Almerfedi v. Obama

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 11, 2011 Decided June 10, 2011

No. 10-5291

HUSSAIN SALEM MOHAMMED ALMERFEDI, DETAINEE AND
SALEM MOHAMMED SALEM ABDULLA ALMERFEDI, AS NEXT
FRIEND OF HUSSAIN SALEM MOHAMMED ALMERFEDI,
APPELLEES

v.

BARACK OBAMA, ET AL.,
APPELLANTS

Appeal from the United States District Court
for the District of Columbia
(No. 1:05-cv-01645)

Robert M. Loeb, Attorney, U.S. Department of Justice,
argued the cause for appellants. With him on the briefs were
Tony West, Assistant Attorney General, Ian Heath Gershengorn,
Deputy Assistant Attorney General and Douglas N. Letter and
Matthew M. Collette, Attorneys.

S. William Livingston argued the cause for appellees. With
him on the brief were Jason A. Levine and David H. Remes.
Judith B. Chomsky, Brian E. Foster, and Alan A. Pemberton
entered appearances.
 2

Before: ROGERS and KAVANAUGH, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.

Opinion for the Court by Senior Circuit Judge SILBERMAN.

Opinion concurring in part and concurring in the judgment
by Circuit Judge ROGERS.

SILBERMAN, Senior Circuit Judge: The United States
appeals from the district court’s decision granting Hussain
Salem Mohammad Almerfedi’s petition for a writ of habeas
corpus. The district court concluded that the government failed
to demonstrate by a preponderance of the evidence that
Almerfedi was, as alleged, “part of” al Qaeda. The government
contends that this conclusion was erroneous because the district
court incorrectly found certain evidence unreliable, thereby
improperly excluding it from consideration, and failed to give
sufficient weight to the reliable evidence it did consider. We
agree, and conclude as a matter of law that the government has
demonstrated by a preponderance of the evidence that Almerfedi
can be detained. We therefore reverse the district court’s
decision granting Almerfedi’s petition.

I.

Almerfedi was captured in Tehran by Iranian authorities
sometime after September 11, 2001. He was turned over to
Afghani authorities in March 2002 as part of a prisoner
exchange. Then, in May 2003, he was, in turn, transferred to
Guantanamo Bay by United States forces. Little in the record
indicates the circumstances of his apprehension in Iran, or his
Afghan custody. The evidence the government presents to
support its allegation that Almerfedi is “part of” al Qaeda comes
from two sources: Almerfedi’s own admissions and the
statements of another Guantanamo detainee, Humoud al-Jadani.
 3

A Yemeni national, Almerfedi submits that he left his home
of Aden, in southern Yemen, sometime in 2001 in order to seek
a better life in Europe. He set out with approximately $2,000,
which he asserts he obtained by doing various menial jobs and
by selling qat. Almerfedi said that he bribed a guard at the
Pakistan Embassy to obtain a visa, and thereafter traveled to
Lahore, Pakistan, where he stayed at the headquarters of Jama’at
Tablighi, an Islamic missionary organization, which U.S.
intelligence has designated a Terrorist Support Entity. That is
a category of organizations that has “demonstrated intent and
willingness to provide financial support to terrorist
organizations,” or to provide “witting operational support” to
terrorist groups.

Almerfedi stayed at the Jama’at Tablighi center for two and
one half months. He acknowledged that he stayed for free,
paying only for food. He said that he kept to himself during this
time because there were very few Arabic speakers like himself
at the headquarters. He asserts that, in fact, he met only one
other Arabic speaker while at the headquarters – Mohammad
Ali. Ali, according to Almerfedi, offered to help Almerfedi
travel to Europe by smuggling him into Iran, then to Turkey, and
finally to Greece. Almerfedi accepted, paying Ali much of his
life savings. They traveled from Lahore to the Iranian border,
bribing border guards to cross into Iran before moving into
Tehran. But then, instead of traveling towards Turkey, the two
went in the opposite direction – 896 kilometers east – to
Mashad, Iran, where they spent a month. They then returned to
Tehran, where Almerfedi was captured by the Iranian
authorities. When captured, Almerfedi admits that he still had
at least $2,000 in cash, which the Iranians confiscated.

The government contends that Almerfedi, after he had
returned to Tehran from Mashad, stayed at an al Qaeda-affiliated
guesthouse. To support this allegation, the government relies on
 4

statements Almerfedi made to al-Jadani while both were at
Guantanamo Bay. Al-Jadani reported that Almerfedi told him
that Almerfedi was housed in a guesthouse in Tehran maintained
by al Qaeda in 2002 or 2003. And al-Jadani disclosed that other,
unnamed detainees had said that a “Hussain al-Adeni” was an al
Qaeda facilitator who resided at a guesthouse in Tehran. The
government believes that Hussain al-Adeni was the same person
as Almerfedi because the nisha1 “al-Adeni” means “from Aden,”
which is where Almerfedi is from. According to the
government, there was only one Hussain from Aden at
Guantanamo Bay.

Although Almerfedi does not contest much of the
government’s narrative, he disputes that he ever stayed at an al
Qaeda-affiliated guesthouse in Tehran. He points out that the
dates al-Jadani reports Almerfedi having been at a guesthouse in
Tehran are obviously incorrect – because it is undisputed that
Almerfedi was captured by the Iranians in December 2001 or
January 2002, Almerfedi could not have been at a guesthouse in
2002 or 2003.

Almerfedi, moreover, offers an innocent explanation for his
travels. He says that he began his journey by proceeding
through Pakistan for two reasons: he thought it would be easier
for him to obtain a visa to Europe from Pakistan than from
Yemen, and he wished to travel to Europe with Jama’at Tablighi
in the hope that he could take advantage of the travel discounts
it gives to its members, even though he admits that he was not
a member of the organization and he repeatedly resisted
attempts by Tablighi members to recruit him. He does not

1
A nisha is a secondary Arabic name that describes the
occupation, descent, tribe or residence of a person. The government
alternatively refers to “al-Adeni” as a kunya, which can be used to
represent the region an individual is from.
 5

explain how they spoke to him since he contends he spoke only
Arabic, or why they permitted him to remain at the headquarters
despite his continued rebuffs.

The September 11 attacks, according to Almerfedi,
interfered with his plans to travel to Europe with the Jama’at
Tablighi, and so he paid Ali to smuggle him to Europe. He
explains that he went to Mashad because he was in Ali’s control
and had little independent experience with foreign travel, and
stayed there because Ali remained there. After his month in
Mashad – during which time Almerfedi said that he sat all day
in a house rented by Ali – Almerfedi claims that he began to
worry that Ali had deceived him because the two took no further
steps towards Europe. After raising this concern, Almerfedi
contends that he and Ali returned to Tehran, where he was
arrested.

Following his detention at Guantanamo Bay, Almerfedi
petitioned for a writ of habeas corpus. The government alleged
that Almerfedi was “part of” al Qaeda because he served as an
al Qaeda facilitator, which is why he possessed an unexplained
large amount of cash at the time of his capture.2 The district
court granted Almerfedi’s petition. It refused to consider al-
Jadani’s statements, finding them unreliable. The district court,
however, did recognize that Almerfedi’s explanations for his
travels were both “perplexing” and “not . . . convincing.”
Nevertheless, after reviewing all of the evidence, the court

2
As we have explained, the government may detain any
individual “engaged in hostilities . . . against the United States,” who
“purposefully and materially supported hostilities against the United
States or its coalition partners,” or who “is part of the Taliban, al
Qaeda, or associated forces.” Al-Bihani, 590 F.3d 866, 871-72 (D.C.
Cir. 2010); see also Hatim v. Gates, 632 F.3d 720, 721 (D.C. Cir.
2011); Awad v. Obama, 608 F.3d 1, 9 n.1 (D.C Cir. 2010).
 6

concluded that the government had not met its burden to show
by a preponderance of the evidence that Almerfedi was “part of”
al Qaeda.3

II.

The government, on appeal, points out that the district
court’s decision was issued before we decided Al-Adahi v.
Obama, 613 F.3d 1102 (D.C. Cir. 2010), holding that district
courts must not consider each piece of government evidence by
itself, but rather in connection with all the other evidence. It is
argued that the district court erroneously rejected al-Jadani’s
statements as unreliable without considering them in light of the
balance of the government’s evidence. The government also
contends that the district court committed error by giving
insufficient weight to the rest of the evidence – particularly the
incredible nature of Almerfedi’s explanations. The government
maintains that these errors are errors of law and seeks a remand
to order the district court to reevaluate the evidence.

Almerfedi argues, rather persuasively, that at least as to the
government’s argument concerning al-Jadani’s statement, it is
really challenging the district court’s fact finding – which we
can only reverse under a clear error standard. As for the
remaining evidence, Almerfedi contends that the district court
properly weighed it to conclude that the government had not
demonstrated by a preponderance of the evidence that Almerfedi
was “part of” al Qaeda.

* * *

3
The district court noted that Almerfedi had been approved for
transfer from Guantanamo Bay. But whether a detainee has been
cleared for release is irrelevant to whether a petitioner may be detained
lawfully. See Awad, 608 F.3d at 11.
 7

At oral argument, able counsel for petitioner compared the
government’s evidence in this case against two standards: first,
the evidence the government has produced in other cases, and
second, the burden of proof necessary for a criminal conviction–
which is, of course, beyond a reasonable doubt. With regard to
the first comparison, the government’s evidence may well have
been stronger in previous cases than in this case. But that is
irrelevant; all of those cases were not close. See, e.g., Esmail v.
Obama, — F.3d —, 2011 WL 1327701 (D.C. Cir. 2011);
Uthman v. Obama, 637 F.3d 400 (D.C. Cir. 2011); Al-Adahi,
613 F.3d 1102; Barhoumi v. Obama, 609 F.3d 416 (D.C. Cir.
2010); Awad, 608 F.3d 1. We listed all the evidence supporting
the government in those cases without needing to consider the
minimum amount of evidence that would establish a
preponderance.

Turning to counsel’s criminal case comparison, we
understand why counsel would seek to analogize a habeas case
to a criminal case – in the latter situation, which is appealed
after trial only by a defendant, we must ask ourselves whether
the government’s proof meets a strict hypothetical standard –
beyond a reasonable doubt. But that is not the analytical
framework called for by the preponderance of evidence standard
used in civil cases, which applies to these detainee habeas
corpus petitions.

The preponderance standard instead asks the court simply
to “make a comparative judgment about the evidence” to
determine whether a proposition is more likely true than not true
based on the evidence in the record. Lindsay v. NTSB, 47 F.3d
1209, 1213 (D.C. Cir. 1995); see also Concrete Pipe & Prods.,
Inc. v. Constr. Laborers Pension Trust, 508 U.S. 602, 622
(1993). It does not require a court to reach a conclusion about
whether that proposition is actually true; “[c]ertainty [is] not
necessary, nor [is] absence of any reasonable doubt.” Id. In
 8

other words, “[t]he preponderance of the evidence standard
requires the party with the burden of proof to support its position
[only] with the greater weight of the evidence.” Nutraceutical
Corp. v. Von Eschenbach, 459 F.3d 1033, 1040 (10th Cir. 2006);
accord United States v. Garcia-Guizar, 160 F.3d 511, 523 n.9
(9th Cir. 1998). See also United States v. Montague, 40 F.3d
1251, 1253-54 (D.C. Cir. 1994) (“The preponderance of the
evidence standard generally puts evidence on an evenly
balanced scale.”). That does not mean that we simply weigh, in
a mechanical sense, the number of pieces of probative evidence
on the government’s side against that offered by a petitioner.
See In re Winship, 397 U.S. 358, 371 n.3 (1970) (Harlan, J.,
concurring). Rather, the court makes a judgment about the
persuasiveness of the evidence offered by each party and
decides whether it is more likely than not that the petitioner
meets the detention standard.4

* * *

A district court’s decision granting or denying a habeas
petition is a mixed question of law and fact. The court’s specific
factual determinations are reviewed for clear error, whereas its
ultimate determination – whether a detainee’s conduct justifies
detention – is a question of law reviewed de novo. See
Barhoumi v. Obama, 609 F.3d 416, 423 (D.C. Cir. 2010). On
review, we ask whether the evidence in the whole record –
taking into account the premise that two unreliable pieces of
information may corroborate each other, Bensayah v. Obama,
610 F.3d 718, 726 (D.C. Cir. 2010) – establishes that a

4
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, e.g., Uthman, 637 F.3d at
404 n.3.
 9

petitioner’s detainability is more likely justified than not (under
de novo review).5 As we noted, the court is never called upon to
decide whether a petitioner definitively meets the detention
standard – instead, it merely makes a comparative judgment
about the evidence.

In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), a plurality of
the Supreme Court – to be sure considering due process
limitations – suggested the appropriate framework for a court’s
determination of the ultimate legal question whether an
individual could be detained: the government must put forth
credible facts demonstrating that the petitioner meets the
detention standard, which is then compared to a detainee’s facts
and explanation. 542 U.S. at 534 (plurality opinion). The
ultimate burden, under our cases, is on the government.6 We
have said that this Hamdi approach “mirrors” the preponderance
standard. Al-Bihani, 590 F.3d at 878. This approach meets “the
goal of ensuring that the errant tourist, embedded journalist, or
local aid worker has a chance to prove military error while
giving due regard to the Executive once it has put forth
meaningful support for its conclusion that the detainee is in fact
an enemy combatant.” Hamdi, 542 U.S. at 534 (plurality

5
That the preponderance burden governs resolution of an
ultimate legal issue is not without analogy. In determining the
voluntariness of a criminal confession, the government must establish
voluntariness by a preponderance of the evidence. United States v.
Reed, 522 F.3d 354, 359 (D.C. Cir. 2008). But the ultimate issue of
voluntariness is a legal question that is reviewed de novo. Id. There,
as here, the court must ask whether, as a matter of law, there are
sufficient facts on the record to demonstrate the ultimate legal issue by
a preponderance of evidence.
6
The Hamdi plurality, however, contemplated putting the burden
of proof on the detainee once the government had put forth credible
evidence.
 10

opinion). The government’s evidence, then, must meet at least
a certain minimum threshold of persuasiveness.7 But that is
worlds apart from the beyond a reasonable doubt standard as the
evidence need not convince the court of the doubtless merit of
the detention.

* * *

In this case, the government seeks to satisfy its burden by
deploying Almerfedi’s own admissions. First, Almerfedi
acknowledges that he stayed for two and a half months at
Jama’at Tablighi, an Islamic missionary organization that is a
Terrorist Support Entity “closely aligned” with al Qaeda.
Almerfedi v. Obama, 725 F. Supp. 2d 18, 29 (D.D.C. 2010). He
asserts he refused to join the organization and remained largely
incommunicado, but he stayed there for free. Although that
evidence is probative, by itself it presumably would not be
sufficient to carry the government’s burden because there are
surely some persons associated with Jama’at Tablighi who are
not affiliated with al-Qaeda. But if we add Almerfedi’s travel
route, which is quite at odds with his professed desire to travel

7
As an example, if the only evidence the government offered in
a particular case was that a petitioner had been apprehended with an
AK-47 in rural Afghanistan – which would be at least probative – it
would not be sufficient to establish a basis for detention. Possession
of a rifle is commonplace in Afghanistan, and therefore does not
meaningfully distinguish an al Qaeda associate from an innocent
civilian. But the government could satisfy its burden by showing that
an individual was captured carrying an AK-47 on a route typically
used by al Qaeda fighters. Cf. Al-Odah v. United States, 611 F.3d 8,
11, 16 (D.C. Cir. 2010) (significant that individual captured near Tora
Bora in late 2001). And, of course, that a petitioner trained at an al
Qaeda camp or stayed at an al Qaeda guesthouse “overwhelmingly”
would carry the government's burden. See Al-Bihani, 590 F.3d at 873
n.2.
 11

to Europe (and brought him closer to the Afghan border where
al Qaeda was fighting), and also that he had at least $2,000 of
unexplained cash on his person when captured, notwithstanding
his claim to have given that much to Ali (which was all he
brought from Yemen), the government’s case that Almerfedi is
an al Qaeda facilitator is on firmer ground.

We conclude that all three facts, when considered together,
see Awad, 608 F.3d at 7, are adequate to carry the government’s
burden of deploying “credible evidence that the habeas
petitioner meets the enemy-combatant criteria,” Hamdi, 542
U.S. at 534 (plurality opinion). We consistently have found
such circumstantial evidence damning, see Uthman, 637 F.3d at
407 (collecting cases), and sufficient to distinguish a petitioner
from the “errant tourist, embedded journalist, or local aid
worker.” So too here.

Almerfedi therefore must “rebut [the government’s]
evidence with more persuasive evidence that he falls outside the
criteria.” Hamdi, 542 U.S. at 534 (plurality opinion). He has
not. He offers no evidence other than an explanation for his
behavior. The district court correctly, in our view, did not credit
his account. It labeled his reasons for residing with Jama’at
Tablighi “not . . . convincing,” concluding that Almerfedi had
not explained why he stayed with Jama’at Tablighi, what he was
doing during that period of time, and why he did not seek out
other Arabic speakers aside from Mohammad Ali. See
Almerfedi, 725 F. Supp. 2d at 30. And it regarded Almerfedi’s
explanations for traveling to Mashad as “perplexing.” Id. at 27.
The district court, however, erred by ignoring the implication of
what it found to be dubious accounts because “false exculpatory
statements” amount to evidence in favor of the government. Al-
Adahi, 613 F.3d at 1107; cf. Aka v. Wash. Hosp. Center, 156
F.3d 1284, 1294 (D.C. Cir. 1998) (“The jury can conclude that
an employer who fabricates a false explanation has something
 12

to hide; that ‘something’ may well be discriminatory intent [–
the ultimate legal issue].”). In sum, we regard the government’s
evidence, combined with Almerfedi’s incredible explanations –
as satisfying the government’s burden without regard to
consideration of al-Jadani’s statements.

Nevertheless, we agree with the government’s implicit
argument that the district court clearly erred in regarding al-
Jadani’s statements as unreliable – merely “jail house gossip.”
Although this is a factual finding of the district court, it was not
a credibility determination based on witness testimony. See
Anderson v. City of Bessemer City, 470 U.S. 564, 574-75 (1985).
The district court rejected al-Jadani’s statements about
Almerfedi’s direct admissions concerning Almerfedi’s time in
an al-Qaeda guesthouse because al-Jadani said that Almerfedi
told him that Almerfedi was in that guesthouse in 2002 and
2003, whereas he had been captured earlier than those dates.
However, one of the reports of al-Jadani’s interrogations gives
both an incorrect date and a correct date for Almerfedi’s capture.
The other report of his interrogation gives only the correct date.
The government acknowledges the discrepancy in dates, but
persuasively argues that al-Jadani’s timing confusion is
inconsequential. And it points out that al-Jadani’s “reliability
has been established” – with support in a classified declaration.8

The district court was also unpersuaded that al-Jadani’s
recounting of other detainee conversations confirmed
Almerfedi’s admission because al-Jadani did not identify those

8
The government argued below that the evidence showed that al
Qaeda maintained guesthouses in Tehran, which the district court
noted but did not adopt as a finding. It, of course, buttresses al-
Jadani’s statements. Nor did the district court “find” that al Qaeda
used hotels in Mashad as way stations for fighters despite the
government’s assertion. See Concurrence at 1.
 13

other detainees. We think, however, it is quite understandable
that al-Jadani would be reluctant to point them out to U.S.
authorities. The district court also emphasized that they referred
not to Almerfedi by last name, but rather only to “Hussain al-
Adeni.” Yet, as we noted, the phrase “al-Adeni”, in Arabic,
means “from Aden” – which, of course, is Almerfedi’s home.
Buttressing al-Jadani’s credibility and that of the unnamed other
detainees, al-Jadani reported to his interrogators the
circumstances of “Hussain al-Adeni’s” capture, which included
arrest by the Iranians, transfer to the Afghans, and ultimate
transfer to the Americans. These circumstances match
Almerfedi’s unique experiences and therefore make clear that
Hussain Almerfedi and Hussain al-Adeni are the same man.
(Indeed, the government maintains that there was only one
Hussain from Aden at Guantanamo Bay.) That detailed
description of Almerfedi’s travels further indicates that al-
Jadani’s occasional mistakes in dates are inconsequential.
Based on this evidence, we conclude that the district court
clearly erred in finding unreliable al-Jadani’s statements.

III.

For the foregoing reasons we conclude as a matter of law
that the district court erred in applying the preponderance
standard and in finding unreliable the statements of al-Jadani.
We therefore reverse and remand with instructions to the district
court to deny Almerfedi’s petition for a writ of habeas corpus.

So Ordered.
 ROGERS, Circuit Judge, concurring in part and concurring
in the judgment. I join the court in holding that the government
met its burden of proof to show by a preponderance of the
evidence that its detention of petitioner Hussain Almerfedi is
lawful based on the evidence in the record regarding: (1)
Almerfedi’s two and one half month stay at the Jama’at Tablighi
center in Lahore, Pakistan; (2) his eastward travel from Tehran
to Mashad near the Afghan border in late 2001 or early 2002,
which was 500 miles in the opposite direction of his purported
destination of Greece via Turkey; (3) his possession upon his
capture thereafter in Tehran of a large unexplained sum of
money; and (4) undisputed evidence about the existence of Bin
Laden-funded “guesthouses” in Tehran and the use of hotels in
Mashad as waystations for fighters traveling to or fleeing from
Afghanistan. See generally Maj. Op. at 10–11. Viewed
together, this evidence supports a reasonable inference that
Almerfedi was an al-Qaeda facilitator by the time of his capture
in early 2002. Almerfedi presented no evidence that would
suffice to “rebut [the government’s] evidence with more
persuasive evidence,” Hamdi v. Rumsfeld, 542 U.S. 507, 534
(2004).1 The district court found that Almerfedi’s explanation
of his travels was “not . . . a convincing explanation,” Almerfedi

1
In connection with being approved for release from
Guantanamo, Almerfedi notes in his brief that the report on his
voluntary polygraph examination in 2003 stated that “it appeared he
had been truthful” when he denied ever associating with al Qaeda and
when he explained his reasons for leaving home in Yemen. The
reliability of such evidence is not beyond doubt, see United States v.
Scheffer, 523 U.S. 303, 309–11 & nn. 6–8 (1998), but, in any event,
the report noted that Almerfedi’s description of his stay at the Jama’at
Tablighi center for over two months months “appeared unrealistic.”
Report of Polygraph Examination May 2, 2003, JA 374. Further, the
determination whether to release a detainee pursuant to the Executive
Order of Jan. 22, 2009 involves a different question not at issue in a
habeas corpus proceeding. See Awad v. Obama, 608 F.3d 1, 11 (D.C.
Cir. 2010).
 2

v. Obama, 725 F. Supp. 2d 18, 30 (D.D.C. 2010), and was “at
the very least, perplexing,” id. at 27. These findings are not
clearly erroneous and their implications buttress the
government’s “credible evidence,” Hamdi, 542 U.S. at 534, that
Almerfedi’s behavior and travel route fit the profile of an al-
Qaeda facilitator. See Maj. Op. at 11 (referring to false
exculpatory statements).

The court, consequently, need go no further to conclude that
the district court erred, under a preponderance of the evidence
standard, in granting the petition for a writ of habeas corpus.
But it has, Maj. Op. at 12–13, and I write separately to explain
why I am unable to join the majority’s analysis of certain
recorded statements by another Guantanamo detainee, Humoud
al-Jadani.

Under a preponderance of the evidence standard, the district
court must “determine whether a proposition is more likely true
than not true based on evidence in the record,” Maj. Op. at 7
(emphasis added). The majority rejects the district court’s
evaluation of al-Jadani’s statements based on unnamed sources
as “jailhouse gossip” and “inherently unreliable,” Almerfedi, 725
F. Supp. 2d at 25. The district court found that the government
cited no record evidence to verify that Almerfedi had been
transferred to Guantanamo by the time of the first set of al-
Jadani statements, id. at 24 n.4, or that al-Jadani was referring
specifically to Almerfedi, see id. at 26.

The majority implies that this court owes a lesser standard
of deference to the district court’s factual findings regarding al-
Jadani’s statements because the district court did not make “a
credibility determination based on [live] witness testimony.”
Maj. Op. at 12. Our review, however, of “a district court’s
factual findings [is] for clear error, regardless of whether the
factual findings were based on live testimony or, as in this case,
 3

documentary evidence.” Awad v. Obama, 608 F.3d 1, 6–7 (D.C.
Cir. 2010). The court explained in the identical procedural
context that “[a] finding is ‘clearly erroneous’ when although
there is evidence to support it, the reviewing court on the entire
record is left with the definite and firm conviction that a mistake
has been committed.” Id. at 7 (quoting Boca Investerings
Partnership v. United States, 314 F.3d 625, 629–30 (D.C. Cir.
2003)). If the district court’s factual finding is “plausible in
light of the record viewed in its entirety,” this court “may not
reverse” because “[w]here there are two permissible views of
the evidence, the factfinder’s choice between them cannot be
clearly erroneous.” Id. (quoting Overby, 595 F.3d at 1294)
(omission in original).

The record evidence does not lead to a “firm conviction”
that the district court’s analysis of al-Jadani’s statements was
mistaken, much less implausible. The first set of statements by
al-Jadani purported to recount statements by four unnamed
Guantanamo detainees that someone referred to as “Hussein
((Al-Adeni))” stayed in a Tehran “guesthouse” in late 2000 into
early 2001. Almerfedi, 725 F. Supp. 2d at 24–25. The district
court found these statements were “inherently unreliable”and
“jailhouse gossip” because al-Jadani did not identify the four
detainees or the sources for their information, id. at 25. This
evaluation by the district court is “plausible in light of the
record,” Awad, 618 F.3d at 7, inasmuch as the dates these
sources provided, as related by al-Jadani, are inconsistent with
the date of Almerfedi’s departure from Yemen in September
2001, Almerfedi, 725 F. Supp. 2d at 25. The majority
hypothesizes that it is “quite understandable” that al-Jadani
would be reluctant to identify the four detainees. Maj. Op. at 13.
Even if true, the district court’s finding was consistent with the
proposition that a damning accusation from unidentified sources
without any indication of the basis for their knowledge provides
no basis to credit the accusation even if the person recounting
 4

the accusation is otherwise credible. Cf. Aguilar v. Texas, 378
U.S. 108, 113–14 (1964). And, as the district court found, the
government had not verified that Almerfedi was at Guantanamo
by the time al-Jadani recounted this information. Id. at 24 n.4.
The government states for the first time in its reply brief that at
the time of al-Jadani’s statements Almerfedi was “the only
person named Hussein from Aden at Guantanamo,” Reply Br.
4 (emphasis in original).2 Assuming this argument is properly
before the court, but see Khadr v. United States, 529 F.3d 1112,
1117 (D.C. Cir. 2008), a website cited in the reply brief as
support does not, as asserted, assist the government, id. at 14
n.2.3

2
The government also states in its reply brief that Almerfedi
was the only person named “Hussein” at Guantanamo at the time.
Reply Br. 4. Almerfedi’s given name is “Hussain” not “Hussein.”
This may be a typographical error in the reply brief or both spellings
may be alternative transliterations of the same Arabic name.
3
The extra-record Department of Defense website
(http://www.defense.gov/news/May2006/d20060515%20List.pdf) is
a list of the detainees at Guantanamo from January 2002 through May
15, 2006, with the date and location of their birth, but not their
residence prior to the time of capture. Assuming the court may take
judicial notice of this document, in that its contents are “not subject to
reasonable dispute” and “capable of accurate and ready determination
by resort to sources whose accuracy cannot reasonably be questioned,”
FED. R. EVID. 201, the document is of limited value. In its opening
brief, the government explained that “al-Adeni” or “al-Adani” is a
kunya, i.e., an honorific indicating the bearer is a father or mother
(with a father’s beginning with “Abu”), although some insurgents use
a kunya representing the region they are from; by contrast, a nisha
may describe the occupation, descent, tribe or residence of the person
and begins with “al.” Appellant’s Br. 35 (citing a 2008 Defense
Intelligence Agency (“DIA”) report on “Names, Alias, Kunyas and
Variants”). The majority rejects the government’s view that “al-
Adeni” is a kunya, concluding it is, if anything, a nisha. Maj. Op. at
 5

By contrast, al-Jadani identified two sources for his
information about al Qaeda guesthouses in Tehran and how
those sources obtained their knowledge, specifically that the
sources had themselves stayed in the guesthouses. The district
court described this evidence, 725 F. Supp. 2d at 24, and in
findings never rejected it, instead concluding, in effect, that
assuming the existence of such guesthouses, the government had
not shown by a preponderance of the evidence that Almerfedi
was ever in Iran before the fall of 2001, id. at 25. Absent a
finding to which this court could defer, our review is de novo.
See, e.g., United States v. Microsoft Corp., 147 F.3d 935, 945
n.7 (D.C. Cir. 1998). As the government notes, “the district
court did not question the reliability of al-Jadani’s statements
relaying information he received directly from al-Qaiti, who
provided detailed — and consistent — information about the
operation of al-Qaeda guesthouses in Tehran.” Pet’r’s Br. 44.
Of course, the existence of the guesthouses and whether
Almerfedi stayed in a such a house are two different questions;
Almerfedi contests only the latter, leaving the former evidence
unrebutted.

The second set of statements by al-Jadani purport to be a
conversation with “Hussain al-Adeni.” Almerfedi, 725 F. Supp.
2d at 26 & n.6. The district court did not credit these statements
because there was an insufficient basis in the record to conclude

4. The website list of detainees indicates Almerfedi was the only
Guantanamo detainee named Hussein who was born in Aden. The list,
however, does not refer to the place of the detainee’s residence, and
a suggestion that a nisha is based on place of birth would contradict
the government’s evidence defining nishas. But see Maj. Op. at 4 n.1.
Thus the list does not confirm that Almerfedi was the only detainee
named Hussain (or Hussein) to have resided in Aden; at least two
other detainees named Hussain (or Hussein) were born in Yemen.
 6

that al-Jadani was referring to Almerfedi and other government
evidence did not corroborate al-Jadani’s account, id. at 26–27;
Maj. Op. at 13. The district court’s conclusion that the
statements “cannot be credited” and are “unreliable,” Almerfedi,
725 F. Supp. 2d at 27, is at least “plausible in light of the
record,” Awad, 608 F.3d at 7. To the extent the majority
suggests that the circumstances of al-Adeni’s capture seem to
match those of Almerfedi (who was arrested by Iran, transferred
to Afghan custody, and then transferred to U.S. custody) and
posits this path was “unique,” Maj. Op. at 13, the government
neither makes such a claim nor points to record evidence that
would undermine the district court’s conclusion that the
coincidence of paths “add[s] little” to the government’s case that
Almerfedi stayed in Tehran guesthouses, Almerfedi, 725 F.
Supp. 2d at 27, much less to show that this evaluation was not
plausible.