Kiyemba v. Obama, 561 F.3d 509 (D.C. Cir. 2009) 1
Opper v. United States, 348 U.S. 84 (1954) 62
*Salahi v. Obama, 2010 WL 4366447, No. 10-5087 (D.C. Cir. Nov. 5,2010) 33-34,35
Smith v. United States, 348 U.S. 147 (1954) 59,60,61
United States v. Brown, 334 F.3d 1161 (D.C. Cir. 2003) 32
United States v. Dickerson, 163 F.3d 639 (D.C. Cir. 1999) 60
United States v. Hart, 324 F.3d 740 (D.C. Cir. 2003) 35
United States v. Johnson, 589 F.2d 716 (D.C. Cir. 1978) 62
United States v. McCoy, 242 F.3d 399 (D.C. Cir. 2001) 39
Statutes:
28 U.S.C. § 1291 " 2
28 U.S.c. § 1292(a)(1) 2
28 U.S.C. § 2241(a) 1
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28 U.S.c. § 2253(a) 2
The Authorization for Use of Military Force, Pub. L. 107-40, 115 Stat. 224 (2001) 32
Other Authorities:
Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization & the War on Terrorism, 118 Harv. L. Rev. 2047 (2005)..... 34
Department of Defense Directive 2310.01E (Sept. 5,2006) 3
MCCORMICK ON EVIDENCE § 145 (6th ed. 2006) 60.61,62
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GLOSSARY
AUMF Authorization for Use of Military Force
CSRT , Combatant Status Review Tribunal
FBI. Federal Bureau of Investigation
ISN Internment Serial Number
RPG .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. Rocket-propelled Grenade
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[ORAL ARGUMENT NOT YET SCHEDULED]
IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 10-5282
YASEIN KHASEM MOHAMMAD ESMAIL, Petitioner- Appellant,
v.
BARACK H. OBAMA, et aI., Respondents-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
BRIEF FOR RESPONDENTS-APPELLEES
STATEMENT OF JURISDICTION
Petitioner Yasein Khasem Mohammad Esmail invoked the district court's
jurisdiction under 28 U.S.C. § 2241(a), see Kiyemba v. Obama, 561 F.3d 509,
512-513 (D.C. Cir. 2009), and directly under the Constitution, see Boumediene v.
Bush, 128 S. Ct. 2229, 2278 (2008) (Souter, J., concurring) ("Subsequent
legislation eliminated the statutory habeas jurisdiction over these claims, so that
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there must now be constitutionally based jurisdiction or none at all"). On April 8,
2010, the district court entered judgment denying Esmail's petition. JA 243. This
was a "final order" in relation to Esmail's habeas proceeding. See 28 U.S.c. §
2253(a). Esmail sought reconsideration, which the district court denied on June
14,2010. See JA 290. Esmail filed a timely notice of appeal from both orders on
August 11,2010. JA 291. This Court has jurisdiction under 28 U.S.C. §§ 1291,
1292(a)(1), and 2253(a).
QUESTIONS PRESENTED
I. Whether the district court erred when it concluded that petitioner was part
of al-Qaida, based on the following factual findings: that petitioner was
urged by an al-Qaida facilitator to travel from Yemen to Afghanistan for
jihadist training, and petitioner made that trip; and that when petitioner
arrived in Afghanistan he attended al-Qaida military training camps, took
advanced weapons training, stayed at al-Qaida guesthouses, and fought for
al-Qaida in Tora Bora.
II. Whether the district court's factual findings were clearly erroneous, either
because the district court should have accepted Esmail' s later repudiations
of his statements about his al-Qaida activities, or because the evidence did
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not support the trial court's finding that Esmail knew the training camps and
guesthouses he used were run by al-Qaida.
III. Whether the trial court erred by failing to apply a corroboration rule for
criminal jury trials, when that rule does not apply in this habeas proceeding
and the statements at issue are, in any event, adequately corroborated.
STATEMENT OF THE CASE
This appeal arises from a petition for a writ ofhabeas corpus filed by
petitioner Yasein Khasem Mohammad Esmail (ISN 522),1 challenging the
lawfulness of his military detention by the United States at Guantanamo Naval
Base, Cuba. The district court denied the writ and Esmail appeals.
STATEMENT OF THE FACTS
The trial court held a three-day merits hearing in Esmail' s habeas
proceeding. Esmail chose not to testify.
1 ISN stands for "Internment Serial Number." Department ofDefense Directive 2310 IE requires that each detainee held at Guantanamo Bay be assigned such a number as soon as possible after capture. Department ofDefense Directive 2310.01 E at 3 (Sept. 5,2006).
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A. The Government's Evidence Showing That Esmail Was Part Of AI-Qaida.
1. Esmail Leaves Yemen for Afghanistan at the Urging of a Known al-Qaida Recruiter, Specifically To Train For Jihad.
In late January 2002, Esmail said that he had "entered Afghanistan
approximately two years [earlier] in order to join the Chechen jihad, but never got
there." JA 853.2 Esmail was encouraged to travel to Afghanistan by Abu Khalud,
whom he met at the Furqan mosque in Taiz, Yemen. See JA 867; see also JA 860
(Abu Khalud "traveled between [Yemen] and [Afghanistan] to recruit male
Muslims for military training," and "used the Farkun mosque in Taiz, *
* * [Yemen] as a recruitment site.").3 Esmail "believed Khalud supported AI-
Qaeda and the jihad against America." JA 867. Esmail decided to go to Chechnya
to fight the Russians there, and "Khalud explained that [E]smail should first go to
Afghanistan where he could receive the proper military training." JA 868. See
also JA 874 ("Khalud said there was no doubt [Esmail] could go [to] Chechnya,
2 Although some of the intelligence reports are written entirely in capital letters, this brief quotes them using standard lower- and upper-case text.
3 This intelligence report designates Esmail by the serial number _instead of by the ISN later assigned to him at Guantanamo.
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but that he must go to Afghanistan first to train")
Esmail knew personal details about Abu Khalud. Khalud was a Yemeni
who had "worked and lived in Bosnia" before taking up his current job as an al-
Qaida travel facilitator. JA 860; see also JA 863. Esmail reported, for example,
that Khalud had a "round scar in [the] middle of [his] forehead from [a] bullet
injury." JA 868. (Another detainee had also told interrogators that Abu Khalud
suffered a gunshot wound to his head while in Bosnia JA 980.4)
Abu Khalud "made travel arrangements" for Esmail from Yemen to al
Qaida's Al Farouq training camp in Afghanistan. JA 863; see also JA 860 ("I do
not know who paid for the tickets, but Abu Khalud took my information and asked
if 1 was ready to go."). Khalud took Esmail's passport and an extra passport
photograph. JA 868. Two months later, Esmail received a telephone call from an
unknown caller, who told him to travel to Sanaa, the capital of Yemen, and stay at
a particular hotel. Ibid. Esmail followed these directions. Ibid. When Esmail
reached the hotel, a man he did not know returned his passport, together with a
visa for Pakistan and an airline ticket to Karachi. Ibid. Esmail did not pay the
4 This second detainee also reported that Abu Khalud twice swore bayat to Usama bin Laden. See JA 980.
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man for his visa or ticket. Ibid.; see also JA 1271 (Esmail's CSRT testimony that
"somebody else got the ticket for me").
Esmail flew from Yemen to Karachi, via Dubai, with two other Yemenis.
JA 863; see also JA 868. A few days later, the three Yemenis were joined by a
Pakistani man, Abu Uthman, and the four traveled together by bus to Quetta,
Pakistan, and then to Kandahar, Afghanistan. Ibid. See also Add. 1 (map);5 JA
863, 861 (this was the usual route for recruits).
2. Esmail Stays At al-Qaida Guesthouses And Trains Extensively At al-Qaida Paramilitary Training Camps
In Kandahar, Esmail and his companions went to a guesthouse "[d]iagonally
across the street" from the Haji Habash mosque. JA 869. "Khalud was already at
the guesthouse awaiting [E]smail." Ibid. According to Esmail, some men used
this "guesthouse for transit to a training camp while others stayed to continue to
other countries." Ibid. Other government evidence showed that this particular al-
Qaida guesthouse "was used as a transition point an for
individuals going to train at various training camps JA 954
5 A regional map is included as an Addendum to this brief because the reproductions of the maps in the Joint Appendix (at 1640-1641) are not clear enough to read.
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(Declaration ("Guesthouses") of Senior Intelligence Analyst
Ibid.
After a brief stay in a second al-Qaida guesthouse, see JA 869, Esmail, in a
group of ten to fifteen other men, "boarded a former military style bus" and was
taken to a military training camp, ibid. Esmail on numerous occasions identified
this camp as Al Farouq. See JA 853, 861, 863,.
_ JA 939 (Declaration ("Terrorist Training Camps") of Senior
Intelligence Analyst Ibid.
JA 939, 940.
After basic training, Esmail was selected for advanced training at Al
Farouq. See, e.g.
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JA 911 (after basic training at Al
Farouq, Esmail "attended mountain tactics training" there for "approximately two
months"). Esmail admitted that he also went on to advanced training outside Al
Farouq. See, e.g., JA 856 (Esmail had "trained at 3 different camps"); JA 870
(Esmail reported sessions at "the Malek training camp" and "the Aasil training
camp"); JA 875 (Esmail took "anti aircraft, heavy artillery and Surface to Air
Missile (SAM 7) courses" at "the Malek training camp"); JA 912 (two one-month
courses at Malek)
7
The government's evidence detailed how Esmail "received much more
training tha[n] the average fighter in Afghanistan." JA 858. (January 2002
Summary Intelligence Report for Esmail). Esmail "received specialized training in
air defense, artillery, PK machine gun and mine laying," ibid., including courses
on "anti aircraft, heavy artillery and Surface to Air" missiles, and training in
7 After May 2004, although Esmail continued to acknowledge that he attended "the AI-Farouq training camp for four months" he refused to discuss attendance at any other camp "because he [was] tired of answering the same questions over and over." JA 916.
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"mortars and seventy-five and eighty-two mil[l]imeter cannons," JA 875. See also
JA 912 (detailing the different types of mines Esmail had been trained to use, and
his training in "the placement, extraction and camouflage of anti-tank and anti
personnel mines."). This advanced training on heavy weapons complemented
Esmail's basic training on lighter weapons, such as the Kalashnikov rifle, and his
courses on topography and explosives. See JA 875.
Between his paramilitary training sessions, and again shortly before he
joined the battle, Esmail said he had stayed at al-Qaida guesthouses or safehouses.
See, e.g., JA 875 (describing numerous guesthouse stays, including one at the
Azam guesthouse in Kabul); JA 883 (Esmail knew that the Azam guesthouse had
al-Qaida connections); JA 876 (Esmail stayed at the "Ejm al Jihad" ("star of the
struggle," JA 871) guesthouse in Jalalabad); JA 871 (also reporting the stay at
"Najma AI-Jihad" guesthouse). Esmail reported that "food and drink were free in
the guesthouses." JA 893. At one of the guesthouses he stayed at in Kabul he saw
Richard Reid, a member of al-Qaida known as the shoe bomber. JA 872. Esmail
stated that he saw Usama bin Laden, al-Qaida's leader, at three separate al-Qaida
guesthouses - one in Kabul, one in Kandahar, and the one in Jalalabad. Ibid. See
also JA 901; JA 906.
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Between periods ofparamilitary training in Afghanistan, Esmail spent
approximately four months at the Institute for Islamic!Arabic Studies, see JA 870,
an organization the government's evidence showed was funded entirely by al-
Qaida and run by one ofal-Qaida's senior leaders. See JA 991 ("the Islamic
Institute was financed directly by Usama bin Laden"); JA 900 (Abu Hafs, "a
committed jihadist," was "the religious leader for the Islamic school in
[K]andahar") JA 1006 (Bin Laden chose Abu
Hafs "as the Sharia group committee leader of al Qaida"). See also JA 853, 870
(Esmail was associated with the Institute). Further, the Islamic Institute was in the
building formerly used as an al-Qaida guesthouse - the guesthouse where Abu
Khalud had first taken Esmail. lA.870.
3. Esmail Travels To Tora Bora, Where He Is Captured With Other al-Qaida Fighters
On September 11,2001, the date of the terrorist attacks on the United
States, Esmail was in Kandahar. JA 871. Soon afterwards, Esmail went to Kabul,
then to the Najma AI-Jihad al-Qaida guesthouse in Jalalabad. Ibid. Hearing that
Arabs were heading to Tora Bora, Esmail and others headed for the Tora Bora
mountain region. Ibid. "He stayed with fifteen * * * others in the mountains for
approximately one month." Ibid. See also JA 876 (Esmail "stayed in Jalalabad for
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two weeks, then went to Tora Bora"); JA 1329 (those at the Jalalabad guesthouse
who wanted to escape the U.S. bombing campaign went to Khost, whereas "those
who went to Tora Bora stayed to fight"); JA 899 (Esmail claimed not to fight at
Tora Bora but admitted he had "narrowly missed being shot by a tank"); but see
JA 1270 (CSRT testimony) ("I was not in Tora Bora for more than one day").
"Tora Bora is the name of a cave complex situated in the White Mountains
of Eastern Afghanistan * * *." JA 1323 (2008 expert declaration of Senior
Intelligence Analyst Natural caves in the complex were
"enhanced with hydroelectric power," stocked with "food, water and ammunition,"
and "capable of housing more than one thousand fighters." Ibid. Usama bin
Laden had used Tora Bora as his headquarters in the 1990s, ibid., and he returned
there by early November, 2001, with "other al-Qaida and Taliban leaders, and an
estimated one to two thousand fighters," JA 1324.
for al-Qaida. JA 949 (2009
expert declaration of Senior Intelligence Analyst
Ibid.
In November, 2001, "a small contingent of U.S. and Afghan forces began to
infiltrate Tora Bora to trap bin Ladin and his fighters." JA 1324. Usama bin
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Laden issued a "widely known call for fighters to join him and his cadre of al-
Qaida leaders at Tora Bora for a last battle against the U.S. and its allies * * *."
JA 950. "The battle of Tora Bora ensued with significant air strikes" by the
United States and almost two months of fighting. JA 1324.
Esmail was taken into custody in a "village near Tora Bora" after he and
two other men "surrendered" after they had "descended from" the mountains. J.A
848. Both Esmail's companions also surrendered, and both were al-Qaida fighters
who fought at Tora Bora. See JA 1828-1829 (one of Esmail' s companions, Omar
Saeed Salem al-Daini (ISN 549), "was shown to a position" on the al-Qaida line in
Tora Bora); JA 1166 (the second companion, Khalid Ahmed Kassim (rSN 242),
was captured "in Tora Bora * * * with" Esmail, and first met Esmail at Tora Bora);
JA 1159 (Kassim was "fleeing the Tora Bora" with Esmail). Al-Daini had been
"wounded in the leg by a missile," JA 1829, and Esmail helped his injured comrade
down from the mountains, see JA 908.
B. Esmail's Revised Account of his Actions.
As outlined above, the government's evidence demonstrated that after
Esmail first arrived in United States custody in early 2002, see JA 931, he reported
that his travel to Afghanistan had been arranged by an al-Qaida facilitator, that he
had stayed in al-Qaida guesthouses and received both basic and advanced
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paramilitary training at various al-Qaida camps, that he had been closely enough
associated with al-Qaida to have seen Usama bin Laden three times, and that he
had traveled to the Tora Bora region and been captured coming down from the
Tora Bora mountains with al-Qaida fighters.
Starting with his statement to a Combatant Status Review Tribunal in June
2004, however, Esmail's story changed. See JA 1269. At the CSRT hearing,
Esmail testified he had wanted to get married in Yemen "but for some reason my
marriage was not approved." Ibid. See also JA 1629 (Esmail's January 2009
declaration) .
In his declaration prepared in 2009 for his habeas proceeding, Esmail said
that he spent his own money on a ticket to Afghanistan, JA 1630, and was able to
make his way in Afghanistan without much money because "everything was very
cheap there," ibid. Esmail described his two years in Afghanistan as a "peaceful,
reflective, spiritual, and solitary experience." JA 1631. Even in 2009, however,
Esmail admitted that his peace was interrupted by "some weapons training * * * at
the al Farouq camp," which Esmail now said he "thought * * * was simply a
charity camp, another form of the Pashtun hospitality." Ibid. Esmail went back a
second time for "additional weapons training at the al Farouq camp." Ibid.
According to Esmail's revised account, he took weapons training "to occupy [his]
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spare time," and never realized that the camp was affiliated with al-Qaida. Ibid.
Esmail now maintains that the militants who supplied Esmail's training did not ask
him who he was before they allowed him to participate, or try to recruit him once
he was trained. Ibid.
Esmail also retracted his statements about traveling to Tora Bora after
September 11, 2001. In 2009, Esmail said instead that he had been kidnapped in
Kabul by "men in Taliban clothing" and held for approximately 2 months, until
December 12,2001. JA 1632. Esmail's kidnappers then allegedly took him "to a
place in the mountains near the Afghan-Pakistan border where they picked up two
other Yemenis." Ibid. Esmail's captors then allegedly took him to a prison in
Jalalabad. Ibid. See also JA 1874-1875 (Esmail's 2010 Declaration providing a
more elaborate version of the kidnapping story). Esmail stated that the prison
gave "a piece of paper the size of a Subway napkin" as a "receipt" for the Yemeni
captives. JA 1875.
c. Esmail's Allegations of Serious Abuse and the Government's Evidence Rebutting Them.
Esmail's recent declarations account for the abrupt change in his story by
alleging that his earlier statements were "lies" he invented to protect himself from
abuse or torture. JA 1885. In 2010, Esmail alleged that in the Afghan prison in
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Jalalabad, he was tortured and, to avoid torture, he "invented details" about
whatever statements "the interrogators seemed to believe or like." JA 1880.8 "For
example, they liked to hear about training camps, so, even though I only ever
trained at al Farouq, I told them I received training at other places in Afghanistan."
Ibid. From then on, according to Esmail, he repeated "the lies that had saved him"
earlier. JA 1885. Esmail also explained why he decided to change his story when
he attended his CSRT hearing. Before that hearing, Esmail testified, there was "no
law" and "no attorneys to defend me." JA 1891.
At the current juncture in his habeas case, Esmail alleges that he has been
seriously abused in each of the three locations where he has been held in United
States custody: at Bagram Air Base in Afghanistan from approximately January
20,2002, until February 2,2002; at a detention facility in Kandahar, Afghanistan,
from February 2, 2002 to May 1, 2002; and finally at Guantanamo Bay. See JA
247-248. Esmail's two declarations, from January 2009 and March 2010 (id. 927
and 1873, respectively), include these allegations. His March, 2010 declaration
8 In February 2002, Esmail told an FBI interviewer that Afghan guards at the prison in Kabul "beat and tortured him." JA 871. But Esmail provided no details and did not say that the alleged abuse was intended to induce false statements by Esmail, or that it in any way affected his statements to the FBI.
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also alleges that Esmail was abused in Afghan custody before he was handed over
to the United States.
1. Bagram. In January 2009, Esmail alleged that at Bagram he was held
"outdoors in extremely cold conditions," and beaten, and that American soldiers
stood on him. JA 932. In March 2010, in a second declaration submitted only
four days before trial, Esmail added new allegations that upon his arrival at
Bagram, he had been thrown from a helicopter so hard that he broke his nose, JA
1883, and that he was stripped naked during processing into the facility, ibid.
Esmail also first alleged in March, 2010 that his "first interrogation did not take
place in an interrogation room or inside the airport hangar," but "in a ditch that the
soldiers and prisoners used as a toilet." JA 1884. After being interrogated with
"many questions" in the ditch, Esmail's captors "took me out and rinsed me off
with water from a hose," before interrogating him again. Ibid.
In response to Esmail's 2009 declaration, the government submitted
evidence rebutting the allegations of torture and other abuse at Bagram. This
evidence included a declaratio~(JA 1261-1267), an Army
interrogator who interviewed Esmail when he first arrived at Bagram. See JA
1262.~as present at Bagram during Esmail's detention there, JA 1262,
and he had an opportunity to describe, from personal experience, the detainees'
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living conditions and the way they were treated, see JA 1262-1264.
explained the intake procedures for Bagram detainees, which included hooding
and a visual strip search. See JA 1262-63. He stated that during interrogations,
detainees "were not stripped, hooded or shackled." JA 1263. Nor were dogs used
-_"did not see a military working dog while [he] was at Bagram." Ibid.
_'did not employ any coercive interrogation techniques" at Bagram. JA
1264-1265.
_confirmed that the Bagram detainees were housed in a "very large
airplane hangar" that was "chilly" because the "hangar door remained open and it
was winter." JA 1265. A wooden floor built to insulate detainees from the cement
underneath had to be removed when detainees used nails from the wood flooring
as weapons. Ibid. Because detainees could also use boots as weapons, "they were
given heavy wool booties" like hiking boot liners. JA 1266. During this period,
detainees and U.S. servicemembers alike ate military rations, lived in quarters
"exposed, at least in part, to the elements, and had no washing facilities." Ibid.
In a second declaration _stated that while he was at Bagram
during the same period as Esmail, he had never heard of any detainee "being
thrown in or interrogated in a latrine." JA 1856. who actually saw the
latrine at Bagram being dug, see JA 1857, explained why Esmail's allegations 9E@ftETNU8P8RU
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about being questioned in a latrine make little sense. During this period, a very
large latrine trench (at least ten feet long, three feet wide and twelve feet deep),
was almost covered by boards or pallets that ran the length of the ditch, with only
a foot-wide gap between them. See JA 1857. "Throwing a detainee into the
latrine would have been very difficult" because one of these very heavy boards or
pallets would have had to be moved. Ibid. Moreover, "there was no running
water at the Bagram detention facility," and _who interviewed Esmail
almost daily, did not see anyone who looked or smelled as if they had fallen or
been pushed into the latrine. Ibid.
2. Kandahar. In 2009, Esmail alleged that he was subjected to the
following types of abuse at Kandahar: religious abuse, beatings and electric
shocks; being "forced to remain on our knees in the heat of summer;" being
stripped naked and hooded; and being frequently terrorized by dogs. JA 932. In
his March 2010 declaration, Esmail added that upon his arrival in Kandahar he
was thrown from the plane, JA 1888; that his clothes were cut off and a lengthy
intake interview was conducted while he was naked, JA 1888-1889; that his
subsequent interviews were conducted late at night, JA 1889; and that he was
buried up to his neck in a hole in the ground, JA 1890.
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To rebut Esmail's 2009 declaration, the government submitted the
declaration of a Special Agent with the FBI who interviewed
detainees every day at the Kandahar detention facility from February 7 to March
21,2002.9 See JA 1294.•was able to describe, from personal experience,
the way detainees were questioned at the time when Esmail was there. JA 1296
98. In each interview,. and his partner followed standards of practice that
included being "friendly and establish[ing] a rapport" with the detainees, and
never used threats or coercion. JA 1295.•never saw detainees being abused
at Kandahar, never saw "any evidence" of abuse, and never heard any detainee
complain of abuse. JA 1296. He "never observed detainees without clothing"
except during intake procedures, "never observed military dogs being used to
threaten detainees," and never observed any United States official "interfering
with the detainees' prayer time or disrespecting the Koran." Ibid.•
remembered Esmail, and testified that when he interviewed Esmail, Esmail
"appeared healthy," and showed no physical injuries. JA 1298. Esmail "did not
display any hostility or fear" during his interview. Ibid.
9 Esmail arrived in Kandahar on February 2,2002. JA 247. 5E@RE"SU8fi8RU
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_ second declaration, rebutting Esmail's 2010 allegations, explained
that detainees arriving at Kandahar walked down a ramp from the plane to the
ground. JA 1859. Although detainees undressed as part of the intake procedure,
• "never saw a detainee's clothing cut off or forcibly removed." JA 1860.
Detainees were usually interviewed during the day, and. did not recall any
interviews of detainees occurring after 11 p.m. JA 1861.•"never observed
or heard of anyone pointing a gun at a detainee during an interview." Ibid.
Finally,. stated that although the base at Kandahar "did have bunkers
covered with metal pallets where personnel at the base could take shelter during
incoming mortar shelling," he saw no area "that could accommodate burying a
man up to his neck in dirt," as Esmail had claimed. Ibid.
3. Guantanamo Bay. Esmail alleged at his CSRT hearing in 2004 that
there was "something tom in my shoulder" because guards at Guantanamo Bay
had trussed him and thrown him on the floor. JA 1273. Esmail alleged in 2009
that he was thrown from the plane "up into the air" upon his arrival at
Guantanamo, JA 932, and that when he fell to the ground, he "suffered a broken
shoulder and tom muscles," JA 933. In 2010, Esmail alleged that shortly before
landing at Guantanamo, he was "forced to swallow a pill,"and when Esmail was
"taken off the plane," some one beat him on his shoulder. JA 1890, 1891. 31!!l!I\I!!TJ J14erel\14
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The government produced Esmail's medical records from Guantanamo Bay,
see JA 1353-1624, and arranged for the records to be reviewed by a physician,
Colonel (Dr.) Gregory M. Winn, M.D., see JA 1249. Dr. Winn explained that
during Esmail's "in-processing physical on May 1, 2002," Esmail had "abrasions"
on the front of his left shoulder. JA 1250. The "abrasions were not deep and did
not penetrate the epidermal layer," ibid., and Esmail's shoulder retained its normal
strength, with "no motor or neurological deficits," JA 1251. Because Esmail's
minor injury was "similar to a scraped knee," JA 1250, it was treated with
"Bacitracin and 4X4 gauze" and it healed by May 11,2002, JA 1251.
The government's medical expert also reviewed Esmail's 209 allegations of
severe abuse, including beatings, a broken nose and a broken shoulder. See JA
1254. Dr. Winn concluded that "the medical records do not show evidence of
abuse, especially of the extreme nature alleged." Ibid. The types of serious abuse
petitioner alleged would have left "some physical evidence * * * such as bruising,
scabbing, or range of motion deficits." Ibid. "Notably, none of the examinations
and evaluations showed any type of ligament/tendon injury or other physical
trauma normally associated with the type of abuse as alleged in Petitioner's
Declaration." JA 1255.
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D. The District Court's Opinion.
1. Legal Standard for Detention. The district court held that the
government could establish the lawfulness ofEsmail's detention by showing that
Esmail was "'part of' al-Qaida or Taliban forces. JA 245. In the district court's
view, the government would have to show that Esmail was '''part of' al-Qaida by
establishing that Esmail received and executed orders "'from the enemy force's
combat apparatus.'" JA 245-246 (quoting Gherebi v. Obama, 69 F. Supp. 2d 43,
69 (D.D.C. 2009)).
2. Factual Findings. The district court held that the government had
carried its burden of showing that Esmail was part of al-Qaida. As a threshold
matter, the district court found that it could not credit Esmail's most serious
allegations of abuse, and that the statements Esmail made while he was detained at
Bagram and Kandahar were reliable evidence. See JA 248-263.
The court found that Esmail had "traveled to Afghanistan with the
assistance of Abu Khalud, a member of Al Qaeda," who had made passport
arrangements for Esmail and arranged other logistical details of his trip. JA 265.
Although the district court "accept[ed] * * * as true" Esmail's claim that he had
left Yemen because he could no longer marry a particular woman, JA 266, it
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to go to Afghanistan" rather than somewhere else, or why he "accepted the
assistance ofAbu Khalud," the al-Qaida facilitator. JA 267. Moreover, Esmail's
statements showed that "he knew at the time he began his trip to Afghanistan that
he was doing so with the assistance of members of Al Qaeda and that Al Qaeda
was a militant group." JA 268.
The district court further found that Esmail had accepted military training at
al-Qaida training camps and stayed at al-Qaida guesthouses, knowing in both
settings that the facilities he was using were affiliated with al-Qaida. The district
court cited Esmail's own numerous statements establishing that he had trained at
al-Qaida's flagship paramilitary training camp, Al Farouq. JA 269. As the court
noted, Esmail admitted that "his courses covered topics including light weapons,
rocket propelled grenades, machine gun, explosives, topography, antiaircraft
weapons, and mines." Ibid. Esmail had graduated to advanced training and been
taught to use advanced weapons, such as "surface-to-air SAM-7 weapons." Ibid.
The court cited the statement of another detainee who had given a very similar
account of the Al Farouq weapons training program, explaining that after basic
training recruits could sign up for more advanced training, '''go home,'" or "go to
the front line and fight Jihad. '" JA 270. The court further noted that Esmail never
recanted his statements that he trained at Al Farouq. See ibid. §EfRE'ffft.6F6rtt.
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The district court rejected Esmail's argument that despite taking both basic
and advanced weapons training at "two locations of Al Qaeda's Al Farouq training
camp," JA 272, Esmail somehow did not know that al-Qaida was providing his
paramilitary training. "It would require a suspension ofdisbelief," explained the
court, to "find that Esmail was not aware while attending these courses that Al
Qaeda ran them." Ibid. Reasoning that "over a month" of paramilitary training
was most likely an ''understatement,'' ibid, and pointing out that "the purpose of
training camps, beyond teaching skills to be used in warfare, was indoctrination,"
JA 273, the court concluded that it was "simply not believable that at no time
during Esmail's several courses did the subject of against whom or for what
purpose the trainees might fight arise," ibid. Based upon these subsidiary facts,
the district court found as a fact that "Esmail knowingly received instruction from
Al Qaeda." Ibid.
Similarly, the district court found that Esmail's own statements showed that
he had stayed in al-Qaida's Haji Habash guesthouse. See JA 274. The court
found it "more likely than not that he stayed at other Al Qaeda guesthouses as
well," including the Najima Al Jihad guesthouse in Jalalabad. Ibid.; ibid. n.21. As
the court explained, "it strains credulity to ask the Court to believe that after two
years of intermittently residing at guesthouses - to which he was first led by a SEeRETi,'r~eFeRr~
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member of Al Qaeda - and attending training camps, Esmail did not know that he
was staying at locations affiliated with Al Qaeda." JA 275.
The district court also found that Esmail had spent "a number of months" at
the Institute for Islamic/Arabic Studies in Kandahar, Afghanistan. JA 275. The
"Institute was sponsored and led by key Al Qaeda figures," and its students "were
taught Islamic doctrine in a manner twisted to serve the purposes of Al Qaeda."
JA 277. The court concluded that Esmail's decision to study at the institute and
his attendance there were "certainly consistent with becoming a part of Al Qaeda *
* *." Ibid.
Finally, the district court found that Esmail remained in Afghanistan after
the attacks of September 11, 2001 and the United States' subsequent campaign
against al-Qaida and the Taliban in Afghanistan, and that he fought at the battle of
Tara Bora and was captured with other soldiers retreating from the battle. In his
habeas proceeding, Esmail claimed that although he had intended to leave for
Yemen when the September 11 attacks occurred, he had traveled to Kabul, where
he had been kidnapped by some men who held him in a house until mid-December
and then took him up into the mountains where they met up with the other
Yemenis captured with Esmail. See JA 281-283. The district court rejected
Esmail's account of his actions. Esmail's decision to head to Kabul en route to 5EeKE'fh'r~eFeKr~
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Yemen was illogical, and Esmail "did not explain what advantage such a route had
over" the shortest and most direct route, "leaving Afghanistan by going from
Kandahar to Quetta." JA 283. Moreover, it struck the district court "as unlikely
that kidnappers would take Esmail, who was allegedly already captured, from a
city or village into mountainous terrain where travel is difficult." JA 284. By
contrast, the district court found the government's interpretation of the facts about
Esmail's travel from Kandahar to Tora Bora to be "credible," especially as by
going to Kabul and "staying in an Al Qaeda guesthouse, Esmail placed himself in
the company of Al Qaeda members who were prepared to engage in military
conflict." JA 283.
The district court also found as a fact that Esmail had "acted as a fighter for
Al Qaeda." JA 285. Recognizing that it was "necessarily dealing in
probabilities," the court reasoned that all the circumstances of Esmail 's presence
in Tora Bora showed that he "was more likely than not an Al Qaeda fighter." JA
284. Instead of returning to Yemen, Esmail chose "to move closer to, and
ultimately arrive[] at Tora Bora," and given the conflict there at the time, "[o]nly
an individual who was part of [AI Qaeda] would feel safe traveling with fighters to
the site of a battle." Ibid. Once in Tora Bora, at the battleground, it was
"reasonable to infer" that Esmail would have "made use of' his "extensive training JI!!!ft'I!!T;; 14ereft'14
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in the use of military weapons." Ibid. And Esmail was taken into custody
together with two other men who "were involved in the battle at Tora Bora." Ibid.
The court concluded that it was "quite unlikely that Esmail would have been with
these two men, especially one who was wounded in battle, if he were not part of
the Al Qaeda forces at Tora Bora." JA 285.
Based on these findings, the court held that the Government had shown "by
a preponderance of the evidence that Esmail was 'part of Al Qaeda and is
therefore lawfully detained." Ibid.
SUMMARY OF THE ARGUMENT
1. The district court correctly held, based upon the evidence before it, that
Esmail was part of al-Qaida. Without the benefit of this Court's more recent
holdings in Awad and Bensayah, the district court required the government to
present evidence that Esmail had taken or received formal orders from al-Qaida.
As this Court has now held, such evidence is sufficient, but not necessary, to show
that a detainee is part of al-Qaida. Under this Court's functional standard for
detention, the district court's findings even more strongly support its conclusion
that Esmail is lawfully detained. The court found that Esmail had engaged in
numerous activities that, under this Court's precedents, conclusively show him to
be functionally part of al-Qaida: Esmail came to Afghanistan specifically to train SECRETHNOFORN
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for jihad, at the urging of an al-Qaida recruiter; Esmail received advanced
Esmail stayed at al-Qaida guesthouses; Esmail
remained in Afghanistan during the United States-led military offensive, traveled
to Tora Bora, fought for al-Qaida at the battle in the Tora Bora mountains, and
surrendered in the company of other al-Qaida fighters. The district court did not
err in concluding that this evidence was sufficient to establish that Esmail was part
of al-Qaida.
2. The district court's underlying factual findings are not clearly erroneous.
The district court relied upon the numerous statements Esmail gave interrogators
in 2002-2004, which were detailed and internally consistent, as well as on expert
declarations and corroborating statements given by other detainees.
In particular, the district court did not clearly err when it refused to credit
Esmail's 2009 and 2010 allegations of severe abuse. Rather, the court correctly
discharged its function as fact-finder when it weighed Esmail's dramatic
allegations against the government's substantial rebuttal evidence and found that it
could not credit Esmail's allegations. In so finding, the district court relied, in
part, upon two government declarants who had been present at the facilities where
Esmail was held during the periods he was held there and had interrogated Esmail. SEERETIIUOFOR~~
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These declarants could describe from personal knowledge how detainees were
interrogated and treated. Esmail's medical records from Guantanamo Bay,
showing that Esmail was healthy and had none of the residual impairments that
would have resulted from the types of serious mistreatment he had alleged, further
supported the district court's conclusion, as did Esmail's failure to make some of
his most dramatic allegations until just a few days before his merits hearing. The
district court did not clearly err in finding the government's declarations to be
credible and reliable, and from concluding from the declarations and from the
other evidence that Esmail's allegations of serious mistreatment had no basis in
fact.
Esmail's brief on appeal argues that the district court should have
disregarded Esmail's 2002-2004 statements because Esmail was allegedly abused
by Afghanis, before he was transferred to the custody of the United States. The
district court correctly concluded, however, that Esmail' s allegations of abuse in
Afghan custody did not make his later statements to U.S. interrogators unreliable.
The district court made no finding that Esmail suffered any abuse when in Afghan
custody. Further, the reasons the court gave for refusing to credit Esmail's
allegations of serious abuse in detention at Bagram and Kandahar- including
Esmail's medical records and the credible statements of government declarants SEeRET/lt~OFORt~
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who disproved some of Esmail's allegations and cast doubt on the veracity of all
of them - also apply to evaluating Esmail's treatment by Afghanis.
Esmail's brief is also mistaken in arguing that the district court should not
have considered Esmail's decision to make new allegations of serious abuse only
a few days before the merits hearing in his habeas proceeding. The district court
made clear that it was skeptical about Esmail's new claims not just because they
were raised at the last moment but because, as a substantive matter, Esmail's
decision not to mention such serious allegations in his 2009 declaration for his
habeas proceeding led to serious inconsistencies between the 2009 and 2010
declarations in the descriptions of Esmail's past treatment. The district court did
not clearly err in concluding that Esmail had in 2010 "embellished his statements
with false allegations * * *." JA 260.
The district court also did not clearly err in concluding that Esmail
knowingly received training from al-Qaida, and knowingly stayed at al-Qaida
guesthouses. The district court properly considered all the evidence in context
when it found that Esmail's recruitment by an al-Qaida operative, his extensive
weapons training at al-Qaida military camps, his numerous stays at al-Qaida
guesthouses and his surrender in the Tora Bora region all supported the finding
SEERETNUOFORt.
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that Esmail had been aware that al-Qaida was responsible for the paramilitary
training camps and guesthouses where Esmail stayed.
3. Finally, Esmail's brief argues for the first time on appeal that the district
court should have required independent corroboration ofEsmail's statements. Not
only is this argument forfeited because the district court had no chance to address
it, but it also relies upon a rule of criminal procedure for jury trials that does not
apply in this habeas corpus proceeding. Even if the criminal rule did apply,
moreover, Esmail's statements are amply corroborated.
STANDARD OF REVIEW
Determining whether a detainee was a part of al-Qaida forces is a mixed
question of law and fact. See Awad v. Obama, 608 F.3d 1, 10 (D.C. Cir. 2010).
"[W]hether 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." Barhoumi v. Obama, 609 F.3d 416,423 (D.C. Cir. 2010) (citation
omitted). "[W]hether the government has proven that conduct - e.g., whether he
in fact stayed at an al-Qaida guesthouse or trained at an al Qaida camp - is a
factual question that we review for clear error." Ibid.
A detainee has a "heavy burden to meet to have this court reverse the
district court's factual findings that are the underpinnings of its determination" SEERETh'U8F8RU
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that a detainee was a part of al-Qaida forces. Ai Odah v. United States, 611 F.3d
8,14 (D.C. Cir. 2010),pet.for cert.fiied, No. 10-439 (S. Ct. Sept. 28,2010).
More generally, a finding will not be overturned as clearly erroneous unless "the
reviewing court on the entire record is left with the definite and firm conviction
that a mistake has been committed." Awad, 608 F.3d at 7 (citation omitted). This
Court also gives "due weight" to inferences a district court draws from the facts.
United States v. Brown, 334 F.3d 1161, 1164 (D.C. Cir. 2003) (citation omitted);
see generally Anderson v. City ofBessemer, 470 U.S. 564, 574 (1985) (clear error
review applies where the district court's factual findings are based upon
"inferences from other facts.").
ARGUMENT
THE DISTRICT COURT CORRECTLY HELD THAT ESMAIL IS LAWFULLY DETAINED UNDER THE AUMF BECAUSE HE IS PART OF AL-QAIDA
A. The District Court's Factual Findings Strongly Support Its Conclusion That Esmail Was "Part or' AI-Qaida
The Authorization for Use of Military Force, Pub. L. 107-40, § 2(a), 115
Stat. 224 (2001) (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
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persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
Interpreting the AUMF, this Court has explained that the government may
lawfully detain individuals who "were 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, including any person who has committed a
belligerent act or has directly supported hostilities in aid of such enemy armed
forces." Barhoumi, 609 F.3d at 419-20; Al Bihani v. Obama, 590 F.3d 866, 872
(D.C. Cir. 2010).
The district court here stated that the government could establish that
Esmail's detention was lawftil only by showing that Esmail received and executed
orders "'from the enemy force's combat apparatus.'" JA 245-246 (quoting Gherebi
v. Obama, 69 F. Supp. 2d 43,69 (D.D.C. 2009)). This Court in Awad and
Bensayah rejected that litmus test for determining whether a person is "part of' al-
Qaida. See Awad, 608 F.3d at 11-12; Bensayah v. Obama, 610 F.3d 718, 725
(D.C. Cir. 2010) ("That an individual operates within al Qaeda's formal command
structure is surely sufficient but is not necessary to show he is 'part of the
organization"). Rather, the detention authority under the AUMF extends to all
individuals who are functionally part of organizations subject to the use of force
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under the AUMF. Bensayah, 610 F.3d at 725; accord Awad, 608 F.3d at 11;
Salahi v. Obama, - F.3d -,2010 WL 4366447, No. 10-5087 (D.C. Cir. Nov. 5,
2010). This Court, accordingly, has repeatedly "ma[de] clear," that the
determination of whether a person is part of al-Qaida "must be made on a case-by
case basis by using a functional rather than a formal approach and by focusing
upon the actions of the individual in relation to the organization." Salahi, 2010
WL 4366447, *6 (quoting Bensayah, 610 F.3d at 725).
The nature of al-Qaida underscores why a functional test must be used to
determine whether a person acted as part of al-Qaida. Many of al-Qaida's
operations are carried out by terrorist cells made up of volunteers acting with
significant autonomy, but taking direction from al-Qaida leadership. See Curtis A.
Bradley & Jack L. Goldsmith, Congressional Authorization & the War on
Terrorism, 118 Harv. L. Rev. 2047,2109 (2005) (collecting sources). Moreover,
individuals who are part of al-Qaida typically seek to hide their association. They
do not wear uniforms or carry "official membership card[s]," Al Bihani, 590 F.3d
at 873, and may purposefully attempt to disguise their connection to the
organization.
This Court has accordingly recognized that a number of factors, ordinarily
present in combination, may bear on whether an individual is part of al-Qaida. 5EeRETf)t~OFORt~
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This Court recognized in Al Adahi that evidence that an individual attended al-
Qaida training camps and stayed at al-Qaida guesthouses can constitute
"'overwhelming' evidence that the United States had authority to detain that
person." Al Adahi v. Obama, 613 F.3d 1102, 1108 (D.C. Cir. 2010) (quoting Al
Bihani, 590 F.3d at 873 n.2). A finding that an individual is part of al-Qaida
forces can also be based in part on evidence that the person's movements and
activities - such as traveling to Tora Bora and then fleeing the region with
admitted fighters - were consistent with the movements of other individuals who
are known to be part of al-Qaida forces. See, e.g., Barhoumi, 609 F.3d at 424, 430
(travel patterns, and detainee's presence in Tora Bora); Al Odah v. Obama, 611
F.3d 8, 17 (D.C. Cir. 2010) (attending Taliban-run camp, obtaining an AK 47 rifle
and marching through Tora Bora with 150 other men). At bottom, the inquiry is
whether "a particular individual is sufficiently involved with the organization to
be deemed part of it." Bensayah, 610 F.3d at 725.
The district court's requirement here that the government submit evidence
that Esmail received or executed orders was harmless. Such evidence, is, of
course, strong, if not dispositive, in showing that an individual is part of al-Qaida.
See Salahi, 2010 WL 4366447, *6. As this Court has explained, such a finding is
"sufficient but is not necessary to show [the detainee] is 'part of' the SEERETf}~.OFORU
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organization." Awad, 608 F.3d at 11. Here, in addition to the "sufficient" finding
of receiving and executing orders, the district court found, among other facts, that
Esmail had attended al-Qaida paramilitary training camps for weapons training,
and had later fought for al-Qaida at Tora Bora. Under this Court's broader,
functional approach, the district court's factual findings even more strongly
support its conclusion that Esmail was "part of' al-Qaida. See Al Adahi, 613 F.3d
at 1108-1109 (close relationships with senior al-Qaida leaders, stays at al-Qaida
guesthouses and paramilitary training camps); Al Bihani, 590 F.3d. 866, 873 n.2
(guesthouses and camps); id., 590 F.3d at 872 (accompanying brigade on the
battlefield with a brigade-issued weapon); Al Odah, 611 F.3d at 17-18
(guesthouse, training camp and presence at Tora Bora).
B. The District Court's Findings Were Not Clearly Erroneous
1. The District Court Had Ample Evidentiary Support For Rejecting Esmail's Repudiation of His 2002-2004 Statements.
On appeal, Esmail's primary argument is that the district court clearly erred
in refusing to credit his later repudiation of his 2002-2004 statements. Those
statements established Esmail's extensive paramilitary/terrorist training, his
frequent stays at al-Qaida guesthouses, and his presence at Tora Bora during the
battle there.
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For example, Esmail repeatedly described his weapons training at al
Qaida's primary training camp, Al Farouq. JA 853 (Esmail "spent two months at
Farouq camp for basic training"); id. 861 (Esmail "attended training at AI-Farouq
training camp); id. 863 (Esmail received both basic and advance training at "camp
Farouq"); id
Esmail explained that, after basic training, he was selected for advanced training.
See, e.g.,
Esmail admitted that he
went on to advanced training outside Al Farouq. See, e.g., JA 856 (Esmail said he
had "trained at 3 different camps"); JA 870 (Esmail reported sessions lasting three
weeks and one month, respectively, at "the Malek training camp," and an
additional week of training at the Asil training camp). That additional training
included "anti aircraft, heavy artillery and Surface to Air Missile (SAM 7)
courses." JA 87,.
Esmail's 2002-2004 statements also detail his many stays at al-Qaida
guesthouses. See, e.g., JA 875 (describing numerous guesthouse stays, including
one at the Azam guesthouse in Kabul); JA 883 (Esmail knew that the Azam
guesthouse had al-Qaida connections); JA 876 (Esmail stayed at the "Ejm al SEERETh't~OFORt~
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Jihad" ("Star of the Struggle," JA 871) guesthouse in Jalalabad); JA 872 (also
reporting the stay at "Najma AI-Jihad" guesthouse). Esmail stated that he saw al
Qaida's leader Usama bin Laden at three separate guesthouses - one in Kabul, one
in Kandahar, and the one in Jalalabad. Ibid. See also JA 901 (also reporting that
Esmail saw bin Laden three times in these cities); JA 906 (Esmail saw bin Laden
three times).
Finally, Esmail's 2002-2004 statements also describe Esmail's deployment
to Tora Bora after September 11,2001. As the government's expert declarations
established
Analys
JA 949 (2009 expert declaration of Senior Intelligence
After the battle of Tora Bora, Esmail was taken into
custody in a "village near Tora Bora" after he and two other men "surrendered"
after they had "descended from" mountains. JA 848. Both Esmail's companions
also surrendered, and both were al-Qaida fighters who fought at Tora Bora. See
JA 1828-1829 (al-Daini took up a military position in Tora Bora); JA 1166
(Kassim was captured "in Tora Bora * * * with" Esmail); JA 1159 (Kassim was
"fleeing the Tora Bora" with Esmail). AI-Daini had been wounded in the leg,
JA1829, and in a 2004 statement, Esmail admitted to helping al-Daini down from
the mountains, see JA 908. SEERETh't~OFORt~
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On appeal, Esmail does not contend that the interrogation reports of his
many detailed statements made between 2002 and 2004, relied upon by the district
court here, do not accurately record what he said. Rather, he claims that the
district court erred in refusing to credit his later repudiation of some of the facts
set out in those reports. He argues that the district court should have credited the
allegations of severe abuse detailed in his 2009 and 20 I0 declarations, and found
some of his earlier admissions to have been a result of that abuse.
The district court's findings were well grounded, and are far from clearly
erroneous. As the Supreme Court has explained, a factual finding, such as that
made by the district court here, "based on determinations regarding the credibility
of witnesses * * * demands even greater deference to the trial court's findings"
than clear error review ordinarily requires. Anderson, 470 U.S. at 575. See also
United States v. Hart, 324 F.3d 740, 747 (D.C. Cir. 2003) (a "'district court's
credibility determinations are entitled to the greatest deference from this court on
appeal '''). Credibility determinations warrant such deference even when they are
based upon documentary evidence, rather than live testimony. See United States
v. McCoy, 242 F.3d 399, 408 n.15 (D.C. Cir. 2001) (credibility determinations
based upon transcripts). And "[w]hen a trial judge's finding is based on his
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both "coherent and facially plausible" and not "contradicted by extrinsic
evidence," then the trial court's decision "can virtually never be clear error."
Anderson, 470 U.S. at 575. That is the case here.
Esmail did not testify at his habeas hearing to support his revised version of
events or his newly-asserted claims of abuse and mistreatment. Rather, he relied
upon his 2009 and 2010 declarations. The district court made a factual finding
that Esmail "did not endure the severe abuse" described in his 2009 and 2010
declarations, and also found that Esmail' s "descriptions of abuse," particularly
those in the 2010 declaration, were "exaggerated." JA 253. The district court did
not clearly err in finding that Esmail's allegations of serious abuse could not be
credited. Rather, as we detail below, the trial court gave logical and well-
supported reasons why Esmail's allegations were not worthy of belief.
a. As the district court recognized, this was not a case where the allegations
of abuse were left unrebutted. The government submitted declarations from.
_and , who described the intake and interrogation
procedures at Bagram and Kandahar. The district court did not clearly err when it
found the declarations of_and. "believable and relevant * * *." JA
257. Both declarants had been present at the facilities where Esmail was held
during the period he was held there, and both were able to speak from personal SEERETNt~OFORt~
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knowledge about the conditions and the treatment of the detainees. See JA 1262
1264 1296-1298 _ In addition,. remembered Esmail
individually. JA 1296. As the district court found, the declarations of_
and. "demonstrat[ed]" that "at least some" ofEsmail's most serious
allegations were "entirely untrue." JA 257. _ declaration established that
Esmail himself showed no physical injuries,"appeared healthy" during his
interview and "did not display any hostility or fear." JA 1298. Both declarants
agreed, from personal knowledge, that although conditions were not optimal for
either detainees or United States personnel at these battlefield locations, detainees
were not coerced or abused. See JA 1262-1264, 1295-1298. The district court did
not clearly err in finding that these declarations were sufficient to "discredit the
possibility" of allegations such as "Esmail's being threatened with dogs or thrown
in a ditch of waste." JA 257. Nor did the district court clearly err in concluding
that these and other falsities in Esmail's later recantations (e.g., Esmail's
statements that he did not know that Al Farouq was an aI-Qaida training camp, JA
272-273), also gave it good cause to question other aspects ofEsmail's
recantation. See JA 257 (Esmail's known falsehoods "cast serious doubt on the
validity of all of Esmail' s assertions of serious abuse"); Ai Adahi, 613 F.3d at
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1107 (applying in this habeas context the "well-settled principle that false
exculpatory statements are evidence - often strong evidence - of guilt").
b. The district court's factual finding that Esmail did not suffer the extreme
abuse he alleged is further supported by Esmail's medical records from
Guantanamo Bay. The district court "accept[ed] the conclusions of the physician
who reviewed Esmail's medical records," Dr. Winn. JA 259. Dr. Winn
determined that Esmail's shoulder was scraped, not broken ("the abrasions were
not deep," JA 258), that Esmail's shoulder was otherwise sound, ibid., and that in
general Esmail's '''medical records do not show evidence of abuse, especially of
the extreme nature alleged. ,,, JA 259. The court had the medical records before it
and did not clearly err in relying upon the physician's well-supported conclusion
that "nothing in the records indicate[s] 'any injuries consistent with a broken nose,
broken shoulder and/or tom muscles'" or of any "physical trauma normally
associated with the type of abuse as alleged in [Esmail' s] declaration. '" JA 259
(quoting the declaration of Dr. Winn). Rather, the court reasonably concluded that
the medical evidence supported both a finding that there was "no evidence of the
repeated beatings to which Esmail asserts he was subjected," and its inference that
this fact called "into serious question the truthfulness of Esmail 's most serious
allegations of torture." JA 259-260. SEERETIIU8F8RU
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Esmail's brief on appeal ("Br.") does not repeat Esmail's most dramatic
allegations of abuse - the supposed interrogation in the Bagram latrine and burial
alive in Kandahar - and it mentions only in passing Esmail's allegedly broken
nose and "severely injured" shoulder. Br. 32; see also JA at 11 (describing the
less serious ofEsmail's allegations). By no longer basing any argument on
Esmail's most serious allegations, Esmail' s brief appears to acknowledge that they
were baseless.
The brief argues, however, that the district court clearly erred when it found
that Esmail's allegations of abuse in Afghani custody, rather than in the custody of
the United States, did not make his later 2002-2004 statements at Bagram,
Kandahar and Guantanamo Bay unreliable. See Br. 27-30. As a threshold matter,
petitioner's brief is mistaken in contending that Esmail suffered "undisputed abuse
while in Afghan custody," Br. 30. The district court made no finding of
mistreatment in Afghan custody. To the contrary, the district court plainly rejected
Esmail's allegations of serious abuse and his suggestion that his 2002-2004
statements were affected by any such abuse.
Moreover, Esmail's allegations about supposed abuse by the Afghanis
suffer from the flaws identified by the district in rejecting his other allegations of
serious abuse. Esmail' s 2009 Declaration is devoid of any allegations of abuse in SEeRETh't~OFORt~
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Afghan custody, JA 931-932, and his sensational allegations that he was held in an
underground prison in Kabul and tortured every day, see JA 1878-79, were made
for the first time in March 2010, raising the inference that they were invented. See
Al Adahi, 613 F3d 1110-1111 ("a1-Qaida members are instructed to resist * * * by
recanting and changing answers already given * * * and by claiming torture").
Esmai1's medical records showed that he was physically sound and rebutted
the allegations of serious abuse of a type that would have caused medical trauma
with lasting physical effects. See JA 1255 (Declaration of Dr. Winn); compare JA
1879 (Esmail alleges beatings with chains that "targeted boney areas such as my
shins, elbows and head"). Esmail's initial screening documents from Bagram and
Kandahar (id. 848-849, 849-850) also showed that his condition when he arrived
in Bagram was "good," JA 849, and that when he reached Kandahar, he
complained only of "back pain," JA 851. Esmail's false allegations of abuse
allegations disproven by medical evidence and "directly contradicted" by the
• and_declarations, JA 288 - cast serious doubt on all his other
allegations of abuse, including his allegations that he was abused by his Afghan
jailers.
Moreover, any alleged abuse in Afghan custody, JA 263 n.15, would have
been attenuated by the time of Esmail 's later statements made in the custody of the !;Efft:ETf,'146F6ft:l4
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United States, see ibid. The declarations of_and. which the
district court credited, stated that detainees were questioned at Bagram and
Kandahar without the use of any coercive techniques. See JA 1264-1265
JA 1295 _ Esmail's own statements, the court found, did not
"read as they likely would were the interviewee speaking out of fear." JA 261.
Rather, Esmail felt free to refuse to answer some of his Bagram interviewers'
questions. See JA 261. This evidence confirms that the district court did not
clearly err in finding that Esmail' s detention in Afghan custody did not call into
question the truthfulness of his statements to American interrogators.
c. The district court's factual finding that Esmail' s allegations of serious
mistreatment were incredible was also supported by the timing and nature of
Esmail's 2009 and 2010 declarations and the inconsistencies between them. The
district court explained that Esmail's decision to make the most sensational and
shocking allegations only four days before trial- including allegations of "being
given electric shocks, hit with chains and almost fully buried in the ground," JA
260, "no hint of which" had appeared in Esmail's earlier declaration - was further
evidence that Esmail was being untruthful. As the court explained, "it is
reasonable to infer" from these new allegations "that could reasonably be expected
to appear" when Esmail first alleged that he had been mistreated, "that Esmail has SEeft:E"fll~eFeft:l~
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embellished his statements with false allegations in an effort to create an
advantage for himself in this litigation." Ibid. 1O
The district court did not clearly err in finding that at least some of Esmail's
new allegations were demonstrably false. For example, Esmail alleged in 2010
that he had been interrogated in the latrine at Bagram and rinsed down with a hose.
JA 932. But_explained - and the district court credited his statement-
that the design of the latrine at Bagram would have made this scenario virtually
impossible, and there was, in any event, no running water at Bagram at the time.
See JA 1857. This type of blatant and proven untruth provides strong support for
the district court's conclusion that Esmail, at a minimum, embellished his
statements.
Esmail's brief mistakenly argues that the district court erred in "discounting
Esmail's allegations of abuse based on the timing of their submission to the court."
10 The allegations Esmail submitted on the eve of the merits proceeding were notably different from his earlier allegations in another way as well; Esmail pointed out three times in his 2010 declaration that the abuse he was now alleging "did not leave a mark * * *." See JA 1884 (alleged interrogation in the Bagram), 1889 (allegations ofbeing questioned naked), 1886 (alleged live burial). These statements, made in response to government's medical evidence that Esmail was physically sound when he arrived at Guantanamo, raise an inference that Esmail was deliberately alleging types of mistreatment that the medical evidence would not immediately disprove.
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Br. 20 (initial capitalization omitted). The court clarified that it did not regard the
late submission of the second declaration, for which Esmail's attorney's were
responsible, to be a relevant consideration. JA 260. Rather than questioning the
timing of the document, the district court found that the differences between the
substance of the two documents raised doubts about Esmail's credibility. See ibid.
In denying reconsideration, the trial court emphasized that it had considered many
factors besides the timing of the allegations in finding Esmail's allegations of
abuse not credible. See JA 289 ("that Esmail's counsel rather than Esmail decided
not to include some details in Esmail's first declaration, does not change the
Court's conclusion, which relied on a variety of factors").
Moreover, Esmail's complaints regarding the timing of the government's
rebuttal evidence are without merit. The government timely produced its evidence
for submission at trial, including the declarations and medical records rebutting
Esmail's earlier allegations of abuse, as part of the government's opposition to
Esmail's motion for judgment on the record. When Esmail' s counsel realized that
"the Government intended to attempt to rebut Esmail's allegations of abuse," Br.
21, they then submitted a second declaration with additional new claims of severe
abuse. The district court accepted that second declaration, despite its late filing,
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allegations - which it did with the supplemental declarations of _and
-Esmail argues (Br. 25) without any foundation that the district court had a
legal obligation to draw favorable inferences from his 2010 declaration raising
new claims of abuse. The district court, as trier of fact, had no such obligation.
Rather, its role was to weigh the 2010 declaration, taking into account its last
minute filing, that the allegations had not been made previously despite every
incentive to make them in the 2009 declaration or before, the inconsistencies in
the two declarations, the intrinsic reliability of the detailed 2002-2004 statements,
and the reliable rebuttal declarations submitted by the government. The court
performed that task and did not clearly err in finding that the 2002-2004
statements continued to be reliable, while the newly-asserted claims of severe
abuse were not credible.
Likewise, there is no legal or factual basis for Esmail's view that the district
court should have drawn "adverse credibility inferences" against the government
because the government "could and should have" submitted and
_ supplemental declarations "much earlier." JA 26. The government's
evidence was rebuttal evidence that addressed new allegations of abuse raised by
Esmail. The government had no possible reason to inform the court of the details !!!ft:!,./f14ep'eft:14
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of the toilet arrangements at Bagram, for example, until after Esmail had come
forward with the allegation that he had been interrogated in a latrine there. And as
the district court recognized, the idea that Esmail needed "to submit a detailed
declaration responding to the Government's newly-disclosed evidence" rebutting
the abuse allegations, Br. 22, is nonsensical. Esmail would have known what
abuse he suffered regardless of any government evidence, and, as the district court
pointed out, he had every reason to make all ofhis allegations from the outset.
See JA 260 (Esmail's most serious allegations "could reasonably be expected to
appear in the First Declaration").
Petitioner's brief is also mistaken in characterizing Esmail's 2010
declaration as just a more detailed version of his 2009 declaration. See Br. 24.
Esmail makes numerous new specific allegations of abuse in the 2010 declaration.
See JA 1876-1882 (allegations of abuse in Afghan custody); id. 1884-1885
(allegations of being interrogated in Bagram latrine, and bribed and intimidated at
Bagram); id. 1889-1890 (allegations oflate-night interrogations and burial alive at
Kandahar). Moreover, in fundamental respects, Esmail's second declaration is
inconsistent with the first. Compare, e.g., JA 932, 933 (Esmail was thrown from
the plane at Guantanamo, and on landing he "suffered a broken shoulder and tom
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muscles"), with JA 1890 (Esmail was "forced to swallow a pill" before his plane
landed at Guantanamo, and someone "beat" his shoulder).
d. The district court's credibility finding is further buttressed by its
conclusion that evidence intrinsic to Esmail's own statements suggested that
Esmail's allegations of severe abuse were false. As the court pointed out, Esmail's
interrogation reports "do not read as they likely would were the interviewee
speaking out of fear." JA 261. 11 Rather, Esmail's interrogators noted that far from
telling them whatever they wanted to hear, Esmail felt free to refuse to answer
certain questions. Ibid. The district court also did not clearly err in finding that
Esmail could not have "invented" the names and facts he reported to interrogators,
as Esmail contended, because the record showed independently that the facts were
true. See JA 261-262. Esmail did not, for example, "invent" Abu Khalud, the al-
Qaida operative who had worked in Bosnia and had a scar on his forehead from a
11 The district court cited Esmail's statement that "'he didn't care what we did to him, or how long he sat here, even if it was 100 years, that he wasn't talking. ,,, JA 261, quoting JA 856. Numerous other statements Esmail made before his CSRT proceeding confirm the district court's finding that these were not the statements of a tortured and terrified detainee. See, e.g., JA 916 (Esmail refused to provide information "because he is tired ofanswering the same questions over and over"); JA 904 (Esmail "was fine and had no problems with his cell," but would not "answer questions regarding his case unless the questions were new ones"); JA 897 (Esmail "does not personally have any complaints regarding his health or the facility but does not like the guards.").
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bullet injury, because independent evidence in the record showed that an al-Qaida
facilitator, Abu Khalud, had indeed received a bullet wound in the head in Bosnia.
See JA 262. And the district court reasonably took into consideration the fact that
Esmail's most detailed statements were given when he first arrived at Bagram,
before there was an "opportunity for Esmail to be affected by mistreatment in U.S.
custody" that might have had some bearing upon his willingness to tell the truth.
JA 263.
Esmail's argues that the district court failed to consider the totality of
Esmail's evidence of abuse, Br. 31-32, and criticizes the manner in which the
district court resolved conflicts in the evidence. But the district court, as finder of
fact, was entitled to resolve those conflicts, and to conclude from the evidence that
Esmail had lied about the alleged abuse. This Court need not - and should not
"duplicat[e] the trial judge's efforts" as fact-finder, Anderson, 470 U.S. at 574
575, and Esmail has fallen far short of establishing clear error in the district
court's evaluation of this evidence. 12
12 Esmail' s brief mischaracterizes the record. It is not true that "the medical records indicate[] that Esmail 's shoulder was severely injured * * *." Br.32. On the contrary, and as the district court found, Esmail had a mild abrasion that was treated with Bacitracin and a bandage. JA 258. Nor is it true that the government's evidence "often corroborated Esmail 's claims" oftorture and other mistreatment. Br.32. The district court identified only two limited areas of corroboration, see JA 257, derived
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e. Finally, while rejecting Esmail's clams of severe abuse, the district court
stated that it was "not convinced that Esmail was not subjected to mistreatment by
his American captors * * *." JA 263. The court, however, found that whatever
relatively minor mistreatment Esmail experienced did not detract from the weight
of Esmail's numerous, detailed, and consistent statements provided between 2002
and 2004. See JA 261 n.12 ("There are far more consistencies in [Esmail's]
statements, regarding a range of topics, than discrepancies."). Rather, the court
found that "nothing about the summaries ofEsmail's statements suggests to the
Court that they are the product of coercion, whereas there are indications to the
contrary." JA 263.
The court's finding is well supported and not clearly erroneous. The district
court's most specific statement about Esmail's treatment in United States custody
was that the government declarants _and. corroborated "some
portions of Esmail's description of his treatment, such as being forced to be naked
in the presence of guards and being held in a cold location," JA 257. _
and. whose statements the district court accepted as "believable and
relevant," ibid., did not describe any improper or harsh coercive treatment.
from_and_ statements that detainees might briefly be naked during intake procedures, a~statement that the Bagram facility was cold.
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Rather, they stated that detainees were briefly naked while changing their clothes
1296,1860 _ Bothduring the intake procedures. See JA 1263
men also declared under penalty ofperjury, however, that detainees were not
naked once they had received their new clothing. JA 1263 (detainees were not
"stripped, hooded or shackled" during their interrogations at Bagram); JA1296
("Other than during the intake process * * * I never observed detainees without
clothing" at Kandahar); JA 1280 (detainees occasionally went through a "two
minute[]" basic question and answer session during intake "while naked, before
they received their camp uniforms" when intake was crowded).
Similarly, while_ agreed that the detention facility at Bagram was
cold for everyone held or stationed there, see JA 1265, 1266 (the hangar was
"chilly" but "the detainees were living in the same conditions as were the
Coalition forces"), efforts were made to keep the detainees as comfortable as
possible. See JA 1265-1266 (detainees were provided gas heaters, wooden
flooring, jumpsuits, blankets and heavy wool booties).13 The government's
13 declaration explained that a wooden floor built to insulate detainees from the cooler cement underneath had to be removed when detainees used nails from the wood flooring as weapons. JA 1265. Also, because detainees could also use boots as weapons, "they were given heavy wool booties" like hiking boot liners, to keep their feet warm. JA 1266.
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evidence thus would have corroborated a finding of a degree of discomfort for
detainees, which might be expected in the operation of a war-zone detention
facility for battlefield detainees, but not any ill-treatment remotely like Esmail's
dramatic allegations of serious abuse.
The district court therefore did not clearly err in finding that Esmail's
allegations of serious abuse were incredible, that Esmail's proven lies "cast serious
doubt" on his other allegations, JA 257, and that only allegations about brief
nakedness and cold had independent support in the record. Nor did the court
clearly err when it found the government declarants to be truthful in explaining
that detainees generally, and Esmail in particular, were not mistreated at Bagram
or Kandahar during the period when Esmail was there. Based upon these factual
findings, and on the detailed and consistent nature ofEsmail's 2002-2004
statements themselves, the district court did not err in finding that Esmail's 2002
2004 statements were not the product of coercion, but were reliable evidence.
2. Esmail's Challenges To The Findings That He Knowingly Received Training From AI-Qaida and Stayed At AI-Qaida Guesthouses Are Without Merit.
a. In his appeal brief, Esmail argues that the district court clearly erred in
finding that he knowingly received training from al-Qaida. Even in his brief,
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camp." Br. 39. The basic training lasted two months, JA 853, and the advanced
(anti-aircraft, surface-to-air missile, artillery, and machine gun training) lasted
another two months (JA 911,. Notably, Al Farouq is not just any paramilitary
training camp. As the government's expert declaration explained,
JA 939.
JA 273, 939. This Court has recognized the
importance of evidence that a habeas petitioner trained at this camp, and Esmail
completed both basic and advanced training courses there. In At Adahi, for
example, this Court held that an admission that an individual trained at al Farouq,
"standing alone," could possibly be enough to show that someone was part of al-
Qaida. 613 F.3d at 1109.
Esmail argues that the evidence of his basic and advanced training at Al
Farouq should be ignored because he claims he did not know the camp was
affiliated with al-Qaida. As an initial matter, this argument incorrectly presumes
that in addition to establishing that Esmail trained repeatedly at Ai Farouq and had
other ties to al-Qaida, the government must also show his subjective intent or
knowledge. This Court in At Adahi rejected the view that in a context like this, a
detainee's motivation for training at Al Farouq or his subjective beliefs about the
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military training are relevant: "When the government shows that an individual
received and executed orders from al-Qaida members in a training camp, that
evidence is sufficient (but not necessary) to prove that the individual has affiliated
himse1fwith al-Qaida." 613 F.3d at 1109. Here, as inAl Adahi, other strong
evidence tied Esmail to al-Qaida; Esmail was recruited by an al-Qaida operative,
stayed at al-Qaida guesthouses, and studied at an institute funded and operated by
al-Qaida. The district court did not clearly err in finding that Esmail had
knowingly received training from al-Qaida.
In any event, the district court also found as a fact that Esmail went on to
fight for al-Qaida at Tora Bora. Even if Esmail had somehow failed to grasp that
al-Qaida had trained him at Al Farouq, his want of such knowledge would not
alter the conclusion that he was part of al-Qaida when he surrendered outside of
Tora Bora.
Nor did the district court clearly err in finding that Esmail's claim that he
did not know of Al Farouq's link to al-Qaida was fanciful. For example, as the
district court noted, the government produced evidence that the books used at the
Al Farouq training camp were all marked "AI Qaida." JA 271; 963.
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JA 940. The district court explained
that given Esmail' s time at the training camp and the camp's proven purpose of
indoctrinating its trainees, it was "simply not believable that at no time during
Esmail's several courses did the subject of against whom and for what the purpose
the trainees might fight arise." JA 273. This and other relevant evidence led the
court to specifically find that "Esmail knowingly received instruction from Al
Qaeda." Ibid. That finding is well supported and plainly not clearly erroneous.
b. Esmail accuses the district court of not examining the evidence about
Esmail's frequent guesthouse stays in its totality. But the district court did exactly
that. The district court found that "it strains credulity to believe that after two
years of intermittently residing at guesthouses - to which he was first led by a
member of Al Qaeda - and attending training camps, Esmail did not know that he
was staying at locations affiliated with Al Qaeda." JA 275.
The district court also found that it was more likely than not that Esmail had
stayed at the Najima Al Jihad guesthouse in Jalalabad, JA 274 n.21, and at the
Haji Habash House. JA 274. The government's expert declaration explained that
the Haji Habash House, where Esmail again saw Abu Khalud, the al-Qaida
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operative who recruited Esmail for military-style training and paid for his ticket to
Afghanistan, JA 871, was used asa transition point for those_ to and
from training camps. JA 954. This and other al-Qaida associated houses were
used as safe houses. Ibid.
Ibid.
Further, Esmail was allowed to be in the Najima Al Jihad guesthouse at the same
time as Usama bin Laden after the September 11 terrorists attacks, JA 872, and he
knew that people were leaving the guesthouse to fight in Tara Bora, JA 871.
With this expert declaration and the evidence of Esmail's training and
movement between houses before it, the district court did not clearly err in finding
that it could infer that Esmail had knowledge that the houses were affiliated with
al-Qaida. JA 274-75. In any event, given Esmail's extensive paramilitary training
and the district court's finding that Esmail fought for al-Qaida at Tora Bora,
Esmail is clearly part of al-Qaida, even ifhe remained ignorant of the affiliation of
some or even all of the al-Qaida guesthouses in which he stayed.
C. The District Court Did Not Err In Failing To Apply A Corroboration Requirement For Jury Trials In Criminal Cases
Esmail's brief argues that the district court erred in relying upon Esmail's
2002-2004 statements at Bagram, Kandahar and Guantanamo Bay. He argues that
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the district court was required to apply a common-law rule of criminal
evidence-that "an accused may not be convicted on his own uncorroborated
confession." Smith v. United States, 348 U.S. 147, 152 (1954). See Br. 35.14 His
brief then argues that "[o]nce Esmail's early admissions are properly discounted"
by applying the rule, the government's evidence was insufficient to establish that
Esmail was part of al-Qaida. Both the legal and factual elements of Esmail' s
argument are wrong: the rule does not apply in these habeas proceedings, and
Esmail's admissions are adequately corroborated in any event.
As a threshold matter, Esmail did not present to the district court this new
argument that Esmail's statements must be corroborated. He has therefore
forfeited it. See Elliott v. u.s. Dep't ofAgriculture, 596 F.3d 842, 851 (D.C. Cir.
2010).
Second, the corroboration rule is limited to criminal jury trials and is not
relevant here, where even the hearsay rules do not bar consideration of reliable
evidence. Al Bihani, 590 F.3d at 876. As this Court has explained, detainees'
habeas proceedings are not "subject to all the protections given to defendants in
criminal prosecutions." Al Adahi, 613 F.3d at 1111 n.6. Instead, "the Suspension
14 This argument is also presented inAI Alwi v. Obama, No. 09-5125 (D.C. Cir.) (argued November 4, 2010).
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Clause protects only the fundamental character of habeas proceedings, and any
argument equating that fundamental character with all the accoutrements of habeas
for domestic criminal defendants is highly suspect." Al Bihani, 590 F.3d at 876.
The corroboration rule is not "fundamental" to habeas proceedings. The
rule provides that a criminal conviction "cannot rest on a defendant's out-of-court
statements made subsequent to the crime ... unless the government produces
substantial independent evidence which would tend to establish the
trustworthiness of the statement." United States v. Dickerson, 163 F.3d 639, 641
(D.C. Cir. 1999). The rule "stem[s] from common law," rather than from the
constitution. Ibid.; see also MCCORMICK ON EVIDENCE § 145, at 593 (6th ed.
2006) (noting that the "[c]onstitutional considerations ... do not demand" the
corroboration rule). And this Court, among others, has questioned the necessity of
the rule even in criminal prosecutions. See Dickerson, 163 F.3d at 644 n.2 (noting
that "Judge Learned Hand doubted as early as 1918 whether the corroboration rule
'has in fact any substantial necessity in justice'" and expressing "doubt[] ... that
the Supreme Court would rule today as it did [in Smith]" (quoting Daeche v.
United States, 250 F. 566, 571 (2d Cir. 1918)); MCCORMICK ON EVIDENCE, supra,
§ 145, at 596-97 & n.29 (collecting sources critical of the corroboration rule).
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Nor is the corroboration rule necessary to ensure that detainees are afforded
"meaningful" habeas procedures. Al Bihani, 590 F.3d at 875. Esmail, like other
detainees, had ample opportunity to explain his interrogation statements at trial,
including through live testimony. He chose not to testify. Moreover, the
corroboration rule is principally based on the concern that juries will "accept
confessions uncritically," without adequate consideration of the risk of false
confession. MCCORMICK ON EVIDENCE, supra, § 145, at 595 & n.19; Smith, 348
U.S. at 153 (holding that empirical evidence of "false confessions voluntarily
made ... justifi[ies] a restriction on the power of the jury to convict, for this
experience with confessions is not shared by the average juror"). But, as this
Court has explained, "district judges are experienced and sophisticated fact
finders" whose "eyes need not be protected from unreliable information in the
manner the Federal Rules of Evidence aim to shield the eyes of impressionable
juries." See Al Bihani, 590 F.3d at 880. Because of this and because these are not
criminal proceedings, this Court has accordingly declined to impose ordinary
hearsay evidence rules in these proceedings. Ibid. It should similarly decline to
adopt a rule that mechanically bars consideration of a detainee's own admissions.
In any event, moreover, Esmail's 2002-2004 statements are amply
corroborated. As this Court has explained, "[t]raditionally, [the rule's] purpose
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has been to forestall convictions based on confessions to crimes that never
occurred." United States v. Johnson, 589 F.2d 716, 718 (D.C. Cir. 1978); see also
MCCORMICK ON EVIDENCE, supra, § 145 at 595. The corroboration requirement
has limited scope, requiring that the government only to provide evidence that
"'supports the essential facts admitted sufficiently to permit a jury inference of
their truth.'" Johnson, 589 F.2d at 718 (quoting Opper v. United States, 348 U.S.
84, 93 (1954)).
The government easily satisfied those requirements here. Abu Khalud's
role as an al-Qaida facilitator who helped with travel to Afghanistan is
corroborated by another detainee, whose statement the district court found to be
credible. JA 262 and JA n.13. Esmail himself still does not deny that he obtained
for at least two separate periods of training. JA
930. And detainee statements and documentary evidence place Esmail in Tora
Bora at the time of the battle there. JA 1159, 1166, 848. Thus, even ifEsmail's
statements required corroboration - and they do not - the government's
corroboration was sufficient.
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CONCLUSION
For the foregoing reasons, this Court should affirm the judgment of the
district court.
Respectfully submitted,
TONY WEST Assistant Attorney General
DOUGLAS N. LETTER ROBERT M. LOEB ANNE MURPHY
(202) 514-3688 Attorneys, Appellate Staff Civil Division, Room 7644 u.s. Department ofJustice 950 Pennsylvania Ave., NW Washington, D.C. 20530 0001
NOVEMBER 2010
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CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(7)(C) OF THE FEDERAL RULES OF APPELLATE PROCEDURE
I hereby certify, pursuant to Fed. R. App. P. 32(a)(7)(C) and D.C. Circuit
Rule 32(a), that the foregoing brief is proportionally spaced in Times New Roman
14-point type, and that it contains 13, 853 words according to the wordcount
feature of WordPerfect 12, excluding the portions of the brief excluded by Fed. R.
App. P. 32(a)(7)(B)(iii).
Anne Murphy Counsel for Respondents
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CERTIFICATE OF SERVICE
I hereby certify that on November 19,2010, I filed and served the foregoing
Brief for Respondents-Appellees by delivering an original and seven copies for the
Court, and two paper copies for counsel of record listed below, to the Court
Security Officer.
Alan A. Pemberton Brian Foster Danielle S. Barbour Covington & Burling 1201 Pennsylvania Ave., N.W. Washington, D.C. 2004-2401
David H. Remes 1106 Noyes Drive Silver Spring, MD 20910
Anne Murphy Counsel for Respondents
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