case: 10-5282 document: 1278437 filed: 11/19/2010 page: 1 · 2015-04-16 · farouk ali ahmed saif,...

Case: 10-5282 Document: 1278437 Filed: 11/19/2010 Page: 1

UNCLASSIFIED/IFOR PUBLIC RELEASE

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.

i UNCLASSIFIEDlIFOR PUBLIC RELEASE


UNCLASSIFIEOIIFOR PUBLIC RELEASE

~~Cft~!)'f'OPOftf'

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

ii UNCLASSIFIEOIIFOR PUBLIC RELEASE


UNCLASSIFIEDIIFOR PUBLIC RELEASE

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 .

... 111




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

SECRE'i)'NOfORt, IV




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

V



UNCLASSIFIEDItFOR PUBLIC RELEASE

8!CRM;'f,8'8ttN

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

SECRE'f;'f'fOrORN VI




SI!Cltt!T]NOPOltM

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

8!@ft!'f)1f8P8ftlf vii




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

viii UNCLASSIFIEDI/FOR PUBLIC RELEASE



GLOSSARY

AUMF Authorization for Use of Military Force

CSRT Combatant Status Review Tribunal

JA Joint Appendix

ix UNCLASSIFIEDIIFOR PUBLIC RELEASE



8FlCRFlif,':Pf@P@It14

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.

BE@ItE'f}sr"epelItI4 1




SE@ItE'f}lfepelt!f

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.

SI!@ItE')lfefeltlf 2




SELKE I}NOf!OKN

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).

8flCREifj'ftl8P8R:!f 3




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.

Sl3fltfYfj!feptUtlf 4

UNCLASSIFfEDIIFOR PUBLIC RELEASE



BrlCltl3if;'!fOPOltff

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.

819l!HBT;'N8F8RN 5



UNCLASSIFIEDIfFOR PUBLIC RELEASE

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.

6 UNCLASSIFIEDIfFOR PUBLIC RELEASE



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

Sr:CRE'flfcfOF'ORft 7




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.

BECRJ3'f/f:fOFORU 8

UNCLASSIFIEDIiFOR PUBLIC RELEASE



BECRE!)'NOFORU

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

SECftfYf/ffOPOItff 9




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

[' iSiRJiJ;<t ,gFgg)J

10 UNCLASSIFIEDIIFOR PUBLIC RELEASE



Bt3CItfl'f'j'U6f6IUt

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

8f:!CM5f}~.epeftI'




8ECItE'f,'flOF'Oltft

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.

SEettEt/her elth 12




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

SJ!@I{1!"/lf@)'6ftI4 13




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.

s!eIt!Y/f40rOftM

UNCLASSIFIEDIIFJ#PUBLIC RELEASE



81!@Ril5'i'ifiOF8R:N

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

Iii iiiiRIiii)t fiJFiJRN 15




Oi'iHii;3 lapaH) f

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."

SISCKIMYUOFORN

16 UNCLASSIFIED/IFOR PUBLIC RELEASE



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).



UNCLASSIFIEDflFOR PUBLIC RELEASE

Sifiiiti1)'HiFi'IU f

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.

SECRETfNOFORN 18




3!!!!ftE ,}nOI ORIC

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

81!1@R!8'f;1 '8'8RIf 19




S'BCR;grfNOPOR~l

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.

81!@REy;'ti8F8R!N




ilitillJjIl)'t fttFttllt f

("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

BECK!!)'f40f'OKf. 21

UNCLASSIFIEDfiFOR PUBLIC RELEASE



81!@R:I!5f;'U8F8R:H

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

OIIR.",•••F.R. f 22




SH@RHl)1 .epeRI.

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.

OI!@!ftI!'I)l .epeR! f 23



UNCLASSIFIED//FOR PUBLIC RELEASE

8E@IlE')lfe.eItIf

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

B1!@It1!'f;"4"epeftN 24



mailto:8E@IlE')lfe.eItIf

UNCLASSIFIEDffFOR PUBLIC RELEASE

5J!CKJ! IjNOPOI<I~

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

stEllE I, ICO'OIl! , 25



scq


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

SI!t:Rf!1}!fereItlf 26



4Q

UNCLASSIFIEDtlFOR PUBLIC RELEASE

SECRE'fjtiOFOAJi

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

BECItffi)'NOfiOitN 27



-UNCLASSIFIEDIIFOR PUBLIC RELEASE

" liQiRliT}NQPQRtJ

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

SECRETfNOFORfi 28



.....


gIIRDljll.'.R! ,

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

8B@IMR}¥f8f8B!f 29




8Fl@RFl't;~N8f8RN

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.

iiilIUPf;':t lij.ijRti 30




SECRETfNOFORN

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.

iIiCKiiY·HQPQIlP,

31 UNCLASS!FIEDIIFOR PUBLIC RELEASE


.....

UNCLASSIFIEDJJFOR PUBLIC RELEASE

SECltH't)'t40FORff

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

8E@ItM/NE9F'@ItI4 32

UNCLASSIFIEDJJFOR PUBLIC RELEASE


c


S!t!ft1!'flf40fOftf4

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.

Sf]CRE'f/ffOP6M4 33




!~Cft1!'f)l.OPOltI<J

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.

8ECRE.lti9~9I1:N



......


8t3CltrJ'f,,"@F@ItN

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.

IS EFlIRE'f;'N8IR8Rff 35.




8iilltii)'lHiF~Rt I

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




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

SIQUZIJltGI3ltIt 37



--~---------- -- - - -- - - ....


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

(JD8MJ31)1 liPiN f 38




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

HEeR!!;! f8FeJRlf 39




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

81!@RI!'ifjlf8f8RN 40




8!@ftJ!!'t;'N8P8ftN

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

SISCRIS'I';'fiOFORf:l 41

UNCLASSIFIEDJIFOR PUBLIC RELEASE



Sf:CltE'f/f,Of'OIU4

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

6!@MTj!tepeRIf 42




SrJCft::B'f)'fftlP6Rff

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

BfJCft'B!/fq6P6mf 43



....


8ECItE'flN0f8ItN

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.

BECltf'fft,O¥OlU. 44




8H@ItIS!'lffeJI'8ItN

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

8ECItE'f/f18'8Itf.. 45



--... ~.


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.

O£lh£I, II 6( 8ltIt 46



- ---- ----------_.-. _..__. - " .... ---. ..'~'--'


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.



«


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

SfCftf't)NOPOltN 48




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.

8f!!I!Rf!!'f)1'8'8ru, 49




SI!@ItI!if'/ff6P6ItPf

*****

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.

SISE!RlM/f'iOFORN 50



UNCLASSIFIEDIIFOR PUBLIC RElEASE

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

Jl!t!IIlET/1fe:P6RliI 51



....


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

BIU!ItRYjlf8.8RIf 52



case: 10-5282 document: 1278437 filed: 11/19/2010 page: 1 · 2015-04-16 · farouk ali ahmed saif,...

Documents