Khan v. Obama

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 13, 2011 Decided September 6, 2011

No. 10-5306

SHAWALI KHAN,

APPELLANT

v.

BARACK OBAMA, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:08-cv-01101)

Leonard C. Goodman argued the cause and filed the briefs

for appellant.

H. Thomas Byron, III, Attorney, U.S. Department of Justice,

argued the cause for appellees. With him on the brief were Tony

West, Assistant Attorney General, Ian Heath Gershengorn,

Deputy Assistant Attorney General, and Douglas N. Letter and

Robert M. Loeb, Attorneys. Michael P. Abate and Edward

Himmelfarb, Attorneys, entered appearances.

Before: SENTELLE, Chief Judge, and GINSBURG and

GARLAND, Circuit Judges.

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Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: Shawali Khan, a detainee at the

United States naval base at Guantanamo Bay, Cuba, appeals the

denial of his petition for a writ of habeas corpus. The district

court found that Khan was “part of” Hezb-i-Islami Gulbuddin

(HIG), an associated force of al Qaeda and the Taliban engaged

in hostilities against the United States and its coalition partners.

Khan’s primary contention on appeal is that the district court

erred in concluding that intelligence reports offered by the

government to prove his membership in an HIG cell were

reliable. Finding no error in the district court’s careful

consideration of the evidence, we affirm its denial of Khan’s

petition.

I

Khan is an Afghan citizen who, at the time of his capture in

mid-November 2002, lived in Kandahar, Afghanistan. By the

government’s account, Khan’s affiliation with HIG began in the

1980s, when he served as a radio operator for the group under

the command of his uncle, Zabit Jalil, during the anti-Soviet

jihad. The government alleges that, after September 11, 2001,

HIG formed an alliance with al Qaeda and the Taliban to attack

U.S. and coalition forces operating in Afghanistan. According

to contemporaneous reports by U.S. Army intelligence

collectors, three Afghan informants told the collectors about the

presence of a small HIG terrorist cell in Kandahar.1

1

All descriptions of reports and facts in this opinion are taken

from unclassified or declassified documents and briefs that are on the

public record in this case. The redactions are for classified

information that is contained in a classified appendix to the opinion.

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One of the informants (hereinafter Informant A), later

identified as a disaffected member of the HIG cell, told the

intelligence collectors in late October 2002 that Khan was a

communicator for the cell, facilitating radio contact among its

members. He also reported that the cell was directed from

Quetta, Pakistan, by Khan’s uncle. Intelligence Information

Report (IIR) 6 044 0266 03 at 1-3 (Oct. 29, 2002) (J.A. 1731-

33). According to Informant A, this cell was responsible for

explosions near the Kandahar airfield and was planning

additional attacks on U.S. forces using radio-controlled binary

explosive devices positioned on roads frequented by U.S.

military vehicles. IIR 6 044 0249 03 at 1-4 (Oct. 29, 2002) (J.A.

1726-29).

Informant A gave the intelligence collectors specific

information about the cell’s method of operation. For example,

he described how the cell would detonate two explosions timed

to maximize casualties:

When the Americans are close enough to the kill zone,

the first explosion is detonated . . . . The intent of the

first explosion is to cause injury and disable the

vehicle. This act will force other Americans to

investigate the scene and help evacuate the wounded.

When a large enough crowd has gathered around the

disabled vehicle and wounded personnel, a second,

more powerful explosion is detonated . . . . The

purpose of the second explosion is to kill the wounded

and those who are trying to help them.

Id. at 3 (J.A. 1728); see IIR 6 044 0267 03 at 3 (Oct. 30, 2002)

(J.A. 1738). Informant A also identified the precise radio

frequencies the cell used in a particular sequence to detonate the

two explosions. IIR 6 044 0249 03 at 3 (J.A. 1728); Classified

J.A. 1728; see Gov’t Br. 10. And in another meeting, he

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provided additional specific details about some of the cell’s

intended targets and the type of explosive device used -- “a

Chinese or Russian antitank mine approximately 12 inches in

diameter” connected to an “electric blasting cap” that is in turn

“attached to the radio-controlled electronic detonator.” IIR 6

044 0267 03 at 2-3 (J.A. 1737-38).

Further details about Khan’s role in the Kandahar HIG cell

came from a second Afghan informant (hereinafter Informant

B), who “did not personally witness the events he described,”

but had “indirect access” to the information. Decl. of

Intelligence Collector 1 at ¶ 23 (Mar. 15, 2010) (J.A. 1543); see

Decl. of Intelligence Collector 2 at ¶ 20 (Mar. 10, 2010) (J.A.

1572). Informant B reported that Khan was “a go-between and

a facilitator” within the cell, that he “use[d] [his] oil shop to

conduct meetings and as a contact point with other members

within the cell,” and that on November 9, 2002, he “delivered a

radio-controlled binary detonation device and two blasting caps

to an operative working within his organization.” IIR 6 044

0025 03 at 3 (Nov. 9, 2002) (J.A. 1723).

Finally, a third informant, an Afghan government official

(hereinafter Informant C), revealed more about the Kandahar

HIG cell’s plans to attack U.S. and coalition vehicles at two

specific locations. IIR 6 044 0300 03 (Nov. 3, 2002) (J.A. 1744-

45). He told the intelligence collectors that “mines ha[d] already

been emplaced” at these locations, but that “they ha[d] not been

armed with a remote detonation device.” Id. (J.A. 1745).

In mid-November 2002, U.S. military officials decided to

neutralize the HIG cell. They planned an operation to capture

Khan at his shop, using Informant A’s tip that Khan would be

there at a particular time. The operation was a success, and

Khan’s home and shop were searched after his arrest. As

reflected in several reports and underlying exhibits, the searches

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uncovered a variety of physical evidence, including a notebook

containing Arabic writing about various terrorist activities, a

book of poems written in Arabic by a high-level al Qaeda leader,

a notebook from the “al-Farouk camp” containing Arabic

writing about the use and maintenance of weapons, a notebook

with Arabic writing and pictures of Osama bin Laden, Pashtu

music praising the Taliban, and a receipt for weapons. See

Gov’t Br. 13 n.4 (summarizing material recovered from Khan’s

properties).

In addition, and more significant, heavily redacted classified

intelligence reports state that the search of Khan’s properties

yielded further, particularly incriminating evidence that

confirmed his role in the Kandahar HIG cell. Gov’t Br. 13, 55.

One of those reports states that [Redaction 1].

On November 22, 2002, Informant B told the intelligence

collectors that, after Khan’s capture by U.S. forces, Khan’s

uncle called a meeting with several HIG operatives in Pakistan

to replace the entire Kandahar cell. IIR 6 044 0433 03 at 1-2

(Nov. 22, 2002) (J.A. 1753-54). According to the government,

improvised explosive device (IED) attacks stopped in the area

for about two months after Khan’s capture. Decl. of Intelligence

Collector 2 at ¶ 15 (Mar. 10, 2010) (J.A. 1570).

During an interrogation by U.S. personnel on December 17,

2002, Khan admitted to possessing [Redaction 2], but said that

[Redaction 3].2 In subsequent interrogations, he at times

2

Khan contends there is “grave doubt” about the reliability of this

admission to possessing [Redaction 4] because it is possible that the

term used for that item was incorrectly translated. Pet’r Br. 20, 29.

The district court did not err in finding that other reliable evidence in

the record (as discussed in Part II below) corroborated Khan’s

admission.

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admitted to possessing other pieces of physical evidence, and

offered exculpatory explanations for some of them.3 In several

interrogations, he also admitted that he had been part of the HIG

army during the fight against the Soviet Union in the 1980s and

that his uncle Jalil had commanded HIG forces against the

Soviets; but at other times, he said he had never been an official

member of HIG and/or denied any affiliation with HIG. See

Pet’r Br. 11-12 (citing interrogation reports). In numerous

interrogations, Khan told his questioners that he was just a

shopkeeper, not a terrorist, and had been falsely accused by

corrupt Afghans who told lies about him for money.

Khan has been detained at Guantanamo Bay since early

2003. The government contends that Khan’s detention is lawful

under the Authorization for Use of Military Force (AUMF) that

Congress adopted after the September 11, 2001, al Qaeda

3

For example, during one interrogation, Khan admitted to

possessing both the notebooks and a spool of wire, which he described

to interrogators as “black, approximately 50 meters in length, and the

type of wire that ‘You light it on one end and the fire goes down the

wire.’” CITF Report of Investigative Activity at 2 (Feb. 7, 2003) (J.A.

1809). He said he took the notebooks and wire “from an abandoned

house, previously occupied by Arabs.” Id.; see also Summary

Interrogation Report at 3 (Mar. 29, 2007) (J.A. 1865) (stating that he

“did some looting” of Arab businesses and houses in which he

obtained “some books” in Arabic and “electrical wire”); id. (stating

that he cannot read Arabic); Summarized Sworn Detainee Statement

at 3-4 (J.A. 2312.24-.25) (stating that the receipt for weapons

belonged to his uncle and was proof he had returned a Kalashnikov

lent him by the Karzai government, and that he had taken some wire

that had been abandoned by fleeing Arabs “to use for my electricity”);

[Redaction 5].

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attacks against the United States.4 We have held that the AUMF

grants the President authority (inter alia) to detain individuals

who are “part of forces associated with Al Qaeda or the

Taliban.” Al-Bihani v. Obama, 590 F.3d 866, 872 (D.C. Cir.

2010); see Barhoumi v. Obama, 609 F.3d 416, 432 (D.C. Cir.

2010).

In June 2008, the Supreme Court ruled in Boumediene v.

Bush that “the constitutional privilege of habeas corpus” extends

to aliens detained as enemy combatants at Guantanamo. 553

U.S. 723, 732 (2008). Shortly thereafter, Khan filed a petition

for a writ of habeas corpus. Early in the litigation, Khan moved

for judgment on the record, contending that extensive discovery

was unnecessary because the government had failed to produce

sufficient reliable evidence to justify his detention.

In ruling on Khan’s motion, the district court found that the

Army intelligence collectors’ informant reports lacked adequate

indicia of reliability because, inter alia, “all sources are

confidential (i.e., unidentified).” Khan v. Obama, 646 F. Supp.

2d 6, 13 (D.D.C. 2009). (The government had not yet revealed

the informants’ identities.) Accordingly, the court held that the

informant reports could not, absent other reliable corroborating

4

The AUMF states:

[T]he 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) (reprinted at 50

U.S.C. § 1541 note).

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evidence, justify Khan’s detention. At the same time, however,

the court found that the government had already produced other

reliable evidence suggesting that “petitioner was active in HIG

during jihad against the former Soviet Union; HIG was a

terrorist organization at the time of petitioner’s capture; . . .

petitioner was a HIG communicator at the time of his capture;

and petitioner possessed some al Qaeda- or Taliban-related

material at the time of his capture.” Id. at 19. It also found that

the government had “provided enough evidence to show that

HIG qualifie[d] as an associated force . . . engaged in hostilities

against the United States or its coalition partners.” Id. (internal

quotation marks omitted). The court therefore allowed

discovery to proceed, concluding that “the evidence that remains

is sufficient . . . to warrant denial of petitioners’s motion.” Id.

at 20.

To address the district court’s concerns about the informant

reports, the government submitted new declarations by U.S.

Army intelligence collectors. These collectors were the same

ones who had interviewed the Afghan sources in 2002, authored

the original reports, and participated in Khan’s capture. The

collectors identified two of the key informants by name and the

third by position. In their declarations, the collectors stated that,

based on their professional training and experience, and on their

direct contact with the informants, they assessed the informants

as reliable sources. They also set forth, in considerable detail,

why they reached that conclusion. In so doing, the collectors

explained both the manner in which they assessed the

informants’ motives and how elements of the informants’ stories

were independently verified. See Decl. of Intelligence Collector

1 (J.A. 1528); Decl. of Intelligence Collector 2 (J.A. 1556).

On May 13, 2010, the district court began a three-day

evidentiary hearing. The government presented the various

reports and exhibits described above, as well as others that will

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be discussed below. It also introduced three items it said were

seized from Khan’s property: the notebook containing Arabic

writing about terrorist activities; the book of poems written in

Arabic; and the al-Farouk notebook containing Arabic writing

about weapons. Khan relied on the portions of his interrogation

statements that were exculpatory, see, e.g., supra note 3;

presented an expert witness to testify about HIG’s history and

activities; and testified himself via video link. He said he had

remained at his family farm during the Soviet occupation and

had not fought against the Soviets, but that he had assisted those

who did fight. He repeated that he was just an innocent

shopkeeper and denied participating in any attacks against

Americans. He also said that he was not a member of any

terrorist group, that HIG had not been in Kandahar since the

Taliban came to power, that Afghans rather than Americans had

seized items from his home, and that he did not recognize the

items the government introduced into evidence. Hr’g Tr. 11-22,

35 (May 17, 2010) (J.A. 301-12; 324-25).

During the hearing, the court expressed concern about the

heavy redactions of information in the classified intelligence

reports describing evidence seized from Khan’s properties,

including particularly incriminating items that were not

themselves introduced. The court said the redactions made it

impossible to determine the source and timing of the reports or

to assess their reliability. It described one of the documents as

“perhaps the most redacted report in history,” and urged the

government to take it “back to your client agencies” for a

declaration that might “confirm [its] legitimacy.” Hr’g Tr. 47-

50 (May 13, 2010) (J.A. 47-50). On the final day of the hearing,

the court again urged the government to submit something “to

remove th[e] question mark” over the intelligence reports. Hr’g

Tr. 46 (May 17, 2010) (J.A. 336).

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Thereafter, at the suggestion of Khan’s counsel, the

government made unredacted versions of those reports available

to the court for its in camera review. Id. at 47 (J.A. 337). The

government also submitted to both the court and counsel a

classified declaration explaining, to the extent possible without

disclosing particularly sensitive classified information, how and

by whom the reports had been prepared. See Gov’t Br. 24. Of

particular importance, the declaration stated that [Redaction 6].

On September 3, 2010, the district court denied Khan’s

habeas petition. Khan v. Obama, 741 F. Supp. 2d 1, 12-16

(D.D.C. 2010). The court found that the intelligence collectors’

declarations supplied “reason to believe the information

provided by [Informant A] is generally accurate.” Id. at 13

(internal quotation marks omitted). It noted that the collectors

judged the information “sufficiently reliable to plan the

operation for Khan’s capture based on it.” Id. “Intelligence

collectors in the field, facing dangerous life-or-death situations,”

the court observed, “would not . . . act on the basis of

information they felt was unreliable.” Id. The court found

Informants B and C reliable because they provided information

consistent with the information provided by Informant A. Id. at

14.

Based on its in camera review of the redacted portions of

the intelligence reports, the unredacted portions of which

“describ[ed] the items seized from Khan’s properties,” the court

found that those reports “contain[ed] sufficient indicia of their

reliability.” Khan, 741 F. Supp. 2d at 17. Although it could not

discuss the sensitive redacted portions of the reports, the court

stated that the declaration the government provided to the court

and counsel “summarizes the hallmarks of reliability that the

Court finds persuasive” and is itself “accurate and persuasive.”

Id.

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In light of the government’s additional evidence, the district

court concluded that “the government has met its burden to

establish by a preponderance of the evidence that Khan was a

‘part of’ HIG.” Id. The court also reaffirmed its earlier

conclusion that the government had presented sufficient

evidence to establish that “HIG was an ‘associated force’ of al-

Qaida and the Taliban at the time of Khan’s capture in late

2002.” Id. at 8.

On appeal, Khan does not challenge the detention standard

applied by the district court, but rather the court’s conclusion

that the government produced sufficient reliable evidence to

satisfy the standard. Khan contends there is insufficient reliable

evidence establishing that: (1) he was “part of” HIG at the time

of his capture in late 2002; and (2) HIG was an “associated

force” of al Qaeda and the Taliban at that time.5 We consider

Khan’s “part of” arguments in Part II and his “associated force”

arguments in Part III.

II

“We review the district court’s findings of fact for clear

error, its habeas determination de novo, and any challenged

evidentiary rulings for abuse of discretion.” Al Alwi v. Obama,

No. 09-5125, 2011 WL 2937134, at *2 (D.C. Cir. July 22, 2011)

(quoting Al-Bihani, 590 F.3d at 870) (internal citations omitted).

Whether a detainee was “part of” an associated force is a mixed

question of law and fact. Barhoumi, 609 F.3d at 423. That is,

whether a detainee’s alleged conduct is sufficient to make him

“part of” a force and whether the alleged connections between

5

Although the district court thought the latter issue was

uncontested, Khan, 741 F. Supp. 2d. at 8, Khan challenged HIG’s

status as an associated force at the district court hearing, see Hr’g Tr.

11 (May 13, 2010) (J.A. 11), and renews that challenge on appeal.

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that force and al Qaeda and/or the Taliban are sufficient to

render it an “associated force” are legal questions that we review

de novo. See id. Whether the government has proven that

conduct and those connections, however, are factual questions

that we review for clear error. See id. In addition, “[t]he

question whether evidence is sufficiently reliable to credit is one

we review for clear error.” Al Alwi, 2011 WL 2937134, at *6;

see Barhoumi, 609 F.3d at 424; Awad v. Obama, 608 F.3d 1, 8

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

13-14 (D.C. Cir. 2010) (concluding that a district court’s

decision that certain hearsay evidence was reliable “was no

abuse of discretion”).

The district court found, based on a preponderance of the

evidence, that Khan is lawfully detained under the AUMF. See

Al Odah, 611 F.3d at 13 (“It is now well-settled law that a

preponderance of the evidence standard is constitutional in

considering a habeas petition from an individual detained

pursuant to authority granted by the AUMF.”). Khan titles his

argument regarding the “part of” portion of the AUMF detention

standard as a claim that the government’s evidence is

“insufficient to prove by a preponderance” that he was part of an

HIG cell. Pet’r Br. 45. With one exception, however, he does

not seriously dispute that the evidence offered by the

government -- if judged reliable -- satisfies the government’s

burden to show that he was “part of” HIG at the time of his

capture. Instead, he primarily challenges the reliability of (A)

the Army intelligence collectors’ informant reports and

subsequent declarations that describe the Kandahar HIG cell and

Khan’s role in it, and (B) the heavily redacted intelligence

reports that describe items seized from Khan’s properties. The

exception is his contention that, regardless of the government’s

evidence, the court should instead have accepted the testimony

of his expert, which he argues proves there was no HIG cell in

Kandahar in 2002. We address these three arguments below.

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A

Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008), “sets the

guideposts for our inquiry” into the reliability of the collectors’

reports and declarations. Barhoumi, 609 F.3d at 428; see

Bensayah v. Obama, 610 F.3d 718, 725-26 (D.C. Cir. 2010). In

Parhat, the petitioner appealed the determination of a

Combatant Status Review Tribunal (CSRT) that he qualified as

an enemy combatant because of his affiliation with a Uighur

independence group assertedly “associated” with al Qaeda and

the Taliban. In particular, the petitioner challenged four

intelligence reports on which the Tribunal primarily based its

decision. In discounting those reports, we made clear that we

were “not suggest[ing] that hearsay evidence is never reliable --

only that it must be presented in a form, or with sufficient

additional information, that permits the Tribunal and court to

assess its reliability.” 532 F.3d at 849 (emphasis omitted).

Since Parhat, we have repeatedly held that “the fact that the

district court generally relied on items of evidence that

contained hearsay is of no consequence[;] [t]o show error in the

court’s reliance on hearsay evidence, the habeas petitioner must

establish not that it is hearsay, but that it is unreliable hearsay.”

Awad, 608 F.3d at 7; see Al Alwi, 2011 WL 2937134, at *6; Al

Odah, 611 F.3d at 14; Barhoumi, 609 F.3d at 422, 432;

Al-Bihani, 590 F.3d at 879.

The government’s evidence in Parhat was insufficient to

enable the court to assess its reliability. The four intelligence

reports at issue described activities “as having ‘reportedly’

occurred, as being ‘said to’ or ‘reported to’ have happened, and

as things that ‘may’ be true or are ‘suspected of’ having taken

place.” 532 F.3d at 846. “But in virtually every instance, the

documents d[id] not say who ‘reported’ or ‘said’ or ‘suspected’

those things. Nor [did] they provide any of the underlying

reporting upon which the documents’ bottom-line assertions

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[were] founded.” Id. at 846-47. Those deficiencies made it

impossible to assess the reliability of the reports standing on

their own, and no additional evidence supported their reliability.

Id. at 848. We therefore set aside the CSRT’s enemy combatant

determination. To facilitate meaningful review, we ruled, the

government must do more than merely “submit[] documents that

read as if they were indictments or civil complaints, and that

simply assert as facts the elements required to prove that a

detainee falls within the definition of enemy combatant.” Id. at

850.

At an early stage of the proceedings in this case, the district

court determined that the informant reports, standing alone,

lacked adequate indicia of reliability. Khan, 646 F. Supp. 2d at

16-17. It then properly afforded the government an opportunity

to submit “sufficient additional information . . . permit[ting the

factfinder] to assess [their] reliability,” Bensayah, 610 F.3d at

725-26 (quoting Parhat, 532 F.3d at 849). The government

responded with the declarations of the Army intelligence

collectors who had met with the sources and prepared the

reports. The court found that “[t]hese declarations provide the

information necessary to assess the sources’ reliability,” and

“based on that information,” the court concluded that the reports

by the informants were reliable. Khan, 741 F. Supp. 2d at 13-

14.

Whether or not we would have regarded the informant

reports as reliable on their own, it is clear that, together with the

declarations, the combination looks nothing like the intelligence

reports at issue in Parhat. Unlike in Parhat, we do not have a

series of documents containing naked assertions about acts that

“may have” occurred or that were “reported to” have taken

place, where we do not know the identity of either the

documents’ authors or their sources. To the contrary, here we

know that the authors of the documents are U.S. Army

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intelligence collectors who were on the ground in Kandahar at

the time of the events in question, and we know that their

sources are the three Afghan informants -- two of whom are

identified by name and one by position. Nor are the materials

limited to the collectors’ “bottom-line assertions”; rather, they

contain the “underlying reporting” that was missing in Parhat.

Also unlike the reports in Parhat, the collectors’ reports and

declarations contain great detail about what each source said

about the detainee’s activities.

In Barhoumi v. Obama, we were able to assess the

reliability of a diary that was translated in an intelligence report

“by evaluating the diary’s internal coherence as well as its

consistency with uncontested record evidence, including [the

detainee’s] own statements and the circumstances of his

capture.” 609 F.3d at 428. We stressed that the diary exhibited

“first-hand knowledge” through “highly detailed descriptions of

real-world persons, places, and events.” Id. at 428-29, 432. We

noted the significance of “independent verification,” finding that

the diary “refer[red] accurately and in great detail to verifiable

real-world events.” Id. And we further noted that “[the

detainee’s] own statements” buttressed the diary’s reliability

given the “numerous consistencies” between them. Id. at 429,

432.

These and other indicia of reliability are present here. The

informants’ reports themselves exhibit the informants’ “first-

hand knowledge” through “highly detailed descriptions of real-

world persons, places, and events.” Id. at 428-29, 432. The

informants gave the intelligence collectors quite specific

information about the cell’s method of operation, including the

type of explosive device the cell employed, the cell’s use of two

explosions to maximize casualties, the exact radio frequencies

it used in a specific sequence to detonate the two explosions, and

details about some of the cell’s intended targets. In addition, the

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reports originally contained as enclosures digital photographs of

objects provided by the informants to the collectors: an “[HIG]

explosive device,” IIR 6 044 0249 03 at 4 (J.A. 1729)

(Informant A report), and an “[HIG] detonation device,” IIR 6

044 0025 03 at 4 (J.A. 1724) (Informant B report).

Moreover, the informants’ reports are reinforced by

“verifiable, real-world” evidence, Barhoumi, 609 F.3d at 429.

In particular, the items seized from Khan’s home and shop

corroborate the informants’ statements by providing evidence of

Khan’s work for HIG. See supra Part I; infra Part II.B.6 Further

6

Khan disputes the district court’s factual finding that U.S. forces

participated in Khan’s capture and in the seizure of items from his

property. He contends that “the weight of the evidence shows that

[he] was captured by Afghan men on November 13, and turned over

to the Americans on November 15.” Pet’r Reply Br. 27. While there

is some inconsistency in the record as to the precise date of Khan’s

capture, the evidence does not support his claim that Americans were

not involved. Khan correctly notes that several government

documents list his date of capture as November 15, 2002. See

Detainee Assessment Brief (J.A. 1868); Interrogator Notes (Dec. 23,

2002) (J.A. 1878); Interrogator Notes (Dec. 24, 2002) (J.A. 1884).

Khan argues this shows that, while he was arrested on November 13,

he did not enter American custody until November 15. Other

government documents, however, state that he was captured by U.S.

forces on November 13, 2002, see, e.g., IIR 6 044 0493 03 at 2 (Nov.

27, 2002) (J.A. 1758); IIR 6 044 0734 03 at 6 (Dec. 28, 2002) (J.A.

1765), and the U.S. Army intelligence collectors aver that they

personally participated in his capture (though they do not say on what

date it took place), see Decl. of Intelligence Collector 1 at ¶¶ 57-61

(J.A. 1553-54); Decl. of Intelligence Collector 2 at ¶¶ 43-47 (J.A.

1578-79). Although Khan testified that he was arrested by Afghans,

the court was not required to credit that testimony, particularly given

that Khan’s story had shifted on that point. Compare CITF Report of

Investigative Activity at 1 (Feb. 17, 2003) (J.A. 1811) (telling

interrogators that he was captured by Americans), with CITF Report

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support comes from “consistencies” with Khan’s “own

statements,” Barhoumi, 609 F.3d at 429, 432, including his

admission to possessing some of those items. See supra Part I.

In addition, many of Khan’s interrogation statements confirm

that he was active in HIG during the jihad against the Soviet

Union in the 1980s. Khan, 646 F. Supp. 2d at 17; Pet’r Br. 11-

12; cf. Salahi v. Obama, 625 F.3d 745, 751 (D.C. Cir. 2010)

(noting that the detainee’s prior association was relevant to the

question of whether he was “part of” al Qaeda at the time of his

capture).

The collectors’ declarations further buttress the informants’

reliability. Khan argues that the fact that the collectors vouch

for the informants’ reliability cannot be sufficient. But the

collectors’ assessments are not the views of distant officials,

based on nothing more than second-hand reports. Rather, the

officers are experienced informant handlers who made their

judgments based on face-to-face conversations in Kandahar.

More important, their declarations explain, in detail, why they

assess the informants as reliable.

With respect to Informant A, the collectors note that he

spoke voluntarily, spontaneously, and in great detail. They state

that he was a member of the HIG cell who came forward

because he wanted to leave the cell as a result of an HIG attack

that killed some of his tribesmen. Decl. of Intelligence Collector

1 at ¶¶ 37, 39 (J.A. 1548-49); Decl. of Intelligence Collector 2

at ¶¶ 15-16 (J.A. 1569-70). This undercuts Khan’s speculation

that Informant A lied in order to collect a bounty or avenge a

grievance against him. The collectors were also able to

independently verify some aspects of Informant A’s story. See

Barhoumi, 609 F.3d at 428-29 (considering “independent

of Investigative Activity at 2 (Feb. 7, 2003) (J.A. 1809) (telling

interrogators that he was captured by Afghans).

-18-

verification” an important indicator of reliability). He provided

a detailed account of a previous attack on a U.S. patrol that was

corroborated by members of the patrol, and an explosives expert

confirmed that a device Informant A gave the collectors was part

of a binary detonator that an average civilian would not have

possessed. Decl. of Intelligence Collector 1 at ¶¶ 41-44 (J.A.

1549-50); Decl. of Intelligence Collector 2 at ¶ 15 (J.A. 1569-

70). The collectors also note that U.S. forces planned their

operation to capture Khan based on Informant A’s tip that Khan

would be at his shop on a certain day and time, and the tip

proved accurate. Decl. of Intelligence Collector 1 at ¶ 46 (J.A.

1551); Decl. of Intelligence Collector 2 at ¶ 45 (J.A. 1578); see

Parhat, 532 F.3d at 849 (suggesting that the government’s use

of documents “to take actions of consequence” is an indicator of

their reliability). Finally, one of the collectors states that after

Khan’s capture, IED attacks stopped in the area for about two

months. Decl. of Intelligence Collector 2 at ¶ 15 (J.A. 1570).

The collectors also judge Informant B to be reliable.

Although he obtained his information from a sub-source in his

neighborhood,7 he provided a detailed description of Khan’s

shop that was used to plan the capture, brought a detonation

device to one interview, and was motivated to come forward by

7

Khan contends that the information reported by informants A

and B “c[a]me from one source.” Pet’r Br. 48. While that may be

correct, see Decl. of Intelligence Collector 1 at ¶ 24 (J.A. 1544), we

need not pass on that assertion to decide Khan’s appeal. The relevant

question is not the number of independent sources but rather the

reliability of their evidence, which the government has sufficiently

established for all of the reasons discussed in this subpart. Nor does

Khan’s detention rest merely on the informants’ say-so, as we discuss

in the next subpart. While multiple independent informants would

certainly strengthen the government’s case, their absence would not

of itself render the informant reports unreliable.

-19-

Taliban atrocities and a desire to improve business security in

Kandahar. Decl. of Intelligence Collector 1 at ¶¶ 21-25, 32 (J.A.

1543-44, 1546-47); Decl. of Intelligence Collector 2 at ¶¶ 18-23

(J.A. 1571-73). Although the intelligence collectors have no

independent recollection of Informant C, they judge him reliable

as well because he provided highly detailed information that

matched the information from the other two sources. Decl. of

Intelligence Collector 1 at ¶¶ 50-56 (J.A. 1551-53); Decl. of

Intelligence Collector 2 at ¶¶ 26-32 (J.A. 1573-75). While

Informant C only repeated information he obtained from a sub-

source, the collectors say they do not think the sub-source was

either Informant A or Informant B, because if he had been they

would have noted that fact in their original report. Decl. of

Intelligence Collector 1 at ¶ 52 (J.A. 1552); Decl. of Intelligence

Collector 2 at ¶ 29 (J.A. 1574).8

Although Khan attacks the collectors’ credibility on a

number of fronts, we review a district court’s factfinding

regarding the credibility of a witness only for clear error, Awad,

608 F.3d at 8, and we find no such error here. Khan complains

that, because the collectors identify themselves with their

8

The collectors aver that their team’s “standard practice” was to

ask an informant about his sub-source, and if the sub-source was

someone with whom their team had already spoken, to note that fact

in the report. Decl. of Intelligence Collector 1 at ¶ 52 (J.A. 1552);

Decl. of Intelligence Collector 2 at ¶ 29 (J.A. 1574). In his reply brief,

Khan contends that this claim about the collectors’ standard practice

is “false and misleading” because it is assertedly inconsistent with

evidence concerning their practice regarding Informants A and B.

Pet’r Reply Br. 18. Even if we were to find such an inconsistency, we

would not regard it as sufficient to discard the declarations as

fabrications, as Khan suggests. But we need make no finding, one

way or the other, because arguments saved for reply briefs are waived.

See Students Against Genocide v. Dep’t of State, 257 F.3d 828, 835

(D.C. Cir. 2001).

-20-

alphanumeric codes and ranks rather than their actual names,

their statements are not subject to the penalty of perjury and

their oaths are meaningless. The district court properly rejected

this argument, as it finds no support in either case law or the

perjury statute, 18 U.S.C. § 1621. There is no serious dispute

that the alphanumeric codes refer to specific individuals who

could be identified for purposes of a perjury prosecution. Khan

also argues that because, as the district court found, the

declarations “inaccurately detail the timeline of when [one

informant] introduced the collectors to [another informant],”

Khan, 741 F. Supp. 2d at 16, everything in the declarations

should be disregarded as the product of wholesale fabrication.

Although the court recognized that the timeline inaccuracies

were disconcerting, it concluded that they did “not relate to the

collectors’ assessments of their sources’ reliability,” which were

“supported by the collectors’ independent verification of much

of the reported information.” Id. The district court’s “decision

to credit some of the statements of an individual but not others

is reviewed for clear error,” Awad, 608 F.3d at 8, and we find

none here.

In short, the reports sourced to the three informants,

supplemented by the Army intelligence collectors’ declarations,

are “a far cry from the ‘bare assertions’ deemed unreliable in

Parhat” because they “possess[] both endogenous and

exogenous indicia of reliability.” Barhoumi, 609 F.3d at 429.

We find no error in the district court’s determination that they

were reliable.

B

Khan also challenges the reliability of heavily redacted

intelligence reports that describe items recovered in searches of

his properties. Those reports are highly incriminating, both

because of the nature of the items themselves and because their

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presence on Khan’s properties further corroborates the

informants’ description of Khan’s role in the Kandahar HIG cell.

Most incriminating of all is the report that [Redaction 7]; see

also Redaction 1 (describing the seized items).

As we noted in Part I, at the habeas hearing the district court

expressed concern that the extensive redactions made it

impossible to determine the source and timing of the reports or

to assess their reliability. The court described one of the

documents as “perhaps the most redacted report in history,” and

pressed the government to take it “back to your client agencies”

for a declaration that might “confirm [its] legitimacy.” Hr’g Tr.

47-50 (May 13, 2010) (J.A. 47-50).

We agree with the district court that it is not possible to

identify sources or assess reliability based on the redacted

versions of the reports. But like the district court, we are not

limited to the redacted versions. As we discussed in Part I,

Khan’s counsel indicated that he would be satisfied if the

government gave the district court the unredacted reports to

review in camera. The court seconded this suggestion, and the

government obliged. The government also accepted the court’s

suggestion that it supplement the reports, which it did by

providing both the court and Khan’s counsel with a declaration

(still classified, but with less sensitive information) that

describes the reports’ sources.

This circuit has previously suggested and endorsed the kind

of search for reasonable alternatives that the parties and the

court undertook here. In Parhat, for example, we said that

where the source of classified information is “highly sensitive,

. . . it can be shown to the court (and CSRT) alone.” 532 F.3d

at 849; see Bismullah v. Gates, 501 F.3d 178, 180 (D.C. Cir.

2007) (“[T]he Government may withhold from counsel, but not

from the court, certain highly sensitive information.”), vacated

-22-

on other grounds, Gates v. Bismullah, 554 U.S. 913 (2008). We

also observed that “there may well be other forms in which the

government can submit information that will permit an

appropriate assessment of the information’s reliability while

protecting the anonymity of a highly sensitive source,” noting

both the federal courts’ practice in the Fourth Amendment

context and the authorization in the Classified Information

Procedures Act (CIPA) for using nonclassified substitutions in

criminal cases. Parhat, 532 F.3d at 849 (citing 18 U.S.C. App.

III, § 4). Similarly, in Al Odah v. United States, we again

suggested by analogy to CIPA that the government may offer

alternatives to providing classified information, as long as they

“suffice to provide the detainee with ‘a meaningful opportunity

to demonstrate that he is being held pursuant to the erroneous

application or interpretation of relevant law.’” 559 F.3d 539,

547 (D.C. Cir. 2009) (quoting Boumediene, 553 U.S. at 779).

The government contends that Khan waived any challenge

to the reliability of the intelligence reports. We disagree. It is

true that Khan’s opening appellate brief did not focus on the

reports’ reliability, but rather on his then-pending post-judgment

motion in the district court seeking unrestricted access to them.

It is clear, however that Khan’s ultimate goal was to “convince

this Court that the [district] court erred in concluding that [the

reports] have sufficient indicia of reliability.” Pet’r Br. 63.

After Khan filed his opening brief, the district court denied

his post-judgment motion, and Khan then filed a motion with

this court for unredacted access to the intelligence reports. In

the event we were to deny this motion, Khan requested that we

review the documents in camera to determine whether his

concerns had merit. See Pet’r Reply Br. 30. On April 8, 2011,

we directed the government to submit the unredacted documents

for our in camera review and deferred the motion for access.

After examining the documents, we have -- by separate order --

-23-

denied the motion for unredacted access on the ground that the

combination of the government’s declaration and the in camera

submission constitutes an “effectiv[e] substitute for unredacted

access” that ensures Khan the “meaningful review of both the

cause for detention and the Executive’s power to detain”

required by Boumediene. Al Odah, 559 F.3d at 547-48 (quoting

553 U.S. at 783).

Like the district court, our review of the unredacted

intelligence reports confirms that they “contain sufficient

indicia” of reliability, and that the government’s declaration (to

which Khan has access) accurately represents the information

contained in the reports. Khan, 741 F. Supp. 2d at 17. That

declaration states [Redaction 8]. It therefore adequately rebuts

Khan’s contention that [Redaction 9].

C

Khan further contends that, notwithstanding the evidence

described above, the district court should instead have credited

the testimony of Khan’s expert witness that there was no HIG

cell in Kandahar in 2002. The expert, Professor Brian Williams

of the University of Massachusetts, testified that it is “strange,

improbable, [and] unlikely” that HIG would have operated in

Kandahar in 2002 because it was a Taliban stronghold and far

from the home territory of HIG’s founder, Gulbuddin

Hekmatyar. Hr’g Tr. 110, 116-18 (May 13, 2010) (J.A. 110,

116-18). Khan argues that this testimony, together with Khan’s

own statements in interrogation reports, clearly establishes that

there was no HIG presence in Kandahar that year.

But the expert’s testimony did not remain so clear upon

cross-examination. In response to the government’s questions,

Williams conceded there was a “possibility” that HIG operated

in Kandahar in 2002, explaining that his original point was only

-24-

that the presence of a cell at that time did not “fit the overall

pattern that [he had] become used to.” Id. at 121, 123 (J.A. 121,

123). Williams also conceded that he did not have access to the

latest intelligence, had not traveled to Kandahar in 2002, and

was not familiar with Zabit Jalil, Khan’s uncle and the man

whom the informants and a Defense Department intelligence

report said commanded HIG’s Kandahar cell from Pakistan. Id.

at 123, 128 (J.A. 123, 128); see infra Part III. The district court

did not clearly err in finding that the government’s evidence,

including all that we have discussed above, outweighs Professor

Williams’ testimony and Khan’s statements.9

III

Finally, Khan challenges the district court’s finding that

HIG was an associated force of al Qaeda and the Taliban in

November 2002. To meet its burden, the government

introduced a classified expert declaration by [Redaction 10]. In

his detailed declaration, the expert stated that [Redaction 11].

He also stated that HIG “played an important and deliberate role

in supporting continued attacks against coalition and Afghan

forces throughout 2002.” Khan, 646 F. Supp. 2d at 19 (quoting

expert declaration).

In further support, the government proffered a Defense

Department intelligence report indicating that, in August 2002,

the Taliban and HIG opened a joint office in Pakistan to be led

by Khan’s uncle -- HIG commander Zabit Jalil -- and Taliban

commander Hafez Majid. IIR 6 440 0230 02 (Sept. 3, 2002)

(J.A. 1709-10). The purpose of the joint effort was to recruit

9

Nor did the court clearly err in failing to be swayed by the

memoir of a journalist who wrote that, in 2002, the Kandahar Chief of

Police told her HIG had no presence in Kandahar province, as far as

he knew. See Khan, 741 F. Supp. 2d at 11 n.11.

-25-

new members and raise money for attacks on Afghan and U.S.

security forces. Id. The government also introduced two public

documents to similar effect. See U.S. DEP’T OF HOMELAND

SEC., TERRORIST ORGANIZATION REFERENCE GUIDE (2004)

(“HIG has long-established ties with Bin Ladin. . . . HIG has

staged small attacks in its attempt to force US troops to

withdraw from Afghanistan, overthrow the Afghan Transitional

Administration (ATA), and establish a fundamentalist state.”)

(J.A. 2167); C ONGRESSIONAL R ESEARCH S ERVICE ,

AFGHANISTAN: POST-WAR GOVERNANCE, SECURITY, AND U.S.

POLICY 23 (2004) (noting that HIG “is allied with Al Qaeda and

Taliban remnants”) (J.A. 2159).

To dispute the government’s evidence, Khan offered the

testimony of his expert, Professor Williams. But that testimony

did not truly rebut the government’s position. Professor

Williams explained that, although al Qaeda and the Taliban were

enemies of HIG in the late 1990s, the launch of U.S. operations

in Afghanistan shortly after September 11 “change[d] the

game.” Hr’g. Tr. 106 (May 13, 2010) (J.A. 106). HIG’s leader,

Hekmatyar, returned to Afghanistan in early 2002 and “beg[an]

launching low-level insurgent attacks . . . in the northeast,” at

which time there was a burying “of the hatchet between the

Taliban and Hekmatyar.” Id. at 107. Williams acknowledged

that there was a “collaboration” between the groups, and while

he did not “know the specifics exactly of when” it began, he said

it would have been an “urgent matter” to Hekmatyar “in spring

of 2002.” Id. at 107, 125-26. Although Professor Williams also

testified that the collaboration “begins to get traction” in 2003

and 2004, that is not inconsistent with the conclusion that the

collaboration existed in 2002. Id. at 107. In light of this

-26-

evidence, the district court did not clearly err in finding that HIG

was associated with al Qaeda and the Taliban in late 2002.10

IV

For the foregoing reasons, we reject Khan’s challenge to the

district court’s findings that he was “part of” HIG and that HIG

was an “associated force” of al Qaeda and the Taliban. We

therefore affirm the court’s determination that Khan is lawfully

detained pursuant to the AUMF and its denial of Khan’s petition

for a writ of habeas corpus.

So ordered.

10

The district court did not, as Khan suggests, impose on him the

burden of disproving HIG’s association with al Qaeda and the Taliban.

Rather, having previously concluded that HIG was an associated force

in its decision denying Khan’s motion for judgment on the record, the

court found that Khan had “offered no reason for the Court to deviate

from its prior conclusion.” See Khan, 741 F. Supp. 2d at 8.