Moath Hamza Ahmed Al Alwi, et al v. Barack Obama, et al

Filing

OPINION filed [1320097] (Pages: 28) for the Court by Judge Garland [09-5125]

USCA Case #09-5125

Document #1320097

Filed: 07/22/2011

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 4, 2010

Decided July 22, 2011

No. 09-5125
MOATH HAMZA AHMED AL ALWI, DETAINEE,
APPELLANT
v.
BARACK OBAMA, PRESIDENT OF THE UNITED STATES, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:05-cv-02223)

Ramzi Kassem argued the cause for appellant. With him on
the briefs were Zachary Katznelson, William J. Murphy, and
John J. Connolly.
Sarang V. Damle, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were Ian
Heath Gershengorn, Deputy Assistant Attorney General, and
Robert M. Loeb, Attorney. Matthew M. Collette and August E.
Flentje, Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney, entered appearances.
Before: TATEL and GARLAND, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

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Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: This is an appeal from the denial
of the petition of Moath Hamza Ahmed Al Alwi -- a detainee at
the United States Naval Base at Guantanamo Bay, Cuba -- for a
writ of habeas corpus. For the reasons stated below, we affirm
the judgment of the district court.
I
Al Alwi is a Yemeni citizen who was raised in Saudi
Arabia. According to the government, he traveled to
Afghanistan sometime in or around 2000, intending to join the
Taliban’s fight against the Northern Alliance. By the
government’s account, Al Alwi stayed in several guesthouses
associated with the Taliban, and in at least one that was
associated with al Qaeda where he turned over his passport.
Taliban fighters escorted him between two of the guesthouses.
Thereafter, he traveled to a Taliban-linked training camp near
Kabul, where he was trained to fire a rocket-propelled grenade
launcher and was issued a Kalashnikov rifle, ammunition
magazines, and grenades. Al Alwi then joined a combat unit,
led by a high-ranking al Qaeda official, that fought with the
Taliban on two different fronts. Al Alwi did not leave the unit
until well after September 11, 2001, by which time his unit had
been bombed by United States warplanes responding to the
terrorist attacks of that date. Al Alwi fled to Pakistan, where he
was captured and subsequently turned over to U.S. authorities.
Since then, Al Alwi has been a detainee at Guantanamo Bay.
In 2005, Al Alwi -- through his cousin as next friend -- filed
a petition for a writ of habeas corpus, which was held in
abeyance until the Supreme Court ruled, in Boumediene v. Bush,
that “the constitutional privilege of habeas corpus” extends to
aliens detained as enemy combatants at Guantanamo. 553 U.S.

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723, 732 (2008). In the meantime, pursuant to the Detainee
Treatment Act of 2005 (DTA), Pub. L. No. 109-148, tit. X, 119
Stat. 2680 (codified at 28 U.S.C. § 2241 (2005)), Al Alwi filed
an appeal from the determination of his Combatant Status
Review Tribunal (CSRT) that he was an enemy combatant, an
appeal that was subsequently dismissed for lack of jurisdiction.1
In the summer of 2008, after the Supreme Court issued
Boumediene, the district court reinitiated his habeas
proceedings. On December 16-17, 2008, the court held a habeas
hearing for Al Alwi.
Following the hearing, the district court found that a
preponderance of the evidence supported the government’s
account of Al Alwi’s activities in Afghanistan. Dist. Ct. Op. at
4, 6, 10 (Jan. 9, 2009) (J.A. 1797, 1799, 1803).2 It reached this
conclusion largely on the basis of Al Alwi’s own interrogation
statements, the majority of which were not disputed by his
counsel at the habeas hearing.3 In light of its factual findings,

1

Al Alwi v. Gates, No. 07-1251 (D.C. Cir. Mar. 26, 2009); see
Bismullah v. Gates, 551 F.3d 1068 (D.C. Cir. 2009) (holding that the
section of the DTA that granted this court jurisdiction over petitions
to review CSRT determinations could not be severed from the
provision that eliminated habeas corpus jurisdiction, a provision the
Supreme Court had held unconstitutional in Boumediene, and
therefore dismissing the petitions and remitting the petitioners to their
remedy under the habeas corpus statute).
2

All references to “Dist. Ct. Op.” are to a declassified version of
the district court’s classified opinion that is contained in the
declassified Joint Appendix. See Al Alwi v. Bush, No. 05-2223
(D.D.C. Jan. 9, 2009) (J.A. 1794).
3

The government also presented evidence that Al Alwi was a
member of Osama Bin Laden’s personal bodyguard force, and that he
trained at al Qaeda’s al-Farouq training camp. Gov’t Factual Return

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the court determined that Al Alwi was being lawfully detained
because it was “more probable than not that [Al Alwi] was ‘part
of or supporting Taliban or al Qaeda forces’ both prior to and
after the initiation of U.S. hostilities in October 2001.” Dist. Ct.
Op. at 10 (J.A. 1803). Accordingly, the court denied Al Alwi’s
habeas petition.
On appeal, Al Alwi raises two categories of challenges to
the denial of his petition. He argues that the district court erred
in determining that he was being lawfully detained on the record
as it stood before that court. And he further argues that the
court’s procedural errors deprived him of a meaningful
opportunity to develop a record upon which he could challenge
his detention. We consider these arguments in Parts II and III.
II
Al Alwi challenges, on two grounds, the district court’s
substantive determination that he was being lawfully detained.
First, he contends that the court applied the wrong detention
standard. Second, he maintains that the court erred in resting its
determination primarily on his own statements because those
statements were not sufficiently corroborated. “We review the
at 12-13, 16-20 (J.A. 385-86, 389-93); see Al-Adahi v. Obama, 613
F.3d 1102, 1108 (D.C. Cir. 2010) (noting that “[a]t least eight of the
September 11th hijackers had trained at Al Farouq”). Al Alwi did not
make such admissions during his interrogations, and his counsel
vigorously disputed them at the habeas hearing. In light of its finding
that the account of Al Alwi’s activities contained in his own
statements was sufficient to justify his detention, the district court
declined to evaluate the evidence supporting those additional charges.
See Dist. Ct. Op. at 10 n.2 (J.A. 1803). We decline to do so as well.
See Uthman v. Obama, 637 F.3d 400, 404 n.5 (D.C. Cir. 2011).

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district court’s findings of fact for clear error, its habeas
determination de novo, and any challenged evidentiary rulings
for abuse of discretion.” Al-Bihani v. Obama, 590 F.3d 866, 870
(D.C. Cir. 2010) (internal citations omitted); see Bensayah v.
Obama, 610 F.3d 718, 722-23 (D.C. Cir. 2010).
A
Following the al Qaeda attacks against the United States on
September 11, 2001, Congress passed the Authorization for Use
of Military Force (AUMF).4 Adopting a detention standard
offered by the government, the district court held that the United
States has authority, pursuant to the AUMF, to detain an
individual who, more likely than not:
was part of or supporting Taliban or al Qaeda forces, or
associated forces that are engaged in hostilities against
the United States or its coalition partners.
Al Alwi v. Bush, 593 F. Supp. 2d 24, 27 (D.D.C. 2008). After
examining the evidence, the court found that “it is more
probable than not that petitioner was supporting the Taliban and
al Qaeda in a manner consistent with the [detention standard]
4

The AUMF provides:
[T]he President is authorized to use all necessary and
appropriate force against those nations, organizations, or
persons he determines planned, authorized, committed, or
aided the terrorist attacks that occurred on September 11,
2001, or harbored such organizations or persons, in order to
prevent any future acts of international terrorism against the
United States by such nations, organizations or persons.

Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2001) (reprinted at 50
U.S.C. § 1541 note).

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this court has adopted.” Dist. Ct. Op. at 9-10 (J.A. 1802-03); see
Al Odah v. United States, 611 F.3d 8, 13 (D.C. Cir. 2010) (“It is
now well-settled law that a preponderance of the evidence
standard is constitutional in considering a habeas petition from
an individual detained pursuant to authority granted by the
AUMF.”).
Subsequent to the district court’s decision, the government
adopted a narrower detention standard, which it has relied on in
this and other Guantanamo appeals. See, e.g., Bensayah, 610
F.3d at 722 n*; Barhoumi v. Obama, 609 F.3d 416, 423 (D.C.
Cir. 2010); Al-Bihani, 590 F.3d at 870 n.1. The new standard
retains the original “part of” prong of the former standard, but
modifies the “support” prong to require “substantial” support.
Under this standard, the government may detain an individual
who, more likely than not:
[was] part of, or substantially supported, Taliban or alQaida forces or associated forces that are engaged in
hostilities against the United States or its coalition
partners.
Gov’t Br. 19 (emphasis added) (internal quotation marks
omitted). For purposes of this appeal, Al Alwi does not dispute
the lawfulness of this standard. See Pet’r Br. 47-48, 64 n.18; see
also Al-Bihani, 590 F.3d at 872. Al Alwi maintains that we
should remand this case to the district court so that it can decide,
in the first instance, whether the government’s evidence meets
the “substantial support” standard.
As we have explained, “whether a detainee’s alleged
conduct -- e.g., visiting an al-Qaida guesthouse or training at an
al-Qaida camp -- justifies his detention under the AUMF is a
legal question” that we review de novo. Barhoumi, 609 F.3d at
423; see Almerfedi v. Obama, No. 10-5921, 2011 WL 2277607,

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at *4 (D.C. Cir. June 10, 2011); Uthman v. Obama, 637 F.3d
400, 403 (D.C. Cir. 2011).5 “On review, we ask whether the
evidence in the whole record . . . establishes that a petitioner’s
detainability is more likely justified than not.” Almerfedi , 2011
WL 2277607, at *4. Accordingly, if we are persuaded that the
record evidence establishes the petitioner’s detainability, a
remand is not required. See id. at *1 (concluding “as a matter of
law that the government has demonstrated by a preponderance
of the evidence that [the petitioner] can be detained,” and
reversing without remanding “the district court’s decision
granting [the detainee’s] petition”); see also Uthman, 637 F.3d
at 402; Al-Adahi v. Obama, 613 F.3d 1102, 1106 (D.C. Cir.
2010). There may, of course, be cases in which a remand is
warranted because further fact-finding by the district court is
necessary or would be helpful. See Salahi v. Obama, 625 F.3d
745, 752-53 (D.C. Cir. 2010) (vacating the district court’s grant
of the writ, but remanding “[b]ecause additional fact-finding is
required to resolve” whether the detainee was “part of” al Qaeda
“under this circuit’s evolving case law”). But where “the facts
found by the District Court, along with uncontested facts in the
record, demonstrate that [the detainee] more likely than not”
falls within the detention standard, we may resolve the matter on
our own. Uthman, 637 F.3d at 402.
Nor need we consider whether the detainee “substantially
supported” al Qaeda or the Taliban if we are persuaded that he
was “part of” either entity. As this court has now repeatedly
held, the AUMF “gives the United States government the
authority to detain a person who is found to have been ‘part of’
al Qaeda or Taliban forces.” Al Odah, 611 F.3d at 10; see Awad

5

By contrast, “[t]he question whether the government has proven
that conduct -- e.g., whether [the detainee] in fact stayed at an al-Qaida
guesthouse or trained at an al-Qaida camp -- is a factual question that
we review for clear error.” Barhoumi, 609 F.3d at 423.

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v. Obama, 608 F.3d 1, 11-12 (D.C. Cir. 2010); Al-Adahi, 613
F.3d at 1103; see also Esmail v. Obama, 639 F.3d 1075, 1076
(D.C. Cir. 2011) (noting that we review de novo whether the
detainee satisfies the “part of” standard). Hence, if we conclude
that the record establishes that it is more likely than not that Al
Alwi was “part of” al Qaeda or the Taliban, there is no need for
us to address the “substantial support” prong of the detention
standard or to remand the case. See Uthman, 637 F.3d at 402
(concluding “that the facts found by the District Court, along
with uncontested facts in the record, demonstrate that [the
detainee] more likely than not was part of al Qaeda,” and
therefore reversing the contrary judgment of that court without
requiring a hearing on remand); Al-Adahi, 613 F.3d at 1106
(reversing and remanding with instructions to deny the
detainee’s petition because the evidence showed that the
detainee “was -- at the very least -- more likely than not a part
of al-Qaida”); see also Almerfedi, 2011 WL 2277607, at *6.
Here, the facts found by the district court are alone
sufficient for us to conclude that Al Alwi was “‘part of’ al
Qaeda or Taliban forces.”6 The district court found that Al Alwi
traveled to Pakistan, and then on to Afghanistan, “specifically in
order to join the Taliban’s fight against the Northern Alliance.”
Dist. Ct. Op. at 4-5 (J.A. 1797-98). Along the way, the court
found, he stayed in “at least three guesthouses closely associated
with the Taliban and/or al Qaeda.” Id. Al Alwi described his
escorts between the first two guesthouses as Taliban fighters.
Id. at 5 (J.A. 1798). The court also found that the second
guesthouse, the al-Ansar guesthouse in Kandahar, Afghanistan,
“had strong connections to al Qaeda.” Id. at 4 (J.A. 1797). Al
Alwi identified the assistant to the guesthouse’s leader in a

6

In Part II.B, infra, we address Al Alwi’s contention that the
district court committed clear error and/or abused its discretion in
finding those facts.

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photograph with Osama Bin Laden. Id. Upon arrival at the
Kandahar guesthouse, Al Alwi turned over his passport and
money. Al Alwi then stayed in the Kandahar guesthouse for six
weeks. When he left, he retrieved his money but did not retrieve
his passport, a practice followed by other al Qaeda and Taliban
recruits. Id. at 4-5 (J.A. 1797-98).
The court further found that, after Al Alwi left the third,
Taliban-linked guesthouse in Kabul, he traveled in a Taliban
vehicle to a “Taliban-related” training camp known as the
Khalid Center. Dist. Ct. Op. at 6, 8 (J.A. 1799, 1801). There, he
received at least one day’s training on a rocket-propelled
grenade launcher (RPG), fired an RPG, and received a
Kalashnikov rifle, ammunition magazines, and grenades. Id. at
6 (J.A. 1799). He then joined a combat unit, the Omar Sayef
Group, that fought the Northern Alliance and related forces on
two fronts. Id. at 6-7 (J.A. 1799-1800). While with that unit, Al
Alwi fought under the leadership of an Iraqi named Abd
al-Hadi, a high-level al Qaeda member responsible for
commanding Arab and Taliban troops in Kabul. Id. at 8 (J.A.
1801). The court found that Al Alwi was assigned to a “middle
line” or secondary (defensive) position at a front north of Kabul,
where he remained for five to six months, during which time “he
was subject to several artillery attacks and saw other fighters
die.” Id. at 6-7 (J.A. 1799-1800). Upon orders from the head of
the unit, he then moved to a second front in the far north of
Afghanistan, near the Tajikistan border, for the “express purpose
of repelling enemy forces.” Id. at 7-8 (J.A. 1800-01). There, he
spent another three to five months, during which time the
fighters he was with exchanged fire with Tajiks. Id. at 7 (J.A.
1800).
Finally, the court found that Al Alwi was with Taliban
forces that were attacked by United States warplanes after
September 11, 2001, “and stayed with his Taliban unit for a

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period of time thereafter.” Dist. Ct. Op. at 9 (J.A. 1802).
“[M]ost of the people with whom [he] served in northern
Afghanistan were killed by U.S. bombs following the
commencement of Operation Enduring Freedom,” and he saw
two or three American bombing operations before he moved
south to Kabul and later to Khowst with others in his fighting
unit. Id. It was only in Khowst that he returned his weapons,
before fleeing Afghanistan for Pakistan, where he was captured
and turned over to U.S. authorities. Id.
Taking all of these findings together, the district court
concluded that “it is more probable than not that petitioner was
supporting the Taliban and al Qaeda.” Dist. Ct. Op. at 9-10
(J.A. 1802-03). Although the court did not expressly say
whether Al Alwi was also “part of” the Taliban, it did repeatedly
describe him as serving with “his Taliban unit.” Id. at 9 (J.A.
1802); Al Alwi v. Bush, 593 F. Supp. 2d at 28. In any event, it
is plain to us that the foregoing facts, taken together (and if not
clearly erroneous), are sufficient to establish that Al Alwi more
likely than not was “part of” the Taliban or al Qaeda -- a point
the petitioner does not seriously dispute.7 See Al-Madhwani v.
7

Al Alwi does maintain that the district court failed to make the
findings necessary to sustain a second part of the detention standard,
noting that the government must show not only that he was part of
Taliban or al Qaeda or associated forces, but also that those forces
“‘are engaged in hostilities against the United States or its coalition
partners.’” Pet’r Br. 48 (quoting Al-Bihani, 590 F.3d at 872 (emphasis
added)); see Awad, 608 F.3d at 11. Although he acknowledges this
court’s ruling in Al-Bihani that the United States is still engaged in
hostilities with the Taliban and al Qaeda, 590 F.3d at 874-75, Al Alwi
contends that (at most) he fought with an associated force, and that to
detain him the government must show that this force (and not just the
Taliban or al Qaeda) was still engaged in hostilities against the United
States at the time of his habeas hearing. This argument has two flaws.
First, Al Alwi did not raise it in the district court; his only argument

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Obama, No. 10-5172, 2011 WL 2083932, at *4 (D.C. Cir. May
27, 2011) (stating that “‘carrying a brigade-issued weapon’ is
evidence that in combination with other factors may ‘strongly
suggest’ affiliation with enemy forces” (quoting Al-Bihani, 590
F.3d at 872-73)); Esmail, 639 F.3d at 1076 (holding that
“training at . . . al Qaeda training camps is compelling evidence
that the trainee was part of al Qaeda”); Al Odah, 611 F.3d at 16
(holding that, inter alia, training at a Taliban-run camp on an
AK-47 rifle, and receiving and carrying an AK-47 for days
during which time petitioner and his fellows were attacked by
U.S. warplanes, support the conclusion that he was “‘part of’ the
Taliban and al Qaeda forces”); Al-Bihani, 590 F.3d at 872
(holding that, inter alia, accompanying a fighting unit on the
battlefield, carrying a weapon issued by the unit, and retreating
under unit orders “strongly suggest . . . that [the detainee] was
part of” the unit); see also Al-Madhwani, 2011 WL 2083932, at
*3 (finding that the practice of leaving one’s passport and
valuables “‘was standard al Qaeda and Taliban operating
procedure[] when checking into an al Qaeda guesthouse in
Afghanistan’” (quoting Uthman, 637 F.3d at 406) (internal
quotation marks omitted)); Al Odah, 611 F.3d at 15 (noting that
relinquishing a passport and belongings “was standard al Qaeda
and Taliban operating procedure[]”); Al-Adahi, 613 F.3d at 1108
(concluding that “an individual’s attendance at an al-Qaida
there, see Pet’r Mot. for Reconsideration at 1 (J.A. 362), was one that
was rejected in Al-Bihani -- that the hostilities in Afghanistan have
ceased. See Nat’l Fed’n of Fed. Employees v. Greenberg, 983 F.2d
286, 288 (D.C. Cir. 1993) (“[C]laims neither raised nor addressed
below usually may not be heard on appeal.”). Second, as we hold in
the text, the district court’s findings are sufficient to establish that Al
Alwi was “part of the Taliban or al Qaeda,” not merely part of a
separate, “associated” force. Accordingly, even if it were not waived,
the argument would have no application to Al Alwi’s case.

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guesthouse” was powerful evidence that “the individual was part
of al-Qaida” (quoting Al-Bihani, 590 F.3d at 873 n.2)).
B
Al Alwi contends that, even if the district court’s
fact-findings are sufficient to satisfy the appropriate detention
standard, the court’s judgment should nonetheless be vacated
because those findings erroneously rested on statements by Al
Alwi that were insufficiently corroborated. In support of this
proposition, he cites the “corroboration rule,” applicable in
federal criminal trials, which provides that a conviction may not
rest solely on “the uncorroborated admission or confession of
the accused.” Wong Sun v. United States, 371 U.S. 471, 488-89
(1963); see Smith v. United States, 348 U.S. 147, 152-53 (1954);
United States v. Dickerson, 163 F.3d 639, 641 (D.C. Cir. 1999).
This court has expressed some skepticism as to whether
“the Supreme Court would today” apply the corroboration rule,
even in the criminal context. Dickerson, 163 F.3d at 641 n.2.
Be that as it may, the district court’s determination here was
made in a habeas proceeding, not a criminal trial, and such
proceedings are not “subject to all the protections given to
defendants in criminal prosecutions.” Al-Adahi, 613 F.3d at
1111 n.6; see Boumediene, 553 U.S. at 783; Al-Bihani, 590 F.3d
at 876. Rather, what “[t]he habeas court must have” is
“sufficient authority to conduct a meaningful review of both the
cause for detention and the Executive’s power to detain.”
Boumediene, 553 U.S. at 783. The corroboration rule is a
“common law” rule, with neither constitutional nor statutory
bases, Dickerson, 163 F.3d at 641; see Smith, 348 U.S. at 153,
and we have not previously regarded corroboration as a
requirement of a meaningful habeas proceeding. To the
contrary, we have recently upheld a detainee’s detention based
on “evidence [that] consist[ed] almost entirely of [the

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detainee’s] own testimony.” Al-Madhwani, 2011 WL 2083932,
at *3; see also Al-Bihani, 590 F.3d at 870 (upholding detention
where the evidence was “primarily drawn from [the detainee’s]
own admissions during interrogation”).
At oral argument, Al Alwi’s counsel acknowledged the
force of this general argument, and clarified that he was not
advocating the per se application of the common law rule. Oral
Arg. Tr. 11-13. Rather, he contended that the court must take
the absence of corroboration into account in assessing the
reliability of the petitioner’s out-of-court statements. Id. at 13.
We agree with this contention because it is in line with our own
precedents, which have explained that “the question a habeas
court must ask when presented with hearsay is not whether it is
admissible[,] . . . but what probative weight to ascribe to
whatever indicia of reliability it exhibits.” Al-Bihani, 590 F.3d
at 879. The question whether evidence is sufficiently reliable to
credit is one we review for clear error. See Barhoumi, 609 F.3d
at 424; Awad, 608 F.3d at 8. But cf. Al Odah, 611 F.3d at 13-14
(concluding that a district court’s decision that certain hearsay
evidence was reliable “was no abuse of discretion”).
In this case, the district court did evaluate the reliability of
Al Alwi’s statements before accepting them. The court noted
that its duty was to “assess whether petitioner’s interrogation
reports are ‘sufficiently reliable and sufficiently probative to
demonstrate the truth of the asserted proposition with the
requisite degree of certainty.’” Dist. Ct. Op. at 2 (J.A. 1795)
(quoting Parhat v. Gates, 532 F.3d 834, 847 (D.C. Cir. 2008)).
It then gave several reasons for finding the statements reliable.
The court found that, from the time his “fear of retribution
dissipated,” Al Alwi “consistently reported the essential details
of [his] story . . . over the course of multiple interrogation
sessions.” Id. at 3 (J.A. 1796). Although Al Alwi “made
generalized allegations that he was subject to” harsh

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interrogation tactics, he did “not contend that he gave false
answers during any particular interrogation session with U.S.
officials as a result of these alleged tactics.” Id. Indeed,
although Al Alwi “disagree[d] with many of the inferences the
Government draws from the reports, . . . [he] d[id] not deny the
majority of the principal facts” upon which the court relied. Id.
We find neither clear error nor abuse of discretion in the
district court’s determination that Al Alwi’s statements were
reliable. In addition to the consistency of Al Alwi’s repeated
statements, we note, as the court stressed, that Al Alwi did not
deny -- either at the hearing or in his pre-hearing filings -- that
“the majority of the principal facts” in his interrogation
statements were true. Dist. Ct. Op at 3 (J.A. 1796). Moreover,
at the habeas hearing, his attorney expressly conceded or did not
disavow several of those facts. See, e.g., Hr’g Tr. 10 (Dec. 16,
2008) (J.A. 1457) (conceding that Al Alwi traveled to
Afghanistan to fight against the opponents of the Taliban in the
Afghan civil war); Amended Traverse at 4 (J.A. 940) (same);
Hr’g Tr. 75-78 (Dec. 16, 2008) (J.A. 1608-11) (stating that Al
Alwi “doesn’t disavow the Omar Sayef Group part of the
narrative”); id. at 111-12 (J.A.1644-45) (stating that “I don’t
think he denies that he was issued” a Kalashnikov rifle, four
magazines, and two grenades). As we have said before, a
detainee’s decision to “not contest the truth of the majority of
his admissions upon which the district court relied . . .
enhanc[es] the reliability of those reports.” Al-Bihani, 590 F.3d
at 880; see Esmail, 639 F.3d at 1077 (affirming detention based
on the petitioner’s concessions and the district court’s rejection
of his exculpatory explanations).
Finally, we note that, although the district court did largely
rely on Al Alwi’s own statements to establish underlying facts,
it also relied on government evidence to support important
inferences from those facts. For example, while Al Alwi stated

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that he stayed in a particular Kandahar guesthouse for
approximately six weeks, it was a government expert’s
declaration that identified that guesthouse as having strong
connections to al Qaeda. Dist. Ct. Op. at 4 (J.A. 1797). That
inference, in turn, was “reinforced by petitioner’s [statement
that] he recognized the assistant to the guesthouse’s leader . . .
in a photograph with Usama Bin Laden.” Id. Similarly, while
Al Alwi admitted that he turned over his passport to the
guesthouse’s leader and never retrieved it, it was another expert
declaration that identified this conduct as consistent with
common practice by Taliban and al Qaeda recruits. Id. at 5 (J.A.
1798).
For the foregoing reasons, we reject Al Alwi’s contention
that the district court’s findings of fact are clearly erroneous.
And because, as explained in Part II.A, those findings are
enough to establish that Al Alwi was “part of the Taliban or al
Qaeda,” we reject the petitioner’s contention that the record
before the district court was insufficient to establish the
lawfulness of his detention.
III
In addition to his challenge to the district court’s substantive
determinations, Al Alwi contends that the court committed
procedural errors that deprived him of the “meaningful
opportunity to demonstrate that he is being held” unlawfully that
Boumediene requires. 553 U.S. at 779. We review the
challenged decisions -- the court’s denial of Al Alwi’s request
for a continuance and its treatment of his discovery requests -for abuse of discretion. See United States v. Celis, 608 F.3d
818, 839 (D.C. Cir. 2010) (denial of a continuance); Al Odah v.
United States, 559 F.3d 539, 544 (D.C. Cir. 2009) (denial of
discovery).

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A
Al Alwi contends that the district court abused its discretion
in denying his request for a thirty-day continuance of the
deadline for filing his traverse.8 When the court began
considering Al Alwi’s habeas petition in the summer of 2008, it
set an ambitious schedule for the proceedings. Citing
Boumediene’s call for expedition in holding detainee habeas
proceedings, see 553 U.S. at 795, the district court stated its
intention to hear Al Alwi’s case before the end of the year.
Status Conf. Tr. 11-12 (July 10, 2008) (J.A. 125P-125Q). On
July 31, 2008, the court ordered the government to file its
factual return by September 23, 2008. See supra note 8. The
government subsequently sought and received a thirty-day
continuance, finally filing the return on October 22, 2008. The
court then ordered that discovery be completed by December 1,
2008, and that Al Alwi file his traverse by December 4, 2008.
The habeas hearing was set for December 16.
Al Alwi’s counsel had scheduled a meeting to go over the
government’s factual return with Al Alwi during the week of
October 6, 2008, in Guantanamo. After the court granted the
government a continuance to file the return by October 22,
counsel scheduled additional meetings for November 14 and 15.
When the attorneys arrived, Al Alwi informed them that he had
begun a hunger strike. Although he was able to meet with the
lawyers the first day, he was unable to continue on the second.
When counsel returned from Guantanamo, they requested a

8

Under the district court’s Case Management Order, “[t]he
Government was required to submit a return stating the factual and
legal bases for detaining th[e] prisoner, who was then required to file
a traverse stating the relevant facts in support of his petition and a
rebuttal of the Government’s legal justification for his detention.”
Bensayah, 610 F.3d at 721.

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thirty-day continuance of the deadline for filing the traverse.
They explained that they had not had sufficient opportunity to
discuss the government’s allegations due to Al Alwi’s inability
to meet on November 15, see Pet’r Unopposed Mot. for
Extension of Time at 5 (J.A. 796), and that they had begun
making arrangements to meet with him instead on the next
available date, December 5, see id. at 6 (J.A. 797).
Although the government did not oppose counsel’s request
for a continuance, the district court nonetheless denied it,
stating, in part, that Al Alwi was the “author of his own delay”
because he had chosen to go on the hunger strike that left him
unable to meet on November 15. Status Hr’g Tr. 9 (Dec. 1,
2008) (J.A. 846). The district court did, however, indicate that
counsel could seek leave to amend the traverse if new
information came to light in the later meetings with Al Alwi that
by then had been scheduled for December 5 and 6. Id.
Al Alwi contends that the denial of his motion for a
continuance was an abuse of discretion. He points out that the
“requested delay was trivial,” that he “had not sought other
continuances,” and that “on the contrary, [he] had consistently
pressed forward.” Pet’r Br. 31. He also notes that the court had
granted the government a continuance to prepare its own return,
and that the government did not object to the grant of a similar
continuance for his traverse. Under these circumstances, we
agree with Al Alwi that the denial of the thirty-day continuance
is hard to understand. There was certainly no magic in the
court’s self-imposed deadline of hearing the case before
December 31, 2008. In Boumediene, the Supreme Court
declared that “the detainees . . . are entitled to a prompt habeas
corpus hearing.” 553 U.S. at 795. This was indeed a call to act,
but it was not a call to act in haste.

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Nonetheless, we cannot disturb the district court’s judgment
unless the petitioner shows “that actual prejudice resulted from
the denial” of the requested continuance. Celis, 608 F.3d at 839
(citing United States v. Kelley, 36 F.3d 1118 (D.C. Cir. 1994)).
Al Alwi attempts to meet this burden by arguing that the denial
deprived him of adequate time to review the allegations in the
government’s factual return and undermined his ability to
develop an effective attorney-client relationship. We conclude
that Al Alwi has failed to demonstrate actual prejudice.
1. First, we agree with the government that, although the
court denied Al Alwi’s request for a continuance before filing a
traverse, it effectively provided the same relief by granting his
attorneys leave to file an amended traverse after they
subsequently met with their client. As noted above, counsel’s
request had explained that they lacked sufficient opportunity to
discuss the government’s allegations due to Al Alwi’s inability
to meet on November 15, and they sought a thirty-day
continuance so that they could instead meet with him on the next
available date, December 5. See Pet’r Unopposed Mot. for
Extension of Time at 5-6 (J.A. 796-97). After the continuance
was denied and the traverse filed, counsel did meet with Al Alwi
on both December 5 and 6. Thereafter, on December 12,
counsel filed an amended traverse, the content of which the
court considered at the habeas hearing on December 16-17. It
is therefore hard to conclude that the appellant was prejudiced
when he essentially obtained the relief he had sought.
On appeal, Al Alwi argues that the grant of leave to file an
amended traverse was not sufficient because, when the district
court initially advised counsel that they could seek leave to
amend, the court instructed them that any amendment to the
traverse “should be narrow and limited only to what has been
learned as a result of your meeting with your client in the next
few days,” and that it should not “launch into a new line of

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defense.” Reply Br. 4 (quoting Status Hr’g Tr. 6 (Dec. 1, 2008)
(J.A. 843)). After the court gave that instruction, however, Al
Alwi’s attorney explained his concern that the instruction was
too restrictive, and the court clarified that it meant only that
counsel should not “be coming in with a supplement that relates
to things unrelated to your discussions with him.” Id. (J.A. 846).
And after counsel met with their client in December and filed
the amended traverse, they neither renewed the motion for a
continuance nor expressed concern that the court’s instruction
had caused them to leave anything out of the amended
document.
2. Second, it is not completely accurate to suggest, as Al
Alwi does, that without the continuance his counsel had less
than six weeks to develop an attorney-client relationship and
prepare a response to the charges against him. It is true that Al
Alwi’s counsel did not receive the government’s factual return
until October 22, 2008, and did not receive an unclassified
version until November 5. But the vast majority of the
allegations and evidence contained in that return had already
been released in connection with Al Alwi’s 2007 DTA appeal,
in which he was represented by the same counsel who handled
his habeas hearing.
Al Alwi’s counsel, from the law firm of Clifford Chance,
LLP, began representing him in 2005, when they first filed his
habeas petition. They were not court-appointed, but rather were
retained on Al Alwi’s behalf by his cousin. In June 2007,
counsel filed Al Alwi’s appeal under the DTA, and on August
24, 2007, they received the unclassified version of the CSRT
record. See Status Report, July 18, 2008 (J.A. 137). That record
revealed most of the factual allegations upon which the district
court ultimately based its detention decision, including the
allegations that Al Alwi had traveled to Afghanistan to fight
with the Taliban against the Northern Alliance, stayed in

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specified Taliban guesthouses, trained and received weapons at
the Khalid Center, and joined the Omar Sayef Center group in
a middle line position in the fighting, where he witnessed
“artillery attacks and saw other fighters die.” Unclassified
Summary of Basis for Tribunal Decision (J.A. 1069-71);
Unclassified Summary of Evidence for CSRT (J.A. 1077-78).
The CSRT record also disclosed that the government was
principally relying on Al Alwi’s own statements regarding his
activities in Afghanistan. See, e.g., Unclassified Summary of
Basis for Tribunal Decision (J.A. 1069) (explaining that the
“detainee . . . stated he traveled through Yemen to Pakistan and
Afghanistan and joined the Taliban to fight against the Northern
Alliance; received weapons training at the Khalid Center . . . ;
stated that he was issued a weapon with ammunition and
grenades while at the Khalid Center; that he was trained on the
rocket-propelled grenade launcher; that he was assigned to the
middle lines at the Omar Saif Center where he saw artillery
attacks and other fighters die; that he fought on the front lines at
Khvajeh Ghar, and that he was captured by Pakistani forces as
he fled from Afghanistan to Pakistan crossing the border”).
In August 2008, the government provided Al Alwi’s
counsel with the classified version of the CSRT materials. That
record contained virtually all of the facts the district court
ultimately found sufficient to justify his detention. It included
several of Al Alwi’s interrogation reports as well. Together,
those reports provided virtually all of the content of Al Alwi’s
statements upon which the district court relied, including
detailed accounts of: his journey to Afghanistan; his guesthouse
stays; his turning over and failing to retrieve his passport at the
Kandahar guesthouse; his training and arming at the Khalid
Center; his military activities with the Omar Sayef Group; his
belief that the group was led by al-Hadi; and his witnessing of
U.S. aerial bombings while part of that combat unit. See CSRT
Record:
Criminal Investigative Task Force Report of

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Investigative Activity, Interview of Muah Hamzah Ahmed
Khader Al Alwi (Apr. 14, 2003) (J.A. 1084-86); CSRT Record:
Memorandum for Record, Interview of Mu’az Hamza Ahmad
(Al Alwi) (May 03, 2003) (J.A. 1113-20).
A protective order permitting attorney-client
communication with respect to the CSRT materials was entered
in September 2007. Thus, Al Alwi’s counsel had approximately
fourteen months to review the core allegations disclosed in the
unclassified CSRT materials before the traverse was due on
December 4, 2008. Al Alwi had four meetings with his
attorneys during this time: on May 19, August 11, October 6,
and November 14, 2008. See Decl. of James M. Hosking (Dec.
5, 2008) (J.A. 1230); Pet’r Unopposed Mot. for Extension of
Time at 2-3 (J.A. 793-94). And, as noted above, he had two
additional attorney-client meetings after he filed the traverse -on December 5 and 6, 2008 -- which provided the basis for the
amended traverse that he filed prior to his habeas hearing. See
Decl. of Omar A. Farah (Dec. 12, 2008) (J.A. 1444).
Al Alwi correctly observes that the DTA/CSRT process was
substantially more limited than habeas proceedings. The point
about the CSRT materials, however, is not that they contained
all that the detainee might say in response to the charges against
him, but that (at least in this case) they contained virtually all of
the charges the government made in the habeas proceeding. Al
Alwi suggests this is not so, noting that the government’s factual
return in the habeas hearing ran to well over 400 pages, and
arguing that the substantially shorter unclassified and classified
versions of the CSRT materials therefore could not have
sufficiently conveyed the government’s allegations. It is true
that the CSRT materials did not contain the government
intelligence declarations that provided general information about
al Qaeda and Taliban personnel, practices, and training camps.
But those declarations did not contain accusations as to which

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counsel needed to consult Al Alwi in order to respond; rather,
counsel employed their own experts to counter those
declarations. See, e.g., Decl. of Arthur Brown (Oct. 13 2008)
(J.A. 1271). As to the remainder of the additional materials,
they largely consisted of interrogation reports of other detainees,
relevant only to allegations that the district court did not reach -such as Al Alwi’s alleged role as one of Osama Bin Laden’s
bodyguards. See, e.g., Gov’t Factual Return Exhibit: FBI
Interview Reports (J.A. 511-537); see supra note 3. Almost all
of the allegations that the district court found sufficient to justify
his detention were in the unclassified CSRT materials that Al
Alwi’s counsel received some fourteen months before his
hearing.
3. Finally, we do not underestimate the difficulty that
counsel have in developing rapport with clients detained at
Guantanamo Bay. Nor do we doubt that more time spent with
a client can improve case preparation.9 But we must evaluate Al
Alwi’s claim of prejudice not in some theoretical sense, but in
the context of the motion for a continuance that the district court
actually denied on December 1, 2008. That motion did not
mention any concern about the development of an effective
attorney-client relationship. Although it did request more time
for case preparation, it did not contend that substantially more
time was needed -- only that thirty more days were required to
successfully reschedule the attorney-client meeting that had
been cut short by Al Alwi’s hunger strike on November 15.

9

Of course, detainee counsel must balance the need for more
preparation time against their client’s own interest in expedition.
Indeed, Al Alwi’s counsel opposed the government’s request for a
thirty-day continuance on the ground that “[e]very additional day that
[he is] detained, and delayed in the[] opportunity to present challenges
to [his] detention will only cause [him] further harm.” Pet’r Opp’n to
Resp’t Mot. for Relief from Scheduling Order at 1 (J.A. 321).

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Accordingly, the question before us is whether another
thirty days -- not another six months or a year or longer -- would
have affected the outcome of Al Alwi’s habeas hearing. Cf.
United States v. Olano, 507 U.S. 725, 734 (1993). Given the
time Al Alwi’s attorneys had after their receipt of the CSRT
record, the district court’s grant of leave to file an amended
traverse, and the absence of any subsequent request for
additional time or discovery,10 we conclude that Al Alwi has
failed to show that he was prejudiced by the denial of the
thirty-day continuance. Indeed, even now -- with appellate
counsel who is experienced in Guantanamo litigation, speaks
Arabic, and “has also had more time with Petitioner” -- Al Alwi
has only “begun to furnish the ‘alternative [exculpatory]
narrative’ that the [district] court found absent in the
proceedings below.” Pet’r Br. 4. Whatever difficulty this may
reflect, it does not suggest that the absence of that narrative in
the district court proceedings was due to the denial of the
thirty-day continuance.
B
Al Alwi’s final argument is that the district court abused its
discretion in its management of the discovery process.
1. Al Alwi contends, first, that “remand is required to
determine whether the government produced relevant
exculpatory evidence.” Pet’r Br. 44. He does not argue that the
government did fail to produce such evidence, only that it may
have done so.

10

In initially denying several of Al Alwi’s requests for additional
discovery, see infra Part III.B, the district court indicated that it would
be open to renewed requests if Al Alwi’s counsel developed
justifications following their December meetings with him. See Status
Hr’g Tr. 45, 76, 81 (Dec. 1, 2008) (J.A. 882, 913, 918).

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The district court adopted a Case Management Order
(CMO) that required the government to “provide on an ongoing
basis any evidence contained in the material [it] reviewed in
developing the return for the petitioner, and in preparation for
the hearing for the petitioner, that tends materially to undermine
the Government’s theory as to the lawfulness of the petitioner’s
detention.” CMO at 2, Al Alwi v. Bush, No. 05-2223 (D.D.C.
Oct. 31, 2008) (J.A. 342). Al Alwi notes that, in Bensayah v.
Obama, we subsequently interpreted the same CMO as requiring
that any exculpatory “material reviewed in developing the
return” must be disclosed, “even if the individual doing the
filtering works for a Government agency other than the
Department of Justice.” 610 F.3d at 724. And he fears that the
government did not comply with that understanding in this case:
i.e., that it only produced exculpatory evidence that Justice
Department attorneys saw in the course of preparing the
government’s return, but not evidence that employees of other
agencies saw.
To justify his concern, Al Alwi cites what he regards as
ambiguous remarks made by the district court and the
government during the habeas proceedings. As Al Alwi
observes, the court told the government that it was required to
“produce any exculpatory evidence that they saw in the course
of reviewing the documents that they reviewed to prepare the
return,” while the government responded that, “pursuant to [the
CMO] we produced any and all information that may materially
undermine” the government’s case. Status Hr’g Tr. 31-32 (Dec.
1, 2008) (emphases added) (J.A. 868-69). However, “[n]owhere
was it stated,” Al Alwi points out, “whether ‘they’ or ‘we’
included any government agency employee, or solely the
Department of Justice lawyers assigned to the case.” Pet’r Br.
45.

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If there was ambiguity in these statements, however, it was
not because the court or the government failed to respond to Al
Alwi’s concerns, but because he did not express them as
precisely as he does on appeal. Al Alwi’s counsel told the court,
using the same pronoun to which his counsel now objects, that
Al Alwi was entitled to all documents that would put the
credibility of a witness in doubt, and that the government
“cannot simply say that we didn’t look at that.” Status Hr’g Tr.
62 (Dec. 1, 2008) (emphasis added) (J.A. 899). The government
attorney did not disagree. “[L]et me make clear,” he said, that
“we have produced all evidence that we are aware of, that we
became aware of in the process of our putting together this
return, that may relate in any way to the credibility of a witness
being in question.” Id. at 62-63 (J.A. 899-900). It was not the
case, he continued, that the government had turned a “willfully
blind eye” to potentially exculpatory material. Id. at 64 (J.A.
901).
It may be that this court’s subsequent opinion in Bensayah
has sharpened the nature of Al Alwi’s argument. But in
Bensayah, we did no more than interpret the terms of the CMO
in the course of rejecting a detainee’s claim that the CMO was
inconsistent with Boumediene. See Bensayah, 610 F.3d at 724.
We did not suggest that the government had misunderstood
those terms in that case, and there is no reason to believe that it
did so in this one. To the contrary, at oral argument, the
government represented that, in both the Bensayah habeas
proceeding and this one, the government had the same
understanding of the CMO as that expressed in our Bensayah
opinion. Oral Arg. Tr. 33-35; see id. at 33 (“[W]hen we were
reviewing information, every agency involved . . . in that
process [was] instructed to provide exculpatory information that
they [saw] as they [were] putting together the factual return.”).
The government has reconfirmed this representation by
post-argument letter. See Letter from Sarang V. Damle, Dep’t

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of Justice, at 3 (Nov. 17, 2010) (stating that the government’s
discovery practice at the time of Al Alwi’s habeas proceedings
was “consistent with this Court’s discussion of the case
management order in Bensayah”). Accordingly, there is no
warrant for a remand on this issue.
2. In addition to requiring the government to provide
exculpatory information, the district court’s CMO permitted the
detainee to request additional discovery “for good cause
shown.” To obtain additional discovery, the request had to:
(1) be narrowly tailored; (2) specify why the request is
likely to produce evidence both relevant and material
to the petitioner’s case; (3) specify the nature of the
request . . . ; and (4) explain why the burden on the
Government to produce such evidence is neither
unfairly disruptive nor unduly burdensome to the
Government.
CMO at 2 (J.A. 342). Pursuant to this provision, Al Alwi filed
a number of additional requests, all but one of which the district
court denied. The court denied those requests on the ground that
Al Alwi had failed to satisfy the four predicate conditions of the
CMO. Al Alwi now contends that the denial constituted an
abuse of discretion, principally on the ground that the court
should not have required him to satisfy any burden before
ordering production of several categories of information.
In Boumediene, the Supreme Court made clear that
“[h]abeas corpus proceedings need not resemble a criminal
trial.” 553 U.S. at 783; see Al-Adahi, 613 F.3d at 1111 n.6; AlBihani, 590 F.3d at 876. Rather, the touchstone is that they must
provide a “meaningful opportunity to demonstrate that [the
detainee] is being held pursuant to ‘the erroneous application or
interpretation’ of relevant law.” Boumediene, 553 U.S. at 779

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(quoting INS v. St. Cyr, 533 U.S. 289, 302 (2001)). In
Bensayah, this court expressly held that the same CMO was
consistent with Boumediene’s requirements, and that “the
district court did not abuse its discretion in structuring
discovery” so as to place the burden of establishing the CMO’s
predicates on the detainee. Bensayah, 610 F.3d at 724; see also
Al-Madhwani, 2011 WL 2083932, at *6 (affirming district
court’s denial of a detainee’s additional discovery request
because it “did not establish the conditions required under the
CMO for further discovery”).
Nor did the district court abuse its discretion in the manner
in which it applied the CMO. The government represented that
it had produced all evidence that it used in preparing its factual
return and “that may inform the court with respect to the bases
for his detention,” Status Hr’g Tr. 16 (Dec. 1, 2008) (J.A. 853),
and the court expressly required production of any and all
statements by Al Alwi that the government had reviewed, id. at
43-44 (J.A. 880-81); see id. at 43 (J.A. 880) (holding that “it is
material” if it “came out of his mouth[; t]hat’s a ruling”). The
court denied Al Alwi’s additional requests only after first
assuring itself that the government had already satisfied its
obligation to produce any evidence “that tends materially to
undermine the Government’s theory as to the lawfulness of the
petitioner’s detention.” CMO at 2 (J.A. 342); see Status Hr’g
Tr. 31-33 (Dec. 1, 2008) (J.A. 868-70). The court also obtained
specific representations from the government that, had there
been any material evidence in the important categories of Al

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Alwi’s request,11 the government would have produced it as part
of that obligation, see, e.g., id. at 62-63 (J.A. 899-900).12
In light of these circumstances, we find no abuse of
discretion in the district court’s refusal to issue further discovery
orders without a showing that there was a basis for believing
that the requests satisfied the CMO’s predicate conditions.
IV
For the foregoing reasons, the district court’s denial of Al
Alwi’s petition for a writ of habeas corpus is
Affirmed.

11

As we have previously explained, evidence is “material” if “it
is at least helpful to the petitioner’s habeas case.” Al Odah, 559 F.3d
at 544; see also Bensayah, 610 F.3d at 724 (“Information that
undermines the reliability of other materials, e.g., inculpatory evidence
. . . , also tends ‘materially to undermine the Government’s theory as
to the lawfulness of the petitioner’s detention’ and hence must be
disclosed by the Government.” (quoting the district court’s CMO)).
12

The government specifically denied that it had any evidence that
Al Alwi had been mistreated while at Guantanamo Bay. Status Hr’g
Tr. 63-64 (Dec. 1, 2008) (J.A. 900-01).

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