Shaw Khan v. Barack Obama, et al

Filing

OPINION filed [1327684] (Pages: 26) for the Court by Judge Garland [10-5306]

USCA Case #10-5306

Document #1327684

Filed: 09/06/2011

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 13, 2011

Decided September 6, 2011
No. 10-5306
SHAWALI KHAN,
APPELLANT
v.

BARACK OBAMA, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-01101)

Leonard C. Goodman argued the cause and filed the briefs
for appellant.
H. Thomas Byron, III, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were Tony
West, Assistant Attorney General, Ian Heath Gershengorn,
Deputy Assistant Attorney General, and Douglas N. Letter and
Robert M. Loeb, Attorneys. Michael P. Abate and Edward
Himmelfarb, Attorneys, entered appearances.
Before: SENTELLE, Chief Judge, and GINSBURG and
GARLAND, Circuit Judges.

Page 1 of 26

USCA Case #10-5306

Document #1327684

Filed: 09/06/2011

-2Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Shawali Khan, a detainee at the
United States naval base at Guantanamo Bay, Cuba, appeals the
denial of his petition for a writ of habeas corpus. The district
court found that Khan was “part of” Hezb-i-Islami Gulbuddin
(HIG), an associated force of al Qaeda and the Taliban engaged
in hostilities against the United States and its coalition partners.
Khan’s primary contention on appeal is that the district court
erred in concluding that intelligence reports offered by the
government to prove his membership in an HIG cell were
reliable. Finding no error in the district court’s careful
consideration of the evidence, we affirm its denial of Khan’s
petition.
I
Khan is an Afghan citizen who, at the time of his capture in
mid-November 2002, lived in Kandahar, Afghanistan. By the
government’s account, Khan’s affiliation with HIG began in the
1980s, when he served as a radio operator for the group under
the command of his uncle, Zabit Jalil, during the anti-Soviet
jihad. The government alleges that, after September 11, 2001,
HIG formed an alliance with al Qaeda and the Taliban to attack
U.S. and coalition forces operating in Afghanistan. According
to contemporaneous reports by U.S. Army intelligence
collectors, three Afghan informants told the collectors about the
presence of a small HIG terrorist cell in Kandahar.1

1

All descriptions of reports and facts in this opinion are taken
from unclassified or declassified documents and briefs that are on the
public record in this case. The redactions are for classified
information that is contained in a classified appendix to the opinion.

Page 2 of 26

USCA Case #10-5306

Document #1327684

Filed: 09/06/2011

-3One of the informants (hereinafter Informant A), later
identified as a disaffected member of the HIG cell, told the
intelligence collectors in late October 2002 that Khan was a
communicator for the cell, facilitating radio contact among its
members. He also reported that the cell was directed from
Quetta, Pakistan, by Khan’s uncle. Intelligence Information
Report (IIR) 6 044 0266 03 at 1-3 (Oct. 29, 2002) (J.A. 173133). According to Informant A, this cell was responsible for
explosions near the Kandahar airfield and was planning
additional attacks on U.S. forces using radio-controlled binary
explosive devices positioned on roads frequented by U.S.
military vehicles. IIR 6 044 0249 03 at 1-4 (Oct. 29, 2002) (J.A.
1726-29).
Informant A gave the intelligence collectors specific
information about the cell’s method of operation. For example,
he described how the cell would detonate two explosions timed
to maximize casualties:
When the Americans are close enough to the kill zone,
the first explosion is detonated . . . . The intent of the
first explosion is to cause injury and disable the
vehicle. This act will force other Americans to
investigate the scene and help evacuate the wounded.
When a large enough crowd has gathered around the
disabled vehicle and wounded personnel, a second,
more powerful explosion is detonated . . . . The
purpose of the second explosion is to kill the wounded
and those who are trying to help them.
Id. at 3 (J.A. 1728); see IIR 6 044 0267 03 at 3 (Oct. 30, 2002)
(J.A. 1738). Informant A also identified the precise radio
frequencies the cell used in a particular sequence to detonate the
two explosions. IIR 6 044 0249 03 at 3 (J.A. 1728); Classified
J.A. 1728; see Gov’t Br. 10. And in another meeting, he

Page 3 of 26

USCA Case #10-5306

Document #1327684

Filed: 09/06/2011

-4provided additional specific details about some of the cell’s
intended targets and the type of explosive device used -- “a
Chinese or Russian antitank mine approximately 12 inches in
diameter” connected to an “electric blasting cap” that is in turn
“attached to the radio-controlled electronic detonator.” IIR 6
044 0267 03 at 2-3 (J.A. 1737-38).
Further details about Khan’s role in the Kandahar HIG cell
came from a second Afghan informant (hereinafter Informant
B), who “did not personally witness the events he described,”
but had “indirect access” to the information. Decl. of
Intelligence Collector 1 at ¶ 23 (Mar. 15, 2010) (J.A. 1543); see
Decl. of Intelligence Collector 2 at ¶ 20 (Mar. 10, 2010) (J.A.
1572). Informant B reported that Khan was “a go-between and
a facilitator” within the cell, that he “use[d] [his] oil shop to
conduct meetings and as a contact point with other members
within the cell,” and that on November 9, 2002, he “delivered a
radio-controlled binary detonation device and two blasting caps
to an operative working within his organization.” IIR 6 044
0025 03 at 3 (Nov. 9, 2002) (J.A. 1723).
Finally, a third informant, an Afghan government official
(hereinafter Informant C), revealed more about the Kandahar
HIG cell’s plans to attack U.S. and coalition vehicles at two
specific locations. IIR 6 044 0300 03 (Nov. 3, 2002) (J.A. 174445). He told the intelligence collectors that “mines ha[d] already
been emplaced” at these locations, but that “they ha[d] not been
armed with a remote detonation device.” Id. (J.A. 1745).
In mid-November 2002, U.S. military officials decided to
neutralize the HIG cell. They planned an operation to capture
Khan at his shop, using Informant A’s tip that Khan would be
there at a particular time. The operation was a success, and
Khan’s home and shop were searched after his arrest. As
reflected in several reports and underlying exhibits, the searches

Page 4 of 26

USCA Case #10-5306

Document #1327684

Filed: 09/06/2011

-5uncovered a variety of physical evidence, including a notebook
containing Arabic writing about various terrorist activities, a
book of poems written in Arabic by a high-level al Qaeda leader,
a notebook from the “al-Farouk camp” containing Arabic
writing about the use and maintenance of weapons, a notebook
with Arabic writing and pictures of Osama bin Laden, Pashtu
music praising the Taliban, and a receipt for weapons. See
Gov’t Br. 13 n.4 (summarizing material recovered from Khan’s
properties).
In addition, and more significant, heavily redacted classified
intelligence reports state that the search of Khan’s properties
yielded further, particularly incriminating evidence that
confirmed his role in the Kandahar HIG cell. Gov’t Br. 13, 55.
One of those reports states that [Redaction 1].
On November 22, 2002, Informant B told the intelligence
collectors that, after Khan’s capture by U.S. forces, Khan’s
uncle called a meeting with several HIG operatives in Pakistan
to replace the entire Kandahar cell. IIR 6 044 0433 03 at 1-2
(Nov. 22, 2002) (J.A. 1753-54). According to the government,
improvised explosive device (IED) attacks stopped in the area
for about two months after Khan’s capture. Decl. of Intelligence
Collector 2 at ¶ 15 (Mar. 10, 2010) (J.A. 1570).
During an interrogation by U.S. personnel on December 17,
2002, Khan admitted to possessing [Redaction 2], but said that
[Redaction 3].2 In subsequent interrogations, he at times

2

Khan contends there is “grave doubt” about the reliability of this
admission to possessing [Redaction 4] because it is possible that the
term used for that item was incorrectly translated. Pet’r Br. 20, 29.
The district court did not err in finding that other reliable evidence in
the record (as discussed in Part II below) corroborated Khan’s
admission.

Page 5 of 26

USCA Case #10-5306

Document #1327684

Filed: 09/06/2011

-6admitted to possessing other pieces of physical evidence, and
offered exculpatory explanations for some of them.3 In several
interrogations, he also admitted that he had been part of the HIG
army during the fight against the Soviet Union in the 1980s and
that his uncle Jalil had commanded HIG forces against the
Soviets; but at other times, he said he had never been an official
member of HIG and/or denied any affiliation with HIG. See
Pet’r Br. 11-12 (citing interrogation reports). In numerous
interrogations, Khan told his questioners that he was just a
shopkeeper, not a terrorist, and had been falsely accused by
corrupt Afghans who told lies about him for money.
Khan has been detained at Guantanamo Bay since early
2003. The government contends that Khan’s detention is lawful
under the Authorization for Use of Military Force (AUMF) that
Congress adopted after the September 11, 2001, al Qaeda

3

For example, during one interrogation, Khan admitted to
possessing both the notebooks and a spool of wire, which he described
to interrogators as “black, approximately 50 meters in length, and the
type of wire that ‘You light it on one end and the fire goes down the
wire.’” CITF Report of Investigative Activity at 2 (Feb. 7, 2003) (J.A.
1809). He said he took the notebooks and wire “from an abandoned
house, previously occupied by Arabs.” Id.; see also Summary
Interrogation Report at 3 (Mar. 29, 2007) (J.A. 1865) (stating that he
“did some looting” of Arab businesses and houses in which he
obtained “some books” in Arabic and “electrical wire”); id. (stating
that he cannot read Arabic); Summarized Sworn Detainee Statement
at 3-4 (J.A. 2312.24-.25) (stating that the receipt for weapons
belonged to his uncle and was proof he had returned a Kalashnikov
lent him by the Karzai government, and that he had taken some wire
that had been abandoned by fleeing Arabs “to use for my electricity”);
[Redaction 5].

Page 6 of 26

USCA Case #10-5306

Document #1327684

Filed: 09/06/2011

-7attacks against the United States.4 We have held that the AUMF
grants the President authority (inter alia) to detain individuals
who are “part of forces associated with Al Qaeda or the
Taliban.” Al-Bihani v. Obama, 590 F.3d 866, 872 (D.C. Cir.
2010); see Barhoumi v. Obama, 609 F.3d 416, 432 (D.C. Cir.
2010).
In June 2008, 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. 723, 732 (2008). Shortly thereafter, Khan filed a petition
for a writ of habeas corpus. Early in the litigation, Khan moved
for judgment on the record, contending that extensive discovery
was unnecessary because the government had failed to produce
sufficient reliable evidence to justify his detention.
In ruling on Khan’s motion, the district court found that the
Army intelligence collectors’ informant reports lacked adequate
indicia of reliability because, inter alia, “all sources are
confidential (i.e., unidentified).” Khan v. Obama, 646 F. Supp.
2d 6, 13 (D.D.C. 2009). (The government had not yet revealed
the informants’ identities.) Accordingly, the court held that the
informant reports could not, absent other reliable corroborating
4

The AUMF states:
[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).

Page 7 of 26

USCA Case #10-5306

Document #1327684

Filed: 09/06/2011

-8evidence, justify Khan’s detention. At the same time, however,
the court found that the government had already produced other
reliable evidence suggesting that “petitioner was active in HIG
during jihad against the former Soviet Union; HIG was a
terrorist organization at the time of petitioner’s capture; . . .
petitioner was a HIG communicator at the time of his capture;
and petitioner possessed some al Qaeda- or Taliban-related
material at the time of his capture.” Id. at 19. It also found that
the government had “provided enough evidence to show that
HIG qualifie[d] as an associated force . . . engaged in hostilities
against the United States or its coalition partners.” Id. (internal
quotation marks omitted). The court therefore allowed
discovery to proceed, concluding that “the evidence that remains
is sufficient . . . to warrant denial of petitioners’s motion.” Id.
at 20.
To address the district court’s concerns about the informant
reports, the government submitted new declarations by U.S.
Army intelligence collectors. These collectors were the same
ones who had interviewed the Afghan sources in 2002, authored
the original reports, and participated in Khan’s capture. The
collectors identified two of the key informants by name and the
third by position. In their declarations, the collectors stated that,
based on their professional training and experience, and on their
direct contact with the informants, they assessed the informants
as reliable sources. They also set forth, in considerable detail,
why they reached that conclusion. In so doing, the collectors
explained both the manner in which they assessed the
informants’ motives and how elements of the informants’ stories
were independently verified. See Decl. of Intelligence Collector
1 (J.A. 1528); Decl. of Intelligence Collector 2 (J.A. 1556).
On May 13, 2010, the district court began a three-day
evidentiary hearing. The government presented the various
reports and exhibits described above, as well as others that will

Page 8 of 26

USCA Case #10-5306

Document #1327684

Filed: 09/06/2011

-9be discussed below. It also introduced three items it said were
seized from Khan’s property: the notebook containing Arabic
writing about terrorist activities; the book of poems written in
Arabic; and the al-Farouk notebook containing Arabic writing
about weapons. Khan relied on the portions of his interrogation
statements that were exculpatory, see, e.g., supra note 3;
presented an expert witness to testify about HIG’s history and
activities; and testified himself via video link. He said he had
remained at his family farm during the Soviet occupation and
had not fought against the Soviets, but that he had assisted those
who did fight. He repeated that he was just an innocent
shopkeeper and denied participating in any attacks against
Americans. He also said that he was not a member of any
terrorist group, that HIG had not been in Kandahar since the
Taliban came to power, that Afghans rather than Americans had
seized items from his home, and that he did not recognize the
items the government introduced into evidence. Hr’g Tr. 11-22,
35 (May 17, 2010) (J.A. 301-12; 324-25).
During the hearing, the court expressed concern about the
heavy redactions of information in the classified intelligence
reports describing evidence seized from Khan’s properties,
including particularly incriminating items that were not
themselves introduced. The court said the redactions made it
impossible to determine the source and timing of the reports or
to assess their reliability. It described one of the documents as
“perhaps the most redacted report in history,” and urged the
government to take it “back to your client agencies” for a
declaration that might “confirm [its] legitimacy.” Hr’g Tr. 4750 (May 13, 2010) (J.A. 47-50). On the final day of the hearing,
the court again urged the government to submit something “to
remove th[e] question mark” over the intelligence reports. Hr’g
Tr. 46 (May 17, 2010) (J.A. 336).

Page 9 of 26

USCA Case #10-5306

Document #1327684

Filed: 09/06/2011

-10Thereafter, at the suggestion of Khan’s counsel, the
government made unredacted versions of those reports available
to the court for its in camera review. Id. at 47 (J.A. 337). The
government also submitted to both the court and counsel a
classified declaration explaining, to the extent possible without
disclosing particularly sensitive classified information, how and
by whom the reports had been prepared. See Gov’t Br. 24. Of
particular importance, the declaration stated that [Redaction 6].
On September 3, 2010, the district court denied Khan’s
habeas petition. Khan v. Obama, 741 F. Supp. 2d 1, 12-16
(D.D.C. 2010). The court found that the intelligence collectors’
declarations supplied “reason to believe the information
provided by [Informant A] is generally accurate.” Id. at 13
(internal quotation marks omitted). It noted that the collectors
judged the information “sufficiently reliable to plan the
operation for Khan’s capture based on it.” Id. “Intelligence
collectors in the field, facing dangerous life-or-death situations,”
the court observed, “would not . . . act on the basis of
information they felt was unreliable.” Id. The court found
Informants B and C reliable because they provided information
consistent with the information provided by Informant A. Id. at
14.
Based on its in camera review of the redacted portions of
the intelligence reports, the unredacted portions of which
“describ[ed] the items seized from Khan’s properties,” the court
found that those reports “contain[ed] sufficient indicia of their
reliability.” Khan, 741 F. Supp. 2d at 17. Although it could not
discuss the sensitive redacted portions of the reports, the court
stated that the declaration the government provided to the court
and counsel “summarizes the hallmarks of reliability that the
Court finds persuasive” and is itself “accurate and persuasive.”
Id.

Page 10 of 26

USCA Case #10-5306

Document #1327684

Filed: 09/06/2011

-11In light of the government’s additional evidence, the district
court concluded that “the government has met its burden to
establish by a preponderance of the evidence that Khan was a
‘part of’ HIG.” Id. The court also reaffirmed its earlier
conclusion that the government had presented sufficient
evidence to establish that “HIG was an ‘associated force’ of alQaida and the Taliban at the time of Khan’s capture in late
2002.” Id. at 8.
On appeal, Khan does not challenge the detention standard
applied by the district court, but rather the court’s conclusion
that the government produced sufficient reliable evidence to
satisfy the standard. Khan contends there is insufficient reliable
evidence establishing that: (1) he was “part of” HIG at the time
of his capture in late 2002; and (2) HIG was an “associated
force” of al Qaeda and the Taliban at that time.5 We consider
Khan’s “part of” arguments in Part II and his “associated force”
arguments in Part III.
II
“We review the district court’s findings of fact for clear
error, its habeas determination de novo, and any challenged
evidentiary rulings for abuse of discretion.” Al Alwi v. Obama,
No. 09-5125, 2011 WL 2937134, at *2 (D.C. Cir. July 22, 2011)
(quoting Al-Bihani, 590 F.3d at 870) (internal citations omitted).
Whether a detainee was “part of” an associated force is a mixed
question of law and fact. Barhoumi, 609 F.3d at 423. That is,
whether a detainee’s alleged conduct is sufficient to make him
“part of” a force and whether the alleged connections between

5

Although the district court thought the latter issue was
uncontested, Khan, 741 F. Supp. 2d. at 8, Khan challenged HIG’s
status as an associated force at the district court hearing, see Hr’g Tr.
11 (May 13, 2010) (J.A. 11), and renews that challenge on appeal.

Page 11 of 26

USCA Case #10-5306

Document #1327684

Filed: 09/06/2011

-12that force and al Qaeda and/or the Taliban are sufficient to
render it an “associated force” are legal questions that we review
de novo. See id. Whether the government has proven that
conduct and those connections, however, are factual questions
that we review for clear error. See id. In addition, “[t]he
question whether evidence is sufficiently reliable to credit is one
we review for clear error.” Al Alwi, 2011 WL 2937134, at *6;
see Barhoumi, 609 F.3d at 424; Awad v. Obama, 608 F.3d 1, 8
(D.C. Cir. 2010). But cf. Al Odah v. United States, 611 F.3d 8,
13-14 (D.C. Cir. 2010) (concluding that a district court’s
decision that certain hearsay evidence was reliable “was no
abuse of discretion”).
The district court found, based on a preponderance of the
evidence, that Khan is lawfully detained under the AUMF. See
Al Odah, 611 F.3d at 13 (“It is now well-settled law that a
preponderance of the evidence standard is constitutional in
considering a habeas petition from an individual detained
pursuant to authority granted by the AUMF.”). Khan titles his
argument regarding the “part of” portion of the AUMF detention
standard as a claim that the government’s evidence is
“insufficient to prove by a preponderance” that he was part of an
HIG cell. Pet’r Br. 45. With one exception, however, he does
not seriously dispute that the evidence offered by the
government -- if judged reliable -- satisfies the government’s
burden to show that he was “part of” HIG at the time of his
capture. Instead, he primarily challenges the reliability of (A)
the Army intelligence collectors’ informant reports and
subsequent declarations that describe the Kandahar HIG cell and
Khan’s role in it, and (B) the heavily redacted intelligence
reports that describe items seized from Khan’s properties. The
exception is his contention that, regardless of the government’s
evidence, the court should instead have accepted the testimony
of his expert, which he argues proves there was no HIG cell in
Kandahar in 2002. We address these three arguments below.

Page 12 of 26

USCA Case #10-5306

Document #1327684

Filed: 09/06/2011

-13A
Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008), “sets the
guideposts for our inquiry” into the reliability of the collectors’
reports and declarations. Barhoumi, 609 F.3d at 428; see
Bensayah v. Obama, 610 F.3d 718, 725-26 (D.C. Cir. 2010). In
Parhat, the petitioner appealed the determination of a
Combatant Status Review Tribunal (CSRT) that he qualified as
an enemy combatant because of his affiliation with a Uighur
independence group assertedly “associated” with al Qaeda and
the Taliban. In particular, the petitioner challenged four
intelligence reports on which the Tribunal primarily based its
decision. In discounting those reports, we made clear that we
were “not suggest[ing] that hearsay evidence is never reliable -only that it must be presented in a form, or with sufficient
additional information, that permits the Tribunal and court to
assess its reliability.” 532 F.3d at 849 (emphasis omitted).
Since Parhat, we have repeatedly held that “the fact that the
district court generally relied on items of evidence that
contained hearsay is of no consequence[;] [t]o show error in the
court’s reliance on hearsay evidence, the habeas petitioner must
establish not that it is hearsay, but that it is unreliable hearsay.”
Awad, 608 F.3d at 7; see Al Alwi, 2011 WL 2937134, at *6; Al
Odah, 611 F.3d at 14; Barhoumi, 609 F.3d at 422, 432;
Al-Bihani, 590 F.3d at 879.
The government’s evidence in Parhat was insufficient to
enable the court to assess its reliability. The four intelligence
reports at issue described activities “as having ‘reportedly’
occurred, as being ‘said to’ or ‘reported to’ have happened, and
as things that ‘may’ be true or are ‘suspected of’ having taken
place.” 532 F.3d at 846. “But in virtually every instance, the
documents d[id] not say who ‘reported’ or ‘said’ or ‘suspected’
those things. Nor [did] they provide any of the underlying
reporting upon which the documents’ bottom-line assertions

Page 13 of 26

USCA Case #10-5306

Document #1327684

Filed: 09/06/2011

-14[were] founded.” Id. at 846-47. Those deficiencies made it
impossible to assess the reliability of the reports standing on
their own, and no additional evidence supported their reliability.
Id. at 848. We therefore set aside the CSRT’s enemy combatant
determination. To facilitate meaningful review, we ruled, the
government must do more than merely “submit[] documents that
read as if they were indictments or civil complaints, and that
simply assert as facts the elements required to prove that a
detainee falls within the definition of enemy combatant.” Id. at
850.
At an early stage of the proceedings in this case, the district
court determined that the informant reports, standing alone,
lacked adequate indicia of reliability. Khan, 646 F. Supp. 2d at
16-17. It then properly afforded the government an opportunity
to submit “sufficient additional information . . . permit[ting the
factfinder] to assess [their] reliability,” Bensayah, 610 F.3d at
725-26 (quoting Parhat, 532 F.3d at 849). The government
responded with the declarations of the Army intelligence
collectors who had met with the sources and prepared the
reports. The court found that “[t]hese declarations provide the
information necessary to assess the sources’ reliability,” and
“based on that information,” the court concluded that the reports
by the informants were reliable. Khan, 741 F. Supp. 2d at 1314.
Whether or not we would have regarded the informant
reports as reliable on their own, it is clear that, together with the
declarations, the combination looks nothing like the intelligence
reports at issue in Parhat. Unlike in Parhat, we do not have a
series of documents containing naked assertions about acts that
“may have” occurred or that were “reported to” have taken
place, where we do not know the identity of either the
documents’ authors or their sources. To the contrary, here we
know that the authors of the documents are U.S. Army

Page 14 of 26

USCA Case #10-5306

Document #1327684

Filed: 09/06/2011

-15intelligence collectors who were on the ground in Kandahar at
the time of the events in question, and we know that their
sources are the three Afghan informants -- two of whom are
identified by name and one by position. Nor are the materials
limited to the collectors’ “bottom-line assertions”; rather, they
contain the “underlying reporting” that was missing in Parhat.
Also unlike the reports in Parhat, the collectors’ reports and
declarations contain great detail about what each source said
about the detainee’s activities.
In Barhoumi v. Obama, we were able to assess the
reliability of a diary that was translated in an intelligence report
“by evaluating the diary’s internal coherence as well as its
consistency with uncontested record evidence, including [the
detainee’s] own statements and the circumstances of his
capture.” 609 F.3d at 428. We stressed that the diary exhibited
“first-hand knowledge” through “highly detailed descriptions of
real-world persons, places, and events.” Id. at 428-29, 432. We
noted the significance of “independent verification,” finding that
the diary “refer[red] accurately and in great detail to verifiable
real-world events.” Id. And we further noted that “[the
detainee’s] own statements” buttressed the diary’s reliability
given the “numerous consistencies” between them. Id. at 429,
432.
These and other indicia of reliability are present here. The
informants’ reports themselves exhibit the informants’ “firsthand knowledge” through “highly detailed descriptions of realworld persons, places, and events.” Id. at 428-29, 432. The
informants gave the intelligence collectors quite specific
information about the cell’s method of operation, including the
type of explosive device the cell employed, the cell’s use of two
explosions to maximize casualties, the exact radio frequencies
it used in a specific sequence to detonate the two explosions, and
details about some of the cell’s intended targets. In addition, the

Page 15 of 26

USCA Case #10-5306

Document #1327684

Filed: 09/06/2011

-16reports originally contained as enclosures digital photographs of
objects provided by the informants to the collectors: an “[HIG]
explosive device,” IIR 6 044 0249 03 at 4 (J.A. 1729)
(Informant A report), and an “[HIG] detonation device,” IIR 6
044 0025 03 at 4 (J.A. 1724) (Informant B report).
Moreover, the informants’ reports are reinforced by
“verifiable, real-world” evidence, Barhoumi, 609 F.3d at 429.
In particular, the items seized from Khan’s home and shop
corroborate the informants’ statements by providing evidence of
Khan’s work for HIG. See supra Part I; infra Part II.B.6 Further
6

Khan disputes the district court’s factual finding that U.S. forces
participated in Khan’s capture and in the seizure of items from his
property. He contends that “the weight of the evidence shows that
[he] was captured by Afghan men on November 13, and turned over
to the Americans on November 15.” Pet’r Reply Br. 27. While there
is some inconsistency in the record as to the precise date of Khan’s
capture, the evidence does not support his claim that Americans were
not involved. Khan correctly notes that several government
documents list his date of capture as November 15, 2002. See
Detainee Assessment Brief (J.A. 1868); Interrogator Notes (Dec. 23,
2002) (J.A. 1878); Interrogator Notes (Dec. 24, 2002) (J.A. 1884).
Khan argues this shows that, while he was arrested on November 13,
he did not enter American custody until November 15. Other
government documents, however, state that he was captured by U.S.
forces on November 13, 2002, see, e.g., IIR 6 044 0493 03 at 2 (Nov.
27, 2002) (J.A. 1758); IIR 6 044 0734 03 at 6 (Dec. 28, 2002) (J.A.
1765), and the U.S. Army intelligence collectors aver that they
personally participated in his capture (though they do not say on what
date it took place), see Decl. of Intelligence Collector 1 at ¶¶ 57-61
(J.A. 1553-54); Decl. of Intelligence Collector 2 at ¶¶ 43-47 (J.A.
1578-79). Although Khan testified that he was arrested by Afghans,
the court was not required to credit that testimony, particularly given
that Khan’s story had shifted on that point. Compare CITF Report of
Investigative Activity at 1 (Feb. 17, 2003) (J.A. 1811) (telling
interrogators that he was captured by Americans), with CITF Report

Page 16 of 26

USCA Case #10-5306

Document #1327684

Filed: 09/06/2011

-17support comes from “consistencies” with Khan’s “own
statements,” Barhoumi, 609 F.3d at 429, 432, including his
admission to possessing some of those items. See supra Part I.
In addition, many of Khan’s interrogation statements confirm
that he was active in HIG during the jihad against the Soviet
Union in the 1980s. Khan, 646 F. Supp. 2d at 17; Pet’r Br. 1112; cf. Salahi v. Obama, 625 F.3d 745, 751 (D.C. Cir. 2010)
(noting that the detainee’s prior association was relevant to the
question of whether he was “part of” al Qaeda at the time of his
capture).
The collectors’ declarations further buttress the informants’
reliability. Khan argues that the fact that the collectors vouch
for the informants’ reliability cannot be sufficient. But the
collectors’ assessments are not the views of distant officials,
based on nothing more than second-hand reports. Rather, the
officers are experienced informant handlers who made their
judgments based on face-to-face conversations in Kandahar.
More important, their declarations explain, in detail, why they
assess the informants as reliable.
With respect to Informant A, the collectors note that he
spoke voluntarily, spontaneously, and in great detail. They state
that he was a member of the HIG cell who came forward
because he wanted to leave the cell as a result of an HIG attack
that killed some of his tribesmen. Decl. of Intelligence Collector
1 at ¶¶ 37, 39 (J.A. 1548-49); Decl. of Intelligence Collector 2
at ¶¶ 15-16 (J.A. 1569-70). This undercuts Khan’s speculation
that Informant A lied in order to collect a bounty or avenge a
grievance against him. The collectors were also able to
independently verify some aspects of Informant A’s story. See
Barhoumi, 609 F.3d at 428-29 (considering “independent

of Investigative Activity at 2 (Feb. 7, 2003) (J.A. 1809) (telling
interrogators that he was captured by Afghans).

Page 17 of 26

USCA Case #10-5306

Document #1327684

Filed: 09/06/2011

-18verification” an important indicator of reliability). He provided
a detailed account of a previous attack on a U.S. patrol that was
corroborated by members of the patrol, and an explosives expert
confirmed that a device Informant A gave the collectors was part
of a binary detonator that an average civilian would not have
possessed. Decl. of Intelligence Collector 1 at ¶¶ 41-44 (J.A.
1549-50); Decl. of Intelligence Collector 2 at ¶ 15 (J.A. 156970). The collectors also note that U.S. forces planned their
operation to capture Khan based on Informant A’s tip that Khan
would be at his shop on a certain day and time, and the tip
proved accurate. Decl. of Intelligence Collector 1 at ¶ 46 (J.A.
1551); Decl. of Intelligence Collector 2 at ¶ 45 (J.A. 1578); see
Parhat, 532 F.3d at 849 (suggesting that the government’s use
of documents “to take actions of consequence” is an indicator of
their reliability). Finally, one of the collectors states that after
Khan’s capture, IED attacks stopped in the area for about two
months. Decl. of Intelligence Collector 2 at ¶ 15 (J.A. 1570).
The collectors also judge Informant B to be reliable.
Although he obtained his information from a sub-source in his
neighborhood,7 he provided a detailed description of Khan’s
shop that was used to plan the capture, brought a detonation
device to one interview, and was motivated to come forward by

7

Khan contends that the information reported by informants A
and B “c[a]me from one source.” Pet’r Br. 48. While that may be
correct, see Decl. of Intelligence Collector 1 at ¶ 24 (J.A. 1544), we
need not pass on that assertion to decide Khan’s appeal. The relevant
question is not the number of independent sources but rather the
reliability of their evidence, which the government has sufficiently
established for all of the reasons discussed in this subpart. Nor does
Khan’s detention rest merely on the informants’ say-so, as we discuss
in the next subpart. While multiple independent informants would
certainly strengthen the government’s case, their absence would not
of itself render the informant reports unreliable.

Page 18 of 26

USCA Case #10-5306

Document #1327684

Filed: 09/06/2011

-19Taliban atrocities and a desire to improve business security in
Kandahar. Decl. of Intelligence Collector 1 at ¶¶ 21-25, 32 (J.A.
1543-44, 1546-47); Decl. of Intelligence Collector 2 at ¶¶ 18-23
(J.A. 1571-73). Although the intelligence collectors have no
independent recollection of Informant C, they judge him reliable
as well because he provided highly detailed information that
matched the information from the other two sources. Decl. of
Intelligence Collector 1 at ¶¶ 50-56 (J.A. 1551-53); Decl. of
Intelligence Collector 2 at ¶¶ 26-32 (J.A. 1573-75). While
Informant C only repeated information he obtained from a subsource, the collectors say they do not think the sub-source was
either Informant A or Informant B, because if he had been they
would have noted that fact in their original report. Decl. of
Intelligence Collector 1 at ¶ 52 (J.A. 1552); Decl. of Intelligence
Collector 2 at ¶ 29 (J.A. 1574).8
Although Khan attacks the collectors’ credibility on a
number of fronts, we review a district court’s factfinding
regarding the credibility of a witness only for clear error, Awad,
608 F.3d at 8, and we find no such error here. Khan complains
that, because the collectors identify themselves with their
8

The collectors aver that their team’s “standard practice” was to
ask an informant about his sub-source, and if the sub-source was
someone with whom their team had already spoken, to note that fact
in the report. Decl. of Intelligence Collector 1 at ¶ 52 (J.A. 1552);
Decl. of Intelligence Collector 2 at ¶ 29 (J.A. 1574). In his reply brief,
Khan contends that this claim about the collectors’ standard practice
is “false and misleading” because it is assertedly inconsistent with
evidence concerning their practice regarding Informants A and B.
Pet’r Reply Br. 18. Even if we were to find such an inconsistency, we
would not regard it as sufficient to discard the declarations as
fabrications, as Khan suggests. But we need make no finding, one
way or the other, because arguments saved for reply briefs are waived.
See Students Against Genocide v. Dep’t of State, 257 F.3d 828, 835
(D.C. Cir. 2001).

Page 19 of 26

USCA Case #10-5306

Document #1327684

Filed: 09/06/2011

-20alphanumeric codes and ranks rather than their actual names,
their statements are not subject to the penalty of perjury and
their oaths are meaningless. The district court properly rejected
this argument, as it finds no support in either case law or the
perjury statute, 18 U.S.C. § 1621. There is no serious dispute
that the alphanumeric codes refer to specific individuals who
could be identified for purposes of a perjury prosecution. Khan
also argues that because, as the district court found, the
declarations “inaccurately detail the timeline of when [one
informant] introduced the collectors to [another informant],”
Khan, 741 F. Supp. 2d at 16, everything in the declarations
should be disregarded as the product of wholesale fabrication.
Although the court recognized that the timeline inaccuracies
were disconcerting, it concluded that they did “not relate to the
collectors’ assessments of their sources’ reliability,” which were
“supported by the collectors’ independent verification of much
of the reported information.” Id. The district court’s “decision
to credit some of the statements of an individual but not others
is reviewed for clear error,” Awad, 608 F.3d at 8, and we find
none here.
In short, the reports sourced to the three informants,
supplemented by the Army intelligence collectors’ declarations,
are “a far cry from the ‘bare assertions’ deemed unreliable in
Parhat” because they “possess[] both endogenous and
exogenous indicia of reliability.” Barhoumi, 609 F.3d at 429.
We find no error in the district court’s determination that they
were reliable.
B
Khan also challenges the reliability of heavily redacted
intelligence reports that describe items recovered in searches of
his properties. Those reports are highly incriminating, both
because of the nature of the items themselves and because their

Page 20 of 26

USCA Case #10-5306

Document #1327684

Filed: 09/06/2011

-21presence on Khan’s properties further corroborates the
informants’ description of Khan’s role in the Kandahar HIG cell.
Most incriminating of all is the report that [Redaction 7]; see
also Redaction 1 (describing the seized items).
As we noted in Part I, at the habeas hearing the district court
expressed concern that the extensive redactions made it
impossible to determine the source and timing of the reports or
to assess their reliability. The court described one of the
documents as “perhaps the most redacted report in history,” and
pressed the government to take it “back to your client agencies”
for a declaration that might “confirm [its] legitimacy.” Hr’g Tr.
47-50 (May 13, 2010) (J.A. 47-50).
We agree with the district court that it is not possible to
identify sources or assess reliability based on the redacted
versions of the reports. But like the district court, we are not
limited to the redacted versions. As we discussed in Part I,
Khan’s counsel indicated that he would be satisfied if the
government gave the district court the unredacted reports to
review in camera. The court seconded this suggestion, and the
government obliged. The government also accepted the court’s
suggestion that it supplement the reports, which it did by
providing both the court and Khan’s counsel with a declaration
(still classified, but with less sensitive information) that
describes the reports’ sources.
This circuit has previously suggested and endorsed the kind
of search for reasonable alternatives that the parties and the
court undertook here. In Parhat, for example, we said that
where the source of classified information is “highly sensitive,
. . . it can be shown to the court (and CSRT) alone.” 532 F.3d
at 849; see Bismullah v. Gates, 501 F.3d 178, 180 (D.C. Cir.
2007) (“[T]he Government may withhold from counsel, but not
from the court, certain highly sensitive information.”), vacated

Page 21 of 26

USCA Case #10-5306

Document #1327684

Filed: 09/06/2011

-22on other grounds, Gates v. Bismullah, 554 U.S. 913 (2008). We
also observed that “there may well be other forms in which the
government can submit information that will permit an
appropriate assessment of the information’s reliability while
protecting the anonymity of a highly sensitive source,” noting
both the federal courts’ practice in the Fourth Amendment
context and the authorization in the Classified Information
Procedures Act (CIPA) for using nonclassified substitutions in
criminal cases. Parhat, 532 F.3d at 849 (citing 18 U.S.C. App.
III, § 4). Similarly, in Al Odah v. United States, we again
suggested by analogy to CIPA that the government may offer
alternatives to providing classified information, as long as they
“suffice to provide the detainee with ‘a meaningful opportunity
to demonstrate that he is being held pursuant to the erroneous
application or interpretation of relevant law.’” 559 F.3d 539,
547 (D.C. Cir. 2009) (quoting Boumediene, 553 U.S. at 779).
The government contends that Khan waived any challenge
to the reliability of the intelligence reports. We disagree. It is
true that Khan’s opening appellate brief did not focus on the
reports’ reliability, but rather on his then-pending post-judgment
motion in the district court seeking unrestricted access to them.
It is clear, however that Khan’s ultimate goal was to “convince
this Court that the [district] court erred in concluding that [the
reports] have sufficient indicia of reliability.” Pet’r Br. 63.
After Khan filed his opening brief, the district court denied
his post-judgment motion, and Khan then filed a motion with
this court for unredacted access to the intelligence reports. In
the event we were to deny this motion, Khan requested that we
review the documents in camera to determine whether his
concerns had merit. See Pet’r Reply Br. 30. On April 8, 2011,
we directed the government to submit the unredacted documents
for our in camera review and deferred the motion for access.
After examining the documents, we have -- by separate order --

Page 22 of 26

USCA Case #10-5306

Document #1327684

Filed: 09/06/2011

-23denied the motion for unredacted access on the ground that the
combination of the government’s declaration and the in camera
submission constitutes an “effectiv[e] substitute for unredacted
access” that ensures Khan the “meaningful review of both the
cause for detention and the Executive’s power to detain”
required by Boumediene. Al Odah, 559 F.3d at 547-48 (quoting
553 U.S. at 783).
Like the district court, our review of the unredacted
intelligence reports confirms that they “contain sufficient
indicia” of reliability, and that the government’s declaration (to
which Khan has access) accurately represents the information
contained in the reports. Khan, 741 F. Supp. 2d at 17. That
declaration states [Redaction 8]. It therefore adequately rebuts
Khan’s contention that [Redaction 9].
C
Khan further contends that, notwithstanding the evidence
described above, the district court should instead have credited
the testimony of Khan’s expert witness that there was no HIG
cell in Kandahar in 2002. The expert, Professor Brian Williams
of the University of Massachusetts, testified that it is “strange,
improbable, [and] unlikely” that HIG would have operated in
Kandahar in 2002 because it was a Taliban stronghold and far
from the home territory of HIG’s founder, Gulbuddin
Hekmatyar. Hr’g Tr. 110, 116-18 (May 13, 2010) (J.A. 110,
116-18). Khan argues that this testimony, together with Khan’s
own statements in interrogation reports, clearly establishes that
there was no HIG presence in Kandahar that year.
But the expert’s testimony did not remain so clear upon
cross-examination. In response to the government’s questions,
Williams conceded there was a “possibility” that HIG operated
in Kandahar in 2002, explaining that his original point was only

Page 23 of 26

USCA Case #10-5306

Document #1327684

Filed: 09/06/2011

-24that the presence of a cell at that time did not “fit the overall
pattern that [he had] become used to.” Id. at 121, 123 (J.A. 121,
123). Williams also conceded that he did not have access to the
latest intelligence, had not traveled to Kandahar in 2002, and
was not familiar with Zabit Jalil, Khan’s uncle and the man
whom the informants and a Defense Department intelligence
report said commanded HIG’s Kandahar cell from Pakistan. Id.
at 123, 128 (J.A. 123, 128); see infra Part III. The district court
did not clearly err in finding that the government’s evidence,
including all that we have discussed above, outweighs Professor
Williams’ testimony and Khan’s statements.9
III
Finally, Khan challenges the district court’s finding that
HIG was an associated force of al Qaeda and the Taliban in
November 2002. To meet its burden, the government
introduced a classified expert declaration by [Redaction 10]. In
his detailed declaration, the expert stated that [Redaction 11].
He also stated that HIG “played an important and deliberate role
in supporting continued attacks against coalition and Afghan
forces throughout 2002.” Khan, 646 F. Supp. 2d at 19 (quoting
expert declaration).
In further support, the government proffered a Defense
Department intelligence report indicating that, in August 2002,
the Taliban and HIG opened a joint office in Pakistan to be led
by Khan’s uncle -- HIG commander Zabit Jalil -- and Taliban
commander Hafez Majid. IIR 6 440 0230 02 (Sept. 3, 2002)
(J.A. 1709-10). The purpose of the joint effort was to recruit

9

Nor did the court clearly err in failing to be swayed by the
memoir of a journalist who wrote that, in 2002, the Kandahar Chief of
Police told her HIG had no presence in Kandahar province, as far as
he knew. See Khan, 741 F. Supp. 2d at 11 n.11.

Page 24 of 26

USCA Case #10-5306

Document #1327684

Filed: 09/06/2011

-25new members and raise money for attacks on Afghan and U.S.
security forces. Id. The government also introduced two public
documents to similar effect. See U.S. DEP’T OF HOMELAND
SEC., TERRORIST ORGANIZATION REFERENCE GUIDE (2004)
(“HIG has long-established ties with Bin Ladin. . . . HIG has
staged small attacks in its attempt to force US troops to
withdraw from Afghanistan, overthrow the Afghan Transitional
Administration (ATA), and establish a fundamentalist state.”)
(J.A. 2167); C ONGRESSIONAL R ESEARCH S ERVICE ,
AFGHANISTAN: POST-WAR GOVERNANCE, SECURITY, AND U.S.
POLICY 23 (2004) (noting that HIG “is allied with Al Qaeda and
Taliban remnants”) (J.A. 2159).
To dispute the government’s evidence, Khan offered the
testimony of his expert, Professor Williams. But that testimony
did not truly rebut the government’s position. Professor
Williams explained that, although al Qaeda and the Taliban were
enemies of HIG in the late 1990s, the launch of U.S. operations
in Afghanistan shortly after September 11 “change[d] the
game.” Hr’g. Tr. 106 (May 13, 2010) (J.A. 106). HIG’s leader,
Hekmatyar, returned to Afghanistan in early 2002 and “beg[an]
launching low-level insurgent attacks . . . in the northeast,” at
which time there was a burying “of the hatchet between the
Taliban and Hekmatyar.” Id. at 107. Williams acknowledged
that there was a “collaboration” between the groups, and while
he did not “know the specifics exactly of when” it began, he said
it would have been an “urgent matter” to Hekmatyar “in spring
of 2002.” Id. at 107, 125-26. Although Professor Williams also
testified that the collaboration “begins to get traction” in 2003
and 2004, that is not inconsistent with the conclusion that the
collaboration existed in 2002. Id. at 107. In light of this

Page 25 of 26

USCA Case #10-5306

Document #1327684

Filed: 09/06/2011

-26evidence, the district court did not clearly err in finding that HIG
was associated with al Qaeda and the Taliban in late 2002.10
IV
For the foregoing reasons, we reject Khan’s challenge to the
district court’s findings that he was “part of” HIG and that HIG
was an “associated force” of al Qaeda and the Taliban. We
therefore affirm the court’s determination that Khan is lawfully
detained pursuant to the AUMF and its denial of Khan’s petition
for a writ of habeas corpus.
So ordered.

10

The district court did not, as Khan suggests, impose on him the
burden of disproving HIG’s association with al Qaeda and the Taliban.
Rather, having previously concluded that HIG was an associated force
in its decision denying Khan’s motion for judgment on the record, the
court found that Khan had “offered no reason for the Court to deviate
from its prior conclusion.” See Khan, 741 F. Supp. 2d at 8.

Page 26 of 26