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CERTIFICATION AS TO PARTIES, RULINGS, AND RELATED CASES
Pursuant to Circuit Rule 28(a)(1), counsel for petitioner-appellant
certifies as follows:
Pa.rties and amici. Petitioners in the district court are Mahmoad Abdah,
Mahmoad Abdah Ahmed, Majid Mahmoud Ahmed, Mahmoud Ahmed,
Abdul Malik Abdul Wahhab AI-Rahabi, Ahmed Abdul Wahhab, Makhtar
Yahia Naji AI-Wrafie, Foade Yahia Naji AI-Wrafie, Aref Abd Rheem, Aref
Abd Al Rahim, Yasein Khasem Mohammad Esmail, Jamel Khasem
Mohammad, Adnan Farhan Abdul Latif, Mohamed Farhan Abdul Latif,
Jamal Mar'i, Nabil Mohamed Mar'i, Uthman Abdul Raheem Mohammad
Uthman, Araf Abdul Raheem Mohammed, Adil EI Haj Obaid, Nazem
Saeed EI Haj Obaid, Mohamed Mohamed Hassan Odaini, Bashir Mohamed
Hassan Odaini, Sadeq Mohammed Said, Abd Alsalem Mohammed Saeed,
Farouk Ali Ahmed Saif, Sheab Al Mohamedi, Salman Yahaldi Hsan
Mohammed Saud, and Yahiva Hsane Mohammed Saud AI-Rbuaye. The
district court's opinion pertained only to Yasein Khasem Mohammad
Esmail (ISN 522), who is the real party in interest and appellant in this
Court.
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The respondents in the district court, and the appellees in this Court,
are Barack Obama, President of the United States; Robert Gates, Secretary
of Defense; Admiral Jeffrey Harbeson, United States Navy, Commander,
Joint TaskForce-GTMO; and Army Col. Donnie Thomas, Commander,
Joint Detention Group, Guantanamo Bay.
There have been no intervenors or amici in the district court or this
Court.
Rulings under review. The rulings at issue in this appeal are the orders
and memoranda issued by Judge Henry H. Kennedy, Jr. on AprilS, 2010,
and June 14,2010, denying Petitioner-Appellant's habeas petition and his
motion for reconsideration. The AprilS, 2010 order and memorandum are
in the Classified Joint Appendix at JA 243 and JA 244, respectively. The
June 14,2010 order and memorandum are in the Classified Joint Appendix
atJA2S7.
Related cases. The case on review, D.D.C. Civil Action No. 04-1254, was
previously on review in this Court in Case Nos. 05-5115,05-5116,05-5127,
05-5224, OS-5236, and OS-5461. Two of those appeals, 05-5224 and OS-5236,
are pending, with the petitioner-appellant as an appellee, and concern the
notice the Government must provide before effecting transfer of detainees
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held at Guantanamo Bay. Two additional appeals in D.D.C. Civil Action
No. 04-1254 have been filed; those appeals, docketed in this Court as Case
Nos. 10-5235 and 10-5319, are pending and concern the lawfulness of the
detention of petitioners other than petitioner-appellant EsmaiI. The
petitioner-appellant is not aware of any case involving substantially the
same parties and the same or similar issues .
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TABLE OF CONTENTS
Certification as to Parties, Rulings, and Related Cases ............................... .i
Table of Contents ....................................................... " ....................................... iv
Table of Auiliorities .......................... , ................................... , ............................ vii
Glossary ....... '.1 ......... , ...... , ••••••••••••••••••••••••••• ,........................................................... ix
Introduction ......................................................................................................... 1
Statement of Jurisdiction ................................................................................... 3
Statement of Issues Presented for Review ..................................................... .4
1. Whether ilie district court committed reversible error in relying on petitioner-appellant's inculpatory statements, in view of evidence that these statements were the product of coercive abuse ....................................................................................... 4
2. Whether the district court committed reversible error in concluding that petitioner-appellant was" part of Al Qaeda," in view of evidence that petitioner-appellant did not knowingly associate with Al Qaeda or take orders from Al Qaeda and did not fight with Al Qaeda or against the United States. ", .. "",, .. ",. '" .............".......... " ................ ,..... , ......... " ........ ,..........................4
Pertinent Statutes and Regulations .................................................................. 5
Statement of Facts ............................................." ........................................................ 6
A. Esmail Left Yemen for Personal Reasons ......................................... 7
B. EsmaiI Traveled Throughout Afghanistan, Continuing His Religious Studies and Staying at Various Guesthouses ................. 7
C. Esmail Attended the Institute for Islamic/ Arabic Studies to Continue His Religious Training ....................................................... 9
D. Esmail Was Captured in 2001 and Abused While in Custody ...... 9
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E. The District Court Concluded that Esmail's Statements Were Voluntary and That He Was More Likely Than Not a Part of Al Qaeda........................................... " ..... ,................... " ............ ,..,.. ~ ......13
Summary of the Argument ........................................ : ...................................... 15
Standard of Review ............................................................................................ 17
Argument ............................................................................................................ 18
1. The district court's conclusion that ESMAIL'S INCULPATORY STATEMENTS WERE VOLUNTARY was CLEARLY ERRONEOUS and should be reversed .................................................... 18
A. The District Court Erred in Concluding That Esmail's Admissions Were Voluntary and Reliable ....................................... 19
1. The District Court Erred by Discounting Esmail's Allegations of Abuse Based on the Timing of Their Submission to the Court. .............................................................. 20
2. The District Court Misapplied the Totality of the Circumstances Test. ....................................................................... 26
3. The District Court Failed to Consider the Conditional Probability of Esmail's Evidence of Torture .............................. 31
II. The district court ERRED IN CONCLUDING that ESMAIL WAS "PART OF" AL QAEDA BECAUSE THE GOVERNMENT PRESENTED INSUFFICIENT EVIDENCE TO SUPPORT mIS CONCLUSION ............................................................................................ 35
A. The District Court Erred by Relying Exclusively on Esmail's Inculpatory Statements ........................................................................ 36
B. Even Under the Conditional Probability Analyses Endorsed in Al-Adahi, There is Insufficient Evidence to Establish That Esmail Was Part of Al Qaeda .............................................................. 38
1. The District Court Erred in Concluding That Esmail Knowingly Attended Training Provided by Al Qaeda or Stayed at Al Qaeda Guesthouses ................. : .............................. 38
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a) The Government Failed to Establisht That EsmaH Knowingly Trained at Al Qaeda-Sponsored Camps ......... 38
b) The District Court Erred in Concluding That EsmaH Knowingly Stayed at Al Qaeda Guesthouses .................... 43
2. The Government Presented No Evidence That Esmail Received Indoctrination at the Institute of Islamic/ Arabic Studies or Believed that the Institute's Leader Supported Osama bin Laden ........................................................................... 45
3. The Government Presented No Evidence to Support its Assertion That Esmail Fought at Tora Bora ............................. .47
4. The District Court Erred Even Under Conditional Probability Analysis, the Evidence Presented by the Government Fails to Establish That Esmail was Part of Al Qaeda ............................................................................................... 48
Conclusion ........ ,," ".... f" ••• "" •• ,," ••••• " •• ,' I •• " , ••• ~" ., ••••• " •••••••••• ~ ••• tI •••••••••• , •••••••• ,," •••••• " ••• t ••• " •• 51
Certificate of Compliance .................................................................................. 52
Certificate of Service .......................................................................................... 52
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TABLE OF AUTHORITIES
Cases
*Abdah V. Obama, 708 F. Supp. 2d 9 (D.D.C. 2010) ............................................................. 29,30
*AI-Adahi v. Obama, 613 F.3d 1102 (D.C. Cir. 2010) ........................................ 16, 19, 31, 35,48, 49
Al-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010), rehearing en bane denied .............................. 17
Al Harbi v. Obama, 2010 U.S. Dist. LEXIS 59666 (D.D.C. May 13, 2010) ........................... 25,36
AI-Harbi v. Obama, 2010 WL 2398883 (D.D.C. May 13, 2010) .................................................... 36
Al Odah v. United States, 559 F.3d 539 (D.C. Cir. 2009) .................................................................. 17,37
Al Odah v. United States, 648 F. Supp. 2d 1 (D.D.C. 2009) ................................................................... 36
*Anam v. Obama, 696 F. Supp. 2d 1 (D.D.C. 2010) ............................... 20, 28, 29, 30,41,42,43
Barhoumi v. Obama, 609 F.3d 416 (D.C. Cir. 2010) ........................................................................ 17
*Boumediene v. Bush, 553 U.S. 723 (2008) ..................................................................................... 3, 25
Clewis v. Texas, 386 U.S. 707 (1967) ......................................................................................... 30
DeBerry v. Portuondo, 403 F. 3d 57 (2d Cir. 2005) ............................................................................. 17
Gineo v. Obama, 626 F. Supp. 2d 123 (D.D.C. 2009) ......................................................... 42, 48
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BHERHY/Ne,eRff
Hatim v. Obama, 677 F. Supp. 2d 1 (D.D.C. 2010) ....................................................... 29,42,48
Khalifh v. Obama, 2010 WL 2382925 (D.D.C. May 28, 2010) .................................................... 36
Mohammed v. Obama, 689 F. Supp. 2d 38 (D.D.C. 2010) ............................................... 19, 20, 27, 28
Salahi v. Obama, No. 05-CV-0569, 2010 WL 1443543 (D.D.C. Apr. 8,2010) ....................... 20
Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ......................................................................................... 27
Smith v. United States, 348 U.S. 147 (1954) ......................................................................................... 36
Wong Sun v. United States, 371 U.S. 471 ..................................................................................................... 36
Statutes, Rules, and Regulations
28 U.S.C. § 1291 ....................................................................................................... 3
28 U.S.C. § 1331 ....................................................................................................... 3
*28 U .S.C. § 2241 ..................................................................................................... 3
28 U.S.C. § 22S3(a) .................................................................................................. 3
*Authorization for Use of Military Force, Pub. 1. No. 107-40, 115 Stat. 224 .............................................................. 5, 17
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GLOSSARY
AUMF Authorization for Use of Military Force
CSRT Combatant Status Review Tribunal
JA Joint Appendix
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INTRODUCTION
Undisputed evidence establishes, and the district court found .. that
petitioner-appellant Yasein Khasem Mohammad Esmail suffered abuse
and mistreatment following his capture in 2001 and while in United States
custody in Afghanistan and at Guantanamo Bay. Esmail was also subject
to numerous interrogations during this time. In an attempt to stop the
abuse or in fear of further abuse, Esmail made various statements to his
interrogators. For the past six years, he has repeatedly and consistently
renounced these admissions and stated that he made them to avoid abuse.
Despite finding that Esmail suffered abuse and mistreatment while in
United States custody, see JA 249,253, the district court concluded that
Esmail's inculpatory statements were voluntary and reliable. JA 263.
Further, despite stating that it found "nothing probative about any
strategic decision an attorney makes," the district court discounted various
of Esmail's allegations of torture because his counsel included them in a
second, more detailed declaration. JA 260. As explained in Section I below,
the district court's refusal to credit the torture allegations in Esmail's
second declaration, and his conclusion that Esmail's inculpatory statements
were voluntary and reliable, was dearly erroneous and should be reversed.
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The district court also erred by concluding that Esmail was 1/more
likely than not" a part of Al Qaeda. Once Esmail's involuntary statements
are disregarded, the Government's remaining evidence fails to establish
that Esmail knowingly associated with Al Qaeda members, took orders
from Al Qaeda members, or fought with Al Qaeda. As explained in
Section II below, it was error for the court to conclude that the Government
met its evidentiary burden of proving that Esmail may lawfully be
detained. The Court should vacate the judgment below and order that the
habeas petition be granted and that petitioner be released from detention.
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STATEMENT OF JURISDICTION
The district court had subject-matter jurisdiction over this petition for a
writ of habeas corpus pursuant to 28 U.S.C. §§ 1331 and 2241. See
Boumediene v. Bush, 553 U.S. 723 (2008).
The district court issued an order and memorandum on April 8, 2010,
denying the petition for a writ of habeas corpus. JA 243,244. Petitioner-
appellant filed a motion for reconsideration, which the district court denied
in an order and memorandum dated June 14, 2010. The petitioner-
appellant filed a timely notice of appeal on August 12, 2010. JA 291.
The district court's order of April 8,2010, constitutes a final judgment
disposing of petitioner-appellant's claims. This Court has appellate
jurisdiction over the final judgment and order denying the petition
pursuant to 28 U.S.C. §§ 1291 and 2253(a).
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STATEMENT OF ISSUES PRESENTED FOR REVIEW
1. Whether the district court committed reversible error in relying on
petitioner-appellant's inculpatory statements, in view of evidence that
these statements were the product of coercive abuse.
2. Whether the district court committed reversible error in concluding
that petitioner-appellant was 1/part of Al Qaeda," in view of evidence that
petitioner-appellant did not knowingly associate with Al Qaeda or take
orders from Al Qaeda and did not fight with AI Qaeda or against the
United States.
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PERTINENT STATUrES AND REGULATIONS
1. Section 2(a) of the Authorization for Use of Military Force, Pub. L.
107-40, § 2(a), 115 Stat. 224 (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.
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STATEMENT OF FACTS
The petitioner-appellant, Yasein Khasem Mohammad Esmail, was
raised in a small village near Ibb in southern Yemen. JA 928. Esmail has
seven siblings, and his family operated a sheep farm. ld. As a child, Esmail
worked on the farm in the evenings after school. ld.
Esmail attended high school in Ibb at a branch of the Furqan Institute.
ld. Furqan is approved by the Yemen Government, and many graduates
go into the military or teaching. Esmail's studies focused on the Arabic
language and Muslim religion. ld. He planned to attend a university and
become a teacher of Arabic. fd.
In about 1998, Esmail graduated from high school and continued to
help his family on the farm. fd. He also earned some money working in
Taiz, which is approximately 35 miles south of Ibb. See JA 1638. In late
1999, Esmailleft Yemen to travel to Afghanistan.
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A. Esmail Left Yemen for Personal Reasons.
As the district court acknowledged, Esmailleft Yemen because he was
in love with a girl and wished to marry, but the wedding could not be
arranged. See 266,927,2081. He traveled from Ibb to another part of
Yemen and then on to Afghanistan. See id.
The Government claimed that Esmail went to Afghanistan at the behest
of Abu Khulud, an Al Qaeda member. Esmail maintained that he did not
go to Afghanistan for this reason, and the district court credited Esmail's
statements that he II did not leave Yemen with the intent to fight the United
States." JA 267. The district court accepted the Government's argument
only that EsmaiI traveled to Afghanistan with the assistance of Abu
Khalud, who was a member of A1 Qaeda. JA 265. The court did not find
that Esmail knew of Abu Khalud/s Al Qaeda membership. See id.
B. Esmail Traveled Throughout Afghanistan, Continuing His Religious Studies and Staying at Various Guesthouses.
It is undisputed that, while in Afghanistan, Esmail traveled to Kabul
and Kandahar, staying in guesthouses and continuing his religious
education. JA 929-30; see also JA 247. Esmail has consistently maintained
that the guesthouses he visited were (lopen to anyone," and that he u.(never
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stayed in any guesthouse that [he] knew was run by Osama bin Laden or al
Qaeda.'" JA274 (quotingJA 935,869). As the court acknowledged, the
Government's assertion that Esmail stayed at AI Qaeda guesthouses
(/comes largely from Esmail's own admissions," -several of which he
recanted in 2004. JA 273. Based on Esmail's statements to interrogators at
Bagram, however, where Esmail suffered abuse, and on unrelated evidence
regarding Esmail's travel after 9/11, the court inferred that he visited at
least one Al Qaeda guesthouse. JA 274.
Esmail has also stated that he spent about four weeks at the Al Farouq
camp and took classes in weapons training at the camp. JA 930. Later, he
returned to Al Farouq to receive additional training. JA 930-31. Esmail has
consistently maintained that he did not know at the time that the camp was
associated with Osama bin Laden or AI Qaeda; he learned of this
association about five to seven months after leaving the camp. JA 930.
Based on the Government's evidence that Al Farouq was associated with
Al Qaeda, however, the district court concluded that at the time of his
training, Esmaillikely had conversations with other trainees regarding the
ca~p's affiliation. JA 273.
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C. Esmail Attended the Institute for Islamic/Arabic Studies to Continue His Religious Training.
While in Afghanistan, Esmail attended the Institute for Islamic/ Arabic
Studies in Kandahar for several months. Esmail has consistently stated
that he believed the Institute to be funded by the Saudis, and that he
attended the Institute to continue his religious education. See JA 928, 929~
30; JA 870; JA 879. Further, the district court acknowledged that Esmail
II may have believed he was receiving standard religious instruction," and
did not find Esmail's attendance at the Institute particularly probative of
whether Esmail became part of Al Qaeda. See JA 277. Nevertheless, the
court cited Esmail's attendance at the Institute as a factor supporting the
Government's assertion that Esmail was part of Al Qaeda. See JA 285.
D. Esmail Was Captured in 2001 and Abused While in Custody.
Prior to September 11,2001, Esmailhad gotten over the girl he had
wanted to marry and decided to return to Yemen. JA 931. He traveled
from Kandahar to Kabul to meet a Pakistani friend's sister, whom he hoped
to marry. [d. He arrived in Kabul before the bombing of that city began.
[d. Esmail maintains that before he could arrange travel back to Yemen, he
was kidnapped at a marketplace in Kabul and taken to mountains near the
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Afghanistan-Pakistan border. Id. There, the kidnappers picked up two
other Yemenis, and brought the three captives to a prison in Jalalabad. JA
931-32. Northern Alliance interrogators told Esmail that they had paid the
kidnappers $5,000 to hand him over to them, and that the Northern
Alliance would sell him to the Americans. JA 931.
The Government asserted that Esmail traveled on his own from
Kandahar to Kabul, and on to Tora Bora, where he fought with Al Qaeda.
The district court found that the Government was "unable to point to a
piece of evidence directly supporting the contention that Esmail fought for
Al Qaeda at Tora Bora ...." JA 279 (emphasis added). Further, the district
court acknowledged that /I [t]here is no indication in the record ... that
[Esmail] received any order to go to Kabul or went with the intent to fight."
JA 281. The court also noted that Esmail has since 2004 (when he appeared
before the Combatant Status Review Tribunal) consistently denied Ii some
of the statements on which respondents rely" - such that he stayed at a
guesthouse in Jalalabad. JA 282. Finally, the court credited Esmail's
assertion that he left Kandahar libecause of bombing and fear for his
safety," and that Esmail desired to return to Yemen. JA 284. The district
court concluded, however, that because Esmail had not yet left Afghanistan
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at the time he was captured, and because he had previously received
weapons training, "[ilt is reasonable to infer that he would have made use
of that training," and that he more likely than not fought at Tora Bora. JA
284-85.
Following his capture, EsmaiI was held in Kabul, where he was
transferred to United States custody and interrogated. JA 931-32. From
Kabul, he was taken to Bagram Air Force Base, where he and others were
held JA 932~ At Bagram, Esmail was subject to abuse,
including being held in cold coinditions and being kicked and beaten by
U.S. soldiers. JA 932. He was subsequently turned over to the United
States military in Kandahar Id. Esmail
suffered more severe abuse here- for example, guards stripped him naked
and refused to let him wash before prayer. Id. In the spring of 2002, Esmail
was transferred to Guantanamd Bay, where he suffered injuries as a result
of his treatment on arrival. JA ~32-33. During the initial months and years
of his detainment, Esmail was iIherrogated over 100 times. Id. He made
various statements to stop the abuse or in fear of further abuse-including
that he had stayed at a guesthot(se in Jalalabad, that he took weapons 'i
training for military action in CItechnya, and that he had seen Osama bin
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Laden. JA 933-34. He repeated these statements throughout his early
interrogations.
In 2004, Esmail appeared before the Combatant Status Review
Tribunal. JA 934. There, he asked the Tribunal members whether he
would be tortured any more. See id. Assured that he would not be
tortured, Esmail recanted many of his earlier statements and told the truth:
the same story he has been telling for the past six years. See id. He denied
having seen Osama bin Laden or staying at a guesthouse in Jalalabad, or at
the " Azam" guesthouse. JA 934-35. Other facts, however, he continued to
freely admit, even if such facts could potentially be used against him and if
the Government's only evidence consists of Esmail's own admissions. For
example, he has continually acknowledged that he took weapons classes at
Al Farouq, and that he learned of the camp's Al Qaeda affiliation five to
seven months after leaving the camp. See, e.g., JA 930. Esmail has also
stated that he stayed at several guesthouses throughout Afghanistan. See
JA 935.
Esmail has been detained at Guantanamo Bay since 2002.
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SECRI!'ifltiOfO~i
E. The District Court Concluded that Esmail's Statements Were Voluntary and That He Was More Likely Than Not a Part olAI Qaeda.
Esmail filed a petition for a writ of habeas corpus in July 2004. The
district court conducted a hearing on March 9-11, 2010, at which Esmail
and the Government submitted declarations and other exhibits. The
parties submitted briefs before. the hearing. There was no live testimony.
The district court considered whether the Government could show that
Esmail's admissions in 2001 and 2002 were voluntary, given Esmaili s
claims that these some of these admissions were the product of abuse. The
court found that Esmail had suffered mistreatment in U.S. custody, but
discounted his more serious allegations of abuse and concluded that his
will was not overborne and that his statements were reliable.
The district court also made several findings and observations
regarding Esmaili s actions from the time he left Yemen through his capture
in Afghanistan. Specifically, the district court found that Esmail had left
Yemen for personal reasons, and did not intend to fight against the United
States. JA 266-67. The court also acknowledged Esmail's consistent
statements that he never knowingly stayed at an Al Qaeda guesthouse or
attended training provided by Al Qaeda. JA 271. The court noted that
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SECRETfNOFORn
Esmail may have "believed he was receiving standard religious
instruction" at the Institute for Islamic/ Arabic Studies. JA 277.
Finally, the district court found that the Government had presented no
specific evidence that Esmail ever fought with Al Qaeda. JA 279. The court
concluded, however, that the Government's allegations regarding Esmail's
activities in Afghanistan made it IImore likely than not" that Esmail was
part of AI Qaeda. Specifically, the court relied on Esmail's own statement
that he took weapons classes at Al Farouq (while discounting Esmail's
statement that he did not know of AI Farouq's affiliations), and stated that
it found Esmail/s continued presence in Afghanistan after 9/11
II suspicious.'1 JA 283. The court also cited Esmail's attendance at the
Institute for Islamic/ Arabic Studies and his alleged capture near Tora Bora
as supporting its conclusion that Esmail was part of Al Qaeda and thus
lawfully detained. JA 285.
The court denied the writ and denied reconsideration. This appeal
followed.
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SUMMARY OF THE ARGUMENT
I. Undisputed evidence establishes, and the district court found, that
Esmail suffered abuse and mistreatment while in United States custody in
Afghanistan and at Guantanamo Bay. Esmail was also subject to numerous
interrogations during this time. In an attempt to stop the abuse, Esmail
made various inculpatory statements. For the past six years, since receiving
the CSRT Tribunal's assurances that he would not be tortured in the future,
Esmail has repeatedly renounced these statements and stated that he made
them to avoid abuse.
Despite finding that petitioner-appellant suffered abuse and
mistreatment while in U.S. custody, see JA 249, 253, the district court
concluded that Esmail's inculpatory statements were voluntary and
reliable. JA 263. The court reached this conclusion by considering each
piece of evidence in isolation, rather than considering whether all of the
evidence, taken together, makes it more likely than not that Esmail was
abused. And despite stating that it found IInothing probative about any
strategic decision an attorney makes," the district court discounted
Esmail's most serious allegations of abuse as late-made embellishments
because his counsel first presented them in a second, more detailed
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declaration in 2010. JA 260. For these reasons, the district court's
conclusion that Esmail's inculpatory statements were voluntary and
reliable was clearly erroneous and should be reversed.
II. The Govenunent failed to establish that Esmail at any time was
"part of Al Qaeda." Specifically, the district court found that Esmailleft
Yemen for personal reasons, and did not intend to fight against the United
States. JA 266-67. The court also acknowledged that Esmail has
consistently maintained that he never knowingly stayed at an Al Qaeda
guesthouse or attended training provided by AI Qaeda. JA 271. The court
accepted that Esmail may have "believed he was receiving standard
religious instruction" at the Institute for Islamic/ Arabic Studies, and that
the Government presented no specific evidence that Esmail ever fought
with Al Qaeda. JA 277, 279. Even under the conditional probability
analysis endorsed by this Court in Al-Adahi v. Obama, 613 F.3d 1102 (D.C.
Cir. 2010), the Government failed to present sufficient evidence to meet its
burden of proof. Therefore, it was clearly erroneous for the district court to
conclude that Esmail was "part of Al Qaeda."
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STANDARD OF REVIEW
This Court has stated that it 1/ review[s) the district court's findings of
fact for clear error, DeBerry v. Portuondo, 403 F.3d 57, 66 (2d Cir. 2005), its
habeas determination de nova, id., and any challenged evidentiary rulings
for abuse of discretion, Al Odah v. United States, 559 F.3d 539, 544 (D,C. Cir.
2009)." AI-Bihani v. Obama, 590 F.3d 866, 870 (D.C. Cir. 2010). Whether the
Government has proven alleged conduct by a detainee is a factual question
reviewed for clear error. Barhoumi v. Obama, 609 F.3d 416,423 (D.C. Cir.
2010). Whether a detainee's conduct justifies detention under the
Authorization for Use of Military Force, Pub. L. 107-40, §2(a), 115 Stat. 224
(2001) (AUMF), is a legal question that the court reviews de nova. [d. (citing
AI-Bihani, 590 F.3d at 873 n.2).
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ARGUMENT
The district court's decision was based on two fundamental mistakes.
First, the district court erred in fmding that key statements by Esmail were
voluntary and reliable, in view of the undisputed evidence that Esmail was
abused while in custody. Secondl the district court erred in concluding
that the Government established that Esmail was"more likely than not'l a
part of Al Qaeda, in light of insufficient evidence showing that Esmail
knowingly trained or associated with Al Qaeda or ever fought with Al
Qaeda. Because of these errors, this Court should reverse the judgment
below and grant the writ.1
I. THE DISTRICT COURT'S CONCLUSION THAT ESMAIL'S INCULPATORY STATEMENTS WERE VOLUNTARY WAS CLEARLY ERRONEOUS AND SHOULD BE REVERSED.
Undisputed evidence establishes, and the districtcourt found, that
1 Esmail also maintains legal positions that were rejected by this Court in Al-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010), rehearing en bane denied, 2010 WL 3398392 (Aug. 31, 2010), including that he cannot be detained absent evidence of direct participation in hostilities against the United States or absent notice that the United States had entered the conflict and an opportunity to disengage. These positions are not elaborated further here but are preserved for possible en banc or Supreme Court review.
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Esmail suffered abuse and mistreabnent following his capture in 2001 and
while in United States custody in Afghanistan and at Guantanamo Bay.
Esmail was subject to numerous interrogations during this time. In an
attempt to stop the abuse or avoid further abuse, EsmaiI made various
statements, which for the past six years he has repeatedly renounced.
Despite finding that Esmail suffered abuse and mistreatment while in
U.S. custody, see JA 249,253, the district court concluded that Esmail's
inculpatory statements were voluntary and reliable. JA 263. The district
court reached this conclusion by failing to credit Esmail's Second
Declaration based on the timing of its submission; by misapplying the
"totality of the circumstances" test to determine whether Esmail's
statements were voluntary; and by failing to consider the conditional
probability of the evidence presented by Esmail. See Al-Adahi v. Obama, 613
F.3d 1102 (D.C. Cir. 2010). For these reasons, the district court's conclusion
was in error and should be reversed.
A. The District Court Erred in Concluding That Esmail's Admissions Were Voluntary and Reliable.
Statements that are the product of torture are unreliable. JA 248 n.3; see
also Mohammed v. Obama, 689 F. Supp. 2~ 38 (D.D.C. 2010). For the past six
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years, Esmail has consistently stated that he suffered severe abuse
following his capture, and that he made various statements to avoid
further abuse. The Government failed to present evidence sufficient to
rebut Esmail's claims. Nevertheless, the district court found that the
Government met its burden of showing that Esmailis statements were
voluntary. This conclusion was in error and should be reversed.
1. The District Court Erred by Discounting Esmail's Allegations of Abuse Based on the Timing ofTheir Submission to the Court.
To establish that a statement is reliable, the Government must show
that the statement was offered voluntarily and was not the product of
abuse. E.g., Salahi v. Obama, No. 05-CV-0569, 2010 WL 1443543, at *4
(D.D.C. Apr. 8,2010) ("[I]t is the government's burden to demonstrate that
a particular statement was not the product of coercion, and that it has other
indicia of reliability.") (citing Anam v. Obama, No. 04-1194,2010 WL 58965,
at *5 (D.D.C. Jan. 6,2010») (emphasis added); see also Mohammed v. Obama,
689 F. Supp. 2d 38 (D.D.C. 2010). In this case, the district court repeatedly
acknowledged that, based on Esmail's own statements and on evidence
regarding general practices at the Bagram and Kandahar detention
facilities, "it is likely some abuse of Esmail occurred." JA 249; see also id.
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("There is evidence in the record to support the contention that Esmail was
subjected to mistreatment while in United States custody,"); JA 253 (I/[A]t
some point during his time in U.S. custody, Esmail was mistreated.").
Further, the court noted that the Government failed to disprove "Esmail's
allegations that he was first subject to abuse in Afghani custody." JA 263
n.15. Nevertheless, the court found that Esmail" did not endure the sev~re
abuse he describes," JA 263, and that it therefore would not disregard his
early statements.
The district court reached this conclusion in part by failing to credit the
more detailed allegations of abuse contained in Esmail's Second
Declaration. See JA 1872, JA 905. Esmai1's counsel obtained and submitted
his Second Declaration in March 2010 to address reports and other
evidence that the Government had first disclosed only days earlier. See JA
1862; JA 542·56. EsmaiI's counsel explained that they chose initially to
present Esmail's allegations of abuse in general terms rather than relying
on specific and graphic details. They offered Esmail's more detailed
version of events only once it became clear, less than two weeks before the
merits hearing, that the Government intended to attempt to rebut Esmaili s
allegations of abuse. Despite acknowledging this tactical decision by
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Esmail's counsel-to submit a detailed declaration responding to the
Government's newly-disclosed evidence in early 2010-the district court
discredited Esmail's allegations because they were not submitted as part of
his First Declaration in 2009. This decision was clearly erroneous and
should be reversed.
Esmail filed two declarations with the district court. Both declarations
described the abuse he received while in U.S. custody. The First
Declaration, submitted in January 2009, described the serious abuse EsmaiI
suffered in Mghan and U.S. detention, including being held in severe cold,
witnessing abuse of other detainees, and suffering interrogations at
gunpoint. See JA 927. One year later, in January 2010, the Government
produced for the first time a series of't'oT,,",'t"t-Cl
See JA 852-65; JA 847. These reports, which summarize alleged statements
by Esmail at the Bagram detention facility in early 2002, now form the core
of the Government's case. In February 2010, the Government also
responded for the first time to the allegations of abuse that Esmail had been
making for at least the past six years. To rebut Esmail's allegations, the
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Government submitted excerpts from his medical records that tended to
minimize the significance of Esmail's injuries, 2 and declarations.
conditions at
the Bagram and Kandahar detention facilities. JA 1260, 1292.
Esmail's counsel consulted with him immediately after these eleventh-
hour Government disclosures. During these meetings, counsel obtained
from Esmail a declaration that permitted them to respond to the
Government's allegations. See JA 1862. As the district court noted, this
second declaration "describes Esmail's allegations of abuse in greater
detail." JA 250. Like the First Declaration, it described the conditions of
Esmail's detention at these facilities, including the extreme cold he
suffered, the details of his interrogations, and the false statements he made
to avoid further abuse. E.g., JA 1878-79; JA 1880. It also discussed specific
details of his abuse at Bagram. See JA 1882-87. This discussion included an
accmmt of his first interrogation at Bagram, where he was thrown into a
ditch and Ifcovered with filth." JA 1884. Further, the Second Declaration
2 These records are incomplete, because they contain no information prior to April 2002, approximately five months after the start of Esmail's detention. See JA 1353.
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provided additional detail on Esmail's injuries, induding the broken nose
he suffered when he was transferred to U.S. custody at Bagram. JA 1882
83. The Second Declaration was submitted on March 5, 2010, only days
after the Government's disclosures.
The district court acknowledged that the Second Declaration provided
more detail on Esmail's abuse. JA 250. The court did not find any
inconsistencies between the First and Second Declarations. Further, the
court stated that it found "nothing probative about any strategic decision
an attorney makes in representing a client and [would] not discredit
Esmail's statements for this reason." JA 260.
After making this statement, however, the district court inconsistently
discredited the allegations in the Second Declaration because they did not
appear in Esmail's First Declaration, submitted in 2009. The court found
that the additional details in the Second Declaration II serve to undercut the
credibility of Esmail's allegations of torture," and found it 1/reasonable to
infer based on the late addition of allegations ... that Esmail ...
embellished his statements" for advantage in the litigation. Id. But the fact
that Esmail made additional allegations in response to his attorneys'
questions in an attempt to respond to the Government's evidence
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allegations that were in fact more detailed than previous reports - does not
support the inference that these allegations were fabricated.
Indeed, such an inference departs from established evidentiary
standards within this Circuit, specifically within the context of
Guantanamo habeas proceedings. Courts have relaxed evidentiary
standards in such hearings, including permitting parties to supplement the
record, to ensure that all relevant evidence is before the court. See, e.g.,
Boumediene v. Bush, 553 U.S. 723 (2008); Al Harbi v. Obama, 2010 U.S. Dist.
LEXIS 59666, 33-34 (D.D.C. May 13, 2010) (permitting respondents to
submit additional evidence "because of the importance of ruling on the
habeas petitions of Guantanamo Bay detainees based on all of the available
evidence"). Further, a detainee's right to respond to the allegations against
him is a Constitutional guarantee. As the Supreme Court held in
Boumediene, 553 U.S. at 786 (citations omitted): "Federal habeas petitioners
long have had the means to supplement the record on review, even in the
postconviction habeas setting. Here thatopportunity is constitutionally
required."
Finally, in this case the district court permitted the Government to
respond to Esmail's Second Declaration by submitting supplemental
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tprovided
additional information on interrogation practices at the Bagram and
Kandahar facilities. JA 1856, 1859; see JA 255-56. These declarations
provided additional detail regarding the alleged intake procedures and
detention conditions at each facility. Plainly the Government could and
should have produced the original and supplemental declarations.
earlier, because Esmail has
stated since 2004 that he was abused at these facilities. Yet the district court
did not draw any adverse credibility inferences from the Government's
last-minute decision to submit these declarations in response to Esmail's
Second Declaration in 2010. In short, the court applied a different standard
to Esmaili s detailed allegations, which he made in response to the
Government's pre-trial evidence. This decision was clearly erroneous and
should be reversed.
2. The District Court Misapplied the Totality ofthe Circumstances Test.
In addition to failing to properly credit Esmail's evidence, the district
court erred as a matter of law by misapplying the II totality of the
circumstances" test to conclude that Esmail's statements were voluntary.
See JA 262-63 & n.1S. Under this test, courts are to consider factors such as
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the IIage, education, intelligence, and mental health of the witness; whether
he has received advice regarding his Constitutional rightsi the length of
detention; the 'repeated and prolonged nature of the questioning'; and the
'use of physical punishment such as the deprivation of food or sleep.'"
Mohammed, 689 F. Supp. 2d 38, 62 (D.D.C. 2010) (quoting Schneckloth v.
Bustamonte, 412 U.S. 218, 226 (1973». The district court here stated that it
would consider the passage of time between confessions and whether there
was a change in the place of interrogation or identity of the interrogators.
See JA 263 n.15 (citing Mohammed, 689 F. Supp. 2d 38). The court erred as a
matter of law, however, in applying these factors.
The court noted that the Government failed to disprove "Esmail's
allegations that he was first subject to abuse in Afghani custody," JA 263
n.15, and that Esmaillikely suffered subsequent abuse in U.S. custody. See
JA 249,253. The court nevertheless concluded that Esmail's statements at
Bagram were voluntary because they likely fell between these two periods
of abuse. Specifically, the court concluded that Esmail's abuse in Afghan
custody was "less relevant ... than abuse by American guards" because
the statements at issue were made after Esmail's transfer to American
custody - thus, after a change in the place of location and identity of
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interrogators. JA 263 n.1S. (citing Mohammed, 689 F. Supp. 2d 38). Further,
EsmaiI made the statements soon after arriving at Bagram, when there had
been "little time for [him] to be affected by mistreatment in U.S. custody
such that his statements became unreliable." JA 263.
This conclusion misapplies existing law on determining whether a
statement was voluntary, and ignores crucial facts of Esmail's detention
and abuse. First, as the district court acknowledged, the government does
not even show lion what date Esmail arrived at Bagram." JA 262 n.14.
Therefore, it is impossible to know how much time elapsed "in between"
Esmail's periods of abuse. Further, it is well established that statements
may be tainted if made soon after abuse, even if there was an intervening
change in location or identity of interrogators. In Anam v. Obama, 696 F.
Supp. 2d I, 7 (D.D.C. 2010), the district court found that the Government
failed to establish that the petitioner's twenty-three statements to
interrogators were untainted, stating that it should /I come as no surprise
that during Petitioner's first Guantanamo interrogation, which was
conducted by a United States official on the day Petitioner arrived at
Guantanamo, he was gripped by the same fear that infected his
Afghanistan confessions." The court further held that earlier abuse may
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taint a detainee's subsequent statements not only because of fear of
additional abuse but also because" the interrogators at Guantanamo relied
on,or had access to, Petitioner's coerced confessions from Afghanistan."
ld. Similarly, in Abdah v. Obama, 708 F. Supp. 2d 9, 14 (D.D.C. 2010), the
court held that the statements of two detainees were unreliable "because
there is unrebutted evidence in the record that, at the time of the
interrogations at which they made the statements, both men had recently
been tortured." And in Hatim v. Obama, 677 F. Supp. 2d 1, 12 (D.D.C. 2010),
the district court reasoned that:
[W]hen ... the government presents no evidence to dispute the detainee's allegations of torture and fails to demonstrate that the detainee was unaffected by his past mistreatment, the court should not infer that the prior instances of coercion or torture did not impact the accuracy of the detainee's subsequent statements.
Applying this reasoning, the court in Hatim concluded thatthe petitioner's
"unrefuted allegations of torture undermine[d] the reliability of the
statements made subsequent to his detention at Kandahar." ld.
This same reasoning applies here. As the district court itself noted in a
previous order I evidence of Esmail/s abuse is "relevant to the reliability of
the later statements by [him] that the government does rely on to justify his
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detention./I Order Granting in Part and Denying in Part Petitioners'
Consolidated Motion for Additional Discovery, Docket No. 547 at 12 Guly
6,2009). It is undisputed that Esmail suffered abuse and mistreatment in
Afghanistan. Further, Esmail has stated that he continued repeating false
statements because he feared punishment if he retracted them. JA 934. Just
as the petitioner in Anam remained /I gripped by the same fear" that
infected his initial false confessions in Afghanistan, so too did Esmail
remain fearful upon his arrival at Bagram, notwithstanding the change in
location. Anam, 696 F. Supp. 2d at 7; see also JA 934, JA 1268. Therefore, the I
district court erred by failing even to consider whether Esmail's
undisputed abuse while in Afghan custody tainted his early statements.
Cf Abdah, 708 F. Supp. 2d at 16~17 (analyzing whether the alleged torture
was IIsufficiently attenuated" from the statement at issue to remove the
taint, and conduding that there had been no "break in the stream of events
... sufficient to insulate the statement from the effect of all that went
before") (quoting Clewis v. Texas, 386 U.S. 707, 710 (1967»). The district
court's failure to consider this issue constitutes reversible error.
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3. The District Court Failed to Consider the Conditional Probability of EsmaWs Evidence ofTorture.
Finally, the district court's conclusion that the Government had shown
that Esmail's statements were voluntary was erroneous, because the court
considered each piece of evidence on this issue in isolation, rather than
considering the evidence as a whole. This Court should hold that, given
the totality of the evidence presented by Esmail, it is more likely than not
that his"will was overborne" and that his early admissions are unreliable.
In AI-Adahi v. Obamtl, 613 F.3d 1102 (D.C. Cir. 2010), this Court
endorsed the use of conditional probability in evaluating evidence in
habeas proceedings. In reversing the district court's grant of AI-Adahi's
habeas petition, the court found that Al-Adahi was "more likely than not a
part of Al Qaeda," id. at 1106, and that the district court had failed to
appreciate" conditional probability analysis," id. at 1105. The Court stated
that "[t]he key consideration is that although some events are independent
... , other events are dependent: 'the occurrence of one of them makes the
occurrence of the other more or less likely.'It [d.. The Court noted that Jlif a
particular fact does not itself prove the ultimate proposition," the next fact
may not be "evaluated as if the first did not exist." [d.
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The concept of conditional probability endorsed by the Court in AI-
Adahi equally applies to Esmail's allegations of abuse. Esmail presented
numerous pieces of evidence regarding his abuse, and the Government's
evidence often corroborated Esmail's claims. Considered together, these
facts sufficiently increase the probability that Esmail's allegations of abuse
are true.
For the past six years, Esmail has consistently stated that he suffered
abuse in the early months of his detention. See JA 932. He frequently has
spoken of the /I extremely cold conditions," daily interrogations, religiOUS
abuse, and violent treatment that broke his nose and injured his shoulder.
E.g., JA 932-33; JA 1872. In response, the Government submitted evidence
that failed to rebut Esmail's claims, much less meet the Government's
burden of proof in establishing that Esmail's statements were voluntary.
The Government offered only three pieces of evidence: the testimonyll
and Esmail/s medical records. .
Various components of these records actually corroborated Esmail's
allegations: for example, the medical records indicated that Esmail's
shoulder was severely injured and required treatment for ten days. See JA
259. Further, the Government's witnesses confirmed that detainees were
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held in cold conditions, JA 249, and that detainees were IIoccasion[aUy] ...
questioned while naked." JA 256.
Esmail also offered additional evidence which, given his consistent
statements of abuse, make it more likely than not that his allegations are
true. First, once Esmail appeared at his CSRT hearing, and was promised
by the Tribunal that he would no longer be tortured, he immediately
recanted several of his previous statements. See JA 1891-92. Since that
date, he has maintained that these previous statements were the product of
abuse. He has consistently admitted to other actions, however-such as
attending weapons classes at Al Farouq - despite the negative inferences
that could be drawn from such actions.3 Further, Esmail has demonstrated
how the substance of various of his false statements carne from knowledge
he had gleaned from conversations with other detainees while in custody.
He also submitted reports corroborating practices of coercive interrogation
and torture at U.S. detention facilities in Bagram and Kandahar. See JA
1893; JA 1902; JA 1909; JA 2035. In addition, Esmail argued that most of the
3 As shown below, the evidence regarding Esmail's attendance at Al Farouq is insufficient to justify his detention.
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abuse he had suffered would not have been apparent in medical reports
that dated from five months after the start of his detention. See JA 259.
Instead of considering these facts together, however, the district court
found that each of Esmail's allegations failed to support his claim of abuse.
For example, the court discounted Esmail's accounts of a broken nose and
injured shoulder because the portions of the medical records released by
the Government did not note these injuries with specificity. See JA 259-60.
The court held that Esmaili s evidence of abuse at the Bagram and
Kandahar detention facilities was insufficient because the Government
presented statements of two officials who said they had not witnessed
torture. See JA 254-55. And as explained above, the court failed to credit
Esmaili s Second Declaration, to consider the effect of his undisputed abuse'
on his early inculpatory statements, and to consider that, since appearing at
a neutral Tribunal in 2004, Esmail has consistently denied certain of his
early statements. These facts, taken together, make it more likely than not
that Esmail suff~red abuse in Afghan and U.S. custody that led him to
make false inculpatory statements. The district court erred in concluding
that the Government met its burden of showing that Esmail's early
statements were voluntary, and its decision should be reversed.
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II. THE DISTRICT COURT ERRED IN CONCLUDING THAT ESMAIL WAS lipART OF" AL QAEDA BECAUSE THE GOVERNMENT PRESENTED INSUFFICIENT EVIDENCE TO SUPPORT THIS CONCLUSION.
The district court committed reversible error in concluding that Esmail
was "part of AI Qaeda." JA 285. It is well established that, when a
detainee makes inculpatory statements in a coercive environment, those
admissions cannot support his detention unless they are sufficiently
corroborated. Here, the district court at times relied exclusively on
statements made by Esmail during the first months of his capture, despite
acknowledging that Esmail suffered mistreatment and abuse during that·
time. Once Esmail's early admissions are properly discounted, it becomes
clear that the Government failed to meet its burden of proof. Instead of
presenting credible evidence to support Esmail's detention, the
Government relied on generalized statements summarizing the thoughts
and actions of other detainees. Even under the conditional probability
analysis endorsed by this Court in AI-Adahi, 613 F.3d 1102, this evidence
cannot support Esmail's continued detention. The contrary conclusion by
the district court should be reversed.
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A. The District Court Erred by Relying Exclusively on Esmail's Inculpatory Statements.
It is well established that"an accused may not be convicted on his own
uncorroborated confession." Wong Sun v. United States, 371 U.S. 471,488...89
(1963); Smith v. United States,348 U.S. 147,152 (1954). If an admission is
"made after the fact to an official charged with investigating" the alleged
crime, and"embraces an element vita to the Government's case,"
corroboration is required. Smith, 348 U.S. AT 155,157 n.4. As the Supreme
Court has held, even though involuntary confession are not admissible, the
corroboration rule /lis warranted because the accused may be unable to
establish the involuntary nature of his statements." See id. at 153.
Courts have applied this rule in the context of Guantanamo habeas
proceedings. For example, in Khalijh v. Obama, 2010 WL 2382925, at *5
(D.D.C. May 28, 2010), the court rejected the Governinent's allegation that
the petitioner had been in Tora Bora in part because the Government failed
to provide evidence corroborating the petitioner's statements on this point.
Similarly, in AI-Harbi v. Obama, 2010 WL 2398883, at *10 (D.D.C. May 13,
2010), the court rejected the allegation that the petitioner was a Taliban
fighter because the Government presented insufficient evidence to
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corroborate statements to this effect. Cf At Odah v. United States, 648 F.
Supp. 2d I, 15-18 (D.D.C. 2009) (denying the petitioner's habeas petition in
part because independent evidence corroborated his admissions).
In this case, the district court relied exclusively on Esmail's own
inculpatory statements to establish certain key points. Specifically, the
court relied Esmail's statements-many of which he later recanted - to
conclude that Esmail stayed at Al Qaeda guesthouses. JA 274. On this
point, the court noted that /I again, [the Government's] evidence comes
largely from Esmail's own admissions./I Id. The Court also relied
exclusively on Esmail's statements to find that he traveled to Afghanistan
with the assistance of Abu Khalud. JA 268. Esmail/s later recanted this
statement and explained that he learned about Abu Khalud while in
Afghanistan. Id. Finally, despite acknowledging that during Esmail's
interrogations he IIcited danger as an explanation for his movements/' and
despite crediting Esmail's assertion that he wanted to return to Yemen, the
district court relied on certain of Esmail's early statements to find that he
willingly traveled to Jalalabad .. JA 284. This finding in tum led the court to
infer that Esmaillikely stayed at an AI Qaeda guesthouse there, and that he
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likely engaged in fighting at Tora Bora, thus justifying his detention. See JA
274 n. 21,284-85.
It was error for the district court to rely exclusively on Esmail's
inculpatory statements regarding these key points. In addition, as shown
below, once these involuntary and uncorroborated statements are
discounted, it is clear that the Government failed to meet its burden of
justifying Esmail's detention. For this reason, the district court's
conclusion was clearly erroneous and should be reversed.
B. Even Under the Conditional Probability Analyses Endorsed in AIAdahi, There is Insufficient Evidence to Establish That Esmail Was Part ofAl Qaeda.
1. The District Court Erred in Concluding That Esmail Knowingly Attended Training Provided by Ai Qaeda or Stayed at Al Qaeda Guesthouses.
a) The Government Failed to Establisht That EsmaiI Knowingly Trained at Al Qaeda-Sponsored Camps.
Esmail has never stated that he knowingly attended any training
sponsored by Al Qaeda. Instead, from the time of his initial capture
through the present, he has consistently stated that he attended two
weapons training sessions at Al Farouq, but that he learned of the camp's
affiliation with Al Qaeda only five to seven months after completing the
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classes .. Further, the Government presented no evidence at the merits
hearing that Esmail knew of Al Farouq's affiliation with AI Qaeda, that he
left Al Farouq with the intent to fight, or that he ever used his weapons
training in Afghanistan. Still, the district court inferred from Esmail's
attendance at Al Farouq that he "knowingly received instruction from Al
Qaeda." JA 273. This conclusion was clearly erroneous and should be
reversed.
It is undisputed that, while in Afghanistan, Esmail attended two
weapons training courses at the Al Farouq camp. JA 930. As the district
court acknowledged, Esmail has consistently stated that he did not know
that the camp had anything to do with Osama bin Laden or al Qaeda. JA
930j JA 271. For example, Esmail maintained this in a statement in
February 2003, at his CSRT proceeding, and in his 2009 declaration. See JA
899; JA 1273; JA 930. Esmail has repeatedly stated that he learned that Al
Farouq was affiliated with Al Qaeda approximately five to seven months
after leaving the camp. See JA 930.
The Government presented no credible evidence that Esmail
knowingly took training from Al Qaeda. Instead, the Government
presented two interrogation reports summarizing statements by other
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detainees. The district court relied on one of these summaries, which
reported that ISN 244, another detainee, stated that lUaU books used in the
Faruq camp were marked with I Al Qaida.'" JA 271 (quoting JA 963). But
as the district court acknowledged, ISN 244/s statement addressed another
AI-Farouq camp at a different time and location-not the camp at the time
and location that Esmail attended. The Government presented no evidence
that ISN 244 knew Esmail, or that he and Esmail used the same books. The
alleged markings on books at another location is not probative of Esmail's
knowledge or awareness. Further, none of the Government's reports
contradict Esmail's statement that he learned of Al Qaedal s involvement
with the camp only months after he left it.
The district court also failed to properly consider evidence submitted
by Esmail, including statements by another detainee, that attendance at Al
Farouq was open to "everyone." See JA 938; JA 1745. Instead, the court
stated that it found "no need to resolve the general question of who
attended Al Qaeda training camps" and that"[0 lnly EsmailI s a'ctions and
knowledge are significant to the outcome of this case." JA 272. But the
court then contradicted its own reasoning-concluding' that it is "simply
not believable that at no time during Esmail's [training] did the subject of
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against whom or for what purpose the trainees might fight arise." JA 273.
It was impermissible for the court to infer what types of discussions
occurred at the camp, let alone to infer that Esmail must have been party to
discussions that make him subject to indefinite detention at Guantanamo,
despite making no findings of /I who attended" the camp. In addition, the
court failed to address EsmailIs statements that trainees did not discuss
politics, that he was not asked at the camp whether he belonged to Al
Qaeda or the Taliban, and that no one tried to recruit him into either group.
JA 930-31. Even accepting the court's inference as correct-that trainees
did discuss potential purposes for fighting - this inference fails to establish
"Esmail's actions and knowledge," see JA 272. At most, it suggests that
Esmail at some point learned of the purposes for which other trainees were
training, and conceivably that some of them supported Al Qaeda. But that
conclusion, which is the most the evidence could support, is insufficient to
justify Esmail's detention.
Finally, the district court erred by relying on Anam v. Obama, 696 F.
Supp. 2d 1 (D.D.C. 2010) for the proposition that someone who spent time
at Al Farouq '''must have known that al-Farouq was an al-Qaida weapons
training camp.'" JA 273, n.20 (quoting Anam, 15). In Anam, the court found
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that the petitioner was training at aI-Farouq shortly before September 11
and, when informed that the camp was closing because it might be bombed
by United States forces, he decided to stay with his al Qaeda trainers,
following them around Afghanistan, traveling with al Qaeda members and
living with al Qaeda members. Id. at 14. The court also found that the
petitioner was "within or under the command structure of the
organization" based on his actions after leaving the camp. Id. at 15 (" When
camp ended, he follow~d camp instructors around Afghanistan. The
instructors gave him orders, and he obeyed. When told to grab a rifle, he
picked one up out of fear that if he disobeyed he would get in trouble.").
And the court noted that the petitioner in Anam remained associated with
Al Qaeda through the moment of his capture. Id. at 14. It is also well
established that merely attending a training camp or learning about
weapons does not make one "part of" Al Qaeda. See, e.g., Hatim v. Obama,
677 F. Supp. 2d 1, 13 (D.D.C. 2010); Ginco v. Obama, 626 F. Supp. 2d 123, 129
(D.D.C.2009).
Unlike the petitioner in Anam, Esmailleft Al Farouq long before there
was any indication that the United States would become involved in a
conflict in Afghanistan. There is no evidence that Esmail was subordinated
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to any kind of command structure upon leaving Al Farouq, or that he ever
carried a weapon outside the training camp. In fact, he appears-even
according to the Government's account-to have engaged in training
without ever following through on that training or putting it to use. As a
result, Anam is inapposite on this issue.
b) The District Court Erred in Concluding That Esrnail Knowingly Stayed at At Qaeda Guesthouses.
Esmail has consistently denied staying at any guesthouse in
Afghanistan that J/[he] knew was run by Osama bin Laden or al Qaeda." JA
935. The district court erred by inferring, based primarily on admissions
made by Esrnail that were the product of abuse, that Esmail stayed at one
Al-Qaeda-sponsored guesthouse and "more likely than not" stayed at
other Al Qaeda guesthouses. JA 274. This conclusion should be reversed.
It is undisputed that Esmail stayed at various guesthouses as he
traveled throughout Afghanistan. Esmail has stated that he believed these
guesthouses were public guesthouses, and that guests" could come and go
as [they] pleased." JA 929. He also presented expert evidence th~t such
guesthouses are common fixtures in Afghanistan and elsewhere in the
Muslim world, and are analogous to youth hostels. JA 1647-48; see also JA
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1662. Such guesthouses often provided shelter, food, and even clothing for
foreign visitors. JA 929.
The district court cited no credible evidence showing that Esmail
knowingly stayed at an Al Qaeda guesthouse. Instead, the court drew
inferences from statements that Esmail made while suffering or fearing
abuse - statements that he recanted in 2004. These statements are not
reliable. Further, even if the statements were not the product of abuse, they
fail to establish that Esmail knowingly stayed at Al Qaeda guesthouses.
The district court first relied on Esmail's statement that he stayed at a
guesthouse near to the "Haji Habash Mosque." JA 273-74; see JA 869.
Esmail stated that this guesthouse "was open to anyone who needed a
place to stay." JA 869; see JA 274. But the Government asserted without
basis that Esmail was referring to the Haji Habash guesthouse, which was
allegedly run by Al Qaeda. See JA 954; JA 273. The Government did not
state when Esmail allegedly stayed at this guesthouse, how long he stayed,
or whether anyone saw him there. See JA 304..05. Yet the district court
unjustifiably concluded, based on Esmail's reference to the Haji Habash
Mosque, that /lEsmail stayed at the Haji Habbash guesthouse." JA 274.
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The court also impliedly relied on statements that EsmaiI made, under
fear of torture, that he stayed at the Azam guesthouse in Kabul and the
Najma AI-Jihad guesthouse in Jaialabad. JA 273-74; see JA 871. As the
court acknowledged, Esmail "specifically disavow[ed]. having stayed at
any guesthouse in Jalalabad," and maintained that he made this statement
"to avoid torture./I JA 274 (quoting JA 935). Further, the Government
presented no evidence other than Esmail's statements that he stayed at
either guesthouse. Because these statements were unreliable, the district
court's reliance on them was in error, and its conclusion was an abuse of
discretion.
2. The Government Presented No Evidence That Esmail Received Indoctrination at the Institute of Islamic/Arabic Studies or Believed that the Institute's Leader Supported Osama bin Laden.
Consistent with his interest in religious studies and Arabic language,
Esmail attended the Institute for Islamic/ Arabic Studies in Kandahar for
several months. The undisputed evidence shows that Esmail believed the
Institute to be funded by Saudis, and thought he was receiving standard
religious instruction. See JA 928, 929-30; JA 870; JA 879. The district court
credited this evidence, concluding that /lEsmail may have believed he was
receiving standard religiOUS instruction," and that, even if the Institute did
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espouse radical beliefs, "study of particular beliefs is not equivalent to the
. adoption of those beliefs." JA 277. Therefore, the court concluded that
Esmail's attendance at the Institute was not particularly probative. See id.
Still, the district court went on to conclude that Esmail's attendance at
the course was evidence that he was a "part of" Al Qaeda. See JA 285. The
court reached this conclusion even though the Government failed to
present any evidence concerning Esmail's beliefs or actions at the Institute.
The Government presented only three general reports asserting that the
Institute was funded by Osama bin Laden, and that its leader, Abu Hafs,
was a member of al Qaeda. See JA 989, 983, 1004; JA 276. These reports,
even if true, are not probative of Esmail's knowledge about the Institute.
Esmail has consistently stated that he did not know whether the Institute
was supported by Osama bin Laden. JA 879; JA 277. He never described
any personal contact with Abu Hafs, and the Government did not allege
any such contact.4 There was no basis for the district court to conclude that
Esmail/s attendance at the Institute for religious training indicated an
4 Esmail also presented evidence, including an excerpt from the 9/11 Commission Report, that Abu Hafs disagreed with the 9/11 attacks and opposed Bin Laden. See, e.g., JA 276; JA 995.
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allegiance to Al Qaeda.
3. The Government Presented No Evidence to Support its Assertion That Esmail Fought at Tora Bora.
As the district court acknowledged, I/[r]espondents are unable to point
to a piece of evidence directly supporting the contention that Esmail fought
for Al Qaeda at Tora Bora .. .." JA 279 (emphasis added). Because the
Government presented no credible evidence that Esmail fought at Tora
Bora, it was clear error for the district court to conclude that he did.
In reaching its conclusion, the district court relied exclusively on
statements that Esmail made shortly after his capture regarding his travels
in Mghanistan, see JA 283-84, as well as the district court's own inferences
about Esmail's travels. First, the court found it 1/ suspicious" that Esmail
remained in Afghanistan after 9/11, despite noting Esmail's consistent
statements that he was attempting to leave: Esmail stated that he left
Kandahar after 9/11 to travel to Yemen via Kabul, and that this route took
him away from the Taliban stronghold of Kandahar. See JA 283. It also
was clearly erroneous for the court to conclude that Esmail was 1/ traveling
with fighters to the site of a battle," JA 284, when, at the time Esmail began
his trip, there was no battle site to which Esmail could have been traveling.
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Further, the district court erred by inferring that merely because Esmail
had received weapons training, "[i]t is reasonable to infer that he would
have made use of that training while at the location of a battIe." ld. This
conclusion contradicts the numerous cases holding that one does not
become "part of" Al Qaeda merely by attending a training camp or
learning about weapons. See, e.g., Hatim v. Obama, 677 F. Supp. 2d 1, 12
(D.D.C. 2010); Ginco v. Obama, 626 F. Supp. 2d 123, 129 (D.D.C. 2009). The
Government has presented no evidence that Esmail ever carried a weapon
outside of a training camp, or put his training to any use. Therefore, it was
error for the district court to treat Esmail's prior training as evidence that
he took up arms at Tora Bora.
4. The District Court Erred Even Under Conditional Probability Analysis, the Evidence Presented by the Government Fails to Establish That Esmail was Part ofAl Qaeda.
Under the standard articulated by this Court in Al-Adahi, 613 F.3d 1102,
the district court's analysis appears sound: for example, noting that it was
"necessarily dealing in probabilities," the court found that because Esmail
likely went to Tora Bora, he was "more likely than not an Al Qaeda
fighter." JA 285. But conditional probability analysis does not give district
courts license to pile inference upon inference to credit the Government's
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SECRE't)'NOPORN
allegations. Even under this analytical approach, the Government must
provide sufficient evidence to establish each fact cited by the court. Mere
assertions, unsupported by sufficient evidence, do not, taken together,
make it more likely than not that the Government's allegations are true.
Here, the district court erred by relying on Esmail's uncorroborated
statements - statements that Esmail renounced once he appeared before the
CSRT in 2004. The Government's remaining evidence-that another
detainee saw books stamped with"Al Qaeda" at a different training camp;
that the Institute for Islamic/ Arabic Studies allegedly espoused racial
beliefs; and that Esmail was captured with two other Yemenis, neither of
whom saw Esmail fight, is insufficient to meet the Government's burden.
In contrast to the petitioner in AI-Adahi, Esmail never met with Osama bin
Laden, had no connection to Al Qaeda leadership, does not state that he
visited an a1 Qaeda guesthouse, and did not display a II deep knowledge of
the operation of Al Farouq." AI-Adahi, 613 F.3d at 1108. The evidence here,
even when considered as a whole, fails to establish that Esmail more likely
than not was part of Al Qaeda. Therefore, it was reversible error for the
district court to conclude otherwise.
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*****
There is no basis for concluding that Esmail was part of Al Qaeda. The
court's findings were clearly erroneous, and the decision below should be
reversed.
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0081t11)' f1F81t[ ,
CONCLUSION
This Court should reverse the judgment below and direct the district
court to grant the writ and order Esmail/s return to Yemen.
Respectfully submitted,
/ s LBrian Foster October 20,2010 ALAN A. PEMBERTON
BRIAN FOSTER
DANIELLE S. BARBOUR COVINGTON & BURLING LLP
1201 Pennsylvania Ave., NW Washington, DC 20004 (202) 662-6000 phone (202) 662-6291 facsimile
DAVID H. REMES APPEAL FOR JUSTICE 1106 Noyes Drive Silver Spring, MD 20910 (202) 669-6508 phone
Counsel for Petitioner-Appellant .Yasein Khasem Mohammad Esmail
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CERTIFICATE OF COMPLIANCE
I certify that the foregoing brief of the petitioner-appellant complies
with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) and contains
9,562 words, excluding the portions of the brief excluded by Fed. R. App. P.
32(a)(7)(B){iii) and D.C. Cir. R. 32{a)(1).
Is/ Brian Foster
CERTIFICATE OF SERVICE
I certify that true and correct copies of the foregoing classified brief of
the petitioner-appellant were $erved today upon counsel of record for the
Respondents listed below via the Court Security Officer.
Robert M. Loeb Anne C. Whitaker Attorneys, Appellate Staff Civil Division, Room 4250 U.S. Department of Justice 950 Pennsylvanian Ave., N.W. Washington, D.C. 20530-0001
Dated: October 20,2010
/sl Brian Foster
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