[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: 12/22/2010 Page: 1 SECRETh'HOFORt~ [ORAL ARGUMENT NOT YET SCHEDULED] No IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT YASEIN KHASEM MOHAMMAD ESMAIL, Petitioner- Appellant, v. BARACK H. OBAMA, et ai., Respondents-Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BRIEF FOR RESPONDENTS-APPELLEES TONY WEST Assistant Attorney General DOUGLAS N. LETTER ROBERT M. LOEB ANNE MURPHY (202) Attorneys, Appellate Staff Civil Division, Room 7644 U.S. Department ofjustice 950 Pennsylvania Ave., N. W. Washington, D.C ECft:E'fffHOFO ft:,~

2 Case: Document: Filed: 12/22/2010 Page: 2 SECRETllt~OFORH CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES Pursuant to Circuit Rule 28(a)( 1), the undersigned counsel certifies as follows: A. Parties and Amici. Petitioners in the district court are Mahmoad Abdah, Mahmoad Abdah Ahmed, Majid Mahmoud Ahmed, Mahmoud Ahmed, Abdul Malik Abdul Wahhab Al-Rahabi, Ahmed Abdul Wahhab, Makhtar Yahia Naji Al-Wrafie, Foade Yahia Naji Al-Wrafie, Aref Adb 11 Rheem, Aref Abd Al Rahim, Yasein Khasem Mohammed Esmail, Jamel Khasem Mohammad, Adnan Farhan Abdul Latif, Mohamed Farhan Abdul Latif, Jamal Mar'i, Nabil Mohamed Mar'i, Uthman Abdul Raheem Mohammad Uthman, ArafAbdul Raheem Mohammed, Adil EI Haj Obaid, Nazem Saeed El Haj Obaid, Mohamed Mohamed Hassan Odaini, Bashir Mohamed Hassan Odaini, Sadeq Mohammed Said, Abd Alsalem Mohammed Saeed, Farouk Ali Ahmed Saif, Sheab Al Mohamedi, Salman Yahaldi Hsan Mohammed Saud, YahivaHsane Mohammed SaudAl-Rbuaye. Appellees agree with Appellant that the only party to this appeal is petitioner-appellant Yasein Khasem Mohammad Esmail. Appellees in this Court are: Barack Obama, President of the United States; Robert Gates, Secretary ofdefense; Admiral Jeffrey Harbeson, United States Navy, Commander, Joint Task Force-GTMO; and ArmyCol. Donnie Thomas, Commander, Joint Detention Group, Guantanamo Bay. SEERETNt40FORt4

3 Case: Document: Filed: 12/22/2010 Page: 3 SEeRETHt~OFORN No intervenors or amici have appeared in the district court or this Court. B. Rulings Under Review. The district court's rulings before this Court for review are the trial court's April 8, 2010 opinion and order denying the petition for habeas corpus (JA 243 and 244), and its June 14,2010 order denying petitioner's motion for reconsideration (id. 287). C. Related Cases. The consolidated proceeding in the district court has given rise to appeals previously before this Court. See Abdah v. United States, Nos , (D.C. Cir.). These appeals were remanded to the district court for further proceedings in light ofthe Supreme Court's opinion in Boumediene v. Bush, 553 U.S. 723 (2008). See Al Odah v. United States, Judgment, No (D.C. Cir. June 25, 2008). This case was also before this Court on appeal from a discovery order. See Abdah v. United States, No It was remanded to the district court. See Al Odah v. United States, 559 F.3d 539 (D.C. Cir. 2009). There is also an appeal currently pending before this Court regarding the district court's order requiring the government to give petitioners 30 days notice before any transfer. See Abdah v. Obama, No (D.C. Cir.). :;Eeft:ETtll~eFeft:l~ 11

4 Case: Document: Filed: 12/22/2010 Page: 4 Several other appeals of district court orders granting or denying a writ of habeas corpus to individuals detained at Guantanamo Bay, Cuba, are pending in this Court. See,e.g.,Abdahv. Obama, Nos , (D.C.Cir.). Thosecases, however, do not involve the "same parties," and are thus not related pursuant to Circuit Rule 28(a)(l)(c). Counsel is not aware at this time of any other related cases within the meaning of Circuit Rule 28(a)(l)(c). Anne Murphy Counsel for Respondents-Appellees ~Ee~E;f""I~eFeft:l~ iii

5 Case: Document: Filed: 12/22/2010 Page: 5 TABLE OF CONTENTS CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES GLOSSARY STATEMENT OF JURISDICTION QUESTIONS PRESENTED STATEMENT OF THE CASE STATEMENT OF THE FACTS A. The Government's Evidence Showing That Esmail Was Part Of AI-Qaida 1. Esmail Leaves Yemen for Afghanistan at the Urging of a Known al-qaida Recruiter, Specifically To Train For Jihad 2. Esmail Stays At al-qaida Guesthouses And Trains Extensively At al-qaida Paramilitary Training Camps 3. Esmail Travels To Tora Bora, Where He Is Captured With Other al-qaida Fighters B. Esmail's Revised Account of his Actions 12 SECRETHt~OFORU 1 UNCLASSIFJEDIIFOR PUBLIC RELEASE

6 Case: Document: Filed: 12/22/2010 Page: 6 5ECRE'fh't.8F8Rt. C. Esmail's Allegations of Serious Abuse and the Government's Evidence Rebutting Them Bagram Kandahar Guantanamo Bay.. 20 D. The District Court's Opinion Legal Standard for Detention Factual Findings 22 SUMMARY OF THE ARGUMENT STANDARD OF REVIEW ARGUMENT THE DISTRICT COURT CORRECTLY HELD THAT ESMAIL IS LAWFULLY DETAINED UNDER THE AUMF BECAUSE HE IS PART OF AL-QAIDA A. The District Court's Factual Findings Strongly Support Its Conclusion That Esmail Was "Part Of' Al-Qaida 32 5EC~ET7'7't~eFe~t~ 11

7 Case: Document: Filed: 12/22/2010 Page: 7 SEeRETh't~OFORt~ B. The District Court's Findings Were Not Clearly Erroneous. " The District Court Had Ample Evidentiary Support For Rejecting Esmail's Repudiation of His Statements Esmail's Challenges To The Findings That He Knowingly Received Training From AI-Qaida and Stayed At AI-Qaida Guesthouses Are Without Merit. 54 C. The District Court Did Not Err In Failing To Apply A Corroboration Requirement For Jury Trials In Criminal Cases CONCLUSION 63 CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(7)(C) OF THE FEDERAL RULES OF APPELLATE PROCEDURE CERTIFICATE OF SERVICE SEeRETllt~eFeRt~ 111

8 Case: Document: Filed: 12/22/2010 Page: 8 5Ee~E'f7'''I46F6~I4 TABLE OF AUTHORITIES Cases: Page *AI Adahi v. Obama, 613 F.3d 1102 (D.C. Cir. 2010) 34,35,36,41,55,56,59 Al Alwi v. Obama, D. C. Cir. No (argued November 4,2010) 59 *AI Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010) 33,34,35,36,59,60,61 AIOdah v. United States, 611 F.3d 8 (D.C. Cir. 2010), pet. for cert.filed, No (S. Ct. Sept. 28, 2010) 31,35,36 Anderson v. City ofbessemer, 470 U.S. 564 (1985) 32,39,51 *Awad v. Obama, 608 F.3d 1 (D.C. Cir. 2010) 27,31,32,33,35 Barhoumi v. Obama, 609 F.3d ,33,35 Bensayah v. Obama, 610 F.3d 718 (D.C. Cir. 2010), 33,35 Boumediene v. Bush, 128 S. Ct (2008) 1 * Cases upon which we chiefly rely are marked with asterisks. Daeche v. United States, 250 F. 566 (2d Cir. 1918) 60 Elliott v. u.s. Dep 't ofagriculture, 596 F.3d 842 (D.C. Cir. 2010) 59 5EERETh'I.6r6RI. IV

9 Case: Document: Filed: 12/22/2010 Page: 9 SE RETh'U8F8RU Gherebi v. Obama, 69 F. Supp. 2d 43 (D.D.C. 2009) 22,33 Kiyemba v. Obama, 561 F.3d 509 (D.C. Cir. 2009) 1 Opper v. United States, 348 U.S. 84 (1954) 62 *Salahi v. Obama, 2010 WL , No (D.C. Cir. Nov. 5,2010) 33-34,35 Smith v. United States, 348 U.S. 147 (1954) 59,60,61 United States v. Brown, 334 F.3d 1161 (D.C. Cir. 2003) 32 United States v. Dickerson, 163 F.3d 639 (D.C. Cir. 1999) 60 United States v. Hart, 324 F.3d 740 (D.C. Cir. 2003) 35 United States v. Johnson, 589 F.2d 716 (D.C. Cir. 1978) 62 United States v. McCoy, 242 F.3d 399 (D.C. Cir. 2001) 39 Statutes: 28 U.S.C " 2 28 U.S.c. 1292(a)(1) 2 28 U.S.C. 2241(a) 1 5Eeft:E'fill~eFeft:l~ v

10 Case: Document: Filed: 12/22/2010 Page: 10 1; EeI\E''''/I~e Fe Rt~ 28 U.S.c. 2253(a) 2 The Authorization for Use ofmilitary Force, Pub. L , 115 Stat. 224 (2001) 32 Other Authorities: Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization & the War on Terrorism, 118 Harv. L. Rev (2005) Department of Defense Directive E (Sept. 5,2006) MCCORMICK ON EVIDENCE 145 (6th ed. 2006) ,62 1;EeRE'fllt~eFel\t~ VI

11 Case: Document: Filed: 12/22/2010 Page: 11 UNCLASSIFIEOIIFOR PUBLIC RELEASE 5ECft:E=rHr~eFeft:r~ GLOSSARY AUMF CSRT FBI. ISN Authorization for Use ofmilitary Force, Combatant Status Review Tribunal Federal Bureau ofinvestigation Internment Serial Number RPG Rocket-propelled Grenade!!C~!Tffl~Ofl'O~I~ UNCLASSIFIEOIIFOR PUBLIC RELEASE

12 Case: Document: Filed: 12/22/2010 Page: 12 [ORAL ARGUMENT NOT YET SCHEDULED] IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No YASEIN KHASEM MOHAMMAD ESMAIL, Petitioner- Appellant, v. BARACK H. OBAMA, et ai., Respondents-Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BRIEF FOR RESPONDENTS-APPELLEES STATEMENT OF JURISDICTION Petitioner Yasein Khasem Mohammad Esmail invoked the district court's jurisdiction under 28 U.S.C. 2241(a), see Kiyemba v. Obama, 561 F.3d 509, (D.C. Cir. 2009), and directly under the Constitution, see Boumediene v. Bush, 128 S. Ct. 2229, 2278 (2008) (Souter, J., concurring) ("Subsequent legislation eliminated the statutory habeas jurisdiction over these claims, so that

13 Case: Document: Filed: 12/22/2010 Page: 13 5EC~E'fffHOFOIU~ there must now be constitutionally based jurisdiction or none at all"). On April 8, 2010, the district court entered judgment denying Esmail's petition. JA 243. This was a "final order" in relation to Esmail's habeas proceeding. See 28 U.S.c. 2253(a). Esmail sought reconsideration, which the district court denied on June 14,2010. See JA 290. Esmail filed a timely notice ofappeal from both orders on August 11,2010. JA 291. This Court has jurisdiction under 28 U.S.C. 1291, 1292(a)(1), and 2253(a). QUESTIONS PRESENTED I. Whether the district court erred when it concluded that petitioner was part of al-qaida, based on the following factual findings: that petitioner was urged by an al-qaida facilitator to travel from Yemen to Afghanistan for jihadist training, and petitioner made that trip; and that when petitioner arrived in Afghanistan he attended al-qaida military training camps, took advanced weapons training, stayed at al-qaida guesthouses, and fought for al-qaida in Tora Bora. II. Whether the district court's factual findings were clearly erroneous, either because the district court should have accepted Esmail's later repudiations ofhis statements about his al-qaida activities, or because the evidence did 5EC~ETllt~eFe~t~ 2

14 Case: Document: Filed: 12/22/2010 Page: 14 SEERETHU8r8RU not support the trial court's finding that Esmail knew the training camps and guesthouses he used were run by al-qaida. III. Whether the trial court erred by failing to apply a corroboration rule for criminal jury trials, when that rule does not apply in this habeas proceeding and the statements at issue are, in any event, adequately corroborated. STATEMENT OF THE CASE This appeal arises from a petition for a writ ofhabeas corpus filed by petitioner Yasein Khasem Mohammad Esmail (ISN 522), 1 challenging the lawfulness of his military detention by the United States at Guantanamo Naval Base, Cuba. The district court denied the writ and Esmail appeals. STATEMENT OF THE FACTS The trial court held a three-day merits hearing in Esmail's habeas proceeding. Esmail chose not to testify. 1ISN stands for "Internment Serial Number." Department ofdefense Directive 2310 IE requires that each detainee held at Guantanamo Bay be assigned such a number as soon as possible after capture. Department ofdefense Directive E at 3 (Sept. 5,2006). SEeRET"'t~OFORt~ 3

15 Case: Document: Filed: 12/22/2010 Page: 15!!eIU!Tttl~OP'O~I~ A. The Government's Evidence Showing That Esmail Was Part Of AI-Qaida. 1. Esmail Leaves Yemen for Afghanistan at the Urging of a Known al-qaida Recruiter, Specifically To Train For Jihad. In late January 2002, Esmail said that he had "entered Afghanistan approximately two years [earlier] in order to join the Chechen jihad, but never got there." JA Esmail was encouraged to travel to Afghanistan by Abu Khalud, whom he met at the Furqan mosque in Taiz, Yemen. See JA 867; see also JA 860 (Abu Khalud "traveled between [Yemen] and [Afghanistan] to recruit male Muslims for military training," and "used the Farkun mosque in Taiz, * * * [Yemen] as a recruitment site."). 3 Esmail "believed Khalud supported AI- Qaeda and the jihad against America." JA 867. Esmail decided to go to Chechnya to fight the Russians there, and "Khalud explained that [E]smail should first go to Afghanistan where he could receive the proper military training." JA 868. See also JA 874 ("Khalud said there was no doubt [Esmail] could go [to] Chechnya, 2 Although some of the intelligence reports are written entirely in capital letters, this brief quotes them using standard lower- and upper-case text. 3 This intelligence report designates Esmail by the serial number _instead of by the ISN later assigned to him at Guantanamo. SEeRETNU8F8RU 4

16 Case: Document: Filed: 12/22/2010 Page: 16 SEe~El'tft~eFe~t~ but that he must go to Afghanistan first to train") Esmail knew personal details about Abu Khalud. Khalud was a Yemeni who had "worked and lived in Bosnia" before taking up his current job as an al- Qaida travel facilitator. JA 860; see also JA 863. Esmail reported, for example, that Khalud had a "round scar in [the] middle of [his] forehead from [a] bullet injury." JA 868. (Another detainee had also told interrogators that Abu Khalud suffered a gunshot wound to his head while in Bosnia JA ) Abu Khalud "made travel arrangements" for Esmail from Yemen to al Qaida's Al Farouq training camp in Afghanistan. JA 863; see also JA 860 ("I do not know who paid for the tickets, but Abu Khalud took my information and asked if 1 was ready to go."). Khalud took Esmail's passport and an extra passport photograph. JA 868. Two months later, Esmail received a telephone call from an unknown caller, who told him to travel to Sanaa, the capital of Yemen, and stay at a particular hotel. Ibid. Esmail followed these directions. Ibid. When Esmail reached the hotel, a man he did not know returned his passport, together with a visa for Pakistan and an airline ticket to Karachi. Ibid. Esmail did not pay the 4 This second detainee also reported that Abu Khalud twice swore bayat to Usama bin Laden. See JA 980. SEERETh'U8F8RU 5

17 Case: Document: Filed: 12/22/2010 Page: 17 man for his visa or ticket. Ibid.; see also JA 1271 (Esmail's CSRT testimony that "somebody else got the ticket for me"). Esmail flew from Yemen to Karachi, via Dubai, with two other Yemenis. JA 863; see also JA 868. A few days later, the three Yemenis were joined by a Pakistani man, Abu Uthman, and the four traveled together by bus to Quetta, Pakistan, and then to Kandahar, Afghanistan. Ibid. See also Add. 1 (map);5 JA 863, 861 (this was the usual route for recruits). 2. Esmail Stays At al-qaida Guesthouses And Trains Extensively At al-qaida Paramilitary Training Camps In Kandahar, Esmail and his companions went to a guesthouse "[d]iagonally across the street" from the Haji Habash mosque. JA 869. "Khalud was already at the guesthouse awaiting [E]smail." Ibid. According to Esmail, some men used this "guesthouse for transit to a training camp while others stayed to continue to other countries." Ibid. Other government evidence showed that this particular al- Qaida guesthouse "was used as a transition point an for individuals going to train at various training camps JA A regional map is included as an Addendum to this brief because the reproductions ofthe maps in the Joint Appendix (at ) are not clear enough to read. SE RETNU8F8RU 6

18 5 Case: Document: Filed: 12/22/2010 Page: 18 UNCLASSIFIEDffFOR PUBLIC RELEASE SECRET;'ft~OFORU (Declaration ("Guesthouses") of Senior Intelligence Analyst Ibid. After a brief stay in a second al-qaida guesthouse, see JA 869, Esmail, in a group of ten to fifteen other men, "boarded a former military style bus" and was taken to a military training camp, ibid. Esmail on numerous occasions identified this camp as Al Farouq. See JA 853, 861, 863,. _ JA 939 (Declaration ("Terrorist Training Camps") of Senior Intelligence Analyst Ibid. JA 939, 940. After basic training, Esmail was selected for advanced training at Al Farouq. See, e.g. 5Eeft:E'fI7'I~eFeft:l4 7

19 Case: Document: Filed: 12/22/2010 Page: 19 JA 911 (after basic training at Al Farouq, Esmail "attended mountain tactics training" there for "approximately two months"). Esmail admitted that he also went on to advanced training outside Al Farouq. See, e.g., JA 856 (Esmail had "trained at 3 different camps"); JA 870 (Esmail reported sessions at "the Malek training camp" and "the Aasil training camp"); JA 875 (Esmail took "anti aircraft, heavy artillery and Surface to Air Missile (SAM 7) courses" at "the Malek training camp"); JA 912 (two one-month courses at Malek) 7 The government's evidence detailed how Esmail "received much more training tha[n] the average fighter in Afghanistan." JA 858. (January 2002 Summary Intelligence Report for Esmail). Esmail "received specialized training in air defense, artillery, PK machine gun and mine laying," ibid., including courses on "anti aircraft, heavy artillery and Surface to Air" missiles, and training in 7 After May 2004, although Esmail continued to acknowledge that he attended "the AI-Farouq training camp for four months" he refused to discuss attendance at any other camp "because he [was] tired of answering the same questions over and over." JA 916. SEeRETHUOFORt~ 8

20 Case: Document: Filed: 12/22/2010 Page: 20 )!el\!,.,,14erei\14 "mortars and seventy-five and eighty-two mil[l]imeter cannons," JA 875. See also JA 912 (detailing the different types of mines Esmail had been trained to use, and his training in "the placement, extraction and camouflage of anti-tank and antipersonnel mines."). This advanced training on heavy weapons complemented Esmail's basic training on lighter weapons, such as the Kalashnikov rifle, and his courses on topography and explosives. See JA 875. Between his paramilitary training sessions, and again shortly before he joined the battle, Esmail said he had stayed at al-qaida guesthouses or safehouses. See, e.g., JA 875 (describing numerous guesthouse stays, including one at the Azam guesthouse in Kabul); JA 883 (Esmail knew that the Azam guesthouse had al-qaida connections); JA 876 (Esmail stayed at the "Ejm al Jihad" ("star of the struggle," JA 871) guesthouse in Jalalabad); JA 871 (also reporting the stay at "Najma AI-Jihad" guesthouse). Esmail reported that "food and drink were free in the guesthouses." JA 893. At one of the guesthouses he stayed at in Kabul he saw Richard Reid, a member of al-qaida known as the shoe bomber. JA 872. Esmail stated that he saw Usama bin Laden, al-qaida's leader, at three separate al-qaida guesthouses - one in Kabul, one in Kandahar, and the one in Jalalabad. Ibid. See also JA 901; JA 906. SECI\El'11HOf'OI\H 9

21 Case: Document: Filed: 12/22/2010 Page: 21 5Eeft:E'fffl46F6ft:14 Between periods ofparamilitary training in Afghanistan, Esmail spent approximately four months at the Institute for Islamic!Arabic Studies, see JA 870, an organization the government's evidence showed was funded entirely by al- Qaida and run by one ofal-qaida's senior leaders. See JA 991 ("the Islamic Institute was financed directly by Usama bin Laden"); JA 900 (Abu Hafs, "a committed jihadist," was "the religious leader for the Islamic school in [K]andahar") JA 1006 (Bin Laden chose Abu Hafs "as the Sharia group committee leader of al Qaida"). See also JA 853, 870 (Esmail was associated with the Institute). Further, the Islamic Institute was in the building formerly used as an al-qaida guesthouse - the guesthouse where Abu Khalud had first taken Esmail. la Esmail Travels To Tora Bora, Where He Is Captured With Other al-qaida Fighters On September 11,2001, the date of the terrorist attacks on the United States, Esmail was in Kandahar. JA 871. Soon afterwards, Esmail went to Kabul, then to the Najma AI-Jihad al-qaida guesthouse in Jalalabad. Ibid. Hearing that Arabs were heading to Tora Bora, Esmail and others headed for the Tora Bora mountain region. Ibid. "He stayed with fifteen * * * others in the mountains for approximately one month." Ibid. See also JA 876 (Esmail "stayed in Jalalabad for SECftEl'IlHOFOftH 10

22 Case: Document: Filed: 12/22/2010 Page: 22 5!CI\!TJ ll~oiloi\i~ two weeks, then went to Tora Bora"); JA 1329 (those at the Jalalabad guesthouse who wanted to escape the U.S. bombing campaign went to Khost, whereas "those who went to Tora Bora stayed to fight"); JA 899 (Esmail claimed not to fight at Tora Bora but admitted he had "narrowly missed being shot by a tank"); but see JA 1270 (CSRT testimony) ("I was not in Tora Bora for more than one day"). "Tora Bora is the name of a cave complex situated in the White Mountains of Eastern Afghanistan * * *." JA 1323 (2008 expert declaration of Senior Intelligence Analyst Natural caves in the complex were "enhanced with hydroelectric power," stocked with "food, water and ammunition," and "capable ofhousing more than one thousand fighters." Ibid. Usama bin Laden had used Tora Bora as his headquarters in the 1990s, ibid., and he returned there by early November, 2001, with "other al-qaida and Taliban leaders, and an estimated one to two thousand fighters," JA for al-qaida. JA 949 (2009 expert declaration of Senior Intelligence Analyst Ibid. In November, 2001, "a small contingent of U.S. and Afghan forces began to infiltrate Tora Bora to trap bin Ladin and his fighters." JA Usama bin ~EeR:E"fhf,~eFeR:'~ 11

23 Case: Document: Filed: 12/22/2010 Page: 23 3I!!e~I!!T" 14ere~14 Laden issued a "widely known call for fighters to join him and his cadre of al- Qaida leaders at Tora Bora for a last battle against the U.S. and its allies * * *." JA 950. "The battle of Tora Bora ensued with significant air strikes" by the United States and almost two months of fighting. JA Esmail was taken into custody in a "village near Tora Bora" after he and two other men "surrendered" after they had "descended from" the mountains. J.A 848. Both Esmail's companions also surrendered, and both were al-qaida fighters who fought at Tora Bora. See JA (one ofesmail's companions, Omar Saeed Salem al-daini (ISN 549), "was shown to a position" on the al-qaida line in Tora Bora); JA 1166 (the second companion, Khalid Ahmed Kassim (rsn 242), was captured "in Tora Bora * * * with" Esmail, and first met Esmail at Tora Bora); JA 1159 (Kassim was "fleeing the Tora Bora" with Esmail). Al-Daini had been "wounded in the leg by a missile," JA1829, and Esmail helped his injured comrade down from the mountains, see JA 908. B. Esmail's Revised Account of his Actions. As outlined above, the government's evidence demonstrated that after Esmail first arrived in United States custody in early 2002, see JA 931, he reported that his travel to Afghanistan had been arranged by an al-qaida facilitator, that he had stayed in al-qaida guesthouses and received both basic and advanced 31!!e~I!!T;; 14ere~14 12

24 Case: Document: Filed: 12/22/2010 Page: 24 paramilitary training at various al-qaida camps, that he had been closely enough associated with al-qaida to have seen Usama bin Laden three times, and that he had traveled to the Tora Bora region and been captured coming down from the Tora Bora mountains with al-qaida fighters. Starting with his statement to a Combatant Status Review Tribunal in June 2004, however, Esmail's story changed. See JA At the CSRT hearing, Esmail testified he had wanted to get married in Yemen "but for some reason my marriage was not approved." Ibid. See also JA 1629 (Esmail's January 2009 declaration). In his declaration prepared in 2009 for his habeas proceeding, Esmail said that he spent his own money on a ticket to Afghanistan, JA 1630, and was able to make his way in Afghanistan without much money because "everything was very cheap there," ibid. Esmail described his two years in Afghanistan as a "peaceful, reflective, spiritual, and solitary experience." JA Even in 2009, however, Esmail admitted that his peace was interrupted by "some weapons training * * * at the al Farouq camp," which Esmail now said he "thought * * * was simply a charity camp, another form of the Pashtun hospitality." Ibid. Esmail went back a second time for "additional weapons training at the al Farouq camp." Ibid. According to Esmail's revised account, he took weapons training "to occupy [his] 5E@RE'fNU8P8IU4 13 UNCLASSIFIEDIlFOR PUBLIC RELEASE

25 Case: Document: Filed: 12/22/2010 Page: 25 5ECRE"fIlI<jOFORM spare time," and never realized that the camp was affiliated with al-qaida. Ibid. Esmail now maintains that the militants who supplied Esmail's training did not ask him who he was before they allowed him to participate, or try to recruit him once he was trained. Ibid. Esmail also retracted his statements about traveling to Tora Bora after September 11, In 2009, Esmail said instead that he had been kidnapped in Kabul by "men in Taliban clothing" and held for approximately 2 months, until December 12,2001. JA Esmail's kidnappers then allegedly took him "to a place in the mountains near the Afghan-Pakistan border where they picked up two other Yemenis." Ibid. Esmail's captors then allegedly took him to a prison in Jalalabad. Ibid. See also JA (Esmail's 2010 Declaration providing a more elaborate version ofthe kidnapping story). Esmail stated that the prison gave "a piece of paper the size of a Subway napkin" as a "receipt" for the Yemeni captives. JA c. Esmail's Allegations of Serious Abuse and the Government's Evidence Rebutting Them. Esmail's recent declarations account for the abrupt change in his story by alleging that his earlier statements were "lies" he invented to protect himself from abuse or torture. JA In 2010, Esmail alleged that in the Afghan prison in ~!CIU!T7J I~O"OI\I~ 14

26 Case: Document: Filed: 12/22/2010 Page: 26 3I!eft:I!TJ J14ereft:14 Jalalabad, he was tortured and, to avoid torture, he "invented details" about whatever statements "the interrogators seemed to believe or like." JA "For example, they liked to hear about training camps, so, even though I only ever trained at al Farouq, I told them I received training at other places in Afghanistan." Ibid. From then on, according to Esmail, he repeated "the lies that had saved him" earlier. JA Esmail also explained why he decided to change his story when he attended his CSRT hearing. Before that hearing, Esmail testified, there was "no law" and "no attorneys to defend me." JA At the current juncture in his habeas case, Esmail alleges that he has been seriously abused in each of the three locations where he has been held in United States custody: at Bagram Air Base in Afghanistan from approximately January 20,2002, until February 2,2002; at a detention facility in Kandahar, Afghanistan, from February 2, 2002 to May 1, 2002; and finally at Guantanamo Bay. See JA Esmail's two declarations, from January 2009 and March 2010 (id. 927 and 1873, respectively), include these allegations. His March, 2010 declaration 8 In February 2002, Esmail told an FBI interviewer that Afghan guards at the prison in Kabul "beat and tortured him." JA 871. But Esmail provided no details and did not say that the alleged abuse was intended to induce false statements by Esmail, or that it in any way affected his statements to the FBI. 3I!eft:I!TJ J14ereft:14 15

27 Case: Document: Filed: 12/22/2010 Page: 27 also alleges that Esmail was abused in Afghan custody before he was handed over to the United States. 1. Bagram. In January 2009, Esmail alleged that at Bagram he was held "outdoors in extremely cold conditions," and beaten, and that American soldiers stood on him. JA 932. In March 2010, in a second declaration submitted only four days before trial, Esmail added new allegations that upon his arrival at Bagram, he had been thrown from a helicopter so hard that he broke his nose, JA 1883, and that he was stripped naked during processing into the facility, ibid. Esmail also first alleged in March, 2010 that his "first interrogation did not take place in an interrogation room or inside the airport hangar," but "in a ditch that the soldiers and prisoners used as a toilet." JA After being interrogated with "many questions" in the ditch, Esmail's captors "took me out and rinsed me off with water from a hose," before interrogating him again. Ibid. In response to Esmail's 2009 declaration, the government submitted evidence rebutting the allegations of torture and other abuse at Bagram. This evidence included a declaratio~(ja ), an Army interrogator who interviewed Esmail when he first arrived at Bagram. See JA 1262.~as present at Bagram during Esmail's detention there, JA 1262, and he had an opportunity to describe, from personal experience, the detainees' 5Eeft:E'fHI~eFeft:l~ 16

28 Case: Document: Filed: 12/22/2010 Page: 28 UNCLASSIFIEOIIFOR PUBLIC RELEASE 5EeRETt/t~eFeRt~ living conditions and the way they were treated, see JA explained the intake procedures for Bagram detainees, which included hooding and a visual strip search. See JA He stated that during interrogations, detainees "were not stripped, hooded or shackled." JA Nor were dogs used -_"didnot see a military working dog while [he] was at Bagram." Ibid. _'didnot employ any coercive interrogation techniques" at Bagram. JA _confirmed that the Bagram detainees were housed in a "very large airplane hangar" that was "chilly" because the "hangar door remained open and it was winter." JA A wooden floor built to insulate detainees from the cement underneath had to be removed when detainees used nails from the wood flooring as weapons. Ibid. Because detainees could also use boots as weapons, "they were given heavy wool booties" like hiking boot liners. JA During this period, detainees and U.S. servicemembers alike ate military rations, lived in quarters "exposed, at least in part, to the elements, and had no washing facilities." Ibid. In a second declaration _stated that while he was at Bagram during the same period as Esmail, he had never heard of any detainee "being thrown in or interrogated in a latrine." JA who actually saw the latrine at Bagram being dug, see JA 1857, explained why Esmail's allegations 9E@ftETNU8P8RU 17 UNCLASSIFIEOIIFOR PUBLIC RELEASE

29 Case: Document: Filed: 12/22/2010 Page: 29 5Eeft:E'fIfI~eFe ft:1~ about being questioned in a latrine make little sense. During this period, a very large latrine trench (at least ten feet long, three feet wide and twelve feet deep), was almost covered by boards or pallets that ran the length of the ditch, with only a foot-wide gap between them. See JA "Throwing a detainee into the latrine would have been very difficult" because one of these very heavy boards or pallets would have had to be moved. Ibid. Moreover, "there was no running water at the Bagram detention facility," and _who interviewed Esmail almost daily, did not see anyone who looked or smelled as if they had fallen or been pushed into the latrine. Ibid. 2. Kandahar. In 2009, Esmail alleged that he was subjected to the following types of abuse at Kandahar: religious abuse, beatings and electric shocks; being "forced to remain on our knees in the heat of summer;" being stripped naked and hooded; and being frequently terrorized by dogs. JA 932. In his March 2010 declaration, Esmail added that upon his arrival in Kandahar he was thrown from the plane, JA 1888; that his clothes were cut off and a lengthy intake interview was conducted while he was naked, JA ; that his subsequent interviews were conducted late at night, JA 1889; and that he was buried up to his neck in a hole in the ground, JA ECRE'fIlHOFORH 18

30 Case: Document: Filed: 12/22/2010 Page: 30 UNCLASSIFIEOIIFOR PUBLIC RELEASE To rebut Esmail's 2009 declaration, the government submitted the declaration of a Special Agent with the FBI who interviewed detainees every day at the Kandahar detention facility from February 7 to March 21, See JA was able to describe, from personal experience, the way detainees were questioned at the time when Esmail was there. JA In each interview,. and his partner followed standards of practice that included being "friendly and establish[ing] a rapport" with the detainees, and never used threats or coercion. JA never saw detainees being abused at Kandahar, never saw "any evidence" of abuse, and never heard any detainee complain of abuse. JA He "never observed detainees without clothing" except during intake procedures, "never observed military dogs being used to threaten detainees," and never observed any United States official "interfering with the detainees' prayer time or disrespecting the Koran." Ibid. remembered Esmail, and testified that when he interviewed Esmail, Esmail "appeared healthy," and showed no physical injuries. JA Esmail "did not display any hostility or fear" during his interview. Ibid. 9 Esmail arrived in Kandahar on February 2,2002. JA E@RE"SU8fi8RU 19 UNCLASSIFIEOIIFOR PUBLIC RELEASE

31 Case: Document: Filed: 12/22/2010 Page: 31 SEfRE'fNU8P8RU _ second declaration, rebutting Esmail's 2010 allegations, explained that detainees arriving at Kandahar walked down a ramp from the plane to the ground. JA Although detainees undressed as part of the intake procedure, "never saw a detainee's clothing cut off or forcibly removed." JA Detainees were usually interviewed during the day, and. did not recall any interviews of detainees occurring after 11 p.m. JA "never observed or heard of anyone pointing a gun at a detainee during an interview." Ibid. Finally,. stated that although the base at Kandahar "did have bunkers covered with metal pallets where personnel at the base could take shelter during incoming mortar shelling," he saw no area "that could accommodate burying a man up to his neck in dirt," as Esmail had claimed. Ibid. 3. Guantanamo Bay. Esmail alleged at his CSRT hearing in 2004 that there was "something tom in my shoulder" because guards at Guantanamo Bay had trussed him and thrown him on the floor. JA Esmail alleged in 2009 that he was thrown from the plane "up into the air" upon his arrival at Guantanamo, JA 932, and that when he fell to the ground, he "suffered a broken shoulder and tom muscles," JA 933. In 2010, Esmail alleged that shortly before landing at Guantanamo, he was "forced to swallow a pill,"and when Esmail was "taken off the plane," some one beat him on his shoulder. JA 1890, !!l!I\I!!TJ J14erel\14 20

32 Case: Document: Filed: 12/22/2010 Page: 32 31!!!~I!!T//I.el"e~l. The government produced Esmail's medical records from Guantanamo Bay, see JA , and arranged for the records to be reviewed by a physician, Colonel (Dr.) Gregory M. Winn, M.D., see JA Dr. Winn explained that during Esmail's "in-processing physical on May 1, 2002," Esmail had "abrasions" on the front of his left shoulder. JA The "abrasions were not deep and did not penetrate the epidermal layer," ibid., and Esmail's shoulder retained its normal strength, with "no motor or neurological deficits," JA Because Esmail's minor injury was "similar to a scraped knee," JA 1250, it was treated with "Bacitracin and 4X4 gauze" and it healed by May 11,2002, JA The government's medical expert also reviewed Esmail's 209 allegations of severe abuse, including beatings, a broken nose and a broken shoulder. See JA Dr. Winn concluded that "the medical records do not show evidence of abuse, especially of the extreme nature alleged." Ibid. The types of serious abuse petitioner alleged would have left "some physical evidence * * * such as bruising, scabbing, or range of motion deficits." Ibid. "Notably, none of the examinations and evaluations showed any type of ligament/tendon injury or other physical trauma normally associated with the type of abuse as alleged in Petitioner's Declaration." JA !!!ItI!!T;; l.el"e~l. 21

33 Case: Document: Filed: 12/22/2010 Page: 33 5Ee~Eflfl~eFeIU~ D. The District Court's Opinion. 1. Legal Standard for Detention. The district court held that the government could establish the lawfulness ofesmail's detention by showing that Esmail was "'part of' al-qaida or Taliban forces. JA 245. In the district court's view, the government would have to show that Esmail was '''part of' al-qaida by establishing that Esmail received and executed orders "'from the enemy force's combat apparatus.'" JA (quoting Gherebi v. Obama, 69 F. Supp. 2d 43, 69 (D.D.C. 2009)). 2. Factual Findings. The district court held that the government had carried its burden of showing that Esmail was part of al-qaida. As a threshold matter, the district court found that it could not credit Esmail's most serious allegations of abuse, and that the statements Esmail made while he was detained at Bagram and Kandahar were reliable evidence. See JA The court found that Esmail had "traveled to Afghanistan with the assistance ofabu Khalud, a member ofal Qaeda," who had made passport arrangements for Esmail and arranged other logistical details of his trip. JA 265. Although the district court "accept[ed] * * * as true" Esmail's claim that he had left Yemen because he could no longer marry a particular woman, JA 266, it pointed out that Esmail's personal disappointment "does not explain why he chose 31!l!ft1!TJ J14ereftl4 22

34 Case: Document: Filed: 12/22/2010 Page: 34 3!el\!T;; 14erel\14 to go to Afghanistan" rather than somewhere else, or why he "accepted the assistance ofabu Khalud," the al-qaida facilitator. JA 267. Moreover, Esmail's statements showed that "he knew at the time he began his trip to Afghanistan that he was doing so with the assistance of members of Al Qaeda and that Al Qaeda was a militant group." JA 268. The district court further found that Esmail had accepted military training at al-qaida training camps and stayed at al-qaida guesthouses, knowing in both settings that the facilities he was using were affiliated with al-qaida. The district court cited Esmail's own numerous statements establishing that he had trained at al-qaida's flagship paramilitary training camp, Al Farouq. JA 269. As the court noted, Esmail admitted that "his courses covered topics including light weapons, rocket propelled grenades, machine gun, explosives, topography, antiaircraft weapons, and mines." Ibid. Esmail had graduated to advanced training and been taught to use advanced weapons, such as "surface-to-air SAM-7 weapons." Ibid. The court cited the statement of another detainee who had given a very similar account of the Al Farouq weapons training program, explaining that after basic training recruits could sign up for more advanced training, '''go home,'" or "go to the front line and fight Jihad. '" JA 270. The court further noted that Esmail never recanted his statements that he trained at Al Farouq. See ibid. EfRE'ffft.6F6rtt. 23

35 Case: Document: Filed: 12/22/2010 Page: 35 The district court rejected Esmail's argument that despite taking both basic and advanced weapons training at "two locations of Al Qaeda's Al Farouq training camp," JA 272, Esmail somehow did not know that al-qaida was providing his paramilitary training. "It would require a suspension ofdisbelief," explained the court, to "find that Esmail was not aware while attending these courses that Al Qaeda ran them." Ibid. Reasoning that "over a month" of paramilitary training was most likely an ''understatement,'' ibid, and pointing out that "the purpose of training camps, beyond teaching skills to be used in warfare, was indoctrination," JA 273, the court concluded that it was "simply not believable that at no time during Esmail's several courses did the subject of against whom or for what purpose the trainees might fight arise," ibid. Based upon these subsidiary facts, the district court found as a fact that "Esmail knowingly received instruction from Al Qaeda." Ibid. Similarly, the district court found that Esmail's own statements showed that he had stayed in al-qaida's Haji Habash guesthouse. See JA 274. The court found it "more likely than not that he stayed at other Al Qaeda guesthouses as well," including the Najima Al Jihad guesthouse in Jalalabad. Ibid.; ibid. n.21. As the court explained, "it strains credulity to ask the Court to believe that after two years of intermittently residing at guesthouses - to which he was first led by a SEeRETi,'r~eFeRr~ 24

36 Case: Document: Filed: 12/22/2010 Page: 36 member of Al Qaeda - and attending training camps, Esmail did not know that he was staying at locations affiliated with Al Qaeda." JA 275. The district court also found that Esmail had spent "a number of months" at the Institute for Islamic/Arabic Studies in Kandahar, Afghanistan. JA 275. The "Institute was sponsored and led by key Al Qaeda figures," and its students "were taught Islamic doctrine in a manner twisted to serve the purposes of Al Qaeda." JA 277. The court concluded that Esmail's decision to study at the institute and his attendance there were "certainly consistent with becoming a part of Al Qaeda * * *." Ibid. Finally, the district court found that Esmail remained in Afghanistan after the attacks of September 11, 2001 and the United States' subsequent campaign against al-qaida and the Taliban in Afghanistan, and that he fought at the battle of Tara Bora and was captured with other soldiers retreating from the battle. In his habeas proceeding, Esmail claimed that although he had intended to leave for Yemen when the September 11 attacks occurred, he had traveled to Kabul, where he had been kidnapped by some men who held him in a house until mid-december and then took him up into the mountains where they met up with the other Yemenis captured with Esmail. See JA The district court rejected Esmail's account of his actions. Esmail's decision to head to Kabul en route to 5EeKE'fh'r~eFeKr~ 25

37 Case: Document: Filed: 12/22/2010 Page: 37 5Ee~E'/;'t~eFe~t~ Yemen was illogical, and Esmail "did not explain what advantage such a route had over" the shortest and most direct route, "leaving Afghanistan by going from Kandahar to Quetta." JA 283. Moreover, it struck the district court "as unlikely that kidnappers would take Esmail, who was allegedly already captured, from a city or village into mountainous terrain where travel is difficult." JA 284. By contrast, the district court found the government's interpretation ofthe facts about Esmail's travel from Kandahar to Tora Bora to be "credible," especially as by going to Kabul and "staying in an Al Qaeda guesthouse, Esmail placed himself in the company of Al Qaeda members who were prepared to engage in military conflict." JA 283. The district court also found as a fact that Esmail had "acted as a fighter for Al Qaeda." JA 285. Recognizing that it was "necessarily dealing in probabilities," the court reasoned that all the circumstances ofesmail's presence in Tora Bora showed that he "was more likely than not an Al Qaeda fighter." JA 284. Instead ofreturning to Yemen, Esmail chose "to move closer to, and ultimately arrive[] at Tora Bora," and given the conflict there at the time, "[o]nly an individual who was part of [AI Qaeda] would feel safe traveling with fighters to the site of a battle." Ibid. Once in Tora Bora, at the battleground, it was "reasonable to infer" that Esmail would have "made use of' his "extensive training JI!!!ft'I!!T;; 14ereft'14 26

38 Case: Document: Filed: 12/22/2010 Page: 38 5Ee~E'f;,;'r~eFe~r~ in the use of military weapons." Ibid. And Esmail was taken into custody together with two other men who "were involved in the battle at Tora Bora." Ibid. The court concluded that it was "quite unlikely that Esmail would have been with these two men, especially one who was wounded in battle, if he were not part of the Al Qaeda forces at Tora Bora." JA 285. Based on these findings, the court held that the Government had shown "by a preponderance of the evidence that Esmail was 'part of Al Qaeda and is therefore lawfully detained." Ibid. SUMMARY OF THE ARGUMENT 1. The district court correctly held, based upon the evidence before it, that Esmail was part of al-qaida. Without the benefit ofthis Court's more recent holdings in Awad and Bensayah, the district court required the government to present evidence that Esmail had taken or received formal orders from al-qaida. As this Court has now held, such evidence is sufficient, but not necessary, to show that a detainee is part of al-qaida. Under this Court's functional standard for detention, the district court's findings even more strongly support its conclusion that Esmail is lawfully detained. The court found that Esmail had engaged in numerous activities that, under this Court's precedents, conclusively show him to be functionally part of al-qaida: Esmail came to Afghanistan specifically to train SECRETHNOFORN 27

39 Case: Document: Filed: 12/22/2010 Page: 39 SEERETN~~OFOR~~ for jihad, at the urging of an al-qaida recruiter; Esmail received advanced Esmail stayed at al-qaida guesthouses; Esmail remained in Afghanistan during the United States-led military offensive, traveled to Tora Bora, fought for al-qaida at the battle in the Tora Bora mountains, and surrendered in the company of other al-qaida fighters. The district court did not err in concluding that this evidence was sufficient to establish that Esmail was part ofal-qaida. 2. The district court's underlying factual findings are not clearly erroneous. The district court relied upon the numerous statements Esmail gave interrogators in , which were detailed and internally consistent, as well as on expert declarations and corroborating statements given by other detainees. In particular, the district court did not clearly err when it refused to credit Esmail's 2009 and 2010 allegations of severe abuse. Rather, the court correctly discharged its function as fact-finder when it weighed Esmail's dramatic allegations against the government's substantial rebuttal evidence and found that it could not credit Esmail's allegations. In so finding, the district court relied, in part, upon two government declarants who had been present at the facilities where Esmail was held during the periods he was held there and had interrogated Esmail. SEERETIIUOFOR~~ 28

40 Case: Document: Filed: 12/22/2010 Page: 40 SECRETflt~OFORt~ These declarants could describe from personal knowledge how detainees were interrogated and treated. Esmail's medical records from Guantanamo Bay, showing that Esmail was healthy and had none of the residual impairments that would have resulted from the types of serious mistreatment he had alleged, further supported the district court's conclusion, as did Esmail's failure to make some of his most dramatic allegations until just a few days before his merits hearing. The district court did not clearly err in finding the government's declarations to be credible and reliable, and from concluding from the declarations and from the other evidence that Esmail's allegations of serious mistreatment had no basis in fact. Esmail's brief on appeal argues that the district court should have disregarded Esmail's statements because Esmail was allegedly abused by Afghanis, before he was transferred to the custody of the United States. The district court correctly concluded, however, that Esmail's allegations ofabuse in Afghan custody did not make his later statements to U.S. interrogators unreliable. The district court made no finding that Esmail suffered any abuse when in Afghan custody. Further, the reasons the court gave for refusing to credit Esmail's allegations of serious abuse in detention at Bagram and Kandahar- including Esmail's medical records and the credible statements of government declarants SEeRET/lt~OFORt~ 29

41 Case: Document: Filed: 12/22/2010 Page: 41 SEeRET/lt~OFORt~ who disproved some ofesmail's allegations and cast doubt on the veracity ofall ofthem - also apply to evaluating Esmail's treatment by Afghanis. Esmail's brief is also mistaken in arguing that the district court should not have considered Esmail's decision to make new allegations of serious abuse only a few days before the merits hearing in his habeas proceeding. The district court made clear that it was skeptical about Esmail's new claims not just because they were raised at the last moment but because, as a substantive matter, Esmail's decision not to mention such serious allegations in his 2009 declaration for his habeas proceeding led to serious inconsistencies between the 2009 and 2010 declarations in the descriptions of Esmail's past treatment. The district court did not clearly err in concluding that Esmail had in 2010 "embellished his statements with false allegations * * *." JA 260. The district court also did not clearly err in concluding that Esmail knowingly received training from al-qaida, and knowingly stayed at al-qaida guesthouses. The district court properly considered all the evidence in context when it found that Esmail's recruitment by an al-qaida operative, his extensive weapons training at al-qaida military camps, his numerous stays at al-qaida guesthouses and his surrender in the Tora Bora region all supported the finding SEERETNUOFORt. 30