Government Response Filed in Suleiman

This Court did not err in refusing to reach issues that were neither raised before the district court nor ruled upon by it. The Court applied the general rule “that a federal appellate court does not consider an issue not passed upon below.” Singleton v. Wulff, 428 U.S. 106, 120 (1976). In previous habeas cases involving detainees at Guantanamo Bay, this Court has likewise held that it need not reach arguments that were improperly raised for the first time on appeal. See Al-Adahi v. Obama, 613 F.3d 1102, 1111 n.6 (D.C. Cir. 2010) (petitioner “waived this argument [concerning the Army Rules of Professional Responsibility] by failing to raise it until his cross-appeal reply brief”), cert. denied, 131 S. Ct. 1001 (2011); Al Alwi v. Obama, 653 F.3d 11, 18 n.7 (D.C. Cir.2011) (petitioner waived his claim that the government must show that “associated forces” are “engaged in hostilities against the United States or its coalition partners”), petition for cert. filed (Dec. 5, 2011) (Nos. 11-7700, 11A368). Nor can it be said that this Court uses the waiver rule in an indiscriminate manner. See Khan v. Obama, 655 F.3d 20, 31 (D.C. Cir. 2011) (disagreeing with the government’s contention that “Khan waived any challenge to the reliability of the intelligence reports”). In any event, Suleiman’s arguments are plainly without merit. Additionally, had he raised them, the district court would have had the opportunity to make factual findings to assist in their resolution, potentially mooting them. Finally, there are no exceptional circumstances in this case that make it appropriate to reach claims that were neither raised nor passed on below.