Salahi v. Obama

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 17, 2010 Decided November 5, 2010

No. 10-5087

MOHAMMEDOU OULD SALAHI, DETAINEE, GUANTANAMO BAY
NAVAL STATION AND YAHDIH OULD SALAHI, AS NEXT FRIEND
OF MOHAMMEDOU OULD SALAHI,
APPELLEES

v.

BARACK OBAMA, PRESIDENT OF THE UNITED STATES, ET AL.,
APPELLANTS

Appeal from the United States District Court
for the District of Columbia
(No. 1:05-cv-00569)

August E. Flentje, Attorney, U.S. Department of Justice,
argued the cause for appellants. With him on the briefs were
Douglas N. Letter and Robert M. Loeb, Attorneys.

Theresa M. Duncan argued the cause for appellees. With
her on the brief were Nancy Hollander, Jonathan L. Hafetz,
Melissa A. Goodman, Linda Moreno, and Arthur B. Spitzer.

Emily Berman was on the brief for amicus curiae Non-
Governmental Organizations Brennan Center for Justice and
 2
Reprieve in support of appellees. Walter Dellinger entered an
appearance.

David R. Berz was on the brief for amicus curiae
National Association of Criminal Defense Lawyers in support
of appellees. Blair G. Brown entered an appearance.

Before: SENTELLE, Chief Judge, TATEL and BROWN,
Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: This case is more than merely the
latest installment in a series of Guantanamo habeas appeals.
The United States seeks to detain Mohammedou Ould Salahi
on the grounds that he was “part of” al-Qaida not because he
fought with al-Qaida or its allies against the United States, but
rather because he swore an oath of allegiance to the
organization, associated with its members, and helped it in
various ways, including hosting its leaders and referring
aspiring jihadists to a known al-Qaida operative. After an
evidentiary hearing at which Salahi testified, the district court
found that although Salahi “was an al-Qaida sympathizer”
who “was in touch with al-Qaida members” and provided
them with “sporadic support,” the government had failed to
show that he was in fact “part of” al-Qaida at the time of his
capture. The district court thus granted the writ and ordered
Salahi released. Since then, however, this Court has issued
three opinions—Al-Adahi v. Obama, 613 F.3d 1102 (D.C. Cir.
2010); Bensayah v. Obama, 610 F.3d 718 (D.C. Cir. 2010);
and Awad v. Obama, 608 F.3d 1 (D.C. Cir. 2010)—that cast
serious doubt on the district court’s approach to determining
whether an individual is “part of” al-Qaida. We agree with
the government that we must therefore vacate the district
court’s judgment, but because that court, lacking the benefit
 3
of these recent cases, left unresolved key factual questions
necessary for us to determine as a matter of law whether
Salahi was “part of” al-Qaida when captured, we remand for
further proceedings consistent with this opinion.

I.
Enacted just seven days after the September 11 terrorist
attacks, the Authorization for Use of Military Force (AUMF)
empowers the President of the United States 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, 224 (2001) (reprinted at 50 U.S.C. § 1541 note).
We have held that the “necessary and appropriate force”
authorized by the AUMF includes the power to detain
individuals who are “part of” al-Qaida, the organization that
perpetrated the September 11 attacks. See Bensayah, 610
F.3d at 724–25. Although the government previously claimed
authority to detain Salahi on other grounds as well—because
he allegedly aided the September 11 attacks and because he
“purposefully and materially support[ed]” forces associated
with al-Qaida “in hostilities against U.S. Coalition partners,”
Al-Bihani v. Obama, 590 F.3d 866, 872 (D.C. Cir. 2010)—it
has since dropped those claims and now relies solely on the
allegation that Salahi was “part of” al-Qaida at the time of his
capture.

In the district court, the government relied heavily on
statements Salahi made to interrogators. Salahi v. Obama,
710 F. Supp. 2d 1, 4 (D.D.C. 2010). Conceding, however,
that those interrogators had “mistreat[ed]” Salahi from mid-
 4
June to September 2003, the government declined to rely on
any statements Salahi made during that period. Appellants’
Opening Br. 52; see also Staff of S. Comm. on Armed
Services, 110th Cong., Inquiry into the Treatment of
Detainees in U.S. Custody xxii, 135–43 (Comm. Print 2008);
A.T. Church, III, Review of Department of Defense Detention
Operations and Detainee Interrogation Techniques 159–74
(2005); U.S. Dep’t of Justice Office of the Inspector Gen., A
Review of the FBI’s Involvement in and Observations of
Detainee Interrogations in Guantanamo Bay, Afghanistan,
and Iraq xxvii, 122–29, 190, 197–99, 295–302 (2008); Jess
Bravin, The Conscience of the Colonel, Wall St. J., Mar. 31,
2007, at A1. Although the district court formally received all
evidence offered by the government, the taint of the
“extensive and severe mistreatment” that Salahi suffered led
the court to accord little weight to any of Salahi’s statements
that lacked independent corroboration. Salahi, 710 F. Supp.
2d at 6; see also Hr’g Tr. at 644:19–24 (Dec. 15, 2009). The
government complains that the district court improperly failed
to credit certain of Salahi’s statements, but because this issue
is largely irrelevant to the legal questions we address in this
opinion, we present the facts as found by the district court,
supplementing with citations to the record only as necessary
to provide context for the parties’ arguments.

Mohammedou Ould Salahi was born in 1970 in
Mauritania. In December 1990, he traveled from Germany,
where he was attending college, to Afghanistan “to support
the mujahideen”—Islamic rebels seeking to overthrow
Afghanistan’s Soviet-supported Communist government.
Salahi Am. Decl. ¶ 5. While in Afghanistan, Salahi attended
a training camp run by al-Qaida, which organized and funded
efforts by foreign volunteers to assist the resistance
movement. See John Rollins, Cong. Research Serv., R41070,
Al Qaeda and Affiliates: Historical Perspective, Global
 5
Presence, and Implications for U.S. Policy 3–4 (2010).
Although the United States denies having supported al-Qaida
directly, it acknowledges that it provided significant economic
and military support to the Afghan mujahideen from
approximately 1981 to 1991. Id. at 4.

In March 1991, shortly after finishing his training, Salahi
swore bayat, an oath of loyalty, to al-Qaida. He left
Afghanistan soon after taking this oath but returned in
January 1992. Having “heard rumors that the mujahideen had
invaded Kabul and started fighting among themselves,” Salahi
decided to travel back to Germany in March 1992. Salahi
Am. Decl. ¶ 11. At this point, he alleges, he “severed all ties
with . . . al Qaida.” Id. ¶ 12.

According to the government, however, the record
contains significant evidence that Salahi recruited for al-
Qaida and provided it with other support after his alleged
withdrawal in 1992. For example, the district court found that
Salahi sent a fax to al-Qaida operative Christopher Paul in
January 1997, asking for his help in finding “a true Group and
Place” for “some Brothers” interested in fighting jihad.
Salahi, 710 F. Supp. 2d at 11 (quoting Salahi’s fax to Paul).
Salahi admitted to interrogators that he knew Paul to be a
“man of great respect in Al-Qaida” and that he sent the fax to
“facilitate getting the [aspiring jihadists] to fight.” Id.
(internal quotation marks omitted).

As the district court recognized, “[t]he most damaging
allegation against Salahi is that, in October 1999, he
encouraged Ramzi bin al-Shibh, Marwan al-Shehhi, and Ziad
Jarrah to join al-Qaida.” Id. at 10. Bin al-Shibh helped
coordinate the September 11 attacks, and al-Shehhi and Jarrah
were two of the September 11 pilots. Nat’l Comm’n on
Terrorist Attacks Upon the U.S., The 9/11 Commission Report
 6
225, 434–35, 437 (2004) [hereinafter 9/11 Commission
Report]. The government contends that while bin al-Shibh,
al-Shehhi, and Jarrah had originally intended to travel to
Chechnya to wage jihad against Russian forces, Salahi
convinced them to travel instead to Afghanistan to receive
military training. According to the government, the three men
followed Salahi’s advice and with his assistance traveled to
Afghanistan, where they were recruited by al-Qaida into the
September 11 plot. But the district court, having discounted
portions of the government’s evidence as unreliable and
inconsistent, found only that “Salahi provided lodging for
three men for one night at his home in Germany, that one of
them was Ramzi bin al-Shibh, and that there was discussion
of jihad and Afghanistan.” Salahi, 710 F. Supp. 2d at 11.

In addition to Salahi’s connection to bin al-Shibh, the
district court found that Salahi “had an ongoing and relatively
close relationship” with Abu Hafs al-Mauritania, who “is
believed to be one of [Usama] bin Laden’s spiritual advisors
and a high-ranking leader of al-Qaida.” Id. at 12, 14. Abu
Hafs is Salahi’s cousin and is married to the sister of Salahi’s
ex-wife. Id. at 12–13. In August 1993, Salahi accompanied
Abu Hafs to an al-Qaida safe house in Mauritania. Id. at 8.
Several years later, Abu Hafs asked Salahi to meet with Abu
Hajar al-Iraqi, allegedly al-Qaida’s telecommunications chief,
when al-Iraqi visited Germany in late 1995 and early 1996 to
explore purchasing telecommunications equipment for al-
Qaida operations in Sudan. Id. at 8, 12. At the evidentiary
hearing in the district court, Salahi testified that his
involvement with al-Iraqi was limited to discussing the
telecommunications equipment al-Iraqi planned to purchase
and to driving him to various locations. Hr’g Tr. at 551:15–
22 (Dec. 15, 2009).
 7
The record contains evidence of additional contacts with
Abu Hafs. For example, in December 1997, and then again in
December 1998, Salahi transferred $4,000 to Mauritania for
Abu Hafs, but the district court noted that “the government
relie[d] on nothing but Salahi’s uncorroborated, coerced
statements” to tie these money transfers to al-Qaida. Salahi,
710 F. Supp. 2d at 14. Also, around November 1999, Abu
Hafs encouraged Salahi to return to Afghanistan, sending him
money and two passports. Id. at 13. Although Salahi
declined his cousin’s invitation, he retained the passports for
over a year. Salahi eventually gave one of the passports to his
ex-wife, presumably to return to her sister, the passport’s
owner. He gave the other passport directly to its purported
owner, Ahmed Mazid, who was introduced to Salahi by Saleh
al-Libi, an al-Qaida member from Libya. Id. at 13, 15; Hr’g
Tr. at 570:13–16 (Dec. 15, 2009). Around the time Abu Hafs
sent Salahi the passports, al-Qaida was allegedly seeking to
improve Internet connections between Afghanistan and
Pakistan. Salahi, 710 F. Supp. 2d at 12. The government
argued that Salahi’s receipt of the two passports corroborated
earlier statements he made to interrogators that he was asked
to assist with this project, but the district court found only that
Salahi’s receipt and retention of the passports raised
“unanswered questions about the lawfulness of his activities
and the nature of his relationship with Abu Hafs.” Id. at 13.

The government also alleges that Salahi interacted with
members of an al-Qaida cell during a brief stay in Montreal,
Canada, from November 1999 to January 2000. Although
this Montreal al-Qaida cell has been linked to the
unsuccessful Millennium Plot to bomb Los Angeles
International Airport, the government does not allege that
Salahi participated in that effort. Id. at 14. Much about
Salahi’s connections to the Montreal cell remains hazy and
disputed, and for its part, the district court concluded that the
 8
government’s evidence of Salahi’s activities in Canada did
not “add [anything] of significance to the proof that Salahi
was ‘part of’ al-Qaida,” although the evidence might be
sufficient “to support a criminal charge of providing material
support” to the organization. Id. at 15; see also 18 U.S.C. §
2339B.

After leaving Canada, Salahi returned to Mauritania,
where according to the government he “performed computer
activities with a goal of helping al-Qaida.” Appellants’
Opening Br. 43. For example, Salahi considered creating an
Internet discussion group about fighting jihad but dropped the
plan after a German al-Qaida operative, Christian Ganczarski,
suggested that the discussion group would attract attention
from authorities. Salahi, 710 F. Supp. 2d at 13. Salahi may
also have subscribed to electronic mailing lists through which
he received emails discussing cyber-attacks. Two such emails
were found on a computer Salahi used at his workplace in
Mauritania. Id. The computer also contained a third
document with instructions on implementing cyber-attacks.
Id. The district court concluded that although these three
documents are “not evidence that Salahi engaged in . . . cyber-
attacks,” they nonetheless corroborate Salahi’s statements to
interrogators that “he knew about and had some involvement
in planning for denial of service computer attacks.” Id.

Salahi was captured in Mauritania in November 2001 and
has been held at the United States Naval Station at
Guantanamo Bay, Cuba, since 2002. In December 2004,
Salahi appeared before a Combatant Status Review Tribunal,
which concluded that he was lawfully detained. See Parhat v.
Gates, 532 F.3d 834, 837–41 (D.C. Cir. 2008) (describing the
establishment of Combatant Status Review Tribunals and the
procedures under which they operate). He then filed the
habeas petition that is the subject of this appeal.
 9

In its opinion granting Salahi’s petition, the district court
began by rejecting the government’s argument that because
Salahi had once sworn bayat to al-Qaida, the burden should
shift to him to prove that he later withdrew from the
organization. Salahi, 710 F. Supp. 2d at 6. After reviewing
all the evidence, the district court then concluded that Salahi
“was an al-Qaida sympathizer” and “perhaps a ‘fellow
traveler.’ ” Id. at 16. It also found that Salahi “was in touch
with al-Qaida members” and provided them with “sporadic
support.” Id. Nonetheless, the court concluded, Salahi was
not “part of” al-Qaida at the time of his capture because the
government had failed to prove that after leaving Afghanistan
in 1992, he continued receiving and executing orders within
al-Qaida’s “command structure.” Id. at 5, 15–16.

The government appeals. We review the district court’s
factual findings for clear error. Barhoumi v. Obama, 609 F.3d
416, 423 (D.C. Cir. 2010). Legal questions, including the
ultimate determination of whether the facts found by the
district court establish that Salahi was “part of” al-Qaida, are
reviewed de novo. Id.

II.
Before considering the government’s arguments, we
think it important to emphasize the precise nature of the
government’s case against Salahi. The government has not
criminally indicted Salahi for providing material support to
terrorists or the “foreign terrorist organization” al-Qaida. See
18 U.S.C. §§ 2339A, 2339B; see also Salahi, 710 F. Supp. 2d
at 16 (“The government’s problem is that its proof that Salahi
gave material support to terrorists is so attenuated, or so
tainted by coercion and mistreatment, or so classified, that it
cannot support a successful criminal prosecution.”). Nor does
the government seek to detain Salahi under the AUMF on the
 10
grounds that he aided the September 11 attacks or
“purposefully and materially support[ed]” forces associated
with al-Qaida “in hostilities against U.S. Coalition partners.”
Al-Bihani, 590 F.3d at 872. Instead, the government claims
that Salahi is detainable under the AUMF because he was
“part of” al-Qaida when captured. See Hr’g Tr. at 646:5–6
(Dec. 15, 2009) (“[I]t’s the government’s position that at the
time of capture, [the] detainee must be part of al-Qaeda.”
(emphasis added)).

Reiterating the argument it made in the district court, the
government contends that Salahi should bear the burden of
proving that he disassociated from al-Qaida after swearing
bayat to the organization in 1991. In support, the government
cites the plurality’s statement in Hamdi v. Rumsfeld that “once
the Government puts forth credible evidence that [a] habeas
petitioner meets the [AUMF’s detention] criteria, the onus
[may] shift to the petitioner to rebut that evidence with more
persuasive evidence that he falls outside the criteria.” 542
U.S. 507, 534 (2004).

Here, as noted, the relevant inquiry is whether Salahi was
“part of” al-Qaida when captured. Therefore, in order to shift
the burden of proof to Salahi, we would have to presume that
having once sworn bayat to al-Qaida, Salahi remained a
member of the organization until seized in November 2001.
Although such a presumption may be warranted in some
cases, such as where an individual swore allegiance to al-
Qaida on September 12, 2001, and was captured soon
thereafter, the unique circumstances of Salahi’s case make the
government’s proposed presumption inappropriate here.

When Salahi took his oath of allegiance in March 1991,
al-Qaida and the United States shared a common objective:
they both sought to topple Afghanistan’s Communist
 11
government. See Rollins, supra, at 4. Not until later did al-
Qaida begin publicly calling for attacks against the United
States. See id. at 4–5; see also 9/11 Commission Report,
supra, at 59. To be sure, the roots of the conflict between al-
Qaida and the United States stretch back at least as far as
Iraq’s August 1990 invasion of Kuwait, following which
Saudi Arabian leaders allowed U.S. forces to deploy to their
country. Rollins, supra, at 5. Usama bin Laden was
immediately critical of this arrangement, “paint[ing] the U.S.
forces as occupiers of sacred Islamic ground,” and after
leaving Saudi Arabia in April 1991, he relocated to Sudan and
began “buying property there which he used to host and train
Al Qaeda militants . . . for use against the United States and
its interests, as well as for jihad operations in the Balkans,
Chechnya, Kashmir, and the Philippines.” Id.; see also 9/11
Commission Report, supra, at 57. Bin Laden, however, did
not issue his first fatwa against U.S. forces until 1992—the
very year in which, according to Salahi’s sworn declaration,
Salahi severed all ties with al-Qaida. See 9/11 Commission
Report, supra, at 59; Salahi Am. Decl. ¶ 12. In light of all
this, Salahi’s March 1991 oath of bayat is insufficiently
probative of his relationship with al-Qaida at the time of his
capture in November 2001 to justify shifting the burden to
him to prove that he disassociated from the organization. In
so concluding, we have no doubt about the relevance of
Salahi’s oath to the ultimate question of whether he was “part
of” al-Qaida at the time of his capture. We conclude only that
given the facts of this particular case, Salahi’s oath does not
warrant shifting the burden of proof.

The government next challenges the district court’s use
of the “command structure” test—a standard that district
judges in this circuit, operating without any meaningful
guidance from Congress, developed to determine whether a
Guantanamo habeas petitioner was “part of” al-Qaida. See
 12
Hamlily v. Obama, 616 F. Supp. 2d 63, 75 (D.D.C. 2009);
Gherebi v. Obama, 609 F. Supp. 2d 43, 68–69 (D.D.C. 2009).
As applied by the district court in this case, the command-
structure test required the government to prove that Salahi
“ ‘receive[d] and execute[d] orders or directions’ ” from al-
Qaida operatives after 1992 when, according to Salahi, he
severed ties with the organization. Salahi, 710 F. Supp. 2d at
5 (quoting Hamlily, 616 F. Supp. 2d at 75). Having found no
such evidence, the court concluded that Salahi was not “part
of” al-Qaida at the time of his capture. Id. at 15–16.

As the government points out, the district court’s
approach is inconsistent with our recent decisions in Awad
and Bensayah, which were issued after the district court
granted Salahi’s habeas petition. 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.” Bensayah, 610 F.3d at 725. Evidence that an
individual operated within al-Qaida’s command structure is
“sufficient but is not necessary to show he is ‘part of’ the
organization.” Id.; see also Awad, 608 F.3d at 11. “[T]here
may be other indicia that a particular individual [was]
sufficiently involved with the organization to be deemed part
of it.” Bensayah, 610 F.3d at 725. For example, since
petitioner in Awad joined and was accepted by al-Qaida
fighters who were engaged in hostilities against Afghan and
allied forces, he could properly be considered “part of” al-
Qaida even if he never formally received or executed any
orders. See Awad, 608 F.3d at 3–4, 11.

As we explained in Bensayah, however, “the purely
independent conduct of a freelancer is not enough” to
establish that an individual is “part of” al-Qaida. 610 F.3d at
 13
725. Thus, as government counsel conceded at oral argument,
the government’s failure to prove that an individual was
acting under orders from al-Qaida may be relevant to the
question of whether the individual was “part of” the
organization when captured. See Oral Arg. Tr. at 20:17–21:5.
Consider this very case. Unlike petitioner in Awad, who
affiliated with al-Qaida fighters engaged in active hostilities
against U.S. allies in Afghanistan, Salahi is not accused of
participating in military action against the United States.
Instead, the government claims that Salahi was “part of” al-
Qaida because he swore bayat and thereafter provided various
services to the organization, including recruiting, hosting
leaders, transferring money, etc. Under these circumstances,
whether Salahi performed such services pursuant to al-Qaida
orders may well be relevant to determining if he was “part of”
al-Qaida or was instead engaged in the “purely independent
conduct of a freelancer.” Bensayah, 610 F.3d at 725. The
problem with the district court’s decision is that it treats the
absence of evidence that Salahi received and executed orders
as dispositive. See Salahi, 710 F. Supp. 2d at 5–6, 11–12, 15–
16. The decision therefore cannot survive Awad and
Bensayah.

The government urges us to reverse and direct the district
court to deny Salahi’s habeas petition. Although we agree
that Awad and Bensayah require that we vacate the district
court’s judgment, we think the better course is to remand for
further proceedings consistent with those opinions. Because
the district court, lacking the guidance of these later decisions,
looked primarily for evidence that Salahi participated in al-
Qaida’s command structure, it did not make definitive
findings regarding certain key facts necessary for us to
determine as a matter of law whether Salahi was in fact “part
of” al-Qaida when captured. See Barhoumi, 609 F.3d at 423
(noting that whether the facts found by the district court are
 14
sufficient to establish that an individual was “part of” al-
Qaida is a legal question that we review de novo). For
example, does the government’s evidence support the
inference that even if Salahi was not acting under express
orders, he nonetheless had a tacit understanding with al-Qaida
operatives that he would refer prospective jihadists to the
organization? See Salahi, 710 F. Supp. 2d at 10–12. Has the
government presented sufficient evidence for the court to
make findings regarding what Salahi said to bin al-Shibh
during their “discussion of jihad and Afghanistan”? Id. at 11.
Did al-Qaida operatives ask Salahi to assist the organization
with telecommunications projects in Sudan, Afghanistan, or
Pakistan? See id. at 12–13. Did Salahi provide any assistance
to al-Qaida in planning denial-of-service computer attacks,
even if those attacks never came to fruition? See id. at 13.
May the court infer from Salahi’s numerous ties to known al-
Qaida operatives that he remained a trusted member of the
organization? See id. at 16 (“Salahi . . . associated with at
least a half-dozen known al-Qaida members and terrorists[]
and somehow found and lived among or with al-Qaida cell
members in Montreal.”); cf. Awad, 608 F.3d at 3 (noting that
the al-Qaida fighters Awad joined “treated [him] as one of
their own”). With answers to questions like these, which may
require additional testimony, the district court will be able to
determine in the first instance whether Salahi was or was not
“sufficiently involved with [al-Qaida] to be deemed part of
it.” Bensayah, 610 F.3d at 725.

A final note: since we are remanding for further factual
findings, we think it appropriate to reiterate this Court’s
admonition in Al-Adahi, also decided after the district court
issued its decision in this case, that a court considering a
Guantanamo detainee’s habeas petition must view the
evidence collectively rather than in isolation. 613 F.3d at
1105–06. Merely because a particular piece of evidence is
 15
insufficient, standing alone, to prove a particular point does
not mean that the evidence “may be tossed aside and the next
[piece of evidence] may be evaluated as if the first did not
exist.” Id. at 1105. The evidence must be considered in its
entirety in determining whether the government has satisfied
its burden of proof.

Although the district court generally followed this
approach, its consideration of certain pieces of evidence may
have been unduly atomized. For example, the court found
that Salahi’s “limited relationships” with certain al-Qaida
operatives were “too brief and shallow to serve as an
independent basis for detention.” Salahi, 710 F. Supp. 2d at
15 (emphasis added). Even if Salahi’s connections to these
individuals fail independently to prove that he was “part of”
al-Qaida, those connections make it more likely that Salahi
was a member of the organization when captured and thus
remain relevant to the question of whether he is detainable.
Cf. Al-Adahi, 613 F.3d at 1107 (noting that petitioner’s “close
association [with Usama bin Laden] made it far more likely
that [he] was or became part of” al-Qaida).

The district court may also have evaluated Salahi’s oath
of bayat in isolation. In its conclusion, the district court
stated, “[T]he government wants to hold Salahi indefinitely,
because of its concern that he might renew his oath to al-
Qaida and become a terrorist upon his release.” Salahi, 710
F. Supp. 2d at 16 (emphasis added). This suggests that the
district court may have failed to consider the possibility that
the “sporadic support” Salahi “undoubtedly . . . provide[d]”
al-Qaida demonstrates that he remained a member of the
organization, thus having no need to renew his oath because
he continued to abide by his original vow of allegiance. Id. at
15–16.
 16

III.
The President seeks to detain Salahi on the grounds that
he was “part of” al-Qaida at the time he was captured.
Because additional fact-finding is required to resolve that
issue under this circuit’s evolving case law, we vacate and
remand for further proceedings consistent with this opinion.

So ordered.