11-5123 | Omnilex

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# PUBLIC COPY - CLASSIFIED INFORMATION DELETED United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 24, 2012

Decided August 3, 2012

No. 11-5123

OBAYDULLAH, DETAINEE, GUANTANAMO BAY AND SAMI AL
HAJJ, AS NEXT FRIEND OF OBAYDULLAH,
APPELLANTS

BARACK OBAMA, PRESIDENT OF THE UNITED STATES AND
LEON E. PANETTA, SECRETARY OF DEFENSE OF THE UNITED
STATES OF AMERICA,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-01173)

Lisa R. Jaskol argued the cause for appellant Obaydullah.
With her on the briefs were Ranjana Natarajan, Anne
Richardson, Dan Stormer, Cindy Panuco, Jon B. Eisenberg, and
Pardiss Kebriaei.

Benjamin M. Shultz, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were Tony
West, Assistant Attorney General, and Robert M. Loeb,
Attorney.

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Before: SENTELLE, Chief Judge, and HENDERSON and
GARLAND, Circuit Judges.

Opinion for the court filed PER CURIAM.

Dissenting opinion filed by Chief Judge SENTELLE.

PER CURIAM :* Obaydullah, a detainee at the United States
Naval Station at Guantanamo Bay, Cuba, appeals from the
district court's denial of his petition for a writ of habeas corpus.1
For the reasons set forth below, we affirm the judgment of the
district court.

Obaydullah is an Afghan citizen who is approximately 29
years old. He grew up in the village of Milani in Afghanistan's
Khost province, where he was living at the time of his capture.
On July 21, 2002, U.S. military forces conducted a raid at
Obaydullah's home based on certain intelligence reports.
Obaydullah v. Obama, 774 F. Supp. 2d 34, 35 (D.D.C. 2011).2

*NOTE: Portions of this opinion contain classified
information, which has been redacted.

1 The detainee has only one name, Obaydullah, which is
sometimes spelled "Obaidullah."

2
According to the government's intelligence,

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During the raid of the compound in which Obaydullah was
living, U.S. forces discovered a notebook in Obaydullah's
pocket that contained diagrams of explosives, and also found 23
anti-tank mines buried nearby outside. Id. at 36; see Dep't of
Def. Criminal Investigation Task Force Report (CITF Report)
(J.A. 713). According to a staff sergeant who was present
during the raid and submitted a sworn declaration, Obaydullah
initially said that the diagrams were of wiring for a generator
and that he was keeping the mines for someone named "Karim."
Staff Sergeant Decl. 15 (J.A. 2495); see CITF Report (J.A.
713). The team also found a tarp-covered car on the property
that contained Taliban propaganda and had dried blood on the
back seat. CITF Report (J.A. 713); Staff Sergeant Decl. 1 5
(J.A. 2495).3 Obaydullah was taken into custody and eventually
transferred to the U.S. Naval Station at Guantanamo Bay.4

3 Additionally, U.S. forces found

Staff

Sergeant Decl. 17 (J.A. 2495).

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On July 7, 2008, Obaydullah filed a petition for a writ of
habeas corpus. In November 2008, however, the government
filed charges against Obaydullah for the purpose of initiating a
prosecution before a military commission. As a result, the
parties agreed to stay the habeas proceedings. Then, following
President Obama's suspension of military commissions
proceedings in January 2009, Obaydullah moved to vacate the
stay. The district court denied his motion, but this court
reversed. See Obaydullah v. Obama, 609 F.3d 444 (D.C. Cir.
2010).5 Thereafter, habeas proceedings resumed before the
district court. On November 30, 2010, the court entered
judgment denying Obaydullah's habeas petition, concluding that
the government had established "that it is more likely than not
that [Obaydullah] was in fact a member of an al Qaeda bomb
cell, and is therefore detainable." Obaydullah, 774 F. Supp. 2d
at 36. Obaydullah filed a motion for reconsideration, which was
also denied. He then filed his notice of appeal.

Obaydullah contends that he was captured in "a case of
mistaken identity," Obaydullah Br. 1, and he presents alternative
explanations for the notebook and the mines. In that connection,
he argues that the district court erred in relying on government

5 Although military commission proceedings have since resumed
against certain other Guantanamo detainees, the government has not
indicated that it intends to try Obaydullah before such a commission.

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intelligence reports that linked him to al Qaeda and gave rise to
the raid during which he was captured. Obaydullah also
contends that the court erred in denying his requests for
discovery. We examine Obaydullah's merits contentions in Part
III and his discovery contentions in Part IV. We begin,
however, with a question about our jurisdiction.

## II

The district court denied Obaydullah's habeas petition on
November 30, 2010. Twenty-two days later, Obaydullah
requested a two-day extension to file a motion for
reconsideration pursuant to Federal Rule of Civil Procedure
59(e). Rule 59(e) provides that such motions must be filed
within 28 days after entry of a final judgment, and Rule 6(b)(2)
further states that this deadline cannot be extended. FED. R. CIV.
P. 59(e); id. 6(b)(2). Nonetheless, the government did not
oppose the request, and the court granted it. Obaydullah filed
his Rule 59(e) motion on December 30, 2010 (that is, 30 days
after the judgment), and the court ultimately denied that motion
on March 24, 2011. On May 17, 2011, Obaydullah filed his
notice of appeal.

28 U.S.C. § 2107(b) states that an appellate court has
jurisdiction of a case only if a notice of appeal is filed within 60
days of the entry of a judgment (where the government is a party
to the case). But under Federal Rule of Appellate Procedure
4(a)(4)(A), "[i]f a party timely files" certain subsequent motions
in the district court, "the time to file an appeal runs for all
parties from the entry of the order disposing of the last such
remaining motion." FED. R. APP. P. (FRAP) 4(a)(4)(A). A Rule
59 motion falls within this category, FRAP 4(a)(4)(A)(iv), and

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Obaydullah filed his notice of appeal within 60 days after the
district court denied his Rule 59(e) motion.6 The potential
problem is that, arguably, Obaydullah's Rule 59(e) filing was
not "timely" within the meaning of FRAP 4(a)(4)(A) because it
came more than 28 days after entry of the court's judgment. If
his Rule 59(e) motion was not timely, then it failed to trigger
FRAP 4(a)(4)(A)'s tolling provision. And without tolling,
Obaydullah's appeal would be too late (having been filed more
than 60 days after the district court entered judgment on the
denial of the habeas petition), and we would thus lack
jurisdiction to hear his case.

There is no doubt that, if Obaydullah had simply exceeded
the deadline prescribed in 28 U.S.C. § 2107(b), we would have
no jurisdiction. See Bowles v. Russell, 551 U.S. 205, 206
(2007). The question is whether his Rule 59(e) motion triggered
FRAP 4(a)(4)(A)'s tolling provision, notwithstanding that it may
not have been "timely" under the latter rule. Obaydullah
contends that FRAP 4(a)(4)(A)'s timeliness requirement is a
"claim-processing rule" subject to waiver. The government
agrees that it can be construed as such and, "to the extent it can,
[it] waives any objection to the fact that [Obaydullah's]
reconsideration motion was not timely filed." U.S. Br. 3. But
if FRAP 4(a)(4)(A)'s timeliness provision is in fact a
jurisdictional rather than a claim-processing rule, then it pertains
directly to our "'power to hear [the] case"" and "'can never be
forfeited or waived." Union Pac. R.R. Co. v. Bhd. of

'For that reason, we unquestionably would have appellate
jurisdiction over a challenge to the court's denial of Obaydullah's
59(e) motion, but Obaydullah has not raised the issues addressed in
that motion in these proceedings.

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Locomotive Eng'rs & Trainmen Gen. Comm. of Adjustment, 130
S. Ct. 584, 596 (2009) (quoting Arbaugh v. Y & H Corp., 546
U.S. 500, 514 (2006)). "In contrast, a 'claim-processing
rule, ... even if unalterable on a party's application,' does not
reduce the adjudicatory domain of a tribunal" and may be
forfeited. Id. (quoting Kontrick v. Ryan, 540 U.S. 443, 456
(2004)). Because we "have an independent obligation to ensure
that [we] do not exceed the scope of [our] jurisdiction," we must
"decide jurisdictional questions" even when the parties "elect
not to press" them. Henderson ex rel. Henderson v. Shinseki,
131 S. Ct. 1197, 1202 (2011).

As a general matter, "only timing rules that have a statutory
basis are jurisdictional." Youkelsone v. FDIC, 660 F.3d 473,
475 (D.C. Cir. 2011). The Supreme Court made this dividing
line explicit when, in Bowles, it found that a provision of FRAP
4(a)(6) allowing a district court to reopen a party's time for
filing a notice of appeal "for a period of 14 days" is an absolute
jurisdictional requirement because it is expressly codified in 28
U.S.C. § 2107(c). See Bowles, 551 U.S. at 213 (“Because
Congress specifically limited the amount of time by which
district courts can extend the notice-of-appeal period in
§ 2107(c), that limitation is [jurisdictional]."). Here, the general
60-day deadline for filing an appeal has an obvious statutory
basis (in § 2107(b)), but the provisions in FRAP 4(a)(4)(A)
allowing for modification or tolling of that deadline do not have
such a basis.

Because FRAP 4(a) implements § 2107, there is at least a
theoretical argument that it, too, must be jurisdictional. But two
cases from this circuit have specifically examined provisions of
FRAP 4(a) and have concluded that, because those provisions

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themselves lack statutory analogues, they are claim-processing
rules subject to waiver or forfeiture. Those cases directly
control our analysis.

First, in Wilburn v. Robinson, 480 F.3d 1140 (D.C. Cir.
2007), we found that FRAP (4)(a)(4)(A)(vi), which tolls the
deadline when a party files a Rule 60 motion, is a claim-
processing rule. That provision tolled the deadline where such
a motion was filed within ten days after judgment (the period is
now 28 days), and the appellant had filed his motion one day
late. Because the other party had failed to object, the court was
required to decide whether the rule was jurisdictional. We held
that it was not. Rather, we concluded that "[t]he tolling
language of Rule 4(a)(4)(A)(vi) fits the [Supreme] Court's
description of a claim-processing rule" by "establish[ing] a
deadline ... within which a party must file [the motion] in order
to toll the time limit for filing a notice of appeal" and by
affording an affirmative defense to untimely appeals. Id. at
1145 (citing Eberhart v. United States, 546 U.S. 12, 15 (2005);
Kontrick, 540 U.S. at 456). Because that particular deadline
possessed both these characteristics, and was not codified by
statute, see id. at 1145 n.9, we held that it was subject to
forfeiture. Id. at 1146. Thus, the appellant's untimely Rule
60(b) motion was sufficient to toll the appeals deadline.

Wilburn alone should be conclusive here: there is no real
difference between permitting a late Rule 59(e) motion to trigger
FRAP 4(a)'s tolling provision under FRAP 4(a)(4)(A)(iv) and
permitting a late Rule 60 motion to do so under FRAP

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4(a)(4)(A)(vi).7 And while Wilburn was decided just before the
Supreme Court's decision in Bowles, the Wilburn opinion noted
the Sixth Circuit's ruling in that case (which the Supreme Court
later upheld) and distinguished its rationale: the 14-day window
at issue in Bowles is codified in § 2107(c), the court noted, while
"the tolling language of Rule 4(a)(4)(A)(vi) has not been made
jurisdictional by statute." Wilburn, 480 F.3d at 1145 n.9.

Lest there be any remaining doubt regarding this circuit's
law, however, our holding in Youkelsone reiterates that key
provisions within FRAP 4(a) that are not codified by statute are
claim-processing rules. Youkelsone dealt with FRAP 4(a)(5)(c),
which allows a district court to extend the time to file a notice of
appeal but caps such extensions at "30 days after the prescribed
time." The district court had extended the deadline one more
day than it should have, and the appellant filed her notice of
appeal on that day. The other party had failed to object,
however, and we found that FRAP 4(a)(5)(C)'s deadline did not
operate as a jurisdictional bar. Importantly, we noted that
"[a]lthough the authority to extend the time available to file an
appeal is codified at 28 U.S.C. § 2107[(c)], Rule 4(a)(5)(C)'s

"The only possible distinction is that FRAP 4(a)(4)(A)(iv) does
not have a specific deadline; tolling begins simply when a "timely"
Rule 59 motion has been filed. But the reason for the absence of a
deadline in the FRAP is obvious: Rule 59 itself prescribes its deadline
(28 days), whereas Rule 60 motions can in some circumstances be
filed months or years after judgment - hence the need for a limitation
in the FRAP. This difference is immaterial: if Rule 4(a)(4)(A)(iv)
precisely paralleled (vi) by specifying that a Rule 59 motion "filed
within 28 days" would toll the appeals deadline, that 28-day limit
would be subject to waiver for the same reason the 10-day (now 28-
day) limit in Rule 4(a)(4)(A)(vi) was held subject to waiver.

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thirty-day limit on the length of any extension ultimately granted
appears nowhere in the U.S. Code." Youkelsone, 660 F.3d at
475. We immediately followed this observation with the
conclusion that 4(a)(5)(c) "is thus a claim-processing
rule" - followed by a citation to Wilburn. Id.8

Our decision in In re Sealed Case, 624 F.3d 482 (D.C. Cir.
2010), is not to the contrary. First, like Bowles, it involved the
specific "reopening" provision set forth in 28 U.S.C. § 2107(c).
As relevant here, that provision - which is substantively
identical to FRAP 4(a)(6)(B) - allows a district court to reopen
the window for filing an appeal where certain conditions are met
and where the motion is "filed within 180 days" after entry of
the judgment. 28 U.S.C. § 2107(c); see FRAP 4(a)(6)(B). The
appellant in Sealed Case failed to file by that deadline. After his
motion to reopen was therefore rejected by the district court on
timeliness grounds, the appellant filed a Rule 60(b) motion for
relief from judgment. But he wasn't really asking for relief from
judgment; rather, he wanted the district court to vacate and then
reinstate the judgment in one fell swoop so that he could then
file an appeal. Id. at 486. The district court declined to do so,
and we agreed that "Congress' codification of [FRAP] 4(a)(6)'s
reopening provisions [in 28 U.S.C. § 2107(c)] [is] a
jurisdictional limitation" that cannot be relaxed based on the
equities of a case, nor "circumvent[ed]" by allowing a court to

8
3 Although Youkelsone did not cite Bowles specifically, the
decision plainly followed its precepts. See Youkelsone, 660 F.3d at
475 ("'Only Congress may determine a lower federal court's subject-
matter jurisdiction.' Accordingly, only timing rules that have a
statutory basis are jurisdictional." (quoting Kontick, 540 U.S. at 452)).

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vacate and then reinstate a judgment so as to re-start the clock
for filing an appeal. Id. at 486-87.

Sealed Case does not establish a general "anti-
circumvention" principle applicable in all circumstances.
Although it does indicate that we should not allow sham
maneuvers undertaken to avoid hard jurisdictional deadlines, the
very existence of FRAP 4(a)(4)'s tolling provision shows that
the general statutory deadline for filing an appeal can in fact be
extended through the court's own claim-processing rules. And
Wilburn and Youkelsone, the two cases most directly on point,
show that we can exercise appellate jurisdiction even when an
appellant has failed to comply with the deadlines set in FRAP
4(a)(4) and 4(a)(5), respectively. As Wilburn explained in the
course of rejecting an argument raised by the dissent in that
case:

The dissent . .. implies that the ... time limit
contained in Rule 59(e) and the similar limit in Rule
60(b) imported from FRAP 4(a)(4)(A)(vi) are
jurisdictional by an attenuated line of reasoning: (1)
because 28 U.S.C. § 2107(a) is jurisdictional, FRAP
4(a)(1)(A) must also be jurisdictional and (2) because
FRAP 4(a)(1)(A) is jurisdictional, the timeliness
provisions contained in FRAP 4(a)(4)(A) must also be
jurisdictional - meaning that 28 U.S.C. § 2107(a)
renders Rule 59(e)'s [then] ten-day period
jurisdictional, at least for the purpose of appellate
tolling. ... It is unlikely that the Supreme Court had
such jurisdictional boot-strapping in mind when it so
plainly tightened its use of the term 'jurisdictional' in

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relation to express time prescriptions included in the
federal rules.

Wilburn, 480 F.3d at 1146 n.11 (emphasis added). The kind of
"jurisdictional boot-strapping" the court rejected in Wilburn is
precisely what we would effectuate were we to hold that
Obaydullah's late Rule 59(e) motion bars the hearing of his
appeal.

Finally, Bowles's treatment of two earlier Supreme Court
decisions discussed by our dissenting colleague does not
undermine our circuit's precedents. Bowles cited the first,
Browder v. Director, Dep't of Corrections, 434 U.S. 257 (1978),
merely as part of a string cite for the proposition that "[t]his
Court has long held that the taking of an appeal within the
prescribed time is 'mandatory and jurisdictional."" Bowles, 551
U.S. at 209-10. The Court followed that proposition with a
footnote stating that its cases "have noted the jurisdictional
significance of the fact that a time limit is set forth in a statute,"
and have "pointed to § 2107 as a statute deserving of
jurisdictional treatment." Id. at 210. Similarly, Bowles cited the
second decision, Thompson v. INS, 375 U.S. 384 (1964), merely
to make clear that it was overruling the "unique circumstances"
doctrine set forth in that case. Id. at 214. The Court overruled
Thompson only "to the extent [it] purport[ed] to authorize an
exception to a jurisdictional rule" based on that doctrine. Id. It
did not suggest what the correct disposition would have been in
Thompson in the absence of that exception, nor did it indicate
which rules were jurisdictional in that case.

In sum, in light of this circuit's decisions in Wilburn and
Youkelsone, and the government's waiver of any timeliness

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objection, we conclude that we may proceed to a consideration
of Obaydullah's appeal.

## III

Following al Qaeda's attacks against the United States on
September 11, 2001, Congress passed the Authorization for Use
of Military Force (AUMF), which 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) (codified at 50
U.S.C. § 1541 note). "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 Alwi v. Obama, 653 F.3d 11, 16 (D.C. Cir.
2011) (quoting Al Odah v. United States, 611 F.3d 8, 10 (D.C.
Cir. 2010)), and Congress has since affirmed that authority, see
National Defense Authorization Act for Fiscal Year 2012, Pub.
L. No. 112-81, § 1021, 125 Stat. 1298, 1562 (2011) (codified at
10 U.S.C. § 801 note).

Based on the evidence before it, the district court concluded
that the government "more than adequately established that it is
more likely than not that [Obaydullah] was in fact a member of

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an al Qaeda bomb cell, and is therefore detainable under the
AUMF." Obaydullah, 774 F. Supp. 2d at 36. This conclusion
presents a mixed question of law and fact. Alsabri v. Obama, -
F.3d -, -, 2012 WL 2895585, at *2 (D.C. Cir. 2012). "That is,
whether a detainee's alleged conduct is sufficient to make him
'part of" al Qaeda is a "legal question[] that we review de
novo." Khan v. Obama, 655 F.3d 20, 26 (D.C. Cir. 2011). But
"[w]e review the court's specific factual determinations about
what happened .. . for clear error," Alsabri, 2012 WL 2895585,
at *2 (citing Khan, 655 F.3d at 26), as well as "[t]he 'question
whether evidence is sufficiently reliable to credit,"" id. (quoting
Al Alwi, 653 F.3d at 19). We may find clear error "only if, 'on
the entire evidence, we are left with the definite and firm
conviction that a mistake has been committed."" Id. (quoting
Barhoumi v. Obama, 609 F.3d 416, 423 (D.C. Cir. 2010)).

The most direct evidence linking Obaydullah to al Qaeda
comes from the intelligence reports that precipitated the raid9

'More specifically, when U.S. forces entered Obaydullah's
residence, they were acting on a tip that

and from the raid itself. When U.S. forces entered Obaydullah's
residence, they found a notebook containing diagrams of
explosives in his pocket. They then found 23 anti-tank mines
buried outside the compound nearby. Obaydullah does not
dispute these two central facts, although he does contest some of
the details. See Obaydullah Br. 51 (asserting that "the notebook
does not . . . contain 'detailed' instructions on IED
construction," but "only general information that would serve as
refresher notes for an individual trained on the subject"); id. at
44-45 (raising discrepancy in number and location of mines, as
compared to the pre-raid intelligence).

Notwithstanding the notebook and mines, Obaydullah
contends that the government's pre-raid intelligence reports
linking him to al Qaeda are not reliable and have not been
sufficiently corroborated. We have explained that, although raw
intelligence reports alone may not provide a sufficient basis for
a court to assess whether the government has met its burden, we
may rely upon such evidence if we are "able to assess the
reliability of [it] ourselves' by evaluating" factors such as
"internal coherence" and "consistency with uncontested record
evidence." Barhoumi, 609 F.3d at 428 (quoting Parhat v. Gates,
532 F.3d 834, 848 (D.C. Cir. 2008)). Here, the pre-raid
intelligence linking Obaydullah to an al Qaeda bomb cell is
plainly corroborated by what was found at the raid: a notebook
with diagrams of explosives in Obaydullah's pocket and mines
buried outside his house. And while Obaydullah claims that the

see also supra notes 2, 4.

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raid failed to corroborate other aspects of the intelligence, his
arguments rest on inconsistencies that the district court
reasonably construed as minor within the bigger picture. For
example, Obaydullah points to a discrepancy in the number of
mines found as compared to that indicated in the pre-raid
intelligence, see Obaydullah, 774 F. Supp. 2d at 38, and he notes
that the mines were buried "25 to 30 meters outside the
compound," Obaydullah Br. 45 (emphasis in original).10

As the district court put it, "[w]hat matters is that there
were, in fact, 23 anti-tank mines . .. that were found in close

10There is also some dispute about discrepancies regarding
names:

But Obaydullah

has acknowledged that he sometimes goes by the names "Baidullah"
or "Baitullah." Obaydullah Decl. 1 33 (J.A. 1493). And

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proximity to the petitioner's compound." Obaydullah, 774 F.
Supp. 2d at 38. Perhaps even more to the point, the intelligence
linking Obaydullah to an al Qaeda bomb cell is corroborated by
the fact that he had a notebook with diagrams of explosives in
his pocket. Id. While it is possible that the bombs and the
notebook can be explained by other circumstances, see infra
Section III.B - or that Obaydullah was some sort of "freelance"
bomb-maker not linked to al Qaeda, cf. Salahi v. Obama, 625
F.3d 745, 752 (D.C. Cir. 2010) - the district court's conclusion
that these circumstances sufficiently corroborated the pre-raid
intelligence falls well within the realm of reasonableness.

Likewise,

is corroborated by
the fact that, according to the staff sergeant who was present
during the raid, Obaydullah initially said he was keeping the
mines for "Karim," CITF Report (J.A. 713). Obaydullah now
suggests that his statements at the scene of the raid may have
been coerced, or, alternatively, that he never said this at all. But
he has shown no evidence of coercion at the scene of the raid,
nor did he raise this argument in the district court below. He has
stated, and the government acknowledges, that he was restrained
by plastic cuffs and had a hood placed over his head during the
raid. Obaydullah Decl. 12 (J.A. 1484); Staff Sergeant Decl. 16
(J.A. 2495). But those circumstances alone do not warrant
rejection of any reliance on his statements, particularly because
there was other affirmative evidence that Obaydullah was not
coerced.11

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In the alternative, Obaydullah suggests that he never made
the statements at all by challenging the district court's (and the
government's) reliance on translations made at the scene of the
raid. This argument has three problems. First, it is inconsistent
with his suggestion that he was coerced into making the
statements (notwithstanding the claim that it is presented "in the
alternative"); and the district court was therefore justified in
regarding the mistranslation claim as not credible. Second,
Obaydullah does not challenge the interpretation of any
particular words he spoke or proffer their true meaning. He
makes only a blanket contention that the court should not have
afforded credibility to a particular translator because the
translator was later fired for making faulty translations.
Obaydullah Br. 38 n.11. (He does challenge translations of
particular statements by other translators during other
interrogations, id., but those statements are not at issue here.)
We cannot conclude that the district court's decision to credit
the translation was clear error when Obaydullah has made no
allegation of a specific, material mistranslation. Cf. Barhoumi,
609 F.3d at 431 (rejecting the petitioner's "suggestion that the
translator's forthrightness regarding uncertainties surrounding
the date of particular diary entries somehow taints the reliability
of the diary as a whole"). Third, in any event Obaydullah
concedes that he did have a relationship with a man named

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Karim Bostan, Obaydullah Traverse 1 28 (J.A. 1459) - another
Guantanamo detainee who, according to the government, is the
"Karim" implicated here.12

Finally, we note that Obaydullah's connections to al Qaeda
are further corroborated by

12Obaydullah states that he and Karim Bostan were former
business partners. Obaydullah Br. 5; Obaydullah Traverse 1 28 (J.A.
1459). He does not dispute that they also were both members of
Jama'at Tablighi (JT), which is how they met. Traverse | 28 (J.A.
1459). JT is "an Islamic missionary organization, which U.S.
intelligence has designated a Terrorist Support Entity[,] a category of
organizations that has 'demonstrated intent and willingness to provide
financial support to terrorist organizations,' or to provide 'witting
operational support' to terrorist groups," including al Qaeda.
Almerfedi v. Obama, 654 F.3d 1, 2 (D.C. Cir. 2011); see Obaydullah,
774 F. Supp. 2d at 39. The district court cited evidence of
Obaydullah's relationship with Bostan and their respective
involvement in JT as one factor in support of finding that Obaydullah
was part of al Qaeda. Obaydullah, 774 F. Supp. 2d at 39. This court
has likewise found membership or association with JT to be probative
of membership in al Qaeda. Almerfedi, 654 F.3d at 6.

Obaydullah has presented alternative explanations for both
the notebook and the landmines. As to the first, he contends that
the diagrams in the notebook - which he acknowledges depict
explosives - are from a class at a mechanical school in Khost
that the Taliban forced him to attend, and from which he "fled
after two days." Obaydullah Br. 12-13, 52. "Not realizing the
notes could be a threat to him," he says that he "later used the
notebook to record information about a pots-and-pans store he
operated." Id. at 52. But apart from his citation to a 2002 State
Department document referencing reports of forcible
conscriptions by the Taliban, see J.A. 2132, Obaydullah has
provided no evidence corroborating this version of events or
explaining his implausible decision to hold on to the notebook.
Moreover, as noted above, the government produced evidence
that, when initially confronted with the notebook at the scene of
the raid, Obaydullah said the diagrams were depictions of wiring
for a generator. CITF Report (J.A. 713); Staff Sergeant Decl.

15 (J.A. 2495).13 Based on that inconsistency, we cannot find
that the district court committed clear error in concluding that
Obaydullah's explanation was not credible.

As to the mines, Obaydullah contends that they were left
over from the conflict against the Soviets in the 1980s and were
buried long ago by members of his family. Obaydullah Br. 11-
12. He cites a good deal of evidence that landmines are buried
throughout the country, and the government concedes that they
are "abundant in Afghanistan, due to decades of conflict."

Decl. 112 (J.A. 606). We agree that landmines buried
outside a house in Afghanistan are therefore not as obviously
inculpatory as they would be if found, for example, in the
backyard of a house in Washington, D.C. But, as noted above,
the government produced evidence that, when initially asked
about the mines at the scene of the raid, Obaydullah said nothing
about their being left over from long ago; rather, he said he was
keeping them for someone named Karim. CITF Report (J.A.
713). Again, we find that the district court's decision to credit
the government regarding this account was not clear error: the
court relied upon the statements of the staff sergeant who
participated in the raid, id., against Obaydullah's unsupported
claim of coercion at the scene and his blanket challenge to the
translator's reliability. In addition, the notebook found in
Obaydullah's pocket, which concededly depicts diagrams of
explosives, plainly supports a further connection between

13 As with his statement about keeping the mines for Karim,
Obaydullah disclaims this statement as likely resulting from coercion;
alternatively, he denies that he made it at all. For the reasons
described above, the district court did not clearly err in crediting the
government's account.

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Obaydullah and the buried mines. Taking these circumstances
together, the district court did not commit clear error when it
declined to credit Obaydullah's explanation that the mines were
left over from the conflict of the 1980s.

Finally, Obaydullah argues that the district court
"fundamentally misconstrued the pre-raid intelligence on which
Obaydullah's detention is primarily based, wrongly believing
the intelligence placed Obaydullah at the scene of an accidental
IED explosion, ferrying injured bomb cell members to the
hospital." Reply Br. 1; see Obaydullah Br. 53-54. The district
court cited an interview report of the staff sergeant who
participated in the raid "indicating that the petitioner and Karim
Bostan, in the aftermath of an accidental explosion, were seen
driving an automobile taking several wounded bomb cell
members to a local hospital for medical attention." Obaydullah,
774 F. Supp. 2d at 38 (citing CITF Report (J.A. 713)). The
court cited the blood found in the backseat of the car as further
corroboration of this account. Id. But while the court accurately
characterized the staff sergeant's statement, see CITF Report
(J.A. 713), we agree with Obaydullah that this statement
mischaracterized the intelligence upon which it appears to have
been based, a point the government does not dispute. That
intelligence stated

But even if this
characterization constituted error, we do not agree that it
"infected the entire proceeding" or was "foundational" to the

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district court's reasoning. Reply Br. 22, 1. The court discussed
this evidence only after it had already assessed evidence from
the pre-raid intelligence, the
the fruits of
the raid, and Obaydullah's lack of credibility. And even if we
eliminate evidence that Obaydullah and/or Bostan "were seen"
driving injured bomb cell members to a hospital, the uncontested
fact still remains that U.S. soldiers found substantial amounts of
blood in the back seat of the car, CITF Report (J.A. 713); Staff
Sergeant Decl. 17 (J.A. 2495).

Obaydullah further contends that the district court
improperly denied his requests for discovery on two separate
matters, and that it committed a number of additional legal
errors. Discovery requests in this case were made pursuant to a
Case Management Order (CMO) adopted by the district court
that is substantially similar to CMOs used in other Guantanamo
habeas cases. Section I.F of the CMO requires the government
to provide "on an ongoing basis any evidence contained in the
material reviewed in developing the return . . . and in
preparation for the hearing . .. that tends materially to
undermine the Government's theory as to the lawfulness of the
petitioner's detention." J.A. 1110. The CMO also states that
requests for discovery must be narrowly tailored, that they must
specify why the request is likely to produce evidence material to
the petitioner's case, and that they must explain "why the burden
on the Government to produce such evidence is neither unfairly
disruptive nor unduly burdensome." CMO § 1.E (J.A. 1110).
Obaydullah contends that the district court erred when it denied
his motion to compel discovery of information relating to the
reliability of the government's intelligence source that prompted

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the raid, and to the circumstances surrounding Obaydullah's
interrogation during the raid. We review the district court's
discovery rulings only for abuse of discretion. See Al-
Madhwani v. Obama, 642 F.3d 1071, 1077 (D.C. Cir. 2011).

Although the government has disclosed the classified pre-
raid intelligence reports to Obaydullah's security-cleared
counsel, it has redacted the source of this intelligence and any
information describing the source.14 The government contends
that the source is highly sensitive - too sensitive, even, to reveal
in its classified filings at the Secret level, to which Obaydullah's
security-cleared counsel has access. U.S. Br. 10.

Obaydullah requested "[a]Il documents relating to the tip on
which American forces were operating" when they conducted
the raid, "including the nature of the tip and the identity of its
source"; "[a]ny and all information regarding fees, bounties, or
other monetary or non-monetary remuneration or consideration
given to third parties for apprehension, transfer, or investigation
of petitioner"; "[d]ocuments sufficient to show whether there
was ever a bounty offered or paid for Obaidullah's capture"; and

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"[t]he identity, by name and any other identifying information,
of any and all sources providing the [pre-raid] intelligence."
Obaydullah Mot. to Compel Disc. at 6-7 (J.A. 1120-21). The
government does "agree that money provided to a source in
exchange for inculpatory information would generally be
relevant and already encompassed within the government's
disclosure obligation under CMO § I.F." U.S. Br. 41 n.21. But
it insists it has complied with all of its obligations under the
CMO and that it cannot disclose anything further to
Obaydullah's counsel without jeopardizing highly sensitive,
source-related information. See Gov't Response to Mot. to
Strike at 4. The information at issue here, the government tells
us, is classified as "Sensitive Compartmented Information" and
"require[s] 'special controls and handling." Id. at 1 n.1 (quoting
Doe v. Cheney, 885 F.2d 898, 902 n.2 (D.C. Cir. 1989)).

Obaydullah does not deny that the government may
withhold classified national security material consistent with its
"legitimate interest in protecting sources and methods of
intelligence gathering." Boumediene v. Bush, 553 U.S. 723, 796
(2008). At oral argument, counsel for Obaydullah conceded
that - notwithstanding counsel's security clearance at the Secret
level - the government could withhold, as a hypothetical
example, the name of a covert agent placed in a sensitive
position, even if potentially relevant to the case. Here, the
government submitted an ex parte filing to the court containing
further information about its source. We have reviewed that
material solely for the purpose of determining whether the
government has met its obligations under the CMO, and not for
the purpose - to which Obaydullah would object - of
"bolster[ing] [the government's] case against" him, Obaydullah
Mot. to Strike at 7. Finding that the government did not need to

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disclose further information about its source to Obaydullah's
counsel, we conclude that the district court did not abuse its
discretion in denying Obaydullah's discovery request.

Obaydullah also contends that the district court improperly
denied his discovery request for "evidence concerning coercion
by U.S. forces who interrogated him during the July 2002 raid."
Obaydullah Br. 32 (emphasis added). Obaydullah maintains that
statements he gave during the raid and later retracted (that he
was keeping the mines for "Karim," and that the notebook
diagrams depicted wiring for a generator) were "likely the
product of coercion." Id. at 37-38. As such, he argues that
evidence of coercion would have been material to the court in
rehabilitating his credibility.

In the district court, Obaydullah made a broad request for
any information about his coercion or abuse at the hands of U.S.
officials. The district court did not deny that request. To the
contrary, it repeatedly made clear that the government was
obligated to disclose any and all information relating to
coercion. Hearing Tr. Aug. 20, 2010 (PM) at 20-21 (J.A. 2905-
06). And, in fact, Obaydullah was given such information -
specifically in relation to his detention at Chapman Airfield and
at Bagram Airbase. See CITF reports and memoranda at J.A.
704-08, 713, 1859-61, 2485-86. Indeed, Obaydullah's
allegations of abuse led the government to withdraw reliance on
any statements he made at those airbases. U.S. Br. 13 n.9; see
Hearing Tr. Sept. 30, 2010 (AM) at 28 (J.A. 3015).

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The government represents that there is no other evidence
concerning coercion, whether during the raid or otherwise. The
government did disclose various reports and debriefings
regarding the raid - as well as

We have examined this material and find
it inconsistent with a claim that Obaydullah was mistreated
during the raid. Accordingly, there is nothing that leads us to
doubt the government's assertion that it complied with the
district court's instruction to disclose any and all information
relating to coercion.

Finally, Obaydullah raises a number of legal challenges to
the district court's standard of proof, its use of hearsay evidence,
and its application of the AUMF. Those challenges are
foreclosed by circuit precedent. See Alsabri, 2012 WL 2895585,
at *10 (court may apply a preponderance of the evidence
standard and may admit hearsay evidence); Al Alwi, 653 F.3d at
16 (listing cases affirming that the government may detain
persons found to be "part of" al Qaeda). Obaydullah also argues
that it is error for a district court to consider "coerced evidence,"
but that argument has no application to this case. As we have
just explained, there is no evidence that Obaydullah's statements
at the scene of the raid were the result of coercion, and the
government disclaimed any reliance on statements as to which
there was such evidence (namely, the statements at the airbases).

For the foregoing reasons, we reject Obaydullah's challenge
to the district court's conclusion that he was "part of" al Qaeda.

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We therefore affirm the court's determination that he is lawfully
detained pursuant to the AUMF and its denial of his petition for
a writ of habeas corpus.

So ordered.

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SENTELLE, Chief Judge, dissenting: Although the
majority's opinion accurately identifies the authorities relevant
to the determination of whether we have jurisdiction to consider
this appeal, I disagree regarding its conclusion, and, therefore,
must respectfully dissent.

The existence of jurisdiction is the "first and fundamental
question that we are bound to ask and answer." Wilson v. Libby,
535 F.3d 697, 703 (D.C. Cir. 2008) (internal quotation marks
omitted). "The requirement that jurisdiction be established as a
threshold matter springs from the nature and limits of the
judicial power of the United States and is inflexible and without
exception." Id. (internal quotation marks omitted). We are not
at liberty to consider the merits of a case without first
establishing that we have jurisdiction to do so.

The majority explains the procedural history of this case
before the district court. Maj. Op. at 4-5. Briefly: The district
court denied Obaydullah's habeas petition on November 30,
2010. Under Federal Rule of Civil Procedure 59(e), Obaydullah
had 28 days to file a motion for reconsideration. Federal Rule of
Civil Procedure 6(b) provides that the district court may not
extend a party's time to act under Rule 59(e). But Obaydullah's
counsel moved for, and the district court granted, a two-day
extension to file Obaydullah's motion for reconsideration. In
accordance with the mistaken extension, Obaydullah filed his
Rule 59(e) motion on December 30, 2010-30 days after the
district court entered the judgment. The district court denied the
motion for reconsideration on March 24, 2011, and Obaydullah
filed his notice of appeal on May 17, 2011.

In order for a United States court of appeals to have
jurisdiction over a case in which the government is a party, a

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party must file its notice of appeal from a district court judgment
within 60 days after the entry of the judgment. 28 U.S.C.
§ 2107(a)-(b). Federal Rule of Appellate Procedure (FRAP)
4(a)(4)(A) provides, however, that "[i]f a party timely files in the
district court any of the following motions under the Federal
Rules of Civil Procedure, the time to file an appeal runs for all
parties from the entry of the order disposing of the last such
remaining motion." One of those motions is a motion to alter or
amend the judgment under Rule 59. Fed. R. App. P.
4(a)(4)(A)(iv).

Thus, had Obaydullah "timely fil[ed]" his Rule 59(e) motion
for reconsideration, the motion would have tolled the time for
him to file his notice of appeal regarding the underlying district
court decision and we would have jurisdiction over his appeal of
that decision. Obaydullah, however, did not timely file his Rule
59(e) motion, raising the question whether an untimely Rule
59(e) motion allowed to proceed by the district court and
unchallenged by the government tolls the running of the 60-day
time limit to file a notice of appeal. Based on the explicit terms
of the jurisdictional statute and the rules themselves, it does not.
My colleagues find support in case law for departing from the
terms of the statute and the federal rules of civil and appellate
procedure in order to exercise jurisdiction. The case law they
cite leads me to the opposite conclusion.

In Bowles v. Russell, 551 U.S. 205 (2007), the Supreme
Court considered whether a court of appeals had jurisdiction to
consider an appeal of a decision after the district court purported
to extend a party's time to file its appeal beyond the statutory 14-
day period set out in 28 U.S.C. § 2107(c). 551 U.S. at 206-07.
The district court had denied the habeas petition of Keith
Bowles, a convicted murder. Under FRAP 4(a)(1)(A) and 28

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U.S.C. § 2107(a), Bowles had 30 days to file a notice of appeal.
He failed to do so, but later moved to reopen the period during
which he could file his notice of appeal pursuant to FRAP
4(a)(6). Bowles, 551 U.S. at 207. That rule allows the district
court to reopen the time to file a notice of appeal for 14 days
under specified conditions. See 28 U.S.C. § 2107(c) (codifying
the 14-day time period). The district court granted the motion,
but gave Bowles 17 days to file his notice of appeal instead of
the 14 days allowed by the statute and rule. Relying on Browder
v. Director, Department of Corrections, 434 U.S. 257, 264
(1978), the Sixth Circuit held that it did not have jurisdiction to
consider Bowles' appeal because the Supreme Court consistently
had held that the timely filing of a notice of appeal is
"mandatory and jurisdictional." Bowles v. Russell, 432 F.3d
668, 673 (6th Cir. 2005), aff'd, 551 U.S. 205 (2007).

Emphasizing that "the taking of an appeal within the
prescribed time is 'mandatory and jurisdictional," the Supreme
Court affirmed the Sixth Circuit's holding that it did not have
jurisdiction to consider Bowles' appeal. Bowles, 551 U.S. at
209-10 (citation omitted). The Court explained that it long has
treated statutory time limits for taking an appeal as jurisdictional
requirements. Id. at 210. The amount of time by which a district
court could reopen Bowles' time for taking an appeal was
codified at 28 U.S.C. § 2107(c), and, thus, the Supreme Court
held it to be a jurisdictional requirement.

Like the 14-day period in Bowles, the 60-day time limit to
file a notice of appeal at issue in this case is set out in the
Federal Rules of Appellate Procedure, Fed. R. App. P.
4(a)(1)(B), and codified in statute, 28 U.S.C. § 2107(b). There
is no question that the 60-day period is jurisdictional. There is
no question that the 60-day period was not met. We do not have

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jurisdiction, and the petition should be dismissed.

As I understand the majority opinion, my colleagues believe
that we must decide whether FRAP 4(a)(4)(A)(iv), which
provides that a timely motion under Rule 59(e) tolls the running
of the time to file a notice of appeal, is a claim-processing rule
or a jurisdictional requirement. The majority reasons that if the
requirement can be deemed a claim-processing rule, the parties
may waive or forfeit the timeliness defect in filing the Rule 59(e)
motion so that an untimely Rule 59(e) motion may toll the time
to file a notice of appeal. While I doubt the propriety of raising
this question at all, I believe the majority's answer to it is
incorrect. The proper analysis of the question is governed by
Bowles.

To reach its decision in Bowles, the Supreme Court
addressed two of its previous cases that involved essentially the
same question before this Court today-that is, whether a Rule
59(e) motion erroneously entertained by the district court despite
its untimeliness tolls the statutory time limit for filing a notice of
appeal.

The Court first clarified that Browder v. Director, Dep't of
Corrections, 434 U.S. 257 (1978), is good law. In Browder, the
Court explained that the time limit set for filing a notice of
appeal in 28 U.S.C. § 2107 is "mandatory and jurisdictional."
Browder, 434 U.S. at 264 (quoting United States v. Robinson,
361 U.S. 220, 229 (1960)). The Court continued:

The running of time for filing a notice of appeal may be
tolled, according to the terms of Rule 4(a), by a timely
motion filed in the district court pursuant to . . . Rule 59.
Respondent's motion for a stay and an evidentiary hearing

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was filed 28 days after the District Court's order directing
that petitioner be discharged. It was untimely under the
Civil Rules ... and therefore could not have tolled the
running of time to appeal under [FRAP] 4(a). The Court of
Appeals therefore lacked jurisdiction to review the order of
October 21.

Id. at 264-65. In 2005, the Court questioned the use of the term
"jurisdictional" in Browder, Robinson, and other cases.
Eberhart v. United States, 546 U.S. 12, 17-18 (2005). But in
Bowles, in 2007, the Court cited Browder's treatment of time
limits with approval. 551 U.S. at 209-10 & n.2. The Court
explained that its recent negative treatment of Robinson and
other cases, such as Browder, that relied on Robinson for the
proposition that the time limit set for a notice of appeal is
jurisdictional, was "dicta" and that "[g]iven the choice between
calling into question some dicta in our recent opinions and
effectively overruling a century's worth of practice, we think the
former option is the only prudent course." Bowles, 551 U.S. at
210 n.2 (internal punctuation omitted). Obaydullah's case fits
precisely within the holding of Browder.

In Bowles, the Supreme Court also explicitly overruled the
so-called "unique circumstances" holding it had announced in
Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S.
215 (1962) (per curiam) and applied only once thereafter in
Thompson v. INS, 375 U.S. 384 (1964). Bowles, 551 U.S. at 214
("[W]e overrule Harris Truck Lines and Thompson to the extent
they purport to authorize an exception to a jurisdictional rule.").

In Thompson, the district court denied a party's petition for
naturalization. 375 U.S. at 384-85. Twelve days later, the
petitioner filed a motion for a new trial pursuant to Rule 59, id.

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at 385, which, at that time, required such motions to be filed
within 10 days of the entry of the final judgment. The
Government did not object to the timeliness of that motion,
however, and the district court declared that the motion was
"made 'in ample time." Id. at 385. The district court denied the
Rule 59 motion. Within 60 days of the denial of the Rule 59
motion, but not within 60 days of the original entry of judgment
by the district court, the petitioner filed a notice of appeal.
Thompson, 375 U.S. at 385. At that time, the 60-day time limit
was prescribed by Federal Rule of Civil Procedure 73, which
also provided that the time for appeal "commences to run and is
to be computed from the entry of any of the following orders
made upon a timely motion under such rules" including
"granting or denying a motion under Rule 59 to alter or amend
the judgment." See id. The Seventh Circuit Court of Appeals
dismissed the appeal because it determined that petitioner's
untimely post-trial motions did not toll the running of the time
for appeal. Id.

The Supreme Court held that because the petitioner "did an
act which, if properly done, postponed the deadline for the filing
of his appeal" and "the District Court concluded that the act had
been properly done," the case presented "unique circumstances"
that would allow the Court of Appeals to exercise jurisdiction;
the Court vacated and remanded the case to the Court of Appeals
to hear the case on the merits. Id. at 387. This is precisely the
rationale that the Supreme Court overruled in Bowles, 551 U.S.
at 214, and precisely the rationale the majority appears to apply
in this case. Obaydullah did an act-filing a Rule 59(e)
motion- which, if properly done, postponed the deadline for
filing his appeal, and the District Court gave permission for the
act to be done improperly. If Thompson stood, Obaydullah
would perhaps have presented "unique circumstances" that

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would trump the statutory jurisdictional requirement. But
because the Supreme Court expressly held in Bowles that such
"unique circumstances" cannot outweigh jurisdictional
requirements, I am compelled to reach the conclusion that we do
not have jurisdiction over this matter.

If the Supreme Court's decision in Bowles did not exist, the
majority might be correct that this Court's decisions in Wilburn
v. Robinson, 480 F.3d 1140 (D.C. Cir. 2007), and Youkelsone v.
FDIC, 660 F.3d 473 (D.C. Cir. 2011), should control our
reasoning here. Wilburn, however, was decided before Bowles,
and Youkelsone fails to even mention Bowles. Both address
different rules than the ones at issue in this case. Further, this
Court also has decided In re Sealed Case (Bowles), 624 F.3d 482
(D.C. Cir. 2009), which, relying on the Supreme Court's
(unrelated) Bowles, held that a claim-processing rule cannot be
used to circumvent the jurisdictional time limit of 21 U.S.C.
§ 2107(a). In re Sealed Case (Bowles), 624 F.3d at 486.

We need not delve deeply into the circuit precedent,
however, because the Supreme Court's binding decisions should
control the outcome here: Bowles overruled Thompson and put
Browder back on solid ground, and Bowles and Browder, which
directly addresses the question raised here, should govern this
case. They dictate that this Court does not have jurisdiction over
Obaydullah's appeal.

I respectfully dissent.

Obaydullah, Detainee, Guantanamo Bay and Sami Al Hajj, As Next Friend of Obaydullah v. Barack Obama, President of the United States

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