 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued October 5, 2012             Decided December 14, 2012

                         No. 11-5180

  KHAIRULLA KHAIRKHWA, DETAINEE, GUANTANAMO BAY
  NAVAL STATION, AND SAMI AL HAJJ, AS NEXT FRIEND OF
              KHAIRULLA KHAIRKHWA,
                     APPELLANTS

                              v.

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


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:08-cv-01805)


     J. Griffin Morgan argued the cause for appellant. With him
on the briefs were Robert M. Elliot and C. Frank Goldsmith, Jr.

    Dana Kaersvang, Attorney, U.S. Department of Justice,
argued the cause for appellees. With her on the brief were Tony
West, Assistant Attorney General, Ian Heath Gershengorn,
Deputy Assistant Attorney General, and Robert M. Loeb,
Attorney. Lowell V. Sturgill Jr., Attorney, entered an
appearance.

   Before: ROGERS and GARLAND, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
                                   2

   Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.

     RANDOLPH, Senior Circuit Judge: This is an appeal from
the judgment of the district court, Urbina, J., denying Khairulla
Khairkhwa’s petition for a writ of habeas corpus.

     Khairkhwa is a detainee at Guantanamo Bay Naval Base.
Khairkhwa v. Obama, 793 F. Supp. 2d 1 (D.D.C. 2011). The
Authorization for Use of Military Force (AUMF), Pub. L. No.
107-40, 115 Stat. 224 (2001), authorized the President to detain
individuals who were “part of” al-Qaeda, the Taliban, or
associated forces engaged in hostilities against the United States
or its allies. See, e.g., Al-Bihani v. Obama, 590 F.3d 866, 872
(D.C. Cir. 2010); Awad v. Obama, 608 F.3d 1, 11–12 (D.C. Cir.
2010). The National Defense Authorization Act for Fiscal Year
2012 affirmed the President’s authority 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, including any
person who has committed a belligerent act or has directly
supported such hostilities in aid of such enemy forces.” Pub. L.
No. 112-81, § 1021, 125 Stat. 1298, 1562 (2011).

     Khairkhwa, an Afghan national, became a senior Taliban
official in 1994, several years after Soviet troops withdrew from
Afghanistan. He admits as much but asserts that he was not a
part of the Taliban forces.1 The evidence presented at a four-day
hearing before the district court showed otherwise.




        1
          Although the district court discussed classified evidence, the
unclassified evidence set forth in this opinion is alone sufficient to
sustain the court’s denial of Khairkhwa’s petition.
                                  3

     Khairkhwa was a Taliban spokesman and senior district
administrator for several years, became governor of Kabul for
a brief period, and then served as the Taliban’s acting interior
minister from approximately 1996 to 1999. Khairkhwa, 793 F.
Supp. 2d at 16. He was one of ten members of the Taliban’s
highest leadership council, the Supreme Shura, which reported
directly to Taliban leader Mullah Omar and supervised
subordinate councils responsible for military operations. Id. at
32. Most of the members of senior Taliban shuras were also
military commanders. Id. at 33. Khairkhwa was no exception:
the district court found that he was a commander in the 1997 and
1998 Taliban assaults on the western Afghan city of Mazar-e-
Sharif.2 Id. at 21–32.

     Mullah Omar appointed Khairkhwa governor of Herat
province in October 1999. He was still serving in that position
when the United States invaded Afghanistan in the fall of 2001.
Id. at 16–17, 33. As governor of Herat, Khairkhwa distributed
funds to Taliban military and security forces. Id. at 35. He had
extensive knowledge of Taliban military facilities, personnel,
and weapons caches and capabilities. Id. at 33–35. After he was
captured, Khairkhwa provided detailed information of the
Taliban’s assessments of shoulder-fired anti-aircraft missiles
and of the Taliban’s efforts to obtain and protect Stinger
missiles. Id. at 34–35. He also described each military facility
in Herat province, including its location, condition, special
characteristics or capabilities, and other sensitive information.
Id. at 33–34.




        2
          These were major battles fought during the Taliban’s violent
rise to power. Khairkhwa, 793 F. Supp. 2d at 21–22. Taliban forces
massacred thousands of the Hazara residents of Mazar-e-Sharif after
seizing the city in 1998. Id.
                                4

     The evidence showed, and the district court found, that
officials in Khairkhwa’s position possessed military authority
under the Taliban governance structure. Id. at 33. “[N]early all
senior Taliban leaders held both civilian and military positions”;
Khairkhwa’s predecessor, Mullah Abdul Razaq, was a senior
military commander while he was governor of Herat. Id. The
obvious inference to be drawn from all of this evidence, an
inference the district court correctly drew, is that it was more
than likely that Khairkhwa wielded authority over military
matters during his tenure as governor of Herat.

     Khairkhwa admits that he met with senior Iranian officials
several times while serving as Herat’s governor. He does not
deny that at one such meeting in January 2000, the participants
discussed how to protect Afghanistan from United States
intervention. Relying in part on these admissions, the district
court found that Khairkhwa participated in another high-level
meeting with Iranian officials in early October 2001. Id. at
37–38. The Iranian delegation included the deputy commander
of the Iranian Foreign Intelligence Service and the head of the
Afghan Department of the Iranian Foreign Intelligence Service.
Id. at 37. In anticipation of the U.S.-led military operation, the
Iranian officials offered military support for the Taliban’s
defense, including anti-aircraft missiles, other unspecified
equipment, and free passage for “Arabs” traveling between Iran
and Afghanistan. Id. at 37–38. The Taliban delegation also
included Abdul Manan Niazi, the governor of Kabul and
commander of the Taliban forces who committed atrocities at
Mazar-e-Sharif in August 1998. Id. at 37.

     The district court thought it significant that Khairkhwa was
appointed to represent the Taliban in these high-level military
meetings. To the court, the evidence showed that Khairkhwa
“was entrusted with significant military-related responsibilities
at the time of the outbreak of hostilities with the United States
                                5

and strongly indicates that he was part of Taliban forces at that
time.” Id. at 40. The court properly rejected Khairkhwa’s
assertion that he was merely a security officer protecting the
Taliban delegation.       Even if the evidence supported
Khairkhwa’s version, which it does not, this would still
“demonstrate that he possessed command authority over Taliban
forces on the eve of the U.S.-led invasion,” id. at 39.

     The district court also found that Khairkhwa continued to
operate within the formal Taliban command structure after
Operation Enduring Freedom began in early October 2001, and
provided support to Taliban military forces. Id. at 40.
Khairkhwa admitted, during a 2002 interrogation, that in early
November 2001 he traveled from Herat to the Taliban-controlled
Kandahar province in a convoy of vehicles full of weapons and
that he turned over the weapons to a local official. Id. at 40–41.

     Khairkhwa was arrested in Chaman, Pakistan, at the home
of Abdul Manan Niazi, the same former Taliban governor who
commanded Taliban forces at Mazar-e-Sharif, and who joined
Khairkhwa in the October 2001 meeting with Iranian
intelligence officials. Id. at 44–45. The circumstances of
Khairkhwa’s capture, his close ties with Mullah Omar, and the
absence of anything showing that he dissociated himself from
the Taliban demonstrated that Khairkhwa remained part of the
Taliban forces at the time of his capture. Id. at 43–45.

      Khairkhwa thinks the government had to prove more. By
his lights, the government also had to show that he “fought or
engaged in armed conflict or hostilities against the United States
or its allies” and that if he were released, he would pose a danger
to the United States in the future. Pet’r’s Br. 9. The decisions
of this court are to the contrary.
                                 6

     In order to detain individuals who were part of the Taliban
or al-Qaeda forces, proof that the individuals also actively
engaged in combat against the United States and its allies is
unnecessary. Al-Bihani so decided, 590 F.3d at 872–74, as have
many of our other decisions. See, e.g., Uthman v. Obama, 637
F.3d 400, 402 (D.C. Cir. 2011); Al-Adahi v. Obama, 613 F.3d
1102, 1103 (D.C. Cir. 2010); Al Odah v. United States, 611 F.3d
8, 10 (D.C. Cir. 2010); Barhoumi v. Obama, 609 F.3d 416, 423,
427 (D.C. Cir. 2010); Awad, 608 F.3d at 11–12. Khairkhwa
calls the standard set forth in Al-Bihani “dictum” because the
detainee in that case actually “participated in hostilities.” Pet’r’s
Reply Br. 4. If by this he means the detainee fired a shot or
detonated an explosive, the distinction is unsupportable on the
evidence. Al-Bihani did not engage in combat in those
terms—he was a cook for forces associated with the Taliban; he
carried a firearm but never used it in “hostilities.” See 590 F.3d
at 869. Like Khairkhwa, Al-Bihani contended that he could be
detained only if he had committed “a direct hostile act, such as
firing a weapon in combat,” id. at 871. In rejecting that
contention, the court ruled that Al-Bihani’s role as part of forces
associated with the Taliban was enough to justify his detention.
Id. at 872–73. All of our decisions citing the Al-Bihani standard
are consistent with this reading of the opinion.

     Khairkhwa’s argument is in any event untenable. In
modern warfare, commanding officers rarely engage in hand-to-
hand combat; 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.

     As to Khairkhwa’s other point—that a person may not be
detained unless the evidence also shows that he would pose a
danger to the United States if released—Awad squarely rejected
the argument. 608 F.3d at 11. Khairkhwa recognizes this, but
                               7

insists that Awad was wrongly decided. Pet’r’s Reply Br. 6.
What he fails to recognize is that one three-judge panel of this
court may not overrule another three-judge panel. LaShawn A.
v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc).

     We find no clear error in the district court’s factual
determinations. Awad, 608 F.3d at 6–7. The evidence recited
above establishes that Khairulla Khairkhwa was at least more
likely than not a part of the Taliban forces.3 See id. at 10–12;
see also Al-Adahi, 613 F.3d at 1103–05; Al-Bihani, 590 F.3d at
872. Accordingly, the district court’s denial of Khairkhwa’s
petition for a writ of habeas corpus is
                                                      Affirmed.




       3
          We have considered and rejected Khairkhwa’s other
contentions.
