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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SHAWALl KHAN,
Petitioner, v. Civil Action No. 08-1101 (JDB) BARACK H. OBAMA, et al.,
Respondents.
MEMORANDUM OPINION
Shawali Khan, a n _ citizen, has been in U.S. custody since mid-November 2002.
He has been detained at Guantanamo-Bay,.Cuba since early -2003; and on June 25, 2008, he filed
a petition for a writ of habeas corpus in this Court. After several months of preliminary motions
and hearings, the Court entered a Case Management Order ("CMO") on February 20,2009. The
CMO in petitioner's case is slightly different than the CMOs in most other cases involving
Guantanamo detainees. According to petitioner, extensive discovery is unnecessary in this case
because respondents have not produced sufficient reliable evidence to justify his detention.
Hence, petitioner sought -- and received -- an "expedited" CMO, which provided him with an
opportunity to file a motion for judgment on the record before full discovery had been
conducted. That motion is now be~?~~ .~~ .C.~~!\..J~~,I!1?t!?!! .~as been fully briefed and the
Court held a hearing on June 12,2009. For the reasons explained below, petitioner's motion will
be denied.
ANALYSIS
Respondents bear the initial burden of producing sufficient credible evidence to justify an
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individual's detention at Guantanamo. "[O]nce the Government puts forth credible evidence that
the habeas petitioner meets the ... criteria [for detention]~ the onus ... shift[s] to the petitioner
to rebut that evidence with more persuasive evidence that he falls outside the criteria." Hamdi v.
Rumsfeld. 542 U.S. 507,534 (2004); see also Parhat v. Gates. 532 F.3d 834, 847 (D.C. Cir.
2008).1 The question presented here is whether respondents have satisfied their initial burden. If
they have not, then the "onus" will not shift to petitioner and his habeas petition will be granted.
But if respondents have met their initial burden, then petitioner's motion for judgment on the
record must be denied and the discovery phase of this litigation will commence.
As a threshold matter, the Court must bear in mind that -. for the purpose of this motion
-- petitioner has adopted the s~dar~J?rA~t~n~i89,prR~0~~~.9Y.rC?~pondents.Pet'r's Mem. at 16.
On March 13,2009, respondents proposed the following standard:
The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces-oe-associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.
See Resps.' Rev. Mem. Re: Detention Authority. The Court must put aside, for now, the analysis
of respondents' definition that was conducted in this Court's May 19,' 2009 Memorandum
I Respondents attached a classified version of Parhat to their opposition to petitioner's motion. The Court will only refer to the classified version of Parhat when necessary and will cite to the reported version of Parhat whenever possible.
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Opinion, and will operate instead under respondents' March 13 proposed statement of its
detention authority. Furthermore, for the purpose of this motion, petitioner "concedes ... that
the allegations set forth against [him] in the factual return would, if they could be proven, make
[him] detainable under [respondents'] definition." Pet'r's Mem. at 16.
Petitioner's concessions narrow the analysis. The only question remaining is whether
enough allegations are supported by reliable, credible evidence to justify petitioner's detention.
See iQ" at 18. So framed, the Court must conduct a two-part inquiry. First, it must scrutinize
respondents' evidence and determine what is reliable and what is not. This examination
constitutes the majority of the analysis that follows. The second step is determining whether the
reliable, credible evidence is sufficient to justify petitioner's detention under respondents'
definition of their authority to detain.
I. Assessment of Reliability
A. General Principles
The Federal Rules of Evidence do not apply. strictly. in these Guantanamo habeas cases.
Instead, courts must be flexible in evaluating the evidence presented by the parties. See Hamdi,
542 U.S. at 539. "Hearsay, for example, may need to be accepted aS,the most reliable available
evidence from the Government in such a proceeding." lQ.. at 533-34., And given "the exigencies
of the circumstances," "th,e Constitl:J.ti
Government's evidence, so long as that presumption remained a rebuttable one and fair
opportunity for rebuttal were prOVided." Id.
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Even under relaxed evidentiary standards, however, the credibility or reliability of the
evidence must be assessable by a court lest the presumptions in favor of respondents become
irrebuttable. Parhat, 532 F.3d at 847. The interplay between the presumptions and the
requirement of reliability was squarely addressed in Parhat. 2 Respondents in that case relied on
various forms of evidence, including "four U.S. government intelligence documents" that
purportedly showed that a certain group was "associated with" al Qaeda or the Taliban and was
engaged in hostilities against the United States or its coalition partners. Id. at 844, 846; ~
also Parhat, classified slip op. at 19-24 (describing the four intelligence documents). The D.C.
Circuit held that the four intelligence documents were not reliable enough to justify the
.. .~.. ... ... , .. , . "., .... petitioner's detention. The court first noted that the,documents were not definitive in their
conclusions -- they repeatedly stated that a particular activity "reportedly" occurred and that
something "may" be true. 3 Parhat, 532 F.3d at 846. Moreover,
2 Respondents attempt to distinguish Parhat because it involved review of a determination made by a Combatant Status Review Tribunal (CSRT), not a habeas proceeding, and that more "flexible" procedures are permitted in habeas proceedings such as these. See Resps.' Opp. at 15. This distinction is unconvincing. The Supreme Court has held that CSRT proceedings are not sufficiently rigorous to qualify as an adequate substitute for habeas. See Boumediene y. Bush, 128 S. Ct. 2229, 2271-74 (2008). Hence, as Parhat itself recognized, respondents' evidence is subject to more stringent requirements in a habeas proceeding than in review of a CSRT detennination. See Parhat, 532 F.3d at 851 ("[T]he habeas proceeding wiU have procedures that are more protective of [petitioner's] rights than those available under the [Detainee Treatment Act].").
3 Respondents point out that Parhat involved "finished" intel1ig~nce reports whereas the present case involves "raw" intelligence reports. ~ Resps.' Opp. at 15-16. Parhat, respondents maintain, is thus distinguishable. But, as discussed in greater detail below, the flaws the Parhat court identified are not unique to finished intelligence reports, so this distinction, if it is a difference at all, certainly does not make ~ inapplicable here.
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in virtually every instance, the documents do not say who "reported" or "said" or "suspected" those things. Nor do they provide any of the underlying reporting upon which the documents' bottom-line assertions are founded, nor any assessment of the reliability of that reporting. Because of those omissions, the Tribunal could not and this court cannot assess the reliability of the assertions in the documents. And because of this deficiency, those bare assertions cannot sustain the determination that [petitioner] is an enemy combatant.
Id. at 846-47. The court reached this conclusion because "[i]f a Tribunal cannot assess the
reliability of the government's evidence, then the 'rebuttable' presumption becomes effectively
irrebuttable." Id. at 847 (citing Bismullah v. Gates, 501 FJd 178, 186 (D.C. Cir. 2007».
Respondents in Parhat offered two reasons why identifying the sources of information
was unnecessary to assess reliability. Each was rejected by the court. First, the court considered
respondents' contention that "assertions in the intelligence documents are reliable because they
are made in at least three different documents." Id. at 848. The court rejected the argument,
observing that "the fact that the government has 'said it thrice' does not make an allegation true."
Id. (quoting Lewis Carroll, The Hunting of the Snark 3 (1876». Indeed, the court noted that all . ' -. ;' '~:'i~···Y·1·-··1·!·····- -. . of the documents making a particular allegation "may ultimately derive from a single source."
Id. at 849. Second, the court considered respondents' contention "that the statements made in the
documents are reliable because the State and Defense Departments would not have put them in
intelligence documents were that not the case." Id. The court dismissed this argument as well,
writing that "[t]his comes perilously close to suggesting that whatever the government says must
be treated as true." Id.
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Hence, Parhat contemplates the following decisional framework. First, courts must
determine whether the evidence relied upon contains enough information to permit an
assessment of reliability. If it does, then courts must examine that information and determine
whether the evidence is in fact sufficiently reliable to be used as a justification for detention. But
if it does not contain enough information, and if it is not corroborated by otherwise reliable
evidence, then courts are precluded from assessing the evidence's reliability. And if courts
cannot assess reliability, then the evidence in question is inherently unreliable and may not be
relied upon to justify detention.
What information, then, mpst respondents provide to permit courts to assess the
reliability of evidence gathered during intelligence operations? The Declaration o f _
attached to respondents' factual return, provides some insight. To
evaluate the credibility of human intelligence, collectors of intelligence look at "two broad
areas." Decl. at 8. First, they look at an intelligence report's_
IQ.. at 8-9. Second, intelligence collectors e x a m i n e _
Id. at 9. These principles •• set out by re~pondents themselves -
provide the best set of criteria for a court to use to determine whether the raw intelligence reports
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respondents rely upon to justify petitioner's detention are reliable and credible.
In sum, these Guantanamo habeas proceedings require greater flexibility than normal
civil or criminal proceedings. But under Parhat, courts must still be able to assess the reliability
and credibility of the evidence respondents rely upon to justify detention. The mere fact that the
intelligence community reI ies upon a certain kind of information does not relieve courts of their
duty independently to assess the evidence. The Declaration aids courts in
carrying out this duty because it sets out criteria that intelIigence collectors themselves look to in
assessing the reliability or credibility of intelligence documents. If the evidence respondents rely
upon to justify detention does not provide enough information to permit assessment of the
factors -- or only does so in a way that nonetheless precludes a court from
assessing the reliability of the evidence -- then the evidence cannot be relied upon to justify
detention. With these principles in mind, the Court will proceed with its analysis of the evidence
in this case.
B. Analysis ofRespondents' Evidence
Respondents rely on four categories ofevidenc.e."First are .reports of petitioner's own
statements, including a transcript of Administrative Review Board ("ARB") proceedings.
Petitioner only challenges the reliability of two essentially identical reports, both stemming from
a February 17,2003 interview of him. See Pet'r's Rep. at 2-3. The contents of those two
interview reports are not material to the resolution of petitioner's motion, and he concedes that . . _ _ .• ~.~._ ••••••• ~ .l ! __.
the remaining interview reports may be deemed reliable at this stage ofthe proceedings. Id.
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Second are twelve "raw intelligence reports" concerning petitioner. 4 He challenges the reliability
of all of these reports under Parhat because they all contain at least some level of hearsay and the
sources for the reports are confidential. See id. at 5-8. Third are six reports cataloging materials
allegedly found in petitioner's home. Petitioner challenges the reliability of these reports as well.
Id. at 4-5. The final category is reports of statements made by other detainees. Only one
document falls into this category. See ISN 850 FD-302 (May 28, 2003). But it does not advance
respondents' case for petitioner's detention, and he does not challenge its reliability.
1. Raw Intelligence Reports
The initial step in analyzing the raw intelligence reports is determining which, if any,
have sufficient hallmarks of reliability -- as set out in the _-to
allow the Court to assess their reliability and credibility. Reports lacking those hallmarks of . '."
reliability -- which, as discussed below, is all of the reports -- are inherently unreliable under
Parhat and may not be relied upon to justify detention. s Two crucial deficiencies -- although not
the only ones -- in the reports are that they contain multiple levels of hearsay and all sources are
Iiiiiiiii 4 Fourteen raw intelligence reports are attached to the factual return. But two of those do with petitioner. See
S This determination should not be inte
w~as and
are categorically unreliable. As respondents point out, are similar to Federal
Bureau ofInvestigation FD-302 documents, which are often used as evidence. See Resps.' Op
at 10 (citing, inter alia, Moore y. Ashcroft, 401 F. Supp. 2d 1, 12 (D.D.C. 2005). Indeed, on
~ntly have attached to petitioner's factual return by mistake - _ . . _ - - contains detailed infonnation about the source and his placement. Such a raw intelligence report might well be reliable under the standards set forth in Parhat.
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... . . . ~ ". " .~ .. ,...... "".' ,.~. ~ ... .. ,. ,', .
confidential (l&., unidentified). But, as respondents point out, even if particular evidence is
unreliable standing alone, it may nonetheless be reliable if corroborated by other reliable
evidence. See Rugendorf v. United States, 376 U.S. 528, 533 (1964) (holding that an affidavit in
support of a search warrant containing hearsay from a confidential source may be reliable "so
long as there was a substantial basis for crediting the hearsay"); see also Parhat, 532 F.3d at 849
("[T]here may well be other forms in which the government can submit information that will
permit an appropriate assessment of the information's reliability while protecting the anonymity
of a highly sensitive source. ").
Hence, once the Court has determined that none of the raw intelligence reports are
reliable on their own, it must still assess whether other reliable evidence adequately corroborates
the allegations made in those reports. In making this latter determination, the Court will bear in
mind the procedural posture of this case. The question now presented is whether respondents
have satisfied their initial burden ofjustifying petitioner's detention. Petitioner argues in favor of
a standard akin to the Fed. R. Civ. P. 56 summary judgment standard. See Pet'r's Mem. at 17.
Such a standard might be appropriate once discovery has transpired. Here, however, petitioner
requested and received an "expedited" CMO that permitted him to file a motion for judgment on
the record before discovery has occurred. Because he contends that respondents have failed to
meet their initial burden ofjustifying his detention, the present motion is more like a motion to
dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6). In any event, inferences are
drawn in favor of the non-movant for bothmotio~~,for summary judgment and motions to
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dismiss. See Anderson v. Liberty Lobby. Inc.. 477 U.S. 242, 255 (1986) (summary judgment);
Scheuer v, Rhodes, 416 U.S. 232, 236 (1974) (motion to dismiss). So, for the purpose of this
motion, the Court will draw inferences on all disputed issues in respondents' favor.
a. Report-by-Report Analysis
This report states that petitioner's_6_
was active in Hezb-i-Islami Gulbuddin ("HIG"), and that HIG has taken actions to harm U.S.
forces. The source for the report is a "senior level Afghan tribesman" with "indirect access due
to his position" and whose reliability is "yet to be determined." No other information is provided
in the source description. The report does not explain why the source had indirect access to this
information, what kind of control the collector had over the source, or what kind of motivation or
wittingness the source had when making the statement. See Decl. at 8-9.
Nor does the report provide any "context statement" regarding the ci~cumstances in which the
information was obtained. See id. at 9. The report thus bears none ofthe hallmarks of reliability
that the intelligence community itself looks to in assessing the reliability of raw, human
intelligence. Absent such indicia of reliability, this Court cannot assess the report's reliability.
Hence, under Parbat. unless other reliable evidence corroborates the information contained in the
report, it may not be used to justify petitioner's detention.
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According to this report, which does not mention
petitioner, a HIG cell in Kandahar was responsible for explosions near the Kandahar airfield in
October 2002. HIG had reportedly conducted surveillance ofD.S. vehicles and devised a plan
for attacking them. The source for the report is an "Afghan civilian" who obtained the
information during the "normal course of daily activities," had "direct access," and whose
reliability is "yet to be determined."
Like those reports, it is lacking the indicia of reliability set forth in the
Declaration, and it therefore· cannot be relied upon absent corroboration by
other evidence.
A small RIG cell entered Kandahar, according to this
,~ , ,oj \111 n' II' it II" " I"'"
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report, and petitioner was a communicator and used a radio in h i s _ to communicate
between various BIG elements. The report also details various terrorist activities undertaken by
• and another man affiliated with H I G , _ Like the report immediately above, the
source is an "Afghan civilian" who obtained the information during the "normal course of daily
activities," had "direct access," and whose reliability is "yet to be determined." And hence, also
like the reports above, this report is lacking sufficient indicia of reliability for the Court to assess
its credibility.
These reports
both describe a planned attack on U.S. vehicles. Neither mentions petitioner. The source for the
October 30 report is an "Afghan civilian" with "direct access" who obtained the information
during the "normal course of daily activities," whereas for the November 3 report the source is
an "Afghan government official" with "indirect access" who obtained the information during the
"normal course of official duties." The reliability for both sources is "yet to be determined."
These reports are flawed for the same reasons explained for the other reports above. Under
Parhat, neither report, standing alone, may be relied upon to justify petitioner's detention.
This report states that petitioner first became involved
with HIG during the jihad against the former Soviet Union. It claims that petitioner then became
a HIG facilitator who used h i s _ in Kandahar to conduct meetings. The report also avers
that petitioner delivered a detonation device on November 9,2002, which was to be used for
attacks against the United States. The source is an "Afghan government official" who obtained
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the information during the "normal course of official duties," who has "indirect access," and
whose "reliability is yet to be determined." Like all of the reports described above, this report is
lacking sufficient hallmarks of reliability and hence cannot justify petitioner's detention absent
corroboration.
According to this report, petitioner was the leader of
a HIG propaganda group in Kabul, and an unnamed HIG and Taliban facilitator incited a protest
at the University of Kabul on November 11-12,2002. The report also states that petitioner was
captured by U.S. forces on . The source description for this
report is slightly different than the other reports discussed above. The source is an unnamed
ho obtained the information during the "course of official duties"
and had "indirect access." The source has "reported reliably in the past." But it is also stated
that the report contains "third-hand information, some of which has been verified through actual
reported events."7 Although slightly differentthan the reports described above, this report
suffers from similar flaws. The unnamed has reported reliably, but
the report explicitly contains "third-hand information" with no reference to the source of that
information. And like the reports above, the report lacks a context statement, any information
about the collector's control over the source, or a description of the source's motivation or
wittingness. The Court cannot assess the reliability ofthisreport, and, under Parhat, the report
therefore cannot be used to justify petitioner's detention.
7 The report does not explain what information was verified through actual reported events.
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provide that_held a meeting after petitioner's capture. • was reportedly concerned about
the effectiveness of the HIG cell in Kandahar without petitioner, and was looking for whoever
had provided information leading to his capture. The source of both reports is an "Afghan
government official" who obtained the information during the "normal course of official duties,"
had "indirect access," and whose reliability is "yet to be determined." Like all of the other
reports, these two reports lack the indicia of reliability, thus preventing the
Court from assessing their credibility.
A HIG cell entered Kandahar on December 28,
2002, according to this report. It names the leader of the cell (not petitioner), and describes
petitioner as "a HIG extremist arrested by . The report has
two sources, both "Afghan government officials" who obtained the information during the
"normal course of official duties" and had "indirect access." One source's reliability is "yet to be
determined" and the other is "fairly reliable." Although the report is slightly different than the
majority of reports above in that it provides that one source is "fairly reliable," it is still lacking
the critical hallmarks of reliability set forth in the Declaration. Hence, like
the other reports, it cannot justify detention under Parhat unless soine distinct reliable evidence
corroborates the facts contained in the report.
According to this report, ~ personal phone book was
found on a driver who attempted to run through a checkpoint. The phone book contained an
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entry for and listed a Saudi cell phone number. The report contains no
information whatsoever describing the source. The report is thus completely lacking indicia of
reliability and cannot be relied upon to justify detention absent further corroboration.
This report provides that members ofHIG and al
Qaeda met on July 20,2003 and agreed to attack U.S. forces. It does not mention petitioner.
Like many ofthe reports above, the source is an "Afghan government official" who obtained the
infonnation during the "nonnal course of official duties," had "indirect access," and whose
reliability is "yet to be determined." And, like those other reports, the absence of the criteria set
forth in the eclaration bars this Court from assessing the reliability of the
report. Hence, unless the information contained in the report is independently corroborated,
respondents may not rely on this report to justify petitioner's detention.
• * • • In addition to the deficiencies described above, the reports, read together, contain another
crucial flaw: all of the information contained in the reports could come from a single individual.
No source is identified by name. To be sure, the source descriptions,vary slightly: a "senior
level Afghan tribesman"; an "Afghan civilian"; or an "Afghan government official." But on the
record before the Court, those descriptions could all refer to the same person. The only report
that provides a different source description is which states that the source is
an unnamed but also states that the rep~rt contains "third-hand
information." The information provided in this report, then, could be from the same person
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listed as the source in all of the other reports.
The D.C. Circuit confronted a similar problem in Parhat. The materials respondents
relied upon in that case also failed to identifY the sources of allegations, and the court noted that
all of the documents making a particular allegation "may ultimately derive from a single source."
532 F.3d at 849. When respondents argued that the court could find the allegations reliable
because similar allegations were made in multiple documents, the court noted that "the fact that
the government has 'said it thrice' does not make an allegation true."· Id. at 848 (quoting Carroll,
The Hunting of the Snark 3). This Court agrees. Unless respondents can demonstrate that
multiple sources were making similar allegations about petitioner, these raw intelligence reports
cannot corroborate one another. But nothing in the current record suggests that the raw
intelligence reports relied upon here come from multiple sources. Hence, only if other evidence
in the record corroborates the allegations contained in those reports may respondents rely upon
such allegations at this stage of the proceedings.
b. Corroboration for Allegations Made in Raw Intelligence Reports
As respondents would have it, the raw intelligence reports, woven together, support the
following narrative: (1) petitioner was active in HIG during jihad against the former Soviet
Union, see, e.g., (2) HIG was and remains a terrorist organization, see. e.g.,
; (3) petitionerl~was a HIG commander, see. e.g.,
. ; (4) petitioner was active in HIG ~s .(i.~()mmll!1!S~~9.~ W,f(i<;Hitator ,at the time of his capture in
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(6) petitioner delivered a detonation device for attacks on U.S. forces, see~
_ (7) he was a HIG propaganda leader in Kabul, ~ ; and (8) his
name was found in the personal phone book of a man who attempted to run through a U.S.
checkpoint, see As discussed in the preceding section, none of the raw
intelligence reports -- either individually or collectively .- contain enough infonnation to permit
the Court to assess their reliability. In this section, the Court will examine whether other
evidence in the record -- such as petitioner's own statements -- corroborate any aspects of
respondents' narrative as drawn initially from the intelligence reports.
The first aspect -- that petitioner was active in HIG during jihad against the former Soviet
Union -- is amply corroborated by other reliable evidence. Although petitioner has occasionally
denied this charge, see. e.g., he has more often than not admitted
it, see. e.g., ISN FM-40 (Feb. 21,2003). Likewise, RIG's characterization as a violent
organization, the second aspect of respondents' narrative, is also supported by independent,
reliable evidence. For example, the Declaration o~a Senior Intelligence Analyst at
the describes HIG's "30-year history of supporting jihad in
Afghanistan" and explains HIG's "important and deliberate role in supporting continued attacks
against coalition and Afghan forces throughout 2002." ~ecl. at 1-2. So, too,_role as
a HIG commander has independent, reliable support. His precise role is subject to debate -- for
example, petitioner stated on one occasion that~as only a HIG commander duringjihad
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against the former Soviet Union, ~ ARB Tr. at 5-6 -- but petitioner's admission that_has a
history as a HIG commander is sufficient, at this stage, to corroborate the raw intelligence
reports on this third aspect of respondents' narrative.
The fourth aspect of the narrative is petitioner's role in HIG at the time of his capture.
This is a crucial subject. Petitioner's continuing involvement in HIG is mentioned in two of the
raw intelligence reports, ~ and , and alluded to in two
others, see nd Of course, an allegation does not become
reliable merely because it is supported by several unreliable reports. See Parhat, 532 F.3d at
848; cf. Ali Ahmed v. Obama, Civ.A.No. 05-1678, unclassifed slip op. at 11-12 (May 11, 2009)
("[T]he mosaic theory is only as persuasive as the tiles which compose it and the glue which
binds them together -- just as a brick wall is only as strong as the individual bricks which support
it and the cement that keeps the bricks in place. Therefore, if the individual pieces of a mosaic
are inherently flawed or do not fit together, then the mosaic will split apart, just as the brick wall
will collapse."). But other, more reliable, evidence also lends some credence to this aspect of
respondents' narrative, at least at this early stage of the proceedings.
ISN 899 FM-40 (Feb. 7, 2003), ISN 899 FM-40 (Feb. 21, 2003), and
_ b u t see This admission
corroborates respondents' allegation that petitioner was once a HIG communicator, albeit twenty
or more years before his capture. To be sure, petiiioner denies the allegation that he was a HIG
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communicator at the time of his capture. Moreover, the Court will not adopt a "once a HIG
communicator, always a HIG communicator" approach. But at this stage of the proceedings, the
Court must draw inferences in respondents' favor, and inferring that petitioner remained a RIG
communicator from the fact that he once was a HIG communicator (and h i s _ has a history
as a HIG leader) does not require a fertile imagination. Hence, petitioner's admissions that he
once was a HIG radio operator serve to corroborate that he also was one at the time of his
capture in The Court does not intimate that there is strong support for that
conclusion. But at this time and with all inferences drawn in respondents' favor, there is
sufficient corroboration to rely on that assertion.
The remaining four aspects of respondents' narrative, however, are entirely lacking in
in petitioner's statements nor corroborativeeyid~Q~e ~ls~wh!:1re, .Si~ilarJy, the only source of ..
respondents' assertion that petitioner delivered a detonation device for attacks on U.S. forces is a
single, unreliable raw intelligence report. See . The same holds true for
respondents' claims that petitioner was a HIG propaganda leader in Kabul, see
. ' and that petitioner's name was foun~ in th~. J?~rs.o.~~~.P.~?!l~ book ;of a man who attempted to
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run through a U.S. checkpoint, ~ Lacking any corroboration, these reports
must stand on their own. But because they lack the information the Court needs to gauge their
reliability, the allegations in the reports cannot be used to justify petitioner's detention. See
Parhat, 532 F.3d at 847-48. Hence, none of these last four aspects of respondents' narrative are
reliable enough for respondents, and hence this Court, to rely on them in justifying petitioner's
detention.
In sum, of the eight aspects of respondents' narrative set out above, only half may be used
to justify petitioner's detention at this stage of the proceedings. The allegation
that RIG was a terrorist
organization at the time of petitioner's capture, that. was a RIG commander, and that
petitioner was active in HIG as a communicator at the time of his capture are sufficiently
corroborated for respondents to rely upo.~ 0~~. ~~.~hi~ ,~t~~,~..~f.the pr.oceedings. Because the
remaining allegations are not supported by reliable evidence, the Court will not consider those
assertions in resolving petitioner's motion for judgment on the record.
2. Materials Found in Petitioner's Rome
Six reports from the so-called _ database describe materials found in
petitioner's home after his capture in The first describes an Arabic notebook
containing information regarding assassinations and a plan to kidnap the President of the United
States. . The notebook also contains information regarding intelligence,
surveillance, and counterfeiting. The second report describes a book of poetry (in Arabic)
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written by Abu Hafs, an al Qaeda leader. . Third is a report cataloging
money worth about SO cents. The fourth report describes Persian or Farsi
documents that appear to be someone else's personal documents, but also contain information
about land mine recognition. Fifth is a report about an Arabic notebook
describing the use of several kinds of weapons. According to the report, the first page of the
notebook "has the name of who's most likely to be the owner of this
notebook." The final report describes Pushtu music in praise of the
Taliban.
Petitioner contends that these reports are unreliable for the same reasons the raw
intelligence reports are unreliable. But raw intelligence reports are "human intelligence"
whereas these reports describe physical items found in petitioner's home. Therefore, the same
hallmarks of reliability analysis does not apply.
See, e.g., •
• . Id. But he does not deny that these materials were found in his home. The reason he
possessed these materials, then, requires a credibility determination that this Court cannot make
at this stage of the proceedings. Hence, because the reports of physical items found in
petitioner's home are not inherently unreliable in the same way the other raw intelligence reports
are, respondents may rely on these reports at this stage of proceedings to justify petitioner's
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II. Reliable Evideoce to Justify Petitioner's Detention
To determine whether respondents have provided sufficient reliable evidence to satisfy
their initial burden ofjustifying petitioner's detention, the Court will apply respondents' standard
for their authority to detain,S under which a person who was "part of, or substantially supported,
Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United
States or its coalition partners, including any person who has committed a belligerent act, or has
directly supported hostilities, in aid of such enemy armed forces" may be detained. See Resps.'
Rev. Mem. Re: Detention Authority, As discussed above, the reliable evidence presented by
respondents to justify petitioner's detention is as follows: petitioner was active in HIG during
jihad against the former Soviet Union; HIG was a terrorist organization at the time of petitioner's
capture;. was a HIG commander; petitioner was a HIG communicator at the time of his
capture; and petitioner possessed some al Qaeda- or Taliban-related material at the time of his
capture. Additionally, petitioner has stated that he was conscripted by the Taliban in the late
1990s and worked as a guard and laborer for two months. See ISN 899 FM-40 (Feb. 7, 2003);
see also ARB Tr. at 3-4.
The question, then, is whether this evidence is sufficient for respondents to meet their
initial burden of demonstrating that petitioner's detention is justified. The Court determines that
it is. Respondents have provided enough evidence to show that HIG qualifies as an "associated
force£] ... engaged in hostilities against the United States or its coalition partners." See~
8 As discussed previously, petitioner has accepted respondents' statement of the detention authority for the purpose of the present motion.,'\1 ,\.' \ ':;1 t , Pct'r's Mem, at 16. .
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To be clear, the Court offers no opinion at this stage of the proceedings as to whether this
evidence and these allegations are ultimately sufficient to justifY petitioner's detention under the
Court's May 19,2009 interpretation .0J.(€
offers no opinion as to petitioner's credibility or the ultimate inferences that it will draw from the
evidence as presented. The Court only holds that although much of respondents' evidence is
fatally lacking adequate indicia of reliability, the evidence that remains is sufficient -- under
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respondents' previous interpretation of their authority to detain -- to warrant denial of petitioner's
motion. Accordingly, petitioner's motion for judgment on the record will be denied. A separate
order accompanies this opinion.
/s/ JOHN D. BATES United States District Judge
Date: July 31, 2009
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