Mashour Abdullah Muqbel ALSABRI, Petitioner-Appellant v. Barack OBAMA, et al., Respondents-Appellees.
No. 11-5081.
United States Court of Appeals, District of Columbia Circuit.
Argued Oct. 24, 2011. Decided April 27, 2012. Reissued May 3, 2012.
675 F.3d 1298
Before: GARLAND and KAVANAUGH, Circuit Judges, and GINSBURG, Senior Circuit Judge.
Michael P. Abate, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Tony West, Assistant Attorney General, and Robert M. Loeb, Attorney.
Opinion for the Court filed by Circuit Judge GARLAND.
Petitioner Mashour Abdullah Muqbel Alsabri, a detainee at the United States Naval Station at Guantanamo Bay, Cuba, appeals the district court‘s denial of his petition for a writ of habeas corpus. For the reasons set forth below, we affirm the judgment of the district court.1
I
The facts leading to the petitioner‘s detention are extensively chronicled in the district court‘s opinion. See Alsabri v. Obama, 764 F.Supp.2d 60 (D.D.C.2011). The following synopsis relies on the district court‘s most significant findings.
Alsabri is a Yemeni citizen who was born and raised in Saudi Arabia. He lived in Saudi Arabia until he was deported to Yemen in 1998, following an arrest for allegedly harboring an individual wanted for passport forgery. In Yemen, he associated with veteran jihadist fighters, including members of al Qaeda, and decided to travel to Afghanistan to fight with the Taliban or al Qaeda. In the summer of 2000, he traveled to Afghanistan by way of Pakistan, assisted by the Taliban and in the company of several men whо expressed a desire to become martyrs. Once in Afghanistan, Alsabri stayed at several guesthouses affiliated with the Taliban and al Qaeda. He actively sought out and received military training from the Taliban or al Qaeda, and thereafter—with the authorization of one of Osama bin Laden‘s lieutenants—traveled to the front lines of the Taliban‘s fight against the Northern Alliance.
After leaving the front, Alsabri went to Jalalabad, Afghanistan. As Coalition forces approached that city in late 2001, following al Qaeda‘s September 11, 2001 attacks against the United States, Alsabri fled eastward to a village near the border of Afghanistan and Pakistan. There he says he remained for nearly а month before crossing into Pakistan, where he was captured by Pakistani authorities in early 2002. The Pakistanis turned Alsabri over to the custody of the United States military, and he was subsequently transferred to Guantanamo Bay.
In October 2006, Alsabri filed a petition for a writ of habeas corpus. The petition
On appeal, Alsabri raises sevеral challenges to the district court‘s denial of his habeas petition. First, he disputes certain factual findings by the district court, as well as its ultimate conclusion that he was part of the Taliban, al Qaeda, or associated forces. Second, he argues that the district court committed procedural error in admitting certain pieces of evidence over his objections. Finally, he maintains that the court‘s decision rests on several legal errors. We address Alsabri‘s factual disputes in Part II, his evidentiary objections in Part III, and his legal arguments in Part IV.
II
Following al Qaeda‘s attacks against the United States, Congress passed the Authorization for Use of Military Force (AUMF), which providеs:
[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
The district court‘s decision denying the writ presents a mixed question of law and fact. See Khan, 655 F.3d at 26; Awad v. Obama, 608 F.3d 1, 10 (D.C.Cir.2010). We review the court‘s specific factual determinations about what happened—why Alsabri traveled to Afghanistan, where he stayed, and what he did—for clear error, see Khan, 655 F.3d at 26; Barhoumi v. Obama, 609 F.3d 416, 423 (D.C.Cir.2010), which we may find only if, “‘on the entire evidence,’ we are ‘left with the definite and firm conviction that a mistake has been committed,‘” Barhoumi, 609 F.3d at 423 (quoting Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)). The “question whether evidence is sufficiently reliable to credit is [also] one we review for clear error.” Al Alwi v. Obama, 653 F.3d 11, 19 (D.C.Cir.2011); see Khan, 655 F.3d at 26; Awad, 608 F.3d at 8. The district court‘s overall conclusion as to “whether a detainee‘s alleged conduсt is sufficient to make him part of” the Taliban, al Qaeda, or associated forces for purposes of the AUMF, however, is a “legal question[ ] that we review de novo.” Khan, 655 F.3d at 26 (internal quotation marks omitted); see Al Alwi, 653 F.3d at 16; Barhoumi, 609 F.3d at 423.
A
We begin with the district court‘s determination that Alsabri traveled to Afghanistan for the purpose of fighting with the Taliban or al Qaeda. The court based that determination on four subsidiary findings regarding: (a) Alsabri‘s association with veteran jihadists while in Yemen; (b) the role of a former Taliban fighter in encouraging Alsabri to travel to Afghanistan; (c) the influence of a fatwa issued by two Saudi clerics; and (d) Alsabri‘s travel route and travel companions. Alsabri contests various individual pieces of evidence underlying these findings, but he does not dispute the greater part of the evidence on which the district court relied. Indeed, the court‘s findings are supported primarily by Alsabri‘s own admissions, which he has not repudiated.2
Alsabri concedes that, at some point before traveling to Afghanistan, he stayed for approximately two weeks at a boardinghouse in Sana‘a, Yemen with a group of veteran fighters. At least two of them were members of the Taliban or al Qaeda; one would go on to become one of the suicide bombers of the U.S.S. Cole. See Alsabri, 764 F.Supp.2d at 63, 72-76; Pet‘r Br. 8-9. After leaving the boardinghouse, Alsabri maintained relationships with several of those individuals and inquired about the whereabouts of one of them while he was in Afghanistan. Alsabri, 764 F.Supp.2d at 75 (сiting GTMO Intelligence Report at 3 (Jan. 10, 2004) (J.A. 818)). Although not dispositive, such “evidence of association with other al Qaeda members is itself probative” of membership in al Qaeda or associated forces. Uthman v. Obama, 637 F.3d 400, 405 (D.C.Cir.2011). Alsabri also admits that two of the primary influences on his decision to travel to Afghanistan were his discussions with a former Taliban fighter who told Alsabri about his military training,3 and a fatwa
Alsabri further states that, upon departing Sana‘a, he flew to Karachi, Pakistan, and then traveled on to Quetta, Pakistan, before finally crossing the border into Afghanistаn and arriving at a guesthouse in Kandahar. Alsabri, 764 F.Supp.2d at 81 (citing, inter alia, Interrogation Report at 6 (Feb. 21, 2002) (J.A. 791)); see Interrogation Report at 5-6 (May 24, 2002) (J.A. 803-04). This is the same route taken by the detainee in the Uthman case, which we described as “a common al Qaeda route” that “can be probative evidence that the traveler was part of al Qaeda.” Uthman, 637 F.3d at 405-06; see Al Odah v. United States, 611 F.3d 8, 16 (D.C.Cir.2010). Moreover, while in Quetta, Alsabri stayed at a guesthouse known as the “Daftar al-Taliban,” which Alsabri understood was operated by the Taliban. Alsabri, 764 F.Supp.2d at 83 (citing interrogation reports). The district court found that Taliban personnel at that house “arranged for [Alsabri‘s] entry into Afghanistan.” Id.
After spending two or three days at Daftar al-Taliban, Alsabri traveled by taxi with three other men to the border of Afghanistan. Id. at 81. One of them told Alsabri that he was going to Afghanistan for jihad, and all three told him that they intended to become martyrs. Id. (citing Interrogation Report at 3 (July 17, 2002) (J.A. 832); Interrogation Report at 2 (July 18, 2002) (J.A. 838)). At the border, the men switched from the taxi to motorcycles because, Alsabri said, motorcycles “were not required to stop at the border.” Interrogation Report at 1 (Feb. 27, 2002) (J.A. 808). Then, once inside Afghanistan, the taxi picked the men up again and took them to a guesthouse in Kandahar. Alsabri, 764 F.Supp.2d at 81. As the district court noted, “the elaborate arrangements made by the Taliban office in Quetta to ferry the petitioner across the border without detection by border patrol cаlls into question the legitimacy” of Alsabri‘s contention that he was traveling to Afghanistan for a purpose other than to join the Taliban and/or al Qaeda. Id.
In light of this evidence, considered as a whole, we find no clear error in the district court‘s conclusion “that the petitioner traveled to Afghanistan in order to fight with the Taliban, al-Qaida or associated enemy forces.” Id. at 82. Although such an “intention to fight is inadequate by itself to make someone ‘part of’ the Taliban or al Qaeda, ‘it is nonetheless compelling evidence when ... it accompanies additional evidence of conduct consistent with an effectuation of that intent.‘” Awad, 608 F.3d at 9. As discussed below, the district court properly found that, after entering Afghanistan, Alsabri took further steps consistent with that intent.
B
The district court found that “throughout his time in Afghanistan, the petitioner stayed at multiple guesthouses that he knew were affiliated with al-Qaida and the Taliban.” Alsabri, 764 F.Supp.2d at 88. Alsabri does not dispute this finding. See Oral Arg. Recording at 2:30-2:45. In light of the evidence that al Qaeda-associated guesthouses were not generally open to the public, see Expert Decl. at 3 (Sept. 19, 2008) (J.A. 870), this court has recognized that staying at such houses can be “powerful” evidence that a detainee was part of al Qaeda and/or the Taliban. Uthman, 637 F.3d at 406; see 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-Adahi v. Obama, 613 F.3d 1102, 1108-09 (D.C.Cir.2010); Al-Bihani, 590 F.3d at 873 n. 2.
The Kandahar guesthouse where Alsabri stayed after his taxi trip from Pakistan was the Haji Habash house. Alsabri, 764 F.Supp.2d at 83-84. Alsabri concedes that Haji Habash was a Taliban guesthouse operated by an al Qaeda leader, id. (citing interrogation reports), and he admits that it served as a staging ground for “people from different nations” who “were there waiting to go on training missions at either [the] Al Farouq or Abu Baida” training camps, Alsabri, 764 F.Supp.2d at 84 (quoting GTMO Intelligence Report at 2).4 Alsabri turned over his passport when he arrived, id., which was consistent with “standard al Qaeda and Taliban operating procedure[ ] when checking into an al Qaeda guesthouse in Afghanistan,” Uthman, 637 F.3d at 406 (quoting Al Odah, 611 F.3d at 15). He also admits that, during his stay at Haji Habash, he paid a daily visit to the al Qaeda-affiliated Islamic Institute across the street. Alsabri, 764 F.Supp.2d at 84 (citing interrogation reports). As the district court noted, statements by other Guantanamo detainees confirmed that the “Institute was headed by Abu Hafs al-Mauritania, a senior al-Qaida leader who associated with high-ranking Taliban and al-Qaida leaders.” Id.; see Esmail v. Obama, 639 F.3d 1075, 1076 (D.C.Cir.2011) (describing the Institute as “al Qaeda-affiliated“).
After leaving the Haji Habash guesthouse, Alsabri‘s next stop was a guesthouse in Kabul run by one of Osama bin Laden‘s lieutenants, Hamza al-Ghamdi. See Alsabri, 764 F.Supp.2d at 85 & n. 36 (citing statements by several detainees describing al-Ghamdi‘s role in al Qaeda). This was an important stop for at least two reasons. First, while at this house, Alsabri observed a visit by Ramsi bin al-Shibh, who has been identified as a coordinator of the September 11 terrorist attacks. See Resp‘ts Br. 22; Alsabri, 764 F.Supp.2d at 86 (citing Interrogation Report at 5; THE 9/11 COMMISSION REPORT: FINAL REPORT OF THE NAT‘L COMM‘N ON TERRORIST ATTACKS UPON THE UNITED STATES, at 434 (2004)). It is hardly unreasonable to infer that al-Ghamdi would not have allowed a non-affiliated guest to stay at the house during a visit by someone as imрortant to al Qaeda as bin al-Shibh. Second, al-Ghamdi himself played an important role in determining who was to receive military training and in arranging the travel of fighters to the front lines. See Alsabri, 764 F.Supp.2d at 85 & n. 36 (citing detainee statements). As we have recognized, a detainee‘s “voluntary decision to move to an al-Qaida guesthouse, a staging area for recruits heading for a military training camp, makes it more likely—indeed, very likely—that [the detainee] was himself a recruit.” Al-Adahi, 613 F.3d at 1108. Moreover, as discussed below, Alsabri admitted that he repeatedly sought al-Ghamdi‘s permission to go to the battle lines and eventually succeeded in obtaining his permission during a return visit to al-Ghamdi‘s house. Alsabri, 764 F.Supp.2d at 85-86.
Taken together, this evidencе regarding Alsabri‘s stays at the Haji Habash and al-Ghamdi guesthouses5 provides powerful
C
Alsabri‘s associations with the Taliban and al Qaeda were not limited to interacting with their members and staying at their guesthouses. Rather, the district court found that Alsabri also actively “sought out and received military-style training from the Taliban or al-Qaida” during his time in Afghanistan. Alsabri, 764 F.Supp.2d at 62. Those findings are not clearly erroneous.
To begin with, the government introduced an English translation of a document appearing to be Alsabri‘s application to attend an al Qaeda training camp. Id. at 89; see J.A. 945. According to a March 2002 FBI memorandum, the document was one of several “applications for training at Al Qaeda camps” that Coalition forces recovered from an ” ‘Arab’ office in Kandahar, Afghanistan” in December 2001. Alsabri, 764 F.Supp.2d at 89 (citing FBI Memorandum at 1). The document includes an entry listing one of the kunyas, or aliases, that Alsabri used while in Afghanistan, along with biographical details consistent with those of Alsabri‘s life. Id.; see J.A. 945. The document also states that the applicant was “referred to the camp” by two individuals, one of whom Alsabri acknowledges was an al Qaeda member he met in Sana‘a. Alsabri, 764 F.Supp.2d at 89 (citing J.A. 945). At the conclusion of this entry, the applicant lists his “[p]lans after training” as: “Jihad.” Id. (quoting J.A. 945).
Alsabri does not dispute that he is the individual referenced in that document. Instead, he argues only that “[t]here was no evidencе in the record that the [document] was filled out by [Alsabri], rather than by [a Taliban] recruiter or someone else using information that Alsabri provided.” Pet‘r Br. 49 n.7. But it is immaterial whether Alsabri filled out the application himself, or simply provided his biographical information to someone who then transcribed it. The important point is that Alsabri provided detailed personal information about himself on a document that indicates his desire to obtain military training for the purpose of engaging in jihad.
In addition to the application document, the government introduced evidence that Alsabri did in fact receive weapons training. The principal evidence was an English-language translation of a 92-page collection of documents that the government maintains were internal Taliban or al Qaeda records. A Defense Intelligence Agency (DIA) record, which the government submitted as a supplemental exhibit, indicates that the documents were captured by Coalition forces from the “Director of Al-Qa‘ida Security Training Office,” and are “similar to other materials recovered from enemy forces.” Alsabri, 764 F.Supp.2d at 90-91 (internal quotation marks omitted). The DIA, which prepared the translation of the documents, describes them as “contain[ing] [t]he names of the students admitted to the training in the tactics of [a]rtillery, communication, infantry and their distribution,” as well as the “training starting times, programs, [and] instructions about the subject matters.” Id. at 91.
The documents include multiple entries that appear to be references to Alsabri: his kunya, for example, appears on a list of “arriving brothers” in September 2000, along with biographical information that matches the information provided in the application document that Alsabri does not deny refers to him. See id. at 91-92; J.A. 989; Resp‘ts Br. 34-35. Indeed, at oral argument, counsel for Alsabri conceded
The same kunya that appears on the “arriving brothers” list—or another transliteration thereof—also appears on a roster of individuals scheduled to attend a “communications class” in February 2001. Alsabri, 764 F.Supp.2d at 91-92; see J.A. 975. Another page of the document collection shows that as of August 2001, that individual had “graduated from Anti Air Missiles” class. Alsabri, 764 F.Supp.2d at 91 (quoting J.A. 1018). As a consequence, he was to be given “priorit[y] in joining the Artillery Session[ ]” scheduled for the next day. Id.
Alsabri contends that the district court erred in concluding that the records of scheduled and completed training refer to him, arguing that the “names that comprise his alleged kunya—‘Salman’ (meaning ‘peaceful‘) and ‘al Makki’ (‘from Mecca‘)—are extremely common—essentially, the Arabic equivalent of ‘Bob, from New York.‘” Pet‘r Br. 50. But the district court did not clearly err in finding that the documents refer to Alsabri. The court carefully canvassed the evidence, noting that the internal corroboration of the names, dates, and biographical information in the various records “provides substantial evidence of their authenticity and reliability,” and that the significant overlap between the documents and Alsabri‘s statements to interrogators—including his statements regarding his travel companions, several of whose names or aliases also appear in the training records—“provide[s] further support” for the government‘s assertions. Alsabri, 764 F.Supp.2d at 91-92; cf. Barhoumi, 609 F.3d at 428 (assessing the reliability of a translated diary “by evaluating the diary‘s internal coherence as well as its consistency with uncontested record evidence, including [the detainee‘s] own statements“).
To buttress its conclusion that Alsabri received military training, the district court also properly relied on the sequence of Alsabri‘s requests to travel to the front lines. Alsabri, 764 F.Supp.2d at 92-93. Alsabri told his interrogators that he asked al-Ghamdi for permission to go to the Taliban battle lines at least twice. Id. The first time, “Al-Ghamdi denied that request ‘since he did not have any weapons training.‘” Id. at 93 (quoting Interrogation Report at 4). Alsabri then traveled to Jalalabad. After several months there, he “decided to return to Al Ghamdi‘s Arab house in Kabul to try and get to the fighting at the front line.” Id. (quoting Interrogation Report at 5). This time, al-Ghamdi “finally authorized [him] to go to the 2nd line of defense near Bagram.” Id. at 86 (quoting Interrogation Report at 6). In light of this evidence, the district court was not unreasonable in inferring “that between his first and second stays at al-Ghamdi‘s guesthouse, [Alsabri] remedied the deficiency identified by al-Ghamdi by obtaining weapons training.” Id. at 93.7
D
Alsabri‘s admission that, with al-Ghamdi‘s authorization, he traveled to the battle lines of the Taliban‘s fight against the Northern Alliance just months before his capture also weighs heavily in favor of the conclusion that he was part of the Taliban or al Qaeda. Alsabri “admitted in two separate interrogations that he went to the front to assist Taliban fighters.” Alsabri, 764 F.Supp.2d at 94 (emphasis added); see Interrogation Repоrt at 3 (Feb. 27, 2002) (J.A. 810) (“During the later part of the year, Al-Sabri began traveling to Bagram to assist Taliban fighters in their efforts against the Northern Alliance fighters.“); Interrogation Report at 6 (July 17, 2002) (J.A. 835) (stating that he went to the front “to support the Taliban who were positioned to fight [Massoud‘s] Northern Alliance troops“).8 Although Alsabri did not admit to actively participating in the fighting, he conceded that “there was fighting going on there,” and that he was “always armed.” Interrogation Report at 6 (May 24, 2002) (J.A. 804).
Alsabri now maintains that he traveled to the front lines solely “out of curiosity and to visit a friend,” Pet‘r Br. 53, an explanation that the district court was entitled to discredit in light of his previous admissions. As the district court further noted, it 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.” Alsabri, 764 F.Supp.2d at 94 (internal quotation marks omitted).
In response to the latter point, Alsabri calls our attention “to an expert report explaining that there was a long history” of the Taliban permitting individuals who were not “member[s] of their forces (or of al-Qaida) to visit” the battle lines. Pet‘r Br. 43-44. The expert described this kind of travel as a “jihad tour[ ]” for “so-called ‘Gucci jihad[i]s.‘” Decl. of Dr. Brian Williams ¶ 10 (Jan. 1, 2009) (J.A. 1496). But even if his expert‘s report is correct, Alsabri admits that he was never a “Gucci jihadi.” See Pet‘r Br. 44; Oral Arg. Recording at 17:45-17:50. Nor could he have claimed to be, given that Gucci jihadis—as the name suggests—werе usually “wealthy (at least by Afghan standards),” Pet‘r Br. 43, while Alsabri was indigent. Moreover, as the district court properly found, the fact that Alsabri sought and received authorization to travel to the battle lines from al-Ghamdi, a senior al Qaeda leader, indicates that he was not acting as an independent “freelancer,” but rather as a part of the Taliban or al Qaeda. Alsabri, 764 F.Supp.2d at 94; cf. Bensayah v. Obama, 610 F.3d 718, 725 (D.C.Cir.2010).
E
Finally, although Alsabri does not specifically challenge it, the district court‘s
In sum, we discern no clear error in the district cоurt‘s findings “that the petitioner traveled to Afghanistan to fight with the Taliban or al-Qaida, stayed at Taliban or al-Qaida guesthouses, received military training at [an] al-Qaida facility, traveled to the battle lines” of the Taliban‘s fight against the Northern Alliance, and did not “dissociate [from] these enemy forces at any point prior to his capture.” Alsabri, 764 F.Supp.2d at 96. And like the district court, we conclude that “[e]ven if none of these findings would independently justify his detention, viewed as a whole, they plainly establish that the petitioner was ‘part of’ the Taliban, al-Qaida or associated enemy” forces, so as to render his detention lawful under the AUMF. Id.9
III
Alsabri also contends that the district court erred by considering twо pieces of evidence over his objections: the DIA document the government offered to authenticate the 92-page collection of training records; and the text of a fatwa authored by Sheikh Hammoud al Aqla, one of the two Saudi religious scholars who issued the fatwa that Alsabri said influenced his decision to travel to Afghanistan. Pet‘r Br. 30-37; see Alsabri, 764 F.Supp.2d at 79-80, 90-91 & n. 40. We review the district court‘s evidentiary decisions for abuse of discretion. See Khan, 655 F.3d at 25; Al Alwi, 653 F.3d at 15.
Alsabri objects to the district court‘s consideration of the DIA document on the ground that it was not in the record prior to the merits hearing. Rather, the government offered the document on rebuttal in response to Alsabri‘s challenge to the 92-page collection as unreliable. In permitting the government to respond, the district court did not abuse its “broad dis-
Alsabri objects to the court‘s consideration of the fatwa on the ground that there was no evidence that the al Aqla fatwa that was read into the record was the same one that influenced his decision to travel to Afghanistan: the fatwa he read, he says, urged believers to go to Afghanistan “to assist” the Taliban, Alsabri, 764 F.Supp.2d at 79 (quoting Interrogation Report at 5 (May 24, 2002) (J.A. 803)), while the one the government read into the record urged them “to assist the Taliban Regime and to make Jihad,” in a context indicating that the call was to take up arms in the Taliban‘s war against the Northern Alliance, id. (emphasis added) (quoting Gov‘t‘s Mot. for Judgment on the Record at 12-13 (June 4, 2010) (J.A. 297-98)).11 Although the district court acknowledged that the fatwa proffered by the government might not have been “the exact fatwa that influenced the petitioner,” id. at 79, the court concluded that it was still probative because it was “written by the same cleric[ ] about the same conflict during roughly the same time period” and was consistent with al Aqla fatwas described by other detainees, id. at 80 n. 30; see id. at 79 & n. 28. Moreover, the court noted, “given the petitioner‘s documented awareness of the conflict in Afghanistan, it is not plausible that the petitioner could have understood the ... call to ‘assist the Taliban’ as anything other than a call to take up arms.” id. at 80. In any event, even if the admission of the fatwa were error, it was harmless: the fatwa was plainly the least significant of at least four factors that amply support the court‘s finding that Alsabri traveled to Afghanistan for the purpose of fighting with the Taliban or al Qaeda. See supra Part II.A.12
Finally, Alsabri charges that the district court committed a number of legal errors that denied him a fair hearing.
First, he contends that the district court‘s Case Management Order placed improper limitations on his discovery from the government, an argument we rejected in the Al Alwi, Al-Madhwani, and Bensayah cases. See Al Alwi, 653 F.3d at 25-26; Al-Madhwani, 642 F.3d at 1077; Bensayah, 610 F.3d at 723-24. Second, he maintains that the court‘s admission of hеarsay evidence, particularly reports of Alsabri‘s own statements, was error. We have repeatedly held, however, “that hearsay evidence is admissible in this type of habeas proceeding if the hearsay is reliable.” Awad, 608 F.3d at 7; see Khan, 655 F.3d at 26; Al Alwi, 653 F.3d at 19; Barhoumi, 609 F.3d at 422, 422-23; Al-Bihani, 590 F.3d at 879. The question of whether evidence is sufficiently reliable to credit is one we review for clear error, Al Alwi, 653 F.3d at 19, and Alsabri offers no grounds for finding clear error here, see, e.g., supra notes 2, 12. Third, Alsabri maintains that the district court erred in applying a preponderance-of-the-evidence rather than clear-and-convincing-evidence standard. But it “is now well-settled law that a preponderance of the evidence standard is constitutional in considering a habeas petition from an individual detained pursuant to authority granted by the AUMF.” Khan, 655 F.3d at 26 (quoting Al Odah, 611 F.3d at 13); see Almerfedi, 654 F.3d at 5; Al-Madhwani, 642 F.3d at 1078; Awad, 608 F.3d at 10-11.13
As is apparent, all of Alsabri‘s legal arguments are foreclosed by Circuit precedent, a point his counsel forthrightly acknowledges. See Pet‘r Br. 60 n.10. As is appropriate, counsel notes his disagreement with our rulings and includes the arguments in order to preserve the issues. Id.
V
For the foregoing reasons, we reject Alsabri‘s challenge to the district court‘s conclusion that he was “part of” the Taliban or al Qaeda. We therefore affirm the court‘s determination that Alsabri is lawfully detained pursuant to the AUMF.
So ordered.