Al-Adahi v. Obama

pniteb $fates Maurt af &ppeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 15,2010 Decided July 13,2010

MOHAMMED AL-ADAHI,
DETAINEE,CAMP DELTA,
GUANTANAMO NAVAL
BAY STATION,GUANTANAMO BAY,
CUBAAND MIRIAM ABDULLAH
ALI AL-HAJ,NEXT FRIEND OF
MOHAMMED AL-ADAHI,
APPELLEES/CROSS-APPELLANTS

BARACK
OBAMA,
PRESIDENT THE UNITED
OF STATES, AL.,
ET
APPELLANTS/CROSS-APPELLEES

Consolidated with 09-5339

Appeals from the United States District Court
for the District of Columbia
(NO. 1:05-CV-00280-GK)

Anne Murphy, Attorney, U.S. Department of Justice, argued
the cause for appellants/cross-appellees. With her on the briefs
were Douglas N. Letter and Robert M. Loeb, Attorneys.
 John A. Chandler argued the cause for appellees/cross-
appellants. With him on the briefs were Patricia L. Maher and
Richard G. Murphy, Jr. Gregory S. Smith entered an appearance.

Before: HENDERSON KAVANAUGH,
and Circuit Judges, and
RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.

RANDOLPH, Senior Circuit Judge: In the summer of 200 1,
a thirty-nine year-old Yemeni security guard took a six-month
leave of absence from his job to move to Afghanistan. Leaving
his wife and his two children, he stayed at the Kandahar home
of his brother-in-law, a close associate of Usama bin Laden.
Twice he met personally with bin Laden. From Kandahar he
moved into a guesthouse used as a staging area for al-Qaida
recruits. He then attended al-Qaida's A1 Farouq training camp,
where many of the September 1 lth terrorists had trained. He
traveled between Kabul, Khost, and Kandahar while American
forces were launching attacks in Afghanistan. Among other
explanations for his movements, he claimed that he had decided
to take a vacation. After sustaining injuries requiring his
hospitalization, he crossed the Pakistani border on a bus carrying
wounded Arab and Pakistani fighters. This man, Mohammed
Al-Adahi, who is now a detainee at Guantanamo Bay Naval
Base, admits all of this but insists he was not a part of al-Qaida
and never f o u ~ h a ~ a i n sthe United States. Others identified
t t

On his petition for a writ of habeas corpus, the
district court ordered him released. We reverse.

Pakistani authorities captured Al-Adahi in late 200 1. In
2004, a Combatant Status Review Tribunal determined, by a
preponderance of evidence, that he was part of al-Qaida. Al-
Adahi filed his habeas corpus petition in 2005. In 2008 the
Supreme Court ruled that despite statutes depriving the federal
courts ofjurisdiction to hear habeas petitions from Guantanamo
detainees, the Suspension Clause of the Constitution at least
preserved the writ as it existed in 1789. Boumediene v. Bush,
553 U.S. 723 (2008).

Al-Adahi's habeas petition presented the question whether
he was part of al-Qaida and therefore justifiably detained under
the Authorization for Use of Military Force, Pub. L. No. 107-40,
115 Stat. 224 (2001). The district court considered the govern-
ment's two factual returns and Al-Adahi's three traverses, in
addition to a substantial record that included intelligence reports,
interrogation summaries, expert declarations, and Al-Adahi's
direct and cross-examination (transmitted live from
Guantanamo). The court found "no reliable evidence in the
record that Petitioner was a member of al-Qaida" and ruled that
he should be released. Al-Adahi v. Obama, No. 05-280, Mem.
Op. at 41,2009 WL 2584685 (D.D.C. Aug. 21,2009) ("Mem.
Op."). The government brought this appeal and Al-Adahi cross-
appealed.

The Authorization for Use of Military Force empowers the
President "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 11,200 1, or harbored such organizations
or persons, in order to prevent any future acts of international
terrorism against the United States by such nations, organiza-
tions or persons." Pub. L. No. 107-40, 5 2(a). "[A]lI necessary
and appropriate force" includes the power to capture and detain
those described in the congressional authorization. Hamdi v.
Rumsfeld, 542 U.S. 507, 5 19 (2004). The government may
therefore hold at Guantanamo and elsewhere those individuals
who are "part o f ' al-Qaida, the Taliban, or associated forces.
See Awad v. Obama, No. 09-535 1, slip op, at 18 (D.C. Cir. June
2,20 10); Al-Bihani v. Obama, 590 F.3d 866,872,874-75 (D.C.
Cir. 2010).

Whether Al-Adahi fit that description was and is the
ultimate issue. The obvious preliminary question is what sort of
factual showing does the government, or the detainee, have to
make? In this court the question is open. Al-Bihani held that
the government does not have to prove the legality of detention
"beyond a reasonable doubt" or by "clear and convincing
evidence." See 590 F.3d at 878; see also Awad, slip op. at 17-
18. Al-Bihani also decided that the preponderance-of-the-
evidence standard is constitutionally permissible. 590 F.3d at
878. But we have yet to decide whether that standard is
required. Id. at 878 n.4; see also Awad, slip op. at 18 n.2.

The district judge in this case adopted the preponderance
standard. Mem. Op. at 5. Other district judges in our circuit
have done the same. See, e.g., Awad, slip op. at 8. Their
rationale is unstated. After Boumediene, the district judges met
in executive session and decided to coordinate proceedings in
Guantanamo habeas cases. See In re Guantanamo Bay Detainee
Litig., 577 F. Supp. 2d 309,310 (D.D.C. 2008). On November
6, 2008, the coordinating judge issued a Case Management
Order. In re Guantanamo Bay Detainee Litig., Misc. No. 08-
442, 2008 WL 4858241 (D.D.C. Nov. 6, 2008). The Order
stated, among other things, that the government should bear the
burden of proving by a preponderance of the evidence that the
petitioner's detention is lawful. Order at 4. In support, the
Order cited Boumediene. But Boumediene held only that the
"extent of the showing required of the Government in these
cases is a matter to be determined." 128 S. Ct. 2229, 2271 .'

' Earlier in the opinion the Court seemed to put the burden on the
detainee: the Court stated that "the privilege of habeas corpus entitles
the prisoner to a meaningful opportunity to demonstrate that he is
 Boumediene also held that in determining the scope of the
writ, "the analysis may [must?] begin with precedents as of
1789, for the Court has said that 'at the absolute minimum' the
Clause protects the writ as it existed when the Constitution was
drafted and ratified." Id. at 2248 (quoting INS v. St. Cyr, 533
U.S. 289, 301 (2001)). Yet we are aware of no precedents in
which eighteenth century English courts adopted a preponder-
ance standard. Even in later statutory habeas cases in this
country, that standard was not the norm. For years, in habeas
proceedings contesting orders of deportation, the government
had to produce only "some evidence to support the order." St.
Cyr, 533 U.S. at 306; Bakhtriger v. Elwood, 360 F.3d 414,421
& n.7 (3d Cir. 2004). In such cases courts did not otherwise
"review factual determinations made by the Executive." St. Cyr,
533 U.S. at 306 (citing Ekiu v. Unitedstates, 142 U.S. 65 1,659
(1892)). In habeas petitions challenging selective service
decisions, the government also had the minimal burden of
providing "some evidence" to support the decision. See Eagles
v. US. ex rel. Sanders, 329 U.S. 304, 3 11- 12 (1 946). Habeas
petitions contesting courts martial required the government to
show only that the military prisoner had received, in the military
tribunal, "full and fair consideration" of the allegations in his
habeas petition. See Burns v. Wilson, 346 U.S. 137,142 (1953).
And in response to habeas petitions brought after an individual's
arrest, the government had to show only that it had probable
cause for the arrest. Ex parte Bollman, 8 U.S. (4 Cranch) 75,
125, 130 (1807).

After oral argument, we ordered the parties to file supple-
mental briefs discussing "what factual showing" (if any) the
government must make to justify detaining Al-Adahi. The

being held pursuant to 'the erroneous application or interpretation' of
relevant law." 128 S. Ct. at 2266 (quoting INS v. St. Cyr, 533 U.S.
289,302 (2001)).
supplemental briefs we received were not exactly illuminating.
The government stated that "in the circumstances currently
presented in this Guantanamo habeas litigation," a preponder-
ance standard is "appropriate," Supp. Br. of Appellants at 1,
although "a different and more deferential standard may be
appropriate in other cases or contexts," Supp. Reply Br. of
Appellants at 2.2 Al-Adahi readily agreed with the government
that the preponderance standard should govern his case. Supp.
Br. of Appellee at 2-3. We are thus left with no adversary
presentation on an important question affecting many pending
cases in this court and in the district court. Although we doubt,
for the reasons stated above, that the Suspension Clause requires
the use of the preponderance standard, we will not decide the
question in this case. As we did in Al-Bihani, we will assume
arguendo that the government must show by a preponderance of
the evidence that Al-Adahi was part of al-Qaida. 590 F.3d at
878 & n.4.

The district court divided the government's evidence into
five categories in rough chronological order: Al-Adahi's trip to
Afghanistan; his meetings with bin Laden; his stay in an al-
Qaida guesthouse; his military training at A1 Farouq; and his
other, later activities in Afghanistan. Mem. Op. at 13. We will
generally follow the court's organization, but before we get to
the specifics we need to mention an error that affects much of

The government added that "the same [standard of review] may not
apply in other cases or contexts involving review of the lawfulness of
military detention." Supp. Br. of Appellants at 13-14. The govern-
ment never explained why there should be a difference. The govern-
ment also stated that although it was "not here seeking deference to a
military tribunal, this Court should make clear that deference to
military and intelligence judgments is nonetheless still essential in
evaluating the evidence in these cases." Id. at 19. Again the govern-
ment failed to explain why it was not seeking deference to the
judgment of the Combatant Status Review Tribunal in this case.
the district court's evaluation of the evidence. The error steins
from the court's failure to appreciate conditional probability
analysis. United States v. Prandy-Binett, 5 F.3d 558, 558-60
(D.C. Cir. 1993) (denying rehearing).

"Many mundane mistakes in reasoning can be traced to a
shaky grasp of the notion of conditional probability." JOHN
ALLENPAULOS, INNUMERACY: MATHEMATICAL ILLITERACY
AND ITS CONSEQUENCES (1988). The key consideration is
63
that although some events are independent (coin flips, for
example), other events are dependent: "the occurrence of one of
them makes the occurrence ofthe other more or less likely . . . ."
JOHN ALLEN PAULOS, BEYONDNUMERACY: RUMINATIONS OF A
NUMBERS MAN189 (199 1). Dr. Paulos gives this example: "the
probability that a person chosen at random from the phone book
is over 250 pounds is quite small. However, if it's known that
the person chosen is over six feet four inches tall, then the
conditional probability that he or she also weighs more than 250
pounds is considerably higher." INNUMERACY 63.

Those who do not take into account conditional probability
are prone to making mistakes in judging evidence. They may
think that if a particular fact does not itself prove the ultimate
proposition (e.g.,whether the detainee was part of al-Qaida), the
fact may be tossed aside and the next fact may be evaluated as
if the first did not exist. Prandy-Binett, 5 F.3d at 559-60. This
is precisely how the district court proceeded in this case: Al-
Adahi's ties to bin Laden "cannot prove" he was part of Al-
Qaida and this evidence therefore "must not distract the Court."
Mem. Op. at 18. The fact that Al-Adahi stayed in an al-Qaida
guesthouse "is not in itself sufficient to justify detention." Id. at
20. Al-Adahi's attendance at an al-Qaida training camp "is not
sufficient to carry the Government's burden of showing that he
was a part" of al-Qaida. Id. at 25. And so on. The government
is right: the district court wrongly "required each piece of the
government's evidence to bear weight without regard to all (or
indeed any) other evidence in the case. This was a fundamental
mistake that infected the court's entire analysis." Br. of
Appellants at 42.

Having tossed aside the government's evidence, one piece
at a time, the court came to the manifestly incorrect - indeed
startling - conclusion that "there is no reliable evidence in the
record that Petitioner was a member of al-Qaida and/or the
Taliban." Mem. Op. at 41. When the evidence is properly
considered, it becomes clear that Al-Adahi was - at the very
least - more likely than not a part of al-Qaida. And that is all
the government had to show in order to satisfy the preponder-
ance standard. Awad, slip op. at 17-18; see Concrete Pipe &
Prods. of Cal., Inc. v. Constr. Laborers Pension Trust, 508 U.S.
602, 622 (1993) (citing In re Winship, 397 U.S. 358, 371-72
(1970) (Harlan, J., concurring)).

Al-Adahi served in the Yemeni army for two years and was
later employed as a security guard at the Yemeni state oil
company. In July 2001 he took a six-month leave of absence
from his job and left his wife and his two children to travel with
his sister Amani to Afghanistan (by way of Pakistan). Amani
had entered into an arranged marriage with Riyadh Abd A1-Aziz
Almujahid, a Yemeni citizen then residing in Kandahar.

Riyadh was affiliated with al-Qaida. He arranged for
Amani's and Al-Adahi's trip to Afghanistan. He helped them
obtain passports from the passport agency in their hometown of
Ta'iz. He then sent Al-Adahi to the Yemeni capital city of
Sana'a. Al-Adahi was instructed to wear a red jacket and wait
outside a specified building for a man he did not know. This
man, Ali Yayha, recognized Al-Adahi and gave him two plane
tickets and travel money. Yayha also arranged for Al-Adahi and
Amani to obtain visas. The government presented evidence that
al-Qaida paid for Al-Adahi's and Amani's trip. Al-Adahi
admitted that the sort of arrangements that Riyadh made for him
and his sister were the same as those al-Qaida used for bringing
jihadist recruits to Afghanistan.' And he described how Riyadh
had obtained Al-Adahi's travel funds from "the Saudi who
handled the money" for al-Qaida in Kandahar. That Al-Adahi
was an al-Qaida recruit is also supported by a witness's state-
ment - not addressed bv the district court - that Al-Adahi was

Riyadh was "from mujahidin" - that is, those who fought
against the Russians and in the Afghan civil war. Many
mujahidin frequented the guesthouse Riyadh operated in
Kandahar. Al-Adahi stayed at Riyadh's house, located in the
same compound. Al-Adahi told interrogators that Riyadh "had
a - -
achieved very high status" in al-0aida.' Like Al-Adahi.
Riyadh was described to interrogators as

admitted that Riyadh's compound was very close to the com-
pound of Mullah Omar, the leader of the Taliban.

Bin Laden hosted the male-only celebration of Riyadh's
marriage to Al-Adahi's sister. Bin Laden held the celebration at
his compound, which Al-Adahi described as "surrounded by a
concrete fence further secured by a large metal gate." Inside the
compound, a group of armed guards "draped in munitions belts,

Al-Adahi insisted that this was not the impetus for his own travel.
He told interrogators that his purpose was to accompany Amani as she
traveled to meet her husband.

Al-Adahi told interrogators that Riyadh was a bin Laden bodyguard.
But during the habeas proceedings he said he "doubt[ed]" this was
true. Riyadh's brother, Da'ood Al-Ta'zai, was a member of bin
Laden's security detail.
grenades, and Kalashnikov rifles" welcomed the wedding
guests. At the party, bin Laden gave a speech congratulating
Riyadh. Al-Adahi and bin Laden were introduced and sat next
to each other during the meal.

Several days later, bin Laden summoned Al-Adahi for
another meeting. According to Al-Adahi, at his meeting bin
Laden asked him about people he was connected with in Yemen
- some of whom were involved in jihad. (The events following
the meeting, including Al-Adahi's showing up at the al-Qaida
training camp, suggest that more transpired in the meeting than
what Al-Adahi related.) In the habeas proceedings, Al-Adahi
tried to explain his personal audience with bin Laden on the
basis that "meeting with Bin Laden was common for visitors to
Kandahar." Mem. Op. at 17. This is, as the government points
out, utterly implausible. Al-Adahi's story was "contradicted by
the undisputed evidence that in 2001 Usama bin Laden, who
knew he was a military target ofthe United States, had gone into
hiding under tight security . . . ." Br. of Appellants at 64.

As to the latter point the district court said nothing, despite
the well-settled principle that false exculpatory statements are
evidence - often strong evidence - of guilt. See, e.g., United
States v. Penn, 974 F.2d 1026, 1029 (8th Cir. 1992); United
States v. Meyer, 733 F.2d 362, 363 (5th Cir. 1984). The court
characterized the rest of the evidence about Al-Adahi's meetings
with bin Laden as "sensational and compelling" but not "actual,
reliable evidence that would justifl" detention. Mem. Op. at 4 1.
The court's statements are incomprehensible. On what possible
ground can the court say that the evidence on this subject was,
on the one hand, "compelling," and yet say, on the other hand,
that it was not "actual" and "reliable"? All that comes to mind
is the idea that two personal meetings with bin Laden are not
enough to prove that an individual is part of al-Qaida. If that is
what the court intended, then it was once again engaging in the
mistaken reasoning we mentioned in connection with condi-
tional probability analysis. The court rounded off its discussion
by characterizing the government's presentation as merely
indicating that Al-Adahi had "familial ties to Usama bin Laden,"
a statement incorrect as a factual matter (Al-Adahi's family ties
were to a top aide of bin Laden's) and one that misses the strong
thrust of the evidence. The evidence derived its power not only
from Al-Adahi's family relationships, but also from his meet-
ings with bin Laden. That close association made it far more
likely that Al-Adahi was or became part of the organization.

Rather than grasping this essential point, the district court
called the evidence regarding the meetings a distraction -
something that should not divert "the Court from its essential
focus - the nature of Al-Adahi's own conduct, upon which this
case must turn." Mem. Op. at 18. Here again the court's
remarks are perplexing. If Al-Adahi's meetings with bin Laden
were not his "own conduct," whose conduct were they?

The next event in this narrative greatly strengthened the
government's case against Al-Adahi. Not long after his second
meeting with bin Laden, Al-Adahi moved to the A1 Nebras
guesthouse. He said he wanted to go there because it was a
gathering place for Muslims, as if that distinguished it from any
other place he stayed during his time in Afghanistan. A1 Nebras
was not just another gathering place: it served as a staging area
for al-Qaida recruits en route to the A1 Farouq training camp.
Al-Adahi was treated like a recruit. Staff at the guesthouse
instructed him and the other recruits on how to pack and prepare
for their training before taking a bus to A1 Farouq. The district
court seemed to think that Al-Adahi's stay at the guesthouse -
one or two days - was evidence in his favor because it was so
brief. But the court failed to take into account that A1 Nebras
functioned as a way station.
 The district court dealt with this evidence in the following
way: "the guesthouse evidence is not in itself sufficient to
justify detention." Mem. Op. at 20. Note the "not in itself."
Again the court erred. Al-Adahi's voluntary decision to move
to an al-Qaida guesthouse, a staging area for recruits heading for
a military training camp, makes it more likely - indeed, very
likely - that Al-Adahi was himself a recruit. There is no other
sensible explanation for his actions. This is why we wrote in Al-
Bihani that an individual's attendance at an al-Qaida guesthouse
is powerful - indeed "overwhelming[]" - evidence that the
individual was part of al-Qaida. 590 F.3d at 873 n.2.

Al-Adahi left the guesthouse after a few days and, as
expected, entered al-Qaida's A1 Farouq training camp. By then
it was August 200 1. At least eight of the September 11th
hijackers had trained at A1 Farouq. While Al-Adahi was there,
he received training in rocket-propelled grenades, other weap-
ons, and basic physical fitness, as well as some classroom
instruction. His statements to interrogators indicated that he had
a deep knowledge of the operation of A1 Farouq. He described
camp leaders in a manner that showed he was familiar with
them; he reported details of the camp's training regimen and
layout; and he identified the types of weapons used for training.
He also knew the training routines of other recruits.

The district court seemed to think it important to determine
Al-Adahi's motive for attending the al-Qaida training camp. We
do not understand why. Whatever his motive, the significant
points are that al-Qaida was intent on attacking the United States
and its allies, that bin Laden had issued afatwa announcing that
every Muslim had a duty to kill Americans, and that Al-Adahi
voluntarily affiliated himself with al-Qaida.

According to Al-Adahi, he stayed at A1 Farouq for seven to
ten days, and then was expelled for smoking tobacco, a violation
of a camp rule. The government introduced evidence casting
doubt on Al-Adahi's explanation for leaving the camp. This
evidence -which included Al-Adahi's own statements - showed
that trainees expelled from A1 Farouq were treated as spies and
beaten. Al-Adahi left A1 Farouq unharmed. His story was that
the camp's instructors treated him gently because they were
close to his brother-in-law Riyadh. The government offered
another explanation. Al-Adahi did not spend a great deal of
time in the camp because he needed little training. He was not
a green, untested, recruit. He had served in the Yemeni army,
and he had been working as a security guard in Yemen. As to
his loyalty to the al-Qaida cause, his sister was married to one of
bin Laden's most trusted associates.

The district court reached the following conclusions about
Al-Adahi's attendance at A1 Farouq: (1) this was "not affirma-
tive evidence that Al-Adahi embraced al-Qaida, accepted its
philosophy, and endorsed its terrorist activities"; and (2) his
training at Al-Farouq did not show that he "occup[ied] some sort
of structured role in the hierarchy of the enemy force" or could
"be deemed a member of the enemy's armed forces." Mein.
Op. at 24-25 (internal quotation marks omitted).

The court appeared to rule that an individual must embrace
every tenet of al-Qaida before United States forces may detain
him. There is no such requirement. See Awad, slip op. at 19.
When the government shows that an individual received and
executed orders from al-Qaida members in a training camp, that
evidence is sufficient (but not necessary) to prove that the
individual has affiliated himself with al-Qaida. See id. ;Gherebi
v. Obama, 609 F. Supp. 2d 43, 69 (D.D.C. 2009). Al-Adahi's
statements confirm that he received and followed orders while
he was at A1 Farouq. His attendance at an al-Qaida military
training camp is therefore - to put it mildly - strong evidence
that he was part of al-Qaida. In Al-Bihani, we stated that if a
person stays in an al-Qaida guesthouse or attends an al-Qaida
training camp, this constitutes "overwhelming" evidence that the
United States had authority to detain that person. 590 F.3d at
873 n.2.

The district court ruled that Al-Adahi did not "receive and
execute" orders because he violated the camp rule against
smoking tobacco. Mem. Op. at 23, 25. This was error. Al-
Adahi's violation of a rule or rules did not erase his compliance
with other orders. One would not say that an Army trainee
ceased to be part of the Army if he failed to shine his shoes or
overslept one morning. Furthermore, there was no evidence that
Al-Adahi ever affirmatively disassociated himself from al-
Qaida, even though he "accepted his expulsion." Id. at 40.

The district court ended its discussion of Al-Adahi's
training at A1 Farouq with the following statement: Al-Adahi's
"admission that he trained at A1 Farouq is not sufficient to carry
the Government's burden of showing that he was a part, or
substantial supporter, of enemy forces." Id. at 25. We disagree
that this evidence, standing alone, was insufficient. See Al-
Bihani,590 F.3d at 873 n.2. In any event, we are sure that the
court erred in treating this evidence as if it stood alone.

The court gave similar treatment to the government's proof
that Al-Adahi wore the same model of Casio watch the military
has linked to al-Qaida and terrorist activity. When Pakistani
authorities picked up Al-Adahi they confiscated his watch. A
witness reported seeing him wearing the Casio watch before his
capture. The district court threw out these telling facts because,
after all, "Casio watches are hardly unique items, even in
Afghanistan." Mem. Op. at 34.

It is true that not everyone in Afghanistan with a Casio
watch could be identified with al-Qaida. But the evidence did
not relate to every such person. It related to a particular
individual wearing a Casio model favored by al-Qaida leaders,
an individual who had met with bin Laden, had stayed in an al-
Qaida guesthouse, and had trained in an al-Qaida camp.

The government also introduced other evidence of Al-
Adahi's close connection to the al-Qaida leadership. Al-Adahi
had detailed personal knowledge about a group of twelve men
who worked for bin Laden. For example, he knew that one man
was a trained sniper and could read, write, and speak English; he
knew that another spoke Pashtu and Farsi and sent men to A1
Farouq for training; and he knew that one "had fat thighs but
was quick," owned a four-door pickup truck, fought in
Chechnya and Bosnia, and had been with bin Laden in Sudan.

This evidence tended to show Al-Adahi's close relationship
with these men and thus strengthened the probability that he was
part of al-Qaida. Yet the district court declined to credit the
evidence because it was possible that Al-Adahi could have
learned the biographical information in some other way,
particularly since some of the men were from his hometown in
Yemen. Mem. Op. at 35. In so ruling the court committed what
a noted historian has called "the fallacy of the possible proof."
DAVID HACKETT FISCHER, HISTORIANS' FALLACIES:TOWARD A
LOGIC HISTORICAL
OF THOUGHT (1970). "Valid empirical
53
proof requires not merely the establishment of possibility, but an
estimate of probability." Id. Yet the court spoke only of a
possible alternative explanation for Al-Adahi's knowledge of
bin Laden's bodyguards. At no point did the court make any
finding about whether this alternative was more likely than the
government's explanation. But such a "comparative judgment
about the evidence" is at the heart of the preponderance standard
of proof. Lindsay v. Nat'l Transp. Safety Bd., 47 F.3d 1209,
1213 (D.C. Cir. 1995).
 Al-Adahi was in Kabul when the September 11 attacks
occurred. He said that he then decided to take a month long
vacation and travel throughout the countryside. He said he went
to Kabul because he was bored staying in Kandahar. When the
United States began its military campaign in Afghanistan on
October 7, 2001, Al-Adahi claimed he was still in Kabul.
About a week and a half after the bombing began, he left for
Khost, Afghanistan, where he stayed in a mosque for about two
weeks. He said he then left Khost to return to Kandahar to
search for his sister. He spent another two to three weeks in
Kandahar, including two or three days in a hospital recuperating
from injuries to his arm and side. Al-Adahi said he sustained his
injuries in a motorcycle accident. He offered different versions
of how the accident occurred: he hit a speed bump on his way to
the market; he crashed into a cart as he was riding around
Kandahar; he fell off his motorcycle while attempting to flee the
United States bombing; he crashed trying to avoid a small car.

Al-Adahi left the hospital for Pakistan on a bus carrying
wounded Arabs and Pakistanis. At one point in his interroga-
tion, Al-Adahi described these fourteen men as Taliban soldiers;
but he testified at the habeas proceeding that he learned this only
from a newspaper article.

From Al-Adahi's movements in Afghanistan, his injuries,
his shifting versions of his supposed motorcycle accident, and
his capture on a bus loaded with wounded Taliban fighters, the
government infers that Al-Adahi was complying with "bin
Laden's order to persist in the jihad" after the American attacks.
Br. of Appellants at 21. The district court, once again treating
items of evidence in isolation, pronounced that "there is no
evidence that [Al-Adahi] sought to join or was already part of a
band of fighters fleeing the region." Mem. Op. at 39. The court
was wrong, and clearly so. Al-Adahi's capture on a bus carrying
only himself and wounded Taliban fighters constituted such
evidence, as did his injuries, his movements in the country, and
the contradictions contained in his explanations. We do not say
that any of these particular pieces of evidence are conclusive,
but we do say that they add to the weight of the government's
case against Al-Adahi and that the district court clearly erred in
tossing them aside. See Awad, slip op. at 14-15; Prandy-Binett,
5 F.3d at 559-60.

One of the oddest things about this case is that despite an
extensive record and numerous factual disputes, the district
court never made any findings about whether Al-Adahi was
generally a credible witness or whether his particular explana-
tions for his actions were worthy of belief. The court's omis-
sions are particularly striking in light of the instructions in al-
Qaida's training manuals for resisting interrogation. For those
who belong to al-Qaida, "[c]onfronting the interrogator and
defeating him is part of your jihad." To this end al-Qaida
members are instructed to resist interrogation by developing a
cover story, by refusing to answer questions, by recanting or
changing answers already given, by giving as vague an answer
as possible, and by claiming torture. Put bluntly, the instruc-
tions to detainees are to make up a story and lie. Despite this the
district court displayed little skepticism about Al-Adahi's
explanations for his actions. To the extent the court expressed
any doubts, it addressed them to the government's case and did
so on the mistaken view that each item of the government's
evidence needed to prove the ultimate issue in the case.

We could go on, but what we have written thus far is
enough to show that the district court clearly erred in its treat-
ment of the evidence and in its view of the law. CJ: Barhoumi
v. Obama, No. 09-5383, slip op. at 12-13 (D.C. Cir. June 11,
20 10);Awad, slip op. at 17. The court's conclusion was simply
not a "permissible view[] of the evidence." See Anderson v.
City of Bessemer City, N. C., 470 U.S. 564,573-74 (1985). And
it reached this conclusion through a series of legal errors, as we
have discussed. We have already mentioned the suggestion in
Al-Bihani that attendance at either an al-Qaida training camp or
an al-Qaida guesthouse "would seem to overwhelmingly, if not
definitively, justiQ" detention. 590 F.3d at 873 n.2. The
evidence against Al-Adahi showed that he did both - stayed at
an al-Qaida guesthouse and attended an al-Qaida training camp.
And the evidence showed a good deal more, from his meetings
with bin Laden, to his knowledge of those protecting bin Laden,
to his wearing of a particular model of Casio watch, to his
incredible explanations for his actions, to his capture on a bus
carrying wounded Arabs and Pakistanis, and so on. One of the
most damaging and powerful items of evidence against him is
classifiede5In all there can be no doubt that Al-Adahi was more
likely than not part of al-Qaida. We therefore reverse and
remand with instructions to the district court to deny Al-Adahi's
petition for a writ of habeas c ~ r p u s . ~

Al-Adahi filed a cross-appeal. He argues that the district court had
no authority to admit hearsay bearing on his habeas petition. We
rejected that argument in Al-Bihani, 590 F.3d at 879, and again in
Awad, slip op. at 1 1. Al-Bihani also forecloses Al-Adahi's argument
that admitting hearsay violated his Sixth Amendment right of
confrontation. 590 F.3d at 879. The district court did not abuse its
discretion by not ruling separately on the reliability of each item of
hearsay, despite Al-Adahi's claim that the case management order
required it to do so. Barhoumi, slip op. at 9-10. His claim that
statements he made outside the presence of counsel should be
suppressed also fails: Al-Adahi cites no precedent extending the
Miranda v. Arizona, 384 U.S. 436 (1966), line of cases beyond the
 So Ordered.

criminal context. C Mem. Op. at 2 1 n. 14. As we noted in Al-Bihani,
f
these constitutional habeas proceedings are not subject to all the
protections given to defendants in criminal prosecutions. 590 F.3d at
876. Al-Adahi points to the Army Rules of Professional Responsibil-
ity as also requiring suppression of his ex parte statements, but he
waived this argument by failing to raise it until his cross-appeal reply
brief. See Rollins Environmental Services (NJ, Inc. v. EPA, 937 F.2d
649,652 n.2 (D.C. Cir. 1991).
Al-Adahi also claims his statements should be suppressed
pursuant to the Third Geneva Convention. Even if the Convention had
been incorporated into domestic U.S. law and even if it provided an
exclusionary rule, Congress has provided explicitly that the Conven-
tion's provisions are not privately enforceable in habeas proceedings.
See Military Commissions Act of 2006 5 5, Pub. L. No. 109-366, 120
Stat. 263 1-32; Noriega v. Pastrana, 564 F.3d 1290, 1296-97 (1 lth
Cir. 2009); Boumediene v. Bush, 476 F.3d 981, 988 n.5 (D.C. Cir.
2007).