Khan v. Obama

655 F.3d 20, 398 U.S. App. D.C. 20, 2011 U.S. App. LEXIS 18471, 2011 WL 3890843
CourtCourt of Appeals for the D.C. Circuit
DecidedSeptember 6, 2011
Docket10-5306
StatusPublished
Cited by43 cases

This text of 655 F.3d 20 (Khan v. Obama) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Khan v. Obama, 655 F.3d 20, 398 U.S. App. D.C. 20, 2011 U.S. App. LEXIS 18471, 2011 WL 3890843 (D.C. Cir. 2011).

Opinion

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge:

Shawali Khan, a detainee at the United States naval base at Guantanamo Bay, Cuba, appeals the denial of his petition for a writ of habeas corpus. The district court found that Khan was “part of’ Hezb-i-Islami Gulbuddin (HIG), an associated force of al Qaeda and the Taliban engaged in hostilities against the United States and its coalition partners. Khan’s primary contention on appeal is that the district court erred in concluding that intelligence reports offered by the government to prove his membership in an HIG cell were reliable. Finding no error in the district court’s careful consideration of the evidence, we affirm its denial of Khan’s petition.

I

Khan is an Afghan citizen who, at the time of his capture in mid-November 2002, lived in Kandahar, Afghanistan. By the government’s account, Khan’s affiliation with HIG began in the 1980s, when he served as a radio operator for the group under the command of his uncle, Zabit Jalil, during the anti-Soviet jihad. The government alleges that, after September 11, 2001, HIG formed an alliance with al Qaeda and the Taliban to attack U.S. and coalition forces operating in Afghanistan. According to contemporaneous reports by U.S. Army intelligence collectors, three Afghan informants told the collectors about the presence of a small HIG terrorist cell in Kandahar. 1

One of the informants (hereinafter Informant A), later identified as a disaffected member of the HIG cell, told the intelligence collectors in late October 2002 that Khan was a communicator for the cell, facilitating radio contact among its members. He also reported that the cell was directed from Quetta, Pakistan, by Khan’s uncle. Intelligence Information Report (IIR) 6 044 0266 03 at 1-3 (Oct. 29, 2002) (J.A. 1731-33). According to Informant A, this cell was responsible for explosions near the Kandahar airfield and was planning additional attacks on U.S. forces using radio-controlled binary explosive devices positioned on roads frequented by U.S. military vehicles. IIR 6 044 0249 03 at 1-4 (Oct. 29, 2002) (J.A. 1726-29).

Informant A gave the intelligence collectors specific information about the cell’s method of operation. For example, he described how the cell would detonate two explosions timed to maximize casualties:

When the Americans are close enough to the kill zone, the first explosion is detonated ____The intent of the first explosion is to cause injury and disable the vehicle. This act will force other Americans to investigate the scene and help evacuate the wounded. When a large enough crowd has gathered around the disabled vehicle and wounded personnel, *22 a second, more powerful explosion is detonated.... The purpose of the second explosion is to kill the wounded and those who are trying to help them.

Id. at 3 (J.A. 1728); see IIR 6 044 0267 03 at 3 (Oct. 30, 2002) (J.A. 1738). Informant A also identified the precise radio frequencies the cell used in a particular sequence to detonate the two explosions. IIR 6 044 0249 03 at 3 (J.A. 1728); Classified J.A. 1728; see Gov’t Br. 10. And in another meeting, he provided additional specific details about some of the cell’s intended targets and the type of explosive device used — “a Chinese or Russian antitank mine approximately 12 inches in diameter” connected to an “electric blasting cap” that is in turn “attached to the radio-controlled electronic detonator.” IIR 6 044 0267 03 at 2-3 (J.A. 1737-38).

Further details about Khan’s role in the Kandahar HIG cell came from a second Afghan informant (hereinafter Informant B), who “did not personally witness the events he described,” but had “indirect access” to the information. Deck of Intelligence Collector 1 at ¶ 23 (Mar. 15, 2010) (J.A. 1543); see Deck of Intelligence Collector 2 at ¶ 20 (Mar. 10, 2010) (J.A. 1572). Informant B reported that Khan was “a go-between and a facilitator” within the cell, that he “use[d][his] oil shop to conduct meetings and as a contact point with other members within the cell,” and that on November 9, 2002, he “delivered a radio-controlled binary detonation device and two blasting caps to an operative working within his organization.” IIR 6 044 0025 03 at 3 (Nov. 9, 2002) (J.A. 1723).

Finally, a third informant, an Afghan government official (hereinafter Informant C), revealed more about the Kandahar HIG cell’s plans to attack U.S. and coalition vehicles at two specific locations. IIR 6 044 0300 03 (Nov. 3, 2002) (J.A. 1744-45). He told the intelligence collectors that “mines ha[d] already been emplaced” at these locations, but that “they ha[d] not been armed with a remote detonation device.” Id. (J.A. 1745).

In mid-November 2002, U.S. military officials decided to neutralize the HIG cell. They planned an operation to capture Khan at' his shop, using Informant A’s tip that Khan would be there at a particular time. The operation was a success, and Khan’s home and shop were searched after his arrest. As reflected in several reports and underlying exhibits, the searches uncovered a variety of physical evidence, including a notebook containing Arabic writing about various terrorist activities, a book of poems written in Arabic by a high-level al Qaeda leader, a notebook from the “al-Farouk camp” containing Arabic writing about the use and maintenance of weapons, a notebook with Arabic writing and pictures of Osama bin Laden, Pashtu music praising the Taliban, and a receipt for weapons. See Gov’t Br. 13 n. 4 (summarizing material recovered from Khan’s properties).

In addition, and more significant, heavily redacted classified intelligence reports state that the search of Khan’s properties yielded further, particularly incriminating evidence that confirmed his role in the Kandahar HIG cell. Gov’t Br. 13, 55. One of those reports states that [Redaction 1].

On November 22, 2002, Informant B told the intelligence collectors that, after Khan’s capture by U.S. forces, Khan’s uncle called a meeting with several HIG operatives in Pakistan to replace the entire Kandahar cell. IIR 6 044 0433 03 at 1-2 (Nov. 22, 2002) (J.A. 1753-54). According to the government, improvised explosive device (IED) attacks stopped in the area for about two months after Khan’s capture. Deck of Intelligence Collector 2 at ¶ 15 (Mar. 10, 2010) (J.A. 1570).

*23 During an interrogation by U.S. personnel on December 17, 2002, Khan admitted to possessing [Redaction 2], but said that [Redaction 3]. 2 In subsequent interrogations, he at times admitted to possessing other pieces of physical evidence, and offered exculpatory explanations for some of them. 3 In several interrogations, he also admitted that he had been part of the HIG army during the fight against the Soviet Union in the 1980s and that his uncle Jalil had commanded HIG forces against the Soviets; but at other times, he said he had never been an official member of HIG and/or denied any affiliation with HIG. See Pet’r Br. 11-12 (citing interrogation reports).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
655 F.3d 20, 398 U.S. App. D.C. 20, 2011 U.S. App. LEXIS 18471, 2011 WL 3890843, Counsel Stack Legal Research, https://law.counselstack.com/opinion/khan-v-obama-cadc-2011.