 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued October 18, 2012                Decided June 18, 2013

                        No. 11-5344

       ABDUL AL QADER AHMED HUSSAIN, DETAINEE,
                     APPELLANT

                              v.

BARACK HUSSEIN OBAMA, PRESIDENT OF THE UNITED STATES,
                      ET AL.,
                    APPELLEES


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:05-cv-02104)


    Wesley R. Powell argued the cause and filed the briefs for
appellant.

    Henry C. Whitaker, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Stuart F. Delery, Acting Assistant Attorney General, Ian Heath
Gershengorn, Deputy Assistant Attorney General, and Robert
M. Loeb, Attorney.

   Before: HENDERSON and GRIFFITH, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
                                2
    Opinion for the Court filed by Circuit Judge GRIFFITH.

    Opinion filed by Senior Circuit Judge EDWARDS,
concurring in the judgment.

     GRIFFITH, Circuit Judge: The district court denied
appellant’s petition for a writ of habeas corpus challenging his
detention at Guantanamo Bay. We affirm the district court
because its findings of fact were not clearly erroneous, and those
facts support the conclusion that appellant was more likely than
not a part of enemy forces at the time of his capture.

                                 I

     The background of this case is set forth in the district
court’s thorough opinion, see Hussein v. Obama, 821 F. Supp.
2d 67, 68-75 (D.D.C. 2011), on which we rely to recite those
facts relevant to this appeal. Appellant Abdul al Qader Ahmed
Hussain1 is a citizen of Yemen detained at the United States
Naval Base at Guantanamo Bay. Sometime in 1999, Hussain left
his home in Yemen for Pakistan. He initially spent a few weeks
in Karachi and then traveled to Quetta, where he stayed for
about three months. While in Quetta, he lived in a mosque run
by the Jama’at al-Tablighi (JT) organization. From Quetta,
Hussain traveled to Afghanistan, where he spent approximately
three months. After that, Hussain returned again to a JT mosque
in Quetta in April or May of 2000 until about June, when he left
for Kabul, Afghanistan. In approximately August 2000, he
returned once again to Quetta for another three-month stay at a
JT mosque. Then, in November 2000, Hussain moved to
Afghanistan and settled for ten months in an area north of Kabul

    1
     The district court spelled petitioner’s name “Hussein.” We use
“Hussain,” the spelling employed by both parties on appeal.
                                  3
that was ravaged by war between the Taliban and the Northern
Alliance. Hussain lived near the front lines with three armed
Taliban guards. Hussain’s Taliban housemates supplied him
with an AK-47 rifle and trained him in its use. After al Qaeda
attacked the United States on September 11, 2001, Hussain fled
Afghanistan and returned to Pakistan where he lived at yet
another JT mosque in Lahore. He was captured in Faisalabad in
March 2002,2 and was transferred to Guantanamo Bay soon
thereafter.

     Seeking to challenge his detention, Hussain filed a petition
for a writ of habeas corpus with the district court on October 27,
2005. Uncertain of its jurisdiction to hear habeas petitions from
detainees at Guantanamo Bay, the district court stayed the case
in January 2006. In the wake of the Supreme Court’s decision in
Boumediene v. Bush, 553 U.S. 723 (2008), the district court
heard Hussain’s petition, but denied him relief. The district court
concluded that Hussain was part of al Qaeda or the Taliban at
the time of his capture, based on evidence of what he did and
with whom he stayed in Pakistan and Afghanistan as well as his
efforts to explain away that evidence, which the court found
implausible. See Hussein, 821 F. Supp. 2d at 79. Hussain now
appeals.

     We review the district court’s factual findings for clear
error. We review de novo the ultimate legal determination of
whether those facts support detention. See Barhoumi v. Obama,
609 F.3d 416, 423 (D.C. Cir. 2010) (“Determining whether a
detainee was ‘part of’ an associated force is a mixed question of
law and fact” because “whether a detainee’s alleged conduct . . .
     2
       The district court incorrectly refers to “May 23, 2002,” as the
date of Hussain’s capture. But on appeal, Hussain acknowledges that
he was captured in “March 2002” after being in Pakistan for
“approximately six months.”
                                   4
justifies his detention under the AUMF is a legal question” and
“whether the government has proven that conduct” is a factual
one. (internal citations omitted)).

                                   II

     The Authorization for Use of Military Force (AUMF),
enacted in response to the terrorist attacks of September 11,
2001, permits the President to detain individuals who “planned,
authorized, committed, or aided the terrorist attacks that
occurred on September 11, 2001, or harbored such . . . persons.”
Pub. L. No. 107–40, § 2(a), 115 Stat. 224 (2001); see Hamdi v.
Rumsfeld, 542 U.S. 507, 519 (2004) (stating that the AUMF
“clearly and unmistakably authorized detention” of enemy
combatants). As we have stated repeatedly, this authority
justifies holding a detainee at Guantanamo if the government
shows, by a preponderance of the evidence, that the detainee was
part of al Qaeda, the Taliban, or associated forces at the time of
his capture. See Khairkhwa v. Obama, 703 F.3d 547, 548 (D.C.
Cir. 2012); Uthman v. Obama, 637 F.3d 400, 403 (D.C. Cir.
2011); Salahi v. Obama, 625 F.3d 745, 751-52 (D.C. Cir. 2010);
Bensayah v. Obama, 610 F.3d 718, 725 (D.C. Cir. 2010); Awad
v. Obama, 608 F.3d 1, 11-12 (D.C. Cir. 2010); Al-Bihani v.
Obama, 590 F.3d 866, 872 (D.C. Cir. 2010).3 Hussain

     3
        Our concurring colleague takes issue with our extensive
precedent in detainee habeas appeals, arguing that we have not always
kept to the preponderance of the evidence standard we have thus far
invoked. But he is mistaken to say that we have “required” the
standard. Post, at 1 (Edwards, J., concurring). In Al-Adahi we wrote
that although the standard is “constitutionally permissible . . . we have
yet to decide whether [it] is required.” Al-Adahi v. Obama, 613 F.3d
1102, 1103 (D.C. Cir. 2010) (citation omitted). Furthermore, nothing
about this case requires us to settle the question because the
preponderance standard is easily met here. This case is a fastball down
                                  5
challenges this standard on two grounds, which he
acknowledges we have rejected before. Appellant Br. 15 n.2. We
do so again.

      Hussain argues that the government must show that he was
involved in the “command structure” of al Qaeda or the Taliban,
rather than merely “part of” these organizations. But “[n]owhere
in the AUMF is there a mention of command structure.” Awad,
608 F.3d at 11. While such a showing would be enough to
sustain Hussain’s detention, it is not necessary. Id. We have long
held that requiring proof that a detainee was part of the
“command structure” is too demanding; the sweep of the
Executive’s detention authority under the AUMF is broader. See
Uthman, 637 F.3d at 403; see also Salahi, 625 F.3d at 751-52
(quoting Bensayah, 610 F.3d at 725).

     Hussain also argues that the government must show that he
personally picked up arms and engaged in active hostilities
against the United States. But again, this argument demands
more than the AUMF requires. See Khairkhwa, 703 F.3d at 550
(collecting cases that reject the notion that a detainee must have
engaged in hostilities); Awad, 608 F.3d at 11 (Once the
government demonstrated that the detainee was part of al Qaeda,
“the requirements of the AUMF were satisfied.”); Al-Bihani,
590 F.3d at 869 (permitting the detention of a detainee who
“worked as the [55th Arab B]rigade’s cook and carried a
brigade-issued weapon, but never fired it in combat”). As we
noted in Khairkhwa, permitting detention only for those
detainees who engaged in active hostilities would be
inconsistent with the realities of “modern warfare” in which
“commanding officers rarely engage in hand-to-hand combat;

the middle, not a curveball low and away. It is well within the strike
zone.
                                 6
supporting troops behind the front lines do not confront enemy
combatants face to face; supply-line forces, critical to military
operations, may never encounter their opposition.” Khairkhwa,
703 F.3d at 550. Nothing has changed since we rejected these
arguments only months ago. We are bound by our precedent
and therefore reject Hussain’s challenges. Having done so, we
offer a brief overview of how we evaluate evidence in these
cases.

     We have adopted no categorical rules to determine whether
a detainee is “part of” an enemy group. Instead, we look at the
facts and circumstances in each case. See Bensayah, 610 F.3d at
725 (“It is impossible to provide an exhaustive list of criteria for
determining whether an individual is ‘part of’ al Qaeda.”). We
look at each piece of evidence “in connection with all the other
evidence” in the record, and not in isolation. Almerfedi v.
Obama, 654 F.3d 1, 4 (D.C. Cir. 2011); see also Salahi v.
Obama, 625 F.3d at 753 (“Merely because a particular piece of
evidence is insufficient, standing alone . . . does not mean that
the evidence may be tossed aside . . . . The evidence must be
considered in its entirety in determining whether the government
has satisfied its burden of proof.” (internal citation and quotation
marks omitted)). The facts the district court found and the
inferences the district court drew from them support the
conclusion that Hussain was a part of al Qaeda or the Taliban
when he was captured.

                                III

     Perhaps the most damning evidence supporting the district
court’s conclusion that Hussain was part of an enemy force
when he was captured is his ten-month stay near the front lines
of battle in war-torn Afghanistan. Hussain does not contest that
he lived near the battlefront with Taliban warriors who gave him
                                   7
an AK-47 and taught him how to use it. Evidence that Hussain
carried an assault rifle given him by Taliban forces while living
among Taliban forces near a battle line fought over by Taliban
forces brings to mind the common sense view in the infamous
duck test. See, e.g., Dole v. Williams Enterprises, Inc., 876 F.2d
186, 188 n.2 (D.C. Cir. 1989) (adopting the “now-infamous
‘duck-test,’ dressed up in appropriate judicial garb: ‘WHEREAS
it looks like a duck, and WHEREAS it walks like a duck, and
WHEREAS it quacks like a duck, WE THEREFORE HOLD
that it is a duck.’”).4 Evidence that Hussain bore a weapon of
war while living side-by-side with enemy forces on the front
lines of a battlefield at least invites – and may very well compel
– the conclusion that he was loyal to those forces. We have
repeatedly affirmed the propriety of this common-sense
inference. Alsabri v. Obama, 684 F.3d 1298, 1306 (D.C. Cir.
2012) (“[I]t is difficult to believe that Taliban fighters would
allow an individual to infiltrate their posts near a battle zone
unless that person was understood to be a part of the Taliban.”
(internal quotation marks omitted)); see also Suleiman v.
Obama, 670 F.3d 1311, 1313-14 (D.C. Cir. 2012); Al-Madhwani
v. Obama, 642 F.3d 1071, 1075 (D.C. Cir. 2011). Hussain

     4
       Our concurring colleague thinks such an inference is “quite
invidious because, arguably, any young, Muslim man traveling in areas
in which terrorists are known to operate would pass the ‘duck test.’”
Post, at 4 (Edwards, J., concurring). But the objectionable profiling our
colleague fears played no part in the conclusion of the district court
and is nowhere present in our reasoning. The district court cared not a
whit whether Hussain is Muslim (or not). Neither do we. The innocent
wayfaring teenager our colleague invokes bears no resemblance to
Hussain, who was not simply in the wrong place at the wrong time. He
was in the wrong place, at the wrong time, with the wrong people,
doing the wrong things. Our precedent, to say nothing of common
sense, supports the inference that the district court drew and which we
affirm.
                                   8
suggests a more benign inference. He argues that his Taliban
housemates gave him the AK-47 for protection from wild
animals and thieves, and that they were not living all that close
to the lines of battle anyway. But the district court permissibly
rejected this version of the uncontested facts in favor of the
government’s far more plausible explanation. See Hussein, 821
F. Supp. 2d at 78. That finding was not clear error.5

     Although the parties disagree about precisely when Hussain
finally left Afghanistan, there is no dispute that he had left his
Taliban housemates near the battlefront, returned to Kabul by
September 11, 2001, and fled to Pakistan thereafter. The district
court found Hussain’s story of his movements after he left Kabul
unbelievable. He claimed, somewhat inconsistently, that he left
Afghanistan both to return to Yemen to be with his family and
possibly to marry, and to live in Pakistan to study, either
computers or the Koran. But the record lends no support to
either story. Once he left Afghanistan, Hussain stayed in
Pakistan until his capture, and although he moved from Lahore
to Faisalabad, he made no effort to return to Yemen or to attend
any school. We agree with the district court that “all of the
petitioner’s explanations seem to be little more than post hac
[sic] attempts to present goals that change as necessary to
support his presence in one part of the world or another. The
sum of the petitioner’s inexplicable explanations for his actions

     5
       The concurrence attempts to downplay Hussain’s possession of
the weapon. This misconstrues the district court’s legal reasoning.
Mere possession of the weapon – or carrying it around – was not the
critical point. The district court’s conclusion that Hussain was loyal to
enemy forces turned on the fact that Taliban soldiers gave him an AK-
47 while he lived among them near the battle lines. Under our
precedent, that alone demonstrates loyalty to a shared cause, even if
Hussain never brandished the weapon in combat. Al-Bihani, 590 F.3d
at 869.
                                  9
renders his testimony completely incredible.” Id. at 79. That
finding was not clear error and, under our precedent, provides
evidence of Hussain’s continued affiliation with enemy forces
after leaving Afghanistan. In other detainee cases, we have
found that false cover stories, like those spun by Hussain, “are
evidence—often strong evidence—of guilt.” Al-Adahi v. Obama,
613 F.3d 1102, 1107 (D.C. Cir. 2010); see Uthman, 637 F.3d at
407. In Almerfedi, we stated that “‘false exculpatory statements’
amount to evidence in favor of the government.” Almerfedi, 654
F.3d at 7 (quoting Al-Adahi, 613 F.3d at 1107) (emphasis
added).

     The district court also relied on Hussain’s “extended stays
at two Jama’at al-Tablighi mosques.” Hussein, 821 F. Supp. 2d
at 77. As we have already recited, on two separate occasions,
Hussain lived at a JT mosque in Pakistan for about three
months. As we noted in Almerfedi, JT is “an Islamic missionary
organization that is a Terrorist Support Entity closely aligned
with al Qaeda.”Almerfedi, 654 F.3d at 6 (internal quotation
marks omitted). Although evidence of association with the JT
mosques alone “presumably would not be sufficient to carry the
government’s burden because there are surely some persons
associated with Jama’at Tablighi who are not affiliated with al-
Qaeda,” we held in Almerfedi that extended affiliation with the
group over time “is probative.” Id. The district court concluded
that Hussain’s multiple stays at JT mosques between his
sojourns to Afghanistan suggests an affiliation with al Qaeda.
Because Almerfedi plainly permits such an inference, we see no
error in the district court having drawn it.6

     6
        Hussain stayed at JT mosques for two other, shorter, periods.
Although these short stays may not in and of themselves establish an
affiliation with al Qaeda, repeated visits to JT mosques, coupled with
his extended stays there, support the inference that Hussain was
affiliated with the terrorist group.
                                 10


     Hussain faults the district court for holding that any contact
with the JT organization suggests an affiliation with al Qaeda.
But Hussain misstates the district court’s analysis. As we have
just shown, the district court did not rely on such a categorical
rule, but engaged in the type of fact-specific inquiry we require
to reach its conclusion that Hussain’s repeated and extended
stays at JT mosques suggest an affiliation with al Qaeda. See
Bensayah, 610 F.3d at 725.7

     Having been “part of” enemy forces while living in northern
Afghanistan at least through August 2001, Hussain makes no
argument that he affirmatively cut those ties before his capture
only six months later. And there is no evidence to suggest that
leaving his Taliban housemates in Afghanistan marked a turning
point from Hussain’s old ways and an end to his connection with
enemy forces. Nothing in the record shows the type of concrete,
affirmative steps to dissociate that we look to when those once
part of an enemy group claim they have left. See Alsabri, 684
F.3d at 1307 (noting that the detainee “proffers no evidence that
he took steps to dissociate himself from those groups in the
months between his departure from the battle lines and his
capture”); Al-Adahi, 613 F.3d at 1109 (noting that “there was no
evidence that [the detainee] ever affirmatively disassociated


     7
       The government declared in the district court that it would not
seek to prove Hussain’s formal affiliation with JT. Red. Br. Addendum
at 17. And the district court did not rely on any formal affiliation
between Hussain and JT. It concluded only that his repeated stays at
the JT mosques, irrespective of any formal affiliation, suggest that
Hussain was “part of” al Qaeda. As this inference does not rest on a
formal affiliation between Hussain and JT, the government’s
declaration below is simply irrelevant. Moreover, it was made before
Almerfedi explained the significance of those stays.
                                11
himself from al-Qaida,” even when he was expelled from the
group). In fact, the evidence points the other way. After living
for ten months at the battlefront in Afghanistan with Taliban
guards who armed him, Hussain fled to Pakistan, where he
remained until his capture shortly thereafter, and, when asked to
explain his actions in the interim, Hussain lied to the court. See
Almerfedi, 654 F.3d at 7 (“‘[F]alse exculpatory statements’
amount to evidence in favor of the government.” (quoting Al-
Adahi, 613 F.3d at 1107)).

      Finally, Hussain argues that the district court erred by
failing to determine whether he affiliated with al Qaeda, the
Taliban, or both. Both are enemy forces, and affiliation with
either justifies detention. See Al Alwi v. Obama, 653 F.3d 11, 18
(D.C. Cir. 2011) (affirming the district court’s denial of the writ
where it was clear that petitioner was “‘part of’ the Taliban or al
Qaeda” (emphasis added)). In any event, membership in these
two groups sometimes overlaps, for example, when Taliban
forces bring Arabic-speaking al Qaeda-affiliated members into
their ranks. See Al-Bihani, 590 F.3d at 872 (noting that the 55th
Arab Brigade was “an Al Qaeda-affiliated outfit . . . [fighting]
alongside the Taliban while the Taliban was harboring Al
Qaeda”). The government’s evidence fits this pattern. Hussain
associated with Taliban guards in Afghanistan and an al Qaeda-
affiliated group in Pakistan. In sum, there was no error in the
district court’s failure to distinguish between when Hussain was
a part of al Qaeda and when he was a part of the Taliban.

                                IV

    For the foregoing reasons, we affirm the district court’s
denial of Hussain’s petition for a writ of habeas corpus.

                                                      So ordered.
     Edwards, Senior Circuit Judge, concurring in the
judgment: Abdul al Qader Ahmed Hussain was a teenager
when he was taken into custody and sent to Guantanamo Bay.
He has been confined in Guantanamo Bay for eleven years.
His petition for habeas relief should be granted, but his claim
is doomed to fail because of the vagaries of the law.
                            ______
     Under the applicable law, the President is authorized to
detain individuals who “planned, authorized, committed, or
aided the terrorist attacks that occurred on September 11,
2001, or harbored such . . . persons.” Authorization for the
Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat.
224 (2001). The Government cannot plausibly contend that
Hussain planned, authorized, or committed terrorist attacks.
The only real question in this case is whether Hussain “aided”
those who engaged in terrorist attacks. I can find no evidence
of this in the record before the court.
     To hold a detainee at Guantanamo, we have required that
the Government show, by a preponderance of the evidence,
that the detainee was a “part of” al Qaeda, the Taliban, or
associated forces at the time of his capture. See Al-Adahi v.
Obama, 613 F.3d 1102, 1105 (D.C. Cir. 2010) (“Although we
doubt . . . that the [Constitution] requires the use of the
preponderance standard, we will not decide the question in
this case. As we [have done previously], we will assume
arguendo that the government must show by a preponderance
of the evidence that [the detainee] was part of al-Qaida.”).
Under the preponderance of the evidence standard, “the
factfinder must evaluate the raw evidence, [and] find[] it to be
sufficiently reliable and sufficiently probative to demonstrate
the truth of the asserted proposition with the requisite degree
of certainty.” Concrete Pipe & Prods. of Cal., Inc. v. Constr.
Laborers Pension Trust for S. Cal., 508 U.S. 602, 622 (1993).
The evidence in this case may satisfy the lesser substantial
evidence standard, see Dickinson v. Zurko, 527 U.S. 150, 162
                               2
(1999) (the substantial evidence standard requires a reviewing
court “to ask whether a reasonable mind might accept a
particular evidentiary record as adequate to support a
conclusion”), but it does not meet the preponderance of the
evidence test.
     The result in this case is unsurprising because, in my
view, it fits the mold of a number of the decisions of this court
that have recited the “preponderance of the evidence”
standard while in fact requiring nothing more than substantial
evidence to deny habeas petitions. I do not mean to sound
self-righteous in offering this observation – it is merely my
considered judgment. In truth, the Guantanamo detainee cases
have presented extraordinary challenges for the judiciary.
This reality has drawn rueful commentary in judicial
opinions, scholarly articles, speeches by members of the
Legislative Branch, pronouncements from the Executive
Branch, and media reports. Any knowledgeable person who
looks carefully at the applicable legislative enactments and
the Supreme Court decisions affecting Guantanamo detainees,
and the resulting progeny of district court and court of appeals
opinions, will comprehend how the preponderance of the
evidence and substantial evidence standards have come to be
conflated. I think it is important to at least acknowledge what
is happening in our jurisprudence.
                            ______
     The facts relied upon by the Government in this case are
quite simple. (I have blocked the statement of facts merely to
highlight it, not to suggest that it is quoted material.)
     Sometime in 1999, when he was a teenager, Hussain left
   his home in Yemen and headed for Pakistan. He initially
   spent a few weeks in Karachi and then traveled to Quetta,
   where he stayed for about three months. While in Quetta,
   he lived in a mosque run by the Jama’at al-Tablighi (“JT”)
                           3
organization. There is nothing to indicate that he was a
part of the organization. From Quetta, Hussain traveled to
Afghanistan, where he spent approximately three months.
After that, Hussain returned again to a JT mosque in
Quetta in April or May of 2000 until about June, when he
left for Kabul, Afghanistan. There is nothing to indicate
what he did during his brief stay at the mosque. In
approximately August 2000, he returned once again to
Quetta for another three-month stay at a JT mosque.
Again, there is nothing to indicate what he did during his
brief stay at the mosque. Then in November 2000,
Hussain moved to Afghanistan where he remained for ten
months in an area north of Kabul not far from where the
Taliban and the Northern Alliance had engaged in battles.
Hussain lived near the front lines with three fellow Arabic
speakers who were Taliban guards. Hussain’s housemates
supplied him with an AK-47 rifle and trained him in its
use. However, there is nothing to indicate that Hussain
used the weapon for any purpose; there is nothing to
indicate that he even carried the gun around with him
while residing in the area north of Kabul; and there is
nothing to indicate that he ever engaged in any acts of war
or terrorism during his temporary residence in the area
north of Kabul. Indeed, there is no evidence that Hussain
ever engaged in any acts of war or terrorism. When al
Qaeda attacked the United States on September 11, 2001,
Hussain was on his way from Afghanistan to Pakistan,
where he lived at yet another JT mosque in Lahore. Again,
there is not one iota of evidence as to what he did while at
the mosque. Hussain wandered around for a brief time
between September 2001 and March 2002, but there is
nothing to indicate that he was affiliated with enemy
forces or engaged in acts of war or terrorist activities. He
was taken into custody in Faisalabad in March 2002 and
was transferred to Guantanamo Bay soon thereafter.
                               4
That’s it.
     The majority invokes the “walks like a duck” test to
conclude that the evidence “at least invites – and may very
well compel – the conclusion that [Hussain] was loyal to
[enemy] forces.” This is not a proper application of the
preponderance of the evidence test with respect to the matter
in dispute. And it is quite invidious because, arguably, any
young, Muslim man traveling or temporarily residing in areas
in which terrorists are known to operate would pass the “duck
test.” That is exactly why the court should faithfully apply the
proper evidentiary standard. Hussain says that he was given a
weapon for his own self-protection. The Government does not
contend nor did the District Court find that Hussain carried
the weapon around with him during his stay in the area north
of Kabul or that he used the weapon for any purpose; nor does
the Government contend that Hussain ever joined with enemy
forces on the front lines. Therefore, without more, the fact
that Hussain moved to Afghanistan where he remained for ten
months in an area north of Kabul is not “sufficiently reliable
and sufficiently probative to demonstrate the truth of the
asserted proposition with the requisite degree of certainty”
that Hussain “planned, authorized, committed, or aided the
terrorist attacks that occurred on September 11, 2001.”
Concrete Pipe, 508 U.S. at 622 (emphasis added).
     The majority also concludes that the District Court did
not commit clear error in finding that “Hussain’s continued
affiliation with enemy forces after leaving Afghanistan” was
sufficient to make out the case against him. But in doing so,
the majority implicitly shifts the burden of proof from the
Government to Hussain. Under the approach adopted by the
majority, Hussain’s petition is rejected because he could not
offer a coherent story about his whereabouts during the times
in question, not because the Government proved by a
preponderance of the evidence that he was “part of” al Qaeda,
                               5
the Taliban, or associated forces. Respectfully, this is not an
appropriate application of the preponderance of the evidence
standard. It was the Government’s burden to show that
Hussain “planned, authorized, committed, or aided the
terrorist attacks that occurred on September 11, 2001,” and
this burden was not met by Hussain’s failure to explain his
whereabouts. Hussain is not presumed to be guilty under the
applicable law merely because he was taken into custody and
transferred to Guantanamo.
     Is it really surprising that a teenager, or someone
recounting his teenage years, sounds unbelievable? What is a
judge to make of this, especially here, where there is not one
iota of evidence that Hussain “planned, authorized,
committed, or aided the terrorist attacks that occurred on
September 11, 2001, or harbored such . . . persons”? I do not
mean to suggest that a teenager cannot be a terrorist or an
enemy combatant or that, if so, he should get a pass because
of his age. Rather, the salient point is quite simple: the burden
of proof was on the Government to make the case against
Hussain by a preponderance of the evidence. In my view, it
failed to carry this burden.
     This said, I am constrained by the law of the circuit to
concur in the judgment of the court. The majority opinion is
unassailable in holding that our precedent (which conflates
the preponderance of the evidence and substantial evidence
standards) supports the result reached. I have no authority to
stray from precedent. However, when I review a record like
the one presented in this case, I am disquieted by our
jurisprudence. I think we have strained to make sense of the
applicable law, apply the applicable standards of review, and
adhere to the commands of the Supreme Court. The time has
come for the President and Congress to give serious
consideration to a different approach for the handling of the
Guantanamo detainee cases.
