Obaydullah v. Barack Obama

OBAYDULLAH, Detainee, Guantana- Hajj, Bay Al as next

mo Sami Obaydullah, Appellants

friend of OBAMA, President of the

Barack Unit- Panetta, and Leon E. Secre-

ed States

tary of Defense United States

America, Appellees.

No. 11-5123. Appeals, Court of

United States

District of Columbia Circuit.

Argued April Aug.

Decided argued

Lisa R. Jaskol the cause for appellant Obaydullah. her on With Ranjana Natarajan, briefs were Anne Richardson, Stormer, Cindy Panuco, Dan Eisenberg, B. Jon Pardiss Kebriaei. Benjamin Shultz, Attorney, M. U.S. De- Justice, partment argued the cause for him appellees. With on brief were Tony West, Attorney General, Assistant Loeb, and Robert M. Attorney. SENTELLE, Judge, Before: Chief GARLAND, HENDERSON and Circuit Judges.

Opinion for filed PER CURIAM.

Dissenting opinion Judge filed Chief SENTELLE. *

PER CURIAM: Obaydullah, a detainee at the United Naval Bay, States Station Guantanamo Cuba, appeals from the district court’s de- nial of his petition writ habeas corpus.1 below, For the reasons forth set affirm of the district court.

I Obaydullah Afghan is an citizen who is approximately years grew up old. He village Afghanistan’s of Milani province, Khost living where he was at the 21, 2002, time of his capture. July On military forces conducted a raid at Obay- dullah’s on intelligence home based certain Obama, reports. Obaydullah v. (D.D.C.2011).2 F.Supp.2d During * opinion NOTE: Portions According government's of this classi- intelligence, contain to the information, fied which has been redacted. [redacted] name, only Obaydul- The detainee one lah, spelled "Obaydul- which is sometimes lah.” [Obaydullah] fact member of Obay- compound the raid of cell, Qaeda forces discovered al and is living, U.S. bomb therefore dullah was pocket con- F.Supp.2d notebook in Obaydullah, detainable.” explosives, and also diagrams tained Obaydullah a motion for at 36. filed re- nearby mines buried anti-tank found 23 consideration, which was also denied. He 36; Dep’t of Def. Crim- outside. Id. at see then filed his notice of Report Task Force Investigation inal cap- contends that he was (CITF (J.A. According to Report) identity,” in “a tured of mistaken ease present during who was sergeant staff presents Br. alterna- declaration, a sworn raid and submitted explanations the notebook and tive that the Obaydullah initially diagrams said connection, argues In mines. that he wiring generator were of for a and relying gov- on the district erred for someone named the mines keeping intelligence reports ernment linked ¶ (J.A. Sergeant Decl. 5 “Karim.” Staff Qaeda gave him to al rise to raid (J.A. 713). 2495); Report CITF see Obaydul- during captured. which he was car on the tarp-covered team found a also lah also that the court erred in contends propagan- Taliban property that contained discovery. his denying requests for We on the back seat. da and had dried blood Obaydullah’s examine merits contentions (J.A. 713); Sergeant Staff Report CITF discovery ¶ in Part III and contentions in his (J.A. 2495).3 Obaydullah was Decl. 5 however, ques- Part with a begin, IV. We custody eventually trans- taken into jurisdiction. tion about our Naval Station at Guan- ferred to the U.S. Bay.4

tanamo 7, 2008, Obaydullah peti- filed a July On II corpus. In No- tion a writ of habeas Obaydul The district court denied 2008, however, government vember 30, petition lah’s habeas on November Obaydullah for the charges against filed later, Twenty-two days 2010. initiating prosecution a before a purpose of to file requested two-day a extension a result, military par- As commission. pursuant motion for to reconsideration agreed stay proceedings. ties the habeas 59(e). Rule Procedure Federal of Civil Then, following suspen- President Obama’s 59(e) provides that such Rule motions military proceedings commissions sion of entry days be filed after of must within 28 2009, Obaydullah moved to va- January 6(b)(2) Rule judgment, a final further court denied stay. cate the The district cannot be states this deadline extend motion, this court reversed. See 6(b)(2). 59(e); id. None ed. Obama, Fed.R.Civ.P. 444 Obaydullah v. theless, government oppose did not (D.C.Cir.2010).5 Thereafter, pro- habeas it. request, granted Obay and the court ceedings before the district court. resumed filed motion on dullah his Rule De 2010, 30, On court entered November (that is, days after cember judgment denying pe- habeas ultimately tition, judgment), and the court denied government that the concluding had likely May that motion on March 2011. On “that it is more than not established 5.Although proceedings military commission Additionally, U.S. forces found [redacted] against ¶ certain (J.A. have since resumed other Sergeant Staff Decl. detainees, Guantanamo try Obaydullah not indicated that it intends [redacted] before such commission. 17, 2011, Obaydullah subject filed his notice The government agrees of waiver. and, that it can such be construed as “to can, any objection the extent it waives [it] 2107(b) that an appel- states U.S.C. [Obaydullah’s] the fact that reconsidera jurisdiction of a only late court has case if timely tion motion was not filed.” U.S. Br. within days a notice is filed 4(a)(4)(A)’s (where if pro 3. But FRAP timeliness entry gov- of a case). party vision is in fact a rather ernment is to the But un- than rule, der Rule of Appellate claim-processing pertains Federal Procedure then it “ 4(a)(4)(A), timely a party “[i]f files” certain directly ‘power to our to hear [the] ” “ court, subsequent motions in the district ‘can ease’ never forfeited be or ” an appeal “the time file runs for all waived.’ Pac. R.R. Co. v. Union Bhd. of parties entry from the the order dispos- Eng’rs Locomotive & Trainmen Gen. ing the last remaining such motion.” Adjustment, Comm. R.App. (FRAP) 4(a)(4)(A). P. A Rule Fed. 584, 596, (2009) S.Ct. 175 L.Ed.2d 428 falls category, motion within this FRAP (quoting Arbaugh Corp., v. Y & H 546 U.S. 4(a)(4)(A)(iv), filed his no- 500, 514, S.Ct. 163 L.Ed.2d 1097 days tice of within appeal 60 after the (2006)). contrast, “In a ‘claim-processing 59(e) district court denied his Rule mo- rule, ... if even on a party’s unalterable potential that, problem tion.6 The is argu- application,’ adjudica does not reduce 59(e) ably, Obaydullah’s filing Rule was not tory domain of a tribunal” and may be “timely” meaning within the of FRAP (quoting forfeited. Id. v. Ryan, Kontrick 4(a)(4)(A) because it came more 28 than 443, 456, 906, 540 U.S. 124 S.Ct. 157 days entry after of the court’s judgment. (2004)). L.Ed.2d 867 we Because “have an 59(e) If his Rule timely, motion independent obligation to ensure that [we] 4(a)(4)(A)’s then trigger it failed to FRAP do not the scope jurisdic exceed of [our] tolling provision. without tolling, And tion,” jurisdictional we must “decide ques Obaydullah’s appeal be would too late tions” even when the parties “elect not to (having filed days been more than 60 after press” them. ex Henderson rel. district entered on the — Shinseki, U.S. -, Henderson v. 131 denial petition), habeas and we (2011). 1197, 1202, S.Ct. 179 L.Ed.2d 159 jurisdiction lack would thus to hear his matter, case. general “only As a timing rules that have a statutory juris basis are that, There is no doubt if Obay FDIC, dictional.” Youkelsone v. simply dullah had exceeded the deadline 473, (D.C.Cir.2011). 475 Supreme The prescribed 2107(b), § in 28 U.S.C. we Court this dividing explicit made line jurisdiction. would no have See Bowles v. when, Bowles, in it a provision found that Russell, 205, 206, 2360, 551 U.S. 4(a)(6) of FRAP allowing a district court to (2007). 168 question L.Ed.2d 96 is reopen a party’s filing time for a notice of 59(e) whether his Rule motion triggered a appeal period days” “for of 14 is an 4(a)(4)(A)’s provision, FRAP tolling not absolute requirement be withstanding may not have been expressly cause it in is 28 “timely” under the codified U.S.C. latter rule. 2107(c). 4(a)(4)(A)’s Bowles, § 213, that FRAP contends See 551 U.S. at timeliness (“Because requirement is a “claim-processing Congress rule” S.Ct. specifi- reason, tion, unquestionably For that we would but has not raised issues jurisdiction appellate challenge have proceed- over addressed in motion in these 59(e) ings. denial court’s mo- untimely appeals. Id. at by amount of time which defense cally limited States, can the notice-of- v. (citing courts extend Eberharb United 2107(c), § that limitation period 12, 15, appeal 163 L.Ed.2d 14 S.Ct. Here, general 60- [jurisdictional].”). (2005); Kontrick, 540 U.S. an filing deadline for day that particular Because dead- S.Ct. (in 2107(b)), § statutory basis obvious characteristics, both these possessed line 4(a)(4)(A) allowing in FRAP provisions statute, was not codified see id. tolling modification or deadline subject 1145 n. we held it was a basis. not have such do Thus, at 1146. the appel- forfeiture. Id. 60(b) 4(a) Rule motion untimely lant’s was suf- implements FRAP Because argument appeals to toll the deadline. is at least theoretical ficient there it, too, But jurisdictional. must be alone should Wilburn be conclusive specifically have cases from this circuit two there no real difference here: between 4(a) and of FRAP provisions examined permitting late Rule motion to that, provi- those concluded because have 4(a)’s FRAP trigger tolling provision un- statutory lack analogues, sions themselves 4(a)(4)(A)(iv) FRAP permitting der subject to they claim-processing are rules do late Rule motion to so under FRAP directly cases or forfeiture. Those waiver 4(a)(4)(A)(vi).7 And while Wilburn was de- analysis. our control just Supreme cided before Court’s de- Robinson, First, Wilburn Bowles, opinion cision the Wilburn not- (D.C.Cir.2007), found that FRAP ruling ed the Sixth Circuit’s that case (4)(a)(4)(A)(w), which tolls deadline (which upheld) later Supreme Court motion, a is a party files Rule when distinguished 14-day its the and rationale: claim-processing provision rule. That in is in window issue Bowles codified such a motion tolled deadline where 2107(c), noted, § the court while “the toll- judgment ten after days filed within was 4(a)(4)(A)(vi) ing language of Rule has not (the period days), appel- is now 28 jurisdictional by been made statute.” Wil- day had his motion one late. lant filed burn, 1145n. 480 F.3d at party had to ob- Because the other failed any remaining re- Lest there be doubt was decide ject, required court however, law, this garding circuit’s our jurisdictional. the rule was We whether holding key in Youkelsone reiterates Rather, not. we that it was conclud- held 4(a) FRAP provisions within are not tolling language Rule ed that “[t]he by claim-processing are codified statute 4(a)(4)(A)(vi) [Supreme] fits the Court’s dealt with FRAP rules. Youkelsone by rule” description claim-processing 4(a)(5)(c), which allows district court a deadline ... within which “establishing] file of appeal extend the time to a notice in motion] must file order party [the days caps such “30 after extensions at filing limit for a notice of toll time an time.” by affording prescribed affirmative The appeal” in only possible is that FRAP limitation the FRAP. This difference is im- 7. The distinction 4(a)(4)(A)(iv) specific 4(a)(4)(A)(iv) does not have a dead- precisely paral- material: if Rule line; "timely” tolling begins simply when a (vi) by specifying that a Rule 59 motion leled has been filed. But the rea- Rule motion days” appeals "filed within 28 would toll in son for the absence a deadline the FRAP deadline, 28-day subject would be limit prescribes Rule 59 itself its dead- obvious: 10-day waiver the same reason (28 days), Rule 60 motions can line whereas 4(a)(4)(A)(vi) (now 28-day) limit in Rule or some circumstances be filed months subject waiver. held years judgment the need for a after —hence day had extended the deadline one more limitation” that cannot be relaxed based on have, than it appellant should and the filed case, equities aof nor “circumvent[ed]” her appeal day. notice of on that by allowing a court to vacate and then however, party object, other had failed to reinstate a so as to re-start 4(a)(5)(C)’s that FRAP we found dead- clock for filing an appeal. Id. at 486-87. line did as a operate bar. Sealed Case does not a general establish noted that Importantly, “[although “anti-circumvention” principle applicable in authority to extend the time available to all Although circumstances. it does indi- file an is codified at 28 U.S.C. cate that we (c) should not allow 4(a)(5)(C)’s sham maneu- ], § Rule thirty-day 2107[ vers undertaken jurisdiction- to avoid limit hard length on the extension ulti- deadlines, al mately granted appears very nowhere in the existence of FRAP 4(a)(4)’s Youkelsone, U.S. Code.” 660 F.3d at tolling provision shows immediately We followed this general observation statutory filing deadline for an 4(a)(5)(c) with the conclusion that “is thus appeal can in fact be extended through the a claim-processing by rule”—followed a ci- court’s own claim-processing rules. And tation to Wilburn. Id.8 Youkelsone, Wilburn and the two cases directly most on point, Case, show that

Our decision In re we can Sealed (D.C.Cir.2010), exercise appellate jurisdiction F.3d 482 is not to even the con- when trary. First, Bowles, appellant like involved the failed to comply with the specific “reopening” provision 4(a)(4) set forth in deadlines set FRAP 4(a)(5), 2107(c). 28 U.S.C. here, As relevant respectively. As explained Wilburn in the provision substantively course of rejecting an argument —which raised 4(a)(6)(B) identical to FRAP a dis- —allows the dissent in that ease: reopen trict court to filing window for The dissent ... implies that the ... an appeal where certain conditions are met time limit contained Rule and where the motion is “filed within 180 60(b) the similar limit in Rule imported days” after entry of the judgment. 4(a)(4)(A)(vi) from FRAP jurisdic- are 2107(c); 4(a)(6)(B). § U.S.C. see FRAP by tional an attenuated line of reasoning: appellant in Sealed Case failed to file (1) 2107(a) § because 28 U.S.C. juris- is by that deadline. After his motion to re- dictional, 4(a)(1)(A) FRAP must also be open rejected was therefore by the district jurisdictional (2) because FRAP court on grounds, timeliness appellant 4(a)(1)(A) jurisdictional, is the timeliness 60(b) filed a Rule motion for relief from provisions 4(a)(4)(A) contained FRAP judgment. But he really wasn’t asking for must also be jurisdictional meaning relief from judgment; rather, he wanted — 2107(a) § that 28 U.S.C. renders Rule the district court to vacate and then rein- 59(e)’s ten-day period jurisdiction- [then] state the in one fell swoop so al, at that least for the purpose he could then appellate file an of at Id. tolling.... 486. The district court It so, unlikely is declined to do that the Su- agreed preme we that “Congress’ jurisdictional codification Court had such 4(a)(6)’s of reopening [FRAP] provisions boot-strapping in mind when it so plain- 2107(c)] [in § 28 jurisdictional U.S.C. a [is] ly tightened its use of term ‘jurisdic- Although Youkelsone did not cite subject-matter Bowles federal jurisdiction.’ court’s specifically, plainly decision followed Accordingly, its only timing rules that have a Youkelsone, precepts. See 660 F.3d at statutory 475 jurisdictional.” basis are (quoting (" 'Only Congress may Kontrick, 452, determine 906)). lower 540 U.S. at 124 S.Ct.

791 III express pre- time tional’ in relation in the federal rules. scriptions included Following against al Qaeda’s attacks Wilburn, 1146 n. 11 (emphasis F.3d at 480 2001, 11, September United States on Con- added). “jurisdictional The kind of boot- passed the Authorization for Use gress of Wilburn rejected is strapping” the court (AUMF), Military provides: Force would effectuate were precisely what we to use President is authorized all [T]he late Rule hold necessary against force appropriate hearing ap- of motion bars the nations, organizations, persons those or peal. authorized, planned, he determines com- Bowles’s Finally, treatment two earli- mitted, or terrorist aided the attacks by Supreme decisions discussed er Court 2001, 11, September occurred on or dissenting colleague does under- our organizations persons, harbored such or Bowles cit- precedents. mine our circuit’s prevent any in order to future acts of Director, Dep’t v. Browder first, ed against international terrorism the Unit- Corrections, 257, 556, 54 434 U.S. nations, organizations ed such States (1978), part merely L.Ed.2d 521 persons. or proposition string “[t]his cite for 2(a), 107-40, § L. Pub. No. 115 Stat. 224 taking has held that the long Court (2001) (codified note). § 1541 at 50 U.S.C. time ‘man- prescribed within the held, this court repeatedly “As has now ” Bowles, 551 datory jurisdictional.’ ‘gives govern- AUMF the United States 209-10, at 2360. The Court S.Ct. U.S. authority person ment to detain who awith footnote proposition followed that Qaeda “part found to of’ al have been or juris- noted stating cases “have that its ” Obama, v. Al Alwi forces,’ Taliban fact time that a significance dictional 11, (D.C.Cir.2011) Al (quoting statute,” in a and have limit is set forth States, 8, Odah United deserving “pointed § 2107 as statute (D.C.Cir.2010)), Congress since Id. 210, treatment.” see National De- that authority, affirmed Bowles cited the Similarly, S.Ct. 2360. Act for Fiscal fense Authorization Year INS, Thompson v. decision, second 112-81, L. Pub. No. Stat. 397, 11 S.Ct. L.Ed.2d (2011)(codified 1298, 1562 at 10 U.S.C. (1964), clear that merely to make it was note). § 801 overruling “unique circumstances” doc- Id. it, case. Based on the evidence before trine set forth Thomp- overruled gov S.Ct. 2360. The Court court concluded son purported] to only [it] “to the extent adequately than ernment “more estab jurisdictional exception authorize to an likely that than not that lished is more Id. It did rule” on that doctrine. based [Obaydullah] in fact a member of an al was suggest disposition the correct not what Qaeda cell, bomb is therefore detaina and Thompson in in been the ab- would have Obaydullah, the ble under AUMF.” did it exception, of that nor indicate sence presents at F.Supp.2d 36. This conclusion in that which rules were Alsabri fact. question a mixed of law and case. Obama, 1298, 1300-01 v. 684 F.3d (D.C.Cir.2012). is, whether a “That de sum, circuit’s light

In in of this decisions Youkelsone, alleged is sufficient to tainee’s conduct and Wilburn gov- in and the ” ‘part Qaeda “legal him al make objec- timeliness ernment’s waiver that we review de novo.” Khan tion, may proceed question[ ] to a we that we conclude Obama, (D.C.Cir.2011). v. F.3d Obaydullah’s consideration factu- has met specific the court’s whether its bur- But review “[w]e happened den, may about rely upon al determinations what we evidence if such we “ error,” Alsabri, at ... 684 F.3d for clear reliability are ‘able to assess the of [it] Khan, 26), (citing at as F.3d 1300-01 by evaluating” ourselves’ factors such as ‘question evidence is whether well as “[t]he “consistency coherence” “internal with ” credit,’ (quoting to sufficiently reliable id. Barhoumi, uncontested record evidence.” Alwi, may find Al We Gates, F.3d at (quoting Parhat v. if, “only evidence, ‘on the entire clear error (D.C.Cir.2008)). Here, 532 F.3d with the definite and firm left are linking pre-raid intelligence Obaydul- a mistake has been commit- conviction that Qaeda lah an al cell plainly to bomb ” Obama, ted.’ Barhoumi (quoting Id. by corroborated what was found at the (D.C.Cir.2010)). 416, 423 diagrams a notebook explo- raid: with Obaydullah’s in pocket sives and mines A Obay- buried outside his house. And while linking most direct evidence claims dullah that the raid failed to corrob- Qaeda to al from Obaydullah comes other aspects intelligence, orate his reports that intelligence precipitated the arguments rest on inconsistencies that the the raid itself. When U.S. raid9 and from court reasonably construed as mi- residence, forces entered bigger nor within the picture. For exam- containing diagrams notebook they found a ple, Obaydullah points a discrepancy to pocket. They his then explosives compared the number of mines found as found anti-tank mines buried outside that indicated in the pre-raid intelligence, nearby. compound Obaydullah does Obaydullah, see 774 F.Supp.2d at facts, not these two central al dispute specifically, goes 9. by More when entered U.S. forces times “Baidullah” names or “Bai- ¶ residence, (J.A. Obaydullah's Obaydullah 1493). they acting 33 were on a tullah.” Decl. tip supra [redacted] And [redacted] provide support at 6. willingness merfedi, financial Afghanistan

B are obviously therefore not as they found, as if inculpatory would be presented has alterna example, backyard in the of a house in for both the notebook explanations tive But, above, Washington, D.C. as noted the first, to the and the landmines. As he that, government produced evidence when diagrams the the contends that note mines initially about the at the asked scene acknowledges depict book—which he ex raid, Obaydullah nothing said about at a plosives from a class mechanical —are their left over being long ago; from rath- school in Khost that the Taliban forced attend, er, him and from which he “fled he said he was them for keeping some- days.” Obaydullah 12-13, Br. (J.A. after two Report one Karim. named CITF realizing could “Not the notes be a Again, we find that the district him,” says threat to he that he “later used government court’s decision credit the the notebook record information about a regarding this account was not clear error: store pots-and-pans operated.” Id. at upon the court relied the statements of the 52. But from to a apart his citation 2002 staff sergeant raid, who participated State Department referencing document id., against Obaydullah’s unsupported conscriptions reports of forcible claim of coercion at the scene and his Taliban, 2132, Obaydullah see J.A. pro challenge blanket to the translator’s relia- corroborating vided no evidence this ver addition, bility. In the notebook found in sion or explaining implausible of events his Obaydullah’s pocket, concededly de- on decision to hold to the notebook. More picts diagrams explosives, plainly sup- over, above, as noted pro ports a Obay- further connection between that, initially duced evidence when con dullah and the mines. Taking buried fronted with the notebook at the scene of these circumstances together, the district raid, Obaydullah diagrams said the court did not commit clear error when it depictions were wiring generator. Obaydullah’s declined to credit explanation (J.A. 713); Report CITF Staff Sergeant the mines were left over from the ¶ (J.A. 2495).13 Decl. 5 Based on that in conflict of the 1980s. consistency, we cannot find the dis Finally, Obaydullah argues that trict court committed clear error in con district court cluding explanation “fundamentally misconstrued pre-raid intelligence Obaydul credible. on which based, lah’s primarily detention is wrongly mines, As to the contends believing intelligence placed Obaydul they left were over from the conflict lah at the scene of an accidental IED against Soviets in the 1980s and were explosion, ferrying injured cell bomb mem long ago by buried family. members hospital.” 1; bers to Br. Reply see Obaydullah Br. 11-12. good He cites a Obaydullah Br. 53-54. The district court deal of evidence landmines are buried cited an report interview of the staff ser throughout the country, govern- geant participated who in the raid ment “indicat they concedes that are “abundant in ing petitioner Afghanistan, Bostan, due that the and Karim decades conflict.” ¶ (J.A. 606). Decl. 12 in the explosion, We aftermath of an accidental agree [redacted] that landmines driving buried outside house in were seen automobile taking above, keeping As with his statement about For the reasons described Karim, Obaydullah mines for disclaims this clearly crediting gov- court did not err in coercion; likely resulting statement from ernment's account. alternatively, he denies that he made it at all. to ing materially ... undermine to a tends cell members wounded bomb several theory to the the Government’s as lawful medical attention.” for hospital local (citing petitioner’s at 88 the detention.” F.Supp.2d ness of J.A. Obaydullah, 774 713)). (J.A. requests The court cited Report also states that CMO CITF of the car discovery narrowly tailored, in the backseat the blood found must be for this account. further corroboration why request the they specify must accurately charac- But while the court Id. produce material to likely to evidence the statement, see sergeant’s terized the staff case, they must and that ex petitioner’s (J.A. 713), agree with Report CITF “why on the Government plain the burden mischarac- Obaydullah that this statement is neither unfair produce to such evidence upon ap- which it intelligence terized the ly disruptive unduly nor burdensome.” based, point the to have been pears (J.A. 1110). Obaydullah § l.E con CMO intelli- dispute. not That government does that the court erred it tends district when But even if this gence stated [redacted] compel discovery denied motion to error, constituted we do characterization reliability relating information to the pro- it “infected entire agree intelligence source government’s to the dis- ceeding” or “foundational” raid, and to the prompted the circum 22, 1. reasoning. Reply Br. trict court’s surrounding Obaydullah’s stances interro only evidence af- The court this discussed review during the raid. We gation from already it had assessed evidence ter rulings only discovery for district court’s intelligence, the pre-raid [redacted] See Al-Madhwani v. abuse discretion. raid, Obaydullah’s lack of fruits of the (D.C.Cir. Obama, if we eliminate evi- credibility. And even 2011). Bostan dence that and/or injured cell driving bomb “were seen” A the uncontested hospital, members to a Although government disclosed found still that U.S. soldiers fact remains reports intelligence classified pre-raid in of blood the back substantial amounts counsel, Obaydullah’s security-cleared to (J.A. 713); car, Report seat CITF intelligence this has redacted the source of ¶ (J.A. Sergeant Decl. Staff describing information contends that source.14 The IV is highly the source sensitive—too sensi- Obaydullah further contends that tive, even, filings in classified reveal its improperly denied his the district court level, at the Secret to which discovery on two requests separate for security-cleared has access. counsel matters, it committed a number and that Br. 10. Discovery errors. re legal of additional Obaydullah requested documents “[a]ll pursuant made quests this case were on which American relating tip (CMO) adopted Order Management a Case they operating” forces were when conduct- substantially that is by the raid, nature of “including ed the used in other Guantana similar CMOs source”; identity “[a]ny and the of its tip I.F of mo cases. Section the CMO habeas fees, regarding all information boun- provide requires government to “on ties, monetary non-monetary other or or ongoing any evidence contained basis given consideration remuneration or developing the material reviewed transfer, parties apprehension, third or preparation ... the hear- return [redacted] him, petitioner”; case investigation against” Obaydullah “[d]ocuments Mot. to show whether there was ever sufficient to Strike Finding government at 7. that the Obaydullah’s or for bounty paid offered did not need disclose further informa- identity, by and capture”; “[t]he name Obaydullah’s tion about its source to coun- information, identifying any any other sel, we conclude the district court did providing [pre-raid] all sources not abuse its in denying Obay- discretion intelligence.” Obaydullah Disc, Compel Mot. to discovery request. dullah’s 1120-21). (J.A. govern- The 6-7 “agree money provided ment does B inculpatory exchange source in for infor- Obaydullah also contends that the generally mation would be relevant and improperly denied his discov encompassed already govern- within the ery request for concerning “evidence coer obligation ment’s under disclosure CMO cion by interrogated forces who U.S. him Br. 41 But it I.F.” n.21. insists it U.S. during July Obaydullah raid.” complied obligations with all of its added). (emphasis Br. 32 Obaydullah and that it cannot under the CMO disclose gave maintains that statements during anything further to counsel (that the raid and later retracted he was sensitive, highly jeopardizing without “Karim,” keeping the mines for and that See source-related information. Gov’t Re- diagrams depicted wiring notebook sponse Mot. to 4. The Strike at informa- generator) “likely product were here, us, tion government at issue tells such, coercion.” Id. at 37-38. As he ar Compartmented classified “Sensitive gues that “requirefs] ‘special Information” and evidence coercion would con- have ” handling.’ trols Id. at n.l (quoting been material to the court in rehabilitating 898, Cheney, Doe v. 902 n. 2 credibility. his (D.C.Cir.1989)). court, In the district Obaydullah amade information

Obaydullah deny request any broad does not about government may withhold classified na or coercion abuse at the hands of U.S. security tional material consistent with its officials. The district deny court did not “legitimate in protecting interest sources request. contrary, To repeated- of intelligence methods gathering.” ly government made clear that was Bush, 723, 796, Boumediene v. 553 U.S. obligated any to disclose all informa- (2008). L.Ed.2d 41 At tion relating Hearing coercion. Tr. argument, oral counsel for con (PM) (J.A. Aug. at 20-21 2905- notwithstanding ceded counsel’s se that — 06). And, fact, Obaydullah given curity clearance at the Secret level—the such specifically relation information — withhold, government could as a hypotheti to his detention at Chapman Airfield and cal example, the name of a covert agent at Bagram reports Airbase. See CITF placed in position, a sensitive even if po 704-08, 713, and memoranda at J.A. 1859- tentially Here, relevant to the case. Indeed, Obaydullah’s allega- 2485-86. government parte filing submitted an ex government tions of abuse led the to with- the court containing further information draw reliance on statements he made about its source. We have reviewed that n.9; those airbases. Br. see solely material for the purpose deter 2010(AM) (J.A. Hearing Sept. Tr. at 28 mining government whether has met CMO, its obligations under the and not for government represents The purpose there is would —to object “bolstering] government’s] concerning coercion, [the no other evidence —of SENTELLE, Judge, dissenting: the raid or otherwise. Chief during whether re- did disclose various majority’s Although opinion accu- debriefings the raid— regarding and ports rately identifies the authorities relevant to examined We have [redacted] as well as have ju- the determination of whether we with a material and find it inconsistent this to this I appeal, risdiction consider dis- mistreated dur- Obaydullah that claim conclusion, and, agree regarding its there- nothing Accordingly, there is ing raid. fore, respectfully must dissent. government’s leads us to doubt that jurisdiction The of existence is “first with district complied that it assertion question and fundamental that we are any to disclose and all court’s instruction ask and bound to answer.” Lib- Wilson relating to coercion. information (D.C.Cir.2008) (inter- by, 535 F.3d omitted). quotation

nal marks “The re- C jurisdiction quirement be established a springs threshold matter from the Finally, Obaydullah raises a number of judicial power nature and limits of of to stan legal challenges the district court’s the United and is inflexible States and evidence, proof, hearsay of its use of dard (internal exception.” quotation without Id. its the AUMF. Those application and of omitted). marks liberty We are not at prece challenges are foreclosed circuit a consider the merits of case without first (court Alsabri, at See dent. establishing jurisdiction have we to do the evi may apply preponderance a of so. may hearsay admit dence standard majority The explains procedural Alwi, evidence); (listing Al at 16 history of this case before government affirming may that the cases Maj. Op. Briefly: court. at 787-88. The of’ persons “part found to be al detain Obaydullah’s district court denied habeas argues that it Qaeda). Obaydullah also petition on November 2010. Under for a district court to consider error 59(e), Federal Rule of Civil Procedure evidence,” that argument “coerced but days had to file a motion case. As we have application no this for reconsideration. Federal Rule of Civil explained, no just there is evidence 6(b) provides Procedure the district Obaydullah’s statements at the scene of may party’s court not extend a time to act coercion, the raid the result were 59(e). under Rule But coun- any reliance on government disclaimed for, sel moved district court to which such statements as there was granted, a to file two-day Obay- extension (namely, evidence the statements motion In dullah’s for reconsideration. airbases). extension, accordance with the mistaken Rule filed his motion on V days December 2010—30 after dis- reasons, reject foregoing For the judgment. trict court entered the Obaydullah’s challenge the district district court denied the motion for recon- that he was of’ al “part court’s conclusion 24, 2011, Obay- on sideration March Qaeda. therefore affirm the court’s We May dullah filed his notice of on appeal lawfully that he is detained determination 17, 2011. denial

pursuant to the AUMF its In for a court of order United States corpus. petition for a of habeas writ jurisdiction have a appeals to over case party party, which the So ordered. 2107(a), days § from district Bowles to file a notice had must file its days so, within 60 after the notice He failed do judgment. U.S.C. entry of period later moved to reopen during 2107(a)-(b). Appellate Federal Rule of notice of appeal could file his 4(a)(4)(A) (FRAP) provides, Procedure 4(a)(6). Bowles, pursuant FRAP timely however, party files in “[i]f That rule following mo- the district court reopen allows the district court to the time the Federal Rules Civil tions under a days notice for 14 appeal file of under Procedure, appeal time to file an runs the specified conditions. See 28 U.S.C. entry the from the of order parties for all 2107(c) § (codifying 14-day peri the time remaining last such mo- disposing of the od). granted The district court the mo those motions is a motion to tion.” One of tion, gave days Bowles 17 to file his the under Rule alter or amend appeal of of days notice instead the 14 4(a)(4)(A)(iv). P. R.App. 59. Fed. by the statute and rule. Relying allowed Thus, Obaydullah “timely fil[ed]” had his Director, Department on Browder v. of 59(e) reconsideration, the Rule motion Corrections, 257, 264, 434 U.S. him motion have tolled the time for would (1978), 556, 54 L.Ed.2d 521 the Sixth Cir appeal of the regarding file his notice jurisdiction cuit held that it did not have court underlying district decision and we consider Bowles’ appeal because the Su jurisdiction appeal over of would have preme consistently Court had held that the however, Obaydullah, that decision. did filing of of timely appeal a notice is “man 59(e) motion, timely file his Rule rais- jurisdictional.” datory and Bowles v. Rus ing question untimely whether an the Rule sell, (6th 668, Cir.2005), aff'd, 673 59(e) proceed by motion allowed to the 205, 2360, 551 127 U.S. S.Ct. 168 L.Ed.2d unchallenged by gov- district court and (2007). 96 the running 60-day ernment tolls Emphasizing taking that “the of an ap- a appeal. time limit to file notice of Based peal prescribed within the time is ‘manda- jurisdictional terms of explicit on the ” tory jurisdictional,’ and Supreme themselves, statute the rules it and does Court affirmed the Sixth Circuit’s holding My colleagues not. support find case jurisdiction that it did not have to consider from departing law for the terms of the Bowles, Bowles’ 551 U.S. at 209- statute the federal civil rules of 10, (citation omitted). 127 S.Ct. 2360 The appellate procedure order to exercise explained long Court has treated jurisdiction. they The case law cite leads statutory taking time limits appeal an me to the conclusion. opposite jurisdictional requirements. 210, at Id. Russell, 205, In Bowles v. S.Ct. The amount of time (2007), S.Ct. L.Ed.2d the Su- which a district reopen court could Bowles’ preme Court considered a court whether taking time for an appeal codified at jurisdiction of appeals had consider 2107(c), and, § thus, 28 U.S.C. the Su- appeal after of a decision the district court preme jurisdictional Court held it be a purported party’s to extend time to file requirement. appeal beyond statutory 14-day its Bowles, 2107(c). 14-day Like the period period § set out in 28 U.S.C. 206-07, 60-day time limit to appeal U.S. at file notice of S.Ct. 2360. The dis- trict in this petition denied the issue case is set out in had habeas Bowles, of Procedure, Keith Appellate convicted murder. Un- Federal Rules of 4(a)(1)(A) 4(a)(1)(B), der FRAP R.App. 28 U.S.C. Fed. P. and codified in 2107(b). evidentiary hearing was stay and an There is no statute, 28 U.S.C. after the District Court’s jurisdic- days filed 28 60-day period is question dis- directing petitioner be the 60- order question no There is tional. untimely under charged. not have It was met. We do was not day period could not should be dis- Rules ... and therefore petition Civil jurisdiction, running time to have tolled the missed. 4(a). Ap- The Court [FRAP] under majority opinion, As I understand jurisdiction to re- therefore lacked peals must decide that we colleagues believe

my the order of October view 4(a)(4)(A)(iv), pro- FRAP whether 264-65, In Id. 98 S.Ct. 556. under Rule timely motion that a vides “ju term questioned the use file a Court the time to running tolls Browder, Robinson, rule risdictional” claim-processing appeal, notice States, cases. Eberhart v. United ma- other requirement. aor 17-18, can S.Ct. requirement that if the 546 U.S. reasons jority Bowles, (2005). rule, 2007, the But in in L.Ed.2d 14 claim-processing deemed be the Court cited Browders the timeliness treatment of or forfeit may waive parties 59(e) motion so at approval. the Rule with 551 U.S. filing in time limits defect 59(e) may 2, motion untimely Rule & n. 127 S.Ct. 2360. The Court that an 209-10 appeal. a notice of negative time to file its recent treat explained toll cases, this raising of ment of Robinson propriety I and other such as doubt While majority’s Browder, all, that relied on Robinson I believe the for the at question anal- proper incorrect. The limit set for a to it is the time proposition answer by Bowles. governed jurisdictional, is “dic ysis question appeal is was notice the choice “[g]iven ta” and that between Bowles, in the Su- its decision To reach in dicta our calling question into some previous two of its Court addressed preme overruling a effectively opinions recent essentially the same involved cases that we think the century’s practice, worth of is, today before this Court question —that only prudent course.” option former 59(e) erroneously motion a Rule whether Bowles, 2, 127 at 210 n. S.Ct. 2360 551 U.S. its despite court by the district entertained omitted). (internal Obaydul punctuation time limit statutory untimeliness tolls holding within the precisely case fits lah’s a notice of filing Browder. Browder v. clarified that The first Court Bowles, also ex- Supreme Court In Corrections, Director, Dep’t of 434 U.S. cir- “unique the so-called overruled plicitly (1978), 556, 257, L.Ed.2d 521 98 54 S.Ct. holding it had announced cumstances” Browder, Court ex In good law. Lines, Cherry Inc. v. Meat Harris Truck filing limit the time set plained Packers, Inc., 215, 283, 9 83 S.Ct. 371 U.S. § 2107 is in 28 U.S.C. appeal notice of ” (1962) curiam) “ ap- (per 261 L.Ed.2d Brow jurisdictional.’ ‘mandatory and Thompson v. thereafter plied only once der, 264, (quoting 556 at S.Ct. 434 U.S. 397, INS, 384, 84 S.Ct. 375 U.S. Robinson, 220, States 361 U.S. United (1964). Bowles, 551 U.S. at L.Ed.2d (1960)). 229, 282, 4 L.Ed.2d 80 S.Ct. (“[W]e overrule Harris 214, 127 S.Ct. 2360 continued: The Court Thompson to the extent Truck-Lines a notice of filing of time for running to a exception to authorize an they purport tolled, according to the may be appeal rule.”). 4(a), timely motion by a terms of Rule Thompson, the district court denied In to ... pursuant filed in the district for naturalization. party’s petition for a Respondent’s motion Rule 59. 384-85, 84 S.Ct. 397. days U.S. Twelve filing a which, Rule if act— motion— later, done, petitioner properly filed a motion postponed for a the deadline for filing 385, appeal, pursuant new trial to Rule the District id. at Court gave permission for the 397, which, time, act to at that be done required improperly. stood, If Thompson Obaydul- such days motions to be filed within 10 lah would perhaps presented have “unique entry final judgment. The Gov- circumstances” that would trump the stat- object ernment did not to the timeliness of utory jurisdictional requirement. But be- motion, however, and the district cause the Supreme Court expressly held court declared that the motion was “made ” Bowles that such “unique circumstances” ample ‘in time.’ Id. at 84 S.Ct. 397. cannot outweigh jurisdictional require- The district court denied the Rule 59 mo- ments, I am compelled to reach the conclu- tion. days Within 60 of the denial of the sion that we do jurisdiction not have over motion, within Rule 59 but not days this matter. original entry of judgment by the dis- ' If Supreme Court’s decision in court, petitioner trict filed a notice of exist, Bowles did not the majority might be appeal. Thompson, correct that this Court’s decisions Wil time, S.Ct. 397. At that 60-day time Robinson, (D.C.Cir. burn v. 480 F.3d 1140 limit prescribed by Federal Rule of 2007), FDIC, and Youkelsone v. Civil Procedure which also provided (D.C.Cir.2011), should control our rea the time for “commences to Wilburn, soning here. however, was de run computed and is to be from entry Bowles, cided before and Youkelsone fails following upon orders made to even mention Bowles. Both address timely motion under such including rules” different rules than the ones at issue in “granting or denying a motion under Rule Further, this case. this Court also has 59 to alter or judgment.” amend the See decided (Bowles), In re Sealed Case id. The Seventh Circuit Court Appeals (D.C.Cir.2009), which, relying on dismissed the because it deter- Supreme (unrelated) Bowles, Court’s mined that petitioner’s untimely post-trial held that a claim-processing rule cannot be motions did not toll the running of the used to circumvent the time time for appeal. Id. 2107(a). limit of 21 U.S.C. In re Sealed (Bowles), Case 624 F.3d at 486. The Supreme Court held that because the petitioner which, “did an act if proper- We need not deeply delve into the cir- ly done, postponed the deadline for cuit precedent, however, because the Su- filing of appeal” preme and “the Court’s binding District decisions should Court concluded that control the outcome act had here: been Bowles over- done,” Thompson ruled properly put Browder case back on presented ground, solid Browder, and Bowles and “unique circumstances” that would allow directly addresses the question the Court of Appeals to jurisdic- exercise here, raised should govern this case. They tion; the Court vacated and remanded the dictate that this Court does juris- not have case to the Court of Appeals to hear the diction over case on the merits. Id. at 84 S.Ct. 397. This I precisely respectfully dissent. rationale that Supreme Bowles, Court overruled in U.S. at pre- cisely the rationale majority appears to

apply this case. did an notes were mines buried “25 to contest though he does some of details. compound,” 30 meters outside Obay- Br. 51 Obaydullah (asserting See “the Br. 45 original).10 dullah (emphasis in. not ... notebook does contain ‘detailed’ it, the district put As court “[w]hat mat- construction,” on IED instructions were, fact, ters is there 23 anti-tank “only general information that would serve ... proxim- mines were found close as notes for an refresher individual trained ity petitioner’s compound.” Obay- subject”); (raising on the id. at 44-45 dis dullah, 774 mines, crepancy F.Supp.2d Perhaps in number and location of compared pre-raid intelligence). point, even more to the the intelligence linking Obaydullah Qaeda al bomb Notwithstanding notebook cell fact is corroborated that he had mines, gov- contends that diagrams notebook with of explosives in pre-raid intelligence reports ernment’s pocket. possible Id. While it is Qaeda to al linking him are not reliable bombs the notebook can be ex- been sufficiently have not corroborat- circumstances, plained by other that, ed. see explained although We have raw infra reports intelligence may provide alone Section III.B —or that a sufficient basis for a assess some sort of “freelance” bomb-maker not

Notes

that see also notes 4. [redacted] dispute discrep- There also some is about 10. [redacted] regarding ancies But [redacted] names: [redacted] Obaydullah acknowledged has he some- that [redacted] 793 Obama, making coerced into the statements v. was Qaeda, al Salahi linked to cf. (D.C.Cir.2010) (notwithstanding pre- claim that dis 752 —the alternative”); “in the and the dis- sented circum conclusion that these trict court’s in re- justified court was therefore trict pre sufficiently corroborated the stances claim as not garding mistranslation falls well the realm intelligence raid within Second, not Obaydullah does credible. of reasonableness. interpretation any particu- challenge the of by Likewise, is corroborated [redacted] spoke true proffer lar words he or their that, according to the staff ser- the fact meaning. only He makes a blanket con- raid, during the geant present was who not have tention that court should initially keeping Obaydullah said he was credibility to particular afforded transla- (J.A. “Karim,” Report CITF mines later fired tor because translator was 713). that his Obaydullah suggests now faulty making Obaydul- translations. may the scene the raid statements at of (He challenge Br. n.ll. transla- lah does coerced, or, alternatively, have been particular by of statements other tions at has he this all. But he never said during interrogations, translators other of at the scene shown no evidence coercion id., those are not at issue statements raid, argument nor did he this raise here.) cannot We conclude that the dis- stated, court below. He has the district court’s decision the transla- trict to credit acknowledges, that he and the Obaydullah error has tion was clear when by plastic and had a was restrained cuffs allegation specific, made no of a material during hood over his head raid. placed Barhoumi, mistranslation. F.3d Cf. ¶2 (J.A. 1484); Obaydullah Decl. Staff (rejecting petitioner’s “suggestion ¶ (J.A. 2495). Sergeant But those Decl. that the translator’s forthrightness regard- rejec- alone do not warrant circumstances ing surrounding uncertainties the date of statements, on any tion reliance particular diary taints the entries somehow affir- particularly because there was other whole”). Third, reliability diary as a Obaydullah mative evidence Obaydullah event concedes that he coerced.11 relationship have a a man named did with ¶ Bostan, Obaydullah Karim Traverse alternative, Obaydullah sug In the (J.A. 1459) Guantanamo detainee —another gests that he never made the statements who, according government, challenging court’s by all the district implicated “Karim” here.12 (and government’s) reliance on transla raid. This made at the scene of the con- Finally, tions we note that First, argument problems. Qaeda three it is corrobo- has nections to al are further suggestion with his that he rated [redacted] inconsistent organizations,’ provide or to 'wit- to terrorist [redacted] support’ groups,” ting operational to terrorist Qaeda. Obama, including al and Karim Bos- states Almerfedi (D.C.Cir.2011); Obaydullah, see Obaydul- partners. business tan were former evi- 5; F.Supp.2d ¶ at 39. The district court cited (J.A. lah Br. Traverse Obaydullah's relationship with Bos- dence of 1459). dispute they He does not also respective (JT), and their involvement in JT as tan Tablighi members of Jama’at were both ¶ support finding Obaydul- (J.A. one factor they met. is how Traverse which Qaeda. Obaydullah, 774 part of al missionary organi- lah was "an Islamic JT is zation, F.Supp.2d at 39. has likewise intelligence designated This court membership or with JT to Support category association Entity!,] found Terrorist Qaeda. membership Al- probative of in al organizations that has ‘demonstrated intent be

Case Details

Case Name: Obaydullah v. Barack Obama

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Aug 10, 2012

Citation: 688 F.3d 784

Docket Number: 11-5123

Court Abbreviation: D.C. Cir.