[ORAL ARGUMENT NOT YET SCHEDULED] No IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

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1 Case: Document: Filed: 06/14/2010 Page: 1 [ORAL ARGUMENT NOT YET SCHEDULED] No IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT SAEED MOHAMMED SALEH HATIM, et al., Petitioner-Appellee, v. BARACK H. OBAMA, et al., Respondents-Appellants. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA REPL Y BRIEF FOR RESPONDENTS-APPELLANTS TONY WEST Assistant Attorney General IAN HEATH GERSHENGORN Deputy Assistant Attorney General ROBERT M. LOEB SHARON SWINGLE (202) Attorneys, Appellate Staff Civil Division, Room 7250 U.S. Department of Justice 950 Pennsylvania Ave., N. W. Washington, D.C

2 Case: UNCLASSIFIEOIIFOR Document: PUBLIC RELEASE Filed: 06/14/2010 Page: 2 S~CItET/iNOFORN TABLE OF CONTENTS GLOSSARY INTRODUCTION AND SUMMARY OF ARGUMENT... 1 ARGlTMENT... 4 A. The Government Was Not Required To Show That Hatim Received And Executed Orders As A Condition Of Detention... 4 B. The District Court's Erroneous Rejection Of The "Support" Theory Of Detention Requires Reversal C. The District Court Failed To Consider And Draw Inferences From The Evidence Viewed As A Whole D. The District Court's Factual Findings Were Clearly Erroneous, And The District Court Erred In Holding That The Government Failed To Prove That Hatim Was "Part Of' AI-Qaida Or Taliban Forces CONCLUSION CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(7)(C) OF THE FEDERAL RULES OF APPELLATE PROCEDURE CERTIFICATE OF SERVICE 1 UNCLASSIFIEOIIFOR PUBLIC RELEASE

3 Case: Document: Filed: 06/14/2010 Page: 3 SI5CR-F3Th'NOFORxN TABLE OF AUTHORITIES Cases: Al Adahi v. Obama, 2009 WL (D.D.C. Aug. 21, 2009), appeal pending, Nos & (D.C. Cir.) *AIBihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010)... 3,6,8,9, 12 Armco Steel Co., L.P. v. CSX Corp., 790 F. Supp. 311 (D.D.C. 1991) Gherebi v. Obama, 609 F. Supp.2d 43 (D.D.C. 2009)... 5, 7, 10 *Hamdi v. Rumsfeld, 542 U.S. 507 (2004)... 10, 11 Hamlily v. Obama, 616 F. Supp.2d 63 (D.D.C. 2009)... 5,9, 10 Hatim v. Obama, Civ. Action No (RMU), Memorandum Opinion (D.D.C. May 17,2010) (under seal)... 3,4,6, 12 Hyde v. United States, 225 U.S. 347 (1912) Statutes: * Authorization for Use of Military Force, Pub. L. No , 115 Stat. 224 (2001) Military Commissions Act of 2009, Pub. L. No , tit. XVIII, 123 Stat (2009) Executive Materials: Exec. Order. 13,492, 74 Fed. Reg (Jan. 27,2009)... 27,28 Miscellaneous: The 9/11 Commission Report (2004)... 7 SECItE'f'tlNOf'OItN 11

4 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 06/14/2010 Page: 4 SECR-E'fh'NOFORN GLOSSARY Combatant Status Review Tribunal.... CSR T Joint Appendix... JA Unclassified Joint Appendix... UJA 111

5 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 06/14/2010 Page: 5 SECREJWNOFOR-N [ORAL ARGUMENT NOT YET SCHEDULED] IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No SAEED MOHAMMED SALEH HATIM, et al., Petitioner-Appellee, v. BARACK H. OBAMA, et al., Respondents-Appellants. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA REPLY BRIEF FOR RESPONDENTS-APPELLANTS INTRODUCTION AND SUMMARY OF ARGUNIENT In the district court habeas proceedings, the Government introduced Hatim's detailed and repeated statements before a Combatant Status Review Tribunal (CSRT), to FBI agents, and to other government interrogators that he traveled to Afghanistan to attend al-farouq, al-qaida's flagship terrorist training camp, in order to receive weapons training to wage jihad. See Brief for Respondents-Appellants (Gov't Br.) 3-8. The Government also introduced evidence that Hatim stayed at guesthouses affiliated with the Taliban, al-qaida, and al-qaida operatives before and after his St3 Rt3~;'INOFOft:N

6 Case: UNCLASSIFIEDIIFOR Document: PUBLIC RELEASE Filed: 06/14/2010 Page: 6 training at al-farouq. See id. at4-5, The Government introduced evidence that Hatim subsequently joined a group of armed men under the leadership of a commander at Said Central Station, which he described as "positioned on the Kabul line" and as a "place ofre-supply for the front lines near Bagram, Afghanistan," and that Hatim "check[ ed] out an AK -47 from the warehouse" to "bring food to the Taliban soldiers on the front lines fighting against the Northern Alliance." JA 489, 491; see also Gov't Br The Government introduced Hatim's statements that, after leaving Said Central Station, stayed at a guesthouse owned and operated by an al-qaida operative And the Government introduced evidence that, when Hatim was arrested as he attempted to flee through Pakistan to regroup with this al-qaida operative, who had been paying him "for his efforts" while at Said Central Station and elsewher~ JA 456, 4 In the face of this evidence, the Government explained, the district court erred in holding that the Government failed to prove that Hatim was part of, or substantially supported, al-qaida or Taliban forces. s~e~t#',8f8iu, 2

7 Case: Document: UNCLASSIFIEOIIFOR PUBLIC RELEASE Filed: 06/14/2010 Page: 7 Sf3CRt3~//NOFORN Petitioner attempts to undermine the force ofthis record evidence, but his brief commits the same error that the district court committed in considering items of evidence piecemeal and in isolation. The district court compounded this error by adopting an incorrectly heightened view ofthe showing necessary to demonstrate that Hatim was part of al-qaida or Taliban forces. Even petitioner concedes that the Government was not required to prove that Hatim received and followed a specific order from an al-qaida or Taliban leader in order to establish that his detention is lawful. Brief for Petitioner-Appellee ("Pet'tr Br.") 16. The district court's narrow view of membership is at odds with the functional approach endorsed by this Court inal Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010), as the district court itself has now recognized, in holding that the Government has a sufficiently high likelihood of prevailing on appeal on this issue to merit a stay. See Hatim v. Obama, Civ. Action No (RMU), Memorandum Opinion, at 6-7 (D.D.C. May 17,2010) (filed under seal) ("Stay Opinion") (copy attached as addendum to brief). The narrow view of who is "part of' al-qaida applied in the district court's decision is also inconsistent with the basic nature of that group, which operates in part through loosely affiliated terrorist cells of individuals who often seek to hide their connection to al-qaida. Petitioner also admits that the district court's rejection of a theory of detention based on the provision of substantial support to an enemy force is contrary to this St:lCH'tWNOf?OItN 3 UNCLASSIFIEOIIFOR PUBLIC RELEASE

8 Case: Document: Filed: 06/14/2010 Page: 8 StJCRE'fh'NOFORN Court's binding precedent inal Bihani, but he seeks to minimize the significance of this error. In the Government's view, the evidence establishes that Hatim was part of al-qaida or Taliban forces. But if the Court rejects that position, at a minimum remand is necessary for the district court to consider in the first instance whether the evidence is a lawful basis for detention under a support theory. Petitioner has essentially no response to that argument, which the district court itself, in granting a stay, has now characterized as substantial. Stay Opinion, at 4,6-7. Finally, petitioner challenges the Government's showing that the district court's factual findings were clear error, but his attempts to minimize the significance of individual pieces of evidence are unsuccessful. As we showed in the opening brief and discuss in further detail herein, the evidence when viewed under the correct legal standard compels the conclusion that Hatim was part of al-qaida or Taliban forces. ARGUMENT A. The Government Was Not Required To Show That Hatim Received And Executed Orders As A Condition Of Detention. The Government showed in its opening brief (at pp ) that the district court's ruling was predicated on an unduly stringent test for determining who is part of al-qaida or Taliban forces. Notably, petitioner himself concedes that the Government is not required to show that an individual was given specific orders as a condition of detention. Pet'tr Br. 21. Petitioner also acknowledges that the test for 813 (JDI~Ffh'Pf8F8IUf 4 UNCLASSIFIEDflFOR PUBLIC RELEASE

9 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 06/14/2010 Page: 9 SIBCR-BTHNOFORN determining whether he was part of al-qaida or Taliban forces is often functional rather than formal, and that circumstantial evidence may establish that an individual is integrated into al-qaida and thus is "part of' that terrorist organization. Pet'tr Br Petitioner nevertheless invokes a series of district court decisions to argue that the Government must show that an individual "receives and executes orders and directions" in order to establish that he is part of the "command structure" of the enemy force and thus subject to detention. Pet'tr Br The Government agrees that, for purposes of detention, a critical question is whether an individual is part of, i.e., integrated into the enemy group. This requirement serves to distinguish an individual who unwittingly assists al-qaida, or one who provides unilateral assistance to al-qaida but has no other connection to the group, from an individual who functions as part of that terrorist organization. See, e.g., Hamlily v. Obama, 616 F. Supp. 2d 63, 76 (D.D.C. 2009) (distinguishing between individuals who merely sympathize or unwittingly associate with an enemy force and those who knowingly become part of the organization); Gherebi v. Obama, 609 F. Supp.2d 43,68-69 (D.D.C. 2009) (same). The Government also agrees that evidence that an individual receives and executes orders and directions can be highly persuasive, if not conclusive, evidence that an individual is "part of' al-qaida or Taliban forces. 5

10 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 06/14/2010 Page: 10 But evidence of receiving and following orders is not the sole means to establish that an individual is part of al-qaida or the Taliban, nor is it a separate requirement for detention. Indeed, this Court recognized as much inai Bihani, where the Court embraced a functional approach to determining who is part of al-qaida, noting, in particular, that evidence that an indi vidual attended al-qaida training camps and stayed at al-qaida guesthouses "would seem to overwhelmingly, if not definitely," justify detention. 590 F.3d at n.2. Even the district court here recently recognized, in granting the Government's motion for a stay pending appeal, that this Court's observation in Al Bihani about the significance of evidence of attendance at al-qaida training camps and stays in al-qaida guesthouses "calls into question [the district] court's assessment of evidence that the petitioner attended an al-qaida training camp and stayed at a guesthouse affiliated with al-qaida," and the "weight to be afforded" to this evidence. Stay Opinion, at 6-7. Evidence that an individual attended al-qaida training camps and stayed at al- Qaida guesthouses demonstrates at a minimum that the individual had access to al- Qaida locations - and thus serves as circumstantial evidence that the individual was part of al-qaida. Similarly, evidence that an individual acted in coordination with other al-qaida members can support a conclusion that he was integrated into the structure of the group. Ultimately, the critical question for purposes of detention in SEeltE~/iNOfi'OitN 6

11 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 06/14/2010 Page: 11 these circumstances is not whether the individual received or followed orders, but instead whether he was part of al-qaida or Taliban forces, whether formally or functionally. Furthermore, In evaluating whether the evidence relied on in this case demonstrates the requisite degree of integration into al-qaida, it is critical to keep in mind the nature of that organization. Because AI-Qaida is a terrorist group, it is unrealistic to expect a formal command-and-control structure akin to that of a state armed force. See The 9/11 Commission Report 56, 64-67, 68-70, (2004) (explaining that many of al-qaida's operations are carried out by loosely affiliated terrorist cells made up of volunteers acting with significant autonomy, but taking direction from al-qaida leadership); Gherebi, 609 F. Supp. 2d at 68 (recognizing that the "leadership and command structures" of "terrorist organizations" may be "diffuse"). For purposes of this case, the district court erred in requiring the Government to identify a particular order to Hatim, or to prove that Hatim was compelled to engage in particular conduct or to remain part of the forces. This legal error caused the district court to improperly discount evidence establishing that Hatim was part of al-qaida. Based on its erroneous approach, the district court dismissed the significance of evidence that Hatim attended al-qaida' s flagship terrorist training camp, al-farouq, SBCRETHNOFORN 7

12 Case: Document: UNCLASSIFIEOIIFOR PUBLIC RELEASE Filed: 06/14/2010 Page: 12 based on Hatim's statement that "he was free to walk out at any time." JA Even if truthful, however, Hatim's assertion would not undermine the importance of his attendance at al-f arouq, which, consistent with Al Bihani, was powerful evidence that Hatim was part of al-qaida. Similarly, the district court discounted evidence of Hatim's activities at Said Central Station, because Hatim stated that people at Said Central Station were free to come and go as they pleased. JA Once again, however, this statement does not undermine the force of evidence showing Hatim's integration with al-qaida or Taliban forces: Hatim was permitted to stay with a group of individuals under the command of a combat leader; he was allowed to "check out an AK-47" from the group's "warehouse"; and he was permitted to travel with other members of the group to the front lines of the conflict between the Taliban and the Northern Alliance to give food to Taliban soldiers fighting there. See Al Bihani, 590 F.3d at 873 (reasoning that Government's detention authority extends to "traditional food operations essential to a fighting force and the carrying of arms"). That evidence taken together sufficiently establishes that Hatim was part of al-qaida or Taliban forces, and no additional showing of receiving or executing orders should have been required.!! Petitioner also argues that his attendance at al-farouq does not support a conclusion that he was part of al-. because a t official. expert declaration on training SECRETh'NOFORN 8 UNCLASSIFIEOIIFOR PUBLIC RELEASE

13 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 06/14/2010 Page: 13 StJCRE'I'HNOFORN In any event, and as the Government set out in its opening brief (Gov't Br ), there was extensive evidence before the district court that Hatim was taking directions and acting under orders when he trained at al-farouq and stayed at Said Central Station. Hatim told interrogators that he trained at al-farouq_ and that he and the other trainees were forbidden from taking time off while activities were occurring. JA He told interrogators that he stayed at Said Central Station under the leadership of a "general for the fighters," who was "in charge of' the group of men at the rear lines, and that as a "newcomer[]" Hatim was "not allowed to go to front lines." JA 490, The fact that Hatim was not himself in a combat position or captured on the battlefield does not, as petitioner suggests (at Pet'tr Br. 25), preclude a finding that he was part of al-qaida or Taliban forces and hence subject to detention. See Ai Bihani, 590 F.3d at (rejecting argument that AI-Bihani was subject to Pet'trBr (quotingja441). That statement,, appears to membership in al-qaida through swearing allegiance (or "bayat") to Usama bin Laden, not functional membership as a part of the group. See Hamlily, 616 F. Supp.2d at 75 ("The key inquiry * * * is not necessarily whether one self-identifies as a member of the organization" but instead whether the individual is functionally part of that organization). Furthermore, the Government relies in support of detention not only on evidence that Hatim trained at al-farouq, but also on evidence ofhatim's multiple additional connections to al-qaida and the Taliban. StJCRt3THNOFORN 9

14 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 06/14/2010 Page: 14 SECRE'FHNOttORN detention only if he directly participated in hostilities); see also Hamlily, 616 F. Supp.2d at 72-74; Gherebi, 609 F. Supp.2d at 67. Petitioner also argues that Hatim's attendance at al-farouq did not establish that he was part of al-qaida at the time he was detained because Hatim assertedly separated himself from al-qaida once he left that terrorist camp. Pet'tr Br. 26. Once an individual has been shown to be associated with al-qaida, however, there is a presumption that his association continues. Such a presumption is particularly appropriate given that al-qaida is an illegal and clandestine group, whose members seek to operate in secrecy and to hide their affiliations with the terrorist organization. In the analogous context of conspiracy law, the proven member of an illicit scheme must come forward with sufficient evidence that he left the scheme. See Armco Steel Co., L.P. v. CSX Corp., 790 F. Supp. 311,322 (D.D.C. 1991); see also Hyde v. United States, 225 U.S. 347, 369 (1912) ("Having joined in an unlawful scheme * * * until he does some act to disavow or defeat the purpose he is in no situation to claim delay of the law."). Similarly, in Hamdi v. Rums/eld, 542 U.S. 507 (2004), the Supreme Court plurality reasoned, in talking about the evidentiary showing that would be required to support detention, that once the government shows a detainee "meets [the detention] criteria, the onus could shift to the petitioner to rebut that evidence with [a] more persuasive" showing. Id. at 534. A similar approach should apply where a SECRE't'h'NOFOItN 10

15 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 06/14/2010 Page: 15 SECRE'fHNOftORN detainee claims that he disassociated himself from al-qaida, given that his prior association makes it highly unlikely we are dealing with a circumstance of "military error." See ibid. (habeas must "meet the goal of ensuring that the errant tourist, embedded journalist, or local aid worker has a chance to prove military error"). In any event, even if Hatim had no burden to show that he left al-qaida or Taliban forces, evidence that Hatim was part of al-qaida at the time he was at al-farouq supports a reasonable inference that he continued to be part of the group - particularly where, as here, he had repeated multiple additional connections to al- Qaida locations and groups in the weeks and months after that time, and leading up to his capture. The evidence showed that after Hatim left the al-qaida training camp al-farouq, he stayed at al-qaida-associated guesthouses; he joined a group of men under combat leadership at the rear lines that supplied front-line Taliban soldiers fighting the Northern Alliance, efforts for which he was paid by an al-qaida operati Such evidence, especially in totality, shows that Hatim did not leave al-qaida, but instead that he trained to become and remained a part of al-qaida or Taliban forces. SECRI3THNOftORN 11

16 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 06/14/2010 Page: 16 SECRKfllNOFORN B. The District Court's Erroneous Rejection Of A "Support" Theory Of Detention Requires Reversal. Even if this Court were to reject the Government's position that the district court judgment is based on an erroneously narrow view of what is necessary to show that an individual is part of al-qaida or Taliban forces, reversal still would be required to consider the Government's evidence under a "support" theory of detention. The Government showed in its opening brief (Gov't Br ) - and petitioner does not contest, Pet'tr Br that the district court's rejection of "substantial support" as a basis for lawful detention is contrary to this Court's holding in Al Bihani that the Government has authority to detain individuals who provided "substantial support" to al-qaida or Taliban forces or "purposefully and materially supported hostilities against the United States or its coalition partners." 590 F.3d at 872,874. Petitioner claims that any error was harmless, but the district court itself considers the difference between its limited view of the Government's detention authorityandai Bihani to be significant. As the district court recently acknowledged in granting a stay pending appeal, the legal standard for detention set out in Al Bihani "appears to be at odds with the detention standard that [ the district] court applied" and "calls into question" a "key determination[]" upon which the order granting the petition for habeas corpus was based. Stay Opinion, at 5, 7. ~EeM'f}nn~)l'5ltN 12

17 Case: Document: UNCLASSIFIEDIlFOR PUBLIC RELEASE Filed: 06/14/2010 Page: 17 SECRI;T/+NOFORN In defending the lawfulness of detention, the Government relies on all of the record evidence cited and discussed in its briefs. The Government's principal position is that this evidence proves that Hatim was "part of' al-qaida or Taliban forces. If this Court rejects that view, however, the case still should be remanded to the district court to consider whether detention is lawful under a support theory under this Circuit's binding precedent in Al Bihani. Petitioner argues that conduct cannot be a basis for detention under a support theory if it pre-dates the 9/11 attacks, see Pet'tr Br , but there is no need at this stage of the proceedings to rule on that question; determining the scope of "purposeful and material support" under Al Bihani, for example, also could have implications for the jurisdiction of military commissions under the Military Commissions Act of 2009, Pub. L. No , tit. XVIII, 123 Stat. 2190, (2009). The evidence shows that Hatim had repeated connections to al-qaida and the Taliban in the months and weeks immediately leading up to, and following, the 9/11 attacks. The district court should be given the opportunity to consider in the first instance whether this evidence could establish that Hatim was lawfully detained as a supporter of al-qaida or Taliban forces. SECRETHNO ORN 13

18 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 06/14/2010 Page: 18 5BCRETHNOFORN C. The District Court Failed To Consider And Draw Inferences From The Evidence Viewed As A Whole. The Government showed in its opening brief(gov't Br ) that the district court erred in refusing to consider or draw inferences from the evidence as a whole, and that this error requires reversal of the district court's judgment. Petitioner argues that the district court did consider the evidence as a whole. Pet'tr Br. 31. But a careful examination of the district court's decision shows that the court, in considering each factual allegation against Hatim, looked only to the precise evidence relating to that allegation, without regard to whether other evidence in the record provided additional, circumstantial corroboration. See, e.g., JA ( crediting Hatim' s statement that he "separated himself from the enemy armed forces' command structure" by leaving al-farouq early, without mentioning evidence of Hatim's subsequent connections to al-qaida and the Taliban). Furthermore, the district court explicitly noted the Government's position that the probity of each piece of evidence should be evaluated based on the evidence as a whole, but criticized this position as the functional equivalent of the mosaic theory. See JA 1301 n. 1 (quoting and discussing Al Adahi v. Obama, 2009 WL , at *4 (D.D.C. Aug. 21, 2009), appeals pending, Nos , (D.C. Cir.).2 The district court subsequently 2 The cross-appeals in Al Adahi are fully briefed, and were argued before this Court on February 15,2010. SECItlE'f'/fNOIfOKN 14

19 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 06/14/2010 Page: 19 SECRETh'NOFORN cited the district court decision in Al Adahi in holding that, because the individual pieces of evidence were not in the court's view sufficient to prove specific rationales for detention relied on by the Government, they were insufficient when viewed as a whole. JA The Government has appealed the district court decision in Al Adahi, specifically challenging the district court's refusal in that case to consider the evidence in its entirety in determining its probative effect. The district court in this case, explicitly following and applying Al Adahi, committed the same error. Petitioner also implies that the district court's consideration of evidence in isolation was a result of the Government's alleged "insist[ ence] on presenting its evidence to the district court in separate categories." Pet'tr Br. 30. That suggestion is unfounded, and petitioner's description of the Government's position is inaccurate. The Government complied with the case management order by filing a brief in support of judgment on the record, which set out the Government's case for detention. See Unclassified Joint Appendix (UJA) 27. The Government then proposed a list of material issues to be considered at the merits hearing. See Aug. 7, 2009 Letter from R. Lee to W. Livingston; see also UJA 28 (requiring counsel to "discuss and narrow the issues to be resolved at the hearing"). The district court, explicitly modeling the procedures for this case after procedures used in habeas proceedings before two other district court judges, agreed that the parties would present arguments about the SECRf3Th'NOItORN 15

20 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 06/14/2010 Page: 20 evidence on an issue-by-issue basis. JA At no point did the Government suggest that its evidence should be considered only as it related to specific issues, rather than in its entirety. Cf JA 1301 n.l (noting Government's contrary argument). Finally, petitioner argues that the individual pieces of evidence showing his multiple ties to al-qaida and the Taliban, spanning multiple locations and activities over a period of several months, cannot serve as "mutual corroboration" of other, similar pieces of evidence. Pet'tr Br. 31. As we next show, petitioner cannot avoid the cumulative effect of the evidence. To provide just one example, if Hatim's statements that he went to the al-farouq terrorist training camp to receive weapons training to wage jihad are credited, that evidence is probative of his continuing role as part of al-qaida, and also makes it more likely that Hatim's subsequent connections to al-qaida, including staying at the safehouse of an al-qaida operative _ were not innocent or inadvertent. The district court's refusal to consider the corroborative, cumulative effect of this evidence was itself reversible error. D. The District Court's Factual Findings Were Clearly Erroneous, And The District Court Erred In Holding That The Government Failed To Prove That Hatim Was "Part or' AI-Qaida Or Taliban Forces. As the Government has shown, the district court's factual findings were the result of the court's application of erroneous legal standards; they were also clearly SECM'fffNOf?OltN 16

21 Case: Document: Filed: 06/14/2010 Page: 21 erroneous. When the evidence is evaluated under the correct standards, it admits of only one reasonable inference: Hatim was part of al-qaida or Taliban forces. None ofhatim's responses to the Government's showing of evidentiary error has merit, as we next show. 1. Hatim continues to argue that his repeated and detailed statements about attending the al-qaida terrorist training camp al-farouq should be disregarded because they were allegedly the product of mistreatment. See Pet'tr Br. 12,37. As an initial matter, and as explained in the Government's opening brief (Gov't Br. 51), the Government does not concede that Hatim was tortured at Kandahar, and the Government submitted evidence in the district court that undermined Hatim's claims of mistreatment. SECItE 't'h'nofoitn 17

22 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 06/14/2010 Page: 22 St;CJ.tE'f8NOlfOftN Hatim's multiple statements acknowledging that he attended al-farouq were also corroborated by documentary evidence described in an intelligence report, i. e., a large number of training camp applications discovered in a December 2001 raid of an Arab office in Kandahar, which included an application from Hatim himself. JA 704, 706. And Hatim's statements themselves bear indicia of reliability. Hatim continued to provide similar information about his attendance at al-farouq to multiple interrogators over several years, and in his administrative hearing before a CSR T. JA 465, ,475, ,496, 511,.657. Furthermore, the fact that Hatim provided an extensive level of detail about al-farouq, including multiple names and nationalities of various individuals at al-f arouq, as well as detailed information about the schedule for training, the substance oftraining, and the organization ofthe camp, see JA 465, ,475,482,511,.647, is itself strongly supportive of the evidence's reliability. Hatim's descriptions ofthe camp were also consistent with an aerial photograph introduced by the Government. See JA 647,663. Hatim's only contrary "evidence" is his post-hoc 2009 statement, prepared by a declarant with a powerful incentive to deny any involvement with al-qaida, long 18

23 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 06/14/2010 Page: 23 SRCRR'f'lfNOtrORN after the operative events in question, and without any opportunity for crossexamination by the Government - which Hatim describes as "the best evidence in the record." Pet'tr Br. 3 n.1. The only reasonable finding in the face of this evidence is that Hatim attended al-farouq, as Hatim himself has repeatedly claimed. That selfserving, eleventh-hour claim, which is not even properly part of the record, should be summarily rejected. Notably, although Hatim asserts that he first learned about al- Farouq while in prison in Pakistan in late 2001, the documentary evidence ofhatim' s application to attend a terrorist training camp was discovered in a December 2001 raid, and clearly predates Hatim's imprisonment in Pakistan. JA 704, 706. Petitioner also suggests that the Government failed to bring to the attention of the district court the documentary evidence of his attendance at al-farouq, see Pet'tr Br. 38 n.18, but any suggestion that the Government waived reliance on the exhibit is baseless. The Government introduced the report describing Hatim's terrorist training camp application as a merits exhibit, see JA 704, 706, and specifically referenced and described it both in the opening statement at the merits hearing and SSCRI3TN ',OFORN 19

24 Case: Document: Filed: 06/14/2010 Page: 24 also at a later stage in that proceeding. See J A 171, 215. In addition, the Government referenced and described the document in its proposed findings of fact and conclusions of law. See Hatim v. Obama, Civil Action No (RMU), Respondents' Proposed Findings Of Fact And Conclusions Of Law 4-5 (D.D.C. filed Sept. 26,2009) ("Petitioner's name is on a list of 160 names taken from Afghanistanbased military training camp applications captured by United States and coalition forces during a raid of an Arab office in Kandahar."). Petitioner complains that the underlying application was not produced to him in discovery, but he did not submit any discovery request specifically requesting the document, nor does he offer any reason to doubt the accuracy of the intelligence report describing the application. Furthermore, the district court offered no reason for failing to consider that evidence. 2. Petitioner also argues that his activities at Said Central Station do not support any inference that he was part of al-qaida or Taliban forces, claiming that there was no evidence that he was "delivering food under orders" or that he traveled to an area of active fighting. Pet'tr Br. 8. In his own statement to an FBI agent, however, Hatim explained that he would periodically "check out an AK-47 from the warehouse" and travel with a group of men to take food "to the Taliban soldiers on the front lines fighting against the Northern Alliance." JA 491. Hatim also described Said Central Station as "positioned on the Kabul line" and as a "place of re-supply SBCRE'FHHOFORH 20

25 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 06/14/2010 Page: 25 SECR-BTHNOFORN for the front lines near Bagram, Afghanistan." JA 489, 491; see also JA486 (Hatim's statement to FBI agent that "he spent three (3) weeks on the Kabul front lines"). Furthermore, the evidence establishes that, by the time Hatim went to Said Central Station in late spring or summer 2001, he was aware that Usama bin Laden had directed Arabs in Afghanistan to "consolidate and fight with the Taliban against the Northern Alliance." JA 537; see also JA 482 (Hatim first arrived in Afghanistan approximately 5-6 months before Ramadan). Hatim knowingly joined that effort by assisting at Said Central Station - explaining that he needed to go to the rear lines to be evaluated to determine whether he would be "allowed on the front lines to fight." JA 489. In the face of this evidence, which showed that Hatim went to Said Central Station under the command of a "leader for the fighters," with knowledge that he was supporting a group of men engaged in hostilities against the Northern Alliance at the direction of Us am a bin Laden, and that he stayed at that location for at least several weeks and made armed trips to the front lines to deliver food, Hatim's claim that he had no connection to al-qaida or the Taliban and that he was a mere "observer" who was there to play soccer and ride horses is wholly incredible. See Pet'tr Br Hatim similarly discounts the significance of evidence that he stayed at guesthouses affiliated with the Taliban and with an al-qaida associate before and SECRE'f7 NOFORN 21

26 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 06/14/2010 Page: 26 St3CRE"fh'NOFORN after weapons training at the al-farouq terrorist training camp and his work at Said Central Station. Quoting the district court, Hatim asserts "that there was no evidence that Hatim 'was aware of any affiliation that the guesthouses at which he stayed may have had with al-qaida or the Taliban.'" Pet'tr Br. 4. In fact, however, Hatim testified before the CSRT that he stayed at a "Taliban house" for at least one month. JA 465, Hatim also told an FBI agent that, before he went to al-farouq, he stayed at the Haja House in Kandahar, where a number of men were waiting "to fight with the Taliban" and where Hatim spent several days seeking "to 'understand what it was they were asking us to do,' i.e., fight Jihad." JA 482. He told interrogators that he "actively sought how to get to the Al Farouq training camp," JA 475, and that Abu Wahlid EI Morsi - self-evidently the same "Abu Waleed" that Hatim identified as being in charge of the Haji-Habash guesthouse, JA 482,485 - "provided information to the Al Farouq camp." JA 475. Hatim also explained that he subsequently went to al-farouq with a group of men from the Haji Habash guesthouse. JA 482. That evidence corroborated the Government's expert witness declaration explaining that the Haji Habash Housel was used "as a transition for individuals going to SECRE"fIlNOF'ORN 22

27 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 06/14/2010 Page: 27 SECR'E'f';'tNOFORN JA Petitioner challenges the basis for the Government's expert declaration on guesthouses, but it was prepared military and intelligence judgment as to the nature of specific guesthouses and the general practice at terrorist-related guesthouses is entitled to deference. In sum, the evidence establishes that Hatim stayed first at a Taliban guesthouse, and then at the Haji Habash guesthouse, where he and other mujahadeen at the house were asked by the leaders to wage jihad, where the man in charge arranged for Hatim to attend the flagship al-qaida terrorist training camp, and from which Hatim and others traveled to that al-qaida camp. In the face of this evidence, any finding that 3 Petitioner suggests that the "Haja House" in Kandahar, the "Haji Habash" house, and the house "near Haji Habash" described in interrogation reports and the expert witness declaration might be different places. Pet'tr Br But petitioner referred to that guesthouse both as the "Haja House" and as the "Haji Habash" house, JA 482,485,488, and also described it as the "Arab House near Haji Habash," JA 475, i. e., near the Haji Habash mosque, from which the guesthouse presumably obtained its name. See JA 500 (describing "Hajji Habbash" guesthouse, which was "close to the Hajji Habbash mosque"). SECItt:':ft/NOI?OItN 23

28 Case: Document: UNCLASSIFIEDflFOR PUBLIC RELEASE Filed: 06/14/2010 Page: 28 SBCRETl;'N"OItORN Hatim was unaware of a connection between the guesthouses where he stayed and the Taliban and al-qaida was clearly erroneous. Hatim also seeks to minimize the significance of his later stay at an Arab guesthouse in Kabul known as "Gholam Gatcha" or "Gholam Batcha," which the Government established was owned by al-qaida and operated by a senior al-qaida member. JA ; see also JA 486,488. Hatim claims that the "Gholam Batcha" guesthouse in Kabul might have been different from the "Rahim Ghulam Bacha" guesthouse in Kabul, see Pet'tr Br. 7 na, but the Government introduced undisputed evidence that Arabic names can have several different spellings in English. JA ; see also JA 539 (Hatim's statement to interrogators that "he stayed in three guesthouses while in Kabul: Carte Birwan, Gholam Batcha, and one run by a Saudi, Hamza «AI Gattee»)"). For similar reasons, this Court should reject Hatim's argument that Harnza al- Gatee - the man in whose safehouse Hatim stayed in Kabul, who gave Hatim money for "his efforts" while at Said Central Station, who assisted Hatim in trying to escape from Afghanistan, and with whom Hatim had arranged to regroup in Pakistan so that they could "get out" together, JA , 494, is different from the shown by the Government to be S~CH'ff/NOFOltN 24

29 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 06/14/2010 Page: 29 8~CRt3'f'h'NOFORN and receiving funding from ai-gate and Hatim also had multiple other connections to al-qaida and the This evidence ofhatim's ongoing connections to al-qaida and the Taliban also forecloses his argument that any earlier connection he might have had to al- Qaida or Taliban forces had ended by the time of Hatim's stay at Hamza al-gatee's guesthouse in Pet'tr Br. 41. SECRi5THi>,OFORN 25

30 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 06/14/2010 Page: 30 SEC~'fh'f,OFOR1, Finally, the extensive other evidence that Hatim was part of al-qaida or Taliban forces is corroborated by documentary evidence submitted by the Government - including both the terrorist training camp application previously described and also 26

31 Case: Document: UNCLASSIFIEOIIFOR PUBLIC RELEASE Filed: 06/14/2010 Page: 31 Sf;CRE'fIlNOFORN In sum, the Government's evidence showed that Hatim received weapons and other military-style training at an al-qaida terrorist training camp; that he joined a group of men at the rear lines of the battle between the Taliban and the Northern Alliance who, under the command of their leader, helped to supply Taliban soldiers on the front lines; that he stayed in guesthouses associated with the Taliban and al- Qaida and that he fled Afghanistan with the help of a known al-qaida operative with plans to regroup in Pakistan and "get out" together. Viewed cumulatively, that evidence permits only one reasonable inference: that Hatim was part of al-qaida or Taliban forces. The district court's contrary conclusion was clearly erroneous, and should be reversed by this Court. 4. In challenging the Government's case for detention, petitioner also notes that he has been cleared for release or transfer by the inter-agency Task Force established pursuant to Executive Order 13,492, 74 Fed. Reg (Jan. 27, 2009), which provides for the review and disposition of individuals detained at the Guantanamo Bay Naval Base and the closure of detention facilities. Pet'tr Br UNCLASSIFIEOIIFOR PUBLIC RELEASE

32 Case: Document: UNCLASSIFIEOIIFOR PUBLIC RELEASE Filed: 06/14/2010 Page: 32 SECRi3THNOFORN That review process was limited to determining disposition options for detainees, such as release or transfer consistent with the national security and foreign policy interests of the United States, see Exec. Order 13,492, 2(b), 74 Fed. Reg. at 4897; it did not involve any determination as to the lawfulness of detention under the Authorization for Use of Military Force, Pub. L. No , 115 Stat. 224 (2001). Accordingly, it does not provide any basis on which to disregard the compelling evidence in support of detention. Cj Al Bihani, 590 F.3d at 871, 885 (rejecting argument that Government must establish detainee's "future dangerousness" as a condition of detention). St3 M3't'h'NOFO~ 28 UNCLASSIFIEOIIFOR PUBLIC RELEASE

33 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 06/14/2010 Page: 33 SECRE'fHNOFOR"N CONCLUSION F or the foregoing reasons, the judgment of the district court should be reversed. Respectfully submitted, TONY WEST Assistant Attorney General IAN HEATH GERSHENGORN Deputy Assistant Attorney General ROBERT M. LOEB lsi Sharon Swingle SHARON SWINGLE (202) Attorneys, Appellate Staff Civil Division, Room 7250 u.s. Department of Justice 950 Pennsylvania Ave., N. W Washington, D.C MAY 2010 SECM't'HU6F6ItPrt 29

34 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 06/14/2010 Page: 34 SECRR'FffNOFOftN 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 3 2( a), that the foregoing brief is proportionally spaced in Times New Roman 14-point type, and that it contains 6,518 words, excluding the portions of the brief excluded by Fed. R. App. P. 32(a)(7)(B)(iii). lsi Sharon Swingle Sharon Swingle Counsel for Respondents-Appellants SeCRI3TlfNOFORN

35 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 06/14/2010 Page: 35 SECRE'f'HNOFORN CERTIFICATE OF SERVICE I hereby certify that on May 26, 2010, I filed and served the foregoing Reply Brief for Respondents-Appellants by delivering an original and six copies for the Court, and one paper copy for counsel of record listed below, to the Court Security Officer. Anna E. Cross Schuyler W. Livingston Alan A. Pemberton COVINGTON & BURLING LLP 1201 Pennsylvania Ave., N.W. Washington, DC Marc D. Falkoff Northern Illinois University College of Law Swen Parson Hall DeKalb, IL Harry Remes Appeal for Justice 1106 Noyes Drive Silver Spring, MD /s/ Sharon Swingle Sharon Swingle Counsel for Respondents-Appellants

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