Abdul Razak ALI, Detainee, Appellant v. Barack OBAMA, President, et al., Appellees.
No. 11-5102.
United States Court of Appeals, District of Columbia Circuit.
Argued Sept. 27, 2013. Decided Dec. 3, 2013.
736 F.3d 542
Sydney Foster, Attorney, U.S. Depart-ment of Justice, argued the cause for ap-pellees. With her on the brief were Stuart F. Delery, Principal Deputy Assistant At-torney General, Ian Heath Gershengorn, Deputy Assistant Attorney General, and Robert M. Loeb, Attorney, U.S. Depart-ment of Justice. Matthew M. Collette and Douglas N. Letter, Attorneys, U.S. De-partment of Justice, entered appearances.
Before: KAVANAUGH, Circuit Judge, and EDWARDS and WILLIAMS, Senior Circuit Judges.
Opinion for the Court filed by Circuit Judge KAVANAUGH.
Opinion concurring in the judgment filed by Senior Circuit Judge EDWARDS.
KAVANAUGH, Circuit Judge:
The United States is engaged in an on-going war against al Qaeda, the Taliban, and associated forces. In March 2002, as part of that war, Abdul Razak Ali was captured by U.S. and Pakistani forces at a
When captured at the house in Pakistan, Ali was with an al Qaeda-associated terror-ist leader named Abu Zubaydah. Also present were four former trainers from a terrorist training camp in Afghanistan, multiple experts in explosives, and an indi-vidual who had fought alongside the Tali-ban. Their living quarters contained docu-ments bearing the designation “al Qaeda,” electrical components, and a device typical-ly used to assemble remote bombing de-vices. At the time of his capture, Ali had been at the terrorist guesthouse for about 18 days. Soon after the capture, an FBI interrogator asked Ali for his name and nationality. Ali falsely identified himself as Abdul Razzaq of Libya. Ali maintained that lie for the next two years.
That much is undisputed. In addition, the record strongly suggests, and the Dis-trict Court found, two other significant facts: Ali, a native Algerian, traveled to Afghanistan after September 11, 2001, in order to fight in the war against U.S. and Coalition forces. And while at the Pakistan guesthouse, Ali participated in Abu Zubay-dah‘s terrorist training program by taking English lessons.
Under our precedents, we conclude that those facts justify the President‘s decision to detain Ali as an enemy combatant pur-suant to the
Shortly after the attacks against the United States on September 11, 2001, Con-gress passed and President George W. Bush signed the
That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, author-ized, committed, or аided 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, or-ganizations or persons.
This Court has stated that the AUMF authorizes the President to detain enemy combatants, which includes (among others) individuals who are part of al Qaeda, the Taliban, or associated forces. See Hussain v. Obama, 718 F.3d 964, 967 (D.C. Cir. 2013).1 Detention under the AUMF may last for the duration of hos-tilities. See Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004); Uthman v. Obama, 637 F.3d 400, 402 (D.C. Cir. 2011). This Court has as-sumed without deciding that, to justify detention of a member of al Qaeda, the Taliban, or an associated force, the Gov-ernment must prove the detainee‘s status by a preponderance of the evidence. See Hussain, 718 F.3d at 967 n. 3; Uthman, 637 F.3d at 403 n. 3; Al-Bihani v. Obama, 590 F.3d 866, 878 & n. 4 (D.C. Cir. 2010). In a prior case involving a Guan-tanamo detainee captured in the same Faisalabad guesthouse as Ali, we recog-nized that the force commanded by Abu Zubaydah constitutes an “associated force” for purposes of the AUMF. See Barhoumi v. Obama, 609 F.3d 416, 423 (D.C. Cir. 2010). Ali does not dispute that conclusion here.
The only question, then, is whether Ali more likely than not was part of Abu Zubaydah‘s force. Ali says that he was not. He admits that he was captured with Abu Zubaydah in the Faisalabad, Pakistan, guesthouse. Ali also admits that he lied about his identity from the time of his capture in March 2002 until late 2004, when he admitted that he is really Saeed Bakhouche of Algеria, not Abdul Razzaq of Libya.2 Ali insists, however, that he mis-took the Abu Zubaydah facility for a public guesthouse, and that he had nothing to do with the terrorist activity being planned there.
In 2005, Ali filed a habeas petition con-testing his detention. After the Supreme Court ruled in Boumediene v. Bush, 553 U.S. 723 (2008), that the habeas corpus right ex-tends to Guantanamo, the District Court took up Ali‘s case and held a three-day hearing. Based on Ali‘s presence at the guesthouse with Abu Zubaydah, his partic-ipation in Abu Zubaydah‘s training pro-gram, his admission to traveling to Af-ghanistan to fight in the war against U.S. and Coalition forces, and other evidence connecting Ali to Abu Zubaydah fighters, the District Court concluded that “it is more probable than not that” Ali “was in fact a member of Abu Zubaydah‘s force.” Ali v. Obama, 741 F. Supp. 2d 19, 27 (D.D.C. 2011).
On appeal, Ali argues that the Govern-ment failed to justify his detention by a preponderance of the evidence. He also contests several procedural aspects of the habeas proceeding, including the Govern-ment‘s alleged failure to disclose evidence that could have undermined the credibility of two detainees who linked Ali to Abu Zubaydah‘s force.
This Court reviews the District Court‘s ultimate habeas determination de novo, its underlying factual findings for clear error, and its procedural rulings for abuse of discretion. See Barhoumi, 609 F.3d at 423.
The central fact in this case is that Ali was captured in 2002 at a terrorist guesthouse in Pakistan. This Court has explained that a detainee‘s presence at an al Qaeda or associated terrorist guest-house constitutes “overwhelming” evidence that the detainee was part of the enemy force. Uthman v. Obama, 637 F.3d 400, 406 (D.C. Cir. 2011) (quoting Al-Adahi v. Obama, 613 F.3d 1102, 1108 (D.C. Cir. 2010)); see Alsabri v. Obama, 684 F.3d 1298, 1302 (D.C. Cir. 2012); Suleiman v. Obama, 670 F.3d 1311, 1314 (D.C. Cir. 2012); Almerfedi v. Obama, 654 F.3d 1, 6 n. 7 (D.C. Cir. 2011); Al-Madhwani v. Obama, 642 F.3d 1071, 1075 (D.C. Cir. 2011); Al-Bihani v. Obama, 590 F.3d 866, 873 n. 2 (D.C. Cir. 2010). We have previously af-firmed the detention of an individual cap-tured in the same terrorist guesthouse as Ali. See Barhoumi v. Obama, 609 F.3d 416, 425, 427 (D.C. Cir. 2010).
Ali contends that he simply mistook the Abu Zubaydah guesthouse for a public guesthouse. He argues that reliance on his capture in the Abu Zubaydah guest-house unfairly presumes guilt by associa-tion—or, as he styles it, “guilt by guest-house.” Ali Br. 42. That argument has two flaws.
To begin with, we are not talking about “guilt.” This is not a criminal pro-ceeding in which the Government asks a court to find Ali guilty and punish him for past behavior by sentencing him to a de-fined term of imprisonment. In other words, this is not a federal criminal trial or a military commission proceeding for war crimes. Rather, this case involves military detention. The purpose of military deten-tion is to detain enemy combatants for the duration of hostilities so as to keep them off the battlefield and help win the war. Military detention of enemy combatants is a traditional, lawful, and essential aspect of successfully waging war. See Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004); WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS 788 (rev.2d ed.1920) (military detention during wartime “is neither a punishment nor an act of vengeance, but merely a temporary detention which is devoid of all penal character“) (internal quotation marks and citation omitted). The stan-dard of proof for military detention is not the same as the standard of proof for criminal prosecution, in part because of the different purposes of the proceedings and in part because military detention ends with the end of the war.
In any event, we need not address the hypothetical in which a detainee‘s presence at a terrorist guesthouse constitutes the only evidence against him. In this case, at least six additional facts support the con-clusion that Ali more likely than not was part of Abu Zubaydah‘s force:
- Ali‘s housemates at the terrorist guesthouse were not just foot soldiers, but included the terrorist leader Abu Zubaydah himself, as well as the sen-ior leaders of Zubaydah‘s force.
- Ali had been staying at the guesthouse for about 18 days.
- The guesthouse in which Ali was cap-tured contained documents and equip-ment associated with terrorist opera-tions.
- Ali participated in Abu Zubaydah‘s terrorist training program by taking English lessons at the guesthouse.
- Ali had traveled to Afghanistan after September 11, 2001, with the intent to fight in thе war against U.S. and Co-alition forces.
- After his capture, Ali lied about his identity, and he maintained his false cover story for more than two years.
First, it is undisputed that Ali‘s house-mates at the terrorist guesthouse were not just foot soldiers, but included Abu Zubay-dah himself, as well as the senior leaders of Zubaydah‘s force. See Ali v. Obama, 741 F. Supp. 2d 19, 26 (D.D.C. 2011). Abu Zubaydah, an “associate” and “longtime ally” of Osama bin Laden, operated terror-ist training camps in Afghanistan and led a force that engaged in hostilities against U.S. and Coalition forces. J.A. 1620; THE 9/11 COMMISSION REPORT: FINAL REPORT OF THE NATIONAL COMMISSION ON TERRORIST AT-TACKS UPON THE UNITED STATES 150, 174 (2004); see Barhoumi, 609 F.3d at 425; J.A. 1548; 9/11 COMMISSION REPORT at 59. Zubaydah-trained fighters coordinated with or joined al Qaeda, and at least one Zubaydah associate attempted to attack the United Stаtes homeland. See United States v. Ressam, 679 F.3d 1069, 1072-74 (9th Cir. 2012) (en banc); J.A. 1548-49, 1620; 9/11 COMMISSION REPORT at 261.3
After U.S. and Coalition forces eviscer-ated al Qaeda and other terrorist training camps in Afghanistan in late 2001, Abu Zubaydah retreated to a house in Faisala-bad, Pakistan. He used the Faisalabad
It strains credulity to suggest that Ali spent time in early 2002 in a four-bedroom house in Faisalabad, Pakistan, with Abu Zubaydah and the leaders of Zubaydah‘s force while having no idea what the people around him were doing. But even grant-ing Ali the benefit of the doubt, it is nearly unfathomable that avowed terrorist lead-ers like Abu Zubaydah would tolerаte an unknown couch-surfer crashing down the hall in the same house for several weeks. Of course, there remains a slender possi-bility that Ali innocently blundered into his extended stay at a heavily fortified terror-ist den. But one of his housemates offered a far more plausible explanation: “all the people in the house were Al-Qaeda people or ‘jihadis.‘” J.A. 1650–51.
In sum, the fact that Ali resided with Abu Zubaydah and Zubaydah‘s top lieuten-ants during their preparation for active conflict with U.S. and Coalition forces strongly buttresses the conclusion that Ali was part of Zubaydah‘s force. Cf. Khair-khwa v. Obama, 703 F.3d 547, 550 (D.C. Cir. 2012) (affirming detention based on detainee‘s “close ties” to Mullah Omar); Alsabri, 684 F.3d at 1301 (affirming detеn-tion based on detainee‘s residence with U.S.S. Cole bomber and continuing rela-tionships with Taliban or al Qaeda mem-bers); Al-Adahi, 613 F.3d at 1107 (affirm-ing detention based on detainee‘s multiple “personal audience[s]” with Osama bin Laden); Barhoumi, 609 F.3d at 425 (af-firming detention based on detainee‘s cap-ture in same guesthouse as Abu Zubay-dah); see generally Uthman, 637 F.3d at 404 (“company” that detainee “was keep-ing” can suggest membership in terrorist force); Hussain v. Obama, 718 F.3d 964, 969 (D.C. Cir. 2013) (same); Latif v. Oba-ma, 677 F.3d 1175, 1197 (D.C. Cir. 2012) (same); Suleiman, 670 F.3d at 1314 (same); Al-Madhwani, 642 F.3d at 1076 (same); Esmail v. Obama, 639 F.3d 1075, 1077 (D.C. Cir. 2011) (same); Awad v. Oba-ma, 608 F.3d 1, 9-10 (D.C. Cir. 2010) (same).
Second, it is undisputed that Ali had been staying at the guesthouse for about 18 days. J.A. 1666. His stay there was no brief layover on a tourist jaunt through Pakistan. On the contrary, if Ali were there for innocent purposes, he had more than ample time to recognize thе danger-ous company he was keeping and leave. Likewise, Abu Zubaydah and the other terrorists at the house had more than am-ple time to eject someone who was an errant passer-by. The length of Ali‘s stay makes it all the more implausible that he was an innocent bystander to the terrorist activity at Abu Zubaydah‘s guesthouse. Cf. Hussain, 718 F.3d at 970 (“extended stays” at terrorist-linked mosques suggest affiliation with terrorist force); Suleiman, 670 F.3d at 1314 (seven-month stay at Taliban guesthouse shows detainee was “hardly stopping by“); Almerfedi, 654 F.3d at 6-7 (extended stay at mosque linked to terrorism suggests terrorist affil-
Third, it is undisputed that the guest-house in which Ali was captured contained documents and equipment associated with terrorist operations. The District Court found that the terrorist guesthouse where Ali resided contained “pro-al Qaeda litera-ture, electrical components, and at least one device typically used to assemble re-mote bombing devices.” Ali, 741 F. Supp. 2d at 21. Ali does not dispute that those objects were in the guesthouse. Rather, he suggests that the objects have alternative, benign uses. That‘s true. But electrical components, for example, have a much different connotation when found next to an al Qaeda manual in a terrorist guesthouse than when found in an electri-cal engineering laboratory. Tellingly, the record included evidence that Abu Zubay-dah planned to conduct terrorist attacks using remote-detonated explosives. J.A. 1549, 1600, 1736. Considered in context, the presence of pro-al Qaeda literature, electrical components, and a device typical-ly used to assemble remote bombing de-vices in the guesthouse where Ali spent about 18 days corroborates other evidence connecting him to Abu Zubaydah‘s force. Cf. Obaydullah v. Obama, 688 F.3d 784, 792-93 (D.C. Cir. 2012) (explosives found outside detainee‘s residence suggest mem-bership in terrorist force); Khan v. Oba-ma, 655 F.3d 20, 30 (D.C. Cir. 2011) (incrim-inating items discovered at detainee‘s properties suggest membership in terror-ist force); Al-Adahi, 613 F.3d at 1109 (presence of Casio watch identified with terrorist attacks suggests membership in terrorist force).
Fourth, the District Court found, and the evidence supports the conclusion, that Ali participated in Abu Zubaydah‘s terror-ist training program by taking English lessons at the guesthouse. At least one of Ali‘s housemates provided multiple, specif-ic accounts of having witnessed Ali and other housemates taking English lessons from a member of Abu Zubaydah‘s force. Ali offers no persuasive rebuttal to those detailed eyewitness reports. The District Court did not clearly err by relying on that evidence. Ali, 741 F. Supp. 2d at 26.
Ali argues that there is nothing sinister about learning English. That‘s true in isolation, but again, the context here is important. Otherwise-innocent activity can impart a different meaning depending on the circumstances. Here, the record included evidence that leaders of Abu Zu-baydah‘s force provided English language training to help prepare their members to better infiltrate English-speaking areas and launch successful terrorist attacks. Ali‘s willingness to participate in such a training program undercuts his claim of ignorance about terrorist activity in the guesthouse and further connects him to Abu Zubaydah‘s force. Cf. Alsabri, 684 F.3d at 1304-06 (training at terrorist facili-ty is compelling evidence that detainee was part of terrorist force); Al Alwi v. Obama, 657 F.3d 11, 17-18 (D.C. Cir. 2011) (same); Al-Madhwani, 642 F.3d at 1075 (same); Esmail, 639 F.3d at 1076 (same); Al-Ad-ahi, 613 F.3d at 1108–09 (same).
Fifth, the District Court found, and thе evidence supports the conclusion, that Ali had traveled to Afghanistan after Septem-ber 11, 2001, with the intent to fight in the war against U.S. and Coalition forces. Ali admitted as much when, shortly after his capture, he told an FBI interviewer that he had departed Libya in October 2001 for Karachi, Pakistan, and that “he met some Afghans in Karachi who took him to Af-ghanistan to fight in the war.” J.A. 74. Ali does not dispute the “damning” signifi-cance of traveling to the battlefield to en-gage in combat against U.S. and Coalition
The Government contends that Ali ad-mitted his trip to Afghanistan in an FBI interview conducted within 48 hours of his capture. The FBI agent‘s notes indicate that the interview subject was “Abdul Raz-zaq,” an alias that Ali has admitted using and that multiple housemates associated with him. The interview notes show that Razzaq was born in La Gilat, Libya, in July 1970. The notes also give the names of Razzaq‘s parents and brother. All of that biographical data matches information later provided by Ali at Guantanamo. As Ali emphasizes, however, the FBI agent‘s notes also indicate that the interview sub-ject was captured at a different Faisalabad guesthouse where Ali never resided. The Government contends that this notation was inaccurate and points to a later intelli-gence report correcting the mistake. Ali insists that the initial version with the inaccurate guesthouse location—prоves that he is not the Abdul Razzaq who made the incriminating admission.
Given that multiple Faisalabad guest-houses were raided on the same day, it seems most likely that the agent interview-ing Ali simply recorded the wrong site of capture in his initial report. It strikes us as dramatically less plausible that the agent interviewed a different Abdul Raz-zaq who happened to have been born in the same place during the same month of the same year to a family whose members had the same names. Ali‘s argument amounts to a claim of innocence-by-typo. After hearing all the evidence, the District Court concluded that Ali had made the admission, and that the typo was just a typo. Ali, 741 F. Supp. 2d at 26-27. Wе cannot say that this factual finding amounts to clear error.
Sixth, it is undisputed that, after his capture, Ali lied about his identity and maintained his false cover story for more than two years. From the time of his capture in March 2002 until late 2004, Ali told U.S. interrogators that he was Abdul Razzaq of Libya. Then he admitted that he had been giving a false identity all that time, and that he is actually Saeed Bak-houche of Algeria.
Ali‘s willingness to lie in this fashion is telling. If he were truly an innocent trav-eler caught in the wrong place at the wrong time, he presumably would have given his real name. After all, Ali claims that he had nothing else in his past to hide. Ali Br. 67. Our prior cases have discussed the more likely explanation fоr behavior like Ali‘s: Terrorists are trained “to make up a story and lie.” Al-Adahi, 613 F.3d at 1111. Here, Ali‘s sketchy tale bears sever-al of the hallmarks of counter-interroga-tion techniques that this Court has ob-served in past cases: “developing a cover story ... recanting or changing answers ... [and] giving as vague an answer as possible.” Id. Whatever his motive, Ali‘s consistent lying about his name and na-tionality renders him “wholly incredible.” Ali, 741 F. Supp. 2d at 27. Moreover, his willingness to adopt and repeat a false cover story constitutes strong evidence of guilt. See Al-Adahi, 613 F.3d at 1107 (“false exculpatory statements are evi-dence—often strong evidence—of guilt“); see Hussain, 718 F.3d at 969; La-tif, 677 F.3d at 1195; Almerfedi, 654 F.3d at 7; Al-Madhwani, 642 F.3d at 1076; Esmail, 639 F.3d at 1076-77; Uthman, 637 F.3d at 407.
To sum up, as the District Court cor-rectly concluded, the record here estab-lishes the following: Ali was captured in a terrorist guesthouse in Pakistan where he resided with Abu Zubaydah and the senior leaders of Zubaydah‘s terrorist force. Ali had been there for about 18 days. The
Ali maintains that many of those facts, considered individually, could have inno-cent explanations. Maybe yes, maybe no. But individual pieces of evidence are not considered in complete isolation from one another. Cf. Bourjaily v. United States, 483 U.S. 171, 179-80 (1987) (“individual pieces of evidence, insufficient in themselves to prove a point, may in cumulation prove it“). As our precedents have explained, this commonsense principle carries no less weight in habeas proceedings for Guanta-namo detainees. See Hussain, 718 F.3d at 968; Uthman, 637 F.3d at 407; Al-Adahi, 613 F.3d at 1105-06.
Considering the facts collectively and in light of our precedents, and exercising de novo review of the District Court‘s ulti-mate conclusion, we conclude that the Gov-ernment has satisfied its burden to prove that Ali more likely than not was part of Abu Zubaydah‘s force.4 Any alternative account would mean that Ali ended up in the guesthouse by accident and failed to realize his error for more than two weeks; and that Abu Zubaydah and his senior leaders tolerated an outsider living within their ranks; and that a different Abdul Razzaq who happened to have the same biographical information traveled to Af-ghanistan after September 11, 2001, to fight in the war against U.S. and Coalition forces; and that, despite knowing that he was an innocent man, Ali lied about his true name and nationality for two years. Ali‘s story “piles coincidence upon coinci-dence upon coincidence.” Uthman, 637 F.3d at 407. We conclude that the Presi-dent hаs authority under the AUMF to detain Ali.5
III
In addition to contesting the sufficiency of the evidence supporting his detention, Ali advances several procedural chal-lenges.
First, Ali argues that he was entitled to a second habeas hearing because, at his first hearing, the Government allegedly failed to disclose evidence that could have undermined the credibility of two detain-ees who linked him to Abu Zubaydah‘s force: Muhammed Noor Uthman and Musa‘ab al-Madhwani.
The Constitution entitles a Guan-tanamo detainee to “a meaningful opportu-nity to demonstrate that he is being held pursuant to the erroneous application or interpretation of relеvant law.” Boume-diene v. Bush, 553 U.S. 723, 779 (2008) (internal quo-tation marks and citation omitted); see
At Ali‘s habeas hearing, the Government relied on evidence from Uthman and al-Madhwani without disclosing to Ali‘s coun-sel certain information that could have un-dermined the credibility of those detainees. But then the Government formally with-drew reliance on the evidence from al-Madhwani, and the Distriсt Court there-fore did not consider evidence from him in deciding whether to grant the petition. Ali v. Obama, 741 F. Supp. 2d 19, 24 (D.D.C. 2011); cf. Al-Bihani, 590 F.3d at 881 (district court “assiduously avoided” relying on facts related to possible error). To be sure, the District Court did initially rely on information from Uthman. But the District Court later made an express finding that Ali would be detainable even without considering any evidence from Uthman. See Ali v. Obama, No. 10-1020, 2011 WL 1897393, at *1 (D.D.C. May 17, 2011).
Like the District Court, we do not rely on evidence from al-Madhwani or Uthman in determining that Ali more like-ly than not was part of Abu Zubaydah‘s force. Therefore, any asserted error re-sulting from the Government‘s alleged fail-ure to disclose evidence undermining the credibility of those two detainees had no bearing on thе outcome of the case in the district court, nor any bearing on the out-come of this appeal. Cf. Al-Bihani, 590 F.3d at 881 (asserted error would not re-quire reversal because it “would not have changed the outcome of the case“).
Second, Ali asserts a variety of challenges related to the Government‘s presentation of the case, including its deci-sion to amend its factual allegations and renumber its exhibits before the habeas hearing, which allegedly deprived Ali‘s counsel of time to prepare. None of those claims constitutes an error that justifies reversal on appeal. Far from depriving Ali of a fair hearing, the District Court prudently accommodated Ali‘s counsel‘s re-quests for additional preparation time by rescheduling the habeas hearing from Oc-tober 2010 to December 2010 and by de-laying closing arguments by an extra day. See Tr. of Hearing at 81, Ali v. Obama, No. 10-1020 (D.D.C. Dec. 15, 2010); Min-ute Order, Ali v. Obama, No. 10-1020 (D.D.C. Oct. 4, 2010); Motion to Resched-ule Habeas Hearing, Ali v. Obama, No. 10-1020 (D.D.C. Sept. 15, 2010). At the same time, the District Court appropriate-ly moved the case along promptly, consis-tent with the Supreme Court‘s directive in Boumediene. See Boumediene, 553 U.S. at 795.
Third, Ali cursorily alleges judicial bias by the District Judge. That claim lacks merit. Ali does not identify any actions that demonstrate improper judicial bias. Consistent with Supreme Court precedent, Ali received “a meaningful opportunity” to contest his detention. Id. at 779.
*
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Based on the evidence that we have outlined, Ali more likely thаn not was part of Abu Zubaydah‘s force. To be sure, as in any criminal or civil case, there remains a possibility that the contrary conclusion is true—in other words, that Ali was not part of Abu Zubaydah‘s force. But the preponderance standard entails decisions based on the more likely conclusion. In our judgment, the evidence here demon-strates that Ali more likely than not was part of Zubaydah‘s force. The President
In reaching our conclusion, we empha-size that this is not a federal criminal or military commission proceeding. Ali is not being criminally punished for his past be-havior. Rather, the United States is de-taining Ali because of his status as an enemy combatant in an ongoing war. Such military detention is a traditional, lawful, and essential part of successfully waging war. See Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004). Importantly, the standard of proof for such military detention is not the same as the standard of proof for criminal punishment, in part because the purpose of detention is not punishment and in part because military detention—unlike a crimi-nal or military commission sentence—comes to an end with the end of hostilities.
We are of course aware that this is a long war with no end in sight. We under-stand Ali‘s concern that his membership in Zubaydah‘s force, even if it justified deten-tion as an enemy combatant for some peri-od of time, does not justify a “lifetime detention.” Reply Br. 28 (capitalization altered). But the 2001 AUMF does not have a time limit, and the Constitution allows detention of enemy combatants for the duration of hostilities. See Hamdi, 542 U.S. at 521; compare
We affirm the judgment of the District Court denying Ali‘s petition for a writ of habeas corpus.
So ordered.
EDWARDS, Senior Circuit Judge, concurring in the judgment.
The
That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, author-ized, 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, or-ganizations or persons.
Abdul Razak Ali‘s habeas petition has been denied in this case because, as the majority says,
Ali was captured in a terrorist guest-house in Pakistan where he resided with Abu Zubaydah and the senior leaders of Zubaydah‘s terrorist force. Ali had been there for about 18 days. The guesthouse where Ali lived contained materials аssociated with al Qaeda and terrorism, and Ali participated in at least one component of Abu Zubaydah‘s training program [by taking English les-sons]. Moreover, Ali had traveled to Afghanistan to fight in the war....
Nothing in the record indicates that Ali “planned, authorized, committed, or aided the terrorist attacks” of September 11, 2001, or that he “harbored [terrorist] or-ganizations or persons,” or that he was “part of or substantially supported al-Qae-da, the Taliban, or associated forces,” or that he “committed a belligerent act” against the United States. All may be a person of some concern to Government officials, but he is not someone whо trans-gressed the provisions of the AUMF or the NDAA. Ali‘s principal sin is that he lived in a “guest house” for “about 18 days.”
The majority attempts to overcome this disjunction between Ali‘s alleged actions and the conduct prohibited by the AUMF and the NDAA by pointing to Ali‘s “per-sonal associations” with Abu Zubaydah during Ali‘s very brief stay in the guest house. The majority‘s reliance on a “per-sonal associations” test to justify its con-clusion that Ali is detainable as an “enemy combatant” rests on the case law from this circuit cited in the majority opinion, which I am bound to follow. However, what is notable here is that there is a clear dis-junction between the law of the circuit and the statutes that thе case law purports to uphold. In other words, the “personal as-sociations” test is well beyond what the AUMF and the NDAA prescribe.
The majority explains that “[t]he pur-pose of military detention is to detain ene-my combatants for the duration of hostili-ties so as to keep them off the battlefield and help win the war.” This is indisputa-ble, but it is no consolation for Ali because the result of our judgment today is that Ali may now be detained for life.
The majority acknowledges, as it must, that the “war against al Qaeda, the Tali-ban, and associated forces obviously con-tinues,” and there is no end in sight. Our Nation‘s “war on terror” started twelve years ago, and it is likely to continue throughout Ali‘s natural life. Thus, Ali may well remain in prison for the rest of his life. It seems bizarre, to say the least, that someone like Ali, who has never been charged with or found guilty of a criminal act and who has never “planned, author-ized, committed, or aided [any] terrorist attacks,” is now marked for a life sentence.
The majority says that “it is not the Judiciary‘s proper role to devise a novel detention standard that varies with the length of detention.” Respectfully, in my view, that is not the issue. The troubling question in these detainee cases is whether the law of the circuit has stretched the meaning of the AUMF and the NDAA so far beyond the terms of these statutory authorizations that habeas corpus proceed-