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UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 


ABDUL QADER AHMED HUSSEIN,
Petitioner,

v.
BARACK H. OBAMA,
President ofthe United States, et a1.,
Respondents.

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Date --,~,"",..a:;;,~:;..::;;...t-:.--Civil Action No. 05-2104 (RBW)

MEMORANDUM OPINION
Currently before the Court is Abdul Qader Ahmed Hussein's (ISN 690)1 petition for a
writ of habeas corpus, in which he argues that he should be released from the United States
detention facility in Guantanamo Bay, Cuba because his detention is not statutorily authorized
under the Authorization for the Use of Military Force (the "AUMF"), Pub. 1. No.1 07-40, ? 2(a),
115 Stat. 224 (2001). Petition for Writ of Habeas Corpus ("Pet.") ~ 3. The government opposes
the petitioner's habeas petition on the grounds that, among other things, he "traveled to
Afghanistan to join al-Qaida, the Taliban, [lor associated forces," thereby rendering him
detainable under the AUMF. Joint Pre-Trial Statement ("Joint Stmt.") at I. After carefully
considering the evidence presented by both parties and the arguments of counsel during the
merits hearing that commenced on May 25,2010, and concluded on September 1,2010, as well
as the various documents that have been fi1ed by the parties in this matter and the exhibits

I "ISN" is the acronym for "Internment Serial Number." AI-Harbi v. Obama, Civil Action NQ. 05-2479 (HHK),
2010 WL 2398883, at *3 n.2 (D.D.C. May 13,2010). Each of the detainees currently housed at Guantanamo Bay
has been assigned an ISN. Id.

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attached to these filings, 2 the Court concludes for the following reasons that the petitioner's
petition for a writ of habeas corpus must be denied.

I.

Background3

The petitioner is "a native of AI-Mukullah, Yemen." Joint Stmt. at 2,12. Around the
time when he was finishing his "last year in middle school," kL. at 14: 14, when he was
approximately fourteen-years old, id. at 19:22, the petitioner contends he desired to leave Yemen
and travel to Pakistan, see id. at 14:22-24 (testimony by the petitioner that he "traveled to
Pakistan" after he "got the results" of his final exams in September 1999 and "knew [he had]
passed"), because (1) he wanted "to learn and memorize the Koran," 5/26110 Hr'g Tr. at 16:7, (2)
he wanted "to learn about ... computers," id. at 16:8, and (3) he wanted "to get involved in some
rescue activities," such as "helping the Afghani poor people," id. at 16:9-10. Ofthose three
reasons, the petitioner's "main goal was to memorize the Holy Koran," 5/26/10 Hr'g Tr. at
27: 11-12, because, according to the petitioner, ''memorizing the Koran is something that is
highlyappreciated[;] ... it teaches you to have a good moral character," and "[i]t teaches you to
treat people well," id. at 27:20-23. Furthermore, the petitioner reasoned that because he did not
"speak the Pakistani language, ... [he WOUld] have ... a lot of time ... to learn the Koran." Id.
at 17: 14-15. With regard to his alleged desire to assist poor Afghanis, the petitioner states that
his interest in such charitable work stemmed from his childhood experience, when he "used to

In addition to the evidence and arguments presented by the parties at the merits hearing, the Court considered the
following documents in reaching its decision: (1) the government's Factual Return; (2) the petitioner's Traverse; and
(3) the parties' Joint Pre-Trial Statement ("Joint Stmt.").
2

3 This section provides a summary of the petitioner's admissions that were submitted to the Court through his
testimony at the merits hearing, the undisputed facts set forth in the parties' Joint Pre-Trial Statement, and his two
declarations, which were designated as Exhibits 200 and 201 in the Petitioner's Exhibits Binder. As discussed
below, however, the Court does not credit all of these admissions and, in fact, believes that many of these
admissions constitute "false exculpatory statements" that will be weighed against the petitioner. ~ infra at 18.

2

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help [his] father ... work [at a] charity organization" and assist "Somali refugees" by
"distributing food[ and] clothes" to those individuals. Id. at 16: 15-22. As to his interest in
computers, the petitioner viewed Pakistan as a place to pursue his studies because it "was a very
cheap country and[,] ... from [a] technological point of view, it[ is] more advanced than
Yemen." Id. at 17:10-12.
Despite his interest in traveling to Pakistan, the petitioner did not conduct any research
about the country. Id. at 18:3-4. According to the petitioner, the travel habits of individuals in
the Middle East differ from those of Americans; specifically, the petitioner claims that unlike
"the culture ... in America," where people "plan ... what they are going to do" prior to
traveling, the petitioner asserts that people from "Yemen and [other] Arab countries" do not
engage in such planning; rather, they simply "take enough money to [travel]," and they bring
with them any necessary phone numbers and identification.

at 18:7-17. And, while the

petitioner had interest in being involved with charitable projects in Pakistan, he did not conduct
any research on any organizations; rather, he contends he planned to locate "humanitarian ... or
human rights organizations" that assisted Afghani refugees once he arrived in Pakistan. Id. at
18:22-25. The petitioner did discuss his travel plans with his father, who "accepted" and
"welcomed" the idea of the petitioner traveling to Pakistan. Id. at 17: 18-23. Thus, U[i]n
[September) 1999," id. at 14:6-8, the "[p]etitioner traveled from Sana'a, Yemen to Karachi,
Pakistan," Joint Stmt. at 12. The petitioner's father "paid for the trip," 5/26/10 Hr'g Tr. at 17: 17,
and thereafter provided the petitioner with money while he was living in Pakistan, Pet'r's
Exhibits, Ex. 200 (First Declaration of Ahmed Abdul Qader Hussein ("First Pet'r's Dec!.">>

1 4.

Upon arriving in Karachi, the petitioner decided "to do some sightseeing." Id. at 24:25-
25: I. He testified he spent two weeks in Karachi, id. at 23:21-22, before deciding to travel to

3

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Quetta, id. at 25:2-3, where he understood that a charity devoted to assisting Afghani refugees
was located, id. at 26:21-22. He then took a group bus from Karachi to Quetta, id. at 26:24,
where he "liv[ed] in the Jama'at [a]l-Tabligh[i] mosque" for the three-month period he was
Hving in Quetta, Perr's Exhibits, Ex. 200 (First Declaration of Abdul Ahmed Qader Hussein
("First Pet'r's Decl.">>) ~ 17,5/26/10 Hr'g Tr. at 27:2-3; see also 5/26/10 Hr'g Tr. at 27:5
(testimony by the petitioner that he stayed at "a mosque known by the name of the Tablighi").
While in Quetta, the petitioner asserts that he wanted to learn about "how [he] could join .
. . a charity organization.',4 Id. at 29:6-7. The petitioner would ask questions of "people that
would come into the mosque," id. at 29: 17-18, about "ways to start working and helping Afghani
refugees," id. at 29:6-7. From those conversations, he leamed that the standard ofliving "in
Afghanistan ... was much cheaper than Pakistan." Id. at 29:9-10. Thus, the petitioner was told
that "if [he] wanted to help Afghani refugees, ... it would be much better" to provide such
assistance in Afghanistan. s Id. at 29: 11-13.
One of the individuals he spoke with about his desire to assist Afghani refugees was an
individual by the name of Sayed Khan, see Joint Stmt. at 12 ('"Before crossing the [PakistaniAfghani] border, [the p]etitioner met a man named Sayed Khan."); but see 5/26/10 Hr'g Tr. at
29:25-30:2 (testimony by the petitioner that he traveled to Afghanistan with "Mr. Khan," but did
The petitioner testified at the merits hearing that when he "got to" Pakistan, he "said to [himJseIr' that because he
was "very young at that point, ... nobody [would] hire [him) to work." 5/26/10 Hr'g Tr. at 19:2-3. The petitioner
then "said to [himJself" that he should instead conduct "a comprehensive study of the situation" involving the
Afghani refugees, id. at 19:6, after which he would return "to Yemen and make a proposal to ... a charity
organization there," with the hope that the organization would "be willing to help (and] offer support," id. at 19:16-
18. It is not clear to the Court when during his stay in Pakistan the petitioner came to realize that he could not
perform volunteer work for a charitable organization due to his age, given his other testimony at the merits hearing
that while in Karachi, he decided to travel to Quetta after learning about a charitable organization in that city
devoted to assisting Afghani refugees, id. at 26:21?22, and that while in Quetta he spoke to individuals about how to
join a charitable organization in Quetta,
at 29:6-7.
4

5 The petitioner testified he had no intention to travel to Afghanistan prior to leaving Yemen for Pakistan in
September 2000.5126/10 Hr'g Tr. at 20: 18-20.

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not know his first name), who he spoke with on "many" occasions and from whom he received
"advice," 5/26/10 Hr'g Tr. at 31 :15. The petitioner understood Khan to be involved in the sale of
electronics in Pakistan, see id. at 30: 16-31 :4 (explanation by the petitioner regarding Khan's sale
of electronics), and that he had no affiliation with al-Qaeda or the Taliban, id. at 31 :7-9. The
petitioner learned that Khan "was going to Afghanistan" and asked whether he could travel with
Khan, to which Khan agreed. Id. at 31: 16-19; but see id. at 30:8-9 (question posed by his
counsel as to whether Khan "discuss [ed] the word 'Afghanistan' with you," to which the
petitioner responded "No"). Then, in approximately February 2002, the petitioner and Khan
traveled to Kabul, Afghanistan, Joint Stmt. at 12, by way of a "transportation taxi,''(} 512611 0
Hr'g Tr. at 32:12, with transfers at the Pakistani-Afghani border and Kandahar, Afghanistan, id.

at 32:7-10.

Upon his arrival in Kabul, the petitioner stayed at "a very ordinary hotel" for a few days,
id. at 33: 19-22, before "rentring] , , . a very small apartment in one of the neighborhoods" in
Kabul, id. at 33:24-25. The apartment was located in a two-story building, with a small family
living on the second floor. See id. at 35:2-3 (testimony by the petitioner that "an older man lived
[on the second floor] with his family and children"). The petitioner stayed at this apartment for
"[aJbout three months.,,7 Id. at 35:9-10. According to the petitioner, Khan did not stay with the

Based on the petitioner's description of a "transportation taxi" during his testimony, the Court assumes that this
mode of transportation is more akin to a bus or shared vanpoo], rather than a private taxi service that is commonly
used in other parts of the world. See 5/26110 Hr'g Tr. at 32: 12-14 (testimony by the petitioner describing a
"transportation taxi" as "a taxi that. , . fills up with people and then ... takes off').
6

7 Contrary to the government's position, ~ Joint Stml. at 1 ("While in Afghanistan, [the p]etitioner worked at an al-
Qaida[ -] associated guesthouse and spent time at another,"), the petitioner denies ever staying at a guesthouse in
Afghanistan, 5/26/10 Hr'g Tr. at 36: 12-14, let alone a guesthouse associated with al-Qaeda, id. at 35: 11?14. The
Court need not resolve this dispute, as other evidence in the reeord sufficiently demonstrates that the petitioner is
detainable under the AUMF.

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petitioner in Kabul, id. at 33:12-13, and the petitioner has not heard from Khan since they arrived
in the city, id. at 34:18-19.
During his three-month stay in Kabul, the petitioner testified that he initiated a study
regarding the needs of Afghani refugees, id. at 37:16-19, so that he "could go back to Yemen,
and[,] ... with the help of [his] father[,] ... go and talk to charit[ies]" about his findings. Id. at
38:9-11. As part of his study, the petitioner asserts that he wanted to obtain "bills" that would
evidence how much money was needed to help the poor, id. at 20-22, and determine "the
quantity offood or clothes that [an] average family would need ... on a monthly basis," id. at
38:3-4. The study was "very important," according to the petitioner, id. at 39:4, because "if [he]
returned [to Yemen] v..ith the necessary documents [together] with ... the stud(y]," then charities
in Yemen "would be more than willing to help" him; without a study, the petitioner felt that
these charities "would[ not] take [him] seriously." Id. at 38:17-19. After collecting data for his
study, see id.at 39:9-14 (testimony by the petitioner that he collected information from food
markets in the area), the petitioner decided to return "to Pakistan and pursue [his] study of the
Koran," id. at 39: 15-16. The petitioner then returned to Quetta, id. at 39:20, in "approximately
April or May 2000" and stayed there for approximately three months, id. at 40:2-5, at the
Jama'at al-Tablighi mosque, see Pet'r's Exhibits, Ex. 201 (Second Declaration of Abdul Ahmed
Qader Hussein ("Second Pet'r's Decl.")' 6 (declaration by the petitioner that on his second trip
to Quetta, he stayed, "as described in [his first d]eclaration, ... in a mosque"); but see Pet'r's
Exhibits, Ex. 200 (First Pet'r's Decl.), 18 (declaration by the petitioner that in addition to his
initial stay at the Jama'at al-TabJighi mosque, he also stayed there "from May to June 2000").
The petitioner made a second trip to Kabul in or around June 2000. Pet'r's Exhibits, Ex.
201 (Second Pet'r's Decl.), 5. The petitioner asserts that he continued with his study by

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examining "location[s]," 5/26110 Hr'g Tr. at 41 :6, as well as how much it would cost to hire
personnel for his charity efforts, ~ id. at 41 :7-9 (testimony by the petitioner that he wanted to
determine "how much it was going to cost [him}" to hire a "guard," a "board," and a "janitor").
He stayed in Kabul "for a few months" before returning to Quetta "in approximately August ...
2000," id. at 41:11-12, where he once again stayed at the Jama'at al-Tablighi mosque, Pet'r's
Exhibits, Ex. 200 (First Pet'r's Decl.) , 18.
The petitioner then made his third and final trip to Kabul "around November ... 2000."

5/2611 0 Hr'g Tr. at 42:4-5. He claims that on this trip, he "wanted ... to interact with the poor
people, ... [and] to learn the[ir] language."s Id. at 42:8-9. The petitioner stayed at the same
location where he had resided during his first trips to Kabul, id. at 42:22, for approximately "ten
days to two weeks," id. at 42:25-43:1, before he "decided to go to an area located in the northern
part of Kabul where there were ... a large number of Afghani refugees," id. at 43:4-6. The
petitioner asserts that he decided to visit this area because he "met three Afghani people" at a
market, id. at 43:9, one of whom he told about his study, id. at 43: 11-13, who invited him to
accompany them to that location, id. at 43:23-24. The petitioner admits that the location was
"near the battle lines of the fighting between the Taliban and the Northern Alliance," Joint Stmt.
at 12; see also Pet'r's Exhibits, Ex. 200 (First Pet'r's Decl.) ~ 22 ("In my last visit to Afghanistan
...o I went with these young men to an area near the battle lines of the fighting between the
Taliban and the North[ern] Atliance ...."), and that the three individuals "were Taliban guards,"
Joint Stmt. at 12; see also Pet'r's Exhibits, Ex. 200 (First Pet'r's Decl.) , 21 ("During my stay in
Kabul, 1 bec[a]me friends with some young Afghanis who I understood were Taliban guards.").

According to the petitioner. the language spoken by these individuals was Farsi, 5/26/10 Hr' g Tr. at 42: 12-14, and
that he did in fact learn to speak "a little bit" ofthe language, id. at 17-18.

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During his stay in the northern part of Kabul, the petitioner admits that one of the Taliban
guards provided him with a KaJashnikov rifle. 5/26/10 Hr' g Tr. at 57:5-6. He asserts that the
rifle was given to him by the Taliban guard "for (his] self-protection," id. at 57:6-7, because "Jots
of wild animals" resided in the area, id. at 57:7-8, and because he could be "assaulted by two or
three Afghanis ... who kn[e]w that" the petitioner was carrying money at the time, id. at 57: 11-
13. The guard, "in only a few minutes," also "taught [the petitioner] how to use [the rifle] and
how to shoot with it." Id. at 59: I 1-12. According to the petitioner, this was his "only experience
with weapons in Afghanistan." rd. at 60:5-7.
"By August 2001," the petitioner asserts that "the excitement and adventure of traveling
in the area and providing aid to war victims had ended." Pet'r's Exhibits, Ex. 201 (Second
Pet'r's Dec!.) ~ 8. According to the petitioner, "[tJhe conditions in th[e northern part of Kabul] .
. . were quite difficult, and the experience of being in the area of conflict and seeing all the
suffering of the poor and those displaced by the war grew draining."

Cd.

In addition, the

petitioner claims that he "wanted to get married" because "at the age of 16 or 17, people [in the
Middle East] will have lots of respect for your;] they consider that ... you have become a man,
[and that] you are independent." 5/26/10 Hr'g Tr. at 75:20-22. The petitioner testified that he
"was ready to return to (his] family and life in Yemen," so he "returned to Kabul in
approximately late August 2001, with the goal of continuing to Pakistan to arrange [hisJ travel
home." Id.
The petitioner returned from the northern part of Kabul in early September 2001, and he
was present in that city "when the United States was attacked on September 11[th]." Joint Stmt.
at 12. He was in Kabul during this stay for approximately two weeks, 5/2611 0 Hr' g Tr. at 76: 17-
18, before traveling to Lahore, Pakistan, id. at 77:14-15; see also id. at 77:16-17 (testimony by
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the petitioner that he left Kabul for Lahore approximately "two or three days following the
events of September l1[th]"). While in Lahore, the petitioner stayed at the Jarna'at al-TabJighi
mosque located in that city. ld. at 78:15-17. The petitioner's stated intention in Lahore was to
make arrangements to travel to Yemen, id. at 78:17-18; specifically, he stated that he "was
planning on either going to Islarnabad[, Pakistan] and purchas[ing] a return ticket to Yemen," or
he would try to "fly directly from Lahore to Yemen," id. at 78:22-23. However, after "talking to
... people in the mosque and trying ... to get good advice on how to get from Pakistan to
Yemen," id.at 79:3-4, the petitioner asserts that while there were flights from Pakistan to Yemen,
they would require "several layovers in some places and the ticket would be expensive." Id. at
79:5-6. The petitioner claims that with the limited amount of money available to him, he "was
looking ... to buy [a ticket with] a maximum of one layover." Id. at 79:7-8. For these reasons,
the petitioner represents that he decided not to travel to Islamabad, id. at 78:24-25.
The petitioner had a conversation with another individual at the mosque, during which
they discussed the petitioner's interest in "study[ing] the Koran and ... computer[s]," and how
the petitioner "could[ not] find a school that would teach [classes on] computer[s] because ...
[his] language was Arabic and the language ... used to teach [these classes] was Urdu." Id. at
79:20-24. The individual suggested that the petitioner live with "some Yemeni students who
attended" the Salafi University in Faisalabad, Pakistan, id. at 80:2-4, because he could "just go to
[the] university and ... study the Koran there," id. at 80:7-8. Given that "there were some
Yemenis that were ... attending the university and ... lived in their own apartment," id. at
80: 11-13, the petitioner felt it was "a very good idea" to look into the possibility of studying at
the university, id. at 80: 18; see also id. at 80: 14-15 (testimony by the petitioner that the
individual offered to "talk [with] the head of the university and tell him about [the petitioner's]
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wish to study in that university so that [he] could live ... with the Yemenis"). While at the
mosque on another occasion, the same individual informed the petitioner that "[t]he director of
the university" had authorized the petitioner to "live with the Yemenis," and that "[iJf he
decide[d] to pursue [his] studies, [then] he [could] enroll ... in the program." Id. at 80:23-24.
The petitioner then left Lahore and traveled with this individual to Faisalabad, Pakistan. Id. at
80:25-81: 1.
The petitioner arrived at the house where the university students lived upon his arrival in
Lahore, see id. at 81:17-19, which he described as being managed by "the head of the
university," id. at 82:21-22. There, the petitioner "saw some Yemeni guys that were studying at
[the] university," and who spent "[m]ost of their time ... memorizing the Koran." Id. at 81: 19-
21. The petitioner also described another individual, a man named Issa, as "the purchase man"
for the house, who "would go buy potatoes, rice, chicken, meat ... and leave it at the door" of
the house. Id. at 15-19.
Despite his stated interest in attending the Salafi University, the petitioner did not enroll
in any classes there while living at the Faisalabad house. May 27, 2010 Hearing Transcript
("5/27110 Hr'g Tr.") at 45:9. The petitioner testified that he did not enroll because the university

would "test" him on "how many parts" of the Koran he has already memorized, and thus he
wanted to "stay[ at] th[e] house [and] memoriz[e] as much as [he] could before ... go[ing] ... to
enroll." Id. at 45:13-16. Furthermore, the petitioner stated that while his "plan was ... to
memorize the Koran," he also wanted to "go back to Yemen and get married." Id. at 82:2-3.
Nonetheless, the petitioner asserts that "it was important for [him] to memorize the Koran so
[that he could] go back to [his] father and tell him that [he had] memorized the Koran." Id. at

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82:5-7. He also testified that because he "wanted to get the degree," he ultimately decided not to
travel to Islamabad. 5/2711 0 Hr' g Tr. at 47:9-11.
On May 23, 2002,5/26/10 Hr'g Tr. at 85:10-12; see also Joint Stmt. at ]2, the petitioner
stated that during the night "someone was knocking at the door" of the house where he was
staying, id. at 85: 14-15. One of the occupants of the house "opened the door[] and ... was
[confronted] by the Pakistani police." Id. at 85:15-16. The police indicated that they were there
to "check on the people who [were] in th[e] house," id. at 85:18-19, and they asked everyone to
show their passports, id. at 85:21. After reviewing their passports, the Pakistani police took the
petitioner and the other occupants into custody.

Id. at 86:4-5; see also Joint Stmt. at 38

(stipulation by the parties that the "[p]etitioner was arrested by Pakistani authorities at a house in
Faisalabad, Pakistan"). That same month, the petitioner was "transferred to the custody of the
United States ... , and has remained in the custody of the United States ever since." Joint Stmt.
at 12; see also 5/26/10 Hr'g Tr. at 8:11-13 (acknowledging that he was "taken into custody by
the United States in March 2002").
Along with numerous other detainees, the petitioner filed the petition now before the
Court on October 27, 2005, seeking his release from Guantanamo Bay on the grounds that,
among other things, he is being held "in violation of the [United States] Constitution, laws[,] and
treaties of the United States and customary international law." See Pet. , 3. Having "serious
questions concerning whether this Court retain[ed] jurisdiction" as a result of Congress's attempt
to strip this Court of jurisdiction by passing the Military Commissions Act of 2006, Pub. L. No.
109-366, 120 Stat. 2600 (codified in part at 28 U.S.C. ? 2241) (the "2006 MCA"), the Court
stayed the proceedings in these cases until the question ofjurisdiction was resolved on appellate
review. January 31, 2007 Order at 1, Al Jayfi v. Bush, Civil Action No. 05-2104 (RBW)

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(D.D.C. Jan. 31, 2007). The stay in this case was later lifted after the Supreme Court issued its
opinion in Boumediene v. Bush, 553 U.S. 723 (2008), July 29, 2008 Order at 2, In re
Guantanamo Bay Detainee Litigation, Miscellaneous No. 08-442 (TFH) (D.D.C.) in which the
Supreme Court held that non-United States citizens detained at Guantanamo Bay are
constitutionally entitled to seek habeas relief and that the 2006 MCA's jurisdiction-stripping
provision was "an unconstitutional suspension ofthe writ." Boumediene, 553 U.S. at 792.
In light of the Boumediene decision, the members of this Court on July I, 2008,
"resolved by Executive Session to designate" the Honorable Thomas F. Hogan of this Court "to
coordinate and manage proceedings in all cases involving petitioners presently detained in
Guantanamo Bay, Cuba.,,9 July 2, 2008 Order at 1, In Ie Guantanamo Bay Detainee Litigation,
Miscellaneous No. 08-442 (TFH) (D.D.C.). After carefully considering the positions of the
various parties in these cases, Judge Hogan issued a case management order on November 6,
2008, which outlined the procedural and substantive contours for resolving these habeas
petitions. to Pursuant to this order, the government then filed its classified Factual Return in this
case on October 31, 2008, in which it proffered the evidence it intended to rely upon in this
proceeding to justify the petitioner'S detention. In turn, the petitioner responded to the evidence
proffered by the government in his Traverse, which he filed on May 8,2009. With all discovery
having been completed and the matter having been fully briefed, the Court commenced a hearing
on May 25,2010, to consider the merits ofthe petitioner's petition for a writ of habeas corpus.

As noted in Judge Hogan's July 2,2008 Order, "[eJxcluded from reassignment are all cases over which Judge
Richard J. Leon presides as well as Hamdan v. Bush, 04-cv-1519 (Robertson, J.)." July 2, 2008 Order at 2 n.I, In re
Guantanamo Bay Detainee Litigation, Miscellaneous No. 08-442 (TFH) (D. D.C.).

9

10 Judge Hogan subsequently amended his case management order on December 16,2008, and this member of the
Court issued several amendments to the order on December 19, 2008, February J9, 2009, and June 12,2009.

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II. Standard of Review
The ultimate question to be resolved with regard to the petitioner's habeas petition is
whether the government's detention of the petitioner is lawful under the AUMF. While the
Supreme Court in Boumediene held that individuals detained by the government at Guantanamo
Bay are "entitled to the privilege of habeas corpus to challenge the legality of their detention,"
Boumediene, 553 U.S. at 771, it also concluded that "[tJhe extent of the showing required of the
Government in these cases [was] a matter [left] to be determined" in future proceedings," id. at
787. The development of the detention standard in these Guantanamo Bay habeas cases was
thoroughly explored by this Court in Sulayman v. Obama, 729 F. Supp. 2d 26 (D.D.C. 20ID)
(Walton, J.), and it need not repeat that analysis here. Suffice it to say that
under the law of this circuit, the government may establish the lawfulness of the
petitioner's detention by showing that he "engaged in hostilities ... against the
United States," that he "purposefully and materially supported hostilities against
the United States or its coalition partners," or that he "is part of the Taliban, al
Qaeda, or associated forces." And, the determination of whether an individual is
"part of' the Taliban, aI Qaeda, or associated forces is one that "must be made on
a case-by-casc basis by using a functional rather than a formal approach."
Moreover, the government may seek to justify detention by making a showing
that the detainee was part of the "command structure" of either the Taliban, a1
Qaeda, or their associated forces, yet it is not necessary for the government to
make such a showing. But, the government must do more than just prove that the
detainee was an "independent ... freelancer."
Id. at 33 (internal citations omitted).
As for the burden of proof required to justify detention, the Court noted in Sulayman that
the standard set forth in Judge Hogan's case management order-"to wit, that the government
has the burden of persuading the Court that the petitioner is detainable under the AUMF by a

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preponderance of the evidence"-has been accepted by the District of Columbia Circuit. II Jd.;
see also Awad v. Obama, 608 F.3d I, 10 (D.C. Cir. 2010) (citing AI-Bihani v. Obama, 590 F.3d
866, 878 (D.C. Cir. 2010)) ("We have already explicitly held that a preponderance of the
evidence standard is constitutional in evaluating a habeas petition from a detainee held at
Guantanamo Bay."). This means that the government must convince the Court "to believe that
the existence of a fact is more probable than its nonexistence." Concrete Pipe & Prods. of Cal.,
Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 622 (1993) (internal quotation
marks omitted). Accordingly, the government has the initial burden of producing evidence in
support of its claim for detention, and should the government produce evidence sufficient to
establish a prima facie case for detention, then the burden of producing evidence to rebut the
government's case shifts to the petitioner. See Hamdi v. Rumsfeld, 542 U.S. 507, 534 (2004)
(observing that "once the Government puts forth credible evidence that the habeas petitioner
meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence
with more persuasive evidence that he falls outside the criteria," and that such a "burden-shifting
scheme" would not offend the Constitution). After both parties have presented alI of their
evidence, the Court must weigh the evidence to determine whether the government has met its
burden of showing that its evidence "is ... more convincing than the evidence ... offered in
opposition to it." Greenwich Collieries v. Dir., Office of Workers' Compo Programs, 990 F.2d
730, 736 (3d Cir. 1993). lfthe government is successful in making this showing, then the Court
11 As the Court observed in Sulayman, the District of Columbia Circuit has "left open the question of whether a
lower standard of proof could constitutionally suffice as well." 729 F. Supp. 2d at 26 n.5 (citing AI?Bihani, 590
F.3d at 878 n.4.); see also AI-Adahi V. Obama, 6 I 3 F.3d 1102, 1103-04 (D.C. Cir. 2010) (noting that it was not
"aware of [anyJ precedents in the eighteenth[-]century English courts [that] adopted a preponderance standard," and
that the standard of proof applied in various habeas proceedings ranged from "some evidence to support the order"
to "probable cause"). However, given that the government in this case has established the lawfulness of the
petitioner's detention by a preponderance of the evidence. the Court need not resolve the standard-of-proof question
left open by the Circuit.

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must deny the habeas petition. But, where the petitioner's evidence demonstrates that his version
of the facts is more likely to be true, or where "the evidence is evenly balanced," the Court must
rule in favor of the petitioner.

Dir.. Office of Workers' Compo Programs v. Greenwich

Collieries, 512 U.S. 267,281 (1994).
In weighing the evidence in this case, the Court is mindful of its obligation not to view
each piece of evidence in isolation. Awad v. Ohama, 608 F.3d 1, 7 (D.C. Cir. 2010). Thus,
"[m]erely because a particular piece of evidence is insufficient, standing alone, to prove a
particular point does not mean that the evidence may be tossed aside and the next piece of
evidence may be evaluated as if the first did not exist." Salahi v. Obam~ 625 F.3d 745, 753
(D.C. Cir. 2010). The Court, therefore, must view the government's evidence "in its entirety in
determining whether [it] has satisfied its burden of proof." Id.

III.

Legal Analysis

As noted above, the Court is tasked with detennining whether the government has met its
burden of proving by a preponderance of the evidence that the petitioner was a "part of' ai?
Qaeda or the Taliban at the time of his apprehension. To that end, the District of Columbia
Circuit's decision in Almerfedi v. Obama,

F.3d _ , _ , 20] 1 WL 2277607 (D.C. Cir.

2011), controls the disposition of this case. There, the Circuit confronted the question of whether
the district court "fail[cd] to give sufficient weight to the reliable evidence it ... consider[ed]" in
that case, thereby erring in its "conc1u[sion] that the government failed to demonstrate by a
preponderance of the evidence that [the detainee] was ... 'part of al Qaeda." Almerfedi,_
F.3d at _ , 2011 WL 2277607, at '" 1.

The Circuit started its analysis by examining the

Significance of the detainee's association with the Jamaat ai- Tablighi, "an Islamic missionary
organization that is a Terrorist Support Entity 'closely aligned' with al Qaeda." Id. at

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WL 2277607, at *4. Specifically, the detainee in that case acknowledged staying "for two[-
]and{-]a[-]half months at lama' at [al-]Tablighi" headquarters for free, but that "he refused to join
the organization and remained largely incommunicado."

Id.

The Circuit considered this

evidence, in conjunction with two additional pieces of circumstantial evidence, as "damning."
Id. at 5. Those other two items of circumstantial evidence were the detainee's travel route,
which the Circuit found was "quite at odds with his professed desire to travel to Europe (and
brought him closer to the Afghan border where al Qaeda was fighting), and also [the detainee's
possession at] at least $2,000 of unexplained cash on his person when captured," id. at 4.
The Circuit concluded that Almerfedi's extended cost-free stay at the Jamaat al-Tablighi
mosque was "probative, [although] by itself it presumably would not be sufficient to carry the
government's burden because there are surely some persons associated with lama'at [al-
]Tablighi who are not affiliated with al-Qaeda." Id.

The Circuit found, however, that the

government's case was on "firmer ground" when the evidence concerning Jamaat al-Tablighi
was "add(ed]" together with the government's other two items of circumstantial evidence, id. at
_ , 2011 WL 2277607, at *4, which the Court found "distinguish[edJ" Almerfedi "from the
errant tourist, embedded journalist, or local aid worker," id. at _ , 2011 2277607, at *5. The
Circuit "concluder d] that all three facts, when considered together, [were] adequate to carry the
government's burden of deploying credible evidence that the habeas petitioner meets the enemy-
combatant criteria." Id. (internal citation omitted). Accordingly, the Circuit "conclude[d] as g
matter of law that the district court erred" in the manner in which it applied the preponderance
standard, and it reversed the district court's decision to grant the petitioner's petition for a writ of
habeas corpus. Id. at_, 2011 WL 2277607, at *6 (emphasis added).

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Here, the government has also presented sufficient evidence to justify the petitioner's
detention. 12 First, the petitioner's extended stays at two Jama'at al-Tablighi mosques during his
visits to Pakistan constitute probative evidence weighing in favor of his detention.
Alm~rfedi,

_

~

F.3d at _ . 2011 WL 2277607, at *4 (fmding a single two-and-a-half-month

stay at a Jama'at al-Tablighi mosque to be probative).

Second, the petitioner's receipt of a

Kalashnikov rifle from three Taliban guards in an area near the lines of battle between the
Taliban and Northern Alliance, as well as the training he received from one of the Taliban guards
regarding how to use the weapon, constitutes probative, if not conclusive, evidence supporting
the petitioner's detention. See Sulayman, 729 F. Supp. 2d at 50 (Walton, J.) (concluding that a
detainee's "presence at a 'staging area'" near the zone of battle "is by itself highly probative
evidence of the [detainee's] status as 'part of the Taliban"); id. at 51 (ascribing additional
weight to a detainee's presence at the battle lines where "he took possession of a powerful
weapon during ... his visits to the 'staging area"');

cr.

Almerfedi, _

F.3d at _ , 2011 WL

2277607, at *4 n.7 (observing in dicta that "the government could satisfy its burden [of proof] by

12 The government also relies on numerous summary interrogation reports and intelligence information reports in its
case-in-chief. These interrogation reports contain unsworn hearsay statements "that [are] not otherwise admissible
under the Federal Rules of Evidence or 28 U.S.c. ? 2246 [(2006)]," and thus the government has the burden of
"establish[ing] the reliability of those statements" under the two-prong standard set forth by Judge Hogan in his case
management order, and as supplemented by the decisions issued by the undersigned member of this Court and
thoroughly discussed in Sulayman.
F. SUpp. 2d at --' 2010 WL 3069568, at *11. But the Court need not
assess whether the government has presented its hearsay "in a form ... that permits the ... [C]ourt to assess its
reliability," Parhat v. Gates, 532 F.3d 834, 849 (D.C. Cir. 2008), because as the Court discusses below, the
government's case for detention can be made based on the stipulated facts, the petitioner's sworn declarations, and
his testimony.

As for any hearsay evidence that the petitioner relies upon in support of his case-in-chief, this member of the Court
observed in Sulayman that there remains an open question as to whether the prohibitions against the admission of
hearsay evidence should be relaxed for the petitioner's proffered hearsay evidence, given that "the Supreme Court
mentioned only the possibility of considering hearsay proffered by the government in Hamdi and Boumediene."
Sulayman, _ F. Supp. 2d at _,2010 WL 3069568, at *11 n.10 (citations omitted and emphasis added). But
here, the petitioner does not rely on any hearsay evidence to rebut any of his inculpatory statements set forth in the
stipulated facts, his declarations, or his testimony, and thus there is no need for the Court to address this unresolved
hearsay question.

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showing that an individual was captured carrying a[ Kalashnikov rifle] on a route typically used
by al Qaeda fighters"). Third, the petitioner's actions after the September 11, 2001 terrorist
attacks were "quite at odds" with his stated innocent intentions, cf. Almerfedi,

F.3d at_,

2011 WL 2277607, at *4 (concluding a detainee's travel route that was "quite at odds with his
professed desire to travel to Europe to be "damning" circumstantial evidence"); specifically, (1)
the petitioner testified that he intended to leave Kabul and travel to Pakistan so that he could
reunite with his family in Yemen and possibly get married, id. at 78:17-18, yet he made no
credible effort to leave Pakistan; and (2) the petitioner testified that he did not enroll at the Salafi
University, even though he traveled to Faisalabad, Pakistan because of his interest to attend the
university, see id. at 80: 11-15. These facts, when viewed together, are more than sufficient to
constitute the level of "damning" circumstantial evidence that is needed to satisfy the
government's burden of proof in this case.
The petitioner's attempt to place an innocuous gloss on these incriminating facts is
unavailing; in fact, his explanations are nothing more than "false exculpatory statements" that
constitute "evidence-often strong evidence-of guilt."

See Al-Adahi v. Obama, 613 FJd

1102, 1107 (D.C. Cir. 2010). With regard to his interactions with the Taliban guards, the Court
is simply not persuaded by the petitioner's explanation that these guards were merely his
"friends," see Pet'r's Exhibits, Ex. 200 (First Pet'r's Ded,) ~ 21, and that he was only given the
weapon to protect himself from wild animals and potential thieves, 5/26110 Hr'g Tr. at 57:6-13.
As the Court explained in SUlayman, the fact that the petitioner received a powerful weapon
from a Taliban guard in an area near the battle lines "suggest[s] that the [guard] trusted the
petitioner enough to allow him to take possession of [his] firearm[]. More importantly, these
facts suggest that th[is] individual[] trusted the petitioner because he was loyal to their cause."
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Suiayman, 729 F. Supp. 2d at 51. In fact, the petitioner's explanation that he was given the
weapon to fend off wild animals and potential thieves is inexplicable because "it would be
beyond any sense of reason ... that [a] Taliban [guard] would allow a noncombatant to be
present in" an area near the battle lines with a deadly weapon. Id. at 51-52. Thus, the Court
finds the petitioner's explanations to be without merit.
The nonsensical explanations provided by the petitioner concerning why he stayed in
Pakistan after the events of September 11, 2001, likewise cannot be believed. The petitioner
testified at the merits hearing that he sought to leave Afghanistan and return to Yemen because
he wanted to get married and return to his family, and that while he was in Lahore he intended to
make arrangements to travel to Yemen, id. at 78: 17-18. Yet, when the petitioner arrived in
Lahore and had the opportunity to fly back to Yemen, id. at 78:22-23, he decided not to do so
because he purportedly had "limited" amounts of money and was looking to buy a ticket with a
"maximum of one layover," but the only flights available from Lahore to Yemen would require
"several layovers in some places and the ticket would be expensive," id. at 79:5-8.

The

petitioner cannot expect the Court to accept this explanation. First, there is no corroborating
evidence in the record showing that flights from Lahore to Yemen with "several layovers" were
more expensive than flights with less layovers; in the absence of such evidence, this premise
strikes the Court as implausible given that the more layovers a traveler must experience to reach
his or her final destination generally results in a less expensive ticket for the traveler. Thus, it
makes little sense to the Court that the petitioner was dissuaded from traveling home because he
could not Hnd a cheaper ticket with fewer layovers. Furthennore, the Court is not convinced that
the petitioner would forego reuniting with his family merely because of the inconvenience of
having to make several stops to travel from Lahore to Yemen; it is simply implausible that the

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unavailability of a convenient flight served as an insurmountable barrier to the petitioner in his
efforts to return home. This explanation for why he remained in Lahore renders his reasons
unworthy of belief.
The petitioner's actions after deciding not to fly back to Yemen from Lahore are even
more inexplicable. The petitioner acknowledged at the merits hearing that flights were also
available out of Islamabad, Pakistan, 5/26/10 Hr'g Tr. at 78:22-23, but the petitioner made nO
effort to travel north to Islamabad to find a flight to return to Yemen; instead, he traveled west to
Faisalabad. He then claims that he traveled to Faisalabad because he wanted to enroll in the
SaJafi University, id. at 80:2-4, "and ... study the Koran there," id. at 80:7-8. That statement,
too, is not worthy of credit. Despite the petitioner's claims that he wanted to study the Koran,
and that this new aspiration supplanted his desire to return to Yemen to reunite with his family
and possibly get married, the petitioner admits that he never enrolled as a student at the
university upon his arrival in Faisalabad. 5/27/10 Hr'g Tr. at 45:9. The petitioner then attempts
to explain why he delayed his effort to enroll in the university by stating that he wanted to "stay[
atJ th[e] house [and} memoriz[e the Koran] as much as [he] could before" being tested by the
university on his knowledge of the Koran. Id. at 45:13-16. But, this explanation makes little
sense as welJ, since his stated purpose for attending the university was to learn the Koran. In
fact, all of the petitioner's explanations seem to be little more than post hac attempts to present
goals that change as necessary to support his presence in one part of the world or another. The
sum of the petitioner's inexplicable explanations for his actions renders his testimony completely
incredible.
In sum, the Court concludes that the government has provided more than enough
evidence to meet its burden of proof in this case. Not only has the government satisfied its initial
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burden of producing evidence that supports its detention ofthe petitioner, see Hamdi, 542 U.S. at
534, by proffering "damning" circumstantial evidence, see Almerfedi, _

FJd at_, 2011 WL

2277607, at *5, but the petitioner's nonsensical version concerning his travel from Kabul to
Lahore after the events of September 11, 2001, provides further justification for his detention,
see Al Adahi, 613 F.3d at 1107. Accordingly, the Court is compelled to conclude that the weight
of the evidence in this case supports the petitioner's detention under the AUMF.
IV.

Conclusion

"Once the government has established by a preponderance of the evidence that [the
petitioner] was 'part of' al Qaeda and Taliban forces, the requirements of the AUMF are satisfied
and the government has the authority to detain [the petitioner]." Id. at _,2010 WL 2679752,
at *9. The "damning" circumstantial evidence in this case-all ofit derived from the petitioner's
own admissions-are "sufficient to distinguish [the] petitioner from the errant tourist, embedded
journalist, or local aid worker," Almerfedi, _

F.3d at _,2011 WL 2277607, at *4, and thus

the government has satisfied its burden of establishing the lawfulness of the petitioner's
detention. Because the petitioner has failed to put forth persuasive evidence in rebuttal, the
Court must deny the petitioner's petition for a writ of habeas corpus.
SO ORDERED this 12th day of October, 2011. 13

REGGIE B. WALTON
United States District Judge

13

An Order will accompany this Memorandum Opinion denying the petitioner's petition for a writ of habeas corpus.

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ABDUL QADER AHMED HUSSEIN,
Petitioner,

v.
BARACK H. OBAMA,
President of the United States, et aL,
Respondents.

)
)
)
)
)
)
)
)
)
)
)

Filed with Classified
Infonnati Security Officer
CISO _-'-""""~~.:.....-~_ _
Date _ _.L---+-'-.........,,.......--........." - - -
Civil Action No. 05-2104 (RBW)

ORDER
In accordance with the Memorandum Opinion entered this same date, it is hereby
ORDERED that the petitioner's petition for a writ of habeas corpus is DENIED.
SO ORDERED this 12th day of October, 2011.

REGGIE B. WALTON
United States District Judge

S~CR~i 

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 18, 2012

Decided June 18, 2013

No. 11-5344
ABDUL AL QADER AHMED HUSSAIN, DETAINEE,
APPELLANT
v.
BARACK HUSSEIN OBAMA, PRESIDENT OF THE UNITED STATES,
ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:05-cv-02104)

Wesley R. Powell argued the cause and filed the briefs for
appellant.
Henry C. Whitaker, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Stuart F. Delery, Acting Assistant Attorney General, Ian Heath
Gershengorn, Deputy Assistant Attorney General, and Robert
M. Loeb, Attorney.
Before: HENDERSON and GRIFFITH, Circuit Judges, and
EDWARDS, Senior Circuit Judge.

 2
Opinion for the Court filed by Circuit Judge GRIFFITH.
Opinion filed by Senior Circuit Judge EDWARDS,
concurring in the judgment.
GRIFFITH, Circuit Judge: The district court denied
appellant’s petition for a writ of habeas corpus challenging his
detention at Guantanamo Bay. We affirm the district court
because its findings of fact were not clearly erroneous, and those
facts support the conclusion that appellant was more likely than
not a part of enemy forces at the time of his capture.
I
The background of this case is set forth in the district
court’s thorough opinion, see Hussein v. Obama, 821 F. Supp.
2d 67, 68-75 (D.D.C. 2011), on which we rely to recite those
facts relevant to this appeal. Appellant Abdul al Qader Ahmed
Hussain1 is a citizen of Yemen detained at the United States
Naval Base at Guantanamo Bay. Sometime in 1999, Hussain left
his home in Yemen for Pakistan. He initially spent a few weeks
in Karachi and then traveled to Quetta, where he stayed for
about three months. While in Quetta, he lived in a mosque run
by the Jama’at al-Tablighi (JT) organization. From Quetta,
Hussain traveled to Afghanistan, where he spent approximately
three months. After that, Hussain returned again to a JT mosque
in Quetta in April or May of 2000 until about June, when he left
for Kabul, Afghanistan. In approximately August 2000, he
returned once again to Quetta for another three-month stay at a
JT mosque. Then, in November 2000, Hussain moved to
Afghanistan and settled for ten months in an area north of Kabul
1

The district court spelled petitioner’s name “Hussein.” We use
“Hussain,” the spelling employed by both parties on appeal.

 3
that was ravaged by war between the Taliban and the Northern
Alliance. Hussain lived near the front lines with three armed
Taliban guards. Hussain’s Taliban housemates supplied him
with an AK-47 rifle and trained him in its use. After al Qaeda
attacked the United States on September 11, 2001, Hussain fled
Afghanistan and returned to Pakistan where he lived at yet
another JT mosque in Lahore. He was captured in Faisalabad in
March 2002,2 and was transferred to Guantanamo Bay soon
thereafter.
Seeking to challenge his detention, Hussain filed a petition
for a writ of habeas corpus with the district court on October 27,
2005. Uncertain of its jurisdiction to hear habeas petitions from
detainees at Guantanamo Bay, the district court stayed the case
in January 2006. In the wake of the Supreme Court’s decision in
Boumediene v. Bush, 553 U.S. 723 (2008), the district court
heard Hussain’s petition, but denied him relief. The district court
concluded that Hussain was part of al Qaeda or the Taliban at
the time of his capture, based on evidence of what he did and
with whom he stayed in Pakistan and Afghanistan as well as his
efforts to explain away that evidence, which the court found
implausible. See Hussein, 821 F. Supp. 2d at 79. Hussain now
appeals.
We review the district court’s factual findings for clear
error. We review de novo the ultimate legal determination of
whether those facts support detention. See Barhoumi v. Obama,
609 F.3d 416, 423 (D.C. Cir. 2010) (“Determining whether a
detainee was ‘part of’ an associated force is a mixed question of
law and fact” because “whether a detainee’s alleged conduct . . .
2

The district court incorrectly refers to “May 23, 2002,” as the
date of Hussain’s capture. But on appeal, Hussain acknowledges that
he was captured in “March 2002” after being in Pakistan for
“approximately six months.”

 4
justifies his detention under the AUMF is a legal question” and
“whether the government has proven that conduct” is a factual
one. (internal citations omitted)).
II
The Authorization for Use of Military Force (AUMF),
enacted in response to the terrorist attacks of September 11,
2001, permits the President to detain individuals who “planned,
authorized, committed, or aided the terrorist attacks that
occurred on September 11, 2001, or harbored such . . . persons.”
Pub. L. No. 107–40, § 2(a), 115 Stat. 224 (2001); see Hamdi v.
Rumsfeld, 542 U.S. 507, 519 (2004) (stating that the AUMF
“clearly and unmistakably authorized detention” of enemy
combatants). As we have stated repeatedly, this authority
justifies holding a detainee at Guantanamo if the government
shows, by a preponderance of the evidence, that the detainee was
part of al Qaeda, the Taliban, or associated forces at the time of
his capture. See Khairkhwa v. Obama, 703 F.3d 547, 548 (D.C.
Cir. 2012); Uthman v. Obama, 637 F.3d 400, 403 (D.C. Cir.
2011); Salahi v. Obama, 625 F.3d 745, 751-52 (D.C. Cir. 2010);
Bensayah v. Obama, 610 F.3d 718, 725 (D.C. Cir. 2010); Awad
v. Obama, 608 F.3d 1, 11-12 (D.C. Cir. 2010); Al-Bihani v.
Obama, 590 F.3d 866, 872 (D.C. Cir. 2010).3 Hussain
3

Our concurring colleague takes issue with our extensive
precedent in detainee habeas appeals, arguing that we have not always
kept to the preponderance of the evidence standard we have thus far
invoked. But he is mistaken to say that we have “required” the
standard. Post, at 1 (Edwards, J., concurring). In Al-Adahi we wrote
that although the standard is “constitutionally permissible . . . we have
yet to decide whether [it] is required.” Al-Adahi v. Obama, 613 F.3d
1102, 1103 (D.C. Cir. 2010) (citation omitted). Furthermore, nothing
about this case requires us to settle the question because the
preponderance standard is easily met here. This case is a fastball down

 5
challenges this standard on two grounds, which he
acknowledges we have rejected before. Appellant Br. 15 n.2. We
do so again.
Hussain argues that the government must show that he was
involved in the “command structure” of al Qaeda or the Taliban,
rather than merely “part of” these organizations. But “[n]owhere
in the AUMF is there a mention of command structure.” Awad,
608 F.3d at 11. While such a showing would be enough to
sustain Hussain’s detention, it is not necessary. Id. We have long
held that requiring proof that a detainee was part of the
“command structure” is too demanding; the sweep of the
Executive’s detention authority under the AUMF is broader. See
Uthman, 637 F.3d at 403; see also Salahi, 625 F.3d at 751-52
(quoting Bensayah, 610 F.3d at 725).
Hussain also argues that the government must show that he
personally picked up arms and engaged in active hostilities
against the United States. But again, this argument demands
more than the AUMF requires. See Khairkhwa, 703 F.3d at 550
(collecting cases that reject the notion that a detainee must have
engaged in hostilities); Awad, 608 F.3d at 11 (Once the
government demonstrated that the detainee was part of al Qaeda,
“the requirements of the AUMF were satisfied.”); Al-Bihani,
590 F.3d at 869 (permitting the detention of a detainee who
“worked as the [55th Arab B]rigade’s cook and carried a
brigade-issued weapon, but never fired it in combat”). As we
noted in Khairkhwa, permitting detention only for those
detainees who engaged in active hostilities would be
inconsistent with the realities of “modern warfare” in which
“commanding officers rarely engage in hand-to-hand combat;
the middle, not a curveball low and away. It is well within the strike
zone.

 6
supporting troops behind the front lines do not confront enemy
combatants face to face; supply-line forces, critical to military
operations, may never encounter their opposition.” Khairkhwa,
703 F.3d at 550. Nothing has changed since we rejected these
arguments only months ago. We are bound by our precedent
and therefore reject Hussain’s challenges. Having done so, we
offer a brief overview of how we evaluate evidence in these
cases.
We have adopted no categorical rules to determine whether
a detainee is “part of” an enemy group. Instead, we look at the
facts and circumstances in each case. See Bensayah, 610 F.3d at
725 (“It is impossible to provide an exhaustive list of criteria for
determining whether an individual is ‘part of’ al Qaeda.”). We
look at each piece of evidence “in connection with all the other
evidence” in the record, and not in isolation. Almerfedi v.
Obama, 654 F.3d 1, 4 (D.C. Cir. 2011); see also Salahi v.
Obama, 625 F.3d at 753 (“Merely because a particular piece of
evidence is insufficient, standing alone . . . does not mean that
the evidence may be tossed aside . . . . The evidence must be
considered in its entirety in determining whether the government
has satisfied its burden of proof.” (internal citation and quotation
marks omitted)). The facts the district court found and the
inferences the district court drew from them support the
conclusion that Hussain was a part of al Qaeda or the Taliban
when he was captured.
III
Perhaps the most damning evidence supporting the district
court’s conclusion that Hussain was part of an enemy force
when he was captured is his ten-month stay near the front lines
of battle in war-torn Afghanistan. Hussain does not contest that
he lived near the battlefront with Taliban warriors who gave him

 7
an AK-47 and taught him how to use it. Evidence that Hussain
carried an assault rifle given him by Taliban forces while living
among Taliban forces near a battle line fought over by Taliban
forces brings to mind the common sense view in the infamous
duck test. See, e.g., Dole v. Williams Enterprises, Inc., 876 F.2d
186, 188 n.2 (D.C. Cir. 1989) (adopting the “now-infamous
‘duck-test,’ dressed up in appropriate judicial garb: ‘WHEREAS
it looks like a duck, and WHEREAS it walks like a duck, and
WHEREAS it quacks like a duck, WE THEREFORE HOLD
that it is a duck.’”).4 Evidence that Hussain bore a weapon of
war while living side-by-side with enemy forces on the front
lines of a battlefield at least invites – and may very well compel
– the conclusion that he was loyal to those forces. We have
repeatedly affirmed the propriety of this common-sense
inference. Alsabri v. Obama, 684 F.3d 1298, 1306 (D.C. Cir.
2012) (“[I]t is difficult to believe that Taliban fighters would
allow an individual to infiltrate their posts near a battle zone
unless that person was understood to be a part of the Taliban.”
(internal quotation marks omitted)); see also Suleiman v.
Obama, 670 F.3d 1311, 1313-14 (D.C. Cir. 2012); Al-Madhwani
v. Obama, 642 F.3d 1071, 1075 (D.C. Cir. 2011). Hussain
4

Our concurring colleague thinks such an inference is “quite
invidious because, arguably, any young, Muslim man traveling in areas
in which terrorists are known to operate would pass the ‘duck test.’”
Post, at 4 (Edwards, J., concurring). But the objectionable profiling our
colleague fears played no part in the conclusion of the district court
and is nowhere present in our reasoning. The district court cared not a
whit whether Hussain is Muslim (or not). Neither do we. The innocent
wayfaring teenager our colleague invokes bears no resemblance to
Hussain, who was not simply in the wrong place at the wrong time. He
was in the wrong place, at the wrong time, with the wrong people,
doing the wrong things. Our precedent, to say nothing of common
sense, supports the inference that the district court drew and which we
affirm.

 8
suggests a more benign inference. He argues that his Taliban
housemates gave him the AK-47 for protection from wild
animals and thieves, and that they were not living all that close
to the lines of battle anyway. But the district court permissibly
rejected this version of the uncontested facts in favor of the
government’s far more plausible explanation. See Hussein, 821
F. Supp. 2d at 78. That finding was not clear error.5
Although the parties disagree about precisely when Hussain
finally left Afghanistan, there is no dispute that he had left his
Taliban housemates near the battlefront, returned to Kabul by
September 11, 2001, and fled to Pakistan thereafter. The district
court found Hussain’s story of his movements after he left Kabul
unbelievable. He claimed, somewhat inconsistently, that he left
Afghanistan both to return to Yemen to be with his family and
possibly to marry, and to live in Pakistan to study, either
computers or the Koran. But the record lends no support to
either story. Once he left Afghanistan, Hussain stayed in
Pakistan until his capture, and although he moved from Lahore
to Faisalabad, he made no effort to return to Yemen or to attend
any school. We agree with the district court that “all of the
petitioner’s explanations seem to be little more than post hac
[sic] attempts to present goals that change as necessary to
support his presence in one part of the world or another. The
sum of the petitioner’s inexplicable explanations for his actions
5

The concurrence attempts to downplay Hussain’s possession of
the weapon. This misconstrues the district court’s legal reasoning.
Mere possession of the weapon – or carrying it around – was not the
critical point. The district court’s conclusion that Hussain was loyal to
enemy forces turned on the fact that Taliban soldiers gave him an AK47 while he lived among them near the battle lines. Under our
precedent, that alone demonstrates loyalty to a shared cause, even if
Hussain never brandished the weapon in combat. Al-Bihani, 590 F.3d
at 869.

 9
renders his testimony completely incredible.” Id. at 79. That
finding was not clear error and, under our precedent, provides
evidence of Hussain’s continued affiliation with enemy forces
after leaving Afghanistan. In other detainee cases, we have
found that false cover stories, like those spun by Hussain, “are
evidence—often strong evidence—of guilt.” Al-Adahi v. Obama,
613 F.3d 1102, 1107 (D.C. Cir. 2010); see Uthman, 637 F.3d at
407. In Almerfedi, we stated that “‘false exculpatory statements’
amount to evidence in favor of the government.” Almerfedi, 654
F.3d at 7 (quoting Al-Adahi, 613 F.3d at 1107) (emphasis
added).
The district court also relied on Hussain’s “extended stays
at two Jama’at al-Tablighi mosques.” Hussein, 821 F. Supp. 2d
at 77. As we have already recited, on two separate occasions,
Hussain lived at a JT mosque in Pakistan for about three
months. As we noted in Almerfedi, JT is “an Islamic missionary
organization that is a Terrorist Support Entity closely aligned
with al Qaeda.”Almerfedi, 654 F.3d at 6 (internal quotation
marks omitted). Although evidence of association with the JT
mosques alone “presumably would not be sufficient to carry the
government’s burden because there are surely some persons
associated with Jama’at Tablighi who are not affiliated with alQaeda,” we held in Almerfedi that extended affiliation with the
group over time “is probative.” Id. The district court concluded
that Hussain’s multiple stays at JT mosques between his
sojourns to Afghanistan suggests an affiliation with al Qaeda.
Because Almerfedi plainly permits such an inference, we see no
error in the district court having drawn it.6
6

Hussain stayed at JT mosques for two other, shorter, periods.
Although these short stays may not in and of themselves establish an
affiliation with al Qaeda, repeated visits to JT mosques, coupled with
his extended stays there, support the inference that Hussain was
affiliated with the terrorist group.

 10
Hussain faults the district court for holding that any contact
with the JT organization suggests an affiliation with al Qaeda.
But Hussain misstates the district court’s analysis. As we have
just shown, the district court did not rely on such a categorical
rule, but engaged in the type of fact-specific inquiry we require
to reach its conclusion that Hussain’s repeated and extended
stays at JT mosques suggest an affiliation with al Qaeda. See
Bensayah, 610 F.3d at 725.7
Having been “part of” enemy forces while living in northern
Afghanistan at least through August 2001, Hussain makes no
argument that he affirmatively cut those ties before his capture
only six months later. And there is no evidence to suggest that
leaving his Taliban housemates in Afghanistan marked a turning
point from Hussain’s old ways and an end to his connection with
enemy forces. Nothing in the record shows the type of concrete,
affirmative steps to dissociate that we look to when those once
part of an enemy group claim they have left. See Alsabri, 684
F.3d at 1307 (noting that the detainee “proffers no evidence that
he took steps to dissociate himself from those groups in the
months between his departure from the battle lines and his
capture”); Al-Adahi, 613 F.3d at 1109 (noting that “there was no
evidence that [the detainee] ever affirmatively disassociated

7

The government declared in the district court that it would not
seek to prove Hussain’s formal affiliation with JT. Red. Br. Addendum
at 17. And the district court did not rely on any formal affiliation
between Hussain and JT. It concluded only that his repeated stays at
the JT mosques, irrespective of any formal affiliation, suggest that
Hussain was “part of” al Qaeda. As this inference does not rest on a
formal affiliation between Hussain and JT, the government’s
declaration below is simply irrelevant. Moreover, it was made before
Almerfedi explained the significance of those stays.

 11
himself from al-Qaida,” even when he was expelled from the
group). In fact, the evidence points the other way. After living
for ten months at the battlefront in Afghanistan with Taliban
guards who armed him, Hussain fled to Pakistan, where he
remained until his capture shortly thereafter, and, when asked to
explain his actions in the interim, Hussain lied to the court. See
Almerfedi, 654 F.3d at 7 (“‘[F]alse exculpatory statements’
amount to evidence in favor of the government.” (quoting AlAdahi, 613 F.3d at 1107)).
Finally, Hussain argues that the district court erred by
failing to determine whether he affiliated with al Qaeda, the
Taliban, or both. Both are enemy forces, and affiliation with
either justifies detention. See Al Alwi v. Obama, 653 F.3d 11, 18
(D.C. Cir. 2011) (affirming the district court’s denial of the writ
where it was clear that petitioner was “‘part of’ the Taliban or al
Qaeda” (emphasis added)). In any event, membership in these
two groups sometimes overlaps, for example, when Taliban
forces bring Arabic-speaking al Qaeda-affiliated members into
their ranks. See Al-Bihani, 590 F.3d at 872 (noting that the 55th
Arab Brigade was “an Al Qaeda-affiliated outfit . . . [fighting]
alongside the Taliban while the Taliban was harboring Al
Qaeda”). The government’s evidence fits this pattern. Hussain
associated with Taliban guards in Afghanistan and an al Qaedaaffiliated group in Pakistan. In sum, there was no error in the
district court’s failure to distinguish between when Hussain was
a part of al Qaeda and when he was a part of the Taliban.
IV
For the foregoing reasons, we affirm the district court’s
denial of Hussain’s petition for a writ of habeas corpus.
So ordered.

 Edwards, Senior Circuit Judge, concurring in the
judgment: Abdul al Qader Ahmed Hussain was a teenager
when he was taken into custody and sent to Guantanamo Bay.
He has been confined in Guantanamo Bay for eleven years.
His petition for habeas relief should be granted, but his claim
is doomed to fail because of the vagaries of the law.
______
Under the applicable law, the President is authorized to
detain individuals who “planned, authorized, committed, or
aided the terrorist attacks that occurred on September 11,
2001, or harbored such . . . persons.” Authorization for the
Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat.
224 (2001). The Government cannot plausibly contend that
Hussain planned, authorized, or committed terrorist attacks.
The only real question in this case is whether Hussain “aided”
those who engaged in terrorist attacks. I can find no evidence
of this in the record before the court.
To hold a detainee at Guantanamo, we have required that
the Government show, by a preponderance of the evidence,
that the detainee was a “part of” al Qaeda, the Taliban, or
associated forces at the time of his capture. See Al-Adahi v.
Obama, 613 F.3d 1102, 1105 (D.C. Cir. 2010) (“Although we
doubt . . . that the [Constitution] requires the use of the
preponderance standard, we will not decide the question in
this case. As we [have done previously], we will assume
arguendo that the government must show by a preponderance
of the evidence that [the detainee] was part of al-Qaida.”).
Under the preponderance of the evidence standard, “the
factfinder must evaluate the raw evidence, [and] find[] it to be
sufficiently reliable and sufficiently probative to demonstrate
the truth of the asserted proposition with the requisite degree
of certainty.” Concrete Pipe & Prods. of Cal., Inc. v. Constr.
Laborers Pension Trust for S. Cal., 508 U.S. 602, 622 (1993).
The evidence in this case may satisfy the lesser substantial
evidence standard, see Dickinson v. Zurko, 527 U.S. 150, 162

 2
(1999) (the substantial evidence standard requires a reviewing
court “to ask whether a reasonable mind might accept a
particular evidentiary record as adequate to support a
conclusion”), but it does not meet the preponderance of the
evidence test.
The result in this case is unsurprising because, in my
view, it fits the mold of a number of the decisions of this court
that have recited the “preponderance of the evidence”
standard while in fact requiring nothing more than substantial
evidence to deny habeas petitions. I do not mean to sound
self-righteous in offering this observation – it is merely my
considered judgment. In truth, the Guantanamo detainee cases
have presented extraordinary challenges for the judiciary.
This reality has drawn rueful commentary in judicial
opinions, scholarly articles, speeches by members of the
Legislative Branch, pronouncements from the Executive
Branch, and media reports. Any knowledgeable person who
looks carefully at the applicable legislative enactments and
the Supreme Court decisions affecting Guantanamo detainees,
and the resulting progeny of district court and court of appeals
opinions, will comprehend how the preponderance of the
evidence and substantial evidence standards have come to be
conflated. I think it is important to at least acknowledge what
is happening in our jurisprudence.
______
The facts relied upon by the Government in this case are
quite simple. (I have blocked the statement of facts merely to
highlight it, not to suggest that it is quoted material.)
Sometime in 1999, when he was a teenager, Hussain left
his home in Yemen and headed for Pakistan. He initially
spent a few weeks in Karachi and then traveled to Quetta,
where he stayed for about three months. While in Quetta,
he lived in a mosque run by the Jama’at al-Tablighi (“JT”)

 3
organization. There is nothing to indicate that he was a
part of the organization. From Quetta, Hussain traveled to
Afghanistan, where he spent approximately three months.
After that, Hussain returned again to a JT mosque in
Quetta in April or May of 2000 until about June, when he
left for Kabul, Afghanistan. There is nothing to indicate
what he did during his brief stay at the mosque. In
approximately August 2000, he returned once again to
Quetta for another three-month stay at a JT mosque.
Again, there is nothing to indicate what he did during his
brief stay at the mosque. Then in November 2000,
Hussain moved to Afghanistan where he remained for ten
months in an area north of Kabul not far from where the
Taliban and the Northern Alliance had engaged in battles.
Hussain lived near the front lines with three fellow Arabic
speakers who were Taliban guards. Hussain’s housemates
supplied him with an AK-47 rifle and trained him in its
use. However, there is nothing to indicate that Hussain
used the weapon for any purpose; there is nothing to
indicate that he even carried the gun around with him
while residing in the area north of Kabul; and there is
nothing to indicate that he ever engaged in any acts of war
or terrorism during his temporary residence in the area
north of Kabul. Indeed, there is no evidence that Hussain
ever engaged in any acts of war or terrorism. When al
Qaeda attacked the United States on September 11, 2001,
Hussain was on his way from Afghanistan to Pakistan,
where he lived at yet another JT mosque in Lahore. Again,
there is not one iota of evidence as to what he did while at
the mosque. Hussain wandered around for a brief time
between September 2001 and March 2002, but there is
nothing to indicate that he was affiliated with enemy
forces or engaged in acts of war or terrorist activities. He
was taken into custody in Faisalabad in March 2002 and
was transferred to Guantanamo Bay soon thereafter.

 4
That’s it.
The majority invokes the “walks like a duck” test to
conclude that the evidence “at least invites – and may very
well compel – the conclusion that [Hussain] was loyal to
[enemy] forces.” This is not a proper application of the
preponderance of the evidence test with respect to the matter
in dispute. And it is quite invidious because, arguably, any
young, Muslim man traveling or temporarily residing in areas
in which terrorists are known to operate would pass the “duck
test.” That is exactly why the court should faithfully apply the
proper evidentiary standard. Hussain says that he was given a
weapon for his own self-protection. The Government does not
contend nor did the District Court find that Hussain carried
the weapon around with him during his stay in the area north
of Kabul or that he used the weapon for any purpose; nor does
the Government contend that Hussain ever joined with enemy
forces on the front lines. Therefore, without more, the fact
that Hussain moved to Afghanistan where he remained for ten
months in an area north of Kabul is not “sufficiently reliable
and sufficiently probative to demonstrate the truth of the
asserted proposition with the requisite degree of certainty”
that Hussain “planned, authorized, committed, or aided the
terrorist attacks that occurred on September 11, 2001.”
Concrete Pipe, 508 U.S. at 622 (emphasis added).
The majority also concludes that the District Court did
not commit clear error in finding that “Hussain’s continued
affiliation with enemy forces after leaving Afghanistan” was
sufficient to make out the case against him. But in doing so,
the majority implicitly shifts the burden of proof from the
Government to Hussain. Under the approach adopted by the
majority, Hussain’s petition is rejected because he could not
offer a coherent story about his whereabouts during the times
in question, not because the Government proved by a
preponderance of the evidence that he was “part of” al Qaeda,

 5
the Taliban, or associated forces. Respectfully, this is not an
appropriate application of the preponderance of the evidence
standard. It was the Government’s burden to show that
Hussain “planned, authorized, committed, or aided the
terrorist attacks that occurred on September 11, 2001,” and
this burden was not met by Hussain’s failure to explain his
whereabouts. Hussain is not presumed to be guilty under the
applicable law merely because he was taken into custody and
transferred to Guantanamo.
Is it really surprising that a teenager, or someone
recounting his teenage years, sounds unbelievable? What is a
judge to make of this, especially here, where there is not one
iota of evidence that Hussain “planned, authorized,
committed, or aided the terrorist attacks that occurred on
September 11, 2001, or harbored such . . . persons”? I do not
mean to suggest that a teenager cannot be a terrorist or an
enemy combatant or that, if so, he should get a pass because
of his age. Rather, the salient point is quite simple: the burden
of proof was on the Government to make the case against
Hussain by a preponderance of the evidence. In my view, it
failed to carry this burden.
This said, I am constrained by the law of the circuit to
concur in the judgment of the court. The majority opinion is
unassailable in holding that our precedent (which conflates
the preponderance of the evidence and substantial evidence
standards) supports the result reached. I have no authority to
stray from precedent. However, when I review a record like
the one presented in this case, I am disquieted by our
jurisprudence. I think we have strained to make sense of the
applicable law, apply the applicable standards of review, and
adhere to the commands of the Supreme Court. The time has
come for the President and Congress to give serious
consideration to a different approach for the handling of the
Guantanamo detainee cases.

 Cite as: 572 U. S. ____ (2014)

1

Statement of BREYER, J.
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
ABDUL AL QADER AHMED HUSSAIN, PETITIONER
v. BARACK H. OBAMA, PRESIDENT OF
THE UNITED STATES, ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT
No. 13-638.

Decided April 21, 2014

The petition for a writ of certiorari is denied.
Statement of JUSTICE BREYER respecting the denial of
certiorari.
The Authorization for Use of Military Force (AUMF),
passed in September 2001, empowers the President 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." ?2(a), 115 Stat. 224.
In Hamdi v. Rumsfeld, 542 U. S. 507 (2004), five Members
of the Court agreed that the AUMF authorizes the President to detain enemy combatants. Id., at 517-518 (plurality opinion); id., at 587 (THOMAS, J., dissenting). In her
opinion for a plurality of the Court, Justice O'Connor
understood enemy combatants to include "an individual
who . . . was part of or supporting forces hostile to the
United States or coalition partners in Afghanistan and
who engaged in an armed conflict against the United
States there." Id., at 516 (internal quotation marks omit-

2

HUSSAIN v. OBAMA
Statement of BREYER, J.

ted). She concluded that the "detention of individuals
falling into the limited category we are considering, for the
duration of the particular conflict in which they were
captured," is "an exercise of the 'necessary and appropriate
force' " that Congress authorized under the AUMF. Id., at
518 (emphasis added). She explained, however, that the
President's power to detain under the AUMF may be
different when the "practical circumstances" of the relevant conflict are "entirely unlike those of the conflicts that
informed the development of the law of war." Id., at 521.
In this case, the District Court concluded, and the Court
of Appeals agreed, that petitioner Abdul Al Qader Ahmed
Hussain could be detained under the AUMF because he
was "part of al-Qaeda or the Taliban at the time of his
apprehension." 821 F. Supp. 2d 67, 76-79 (DDC 2011)
(internal quotation marks omitted; emphasis added);
accord, 718 F. 3d 964, 966-967 (CADC 2013). But even
assuming this is correct, in either case--that is, irrespective of whether Hussain was part of al Qaeda or the Taliban--it is possible that Hussain was not an "individual
who . . . was part of or supporting forces hostile to the
United States or coalition partners in Afghanistan and
who engaged in an armed conflict against the United
States there." 542 U. S., at 516 (emphasis added).
The Court has not directly addressed whether the
AUMF authorizes, and the Constitution permits, detention on the basis that an individual was part of al Qaeda,
or part of the Taliban, but was not "engaged in an armed
conflict against the United States" in Afghanistan prior to
his capture. Nor have we considered whether, assuming
detention on these bases is permissible, either the AUMF
or the Constitution limits the duration of detention.
The circumstances of Hussain's detention may involve
these unanswered questions, but his petition does not ask
us to answer them. See Pet. for Cert. i. Therefore, I agree
with the Court's decision to deny certiorari.