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 FILED
 United States Court of Appeals
 Tenth Circuit
 
 NOV 4 2003
 
  PATRICK FISHER
 Clerk PUBLISH
 
 UNITED STATES COURT OF APPEALS
 TENTH CIRCUIT
 
  
 
 LEONARD PELTIER, No. 02-3384
 
 Petitioner-Appellant, 
 
 v. 
  
 JOSEPH W. BOOKER, JR., Warden, 
 United States Penitentiary, 
 Leavenworth, Kansas, 
 
 Respondent-Appellee. 
 
 
 
 Appeal from the United States District Court
 for the District of Kansas
 (D.C. No. 99-CV-3194-RDR)
 
  
 
 Carl S. Nadler, of Heller, Ehrman, White & McAuliffe, LLP, Washington, D.C. 
 and Barry A. Bachrach, of Bowditch & Dewey, LLP, Worcester, Massachusetts 
 (Ramsey Clark and Lawrence W. Schilling, New York, New York, and B. Kay 
 Huff, Lawrence, Kansas, with them on the briefs), appearing for Petitioner-
 Appellant.
 
 Eric F. Melgren, United States Attorney (Nancy Landis Caplinger, Assistant U.S. 
 Attorney, with him on the brief), Topeka, Kansas, appearing for Respondent-
 Appellee.
 
 
 
 Before SEYMOUR, Circuit Judge, ANDERSON and BRORBY, Senior Circuit 
 Judges.
 
 
 
 PER CURIAM.
 




 
  Leonard Peltier is housed at the United States Penitentiary in Leavenworth, 
 Kansas. He is serving consecutive life sentences for the 1975 murders of two FBI 
 agents. Pursuant to 28 U.S.C.  2241, he filed a petition for habeas corpus, 
 seeking immediate release on parole. The district court denied relief and we 
 affirm. 
 
 I 
 A. The Pine Ridge Murders
 The record on appeal and the prior federal court decisions regarding Mr. 
 Peltier reflect the following facts. In 1975, the Pine Ridge Indian Reservation in 
 South Dakota was embroiled in conflict between traditional elders, who sought 
 independence from Bureau of Indian Affairs (BIA) managers, and Native 
 Americans supportive of the BIA power structure. The conflict became violent, 
 and the traditional elders sought protection from members of the American Indian 
 Movement (AIM). Mr. Peltier and other AIM activists arrived at Pine Ridge to 
 defend reservation traditionalists. 
 On June 26, 1975, FBI agents Jack Coler and Ronald Williams entered the 
 Pine Ridge Reservation with an arrest warrant for four men charged with armed 
 robbery and assault with a deadly weapon. The two officers began following a 
 van carrying several men. The van came to a stop when it neared the Jumping
 




 
 Bull Compound, and the officers stopped at a distance behind it. A firefight 
 erupted between the agents and the men in the van and expanded to include 
 others. The group firing on the agents was comprised chiefly of AIM activists. 
 Agents Coler and Williams were wounded in the gun battle and then killed by 
 shots taken at point-blank range with a high-velocity, small-caliber firearm. The 
 murder weapon was subsequently determined to be an AR-15 linked to Mr. 
 Peltier.
 The government originally indicted four men for the officers' murders. 
 Two were acquitted, charges were dropped against a third, and Mr. Peltier was 
 convicted on two counts of first degree murder in federal district court in North 
  Dakota. In June 1977, that court sentenced Mr. Peltier to two consecutive life 
 terms for these crimes.
 B. Mr. Peltier's Escape from Prison
 Two years later, Mr. Peltier escaped from prison. He and his fellow 
 escapees fired shots at prison staff in the course of their breakout. While a 
 fugitive, Mr. Peltier reportedly committed armed robbery. Authorities 
 apprehended Mr. Peltier in Oregon shortly after his escape. He was in possession 
  of a semi-automatic rifle matching spent cartridges at the scene of the escape. 
 Mr. Peltier was convicted in federal district court in California of escape and 
 possession of a firearm and sentenced to a seven-year consecutive term.
 




 
 C. Mr. Peltier's Habeas Corpus Petitions
 Through the Freedom of Information Act (FOIA), 5 U.S.C.  552, Mr. 
 Peltier was able to obtain a great deal of information not presented at his trial for 
 the Pine Ridge murders, including a teletype which Mr. Peltier interpreted as 
 relating to a shell casing found in Agent Coler's trunk. Arguing this new 
 evidence undermined the link between his AR-15 and the agents' murders, Mr. 
 Peltier filed motions to vacate the judgment against him for those murders, to 
 disqualify the district court, and for a new trial based on newly discovered 
 evidence pursuant to 28 U.S.C.  2255. The district court denied these motions. 
  United States v. Peltier, 553 F. Supp. 886 (D.N.D. 1982). The Eighth Circuit 
 affirmed in large part, but remanded for an evidentiary hearing to consider "any 
 testimony or documentary evidence relevant to the meaning of the October 2, 
 1975, teletype and its relation to the ballistics evidence introduced at Peltier's 
 trial." United States v. Peltier, 731 F.2d 550, 555 (8th Cir. 1984). The district 
 court was instructed to rule on whether the government withheld that evidence in 
 violation of the Brady doctrine. See Brady v. Maryland, 373 U.S. 83 (1963). 
 At the evidentiary hearing, Mr. Peltier contended the October 2nd teletype 
 established that a shell casing found in Agent Coler's trunkÄwhich had been a 
 central part of the government's case at trialÄcould not have been fired from his 
 weapon. United States v. Peltier, 609 F. Supp. 1143, 1145 (D.N.D. 1985). FBI
 




 
 Special Agent Evan Hodge, author of the teletype at issue, was the only witness at 
 the hearing. Agent Hodge controverted Mr. Peltier's position, insisting the 
 teletype concerned casings other than the one found in the agent's trunk. Id. at 
  1150. The district court found his testimony credible. Id. at 1152. The court 
 found the teletype not to be evidence of perjury and to be cumulative of other 
 evidence that was used to cross-examine Agent Hodge at trial. Id. at 1153. The 
 court denied relief because,
 in the context of the entire record, [the newly discovered teletype] 
 would not have affected the outcome of the trial, and [did] not create 
 a reasonable doubt that did not otherwise exist, [thus Mr.] Peltier . . . 
 failed to establish constitutional error. The nondisclosure of the 
 teletype did not violate the Brady doctrine. 
 
 Id. at 1154. 
 Mr. Peltier appealed the district court's denial. In reviewing his appeal, the 
 Eighth Circuit held that "the prosecution withheld evidence from the defense 
 favorable to [Mr.] Peltier, and that had this evidence been available to the 
 defendant, it would have allowed him to cross-examine certain government 
 witnesses more effectively." United States v. Peltier, 800 F.2d 772, 775 (8th Cir. 
 1986). In order to grant relief, however, the court would have had to determine 
  that the newly discovered evidence made an acquittal reasonably probable. 
 United States. v. Bagley, 473 U.S. 667, 682 (1985). It could not reach that 
 conclusion. Peltier, 800 F.2d at 777. According to the Eighth Circuit, a "simple
 




 
 but very important fact[] remain[ed]: The casing introduced into evidence had in 
 fact been extracted from the Wichita AR-15 [linked to Mr. Peltier]." Id. While 
 there were several AR-15s on the compound the day of the shootings, and while 
 the evidence linking Mr. Peltier to the AR-15 that killed the officers was 
 circumstantial, the evidence against Mr. Peltier remained strong enough to require 
 denial of relief under the Bagley standard. Id. at 778-80.
 Mr. Peltier filed a second  2255 petition in 1991. In denying relief, the 
 district court ruled that
 (1) the record does not support Peltier's contention that an alleged 
 concession by government counsel during oral argument before [the 
 Eighth Circuit] in the prior section 2255 appeal resulted in a change 
 in the theory of the government's case and, therefore, produced a 
 conviction that could not be supported by the evidence introduced at 
 trial and (2) Peltier's other contentionsÄprimarily that the 
 government engaged in various kinds of misconduct in connection 
 with the investigation and prosecution of the caseÄwere not 
 cognizable in [that] section 2255 proceeding because the contentions 
 either were litigated, or could and should have been litigated, in the 
 direct appeal of Peltier's conviction or the prior section 2255 
 proceeding. 
 
 Peltier v. Henman, 997 F.2d 461, 463 (8th Cir. 1993). The Eighth Circuit 
 affirmed, agreeing that the government had never conceded it could not prove Mr. 
 Peltier murdered Agents Coler and Williams, that the government had always 
 advanced alternate theories of Mr. Peltier's guilt, either as the shooter or the 
 shooter's aider and abettor, and that Mr. Peltier's other claims were either 
 procedurally barred or meritless. Id. at 465, 472, 473.




 
 D. Mr. Peltier's Applications for Parole
 Mr. Peltier applied for parole in 1986, but later waived consideration. He 
 reapplied in August 1993. He received a parole hearing on December 14, 1993, at 
 which he was represented by counsel and made a statement. The Parole 
 Commission calculated his parole guidelines at a minimum of 188 months due to 
 his convictions for first degree murder, escape, and possession of a firearm; 
 eleven incidents of institutional misconduct; and a reported armed robbery while 
 he was a fugitive. At the time of the hearing, Mr. Peltier had served 204 months. 
 The Commission refused parole and set a fifteen-year reconsideration period due 
 to the nature of the several crimes in which Mr. Peltier had been involved. The 
 Commission recommended referral to the Regional Commissioner, who concurred 
 in its recommendation. That commissioner then referred Mr. Peltier's case to the 
 National Commissioners, who also concurred. Finally, Mr. Peltier appealed to the 
 full Parole Commission which, after correcting a miscalculation and raising his 
 parole guidelines to a minimum of 200 months, agreed with the original parole 
 decision.
 In 1995, Mr. Peltier received a statutory interim hearing. The hearing 
 officer was persuaded there was insufficient evidence to support a finding that 
 Mr. Peltier personally shot Agents Coler and Williams at point-blank range. 
 Despite that finding, he recommended no change in Mr. Peltier's parole status
 




 
 because he believed evidence that Mr. Peltier was a co-conspirator or aider and 
 abettor in the agents' executions justified his above-the-guidelines prison time.
 A second hearing officer then reviewed Mr. Peltier's case. Based on a 
 legal officer's recommendation, he determined that the first hearing officer had 
 exceeded the scope of a statutory interim review and recommended the initial 
 findings be reinstated. Adopting the legal officer's view, the second hearing 
 officer recommended no change in Mr. Peltier's parole status.
 Mr. Peltier appealed this interim determination to the full Parole 
 Commission. While that body recognized the lack of direct evidence indicating 
 Mr. Peltier personally executed Agents Coler and Williams, it pointed to adequate 
 circumstantial evidence of his personal involvement, which met the 
 preponderance of the evidence standard for the Commission's findings. The 
 Commission reasserted its belief that Mr. Peltier was in fact the shooter, but noted 
 it would make the same determination regarding his parole if he were merely an 
 aider and abettor. Release of Mr. Peltier, found the Commission, would be 
 contrary to the public respect for the law contemplated by 18 U.S.C.  4206(a).(1) 
  Mr. Peltier's request for parole was denied and his reconsideration period 
 remained at fifteen years. 
 In May 1998, Mr. Peltier had his second interim statutory hearing. The 
 Commission found no new information to warrant a change in his status. 
 Specifically, the Commission found Mr. Peltier's medical condition did not 
 warrant release and the seriousness of his crimes and failure to accept 
  responsibility militated against granting parole.
 E. Mr. Peltier's Current Habeas Petition
 Mr. Peltier applied to the district court for habeas corpus review of the 
 Parole Commission's actions, arguing (1) its decisions were arbitrary and 
 capricious because it could not determine who shot the agents; (2) the decisions 
 were based on incorrect information and discriminatory factors and thus were 
 unlawful; (3) application of parole rules and regulations revised after his 
 conviction violated ex post facto principles; and (4) failure to grant parole in light 
 of his medical condition was arbitrary and capricious and amounted to cruel and
 (1) If an eligible prisoner has substantially observed the 
 rules of the institution or institutions to which he has 
 been confined, and if the Commission, upon 
 consideration of the nature and circumstances of the 
 offense and the history of the characteristics of the 
 prisoner, determines: (1) that release would notdepreciate the seriousness of his offense or promote 
 disrespect for the law; and (2) that release would not 
 jeopardize the public welfare; subject to the provisions 
 of . . . this section, and pursuant to guidelines 
 promulgated by the Commission . . . , such prisoner shall 
 be released. 
 
 18 U.S.C. 4206(a). 
 




 
 unusual punishment. The district court denied relief. Mr. Peltier appeals to this 
 court, reasserting only argument (1) above. He contends "[t]he district court 
 erroneously accepted the Commission's denial of parole where the record does not 
 support the Commission's sole basis for extending the date of Peltier's parole 
 well outside normal guidelinesÄnamely, that Peltier participated in an `ambush' 
 and `the cold-blooded execution' of two FBI agents." Aplt. Br. at 10.
 
  II
 "Judicial review of Parole Board decisions is narrow." Dye v. United 
 States Parole Comm'n, 558 F.2d 1376, 1378 (10th Cir. 1977). The Commission's 
 decision will stand unless it is arbitrary and capricious. Id. "[I]t is not the 
 function of courts to review the Board's discretion in denying parole or to repass 
 on the credibility of reports received by the Board in making its determination." 
 Id. A reviewing court must make some inquiry into the factual basis for the 
 Commission's decision. Misasi v. United States Parole Comm'n, 835 F.2d 754, 
 758 (10th Cir. 1987). But "[t]he inquiry is not whether the Commission's 
 decision is supported by the preponderance of the evidence, or even by substantial 
 evidence; the inquiry is only whether there is a rational basis in the record for the 
 Commission's conclusions embodied in its statement of reasons." Id. (quoting 
  Solomon v. Elsea, 676 F.2d 282, 290 (7th Cir. 1982)). We assess the Parole
 




 
 Commission's decision in light of these standards.
 The Parole Commission's July 12, 1996, Notice of Action thoroughly lays 
 out the facts relied upon by that body in denying Mr. Peltier's parole and delaying 
 its reconsideration until 2008: 
 After careful examination of the evidence in the record, the 
 Commission continues to be persuaded that you were, in fact, the 
 individual who executed the two wounded F.B.I. agents by firing 
 upon them at point-blank range with an AR-15 rifle. Trial witness 
 [and AIM member] Norman Brown testified that he saw you firing an 
 AR-15 rifle after the shooting started at the Jumping Bull Compound. 
 Trial witness [and AIM member] Michael Anderson testified that he 
 saw you at the agents' vehicles with an AR-15 rifle. No witness 
  testified that anyone other than you fired an AR-15 rifle at the 
 agents' cars, or that anyone other than you was seen at the agents' 
 cars with an AR-15. (The evidence concerning other AR-15 rifles 
 fired that day indicates that these rifles were fired later, and at places 
 from which direct aim could not have been taken at the murdered 
 F.B.I. agents.) The agents were killed with high-velocity bullets that 
 no other weapon used against them that day but an AR-15 could have 
 fired. A .223 shell caliber casing found in the trunk of Agent Coler's 
 car had an ejection mark matching a damaged AR-15 rifle 
 subsequently recovered in Wichita, Kansas, from a vehicle driven by 
 your associates. Furthermore, you had a personal motive to murder 
 the two F.B.I. agents, because you had previously failed to appear for 
 a murder trial in Wisconsin and you believed that the two F.B.I. 
 agents were coming to arrest you. Moreover, [AIM member] William 
 Draper testified that he heard you discuss details of the murders the 
 evening after the shooting took place. Further evidence against you 
 is that, after you avoided arrest in Oregon, Agent Coler's service 
 revolver was found in your vehicle inside a paper bag bearing your 
 thumb print . . . . The Commission finds that the two F.B.I. agents, 
 armed only with their service revolvers and driving separate cars, 
 were performing a routine law enforcement function . . . when they 
 were suddenly ambushed and overwhelmed with superior firepower 
 by you and your associates. (There were 125 bullet holes in the 
 agents' cars and their rifles were stored in the car trunks.)




 
 
 Aplt. App. at 301-02. 
 All of the facts relied upon by the Commission can be found in previous 
 Eighth Circuit decisions. That court quoted Norman Brown's testimony. Peltier, 
 800 F.2d at 779. It also described the testimony of Michael Anderson and 
 William Draper. Id.; United States v. Peltier, 585 F.2d 314, 319, 320 (8th Cir. 
 1978) (direct appeal). The Eighth Circuit outlined facts and testimony suggesting 
 Mr. Peltier's motive to murder the agents. Peltier, 585 F.2d at 319-20. The 
 Commission's statement that "[n]o witness testified that anyone other than you 
 fired an AR-15 rifle at the agents' cars, or that anyone other than you was seen at 
 the agents' cars with an AR-15," Aplt. App. at 301, came directly from an Eighth 
  Circuit opinion. See Peltier, 800 F.2d at 779. Mr. Peltier previously alleged that 
 FBI intimidation of trial witnesses compromised their reliability. Peltier, 585 
 F.2d at 328-29. The Eighth Circuit recognized the intimidation of AIM activists, 
 but noted each witness's attestation that his trial testimony was truthful. Id. The 
 Commission clearly has a rational basis for relying on this testimony to dispose of 
 Mr. Peltier's parole appeal.
  The physical evidence cited by the Parole Commission was also catalogued 
 by the Eighth Circuit. That court noted that only the AR-15 linked to Mr. Peltier 
 could have fired the fatal shots into the two agents, that the .223 casing found in 
 Agent Coler's trunk matched the AR-15 recovered in Wichita and linked to Mr.
 




 
 Peltier, that other AR-15's present on the Reservation were fired at locations far 
 from the murder scene, and that Mr. Peltier was apprehended in possession of 
 Agent Coler's service revolver. Id. at 319-20; Peltier, 800 F.2d at 779. After the 
 evidentiary hearing on Mr. Peltier's first habeas petition, the district court in 
 North Dakota held that the October 2nd teletype did not cast doubt on the 
 connection between the .223 casing found in Agent Coler's trunk and the AR-15 
 linked to Mr. Peltier. Peltier, 609 F. Supp. at 1152. On appeal, the Eighth 
 Circuit asserted the casing "had in fact been extracted from the . . . AR-15 [linked 
 to Mr. Peltier]." Peltier, 800 F.2d at 777. As with the testimony discussed 
 above, the Parole Commission could rationally rely on this evidence in denying 
 Mr. Peltier's request for parole and delaying reconsideration until 2008.
 Both in briefing and at oral argument, counsel for Mr. Peltier challenged 
 the accuracy of the Commission's description of events leading up to the agents' 
  deaths. While the Commission's use of the word "ambush" may have been 
 imprecise, the Commission was clearly correct in stating the agents were 
 "overwhelmed." Aplt. App. at 302. As reported by the Eighth Circuit, Agents 
 Coler and Williams were on the Pine Ridge Reservation merely to execute an 
 arrest warrant. Peltier, 585 F.2d at 318. The results of the firefight in which they 
 became entangled suggest they were ill-prepared for such an event. When the 
 smoke cleared, 125 bullet holes were found in the agents' cars. Id. Only five
 




 
 casings attributable to the agents' revolvers were ever found at the scene. Id. 
 The Commission's description of the murders in various Notices of Action 
 as "executions" and "cold-blooded" was warranted. Aplt. App. at 199, 281, 301. 
 Evidence from the scene indicated
 Williams attempted to shield his face from the blast with his right 
  hand, turning his head slightly to the right. The murderer placed the 
 barrel of his gun against Williams' hand and fired. The bullet ripped 
 through Williams' hand, into his face, and carried away the back of 
  his head. He was killed instantly. The murderer shot Coler, who was 
 unconscious, across the top of the head. The bullet carried away a 
 part of his forehead at the hairline. The shot was not fatal, however. 
  The murderer then lowered his rifle a few inches and shot Coler 
 through the jaw. The shell exploded inside his head, killing him 
 instantly.
 
 Peltier, 585 F.2d at 318-19. The Commission's characterization of these events 
 appears accurate to this court. 
 The facts relied upon, of course, must support the Commission's 
 conclusions. The Commission's Notice of Action reasoned that:
 [a]lthough the above evidence is consistent with your having, while 
 at the scene of the murders, aided and abetted the use of the above-
 mentioned AR-15 rifle by another individual to execute the agents, 
 the Commission is persuaded that the greater probability is that you 
 yourself fired the fatal shots. . . . It would be unjust to treat the 
 slaying of these F.B.I. agents, while they lay wounded and helpless, 
 as if your actions had been part of a gun battle. Neither the state of 
 relations between Native American militants and law enforcement at 
 the Pine Ridge Indian Reservation prior to June 16, 1975, nor the 
 exchanges of gunfire between individuals at the Jumping Bull 
 Compound and the law enforcement agents who arrived there during 
 the hours after Agents Coler and Williams were murdered, explains 
 or mitigates the crimes you committed. . . . Your release on parole
 




 
 would promote disrespect for the law in contravention of 18 U.S.C. 
 4206(a).
 
 Aplt. App. at 301-02. Previous federal court decisions provided the Commission 
 with ample facts to support its conviction that Mr. Peltier personally shot Agents 
 Coler and Williams. We cannot hold that the Commission's reliance on these 
 decisions, nor its determination that the aggravating circumstances of this crime 
 outweigh mitigating evidence presented by Mr. Peltier, constitute arbitrary and 
 capricious action on the Commission's part.
 In attacking the rational basis for the Parole Commission's decision, Mr. 
 Peltier first posits "[n]either Peltier's convictions nor the Eighth Circuit post-
 conviction decisions [support] the Commission's finding that Peltier participated 
 in an `ambush' and executed the agents after they were incapacitated." Aplt. Br. 
 at 11. But a jury convicted Mr. Peltier of premeditated first degree murder. 
 Peltier, 997 F.2d at 463; Peltier, 800 F.2d at 772. Contrary to Mr. Peltier's 
 assertion that evidence undergirding his conviction has begun to "evaporate," 
 Aplt. Br. at 15, the evidence supporting the jury's verdict appears in numerous 
 Eighth Circuit opinions. Neither the conviction nor any of the subsequent court 
 decisions have been overturned. The Commission may justifiably rely on the 
  conviction and the Eight Circuit's refusal to overturn it in making its parole 
 determinations. See Fiumara v. O'Brien, 889 F.2d 254, 257-58 (10th Cir. 1990) 
 (in making parole determinations, Commission may consider formally adjudicated
 




 
 crimes, as well as information from prosecutors and other parties). 
 Mr. Peltier correctly asserts his "convictions do not necessarily rest on the 
 theory that he executed the FBI agents" and that the government has conceded as 
 much. Aplt. Br. at 12, 13. As the Eighth Circuit recognized, "[t]he government 
 tried the case on alternative theories: it asserted that Peltier personally killed the 
 agents at point blank range, but that if he had not done so, then he was equally 
 guilty of their murder as an aider and abettor." Peltier, 997 F.2d at 465. It is 
 possible the jury accepted only the aiding and abetting theory to convict Mr. 
 Peltier of premeditated first degree murder. Were that the case, the Commission, 
 based on the evidence before it, could still reach the conclusion it did. 
 Thus, in Lewis v. Beeler, 949 F.2d 325, 328 (10th Cir. 1991), this court 
 upheld a denial of parole based on the Commission's conclusion that a man 
 serving time for extortion was actually the Tylenol murderer. In condoning the 
 Commission's reliance on evidence that he committed murder, we stated "while 
 we might not have concluded that Lewis was the Tylenol murderer based on this 
 evidence, it provides a rational basis for the Commission's finding to that effect." 
 Id. at 332. If the Commission may rely on uncharged crimes in denying parole, it 
 can certainly rely on the body of evidence here suggesting Mr. Peltier in fact 
 executed the agents. That the government argued in the alternative and the jury 
 possibly accepted that Mr. Peltier only aided and abetted the murderer does not
 




 
 upset the rational basis for the Commission's decision.
 Mr. Peltier also calls our attention to the report of the interim hearing 
 officer stating "that a preponderance finding that Peltier actually executed the 
 agents cannot be made." Aplt. App. at 233. However, Mr. Peltier fails to point 
 out a significant feature of this officer's report. Despite his finding insufficient 
 evidence that Mr. Peltier pulled the trigger, the officer recommended no change in 
 the Commission's denial of parole and fifteen-year reconsideration period. It 
 would exceed our authority under the arbitrary and capricious review standard to 
 rely on this officer's opinion, which recommended no change in Mr. Peltier's 
 status and which was ultimately rejected by the full Commission, to reverse the 
 Commission's parole determination.
 In attacking the evidence relied on by the Commission in denying parole 
 and setting the lengthy reconsideration period, Mr. Peltier seems to suggest we 
 should reweigh this evidence in rendering our decision. We cannot. Fiumara, 
 889 F.2d at 257. We can, however, inquire into whether the Commission was 
 rational in considering it. Misasi, 835 F.2d at 758. 
 As noted above, the Commission's description of the firefight as an 
 "ambush" was imprecise: there is no indication any of the participants were lying 
 in wait for the agents. But the officers were on a routine law enforcement 
 mission when they encountered overwhelming firepower from Native American
 




 
 activists. And the Commission's choice of the word "execution" in describing the 
 murders was quite apt. While Mr. Peltier asserts "[t]he Commission identified no 
 plausible evidence that [he] shot the agents after they were incapacitated," Aplt. 
 Br. at 17, this statement is simply not true. The evidence linking Mr. Peltier to 
 these crimes is enumerated above. The most damning evidenceÄthe .223 casing 
 found in Agent Coler's trunkÄmay be more equivocal after the surfacing of the 
 October 2nd teletype, but it has not been "ruled out," as Mr. Peltier contends. 
 Aplt. Br. at 20. There is no direct evidence that Mr. Peltier shot the agents 
 because no one testified they saw him pull the trigger. But as we stated above 
 and restate here, the body of circumstantial evidence underlying the 
 Commission's decision is sufficient for the purposes of rational basis review.
 Much of the government's behavior at the Pine Ridge Reservation and in its 
 prosecution of Mr. Peltier is to be condemned. The government withheld 
 evidence. It intimidated witnesses. These facts are not disputed. Mr. Peltier 
 asserts that "the blatant government misconduct is a mitigating factor which 
 should bear strongly on whether [he] should be immediately considered for parole 
 . . . ." Aplt. Rep. Br. at 2. He may be correct. But whether the Parole 
 Commission gave proper weight to this mitigating evidence is not a question we 
  have authority to review. Our only inquiry is whether the Commission was 
 rational in concluding Mr. Peltier participated in the execution of two federal
 




 
 agents. On the record before us, we cannot say this determination was arbitrary 
 and capricious.
 
 III
 Because we hold the Commission's principal findingÄthat Mr. Peltier shot 
 and killed Agents Coler and WilliamsÄwas rational, we need not address the 
 Commission's implication that the same disposition is supportable if Mr. Peltier 
 only aided and abetted at the murder scene. As such, we AFFIRM the district 
 court's denial of relief.