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[ORAL ARGUMENT SCHEDULED FOR OCTOBER 2, 2009]
No. 09-5051
IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
GHALEB NASSAR AL BIHANI Petitioner-Appellant, v. BARACK H. OBAMA, ET AL., Respondents-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
BRIEF FOR APPELLEES
IAN GERSHENGORN Deputy Assistant Attorney General
DOUGLAS N. LETTER ROBERT M. LOEB MATTHEW M. COLLETTE (202) 514-4214 Attorneys, Appellate Staff Civil Division, Room 7212 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)( I), the undersigned counsel certifies as follows:
A. Parties and Amici
Petitioner-Appellant is Ghaleb Nasser AI-Bihani. Respondents-appellees are:
Barack Obama, President of the United States; Robert Gates, Secretary of Defense;
Brigadier General Jay Hood, Commander, Joint Task Force-GTMO; and Colonel
Mike Bumgarner, Commander, Joint Detention Operations Group - JTF-GTMO.
B. Rulings Under Review
Petitioner appeals from the order ofthe district court (Leon, J.), entered January
28,2009, denying al-Bihani's petition for a writ ofhabeas corpus.
C. Related Cases
1. Bensayah v. Obama, D.C. Cir. No. 08-5337, is an appeal by an individual detained at Guantanamo from the denial ofa habeas corpus petition. The government filed the Brieffor Appellees in Bensayah on July 15, 2009, and the case is scheduled for argument on September 24, 2009.
Basardh v. Obama, D.C. Cir. No. 09-5200, is an appeal by the government of a district court ruling that the court may order release ofan individual who is part of enemy forces on the ground that the individual will not rejoin the battle or engage in
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any further act ofterrorism. The government's opening briefin Basardh currently is due July 30,2009.
Ai A/wi v. Obama, No. 09-5125, is an appeal brought by a Guantanamo detainee from the denial of a petition for a writ of habeas corpus.
Counsel is not aware at this time ofany other related cases within the meaning ofD.C. Cir. Rule 28(a)(l)(c).
Matthew M. Collette Counsel for Respondents-Appellees
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TABLE OF CONTENTS
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES I
TABLE OF AUTHORITIES '" VI
GLOSSARY Xl
STATEMENT OF JURISDICTION 1
QUESTION PRESENTED 2
STATEMENT OF THE CASE 2
STATEMENT OF THE FACTS 4
A. AI-Bihani's Recruitment, Travel to Afghanistan, and Stay At Taliban and AI-Qaida Guesthouses 4
B. AI-Bihani's Training 6
C. Activity On The Front Lines As Part Of The 55 th Arab Brigade 7
D. The Retreat and Surrender of the 55th Arab Brigade 10
E. AI-Bihani's Statements Before the Administrative Review Board...... 11
F. The District Court's Decision Denying the Petition 12
SUMMARY OF ARGUMENT 16
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STANDARD OF REVIEW 20
ARGUMENT , 21
I. THE DETENTION OF AL-BIHANI IS AUTHORIZED BY THE AUMF AND SUPPORTED BY THE EVIDENCE 21
A. The President Has Authority, Consistent With The Laws OfWar, To Detain Enemy Forces During The Duration of Hostilities 21
B. The District Court Properly Held That The Evidence Is Sufficient To Conclude That al-Bihani I s Properly Detained 25
II. THE DETENTION OF AL-BIHANI IS CONSISTENT WITH THE LAWS OF WAR 32
A. The Conflict In Which al-Bihani Was Captured Has Not Ended 32
B. The United States is Not Foreclosed From Invoking The Laws Of War To Detain al-Bihani. 39
III. AL-BIHANI'S CONTENTION THAT HE CANNOT BE DETAINED EVEN IF HE WAS PART OF THE ENEMY FORCES IS INCORRECT 42
A. The Government's Detention Authority Is Not Limited To Individuals Who "Directly Participate" In Hostilities 42
B. Detention Under The Laws Of War Does Not Depend Upon Whether An Individual Is A Future Threat.. 45
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IV. AL-BIHANI'S PROCEDURAL ARGUMENTS ARE WITHOUT MERIT 53
CONCLUSION 62
CERTIFICATE OF CONIPLIANCE
CERTIFICATE OF SERVICE
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TABLE OF AUTHORITIES
Cases:
Al Odah v. United States, 559 F.3d 539 (D.C. Cir. 2009)...... 21
Amadeo v. Zant, 486 U.S. 214 (1988) 20
Anderson v. Bessemer City, 470 U.S. 564 (1985) 20
Bakerv. Carr, 369 U.S. 186,217 (1962) 48
Basardh v. Obama, 2009 WL 1033193 (D.D.C. 2009), appeal pending, No. 09-5200 (D.C. Cir.) 52
*Boumediene v. Bush, 128 S. Ct. 2229 (2008) 54,55-56
Boumediene v. Bush, 2008 WL 4722127 (D.D.C. Oct. 27, 2008) 22
Brown v. Allen, 344 U.S. 443 (1953) 59
Burns v. Wilson, 346 U.S. 137(1953) 59
*Gherebi v. Obama, 609 F. Supp.2d 43 (D.D.C. 2009) 25,28,42,44-45
Gonzalez Vera v. Kissinger, 449 F.3d 1260 (D.C. Cir. 2006) 48
*Hamdi v. Rumsfeld, 542 U.S. 507 (2004)...... 18-20,23,27-40,49-60
*Hamlily v. Obama, 616 F. Supp.2d 63, _"_, 2009 WL 1393113 (D.D.C. May 19,2009) 25,28,30,42,44
* Authorities chiefly relied upon are marked with an asterisk.
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Kiyemba v. Obama, 561 F.3d 509 (D.C. Cir. 2009) 1,55
*Ludecke v. Watkins, 335 U.S. 160 (1948) 17,34,36,48
Nat'l Fed'n ofFed. Employees v. United States, 905 F.2d 400 (D.C. Cir. 1990) 48
Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008) 58-59
People's Mojahedin Or. OfIran v. Department ofState, 182 F.3d 17,23 (D.C. Cir. 1999) 47
The Prize Cases, 67 U.S. (2 Black) 635 (1862) 35
Ex Parte Quirin, 317 U.S. 1 (1942) 23,40
Sanchez Espinoza v. Reagan, 770 F.2d 202 (D.C. Cir. 1985) 35,48
Schneider v. Kissinger, 412 F.3d 190 (D;C. Cir. 2005) 35,48
In re Territo, 156 F.2d 142 (9th Cir. 1946) 51
The Three Friends, 166 U.S. 1 (1897) 35
United States v. Prosperi, 573 F. Supp. 2d 436 (D. Mass. 2008) 35
United States v. Richardson, 167 F.3d 621 (D.C. Cir. 1991) 57
Statutes and Rules:
28 U.S.C. § 1291 2 28 U.S.C. § 2241 1 28 U.S.C. § 2243) 59 28 U.S.C. § 2253(a) 2
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*Authorization for the Use of Military Force, Pub. L. No. 107-40,115 Stat. 224 (2001) 16,221,23,25,43,49,52
Fed. R. Civ. P. 52(a)(6) 21
Miscellaneous:
Army Regulation 190-8, Ch. 1, § 1-6 (1997) 50, 56
C. Bradley & J. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2047 (2005) 23,31,40
Geneva Convention (III) Relative to the Treatment of Prisoners of War, Art. 118, Aug. 12, 1949, [1955], 6 U.S.T. 3316, 3406: 37 Art. 3 43 Art. 4 41-43 Art. 5 56
Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Art. 78, Aug. 12, 1949, [1956],6 U.S.T. 3516 50
Hague Convention (II) on Laws and Customs ofWar on Land, Art, 20, July 29,1899,32 Stat. 1817 49
Hague Convention (IV), Art. 20, Oct. 18, 1907 49
Int'l Comm. of the Red Cross, Commentary on Geneva Convention Relative to the Treatment of Prisoners of War of Aug. 12, 1949 (Pictet, ed. 1960) 41,56-57
Int'l Comm. of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 Aug. 1949 (Sandoz et al., eds. 1987) 44,45
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Y. Naqvi, Doubtful Prisoner of War Status, 84 RICR 571 (2002) 56
2 Oppenheim's International Law: A Treatise § 77 & n.1 (7th ed. 1952) 30
Organization of American States, Meeting of Consultation of Ministers of Foreign Affairs, Terrorist Threat to the Americas (Sept. 21,2001), http://www.oas.org/OASpage/crisis/RC.24e.htm 24
Parry & Grant, Encyclopaedic Dictionary ofInternational Law 84 (2d ed. 2004) 30
Paust, Judicial Power to Determine the Status and Rights ofPersons Detained Without Trial, 44 Harv. Int'l L. J. 503 (2003) 50
President's Plan Signals u.s. Commitment to Bolster Afghan Security, March 31, 2009, http://www.defenselink.mil/news/news/newsarticle.aspx?id=53721. 33
Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977 44
Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and relating to the Protection of Victims ofNon-International Armed Conflicts, 8 June 1977: Art. 1(1) 43-44 Art. 13 43-44
Statement by NATO Secretary Genera1(Oct. 2,2001), http://www.nato.int/docu/speech/200Ils011002a.htm 24
Statement by North Atlantic Council (Sept. 12,2001), http://www.nato.int/docu/pr/2001/pOl-124e.htm. . 24
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Statement by the President on Afghanistan, Feb. 17,2009, available at http://www.whitehollse.gov/the press office/ Statement-by-the-President-on-Afghanistan 32-33, 38
M. Schmitt, u.s. Security Strategies: A Legal Assessment, 27 Harv. lL. & Pub. Pol'y 737 (2004) 24
U.N. General Assembly Security Council Resolution of Sept. 12,2001 (S/RES/1368) 24
United Nations Charter, Art. 51. 24
W. Winthrop, Military Law and Precedents (2d ed. 1920) 41-42
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GLOSSARY
AUMF Authorization for Use of Military Force
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[ORAL ARGUMENT SCHEDULED FOR OCTOBER 2, 2009]
No. 09-5051
IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 09-5051
GHALEB NASSAR AL BIHANI Petitioner-Appellant, v. BARACK H. OBAMA, ET AL., Respondents-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
BRIEF FOR APPELLEES
STATEMENT OF JURISDICTION
The district court's jurisdiction was based on 28 U.S.C. § 224l(a). See
Kiyemba v. Obama, 561 F.3d 509, 512-513 (D.C. Cir. 2009V The district court
I But see Boumediene v. Bush, 128 S. Ct. 2229, 2278 (2008) (Souter, J., concurring) ("Subsequent legislation eliminated the statutoryhabeas jurisdiction over these claims, so that there must__sed jurisdiction or none at all").
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entered final judgment on January 28, 2009, and petitioner filed a timely notice of
appeal on February 13,2009. This Court'sjurisdiction is based on 28 U.S.C. §§ 1291
and 2253(a).
QUESTION PRESENTED
Whether the district court correctly determined that petitioner Ghaleb Nassar
al-Bihani was lawfully detained by the United States, in light of his acknowledged
travel to Afghanistan to engage in jihad, his repeated stay at several guesthouses
affiliated with the Taliban and al-Qaida, and his service with the 55 th Arab Brigade,
an al-Qaida- and Taliban-affiliated combat unit that fought against the Northern
Alliance and the United States.
STATEMENT OF THE CASE
This case stems from a petition for a writ of habeas corpus filed by petitioner
Ghaleb Nassar al-Bihani ("al-Bihani" or "petitioner"), challenging the lawfulness of
his military detention by the United States. By his own admission, al-Bihani traveled
from Saudi Arabia to Afghanistan in 2001, with the express purpose of fighting in
support of the Taliban against the Northern Alliance. Along the way and upon his
arrival he stayed at several guesthouses, including two affiliated with al-Qaida. Al
Bihani also admitted to receiving combat training at several al-Qaida training camps
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and on the front lines.2 Finally, al-Bihanijoined the 55th Arab Brigade, an al-Qaida and Taliban-affiliated fighting unit on the front lines. While there, he was subject to the Brigade's command structure, which included several important al-Qaida and
Taliban officers, and issued a Kalashnikov rifle, which he carried with him. As assigned by his commanding officer, al-Bihani cooked food, gathered water, washed dishes, and served meals for approximately 150 front-line fighters. On orders from the commanding officer, he retreated with his unit (carrying his rifle) after the U.S. began bombing in October 2001, and eventually surrendered with his unit to the
Northern Alliance in Afghanistan.
On the basis of al-Bihani's travel to engage in jihad, his stay at several guesthouses affiliated with the Taliban and al-Qaida along the way, and his service in the 55 th Arab Brigade, the district court held that al-Bihani "is being lawfully detained as an enemy combatant because it is more probable than not that he was
'part ofor supporting Taliban or al Qaeda forces' both prior to and after the initiation ofU.S. hostilities in October 2001." JA 663. The court therefore denied al-Bihani's habeas petition. This appeal followed.
2 As discussed below, Al-Bihani later denied having received any training, only to reverse course and ad~
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STATEMENT OF THE FACTS
A. AI-Bihani's Recruitment, Travel To Afghanistan, And Stay At Taliban and al-Qaida Guesthouses.
AI-Bihani is a citizen of Yemen who was born in and lived in Saudi Arabia.
JA 781.
JA 783,909.
JA 784, 909; 965.
. JA909,965.• had told al-Bihani to stay at the Faran Hotel, where he would be met by Abdallah al-
Rhimi. JA 784-85. . JA811.
AI-Rhimi took al-Bihani's passport and purchased an airline ticketto Quetta, Pakistan for al-Bihani. JA 785. AI-Rhimi explained to al-Bihani that he would be meeting an
Afghani named Muhammad upon his arrival in Quetta. Id.
AI-Bihani met Muhammad at the Quetta airport as planned, and Muhammad took al-Bihani's passport and money and put them in an envelope. Id.
JA 785-86, 910, 965. At several checkpoints along the way,
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Muhammad paid border guards from the envelope containing al-Bihani's money. JA
785-86.
JA 786, 910. Muhammad returned the envelope with al-Bihani's passport and remaining money to him. JA 786.
. JA 932, 936.
JA 932. The Defense Intelligence Agency lists as an al-Qaida facilitator with knowledge ofal-Qaida operational activities. JA 997; see also JA 882-883
; JA 838 (describing al-Dhahak's activities as a facilitator).
JA 932.
Id.
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B. AI-Bihani's Training.
•. JA9l0.
Id.
JA 910.
A declaration submitted by the Defense Intelligence Agency indicated that al-Farouq
was al-Qaida's primary Afghan basic training facility ("al-Qaida's flagship training
camp"), providing ideological indoctrination and training on small arms, mortars,
rocket-propelled grenades, anti-aircraft artillery, topography, map reading,
explosives, mines, hand grenades, ambush tactics, suicide, and anti tank weapons.
JA 773.
_ JA 913.
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JA 872,
914.
. JA 873, 914.
C. Activity On The Front Lines As Part Of The 55th Arab Brigade.
JA 919.
AI-Bihani then boarded a Taliban plane and was taken to Kunduz, Afghanistan, and then to the combat line at Khwaja Ghar, Afghanistan. JA 786. Upon arrival, al
Bihani received a Kalashnikov rifle, three empty magazines and one full magazine.
Id. After receiving his weapon and ammunition, al-Bihani met the emir ofthe 55 th
Arab Brigade, Abdel Salam al-Hadrani, where he was given the task of preparing food. JA 786-87. AI-Bihani stated he went to Afghanistan to fight, but took the opportunity to cook for the troops when it came up. JA 787.
JA 787,905,946.
JA 787; see JA 905.
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Bihani admitted that his role in the fighting unit was not limited to his service
as a cook. He acknowledged performing guard duty with the 55 th Arab Brigade. JA
_ JA 910,913.
During his time on the front lines, al-Bihani asked al-Hadrani when they were
going to fight. AI-Hadrani told him that it was up to Mullah Thaker (or Zakir), the
Taliban officer in charge of the unit, to order them to the front lines. JA 787. AI
Bihani reported that was in charge of overall combat operations
involving both Taliban and Arab volunteer forces, and that these forces trained at the
al Farouq training camp. JA 862.
JA 939.
JA678·11
_ has been described as a close associate of
. JA 831. _ is a high-level al-Qaida combat commander; one ofOsama bin Laden's closest commanders, he was in charge ofall al-Qaida fighters on the Afghani northern front. JA 830; see also JA 997 (Defense
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Intelligence Agency al-Qaida Leadership Chart). AI-Bihani had been told earlier by two of his trainers that Osama bin Laden was at war with America. JA 795.
JA 952.
JA 952.
_JA953.
In addition to al-Bihani's own statements, in which he admitted serving with the 55 th Arab Brigade, several other individuals verified al-Bihani's presence on the front lines. For instance, al-Qaida operative
identified al-Bihani as an al-Qaida fighter from _ whose brothers served in various capacities in close association with Osama bin Laden. JA
831. JA
949.
JA 865.
JA 834.
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JA929._
JA 927.
D. The Retreat and Surrender of the 55 tb Arab Brigade.
(JA 906, 946),
JA 787, 946. The plan was to travel collectively by
truck, car, or on foot to Konduz, through a small village called Sitrachi. JA 787.•
JA 787, 946.
As told by al-Bihani, he began the retreat by walking with three others,
reaching Sitrachi in about three hours. JA 787-88. The parties eventually separated,
with al-Bihani and one other individual making their way to Konduz after receiving
a ride with the aid of several Taliban members. JA 788. In Konduz they stayed at a
guest house, under the direction of al-Sanaani. Id. AI-Bihani had hoped to make his
way back to Saudi Arabia. Id. However, he and his unit took Taliban trucks to an
unknown spot in the desert, where al-Sanaani explained that they would lay down their arms and surrender to the Northern Alliance forces ofGeneral Dostum. JA 788.
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Al-Bihani surrendered his rifle, and was taken prisoner by General Dostum's troops.
JA 789.
JA 911, He states that he never discharged his weapon. JA 795.
E. AI-Bihani's Statements Before the Administrative Review Board.
As noted above, al-Bihani made numerous statements concerning his travel to
Afghanistan, his stay in various guesthouses, his combat training, and his service in the 55 th Arab Brigade. However, in June 2006, during proceedings conducted by an
Administrative Review Board (ARB) called to determine whether al-Bihani should, as a matter ofExecutive discretion, be released or transferred, al-Bihani submitted a statement recanting some ofhis previous statements. In particular, he denied that he had been to the al Farouq training camp (or any training camp), or that he received any training at all. JA 981. He also denied being given money to make the trip to
Afghanistan, and claimed he had never been on the front lines. He claimed that he fabricated his earlier statements in order to get medical treatment. Id.
Despite this June 2006 recantation,
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JA 910. _
Id.
F. The District Court's Decision Denying the Petition.
The district court denied al-Bihani's petition for habeas corpus. JA 655. The court relied upon "a combination ofcertain statements ofthe petitioner that the Court finds credible and certain classified documents that help to establish the most likely explanation for, and significance of, petitioner's conduct." JA 656. The court found
"no reason to question, as a general matter, the accuracy, authenticity, or reliability ofpetitioner's interrogation reports, noting that "petitioner has consistently explained the essential details ofthe story," and that
The court also found that al-Bihani's claims that he provided false statements ofhis activities in order to get medical treatment "do not, on this record, strike the Court as credible," and in fact are "largely contradicted." JA 657. The court held that.
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in original).
JA 657-58. Accordingly, the district court found al-Bihani's statements "to be sufficiently credible to be relied upon by this Court in assessing the strength of the Government case" against al-Bihani. JA 658.
Turning to the specific evidence, the court held that a preponderance of evidence supported the conclusion that al-Bihani was lawfully detained. The court first held that the evidence supported the government's allegation that al-Bihani had
as part of his trip to Afghanistan to engage in jihad. JA 658-59.
JA 659. "In fact," the court found, "as the Government ably demonstrates,_was an al-Qaida facilitator with knowledge of al Qaida's operational activities." Id.
The district court thus held: "The Court finds these admissions by petitioner to be credible and consistent not only with respect to these particular guesthouse visits, but also with respect to his overall trip to Afghanistan to participate injihad on behalfof the Taliban against the Northern Alliance." JA 660.
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With respect to the evidence that al-Bihani attended two training camps affiliated with al-Qaida, the district court observed that it faced "the novel dilemma of choosing between two diametrically opposed accounts by petitioner about receiving military training; the second ofwhich being a wholesale recantation ofthe first." JA 660. Faced with conflicting accounts, the district court stated that, "[w]hile it is tempting to resolve this dispute on behalf ofthe Government by accrediting, as a matter of common sense, Al Bihani's longstanding and consistent admission that he attended those camps, the Court will refrain from doing so as unnecessary in light of the overwhelming testimony of the petition in support ofthe Government's third allegation" concerning front-line activity in the 55th Arab Brigade. JA 661.
The third, "andmosttelling" allegation, concerned al-Bihani's membership "in the 55 th Arab Brigade fighting unit," through which he '''supported' the Taliban in its fight against the Northern Alliance both prior to and after the initiation offorce bythe
U.S. in October 2001." JA 661. The court noted that al-Bihani had provided
essentially the entire front-line force in the Khwajeh Ghar region." Id. (citations omitted).
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The court rejected al-Bihani's argument that supporting the front-line troops
by serving as a cook is an insufficient basis for detention, holding that "[p]etitioner
has not only admitted to serving under an al Qaeda military commander, but his close
ties to Taliban and al Qaeda affiliated forces as a member of the Arab Brigade unit,
albeit in a support capacity, is more than enough." JA 662-63. The court also found
it "particularly telling" that, when al-Bihani retreated from the front lines "he did so
only: (1) after the U.S. had commenced its bombing campaign against the Taliban;
(2) in response to an order from his Taliban commander; (3) with the Taliban forces,
in Taliban trucks, and armed with his Taliban-issued Kalashnikov rifle; and (4) to a
designated guesthouse where the unit went to regroup in preparation for its next
mission" (and where they eventually surrendered). JA 663.
The district court concluded: "Simply stated, faithfully serving in an al Qaeda
affiliated fighting unit that is directly supporting the Talibanby helping to prepare the
meals ofits entire fighting force is more than sufficient 'support' to meet this Court's
definition [ofenemy combatant]. After all, as Napoleon himselfwas fond ofpointing
out, 'an army marches on its stomach.", JA 663. The court therefore held that
"petitioner Al Bihani is being lawfully detained as an enemy combatant because it is more probable than not that he was 'part ofor supporting Taliban or al Qaeda forces' both prior to and after the initiation ofU.S. hostilities in October 2001." JA 663.
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SUMMARY OF ARGUMENT
1. The United States can lawfully detain persons currently being held at
Guantanamo Bay who "part of," or who provided "substantial support" to, al-Qaida or Taliban forces or "associated forces." This authority is derived from the
Authorization for Use of Military Force, 115 Stat. 224 (2001) (AUMF), which empowers the President to use all necessary and appropriate force to prosecute the war, in light of law-of-war principles that inform the understanding of what is
"necessary and appropriate."
The evidence here clearly supports the district court's decision that al-Bihani is properly detained as part ofthe enemy forces ofthe Taliban and al-Qaida. By his own admission, al-Bihani traveled to Afghanistan to fight onbehalfofthe Taliban (an organization that facilitated and harbored al-Qaida). His travel was facilitated by a series of individuals, including an acknowledged al-Qaida contact, and al-Bihani visited numerous guesthouses run by both Taliban and al-Qaida personnel. He then joined a brigade fighting in Afghanistan, was issued a rifle and was subject to the command structure ofthe unit (which included a prominent al-Qaida leader). Again by his own admission, al-Bihani provided cooking services to the unit, followed orders from his commanding officer, retreated with his unit (as ordered), and surrendered with his unit (also as ordered by his commanding officer). These
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undisputed facts are more than sufficient to support the district court's conclusion that al-Bihani is lawfully detained as part of the enemy forces.
Al-Bihani's attempt to isolate each separate activity (such as "being a guest,"
"cooking," and "fleeing"), and attempt to show that these acts alone are innocuous, is flawed. Each of the acts al-Bihani performed was part of a course of conduct in which al-Bihani traveled to Afghanistan to engage injihad,joined an enemy brigade, and provided services to the brigade on the front lines under the command of Al
Qaida and Taliban leaders.
2. a. Al-Bihani's assertion that he must be released because the "relevant conflict" in which he was captured - the war between the United States and the
Taliban-controlled government of Afghanistan - has ended and been replaced by a new conflict, is without merit. Not only does this argument require the suspension ofcommon sense in light ofthe ongoing combat operations against the Taliban and al-Qaida in Afghanistan, but the determination of whether a conflict has ended is a matter "ofpoliticaljudgment forwhichjudges have neithertechnical competence nor official responsibility." Ludecke v. Watkins, 335 U.S. 160, 170 (1948).
Al-Bihani's argument would require the release ofall Taliban fighters captured before the United States recognized the government ofHamad Karzai in Afghanistan, leaving them free to join the Taliban insurgency currently fighting U.S. and coalition
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forces in Afghanistan. However, the .laws of war focus on the cessation of
"hostilities," which continue in Afghanistan. Moreover, al-Bihani's argument would
fail because he was captured as part of the larger conflict against the joint forces of the Taliban and al-Qaida - a conflict that without question continues today.
b. AI-Bihani's contention that he must be released because the United States violated the laws of war by failing to treat him as a prisoner of war also is without merit, even assuming arguendo that he was entitled to prisoner-of-war treatment at the outset. The sole basis for this argument is a portion of Justice Souter's opinion dissenting in Hamdi v. Rums/eld, 542 U.S. 507 (2004). However, a majority of the
Court in Hamdi rejected the contention that the alleged failure to treat a detainee as a prisoner of war forecloses the ability to detain at all.
3. a. AI-Bihani's argument that the President's detention authority is limited to individuals who directly participate in hostilities is based upon the flawed premise that anyone who is not part of a nation's armed forces must be treated as a "civilian" who can be detained only when directly engaging in hostilities. But the laws ofwar permit the detention of all persons who are part of an enemy force, including non
state armed groups. In this case, al-Bihani was part of an organized fighting force, and he received and carried out orders from his unit's Taliban and al-Qaida command structure. Any contention that al-Bihani is a "civilian" therefore must be rejected.
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b. AI-Bihani's contention that detention is authorized only where the government can prove that he poses a future threat fares no better. First, the question whether a particular detainee poses a threat is notjusticiable. That question involves assessments ofnational security risks and military conditions that the judiciary is ill suited to address. Second, while the government in no way concedes that al-Bihani is not a threat, the authority to detain is not dependent upon a showing of future danger. The Supreme Court made clear in Hamdi that the detention of individuals is authorized for the duration of the conflict, and does not depend upon a judicial determination that the individual constitutes an ongoing or future threat.
4. AI-Bihani's procedural challenges also are without merit. The district court's procedural rulings comported with Hamdi's directive to take "prudent and incremental" steps in conducting factfinding on wartime detention, Hamdi, 542 U.S. at 539, while giving al-Bihani a full and fair opportunity to challenge his detention.
While al-Bihani challenges the district court's use ofa preponderance-of-the evidence standard, the Supreme Court has explicitly endorsed the use of a "credible evidence" or "preponderance ofevidence" standard in reviewing wartime detention,
Hamdi, 542 U.S. at 534, 538, 590. AI-Bihani's contention that the district court improperly shifted the burden of proof to him also is incorrect. In fact, the district court explicitly held that the government met its burden ofproof. JA 656.
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Al-Bihani's argument that the district court erred in admitting hearsay evidence is also foreclosed by Hamdi, which recognized (even for U.S. citizens) that the admission ofhearsay in these types ofproceedings is consistent with the Constitution.
542 U.S. at 533-34. The same is true with respect to al-Bihani's argument that the district court improperly presumed the reliability of government reports. Id. at 534.
Finally, the district court did not abuse its discretion in denying some of his discovery requests and in denying al-Bihani additional time to locate witnesses. The district court relied upon al-Bihani's own uncontradicted statements regarding his desire to engage injihad, travel to Afghanistan, his stay at Taliban and al-Qaida guesthouses, and his service in the 55 th Arab Brigade, to find that al-Bihani is lawfully detained. Thus, no amount of additional discovery could have changed the outcome, and, in any event, the failure to provide additional discovery did not amount to an abuse of discretion.
STANDARD OF REVIEW
This Court's reviews for clear error the district court's factual findings on habeas corpus review, affirming if the findings are "plausible in light of the record viewed in its entirety." Amadeo v. Zant, 486 U.S. 214,223 (1988); see also Anderson v. City ofBessemer City, 470 U.S. 564, 574-575 (1985) (clear error review applies regardless of whether factual findings are based on testimonial or documentary
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evidence); Fed. R. Civ. P. 52(a)(6). The district court's rulings on discovery are reviewed for abuse of discretion. See Al Odah v. United States, 559 F.3d 539, 544
(D.C. Cir. 2009) (noting district court's "broad discretion in its handling of discovery"). The district court's legal conclusions are reviewed de novo.
ARGUNIENT
I. THE DETENTION OF AL-BIHANI IS AUTHORIZED BY THE AUMF AND SUPPORTED BY THE EVIDENCE.
A. The President Has Authority, Consistent With the Laws of War, To Detain Enemy Forces During the Duration of Hostilities.
The AUMF authorizes the use of military force against those "nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations orpersons, in order to prevent any future acts ofinternational terrorism against the United States by such nations, organizations or persons." AUMF, § 2(a).
The President construes the AUMF to permit the detention of persons 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 ofsuch enemy armed forces." This current detention standard was set out in a March 13,2009 filing in this and other habeas proceedings, JA 147, and
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represents a refinement ofthe prior standard articulated bythe Department ofDefense in establishing administrative tribunals to review the status ofpersons held in military detention at Guantanamo.
The district court in this case adopted the original standard proposed by the government (as opposed to the modified standard), defining "enemy combatant" as
"an individual who was part ofor supporting Taliban or al-Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners.
This includes any person who has committed a belligerent act or has directly supported hostilities in aid ofenemy forces." JA 125 (quoting Boumediene v. Bush,
2008 WL 4722127, at *2 (D.D.C. Oct. 27, 2008)). As discussed below, however, although the district court applied the prior standard in upholding al-Bihani's detention as lawful, he is properly detained under the government's new, modified standard based on the district court's factual findings.
By explicitly authorizing the use of military force against "nations, organizations or persons" that were involved in any way in the September 11 attacks
(or that harbored those who were), Congress indisputably intended to empower the
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President to take action against al-Qaida and the Taliban. Indeed, the principal purpose ofthe AUMF is to eliminate the threat posed by those groupS.3
The authority conferred by the AUMF is informed by the laws of war. See
Hamdi, 542 U.S. at 521 (pluralityop.). With the power to wage war comes the power to detain enemy forces. In Hamdi, a majority of the Supreme Court held that the detention of enemy forces "for the duration of the particular conHict in which they were captured, is so fundamental and accepted an incident to war as to" come within the President's authority under the AUMF. Id. at 518 (plurality op.); see also id. at
587 (Thomas, J., dissenting). Enemy forces can be detained even if "they have not actually committed or attempted to commit any act of depredation or entered the theatre or zone ofactive military operations." Exparte Quirin, 317 U.S. 1,38 (1942).
3 The use of military force against a non-state armed force is consistent with historic practice in the United States. Congress has previously authorized the use of force against non-state actors, including slave traders and pirates, and U.S. military forces engaged military opponents with no connection to the enemy state in the Mexican-American War, the Civil War, and the Spanish-American War. See C. Bradley& J. Goldsmith, CongressionalAuthorization and the War on Terrorism, 118 Harv. L. Rev. 2047, 2066-2067 (2005) (collecting citations). Presidents also have used force against non-state actors outside of congressionally-authorized conHicts. See id. (noting use ofmilitary force in the Chinese Boxer Rebellion, against Mexican rebel leader Pancho Villa, and in the 1998 missile attacks against al-Qaida targets in Sudan and Afghanistan).
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Under the laws of war, nations lawfully can use military force in armed
conflicts against non-state armed groups such as al-Qaida. The United Nations
Charter recognizes the inherent right ofstates to use force in self-defense in response to any "armed attack," not just attacks that originate with states. Art. 51. The day
after the 9/11 attacks, the U.N. Security Council adopted Resolution 1368, which
affirmed the "inherent right of individual or collective self-defence in accordance
with the Charter" and determined "to combat by all means threats to international
peace and security caused by terrorist acts." U.N. General Assembly Security
Council Resolution of Sept. 12, 2001 (S/RES/1368); see also M. Schmitt, u.s.
Security Strategies: A LegalAssessment, 27 Harv. 1. L. & Pub. Pol'y 737,748 (2004)
(recognizing that Security Counsel Resolution 1368 "was by definition * * *
acknowledging the acceptability of using military force against terrorists under the law ofself-defense"). The North Atlantic Treaty Organization and the Organization of American States treated the 9/11 attacks as "armed attacks" for purposes oftheir collective self-defense provisions.4 The AUMF invokes this internationally
4 See Organization ofAmerican States, Meeting ofConsultation of Ministers of Foreign Affairs, Terrorist Threat to the Americas (Sept. 21, 2001), http://www.oas.org/OASpage/crisis/RC.24e.htm; Statement by North Atlantic Council (Sept. 12,2001), http://www.nato.int/docu/pr/2001/pOI-124e.htm; Statement by NATO Secretary General(Oct. 2, 2001), http://www.nato.int/docu/speech/200l/ sO 11 002a.htm.
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recognized right to self defense. See AUMF, Preamble (it is "both necessary and appropriate that the United States exercise its right to self-defense and to protect
United States citizens both at home and abroad").
Accordingly, the President has authority under the AUMF, as informed by the laws ofwar, to detain any individual who was part ofal-Qaida or Taliban forces, the principal organizations that fall within the AUMF's authorization of force. See
Gherebi v. Obama, 609 F. Supp.2d 43,68-69 (D.D.C. 2009); Hamlily v. Obama, 616
F. Supp.2d 63, 2009 WL 1393113, at *4-8 (D.D.C. May 19,2009). Moreover, the
AUMF does not limit the "organizations" it covers to al-Qaida and the Taliban. In
Afghanistan, many different private armed groups trained and fought alongside al-
Qaida and the Taliban. The United States' detention authority under the AUMF also extends to individuals who would be detainable in analogous circumstances in a traditional international armed conflict under principles of co-belligerency. See id. at *7.
B. The District Court Properly Held That The Evidence Is Sufficient To Conclude That al-Bihani Is Properly Detained.
The evidence in this case clearly shows that al-Bihani was part of Taliban or al-Qaida forces (or associated forces) fighting against the United States. By his own admission, Al-Bihani traveled to Afghanistan to fight on behalf of the Taliban - the
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organization that facilitated and harbored al-Qaida. JA 783, 909. His travel was facilitated by a series of individuals, including who al-
Bihani acknowledged is an al-Qaida contact. JA 781.
JA 932,936.
AI-Bihani thenjoined a brigade ofArab militants fighting in Afghanistan, side- by-side with the Taliban and al-Qaida. He was issued a rifle, which he carried with him until his surrender. JA 76-89. He was subject to the command structure ofthe
55 th Arab Brigade - a structure that included important Taliban and al-Qaida officers.
JA 952-53. Indeed, al-Bihani's own "expert" witness reported that aI-Iraqi, "a prominent leader of Al Qaida," led a unit of the Brigade. JA 1128.
787,905,946. He also admitted to performing guard duty. JA 787. Thus, he joined enemy forces, was subject to Taliban and al-Qaida command and control, and performed services to other front-line fighters (in compliance with the order of his commanding officer).
When the time came to retreat, al-Bihani took his rifle and left - again obeying the orde~ of his commanding_Officer_ JA 787-88. Following
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these orders, a1-Bihani retreated to the pre-arranged location in Konduz, remaining on~rder under the command Of_ JA 788. He surrendered as well, along with a force of 400-600 fighters. JA 788-89.
Thus, even without considering the compelling evidence ofa1-Bihani's militant training, (JA 787, 910-14), upon which the district court did not rely, the undisputed facts are more than sufficient to
support the district court's conclusion that a1-Bihani is lawfully detained under the
AUMF.
A1-Bihani attempts to isolate each specific activity (such as "being a guest,"
"cooking," and "fleeing"), and to show that each act, by itself, does not itselfestablish a basis for detention. See Pet. Br. 45-46. But a1-Bihani did not perform these acts in isolation. Each act followed another, and each was part of an overall course of conduct that clearly shows that a1-Bihani traveled to Afghanistan to fight for the
Ta1iban, became part of an enemy combat brigade, provided substantial (and essential) services to that brigade, and was subject to the brigade's command and control structure from the day he arrived until the day he surrendered.
Thus, a1-Bihani's assertion that "being a guest doesn't 'support' anything" (Pet.
Br. 45) overlooks the fact that staying at guesthouses affiliated with the Ta1iban and a1-Qaida on the way to the front lines is strong evidence that a1-Bihani was part of
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those armed organizations. By the same token, "cooking" in and of itself may seem innocuous, but cooking for a group of 150 fighters, while stationed at the front lines with a fighting unit and acting under orders from the unit's commanding officer, unequivocally demonstrates that al-Bihani was part ofthe enemy force. See Gherebi,
609 F. Supp. 2d at 69 & n.19 (noting that "members of the armed forces who, under different circumstances, would be 'fighters' may be assigned to non-combat roles at the time oftheir apprehension," including"housing,feeding, or transporting" fighters
(emphasis added)); Hamlily, 2009 WL 1393113, at *8.
Al-Bihani's attempt to explain away the retreat is equally fanciful. While al-
Bihani emphasizes the disorganized nature ofhis trek from the front lines to Konduz, he.overlooks the substantial evidence showing that the retreat was made on the order
that al-Bihani carried his Taliban-issued rifle with him, and that remnants ofthe group linked up in Konduz before surrendering as a unit. JA 787-88,
946. Al-Bihani's description ofthe link-up in Konduz as a "chance meeting" (Br. 46) is creative at best. The plan - set by_- was to reassemble in Konduz (JA 787), and that is precisely what happened. And, the surrender itself, far from being an individual act, was carried out on the orders of al-Bihani's commanding officer, and included between 400 and 600 surrendering troops. JA 788-89.
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AI-Bihani chides the district court for failing to make a specific "post-October
7 cooking finding" (Pet. Br. 46), and thus for improperly inferring that al-Bihani cooked for the 55 th Brigade after U.S. forces joined the fight. But such an inference
- though certainly permissible as a matter ofcommon sense - was unnecessary. The evidence plainly shows that al-Bihani himselfsaid that he worked in the kitchen until his unit retreated. JA 717; see JA 905
In any event, there is no question that al-Bihani, who was part ofthe 55 th Arab
Brigade, remained with his unit (and under its command structure) up until the time retreat was ordered (after the United States began bombing). Even if one refuses to draw the obvious inference that al-Bihani was performing some activity while remaining with his combat unit prior to the order to retreat, the fact remains that he was part of the enemy forces and carried a weapon for them after U.S. involvement in the conflict in Afghanistan.
AI-Bihani's contention that the 55th Brigade did not "undertake terrorist acts"
(Br. 45-46) is beside the point. The Brigade to which al-Bihani belonged was unquestionably an armed enemy force: it supported the Taliban, was affiliated with al-Qaida to the point of including al-Qaida commanders within its ranks, fought
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alongside the Taliban against the Northern Alliance, and retreated from U.S. bombing.
AI-Bihani claims (Br. 33) that "the bulk" ofthe 55th Arab Brigade's members
"were neither Taliban nor al Qaeda" and that "few if any 55th members were aware of al Qaeda or its specific operations." AI-Bihani acknowledges, however, that the
55th Arab Brigade militarily "supported the Taliban against the Northern Alliance" and "was focused on its mission to fight frontal military operations against the
Northern Alliance." Id. As noted above, the President's detention authority under the AUMF extends to persons who ''were part of ... Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners." Under AI-Bihani's own recitation of the facts, the 55th Arab
Brigade is a co-belligerent of the Taliban. As such, the Brigade is an "associated force," and thus any individuals-including al-Bihani-who were part ofthe Brigade are lawfully detainable under the AUMF. See Hamlily, at *7 (finding "the government's detention authority also reaches those who were members of
'associated forces' and construing 'associated forces' "to mean 'co-belligerents' as that term is understood under the laws of war"); see also Parry & Grant,
Encyclopaedic Dictionary of International Law 84 (2d ed. 2004) (defining co belligerents as states "engaged in a conflict with a common enemy, whether in
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alliance with each other or not"); 2 Oppenheim's International Law: A Treatise § 77
& n.l (7th ed. 1952) (defining term "principal belligerents" to include "those parties to a war who wage it ... by virtue of having become party to the war irrespective of a treaty ofalliance," and noting that "co-belligerents" are not necessarily allies, "for they may be merely associated with one another for the purpose ofthe war"); Bradley
& Goldsmith, supra, 118 Harv. L. Rev. at 2112 (stating that "[t]he international law concepts of neutrality and co-belligerency ... confirm that the 'enemy' in an armed conflict can include the enemy's affiliates").
Lacking a reasonable basis upon which to claim that he was not part of an enemy force, al-Bihani seeks instead to disavow many of his own statements concerning his activities. He asserts that his statements should all be disregarded, claiming that he provided false information in order to receive medical attention.
However, al-Bihani has never denied traveling to Afghanistan for the purposes of fighting in jihad, taking orders from the commanders of the 55 th Arab Brigade, carrying a Taliban-issued rifle, cooking for the troops, retreating upon orders from his commander, and surrendering with his brigade. Those actions are manifestly sufficient to warrant al-Bihani's detention.
Moreover, as the district court found (JA 657-58), al-Bihani's claim that he fabricated his story to obtain medical care is not credible and is contrary to the
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evidence. That finding offact is not clearly erroneous, since medical care was readily available independent ofthe interrogation process (with medical staffat Guantanamo independently making daily rounds). JA 645-46. Moreover, although the district court did not rely on al-Bihani's extensive training, al-Bihani's disavowal of his earlier statements admitting training rings hollow
See JA 872-73, 910, 913-14, 922.
II. THE DETENTION OF AL-BIHANI IS CONSISTENT WITH THE LAWS OF WAR.
AI-Bihani argues that, even ifhe was properly captured as part of the enemy forces, his continued detention violates the laws of war. He posits that he must be repatriated because the particular conflict in which he was captured has ended, and because the government did not properly adjudicate his status as a prisoner of war.
Both of these arguments are without merit.
A. The Conflict In Which AI-Bihani Was Captured Has Not Ended.
There is no serious dispute that substantial numbers ofU.S. combat troops are in Afghanistan, engaged in combat operations against both the Taliban and al-Qaida.
See Statement by the President on Afghanistan, Feb. 17, 2009, available at http://www.whitehouse.gov/the press office/Statement-by-the-President-on-
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Afghanistan. Indeed, U.S. forces in Afghanistan recently have been increased. See
President's Plan Signals US. Commitment to Bolster Afghan Security, March 31,
2009, http://www.defenselink.mil/news/news/newsarticle.aspx?id=53721. While the
Taliban fled from the battlefield under fire from U.S. and Coalition forces, both the
Taliban and al-Qaida still operate in Afghanistan, and continue to attack U.S. troops.
See JA 674 (although the U.S. military-led campaign "removed the Taliban from control of Afghanistan's national government ... Taliban and al Qaida forces, however, have continued to operate in Afghanistan and attack coalition forces").
AI-Bihani nevertheless insists that, even ifhe was properly detained as part of the enemy forces, he must be repatriated because the "relevant conflict" in which he was captured ended long ago - perhaps "as early as December 200 1," but in any event no later than May 2005, when the United States recognized the Karzai government in Afghanistan. See Pet. Br. 27-28. According to al-Bihani, he was captured as part of an international conflict between two sovereign governments: the United States and the Government of Afghanistan (then controlled by the Ta1iban). Once the
United States recognized the new Afghan Government, he claims, the international conflict ended. The ongoing hostilities, al-Bihani explains, are a new war - one involving not the Government of Afghanistan but a "neo-Taliban successor insurgency" (Pet. Br. 27).
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AI-Bihani's argument rests upon a fundamentally flawed analysis. Regardless of whether the nature of the conflict changed, the time at which hostilities are at an end is a matter for the political branches and not the courts. The Supreme Court made that clear in Ludecke v. Watkins, 335 U.S. 160 (1948). In that case, the Court held that the President retained the war power to deport enemy aliens notwithstanding the surrender of Germany in World War II, because the President had determined that a state ofwar still existed. Noting that the law does not "lag behind common sense," the Court recognized that war does not necessarily end with a cease-fire order; rather, war "may be terminated by treaty or legislation or Presidential proclamation.
Whatever the modes, its termination is a political act." Id. at 168-69.
And that "political act" is not subject to judicial assessment: "[w]hether and when it would be open to this Court to find that a war though merely formally kept alive had in fact ended, is a question too fraught with gravity to be adequately formulated when not compelled." Id. at 169. The court concluded: "It is not for us to question a belief by the President that enemy aliens who were justifiably deemed fit subjects for internment during active hostilities do not lose their potency for mischief during the period of confusion and conflict which is characteristic in of a state of war even when the guns are silent but the peace of Peace has not come.
These are matters of political judgment for which judges have neither technical
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competence nor official responsibility." [d. at 170; cf The Three Friends, 166 U.S.
1, 63 (1897) ("But it belongs to the political department to determine when belligerency shall be recognized, and its action must be accepted to the terms of the intention expressed."); The Prize Cases, 67U.S. (2 Black) 635, 670 (1862) ("Whether the President ... has met with such armed hostile resistence, and a civil war of such alarming proportions as will compel him to accord them the character ofbelligerents, is a question to be decided by him, and this Court must be governed by the decisions and acts ofthe political department."); see also Schneider v. Kissinger, 412 F.3d 190
(D.C. Cir. 2005); Sanchez Espinoza v. Reagan, 770 F.2d 202,210 (D.C. Cir. 1985)
(claim by members ofCongress that they were deprived ofthe right to participate in the decision to declare war presented a nonjusticiable political question).
Al-Bihani's reliance on United States v. Prosperi, 573 F. Supp. 2d 436 (D.
Mass. 2008), is misplaced. That case involved the interpretation of a statute suspending the criminal statute oflimitations when the United States is "at war" - a determination that involved an analysis of congressional intent with respect to the specific statute at issue. See id. at 448-49. Determining that hostilities have ceased to the extent that the government can refocus its resources on domestic enforcement of the criminal law (thus triggering the statute of limitations) is far different from determining (as petitioner asks here) that hostilities have ceased to the extent that
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enemy prisoners must be released. The latter question directly implicates U.S. military operations and the safety of United States troops abroad, and, under controlling circuit precedent, is one for the political departments and not the courts.
Although the plaintiffs in Ludecke posited that the war ended when the shooting stopped (despite the ongoing instability in the region), al-Bihani here takes the opposite tack, asserting that the war ended even though the shooting continues.
However, the political and military judgments involved in a case of open hostilities require even more deference. Indeed, al-Bihani's logic would require the repatriation of all Taliban fighters captured before the installation of the new regime in
Afghanistan, because the "relevant conflict" in which they were captured has ended.
These fighters would now be free, in al-Bihani's view, to join the "neo-Taliban successor insurgency" (Pet. Br. 27) currently fighting against U.S. troops in
Afghanistan. The law does not "lag behind common sense," Ludecke, 335 U.S. at
167, and the district court properly rejected al-Bihani's argument.
Moreover, the record demonstrates that al-Bihani did not simply participate in a war between the United States and the country of Afghanistan. Rather, al-Bihani was a fighter in the 55 th Arab Brigade, a unit that fought alongside both the Taliban and al-Qaida, under a command structure that included important al-Qaida commanders. JA 830-31,952-53. The "relevant conflict" here is the conflict against
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the joint forces of al-Qaida, the Taliban, and associated forces, and hostilities in that conflict continue.
War, by its nature, is unpredictable, and the nature of hostilities can and do change dramatically in the course of any conflict. The Geneva Conventions thus speak in terms of "the cessation of hostilities," and do not rest on formalities. See
Geneva Convention (III) Relative to the Treatment of Prisoners of War, Art. 118,
Aug. 12, 1949, [1955], 6 U.S.T. 3316,3406 ("[p]risoners ofwar shall be released and repatriated without delay after the cessation of hostilities").
The Hamdi Court, too, was careful not to rely upon a formalistic definition of the end ofthe "relevant conflict." Long after the supposed defeat ofthe Taliban and the recognition of a Transitional Government in Afghanistan (in June 2003), the
Hamdi Court noted that "[a]ctive combat operations against Taliban fighters apparently are ongoing in Afghanistan," and held that "[t]he United States may detain, for the duration of these hostilities, individuals legitimately determined to be
Taliban combatants ...." 542 U.S. at 521 (emphasis added). The Court concluded:
"Ifthe record establishes that United States troops are still involved in active combat
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in Afghanistan, those detentions are part ofthe exercise of'necessaryand appropriate force,' and therefore are authorized by the AUMF." Id. 5
AI-Bihani's attempt to find the requisite "political act" in the President's statement recognizing Hamad Karzai as the President ofAfghanistan (Pet. Bt. 27-28) is mistaken. As al-Bihani recognizes, far from declaring an end to hostilities, the
President indicated that U.S. troops would continue to fight to defeat the Taliban.
Pet. Br. 27-28. More recently, President Obama has stated that "[t]he Taliban is resurgent in Afghanistan, and al Qaeda supports the insurgency and threatens
America ..." Statement afthe President an Afghanistan, supra.
There is no question that U.S. troops are still in active combat in Afghanistan.
AI-Bihani's dangerous argument that the initial conflict ended and was replaced by a new war, is wrong as a matter oflaw, raises a matter that cannot be decided by the courts, and, if accepted, could require the repatriation of numerous prisoners who undoubtedly would join the resurgent Taliban and al-Qaida insurgencies.
Accordingly, this Court should affirm the district court's rejection ofthe argument.
5 AI-Bihani's contention (Br. 28) that Hamdi can be ignored because the court did not address the definition of the "relevant conflict" is unavailing. In fact, the Hamdi Court began the discussion quoted above by stating that Congress had granted authority to detain "for the duration ofthe relevant conflict." 542 U.S. at 521.
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B. The United States is Not Foreclosed From Invoking The Laws Of War To Detain AI-Bihani.
Al-Bihani next posits that the U.S. lacks detention authority because it is
"foreclosed" from invoking the laws of war. Relying solely upon the opinion of
Justice Souter in Hamdi, al-Bihani incorrectly asserts that the government has
violated the laws of war by failing to treat him as a prisoner of war, and that this violation precludes any ability to detain him even ifhe was part ofthe enemy forces.
See Pet. Br. 30-35.
Al-Bihani's argument overlooks the fact that Justice Souter's opinion garnered
only one vote. Moreover, on this point Justice Souter was not "concurring," as al-
Bihani represents. The Hamdi plurality held that detention is appropriate if the
detainee meets the definition of an enemy combatant. 542 U.S. at 521-23. Justice
Thomas agreed (although he would have held that the Court must accept the
government's judgment that Hamdi was an enemy combatant). See id. at 529
(Thomas, J. dissenting). Justice Souter, however, dissented from the majority view
on this point. See id. at 541 (Souter, J., concurring in part, dissenting in part and concurring in the judgment) ("the plurality does, however, accept the Government's position that ifHamdi's designation as an enemy combatant is correct, his detention
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(at least as to some period) is authorized by [the AUMF]. Here, I disagree and respectfully dissent.") (emphasis added).
Thus, even assuming arguendo that al-Bihani was entitled to prisoner-of-war treatment, the premise that the failure to treat an alleged al-Qaida or Taliban fighter as a prisoner of war forecloses the government's authority to detain that individual was rejected by majority of the Court in Hamdi. AI-Bihani's argument fails on that basis alone. The alleged "failure" to treat Hamdi as a prisoner of war, even though he was "taken bearing arms on the Taliban side of the field of battle," id. at 549
(Souter, J) had no bearing on the ability to detain him.
Moreover, the notion that the failure to treat a prisoner appropriately under the
Geneva Conventions forecloses any ability to detain enemy forces under the laws of war is wrong. The laws ofwar allow the detention ofboth lawful combatants entitled to prisoner-or-war status and unlawful combatants who are not entitled to such status.
See Quirin, 317 U.S. at 31. Because the proper treatment of the detainee is not a condition precedent to the underlying authority to detain, an allegation of improper treatment has no bearing on the authority to detain. See Bradley & Goldsmith, supra,
118 Harv. L. Rev. at 1094-95. Just as an allegation of incorrect prisoner status was insufficient to compel release in Hamdi,al-Bihani's allegation that he should have been accorded prisoner-of-war status does not foreclose his detention altogether.
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Finally, al-Bihani's claim that he was a "civilian" entitled to prisoner of war
status is flawed. While cooking is an activity that civilians can perform for troops,
that fact alone does not transform al-Bihani into a civilian "contractor" (Pet. Bt. 32).
As discussed above (pp. 25-29, supra), al-Bihani was unequivocally part of the 55 th
Arab Brigade, subject to its command structure and performing tasks (in this case
cooking and related activities) as assigned by the Brigade commander. Thus, even
if one discounts al-Bihani's additional acts - performing guard duty, carrying a
Taliban-issued rifle, and receiving militant training - the evidence plainly shows that
al-Bihani was part of the unit and not simply a civilian cook.
In any event, we note that the Third Geneva Convention explicitly
contemplates detention ofpersons "who accompany the armed forces without actually
being members thereof," including "civilian members of military aircraft crews,"
"supply contractors," and "members oflabour units or ofservices responsible for the
welfare of the armed forces." GC III, art. 4(A)(4). As the International Committee
of the Red Cross's Commentary on Article 4(A)(4) explains, the addition to this
provision in the 1949 treaty was intended to encompass certain "classes of persons
who were more or less part of the armed force" without being formal members
thereof. Int'l Comm. of the Red Cross, Commentary on Third Geneva Convention
64 (Pictet, ed. 1960); see also, e.g., W. Winthrop, Military Law and Precedents 789
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(2d ed. 1920) (contemplating detention of"civil persons engaged in military duty or in immediate connection with an army, such as clerks, telegraphists, aeronauts, teamsters, laborers, messengers, guides, scouts, and men employed on transports and
military railways"). Accordingly, even if al-Bihani was a civilian "contractor" who was not part of enemy forces, he accompanied those forces on the battlefield and performed services (e.g., cooking, guard duty) that furthered the welfare of those forces, which correspond to activities contemplated by the Article 4(A)(4) of the
Third Geneva Convention.
III. AL-BIHANI'S CONTENTION THAT HE CANNOT BE DETAINED EVEN IF HE WAS PART OF THE ENEMY FORCES IS INCORRECT.
A. The Government's Detention Authority Is Not Limited To Individuals Who "Directly Participate" In Hostilities.
AI-Bihani asserts (Br. 37-38) that an individual such as him, "who takes up arms as part of a volunteer militia," must be treated as a civilian who can be detained only on the basis of "direct participation" in hostilities. As every court to consider this argument has agreed, however, the AUNIF and the laws of war do not limit the
United States' detention authority to the narrow category of individuals who are direct participants in hostilities. Gherebi, 609 F. Supp. 2d at 65 (argument "gets things exactly backwards"); Hamlily, 2009 WL 1393113, at *5 (characterizing argument as "flawed"); JA 5519-5525,2767-2768.
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Al-Bihani's argument is based upon the incorrect assumption that detention is warranted only for individuals who fall within one of two categories defined in the
Geneva Conventions: (1) a combatant who is a "member of the armed forces of a
Party to a conflict" (Protocol I, Art. 43.2); and (2) a "civilian" who can be attacked or detained only when directly engaging in hostilities. Pet. Br. 37-38. This false dichotomy means that any private force, no matter how organized, may not be captured if that force retreats instead of fighting.
The plain text of the AUMF - which authorizes military action against the
"organizations" and "persons" that "planned, authorized, committed, or aided" the
9/11 attacks - defeats al-Bihani's argument that only those individuals directly participating in hostilities may be detained. The laws of war also recognize that military action may be taken against all persons who are part of armed groups.
Common Article 3 of the Geneva Conventions provides standards for the treatment ofpersons who are part ofarmed forces in non-international armed conflict and have been rendered hors de combat by detention. Those provisions presuppose that states engaged in a conflict with a non-state armed group can detain individuals who are part of the group. Likewise, the Additional Protocol to the Geneva Conventions of
12 Aug. 1949, and relating to the Protection ofVictims ofNon-International Armed
Conflicts, 8 June 1977, expressly applies to "other organized armed groups"
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participating in certain non-international armed conflicts, distinguishing those forces from the civilian population. Arts. 1(1), 13. The Commentary to that Protocol explains that "[t]hose who belong to armed forces or armed groups may be attacked at any time." Int'l Comm. of the Red Cross, Commentary on the Additional
Protocols of 8 June 1977 to the Geneva Conventions of 12 Aug. 1949, at 1453
(Sandoz, et ai., eds. 1987) (Commentary on Additional Protocols) (emphasis added).
Al-Bihani relies on the Third Geneva Convention and the Additional Protocol to the Geneva Conventions of 12 August 1949 and Relating to the Protection of
Victims of International Armed Conflicts, June 8, 1977, but those sources merely require that individuals be treated humanely and afforded the protections given to prisoners of war. They do not purport to define the outer limits of the President's detention authority. See, e.g., Gherebi, 609 F. Supp. 2d at 65-66; Hamliiy 2009 WL
1393113, at *6.
Under al-Bihani's argument, the President would have no authority under the
AUMF and the laws of war to detain members of al-Qaida or the Taliban captured away from the battlefield. Iftaken literally, his argument would seem to prohibit the detention ofhigh-level al-Qaida leaders including bin Laden, so long as those leaders were not fighting at the time oftheir capture. This Court should decline al-Bihani's invitation to apply narrowly the rules governing humane treatment and prisoner-of-
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war status to define the outer limits of a state's detention authority - an approach that would "cripple" the President's "capability to effectively combat" al Qaeda and
Taliban forces, Gherebi, 609 F. Supp.3d at 66. Petitioner's approach also would give private forces an incentive to camouflage themselves as civilians, thereby posing an even greater threat to the communities from which they launch attacks against U.S. and allied forces. Cf ICRC, Commentary on Additional Protocols of 8 June 1977 to the Geneva Conventions of12 August 1949 and Relating to the Protection ofVictims ofIntemational Armed Conflicts, ~ 1944 (recognizing that "members ofarmed forces feigning civilian non-combatant status are guilty ofperfidy").
Although al-Bihani claims that he was "neither a member of al-Qaida nor the
Taliban" (Br. 43), the fact remains that he was part of a brigade commanded by leaders of both of those organizations. As such, al-Bihani received and carried out orders from the brigade's al-Qaida and Taliban command structure. In these circumstances, the contention that al-Bihani was a "civilian" who could not be detained until he personally fired his weapon at U.S. troops must be rejected.
B. Detention Under The Laws Of War Does Not Depend Upon Whether An Individual Is A Future Threat.
Al-Bihani contends that the district court applied an incorrect standard for determining whetherhe could be detained because the court did not require a showing
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or make a finding that he constitutes a future threat. This contention is incorrect.
Case law as well as the laws of war recognize that detainees may be held for the duration of the conflict, without judicial second-guessing as to whether a given individual remains a threat to return to the battlefield.
1. At the outset, we note that the government in no way concedes that al
Bihani does not present a threat to return to the battlefield. Although al-Bihani has said that he would not participate injihad ifhe were released, JA 899,
JA 824-25.
JA 868-69.
AI-Bihani's assertion (Br. 29) that the district court "agreed" that the government had not proven that al-Bihani "harbored a future intent to participate in
Jihadist activities" is misleading. The district court merely acknowledged that the government was "not trying to prove" that al-Bihani would return to the battlefield.
See JA 522-23. That is not surprising, since proof of a future threat is not required.
Ofcourse, the government has no interest in continuing the burden ofholding detainees who no longer pose a threat. President Obama has, by Executive Order,
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established a task force that is reviewing the files of all Guantanamo detainees to determine whether they can be released or transferred because they no longer pose a threat in the view of the Executive. As discussed below, however, the government's detention authority continues to the conclusion of hostilities, and the determination whether a particular individual remains a threat to return to the battlefield is one for the Executive and not the courts.
2. AI-Bihani's contention that the authority to detain requires proofofa future threat is wrong for two reasons.
First, al-Bihani's argument would place the courts in the position of second guessing a decision that is unquestionably committed to the President's unreviewable discretion. The Department of Defense, though its Administrative Review Board
(ARB) process, determined that al-Bihani remains a threat, and a task force created by the President is reviewing the files ofall Guantanamo detainees to make a similar determination. Those decisions, which involve assessments ofnational security risk levels as well as current military conditions, are matters within Executive discretion that the judiciary is ill-suited to address. See People's Mojahedin Or. OfIran v.
Department of State, 182 F.3d 17,23 (D.C. Cir. 1999) (determination by the
Secretary ofState that "the terrorist activity ofthe organization threatens the security of United States nationals or the national security of the United States" was
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"nonjusticiable"). As the Supreme Court held in Ludecke, analyzing a detainee's
"potency for mischief' is a matter "of political judgment for which judges have neither technical competence nor official responsibility." 335 U.S. at 170.
In short, there simply would be "no judicially discoverable and manageable standards" for resolving the propriety of the Executive's decision to continue to detain enemy forces. See Baker v. Carr, 369 U.S. 186,217 (1962); Nat 'I Fed'n of
Fed. Employees v. United States, 905 F.2d 400, 406 (D.C. Cir. 1990) (federal judiciary is "ill-equipped" to second-guess decisions concerning closure and realignment of military bases because those decisions involve "the Secretary's assessment ofthe nation's military force structure and the military value ofthe bases within that structure"); see also Gonzalez Vera v. Kissinger, 449 F.3d 1260, 1263-64
(D.C. Cir. 2006) (holding that claims seeking damages for alleged acts supporting a foreign coup d'etat are nonjusticiable); Schneider v. Kissinger, 412 F.3d at 411-16
(claims against former National Security Advisor for alleged role in facilitating
Chilean coup involve foreign policy decisions and present a nonjusticiable political question); Sanchez Espinoza, 770 F.2d at 21 0 (decision regarding foreign intervention presents a political question).
Al-Bihani's assertion (Pet. Br. 44) that "the Government claims the purpose of this detention is 'intelligence-gathering'" is misleading. Al-Bihani cites to a
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government briefasserting that detainees do not have a right to suppress intelligence gathering. JA 92-93. Nothing in that filing purports to assert that the sole purpose of detention is to gather intelligence. Indeed, in the same filing the government asserted that the notion that fighters such as al-Bihani "no longer pose a threat to U.S. troops is contrary to the United States experience in the conflict." JA 91-92.
Second, as discussed above, the Hamdi plurality made clear that the detention of individuals fighting on behalf of the Taliban "for the duration of the conflict in which they were captured, is so fundamental and accepted an incident ofwar as to be an exercise" ofthe "necessary and appropriate" force authorized by the AUMF. 542
U.S. at 518. The AUMF "includes the authority to detain for the duration of the relevant conflict, and ... is based on longstanding law-of-war principles." Id. at 521.
The Geneva Conventions support this view. The Third Convention provides for the release and repatriation of prisoners "without delay after the cessation of hostilities," without making a provision for an ongoing threat assessment. Geneva
Convention (III) Relative to the Treatment of Prisoners of War, Art. 118, Aug. 12,
1949, [1955],6 U.S.T. 3316, 3406 (emphasis added); see also Hague Convention (II) on Laws and Customs ofWar on Land, Art, 20, July 29, 1899,32 Stat. 1817 (release as soon as possible after "conclusion of peace"); Hague Convention (IV), Art. 20,
Oct. 18, 1907 (same); Geneva Convention, Art. 75, July 29, 1929,47 Stat. 2055
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(same); Paust, Judicial Power to Determine the Status and Rights of Persons
Detained Without Trial, 44 Harv. Int'l L. J. 503,510-11 (2003) (prisoners ofwar "can be detained during an armed conflict, but the detaining country must release and repatriate them 'without delay after the cessation of active hostilities"') (quoted in
Hamdi, 524 U.S. at 520-21). Indeed, the Geneva Conventions provide for the mandatory release of prisoners of war prior to the end of the conflict only in very limited circumstances (generally for medical reasons) that are not applicable here.
Third Geneva Convention, Art. 110.
When the Conventions impose an ongoing requirement to evaluate whether continued detention is necessary, they have done so explicitly. Thus, the Geneva
Conventions provide for periodic review (where possible) of the need to detain certain civilian security internees to ensure that imperative reasons ofsecurity justify their detention. Geneva Convention (IV) Relative to the Protection of Civilian
Persons in Time of War, Art. 78, Aug. 12, 1949, [1956], 6 U.S.T. 3516 ("If the
Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment, which decisions "shall be subject to periodical review, ifpossible every six months, by a competent body set up by the said Power"); see also Army Regulation 190-8, § 5-1 (g)(2) (providing for 6-month review to
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determine whether continued internment of a civilian "is essential to the security of the U.S. Armed Forces").
AI-Bihani cites the observation of the Hamdi plurality that "the purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again," 542 U.S. at 518. As discussed above, the question whether that purpose has been served requires an assessment that is within the sole province of the Executive. Thus, Hamdi court, while using the above quote to explain how wartime detention of enemy forces differs from punitive detention, specifically authorized detention "for the duration ofthe particular conflict" in which the individual was captured, based not upon an individualized assessment ofpresent risk, but upon whether the individual was 'part ofor supporting forces hostile to the
United States ... and ... engage in armed conflict against the United States." Id. at
516, 518. Indeed, to support preventive detention to "prevent captured individuals from taking up arms once again," id. At 518-19, the Hamdi Court cited a World War
II case in which detention was held lawful in spite ofthe fact that the detainee claims that he had been "impressed against his will" and subsequently promised "to work on behalf ofthe United States" and to "aid the United States to the best of my ability."
In re Territo, 156 F.2d 142,146 nA (9th Cir. 1946).
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In Basardh v. Obama, 2009 WL 1033193 (D.D.C. 2009), appeal pending, No.
09-5200 (D.C. Cir.), the district court held that, under the unique facts presented there, the United States could not detain Basardh absent a showing that he posed a future threat. That case is readily distinguishable, however, since the district court in
Basardh found that the detainee had demonstrated that he could not possibly return to the battlefield because AI-Qaida had deemed him a traitor who would be killed upon his return. Id. There is no such an argument in regard to al-Bihani in this case.
In any event, for the reasons discussed above, Basardh was wrongly decided.
The court in Basardh noted that the AUMF states that the President is authorized to use necessary and appropriate force "in order to prevent any future acts ofterrorism against the United States ...." AUMF, § 2(a). That provision, however, does not establish that Congress intended to limit the scope ofmilitary detention or to provide judicial review ofthe military's decision that a particular detainee is likely to return to the battlefield. Indeed, the plurality in Hamdi interpreted the very same provision and recognized that "necessary and appropriate force" permits the detention ofenemy troops for the duration of the conflict. 542 U.S. at 518. The ultimate aim of the military action is - as in most military actions - to make the Nation safe from attacks now and in the future. But that common-sense recognition by Congress in no way limits the "necessary and appropriate" force authorized in the AUMF - force that
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includes the power to detain belligerents for the duration ofthe conflict. AI-Bihani's argument therefore must be rejected.
IV. AL-BIHANI'S PROCEDURAL ARGUMENTS ARE WITHOUT MERIT.
In Hamdi, the Supreme Court established a framework, which it found constitutionally permissible, for adjudicating statutory habeas claims brought by citizens in the context of military detention. The Court noted that "the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting," and held that "our due process assessment must pay keen attention to the particular burdens faced by the
Executive in the context ofmilitary action ...." 542 U.S. at 535, 536. The Court therefore stressed that any "factfinding process" must be "prudent and incremental."
Id. at 539.
Hamdi therefore held that citizens subject to military detention are entitled to the "core" protections that constitute the "minimum requirements ofdue process" in this context. Id. at 535. The detainee "must receive notice ofthe factual basis for his classification," must "have a fair opportunity to rebut the Government's factual assertions," and is entitled to a hearing "before a neutral decisionmaker." Id. at 533.
Significantly, the Court held that "[a]t the same time, the exigencies of the situation
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may demand, that, aside from these core elements, enemy-combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict." Id.
The Hamdi Court therefore endorsed a "burden shifting scheme" under which the Government has the initial burden to "put[] forth credible evidence that the habeas petitioner meets the enemy combatant criteria." Id. at 534. The burden would then
"shift to the petitioner to rebut the evidence with more persuasive evidence that he falls outside the criteria." Id.
The framework deemed constitutionally permissible for citizens in Hamdi is a fortiori sufficient for aliens captured and detained in wartime under similar circumstances. As the Supreme Court recognized in Boumediene (while declining to opine on the specific procedures that are constitutionally required), "it does not follow that a habeas corpus court may disregard the dangers the detention in these cases was intended to prevent," and "certain accommodations can be made to reduce the burden ... on the military." 128 S. Ct. at 2276.
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AI-Bihani nevertheless raises a number ofprocedural challenges to the district court's decision, arguing (Br. 47) that his habeas proceedings were "constitutionally deficient."6 AI-Bihani's procedural arguments are without merit.
1. First, al-Bihani asserts that the district court erred III adopting a preponderance of evidence standard for his habeas proceeding. Relying on criminal cases and cases involving civil detention outside the military context, al-Bihani argues that he cannot be subject to military detention absent proof beyond a reasonable doubt, or at the very least by "clear and convincing evidence." Br.48.
AI-Bihani's contention is squarely foreclosed by Hamdi. A majority of the
Court in Hamdi agreed that the Constitution was satisfied by proceedings in which the government presented "credible evidence that the habeas petitioner meets the enemy-combatant criteria." Id. at 534 (plurality op.); see also id. at 590 (Thomas, J., dissenting) (reasoning that no process beyond "good-faith executive determination" is required). Hamdi also suggested that the Constitution would be satisfied by permitting a U.S. citizen to challenge his detention as an enemy combatant in a status determination hearing under Army Regulation 190-8, see id. at 538, 590, which
6 In Kiyemba, 555 at 1026-27, this Court held that aliens detained at Guantanamo do not have constitutional due process rights. However, this Court need not address this issue, since the procedures used by the district court are clearly consistent with the constituti0iliiiiliilii'mdi.
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specifically provides for application ofa "preponderance ofevidence" standard. Ch.
1, § l-6(e)(9) (l997V The Hamdi Court thus rejected the imposition ofa "process
[that] would approach the process that accompanies a criminal trial." 542 U.S. at 528.
Moreover, the Supreme Court in Boumediene held that "[h]abeas corpus proceedings need not resemble a criminal trial, even when the detention is by executive order."
128 S. Ct. at 2269.
Other law-of-war sources also belie the claim to a heightened standard ofproof.
Article 5 of the Third Geneva Convention, for example, provides for a hearing on a detainee's status only if there is "doubt" as to his entitlement to be treated as a prisoner ofwar. Furthermore, Article 5 requires only that a "competenttribunal," and not a court, make this determination. The Commentary to Article 5 explains that it is intended to ensure "that decisions which might have the gravest consequences should not be left to a single person, who might often be ofsubordinate rank." ICRC,
Commentary III, Geneva Convention Relative to the Treatment ofPrisoners ofWar
7 Army Regulation 190-8 implements Article 5 of the Third Geneva Convention, which requires that a "competent tribunal" determine the status of an individual for whom there is "doubt" about his entitlement to be treated as a prisoner of war. Like the United States, Canada has implemented Article 5 through regulations that apply a "balance ofprobabilities" standard to decide status. See Y. Naqvi, Doubtful Prisoner of War Status, 84 RICR 571, 588-589 & n.88 (2002) (citing Art. l3(g), Prisoner-of-War Status Determination Regulations, SOR/9l-134, Department of Justice canada,~
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77 (J. Pictet & J. de Preux eds. 1960) (emphases added). The Geneva Convention's endorsement ofa military tribunal suggests strongly that no determination under the demanding standard applied in criminal prosecutions is necessary.
Al-Bihani's related contention that the district court improperly shifted the burden of proof to him is belied by the record. Far from shifting the burden to al
Bihani, the district court held that "the Government has met its burden under the Case
Management Order ..." JA 656. Al-Bihani's argument to the contrary is based upon the fact that the district court asked his counsel questions about whether he had submitted certain evidence. See JA 433, 460-62, 473. Plainly, a question to counsel during the proceedings is not a binding ruling on the burden of proof (or any other issue, for that matter). Moreover, in light ofthe "burden shifting scheme" expressly endorsed in Hamdi, 542 U.S. at 534, the district court's questions were entirely appropriate.
Al-Bihani also contends that the court erred in drawing inferences from the evidence. But al-Bihani cites no authority - and we are aware ofnone - holding that reasonable inferences are forbidden. Even in criminal cases governed by the
"reasonable doubt" standard, the factfinder may draw reasonable inferences from the evidence. See United States v. Richardson, 167 F.3d 621, 625 (D.C. Cir. 1991) (the jury's verdict is reviewed by drawing "all reasonable inferences" in its favor).
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2. AI-Bihani's complaint (Br. 51-52) regarding the admission of hearsay evidence fares no better. The plurality in Hamdi, after recognizing that habeas proceedings in the context of wartime detention must take into account "the exigencies of the circumstances" and be "tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict," held that
"[h]earsay, for example, may need to be accepted as the most reliable available evidence from the Government in such a proceeding." 542 U.S. at 533-34.
3. Likewise, al-Bihani's argument that the district court incorrectly assumed the reliability ofgovernment reports (Pet. Br. 50) is foreclosed by Hamdi. There, the
Court held that, even for citizens entitled to more constitutional protection than al
Bihani can claim, "the Constitution would not be offended by a presumption in favor ofthe Government's evidence, so long as that presumption remained a rebuttable one and fair opportunity forrebuttal were provided." 542 U.S. at 534. The district court's adoption ofthat framework in this case thus cannot possible violate the Constitution.
AI-Bihani's contention (Br. 52) that this Court's decision in Parhat v. Gates,
532 F.3d 834 (D.C. Cir. 2008), precludes the use of a presumption in favor of the government's evidence is mistaken. In fact, in the context ofDetainee Treatment Act
(DTA) proceedings, which provided far less opportunity for the detainee to submit evidence than in habeas proceedings, the Parhat court expressly acknowledged the
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existence ofa "rebuttable presumption in favor ofthe Government's evidence." 532
F.3d at 847-48. The Court merely held that it must tailor its review to determine whether the presumption had been rebutted. Id.
4. Al-Bihani's contention that he has "a right to have disputed factual issues involving credibility resolved through live testimony" falters on two grounds. First, as noted, the undisputed facts show that al-Bihani was part of the enemy forces, and thus is lawfully detained on that ground. Second, there is no constitutional entitlement to an evidentiary hearing in habeas cases. Even outside the context of military detention, evidentiary hearings are not mandated in statutory habeas cases.
See 28 U.S.C. § 2243 (authorizing the court to "summarily hear and determine the facts, and dispose ofthe matter as law and justice require"); Brown v. Allen, 344 U.S.
443,463-64 (1953) ("a trial may be had in the discretion ofthe federal court"). The wartime detention context adds another layer counseling against the use of evidentiary hearing. See Hamdi, 542 U.S. at 531-32 (noting that soldiers should not be distracted from "the serious work ofwaging battle" to provide eyewitness accounts ofactions that occurred halfworld away); Burns v. Wilson, 346 U.S. 137, 139 (1953)
(habeas review is particularly narrow in cases involving the military during armed conflict). In light ofthe undisputed evidence demonstrating al-Bihani 's activities in
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the 55 th Arab Brigade, the district court did not abuse its discretion in declining to hold an evidentiary hearing.
5. Finally, al-Bihani's complaints regarding the denial ofsome ofhis requested discovery, and the purported failure to permit him additional time to locate witnesses, do not warrant reversal. The district court relied upon al-Bihani's own statements regarding his travel to Afghanistan for the purpose of engaging in jihad, his stay at
Taliban and al-Qaida guesthouses, and his activities as a cook for the front-line fighters ofthe 55 th Arab Brigade. Because the evidence regarding these activities is undisputed, no amourit of additional discovery and time would have changed the outcome of this case.
For instance, al-Bihani contends (Br. 50) that the district court improperly denied him sufficient time to locate several detainee witnesses who had been released from Guantanamo. But even if al-Bihani had been able to contact those witnesses, • it would not have helped his case. AI-Bihani sought these former detainees to support his claim that he was "only a cook" who did not take "any belligerent acts" (JA 602
03). As the district court correctly held, however, al-Bihani's service as a cook, under the command structure of the 55 th Arab Brigade, was itself sufficient to warrant his detention. JA 657, 661.
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Moreover, to the extent al-Bihani sought discovery regarding particular
detainees whose statements were submitted in this case, the discovery sought, even
ifgranted, could not have changed the outcome. The district court did not rely upon
the statements of those detainees, other than to corroborate al-Bihani's own
undisputed statements, which the district court found sufficient to meet the
government's burden of proof. See JA 657, 661.
The same is true with respect to al-Bihani's contention (Br. 53) that the district
court should have ordered discovery ofhis medical records to substantiate his claim
that he provided false information in order to obtain medical information. As his
counsel acknowledged (JA 240-41), the statements al-Bihani claimed were made
falsely in order to get medical treatment concerned his militant training. Yet, the
district court chose not to rely on the evidence concerning al-Bihani's militant
training (notwithstanding the fact that al-Bihani again admitted to training, providing
substantial and consistent details, long after recanting his earlier statements). JA 660
61. Al-Bihani has never claimed that his statements regarding his decision to pursue jihad in Afghanistan, his guesthouse visits, his service as a cook for the fighters of
the 55 th Brigade, and his retreat and surrender with the Brigade, were provided under
duress, nor did he attempt to recant them at his ARB hearing. Accordingly, al
Bihani's arguments concerning discovery do not warrant reversal.
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CONCLUSION
For the forgoing reasons, this Court should affirm the judgment ofthe district court.
Respectfully submitted,
IAN GERSHENGORN Deputy Assistant Attorney General
DOUGLAS N. LETTER ROBERT M. LOEB MATTHEW M. COLLETTE (202) 514-4214 Attorneys, Appellate Staff Civil Division, Room 7212 u.s. Department ofJustice 950 Pennsylvania Ave., N. W Washington, D.C. 20530 0001
JULY 2009
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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 briefis proportionally spaced, has a typeface of14 point and contains 13,841 words.
Matthew M. Collette
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CERTIFICATE OF SERVICE
I hereby certify that on July 17,2009, I filed and served the foregoing Brieffor
Respondent by delivering an original and fourteen copies for the Court, and two paper copies for counsel of record listed below, to the Court Security Officer.
Reuben Camper Cahn Shereen J. Chadick Steven F. Hubachek Ellis M. Johnston, III Federal Defenders of San Diego 225 Broadway, Suite 900 San Diego, CA 92101
Matthew M. Collette
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