Al Halmandy v. Bush

Opinion

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

SABRY MOHAMMAD EBRAHIM ) AL-QURASHI (ISN 570), )

)

Petitioner, )

)

v. ) Civil Action No. 05·2385 (ESH)

)

BARACK OBAMA, et af., )

)

Respondents. )

-------------~)

MEMORANDUM OPINION AND ORDER

Petitioner Sabry Mohammad Ebrahim al-Qurashi, a citizen of Yemen. was atTested in Karachi, Pakistan by Pakistani authorities on February 7, 2002. Several weeks later, he was taken into U.S. custody, assigned intemment serial number ("'ISN") 570. and transferred first to Kandahar, Afghanistan and then to the naval base detention facility at Guantanamo Bay, Cuba ("Guantanamo"), where he has been held since May 2002. Al-Qurashi has tiled a petition for a writ of habeas corpus, contending that he is unlawfully detained. Respondents. who include President Burack Obama and other high-level goverm11ent officials, argue that al-Qurashi is lawfully detained.' They have filed a statement of the material facts upon which they intend to rely in making their case-in-chief for the lawfulness of al-Qurashi's continued detention C'Resps.' SMF"), which rests in large part on reports that summarize petitioner's statements to U.S. inten-ogators in Karachi, Pakistan; Kandahar, Afghanistan; and Gllantanamo that he attended the al-Farouq military training camp in Afghanistan.

UNCLASSIFIEOIIFOR PUBLIC RELEASE

UNCLASSIFIEDffFOR PUBLIC RELEASE

Before the Court is al-Qurashi's motion to suppress 011 the grounds that these statements were involuntary and procured through coercion and torture. C'Pet.· s Mot. ") As narrowed by prior rulings. the sole factual question before the Court at this time is whether petitioner was abused by the Pakistani authorities after his atTest in Karachi on February 7, 200~, but before his interrogation the next day by Special Agent of the Federal Bureau of Investigation ("FBI") .Toint Terrorism Task Force ("JTTF"), who was the first U.S. ofticial to question petitioner. On January 19 and 20, February 25, and March 25, 2010, the Court heard argument on the motion, received documentary evidence, and heard live in-court testimony fi:om Agent _ (See general~}' Hr'g Tr., Jan. 19-20,2010 ("Jan. Tr."); Hr'g Tr. Vol. 1, Feb. 25,2010 ("Feb. AM Tr."); Hr'g Tr. Vol. 2, Feb. 25,2010 ("Feb. PM Tr:'); Hr'g Tr.. Mar. 25,2010 ("Mar. Tr:').) Having considered the entire record, the parties' briefs, and their oral arguments, and for the reasons discussed herein, the Court will dcny petitioner's motion.

BACKGROUND

According to a declaration that al-Qumshi submitted with his traverse on November 17, 2009,2 he was raised in Saudi Arabia by Yemeni parents, he is a Yemeni citizen, and he is a pcmlancnt legal resident of Saudi Arabia. (Pet. Ex. ("PEX,,)3 1 ("Pet. Dec!. ") ~ I.) Petitioner asserts that after leaving middle school, he performed a number ofjobs, including selling toad and perfume in Saudi Arabia and Yemen. (M) It is lmdisputed that on or about September.

2 Pursuant to the case management order governing this case, petitioners must file "a traverse containing the relevant facts and evidence supporting the petition." Case Management

*

Onler as Amended ("CMO") LG, In re Glfantanamo Bay Litig" No. 08·MC-442 (D.D.C. Nov. 6 & Dec. 16. 2008).

3 Petitioner's exhibits were submitted with his traverse and as part of his motion to suppress.

UNCLASSIFIEOIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

Sf3Cftf3'f CLASSI:f?IEf)

2000, he t1ew from Yemen to Pakistan' s southem port city of Karachi where he checked into a hotel and met a fellow Arab named Abd al-Wahid,4 who suggested that they travel to Afghanistan together. (Pet.'s Traverse ("Traverse") at 3-4 ~~ 4-5: Resps: SMF ~ 3.) It is also undisputed that shortly thereafter, petitioner and Abd al-Wahid traveled to Afghanistan, where petitioner remained until late 2001 or early 2002, at which time he retumed to Karachi. (See Pet. Decl. ~~ I, 6- 7. 14; Resps.' SMF ~~3,21·22.)

1. PETITIONER'S DETENTION IN PAKISTAN -FEBRUARY 7 . 2002 A. Arrest - February 7,2002

(See Resps.' Ex. ("REX,,)6 137~eb. 20. 2002 Electronic Communication ('~C"») at 2-3 ( ; REX 21 at 4 ~ 6(A) (noting petitioner's comment that he was "captured at night"); see also Feb. AM Tr. at 122 _ "1'111 sure it was dark out when they did it."),)

(See Feb. AM Tr. at 20,

29,34, 125.)

4 The record contains various spellings for this individual's name, including "Abdul Wahid" and "Abdul Wahad."

6 Respondents' exhibits were submitted with their statement of material facts, with their opposition to the instant Illation, and pursuant to various discovery orders.

3

UNCLASSIFIEDIIFOR PUBL.IC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

Two of the men arrested with petitioner were Pakistani nationals who went by the names (see~C at 58-63), but they do not appear to have been transferred to American custody. The other fou11een arrestees were, like petitioner, later transferred to American custody and assigned ISN numbers. Public sources indicate that five of these men have been transferred to their home countries, while the other nine, listed below, remain in clIstody and have filed habeas petitions in this Court:

• .lalal Salim bin Amer ("Bin Amer"') (ISN 564), a Yemeni petitioner in No. 04-CY­ 1194 (Hogan, J.);

• Abdul Hakim Abdul Rahman Abduaziz al-Mousa USN 565), who was transfelTed to Saudi Arabia in 2007;

• Mansour Mohammed Ali al-Qattaa (ISN 566). a Yemeni petitioner in No. 08-CY­ 1233 (Huvelle, J.);

• Add Zamel Abd al-Mahsell al-Zamel (lSN 568), who was transferred to Kuwait in 2005;

• Suhail Abdu Anam (lSN 569), a Yemeni petitioner in No. 04-CY-1194 (Hogan, J.)

• Saad Madi Saad al-Azmi (ISN 571), who was transferred to Kuwait in 2005;

• Saleh Mohammed Selell al-Thabbii (ISN 572), a Saudi petitioner in No. 05-CY-2104 (Walton, J.);

• Rustam Arkhmyarov (aka Rustam Ahmadov Sulih Yanovie) (ISN 573), who was transferred to Russia in 2004;

• Hamoud Abdullah Hamoud Hassan al-Wady (ISN 574), a Yemeni petitioner in No.

08-CY-1237 (Urbina. .T.);

4

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEOIIFOR PUBLIC RELEASE

~ECltE'f CLASSlrIEI)

• Sa'ad Masir Mllkbl al-Azani (lSN 575). a Yemeni petitioner in No. 08-CV-2019 (Walton. 1.):

• Zahir Omar Khamis bin Hamdoun (TSN 576), a Yemeni petitioner in No. 05-CY-280 (Kessler, 1.);

• Abdulaziz al-Swidhi (lSN 578). Yemeni petitioner in No. 04-CV-1194 (Hogan. J.):

• Richard Belmar (lSN 817), who was transferred to the United Kingdom in 2005: and

• Sharqawi Abdu Ali Al-Hajj USN 1457}, a Yemeni petitioner in No. 09-CY-745 (LambeJ1h, C..1.).

(See general~v id at 3-58.) See also The New York Times - The Guantanamo Docket. at http://projects.nytimes.comJgllantanamo (last visited Aug. 2.20 10).

B. AlIe~ed Coercion of Petitioner by the Pakistani Authorities - February 7-8, 2002

Al-Qumshi alleges that the following events occurred after his an'cst in the early moming hours of February 7. 2002. all of which are disputed by respondents:

After his ancst, the Pakistani authorities took petitioner and the sixteen other men to a 'jail" in Karachi. (Pet. Dec!. ~ 17.) At some point, petitioner's wrists and ankles were bound with rope that "cut[] into his skin:' (PEX:2 ("2nd Bhargava Decl.") ~ 40) (relating allegations communicated by petitioner); see also PEX.2A ~.2 (petitioner's aftinnation of truth of infOlmation in PEX 2 ~~ 2-4).) Pakistani intclTogators told petitioner that he would be turned over to the Americans, who "would never believe that [he] had traveled to Pakistan and Afghanistan for peaceful purposes." (Pet. Dec!. ~ 18.) They also told him that he had to admit to one of three things: (1) being a member of al-Qaeda, (.2) going to Afghanistan to tight for the Taliban, or (3) going to a military training camp. (Id.) Although petitioner "told them repeatedly that none of these things was true," they told him that "if fhe] admitted to one of these

5

UNCLASSIFIEOIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

SF:CftF:'f - CLASSIPIEB

three things, [he] would not be tortured and [he] would be handed over to [his] country." but if he did not admit to any of these things...the Americans would t011ure [him] until he confessed." (Ill.)

Petitioner "could hear people being tOltured in surrounding cells." and ''[o]n batluoom breaks, [he] witnessed other people being tortured when [he] was escolted through the hallways and glanced into other cells:' (Pet. Decl. ~ 19.) For example. he saw Anam (ISN 569) "pinned face·tlrst against a wall. hanging by his hands" (id. ~ 20), and also heard the screams of others ··through the cell walls." including screams fro111 someone whom he believed to be Bin Amer (lSN 564), who "looked like he had been beaten up" when petitioner saw him after Bin Amer's interrogation sessions. (fd. ~ 21.)

Petitioner persisted in asserting his innocence. (See Pet. Decl. ~ 23.) One of the intenogators then "threw an ashtray at [him]. hitting [him] in the chest": after this, one interrogator "restrained [him] from behind while another slammed [his] head into the table." and they also "repeatedly punched [him] in the stomach:' Uti) Petitioner refused to confess. so the interrogators "threw [him] on the floor and continued to beat [him]," with one of them "put[ting] his knee on [petitioner's] head and threaten[ing] to administer clectroshocks or worse if [he] did 110t confess," (Ill. ~ 24.) Because petitioner still refused to confess, the interrogators "forced [him] to kneel tacing a wall and told [him] not to move:' (lei. ,; 25,) At this point, all but one of the interrogators left the 1'00111, with the remaining interrogator forcing petitioner to stay kneeling "for a long time" and striking him with a cane if he moved. (lei.)

"Later;' the interrogators told him that "if [he] did not pick one of the three options. they would accuse [him] of all three:' (Pet. Dec!. ~ 26.) When he refused to pick. "[tJhey tied a black

6

UNCLASSIFIEOIIFOR PUBI.IC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

S~eft~T CLAS~IFIEf)

bag over [his] head," ··tied [his] hands and teet behind [him];' and then "beat [him] severely, including hitting [his] head:' causing him to "thr[o]w up blood and losee] consciollsness." (Iti) Upon waking up, petitioner was thrown onto the floor and lost consciousness again. (ld. ~ 27.) The next thing he remembers is "being forced down some stairs where the intenogators removed the hood and ropes" and being told to "wash in a sink," because he "was covered in blood." (ld.)

Next, "[t]wo new intenogators" told al-Qurashi that they had spoken to the Yemeni embassy and that be could return to Yemen if he spoke to the Americans. (Pet Decl. ~ 28.) He was told that the Americans "did not care if people said they went to training camps." so long as they "did not join al-Qaeda," (ld.) The interrogators promised him he "would be freed if [he] confessed to going to" the al-Farouq training camp in Afghanistan. but that he "would be detained and tortured indefinitely if [he] did not." (Ill. ~~ 28-29.) "Because [he] had endured so much abuse already" and "was atraid the Pakistanis and the Americans would continue to torture [him], [he] finally agreed to falsely confess to going to a1 Farouq." (ld. ~ 29.) In order for petitioner to give the American interrogators "a convincing story" (id. ~ 28), the Pakistani interrogators "showed [him] a thick stack of photographs" of al-Farollq and "gave [him] information about the camp. including the names of its leaders and the process of getting to the camp." (fd.'; 30.) They then "arranged for the Americans to interrogate [him)'" (itt.). which occllned on the afternoon of Febrllary 8, 2002.

C. Initial Statement to U.S. Officials

andlor _of (See_ EC at 1, 3; Feb. AM Tr. at 22-23.)

7

UNCLASSIFIEOIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

SECRET CbhSSIFIEB

(See _ EC at 2: Resps.' Response to Court's Oral Order of Mar. 25, 2010 at 1 ~ 1; Feb. AM Tr. at 69.) _

(Feb. AM Tr. at 21,61: see generally_EC.)

See Feb. AM Ir. at 109.)

_(See~C at 22-24: Feb. AM Tr. at 23-24; Feb. PM Tr. at 29: REX 62 ( ' _ Decl,"') ~ 7; REX 130 at 10 (translator's interview notes).)

_ _ ECat23),

_ ( S e e ill at 23.)

, Prior to giving testimony in Court,_lad also submitted a declaration that accompanied respondents' opposition to the instant motion. The declaration is consistent with his live testimony.

8

UNCLASSIFIEOIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

SEekE 1 - eCASSIF I£D

(1£1.) EC,_

8 "Kabul," "Logar," "Khost," and "Paktiya" (or "Paktia") are names of Afghan provinces.

See CIA - The World Factbook - Afghanistan. at http://www.cia.gov/library/publications/the­ worJd-factbooklgeos/af.html (last visited Aug. 2. 2010) C"Administrative divisions"); see also Wikipedia - "Afghanistan," at http://en.wikipedia.org/wikilProvinces_ot'-Afghanistan (last visited August 2, 20 I 0).

9

UNCLASSIFIEOIIFOR PUBLIC RELEASE

II. PETITIONER'S DETENTION IN AFGHANISTAN ­ OMAVI 2002

~ecl. ~ 6.) Around etitioner arrived at an American military base in Kandahar, Afghanistan. (See REX 30 (intake fonn) at 2.) During intake, (ill. at 1.)

In March 2002, al-Qurashi was interrogated on at least three separate days. (See REX 11 repol1); PEX 64 'epOl1); PEX 65 ( epOl1).) Like the _ Ee, the reports from the tirst two of these interrogations state that petitioner admitted attending the al-Farouq camp. The third repol1 focuses on petitioner's flight f1'om Afghanistan and his stay at the Karachi safehouse, although it also states that petitioner "is barely functionally literate" and that in the intel1'ogator's opinion, petitioner "is not pro1 of a larger conspiracy." (PEX 65 ~ 3.)

10

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

SECRET CLASSIFIEfl

In addition, al-Qurashi now alleges that while he was in Kandahar, U.S. officials abused him by, infer alia, tlu-catcning him with dogs; stripping him naked making him lie on his stomach, tying his legs and hands behind him, and then yanking him up by his hands, "nearly pulling [hisl arms from their sockets"; stripping him naked and placing him outside in the cold; and placing a gun to his head and threatening to shoot him if he did not "confess to being ,U1 important part ofal-Qaeda." (Pet. Decl. ~~ 31-33.)

III. PETITIONER'S DETENTION IN GUANTANAMO BAY - ~O PRESENT

Around May.2002, al-Qurashi was transfcned to Guantanamo and "inprocessed." (See REX 64 (Final Narrative Medical Summary) at 1.) •

6 I 3

(ld at 466.)

al-Qurashi was interrogated on at least nine separate days by officials ii'om various U.S. govenunent entities. (See REX 81 (by military personnel REX 7 (by military

11

-

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

lIand by FBI, military SI!:CftE'f - CLA:SStf'tI!:6

REX 8 (by FBI

;­

_;PEX

71 (by military persOl1nel_; REX 79 (by FBI and military personnei_.) The repol1s 1'1'0111 these sessions consistently state that petitioner told his intenogators that he attended aJ-Farouq. notwithstanding other discrepancies in his reported statements.\)

On September 11. 2002. al-Qurashi recanted his earlier inculpatory statements and denied that he ever attended al-Farouq. reportedly stating that he originally incriminated himself because the "Pakistani authorities threatened him with torture unless he admitted to attending the training camp at Al Farouq" and that they "promised his release if he said he trained [there]." (PEX 66 (FD-302 of Sept. 13.2002) at 1-2; see also REX 55 (identical intelligence report) at 2 ~~ 5-6).) But "now that the Department of Justice [was] interviewing him. he want[ed] to teU the truth ...." (PEX 66 at 1-2.)

A week later all September 20, 2002, aI-Qurashi reaffirn1ed that his post-arrest inculpatory statements were false and were the pr~dllct of coercion. and that "he leamed details abollt the Al Farouq camp from Khalid Dossieri, a Saudi. who was staying at a guest house in Kabul ...." (REX 32 at 1.) In all subsequent interrogations, petitioner continued to disavow his initial statements about attending al-Farouq. (See REX 110 tstatements ; REX 113 (same); PEX AA : REX III ( ; REX 19 ( REX

9 Petitioner also claims in his recent declaration that during these intelTogation sessions, he continued to say that he had attended al-Farouq because interrogators promised they would release him if he did not change his story and told them what they wanted to hear, and because they threatened that ifhe did change his story. they would do "bad things" to him, including placing him in solitary confinement or sending him "somewhere he would never see the sun," (Pet. Decl. ~~ 36·37.)

12

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

108 ; REX 107 _:REXl16 ) Iti He also claims in his recent declaration that in the period after he recanted, he was abused by officials at Guantanamo. (Pet. Decl. ~ 41.) For example, he alleges that he was placed for \veeks at a time in a room without fU11liture, and that the room was often flooded with freezing cold water, or that its temperature was lowered until it was freezing cold. (Id.) He also alleges that he was placed in a cell where guards threw "concentrated cleaning products" that made him feel like he was suffocating. (ld. ~ 42.)

On August 3, 2005. al-Qul'ashi testified at a hearing before the military Administrative Review Board ("ARB"). (See REX 15 (ARB hearing transcript): see also REX 42 (ARB hearing audio recording).) There. he stated that the Pakistani authorities got him to admit that he had attended al-Farouq because he was afraid they would torture him. (See id. at 5_6.)11

was, Iso interrogated

See REX 1\9 at 2.) REX 12\ also indicates petitioner was interrogated (REX 121 at 1 ~ A.) The record does not contain any reports from those days. so t lere IS no record of what petitioner said during those interrogation sessions.

II At the ARB hearing, when presented with the charge that he had trained at al-Farouq and had identified "Abu Muhammad a1 Musri" as the camp's leader, petitioner stated:

Yes, I said that to the Pakistani inten·ogators. Not Pakistani intelTogators. [but]

American interrogators in Pakistan. And what I said [to the American interrogators] was because the Pakistani interrogators wanted me to say that.

When [the Pakistani interrogators] arrested me they took me to a building and they divided us. They put me in a room [with] three people in front of me. I was sitting on a chair and next to me was a Pakistani interpreter. They asked me to tell my story. I told them my story about Illy mission ... coming to Afghanistan to teach Islamic rule. The Pakistanis told me after I gave them my whole story ..

. they told me the American inteITogators are going to ask [your story] and they are not going to believe that [havc told us]. You [will say] you went for Jihad and to fIght for the Taliban. They said they would force me to say this. [1 asked thcm] why [they] were forcing me to say what [they] want me to say? They said

13

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEOIIFOR PUBLIC RELEASE

SECItE'f • CLASSIPIE8

I2

IV. THE INSTANT LITIGATION

On December 13. 2005. a habeas petition was filed in this Court on behalf of al-Qurashi and other detainees by counsel from the Center for Constitutional Rights. In February 2009, petitioner's CUlTent counsel, attorneys at the law !inn of Winston & Strawn LLP, entered their appearance. Michael Bhargava, who argued the instant motion for petitioner, traveled to Guantanamo tUld met with petitioner tor the first time from July 7 through July 9. (See REX 59 ('"I st Bhargava Oecl.'') 4jf 6.) On July 20, respondents tiled their statement of material facts. Bhargava again met with petitioner at Guantanamo on August 26 and 27. (ld.)

On September 9, 2009, al-Qurashi filed a sealed motion to compel respondents to

because the Americans ... if you don't say what we are saying to you ... you know there are no rules 01' system to defend you. We will stal1 torturing you until you say what we are telling you to say to the (Americans]. [If you do] you will be released. They said that has happened with some other Saudi people ... we have arrested some other Saudis and they did what we asked them to do and they left.

They promised me they would keep their word. I didn't go for jihad and I don't know ... they said just say I went there for military training [and] it would be [easier] for me. I told them if! say that, then they are going to ask me who trained me and where ... I need infonnatiol1. They said they would give me simple infoll11ation because our intelligence works with those people in the camps. We have information and we can give it to you. I asked them if each of them promised and they [all] said yes. They brought some pictures and showed them to me and they said if they ask you who is the prince of the camp say Abu Muhammad AI Musri. [They also said [ need to appear to be telling the truth to the Americans. J Also [they said not to] tell the Americans that I have been interrogated by [the Pakistani interrogators]. The only thing that made me agree with them was that I knew (they had tortured some people with us], and this made me nervous. This is my story.

(REX 15 at 5-6 (brackets and ellipses in original).)

12 The Court is grateful to petitioner's counsel for their pro bono representation of petitioner under extremely difficult conditions. The C01l11 acknowledges their excellent work, their professionalism, and the tremendous eft"l)J't that they have made on their client's behalf throughout these proceedings.

14

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

produce, inter alia. evidence that he had been "tortured and otherwise mistreated by this Pakistani and American captors ...." (Pet. 's Sealed Mot. to Compel (Dkt. 356) at 1-2)13 Accompanying that motion was a declaration by Bhargava which summarized the allegations of torture that petitioner had related to coullsel during their July and August meetings. (See generall" 1st Bhargava Dec!. ~ 6.) According to Bhargava, "this was the tirst time that [petitioner] had the oppoltunity to discuss what happened with counsel representing him, [so] he provided significant information that he had never before disclosed." (ld.) Many of the details alleged by petitioner are repeated in his subsequent November 2009 declaratioll, discussed above. (See supra Section LB.) According to Bhargava's declaration, petitioner told him that after his anest, the Pakistanis "detained him for several days." dm-ing which he was told to make incriminating statements to the Americans, or else "the Americans would torture him until he confessed." (1st Bhargava Decl. ~ 6(b).) Petitioner refused to confess, so he was beaten by his captors and made to kneel in a corner "overnight.'· (ld. ~,-( 6(d)-(e).) "On the next day." he again refused to confess. so he was beaten and soon lost consciousness - only to revive, be beaten again, and lose consciousness once more. (ld. ~ 6(t).) After reviving and washing up, he met with two new Pakistani inten'ogators who guaranteed his freedom and promised that he would retum to Yemel1 he if spoke to the Americans for a few hours and told them that he had attended al-Farouq. (1d. ~ 6(g).) Having endured "several days of beatings and false assurances," petitioner "relented and agreed to make a false confession." Ud.) The interrogators fed him details about al-Farouq, "including the process of traveling to and registering for the camp," and

13 The Court granted the motion to compel in part on October 6,2009, requiring, inter alia, that respondents produce petitioner's statements, any interrogation logs that referenced him. and any medical records or photographs of petitioner that were created before October 1, 2002.

15

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

SECMT - CLASM'IED

then they turned him over to the Americans. after which he was transferred to Kandahar and Guantanamo. where he was further abused. (See id. ~1~16(11)-{m).)

On November 25,2009. al-Qurashi filed his traverse. That same day, respondents moved to stay the proceedings On December 9. petitioner moved to suppress his statements prior to his recantation in September 2002 on the ground that they are the product of coercion and torture in Pakistan, Afghanistan, and Guantanamo. The motion to suppress also seeks to exclude other documentary evidence as insufficiently authenticated.

On December 10.2009, the COllrt denied the govenunent's motion for a stay. The Court, however, bifurcated the proceedings and limited the upcoming hearing to consideration solely of "the question of petitioner's motion to suppress evidence relating to the govemmenfs allegation that petitioner \nlS present at the al-Farauq training camp:' (Dec. 10,2009 Order at 3.) Subsequently, respondents filed their opposition to the instant motion and petitioner t11ed his reply.

On January 19 and 20, 2010, the Court heard argument on the instant motion to suppress.

The hearing was continued until February 25 and March 25, so that the Court could hear testimony from Agent _ and the parties could submit additional documentary evidence not previously included with their briefs. Tlu'oughollt these proceedings. petitioner was offered the opportunity to participate via telephone and to testify via video conference. According to his counseL petitioner elected not to testify or to listen to the proceedings. (Se£' Jan. Tr. at 3; Mar. Tr. at 7.)

16

UNCLASSIFIEOffFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

S£€Ri!'i' €LAftSIPI1!!8

ANALYSIS

Having reviewed the voluminous documentary evidence introduced by the parties and the declarations and Jive testimony presented at the hearing, the Court will now proceed to set forth the goveming legal standards and will then apply these standards to the facts as found by the Court. I. LEGAL STANDARDS RELATING TO CLAIM OF COERCION Some interrogations can be "SO inherently coercive that [their] very existence is irreconcilable with the possession of mental tl"eedom by a lone suspect against whom [the govenunent's] full coercive force is brought to bear." Ashcr£?ft v. Tennessee, 322 U.S. 143, 154 (1944). When a criminal suspect is subjected to a coercive intelTogation and then confesses or incriminates someone else, courts may properly exclude such inculpatory statements because of

their "probable lUue1iability." Jackson v. Denno, 378 u.s. 368,386 (1964). and the concomitant '''likelihood that the confession is untrue,''' United States v. Kamke, 443 F. Supp. 2d 8,51

(D.D.C. 2006) (quoting Linkletter v. Walker, 381 U.S. 618, 638 (1965): accord .J\;/ohammed v. Ohama, No. 05-CV-1347, 2009 WL 4884194, at *23 (D.D.C. Dec. 16,2009) C'[A]s a practical matter, reS0l1 to coercive tactics by an interrogator renders the infol1l1ation less likely to be true."); see also Rogers v. Richmond. 365 U.S. 534, 541 (1961) ("To be sure, confessions cruelly exto11ed may be and have been. to an unascenained extent. fOllnd to be untrustwolthy:'). For this and other reasons. [4"[0] coerced confession is offensive to basic standards ofjustice ...

14 It is also well established that in criminal proceedings, statements of the accused "that are 'extracted by threats or violence' violate the Due Process Clause," Karake, 443 F. Supp. 2d at 51 (quoting Hutto v. Ross, 429 U.S. 28, 30 (1976»), because such statements are '" [in]consistent with the fundamental principles of Ii bel1y and justice which] ie at the base of all

17

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

S:ECRE'f - CLASSIF'IEB

because declarations procured by torture are not premises from which a civilized forum will infer guilt." Lyons v. Oklo/wlna, 3:!2 U.S. 596,605 (1944).

The same concerns for a statement's reliability are applicable here. "The habeas court must have sufticient authority to conduct a meaningful review of' not only "the Executive's power to detain" but also the underlying "cause for detention." Boumediene v. Bush. 128 S. Ct. 2229.2270 (2008). Accordingly, this Court's power to issue the Great Writ must necessarily encompass the power to reject a statement - whether by a petitioner or by a witness against him - as an invalid basis for detention if it is the unreliable product of coercion. See. e.g., Bocha v. Ohoma, No. 05-CV-2385, 2009 WL 2149949, at *1 (D.D.C. July 17,2009) (granting as conceded petitioner's motion to suppress post-arrest out-of-court statements as products of torture); Mohammed, 2009 WL 4884194, at *27 (excluding witness's statements that incriminated petitioner because those confessions "d[id] not represent reliable evidence to detain Petitioner"); ...lila Ali Bin Ali Ahmed v, Ohoma. 613 F, Supp. 2d 51, 58 (D.D.C. 2009) (refusing to credit interrogation statements for witness against petitioner where court could not "infer that past instances of torture did not impact the accuracy of later statements"); Norger; v. Obama, 612 F. Sllpp. 2d 45, 48 (0.0.c. 2009) (ordering production of "evidence that indicates a statement is unreliable because it is the product of abuse [or] torture").

"The ultimate test" for detenllining whether a statement was coerced is "the test of -------_._--------------_._~-

v. Mississippi, 298 U.S. 278, our civil and political institutions .... ", lei. at 50 (quoting Brown 286 (1986». However, it remains uncertain to what extent the Due Process Clause applies to the detainees at Guantanamo Bay. CJ Kiyemba v. Oboma, 555 F.3d 1022, 1026 (D.C. Cir. 2009) (stating in dicta that "the due process clause does not apply to aliens without property or presence in the sovereign teliitory of the United States"), reinstated as amendedfollowing vacatur as moot. 605 F.3d 1046 (D.C. Cir. 2010).

18

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

SECftR' CLASSIFIRB

volulltariness." CII/o1J1he I'. ConnecticlIt. 367 U.S. 568. 602 (1961). This requires the Court to ask whether "the confession is the product of all essentially free and unconstrained choice by its maker," or whether "his will has been overborne and his capacity for self-detenllillatioll [has been] critically impaired ...." Jd. The answer to this question is detcl1uined by considering "the totality of all of the surrounding circumstances - both the characteristics of the accused and the details of tIte interrogation." Scll1Ieckclolh v. Bus/amante, 412 U. S. 118, 226 (1973); see. e.g.. Mohammed, 2009 WL 4884194. at *23 (determining voluntariness of statements based on totality of circumstances): Esmail v. Obama, No. 04-CV-1254,2010 WL 1798989, at *3 n.3 (D.D.C. Apr. 18,2010) (same); A/-J1adhwani v. Obama, 696 F. Supp. 2d 1,7 (D.D.C. 2010) (same). Thus, a COllrt may consider the interrogated party' s age, level of education, and intelligence, as well as physical mistreatment or credible threats thereot~ psychological abuse, and the conditions ofcontinement. Schneckclorh, 412 U.S. at 226: Arizona v. Fulminan/e, 499 U.S. 279. 287 (1991): Karake, 443 F. Supp. 2d at 51.

The case management order that govel1lS this case provides that "[t]he govel1lmel1t bears the burden of proving by a preponderance of the evidence that the petitioner's detention is lawful.'· CMO § Il.A. Consistent with other decisions involving Gualltanamo detainees, this Court will assume that the govemment must prove the voluntariness of petitioner's statements by a preponderance of the evidence. is See. e.g., Mohammed, 2009 WL 4884194, at *23 ("The

15 Respondents argue that "'[i]n a federal habeas action, the burden of proving that the confession was involuntary rests with the petitioner.'" (Opp'n at 1 (quoting Boles v. Foltz, 816 F.2d 1132, 1136 (6th Cir. 1987». However, this argument is premised upon inapposite case law thal only pertains to habeas in the context of collateral attacks upon a prior conviction in a court of law. See. e.g., Jorms/on v. Zerbs/, 304 U.S. 458,468-69 (1937) ("It must be remembered. however, that ajudgmen/ cannot lightly be set aside by collateral attack, even on habeas corpus.

19

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

SECRE'f = CLASSIFIEB

government bears the burden of showing that the confessions are voluntary."); Al-Rabiah v. United States. 658 F. Supp. 2d 11,36 (D.D.C. 2009) (concluding that "the Court has no basis to tind, by a preponderance of the evidence, that the confessions that [the petitioner] repeated in 2004 are reliable and credible"); Ahmed, 613 F. Supp. 2d at 58 (declining to infer accuracy of witness's later statements where govenunent did not present evidence '·to dispute the [witness's] allegations of torture"); AJ-lvfadhwani, 696 F. Supp. 2d at 6-7 (concluding that petitioner's confessions in Afghm1istan "were the product of coercion" where government "made no attempt to refute" - and in fact con'oborated - petitioner's deSCl;ptions of abusive treatment there. and noting that ··[t]he burden is on the goverrul1ent to demonstrate that each subsequent confession was not a product of coercion"). II. FACTUAL FINDINGS Although AI-Qurashi does not deny having told his American interrogators that he had attended the al-Farouq training camp, he argues that those statements were the product of coercion. AI-Qurashi contends that upon his alTest. he was "brutally beaten and threatened with worse" by the Pakistani authorities, and that "[u]nder the threat of continued torture and a false promise of relief if he confessed, [he] eventually agreed to tell thc Americans that he was at al

When collaterally attacked, the judgment vfa court calTies with it a presumption of regularity:' (emphases added». By contrast, al-Qurashi's petition for habeas is an attack upon the legality of his extrajudicial detention, and thus, unlike a typical habeas petitioner, he never "acuiqesce[d] in a trial resulting in his convicti011 ...." Id. at 468: cf Boumediene, 128 S. Ct. at 2269-70 (distinguishing "the postconviction habeas setting" from the habeas context at issue. in part because the safeguards afforded by judicial hearings are "not inherent in executive detention orders or executive review procedures"); Al-Bihani v. Obama, 590 F.3d 866, 877 (D.C. Cir. 2010) ("[1]11 the shadow of Boumediene, courts are neither bound by the procedural limits created for other detention contexts nor obliged to use them as baselines from which any departures 111ust be justified:').

20

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDflFOR PUBLIC RELEASE

SECRET' = CLASSIFIE.B

Farouq." (Mem. in Supp. orPet.'s Mot. (""Mem.") at 25-26.) He also alleges abuse by U.S. ot1icials in Kandahar and Ouantanamo. As a consequence, he argues, the Court should suppress his statements to U.S. interrogators in Karachi, Kandahar, and Ouantana111o as involuntary. However, as explained herein, it is lumecessary to detemline whether petitioner was in fact mistreated in Kandahar or Ouantanamo. (See also Mar. Tr. at 4.)

Approximately 36 hours after his an'cst in Karachi. al-Qurashi told Agent_ that he had attended al-Farouq. If this statement is found to have been \'o!lmral)', the issue of the

Conversely, if petitioner's statement to_ voluntariness of later statements that he attended aJ-Farouq would be rendered irrelevant.

was involuntmy because the Pakistani authorities abused and t1u'catened him, then any subsequently consistent st<:1tcmcnts made in Kandahar and Guantanamo could arguably be tainted by that initial torture, regardless of whether he was fUl1her mistreated in those other locations. See Karake. 443 F. Supp. 2d at 86-87; Lyons, 322 U.S. at 603 ("The effect of earlier abuse may be so clear as to forbid any other inference than that it dominated the mind of the accused to such an extent that the later confession is involuntary."). Under either scenario, the Court's focus is appropriately limited to petitioner's allegations oft011ure while in Pakistani custody just prior to his interrogation by Agent_ on the afternoon And, in deternlining the credibility of these allegations as to voluntariness, the Court 111ust engage in "a fact-specific inquiry that depends almost entirely on an assessment of the credibility of the witnesses" to the events of February 7 and 8, 2002, Karake, 443 F. Supp. 2d at 54. as well as any reliable documentary evidence. These witnesses are Agel1_ petitioner, and the individuals who were arrested with him.

In performing this task, the C01ll1 has considered remus of documentary evidence.

21

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

including interrogators' reports of statements by petitioner and other detainees who were arrested on the same day. declarations by govenUllent officials. declarations by other detainees offered in this and other habeas actions. and third-party accounts of Pakistani governmental agents' abuse of suspects in custody. Iii Both pat1ies have also offered opinions of medical experts who have reviewed petitioner's medical records from Guantanmno and the photograph of him in Kandahar. Finally. the Court heard live testimony ti'om Agell_. And. as noted. while petitioner did not testify, the Court considered his November 17. 2009 declaration (PEX 1); his statements to counsel that were relayed tlu-ough Bhargava' s declarations of September 4 and November 25, 2009 (see 1st Bhargava Dec!.; 2nd Bhargava DecL), the second of which petitioner declared to be true (see PEX 2A): and his post-recantation statements. particularly those ti'om his August 2005 ARB hearing, which were made under oath. (See REX 15 at L 5·6.)

For the reasons discLlssed below. the COl.ll1 is persuaded that A g e n t _ testimony is to be credited and that this testimony, as elaborated upon herein, in conjunction with other evidence. sustains the govenmlcnfs burden of establishing voluntariness. The C0U11 also tinds, as Judge Kennedy did in Esmail, that petitioner's "descriptions of abuse, particularly the ones made to his attomeys Sh0l11y before the merits hearing, are exaggerated:' see 2010 WL 1798989, at *5, and therefore, they canl10t be credited. Finally, the Court finds that the statements of petitioner's fellow alTcstees and the other evidence before the C01ll1 do not undercLit the govenunent's evidence ofvoluntariness. Thus, the Court must reject petitioner's claim that his

22

UNCLASSIFIEDIfFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

SECRE'f =CLASSIFlE8

statements to Agent_ were the involuntary product of torture by his Pakistani captors, and it will therefore deny petitioner's motion to suppress.

A. A g e n t _ Testimony 1. Intel-view with petitioner

(ld at 1 6 ; _

Dec!. ~ 2.)

- (See

..-­

Feb. AM 1'1'. at 18; Feb. PM Tr. at 3.)

(See Feb. AM Tr. at 75, 123-24. 129-30.)

- _Ud. at 75. 123.)

-

-

(feb. PM Tr. at 29.)

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

-

Tr. at 23. 76: see~C at 41-45.) Agent_ was present and took n o t e s . _

(Feb. AM Tr. at 23, 76; Feb. PM Tr. at 31.)

(Feb. AM

(See

_ EC at 41: Feb. PM Tr. at 29.)

-

AM Tr. at 28; Feb. PM Tr. at 4.)

[8 (Feb.

-

24

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIlFOR PUBLIC RELEASE

SECftE'f • CLA:SSIFIE!:8

(Feb. AM Tr. at 44·45.)

ld. at 22,53.)

(Feb. AM Tr. at 44.)

(id. at 52, 59-61.)_

(Id. at 45-47,55.) _

(lei. at 54-56, 60.) (ld at 60.) See Feb. PM Tr. at 30.)

(Feb.

AM Tr. at 77-78: see also id. at 96-97 _ , the t1'a11s1ato

took notes. (See REX 1 2 4 _ interview notes); REX 130 at 10-11 (translator's notes)

25

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

SECMT - CLASSIPIEB

19

-

(Feb. PM Tr. at 29-30.)

_ ( F e b . AM Tr. at 33,47-48; Feb. PM Ir. at 5.)

Id. at 34.)

(ld. at 16,69.) (Id. at 8.)

2. _ testimony is credible and reliable Based on A g e n _ demeanor and the substance of his testimony, the COUIt finds him to be a credible and reliable witness who had the incentive and opportunity to observe whether al-Qurashi manifested any evidence of having been tortured ill the

Fil'st_ was required to Feb. AM Tr. at 34),

' _ notes are largely consistent with his EC, and both materials record petitioner's statement that he attended al-Farouq. Although there are several discrepancies between_lOtes and his EC, the two documents are consistent with respect to petitioner's statement that he received training at al-Farouq.

26

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIfFOR PUBLIC RELEASE

SECRE' Ct,,'SSIFIE8

(ld. at 37.) _

Feb. AM Tr. at 37.)

-

(ld. at 38.) As_ (1d.)_

Feb. PM Tr. at 7

(Feb. AM Tr. at 38.)

Second, the record shows t h 3 _ acted in confonnity with his instmctions to vigilantly report signs of mistreatment. Although most arrestees did not bare any visible signs of injuries "that warranted being noted in [his] notes" (Feb. PM Tr, at 7), there were two exceptions.

(Feb. AM Tr. at 93-94; see _ Ee at 9.)

•

Ee at 35; Feb. AM Tr. at 94-95.)

Third, although_ saw no visible signs of abuse on al·QurashL he had ample

27

UNClASSIFIEDllFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

SfJeltEy E eLASSIFlfJ6

opportunity to observe petitioner and his demeanor. For about two hours. he and al-Qurashi sat only a few feet across from each other at a coffee table. During this time. _ _

(See. e.g.. Feb. AM Tr. at 44-45.52.55.)

(It/. at 45. 52. 59-60.)

(see id. at 60-61 )

( S e _ EC at 22-24; REX 1 2 4 _ interview notes) at 3-7.)

FOlllth._ had a clear memory of his interview with al-Qurashi. He testitied to very specific details about the compound, the particular 1'00111 in which he conducted interviews, down to its tile floor; what he wore during the interview; what petitioner wore and the path he took in walking to a seat next to the translator;

_ also had reason to remember

petitioner in particular. He testified.

So _ _

and the interview commenced with the

assistance of the translator." (lei at 53.)

-

(See Feb. PM Tr. at 28-29.) It is

also reasonable to conclude that al-Qurashi's interview was memorable and distinct fr0111 that of _ because unlike_etitioner did not speak English. so this was the 11rst an-estee

28

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

SECftE'f CLASSIfiED

interview where_ required an interpreter. 2o (See Feb. AM Tr. at 15.) _ further testified that petitioner's interview was distinctive (ld fit 53.)

Finally, _ medical training and related experiences also help to C0l1'oborate the reliability of his observations. From 1969 through 1973,_ served in Vietnam with the U.S. Navy as a hospital corpsman. (See Feb. AM 1'1'. at 8, 10, 13.) His training included patient care, emergency care, and aviation medicine, as well as Survival, Evasion, Resistance, and Escape ("'SERE") training, during which he was subjected to abusive inteliogations, simulated drowning, and ovemight stress positions. (See id at 10-13.) While serving in Vietnam,_ helped perform physicals, treated wounded soldiers, and treated local civilians during trips to their villages. (See id at 13-14.) After his discharge,_ecame the evening manager ofa 300-bed civilian hospital and saw injured people "[e]very day." (ld. at 14-15.) This history makes it particularly likely t h a t _ was able to accurately observe the physical and mental conditions of the alTestees whom he interviewed.

3. Petitioner's arguments for not crediting_ Although petitioner's cOlmse! has candidly acknowledged that Agent_ was "conducting his job in good faith" (Mar. Tr. at 53), he nonetheless argues t h a _

(Feb. PM Tr. at 22.) This testimony is cOlToborated by allegations in civil suit (see PEX X ~ 132), as well as a 2005 British newspaper report that quotes an unnamed senior U.S. official as saying, " _ w a s insistent he had not been involved in any fighting, and when we asked if he would be willing to assist us in the war against tenor, 1thought he might be willing to try.'" David Rose, Beatings. sex abuse and torture: how MIS left me to rot in US/ail, The Observer, Feb. 27, 1005, at 11, available at http://www.guardian.co.uk/politics/2005/feb/27/guantanamo.usa (last visited Aug. 2, 2010).

29

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEOIiFOR PUBLIC RELEASE

9ECltE'f CLASSlfIE6

testimony is not reliable becaus_ could not have remembered how petitioner looked eight years ago, especially given the brevity of their encounter and the stressful conditions under which_ and his colleagues were working. (See id. at 43, 53.) The Court disagrees. As noted,_las demonstrated a vivid memory of many details of the inten·ogatiol1. Not only did he give a detailed account of its circumstances. but he explained that he specifically remembered his interview of petitioner due to the novelty of the situation and because of petitioner's defiant attitude - unique among the arrestees - in refusing to be interviewed. lIIIIIIIintheroonl.

Petitioner further argues that even i_ testimony were reliable, it is not relevant becaus_ acknowledged that he had no personal knowledge of petitioner's pre-interview detention, that he did not inquire into petitioner's treatment in Pakistani custody, and that he did not conduct an examination looking for injuries. (See. e.g.. Mar. II'. at 44-45, 54.) Petitioner argues that based on these facts and the decision in Uthman v. Obama, No. 04-CY-1254, 2010 WL 1626073 (D.D.C. Apr. 21. 2010) (Kelmedy. .1.), where two detainees' statements were found to be involuntary despite a goverlUnent interviewer's testimony that. observed no signs of torture,21_ testimony CUllliot establish anything meaningful about the circumstances of

21 In Ulhman, the Court granted the detainee's habeas petition after discounting, as products ofto11ure. incriminating statements about Uthman that two other detainees had made to a military investigator at the U.S. detention facility in Bagram, Afghanistan. Both detainees (one of whom was al-H~i.i (lSN 1457)) alleged that they had been physically tortured while in American custody. See 2010 WL 1626073, at *4. The investigator testified in court tha_did not observe "any signs of abuse in the demeanor or physical state of either mann while. was with them." ld. However_testimony did not "effectively rebut the evidence of abuse," because _had "no knowledge of the circumstances of either detainee's confinement before his arrival at Bagram and ~ad] quite limited knowledge of his treatment there.... The investigator did not sec [them] other than during. four-hour [interrogation] sessions and did

30

UNCLASSIFIEOIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

SECRET CLASSIFIEB

petitioner's confinement prior to the interview. (See Mar. Tr. at 55-56.)

Again. the COUlt disagrees. Based on the timeline established by al-Qurashi's recent claims, it could only have been a matter of hOllrs between the end of petitioner's alleged abuse and the moment when he came to be sitting three feet fron_ (Pet. Dec!. ~~ 27-30: see also 1st Bhargava Decl. ~~ 6(fHh) (Pakistanis purportedly tortured and then fed al-Farouq details to petitioner after he was kept in stress position "overnighf').) First, there had to be a lapse of time between petitioner's arrest, transport, and processing by Pa.kistani and American officials (including Agent") and any opp0l1unity for abuse. Thereafter, according to petitioner, he was subjected to various fonns of mistreatment that caused unspecified injuries to his throat (see 2nd Bhargava Dec/. ~ 4(k)), and which culminated in his captors inflicting repeated blows to his head, both before a bag was placed over it and afterward. (See Pet. Dec!. "~23, 26.) Common sense dictates that these beatings, as described by petitioner. would have left some form of marks upon the head, neck, or face, whether in the 1'0011 of abrasions, bruises, swelling. or simply redness. (See Mar. Tr. at 49.) Petitioner also aftinned that he told his counsel that the rope that was used to bind his wrists "cut[) into his skin." (2nd Bhargava Decl. ~

4(j); PEX 2A (petitioner's aftinnation).) Moreover. petitioner claims that he was forced to

c_

remain kneeling against a wall for a long time, and that he was then twice beaten to the point of

being rendered unconscious. Y observed no injuries, nor did his EC record any, and petitioner did not exhibit any diftlculty walking, talking. or thinking clearly.21 _ could not ----_ .. _---~---~~

not inquire of them, or anyone else, about their treatment in the various prisons in which they were held." Id 22 Petitioner's allegations of being beaten so badly that he vomited blood appear to be similarly contradicted by_estimol1Y. Although petitioner's head was purportedly tied

31

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

~!eM'f ELASSIJi'IEI'

have made these observations if petitioner endured the mistreatment he now claims,2J including being tied with rope that cut into his skin. (Compare REX 124 at 3- 7_ interview notes for petitioner, making no mention of injuries). "vl'ith REX 128 at 1 _ interview notes for .) Uthman is therefore distinguishable, as that case does not appear to have involved (1) a compressed timeline between abuse and intcnogation. (2) specitic allegations of mistreatment th'lt left (or were highly likely to leave) marks that should have been visible to any observer. and (3) an interrogator who was under specitic orders to observe and report any evidence of abuse.

In sum, contrary to petitioner's argument,_ provides significant and credible evidence regarding the circumstances of petitioner's detention.

_ testimony abollt petitioner's demeanor during the interview further suggests that al-Qurashi was speaking voluntarily. He refused to cooperate in front ofAgent_, which suggests that his will had not been overborne, cf C/llambe, 367 U.S. at 602. as does h i s _

EC at 23.) Even if petitioner's reluctance to be interviewed was genuinely motivated by cultural belief. his overall attitude of defiance suggests that he was not

an_

in a bag when he threw up blood. he \-vas later told to wash himself because he "was covered in blood"' (Pet. Dec!. ~ 27), which suggests that the bag had not fully contained the blood. Yet (Feb. AM Ir. at 57, 60.)

Petitioner does not allege that the Pakistanis gave him clean clothes to wear. testimony indicates that the Pakistanis did not give the alTestees new clothes as a matter of course, because at least some of the arrestees "were in their street attire," (hi. at 46.)

32

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIED/IFOR PUBLIC RELEASE

SECRET CLASSIFIEB

"speaking out of fear." Esmail, 2010 WL 1798989. at *9 (tinding that veracity of severe torture allegations were undermined by interrogation report stating that detainee refused to fUlther cooperate with interrogators, in part '''due to religious reasons"').

In addition, _ testimony and handwritten interview notes establish that petitioner spoke with specificity about his travels in Afghanistan. This significantly undercuts petitioner's claim that he was simply repeating a false nan-ative that he had memorized shortly qjte,. being

tictional account of one's travels so that it could be retold persuasively as the truth. Ye_ twice beuten into unconsciousness. Such brutal treatment would make it difficult to memorize a

testitied that the interview's tone was "conversational" and ·'easygoing." (Feb. AM Tr. at 53.) The t1uency of petitioner's answers is also ret1ected in~andwritten notes. These notes present a relatively linear narrative, suggesting that petitioner provided a coherent chronological account of his time in Afghanistan. (Set:' REX 124 at 3-6.) Petitioner desclibed how he got to al-

Farouq, the training he received, the names orthe people in charge at the camp, the size of the

24

training groups. and where he traveled after he left. There is no credible evidence that any

24~lso noted that al-Qufashi said he "filled out [an] app[lication] upon an-[iving]"

at al-Farouq, in which he "stated [that he] wanted to train for I l110nth[.]" (REX 124 at 5.) Respondents contend that the veracity of this statement is corroborated by a purported al-Qaeda training manual and a training camp application. (See REX 72 (original manual in Arabic); REX 29 (manual translated into English); REX 132 (original training camp application in Arabic): REX 133 (application translated into English).) However, the Court is unable to conclude with any confidence that either of these documents refers to petitioner.

First, both documents reference an applicant named "Abu Yagub," and respondents contend that this person is petitioner. (See Resps.' SMF 4jj 10.) However, petitioner denies ever using the name "Abu Yaqub," although he concedes that he used the name "Yaqub" during his travels. without the honorific "Abu." (Pet. Decl. ~ 45.) Second, the manual states that Abu Yaqub hails from "AI-Jazira (AI Hafr)" (REX 29 at 52), and the application states that he comes from al-Hadhar, Saudi Arabia (REX 133 at 3), but neither of these locations appears to correspond to petitioner's statements to interrogators that he has lived in al-Hodaida. Yemen

33

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

SELkE I CCXSSIF lED

parts of petitiOller' s statement to _ were prom pted by information fed to him during the interview itself. ~5 Moreover. both pa11ies' counsel acknowledge that the Pakistani authorities would have been speaking in Urdu, while petitioner speaks only Arabic. (See Mar. Tr. at 16- 17, 45-46.) Petitioner's declarations do not state that the Pakistanis had a translator on hand. so it is unclear how they communicated such intricate details as the fact that city, jungle, and l110lmtain training was available at al-Farouq. (See REX 114 at 5.) But even assuming that they employed

(REX J 24 at 1) and Haff al-Batin, Saudi Arabia. (REX .80 at 3; see Jan. Tr. at 26 (clarifying location name).) Third, Abu Yaqub signed the application on "14/6/22" (see REX 133 at 2), and respondents argue that" 14" actually refers to the lslamic calendar year 1421 (even though the "21 " is not on the page), and that if read in this way. the date converts to late September 2000 in the Gregorian calendar, which is roughly when petitioner traveled to Afghanistan. (Mar. Tr. at 89-93.) Petitioner disputes this reading of the date on the document and offers an expert declaration to refute respondents' interpretation. (ld at 81; see PEX 79 (Bigelow Dec!.) '1 6).) FOllIth, the application states that at the time he signed it, Abu Yaqub had already attended the al-Farouq, Khaldan, and "Drotna" (probably "Derunta." see REX 3) camps (see REX 133 at 6), but the govemment has never alleged that petitioner attended three training camps in Afghanistan before he arrived there ill late September 2000. Fifth, the application contains a phone number (see id. at 3 ) which, respondents argue. r e s e m b l e . petitioner allegedly provided during an interrogation at Guantanamo. (REX 80 eel.) at 1 ,; 4; see id. at 3 (interrogator"s notation: "TP: _ ' ) . ) Petitioner declares t at e oes not recognize the phone number in REX 133 and that it does not "describe[]" him. (Pet. Dec!. ~ 45 (reviewing different exhibit with same phone number).)

Ultimately, the ('omi need not detem1ine the probative value of these documents in order to resolve the instant motion, given the Court's conclusion that the govel11111ent has sustained its burden of proof regarding petitioner's statement to Agent_

Notably, however, petitioner does not allege that he tol 'what they wanted to hear:' although he does allege this abo lit later American interrogations. (Compare Pet. Dec!. 131, }I·ith id ~~ 36-37, 43.)

34

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

a translator, the time-intensive process of translation would have served merely to further reduce the amount of time available to convey such details.

AI-Qurasbi's stated reason for leaving the camp also bolsters the veracity of the account he gave to Agen

(REX 124 at 4.) The

U.S.S. Cole was bombed in Yemen on October 12, 2000, almost four weeks after petitioner's arrival in Pakistan. This is roughly consistent with the fact that petitioner t o l d _ he was at al-Farouq for "[one] month." (lei.) Despite the detail of petitioner's declarations and those of his counsel. none of these documents suggests that the Pakistanis specifically fed petitioner details about wh.v he left the camp or that they tailored such a reason to the particular circumstances of his travels. (See REX 15 at 6 (testifying at ARB testimony that Pakistanis promised to give him "simple infonnation" and citing only pictures and name of camp's leader); 1st Bhargava Decl. ~ 6th) (relating petitioner's allegation that he was told about "the process of traveling to and registering for the camp").) So even if petitioner did not cite the Cole by name, the specificity of his reterence to its bombing and the camp attendees' tear of a retaliatory strike suggests that his statement about when he left al-Farouq was truthful.

B. Petitioner's Claims of Abuse Are Not Credible 1. Timeline inconsistencies Petitioner himself has cast doubt on the credibility of his allegations because he appears to have changed his story in material respects between the time he spoke to his cotU1sei in July and August 2009 and when he signed his declaration in November 2009, after key govemment

35

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDlfFOR PUBLIC RELEASE

~!!:CIt!:T CLASSf'f!!:!)

evidence had been obtained.

As an initial matter. it is reasonable to conclude. as_ testified. that atter the

(See Feb. AM Tr. 25-26.) Thus. even assuming that petitioner was arrested at sometime before dawn on February 7. 2002, it would likely have been several hours betore he had arrived at the facility where he was allegedly coerced. Accordingly, the Court focuses not on the 36-hour time period between his an'est and intelTogation by Agent_. but 011 a slightly shorter period of time begilU1ing with his placement in a detention facility sometime during the late llloming of February 7.

Within this approximately 30-hour period, petitioner's allegations of abuse fall into five discrete episodes. First, he was tied up in ropes and told to confess to being a member of ai­ Qaeda, fighting for the Taliban, or training a military camp, or else the Americans would torture him, (Pet. Dec!. ~ 18; 2nd Bhargava Dec!. ~ 40).) During this time, he could hear tortlU'e in the surrounding jail cells, and when he was given the opportunity to take bathroom breaks, he observed tOl1me of his fellow anestees. (Pet. Decl, ,,~ 19-22,) Second. his inten'ogators grew tired of his refusal to confess and began to beat him mercilessly. (1d. ~~ 23-25.) Third, he was made to kneel facing a corner "for a long time," (ld. ~ 25.) Fourth, he was beaten again. to the point of losing consciousness twice in a row, (ld. ~~ 26-27.) Fifth, under further pressure from new interrogators, he agreed to confess, and the inten'ogators tben gave him specific infomlation to memorize about al·Farouq. (fd. ~~ 26-30.)

While it may not be impossible for these five episodes to have occllTI'ed over the 3D-odd

36

UNCLASSIFIEDIfFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

SilCRIST CellSSIFIBQ

hours between al-Qurashi's detention by the Pakistanis and his interview b~ petitioner has not always adhered to this timeline. Petitioner told counsel in July and August 2009 that the Pakistanis had detained him "for several days," and that he had endured "several days of beatings and false assurances" by the time he agreed to falsely incriminate himself. (I st Bhargava Dec!. ~~ 6(b), 6(g).) Petitioner also stated that he had been forced to stay awake "overnight" while kneeling against a wall until "the next day:' (1d. ~~ 6(e)-(t).) But on October 1,2009, the govemment produced declassified evidence showing that petitioner's arrest a n d _ interview occurred only one calendar day apalt. (See REX 48 at 1.) Subsequently, on November 17,2009, petitioner authored a declaration in which he replaced counsel's prior references to "several days" with less time-specific phrases (see. e.g., Pet. Decl. ~ 29 (attributing confession to fact that he "had endured so much abuse already"», and stated that he was forced to knee! merely "for a long time." (lei. ~ 25; see also 2nd Bhargava Dec!. ~ 4(i) ("for hours on end").) Thus, in a space of several months, petitioner had shied away from his "several days" timeline and revised the length of the kneeling episode. These inconsistencies further discredit petitioner's account.

2. Absence of definitive medical evidence AI-Qurashi's credibility is also undermined by the fact that under either version of his timelinc. the alleged beatings that led to him blacking out twice - and to his subsequent confession and education about al-Farouq - could only have occurred over the course of several hours on February 8, 2002, directly before he met Agent_ Given the absence of any corroborating medical evidence, these allegations are, at best, exaggerated. Cf Esmail, 2010 WL 1798989. at *9 ("The [petitioner's medical] records apparently contain no evidence of the

37

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

81h~5RI!T @lSA8EJIPIE"

repeated beatings to which [he] asserts he was subjected, calling into serious question the truthfulness of [his] most serio LIS allegations oftorture."). This is not to say that claims ofto11ure must be accompanied by pennanent bodily damage such as the "visible scars" in Karake. See 443 F. Supp. 2d at 16-17,56 (defendant was left with "visible scars" fl-om alleged abuse with barbed wire and prolonged handcuffing of his wrists to his ankles). But where, as here, the torture alleged includes repeated blows to the head that led to vomiting of blood and repeated losses of consciousness, it is reasonable to expect that at least some physical effects would have been manifested on the day of the abuse, even if they did not leave more pennanellt evidence. But_ observed nothing noteworthy.

-------_._--­

Both physicians also reviewed medical records from petitioner's time in Guantanamo. as well as other documents tiled i l ~ are familiar with his allegations of mistreatment. (See~ect.~ecl._ They opined extensively on whether the Guuntanamo medical records reflect symptoms or injuries attributable to petitioner's alleged mistreatment. Nonetheless. the Court finds that the medical records are inconclusive with respect to petitioner's specific allegations oflllistreatment on February 7 and 8.2002. (See.

UNCLASSIFIEDIIFOR PUBLIC RELEASE

,~~('ft~ i CCASSlF II!D 3. Petitioner's stated reasons for recanting are not credible The Court is also highly skeptical ofal-Qurashi's stated reasons for recanting. He explained that he recanted in September 2002 because the interrogators told him "they were with the Depaltment of Justice:' and "[b ]ecause they said they were about 'justice:" he believed that he "finally had a chance to teU the truth:' (Pet. Dec!. ~ 38.) Yet, by even his own standards, he did not tell them the whole truth, Rather, he told them only that the Pakistanis had threatened to torture him, as opposed to actually torturing him. He professes that this was because he had been told the Pakistanis "still had access to Guantanumo," so he was "atl'aid that if (he] told [the Americans] what the Pakistanis did to (him], the Pakistanis would prevent [him] from going home," (Iti. ~ 39.) instead of telling the DO] officials "the truth of what the Pakistanis did to [him], [he] made lip ({ story about learning information about aJ Farouq from someone [he] called Khalid Dossieri.'· tid. (emphasis adde.d); stie REX 32 at 1.) By now suggesting that Dossieri was merely a fabricated story, however. petitioner contradicts his earlier sworn testimony to the ARB, where he maintained that Dossieri was a real person whom he met at a guesthouse in Kabul. and from whom he learned of al-Farollq's existence but nothing more. 27

See also Jan. Tr. at 303-04.)

17At the ARB hearing. petitioner disavowed his prior statement of September 20. 2002 (REX 32 at I) that he had discussed "details" about al-Farouq with Dossieri, testifying as follows:

39

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIfFOR PUBLIC RELEASE

(iJISEJltl!Ff EJ~n\(iJ8IFII58

Additionally, the government's evidence supports a more plausible interence that al-

Qurashi changed his story in September 2002 not because of the presence of DOJ intenogators. but because he was unhappy with how Guantanamo interrogators were treating him. Once at Guantanamo at the end of May 2002. he was interrogated regularly. Through May and June. he consistently told his interrogators that Abd al-Wahid (and others) had duped him into going to al-Farouq. (SCI.' REX 81 (May 28-30 and June 1-2,2002); REX 7 (May 29, May 31. and June 2-4.2(02): REX 8 (.lune 27. 1002); PEX 71 (June 27.2002): see also PEX 64 (Mar. 2, 2002 report from Kandahar: al-Wahid "convinced him to go to Afghanistan to a camp tor a month to do aidid. study the Koran, and teach the Koran").) Following petitioner's interrogation_ a military inteITogator wrote that al-Qurashi "stated he was a member of the Jamaat Tablighe" who "end[ed] up" at al·Farouq but did not complete the training program. (PEX 71 at 1 ~ ICC).) Although petitioner was "sincere and cooperative," the interrogator felt that "his story ha[dl all the traits of a cover story." (ld. at 2 ~ 4(A).) The interrogator concluded that petitioner needed to '"realize the dangers of lying to us," so he recommended that the "fear up" approach be used during petitioner's next intcl1'ogation. Ud. at 1 ~ 1(C).) The record contains no direct evidence that the "fear up"

[A]bout the details. there was not a conversation with him. Because 1 was in that house and he was there[,] I asked him where he was from. Of course he did not tell me, but he said he was at al-Farouq camp. This infonnation ... that was the tirst time I heard about aI-Farouq camp was from this guy and the Pakistanis.

That is the only infomlation 1 know. When I asked him his name and where he was from he said his name was Khalid Dossieri and he was from Saudi Arabia.

That is all I know about [that] gentleman. I even forgot what he looks like. 1 met him for seconds and didn't see him anymore.

(REX 15 at 8 (ellipsis in original).)

40

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

technique was ever employed. Hov,ever, it is reasonable to infer that the "fear up" tedmique was indeed llsed interrogation by FBI and NelS personnel. At that_session, petitioner

advised that he did not wish to continue providing information to investigators.

According to [him], he has decided not to fLUther cooperate because during his last interview, Ifn!lim11l:(/ inter/"OKO(OrS' were disrespect/it! towards him and called him (/ liar.

[He] explained that in an earlier interview. he told investigators abo lit a house that he had stayed at in Afghanistan. According to (him], when asked ifhe saw explosive belts stored there[,) [he) advised that after he told the investigators that he did not see all)' such items, they became angry and began ,veiling Of him.

(REX 79 at 1 (emphases 'ldded).) "After much discllssion" with the FBl and NelS intelTogators, petitioner "decided to answer questions as long as he was treated with what he tenned respect," and stated, infer alia. that Abd al-Wahid "convinced him to travel to Afghanistan for business" but then "abandoned" him at al-Farouq. (lei.) A month later interrogators advised al-Qurashi "of the impOltance of his continued cooperation." (PEX 66 at 1.) He responded that "he ha[d] experienced continued interviews and promises while being incarcerated:' "questioned why he ha[d) been treated like a criminal After answering some questions about his f1ight from Afghanistan to the Karachi safchouse, petitioner then "stated that all information about his travel to Afghanistan in previous interviews with U.S. authorities was coerced and fabricated." (ld.) From this. it is tail' to infer that petitioner recanted his story because he was tired of the interviews and objected, perhaps with good reason, to his treatment at Guantanamo.

41

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

~ECItE'f CLASSIFIE8

4. Petitioner's current claims of abuse are inconsistent with his prior post-recantation statements

It is also telling that al-Qurashi's description of what happened to him while in Pakistani custody changed dramatically between his 2005 ARB testimony and what appears to be his first meetings with counsel ill the summer 01'2009. Petitioner's November 2009 declaration makes detailed allegations about how the Pakistani authorities beat him into submission just before his interview w i t h _ (See SUPI'c/ Background. Section l.B.) However. with one exception, none of his post-recantation interrogation statements alleges that he was beaten. See PEX 66 (Sept. 11,2002: "threatened him with torture"): REX 55 (same); REX 32 (Sept. 20,2002: "threatened with torture"); REX 110 (Oct. 3,2002: "he was instructed to say he attended"); REX 113 (same): REX 111 : "forced him"); REX 19 "forced him"); REX 107 : ·'told him and others to say that they were at" al-farouq so they could obtain expedited release from U.S. custody); REX 13 (Dec. 6,2003: "he would probably be tortured by the Americans"); REX 116 (Nov. 3.2004: "he had seen and heard severalll1en get tortured by the Pakistanis:' and he was "'a weak minded person when he was held by the Pakistanis"), The Court recognizes that these reports are not testimony but are hearsay, in that they are ;'summaries of interrogations [that] should not be equated with verbatim recitations" of what petitioner said during those interrogations. Millga::ov v. Obama, No. 05-CV-2479, 2010 WL 2398883. at *3 (D.D.C. May 13.2010). Nonetheless. the consistency of these reports is highly signiticant. The sole exception is a December 23. 2002 report that mentions physical abuse in passing. stating that petitioner "c1aimed he was beaten lUltil he decided it was in his best interests to pick one" of the three incriminating statements that the Pakistanis were urging him to

42

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIfFOR PUBLIC RELEASE

SECM" ChASSIFIEB repeat to the Americans. (PEX AA at 1.) But not even this report provides any specificity about the alleged beating, and it certainly provides no details of abuse that might corroborate the particular allegations of petitioner's November 2009 declaration.

Al-Qurashi's August 3, 2005 swom testimony before the ARB is similarly devoid of any claim that he was tortured. 28 At the ARB hearing, petitioner testified that the Pakistanis threatened him \vith torture and gave him false promises of repatriation. (See REX 15 at 5-6.) Most importantly, he testified thm '"[rjlle only riling that made [him] agree" to say he attended al- Farone[ was his anxiety over the t~lct that he knew they had tOltured other aITestees. (See id. at 6 (emphasis added).) As respondents rightly observe, the fact that petitioner was already willing to discuss his Pakistani captors' alleged threats of t0l1ure makes it all the more conspicuolls that he did not claim actual torture. (See Opp'n at 12.)

Petitioner's consistent failure to allege physical mistn:atment by his Pakistani captors-

especially with the detail he now provides - raises a strong inference that his present allegations are, at best. "embellished ... in an drOit to create an advantage for himself in this litigation:' Esmail, 2010 WL 1798989, at *9 (concluding that it was reasonable to draw adverse inference from "late addition" of "serious allegations" of abuse that were not made in an earlier declaration which also claimed abuse). For this reason, the Court concludes that petitioner's allegations regarding his treatment by the Pakistanis following the February 7.2002 raid are not credible.

C. Petitioner's Other Evidence Does Not Undermine Respondents' Showing I. Statements by petitioner's fellow arrestees Statements by three of the men arrested with al-Qul'ashi indicate that they were not

'8 ~ Sa supra note II,

43

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

SELkE I LLASSIF lED

tortured by the Pakistanis. The attorney for Hamdoun (lSN 576) has declared that although Hamdoul1 said he was tlu'emened with tOliure, he himself "'was not tOliured by the Pakistanis." (PEX 15 ~ 8. )!9 On one occasion, Hamdoun himself was even reported as saying that his Pakistani captors treated him "very well:' (REX 95 at 1.) AI-Hajj (lSN 1457) - the purported aj·Qaeda facilitator who ran the safehouse - has stated in two declarations that he was tortured extensively after being transferred to U.S. custody and rendered to cC11ain foreign countries, yet these declarations never allege torture by the Pakistanis. (See PEX 23 at I ~ I; PEX 80 rr 3 (same). )30 Similarly, after bis 2005 release, al-Zame! (lSN 568) declared on another detainee's behalf that he received "brutal" treatment while in U.S. custody in Afghanistan, yet he described his cktention in Pakistan without any reference to mistreatment. (See PEX 16 ~~ 6- 7.)

Statements by other arrestees ostensibly corroborate al-Qurashi' s allegations of physical abuse in Karachi. However, not only is it implausible that the Pakistani authorities would have brutally abused some arrestees and 110t others (i. e.. Hamdoun, ai-Hajj, and al-Zamel), but many of these other arrestecs' statements are not reliable or relevant. For example, al-Qattaa (lSN 566) stated in a declaration submitted on al-Qurashi's behalf that

29 This is corroborated by the fact that Hamdoun recanted his incriminating statements by explaining that the Pakistani authorities ..told him if he would admit to Jihad, he would be taken to a 'nice American prison' instead of a 'bad Arab prison' where he would be tortured." (PEX 74 ~ 3.) However. Hamdoun told his attorney that another al1'estee told him that he had been tortured. and that "it was commonplace for the Pakistanis to beat up detainees:' (PEX 15 ~ 8.)

30

(See id.

at 10.) Although this statement favors petitioner, it does little to undercut the government's evidence.

44

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

~l!CM:T CLA~~JPlt:f)

I saw him in a Pakistani prison when I was at that prison in 2002, after we had been imprisoned for several days. He came to us and there were marks of beating and exhaustion and t:1tigue upon him. I asked him what had happened to him but he would not tell me because he was extremely exhausted. On the next day. I asked him again, and he told me that he had been beaten and had been asked to say certain things but I don't know what they were exactly. I tried to [persuade]

him and I told him that it would only be a few days until he could leave according to what the Pakistanis had promised us.

(PEX 14 at 2 (brackets in origil1al).) This statement does not provide credible corroboration for petitioner's account oftolture. First. it is inferable that the "marks" that al-Qattaa claims to have seen were int1icted qlter petitioner's interrogation by A g e n _ since al-Qattaa saw petitioner "several days" after they were imprisoned. Second, almost three years after the raid, al-Qattaa was shown a photo of petitioner during an interrogation session and stated thm "he did not recognize" petitioner, and that "he could not recall anytime he had met him in or out of the camp [i.e" Guantanamo]."' (REX 129 at l.r"l Because al-Qattaa could not remember ever meeting petitioner when asked almost three years after the raid, it is not credible that he would now remember, almost eiglJt years after the raid, that he did in fact meet petitioner in 2002, how petitioner looked at the time, and the substance of their conversation, Belnk1r (lSN 817) also submitted a declaration on petitioner's behalt~ (See PEX W.) It states that during his interrogations by the Pakistanis. they "regularly beat [him] on [hisJ shins and teet with a stick that resembled a cricket bat" whenever they believed he was lying, and they told [him] that [he] would be sent to Jordan or Syria to be tortured" and "wanted [him] to admit

31 This is consistent with petitioner's own statements to interrogators (See REX 114.) At that time, petitioner said he recognized the name "Mansour" (al-Qattaa's first name) as someone who was also at the safehouse, but he did not recognize al-Qattaa when interrogators showed him a picture: petitioner explained that this was because he was only at the house t()r a limited time and did not have the opportunity to become acquainted with the 15 people staying there. (Ill. at 1 ,;~ 2-3.)

45

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

that [he] was part o1'al Qaeda[,] which was not true." (ld. ~ 5.) This statement is generally consistent with the claims he is now making in a civil suit tiled in the United Kingdom (see PEX

x ~ 130), which itself may serve to create an inference of bias, thereby casting doubt on his credibility. But more importantly. even if Belmar's statement is true, it is of limited probative

value with respect to petitioner's aJIegations. The physical abuse that Belmar describes is I imited to being beaten on the feet.

It is reasonable to conclude, as Belmar did, that such beatings were designed to avoid leaving "obvious marks to a casual observer." (PEX

w ~ 7.) By contrast, petitioner's alleged torture went far beyond such beatings. including repeated blows to his head and ropes that cut into his wrists. which are far more likely to leave

visible marks. 32 Al-Qurashi also declared that he observed three of his tellow arrestees being t011ured or bearing the marks of torture. Anam (ISN 569) was allegedly tortured by the Pakistanis, "pinned face-first against a wall. hanging by his hands." (Pet. Decl. ~ 20.) In 2005, intcnogators repol1ed that Anam said that he had made false statements to his Pakistani interrogators "due to ·t0l1urC.. ·• (See REX 90; PEX 75.) If true, this would cOlToborate what petitioner saw and. in turn. petitioner's allegations. However, Anam's 2005 statement is undenl1ined by his

.12 Belmar also declared that he was tirst interrogated, while shackled, by.Americans "in a large room with couches:' and that ··the Americans were armed with pistols in holsters." (PEX W 6.)

. .(See Feb. AM Tr. at 79-80. 112.) The Court finds t h a t _ testimony is credible in this regard.

46

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

SI3CftlST Cb/z(iiJ(iiJIFlE:8 reported 2003 statement that although he heard of others being tortured while in Pakistani clIstody. he himself had never been tortured. (REX 91 at 2; REX 101 at 1.) While this 2003 statement was made prior to Anam's recantation. it remains noteworthy precisely because he was comt(.1l1ablc enough under the circumstances to attribute coercive tactics to the Pakistanis. and yet he disavowed that such methods had been used on him. Also, in AnaIn's haheas proceedings before Judge Hogan, the Court denied his request for discovery regarding abuse by foreign captors because, il1ler 01 ia. he only presented evidence of abuse while in American custody and "provide[d] no documents or declarations that he suffered abuse while in the hands of Pakistani authorities," Order at 5 ~ 4. Anam I'. Ohama. No. 04-CV-1194 (D.D.C. Sept. 9, 2009) (Dkt. 651). For these reasons, the Court finds that Anam's 2005 statement is not helpful to petitioner.

AI-Qurashi also claimed that al-Swidhi (ISN 578) was tortured to the point of being unable to walk, such that "[e]ven after [they] were transferred to Kandahar. [al-Swidhi's] foot was swollen and he still could not walk," (Pet. Decl. ~ 22.) In 2004. al-Swidhi was reported as having recanted his statements about attending al-Farouq, claiming that he had been tOltured into making false statements. (REX 97 at 1; REX 98 at 2; see a/so REX 96 at 1 ~ 2 (describing "harsh" treatment and fear of being killed); REX 102 at :2 (same).) Althollgh petitioner does not clarify whether al-Swidhi was purportedly beaten before or after his interview with_, it is logical to infer that if the Pakistanis had been trying to coerce arrestees into giving false

Ye_ information to the Americans, they \vould engage in such coercion prior to _ interviews.

( S e e _ EC at 28-30.)

(id. at 35). one would expect_ to have noted a similar fact with

47

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

~J!:eltJ!:'f - eLA~~I'Il!:f)

respect to al-Swidhi.

AI-Qurashi also allegedly heard screams from someone he believed to be Bin Amer (lSN 564), who looked "beaten up" after his interrogations. (Pet. Dec!. ~ 21.) In 2006. interrogators reported that Bin Amcr recanted his statements about training at a Libyan camp near Kabul. claiming that he had been tortured and lor threatened with torture by the Pakistanis. (See REX 93: REX 92: PEX 73.) If true. this would corroborate what petitioner saw and, in turn. petitioner's allegations. However, Bin Amer"s statement regarding abuse is undermined by the fact that in his habeas proceedings before Judge Hogan. the C01ll1 denied without prejudice his request for discovery regarding abuse by foreign captors, because he "fai1[ed] to demonstrate with sunicient specificity and evidence:' inter alia, "that he suffered tl'om abuse by Pakistani authorities ... :' Order at 3 ~ 6. Bin Amer v. Ohama, No. 04-CV-1194 (D. D.C. Sept. 9. 2009) (Dkt. 650) (pell11itting renewal of discovery request if he "can document evidence of such abuse"). In addition, sometime in January 2010, in an apparent effort to document abuse as pemlitted by Judge Hogan. Bin Amer wrote a letter to his attomey in which he stated that while in detention, he ··could hear [petitioner] scream while he was in a different cell" due to "torture." (PEX T2 at 2.) Thc letter further stated that when Bin Amer saw petitioner again. petitioner explained that "he was subject to[] beating, desecration[,] and all kinds of humiliations." (ld) Assuming the acclU'acy ofthe translation, this letter is curiolls since petitioner has never alleged

t 1 tIlC Pak· · engaged'

13t 'lst3111S 111"desecratJOn. "n . -­

33 Typically, "desecration" describes religiously charged acts, which seems implausible here since the Pakistani authorities were almost certainly the same religion as petitioner. See CTA - The World Factbook -- Pakistan, £11 http://www.cia.gov/library/publicatiolls/the-world­ factbooklgeos/pk.html (last visited Aug. 2, 20 I0) (stating that 95% of Pakistanis are Muslim).

48

UNCLASSIFIEOIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

SI?:Cltl?:'f CL1lfSSIPIEB Finally, according to a govenmlent risk assessment docllment, al-Azani (ISN 575)

recanted in 2004 by claiming "to11ure by his original captors:' (REX 103 at 1~i 3; see also REX 104.) Nothing else in the record of this case onhe publicly accessible record ofal-Azani's habeas proceedings either bolsters or undermines the reliability of this repo11, and thus, the Court is unable to accord the document any real weight.

3. Abusive practices of the Pakistani authorities The Court acknowledges that there is evidence regarding the custodial abuse of suspects by Pakistani authorities and ot1icials. (See PEX 32 at 3, 6 (U.S. Department of State Country Report on 2002 human rights practices); PEX 31 at 6-8 ~ 5.1, 10 ~ 5.3 (Amnesty International repolt describing t0l1urc of terrorism suspects by Pakistani security, military, and intelligence agents); PEX 18'; 10 (ISN 257's allegation of abuse by Pakistani intelligence services in late 2001); PEX 19'i I (same); PEX S ,i 7 (fSN 839's allegation of abuse by Pakistani intelligence officer in latc 20(2); see also PEX 33 at 2 ~ 162 (Pakistani criminal procedure code section general1y prohibiting use at trial of custodial statements to police); PEX 34 at 1 ~ 39 (Pakistani executive order prohibiting use of suspect's custodial confession against him unless made in magistrate's presence).) However, the COlllt cannot infer from the Pakistani authorities' general reputation that petitioner was necessarily abused on Febfllary 7 and 8,2001. _ _

_ From this, it can be inferred that the Pakistani authorities were aware that U.S. officials might interview the other suspects. Because of this expectation, becaus_ likely saw the suspects upon their arrest _ the Pakistanis would have a strong disincentive to beat suspects in a way that might

49

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDflFOR PUBLIC RELEASE

SB€HIST €f!dzS£ilFIE9 be observed by the American interrogators. This disincentive is consistent with the fact that Hamdoun USN 576) disavowed being tortured by the Pakistanis (set' PEX 15 ~ 8) and that ai- H~ij (lSN 1457) and al-Zamel (lSN 568) alleged only that they were abused in American custody and said nothing abo lit their Pakistani captors. (See PEX 23 at 1 ~ 1; PEX 80 ~. 3; PEX 16 ~I~ 6-7.)

D. Conclusion Based 011 the totality of the circumstances surrounding aJ-Qurashi's statements to Agent _ the Court concludes that respondents have sustained their burden to show that these incriminating statements were made voluntarily and are therefore admissible. See United States v. Abu Ali. 395 F. Supp. 2d 338.378 (£.0. Va. :W05) (declining to suppress statem.ents in criminal prosecution). Accordingly, the Court will consider petitioner's statement to Agent_ in Pakistcul and it will deny his motion to suppress.

CONCLUSION

For the foregoing reasons. it is hereby ORDERED that petitioner's motion to suppress is denied. Counsel are directed to contact chambers within the week to schedule a conference calL SO ORDERED.

/;;!i~H9vE~~

United States District Judge

Date: August 3, 20]0

50

UNCLASSIFIEDIIFOR PUBLIC RELEASE.