United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 16, 2011 Decided April 8, 2011
No. 10-5282
YASEIN KHASEM MOHAMMAD ESMAIL, DETAINEE, CAMP
DELTA,
APPELLANT
v.
BARACK OBAMA, PRESIDENT OF THE UNITED STATES, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:04-cv-01254)
Danielle S. Barbour argued the cause for appellant. With
her on the briefs were Alan A. Pemberton, Brian Foster and
David H. Remes. Marc D. Falkoff and S. William Livingston
entered appearances.
Anne Murphy, Attorney, U.S. Department of Justice,
argued the cause for appellees. With her on the brief were
Douglas N. Letter and Robert M. Loeb, Attorneys.
Before: TATEL and BROWN, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
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Opinion for the Court filed PER CURIAM.
Concurring opinion filed by Senior Circuit Judge
SILBERMAN.
PER CURIAM: Appellant, Yasein Khasem Mohammad
Esmail, a detainee at the U.S. naval base in Guantanamo Bay,
Cuba, was captured by Northern Alliance forces in December
2001 and transferred to American custody in January of the
following year. In 2004, he filed a petition for a writ of habeas
corpus with the United States District Court for the District of
Columbia. The district court denied the petition, and Esmail
now appeals. Because we agree with the district court’s
ultimate determination that Esmail was more likely than not
“part of” al Qaeda at the time of his capture in December of
2001, we affirm.
Esmail challenges the district court’s decision on a
number of grounds. In particular, he argues that the district
court erred in finding that statements he made to American
interrogators in Afghanistan and at Guantanamo Bay were
voluntary. He also argues that the district court erred in
relying on those statements despite the government’s failure
to provide sufficient evidence corroborating their content. But
we have no need to consider either of those issues because the
record contains sufficient facts—affected neither by the
alleged coercion nor by the lack of corroboration—to support
the district court’s conclusion that Esmail was “part of” al
Qaeda at the time of his capture. See Bensayah v. Obama, 610
F.3d 718, 724–25 (D.C. Cir. 2010) (“[T]he [Authorization for
Use of Military Force] authorizes the Executive to detain, at
the least, any individual who is functionally part of al
Qaeda.”); see also Barhoumi v. Obama, 609 F.3d 416, 423
(D.C. Cir. 2010) (clarifying that in habeas appeals involving
Guantanamo Bay detainees we review district court fact
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findings for clear error, and we review the ultimate issue of
whether the detainee was “part of” al Qaeda de novo).
First, Esmail, a Yemeni who traveled to Afghanistan in
1999, admits to having received weapons training at al
Farouq, an al Qaeda training camp, for at least one month.
Although he claims that he did not know until after he left that
the camp was al Qaeda-run, the district court found this
contention to be incredible, and Esmail offers us no basis to
question that fact finding. See Awad v. Obama, 608 F.3d 1, 7
(D.C. Cir. 2010) (“A finding is clearly erroneous when . . . the
reviewing court . . . is left with the definite and firm
conviction that a mistake has been committed.” (internal
quotation marks omitted)). We have observed that training at
al Farouq or other al Qaeda training camps is compelling
evidence that the trainee was part of al Qaeda. See Al-Adahi v.
Obama, 613 F.3d 1102, 1109 (D.C. Cir. 2010) (suggesting,
but not relying on, the proposition that such evidence would
be sufficient on its own); see also Al-Bihani v. Obama, 590
F.3d 866, 873 n.2 (D.C. Cir. 2010). The length of Esmail’s
training—at least a month—makes this particularly strong
evidence. Cf. Al-Adahi, 613 F.3d at 1108 (noting that the
detainee was at al Farouq for only seven to ten days).
Second, Esmail admits to having studied at the al Qaeda-
affiliated Institute for Islamic/Arabic Studies. Although the
district court found this fact, on its own, not to be strong
evidence, see Abdah v. Obama, 709 F. Supp. 2d 25, 44
(D.D.C. 2010), it is relevant and, when viewed in light of the
remainder of the evidence, makes it more likely that Esmail
was “part of” al Qaeda. See Al-Adahi, 613 F.3d at 1105–09
(describing the importance of considering each fact in light of
the remainder of the evidence).
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Third, although Esmail contests precisely where he was
taken into custody by the Northern Alliance (he asserts it
occurred in Jalalabad while the government argues it occurred
in a village near Tora Bora, a cave complex in the mountains
of Eastern Afghanistan), he does not contest that he passed
through Tora Bora in December of 2001 or that when he was
taken into Afghan custody, he was with two other men, both
of whom had participated in the fighting and one of whom
had been injured. Seeking to explain these movements,
Esmail claims that after September 11, when he was in
Kandahar, he wanted to return to Yemen, but rather than
retrace the route he had taken from Yemen to Afghanistan in
1999, he headed north to Kabul, where he claims he planned
to meet and marry a Pakistani friend’s sister. Once in Kabul,
he adds, he was kidnapped from the street and taken to Tora
Bora, where his kidnappers picked up two other men. The
kidnappers then took the three of them to Jalalabad and sold
them into Afghan custody. The district court, however, “was
not persuaded by Esmail’s attempt to paint his decision to
travel from Kandahar to Kabul after September 11 as
innocent” and found his allegations of kidnapping “not
logical.” Abdah, 709 F. Supp. 2d at 46–47; cf. Al-Adahi, 613
F.3d at 1107 (noting that a false explanation can provide
further corroboration that a detainee is “part of” al Qaeda).
Esmail has failed to show that this credibility determination
was clearly erroneous.
As we explained in Uthman v. Obama, Tora Bora was a
“widely known . . . battleground between al Qaeda and the
United States” and travel in that region in December 2001
“suggests that [the traveler] was affiliated with al Qaeda.”
No. 10-5235, slip op. at 8 (D.C. Cir. Mar. 29, 2011) (internal
quotation marks omitted). In that case, we also found it
“highly significant” that the detainee was “captured in the
company of a Taliban fighter and two al Qaeda members and
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Osama bin Laden bodyguards,” id. at 9, and could “not
credibly explain[] . . . how he found himself traveling with
[that group],” id. at 14. Likewise, we find it “highly
significant” that Esmail was captured along with two fighters,
one of whom had been injured in the battle, and that Esmail
has offered no credible explanation either of his decision to
remain in Afghanistan after September 11 or of how he ended
up traveling through Tora Bora with two Tora Bora battle
participants.
“Consider[ing] . . . as a whole[,]” id. at 14 (internal
quotation marks omitted), these admissions and district court
fact findings, we conclude as a matter of law that Esmail was
more likely than not “part of” al Qaeda at the time of his
capture. We therefore affirm the district court’s denial of
Esmail’s petition for a writ of habeas corpus.
So Ordered.
SILBERMAN , Senior Circuit Judge, concurring: I concur in
the court’s per curiam opinion affirming the district court’s
denial of petitioner’s writ. The government’s evidence is easily
sufficient to meet any evidentiary standard. (Indeed, I find
petitioner’s “story” phonier than a $4 bill.) I write separately for
two reasons. First, to note that the government at oral argument
agreed that even if petitioner could show he resolutely declined
to “join” al Qaeda or the Taliban, and thus could not be said to
be a part of either, so long as evidence showed he fought along
side of al Qaeda, the Taliban, or with associated forces he would
be covered by the Authorization for Use of Military Force.
District courts, in that sort of case, need not strain to find a
petitioner is “a part of al Qaeda.” See Hatim v. Gates, --- F.3d
---, 2011 WL 553273, at *1 (D.C. Cir. 2011); Awad v. Obama,
608 F.3d 1, 9 n.1 (D.C Cir. 2010); Al-Bihani v. Obama, 590 F.3d
866, 871-72 (D.C. Cir. 2010).1
My second point, not unrelated to the first, goes to the
unusual incentives and disincentives that bear on judges on the
D.C. Circuit courts – particularly the Court of Appeals – charged
with deciding these detainee habeas cases. In the typical
criminal case, a good judge will vote to overturn a conviction if
the prosecutor lacked sufficient evidence, even when the judge
is virtually certain that the defendant committed the crime. That
can mean that a thoroughly bad person is released onto our
streets, but I need not explain why our criminal justice system
treats that risk as one we all believe, or should believe, is
justified.
When we are dealing with detainees, candor obliges me to
admit that one can not help but be conscious of the infinitely
greater downside risk to our country, and its people, of an order
1
Of course, “the purely independent conduct of a freelancer” –
one who does not fight alongside of, or actively support, al Qaeda, the
Taliban, or an associated force – “is not enough” to justify detention.
Bensayah v. Obama, 610 F.3d 718, 725 (D.C. Cir. 2010).
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releasing a detainee who is likely to return to terrorism. One
does not have to be a “Posnerian” – a believer that virtually all
law and regulation should be judged in accordance with a
cost/benefit analysis – to recognize this uncomfortable fact.
That means that there are powerful reasons for the
government to rely on our opinion in Al-Adahi v. Obama, 613
F.3d 1102 (D.C. Cir. 2010), which persuasively explains that in
a habeas corpus proceeding the preponderance of evidence
standard that the government assumes binds it, is unnecessary –
and moreover, unrealistic. Id. at 1104-05. I doubt any of my
colleagues will vote to grant a petition if he or she believes that
it is somewhat likely that the petitioner is an al Qaeda adherent
or an active supporter. Unless, of course, the Supreme Court
were to adopt the preponderance of the evidence standard
(which it is unlikely to do – taking a case might obligate it to
assume direct responsibility for the consequences of
Boumediene v. Bush, 553 U.S. 723 (2008)). But I, like my
colleagues, certainly would release a petitioner against whom
the government could not muster even “some evidence.”
Of course, if it turns out that regardless of our decisions the
executive branch does not release winning petitioners because
no other country will accept them and they will not be released
into the United States, see Kiyemba v. Obama, 605 F.3d 1046,
1048 (D.C. Cir. 2010); Kiyemba v. Obama, 561 F.3d 509, 516
(D.C. Cir. 2009), then the whole process leads to virtual
advisory opinions. It becomes a charade prompted by the
Supreme Court’s defiant – if only theoretical – assertion of
judicial supremacy, see Boumediene, 553 U.S. 723, sustained by
posturing on the part of the Justice Department, and providing
litigation exercise for the detainee bar.