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[ORAL ARGUMENT NOT YET SCHEDULED] No. 10..5217

3Jn tbe mtniteb ~tate!) <!rourt of ~ppeal!)

for tbe 11Bi!)trict of <!rolumbia <!rircuit

GHANIM ABDULRAHMAN AL..HARBI, et al., Petitioners,

RAVILMINGAZOV, Petitioner..Appellee,

v.

BARACK H. OBAMA, et al., Respondents ..Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRIEF FOR RESPONDENTS..APPELLANTS

TONY WEST Assistant Attorney General

DOUGLAS N. LETTER ROBERT M. LOEB LEWIS S. YELIN, (202) 514..3425

Attorneys, Appellate Staff Civil Division, Room 7322 U.S. Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C. 20530..0001


Case: 10-5217 Document: 1281991 Filed: 12/08/2010 Page: 1

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to Circuit Rule 28(a) (1), the undersigned counsel certifies as follows:

A. Parties and Amici

Petitioners in the district court are Ghanim Abdulrahman Al~Harbi, Ravil

Mingazov, Zainulabidin Merozhev, and Elham Battayav (as next friend ofpetitioners).

The district court opinion in this appeal pertains only to Ravil Mingazov (ISN 702),

who is the real party in interest and appellee in this Court.

The respondents in the district court and appellants in this Court are President

of the United States Barack Obamaj Secretary ofDefense Robert Gatesj Commander,

Joint Task Force~GTMO Admiral Jeffrey Harbeson·; and Commander, Joint

Detention Group, Joint Task Force~GTMO Colonel Donnie Thomas.

Associated Press, the New York Times Company, and USA Today were

movants in the district court.

B. Rulings Under Review

The government appeals from the May 13, 2010 order of the district court

(Kennedy, J.) granting Ravil Mingazov's petition for a writ of habeas corpus. The

classified opinion is reproduced in the appendix at JA 5. The unclassified opinion is

reported at 2010 WL 2398883.

• Jeffrey Harbeson should be substituted for Tom Copeman pursuant to Fed. R. App. P. 25(d).

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C. Related Cases

This case was previously before this Court. See Al~Harbi v. Bush, Nos. 06~5328

(D.C. Cir.). That appeal was remanded to the district court for further proceedings

in light of the Supreme Court's opinion in Boumediene v. Bush, 128 S. Ct. 2229 (2008).

See Al Ginco v. Bush, Per Curiam Order, No. 06~5191 (D.C. Cir. Aug. 29, 2008)

(entered on docket in No. 06~5328).

This case was also before this Court on appeal from an order denying

petitioners' motion for an order requiring respondents to provide counsel for

petitioners with factual returns. See Al~Harbi v. Bush, No. 07~5052 (D.C. Cir.). This

Court vacated the order and remanded the case to the district court. See Al~Harbi v.

Bush, Per Curiam Order, No. 07~5052 (D.C. Cir.) (Aug. 29, 2008).

This case was also before this Court on appeal from an order requiring

respondents to provide petitioners with advance notice of transfer. See Al~Harbi v.

Bush, No. 08~5327 (D.C. Cir.). This Court vacated the district court's order. See Al~

Harbi v. Bush, Per Curiam Order, No. 08~5327 (D.C. Cir.) (Sept. 3, 2010).

There are several other appeals of district court orders granting or denying a

writ ofhabeas corpus to individuals detained at Guantanamo Bay, Cuba. Those cases,

however, do not involve the "same parties," and are thus not related pursuant to

Circuit Rule 28 (a)(l) (c).

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Counsel is not aware at this time of any other related cases within the meaning

of Circuit Rule 28(a)(1)(c).

Lewis S. Yelin Counsel for Respondents

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TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES.. . . . .. i

TABLE OF AUTHORITIES , vi

GLOSSARY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. viii

STATEMENT OF JURISDICTION 1

RELEVANT STATUTORY PROVISION 3

STATEMENT OF THE CASE 4

STATEMENT OF THE FACTS 4

I. THE GOVERNMENT'S EVIDENCE ESTABLISHING THAT MINGAZOV WAS

PART OF AL QAEDA OR TALIBAN FORCES 4

A. Mingazov's Travel to Afghanistan with the Islamic Movement of Uzbekistan, a Designated Foreign Terrorist Organization Linked with al Qaeda and the Taliban.. . . . . . . . . . . . . . . . . . . . . . . . . 4

B. Mingazov's Receipt of Military,Style Training from Al Qaeda as Well as Terrorist Training in Explosives and Poisons at a Separate Camp in Afghanistan 7

C. Mingazov's Participation in Battle Together with Taliban Forces against the Northern Alliance 11

D. Mingazov's Retreat to Pakistan, Stays with Al Qaeda or Taliban, Associated Persons, Ca ture at a House with Other Taliban Fighters,

II. THE DISTRICT COURT'S OPINION 17

A. The District Court's "Command Detention Under the AUMF

Structure" Standard for 17

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B. The District Court's Evidentiary and Factual Determinations ................................................. 18

III. THE DISTRICT COURT'S STAY ORDER. . 25

SUMMARY OF ARGUMENT 25

STANDARD OF REVIEW 28

ARGUMENT 28

I. THE DISTRICT COURT ApPLIED INCORRECT LEGAL STANDARDS FOR

DETENTION 28

A. The District Court Failed to Employ a Functional Approach in Determining Whether Mingazov Was HPart of' Al Qaeda or Taliban Forces 29

B. The District Court Failed to Consider the Evidence Taken as a Whole and Failed to Consider Whether Inculpatory Evidence Was Mutually Corroborating 34

II. PROPERLY VIEWED UNDER THIS COURTS PRECEDENT, THE RECORD EVIDENCE MANDATES REVERSAL AND DENIAL OF THE WRIT 40

A. The Undisputed Facts Compel the Conclusion that It is More Likely than Not that Mingazov Was Part of Al Qaeda or Taliban Forces 40

B. Additional Record Evidence Further Compels Denial of the Writ. . 43

CONCLUSION 57

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

BseRS", /HOPORH

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TABLE OF AUTHORITIES

Cases

Al Odah v. Obama, 648 F. Supp. 2d 1 (D.D.C. 2009) 31,53

* Al Odah v. United States, 611 F.3d 8 (D.C. Cir. 2010) 28,31,35

* AI~Adahi v. Obama, 613 F.3d 1102 (D.C. Cir. 2010) ... 7,26,29,31,35,39, 43,49,50,52,53,56

* AI~Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010) 25, 29~31, 35

Anam v. Obama, 696 F. Supp. 2d 1 (D.D.C. 2010) 53

* Awad v. Obama, 608 F.3d 1 (D.C. Cir. 2010) ... 18,25,29,30,32,35,40,46

* Barhoumi v. Obama, 609 F.3d 416 (D.C. Cir. 2010) 14,35,56

* Bensayah v. Obama, 610 F.3d 718 (D.C. Cir. 2010) .... 25, 26, 28~31, 35,37, 56

Boumediene v. Bush, 553 U.S. 723 (2008) 1

Gherebi v. Obama, 609 F. Supp. 2d 43 (D.D.C. 2009) 18

Khalifh v. Obama, No. 05~1189, 2010 WL 2382925 (D.D.C. May 28, 2010) " 15

Kiyemba v. Obama, 561 F.3d 509 (D.C. Cir. 2009) , 1

Parhat v. Gates, 532 F.3d 834 (D.c. Cir. 2008) 23

* Salahi v. Obama, No. 10~5087 (D.C. Cir. Nov. 5,2010) ... 18,30,32,35,39

Sulayman v. Obama, No. 05~2386, 2010 WL 3069568 (D.D.C. July 20, 2010) .................................................... 41,51

U.S. Postal Service Bd. of Govemors v. Aikens, 460 U.S. 711 (1983) .... , .. 34

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United States v. Mathis, 216 F.3d 18 (D.C. Cir. 2000) 35

Warafi v. Obama, 704 F. Supp. 2d 32 (D.D.C. 2010) 46

Constitutional Provisions & Statutes

U.S. Canst. Art. I, § 9, d. 2 1

* Authorization for Use of Military Force, Pub. L. 107AO, § 2(a), 115 Stat. 224 (2001) 3

28 U.S.C. § 1291 2

28 U.S.C. § 1292 (a) (1) 2

28 U.S.C. § 2241 (a) 1

28 U.S.c. § 2253 (a) 2

Federal Rules

Fed. R. App. P. 4(a) (1) (B) 2

Fed. R. Evid. 804(b) (3) 52

Executive Material

Department of Defense Directive 2310.01 E (Sept. 5, 2006) 4

Exec. Order No. 13224,66 Fed. Reg. 49079 (Sept. 23, 200l) 4

Other Authority

Curtis A. Bradley &Jack L. Goldsmith, Congressional Authorization & the War on Terrorism, 118 HARV. L. REV. 2047 (2005) .... , ., ..... " .... 30

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GLOSSARY

AUMF Authorization for Use of Military Force

IMU Islamic Movement of Uzbekistan

ISN Internment Serial Number

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IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 10~5217

GHANIM ABDULRAHMAN AL~HARBI, et aI., Petitioners,

RAVIL MINGAZOV, Petitioner~Appellee,

v.

BARACK H. OBAMA, et aI., Respondents~ Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRIEF FOR RESPONDENTS~APPELLANTS

STATEMENT OF JURISDICTION

Petitioner Ravil Mingazov invoked the district court's jurisdiction in this habeas

case under 28 U.S.C. § 2241 (a) and the Suspension Clause of Article I, Section 9 of

the U.S. Constitution. Kiyemba v. Obama, 561 F.3d 509, 512 513 (D.C. Cir. 2009);

Boumediene v. Bush, 553 U.S. 723, 799 (2008) (Souter, J., concurring) ("Subsequent

legislation eliminated the statutory habeas jurisdiction over these claims, so that now

there must be constitutionally based jurisdiction or none at all."). On May 13, 2010,

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the district court entered judgment granting Mingazov's habeas petition and ordering

him released. ]A 4. This was a final order in Mingazov's habeas proceeding. See 28

U.S.c. § 2253(a). The government filed a timely notice of appeal on]une 23,2010.

]A 1237; see Fed. R. App. P. 4(a) (1) (B). This Court has appellate jurisdiction under

28 U.S.C. §§ 1291, 1292(a)(l), and 2253(a).

QUESTIONS PRESENTED

During the district court habeas proceedings, the government's evidence

established that petitioner Ravil Mingazov: (1) traveled to Afghanistan with and

received military~style training from the Islamic Movement of Uzbekistan, a

designated Foreign Terrorist Organization linked with al Qaeda and the Taliban; (2)

received military~style training from al Qaeda at the al Farouq training camp, and also

received specialized training in explosives and poisons at another terrorist training

camp in Afghanistan; (3) participated in battle with the Taliban against the Northern

Alliance; and (4) retreated from Afghanistan to Pakistan following the invasion by the

United States and coalition forces, where he stayed at al Qaeda or Taliban~associated

safehouses

The questions

presented are:

1. Whether the district court committed legal error by holding that the

government's detention authority extends only to individuals who were part of a

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seCKe,,; ; It6F6KIt

hierarchical command structure of al Qaeda, Taliban, or associated forces and who

received and executed orders within that structure;

2. Whether the district court committed legal error by examining the

government's evidence in isolation, without considering whether separate pieces of

inculpatory evidence were mutually corroborating, and without considering the

evidence as a whole;

3. Whether the district court abused its discretion by failing to credit an FBI

interrogation report because of perceived interpretation, transcription, and drafting

errors, where undisputed evidence established that there were no such errors; and

4. Whether the evidence, when examined under the proper legal standard,

compels the conclusion that Mingazov was part of al Qaeda or Taliban forces.

RELEVANT STATUTORY PROVISION

The Authorization for Use of Military Force, Pub. L. 107AO, § 2(a), 115 Stat.

224 (2001) (AUMF) provides that:

the 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.

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STATEMENT OF THE CASE

This appeal arises from a petition for a writ of habeas corpus filed by petitioner

Ravil Mingazov (ISN 702),1 challenging the lawfulness ofhis military detention by the

United States at Guantanamo Naval Base, Cuba. The district court granted the writ.

The government appeals.

STATEMENT OF THE FACTS

I. THE GOVERNMENT'S EVIDENCE ESTABLISHING THAT MINGAZOV WAS PART OF AL QAEDA OR TALmAN FORCES

A. Mingazov's Travel to Afghanistan with the Islamic Movement of Uzbekistan, a Designated Foreign Terrorist Organization Linked with al Qaeda and the T aliban

1. Petitioner Ravil Mingazov is a Russian national who was born in 1967. JA

10. Mingazov is a former Russian soldier and border guard. Ibid. By his own

admission, Mingazov left his home in Russia in 2000 and traveled to Tajikistan, where

he spent time with the Islamic Movement ofUzbekistan (IMU) and traveled with the

IMU to Konduz, Afghanistan. JA 10, 12 n.5. Also in 2000, the United States

designated the IMU a Foreign Terrorist Organization because of its terrorist activities

and its close ties with al Qaeda and the Taliban. JA 804 05; see id. 807, 214 15,378;

see also Exec. Order No. 13224, 66 Fed. Reg. 49079 (Sept. 23, 2001) (imposing

1 ISN stands for "Internment Serial Number." The Department of Defense assigns each detainee held at Guantanamo Bay such a number. See Department of Defense Directive 2310.01E at 3 (Sept. 5, 2006).

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sanctions on IMU for terrorist,related activity); see generally ]A 376 78 (describing

requirements ofand process for designation as a Foreign Terrorist Organization). The

government presented evidence that the IMU has worked closely with al Qaeda and

the Taliban in Afghanistan since the beginning of the United States' military

campaign there. See]A 214 15,807. Relying on reports of interrogations from 2002

and 2003, the government presented evidence that Mingazov admitted that, in 2000,

he went to an IMU training camp in Tajikistan OA 56,61); that he continued his

association with the IMU and traveled with it to Afghanistan in late 2000 or early

2001 OA 777 78); that he received military,style training from the IMU after arriving

in Afghanistan (JA 57, 61, 777); and that he carried a Kalashnikov rifle while

performing guard duty for the IMU OA 755 56). Mingazov provided detailed

information on the IMU's leadership OA 61, 777 78), and about the training he

received from the IMU, which included "battle drills, tactics, infantry weapons,

orienteering, survival training, mines and explosives familiarization, [physical

training,] and first aid" OA 778).

2. Mingazov did not contest that he traveled from Russia to Tajikistan in 2000

and that the IMU transported him along with others to Konduz, Afghanistan. ]A 10,

12 n.5. Though he declined to testify, Mingazov contended in the district court that

he did not join the IMU or receive military,style training from it. In an April 2009

"declaration he prepared for use in this litigation" (JA 13), Mingazov stated that he

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went to Tajikistan because he wanted to go to Afghanistan and that he "was

involuntarily held * * * in a civilian camp * * * that was run by the [IMU]." JA 520

~ 11. The declaration stated that Mingazov "did not try to escape" because he

llbelieved that the Uzbeks running the camp would transport [him] to Afghanistan."

JA 520 ~ 12. To further support his claim that he had not joined the IMU, Mingazov

pointed to his 2003 interrogation statement that the IMU had "vet[ted]" him because

the IMU was concerned that he might have been working for the Russian

government. JA 56; see JA 14, 22. In his 2009 declaration, Mingazov recanted his

earlier admission that he received training at the IMU camp, and maintained that he

performed only "household chores, cooking, chopping wood, general maintenance,

electrical wiring, etc." JA 520 ~~ 11, 12; see also JA 80, 88, 493. Mingazov urged the

district court to disregard his admissions ofhaving received military,style training from

the IMU and credit his later recantations. Mingazov claimed that because he feared

he would be treated badly if he were returned to Russia, Hhe embellished or invented

stories in the hopes of encouraging his American captors to keep him in U.S.

custody." JA 16; see JA 18; see also JA 522 23 ~ 20 (declaration statement expressing

fear of "imprisonment torture and possibly even death" if Mingazov were returned to

Russia).

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B. Mingazov's Receipt of Military.. Style Training from Al Qaeda as Well as Terrorist Training in Explosives and Poisons at a Separate Camp in Afghanistan

1. The government's evidence demonstrated that, after arriving in

Afghanistan, Mingazov received military..style training at the al Farouq training camp.

Mingazov admitted on five separate occasions that he trained at al Farouq. See JA 57,

62, 66 67, 100, 106; but see JA 76, 80 (recanting statement). As this Court has

recognized, al Farouq is an al Qaeda training facility. Al..Adahi v. Obama, 613 FJd

1102, 1107 09 (D.C. Cir. 2010). Indeed, it was

JA 404. At least

seven of the 9/11 hijackers went through basic training at al Farouq and "[m]any of

the al..Qaida senior leaders and operational cadre graduated from the al ..Faruq

program before advancement." JA 405.

Mingazov stated that he attended al Farouq for about one month with

approximately 60 to 70 others. JA 66. While at al Farouq, Mingazov further stated,

he was trained on pistols, rifles, automatic small arms, explosives, and sniper rifles.

JA 57, 62, 67; see JA 125. This description is consistent with the government's expert

declaration describing training at al Farouq. JA 404. And it is consistent with

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descriptions of training by others who attended the al Qaeda camp. See, e.g., JA 116,

128. Mingazov explained that, after the United States attacked Afghanistan, the

camp's leaders evacuated the camp and instructed attendees to avoid the major cities

because those areas would be bombed first. JA 67.

Mingazov admitted that, after leaving al Farouq, he attended Kara Karga, a

specialized terrorist camp in Afghanistan providing training in explosives and poisons.

JA 57,62,67. He said that there were only ten students at the camp, most of them

Russian, like Mingazov. JA 67. Mingazov further reported:

[The Kara Karga] instructor's name was Khabib. He showed us how to make explosive mixtures, poisons and chemical grenades from accessible resources. In practice, we made approximately five explosive mixtures and one poison. We did not use the explosive mixtures or poisons against people. The lessons lasted for approximately two weeks.

JA 62 (parentheses omitted) j see JA 67 (stating that the poisons were tested on

rabbits)

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2. Mingazov sought to rebut the government's evidence of his presence at al

Qaeda's al Farouq and other terrorist training camps by relying on his later

repudiation of his admissions. ]A 30 {citing]A 76, 80, 89 91_ Mingazov

again argued that the court should credit his repudiations because he made the

admissions to avoid being sent to Russia. See]A 522 23 ~ 20.

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c. Mingazov's Participation in Battle Together with Taliban Forces against the Northern Alliance

1. Again relying on Mingazov's admissions, the government presented evidence

that Mingazov fought as part of Taliban forces against the Northern Alliance, which

became a partner of the United States in the armed conflict against al Qaeda and

Taliban forces. In an interview with FBI agents, Mingazov explained that the Taliban

had provided security for the foreigners who entered Afghanistan. JA 106. Although

he was not forced to do so, Mingazov said, he nevertheless fought together with the

Taliban "against the Northern Alliance, not the Americans." Ibid. He fought, he

explained, because he was helping his fellow Muslim brothers. Ibid.

2. Mingazov, orally through his counsel, denied having told the FBI

interrogators that he had fought for the Taliban, and he contended that the

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interrogators inaccurately reported his statements. JA 26 & n.20. To support this

contention, Mingazov identified alleged discrepancies between the report of the FBI

interrogation and other record evidence. For example, Mingazov noted that the FBI

interrogation report stated that Mingazov said that his family was in Russia, but they

were allegedly living in Syria at the time, and that Mingazov went to a technical

school, but he went to ballet school. JA 26 27j but see JA 56 (Mingazov stated that

he went "to technical school for ballet"), Mingazov also speculated that the FBI

investigators may have confused his statements with information they obtained from

other detainees interviewed on the same day. JA 28. However, Mingazov never

accounted for his activities during the two months between the onset ofU.S. military

operations in Afghanistan in October 2001 and his flight to Pakistan in December

2001, including in his declaration prepared for use in this litigation. JA 37 n.3l.

D. Mingazov's Retreat to Pakistan, Stays with Al Qaeda or Taliban~

Associated Persons, Capture at a House with Other Taliban Fighters,

1. The government's evidence showed that Mingazov retreated to Pakistan

after the United States began military operations in Afghanistan. Mingazovexplained

that he made his way to Khowst, Afghanistan in a car with Arabs and Uzbeks and

then walked across the Pakistan border. JA 57,111 From there, he went to Lahore,

Pakistan. Ibid. j JA 125 j

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The government presented evidence that the

route Mingazov followed was one used by other al Qaeda, Taliban, and associated

fighters retreating from Afghanistan. See JA 289, 293 (reports of interrogation of

Taliban commander describing retreat route to Pakistan).

Mingazov claimed that he stayed at the Tabligh Islamic Center, located in

Raiwind, outside of Lahore, for approximately two or three months, from January

2002 until March 2002. JA 57,111 That Islamic Center is the headquarters for the

Jama'at al~Tabiligh. JA 228, 233, 237

Mingazov stated that he left the Islamic Center in March 2002 and went to

Faisalabad, Pakistan. JA 57,125. He traveled to Faisalabad

The government presented significant evidence showing

that Zubaydah is an al Qaeda~associated operative and facilitator, a fact that

Mingazov did not dispu teo2

2 See, e.g., JA 353 58 (FBI report of interrogation of detailing relation between _ and Usama Bin Laden and

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It was at the Issa House that

Mingazov was captured in March 2002. ]A 57 ,328.

The government submitted evidence that other people captured at or liked with

Issa House were Taliban fighters or associated with Zubaydah. For example, Fahmi

Abdullah (ISN 688) and Ahmed Abdul (ISN 690) were both captured at Issa House

(JA 424,436), and both admitting to serving substantial time with Taliban forces at

the front lines (JA 307, 420). In addition, ]ebran Said (ISN 696) also resided at the

Issa House. ]A 312. Said admitted to having been directed to receive electronics and

explosives training from Zubaydah and to then return to Afghanistan as a trainer OA

_ operation of terrorist trammg camps); ]A 289, 293 94 (detainee statements describing Zubaydah's role in assisting fleeing Taliban fighters in their retreat to Pakistan); see also Barhoumi v. Obama, 609 F.3d 416, 425 (D.C. Cir. 2010) (affirming judgment that Barhoumi was legally detained as part of Zubaydah's force and relying on _ interrogation report (JA 353 63 in this record) to support finding that Zubaydah operated the terrorist training camp at which Barhoumi trained).

Because there was "no dispute" that Zubaydah was an al Qaeda,associated operative (JA 41), we have not included in the joint appendix all of the evidence the government submitted to establish Zubaydah's connections with al Qaeda. However, the exhibit list preceding the Ressam declaration identifies other record evidence establishing Zubaydah's association with al Qaeda. See]A 350.

3 theIn some documents, the Issa House is referred to by its location as Crescent Mills House




SECRET! !NOFORN

441),4 and he was seen at Zubaydah's safehouse (JA 268).5 And at least one other

detainee captured at Issa House had spent time at Zubaydah's safehouse and identified

other detainees who he saw there. See JA 424,436 (Jamil Ahmed Nassir (lSN 728)

captured at Issa House); JA 267 78 (identification of other detainees who had spent

time at Zubaydah's safehouse)

4 In this document, ~n Said Wazi al-Nashit (ISN 696) is identifiedliihis Bagram detention number_ In one place the document refers to Said as but that appears to be a typographical error. The notation appears in a section entitled in a section entitled "Bagram detainee_is not otherwise mentioned in th~J~iiprt, and before and after the notation the document reports on statements

from"

5 In addition, after the district court granted Mingazov's petition for the writ, a different judge of the district court denied the writ of yet another detainee who had been captured at Issa House because the court found "clear proof of [Omar Mohammed Khalifh's (ISN 695)] longstanding membership in al-Qaida." Khalifh v.

Obama, No. 05-1189,2010 WL 2382925, at *6 (D. D.C. May 28,2010); see JA 229, 328,424 (ISN 695 captured at Issa House).

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2. Mingazov did not dispute that he traveled to Pakistan along a route used by

other retreating fighters, traveled to Faisalabad where he stayed for a night at a

safehouse where Zubaydah lived, and then stayed at the Issa House where he was

captured. JA 33,41.

Mingazov did not specifically challenge the government's evidence that his

route to Pakistan was also used by al Qaeda, Taliban, and associated fighters fleeing

the battlefield in Afghanistan. But he argued that his escape route was not

inculpatory,6 because others who were not members of those forces followed that

route, and because he was not met in Pakistan by an al Qaeda operative. JA 37 38.

Mingazov claimed that upon arriving in Lahore, he stayed at the Jama'at al~Tabiligh

Islamic Center

JA 521 ~ 16.

6 Although this is not a criminal proceeding, throughout this brief we use "inculpatory" as shorthand to mean tending to provide a basis for detention under the AUMF and "exculpatory" as shorthand to mean tending to disprove a basis for detention. In this brief, these terms do not refer to criminal liability standards, which do not limit the Department of Defense's authority to detain individuals under the AUMF.




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Mingazov asserted that he had been sent to the safehouse where Zubaydah lived

"by mistake" and that he spent only one night there before being directed to Issa

House. JA 41. Mingazov denied that Issa House was associated with al Qaeda or

Zubaydah. JA 93. And, relying on statements from other Guantanamo detainees, he

contended that many of the occupants of the house were students. JA 42 43 (citing

JA 625 26, 629, 633_ Moreover, Mingazov speculated that he may have

been lured to Issa House so that he could be turned over to the United States for a

bounty, claiming that he had been told by a U.S. service member at Bagram that Issa

House had been used for this purpose. JA 522 ~ 17. He also submitted an "interim

report" authored by "counsel for two detainees in Guantanamo" claiming that most

Guantanamo detainees were captured by Pakistani or Northern Alliances forces "at

a time in which the United States offered large bounties for capture of suspected

enemies." JA 659, 660.

II. THE DISTRICT COURT'S OPINION

A. The District Court's "Command Structure" Standard for Detention Under the AUMF

Before addressing the parties' arguments concerning the record evidence, the

district court explained the legal standard it would apply to evaluate whether the

8EeKE'f/ /N6P6KN




SGg~'I'IINQFQRN

government may properly detain an individual under the AUMF. The district court

recognized that the AUMF authorizes the government to detain anyone who is "part

of' al Qaeda, T aliban, or associated forces. JA 6. But in assessing who is "part of'

such forces, the district court did not have the benefit of this Court's subsequent

decisions in Awad, Barhoumi, Al~Adahi, and SalahC Instead, the district court

followed an earlier district court decision, under which an individual must "have some

sort of 'structured' role in the 'hierarchy' of the enemy force." JA 6 7 (quoting

Gherebi v. Obama, 609 F. Supp. 2d 43, 68 (D.D.C. 2009) (some quotation marks

omitted)). Under that standard, the district court determined that "the key question

is whether an individual 'receivers] and execute[s] orders' from the enemy force's

combat apparatus." JA 7 (quoting Gherebi, 609 F. Supp. 2d at 69 (some quotation

marks omitted)).

B. The District Court's Evidentiary and Factual Determinations

The district court assessed the government's evidence by dividing it into

separate categories and then by considering the reliability and significance of the

evidence in each category, largely without regard to evidence in the others. Rejecting

the government's evidence category by category, the district court concluded that the

government had failed to establish by a preponderance of the evidence that Mingazov

7 See Awad v. Obama, 608 F.3d 1 (D.C. Cir. 2010); Salahi v. Obama, No. 1O~

5087 (D.C. Cir. Nov. 5, 2010). Barhoumi and Al~Adahi are cited above.

8ECnT/ /ftOPORft




8ECltEYj jlfOPOlt1f

had a structured role in the command hierarchy of al Qaeda, T aliban forces, or

associated forces.

1. The district court first concluded that there is insufficient evidence to

support a finding that Mingazov became "a member" of the IMU. JA 24. The district

court found that Mingazov attended an IMU camp, but credited Mingazov's

explanation that the IMU was suspicious ofhis Russian background and so found that

Mingazov had not formally joined the IMU. JA 22. It also credited as "plausible and

not suspicious" Mingazov's explanation that he associated with the IMU only because

it could transport him to Afghanistan. Ibid. Regarding Mingazov's later recantation

of his statement that he had received military,style training from the IMU, the court

found "believable" Mingazov's 2009 explanation that he had fabricated the story in

the hope that he would be sent to Guantanamo Bay instead of Russia. Ibid.

2. Separately considering the evidence that Mingazov had received military,

style or terrorist training after leaving the IMU, the district court declined to "find

that Mingazov attended Al Farouq or any other training camp." JA 32. Although

Mingazov had admitted to such training, the district court credited Mingazov's claim

that he made up inculpatory statements to avoid being sent to Russia. JA 32 33. It

also based its decision on Mingazov's recantations and the supposed absence of

"corroborating evidence" for Mingazov's participation at training camps. Ibid. _

8BGRB'4'//NOFORN




SECK:E'f//N6P6ItN

Accordingly, the district

court concluded that the government failed to establish "that Mingazov attended Al

Qaeda~affiliatedtraining camps in Afghanistan." Ibid.

3. Moving on to the next category and again considering it separately from the

rest of the evidence, the district court concluded that the government had failed to

establish "that Mingazov was more likely than not a fighter for the Taliban." JA 24.

In particular, the court noted concerns about relying on the FBI report containing

Mingazov's admission of fighting for the Taliban.8 Without considering the evidence

8 Because it wished to rule "on all of the available evidence," the district court admitted the report, which had been recently discovered. JA 24 25; see id. 1 3. But the court explained that the timing of the government's introduction of the report would affect the court's determination of "what value to place on the document's

SEeBYiiN6P6KN




8BORB'I'{ (N9F9RN

of Mingazov's other activities, the district court said that the record lacked

corroborating evidence regarding Mingazov's fighting. JA 26. The district court

further noted various inconsistencies identified by Mingazov between the FBI

interrogation report and other record evidence. 'The nature and frequency of the

errors" suggested to the district court "that there were problems with the interpreter's

translation, transcription of notes during the interview, the drafting of the report, or

perhaps at all of these stages." JA 27. The district court acknowledged that Mingazov

might himself be "the source of the incorrect information." JA 27 n.2l. But even if

that were correct, the court concluded, the government's case "is no stronger"

because" [ilf Mingazov gave untrue details about other parts of his life, he may also

have lied about fighting for the Taliban." Ibid. In light of these concerns, the district

court found the report insufficient to support a determination that Mingazov fought

with the Taliban. JA 28.

Finding it "consistent" with Mingazov's statements OA 35), the district court

credited the government's evidence that Mingazov retreated to Pakistan in December

2001 "after the fall of Qandahar" (JA 36 (quotation marks omitted)). But, without

the benefit of Al,Adahi, the district court refused to draw any inculpatory inferences

from Mingazov's inability to account for his activities between the United States'

initiation ofmilitary operations in Afghanistan in October 2001 and Mingazov's flight

contents." JA 25; see JA 28.

SECRET! !ROPORR




SEen!'j jffOPOltff

to Pakistan two months later because, the district court said, "Mingazov does not bear

the burden of proof in this proceeding." JA 37 n.3l.

4. The district court next turned to the evidence that Mingazov had escaped

to Pakistan along a route used by al Qaeda, Taliban, and other fighters, where he

eventually ended up at Zubaydah's house and then at the Issa House. Without

considering the relevance of Mingazov's association with the IMU and his admissions

of training in Afghanistan, the district court concluded that Mingazov's retreat to

Pakistan and his activities there did not alone support the government's detention.

The district court did not find inculpatory the route Mingazov took from

Afghanistan to Pakistan, despite the fact that it was one used by enemy fighters

retreating from the war, because "civilians are as or more likely than fighters to flee

a war, torn country by any route available." JA 37. The district court also found

probative the lack of evidence that any al Qaeda operative met Mingazov on his

arrival in Pakistan. JA 38.

Although it recognized that there was "no dispute" that Zubaydah was an al

Qaeda,associated operative and that "AI Qaeda,related activities took place in his

house," the district court drew "no particular conclusions" from Mingazov's stay at

Zubaydah's safehouse. JA 41. The district court also decided that Mingazov's stay at

the Issa House does not itself "demonstrate[] that Mingazov was part of Al Qaeda."

JA44

SEeItE!'j jffOPOltff




8BCRB'f'!!NOPORN

the court believed

it was "unable to evaluate the reliability of the information" contained in the report.

JA 45 (citing, among other cases, Parhat v. Gates, 532 F.3d 834, 849 (D.C. Cir.

2008)).

By contrast, the district court credited the statements of other Guantanamo

detainees captured at lssa House indicating that "many of the occupants oflssa House

were students." JA 45 46. Without determining how many lssa House residents were

likely part of al Qaeda, the Taliban, or associated forces, the court found credible,

based on the detainees' statements, "the proposition that some, and possibly most"

were not. JA 46. Similarly, the district court credited a report written by attorneys

for Guantanamo detainees claiming that "payments for prisoners" were prevalent.

Ibid. And the court took "into consideration" Mingazov's belief, and that of another

detainee, that the United States had paid to take custody of them. Ibid. Without

addressing the sources or reliability of any of that evidence, the district court

determined that" [t] his information decreases the likelihood that the purpose of the

9 The government does not rely on _ appeal.

declaration from a Department of Defense official (see JA 485

SBeRB'f'! /NOPORN

87) in this




BBCRB't'//NOPORN

raid on Issa House was to identify and capture only men who were part ofAl Qaeda."

Ibid

For these reasons, the court concluded that the government had failed to prove

that "Mingazov's capture at Issa House is evidence of his membership in Al Qaeda."

JA 47. And in the absence of evidence showing that Mingazov had stayed at another

safehouse associated with al Qaeda, the district court was unwilling to conclude that

Mingazov's stay at Zubaydah's house "which goes in no way to show that Mingazov

was part ofAl Qaeda's command structure, meets the standard for lawful detention."

JA 48 nAl.

In conclusion, the district court observed that "Mingazov's proximity to people

engaged in military action, stays at guesthouses where members ofAl Qaeda may also

have stayed

raise the suspicion that he was something more than an

innocent traveler seeking a new home for his family." JA 47 48. However, because

the district court concluded that the government did not "demonstrate[] that

Mingazov was 'part of the command structure of any terrorist organization," it

granted Mingazov's petition and ordered the government to take appropriate

diplomatic steps to release Mingazov. Ibid; JA 4.

seeuy; /N8P8ftN




SB8RB"IIN9P9RN

III. THE DISTRICT COURT'S STAY ORDER

The government sought a stay of the district court's order pending appeal. In

concluding that a stay was warranted, the court evaluated the government's likelihood

of success on appeal and observed that it had uissued its opinion before the D.C.

Circuit clarified that respondents' detention authority under the [AUMF] does not

require a factual finding that an individual was part of the 'command structure' of a

terrorist organization." JA 51 (citing Awad, 608 F.3d at 11).

In opposing the government's stay motion, Mingazov asked the district court

to uclarify" its opinion to explain that the court would have granted Mingazov's

habeas petition even if it had not focused on whether the government had established

that Mingazov was part of command structure of a terrorist organization. JA 51 n.1.

The district court declined the request, in part, because it was uunable to say that it

would have granted Mingazov's petition had Awad been decided when the merits of

Mingazov's petition were being analyzed and decided." Ibid.

SUMMARY OF ARGUMENT

Under the AUMF, the government may detain an individual who was, inter alia,

U part of the Taliban, al Qaeda, or associated forces." Al~Bihani v. Obama, 590 F.3d

866,872 (D.C. Cir. 2010). Contrary to the district court's decision, it is unnecessary

to show that uan individual operates within al Qaeda's formal command structure" to

establish that the person is upart of' al Qaeda. Bensayah v. Obama, 610 F.3d 718,725

SBORBT//NOFORN




8BORB'f'//NOPORN

(D.C. Cir. 2010). Thus, it is error to require proof of receiving or executing orders.

Instead, courts must generally undertake a functional inquiry that focuses on "the

actions of the individual in relation to the organization." Ibid. And in making that

assessment, courts must evaluate all of the evidence in the record, rather than

considering whether each piece of the government's evidence in isolation is sufficient

to establish its authority to detain. Al,Adahi, 613 F.3d at 1105 06.

In this case, the district court erred in treating the issue of whether Mingazov

received or executed orders as the "key" question. The court also failed to consider

whether the government's evidence taken together shows that it is more likely than

not that Mingazov was functionally part of al Qaeda or Taliban forces. Instead, it

examined each category of evidence in isolation, considering whether that evidence

demonstrated Mingazov's role in the hierarchical command structure of those

organizations. Because it applied an incorrect legal standard, the district court

incorrectly concluded that the government had not established its authority to detain

Mingazov. This legal error pervades the district court's opinion and requires, at a

minimum, vacatur of the district court's judgment and remand for reconsideration in

light of this Court's controlling precedent.

But a remand for reconsideration is unnecessary in this case. Under the legal

standards adopted by this Court, the undisputed facts, when properly considered

together, demonstrate that Mingazov was part of al Qaeda or Taliban forces. It is

8SGImT//NOFORN




BBORB\'/ /NOPORN

undisputed that Mingazov was associated with the IMU, an entity designated a

Foreign Terrorist Organization because of its support for al Qaeda and the T aliban,

and traveled with it to Afghanistan; that he retreated from Afghanistan to Pakistan

along a route taken by al Qaeda fighters fleeing from the war; that, in Pakistan, he

spent a night at the safehouse of Zubaydah, an operative associated with al Qaeda;

Considering

all of this evidence under a proper functional analysis, as a matter oflaw, Mingazov

is detainable as part of al Qaeda or T aliban forces.

There is additional record evidence that compels the conclusion that Mingazov

was part of al Qaeda or Taliban forces. The government's evidence showed that

Mingazov received military,style training from the IMU and from al Qaeda and

specialized terrorist training in poisons and explosives, that he fought against the

Northern Alliance with T aliban forces, and that he was captured at a safehouse with

other T aliban fighters and individuals associated with Zubaydah. When properly

considered in conjunction with the undisputed facts, this additional evidence

mandates the determination that it is more likely than not that Mingazov was part of

al Qaeda or T aliban forces and thus compels a denial of the writ.




SECItET//lfOJPOltlf

STANDARD OF REVIEW

This Court reviews de novo the district court's conclusions oflaw, including its

ultimate determination concerning the writ of habeas corpus. Bensayah, 610 F.3d at

722. It reviews a district court's admission of evidence for an abuse of discretion. Al

Odah v. United States, 611 F.3d 8, 13 (D.C. Cir. 2010). This Court reviews for clear

error a district court's factual determinations, including inferences drawn from

findings of fact. Id. at 14 15.

"Whether a detainee was 'part of' al Qaeda is a mixed question oflaw and fact."

Bensayah, 610 F.3d at 723. Whether a detainee's alleged conduct justifies detention

under the AUMF is a legal question, but whether the government has proved that

conduct occurred is a factual question. Ibid.

ARGUMENT

I. THE DISTRICT COURT ApPLIED INCORRECT LEGAL STANDARDS FOR DETENTION.

The district court required the government to establish that Mingazov was part

of the hierarchical "command structure" ofal~Qaeda, Taliban, or associated forces by

showing that Mingazov received and executed orders. It also considered the

inculpatory evidence against Mingazov in isolation without considering whether the

evidence as a whole satisfied the government's burden of proof and without

considering whether separate pieces ofevidence were mutually corroborating. These

8KGRKT{ {NOFORN




SBCRB'fyyNOPORN

critical aspects of the district court's ruling have since been explicitly rejected by this

Court. See, e.g., Awad, 608 F.3d at 10 ("[T]here are ways other than making a

'command structure' showing to prove a detainee is 'part of' al Qaeda.") j Al~Adahi,

613 F.3d 1105 06 (" [T] he district court wrongly required each piece of the

government's evidence to bear weight without regard to all (or indeed any) other

evidence in the case." (quotation marks omitted)) j Bensayah, 610 F.3d at 726 (holding

that two pieces ofevidence, each unreliable when viewed alone, can corroborate each

other). These legal errors permeated the district court's ruling and led it to

erroneously grant Mingazov's petition. Indeed, the district court itself recognized

post~judgment that the legal standard it applied is inconsistent with this Court's

precedent. JA 51 n.!. Thus, at a minimum, the district court's judgment should be

vacated and remanded for reconsideration under the proper legal standards.

A. The District Court Failed to Employ a Functional Approach in Determining Whether Mingazov Was "Part of" Al Qaeda or Taliban Forces.

1. Interpreting Congress' grant ofauthority to the President in the AUMF, this

Court explained in Al~Bihani that the government may establish the lawfulness of a

petitioner's detention by showing, among other things, that he "is part of the Taliban,

al Qaeda, or associated forces." Al~Bihani, 590 F.3d at 872. This Court has repeatedly

"ma[de] clear" that whether an individual is "part of" al Qaeda, Taliban forces, or an

associated force '''must be made on a case~by~case basis by using a functional rather

8BCRB'fyyNOPOKN




&RQIHI~f::N9P9RN

than a formal approach and by focusing upon the actions of the individual in relation

to the organization.'" Salahi v. Obama, No. 10,5087, Slip Op. at 12 (D.C. Cir. Nov.

5,2010) (quoting Bensayah, 610 F.3d at 725) j see Awad, 608 F.3d at 10. This Court's

precedent thus "require [s] that [the Court] vacate the district court's judgment" when

a district court granted the writ because the government failed to establish that a

detainee received and executed orders. Salahi, Slip Op. at 13.

The nature of a terrorist organization such as al Qaeda underscores that it is

both necessary and appropriate for the detention authority under the AUMF to

extend to all individuals who are functionally part of organizations subject to the use

of force under the AUMF. Bensayah, 610 F.3d at 725. For example, many of al

Qaeda's operations are carried out by loosely associated terrorist cells made up of

volunteers acting with significant autonomy, but taking direction from al Qaeda

leadership. See Curtis A. Bradley &Jack L. Goldsmith, Congressional Authorization &

the War on Terrorism, 118 HARV. L. REV. 2047, 2109 (2005) (collecting sources).

Moreover, individuals who are part ofal Qaeda typically seek to hide their association.

They do not wear uniforms or carry "official membership card [s]" (Al, Bihani, 590 F.3d

at 873) and may purposefully attempt to disguise their connection to the organization.

Accordingly, "[t]hat an individual operates within al Qaeda's formal command

structure is surely sufficient but is not necessary to show that he is 'part of the

organization." Bensayah, 610 F.3d at 725.

SBCRB't'//NOPORN




BBORB'f{{NOPORN

A finding that an individual was part of al Qaeda, T aliban, or associated forces

can also be based in part on evidence that the person's movements and activities

such as association with al Qaeda or T aliban training camps or safehouses were

consistent with the movements of other individuals known to be part of such enemy

forces. See, e.g., Al Odah v. Obama, 648 F. Supp. 2d 1, 15 (D.D.C. 2009), affd 611

F.3d 8 (D.C. Cir. 2010). As this Court recognized in AI~AdahiJ evidence that an

individual attended al Qaeda training camps and stayed at al Qaeda safehouses can

constitute "'overwhelming' evidence that the United States had authority to detain

that person." 613 F.3d at 1109 (quotingAI~Bihani, 590 F.3d at 873 n.2). At bottom,

the inquiry is whether "a particular individual is sufficiently involved with the

organization to be deemed part of it." Bensayah, 610 F.3d at 725.

2. In concluding that its factual findings were not sufficient to support

detention, the district court here applied a much more demanding legal standard for

detention under the AUMF than the one adopted by this Court after the district court

ruled. The district court followed Gherebi in holding that, to be a "part of' al Qaeda,

Taliban, or associated forces, an individual must "have some sort of structured role in

the hierarchy of the enemy force." JA 6 7 (quotation marks omitted). Applying this

test, the district court determined that the evidence was insufficient to establish "that

Mingazov was 'part of the command structure of any terrorist organization." JA 48.

The district court committed reversible legal error by applying Gherebi's formal

BBORB'f{ {NOPORN




eBCRB'f//NOPORN

command structure standard because that test has been definitively rejected by this

Court as the sole means of establishing that an individual is "part of' al Qaeda,

Taliban, or associated forces. See Salahi, Slip Op. at 12.

The district court's erroneous reliance on a flawed command structure test was

critical to its ultimate conclusion on the merits, as the district court itself explained

in granting the government's motion for a stay pending appeal. In its stay order, the

district court observed that it had granted Mingazov's habeas petition because the

government failed to demonstrate that Mingazov was '''part of the command

structure of any terrorist organization." JA 49 (some quotation marks omitted). The

district court explained that it had issued its opinion before this Court rejected the

formal command structure test as the sole basis for determining that a detainee is

"part of' al Qaeda, the Taliban, or associated forces. JA 51 (citing Awad, 608 F.3d

at 11). And the court noted that it was "unable to say that it would have granted

Mingazov's petition had Awad been decided when the merits of Mingazov's petition

were being analyzed and decided." JA 51 n.!.

The district court accurately characterized its decision as turning on a formal

command structure test. The district court's opinion explained that "the key

question" the court would consider in determining whether the government

established that Mingazov was part of al Qaeda or T aliban forces "is whether an

individual receive [s] and execute [s] orders from the enemy force's combat apparatus."

S8GR8T{ {NOFORN




8ZCltETI jN'OPORN'

JA 7 (quotation marks omitted). Because the district court did not find that any of

the government's evidence established that Mingazov fit within the command

structure of al Qaeda or Taliban forces, it granted the petition. JA 48. The district

court did not consider whether the evidence supported a determination that

Mingazov was functionally a part of those forces. Thus, for example, the district court

did not consider whether Mingazov's admitted association with the IMU, an entity

designated a Foreign Terrorist Organization at the time because of its connections

with al Qaeda and the Taliban, supports a finding that Mingazov was functionally part

of al Qaeda or Taliban forces. lO Similarly, the district court deemed inconsequential

the undisputed fact that Mingazov stayed at the safehouse of an al Qaeda~associated

operative because that fact alone did not demonstrate Mingazov's place in al Qaeda's

command structure. See JA 47 48 nA1. But the question instead is whether

Mingazov's stay at the safehouse of an operative associated with al Qaeda, together

with the other evidence in the record

his capture at a house where Taliban and

10 We do not contend in this appeal that Mingazov is detainable because he was a part of the IMU. An individual may be detainable under the AUMF ifhe was part of an associated force of al Qaeda or Taliban forces. In this appeal, we contend that Mingazov's choice to associate with IMU is probative of whether Mingazov is part of al Qaeda or T aliban forces. The government reserves the right to argue on remand in this case or in any other case that being part of the IMU is a proper basis for detention under the AUMF.

SEeltEYII IfOpeltIf




BBORB'f'//NOPORN

associated fighters were captured is evidence that Mingazov was functionally part

of al Qaeda or Taliban forces. Thus, the district court's application of an erroneous

legal standard determined its ultimate conclusion.

As we explain below (see Part II), the government's evidence, when examined

under the proper legal standard, mandates a conclusion that Mingazov was part of al

Qaeda or Taliban forces. Accordingly, this Court should reverse the district court's

judgment and order that the writ be denied. But in the alternative, because the

district court's decision to grant Mingazov's habeas corpus petition was llinfluenced

by its mistaken view of the law" that governed the assessment of the evidence, this

Court should at a minimum vacate the district court's order and remand this case to

that court for a decision under the correct legal standards. U.S. Postal Service Bd. of

Governors v. Aikens, 460 U.S. 711, 717 (1983).

B. The District Court Failed to Consider the Evidence Taken as a Whole and Failed to Consider Whether Inculpatory Evidence Was Mutually Corroborating.

The district court committed a second legal error requiring reversal. It

evaluated the government's various evidence separately, rather than considering

whether that evidence, taken as a whole, satisfies the government's burden of

establishing that it is more likely than not that Mingazov was part of al Qaeda,

Taliban, or an associated force.

8BORB'f'//NOPORN




8BORB'I'//NOFORN

This Court has repeatedly emphasized in the Guantanamo habeas cases that the

district courts must "consider all of the evidence taken as a whole." Awad, 608 F.3d

at 7; accord Salahi, Slip Op. 14 15; Al Odah, 611 F.3d at 15; Barhoumi, 609 F.3d at

432; Al~Bihani, 590 F.3d at 873. Relatedly, multiple pieces of evidence of uncertain

reliability "when viewed alone," can corroborate each other and establish a fact. See

Bensayah, 610 F.3d at 726. As this Court has explained, consideration of evidence

must not be "unduly atomized." Salahi, Slip Op. 14.

Thus, it is error to "weigh each piece of evidence in isolation." Awad, 608 F.3d

at 7. In Al~Adahi, for example, this Court reversed a district court's grant of habeas

based on that court's flawed approach to the evidence. This Court held that a court

cannot "toss [] aside" a fact that does not itself prove that a petitioner was part of an

enemy force and then consider the next fact "as if the first did not exist." Al~Adahi,

613 F.3d at 1105. Butthat is just whatthe district court did here. Although it quoted

precedent indicating that the government "must produce 'evidence which as a whole

shows that the fact sought to be proved * * * is more probable than not,'" OA 7

(quoting United States v. Mathis, 216 F.3d 18,28 (D.C. Cir. 2000)), in application, the

district court considered only whether discrete pieces of evidence were themselves

sufficient to establish the likelihood that Mingazov was a member of al Qaeda or

Taliban forces.

BBCRB't'jjNOPORN




SBCRBCf//NOPORN

For example, the district court considered whether the government had

established that it was "more likely than not" that Mingazov had become a member

of the IMU and received military,style training from it. ]A 24. Concluding that the

government had not established that fact by a preponderance of the evidence, the

district court separately considered whether the government had shown it more likely

than not that Mingazov had attended an al Qaeda training camp, without considering

whether it was relevant to that inquiry that Mingazov admittedly associated with an

entity that was designated a Foreign Terrorist Organization because of its support for

al Qaeda and the Taliban. See]A 33.

The district court's opinion contains many more examples of this piecemeal

approach

BBORB'f'{ {NOFORN




8EeItET//I'fepeltI'f

Notably, the district court separately considere

and the government's evidence that Mingazov had attended the

Kara Karga training camp, where he received training in explosives and poisons.

Thus, the district court considered Mingazov's 2002 and 2003 admissions that he

attended al Qaeda's al Farouq training camp and Kara Karga, but in the absence of

any ucorroborating evidence" OA 33) it found more persuasive Mingazov's later

recantations OA 32 33).

But the

district court failed to consider that possibility.

But, of course, Mingazov's admission that he attended an explosives and

poisons camp (see JA 57,62,67) was uother probative evidence"

8BORB~//NOPORN




SBCRB'f'llNOPORN

Relatedly, it was undisputed that

Mingazov traveled to Afghanistan with the IMU an entity designated as a terrorist

organization in part because of its association with al Qaeda and the Taliban; that,

several months after the beginning ofU.S. military operations, Mingazov retreated to

Pakistan following a route taken by many al Qaeda and Taliban fighters; and that he

spent a night at the safehouse where Zubaydah lived. The district court nowhere

considered whether these undisputed facts taken together in combination with

Mingazov's admissions

made it more probable than not that Mingazov was a "part of' al Qaeda or Taliban

forces, notwithstanding Mingazov's later self,serving recantation. Instead, the court

88CB"!!N8P8ftN




BBeRS'f//NepeRN

determined that each undisputed fact in isolation was insufficient to establish that

Mingazov was part of an enemy force. See JA 22 (association with IMU) j JA 37

(travel to Pakistan); JA 41 (stay at Zubaydah's safehouse).11

The district court's failure to draw inferences from the evidence as a whole is

a pervasive and fundamental legal error. It reflects an "unduly atomized" view of the

record (Salahi, Slip Op. at 15) and exemplifies the "mistaken view that each item of

the government's evidence needed to prove the ultimate issue in the case" (Al-Adahi,

613 F.3d at 1111). Moreover, it fails to consider whether the occurrence ofone event

_ makes more likely the occurrence of another event (such as Mingazov's

participation in explosives and poisons training at the Kara Karga training camp). Just

as in Al-Adahi, the district court's failure to consider the evidence as a whole led it to

the plainly incorrect conclusion that the government had presented no "evidence on

the basis of which the Court could infer" OA 48) that Mingazov was part of al Qaeda

or Taliban forces. See Al-Adahi, 613 F.3d at 1105 06.

11 The district court stated that it would draw "no particular conclusions" from Mingazov's stay at Zubaydah's safehouse and would consider it "in the context of the other facts respondents have proved by a preponderance of the evidence." JA 41. But the court's opinion nowhere discusses whether Mingazov's stay at the house of an undisputed al Qaeda-associated operative is probative of whether Mingazov was part of al Qaeda or another enemy force, when considered in combination with the other undisputed facts identified above.

8&eR&~IIN9F9RN

39 UNCLASSIFIEDIlFOR PUBLIC RELEASE



SBCRB'fIINOPORN

When considered under the proper legal standards, the facts in the record

mandate reversal and a denial of the writ, as explained in the next section. At a

minimum, however, the Court should reverse the district court's grant of the writ, and

it should remand the case for reconsideration in light of "all of the evidence taken as

a whole." Awad, 608 F.3d at 7.

II. PROPERLY VIEWED UNDER THIS COURT'S PRECEDENT, THE RECORD EVIDENCE MANDATES REVERSAL AND DENIAL OF THE WRIT.

A. The Undisputed Facts Compel the Conclusion that It is More Likely than Not that Mingazov Was Part of Al Qaeda or Taliban Forces.

It was undisputed that: (1) Mingazov traveled to Afghanistan with the IMU OA

12 n.S) a designated terrorist organization with close ties to al Qaeda and the

Taliban; (2) after the beginning of U.S. military operations in Afghanistan, he

retreated to Pakistan following a route taken by al Qaeda, Taliban, and other enemy

fighters OA 37); (3) he stayed at the safehouse of Zubaydah, an operative associated

with al Qaeda (JA 40 41);

When considered

together, these undisputed facts do far more than "raise the suspicion that [Mingazov]

was something more than an innocent traveler seeking a new home for his family."

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JA 48. They constitute compelling evidence that Mingazov was more likely than not

part of al Qaeda or Taliban forces.

The district court refused to conclude that Mingazov's stay at Zubaydah's

safehouse was itself sufficient to establish that the government is lawfully detaining

Mingazov, principally because this stay "goes in no way to show that Mingazov was

part ofAl Qaeda's command structure." JA 48 nAl. Had the district court employed

a functional analysis of whether Mingazov was "part of' al Qaeda, Mingazov's stay at

the home of a prominent al Qaeda~associated operative would certainly have taken

on a different cast. It strains credulity to believe that a person unassociated with al

Qaeda, Taliban, or an associated force would be permitted to stay at Zubaydah's

safehouse, where, it was undisputed, "Al Qaeda~relatedactivities took place" OA 41),

and at which reportedly was discovered "a computer network containing sensitive

information about the lists of al Qaeda leaders and activists, their mailing addresses

in various countries and some hints about plans" (JA 281). See Sulayman v. Obama,

No. 05~2386, 2010 WL 3069568, at *16 (D.D.C. July 20, 2010) (finding implausible

contention that Taliban forces would expose fighters to danger by allowing

nonfighters to stay at safehouses), appeal pending, No. 1O~5292 (D.C. Cir.).

In any event, whether a brief stay at Zubaydah's safehouse would itself be a

sufficient basis on which to conclude that Mingazov was part of an enemy force, such

a stay is certainly relevant to the consideration of other inculpatory evidence

8&GR&TIINQFQRN




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suggesting that Mingazov was part of such forces. It is surely relevant to evaluating

Mingazov'

his admitted association with a designated Foreign Terrorist

Organization such as the IMU, his retreat from Afghanistan along a route used by al

Qaeda, Taliban and other enemy fighters fleeing from U.S. and coalition forces, and

While anyone of these facts taken in isolation

could possibly have an innocent explanation, it is simply improbable that a person

who stayed at the house where Zubaydah lived

and who associated with

the IMU, and who left Afghanistan along a route taken by retreating enemy al Qaeda

and Taliban fighters, and would nevertheless not be

a part of al Qaeda or T aliban forces.

The undisputed facts thus strongly support the conclusion that it is more likely

than not that Mingazov was part of such forces. The district court reached the

opposite conclusion only because it employed a flawed command structure test and

because it required each piece of the government's evidence to establish the

government's authority to detain Mingazov without considering the evidence as a

whole. As discussed above, these errors at a minimum require remand for

reconsideration. No reconsideration by the district court is necessary, however,

because once the proper standards are applied, these facts compel the conclusion that

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Mingazov was more likely than not a part ofal Qaeda or Taliban forces. Cf. Al~Adahi,

613 F.3d at 1111 (reversing and remanding with instructions to deny the writ).

B. Additional Record Evidence Further Compels Denial of the Writ.

The government introduced evidence that Mingazov received military~style

training from the IMU and al Qaeda and received explosives and poisons training at

another terrorist camp in Afghanistan, that he fought against the Northern Alliance

with the T aliban, and that he was captured at a safehouse along with T aliban fighters

and associates of Zubaydah. The district court declined to credit this evidence based

on erroneous evidentiary and factual determinations. When properly considered in

conjunction with the undisputed facts, this additional evidence mandates the

determination that it is more likely than not that Mingazov was part of al Qaeda or

T aliban forces.

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The district court also clearly erred in failing to credit Mingazov's own repeated

admissions in 2002, 2003, and 2009 that he received military,style training in

Afghanistan from the IMU, from al Qaeda, and at the Kara Karga camp. ]A 56 57,

61 62,66 67,71 72, 100, 106,777 78. Mingazov provided detailed information

about the IMU. He described the IMU's training regimen (JA 71 72, 723), and he

identified the IMU's leadership (JA 56,61,778) and unit organization OA 71 72,

723). Mingazov provided similarly detailed information about his training at both al

Farouq OA 57,62,66 67,125) and Kara Karga OA 57,62,67). Instead of relying on

these detailed admissions, the district court credited Mingazov's later recantations in

his 2009 declaration despite Mingazov's failure to testify and subject him self to

cross,examination finding "believable" and "plausible" Mingazov's explanation that

he lied about training so that he would be sent to Guantanamo. ]A 22.

In deciding to rely on Mingazov's recantation, the district court rejected the

government's argument that Mingazov's declaration was unreliable. The government

showed, for example, that in his declaration, Mingazov lied in saying that for "much

of the first six years that [he] was imprisoned in Guantanamo, [he] was held in solitary

confinement." ]A 523 ~ 21. The record contains unrebutted evidence that Mingazov

had spent all but about four months of his time at Guantanamo in open, general

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population cell blocks. 12 See generally JA 809 13. The district court agreed that

Mingazov's claim about solitary confinement was "likely exaggerated," but saw no

reason to doubt "the remainder of the factual allegations contained in his

declaration." JA 23.

But it was clear error for the district court to have credited the recantations

contained in Mingazov's declaration in the face of an obvious lie, especially given

Mingazov's decision not to testify at his habeas hearing and be subject to cross,

examination. Cf. Awad, 608 F.3d at 8 ("It accords with common sense that

[petitioner] may have had a motivation to lie about his own involvement in nefarious

activity.") j see also al Warafi v. Obama, 704 F. Supp. 2d 32,40 (D.D.C. 2010) (finding

portions of declaration that conflict with other record evidence not credible where

detainee chose not to testify and submit to cross,examination), appeal pending, No. 10,

5170 (D.C. Cir.). The district court's treatment ofMingazov's declaration recantation

and its willingness to overlook a clear falsehood in the same document stand in stark

contrast to the doubt the district court showed the FBI report, discussed infra at

50 53, containing Mingazov's admission that he fought for the Taliban.

The district court also credited Mingazov's recantations in interrogations

concerning his training with the IMU and al Qaeda and his training at Kara Karga.

12 The record indicates that Mingazov was placed in "disciplinary cellblocks" for a total of about four months between March 2003 and April 2010 for infractions such as assaulting guards and failing to follow instructions. See generally JA 809 13.

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See, e.g., JA 22, 30, 32 33, 79 80. Mingazov claims in his declaration that while he

was still in Afghanistan, he made up a story about attending al Qaeda's al Farouq

training camp specifically to avoid being repatriated to Russia, where he asserts he had

been persecuted because of his religion. JA 519 20 ~~ 6 10,522 23 ~ 20. Mingazov

also suggested in interrogations that he feared repatriation because he would be dealt

with "sternly" because he was a former member of the Russian military who had been

captured in Pakistan. JA 322. The district court found credible Mingazov's

explanation that he fabricated stories of receiving military~style and terrorist training

in Afghanistan because he was afraid of being sent back to Russia where he believed

he might face imprisonment, torture, or possibly even death. JA 32 33.

But that determination was plainly erroneou

lin the district court, Mingazov relied upon reports documenting abuses suffered by other Guantanamo detainees upon their return to Russia in 2004. See JA

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Moreover, Mingazov again admitted as recently

as 2009 that he trained at the al Farouq camp. JA 106. Because this 2009 admission

on its face was made without threats or apparent fear of repatriation to Russia, it

buttresses Mingazov's earlier admissions concerning training and undermines his

recantations.14

Mingazov's recantations are also internally inconsistent and inconsistent with

each other. For example, Mingazov claimed he: was a camp laborer while he was a

prisoner of the IMU OA 88, 520 ~ 11); studied Islam in the IMU camp; OA 105 06);

was never involved with the IMU or in Afghanistan OA. 315); was with the IMU

but left based on religious disagreements OA 92) or because of poor living conditions

(JA 777); and participated in IMU training because he lacked food, shelter, and

money OA 100). In addition, there is clear record evidence that Mingazov lied to his

interrogators when he found it useful to do so. For example

he now does not

18. But any abuse suffered by such former detainees could not have motivated Mingazov to fabricate a story in 2002.

IMi ngazov's 2009 admission appears in an FBI interrogation report that the district court did not credit. But as we explain below, see infra at 50 53, the district court's failure to credit the report was an abuse of discretion.

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8KGRST//NOFORN

dispute that he went to Afghanistan with the IMU OA 13).

see JA 341 43 (Defense

Intelligence Agency declaration concerning counter,intelligence training al Qaeda

operatives receive to enable them to resist interrogation); Al,Adahi, 613 F.3d at 1111

(observing that "al,Qaida members are instructed to resist interrogation * * * by

recanting or changing answers already given") (discussing declaration cited

immediately above). Although the district court did not discredit the evidence that

Mingazov had used counter,intelligence techniques, it declined to "draw any

conclusions with so little indication of how often or for what purpose Mingazov may

have employed them." JA 23.

In light of this evidence ofMingazov's duplicity, it was clear error for the district

court to have credited Mingazov's recantations over his earlier repeated and detailed

admissions to having received terrorist training, especially when considered against

the evidence as a whole, including

his stay at Zubaydah's safehouse. 15 And the evidence that Mingazov received military,

style training from the IMU and al Qaeda and terrorist training at the Kara Karga

camp overwhelmingly supports a finding that Mingazov was part of al Qaeda or

IFor the same reason, the district court clearly erred in accepting as "plausible" Mingazov's explanation that he possessed only to avoid harassment by Pakistani authorities. JA 47.

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Taliban forces, all the more so when considered in light of the undisputed facts noted

by the district court and discussed in the previous section. See Al~Adahi, 613 F.3d at

1109 (attending an al Qaeda training camp "constitutes 'overwhelming' evidence"

that attendee was part of al Qaeda).

2. The district court also committed error in concluding that the evidence did

not sufficiently establish that Mingazov had fought for the Taliban. The court

declined to credit Mingazov's admissions to that effect contained in a 2009 FBI

interrogation report, apparently because of the supposed lack of any corroborating

evidence. JA 26; but see JA 322 (when investigators said they believed Mingazov was

more involved with fighting in Afghanistan than he admitted, Mingazov "said that

this may be so, but there are some things in life that are so important that you must

protect them at all cost") (report of 2002 interrogation). But the district court failed

to consider whether the remainder of the government's evidence made more plausible

Mingazov's admission that he fought for the Taliban or his subsequent denial. That

significant error led the court to underestimate the probative value of the

interrogation report.

The district court also appeared to credit Mingazov's denial (through his

counsel's oral representation) ofhaving made the admission. JA 26,28. And it found

convincing Mingazov's speculation that discrepancies between the report and other

record evidence suggested "problems with the interpreter's translation, transcription

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of notes during the interview, the drafting of the report, or perhaps at all of these

stages." JA 27. But the district court abused its discretion in making that evidentiary

determination in light of the unrebutted, sworn declaration ofSpecial Agent _

_ one of the FBI interviewers. See JA 815 19. Special Agent_explained

that he took steps during the interrogation to ensure that there were no translation

problems OA 818 ~ 9), that he took contemporaneous notes during the interview OA

818 ~ 10), that the interrogation report was prepared the day after the interview by

the other FBI agent conducting the interview (ibid.), and that _reviewed the

report to verify its accuracy OA 819 ~ 10).16 Cf. Sulayman, 2010 WL 3069568, at *12

(finding reliable FBI interrogation reports based on declaration of FBI agent that

reports were: based on contemporaneous notes, prepared near the time of the

interview, and reviewed by others who attended the interview).

Although the district court acknowledged that Mingazov might have been the

source of the discrepancies, it nevertheless declined to credit Mingazov's admission

to having fought for the Taliban because "[i]f Mingazov gave untrue details about

other parts of his life, he may also have lied about fighting for the T aliban." JA 27

16 The district court suggested that H[t]here is no indication in the record of whether * * *_reviewed any notes to make his assessment of the draft's accuracy." JA 27 n.23. But that is clearly inconsistent with_explanation that he was trained to prepare reports "based on interview notes taken during each interview session" and that "consistent with this training," _ "took contemporaneous notes during the January 8 interview of Mingazov." JA 818 ~ 10.

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51 UNCLASSIFIEDJlFOR PUBLIC RELEASE



n.21. This was in stark contrast to the district court's willingness to minimize the

significance of such inconsistencies in crediting Mingazov's recantations. See JA

20 23. However, while it is not remarkable that an individual might attempt to

conceal information, even if innocuous, from questioning authorities, the law

generally presumes that a person would not voluntarily make statements against his

interest unless they are true. See, e.g., Fed. R. Evid. 804(b) (3). Moreover, the district

court's logic would permit any member of al Qaeda to neutralize inculpatory

admissions simply by changing his answers from one interrogation to the next

something al Qaeda operatives are trained to do. See Al~Adahi, 613 F.3d at 1111.

The district court should instead have evaluated Mingazov's admission about fighting

for the Taliban in light of the other evidence in the record.

Mingazov's admission that he fought for the Taliban provides an account for

his activities in Afghanistan during the critical period between the onset of U.S.

military operations in October 2001 and Mingazov's departure for Afghanistan in

December 2001, something that is lacking in Mingazov's prior statements and

declaration. And Mingazov failed to provide any alternative explanation for his

activities during that time. The district court refused to draw any adverse inference

from Mingazov's omission, and it permitted him to recant the only account he

provided of his activities during those two months without providing any alternative

explanation. JA 37 n.31. That was error: Mingazov's inability to explain what he was

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doing in Afghanistan during the height of combat operations is directly relevant to

whether the court should believe his admission that he fought for the Taliban. See,

e.g., Al Odah, 648 F. Supp. 2d at 15 (making adverse inference because, in part, "AI

Odah has failed to provide credible explanations" for travel to Afghanistan and

activities there); Anam v. Obama, 696 F. Supp. 2d 1, 12 (D.D.C. 2010) (similar); cf.

AI~Adahi, 613 F.3d at 1107 (noting the "well~settled principle that false exculpatory

statements are evidence often strong evidence of guilt").

The district court recognized that if Mingazov fought with the Taliban, that

would "plainly justif[y] Mingazov's detention under the applicable legal standards."

]A 28. Mingazov's admission that he did just that, and his inability to provide an

alternative explanation for his time in Afghanistan between October and December

2001 further support denial of the writ.

3. Finally, once again failing to view the evidence as a whole, the district court

focused on whether the Issa House was exclusively an al Qaeda safehouse in assessing

the significance of Mingazov's presence there. Such a finding was unnecessary

however. The pertinent question is whether Mingazov's presence at the Issa House,

considered along with the other evidence in the record, supports a determination that

Mingazov was part of al Qaeda or Taliban forces. It does, and the district court erred

in failing to properly consider the evidence connecting the Issa House with al Qaeda

or Taliban forces.

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The district court determined that it could not evaluate the validity of the

explanatio

The district court's evidentiary determination was

an abuse of discretion and the district court clearly erred in failing to find that

Mingazov's capture at the Issa House supported a finding that Mingazov was part of

al Qaeda or Taliban forces.

There are multiple pieces of other evidence in the record establishing that Issa

House was sheltering those associated with al Qaeda, the Taliban, or associated

forces. For example, there are other intelligence reports identifying the Issa House as

a place sheltering al Qaeda or associated fighters. See, e.g., ]A. 306. In addition,

other detainees captured at Issa House with Mingazov admitted to being part of

Taliban forces or were linked with Zubaydah. See]A 307 (ISN 688 admitted to

serving with Taliban forces for approximately two years, including time at the front

lines); ]A 420 (lSN 690 admitted to serving with Taliban forces at front lines for

almost at year); ]A 267 68 (lSN 728 spent time at Zubaydah's safehouse and

identified others who had been there); see also]A 268, 312, 441 (ISN 696, resident at

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Issa House, was an associate ofZubaydah's, received explosives training from him, and

was seen at Zubaydah's safehouse). Surprisingly, the district court's opinion does not

discuss any of this additional evidence. Instead, it focuses solely on

which the district court chose not to credit. JA 45.

The district court's failure to consider the other record evidence showing that

members of al Qaeda, Taliban, and associated forces were captured at the Issa House

is all the more surprising in light of the district court's decision to credit a report

prepared by counsel to two Guantanamo detainees (purporting to show that the

United States paid a bounty for the capture of the majority ofGuantanamo detainees)

and on the statements of Guantanamo detainees (purporting to show that those

staying at the Issa House were students), without evaluating the reliability of either

the report or the statements. JA 43 (statements), 44 (report). Moreover, the record

discloses a compelling reason the district court should have been suspicious of the

detainees' contention that the Issa House residents were students. Ahmed Abdul

(ISN 690), one of the detainees identified as having been a student at Issa House,

admitted to having fought with the Taliban at the front lines for almost a year.

Compare JA 633 (identifying ISN 690 as a student) with JA 420 (admission by ISN 690

to having fought for the T aliban) .

This Court has explained that in assessing a piece of evidence, a court should

not consider it in isolation but should determine whether it is corroborated by other

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record evidence. See, e.g., Bensayah, 610 F.3d at 726; Barhoumi, 609 F.3d at 428. The

district court failed to do that here and so abused its discretion. And in light of the

multiple pieces of evidence connecting those who stayed at the Issa House to al

Qaeda, Taliban forces, and Zubaydah, the district court clearly erred in declining to

find that Mingazov's stay at the Issa House supported a finding that Mingazov was

part of al Qaeda or Taliban forces. Whether or not the record in this case establishes

that everyone who stayed at Issa House is part of al Qaeda, Mingazov's stay at the Issa

House, combined with the other compelling evidence in this record, establishes that

at the very least it is more likely than not that he was a member of al Qaeda or

Taliban forces. See Al~Adahi, 613 F.3d at 1109.

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CONCLUSION

For the foregoing reasons, this Court should reverse the judgment and direct

the district court to enter an order denying the writ of habeas corpus. In the

alternative, this Court should remand to the district court with instructions to

examine the evidence as a whole in light of this Court's precedent and make

appropriate findings.

Respectfully submitted,

TONY WEST Assistant Attorney General

DOUGLAS N. LETTER ROBERT M. LOEB LEWIS S. YELIN, (202) 514,3425 Attorneys, Appellate Staff Civil Division, Room 7322 U.S. Department ofJustice 950 Pennsylvania Ave., N.W. Washington, D.C. 20530,0001

November 2010

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CERTIFICATE OF COMPLIANCE

I hereby certify, pursuant to Fed. R. App. P. 32(a) (7) (C) and D.C. Circuit Rule

32(a), that the foregoing brief is proportionally spaced in Goudy Old Style BT

14~point type, and that it contains 13,820 words, excluding the portions of the brief

excluded by Fed. R. App. P. 32(a) (7) (B) (iii).

Lewis S. Ye1in Counsel for Respondents

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CERTIFICATE OF SERVICE

I hereby certify that on November 8, 2010, I filed and served the foregoing Brief

for Respondents,Appellants by delivering an original and seven copies for the Court,

and two paper copies for counsel of record listed below) to the Court Security Officer.

DOUGLAS K. SPAULDING GARY S. THOMPSON NATHAN R. FENNESSY

(202) 414,9200 Reed Smith LLP 1301 K Street, NW Suite 1100, East Tower Washington, DC 20005,3317

ALLISON M. LEFRAK (202) 296,5702 World Organization for Human Rights USA 2029 P Street, NW Suite 202 Washington, DC 20036

SHAYANA DEVENDRA KADIDAL WELLS DIXON

(212) 614,6485 Center for Constitutional Rights 666 Broadway 7th Floor New York, NY 10012

Lewis S. Yelin Counsel for Respondents

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