Uthman v. Obama

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 11, 2011 Decided March 29, 2011

No. 10-5235

UTHMAN ABDUL RAHIM MOHAMMED UTHMAN, DETAINEE,

CAMP DELTA

APPELLEE

v.

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

APPELLANTS

Appeal from the United States District Court

for the District of Columbia

(No. 1:04-cv-01254)

Dana Kaervsang, Attorney, U.S. Department of Justice,

argued the cause for appellants. With her on the briefs were

Ian Heath Gershengorn, Deputy Assistant Attorney General

and Douglas N. Letter and Robert M. Loeb, Attorneys, U.S.

Department of Justice.

Anthony J. Phillips argued the cause for appellees. With

him on the brief were S. William Livingston, Roger A. Ford,

and David H. Remes. Brian E. Foster entered an appearance.

Before: GARLAND, GRIFFITH, and KAVANAUGH, Circuit

Judges.

2

Opinion for the Court filed by Circuit Judge

KAVANAUGH.

KAVANAUGH, Circuit Judge: In response to al Qaeda’s

attacks against the United States on September 11, 2001,

Congress passed and President Bush signed the Authorization

for Use of Military Force. The AUMF provides:

That the President is authorized to use all necessary and

appropriate force against those nations, organizations, or

persons he determines planned, authorized, committed, or

aided the terrorist attacks that occurred on September 11,

2001, or harbored such organizations or persons, in order

to prevent any future acts of international terrorism

against the United States by such nations, organizations

or persons.

Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2001); see U.S.

CONST. art. I. § 8. The AUMF, among other things,

authorizes the Executive Branch to detain for the duration of

hostilities those individuals who are part of al Qaeda or the

Taliban. See Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004).

Under the AUMF, the U.S. military currently holds

Uthman Abdul Rahim Mohammed Uthman at the U.S. naval

base in Guantanamo Bay, Cuba. Exercising his right under

the U.S. Constitution to judicial review of the basis for his

detention, Uthman filed a petition for a writ of habeas corpus

in the U.S. District Court for the District of Columbia. See

Boumediene v. Bush, 553 U.S. 723 (2008). Uthman

contended that he was not part of al Qaeda and therefore was

not properly detained. Applying a “command structure test,”

the District Court ruled that the Government had not proved

that Uthman was part of al Qaeda. The District Court

3

therefore granted the petition and ordered Uthman released

from U.S. custody.

In decisions issued since the District Court’s judgment in

this case, this Court has rejected “command structure” as the

test for determining whether someone is part of al Qaeda.

Our cases have held that the “determination of whether an

individual is ‘part of’ al-Qaida ‘must be made on a case-by-

case basis by using a functional rather than a formal approach

and by focusing upon the actions of the individual in relation

to the organization.’” Salahi v. Obama, 625 F.3d 745, 751-52

(D.C. Cir. 2010) (quoting Bensayah v. Obama, 610 F.3d 718,

725 (D.C. Cir. 2010)).

Applying the functional standard mandated by our

precedents, we conclude that the facts found by the District

Court, along with uncontested facts in the record, demonstrate

that Uthman more likely than not was part of al Qaeda. We

therefore reverse the judgment of the District Court and

remand with instructions to deny the petition for a writ of

habeas corpus.

I

Uthman Abdul Rahim Mohammed Uthman, a Yemeni

man, was captured at the Afghan-Pakistani border near Tora

Bora on December 15, 2001. He was captured in a small

group that included two al Qaeda members who were Osama

bin Laden bodyguards and another man who was a Taliban

fighter.1 Tora Bora is a cave complex in the mountains of

1

Uthman stated that he was captured with about 20 to 30 other

men. See J.A. 628 (FBI report from Uthman interview); J.A. 771

(Intelligence Information Report from Uthman interview); J.A. 638

(FBI report from Uthman interview).

4

eastern Afghanistan. Al Qaeda forces gathered there in

December 2001 to wage a major battle against the United

States and its allies.

Soon after his capture, Uthman was transferred to the

U.S. naval base in Guantanamo Bay, Cuba. He has been

detained at Guantanamo since January 2002.

In 2004, Uthman filed a petition for a writ of habeas

corpus in the U.S. District Court for the District of Columbia

challenging the basis for his detention. The Government

asserted that Uthman was part of al Qaeda and therefore may

be detained for the duration of the war against al Qaeda

pursuant to the Authorization for Use of Military Force. See

Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004); Bensayah v.

Obama, 610 F.3d 718, 724-25 (D.C. Cir. 2010).2

The District Court stated that “the key question” in

determining someone’s membership in al Qaeda “is whether

an individual receives and executes orders from the enemy

force’s combat apparatus.” Abdah v. Obama, 708 F. Supp. 2d

9, 13 (D.D.C. 2010) (internal quotation marks and alterations

omitted). The District Court derived that test from two

previous district court opinions applying this “command

structure test.” See id. at 12-13 (citing Hamlily v. Obama,

616 F. Supp. 2d 63 (D.D.C. 2009), and Gherebi v. Obama,

609 F. Supp. 2d 43 (D.D.C. 2009)). After examining the

evidence, the District Court concluded that the Government

2

This Court has stated that the Executive also may detain

those who “purposefully and materially support [al Qaeda or

Taliban forces] in hostilities against U.S. Coalition partners.”

Al-Bihani v. Obama, 590 F.3d 866, 872 (D.C. Cir. 2010); see also

Hatim v. Gates, No. 10-5048, slip op. at 2 (D.C. Cir. Feb. 11,

2011). In this case, the Government has asserted that it is seeking

to detain Uthman only because he was part of al Qaeda.

5

did “not convince the Court by a preponderance of the

evidence that Uthman received and executed orders from Al

Qaeda.” Id. at 22. On that basis, the District Court granted

Uthman’s petition for a writ of habeas corpus. Id. at 23.

Several of this Court’s cases – all decided after the

District Court granted Uthman’s petition – have held that the

“command structure test” does not reflect the full scope of the

Executive’s detention authority under the AUMF. “These

decisions make clear that the determination of whether an

individual is ‘part of’ al-Qaida ‘must be made on a case-by-

case basis by using a functional rather than a formal approach

and by focusing upon the actions of the individual in relation

to the organization.’” Salahi v. Obama, 625 F.3d 745, 751-52

(D.C. Cir. 2010) (quoting Bensayah, 610 F.3d at 725); see

also Awad v. Obama, 608 F.3d 1, 11 (D.C. Cir. 2010)

(“Nowhere in the AUMF is there a mention of command

structure.”). To be sure, demonstrating that someone is part

of al Qaeda’s command structure is sufficient to show that

person is part of al Qaeda. But it is not necessary. See, e.g.,

Awad, 608 F.3d at 11. Indicia other than the receipt and

execution of al Qaeda’s orders may prove “that a particular

individual is sufficiently involved with the organization to be

deemed part of it.” Bensayah, 610 F.3d at 725 (citing Awad,

608 F.3d at 11). It is thus possible that someone may

“properly be considered ‘part of’ al-Qaida even if he never

formally received or executed any orders.” Salahi, 625 F.3d

at 752 (citing Awad, 608 F.3d at 3-4, 11).

In this case, the question therefore is whether, under the

functional test mandated by our precedents, the established

facts – that is, those facts found by the District Court or

otherwise uncontested – show that Uthman more likely than

6

not was part of al Qaeda.3 Our analysis of that question is de

novo. See Barhoumi v. Obama, 609 F.3d 416, 423 (D.C. Cir.

2010).

II

In analyzing whether Uthman more likely than not was

part of al Qaeda, we consider the following facts, which were

found by the District Court or are otherwise uncontested:

 Uthman was captured in December 2001 in the

vicinity of Tora Bora, an isolated, mountainous area

where al Qaeda forces had gathered to fight the United

States and its allies.

 When captured, Uthman was traveling with a small

group of men, two of whom were al Qaeda members

and bodyguards for Osama bin Laden and one of

whom was a Taliban fighter.

 Leading up to his capture, Uthman’s journey began at

a religious school in Yemen where al Qaeda had

successfully recruited fighters. The two al Qaeda

members and Osama bin Laden bodyguards who were

later captured with Uthman, as well as the Taliban

fighter captured with Uthman, also attended the

Furqan Institute.

3

Our cases have stated that the preponderance of the evidence

standard is constitutionally sufficient and have left open whether a

lower standard might be adequate to satisfy the Constitution’s

requirements for wartime detention. See Al-Adahi v. Obama, 613

F.3d 1102, 1104-05 (D.C. Cir. 2010); Awad v. Obama, 608 F.3d 1,

11 & n.2 (D.C. Cir. 2010); Al-Bihani, 590 F.3d at 878 & n.4. The

preponderance of the evidence standard is equivalent to the “more

likely than not” standard. See Concrete Pipe & Prods., Inc. v.

Constr. Laborers Pension Trust, 508 U.S. 602, 622 (1993); Al-

Adahi, 613 F.3d at 1106.

7

 Uthman traveled to Afghanistan along a route used by

al Qaeda recruits.

 Uthman lied to hide the fact that someone else paid for

his travel to Afghanistan.

 While in Afghanistan, Uthman was seen at an

al Qaeda guesthouse.

 Uthman’s explanation of why he went to Afghanistan

and why he was traveling in a small group that

included al Qaeda members and a Taliban fighter near

Tora Bora during the battle there involves a host of

unlikely coincidences.

Uthman argues that those facts do not add up to his being part

of al Qaeda.4 As we will explain, we conclude that those

facts, taken together, are more than sufficient to show that

Uthman more likely than not was part of al Qaeda.5

4

Uthman does not challenge any of the subsidiary factual

findings of the District Court that the Government currently relies

on to support Uthman’s detention. (In any event, we see no basis

for deeming clearly erroneous any of those factual findings. Cf.

Awad v. Obama, 608 F.3d 1, 6, 8-10 (D.C. Cir. 2010).) Rather, he

argues that the facts found by the District Court do not establish

that he was part of al Qaeda.

5

Some of Uthman’s other activities during his time in

Afghanistan are contested. The Government claims, for example,

that Uthman attended an al Qaeda training camp, fought against the

Northern Alliance, and himself became one of Osama bin Laden’s

bodyguards. Uthman responds that those allegations are not true.

The District Court concluded that the Government did not offer

sufficient evidence to establish those facts. Because the

Government has not challenged those aspects of the District Court’s

decision in this Court, we do not consider those additional

allegations for purposes of this appeal. We also do not consider the

Government’s allegation that Uthman was present at a second al

Qaeda guesthouse.

8

First, Uthman was captured on December 15, 2001, “in

the vicinity of Tora Bora.” Abdah v. Obama, 708 F. Supp. 2d

9, 22 (D.D.C. 2010). As the District Court noted, it was

“widely known” that Tora Bora was a battleground between

al Qaeda and the United States and “few, if any

noncombatants would have been in the vicinity during this

time.” Id. at 19 n.11. Because “few, if any” non-combatants

were near Tora Bora, it follows that most, if not all, of those

in the vicinity of Tora Bora on December 15, 2001, were

combatants. In a prior case, we found it significant that a

detainee was captured near Tora Bora in late 2001. See Al

Odah v. United States, 611 F.3d 8, 11, 16 (D.C. Cir. 2010). In

short, the fact that Uthman was captured in December 2001

near Tora Bora suggests that he was affiliated with al Qaeda.

Second, the company Uthman was keeping when he was

captured near Tora Bora in December 2001 makes it even

more likely that he was part of al Qaeda. See Abdah, 708 F.

Supp. 2d at 22 (Uthman “was with Al Qaeda members in the

vicinity of Tora Bora”). Uthman admits that, when captured,

he was part of a small group including at least five other

Yemeni men. Two of those men were al Qaeda members and

have since confessed to being bodyguards for Osama bin

Laden. Another fought with the Taliban against United States

forces. One of the bin Laden bodyguards in Uthman’s band

described the group as “brothers” retreating from battle. In

our prior cases, we have stated that evidence of association

with other al Qaeda members is itself probative of al Qaeda

membership. Cf. Al-Adahi v. Obama, 613 F.3d 1102, 1107

(D.C. Cir. 2010); Awad v. Obama, 608 F.3d 1, 9-10 (D.C. Cir.

2010); id. at 3 (noting that al Qaeda fighters treated Awad “as

one of their own”); see also Salahi v. Obama, 625 F.3d 745,

753 (D.C. Cir. 2010) (district court may be able to “infer from

Salahi’s numerous ties to known al-Qaida operatives that he

9

remained a trusted member of the organization”). So it is

here.

Being captured in the company of a Taliban fighter and

two al Qaeda members and Osama bin Laden bodyguards 12

miles from Tora Bora in December 2001 might not be

precisely the same as being captured in a German uniform 12

miles from the Normandy beaches in June 1944. But it is

still, at a minimum, highly significant. And absent a credible

alternative explanation, the location and date of Uthman’s

capture, together with the company he was keeping, strongly

suggest that he was part of al Qaeda. And there is more.

Third, the narrative of Uthman’s journey before his

capture suggests that it was not an accident that he ended up

near Tora Bora on December 15, 2001, in the company of two

al Qaeda members who were Osama bin Laden’s bodyguards,

as well as a Taliban fighter. That narrative begins with

Uthman’s studies at the Furqan Institute, a religious school “at

which other men were recruited to fight for Al Qaeda.”

Abdah, 708 F. Supp. 2d at 22. Uthman downplays this

particular fact, noting that most students at the school

probably did not become al Qaeda fighters. Uthman’s

argument ignores two points. First, attendance at such a

school – which was a fruitful al Qaeda recruiting ground – is a

fact that, while perhaps not alone of great significance, can

assume greater significance when considered in light of other

facts suggesting al Qaeda membership. Cf. Al-Adahi, 613

F.3d at 1105-09; Al Odah, 611 F.3d at 16. Second, the two al

Qaeda members and Osama bin Laden bodyguards and the

Taliban fighter captured with Uthman in the vicinity of Tora

Bora also attended the Furqan Institute. Uthman admitted he

knew all of them from the Institute, including the Osama bin

Laden bodyguard and former Furqan Institute student who

described the group as “brothers.” Uthman’s long association

10

with those three fellow travelers, dating back to their shared

time at an al Qaeda recruiting ground, renders it rather

unlikely that their travel together near al Qaeda’s embattled

stronghold at Tora Bora in December 2001 was a coincidental

reunion of old schoolmates. Cf. Salahi, 625 F.3d at 753; Al-

Adahi, 613 F.3d at 1105, 1107; Awad, 608 F.3d at 3, 9-10.

Fourth, after studying at the Furqan Institute, Uthman

“traveled to Afghanistan along a route also taken by Al Qaeda

recruits.” Abdah, 708 F. Supp. 2d at 22. Specifically,

Uthman flew from Sana’a, Yemen, to Karachi, Pakistan.

From Karachi, he traveled by bus to Quetta, Pakistan, and

then by taxi to a Taliban office there. From Quetta, a Taliban

official arranged for Uthman’s transportation to Kandahar,

Afghanistan. Uthman’s route is similar to the paths of

admitted al Qaeda members now in U.S. custody. This Court

has stated that traveling to Afghanistan along a distinctive

path used by al Qaeda members can be probative evidence

that the traveler was part of al Qaeda. See Al Odah, 611 F.3d

at 16. Uthman again argues that this fact alone is not

significant, as people who were not al Qaeda recruits may

have followed the same track. But the fact that Uthman

followed a common al Qaeda route nonetheless makes it

somewhat more likely that he was an al Qaeda recruit. See

Al-Adahi, 613 F.3d at 1105; cf. Bourjaily v. United States, 483

U.S. 171, 179-80 (1987) (“individual pieces of evidence,

insufficient in themselves to prove a point, may in cumulation

prove it”).

Fifth, Uthman’s route to Afghanistan is even more

suspicious because he lied about how he paid for the trip. The

Government contends that a Yemeni sheikh who supported

terrorism funded Uthman’s journey. In his sworn statement to

the District Court, Uthman said he raised the funds himself

primarily by working at summer jobs selling food at a

11

roadside shack. The Government says this explanation is

preposterous, observing that Uthman would have had to earn

more than three times the average Yemeni’s annual income in

only a few summers’ unskilled work. The District Court

agreed with the Government, finding that Uthman received

the funds from the sheikh, as Uthman originally told

interrogators. Abdah, 708 F. Supp. 2d at 22. Although the

District Court made no finding as to whether that sheikh

supported terrorism, its determination that Uthman’s trip to

Afghanistan was financed by the sheikh necessarily means the

court found Uthman’s sworn statement that he paid for his

own travel to be false. Uthman’s false explanation is relevant

here because, as we have said in another case, “false

exculpatory statements are evidence – often strong evidence –

of guilt.” Al-Adahi, 613 F.3d at 1107 (citing United States v.

Penn, 974 F.2d 1026, 1029 (8th Cir. 1992), and United States

v. Meyer, 733 F.2d 362, 363 (5th Cir. 1984)).

Sixth, once he reached Afghanistan, Uthman was seen at

an al Qaeda guesthouse. See Abdah, 708 F. Supp. 2d. at 22.

In two prior cases, this Court has stated that staying at an al

Qaeda guesthouse is “powerful – indeed ‘overwhelming’ –

evidence” that an individual is part of al Qaeda. Al-Adahi,

613 F.3d at 1108 (quoting Al-Bihani v. Obama, 590 F.3d 866,

873 n.2 (D.C. Cir. 2010)) (alterations omitted). The reason

for that assessment is plain: It is highly unlikely that a visitor

to Afghanistan would end up at an al Qaeda guesthouse by

mistake, either by the guest or by the host. Uthman retorts

that he was only seen at an al Qaeda guesthouse, which does

not necessarily mean that he was staying there. True, but just

being present at an al Qaeda guesthouse is hardly the kind of

innocent fact that can be tossed aside as insignificant.

Moreover, absent another explanation (and Uthman provides

none), the most plausible reason for Uthman’s presence at an

al Qaeda guesthouse is that he was affiliated with al Qaeda

12

and staying at the guesthouse. See Al-Adahi, 613 F.3d at

1108. That implication is strongly buttressed by the fact that

Uthman did not have his passport when he was captured. As

this Court has explained, surrendering one’s passport was

“standard al Qaeda and Taliban operating procedure[]” when

checking into an al Qaeda guesthouse in Afghanistan. Al

Odah, 611 F.3d at 15.

Seventh, Uthman’s account of his activity in Afghanistan

and Pakistan involves many coincidences that are perhaps

possible, but not likely. According to Uthman, he went to

Afghanistan to teach the Koran. As of September 11, 2001,

he was in Kabul, teaching the Koran, although he does not

remember the names of any of his students and cannot

describe his school in Kabul.6 Unlike many civilians living in

Kabul at the time, Uthman remained in the capital as the

United States began its attack against the Taliban regime.

Only after the Taliban and its al Qaeda allies lost control of

Kabul did Uthman choose to leave. Although he wished to

flee to Pakistan, Uthman did not take the eastward road

through the Khyber Pass that leads directly to Pakistan.

Instead, Uthman took the long way home. He fled south,

parallel to Pakistan’s border, into rugged, mountainous terrain

– following his interpreter, he claims.7 Unfortunately, as the

story goes, his path led him near Tora Bora, where Osama bin

Laden and Ayman al-Zawahiri happened to have relocated

and where it was widely known that al Qaeda was gathering

for a major battle against the United States and its allies.

There, in the Afghan mountains, he chanced to meet up with

6

In Al Odah v. United States, 611 F.3d 8, 12 (D.C. Cir. 2010),

we found significance in the fact that a detainee could not

remember the names of any students he allegedly had taught.

7

In Al Odah, we found significance in a detainee’s similarly

circuitous route out of Afghanistan into Pakistan by way of Tora

Bora. Id. at 16.

13

schoolmates from his school days in Yemen. Unfortunately

for Uthman, those schoolmates also happened to be two al

Qaeda members who were Osama bin Laden bodyguards and

a Taliban fighter. Then, Uthman finally chose to enter

Pakistan – as it turns out, at the height of the U.S.

bombardment of Tora Bora and al Qaeda’s flight from

Afghanistan – where he says he was mistaken for an al Qaeda

fighter and detained.

Uthman’s account piles coincidence upon coincidence

upon coincidence. Here, as with the liable or guilty party in

any civil or criminal case, it remains possible that Uthman

was innocently going about his business and just happened to

show up in a variety of extraordinary places – a kind of

Forrest Gump in the war against al Qaeda. But Uthman’s

account at best strains credulity; and the far more likely

explanation for the plethora of damning circumstantial

evidence is that he was part of al Qaeda. When presented

with similar circumstantial evidence in prior cases, we have

had no trouble reaching the conclusion that the detainee more

likely than not was part of al Qaeda. See Al-Adahi, 613 F.3d

1102; Al Odah, 611 F.3d 8; Barhoumi v. Obama, 609 F.3d

416 (D.C. Cir. 2010); Awad, 608 F.3d 1; Al-Bihani, 590 F.3d

866. So too here.

***

To sum up, in the years leading up to his capture,

Uthman’s life was intertwined with al Qaeda’s operations.

Uthman attended a school in Yemen where al Qaeda

successfully recruited. He traveled to Afghanistan along a

route used by al Qaeda recruits. He lied about how he paid

for that journey. He was seen at an al Qaeda guesthouse in

Afghanistan. He traveled to an isolated mountainous region

near what was then al Qaeda’s last stronghold in Afghanistan,

14

during a major battle there. He was captured on December

15, 2001, in a small group that included two al Qaeda

members who were Osama bin Laden’s bodyguards and a

Taliban fighter. He did not have a passport with him. And he

has not credibly explained why he went to Afghanistan or

how he found himself traveling with a small group that

included two al Qaeda members who were Osama bin Laden

bodyguards and a Taliban fighter near Tora Bora in December

2001.

We do “not weigh each piece of evidence in isolation, but

consider all of the evidence taken as a whole.” Al Odah, 611

F.3d at 15 (quoting Awad, 608 F.3d at 6-7); see also Al-Adahi,

613 F.3d at 1105-07. Uthman’s actions and recurrent

entanglement with al Qaeda show that he more likely than not

was part of al Qaeda.8 We therefore reverse the judgment of

the District Court and remand with instructions to deny

Uthman’s petition for a writ of habeas corpus.

So ordered.

8

In recounting the evidence, we do not imply that all of the

evidence in this case is necessary to find someone part of al Qaeda.

We hold only that the evidence in this case is sufficient to find that

Uthman was part of al Qaeda.