No IN THE SUPREME COURT OF THE UNITED STATES MOATH HAMZA AHMED AL ALWI, PETITIONER BARACK H. OBAMA, PRESIDENT OF THE UNITED STATES, ET AL.

Transcription

1 No IN THE SUPREME COURT OF THE UNITED STATES MOATH HAMZA AHMED AL ALWI, PETITIONER v. BARACK H. OBAMA, PRESIDENT OF THE UNITED STATES, ET AL. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BRIEF FOR THE RESPONDENTS IN OPPOSITION DONALD B. VERRILLI, JR. Solicitor General Counsel of Record STUART F. DELERY Acting Assistant Attorney General ROBERT M. LOEB SARANG V. DAMLE Attorneys Department of Justice Washington, D.C SupremeCtBriefs@usdoj.gov (202)

2 QUESTIONS PRESENTED 1. Whether the court of appeals correctly held that petitioner is detainable under the Authorization for Use of Military Force, Pub. L. No , 2(a), 115 Stat. 224, as part of the Taliban or al-qaida, where petitioner s own statements, which the district court found to be reliable, established that (1) petitioner traveled to Afghanistan for the purpose of joining the Taliban s fight against the Northern Alliance; (2) he stayed in guesthouses closely associated with the Taliban or al-qaida; (3) he attended a Taliban-related training camp, where he was issued a rifle, ammunition, and grenades; (4) he joined a combat unit in which he served under the leadership of a high-level al-qaida member; (5) he participated in combat against the Northern Alliance on two fronts; and (6) he remained with his combat unit after the September 11, 2001 attacks and the start of Operation Enduring Freedom. 2. Whether the district court abused its discretion in ruling on petitioner s procedural motions. (I)

3 IN THE SUPREME COURT OF THE UNITED STATES No MOATH HAMZA AHMED AL-ALWI, PETITIONER v. BARACK H. OBAMA, PRESIDENT OF THE UNITED STATES, ET AL. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BRIEF FOR THE RESPONDENTS IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals (Pet. App ) is reported at 653 F.3d 11. A redacted version of the classified memorandum opinion of the district court (Pet. App. 7-16) is unreported. The unclassified opinion of the district court (Pet. App. 1-6) is reported at 593 F. Supp. 2d 24. JURISDICTION The judgment of the court of appeals was entered on July 22, On October 14, 2011, the Chief Justice extended the time within which to file a petition for a writ of certiorari to and including December 5, 2011, and the petition was filed on that

4 2 date. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATEMENT Petitioner is an alien detained at the United States Naval Station at Guantanamo Bay, Cuba, under the 2001 Authorization for Use of Military Force (AUMF), Pub. L. No , 2(a), 115 Stat He petitioned for a writ of habeas corpus, and the district court denied the petition. The court of appeals affirmed. Pet. App In response to the attacks of September 11, 2001, Congress enacted the AUMF, which authorizes the President * * * 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. AUMF 2(a), 115 Stat The President has ordered the Armed Forces to subdue both the al-qaida terrorist network and the Taliban regime that harbored it in Afghanistan. Armed conflict with al-qaida and the Taliban remains ongoing, and in connection with that conflict, some persons captured by the United States and its coalition partners have been detained at Guantanamo Bay. In Section 1021 of the National Defense Authorization Act for Fiscal Year 2012 (NDAA), Pub. L. No , 125 Stat. 1562, Congress affirm[ed] that the authority granted by the AUMF

5 3 includes the authority to detain, under the law of war, any person who was a part of or substantially supported al-qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners. 2. Petitioner, an alien detained at Guantanamo Bay under the AUMF, filed a petition for a writ of habeas corpus through his cousin as next friend. The petition was filed before this Court held in Boumediene v. Bush, 553 U.S. 723 (2008), that the district court has jurisdiction to consider habeas petitions filed by Guantanamo detainees, and proceedings were stayed pending resolution of that jurisdictional issue. After Boumediene, the government filed a factual return to the habeas petition, and petitioner filed a traverse. Pet. App , Following an evidentiary hearing, the district court concluded that petitioner was properly detained, and it denied the petition. Pet. App The district court explained that the government s allegations were primarily supported by petitioner s own statements during his incarceration in Guantanamo. Pet. App. 8. After examining the statements, the court found no reason to question, as a general matter, the accuracy, authenticity, or reliability of petitioner s interrogation reports. Id. at 8-9. The court noted that petitioner ha[d] consistently reported the essential details of the story that serves as the primary basis for the Government s

6 4 narrative over the course of multiple interrogation sessions. Id. at 9. The court also found that the interrogation reports were not in conflict and that petitioner [did] not deny the majority of the principal facts they describe. Ibid. Finally, while petitioner made generalized allegations that he was subject to what he characterizes as harsh interrogation tactics, the court concluded that the allegations did not call into question the reliability of all, or even portions of, the interrogation reports on which the Government relies. Ibid. The court emphasized that petitioner did not argue that he gave false answers during any particular interrogation session with U.S. officials as a result of these alleged tactics. Ibid. The district court found that petitioner had traveled to Pakistan, and then to Afghanistan, specifically in order to join the Taliban s fight against the Northern Alliance. Pet. App During his travels, petitioner stayed in at least three guesthouses closely associated with the Taliban and/or al Qaeda. Id. at 10. Petitioner described his escorts to two of these guesthouses as Taliban fighters. Id. at 11. The court found that the second guesthouse, the al-ansar guesthouse in Kandahar, Afghanistan, had strong al Qaeda connections, a finding that was supported by a credible declaration submitted by the government and by petitioner s identification of the assistant to the

7 5 guesthouse s leader, Abu Khaloud, in a photograph with Usama Bin Laden. Id. at Petitioner next traveled in a Taliban vehicle with his cousin to a training camp known as the Khalid Center, where he received training on a rocket propelled grenade ( RPG ) launcher. Pet. App. 12. He then received a Kalashnikov rifle, four magazines, and two grenades and joined the Omar Sayef Group, an organized fighting force stationed north of Kabul that fought the Northern Alliance. Id. at Petitioner fought under the leadership of an Iraqi named Abd al-hadi, who was a high-level al Qaeda member responsible for commanding Arab and Taliban troops in Kabul. Id. at 14. Petitioner was first stationed at a front north of Kabul, where he was assigned to a position that consisted of trenches and fortified positions, behind which the members of the unit slept. Pet. App At that position, petitioner was subject to several artillery attacks. Id. at 13. Then, upon orders of the head of his unit, petitioner moved to a second front in northern Afghanistan, where he spent three to five months, again coming under fire. Ibid. Finally, he was with, and was supporting, Taliban forces that were attacked by the United States in Afghanistan after September 11, 2001 and stayed with his Taliban unit for a period of time thereafter. Id. at 15. [M]ost of the people with whom petitioner served in northern Afghanistan were

8 6 killed by U.S. bombs following the commencement of Operation Enduring Freedom, and he saw two or three American bombing operations before he moved south to Kabul and later to Khowst with others in his fighting unit. Ibid. It was only in Khowst that petitioner finally returned his weapons before fleeing to Pakistan, where he was captured and turned over to United States authorities. Ibid. 4. The court of appeals affirmed. Pet. App The court rejected petitioner s contention that the district court s factual findings were clearly erroneous. Id. at Although petitioner urged that his interrogation statements were insufficiently corroborated, the court of appeals identified neither clear error nor abuse of discretion in the district court s determination that [petitioner s] statements were reliable in this case. Id. at 30. The court of appeals noted in particular that petitioner did not deny -- either at the hearing or in his pre-hearing filings -- that the majority of the principal facts in his interrogation statements were true. Ibid. The court explained that at the habeas hearing, [petitioner s] attorney expressly conceded or did not disavow several of those facts. Ibid. Taking the district court s factual findings together, the court of appeals concluded that it is plain that petitioner more likely than not was part of the Taliban or al Qaeda. Id. at 26.

9 7 The court stressed that that was a point the petitioner [did] not seriously dispute. Ibid. The court of appeals also rejected petitioner s procedural objections to the district court s handling of his petition. Pet. App The court held that the district court had not abused its discretion in denying petitioner s request for a 30-day continuance to file his traverse, explaining that the district court had effectively provided the same relief by granting petitioner leave to file an amended traverse. Id. at The court of appeals also determined that the district court had not abused its discretion in its management of the discovery process. Id. at ARGUMENT Petitioner contends (Pet ) that the district court s reliance on his interrogation statements and his counsel s concessions at trial, as well as alleged procedural flaws in the district court s handling of his habeas petition, deprived him of a meaningful opportunity to challenge his imprisonment. Pet. 11. The court of appeals correctly rejected those arguments, and its fact-bound decision does not conflict with any decision of this Court or any other court of appeals. Further review is not warranted. 1. The lower courts have properly performed the task that this Court assigned them in Boumediene v. Bush, 553 U.S. 723 (2008)

10 8 -- they have developed procedural and substantive standards, id. at 796, for habeas proceedings for military detainees. This Court has declined to review numerous decisions applying those standards, and there is no reason for a different result in this case. As relevant here, the court of appeals has repeatedly held that an individual may be detained under the AUMF if he was part of al-qaida or the Taliban at the time of his capture. Pet. App. 22; see, e.g., Al-Adahi v. Obama, 613 F.3d 1102, 1103 (D.C. Cir. 2010) ( The government may * * * hold at Guantanamo and elsewhere those individuals who are part of al-qaida, the Taliban, or associated forces. ), cert. denied, 131 S. Ct (2011); accord Al Odah v. United States, 611 F.3d 8, 10 (D.C. Cir. 2010), cert. denied, 131 S. Ct (2011); Awad v. Obama, 608 F.3d 1, 11 (D.C. Cir. 2010), cert. denied, 131 S. Ct (2011); Al-Bihani v. Obama, 590 F.3d 866, 872 (D.C. Cir. 2010), cert. denied, 131 S. Ct (2011); accord NDAA 1021, 125 Stat ( affirm[ing] * * * the authority of the President to * * * detain any person who was a part of or substantially supported al-qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners ). Petitioner asserts (Pet. 13) that the decisions of the court of appeals have all but eliminated the promise of a meaningful opportunity to challenge imprisonment. The rulings of the court of appeals, however -- including the court s decision in this case

11 9 -- have carefully examined the issues in each case in a fully evenhanded fashion. Petitioner emphasizes (Pet ) that the court of appeals has reversed and remanded in several cases in which the government has appealed the grant of a habeas petition; but as he concedes, it has also reversed or remanded in cases in which a detainee has appealed the denial of a habeas petition. See Bensayah v. Obama, 610 F.3d 718 (D.C. Cir. 2010); Warafi v. Obama, 409 Fed. Appx. 360 (D.C. Cir. 2011). In addition, petitioner overlooks the many cases in which the district court has granted a writ of habeas corpus and the government has chosen not to appeal: more than 30 former detainees have been released from detention at Guantanamo Bay after the district court granted their petitions. In any event, this case is not an appropriate vehicle for examining the detention standard applied by the court of appeals because, as the court noted, petitioner did not dispute the lawfulness of that standard in this case. Pet. App Petitioner instead raises two arguments challenging the district court s factual findings and the legal inferences that the court of appeals drew from those findings. Those fact-bound claims lack merit and do not warrant this Court s review. a. Petitioner criticizes (Pet ) the court of appeals for concluding that the district court s findings were sufficient to establish that he was part of the Taliban or al-qaida. Petitioner appears to believe that the district court concluded

12 10 that he was only supporting the Taliban or al-qaida, and he suggests that the court of appeals was not free to depart from that conclusion without remanding the case. But as the court of appeals correctly explained, [a]lthough the [district] court did not expressly say whether [petitioner] was also part of the Taliban, it did repeatedly describe him as serving with his Taliban unit. Pet. App. 26. In any event, the question whether a detainee s conduct justifies his detention is a legal issue that is reviewed de novo. Id. at 22. Here, the court of appeals determined that the facts found by the district court were sufficient to establish that [petitioner] more likely than not was part of the Taliban or al Qaeda, and it emphasized that its determination was a point the petitioner does not seriously dispute. Id. at 26. Similarly misplaced is petitioner s related argument (Pet ) that, without some additional finding, the President lacks authority to detain persons who are not part of Taliban or al- Qaida forces but instead are part of an associated force. But see NDAA 1021, 125 Stat ( affirm[ing] * * * the authority of the President to * * * detain any person who was a part of or substantially supported al-qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners ) (emphasis added). Petitioner forfeited that argument by failing to raise it in the district court, see Pet. App. 26 n.7, and in any event it rests on

13 11 the erroneous premise (Pet. 29) that the Omar Sayef Group, which petitioner joined, was not a Taliban or al-qaida fighting unit, but was some separate associated force. In fact, as the district court found, while with the Omar Sayef Group, petitioner fought under the leadership of an Iraqi named Abd al-hadi, who was a highlevel al Qaeda member responsible for commanding Arab and Taliban troops in Kabul. Pet. App. 14. Indeed, the district court repeatedly described petitioner s combat unit as a Taliban unit. Id. at 15. Because petitioner was found to be part of al-qaida or the Taliban, this case does not present any question arising from the detention of members of associated forces. b. Second, petitioner argues (Pet ) that the district court and the court of appeals improperly relied on his counsel s in-court concessions to corroborate his own interrogation statements. Petitioner, however, has made no showing that the district court clearly erred in relying on petitioner s statements. As the district court and court of appeals explained, several factors demonstrated the reliability of the statements petitioner made in his interrogations: he consistently reported the essential details of [his] story * * * over the course of multiple interrogation sessions, Pet. App. 9; although he denied the government s general allegations that he was part of the Taliban and al Qaida, he did not deny the majority of the principal facts described in the interrogation reports, ibid.; and

14 12 the inferences that could be drawn from his statements were supported by multiple government declarations, id. at Those factors, quite apart from counsel s concessions at the habeas hearing, were sufficient by themselves to justify the district court s reliance on petitioner s statements. In any event, it was in no way improper for the lower courts to credit the explicit and repeated concessions made by petitioner s counsel during the habeas hearing. Although petitioner suggests (Pet. 23) that his counsel s concessions should not be imputed to him because they were not part of a trial strategy, the district court noted that counsel made a conscious choice not to contest the facts in the interrogation statements, but instead to focus[] primarily on attacking the factual and legal inferences the Government draws from these statements. Pet. App. 8; see Yarborough v. Gentry, 540 U.S. 1, 8 (2003) ( When counsel focuses on some issues to the exclusion of others, there is a strong presumption that he did so for tactical reasons rather than through sheer neglect. ). And even if petitioner now believes that the concessions were ill-advised, [u]nder our system of representative litigation, each party is deemed bound by the acts of his lawyer-agent. Irwin v. Department of Veterans Affairs, 498 U.S. 89, 92 (1990) (internal quotation marks omitted). Petitioner contends (Pet. 22) that he was not in a position to challenge any of his counsel s statements during [the classified

15 13 session of] the hearing, and that during the unclassified opening statement heard by [petitioner], counsel made no concessions. That is incorrect. During the open habeas hearing, which petitioner was able to listen to (in translation) by telephone, petitioner s counsel conceded that that petitioner traveled to Afghanistan in late 2000 with the intention of participating in the Afghan civil war. C.A. App ; see id. at 940. Petitioner also claims (Pet. 23) that the record provides ample reason to doubt that [petitioner] could have heard and understood everything that was said. Petitioner did not raise that claim below, and it is unsupported by the record. As evidence of his supposed difficulties in understanding the proceedings, petitioner points (ibid.) to several events that occurred during the open hearing: (1) at the start of the hearing, the original Arabic translator had to be replaced, after which the district court start[ed] over, Pet. App ; (2) immediately after the new translator was sworn in, the listeners on the live telephone link briefly could not hear the translator; once the problem was fixed, the proceeding was restarted [o]ne more time, id. at 169; and (3) the translator had to ask petitioner s attorney to repeat one of his sentences, which the attorney did, id. at 172. If anything, those facts demonstrate that the participants in the habeas hearing made every effort to ensure that petitioner heard and understood what was being said.

16 14 3. Petitioner renews his objections (Pet ) to the district court s denial of a continuance and the court s determination that the government had satisfied its obligations to produce exculpatory information. As the court of appeals recognized, and as petitioner does not dispute, those procedural objections are reviewed under a deferential abuse-of-discretion standard. Pet. App. 31. The court of appeals correctly concluded, after an in-depth examination of the record, that petitioner had failed to demonstrate an abuse of discretion, and this Court s review of that case-specific conclusion is unwarranted. a. Petitioner argues that the district court s refusal to grant a 30-day continuance for filing his traverse to the government s factual return to his habeas petition den[ied] [him] adequate time to prepare his defense without fair notice of the allegations and evidence against him. Pet. 15, 17. The court of appeals correctly rejected those assertions. In fact, petitioner was given a sufficient opportunity to prepare his case, and there was no evidence that petitioner was prejudiced by the denial of a continuance. Pet. App After this Court decided Boumediene in the summer of 2008, the district court set an ambitious schedule for [petitioner s habeas] proceedings, with the goal of hearing petitioner s case by the end of the year. Pet. App. 32. Petitioner shared that goal, and when the government sought an extension of time for filing a factual

17 15 return to the petition, petitioner opposed its request on the ground that [e]very additional day that [he is] detained, and delayed in the[] opportunity to present challenges to [his] detention will only cause [him] further harm. Id. at 38 n.9. But after the government filed its factual return, petitioner sought a 30-day continuance for filing his traverse. Id. at 32. Petitioner s counsel explained that they had scheduled meetings with petitioner at Guantanamo Bay, but when they arrived there he was on a hunger strike, and while he was able to meet with the lawyers the first day, he was unable to continue on the second. Ibid. Counsel further explained that they had begun making arrangements to meet with [petitioner] instead on the next available date. Id. at 33. The district court denied a continuance, but explained that counsel could seek leave to amend the traverse if new information came to light in the later meetings. Pet. App. 33. Although the court initially stated that any amendment to the traverse should not launch into a new line of defense, it later clarified that it meant only that counsel should not be coming in with a supplement that relates to things unrelated to [counsel s] discussions with [petitioner]. Id. at After counsel met with petitioner, he filed an amended traverse. Id. at 35. And after filing the amended traverse, petitioner s counsel neither renewed the motion for a continuance nor expressed concern that the

18 16 court s instruction had caused them to leave anything out of the amended document. Ibid. The court of appeals thus correctly concluded that although the [district] court denied [petitioner s] request for a continuance before filing a traverse, it effectively provided the same relief by granting his attorneys leave to file an amended traverse after they subsequently met with their client. Id. at 34. Given that sequence of events, the court of appeals correctly observed that it was hard to conclude that [petitioner] was prejudiced when he essentially obtained the relief he had sought. Ibid. Petitioner argues (Pet. 16) that he was prejudiced by the denial of the continuance because he was given less than six weeks to prepare his defense. As the court of appeals explained, that claim is not completely accurate. Pet. App. 35. Petitioner s trial counsel began representing him in Ibid. In June 2007, counsel filed a petition under the Detainee Treatment Act of 2005 (DTA), Pub. L. No , Tit. X, 119 Stat. 2739, that sought review in the court of appeals of the determination of a Combatant Status Review Tribunal (CSRT) that he was an enemy combatant. See Al Alwi v. Gates, No (D.C. Cir.). On August 24, 2007, the government provided counsel with the unclassified version of the CSRT record, and that record revealed most of the factual allegations upon which the district court ultimately based its detention decision. Pet. App. 35. Then, in September

19 17 months before petitioner s habeas hearing -- a protective order was entered permitting petitioner and his counsel to discuss the materials contained in the CSRT record. Id. at 37. Furthermore, in addition to receiving the unclassified CSRT record in September 2007, petitioner s counsel was provided with the classified CSRT record in August As the court of appeals stressed, those materials contained virtually all of the facts the district court ultimately found sufficient to justify his detention. Pet. App. 36. And petitioner met in person with his counsel on four occasions before filing the traverse, and on an additional two occasions before he filed the amended traverse. Id. at 37. In light of those events, the court of appeals correctly concluded that the district court s schedule did not prejudice petitioner s ability to contest his detention. Petitioner errs in claiming (Pet ) that the materials he received as part of the CSRT record were insignificant given the limited standard of review in DTA proceedings. As the court of appeals explained, [t]he point about the CSRT materials * * * is not that they contained all that the detainee might say in response to the charges against him, but that (at least in this case) they contained virtually all of the charges the government made in the habeas proceeding. Pet. App. 37. Petitioner also criticizes the court of appeals (Pet. 16) for fail[ing] to credit the difficulty of preparing a case when the

20 18 client speaks a different language, is held in a remote military prison, has been subjected to years of interrogation by the government, is justifiably suspicious of his counsel, and is accused of acts that occurred in a war-torn country. In fact, the court of appeals acknowledged the difficulty that counsel have in developing rapport with clients detained at Guantanamo Bay. Pet. App. 38. As the court explained, however, petitioner s claim of prejudice must be evaluated not in some theoretical sense, but in the context of the motion for a continuance that the district court actually denied. Ibid. That motion merely sought a 30-day extension and made no mention of difficulties in forming an attorney-client relationship. Ibid. In that context, there is no basis for concluding that the district court abused its discretion. b. Petitioner also renews his objection (Pet ) that the district court improperly refus[ed] to require the government to disclose all exculpatory evidence. The court of appeals carefully examined that claim and found it to be baseless. Pet. App The district court s case management order required the government to provide on an ongoing basis any evidence contained in the material [it] reviewed in developing the return for the petitioner, and in preparation for the hearing for the petitioner, that tends materially to undermine the Government s theory as to the lawfulness of the petitioner s detention. Id. at 40. The government complied with that order by producing such evidence.

21 19 See, e.g., C.A. App , As the court of appeals observed, there is no reason to believe that the government failed to produce exculpatory information as required by the order. Pet. App. 40. In support of his suggestion that the government possesses additional exculpatory information that it did not reveal, petitioner alleges (Pet. 21) that his counsel independently discovered and produced an exculpatory document that the government had not produced. That document consisted of three pages from the CSRT record of a different detainee, Pet. App , which supposedly contradicted the statements of yet another detainee, Yasim Basardah, whose statements, in turn, the government had cited in its factual return. See C.A. App The district court correctly determined, however, that that document was not material, noting that the government had already provided exculpatory information it had actually reviewed in preparing petitioner s factual return, including documents demonstrating that some government analysts have questioned Mr. Basardah s [re]liability. C.A. App , In any event, the district court did not rely on Basardah s statements in reaching its judgment in this case. 4. Finally, petitioner raises two additional arguments that he failed to raise before the court of appeals, even to note that they were foreclosed by circuit precedent. His failure to preserve

22 20 the claims is a sufficient reason for this Court not to consider them. See Glover v. United States, 531 U.S. 198, 205 (2001) (The Court does not ordinarily decide questions neither raised nor resolved below. ). In any event, the claims lack merit. a. Petitioner argues (Pet ) that the district court s application of a preponderance of the evidence standard is inappropriate and that a clear and convincing evidence standard should apply instead. Every panel of the court of appeals to have considered the question has determined that no standard of proof more rigorous than preponderance of the evidence should apply. See, e.g., Pet. App. 22; 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. ). This Court has declined to review the preponderance standard on two previous occasions, see Al Odah v. United States, 131 S. Ct (2011) (No ); Awad v. Obama, 131 S. Ct (2011) (No ), and petitioner offers no basis for reconsidering the question now. b. Petitioner also argues (Pet ) that the district court improperly relied on hearsay evidence. But as the court of appeals stressed, the bulk of the district court s findings were made on the basis of [petitioner s] own interrogation statements, the majority of which were not disputed by his counsel at the habeas hearing. Pet. App. 19. Petitioner had a full opportunity

23 21 to explain or dispute the content and reliability of those statements, but he largely chose not to do so. Furthermore, as the court of appeals noted, petitioner s counsel expressly conceded many of the key facts in open court, id. at 14, and those concessions by themselves support the judgment below. In any event, petitioner s argument is without merit. The court of appeals has repeatedly held that hearsay evidence is admissible in a Guantanamo Bay habeas proceeding, subject to district court scrutiny to determine its credibility and strength. See Pet. App. 29; Kandari v. United States, No , 2011 WL (Dec. 9, 2011), petition for cert. pending, No (filed Feb. 22, 2012); Khan v. Obama, 655 F.3d 20, 26 (2011); Al-Madhwani v. Obama, 642 F.3d 1071, 1078 (2011), petition for cert. pending, No (filed Oct. 24, 2011); Al-Adahi, 613 F.3d at 1111 n.6; Al Odah, 611 F.3d at 14; Barhoumi v. Obama, 609 F.3d 416, 422 (2010); Awad, 608 F.3d at 7; Al-Bihani, 590 F.3d at This Court has declined to review the issue on two previous occasions, see Al Odah v. United States, 131 S. Ct (2011) (No ); Awad v. Obama, 131 S. Ct (2011) (No ), and petitioner offers no basis for reconsidering the question now.

24 MARCH CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. DONALD B. VERRILLI, JR. Solicitor General STUART F. DELERY Acting Assistant Attorney General ROBERT M. LOEB SARANG V. DAMLE Attorneys