United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 10, 2011 Decided May 27, 2011
No. 10-5172
MASAAB OMAR AL-MADHWANI, DETAINEE,
CAMP DELTA AND ALI OMAR MADHWANI,
AS NEXT FRIEND OF MUSSAB OMAR AL-MADHWANI,
APPELLANTS
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-01194)
Darold W. Killmer argued the cause for the appellants. Mari
Newman was on brief. Sara J. Rich entered an appearance.
August E. Flentje, Attorney, United States Department of
Justice, argued the cause for the appellees. Robert M. Loeb,
Attorney, was on brief.
Before: GINSBURG, HENDERSON and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Musa’ab
Omar al-Madhwani (Madhwani), a Yemeni detainee at
Guantanamo Bay, Cuba, appeals the district court’s denial of his
2
petition for a writ of habeas corpus. Madhwani claims that there
was insufficient evidence to find that he was “part of” al-Qaida
and argues further that the district court relied on evidence
outside the record, abused its discretion in denying additional
discovery and committed various legal errors. Because we find
no merit in Madhwani’s evidentiary and legal arguments, we
affirm the district court.
I.
In early summer 2001, Madhwani met two men in a coffee
shop somewhere in Yemen. The two spoke to him about the
“new Islamic state” in Afghanistan. Merits Hearing Tr. at 62, 69,
Anam v. Obama, C.A. No. 04-1194 (D.D.C. Oct. 27, 2009) (Tr.
10/27). One of them suggested to Madhwani—a recent high
school graduate who was unemployed—that he go to
Afghanistan to “witness the situation” for himself. Id. at 71–72.
Madhwani accepted a plane ticket and a small sum of money
from the man and left Yemen in August 2001. The stated
purpose of his trip, according to Madhwani, was “adventure”
and “to see what things are like in Afghanistan.” Id. at 73. Once
he arrived in Afghanistan, Madhwani accompanied a group of
fellow Yemenis he had met along the way to “the Arab
guesthouse” in Kandahar, where his passport and return airline
ticket were confiscated. Id. at 108–09. Madhwani was told that
his travel documents would be returned after he completed two
months of military training. Madhwani reluctantly agreed to the
arrangement and, by mid-August, he was transported to a remote
mountain camp to begin a course of physical conditioning and
small arms instruction.
Madhwani was still at the training camp when al-Qaida
attacked the United States on September 11, 2001. The camp
was closed down, for fear that it would be bombed, and
Madhwani and the other trainees were given permission to
3
leave. Madhwani took a rifle from the camp’s armory and, in the
company of two trainers from the camp and a score of fellow
recruits, wandered for several months through a succession of
Afghan cities. Madhwani claimed that they were all traveling in
search of their passports, which—like Madhwani’s—had been
confiscated before they were sent to the camp. They ended up in
Kabul just three days before the capital fell to the United States-
led military coalition. Madhwani was reunited with his passport,
mysteriously, infra p. 8, and he then went to neighboring
Pakistan. There he remained for the better part of one
year—aside from a brief trip to Iran—moving from one
clandestine location to another. Madhwani believed the
Pakistani authorities would arrest him, as an Arab, if he were to
travel openly to an airport or to the Yemeni embassy to seek
help in returning home.
Madhwani was captured along with several other Arabs on
September 11, 2002, when Pakistani security forces raided the
Karachi apartment building where he had been hiding from the
authorities. Two of Madhwani’s associates—one from the same
apartment and another from across the hall—fought and died in
a two-and-one-half hour gun battle with Pakistani soldiers. After
spending five days in a Pakistani prison, Madhwani was turned
over to U.S. military custody. Madhwani was then taken to a
“dark prison” where he claims to have been tortured. He was
transferred in October 2002 to the U.S. Naval Base at
Guantanamo Bay, Cuba.
Madhwani filed a petition for a writ of habeas corpus on
July 15, 2004. The district court conducted a four-day merits
hearing in 2009, which included testimony from Madhwani
himself, who testified by way of remote video connection from
Guantanamo, and by an expert witness who discussed
Madhwani’s psychological condition. The district court applied
the “command structure” standard of detention, under which an
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individual is considered to be “part of” al-Qaida—and therefore
lawfully detained—if he has “ ‘receive[d] and execute[d] orders
or directions’ ” from the terrorist organization, Anam v. Obama,
696 F. Supp. 2d 1, 4 (D.D.C. 2010) (quoting Hamlily v. Obama,
616 F. Supp. 2d 63, 75 (D.D.C. 2009))—a formulation of the
“part of” inquiry that we have since rejected as unduly narrow,
Awad v. Obama, 608 F.3d 1, 11 (D.C. Cir. 2010), cert. denied,
79 U.S.L.W. 3362, 3566, 3567 (U.S. Apr. 4, 2011) (No. 10-736).
The district court held that evidence showing Madhwani
“voluntarily attended an al-Qaida training camp . . . and then
traveled, associated, and lived with members of al-Qaida” was
sufficient to establish that he functioned under the “command
structure” of the organization and thus was “part of” al-Qaida.
Anam, 696 F. Supp. 2d at 14–15. Accordingly, the district court
denied Madhwani’s petition. Id. at 16.
II.
The President’s detention authority originates with the 2001
Authorization for Use of Military Force (AUMF), which
authorizes 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, 2001, or harbored such
organizations or persons.” Pub. L. No. 107-40, § 2(a), 115 Stat.
224, 224; see Hamdi v. Rumsfeld, 542 U.S. 507, 519 (2004)
(AUMF “authorized detention” of enemy combatants). We have
held that the authority conferred by the AUMF covers at least
“those who are part of forces associated with Al Qaeda or the
Taliban or those who purposefully and materially support such
forces in hostilities against U.S. Coalition partners.” Al-Bihani
v. Obama, 590 F.3d 866, 872 (D.C. Cir. 2010), cert. denied, 79
U.S.L.W. 3568 (U.S. Apr. 4, 2011) (No. 10-7814). Determining
whether an individual is “part of” al-Qaida or the Taliban is an
inquiry that “ ‘must be made on a case-by-case basis by using a
5
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, 752 (D.C. Cir. 2010) (quoting
Bensayah v. Obama, 610 F.3d 718, 725 (D.C. Cir. 2010)). “We
review the district court’s . . . habeas determination de
novo . . . .” Al-Bihani, 590 F.3d at 870. Because we agree with
the district court’s conclusion that Madhwani was more likely
than not “part of” al-Qaida and find no other error in the district
court’s handling of the case, we affirm.
A.
Madhwani argues that there was insufficient evidence to
support the district court’s conclusion that he was “part of” al-
Qaida. Madhwani bears a “heavy burden” in challenging “the
district court’s factual findings that are the underpinnings of its
determination.” Al Odah v. United States, 611 F.3d 8, 14 (D.C.
Cir. 2010), cert. denied, 79 U.S.L.W. 3228, 3565, 3567 (U.S.
Apr. 4, 2011) (No. 10-439). We review factual findings for clear
error and “do not weigh each piece of evidence in isolation, but
consider all of the evidence taken as a whole.” Awad, 608 F.3d
at 7. The clear error standard “ ‘applies to the inferences drawn
from findings of fact as well as to the findings themselves.’ ” Al
Odah, 611 F.3d at 15 (quoting Overby v. Nat’l Ass’n of Letter
Carriers, 595 F.3d 1290, 1294 (D.C. Cir. 2010)).
At the outset, we clarify the body of evidence upon which
we base our conclusion. The district court considered 260
exhibits and held a four-day merits hearing, during which
Madhwani himself testified for over one day. The district court
discounted a substantial portion of the Government’s
evidence—twenty-three reports of interrogations conducted in
2003 and 2004—based on its finding that the evidence was
tainted by the mistreatment Madhwani claims to have suffered
prior to arriving at Guantanamo Bay. Anam, 696 F. Supp. 2d at
6
5–9. Madhwani now argues that the district court should have
disregarded statements he made to the Combatant Status Review
Tribunal (CSRT) and Administrative Review Board (ARB) at
Guantanamo Bay because those, too, were tainted by the earlier
coercion.1 See id. at 9–10. We have no need, however, to reach
Madhwani’s evidentiary challenge—or for that matter to
evaluate the district court’s treatment of the allegedly tainted
evidence—because the record contains sufficient evidence
unaffected by any claim of coercion to uphold the district court’s
determination that Madhwani was “part of” al-Qaida. See
Esmail v. Obama, No. 10-5282, --- F.3d ----, 2011 WL 1327701,
at *1 (D.C. Cir. Apr. 8, 2011). That evidence consists almost
entirely of Madhwani’s own testimony.
Notwithstanding the innocent gloss he attempts to graft onto
his narrative, Madhwani’s testimony reveals a wealth of
incriminating detail. When Madhwani arrived in Kandahar, he
stayed at an Arab guesthouse that served as a staging area for
foreign recruits to be transported to military training facilities.
Madhwani’s passport and return airline ticket were confiscated
by two individuals in the guesthouse, which “was ‘standard al
Qaeda and Taliban operating procedure[]’ when checking into
an al Qaeda guesthouse in Afghanistan.” Uthman v. Obama, No.
10-5235, --- F.3d ----, 2011 WL 1120282, at *5 (D.C. Cir. Mar.
29, 2011) (quoting Al Odah, 611 F.3d at 15). He was then taken
1
Madhwani testified before the CSRT on September 23, 2004,
and before the ARB in December 2005. Madhwani’s testimony in the
military proceedings largely mirrored that in the district court but he
additionally admitted to seeing Usama bin Laden twice in
Afghanistan—once at the training camp and again in Khost during the
coalition military campaign—and he did not deny that the Kandahar
guesthouse at which he stayed was al-Nebras or that the training camp
was al-Farouq.
7
to a camp “in the middle of the desert, and the mountains,”
where he engaged in nearly a month of physical conditioning,
live fire training with a Kalashnikov rifle and other firearms and
received instruction regarding rocket-propelled grenades
(RPGs). Tr. 10/27 at 113–14, 116–18; Tr. 10/28 at 32. Although
Madhwani now claims he was unaware of any affiliation
between al-Qaida and the guesthouse or training camp, the
district court found that his descriptions were “consistent” with
al-Nebras guesthouse, a known way station for al-Qaida recruits,
and al-Farouq training camp, an al-Qaida facility where several
of the September 11, 2001 hijackers trained. Anam, 696 F. Supp.
2d at 11–12; see Al-Adahi v. Obama, 613 F.3d 1102, 1102, 1107
(D.C. Cir. 2010), cert. denied, 131 S. Ct. 1001 (2011). As we
have noted before, “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.” Al-Adahi, 613 F.3d at 1109 (quoting Al-
Bihani, 590 F.3d at 873 n.2).
Madhwani’s connections to al-Qaida, however, did not stop
there. When the camp closed after September 11, 2001
Madhwani left in the company of about twenty other recruits,
guided by two “trainers” from the camp. Tr. 10/27 at 129–31.
Madhwani was “told” to take a rifle from the camp’s armory
and, although he claims that he did not want to carry a weapon,
he “could not” get rid of it because he was “afraid to get in
trouble.” Id. at 133. We have found in other detainee cases that
“carrying a brigade-issued weapon” is evidence that in
combination with other factors may “strongly suggest”
affiliation with enemy forces. Al-Bihani, 590 F.3d at 872–73; cf.
Al Odah, 611 F.3d at 15–16.
From al-Farouq, Madhwani and his fellow recruits
embarked on a dizzying odyssey across Afghanistan, returning
from the camp to Kandahar, traveling from Kandahar to Kabul
8
and then on to Khost. The two camp trainers eventually “saw
that there was nothing happening” and left the group. Tr. 10/27
at 141. Madhwani and his remaining companions decided to go
back to Kabul. They arrived just three days before the capital
fell to the advancing forces of the Northern Alliance. As in Al-
Adahi, Madhwani’s movements in Afghanistan in the midst of
the military conflict between the United States-led coalition and
the Taliban and its al-Qaida allies may not be “conclusive”
evidence of association with enemy forces but the movements
“add to the weight of the government’s case.” 613 F.3d at 1110.
The ostensible purpose of each leg of Madhwani’s journey
back and forth across Afghanistan, according to his testimony,
was to search out the people who held his passport. After Kabul
fell, Madhwani claimed that he joined civilian refugees fleeing
the capital toward Khost and soon fell in with a large group
traveling on foot through mountainous terrain towards Pakistan.
There, as Madhwani and others were staying in abandoned
houses, one day a stranger driving a car approached them and
asked, according to Madhwani’s testimony, “did anybody lose
their passports, clothes, personal stuff, you know, like tape
recorders, or anything.” Tr. 10/27 at 145–46. Fortuitously,
according to Madhwani, he found his passport among the lost-
and-found items in the car. Although the district court credited
other aspects of Madhwani’s testimony, it found that “mere
happenstance” could not explain how Madhwani recovered his
passport from al-Qaida custody. Anam, 696 F. Supp. 2d at 15.
We agree with the district court and find Madhwani’s
explanation implausible. See Al-Adahi, 613 F.3d at 1107
(“[F]alse exculpatory statements are evidence—often strong
evidence—of guilt.”).
Finally, the circumstances surrounding Madhwani’s capture
nearly one year later indicate a continuing association with al-
Qaida. Although Madhwani apparently surrendered peacefully
9
to Pakistani forces, two of his associates fought to the death
rather than be taken alive—a Yemeni named Ammar, who had
been staying in the same apartment as Madhwani, and another
Arab from the apartment across the hall known to Madhwani as
“Hamza the Syrian” or “Hamza the Palestinian” and later
identified as Hamza Zubair. Tr. 10/27 at 166. Madhwani
testified that Zubair sometimes “pray[ed] with us” or “watch[ed]
TV with us.” Id. at 166–67. The district court found that Zubair
was a member of al-Qaida. Anam, 696 F. Supp. 2d at 14.
Madhwani’s association with enemy forces at the moment of his
capture constitutes further evidence that he was “part of” al-
Qaida. See Uthman, 2011 WL 1120282, at *4 (finding it “highly
significant” that detainee was “captured in the company of a
Taliban fighter and two al Qaeda members”).
Madhwani now argues that the district court’s factual
finding with respect to Zubair was clearly erroneous because it
was based in part on interrogation reports from two other
detainees, which reports Madhwani contends are contradictory
and unreliable. We see no clear error here. The two reports
differ slightly in their physical descriptions of Zubair but they
corroborate each other in the most important details: both
identify Hamza Zubair as an Egyptian who taught “mountain
tactics” at al-Farouq training camp. The task of resolving
“discrepancies among the various accounts” offered into
evidence is “quintessentially a matter for the jury”—or, here, for
the district judge sitting as the fact-finder. Joy v. Bell Helicopter
Textron, Inc., 999 F.2d 549, 561 (D.C. Cir. 1993). The district
court, moreover, highlighted the significance of the fact that
Zubair “fought to the death to avoid capture.” Anam, 696 F.
10
Supp. 2d at 14. We hold, accordingly, that the district court did
not err in finding Zubair was a member of al-Qaida.2
In light of Madhwani’s guesthouse and military training
camp admissions, his carrying a rifle at the behest of camp
superiors, his suspicious movements and implausible narrative
and his final capture in the company of at least one known al-
Qaida operative, we conclude that a preponderance of the
evidence unmistakably showed Madhwani was “part of” al-
Qaida when he was captured.
B.
In addition to challenging the sufficiency of the evidence,
Madhwani offers a laundry list of evidentiary and legal
complaints. None establishes a convincing basis for us to reverse
the district court’s denial of habeas corpus relief.
Madhwani asserts that the district court improperly relied
on evidence outside the record. Madhwani cites a passing
reference the district judge made, during his oral ruling from the
bench, to a newspaper article about a group of aspiring terrorists
who were “turned down because they did not have the
credentials.” Tr. 12/14 at 52. We note at the outset that the legal
basis for Madhwani’s objection is obscure. The case relied upon
by Madhwani held that referring to evidence outside the record
during a criminal trial “would be a denial of due process,”
2
Zubair’s connection with al-Qaida is the subject of Madhwani’s
pending motion pursuant to Fed. R. Civ. P. 60(b) for relief from the
judgment. Whether any new evidence Madhwani submits regarding
that connection is persuasive enough to establish Zubair was not
connected with al-Qaida or, by extension, Madhwani was not a part of
al-Qaida “at the time of his capture,” see Salahi, 625 F.3d at 751, is a
question we leave the district court to resolve in the first instance.
11
Garner v. Louisiana, 368 U.S. 157, 173 (1961), but “[t]his Court
has . . . stated that the detainees [at Guantanamo Bay] possess no
constitutional due process rights.” Kiyemba v. Obama (Kiyemba
II), 561 F.3d 509, 518 n.4 (D.C. Cir. 2009) (citing Kiyemba v.
Obama (Kiyemba I), 555 F.3d 1022, 1026–27 (D.C. Cir. 2009)),
cert. denied, 130 S. Ct. 1880 (2010). We need not address the
underlying legal basis for Madhwani’s objection, however,
because we disagree with his assertion that the district court
“relied” on the newspaper article at all: no mention of it appears
in the district court’s written opinion and order. See Anam, 696
F. Supp. 2d 1. Even assuming Madhwani had a constitutional
right to due process and assuming the district court violated it by
relying on evidence outside the record—premises we do not
accept—such error would be “harmless beyond a reasonable
doubt,” Chapman v. California, 386 U.S. 18, 23–24 (1967),
given the conclusive weight of the record evidence linking
Madhwani to al-Qaida.
Madhwani claims that the district court erred in denying his
request for further discovery regarding, inter alia, the two
detainees whose statements the district court cited in support of
its finding that Hamza Zubair was a member of al-Qaida. We
review the district court’s management of the discovery process
for abuse of discretion, see Bensayah, 610 F.3d at 724, and we
find no abuse of discretion here. The district court’s Case
Management Order (CMO) requires the government to produce
all “reasonably available” exculpatory evidence and allows
petitioners to request further discovery under certain specified
conditions. In re Guantanamo Bay Detainee Litig., 2008 WL
4858241, at *1–2 (D.D.C. Nov. 6, 2008); see Bensayah, 610
F.3d at 724 (upholding CMO discovery standard as “consistent”
with Boumediene v. Bush, 553 U.S. 723 (2008)). Madhwani’s
discovery request, however, did not establish the conditions
required under the CMO for further discovery. The
12
request—which consisted of a blanket demand for statements
made by eight different detainees—was neither “narrowly
tailored” nor did it offer any detail to “explain why” further
discovery was needed with respect to the individual detainees.
Pet’r’s Mot. for Discovery, Anam v. Bush, No. 1:04 CV 1194, at
6–8 (D.D.C. Mar. 16, 2009); In re Guantanamo Bay Detainee
Litig., 2008 WL 4858241, at *2.
Finally, Madhwani raises a series of arguments that we
reject out of hand. Although Madhwani contends that the district
court applied an erroneous legal standard to support detention,
we have repeatedly held that the “command structure” test
employed by the district court “is sufficient to show that person
is part of al Qaeda” but “is not necessary.” Uthman, 2011 WL
1120282, at *2 (emphasis in original); see also, e.g., Awad, 608
F.3d at 11–12. In fact, any legal error worked in Madhwani’s
favor for the “command structure” test “does not reflect the full
scope of the Executive’s detention authority under the AUMF.”
Uthman, 2011 WL 1120282, at *2. Madhwani also contests the
admission of hearsay evidence not falling within any exception
recognized by the Federal Rules of Evidence and the application
of the preponderance of the evidence standard. He admits,
however, that we have considered and rejected the same
arguments before. Thus we conclude that Madhwani’s
remaining arguments are foreclosed as a matter of circuit
precedent. See Al-Bihani, 590 F.3d at 878–81; Awad, 608 F.3d
at 10–11.
For the foregoing reasons, we affirm the district court’s
denial of Madhwani’s petition for a writ of habeas corpus.
So ordered.