Upon consideration of the court's order to show cause filed June 28, 2010, and the response thereto, it is
GINSBURG, Circuit Judge.
Belkacem Bensayah petitioned the district court for a writ of habeas corpus in order to challenge his detention at the Naval Station at Guantanamo Bay, Cuba. The district court denied his petition, holding the Government had shown by a preponderance of the evidence that Bensayah was being held lawfully pursuant to the Authorization for Use of Military Force (AUMF), Pub. L. 107-40, § 2(a), 115 Stat 224, 224 (2001), because he had provided "support" to al Qaeda. Boumediene v. Bush, 579 F. Supp. 2d 191, 198 (2008). On appeal the Government has eschewed reliance upon certain evidence the district court had considered and has abandoned its position that Bensayah's detention is lawful because of the support he rendered to al Qaeda; instead it argues only that his detention is lawful because he was "part of that organization — a contention the district court did not reach.
We agree with the Government that its authority under the AUMF extends to the detention of individuals who are functionally part of al Qaeda. The evidence upon which the district court relied in concluding Bensayah supported al Qaeda is insufficient, however, to show he was part of that organization. We therefore remand this case for the district court to determine whether, considering all reliable evidence, Bensayah was functionally part of al Qaeda.
Bensayah, an Algerian citizen, was arrested by the Bosnian police on immigration charges in late 2001. He was later told that he and five other Algerian men arrested in Bosnia were suspected of plotting to attack the United States Embassy in Sarajevo. Because the ensuing three-month investigation failed to uncover evidence sufficient to continue the detention of the six men, the Supreme Court of the Federation of Bosnia and Herzogovina ordered that they be released. The men were then turned over to the United States Government and transported to the U.S. Naval Station at Guantanamo Bay, where they have been detained since January 2002.
In 2004 Bensayah and the five other detainees petitioned the district court for writs of habeas corpus. Although their petitions were originally dismissed, Khalid v. Bush, 355 F. Supp. 2d 311, 314 (D.D.C. 2005), they were reinstated after the Supreme Court held that detainees at Guantanamo Bay are constitutionally "entitled to the privilege of habeas corpus to challenge the legality of their detention," Boumediene v. Bush, 128 S. Ct. 2229, 2262 (2008).
In August 2008 the district court entered a case management order (CMO) establishing the procedures that would govern this case. See CMO, Boumediene v. Bush, No. 04-1166 (RJL) (D.D.C. Aug. 27, 2008). The CMO placed upon the Government the burden of establishing, by a preponderance of the evidence, the lawfulness of the petitioner's detention. The Government was required to submit a return stating the factual and legal bases for detaining that prisoner, who was then required to file a traverse stating the relevant facts in support of his petition and a rebuttal of the Government's legal justification for his detention. The CMO allowed discovery only "by leave of the Court for good cause shown," and required that requests for discovery
It also required the Government to provide to the petitioner any exculpatory evidence "contained in the material reviewed in developing the return for the petitioner and in preparation for the hearing for the petitioner."
The Government claimed authority to detain the six men pursuant both to the AUMF and to the President's inherent powers as Commander in Chief. It argued each of the six men was lawfully detained as an "enemy combatant," which the district court had in an earlier order defined as
Boumediene v. Bush, 583 F. Supp. 2d 133, 135 (2008). The Government contended all six men were lawfully detained because they had planned to travel to Afghanistan in late 2001 in order to take up arms against the United States and allied forces. It also contended Bensayah's detention was lawful because he was a member of and a travel facilitator for al Qaeda. The only direct evidence the Government offered in support of its contentions about Bensayah was contained in a classified document
The district court granted habeas to each petitioner other than Bensayah, holding the Government had failed to show by a preponderance of the evidence that they had planned to travel to Afghanistan to fight against the United States. Boumediene, 579 F. Supp. 2d at 197-98. Because the Government did not sufficiently establish the reliability of the allegations in the classified document about those petitioners, the court refused to credit those allegations.
The district court denied Bensayah's petition because it determined "the Government has met its burden by providing additional evidence that sufficiently corroborates its allegations from this unnamed source that Bensayah is an al-Qaida facilitator." Id. at 198. The corroborative evidence provided by the Government is of three sorts: (1) evidence linking Bensayah to al Qaeda, and specifically to a "senior al-Qaida facilitator"; (2) evidence of Bensayah's history of travel "between and among countries using false passports in multiple names"; and (3) evidence creating "sufficient doubt as to Bensayah's credibility." Id.
Having deemed the allegations about Bensayah in the classified document reliable, the district court held "the Government has established by a preponderance of the evidence that it is more likely than not ... Bensayah not only planned to take up arms against the United States but also [planned to] facilitate the travel of unnamed others to do the same." Id. The court further held such planning and facilitating "amounts to `support' within the meaning of the 'enemy combatant' definition governing this case." Id. Because it held Bensayah's detention was lawful based upon his support of al Qaeda, the court did not go on to consider whether he was a "member" of al Qaeda or whether his detention was lawful on the alternative ground that he was "part of that organization.
There have been three developments since the district court's decision. First, the Government has eschewed reliance upon a portion of the evidence that the "senior al-Qaida facilitator" with whom Bensayah allegedly had contact was in fact a senior al Qaeda facilitator. Second, the Government has changed its position concerning the source and scope of its authority to detain Bensayah. Whereas the Government had previously claimed authority to detain Bensayah based upon both the AUMF and the President's constitutional authority as Commander in Chief, it now relies solely upon the AUMF.
Some but not all Bensayah's many arguments on appeal were mooted when the Government abandoned its theory that Bensayah's detention is lawful because he rendered support to al Qaeda. As for matters of procedure, Bensayah still challenges the district court's (1) reliance upon the preponderance of the evidence standard, (2) refusal to require the Government to search for reasonably available exculpatory evidence in its possession, (3) denial of his discovery requests, and (4) admission of the Government's "rebuttal" evidence. As for matters of substance, Bensayah still argues the district court erred in (1) adopting an overbroad definition of the Executive's detention authority, and (2) crediting "inadequately corroborated raw intelligence." Even if that evidence is credited, he argues (3) it is insufficient to establish his detention is lawful.
We review de novo the district court's conclusions of law, including its ultimate denial of a writ of habeas corpus. Saunders v. Senkowski, 587 F.3d 543, 547 (2d Cir. 2009). We review its factual determinations for clear error, id., and its evidentiary rulings for abuse of discretion, Al Odah v. United States, 559 F.3d 539, 544 (D.C. Cir. 2009). Whether a detainee was "part of al Qaeda is a mixed question of law and fact. Awad v. Obama, No. 09-5351, slip op. at 17 (June 2, 2010). "That is, whether a detainee's alleged conduct ... justifies his detention under the AUMF is a legal question. The question whether the [Government has proven that conduct ... is a factual question that we review for clear error." Barhoumi v. Obama, No. 09-5383, slip op. at 12-13 (June 11, 2010) (internal citation deleted).
A. Standard of Proof
In Boumediene the Supreme Court held detainees at Guantanamo Bay are entitled to "the fundamental procedural protections of habeas corpus," 128 S. Ct. at 2277, but did not expand upon which procedural protections are "fundamental." It left open, for instance, the standard of proof the Government must meet in order to defeat a petition for habeas corpus. Id. at 2271 ("The extent of the showing required of the Government in these cases is a matter to be determined"). Bensayah argues that because he is liable to be held "for the duration of hostilities that may last a generation or more," requiring the Government to prove the lawfulness of his detention by a mere preponderance of the evidence is inappropriate. He contends the district court should have required the Government to prove its case beyond a reasonable doubt, or at least by clear and convincing evidence. This argument has been overtaken by events, for we have recently held a standard of proof higher than a preponderance of the evidence is not a "fundamental procedural protection" of habeas required by Boumediene. Awad, slip op. at 18 ("A preponderance of the evidence standard satisfies constitutional requirements in considering a habeas petition from a detainee held pursuant to the AUMF"); Al-Bihani v. Obama, 590 F.3d 866, 878 (2010) ("Our narrow charge is to determine whether a preponderance standard is unconstitutional. Absent more specific and relevant guidance, we find no indication that it is.").
B. Challenges to the Discovery Process
The CMO requires the Government to
Bensayah argues the district court abused its discretion by imposing upon the Government an impermissibly narrow obligation to disclose exculpatory evidence. He maintains the Government must search all "reasonably available" information and disclose not only information that "tends materially to undermine the Government's theory as to the lawfulness of the petitioner's detention" but also information that "undermines the reliability of other purportedly inculpatory evidence" or "names potential witnesses capable of providing material evidence."
Bensayah does not contend the disclosure requirement imposed by the district court is in any way unconstitutional. Nor has he shown that broader disclosure is required by any opinion of the Supreme Court or of this court. He cites Bismullah v. Gates, 503 F.3d 137, 138-39 (D.C. Cir. 2007), for the proposition that the Government must search all "reasonably available" information, but that decision was compelled by the terms of a statutory scheme not at issue here. He cites Al Odah, 559 F.3d at 546, for the proposition that evidence may be material even if it is not directly exculpatory. The CMO is not, however, in tension with Al Odah. Information that undermines the reliability of other materials, e.g., inculpatory evidence, see id. at 546, also tends "materially to undermine the Government's theory as to the lawfulness of the petitioner's detention" and hence must be disclosed by the Government. We therefore agree with the Government that the standard for disclosure ordered by the district court, coupled with the opportunity to make specific discovery requests, is consistent with the Supreme Court's directive in Boumediene that a detainee be provided with the opportunity to challenge "the sufficiency of the Government's evidence" and to "supplement the record on review" with additional "exculpatory evidence." 128 S. Ct. at 2270, 2274.
Bensayah's primary concern seems to be that the disclosure requirement allows the Government to withhold exculpatory evidence because personnel from other agencies will pass only inculpatory evidence on to the attorneys actually "developing the return" and "preparing for the hearing." That practice is not permissible, however, under the current disclosure requirement. Any information that has been strategically filtered out of the record in order to withhold exculpatory evidence is plainly "material reviewed in developing the return" — and hence subject to the disclosure requirement — even if the individual doing the filtering works for a Government agency other than the Department of Justice.
Bensayah next argues that the district court erred by placing upon him the burden of explaining why each of his discovery requests would be neither "unfairly disruptive [nor] unduly burdensome to the Government." The district court did not abuse its discretion in structuring discovery this way. The Supreme Court specifically recognized the district court's discretion to accommodate the Government's legitimate interest in protecting sources and intelligence-gathering methods, acknowledging that "[c]ertain accommodations can be made to reduce the burden habeas corpus proceedings will place on the military without impermissibly diluting the protections of the writ." Boumediene, 128 S. Ct. at 2276. It is not necessary to address Bensayah's specific discovery requests relating to
C. Standard of Detention
The Government asserts the authority to detain Bensayah pursuant to the AUMF, in which the Congress authorized the President
As mentioned before, the Government contends it may lawfully detain an individual if he is "part of al Qaeda. Bensayah objects to this formulation, but we have made clear elsewhere that the AUMF authorizes the Executive to detain, at the least, any individual who is functionally part of al Qaeda. Barhoumi, slip op. at 29 (detainee "was `part of an al-Qaida-associated force and therefore properly detained pursuant to the AUMF"); Awad, slip op. at 19 ("Once [a petitioner is shown to be] `part of al Qaeda ... the requirements of the AUMF [are] satisfied"); Al-Bihani, 590 F.3d at 872-74.
Although it is clear al Qaeda has, or at least at one time had, a particular organizational structure, see The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks upon the United States 56 (2004) ("[Al Qaeda's] structure included as its operating arms an intelligence component, a military committee, a financial committee, a political committee, and a committee in charge of media affairs and propaganda"), the details of its structure are generally unknown, see Audrey Kurth Cronin, Congressional Research Service Report for Congress: Al Qaeda After the Iraq Conflict (2003) ("There is a great deal that remains unknown or debatable about the specific nature, size, structure and reach of [al Qaeda]"), but it is thought to be somewhat amorphous, Kenneth Katzman, Congressional Research Service Report for Congress: Al Qaeda: Profile and Threat Assessment (2005) ("Al Qaeda has always been more a coalition of different groups than a unified structure, many argue, and it has been this diversity that gives Al Qaeda global reach"). As a result, it is impossible to provide an exhaustive list of criteria for determining whether an individual is "part of al Qaeda. That determination must be made on a case-by-case basis by using a functional rather than a formal approach and by focusing upon the actions of the individual in relation to the organization. That an individual operates within al Qaeda's formal command structure is surely sufficient but is not necessary to show he is "part of the organization; there may be other indicia that a particular individual is sufficiently involved with the organization to be deemed part of it, see Awad, slip op. at 19 ("there are ways other than making a `command structure' showing to prove that a detainee is `part of al Qaeda"), but the purely independent conduct of a freelancer is not enough.
D. Sufficiency of the Evidence
As the district court noted, a
The district court, quoting Parhat v. Gates, 532 F.3d 834, 847 (D.C. Cir. 2008), correctly stated that it must "evaluate the raw evidence, finding it to be sufficiently reliable and sufficiently probative to demonstrate the truth of the asserted proposition with the requisite degree of certainty." See Barhoumi, slip op. at 21 ("we agree ... Parhat sets the guideposts for our inquiry into the reliability of the ... evidence [in a detainee's habeas case]"). Although the district court found
In Parhat we made clear that the reliability of evidence can be determined not only by looking at the evidence alone but, alternatively, by considering "sufficient additional information ... permitting the factfinder] to assess its reliability." 532 F.3d at 849. Here the district court, after looking at additional information, concluded "there is sufficient corroborating evidence in the record to credit and rely upon the assertions made in
Bensayah argues the district court clearly erred by finding
1. Evidence Linking Bens ayah to Al Qaeda
The district court found
Evidence linking Bensayah to
Assuming, as the Government contends,
2. Travel History and Travel Plans
The district court found the assertions in
3. Evidence Calling into Question Bensayah's Credibility
The district court found "serious questions [had] been raised about Bensayah's whereabouts in the early 1990s." This finding at most undermines Bensayah's own credibility; no account of his whereabouts ties him to al Qaeda or suggests he facilitated anyone's travel during that time. These "questions" in no way demonstrate that Bensayah had ties to and facilitated travel for al Qaeda in 2001.
* * *
Because the evidence, viewed in isolation or together, is insufficiently corroborative of
The Government argues it is authorized by the AUMF to detain Bensayah solely on the ground he was functionally a member or "part of al Qaeda. The evidence upon which the district court relied in concluding Bensayah "supported" al Qaeda is insufficient, however, to show he was part of that organization. Accordingly, we reverse the judgment of the district court and remand the case for the district court to hear such evidence as the parties may submit and to decide in the first instance whether Bensayah was functionally part of al Qaeda.