HENRY H. KENNEDY, JR., District Judge.
Uthman Abdul Rahim Mohammed Uthman (ISN 27), a Yemeni citizen, has been held by the United States at the naval base detention facility in Guantanamo Bay, Cuba since January 2002. Uthman contends he is unlawfully detained and has accordingly filed a petition for a writ of habeas corpus. Respondents in this case, President Barack H. Obama and other high-level officials in the United States Government, argue that Uthman is lawfully detained and should remain in U.S. custody. Both parties have filed cross-motions for judgment on the record and appeared before this Court for hearings on those motions on January 27 and 28 and February 1, 2, and 3, 2010. Upon consideration of the motions and oral presentations of the parties as well as the record of this case, the Court concludes that respondents have not demonstrated that the detention of Petitioner Uthman is justified. Therefore, Uthman's petition shall be granted.
The Authorization for Use of Military Force ("AUMF"), Pub.L. No. 107-40, 115 Stat. 224 (2001), provides that the President may "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, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons." Pub.L. 107-40, § 2(a), 115 Stat. at 224. Although the U.S. Supreme Court has held that the District Court for the District of Columbia has jurisdiction over petitions for writs of habeas corpus brought by detainees held at Guantanamo Bay pursuant to the AUMF, see Boumediene v. Bush, 553 U.S. 723, 128 S.Ct. 2229, 2274, 171 L.Ed.2d 41 (2008); Rasul v. Bush, 542 U.S. 466, 483-84, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004), it has provided "scant guidance" as to whom respondents may lawfully detain under the statute, Al-Bihani v. Obama, 590 F.3d 866, 870 (D.C.Cir.2010) (noting that the Supreme Court has "consciously le[ft] the contours of the substantive and procedural law of detention open for lower courts to shape in a common law fashion" (citing Hamdi v. Rumsfeld, 542 U.S. 507, 522 n. 1, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (plurality opinion of O'Connor, J.); Boumediene, 128 S.Ct. at 2276)).
In the absence of controlling law on this matter, the Court shall rely on the reasoning of other Judges of this Court who have thoroughly and thoughtfully addressed the question of by what standard to evaluate the lawfulness of the detention of the individuals held at Guantanamo Bay. Accordingly, as Judge Bates ruled in Hamlily v. Obama, 616 F.Supp.2d 63 (D.D.C.2009), the government may detain "those who are `part of the Taliban or al
As stated in the Amended Case Management Order that governs this case, "[t]he government bears the burden of proving by a preponderance of the evidence that the petitioner's detention is lawful." In re Guantanamo Bay Litig., Misc. No. 08-442, CMO § II.A, 2008 WL 4858241 (Nov. 6, 2008). Accordingly, Uthman need not prove that he is unlawfully detained; rather, respondents must produce "evidence which as a whole shows that the fact sought to be proved," that Uthman was part of Al Qaeda, "is more probable than not." United States v. Mathis, 216 F.3d 18, 28 (D.C.Cir.2000) (quoting United States v. Montague, 40 F.3d 1251, 1255 & n. 2 (D.C.Cir.1994)); see also Al-Bihani, 590 F.3d at 878 (rejecting Guantanamo Bay detainee's argument that use of the preponderance of the evidence standard in his habeas case was unconstitutional). If respondents fail to meet this burden, the Court must grant Uthman's petition and order his release.
The Court notes at the outset two issues regarding the evidence in this case.
First, as explained in an order entered in this case on August 26, 2009 [# 606], the Court has permitted the admission of hearsay evidence but considers at this merits stage the accuracy, reliability, and credibility of all of the evidence presented to support the parties' arguments. This approach is consistent with a directive from the D.C. Circuit. See Al-Bihani, 590 F.3d at 879 ("[T]he question a habeas court must ask when presented with hearsay is not whether it is admissible—it is always admissible—but what probative weight to ascribe to whatever indicia of reliability it exhibits."). The Court's assessment of the weight properly accorded to particular pieces of evidence appears throughout this memorandum opinion.
Second, the nature of the evidence before the Court is atypical of evidence usually presented in federal actions. Respondents have offered a variety of types of documents produced and used by government intelligence agencies that are not the direct statements of the individuals whose personal knowledge they reflect. The Court also heard from one live witness, an investigator for a federal law enforcement agency called the Criminal Investigation Task Force ("CITF"), whose testimony is described below.
Uthman's activities between his schooling in Yemen and seizure preceding his detention at Guantanamo Bay are in dispute and are the focus of this case. In sum, respondents argue that Uthman traveled to Afghanistan to join Al Qaeda, and once there, he trained to be a fighter, fought against forces seeking to overturn the Taliban's regime, and became a bodyguard for Usama bin Laden. Uthman contends that he went to Afghanistan to teach the Quran to children and was not part of Al Qaeda.
Respondents' primary argument in this case is that Uthman acted as a bodyguard for Usama bin Laden. The evidence they present in support of this contention fails to convince the Court that it is more likely than not that Uthman was a bodyguard.
Respondents' most important pieces of evidence regarding this issue are intelligence reports, referred to as FM40s, reporting statements of two other detainees currently held at Guantanamo Bay. In light of the abusive circumstances of the detention of these men and serious questions about the accuracy of their identifications of Uthman, the Court finds these statements to be unreliable and will not consider them in evaluating whether the detention of Uthman is lawful.
The statements are quite damning on their faces. Sharqwi Abdu Ali Al-Hajj, identified as ISN 1457, is a member of Al Qaeda often called, among other aliases, Riyadh the Facilitator. Respondents presented evidence, in an FM40, that Hajj identified a photograph of Uthman as "Hudaifa al Adani," a name respondents contend Uthman used as an alias, and stated that Uthman "became a bodyguard for [Usama bin Laden] a couple of months prior to the September 11, 2001 attacks." Joint Exhibit ("JE") 29 at 4.
Sanad Yislam Ali Al Kazimi, ISN 1453, is also a member of Al Qaeda. An FM40 summarizing an interrogation of Kazimi indicates that he stated that a picture of Uthman "looks like Hudaifa Al Yemeni" and stated that "he heard" Uthman became a bodyguard for Usama bin Laden. JE 28 at 5.
The Court will not rely on the statements of Hajj or Kazimi because there is unrebutted evidence in the record that, at the time of the interrogations at which they made the statements, both men had recently been tortured.
Uthman has submitted to the Court a declaration of Kristin B. Wilhelm, an attorney who represents Hajj, summarizing Hajj's description to her of his treatment while in custody. The declaration states that while held in Jordan, Hajj "was regularly beaten and threatened with electrocution
Uthman has also submitted a declaration of Martha Rayner, a Professor at Fordham University Law School who represents Kazimi, regarding Kazimi's description of his treatment in detention. Rayner reports that while Kazimi was detained outside the United States, his interrogators beat him; held him naked and shackled in a dark, cold cell; dropped him into cold water while his hands and legs were bound; and sexually abused him. Kazimi told Rayner that eventually "[h]e made up his mind to say `Yes' to anything the interrogators said to avoid further torture." JE 145 ¶ 13. According to Rayner's declaration, Kazimi was relocated to a prison run by the CIA where he was always in darkness and where he was hooded, given injections, beaten, hit with electric cables, suspended from above, made to be naked, and subjected to continuous loud music. Kazimi reported trying to kill himself on three occasions. He told Rayner that he realized "he could mitigate the torture by telling the interrogators what they wanted to hear." Id. ¶ 34. Next, Kazimi was moved to a U.S. detention facility in Bagram, Afghanistan, where, he told Rayner, he was isolated, shackled, "psychologically tortured and traumatized by guards' desecration of the Koran" and interrogated "day and night, and very frequently." Id. ¶ 37. Kazimi told Rayner that he "tried very hard" to tell his interrogators at Bagram the same information he had told his previous interrogators "so they would not hurt him." Id. ¶ 42.
Respondents replied to these declarations by presenting as a witness a criminal investigator for CITF, but the testimony of the investigator fails to effectively rebut the evidence of abuse of Hajj and Kazimi. The investigator conducted interviews of Hajj and Kazimi in June 2004 at the Air Force Base in Bagram, Afghanistan at which both men were then held, as well as later that year in Guantanamo Bay. The FM40s that report each man's identification of a photograph of Uthman as Hudaifa, an Usama bin Laden bodyguard, are the investigator's summaries of the Bagram interviews. See JE 28 at 1; JE 29 at 1.
Uthman asserts that the proximity in time between the torture Hajj and Kamizi described and their interrogations by the CITF investigator, however cordial, renders their statements unreliable. In general, "resort to coercive tactics by an interrogator renders the information less likely to be true." Mohammed v. Obama, 704 F.Supp.2d 1, 24, 2009 WL 4884194, at *23 (D.D.C. Dec. 16, 2009) (citing Linkletter v. Walker, 381 U.S. 618, 638, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965)). To determine admissibility in analogous situations criminal cases, courts assess the voluntariness of statements made after the application of coercive techniques based on a totality of the circumstances test. Id. (citing United States v. Karake, 443 F.Supp.2d 8, 87 (D.D.C.2006)); see also Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) ("In determining whether a defendant's will was overborne in a particular case, the Court has assessed the totality of all the surrounding circumstances."). Judges of this Court have adopted this test in the cases of other Guantanamo Bay detainees seeking release. See, e.g., Mohammed, 704 F.Supp.2d at 24, 2009 WL 4884194, at *23; Anam v. Obama, 696 F.Supp.2d 1, 5-7 (D.D.C.2010). The test calls for considering, inter alia, "the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators." Mohammed, 704 F.Supp.2d at 24, 2009 WL 4884194, at *23 (quoting Oregon v. Elstad, 470 U.S. 298, 310, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985)) (internal quotation mark omitted).
Respondents do not argue that the alleged torture of Hajj and Kazimi is sufficiently attenuated from the interviews at which they gave the relevant statements to support a conclusion that despite the coercion, the statements are nonetheless reliable.
Furthermore, there are serious questions as to whether Hajj and Kazimi's statements, even if considered outside the context of the coercion that limits their value, constitute significant evidence that Uthman was a part of Al Qaeda. Specifically, the assertions that "Hudaifa" was a bodyguard for Usama bin Laden are only relevant if "Hudaifa" is an alias for Uthman.
According to the Defense Intelligence Agency, members of Al Qaeda use aliases, often referred to as kunyas, to "conceal[] the individual's identity" and "as a security, denial and deception measure." JE 2 at 2. Therefore, it would not be surprising that, were Uthman a former bodyguard for Usama bin Laden, he had an alias by which Al Qaeda fighters knew him. But respondents have not demonstrated a link between Uthman and the name "Hudaifa."
They offer one piece of evidence to support the contention that Uthman used Hudaifa as an alias, but the Court will not consider it. The D.C. Circuit has made clear that hearsay evidence "must be presented in a form, or with sufficient additional information, that permits [the factfinder] to assess its reliability." Parhat v. Gates, 532 F.3d 834, 849 (D.C.Cir.2008). Here, the relevant document contains limited information about its source. Therefore, the Court does not have "knowledge as to the circumstances under which the source obtained the information." Boumediene v. Bush, 579 F.Supp.2d 191, 197 (D.D.C.2008) (concluding that "the information in the classified intelligence report[] relating to the credibility and reliability of the source ... is not sufficient for the purposes for which a habeas court must now evaluate it" where "the Court has no knowledge as to the circumstances under which the source obtained the information" on which respondents rely); see also Anam, 696 F.Supp.2d at 10 (declining to rely on an intelligence report of which "[t]he source (or sources) ... is unknown" and another that "lacks any indicia of reliability"). Because the Court cannot evaluate whether the information in document is credible, it will not rely on it.
Moreover, it is not clear that the name by which Kazimi referred to the photograph of Uthman was consistent with an identification of Uthman. Respondents produced a copy of the photograph the CITF investigator showed to Kazimi during the investigator's interview with him; on the back of that photo, Kazimi wrote a line of text in Arabic. GE 2. At some point after the interview, someone wrote a translation of that line in English just beneath it, which reads: "He is Arab, and Looks Like Huthaifa Al-Anzi." Id. Uthman obtained a declaration of a professional translator who stated that the line of Arabic reads: "Shafai Adani looks like Khuthaifa Al Anzi." PE 4 (Declaration of Masud Hasnain).
Respondents offer as additional evidence that Uthman was a bodyguard for Usama bin Laden another statement, this one recorded in an intelligence report resulting from an interrogation of Abd Al Hakim Abd Al Karim Amin Bukhari, ISN 493. Bukhari stated that Uthman "was a member of the Usama bin Laden . . . security detail." JE 77 at 2.
The Court finds this evidence unpersuasive for two reasons. First, it is not clear that Bukhari's statement is based on personal knowledge. Bukhari stated in testimony before the Combatant Status Review Tribunal that he was only in Afghanistan for ten days after the September 11 attacks and that before then, he had been in Saudi Arabia. JE 149 at 8. If this information is correct, Bukhari could not have observed Uthman acting as a bodyguard in Afghanistan before September 11. In reply to this logic, respondents point to a report containing intelligence the Department of Defense received from Bukhari; Bukhari described a speech Usama bin Laden gave in Kandahar, Afghanistan "approximately three months before 9/11." JE 150 at 1. Respondents infer that Bukhari's presence at this speech means he and Uthman were in Kandahar at the same time. Even accepting that inference as true, there is no evidence in the record that the two men were at the same speech, in the same building, or ever even saw each other in Kandahar. Without more information as to how Bukhari came to believe that Uthman was part of Usama bin Laden's security detail, the Court cannot evaluate the credibility of the statement and therefore cannot rely on it. See Boumediene, 579 F.Supp.2d at 197; Anam, 696 F.Supp.2d at 10-11.
Respondents have presented a variety of other statements to support the proposition that Uthman had the necessary contacts to become a bodyguard for Usama bin Laden. These contacts are relevant, respondents assert, because according to Hajj, "those who were bodyguards would try to get people they knew, or people who were from their hometown, to be bodyguards," JE 29 at 4, so one of these men may have recommended Uthman.
This evidence, even if accepted as true, does not demonstrate that Uthman was a bodyguard for Usama bin Laden. It
By his own admission, Uthman was seized in late 2001 in the general vicinity of Tora Bora. JE 10 at 3; JE 13 at 2-3. He was with a group of approximately thirty other men, a few of whom he knew from Yemen. JE 10 at 3; JE 13 at 2.
Respondents argue that these circumstances—in particular, Uthman's location and the identities of some of his fellow travelers—are evidence of his affiliation with Al Qaeda. Respondents question why Uthman would choose to stay in Afghanistan after September 11, 2001 if he were not involved in Al Qaeda. They assert that Uthman's proximity at the time of his capture to the site of an ongoing battle and a known location of Usama bin Laden, a cave complex called Tora Bora, strongly suggests he was coming from the complex.
Uthman rejoins first that respondents have presented no direct evidence that Uthman was at Tora Bora. Second, he argues that insofar as respondents have identified circumstantial evidence suggesting that he was present at the battle there, the inferences necessary to so conclude assume the truth of the allegation that Uthman was a bodyguard for Usama bin Laden. Third, despite reiterating that the burden is on respondents to prove their case rather than for Uthman to prove anything, he argues that the information from other detainees is consistent with Uthman's assertion that he was in Khost, Afghanistan, rather than Tora Bora, before being seized.
On balance, the Court accepts respondents' evidence, which is largely based on and consistent with Uthman's own admissions, as true and will consider it in evaluating whether the evidence as a whole supports the continued detention of Uthman.
Respondents argue in further support of their contention that Uthman was part of
Uthman attacks each piece of evidence. As to Kazimi's statements, Uthman argues they are tainted by torture and therefore unreliable. He also argues that Kazimi does not explain how he came to "believe[]" Uthman was on the front lines, JE 43 at 3, rendering the information unreliable, and that Uthman asserts he was not in Kabul until March 2001, JE 10 at 2, which is inconsistent with Kazimi's having seen him there in "early" 2001, JE 43 at 3. As to the statement of the other detainee, Uthman argues the use of the name "Yasser" as well as "al-Madani," which refers to someone from Medina, Saudi Arabia, demonstrate that the identification is inaccurate.
The Court agrees with Uthman as to most of this evidence. As explained above, the Court cannot appropriately rely on the information of which Kazimi is the source, primarily because Kazimi's statements are not sufficiently attenuated from torture, of which there are unrebutted allegations in the record, by other interrogators. The other detainee's reference to "Yasser al-Madani" calls into serious question his identification of Uthman. Even assuming at respondents' suggestion that "al-Madani" is an erroneous transcription of "al-Adani," respondents have identified no indication anywhere in the record that Uthman used "Yasser" as an alias. Because there is so little reason to believe Uthman was a fighter in Kabul, the Court will not conclude it is more likely than not that this allegation is true.
Respondents also contend that Uthman took part in Al Qaeda-sponsored activities in Kandahar, Afghanistan before going to Kabul, which, respondents reason, is consistent with and reinforcing of the proposition that Uthman was a bodyguard for Usama bin Laden. Specifically, they assert that he attended a training camp for Al Qaeda fighters and, as in Kabul, stayed at an Al Qaeda guesthouse. Respondents base their training camp allegation largely on an intelligence report that the contents of a "document issued by the Office of Mujahideen Affairs" that, according to the report, "lists over 150 Al-Qaeda members scheduled for tactics, artillery, security, snipers and anti-aircraft training." JE 51 at 2.
Uthman makes three arguments regarding the training roster. First, he argues that respondents have not shown that Hudaifa is a kunya Uthman used. Second, even had they so demonstrated, Uthman asserts that the inclusion of "Abu" in the name on the list distinguishes it from the name by which Kazimi and Hajj referred to the photograph of Uthman. Abu means "father of," so the name immediately following it is normally the name of a man's first-born child, not his own name. JE 2 at 2. Uthman reasons that even if a man with no children uses Abu in his kunya to conceal his identity, the name following Abu would not be the same name he uses to identify himself in another kunya. Third, he points to references in the record of this case to two other men who used the alias Abu Hudaifa. See JE 154 at 1; JE 23 at 2.
The Court concludes that this evidence, although not necessarily unreliable, is not persuasive as to the contention respondents seek to support. As discussed above, there is no reliable evidence linking Uthman to the name Hudaifa. Therefore, the appearance of that name on the training list, especially without corroboration from any other source that Uthman might have been at a training camp, does not make it more likely than not that Uthman attended the tactics course. That Abu Hudaifa was an alias for other men, whether or not the particular men identified were likely to have attended this particular training, further weakens the proposition that the list itself can support respondents' allegation.
As to the guesthouse allegation, a summary of an interrogation of Richard Dean Belmar, ISN 817, indicates that when shown a picture of Uthman, Belmar stated that he "may have been a lower amir," or leader, "in the Kandahar guest house." JE 36 at 2.
Again, Uthman attacks all of respondents' evidence. Uthman discounts the recollection of Belmar, who (1) was not Arab, (2) indicated by saying the photo "may have been" of an amir that he was unsure of his statement, and (3) was not in Kandahar at the same time as Uthman. See PE 7 at 3 (summarizing Belmar's statements before the Combatant Status Review Board in November 2004, including an admission that he "traveled from the United Kingdom to Kandahar, Afghanistan around July 2001"); JE 10 at 2 (reporting that Uthman asserted he left Yemen for Afghanistan in March 2001 and about a week after arriving in Kandahar went to Kabul).
The allegation that Uthman was an amir at an Al Qaeda guesthouse is not as easily dismissed as the training camp allegation. Because Belmar's statement is not a definitive identification, it is not strong evidence of Uthman's presence at such a guesthouse. But it is not so unreliable that the Court disregards it entirely.
Respondents present a variety of additional evidence and arguments to support their case, and Uthman responds to each point. For example, Uthman argues that giving weight to the undisputed fact that he might have known some men who became involved in terrorism constitutes inappropriately permitting respondents to prove guilt by association.
Respondents also attach significance to the fact that Uthman traveled from Yemen to Afghanistan along a route—a flight from Yemen to Karachi, Pakistan; a stay at a hotel in Karachi; a bus from Karachi to Quetta, Pakistan; a ride to Kandahar, Afghanistan—that Al Qaeda members also took. See JE 103 ¶¶ 6-7 (recounting Uthman's trip); GE 7 at 1 (citing to interrogation reports of other alleged Al Qaeda members who described similar travel routes). Uthman asserts that travel to Afghanistan, which did not have a functioning international airport in 2001, required an indirect route, and proceeding on the same path as Al Qaeda members is not evidence of participation in Al Qaeda.
Uthman has not disputed the factual accuracy of most of these contentions, instead arguing that they are not sufficient to demonstrate that he is lawfully detained.
In sum, the Court gives credence to evidence that Uthman (1) studied at a school at which other men were recruited to fight for Al Qaeda; (2) received money for his trip to Afghanistan from an individual who supported jihad; (3) traveled to Afghanistan along a route also taken by Al Qaeda recruits; (4) was seen at two Al Qaeda guesthouses in Afghanistan; and (5) was with Al Qaeda members in the vicinity of Tora Bora after the battle that occurred there.
Even taken together, these facts do not convince the Court by a preponderance of the evidence that Uthman received and executed orders from Al Qaeda. Although this information is consistent with the proposition that Uthman was a part of Al Qaeda, it is not proof of that allegation. As explained, the record does not contain reliable evidence that Uthman was a bodyguard for Usama bin Laden or fought for Al Qaeda. Certainly none of the facts respondents have demonstrated are true are direct evidence of fighting or otherwise "receiv[ing] and executing] orders," Gherebi, 609 F.Supp.2d at 69,
Respondents have presented some evidence that, at first blush, is quite incriminating of Uthman and supportive of the position that he is lawfully detained. Upon close examination of that evidence, however, the Court finds that there is reason not to credit some of it at all and reason to conclude that what remains is not nearly as probative of respondents' position as they assert. Therefore, the evidence against Uthman is not sufficient to carry respondents' burden.
For the foregoing reasons, Uthman's petition for a writ of habeas corpus shall be granted. An appropriate order accompanies this memorandum opinion.