United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 11, 2011 Decided March 29, 2011
No. 10-5235
UTHMAN ABDUL RAHIM MOHAMMED UTHMAN, DETAINEE,
CAMP DELTA
APPELLEE
v.
BARACK OBAMA, PRESIDENT OF THE UNITED STATES, ET AL.,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:04-cv-01254)
Dana Kaervsang, Attorney, U.S. Department of Justice,
argued the cause for appellants. With her on the briefs were
Ian Heath Gershengorn, Deputy Assistant Attorney General
and Douglas N. Letter and Robert M. Loeb, Attorneys, U.S.
Department of Justice.
Anthony J. Phillips argued the cause for appellees. With
him on the brief were S. William Livingston, Roger A. Ford,
and David H. Remes. Brian E. Foster entered an appearance.
Before: GARLAND, GRIFFITH, and KAVANAUGH, Circuit
Judges.
2
Opinion for the Court filed by Circuit Judge
KAVANAUGH.
KAVANAUGH, Circuit Judge: In response to al Qaeda’s
attacks against the United States on September 11, 2001,
Congress passed and President Bush signed the Authorization
for Use of Military Force. The 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.
Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2001); see U.S.
CONST. art. I. § 8. The AUMF, among other things,
authorizes the Executive Branch to detain for the duration of
hostilities those individuals who are part of al Qaeda or the
Taliban. See Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004).
Under the AUMF, the U.S. military currently holds
Uthman Abdul Rahim Mohammed Uthman at the U.S. naval
base in Guantanamo Bay, Cuba. Exercising his right under
the U.S. Constitution to judicial review of the basis for his
detention, Uthman filed a petition for a writ of habeas corpus
in the U.S. District Court for the District of Columbia. See
Boumediene v. Bush, 553 U.S. 723 (2008). Uthman
contended that he was not part of al Qaeda and therefore was
not properly detained. Applying a “command structure test,”
the District Court ruled that the Government had not proved
that Uthman was part of al Qaeda. The District Court
3
therefore granted the petition and ordered Uthman released
from U.S. custody.
In decisions issued since the District Court’s judgment in
this case, this Court has rejected “command structure” as the
test for determining whether someone is part of al Qaeda.
Our cases have held that the “determination of whether an
individual is ‘part of’ al-Qaida ‘must be made on a case-by-
case basis by using a functional rather than a formal approach
and by focusing upon the actions of the individual in relation
to the organization.’” Salahi v. Obama, 625 F.3d 745, 751-52
(D.C. Cir. 2010) (quoting Bensayah v. Obama, 610 F.3d 718,
725 (D.C. Cir. 2010)).
Applying the functional standard mandated by our
precedents, we conclude that the facts found by the District
Court, along with uncontested facts in the record, demonstrate
that Uthman more likely than not was part of al Qaeda. We
therefore reverse the judgment of the District Court and
remand with instructions to deny the petition for a writ of
habeas corpus.
I
Uthman Abdul Rahim Mohammed Uthman, a Yemeni
man, was captured at the Afghan-Pakistani border near Tora
Bora on December 15, 2001. He was captured in a small
group that included two al Qaeda members who were Osama
bin Laden bodyguards and another man who was a Taliban
fighter.1 Tora Bora is a cave complex in the mountains of
1
Uthman stated that he was captured with about 20 to 30 other
men. See J.A. 628 (FBI report from Uthman interview); J.A. 771
(Intelligence Information Report from Uthman interview); J.A. 638
(FBI report from Uthman interview).
4
eastern Afghanistan. Al Qaeda forces gathered there in
December 2001 to wage a major battle against the United
States and its allies.
Soon after his capture, Uthman was transferred to the
U.S. naval base in Guantanamo Bay, Cuba. He has been
detained at Guantanamo since January 2002.
In 2004, Uthman filed a petition for a writ of habeas
corpus in the U.S. District Court for the District of Columbia
challenging the basis for his detention. The Government
asserted that Uthman was part of al Qaeda and therefore may
be detained for the duration of the war against al Qaeda
pursuant to the Authorization for Use of Military Force. See
Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004); Bensayah v.
Obama, 610 F.3d 718, 724-25 (D.C. Cir. 2010).2
The District Court stated that “the key question” in
determining someone’s membership in al Qaeda “is whether
an individual receives and executes orders from the enemy
force’s combat apparatus.” Abdah v. Obama, 708 F. Supp. 2d
9, 13 (D.D.C. 2010) (internal quotation marks and alterations
omitted). The District Court derived that test from two
previous district court opinions applying this “command
structure test.” See id. at 12-13 (citing Hamlily v. Obama,
616 F. Supp. 2d 63 (D.D.C. 2009), and Gherebi v. Obama,
609 F. Supp. 2d 43 (D.D.C. 2009)). After examining the
evidence, the District Court concluded that the Government
2
This Court has stated that the Executive also may detain
those who “purposefully and materially support [al Qaeda or
Taliban forces] in hostilities against U.S. Coalition partners.”
Al-Bihani v. Obama, 590 F.3d 866, 872 (D.C. Cir. 2010); see also
Hatim v. Gates, No. 10-5048, slip op. at 2 (D.C. Cir. Feb. 11,
2011). In this case, the Government has asserted that it is seeking
to detain Uthman only because he was part of al Qaeda.
5
did “not convince the Court by a preponderance of the
evidence that Uthman received and executed orders from Al
Qaeda.” Id. at 22. On that basis, the District Court granted
Uthman’s petition for a writ of habeas corpus. Id. at 23.
Several of this Court’s cases – all decided after the
District Court granted Uthman’s petition – have held that the
“command structure test” does not reflect the full scope of the
Executive’s detention authority under the AUMF. “These
decisions make clear that the determination of whether an
individual is ‘part of’ al-Qaida ‘must be made on a case-by-
case basis by using a functional rather than a formal approach
and by focusing upon the actions of the individual in relation
to the organization.’” Salahi v. Obama, 625 F.3d 745, 751-52
(D.C. Cir. 2010) (quoting Bensayah, 610 F.3d at 725); see
also Awad v. Obama, 608 F.3d 1, 11 (D.C. Cir. 2010)
(“Nowhere in the AUMF is there a mention of command
structure.”). To be sure, demonstrating that someone is part
of al Qaeda’s command structure is sufficient to show that
person is part of al Qaeda. But it is not necessary. See, e.g.,
Awad, 608 F.3d at 11. Indicia other than the receipt and
execution of al Qaeda’s orders may prove “that a particular
individual is sufficiently involved with the organization to be
deemed part of it.” Bensayah, 610 F.3d at 725 (citing Awad,
608 F.3d at 11). It is thus possible that someone may
“properly be considered ‘part of’ al-Qaida even if he never
formally received or executed any orders.” Salahi, 625 F.3d
at 752 (citing Awad, 608 F.3d at 3-4, 11).
In this case, the question therefore is whether, under the
functional test mandated by our precedents, the established
facts – that is, those facts found by the District Court or
otherwise uncontested – show that Uthman more likely than
6
not was part of al Qaeda.3 Our analysis of that question is de
novo. See Barhoumi v. Obama, 609 F.3d 416, 423 (D.C. Cir.
2010).
II
In analyzing whether Uthman more likely than not was
part of al Qaeda, we consider the following facts, which were
found by the District Court or are otherwise uncontested:
Uthman was captured in December 2001 in the
vicinity of Tora Bora, an isolated, mountainous area
where al Qaeda forces had gathered to fight the United
States and its allies.
When captured, Uthman was traveling with a small
group of men, two of whom were al Qaeda members
and bodyguards for Osama bin Laden and one of
whom was a Taliban fighter.
Leading up to his capture, Uthman’s journey began at
a religious school in Yemen where al Qaeda had
successfully recruited fighters. The two al Qaeda
members and Osama bin Laden bodyguards who were
later captured with Uthman, as well as the Taliban
fighter captured with Uthman, also attended the
Furqan Institute.
3
Our cases have stated that the preponderance of the evidence
standard is constitutionally sufficient and have left open whether a
lower standard might be adequate to satisfy the Constitution’s
requirements for wartime detention. See Al-Adahi v. Obama, 613
F.3d 1102, 1104-05 (D.C. Cir. 2010); Awad v. Obama, 608 F.3d 1,
11 & n.2 (D.C. Cir. 2010); Al-Bihani, 590 F.3d at 878 & n.4. The
preponderance of the evidence standard is equivalent to the “more
likely than not” standard. See Concrete Pipe & Prods., Inc. v.
Constr. Laborers Pension Trust, 508 U.S. 602, 622 (1993); Al-
Adahi, 613 F.3d at 1106.
7
Uthman traveled to Afghanistan along a route used by
al Qaeda recruits.
Uthman lied to hide the fact that someone else paid for
his travel to Afghanistan.
While in Afghanistan, Uthman was seen at an
al Qaeda guesthouse.
Uthman’s explanation of why he went to Afghanistan
and why he was traveling in a small group that
included al Qaeda members and a Taliban fighter near
Tora Bora during the battle there involves a host of
unlikely coincidences.
Uthman argues that those facts do not add up to his being part
of al Qaeda.4 As we will explain, we conclude that those
facts, taken together, are more than sufficient to show that
Uthman more likely than not was part of al Qaeda.5
4
Uthman does not challenge any of the subsidiary factual
findings of the District Court that the Government currently relies
on to support Uthman’s detention. (In any event, we see no basis
for deeming clearly erroneous any of those factual findings. Cf.
Awad v. Obama, 608 F.3d 1, 6, 8-10 (D.C. Cir. 2010).) Rather, he
argues that the facts found by the District Court do not establish
that he was part of al Qaeda.
5
Some of Uthman’s other activities during his time in
Afghanistan are contested. The Government claims, for example,
that Uthman attended an al Qaeda training camp, fought against the
Northern Alliance, and himself became one of Osama bin Laden’s
bodyguards. Uthman responds that those allegations are not true.
The District Court concluded that the Government did not offer
sufficient evidence to establish those facts. Because the
Government has not challenged those aspects of the District Court’s
decision in this Court, we do not consider those additional
allegations for purposes of this appeal. We also do not consider the
Government’s allegation that Uthman was present at a second al
Qaeda guesthouse.
8
First, Uthman was captured on December 15, 2001, “in
the vicinity of Tora Bora.” Abdah v. Obama, 708 F. Supp. 2d
9, 22 (D.D.C. 2010). As the District Court noted, it was
“widely known” that Tora Bora was a battleground between
al Qaeda and the United States and “few, if any
noncombatants would have been in the vicinity during this
time.” Id. at 19 n.11. Because “few, if any” non-combatants
were near Tora Bora, it follows that most, if not all, of those
in the vicinity of Tora Bora on December 15, 2001, were
combatants. In a prior case, we found it significant that a
detainee was captured near Tora Bora in late 2001. See Al
Odah v. United States, 611 F.3d 8, 11, 16 (D.C. Cir. 2010). In
short, the fact that Uthman was captured in December 2001
near Tora Bora suggests that he was affiliated with al Qaeda.
Second, the company Uthman was keeping when he was
captured near Tora Bora in December 2001 makes it even
more likely that he was part of al Qaeda. See Abdah, 708 F.
Supp. 2d at 22 (Uthman “was with Al Qaeda members in the
vicinity of Tora Bora”). Uthman admits that, when captured,
he was part of a small group including at least five other
Yemeni men. Two of those men were al Qaeda members and
have since confessed to being bodyguards for Osama bin
Laden. Another fought with the Taliban against United States
forces. One of the bin Laden bodyguards in Uthman’s band
described the group as “brothers” retreating from battle. In
our prior cases, we have stated that evidence of association
with other al Qaeda members is itself probative of al Qaeda
membership. Cf. Al-Adahi v. Obama, 613 F.3d 1102, 1107
(D.C. Cir. 2010); Awad v. Obama, 608 F.3d 1, 9-10 (D.C. Cir.
2010); id. at 3 (noting that al Qaeda fighters treated Awad “as
one of their own”); see also Salahi v. Obama, 625 F.3d 745,
753 (D.C. Cir. 2010) (district court may be able to “infer from
Salahi’s numerous ties to known al-Qaida operatives that he
9
remained a trusted member of the organization”). So it is
here.
Being captured in the company of a Taliban fighter and
two al Qaeda members and Osama bin Laden bodyguards 12
miles from Tora Bora in December 2001 might not be
precisely the same as being captured in a German uniform 12
miles from the Normandy beaches in June 1944. But it is
still, at a minimum, highly significant. And absent a credible
alternative explanation, the location and date of Uthman’s
capture, together with the company he was keeping, strongly
suggest that he was part of al Qaeda. And there is more.
Third, the narrative of Uthman’s journey before his
capture suggests that it was not an accident that he ended up
near Tora Bora on December 15, 2001, in the company of two
al Qaeda members who were Osama bin Laden’s bodyguards,
as well as a Taliban fighter. That narrative begins with
Uthman’s studies at the Furqan Institute, a religious school “at
which other men were recruited to fight for Al Qaeda.”
Abdah, 708 F. Supp. 2d at 22. Uthman downplays this
particular fact, noting that most students at the school
probably did not become al Qaeda fighters. Uthman’s
argument ignores two points. First, attendance at such a
school – which was a fruitful al Qaeda recruiting ground – is a
fact that, while perhaps not alone of great significance, can
assume greater significance when considered in light of other
facts suggesting al Qaeda membership. Cf. Al-Adahi, 613
F.3d at 1105-09; Al Odah, 611 F.3d at 16. Second, the two al
Qaeda members and Osama bin Laden bodyguards and the
Taliban fighter captured with Uthman in the vicinity of Tora
Bora also attended the Furqan Institute. Uthman admitted he
knew all of them from the Institute, including the Osama bin
Laden bodyguard and former Furqan Institute student who
described the group as “brothers.” Uthman’s long association
10
with those three fellow travelers, dating back to their shared
time at an al Qaeda recruiting ground, renders it rather
unlikely that their travel together near al Qaeda’s embattled
stronghold at Tora Bora in December 2001 was a coincidental
reunion of old schoolmates. Cf. Salahi, 625 F.3d at 753; Al-
Adahi, 613 F.3d at 1105, 1107; Awad, 608 F.3d at 3, 9-10.
Fourth, after studying at the Furqan Institute, Uthman
“traveled to Afghanistan along a route also taken by Al Qaeda
recruits.” Abdah, 708 F. Supp. 2d at 22. Specifically,
Uthman flew from Sana’a, Yemen, to Karachi, Pakistan.
From Karachi, he traveled by bus to Quetta, Pakistan, and
then by taxi to a Taliban office there. From Quetta, a Taliban
official arranged for Uthman’s transportation to Kandahar,
Afghanistan. Uthman’s route is similar to the paths of
admitted al Qaeda members now in U.S. custody. This Court
has stated that traveling to Afghanistan along a distinctive
path used by al Qaeda members can be probative evidence
that the traveler was part of al Qaeda. See Al Odah, 611 F.3d
at 16. Uthman again argues that this fact alone is not
significant, as people who were not al Qaeda recruits may
have followed the same track. But the fact that Uthman
followed a common al Qaeda route nonetheless makes it
somewhat more likely that he was an al Qaeda recruit. See
Al-Adahi, 613 F.3d at 1105; cf. Bourjaily v. United States, 483
U.S. 171, 179-80 (1987) (“individual pieces of evidence,
insufficient in themselves to prove a point, may in cumulation
prove it”).
Fifth, Uthman’s route to Afghanistan is even more
suspicious because he lied about how he paid for the trip. The
Government contends that a Yemeni sheikh who supported
terrorism funded Uthman’s journey. In his sworn statement to
the District Court, Uthman said he raised the funds himself
primarily by working at summer jobs selling food at a
11
roadside shack. The Government says this explanation is
preposterous, observing that Uthman would have had to earn
more than three times the average Yemeni’s annual income in
only a few summers’ unskilled work. The District Court
agreed with the Government, finding that Uthman received
the funds from the sheikh, as Uthman originally told
interrogators. Abdah, 708 F. Supp. 2d at 22. Although the
District Court made no finding as to whether that sheikh
supported terrorism, its determination that Uthman’s trip to
Afghanistan was financed by the sheikh necessarily means the
court found Uthman’s sworn statement that he paid for his
own travel to be false. Uthman’s false explanation is relevant
here because, as we have said in another case, “false
exculpatory statements are evidence – often strong evidence –
of guilt.” Al-Adahi, 613 F.3d at 1107 (citing United States v.
Penn, 974 F.2d 1026, 1029 (8th Cir. 1992), and United States
v. Meyer, 733 F.2d 362, 363 (5th Cir. 1984)).
Sixth, once he reached Afghanistan, Uthman was seen at
an al Qaeda guesthouse. See Abdah, 708 F. Supp. 2d. at 22.
In two prior cases, this Court has stated that staying at an al
Qaeda guesthouse is “powerful – indeed ‘overwhelming’ –
evidence” that an individual is part of al Qaeda. Al-Adahi,
613 F.3d at 1108 (quoting Al-Bihani v. Obama, 590 F.3d 866,
873 n.2 (D.C. Cir. 2010)) (alterations omitted). The reason
for that assessment is plain: It is highly unlikely that a visitor
to Afghanistan would end up at an al Qaeda guesthouse by
mistake, either by the guest or by the host. Uthman retorts
that he was only seen at an al Qaeda guesthouse, which does
not necessarily mean that he was staying there. True, but just
being present at an al Qaeda guesthouse is hardly the kind of
innocent fact that can be tossed aside as insignificant.
Moreover, absent another explanation (and Uthman provides
none), the most plausible reason for Uthman’s presence at an
al Qaeda guesthouse is that he was affiliated with al Qaeda
12
and staying at the guesthouse. See Al-Adahi, 613 F.3d at
1108. That implication is strongly buttressed by the fact that
Uthman did not have his passport when he was captured. As
this Court has explained, surrendering one’s passport was
“standard al Qaeda and Taliban operating procedure[]” when
checking into an al Qaeda guesthouse in Afghanistan. Al
Odah, 611 F.3d at 15.
Seventh, Uthman’s account of his activity in Afghanistan
and Pakistan involves many coincidences that are perhaps
possible, but not likely. According to Uthman, he went to
Afghanistan to teach the Koran. As of September 11, 2001,
he was in Kabul, teaching the Koran, although he does not
remember the names of any of his students and cannot
describe his school in Kabul.6 Unlike many civilians living in
Kabul at the time, Uthman remained in the capital as the
United States began its attack against the Taliban regime.
Only after the Taliban and its al Qaeda allies lost control of
Kabul did Uthman choose to leave. Although he wished to
flee to Pakistan, Uthman did not take the eastward road
through the Khyber Pass that leads directly to Pakistan.
Instead, Uthman took the long way home. He fled south,
parallel to Pakistan’s border, into rugged, mountainous terrain
– following his interpreter, he claims.7 Unfortunately, as the
story goes, his path led him near Tora Bora, where Osama bin
Laden and Ayman al-Zawahiri happened to have relocated
and where it was widely known that al Qaeda was gathering
for a major battle against the United States and its allies.
There, in the Afghan mountains, he chanced to meet up with
6
In Al Odah v. United States, 611 F.3d 8, 12 (D.C. Cir. 2010),
we found significance in the fact that a detainee could not
remember the names of any students he allegedly had taught.
7
In Al Odah, we found significance in a detainee’s similarly
circuitous route out of Afghanistan into Pakistan by way of Tora
Bora. Id. at 16.
13
schoolmates from his school days in Yemen. Unfortunately
for Uthman, those schoolmates also happened to be two al
Qaeda members who were Osama bin Laden bodyguards and
a Taliban fighter. Then, Uthman finally chose to enter
Pakistan – as it turns out, at the height of the U.S.
bombardment of Tora Bora and al Qaeda’s flight from
Afghanistan – where he says he was mistaken for an al Qaeda
fighter and detained.
Uthman’s account piles coincidence upon coincidence
upon coincidence. Here, as with the liable or guilty party in
any civil or criminal case, it remains possible that Uthman
was innocently going about his business and just happened to
show up in a variety of extraordinary places – a kind of
Forrest Gump in the war against al Qaeda. But Uthman’s
account at best strains credulity; and the far more likely
explanation for the plethora of damning circumstantial
evidence is that he was part of al Qaeda. When presented
with similar circumstantial evidence in prior cases, we have
had no trouble reaching the conclusion that the detainee more
likely than not was part of al Qaeda. See Al-Adahi, 613 F.3d
1102; Al Odah, 611 F.3d 8; Barhoumi v. Obama, 609 F.3d
416 (D.C. Cir. 2010); Awad, 608 F.3d 1; Al-Bihani, 590 F.3d
866. So too here.
***
To sum up, in the years leading up to his capture,
Uthman’s life was intertwined with al Qaeda’s operations.
Uthman attended a school in Yemen where al Qaeda
successfully recruited. He traveled to Afghanistan along a
route used by al Qaeda recruits. He lied about how he paid
for that journey. He was seen at an al Qaeda guesthouse in
Afghanistan. He traveled to an isolated mountainous region
near what was then al Qaeda’s last stronghold in Afghanistan,
14
during a major battle there. He was captured on December
15, 2001, in a small group that included two al Qaeda
members who were Osama bin Laden’s bodyguards and a
Taliban fighter. He did not have a passport with him. And he
has not credibly explained why he went to Afghanistan or
how he found himself traveling with a small group that
included two al Qaeda members who were Osama bin Laden
bodyguards and a Taliban fighter near Tora Bora in December
2001.
We do “not weigh each piece of evidence in isolation, but
consider all of the evidence taken as a whole.” Al Odah, 611
F.3d at 15 (quoting Awad, 608 F.3d at 6-7); see also Al-Adahi,
613 F.3d at 1105-07. Uthman’s actions and recurrent
entanglement with al Qaeda show that he more likely than not
was part of al Qaeda.8 We therefore reverse the judgment of
the District Court and remand with instructions to deny
Uthman’s petition for a writ of habeas corpus.
So ordered.
8
In recounting the evidence, we do not imply that all of the
evidence in this case is necessary to find someone part of al Qaeda.
We hold only that the evidence in this case is sufficient to find that
Uthman was part of al Qaeda.