UNCLASSIFIEDIIFOR PUBLIC RELEASE. Case: Document: Filed: 12/07/2010 Page: 1. secrbtllnoporn

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1 Case: Document: Filed: 12/07/2010 Page: 1 secrbtllnoporn [ORAL ARGUMENT NOT YET SCHEDULED] No IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT MAHMOAD ABDAH, et ai., Petitioners, UTHMAN ABDUL RAHIM MOHAMMED UTHMAN, Petitioner-Appellee, v. BARACK H. OBAMA, et ai., Respondents-Appellants. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA REPLY BRIEF FOR RESPONDENTS-APPELLANTS IAN HEATH GERSHENGORN Deputy AssistantAttorney General DOUGLAS N. LETTER ROBERT M. LOEB DANA KAERSVANG (202) Attorneys, Appellate Staff Civil Division, Room 7230 U.S. Department ofjustice 950 Pennsylvania Ave., N. W. Washington, D.C BSCRB'i'I/NOPORN

2 Case: Document: Filed: 12/07/2010 Page: 2 TABLE OF CONTENTS INTRODUCTION AND SUMMARY OF ARGUMENT 1 ARGUMENT 4 I. THE DISTRICT COURT APPLIED AN INCORRECT LEGAL STANDARD FOR DETENTION 4 II. PROPERLY VIEWED UNDER THIS COURT'S PRECEDENT, THE DISTRICT COURT'S FACTUAL FINDINGS MANDATE DENIAL OF THE WRIT 14 CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(7)(C) OF THE FEDERAL RULES OF APPELLATE PROCEDURE CERTIFICATE OF SERVICE

3 Case: Document: Filed: 12/07/2010 Page: 3 TABLE OF AUTHORITIES Cases: *AI-Adahi v. Obama, 613 F.3d 1102 (D.C. Cir. 2010), cert. petition pending No (S.Ct.) 2,4,9, 10, 11, 12,21,22,24 AI-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010) 2,4, 5, 11,27 *AI Odah v. Obama, 648 F. Supp. 2d 1 (D.D.C. 2009), aff'd 611 F.3d 8 (D.C. Cir. 2010) 3,5, 8,9,21,23,24,25 *Awadv.Obama, 608 F.3d 1 (D.C. Cir. 2010) " 3,5,8,9 *Bensayah v. Obama, 610 F.3d 718 (D.C. Cir. 2010) 4,5,9 Gherebi v. Obama, 609 F. Supp. 2d 43 (D.D.C. 2009) 2,3, 5,6, 7, 8,20 Hamdi v. Rums/eld, 542 U.S. 507 (2004) 27 Hamlily v. Obama, 616 F. Supp. 2d 63 (D.D.C. 2009) 6 Sulayman v. Obama, _ F.Supp. 2d _,2010 WL (D.D.C. 2010), appeal pending sub nom Sulaiman v. Obama, No (D.C. Cir.) 5, 12 *Cases upon which we chiefly rely are marked with an asterisk. 11

4 Case: Document: Filed: 12/07/2010 Page: 4 SISCRIST/ /NOFORN GLOSSARY AUNIF ISN JA Authorization for Use of Military Force Internment Serial Number Joint Appendix /HOFORH 1ll

5 Case: Document: Filed: 12/07/2010 Page: 5 SSORS'I'//NOPORN [ORAL ARGUMENT NOT YET SCHEDULED] IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No MAHMOAD ABDAH, et ai., Petitioners, UTHMAN ABDUL RAHIM MOHAMMED UTHMAN, 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 ARGUMENT The government's opening brief established that the district court used the wrong legal standard in determining whether Uthman was part of al-qaida. The district court incorrectly required the government to show that Uthman received and executed orders from al-qaida or engaged in hostilities against the United States. This legal error led the district court to discount powerful evidence ofuthman's substantial S:eCRB'f'f f NOPORN

6 Case: Document: Filed: 12/07/2010 Page: 6 SECRECf//NOFORN association with al-qaida, including its own factual finding that Uthman was captured "with Al Qaeda members in the vicinity of Tora Bora after the battle that occurred there." JA 262. The government also demonstrated that the district court made a second legal error. The district court recognized that Uthman's fantastical cover story about paying for his travel to Afghanistan with money earned in summerjobsteaching the Koran and selling fish and fruit at a roadside stand in Yemen, JA , was a lie, but the court failed to consider this as strong evidence in support of the government's case, as required by Al-Adahi v. Obama, 613 F.3d 1102, 1107 (D.C. Cir. 2010), cert. petition pending No (S.Ct.). Finally, the district court also committed legal error by failing to treat presence at al-qaida guesthouses as powerful evidence that an individual was part ofal-qaida as required by AI-Adahi. See also Al- Bihani v. Obama, 590 F.3d 866,873 n.2 (D.C. Cir. 2010). In his response briefon appeal, Uthman recognizes that this Court has held that the government need not show that Uthman received and executed orders. Pet'tr Br. 32. This "command structure" test was set out in Gherebi v. Obama, 609 F. Supp. 2d 43 (D.D.C. 2009), on which Uthman acknowledges that the district court relied. Uthman nevertheless denies that the district court considered it necessary for the government to satisfy the command structure test. The district court, however, expressly stated that, in its view, '''the key question is whether an individual receives BSOftBCP//NOPORN 2

7 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 12/07/2010 Page: 7 S!}CltET//l'fOPOItl'f and executes orders from the enemy force's combat apparatus. ", JA (quoting Gherebi v. Obama, 609 F. Supp. 2d at 69) (internal quotation marks and alterations omitted). The district court also clearly applied this test when it granted the petition. The district court explained that the petition was being granted because "these facts do not convince the Court by a preponderance ofthe evidence that Uthman received and executed orders from Al Qaeda." JA 262. Uthman tries to resurrect standards rejected by this Court, arguing that an individual would need to identify himself as an al-qaida member and shoot at U.S. forces to be part ofal-qaida. Pet'tr Br. 32. But this Court has made clear that such evidence is not required. See, e.g., Awad v. Obama, 608 F.3d 1, 12 (D.C. Cir. 2010); At Odah v. Obama, 648 F. Supp. 2d 1, 16 (D.D.C.), a/i'd 559 F.3d 539 (D.C. Cir. 2009). As we explained in our opening brief, when the correct legal standards are applied and the evidence is viewed as a whole, it is apparent that Uthman is lawfully detained. Uthman admits that he went into the mountains in the vicinity oftora Bora at the time that al-qaida was engaged in a "last stand" battle there against the U. S. and its coalition partners. The district court found that he was there in the company ofal- Qaida members, some of whom attended the Furqan Institute in Yemen with him. Other evidence ofuthman's connections to al-qaida members confirms that Uthman SECRET//l'fOPORl'f 3

8 UNCLASSIFJEDIIFOR PUBLIC RELEASE Case: Document: Filed: 12/07/2010 Page: 8 8BORB'F//NOFORN was with al-qaida members in the vicinity oftora Bora after the battle there because he was part of al-qaida himself. The lies and "less than entirely believable" stories, JA 262 n.26, he has told to cover up the truth about his trip to Afghanistan also provide additional "strong evidence" that Uthman is part ofal-qaida. See Al-Adahi, 613 F.3d at Viewed as a whole, as required by Al-Adahi, the evidence presented by the government below establishes that Uthman is more likely than not part of al- Qaida. ARGUMENT I. THE DISTRICT COURT APPLIED AN INCORRECT LEGAL STANDARD FOR DETENTION A. 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 ofal-qaida or Taliban forces. AI-Qaida's operations are often carried out by loosely affiliated terrorist cells made up ofvolunteers acting with significant autonomy, not by individuals carrying "official membership card[s]." Al-Bihani, 590 F.3 d at 873. Thus, the "determination must be made on a case-by-base basis by using a functional rather than a formal approach and by focusing upon the actions of the individual in relation to the organization." Bensayah v. Obama, 610 F.3d 718, 725 (D.C. Cir. 2010). This requires a flexible inquiry into whether "a particular individual is SeCRB'f'//NOPORN 4

9 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 12/07/2010 Page: 9 s:ecrb'f11 NOPORN sufficiently involved with the organization to be deemed part of it." Ibid. This Court has recognized that Congress has "grant[ed] the government the power to craft a workable legal standard to identify individuals it can detain." Al-Bihani, 590 F.3d at 872. Thus, this Court rejected the "command structure" test put forward by the district court in Gherebiv. Obama, 609 F. Supp. 2d 43 (D.D.C. 2009), which required the government to show that an individual received and executed orders from al- Qaida. Awad, 608 F.3d at 11 ("[T]here are ways other than making a 'command structure' showing to prove that a detainee is 'part of' al Qaeda."); see also Sulayman v. Obama, _ F.Supp. 2d _, 2010 WL , *3 (D.D.C. 2010) (Walton, 1.) (noting that Gherebi has been rejected by this Court), appeal pending sub nom. Sulaiman v. Obama, No (D.C. Cir.). This Court has also determined that evidence that an individual participated in battle is not required. Al-Bihani, 590 F3d at Evidence that a person moved toward an active battlefield rather than away from it; that he followed travel routes used by the fighting forces; or that he was present at Tora Bora during al-qaida and associated forces' retreat to that area, are all types of probative evidence that, when evaluated in the full context of the government's case, may show that the person is part of al-qaida or Taliban forces. See Al Odah, 611 F.3d at 16. SECItETIINOPOftfi 5

10 Case: Document: Filed: 12/07/2010 Page: 10 SeCRM'//N6P6RN Notably, Uthman himself now concedes that under circuit precedent the government need not show that an individual received or executed orders from the al- Qaida command structure to show that an individual was part of al-qaida. Pet'tr Br Uthman, however, argues that the district court did not actually require a showing that he was part of al-qaida's command structure. He cites the district court's statement that Uthman would be detainable if he was "part of' al-qaida. Uthman further notes that the phrase "command structure" does not appear in the district court opinion. Pet'tr Br. 30. This argument cannot withstand scrutiny. The district court's own statements establish that it considered evidence of fighting or otherwise executing orders to be necessary to show that Uthman was part ofal-qaida. In considering the scope ofthe government's detention authority, the district court stated that "the government may detain 'those who are part ofthe Taliban or al Qaida forces', [Hamlily v. Obama,616 F. Supp. 2d 63, (D.D.C. 2009)], and as Judge Walton ruled in Gherebi v. Obama, 609 F. Supp. 2d 43 (D.D.C. 2009) 'the key question is whether an individual receives and executes orders from the enemy force's combat apparatus.'" JA (internal quotation marks and alterations omitted). It then applied this test in the conclusion, stating although the government's evidence, "at first blush, is quite incriminating," JA 263, the facts proven by the government "do not convince the SBCRM'/ /lf6p6rlf 6

11 Case: Document: Filed: 12/07/2010 Page: 11 BBORB'f'//NOPORN Court by a preponderance ofthe evidence that Uthman received and executed orders from Al Qaeda." JA 262 (emphasis added). Thus, while the district court found that Uthman "was with Al Qaeda members in the vicinity oftora Bora after the battle that occurred there," it emphasized that the facts proven by the government did not show "direct evidence of fighting or otherwise 'receiv[ing] and execut[ing] orders.'" JA (quoting Gherebi, 609 F. Supp. 2d at 69). Thus, the district court did require a finding of receiving or executing orders or direct evidence of fighting. Uthman relies on a sentence fragment in the district court's opinion to argue that the district court viewed the command structure test as only one ofmany possible ways to show that an individual is part of al-qaida. See Pet'tr Br. 32. The entire sentence makes clear, however, that the district court considered only whether direct or circumstantial evidence showed that Uthman received and executed orders. JA ("Certainly none ofthe facts respondents have demonstrated are true are direct evidence of fighting or otherwise 'receiv[ing] and execut[ing] orders, Gherebi, 609 F. Supp. 2d at 69, and they do not, even together, paint an incriminating enough picture to demonstrate that the inferences respondents ask the Court to make are more likely accurate than not."). This reading of the sentence is confirmed by the paragraph's topic sentence, which also discusses whether Uthman received and executed orders from al-qaida, JA 262, as well as by the district court's statement of 8BCRB'f//NOPORN 7

12 Case: Document: Filed: 12/07/2010 Page: 12 eeerb'f//noporn the law, which calls this the "key question." JA 240 (quoting Gherebi, 609 F. Supp. 2d at 69). Although Uthman acknowledges that the command structure test is contrary to circuit precedent, accepting his argument would require this Court to adopt a standard similar to the rejected Gherebi test. Pet'tr Br. 32. Uthman suggests that individuals who are not part ofthe command structure can be considered "part of' al-qaida only ifthey "identified themselves as being members of al Qaeda" and "were shooting at U.S. forces in Afghanistan." Pet'tr Br. 32 (quoting Awadv. Obama, 608 F.3d 1,11 (D.C. Cir. 2010)). But this was merely one example given by the court in Awad, not a requirement. In Awad itself there was no evidence that the petitioner ever shot at U. S. forces. The courtnonetheless concluded that the petitionerwas lawfully detained as part ofal-qaida based on the evidence as a whole, including evidence that he joined al-qaida fighters barricaded in the hospital where he was being treated. 608 F.3d at 12. Likewise, this Court held that the petitioner in Al Odah was part ofal-qaida and Taliban forces on the basis of evidence that, inter alia, petitioner traveled to Afghanistan "in a manner consistent with travel patterns ofthose going to Afghanistan to join the Taliban and al Qaeda," sought out a Taliban official who gave him advice about what to do, gave up his passport, and "march[ed] through the Tora Bora region" with a group of armed men during the battle there. Al Odah, 611 F.3d at 16. BSORM//NOFORN 8

13 UNCLASSIFIEOIIFOR PUBLIC RELEASE Case: Document: Filed: 12/07/2010 Page: 13 SECRE'f//NOPORN Uthman's trek through the Tora Bora region during the battle oftora Bora and in the company of al-qaida and Taliban fighters, viewed in combination with the other evidence ofhis association with al-qaida, was sufficientto establish that he was more likely than not part of al-qaida under the functional analysis required by Bensayah. 610 F.3d at 725; see also Awad, 608 F.3d at 11 ("Once Awad was 'part of' al Qaeda by joining the al Qaeda fighters behind the barricade at the hospital, the requirements of the AUMF were satisfied."); Al-Adahi, 613 F.3d at 1107 ("That close association made it far more likely that AI-Adahi was or became part of the organization."). The district court thus applied the wrong legal standard for determining whether Uthman was part of al-qaida. This legal error affected its entire opinion, leading it ultimately to reach the wrong conclusion. B. The government also showed in our opening brief (pp ) that the district court committed a second legal errorwhen it failed to consider Uthman's false cover story about how he paid for his travel to Afghanistan as evidence supporting a finding that he was part of al-qaida. Uthman put forward a cover story in his sworn declaration that he paid for his travel to Afghanistan himself. JA The district court found, however, that Sheik AI-Wadi paid for Uthman's travel to Afghanistan. JA 262 (district court's finding that Sheik AI-Wadi paid for the trip). Uthman does not contest on appeal that Sheik AI- BBCRB'f'f ffloporfl 9 UNCLASSIFIEOJlFOR PUBLIC RELEASE

14 Case: Document: Filed: 12/07/2010 Page: 14 Wadi paid for his travel. l Pet'tr Br. 41. Uthman's lie about the funding for his travel is evidence that he was trying to cover up the true reason for his travel to Afghanistan and severely discredits the rest ofhis declaration. Such "false exculpatory statements are evidence - often strong evidence - of guilt." See Al-Adahi, 613 F.3d at Uthman does not assert that the district court need not consider false statements as evidence that he is part of al-qaida. He argues instead that the district court did consider the weaknesses in his story and concluded that, regardless, the government had not met its burden of proof. Pet'tr Br But there is simply nothing in the opinion to show that the district court considered the fact that Uthman had lied to be evidence that he was part of al-qaida. This fact does not appear in the list of factual 1 Uthman focuses instead on whether AI-Wadi supported terrorism. Pet'tr Br. 41. But this discussion is not relevant to the question of whether the court correctly considered Uthman's false statements about who paid for his trip to be evidence ofhis guilt. Moreover, Uthman asserts that the government's argument "relies on a single interrogation report of a single detainee for its contention" that AI-Wadi supported jihad, Pet'tr Br. 41, but there was ample support in the record for the proposition that Sheik AI-Wadi did support terrorism. See Gov't Opening Brief 6 (citing JA 671 (Majid Majmud received his fatwa from AI-Wadi); JA 774 (Rahed Ghazi (ISN 26) read about Sheik AI-Wadi's fatwa and visited the Sheik, who encouraged him to go to Afghanistan and gave him between five and six hundred U.S. dollars for the trip); JA 740 (statement of Abdel Saed ai-hajj (ISN 165) that an al-qaida recruiter in Yemen facilitated the travel of those who received a fatwa from Sheik AI-Wadi, providing money, tickets, guides, and information about travel routes)). Uthman relies on a statement from Kazimi, among others, to argue that Sheik AI-Wadi did not support terrorism. Pet'tr Br. 6 n.l (citing JA 693). But Uthman argued in district court that Kazimi's statements are not reliable. JA 246. SECRET//NOFORN 10

15 Case: Document: Filed: 12/07/2010 Page: 15 BBORBtf11NOPORN findings the district court evaluated, JA 262, or in the footnote considering Uthman's cover story about teaching the Koran, JA 262 n.26, and, indeed, is discussed nowhere in the opinion. The district court's failure to treat this as "strong evidence" increasing the likelihood that Uthman was part of al-qaida was a second legal error requiring, at a minimum, a reversal and remand. See AI-Adahi, 613 F.3d at C. The government also demonstrated in its opening brief (pp , 34-37) that the district court committed legal error by refusing to follow this Court's precedent regarding the significance of visits to al-qaida guesthouses. The district court disregarded this Court's statement in AI-Bihani that evidence that a detainee "visited AI- Qaeda guesthouses... would seem to overwhelmingly, ifnot definitively, justify" detention ofthat individual. 590 F3d at 873 n.2. The district court stated that this was dicta that it was not required to follow. JA 263 n.27. This Court has since held in AI-Adahi, however, that evidence of a detainee's presence at al-qaida guesthouses is "powerful- indeed 'overwhelming' - evidence that the individual is part of al-qaida." Al-Adahi, 613 F.3d at 1108 (quoting Al- Bihani, 590 F.3d at 873 n.2). In AI-Adahi, this Court explained that the petitioner's decision to move to an al-qaida guesthouse that was a staging area for a military camp, al-farouq, made it very likely that the petitioner was himself a recruit. Ibid. As this Court recognized in giving such weight to that evidence, al-qaida guesthouses BBeRB'f11NOPORN 11

16 Case: Document: Filed: 12/07/2010 Page: 16 BECREI JJNUF URN "served as training camp facilitations hubs, _ and way stations for frontline fighters associated with al-qaida and the Taliban." JA 603. The district court stated that Uthman did not do "anything more incriminatory than appear at Al Qaeda guesthouses." JA 263 n.27. But, as the government explained in an expert declaration, these guesthouses were places where JA 605; see also Sulayman, _ F. Supp. 2d _,2010 WL , at *16 ("[T]he Court finds it implausible that guesthouses being operated for the benefit of Taliban fighters engaged in warfare are simultaneously providing charitable lodging to strangers in need, as petitioner suggests. * * * Such a finding would necessarily require the court to illogically infer that the Taliban had a practice of exposing its fighters to potentially deadly covert operations by the Northern Alliance."). Thus, contrary to the district court's conclusion, a detainee's presence at al-qaida guesthouses is powerful evidence that he is part of al-qaida. Uthman's primary response, since he cannot escape the holding of AI-Adahi, is that the district court had an insufficient factual basis for giving "credence" to the government's evidence. Pet'tr Br The government evidence, however, showed that Uthman was seen at al-qaida's Azam guesthouse, which was also known 12

17 Case: Document: Filed: 12/07/2010 Page: 17 SSeRB'J'//NOPORN as the Saudi Embassy House. JA ,262. The district court did not question that the Azam/Saudi Embassy House was an "AI Qaeda guesthouse" and characterized it as such in its conclusion. JA 262. The government provided a declaration explaining that the Azam guesthouse was one ofthree run by al-qaida operative Abd al-hadi al- Iraqi, JA 604, who was in command of the Omar Seif position during the battle for control of Kabul. JA 891. Uthman, without foundation, treats the reference to the Saudi Embassy House as an argument that he was at the Embassy of Saudi Arabia. There was no basis for the suggestion that the Azam/Saudi Embassy House was the Embassy of Saudi Arabia. Rather, the alternative name for the Azam House derived, as another detainee explained, from the fact that the Azam House was located in the former home of a Saudi ambassador. JA 900. Uthman does not dispute that the Kandahar house, where another detainee saw Uthman, was an al-qaida guesthouse. JA 716. The government's expert declaration explained that this guesthouse was al-qaida's al-ansar guesthouse in Kandahar. JA SSORBT//NOFORN 13

18 Case: Document: Filed: 12/07/2010 Page: 18 SeCRM'/ /NOPORN 604. The district court gave "credence" to the evidence that Uthman was seen there. 2 JA 262. In sum, the government has shown that the district court made three serious legal errors that affected its entire opinion and caused it to reach the wrong conclusion. At a minimum, a remand is required so that the district court can apply the correct legal standards. As explained below, however, the district court's findings mandate denial of the writ when the correct legal standards are applied. II. PROPERLY VIEWED UNDER THIS COURT'S PRECEDENT, THE DISTRICT COURT'S FACTUAL FINDINGS MANDATE DENIAL OF THE WRIT The government's opening brief(pp ) demonstrates that whenthe correct legal standard is applied to the district court's factual findings, it is clear that LTthman is lawfully detained. The district court found that Uthman was captured near the Pakistan- Afghanistan border in the vicinity of Tora Bora and in the company of al-qaida 2 Moreover, even if, as Uthman argues, the district court failed to make the adequate factual findings regarding whether Uthman was present at al-qaida guesthouses, its failure to do so on such a key factual issue would confirm that it operated under an erroneous understanding of the legal standard. At the very least, a remand would be needed for the district court to make the necessary findings. Such a remand is, as we explain, unnecessary in this case, however, because even without the guesthouse evidence there is more than enough other evidence, including the evidence that Uthman was in the vicinity of Tora Bora with al-qaida members, to show that he was part of al-qaida. SeCRerp//NOPORN 14

19 Case: Document: Filed: 12/07/2010 Page: 19 SEeItM'j jnopoitn fighters toward the end ofthe battle for Tora Bora. JA 253 & n.15, 262. Other facts found to be true by the district court make clear that Uthman did not simply wander into this war zone by accident. The district court found that Uthman attended the Furqan Institute, a religious school in Yemen that was a recruiting ground for al- Qaida. JA 260, 262. The district court found that he traveled to Afghanistan along a route that was used by al-qaida recruits. JA The district court also found that Uthman put forward a false cover story to explain his travel to Afghanistan by asserting in his sworn declaration that he paid for his travel to Afghanistan himself, JA 1072, when the district court found that his trip was actually paid for by Sheik AI- Wadi, JA Uthman's primary response to this is to argue that the district court did not make factual findings, it merely gave "credence" to the evidence. Pet'tr Br. 36. While the district court used the word "credence" at one point in its opinion, the district court expressly described the facts set out in the above paragraph as "these facts" and "the facts respondents have demonstrated are true." JA 262. Indeed, the one instance where the district court did not make a factual finding - the question of whether Sheik AI-Wadi supported jihad - it specifically noted that it was assuming this to be true for purposes of the opinion. JA 261 n.25. The district court unquestionably determined, however, that the Sheik paid for Uthman's travel, 8BORIW//N9F9RN 15

20 Case: Document: Filed: 12/07/2010 Page: 20 secrm//noforn meaning that Uthman's contrary cover stories were false. JA & n.25. The district court also expressly found that Uthman was with al-qaida fighters in the vicinity of Tora Bora. JA 255 ("The Court accepts respondents' evidence, which is largely based on and consistent with Uthman's own admissions, as true."). Likewise, the district court found that Uthman attended the Furqan Institute, which was a recruiting ground for al-qaida, and that Uthman traveled to Afghanistan along a route taken by al-qaida members. JA ("The Court therefore accepts each of respondents' allegations as true."). As explained in our opening brief (pp ), these facts, viewed as a whole, require the conclusion that Uthman is more likely than not part of al-qaida. A. One ofthe district court's factual findings that provides the most powerful support for the conclusion that Uthman was part of al-qaida is that Uthman traveled into the mountains in the vicinity of Tora Bora and in the company of al-qaida members during the battle there. JA , 262. The district court accepted as true the government's evidence that al-qaida fighters traveled to Tora Bora at that time in order to make a "last stand" in the fight against the United States and that "few, ifany noncombatants would have been in the vicinity [of Tora Bora] at this time." JA 254 n.17 (citing JA , 856). BSORM{{NOFORN 16 UNCLASSIFIEDIlFOR PUBLIC RELEASE

21 Case: Document: Filed: 12/07/2010 Page: 21 secrm'ffnoporn Uthman cannot escape these factual findings. Uthman admits that he traveled into Khowst and from there to the mountains to the north ofkhowst - the mountains around Tora Bora. JA 1074 ("We traveled on foot for eight days through the mountains."); Pet'tr. Br. 39 (acknowledging that Uthman was seized north ofkhowst, no more than 12 miles from Tora Bora); JA 1008 (map of the region). He describes the trip in his sworn declaration, stating that he traveled with a group ofmen through the mountains for eight days, although the "weather was harsh and the terrain was difficult." JA The district court found that he was captured "with Al Qaeda members in the vicinity of Tora Bora after the battle that occurred there." JA 262; Pet'tr Br. 33, The district court noted that there would have been "few, ifany, noncombatants" in the vicinity ofthis "widely known" battlefield. JA 254 n.17 (citing JA 856). The district court also noted that many al-qaida fighters left Tora Bora by crossing the border in Pakistan by Parachinar. JA 254 (discussing JA 855). Indeed, one ofuthman's companions, who admitted to accompanying bin Laden to ToraBora, said that they were a group of "brothers" coming from Tora Bora and other posts on the frontlines. JA Uthman argues on appeal that, in spite of the district court's factual finding, there is no evidence that he was in the mountains around Tora Bora. He asserts that "it is obvious from a map that the trip from Khost to Parachinar does not go through 8BeRB't'/ /NOPORN 17

22 Case: Document: Filed: 12/07/2010 Page: 22 SECItETjjNOPOItN Tora Bora," Pet'tr Br. 33 n.1 0, and that he must have approached Parachinar from the south, which is the direction of Khowst, not from the north, which is the direction of Tora Bora, Pet'tr Br. 39. But the district court's finding is well-founded, and hardly clearly erroneous. Uthman himself stated in his own sworn declaration that he traveled for eight days "through the mountains" over "difficult" terrain in "harsh" weather. 3 JA The high mountains are north and west of Parachinar, in the vicinity of Tora Bora. JA The direct path from Khowst to Parachinar, which Uthman now claims to have traveled, does not require one to pass through this mountainous terrain. JA Indeed, by the most direct route, Pakistan is only 20 miles from Khowst and reachable on a paved road that does not traverse the mountains, hardly an eight-day trip. JA 1008; see also JA 855 (noting that a relatively easily traversable route is available from Khowst to Pakistan). Uthman also argues that the court "expressly acknowledged that Uthman was captured in Parachinar, Pakistan." Pet'tr Br. 33. But that is not what the district court found. See JA 253 n.15 (The court declined to find that Uthman was captured in Parachinar because "some evidence suggests he was somewhere at the border of Afghanistan and Pakistan in the vicinity ofparachinar."). Uthman himselfstated that 3 Uthman made this claim in his declaration, which he continues to argue is the "best evidence in the record." Pet'tr Br. 15 n.6. 8EeKE'fjfNOPOKN 18

23 Case: Document: UNCLASSIFIEOIIFOR PUBLIC Filed: RELEASE 12/07/2010 Page: 23 9seRWf//NOPORN he was arrested at the border. JA 638 ("Once at the border, the. Arabs were picked up police."). This was corroborated by statements from the men with whom he was captured. See JA 762 (explaining that they expected to take a bus into the nearest village, but"[a]s the teams were crossing the [Pakistan] border, the arrested them"); JA 729 ("[T]he group of Arabs was arrested on the [Pakistan] border by _ authorities."); JA 774 ("Detainee surrendered to _ police while crossing the border from Afghanistan without identification documents."). Even ifuthman had been captured in Parachinar, however, his decision to trek through the mountains around Tora Bora to this city, rather than take an easier route to a safe area of Pakistan, would be evidence that he is part of al-qaida. Uthman further suggests that the government's argument about his presence in the vicinity of Tora Bora during the battle is somehow new on appeal, Pet'tr Br , and, somewhat inconsistently, that the district court fully considered and rejected this argument, Pet'tr Br. 28. The district court opinion makes clear that it understood that the government argued that Uthman's presence near Tora Borawas incriminatory. It captioned a portion ofits opinion "Whether Uthman's Seizure Near the Site ofthe Battle of Tora Bora is Incriminatory." JA 253. It also correctly summarized the government'sargumentthatuthman'spresencewithal-qaidamembersnearthebattle is "evidence of his affiliation with Al Qaeda." JA 253. However, although it 8SeRB'f//NOPORN 19 UNCLASSIFIEOIIFOR PUBLIC RELEASE

24 UNCLASSIFIEDffFOR PUBLIC RELEASE Case: Document: Filed: 12/07/2010 Page: 24 BBCRWf//NOPORN "accept[ed] respondents' evidence... as true" and stated that it would "consider it in evaluating whether the evidence as a whole supports the continued detention of Uthman," JA 255, it did not analyze this evidence in its conclusion. JA To the extent that it did consider this evidence without analyzing it expressly, it concluded only that this was not "evidence of fighting or otherwise 'receiv[ing] and execut[ing] orders.'" JA (quoting Gherebi, 609 F. Supp. 2d at 69). B. Another compelling fact linking Uthman to al-qaida is the district court's finding that Uthman traveled to Afghanistan along a route taken by al-qaida recruits. JA 262. Uthman stated that, after giving him money to travel to Afghanistan, Sheik AI-Wadi arranged for him to meet with a man named Abdul Rahman. JA 634. Abdul Rahman, in tum, provided him with travel instructions to Afghanistan. Ibid; JA 637. These instructions included detailed directions on how to reach the Taliban House in Quetta, Pakistan. JA There, Uthman stated that he met a man named Namatullah, who made arrangements for his travel into Afghanistan. JA 627, 637. Uthman's travel route matches that taken by other detainees who have admitted to being part of al-qaida or the Taliban. JA 261, 536, Uthman argues that this key district court factual finding is "virtually meaningless." Pet'tr Br. 37. But this Court has held that such travel patterns are highly probative ofwhether an individual is part ofal-qaida. See Al Odah, 611 F.3d SECItE'f11N6P6ltN 20 UNCLASSIFIEDffFOR PUBLIC RELEASE

25 Case: Document: Filed: 12/07/2010 Page: 25 s;ecrmiinoporn at 16 (considering that petitioner traveled to Afghanistan "in a manner consistent with travel patterns of those going to Afghanistan to join the Taliban and al Qaeda" in concluding that he was part of al-qaida); Al-Adahi, 613 F.3d at 1106 (same). In combination with the other evidence, most notably his presence in the vicinity oftora Bora during the battle there, Uthman's travel route supports the conclusion that he is properly detainable. C. Uthman's connections with other al-qaida members, beginning with his attendance the Furqan Institute, from which men were recruited to fight for al-qaida, and continuing until he was captured with some of these men in the vicinity of Tora Bora, further support the conclusion that he is part ofthe organization. Specifically, Uthman was captured with Mahmoud al-mujahid (ISN 31), Abed ai-malek Ahmad ai-wahab Aboud al-rahbi (ISN 37), and Majid Majmud Abdu Ahmad (ISN 41), all graduates ofthe Furqan Institute. See JA 628 (admitting that he knew Majid Majmud and al-rahbi (Abdel Malik) from the Furqan Institute); JA 630 (identifying al- Mujahid as travel companion); JA 712 (al-mujahid attended Furqan Institute). AI- Rahbi and al-mujahid have since admitted to being guards for Usama bin Laden, JA 519, 1029, and Majid Majmud has admitted to fighting for the Taliban, JA 668. Uthman's attendance at the Furqan Institute provided an opportunity for him to learn BBORB"/ /NOPORN 21

26 Case: Document: Filed: 12/07/2010 Page: 26 SECKETjjNOPOItN about al-qaida and to form relationships with the al-qaida members and bin Laden bodyguards with whom he was captured. Engaging in the same type of flawed, piecemeal analysis rejected in Al-Adahi, Uthman argues that attendance at the Furqan Institute, which was an al-qaida recruiting ground, is "virtually meaningless" and "hardly proofthat every student in the school was recruited." Pet'tr Br (emphasis in original). But the government is not arguing that every student at the Furqan Institute was a member of al-qaida. Cf Al-Adahi, 613 F.3d at 1109 ("[T]he evidence did not relate to every such person. Itrelated to a particular individual" who had other connections to al-qaida.). In the case of Uthman, who was later found with other graduates of the Furqan Institute in the vicinity of Tora Bora, the opportunity to learn about al-qaida at the Institute and the relationships he formed with other al-qaida members are certainly evidence making it more likely that he was captured near Tora Bora because he was part of al-qaida himself. 4 See Al-Adahi, 613 F.3d at 1107 ("That close association made it far more likely that AI-Adahi was or became part of the organization."). 4 Uthman argues that "there was no evidence or finding that Uthman knew any schoolmates who had an interest in al Qaeda." Pet'tr Br. 5. But the district court "accept[ed]... as true" the government's allegations that two ofuthman's traveling companions were recruited to fight jihad in Afghanistan while at the Furqan Institute, JA 260,262, and that Uthman knew at least one of these men. JA BBCRM'{ {HOFORH 22 UNCLASSIFIEDflFOR PUBLIC RELEASE

27 Case: Document: Filed: 12/07/2010 Page: 27 SECRE'!\, I NOFORH These district court findings, when viewed together in the manner required by this Court, demonstrate that Uthman was part ofal-qaida and support a reversal ofthe district court's grant of the writ. D. In addition to these findings, other evidence must be factored in when viewing the evidence as a whole. The district court, in spite of its assertion that it considered the evidence as a whole, failed to take certain evidence into account in reaching its conclusion. Specifically, the district court found that Uthman was captured without his passport, as demonstrated by the undisputed evidence. JA 257 n.20. Other men with whom Uthman was captured also did not have their passports. JA , 666, 671, 774. Indeed, Uthman's lack of a passport provides "further support" to corroborate statements that he stayed at an al-qaida guesthouse. AIOdah, 611 F.3d at 17. The district court noted that the government introduced an expert declaration 1,2,5 JA257-58n. 20 (discussingja 605). 1,2,5 JA ,2,5 JA 605. Thus, the district court's failure to consider this fact as part ofthe evidence as a whole was legal error. 8BORM//NOPORN 23

28 Case: Document: Filed: 12/07/2010 Page: 28 SECRM//NOPORN Under this Circuit's law the undisputed fact that Uthman was captured without his passport is significant evidence that he was part of al-qaida. Al Odah, 611 F.3d at E. Further evidence that Uthman is part ofal-qaida comes from the fact that he told unbelievable and patently false stories to explain his presence in Afghanistan. As discussed above, the district court found that Uthman lied in his sworn declaration, as well as in his earlier statements to investigators, when he denied that Sheik AI-Wadi paid for his travel to Afghanistan. Uthman also offered an improbable explanation for his presence with al-qaida fighters in the vicinity of Tora Bora, asserting that this happened when he was fleeing Afghanistan for his safety. JA These lies support Uthman's broader cover story that he was in Afghanistan to teach the Koran and that he was captured with "friends" from the Furqan Institute near Tora Bora by "coincidence." JA 641. Uthman's willingness to tell these lies also suggests that his "less than entirely believable" cover story about teaching, JA 262 n.26, was a lie as well. The district court should have recognized these statements as false and treated them as "strong evidence" supporting a finding that Uthman was part ofal-qaida, as required by circuit precedent. AI-Adahi, 613 F3d at Uthman argues that the district court did consider the weaknesses in his story and concluded that, regardless, the government had not met its burden ofproof. Pet'tr 8BCRB'f11N8fi18RN 24

29 Case: Document: Filed: 12/07/2010 Page: 29 Br But of the three principal issues the government noted in Uthman's story - Uthman' s claim that he taught the Koran in Afghanistan, Uthman' s false statements about who paid for his travel to Afghanistan, and Uthman's claim that he trekked through the mountains in order to leave Afghanistan for his safety - the district court discussed only the first. JA 262 n.26. Even on this point, it did not consider that Uthman's telling ofa "less than believable" story was evidence that he was part ofal- Qaida. Ibid.; see Al Odah, 611 F3d at 10 (affirming the denial of the writ to a detainee who falsely claimed that he was in Afghanistan teaching the Koran). The district court also failed to consider that Uthman could not name the students he taught or describe the location of the school where he claimed to have taught. JA 635, 642. Uthman argues that there was "no reason for him to know the names ofstreets or even of students, which were all in a foreign tongue that he could neither read nor speak." Pet'tr Br. 43. But Uthman was no casual visitor to Kabul. He claimed that he stayed in Kabul for ten months, JA 635,638, and that he lived next door to the school, JA 638, so it is extraordinary that he would not know where he lived and worked. It is also extraordinary that Uthman would not remember a single student's name. 5 5 Uthman attempts to bolster his cover story by quoting a fragment ofa sentence from an interrogation report stating that he "may have been truthful." Pet'tr Br. 15, 43. But the district court found that Uthman was not truthful in his sworn declaration SBCRET//NOPORN 25

30 Case: Document: Filed: 12/07/2010 Page: 30 aberm/ /NOPORN Uthman's unbelievable assertions and false statements are evidence of his attempts to obfuscate the truth about his time in Afghanistan. As such, they are "strong evidence" that he is part of al-qaida. When examined with the other facts found by the district court, this evidence further supports the conclusion that Uthman is legally detained. F. In the district court, the government also submitted evidence that Uthman was a bodyguard for Usama bin Laden who went by the kunya Huthaifa and that he attended al-qaida training camps and was a fighter for the Taliban in the frontlines in Kabul. On appeal, we have not relied upon evidence ofthose allegations as grounds for reversal, but Uthman nevertheless argues. that the evidence offered to prove them is flawed. For example, the government provided the district court with statements of two other detainees that identified Uthman as a bodyguard for Usama bin Laden, but the district court disregarded these statements in their entirety. JA Uthman now emphasizes that there is disagreement between translators as to whether one ofthe detainees called Uthman "Huthaifa" or "Khuthaifa." Pet'tr Br This dispute, which stems from a question regarding the significance ofa dot on the page, JA , is irrelevanttothe government's arguments on appeal. Our opening brief when he stated that he had paid for his travel to Afghanistan himself. JA , SECReTl/NOPORN 26

31 Case: Document: Filed: 12/07/2010 Page: 31 S CRE'f//NOPORN makes clear that we are not asking this Court to address the district court's finding on the bodyguard allegations on appeal. 6 Similarly, Uthman asserts that it is implausible that he attended multiple al-qaida training camps in Afghanistan, Pet'tr Br. 44, but these allegations are not at issue on appeal. Finally, Uthman suggests that if the government's claims were true, the government would have even more evidence linking him to al-qaida. Pet'tr Br. 44. But, although the government has the ultimate burden ofproofto show that Uthman is part ofal-qaida, the Supreme Court has recognized that gathering evidence during ongoing military conflict presents special burdens. Hamdi v. Rums/eld, 542 U.S. 507, (2004) (plurality opinion); see also Al-Bihani, 590 F.3d at 880 (allowing admission of hearsay because it "comports... with the requirements of this novel circumstance"). In this case, for example, documentary evidence identifying Uthman was rejected because its source cannot be fully declassified, and another piece of documentary evidence, a training camp attendance list, was rejected because the kunya Hudaitha was insufficiently linked to Uthman. In spite of these difficulties, which prevented the district court 6 The government does argue that, if this case is remanded, the district court should be required to reconsider its decision to disregard entirely these detainees's statements, which we demonstrated to be reliable and probative. Accordingly, we reserve the right to raise these allegations in the district court ifthis case is remanded. See Gov't Opening Br SBCRM/ /NOPORN 27

32 Case: Document: Filed: 12/07/2010 Page: 32 SBORWf//NOPORN from concluding that Uthman served Usama bin Laden as a bodyguard, attended an al-qaida training camp, or fought on the frontlines in Kabul, the remaining evidence shows that (1) Uthman attended the Furqan Institute in Yemen, which was a recruiting ground for al-qaida, (2) Uthman traveled to Afghanistan along the route used by al- Qaida recruits, (3) his trip was funded by Sheik AI-Wadi and that he lied to hide this fact, (4) he was seen at al-qaida guesthouses, (5) JA 605, (6) he went into the mountains in the vicinity oftora Bora during al-qaida's last stand there, (7) he did so in the company of approximately 30 men, at least some of whom were al-qaida fighters who, like Uthman, attended the Furqan Institute, and (8) that he put forward wholly incredible and patently false cover stories to explain his actions. When viewed as a whole as Al- Adahi requires, these facts are more than sufficient to demonstrate that Uthman is part of al-qaida. Respectfully submitted, IAN HEATH GERSHENGORN Deputy Assistant Attorney General DOUGLAS N. LETTER ROBERT M. LOEB BBORiR//NOPORN 28 UNCLASSIFIEDIlFOR PUBLIC RELEASE

33 Case: Document: Filed: 12/07/2010 Page: 33 BBORIW//NOPORN DANA KAERSVANG (202) Attorneys, Appellate Staff Civil Division, Room 7230 Us. Department ofjustice 950 Pennsylvania Ave., NW Washington, D.C October 27,2010 8BCRM//NepeRN 29

34 Case: Document: Filed: 12/07/2010 Page: 34 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 in Times New Roman 14-point type, and that it contains 6,879 words, excluding the portions ofthe briefexcluded by Fed. R. App. P. 32(a)(7)(B)(iii). Dana Kaersvang Counsel for Respondents secfte'f/inepokn

35 Case: Document: UNCLASSIFIEDIIFOR PUBLIC RELEASE Filed: 12/07/2010 Page: 35 s:ecrm'f fnoporn CERTIFICATE OF SERVICE I hereby certify that on October 27, 2010, I filed and served the foregoing Reply Brief for Respondents-Appellants by delivering an original and seven copies for the Court, and two paper copies for counsel ofrecord listed below, to the Court Security Officer. S. William Livingston Allen Pemberton Anthony Phillips Covington & Burling 1201 Pennslyvania Ave., N.W. Washington, D.C David H. Remes 1106 Noyes Drive Silver Spring, MD Marc Falkoff Northern Illinois University College of Law Dekalb, IL Dana Kaersvang Counsel for Respondents 8JaORMff ReFeRR