Case: Document: Filed: 05/06/2010 Page: 1 UNCLASSIFIEDIIFOR PUBLIC RELEASE. No.10-S048

Case: 10-5048 Document: 1243454 Filed: 05/06/2010 Page: 1 (O~ ARGUMENT NOT YET SCHEDULED) No.10-S048 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT SAEED MOHAMMED SALEH HA TIM, et al., Petitioner-Appellee,,v. BARACK B. OBAMA et al, Respondents-Appellants. ON APPEAL- FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BRIEF FOR RESPONDENTS-APPELLANTS IAN HEAm GERSHENGORN Deputy Assistant Attorney General ROBERT M. LOEB SHARON SWINGLE (202) 353-2689 Attorneys, Appelillte Staff Civil Division, Room 7250 U.S. Depa1't1Mnt of Justice 950 Pennsylvania Ave., N. W. Washington, D.C 205J()..(J(JOI SEeH'f1INOJi'OItN

Case: 10-5048 Document: 1243454 Filed: 05/06/2010 Page: 2 UNCLASSIFIED/IFOR PUBLIC RELEASE CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES Pursuant to Circui t Rule 28( a)( 1), the undersigned counsel certifies as follows: A. Parties and Amici The petitioners in the district court were Saeed Mohammed Saleh Hatim; Ali Mohammed Saleh AI-Salahi, as next friend of Saeed Mohammed Saleh Hatim; Mohammed Nasser Yahia Abdullah Khussrof; and Fatima Nasser Yahia Abdullah Khussrof, as next friend of Mohammed Nassert Yahia Abdullah Khussrof. The only petitioner in district court who is a party in this appeal is appellee Saeed Mohammed Saleh Hatim. The respondents in the district court, all of whom are appellants in the court of appeals, are Barack H. Obama, President of the United States; Robert M. Gates, Secretary, U.S. Department of Defense; Jay Hood, Army Brigadier General, Commander, Joint Task Force-GTMO; and Brice Gyurisko, Army Colonel, Commander, Joint Detention, Operations Group-JTF-GTMO. B. Rulings Under Review Respondents appeal from the December 15,2009, order of the district court (Urbina, J.) granting the petitioner a writ of habeas corpus. See Classified Joint Appendix 1328. C. Related Cases Appeals from district court orders in this case requiring the Government to provide thirty days' advance notice of any transfer of petitioner from Guantanamo are

Case: 10-5048 Document: UNCLASSIFIEDIIFOR 1243454 PUBLIC RELEASE Filed: 05/06/2010 Page: 3 SECIM!lfYf:PiSPSRPi currently pending before this Court. See Abdah v. Bush, No. 05-5398 (D.C. Cir.); Hatim v. Obama, No. 08-5276 (D.C. Cir.). The Government has sought summary dismissal of those appeals on the ground that they are governed by Kiyemba v. Obama, 561 F.3d 509, 512-513 (D.C. Cir. 2009), cert. denied, _ S. Ct. _,2010 WL 1005960 (Mar. 22, 2010). Hatim also filed a petition for review in this Court pursuant to the Detainee Treatment Act, see Mohammad v. Gates, No. 07-1191 (D.C. Cir.), which was dismissed by this Court on March 26,2009. There are several other appeals of district court orders granting or denying a writ of habeas corpus to individuals detained at Guantanamo Bay, Cuba. Those cases, however, do not involve the "same parties," and are thus not related pursuant to Circuit Rule 28(a)(1)(c). Those cases are as follows: 1. Bensayah v. Obama, D.C. Cir. No. 08-5337, is an appeal by an individual detained at Guantanamo from the denial of a habeas corpus petition. Oral argument was held on September 24, 2009. 2. Basardh v. Gates, No. 09-5200 (D.C. Cir.), is a government appeal from a district court ruling that the court may order release of a member of the enemy forces on the ground that the individual will not rejoin the battle or engage in any future act of terrorism. 3. Al Alwi v. Obama, No. 09-5125, is an appeal brought by a Guantanamo detainee from the denial of a petition for a writ of habeas corpus. SECIW5~#PT9Ji'9Ri>r

Case: 10-5048 Document: UNCLASSIFIEDIIFOR 1243454 PUBLIC RELEASE Filed: 05/06/2010 Page: 4 4. AI-Bihani v. Obama, No. 09-5051, is also an appeal by a Guantanamo detainee from the denial of a petition for a writ of habeas corpus. This Court issued its decision in that case on January 5, 2010. 590 F.3d 866 (D.C. Cir. 2010). 5. Awad v. Obama, No. 09-5351, is an appeal brought by a Guantanamo detainee from the denial of a petition for a writ of habeas corpus. Oral argument in that case was held on April 5,2010. 6. AI-Adahi v. Obama, Nos. 09-5333 & 09-5339, are cross-appeals of an order granting a petition for a writ of habeas corpus. Oral argument was held on February 15,2010. 7. Shafiq v. Obama, No. 09-5383, is an appeal brought by a Guantanamo detainee from the denial of a petition for a writ of habeas corpus. 8. Ai Hadi v. Obama, No. 09-5163, is an appeal brought by a Guantanamo detainee from the denial of a petition for a writ of habeas corpus. 9. Stiti v. Obama, No. 09-5lO4, is an appeal brought by a Guantanamo detainee from the denial of a petition for a writ of habeas corpus. 10. Al Odah v. United States, No. 09-5331, is an appeal brought by a Guantanamo detainee from the denial of a petition for a writ of habeas corpus. Oral argument was held on April 5, 2010.

Case: 10-5048 Document: 1243454 Filed: 05/06/2010 Page: 5 Counsel is not aware at this time of any other related cases within the meaning of Circuit Rule 28(a)(1)(c). Lh Sharon Swingle Counsel for Respondents-Appellants

Case: 10-5048 Document: 1243454 Filed: 05/06/2010 Page: 6 SECRE'FJINOFOR."l TABLE OF CONTENTS CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES TABLE OF CONTENTS.... TABLE OF AUTHORITIES... iv GLOSSARY... vii STATEMENT OF JURlSDICTION... 1 STATEMENT OF THE ISSUES... 2 CONSTITUTIONAL AND STATUTORY PROVISIONS... 3 STATEMENT OF THE CASE... 3 STATErv'lENT OF FACTS... 3 A. F actual Background And Government's Case Against Hatim... 3 1. Hatim's Background And Travel To Afghanistan To Train For Jihad... 3 2. Hatim's Terrorist Training At AI-Farouq And Subsequent Stays At Guesthouses..................................... 5 3. Hatim's Travel To The Area Of Active Fighting And His Stay At The Rear Lines... 10 4..... 12 5. Hatim's Flight Through The Mountains And Capture In Pakistan, And His Subsequent Detention By Pakistan And U.S. Officials... 14 SECRt!!'fllf'OPOftN J

Case: 10-5048 Document: 1243454 Filed: 05/06/2010 Page: 7 BI!1 CRtrtV/fiO If 0 ftf'i 6. Documentary Evidence Confinning Hatim's Account To Interrogators... 16 B. Hatim's Case... 17 C. District Court Proceedings... 19 SUMMARY OF ARGUMENT... 26 STANDARD OF REVIEW... 29 ARGUMENT... 30 I. THE DISTRICT COURT ERRED IN HOLDING THAT THE GOVERNMENT FAILED TO PROVE BY A PREPONDERANCE OF EVIDENCE THAT HA TIM WAS PART OF, OR SUBSTANTIALLY. SUPPORTED, AL-QAIDA OR TALIBAN FORCES..... 30 A. The District Court Applied An Erroneously Narrow View Of The Government's Detention Authority... 30 1. The Government Was Not Required To Prove That Hatim Received And Executed Specific Orders From AI-Qaida Or Taliban Leaders In Order To Show He Was Part Of AI-Qaida Or Taliban Forces... 30 2. At A Minimum, This Case Should Be Remanded To Determine Under This Circuit's Binding Precedent In AI-Bihani Whether Hatim Is Subject To Detention On The Basis That He "Substantially Supported" Or Provided "Purposeful[] And Material[] Support[]" To AI-Qaida Or Taliban Forces... 37 B. The District Court Erred In Viewing Each Piece Of Evidence In Isolation, Rather Than As A Whole... 39 C. The Record Evidence Establishes That Hatim Was Part Of AI-Qaida Or Taliban Forces, And Mandates Denial Of The Writ... 46 St3 RE'fIINOFORf( 11

Case: 10-5048 Document: 1243454 Filed: 05/06/2010 Page: 8 1. The District Court Clearly Erred In Refusing To Credit Hatim's Admissions That He Attended The AI-Farouq Terrorist Training Camp... 46 2. The Remaining Evidence Also Demonstrates That Hatim Was Part Of AI-Qaida Or Taliban Forces... 52 CONCLUSION... 57 CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(7)(C) OF THE FEDERAL RULES OF APPELLATE PROCEDURE CERTIFICATE OF SERVICE SECH'f'/m(J'~1tN 111

Case: 10-5048 Document: 1243454 Filed: 05/06/2010 Page: 9 UNCLASSIFIED/IFOR PUBLIC RELEASE TABLE OF AUTHORITIES Cases: Adams v. Ameritech Services, Inc., 231 F.3d 414 (7th Cir. 2000)... 41 AI-Adahi v. Obama, 2009 WL 2584685 (D.D.C. Aug. 21, 2009), appeal pending, Nos. 09-5333 & 09-5339 (D.C. Cir.)... 41 AI-Adahi v. Obama, _ F. Supp.2d _,2010 WL 811280, (D.D.C. Mar. 10,2010)... 48,52,53 *AI-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010)... 29,32,33,34,38,39,45 Al Odah v. United States, 648 F. Supp.2d 1 (D.D.C.2009)... 33,45 Anam v. Obama, _ F. Supp.2d_, 2010 WL 58965 (D.D.C. Jan. 6,2010)... 45,48,50 *Boumediene v. Bush, 128 S. Ct. 2229 (2008)... 1, 19,45- *Bourjaily v. United States, 483 U.S. 171 (1987)... 28,39,40 Center for Nat'l Sec. Studies v. Department of Justice, 331 F.3d 918 (D.C. Cir. 2003)... 55 Gherebi v. Obama, 609 F. Supp.2d 43 (D.D.C. 2009)... 31 Hamdi v. Rumsfeld, 542 U.S. 507 (2004)... 45 Halkin v. Helms, 598 F.2d 1 (D.C. Cir. 1978)... 40 Hamlily v. Obama, 616 F. Supp.2d 63 (D.D.C. 2009)... 20, 31, 52 Hollandv. McGinnis, 963 F.2d 1044 (7th Cir. 1992)... 48 S~ IQ)'FI!:NOFOR..~ IV

Case: 10-5048 Document: UNCLASSIFIEDIIFOR 1243454 PUBLIC RELEASE Filed: 05/06/2010 Page: 10 BECRH'I 1N8Jf81t'Pf Kiyemba v. Obama, 561 F.3d 509 (D.C. Cir. 2009), cert. denied, _ S. Ct. _,2010 WL 1005960 (Mar. 22, 2010)... 1 *Oregon v. Elstad, 470 U.S. 298 (1985)... 48 Thompson v. City o/chicago, 472 F.3d 444 (7th Cir. 2006)... 43,44 us. Postal Service Bd. o/governors v. Aikens, 460 U.S. 711 (1983)... 39 United States v. Montague, 40 F.3d 1251 (D.C. Cir. 1994)... 39,42 United States v. Porter, 881 F.2d 878 (10th Cir.l989)... 41,44 United States v. Pugliese, 153 F.2d 497 (2d Cir. 1945)... 40 United States v. Shi, 525 F.3d 709 (9th Cir. 2008)... 48 United States v. Thomas, 864 F.2d 188 (D.C. Cir. 1988)... 32 Statutes: 28 U.S.C. 1331... 1 28 U.S.C. 2241... 1 * Authorization for Use of Military Force, Pub. L. No.1 07-40, 115 Stat. 224 (2001)... 3,38 Regulations: 66 Fed. Reg. 54,404 (Oct. 26, 2001)... 13 Rules: Fed. R. Evid. 401...,,...,...,,... "... 43 8EC~'fiJ'lff8Jf8ftN v

Case: 10-5048 Document: UNCLASSIFIEDIIFOR 1243454 PUBLIC RELEASE Filed: 05/06/2010 Page: 11 SECRti'fYINOFORN Orders: Exec. Order 13,224,66 Fed. Reg. 49,079 (Sept. 23,2001)... 13 Miscellaneous: C. Bradley & J. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. 1. Rev. at 2109 (collecting sources)... 32 In re: Guantanamo Bay Detainee Litig., Misc. No. 08-442, Nos. 05-0763, 05-1646, 05-2378, Respondents' Memorandum Regarding the Government's Detention Authority Relative to Detainees Held at Guantanamo Bay, DIct. 175 (D.D.C. filed Mar. 13,2009)... 38 MCCORMICK ON EVIDENCE, 185 at 542-43 (3d ed. 1984)... 41 The 9/11 Commission Report (2004)... 32 SEC~'t'/R:fOF'ORN VI

Case: 10-5048 Document: 1243454 Filed: 05/06/2010 Page: 12 s~er~'fh'lf9p9~f GLOSSARY AUMF... Authorization for Use of Military Force CSRT... Combatant Status Review Tribunal s~eite5fnf(epeftn Vll

Case: 10-5048 Document: UNCLASSIFIEDIIFOR 1243454 PUBLIC RELEASE Filed: 05/06/2010 Page: 13 SECRI1'FHNOFORN [ORAL ARGUMENT NOT YET SCHEDULED] IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 10-5048 SAEED MOHAMMED SALEH HATIM, et al., Petitioner-Appellee, v. BARACK H. OBAMA etal., Respondents-Appellants. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BRIEF FOR RESPONDENTS-APPELLANTS STATEMENT OF JURISDICTION The district court had jurisdiction pursuantto 28 U.S.C. 1331 and 2241. See Kiyemba v. Obama, 561 F.3d 509, 512-513 (D.C. Cir. 2009), cert. denied, S. Ct. _,2010 WL 1005960 (Mar. 22,2010); Boumedienev. Bush, 128 S. Ct. 2229,2278 (2008) (Souter, J., concurring). The district court issued an order on December 15, 2009, granting the writ of habeas corpus to petitioner Saeed Mohammed Saleh Hatim SI;CRl!3T/INOFOR~

Case: 10-5048 Document: 1243454 Filed: 05/06/2010 Page: 14 SECH't'f/NOFORN and ordering that the Government take all necessary and appropriate steps to facilitate his release forthwith. Classified Joint Appendix (JA) 1328. The Government filed a timely notice of appeal on February 12,2010. Unclassified Joint Appendix (UJA) 104. This Court has jurisdiction under 28 U.S.C. 1291 and 2253(a). STATEMENT OF THE ISSUE Hatim's own detailed and repeated statements before a Combatant Status Review Tribunal and to numerous government interrogators over several years showed that he went to Afghanistan to receive weapons training at an al-qaida terrorist training camp to wage jihad; that before and after his training he stayed in guesthouses affiliated with the Taliban and al-qaida and used to house al-qaida members; that he subsequently joined a group of armed men under the leadership of a commander that supplied food to Taliban soldiers on the front lines, efforts for which he was paid by an al-qaida operative The question presented is whether the district court erred in holding that the Government failed to prove that Hatim was part of, or substantially supported, al- Qaida or Taliban forces. SEC~'fYJNOt'Oltf( 2

Case: 10-5048 Document: 1243454 Filed: 05/06/2010 Page: 15 CONSTITUTIONAL AND STATUTORY PROVISIONS The Authorization for Use of Military Force, Pub. L. 107-40, 2(a), 115 Stat. 224 (2001) (AUMF) provides that: the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. STATEMENT OF THE CASE The Government appeals the district court's order granting the writ of habeas corpus to Saeed Mohammed Saleh Hatim. Following cross-motions by the parties for judgment on the record and a two-day hearing, the district court entered judgment for the petitioner. JA 1328. The district court held that "the Government has failed to prove by a preponderance of the evidence that the petitioner served as part of the enemy armed forces." Opinion, at 31; JA 1327. STATEMENT OF FACTS A. Factual Background And Government's Case Against Hatim. 1. Hatim's Background And Travel To Afghanistan To Train For Jihad. Hatim is a 34-year-old Yemeni national who is currently detained at Guantanamo Bay, Cuba. CSRT Statement, at 1-2,3-4, JA 464-465, 466-467. He 8E@It"8"l:1f8F8M( 3

Case: 10-5048 Document: 1243454 Filed: 05/06/2010 Page: 16 traveled to Afghanistan in the spring of2001. CSRT Statement, at 1-2,3-4, JA 464-465,466-467. Hatim told FBI agents that he wanted to go to Afghanistan to receive training at the al-farouq training camp to wage jihad against the Russians. ISN 255 FD-302 (June 13,2002), at 1, JA 474; ISN 255 FD-302 (Oct. 5, 2002), at 1-2, JA 477-478. Hatim's friends and fellow members of his mosque helped to raise money for his trip, ultimately collecting sufficient funds to buy Hatim a plane ticket and pay for his travel to Afghanistan. ISN 255 FD-302 (June 13,2002), at 1, JA 474; ISN 255 FD-302 (Oct. 5, 2002), at 1-2, JA 477-478. Hatim traveled via Pakistan, where he stayed for several days in a Taliban guesthouse before going on to Afghanistan. ISN255 FD-302 (Oct. 10,2002), at 1-2, JA 477-478; CSRT Statement at 7-8, 2, 6, JA 470-471, 465, 469. Once he arrived in Afghanistan, Hatim stayed for approximately a week at a guesthouse in Kandahar located near the Haji Habash mosque. ISN 255 FD-302 (Oct. 10,2002), at 2, JA 482. Hatim told FBI agents that he used this time "to 'understand what it was they were asking us to do,' i.e., fight Jihad." Ibid. There were roughly 10-15 other men at the Haji Habash guesthouse, which Hatim referred to as the "Haja House" and described as being under the charge of Abu Waleed. See ibid.; see also ISN 255 FD-302 (Oct. 22,2002), at 1, JA485. The Government's evidence showed that this house was used to house Arab militants who came to Kandahar to attend the al-farouq terrorist SEC~IfWNOPORN 4

Case: 10-5048 Document: 1243454 Filed: 05/06/2010 Page: 17 SECRETffNOFORt"l training camp, and confirmed Hatim' s account that the house was operated by a man named Abu Waleed. See IIR 2 340 6066 02, at 3, JA 526. 1 2. Hatim's Terrorist Training At AI-Farouq And Subsequent Stays At Guesthouses. Hatim told FBI agents that, after a week's stay at the Haji Habash safehouse, he traveled to the al-farouq terrorist training camp. ISN 255 FD-302 (Oct. 10,2002), at 2. Hatim described the group of men with whom he traveled, identified a number of the men by name, and told agents that some of the men had also stayed at the Haji Habash safehouse. See ibid. The Government introduced undisputed evidence in district court that II "Terrorist Training Camps," at 2, JA 441. 1 Abu Waleed's name has several spelling variants in the Government's exhibits. As the Government established in an expert declaration filed in district court, because Arabic and English have several letters representing sounds that do not correspond directly, the same word or name in Arabic can have several different English spellings. See Declaration "Background Declaration - Names, Aliases, Kunyas, and Variants," at 3-4, JA 687-688. SECRE'ft'INOPOR1{ 5

Case: 10-5048 Document: 1243454 Filed: 05/06/2010 Page: 18 UNCLASSIFIEOIIFOR PUBLIC RELEASE SR RE~HNOFORN Ibid. Decl. of "Terrorist Training Camps," at 3, JA 442. At least seven of the 9111 hijackers trained at al-farouq. See ibid. Hatim told FBI agents that, when he arrived at al-farouq, he checked in at an office with a man whom Hatim believed to be in charge of the camp. ISN 255 FD- 302 (Oct. 10, 2002), at 2, JA 482. Hatim was told to report to an area of the camp where he was to train. See ibid. Hatim provided agents with a detailed description of his training schedule at al-farouq, although he claimed not to have realized that al- Farouq was an al-qaida camp until near the end of his stay at the camp. ISN 255 FD- 302 (Oct. 10, 2002), at 2-3, JA 482-483. Hatim also identified to interrogators by name the commander of the al-farouq camp, the physical fitness trainer, and his own group leader. See ISN FD-302 (June 13,2002), at 2, JA 475; ISN 255 SIR (July 20, 2004), at 1, JA 511 Hatim's description of the physical layout and buildings at al-farouq was consistent with a satellite photo submitted by the Government. Compare ISN 255 FM-40 (Oct. 15, 2002), at 1, JA 657, with Gov't Trial Exh. 39 (satellite photo), JA 663. SECRFYfllNOFORN 6 UNCLASSIFIEO/IFOR PUBLIC RELEASE

Case: 10-5048 Document: 1243454 Filed: 05/06/2010 Page: 19 SECRE't'/H'iOPOftPf In addition to Hatim' s own repeated statements describing his attendance at al- Farouq, the Government submitted an intelligence report that corroborated his story. The intelligence report described a December 2001 raid of an Arab office in Kandahar, in which U.S. and coalition forces discovered a large number of training camp applications. See TRRS 04-11-0226, at 1, JA 704. One of the applications seized was from Hatim, described in the application as Said Mohamed Saleh, and contained his name, address, year of birth, and a telephone number to contact his family. TRRS 4-11-0226, at 3, JA 706. The training camp application also identified an alias for Hatim, "Muhannad," ibid. Hatim told interrogators that he stayed at al-farouq for approximately one month. ISN 255 FD-302 (June 13,2002), at 2, JA 475; ISN 255 FD-302 (Oct. 10, 2002), at 2, JA 482; ISN 255 FM 40 (Aug. 14,2004), at 1, JA 496. Hatim also told FBI agents and testified before a Combatant Status Review Tribunal (CSRT) that while he was at al-farouq, he received training on the use of a Kalashnikov rifle, a rocket-propelled grenade, a pistol, and other weapons. CSRT Statement, at 2,6-7, JA 465,469-470; ISN 255 FD-302 (June 13,2002), at 2, JA 475; ISN 255 FD-302 (Oct. 10,2002), at 2, JA 482. He claimed that he left al-farouq when he became sick (or, alternately, that he feigned illness in order to leave the camp). ISN 255 FD-302 (Oct. SECRET/A'{OFORN 7

Case: 10-5048 Document: 1243454 Filed: 05/06/2010 Page: 20 SECRR' //NOFORN 22,2002), at 1, JA 486. He also told FBI agents that he had grown disillusioned with life at al-farouq, and did not want to stay at the camp any longer. ISN 255 FD-302 (Oct. 22, 2002), at 1, JA 485. Hatim was taken from al-farouq back to the Haji Habash safehouse in Kandahar to receive medical treatment. ISN 255 FD-302 (Oct. 22, 2002), at 1, JA 485. Hatim stayed in Kandahar at the Haj i Habash house for approximately two days. ISN 255 FD-302 (Oct. 22,2002), at 1, JA 485. Hatim told FBI agents that there were ten other Arab males also staying at the Haji Habash guesthouse during this time, again under the leadership of Abu Waleed, and that the guesthouse was guarded. ISN Ibid. _ The Government introduced an expert declaration in district court that Decl. "Guesthouses," at 3, JA 451. The Government's expert also explained that ibid. SECRETfINOFOR.t~ 8

Case: 10-5048 Document: 1243454 Filed: 05/06/2010 Page: 21 Hatim told interrogators that, after this brief stay in Kandahar, he traveled on to Kabul, where he stayed at three different guesthouses over the next few months. ISN FD-302 (Oct. 22,2002), at 2, JA 486; IIR 6034 125903, at 1, JA 539. One of the guesthouses was an Arab guesthouse that had been recommended by Abu Waleed, the leader ofthe Haji Habash guesthouse. ISN 255 FD-302 (Oct. 22, 2002), at 2, JA 486. The guesthouse, known as Carte Birwan, was protected by two anned guards and operated by a Saudi national, Shahab Aldin. ISN 255 FD-302 (Oct. 30, 2002), at 1, JA 488. Hatim told interrogators that he stayed at this guesthouse for more than a month. See ibid. Hatim also described a second guesthouse where he stayed, which was translated as "Gholam Gatcha" or "Gholam Batcha," and was an Arab guesthouse operated by Abdel Zaher. ISN 255 FD-302 (Oct. 22, 2002), at 2, JA 486; ISN 255 FD-302 (Oct. 30, 2002), at 1, JA 488.. Hatim told FBI agents that he stayed at this guesthouse for approximately one month. ISN 255 FD-302 (Oct. 22, 2002), at 2, JA 486; ISN 255 FD-302 (Oct. 30, 2002), at 1, JA 488. The Government introduced evidence that "Ghulam Batcha" was the name of a safehouse in Kabul that was owned by al-qaida and operated by a senior al-qaida member. IIR 6 034 0270 03, at 304, JA 533-534. SECRE'f/fNOPORN 9

Case: 10-5048 Document: 1243454 Filed: 05/06/2010 Page: 22 Finally, Hatim told interrogators that he also stayed at a guesthouse in Kabul that was owned and operated by Hamza Al Gattee. ISN 255 FD-302 (Nov. 1,2002), at 1, JA 491; ISN 255 FD-302 (May 6,2003), at 1, JA 494; IIR 6034 118304, at 1, JA 536. The Government produced unrefuted evidence Decl. of "AI-Wafa Islamic Humanitarian Organization," (8/29/08), at 3, JA 456. Hatim told interrogators that he left his passport with Hamza, and that the two men had an agreement that Hatim would meet Hamza in Pakistan and that the two men would get out together from there. ISN 255 FD-302 (May 6, 2003), at 1, JA 494. Hatim also told interrogators that he received envelopes of money while staying at the Golam Botcha and Harnza AI-Gatee guesthouses. Petn'r Trial Exh. 23 (notes of Nov. 1, 2002 FBI interrogation), at 1, JA 1095. 3. Hatim's Travel To The Area Of Active Fighting And His Stay At The Rear Lines. Hatim told FBI interrogators that, after staying at guesthouses in Kabul for approximately two months, he traveled to the area near the active fighting between Taliban forces and the Northern Alliance, where he stayed for three weeks. ISN 255 FD-302 (Oct. 22, 2002), at 2, JA 486. Hatim reported that, around this time, Usama bin Laden wanted Arabs to consolidate and fight with the Taliban against the SECRE'fliNOFORN 10

Case: 10-5048 Document: 1243454 Filed: 05/06/2010 Page: 23 SECRtYW/ffOFOmf Northern Alliance. IIR 6 034 1183 04, at 1-2, JA 536-537. Hatim admitted to FBI interrogators that he was part of a group of approximately 15 men located at the rear lines of the fighting at "Said Central Station." ISN 255 FD-302 (Oct. 30, 2002), at 2, JA 489; ISN 255 FD-302 (Nov. 1,2002), at 1, JA 491; ISN 255 SIR (Aug. 31, 2004), at 1, JA 514; see a/so CSRT Statement, at 2,5, JA 465,468. Hatim explained that his group was under the leadership of a man named Abu Al Bara, whom he described as having been "in charge of' the rear lines and as "the general for the fighters." ISN 255 FD-302 (Nov. 1,2002), at 1, JA 491; Disclosures, May 27,2009, at 13, JA 654; see also 8/18/09 Classified Transcript at 15, JA 253. Hatim told interrogators that Said Central Station was used to resupply the Taliban front lines near Bagram. ISN 255 FD-302 (Nov. 1,2002), at 1, JA 491; see also ISN 255 FD-302 (Oct. 30, 2002), at 2,lA 489. Hatim explained that, "as a newcomer he was not allowed on the front lines to fight," and that he had to be evaluated first. ISN 255 FD-302 (Oct. 30,2002), at 2, JA 489. Hatim told an FBI interrogator that he was given access to weapons while on the rear lines and that, on occasion, he "would check out an AK -47 from the warehouse" and travel to the front. lines to "bring food to the Taliban soldiers on the front lines fighting against the Northern Alliance." ISN 255 FD-302 (Nov. 1,2002), at 1, JA 491. Hatim identified the leader ofthe front lines by name, and described how he and his friends were taken SECR-H'fNNOFOftN 11

Case: 10-5048 Document: 1243454 Filed: 05/06/2010 Page: 24 Sl!ICltl;'ftlNOlfOItN to the front lines by an Afghani cab driver. ISN 255 FD-302 (Nov. 1,2002), at 1, JA 491. In his testimony before the CSRT, nearly three years later, Hatim again admitted traveling to the front lines with other men taking food to the Taliban fighters, although Hatim claimed that he was just "visit[ing]." CSRT Statement, at 5, 8, JA 468-471. Hatim also told FBI agents that, while he was with the group of men at Said Central Station, he was paid between 500-1000 rupees in an envelope that was handdelivered to him. ISN 255 FD-302 (Oct. 30,2002), at 1-2, JA 488-489; ISN 255 FD- 302 (Nov. 1, 2002), at 1, JA 491. Hatim explained that the money was "[f]or his efforts," and that it came from Hamza AI-Gatee, an al-qaida operative and the owner of the guesthouse where Hatim had previously stayed. ISN 255 FD-302 (Oct. 30, 2002), at 1-2, JA 488-489; ISN 255 FD-302 (Nov. 1,2002), at 1, JA 491; Decl. of "AI-Wafa Islamic Humanitarian Organization," at 3, JA 456. 4. Hatim told interrogators that he went back to Kabul after approximately three weeks at Said Central Station. ISN 255 FD-302 (Nov. 1,2002), at 1, JA 491. _ Hatim told interrogators he again lived at the guesthouse owned and operated by al-qaida SECftE'flINOFORN 12

Case: 10-5048 Document: 1243454 Filed: 05/06/2010 Page: 25 operative Harnza AI-Gatee. See ISN 255 FD-302 (May 6, 2003), at 1, JA IIR 6 034 1183 04, at 1, JA 536. SJ3C~'ftlN8P8ftf{ 13

Case: 10-5048 Document: UNCLASSIFIEDIIFOR 1243454 PUBLIC RELEASE Filed: 05/06/2010 Page: 26 S~CttE'fYINOFOItN 5. Hatim's Flight Through The Mountains And Capture In Pakistan, And His Subsequent Detention By Pakistan And U.S. Officials. Hatim told FBI agents that he tried to flee Kabul once the bombing campaign began by traveling through the mountains to Pakistan. ISN 255 FD-302 (Oct. 22, 2002), at 2, JA 486; ISN 255 FD-302 (Nov. 1, 2002), at 1, JA 491. Hatim told interrogators that Harnza AI-Gatee directed him to an Arab man in Jalalabad who could take him on to Pakistan, and that AI-Gatee's cook drove him to the man's house. ISN 255 FD-302 (Nov. 1, 2002), at 1-2, JA 491-492. Hatim then left the house in Jalalabad with a group of Pakistani men, and they all took a taxi to the Pakistan border. ISN 255 FD-302 (Nov. 1,2002), at 1-2, JA 491-492. The Pakistani men instructed Hatim not to talk to anyone. See ibid. However, Hatim did not have his passport and, after another day's travel with an Afghani man, he was turned in to the Pakistani police. ISN 255 FD-302 (Nov. 1, 2002), at 2, JA 492. _ While Hatim was in Pakistani custody, he was interrogated by a group of Pakistani and U.S. intelligence officers. ISN 255 FD-302 (Nov. 1,2002), at 2, JA 492. SECHflIN6P6ItN 14

Case: 10-5048 Document: 1243454 Filed: 05/06/2010 Page: 27 Pakistani officials subsequently transferred Hatim to U.S. military custody, and Hatim was taken to a detention facility in Kandahar. ISN255 FD-302 (Nov. 1,2002), at 2, JA 492; ISN 255 FD-302 (Oct. 22, 2002), at 2, JA 486. After several months of 15

Case: 10-5048 Document: 1243454 Filed: 05/06/2010 Page: 28 B~ M'ifl/rf8F'8Rff detention in Kandahar, Hatim was transferred to Guantanamo Bay, Cuba. ISN 255 FD-302 (Oct. 22, 2002), at 2, JA 486; ISN 255 FD-302 (Nov. 1,2002), at 2, JA 492. The interrogation statements submitted by the Government in district court, and relied on for purposes of appeal, were al1 made either while Hatim was in foreign government custody prior to his transfer to Kandahar, or during his later detention by U.S. officials at Guantanamo. 6. Documentary Evidence Confirming Hatim's Account To Interrogators. In the district court, in addition to Hatim' s own lengthy and detailed statements to numerous interrogators from different agencies as well as Hatim' s testimony before the CSRT in 2005, the Government also submitted several pieces of documentary evidence that corroborated Hatim's statements. First, and as detailed above, the Government submitted an intelligence report describing a terrorist training camp application completed by Hatim.

Case: 10-5048 Document: 1243454 Filed: 05/06/2010 Page: 29 B. Hatim's Case. Hatim's principal challenge to the Government's case for detention was to the reliability of his statements to interrogators and before the CSRT about attending the al-farouq terrorist training camp. Specifically, Hatim asserted that his repeated and detailed accounts given to interrogators at Guantanamo between 2002 and 2004, and his testimony before the CSRT in 2005, in which Hatim described his travel to Afghanistan, training at al-farouq, and subsequent conduct, were fabricated insofar as Hatim said that he attended al-farouq. In a declaration dated January 27,2009, BI3CftoE'f;'H,OFORN 17

Case: 10-5048 Document: 1243454 Filed: 05/06/2010 Page: 30 Hatim claimed that, although he had traveled to Afghanistan, stayed in guesthouses in Kabul and Kandahar, and visited the front lines of the conflict between the Taliban and the Northern Alliance, as he had previously admitted to interrogators at Guantanamo, he had lied when he told interrogators and the CSRT that he attended al-farouq. See Decl. of Saeed Mohammed Saleh Hatim (Jan. 27, 2009), at 3-7, JA 668-672. In a January 2009 declaration, Hatim claimed that he was mistreated during the several months he was held at Kandahar in U.S. military custody in early 2002, prior to his transfer to Guantanamo. Dec!. at 6, JA 671. Hatim asserted that, when he was moved from place to place while at Kandahar, he was blindfolded and his blindfold was secured with duct tape. Ibid. He also claimed that he was beaten when he was taken from his tent to the interrogation area, including by being kicked in the knees, and that he continues to experience pain in his shoulder as a result. Ibid. Finally, he claimed that during his second interrogation session at Kandahar, he was given a choice between admitting to being a member of the Taliban or al-qaida, or being raped, and that he falsely admitted to being a member of the Taliban. Ibid. Hatim stated in his January 2009 declaration that, after he was transferred to Guantanamo, he "told the interrogators in Cuba that my earlier statements in Kandahar were made only in response to threats of rape and violence." Decl. at 7, JA St!! M'f/If48P8ftff 18

Case: 10-5048 Document: 1243454 Filed: 05/06/2010 Page: 31 St3CItE"lINO ORN 672. He also claimed that for more than two years, he continued to lie to interrogators at Guantanamo about attending al-farouq in order to avoid punishment, and that he told the same false story in his testimony before the CSRT "only to be consistent with what I had told the interrogators" and out offear of punishment ifhe changed his story. Decl. at 7-8, JA 672-673. Hatim never claimed to have been physically mistreated at Guantanamo, and his only complaint about his treatment at Guantanamo is an assertion that he was once moved to solitary confinement at Guantanamo after he declined to spy on other detainees. Ibid. In addition to contending that he never attended al-farouq, Hatim claimed in the alternative that his training did not make him part of al-qaida or Taliban forces. Hatim similarly claimed that his other activities in Afghanistan, including staying at guesthouses, visiting the front I were innocent and did not evidence any affiliation with al-qaida or Taliban forces. C. District Court Proceedings. 1. Hatim filed a petition for a writ of habeas corpus, UJA 1, which was stayed pending resolution ofthresholdjurisdictional issues. After the Supreme Court held in Boumediene v. Bush, 128 S. Ct. 2229 (2008), that district courts have jurisdiction to consider habeas petitions filed by Guantanamo detainees, Judge Hogan issued orders governing proceedings in the habeas cases that had been consolidated B~CM'f1h'ft6F6ftN 19 UNCLASSIFIEDIlFOR PUBLIC RELEASE

Case: 10-5048 Document: 1243454 Filed: 05/06/2010 Page: 32 SECRE'fYINOPORPi before him, including a case management order that established standards and procedures for the proceedings, and returned this case to Judge Urbina for adjudication on the merits. See UJA 23, as subsequently amended, UJA 29. The government filed an amended factual return, JA 375, and Hatim filed a traverse, see JA 62. Following extensive discovery, the district court held a two-day merits hearing. On December 15,2009, the district court granted the petition for a writ of habeas corpus. Opinion, JA 1297; Order, JA l328. 2. The district court's decision first addressed the legal standard for detention. Opinion, at 4-9, J A 1300-1306. The district court accepted the proposition that an individual who was "part of' Taliban or al-qaida forces could be lawfully detained under the Authorization for Use of Military Force, which the court construed to require a showing that "the individual functions or participates within or under the command structure of the organization," such as by "receiv[ing] and execut[ing] orders or directions." Opinion, at 6-7, JA 1302-1303 (quoting Hamlily v. Ohama, 616 F. Supp.2d 63, 75 (D.D.C. 2009)). However, the district court rejected the proposition that an individual who was not part of the enemy force could be lawfully detained ifhe "substantially supported the enemy anned forces or directly supported hostilities in aid of those forces." Opinion, at 8, JA 1304. The district court also held Sfi]CRi!YiVfl:f6F6RN 20

Case: 10-5048 Document: 1243454 Filed: 05/06/2010 Page: 33 SI!;ClttJ'fh1f8P8RN that the Government bore the burden to establish by a preponderance of the evidence a lawful basis for detention. Opinion, at 8-9, JA 1304-1305. The district court also considered the admissibility and weight to be afforded to hearsay evidence. The court held that it would admit hearsay evidence, but that no presumption of accuracy would be applied and each piece of hearsay would be evaluated for an individualized determination as to its reliability and accuracy and the weight to be afforded to it. Opinion, at 13-14, JA 1309-1310. On the merits, the district court held that the Government had failed to show by a preponderance of evidence that Hatim was lawfully subject to detention as "part of' al-qaida or Taliban forces. The district court first considered the evidence that Hatim had attended and received arms training at al-farouq, which was an al-qaida terrorist training camp. The district court recognized that the Government's case for detention, including its allegations that Hatim attended al-farouq, "rest[s] almost entirely upon admissions made by the petitioner himself." Opinion, at 2, JA 1298. As the district court noted, Hatim claimed that his statements about al-farouq had been fabricated as a result of coercive treatment while he was detained at Kandahar in early 2002. Opinion, at 15, JA 1311. The Government introduced evidence SECftEY/If(6f16ftf( 21

Case: 10-5048 Document: 1243454 Filed: 05/06/2010 Page: 34 See Decl. "Counterinterrogation Doctrine & Practice," at 2-3, JA 779-780. The Government also pointed out in its briefs that Hatim's admission of attending al-farouq was made both before and also after the alleged mistreatment at Kandahar, and that the later statements were made years after the alleged mistreatment, at a different location and to different government officials, and again in Hatim's hearing before the CSRT. Nevertheless, the district court, finding that the Government had not specifically refuted Hatim's claim in 2009 that he was mistreated at Kandahar in 2002, concluded that Hatim's statement that he attended al-farouq was unreliable. Opinion, at 18-19, JA 1314-1315. The district court also concluded that, even ifhatim had attended al-farouq, the Government had failed to prove that Hatim was aware that the terrorist training camp was affiliated with al':'qaida. Opinion, at 19, JA l315. The district court pointed to Hatim' s statement to an interrogator that he was not aware of the affiliation with al-qaida until "close to the end of his time there," and his similar statement before the CSRT that toward the end of Hatim's time at al-farouq he heard that Usama bin Laden might be visiting and that this was "a 'red flag' for [him] to leave the camp." Opinion, at 19, JA 1315 (quoting ISN 255 FM-40 (Oct. 15,2002), at 1, JA 637). SIUJHfFlW'f8P8RN 22

Case: 10-5048 Document: 1243454 Filed: 05/06/2010 Page: 35 SECRE'fIINOFORti Furthennore, the district court concluded that, even assuming that Hatim was aware that al-farouq was an al-qaida training camp, "there is scant evidence that while at al-farouq the petitioner actually participated in al-qaida's command structure by receiving and executing orders or directions." Opinion, at 19-20, JA 1315-1316. The court emphasized that, in describing his '''typical day' at the camp," Hatim had not admitted to interrogators that he "t[ook] up anns on behalf of al- Qaida" or that "he ever followed a single order issued by anyone at al-farouq." Opinion, at 20, JA 1316. The district court held that the Government's evidence was insufficient to show that Hatim was "following orders on al-qaida's behalf." Ibid. In the alternative, the district court held that Hatim's attendance at al-farouq was not a valid basis for detention because Hatim claimed that he had been unhappy at al-farouq and had left the camp. Opinion, at 20-21, JA 1316-1317. The district court accordingly concluded that Hatim had "separated himselffrom the enemy anned forces' command structure prior to his capture." Opinion, at 21, JA 1317. The district court also considered the evidence that Hatim spent three weeks at the rear lines of the fighting with a group of Arabs at Said Central Station. Opinion, at 21-23, JA 1317-1319. Although the district court appeared to credit Hatim's own statements that he would periodically "check out an AK-47 for protection and drive to the front lines to deliver food to the fighters," the court held 23

Case: 10-5048 Document: 1243454 Filed: 05/06/2010 Page: 36 that this evidence did not support detention. Opinion, at 22, JA 1318. The court reasoned that, because Hatim claimed that individuals at Said Central Station were free to come and go, Hatim was not "acting within enemy armed forces' command structure" while at Said Central Station. Opinion, at 22-23, JA 1318-1319. "At most," the district court found, "the petitioner's statements support the allegation that he was surrounded by enemy armed forces at Said Central Station and that he occasionally rode in a car that delivered food to combatants on the front lines," but not that petitioner was part of "the al-qaida apparatus." Opinion, at 23, JA 1319. The district court noted that Hatim had acknowledged staying in various guesthouses in Kandahar and Kabul that were affiliated with al-qaida and the Taliban, including a guesthouse run by Hamza AI-Gatee, who gave Hatim money "for his efforts." Opinion, at 23-24, JA 1319-1320. The district court reasoned, however, that staying at guesthouses was akin to staying at "youth hostels," and credited Hatim's claim that the money he received was "anonymous charity." Opinion, at 25, JA 1321. 8SCU"NN8F8RN 24

Case: 10-5048 Document: 1243454 Filed: 05/06/2010 Page: 37 SI!:ClttrtYlN6F6RN The district court concluded that, because it had rejected each of the individual justifications for detention, "the government's justification for detention fares no better when the court views all of the evidence as a whole." Opinion, at 30, JA 1326. The court granted Hatim's petition for a writ of habeas corpus, and ordered the Government to "take all necessary and appropriate steps to facilitate the release of the petitioner forthwith." Order, at 1, JA 1328. 3 The district court also discussed and declined to credit statements by another detainee, ISN 252, that Hatim fought on the front lines in Bagrarn. Memorandum Opinion, at 28-30, JA 1324-1326. For the limited purposes of this appeal, the Government does not challenge the district court's finding on that issue. The Government relies for purposes of appeal on the record evidence cited and discussed in this brief. SRCRE'f/If.OFOM. 25

Case: 10-5048 Document: UNCLASSIFIEDIIFOR 1243454 PUBLIC RELEASE Filed: 05/06/2010 Page: 38 SELkE I )}NO' OM'l 3. On March 19, 2010,"the Government moved fora stay of the district court's order granting habeas corpus relief. That motion, which has been opposed by petitioner, remains pending in the district court. SUMMARY OF ARGUMENT The district court erred in holding that the Government failed to prove by a preponderance of evidence that Hatim was lawfully subject to detention because he was part or, or substantially supported, al-qaida or Taliban forces. A. Reversal is required because the district court's decision granting the writ of habeas corpus was the product of an erroneously narrow view of the Government's detention authority. 1. The district court erred as a matter of law in requiring the Government to prove that Hatim received and executed specific orders from al-qaida or Taliban commanders as a condition of establishing that Hatim was "part of' enemy forces. AI-Qaida is a terrorist organization made up of loosely affiliated terrorist cells often acting in secret, and courts must consider functional, and often highly contextual, evidence to determine whether an individual is "part of" al-qaida or Taliban forces. Evidence that a person's movements and activities were similar to the movements of individuals who are known to be affiliated with al-qaida or Taliban forces, or that he attended al-qaida terrorist training camps and stayed at al-qaida guesthouses, can be St:CH'ffIN6F6ftN 26

Case: 10-5048 Document: UNCLASSIFIEDIIFOR 1243454 PUBLIC Filed: RELEASE 05/06/2010 Page: 39 the basis for a finding that he is part of al-qaida or Taliban forces. Here, evidence that Hatim attended and received weapons training at an al-qaida terrorist training camp; that he stayed in Taliban- and al-qaida-affiliated guesthouses before and after his training; that he was part of a group of men under the leadership of a commander who helped supply Taliban fighters on the front lines, efforts for which he was paid by an al-qaida operati is sufficient to demonstrate that Hatim was "part of' al-qaida or Taliban forces. The district court's contrary view is legal error mandating reversal. 2. Even if this Court were to reject a functional test for membership in al- Qaida or Taliban forces, reversal and remand would still be required under this Court's decision in Al-Bihani to determine whether the Government's evidence supports detention on the basis that Hatim provided "substantial support" to al-qaida or Taliban forces or "purposefully and materially supported hostilities against the United States or its coalition partners." The district court's holding that the Government's detention authority does not extend to an individual who provides "substantial support" for al-qaida or Taliban forces is contrary to binding circuit precedent. B. Reversal is also required because the district court misapplied the preponderance of evidence standard by refusing to consider the Government's SECRE'ffINOFOItN 27

Case: 10-5048 Document: 1243454 Filed: 05/06/2010 Page: 40 St3t!M'Ph'N6F6ftf{ evidence in the aggregate or to draw inferences from the evidence viewed as a whole. As the Supreme Court recognized in Bourjailyv. United States, 483 U.S. 171, 179-80 (1987), even if individual pieces of evidence may be insufficient to prove a point, they may do so in cumulation. Here, each piece of evidence of Hatim' s affi I iation with al-qaida and the Taliban served to corroborate the many other pieces of evidence showing similar connections. Furthermore, in weighing the evidence, the district court failed to consider the implausibility of Hatim's version of events. C. This Court should reverse the district court's ruling and order the district court to deny the writ, because the evidence in this case allows only one reasonable inference: that Hatim was part of al-qaida or Taliban forces. 1. The district court reasoned that Hatim' s admission that he attended the al-farouq terrorist training camp was not reliable because it was the product of alleged mistreatment at Kandahar. But Hatim made the same admission prior to his detention at Kandahar, which was also corroborated by documentary evidence. Hatim continued to admit that he attended al-farouq in numerous and detailed statements to interrogators at Guantanamo and in his hearing before a CSRT, which had sufficient indicia of reliability and were attenuated from any alleged mistreatment at Kandahar. In the face of this extensive evidence ofhatim's attendance at al-farouq, BEiCRt)'fIJit.OPORN 28

Case: 10-5048 Document: 1243454 Filed: 05/06/2010 Page: 41 some of which indisputably could not have been affected by any alleged mistreatment, the district court's finding was clearly erroneous. 2. The district court also committed clear error in discounting other evidence ofhatim's multiple connections to al-qaida and the Taliban - including his stays at guesthouses affiliated with the Taliban and al '-'... _ Hatim' s stay at Said Central Station under the leadership of a "general for the fighters" and his armed travel to the front lines to deliver food to Taliban fighters; STANDARD OF REVIEW The district court's ultimate determination on habeas corpus is reviewed de novo. See Al-Bihani v. Obama, 590 F.3d 866, 870 (D.C. Cir. 2010). The Court's legal conclusions are reviewed de novo, while its underlying factual findings are reviewed for clear error. See ibid. SECRt!3'f'It'f(6F61tN 29

Case: 10-5048 Document: 1243454 Filed: 05/06/2010 Page: 42 SELRE i IINU. URN ARGUMENT THE DISTRICT COURT ERRED IN HOLDING THAT THE GOVERNMENT FAILED TO PROVE BY A PREPONDERANCE OF EVIDENCE THAT HATIM WAS PART OF, OR SUBSTANTIALLY SUPPORTED, AL-QAIDA OR TALmAN FORCES. A. The District Court Applied An Erroneously Narrow View Of The Government's Detention Authority. At the outset, the district court's ruling was premised on a legal error. The district court applied an unduly stringent test for determining who is part of al-qaida or Taliban forces, erroneously requiring the Government to show that Hatim received and executed specific orders from commanders as a condition of detention. The correct test for determining whether an individual is "part of' enemy forces is functional, and often highly contextual. Even if this were not the case, furthermore, the district court would still be required under this Court's binding precedent in Al- Bihani to determine whether Hatim is subject to detention on the ground that he "substantially supported" or provided "purposeful and material support to" al-qaida or Tali ban forces. 1. The Government Was Not Required To Prove That Hatim Received And Executed Specific Orders From AI-Qaida Or Taliban Leaders In Order To Show He Was Part Of AI-Qaida Or Taliban Forces. The district court applied an improperly heightened view of the type of evidence necessary to establish than an individual was "part of' al-qaida or Taliban BECRE'fIJNOFOItN 30

Case: 10-5048 Document: 1243454 Filed: 05/06/2010 Page: 43 forces. The district court relied on Gherebi v. Obama, 609 F. Supp.2d 43 (D.D.C. 2009), and Hamlily v. Obama, 616 F. Supp. 2d 63 (D.D.C. 2009), to hold that the Government was required to show that Hatim was "part of the command structure" of al-qaida or Taliban forces. Opinion, at 6-7 & n.3, 19-20, JA 1302-1303, 1315-1316. The district court then misconstrued this standard to require evidence that Hatim received and carried out specific orders issued by al-qaida or Taliban leaders. See, e.g., Opinion, at 19-20,21, JA 1315-1316, 1317 (holding that evidence that Hatim attended al-farouq would not support detention because the Government had not shown that he "receiv[ ed] and execut[ ed] orders or directions" or "followed a single order issued by anyone at al-farouq"); Opinion, at 22-23, JA 1318-1319 (holding that evidence that Hatim was at rear lines at Said Central Station did not support detention because there was no evidence that his trips to the front line to deliver supplies were "conducted at anyone's command" or that he received and executed orders or directions); Opinion, at 24, JA 1320. The district court's standard was unduly restrictive, inconsistent with the nature of the al-qaida terrorist organization, and contrary to this Court's holding in Al-Bihani, which recognizes that the evidence that a person is "part of' al-qaida or Taliban forces may be functional, and often highly contextual. SECRti'flfP,6F6RN 31

Case: 10-5048 Document: UNCLASSIFIEDIIFOR 1243454 PUBLIC RELEASE Filed: 05/06/2010 Page: 44 The nature of the al-qaida terrorist organization underscores the need for the detention authority under the AUMF to extend to all individuals who are functionally part of that organization. AI-Qaida is a terrorist group that lacks the formal organization and command structure of a national military force. See The 9/11 Commission Report 56 (2004). Many of al-qaida's operations are carried out by loosely affiliated terrorist cells made up of volunteers acting with significant autonomy but taking direction from al Qaida leadership. See generally id. at 64-67, 68-70, 190-193; see also C. Bradley & 1. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. at 21 09 (collecting sources). Moreover, individuals affiliated with al-qaida typically seek to hide their affiliation. They do not wear uniforms or carry an "official membership card," Al-Bihani, 590 F.3d at 873, and may purposefully attempt to disguise their connection to the organization. A requirement that the Government produce evidence that a detainee received and carried out specific orders from al-qaida leaders, as a condition of detention, would produce perverse results, by rewarding a group that purposefully remains flexible, loosely structured, and clandestine. Such proof should be unnecessary where, as here, the evidence as a whole shows that an individual was integrated into the organization. SECRE'fIR.OPOftN 32