# Khairkhwa v. Bush > District Court, District of Columbia · June 23, 2011 URL: https://www.frixlaw.com/law-library/cases/2664127 ## Case - **Court:** District Court, District of Columbia - **Decided:** June 23, 2011 - **Precedential status:** Published - **Opinion:** Opinion - **Judges:** Judge Ricardo M. Urbina - **Nature of suit:** Civil - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2664127 ## How later opinions describe it (automated extraction) - noting that the weight of the evidence is a matter to be assessed by the trier of fact - concluding that a longshoreman with twenty-nine years of experience in various positions within the industry was qualified to testify as an expert about proper safety procedures - noting that Williams offered expert testimony on Afghan warlords - noting that the court conducted an ex parte review ofunredacted copies of certain intelligence reports to assess their reliability ## Opinion text UNCLASSIFIEDIIFOR PUBLIC RELEASE SECRET UNITED STATES DISTRICT COURT FILED WfnI THE FOR THE DISTRICT OF COLUMBIA cg~TS~ KHAIRULLA SAID W ALI DATE:_~~~~~:..r...-_ KHAIRKHWA, Petitioner, Civil Action No.: 08-1805 (RMU) v. Re Docwnent Nos.: 1, 187, 197 BARACK OBAMA et al., Respondents. MEMORANDUM OPINION DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS DENYING AS MOOT THE GOVERNMENT'S MOTION FOR THE COURT TO CONSIDER Ex PARTE INFORMATION ON THE MERITS OVERRULING THE GOVERNMENT'S OBJECTION TO THE PETITIONER'S RELIANCE ON MATERIALS OUTSIDE THE RECORD I. INTRODUCTION This matter comes before the court on the petition for a writ of habeas corpus filed by Khairulla Said WaH Khairkhwa (ISN 579) ("the petitioner"), an Afghan national detained at the United States Naval Station in Guantanamo Bay, Cuba ("GTMO"). The government contends that the petitioner, a former senior Taliban official, is lawfully detained because he was part of Taliban forces and purposefully and materially supported such forces in hostilities against the United States. The petitioner maintains that his detention is unlawful because he was merely a civilian administrator in the Taliban government with no involvement in the Taliban's military operations, and because he had disassociated himself from the Taliban by the time ofhis capture. In March 2011, the court held a merits hearing to assess the lawfulness of the petitioner's detention. During the eourse of that hearing, the parties introduced dozens of exhibits from a SECREl UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE SECItE'f variety of classified and public sources, including media reports, scholarly works, interrogation reports and declarations from intelligence analysts. The court also received live testimony and declarations from subject matter experts offered by the petitioner. At the conclusion of the hearing, both parties submitted detailed proposed findings of fact and conclusions of law encapsulating and amplifying the evidence and argument presented during the merits hearing,) Having carefully considered the parties' extensive presentations, the court reaches the following findings. The petitioner was, without question, a senior member of the Taliban both before and after the U.S.-led invasion of Afghanistan in October 2001. The petitioner served as a Taliban spokesperson, the Taliban's Acting Interior Minister, the Taliban Governor of Kabul and a member of the Taliban's highest governing body, the Supreme Shura. The petitioner was a close associate ofTaliban leader Mullah Mohammed Omar, who appointed him Governor of the province of Herat in 1999. The petitioner held this office at the time the Taliban government feU to U.S. coalition forces in late 2001. Although the petitioner contends that he had no military responsibilities in any of his posts within the Taliban, the record belies that contention. The petitioner has repeatedly admitted that after the terrorist attacks of September 11, 2001, he served as a member of a Taliban envoy that met clandestinely with senior Iranian officials to discuss Iran's offer to provide the Taliban with weapons and other military support in anticipation of imminent hostilities with U.S. coalition forces. The petitioner has also exhibited a detailed knowledge about sensitive military-related matters, such as the ]ocations, personnel and resources ofTaliban military installations, the relative capabilities of different weapons systems and the locations of The government has objected to the petitioner's reliance on eleven documents that were not made a part of the record, but are nevertheless cited in the petitioner's proposed findings of facts and conclusions of law. See generally Govt.'s Opp. To Petr's Reliance on Materials Outside the Record. The government's objection is overruled. SECRET UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE weapons caches. Furthermore, the petitioner operated within the Taliban's fonnal command structure, providing material support to Taliban fighters both before and after the outset of hostilities with U.s. coalition forces. These facts are consistent with the TaHban's governance model, in which nearly all senior Taliban officials were tasked with both civilian and miHtary responsibilities. Despite the petitioner's efforts to portray himself as a reluctant, marginal figure within the Taliban, the record indicates that the petitioner rose to the highest level of the Taliban and had close ties to Mullah Omar, who repeatedly appointed the petitioner to sensitive, high-profile positions. Indeed, even after the U.S.-led invasion of Afghanistan, the petitioner remained within Mullah Omar's inner circle, despite the fact that Mullah Omar had Hmited his contacts to only his most trusted commanders. The petitioner remained part of Taliban forces at the time of his capture in early 2002. Although the petitioner contacted individuals allied with the United States to discuss the possibility of surrendering himself to U.S. coalition forces, he never turned himself in and was ultimately captured at the home of a senior Taliban military commander. In sum, based on a totality of the evidence, the court concludes that the government has proven by a preponderance of the evidence that the petitioner was part of Taliban forces at the time of his capture. The petitioner is therefore lawfully detained and his petition for a writ of habeas corpus must be denied. 8EyRET UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE II. BACKGROUND A. Factual Overview The following facts are undisputed. The petitioner was born in the Kandahar province of Afghanistan some time between 1967 and 1972. GE 91 2 (Joint Stipulation of Undisputed Facts) ~ 10; GE 20 (lSN 579 FD-302 (July 2, 2002) at 1; GE 44 (ISN 579 FD-302 (May 26, 2002» at 1; GE 45 (ISN 579 FD-302 (May 13.2002» at 1; GE 70 (ISN 579 CSRT Summarized Statement (Nov. 8,2004» at l-2. He is a Durrani Pashtu and a member of the Popalzai tribe. GE 91 ~ 11. Following the Soviet invasion of Afghanistan in 1979, the petitioner relocated with his family to a refugee camp near Quetta, Pakistan. GE 20 at 1. The petitioner spent the bulk of his youth in Pakistan and was educated at different madrassas3 in that country. GE 91 ~ 14; GE 43 (ISN 579 MFR (May 10, 2002» at 1; GE 45 at 1. In 1994, with the Soviets expelled from Afghanistan and various factions fighting for control over the country, the petitioner returned to Afghanistan. GE 91 ~ 13. He moved to the village of Spin Boldak in Kandahar province, where he began working for the Taliban. ld In Spin Boldak, the petitioner functioned primarily as a wayand, or spokesperson, serving as the Taliban's spokesman to media outlets such as the BBC and Voice of America. GE 20 at 1-2; GE 45 at L The petitioner also served as the Taliban's district administrator for Spin Boldak, the 2 Citations to "OE _ " refer to the exhibits introduced by the government during the merits hearing, whereas citations to "PE _ " refer to the exhibits introduced by the petitioner during the merits hearing. 3 "Madrassa" (plural·'madaris") derives from the Arabic word for "school." In Pashto, the term is commonly used to refer to religious schools ("deeni madaris"). See GE 88 at 20. UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE highest-ranking official in that city. GE 71 (ISN 579 ARB Statement (June 22, 2006) at 3; Mar. 31 Tr. at 87.4 The petitioner rose quickly through the Taliban ranks. In 1996, the petitioner was appointed Governor of Kabul, PE 110 ~ 50, and shortly thereafter, became the Taliban's Acting Minister of the Interior, id; GE 91 ~ 16. By that time, the Taliban had seized control over southern and central Afghanistan, including Kabul, and were advancing on the Northern Alliance stronghold city of Mazar-e-Sharif. 5 GE 91 ~~ 2-3. The Taliban attempted to seize the city in May and September 1997, but both assaults proved unsuccessful. [d. ~ 3. The Taliban finally captured Mazar-e-Sharif in August 1998. ld ~ 4. On October 26, 1999, the petitioner was appointed Governor of Herat, id ~ 17, the westernmost province in Afghanistan, GE 92. The petitioner held this post when U.S. coalition forces commenced Operation Enduring Freedom on October 7,2001. See GE 91 ~ 5. By mid- November 2001, U.S. coalition forces had pushed the Taliban out of Mazar-e-Sharif, Herat and Kabul. Id. ~~ 6-8. Kandahar fell in early December 2001. Id In late January or early February 2002, Pakistani authorities captured the petitioner in Chaman, Pakistan at the home of Abdul Manan Niazi, the former Taliban Governor of Kabul. Id ~ 18. The petitioner has been detained at GTMO since approximately March 2002. B. Procedural History In June 2008, the Supreme Court issued its ruling in Boumediene v. Bush, 12& S. Ct. 2229 (2008), in which the Court held that individuals detained at GTMO are "entitled to the privilege The merits hearing occurred on March 28-31, 2011. Citations to the hearing transcript shall be made by designating the date of the proceedings. During the merits hearing. the parties presented a substantial amount of evidence regarding the petitioner's alleged role as a Taliban commander during the assaults on Mazar-e-Shariff. See infra Part IV.B.2. SECRET 5 UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE SECRtyf' of habeas corpus to challenge the legality of their detention," id. at 2262, and that the federal district courts have jurisdiction over such challenges, id. at 2274. Shortly thereafter, the petitioner fi1ed a petition for a writ of habeas corpus challenging the legality ofhis detention at GTMO. See generally Pet. Although the Supreme Court did not specify what procedures the district courts were to employ in resolving habeas petitions fi1ed by GTMO detainees, it did emphasize that the "detainees in these cases are entitled to a prompt habeas corpus hearing." Boumediene, 128 S. Ct. at 2275. Toward that end, this court and other judges in this district agreed to consolidate their cases before Judge Hogan for the purpose of adopting common procedures for the GTMO detainee litigation. See Minute Order (Oct. 29,2008). On November 6, 2008, Judge Hogan issued a Case Management Order ("CMO") to govern these proceedings, which he amended on December 16, 2008. See generally Am. CMO (Dec. 16, 2008). This court adopted the provisions of the amended CMO, subject to modifications set forth in an Omnibus Order issued on April 23, 2009. See generally Omnibus Order (Apr. 23, 2009). The government filed its factual return for the petitioner in December 2008. See generally Factual Return. Following an extensive period ofdiscovery, the petitioner filed his traverse in December 2009. 6 See generally Traverse. In April 2010, the parties filed cross- motions for judgment on the record. See generally Govt's Mot. for J. on the R.; Petr's Cross- Mot. for J. on the R. The court denied the parties' cross-motions after concluding that there were genuine issues of material fact in dispute, and scheduled a merits hearing to begin in November The court granted the government's motion for leave to amend the factual return in September 2010, Mem. Op. (Sept. 16,2010) at 3-6, and in early March 2011, granted both the government's unopposed second motion for leave to amend the factual return and the petitioner's unopposed motion for leave to amend the traverse, Order (Mar. 7,2011). The court granted the government's unopposed third motion for leave to amend the factual return on March 25, 2011. Minute Order (Mar. 25, 2011). SEC RE,. 6 UNCLASSIFIEDIIFOR PUBLIC RELEASE , , UNCLASSIFIEDIIFOR PUBLIC RELEASE 2010. Order (Sept. 16,2010). At the petitioner's request, the court rescheduled the merits hearing to March 2011. Order (Oct. 12,2010). The merits hearing began on March 28, 2011 and spanned four days. During the course of the hearing, the parties introduced dozens of exhibits and offered extensive argument concerning the lawfulness of the petitioner's detention. The court also received live testimony from a subject matter expert called by the petitioner. See infra Part III.D. At the conclusion of the merits hearing, the parties submitted proposed findings of fact and conclusions of law. With the record now complete, the court turns to the applicable legaI standards and the evidence and argument presented by the parties. III. EVIDENTIARY MATTERS A. Framework for Assessing the Evidence In assessing whether the government has shown that the petitioner is lawfully detained, the court "must evaluate the raw evidence, finding it to be sufficiently reliable and sufficiently probative to demonstrate the truth of the asserted proposition with the requisite degree of certainty." Bensayah v. Obama, 610 F.3d 725, 725 (D.C. Cir. 2010) (quoting Parhat v. Gates, 532 F.3d 834, 847 (D.C. Cir. 2008)). Thus, when relying on any piece of evidence in these GTMO habeas proceedings, the court must examine that evidence to "detennine whether the evidence is in fact sufficiently reliable to be used as a justification for detention." Khan v. Obama, 646 F. Supp. 2d 6, 12 (D.D.C. 2009); see also Naji al Warafi v. Obama, 704 F. Supp. 2d 32,38 (D.D.C. 2010) (observing that "[iJn Guantanamo habeas proceedings, the Court must assess the accuracy, reliability, and credibility of each piece of evidence presented by the parties in the context of the evidence as a whole" (internal quotation marks omitted»). SECRET 7 UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE The reliability of any piece of evidence may be established by the intrinsic characteristics of that evidence, such as the nature and consistency of the details contained in an account, Barhoumi v. Obama, 609 F.3d 416, 428~29 (D.C. Cir. 2010), as well as through corroboration by other evidence in the record, id. at 429 (noting that "an intelligence report's reliability can be assessed by comparison to 'exogenous information"'); Bensayah, 610 F.3d at 725-26 (citing Parhat, 532 F.3d at 849). Two pieces of evidence, "each unreliable when viewed alone," can corroborate each other and mutually establish their reliability. Bensayah, 610 F.3d at 726 (citing United States v. Laws, 808 F.2d 92, 100-03 (D.C. Cir. 1986». In this case, the government has based its case on a variety of classi1ied and public materials, including scholarly works, media reports, expert declarations, intelligence reports, interrogation reports reflecting statements made by the petitioner and other detainees and transcripts ofthe petitioner's testimony to the Combatant Status Review Tribunal ("CSRT") and the Administrative Review Board ("ARB"). A number of these documents contain multiple levels of hearsay. See FED. R. EVID. 801(c). As dictated by this Circuit, the court shall individually assess the reliability of each exhibit that it relies on in the course of its analysis. See infra Part IV. B. Admissibility and Reliability of Hearsay Evidence Prior to the merits hearing, the government submitted a motion in which it argued that the court should afford a presumption of accuracy and authenticity to its hearsay evidence. See generally Govt's Hearsay Mot. Noting that the motion was substantively identical to motions resolved by this court in other GTMO cases, the court granted in part and denied in part the government's motion in an order issued prior to the merits hearing. Order (Mar. 17,2011) (citing Alsabri v. Obama, 2011 WL 576064, at *5-6 (D.D.C. Feb. 3, 2011); Hatim v. Obama, 677 SECRET' 8 UNCLASSIFIEDIIFOR PUBLIC RELEASE , , UNCLASSIFIEDIIFOR PUBLIC RELEASE F. Supp.2d 1, 7-10 (D. D.C. 2010), rev'd on other grounds, 632 F. 3d 720 (D.C. Cir. 2011». The reasoning underlying the court's ruling is set forth in greater detail below. The Circuit has made clear that although "hearsay evidence is always admissible in Guantanamo habeas proceedings, such evidence must be accorded weight only in proportion to its reliability." Barhoumi, 609 F.3d at 428 (D.C. Cir. 2010). As the Circuit has stated, "the question a habeas court must ask when presented with hearsay is not whether it is admissible - it is always admissible - but what probative weight to ascribe to whatever indicia of reliability it exhibits." Al Bihani v. Obama, 590 F.3d 866,879 (D.C. Cir. 2010). Nothing in these Circuit decisions suggests that the court should presume the accuracy or reliability ofthe government's exhibits; to the contrary, as previously noted, the Circuit has stated that before relying on any piece of evidence, the court must determine that it is sufficiently reliable and probative. Bensayah, 610 F.3d at 725 (citing Parhat, 532 F.3d at 847); cf Al Odah V. Obama, 611 F.3d 8, 14 (D.C. Cir. 2010) (holding that the district court did not err in relying on hearsay evidence where "[t]he government offered reasons why its hearsay evidence had indicia of reliability, and the court considered the reliability of the evidence in deciding the weight to give the hearsay evidence"). Drawing on these principles, this court has held that although hearsay evidence is always admissible in these habeas proceedings, the court cannot presume the accuracy of such evidence, but must instead make individualized determinations about the reliability and accuracy of that evidence and the weight it is to be afforded. A/sabri, 2011 WL 576064, at *5 (citing Hatim, 677 F. Supp. 2d at 10)). The court has also held that based on the principles underlying Federal Rule of Evidence 803(6), which sets forth the hearsay exception for reports of regularly conducted activity, the government's interrogation reports and intelligence reports are entitled to a SECRE1· 9 UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE presumption of authenticity. Id; see also Almerfedi v. Obama, 2010 WL 691944, at "'1 (D.D.C. Mar. 1,2010) (concluding that all of the government's hearsay evidence was admissible and that any evidence created and maintained by the government in the ordinary course of business was entitled to a rebuttable presumption of authenticity, but rejecting the government's argument that its evidence should be afforded a presumption of accuracy). As described below, the court has applied the same framework in assessing the hearsay evidence introduced by the government in this case. See infra Part IV. C. Reliance on Ex Parte Information During the course of this litigation, the government has filed a number of motions for leave to provide the petitioner with redacted versions of certain documents that are subject to the automatic disclosure provisions of the CMO. The motions were brought pursuant to § LF of the CMO, which provides that "[i]fthe government objects to providing the petitioner's counsel with classified information [otherwise subject to disclosure], the government shall move for an exception to disclosure." CMO § I.F. Relying on the Circuit's ruling inAI Odah, the court issued a series of rulings on these motions, ultimately granting the government leave to redact portions of certain documents disclosed to the petitioner. See, e.g., Mem. Order (May 25, 2010); Mem. Order (Oct. 5, 201 0) (granting in part and holding in abeyance in part the government's renewed fourth ex parte motion for exception from disclosure and directing the government to provide further explanation for its redaction to one document); see also Al Odah v. United States, 559 F.3d 539,545-47 (D.C. Cir. 2009) (concluding that the court may order the disclosure of classified information to the petitioner only if the evidence is material, access by petitioner's counsel is necessary to facilitate meaningful habeas review and there are no adequate alternatives to disclosure). SECRET 10 UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE In June 2010, the petitioner filed a motion seeking access to the government's ex parte filings. See generally Petr's Mot. for Access to Ex Parte Filings. The court denied the motion, concluding that § I.F of the CMO contemplates ex parte applications for exceptions from disclosure. Mem. Op. (Sept. 16,2010) at 6-9. In so ruling, however, the court noted that it had no intention of relying on any redacted, ex parte information in determining the legality of the petitioner's detention.' Id at 8-9. On March 27, 20 II, the government filed a motion, in which it argued that the court should, in assessing the lawfulness ofthe petitioner's detention, consider ex parte certain information redacted from the documents disclosed to the petitioner. s See generally Govt's Mot. that the Court Consider on the Merits Infonnation Contained in Its 3d & 5th CMO § LF. Motions ("Govt's Mot. for Ex Parte Consideration"). According to the government, the Circuit's ruling in Al Odah implicitly acknowledges the court's authority to rely on ex parle materials when the petitioner's access to that infonnation is not necessary to facilitate the court's meaningful review. See generally id The petitioner disagrees, citing the well-established presumption against the court's reliance on materials to which both parties do not enjoy access. See generally Petr's Opp'n to Govt's Mot. for Ex Parte Consideration. The court is aware that at least one judge in this district has relied on ex parte infonnation to assess the reliability of materials submitted by the government during a merits hearing. See Khan v. Ohama, 741 F. Supp. 2d 1, 17 (D.D.C. 2010) (noting that the court conducted an ex parte review ofunredacted copies of certain intelligence reports to assess their reliability). In this immediate case, however, the court finds it unnecessary to rule on the issue because, as 7 The court reiterated this position in its ruling on the government's fifth ex parte motion for exception from disclosure. Mem. Order (Mar. 11,2011) at 3 n.ll. The government submitted unredacted versions ts at issue with its ex parte motions for exception from djsclosure.a.""l~;.' ~"y .... \ L~", ~ 17 UNCLASSIFIEDIIFOR PUBLIC RELEASE I ! UNCLASSIFIEDIIFOR PUBLIC RELEASE located in Herat. See generally PE lIlA. The government does not dispute Williams's qualifications to offer testimony on subjects one and four. Mar. 31 Tr. at 6. The government asserts, however, that Williams lacks the qualifications necessary to offer expert testimony on subjects two and three, both of which concern the relationship between the Taliban and Iran. ld More specifically, the government contends that Williams has little expertise on Afghanistan or the Taliban, having focused the majority of his schoJarJy endeavors on the Russian Caucasus and Turkey, and that he has no specialized education or training on Iran. Id at 6-21. The government also points to mistakes and inconsistencies in testimony offered by Williams in other GTMO proceedings as evidence ofhis lack of expertise. Id at 22-30. The court disagrees with the government's assessment of Williams's expertise. The government itself has previously relied on Williams as an expert on the Taliban. Williams authored a book published in 2001 by U.S. Army Publications entitled "Afghanistan 101: A Guide to the Afghan Theater of Operations," GE 100, 5, and has lectured on the Taliban and Afghanistan at the U.S. Special Operations Command at Macdill Air Force Base ("The Role of Foreign Fighters in the Taliban Insurgency"), Air Force Special Operations Command at Hurlburt Airfield ("Waging Counter-Insurgency in Afghanistan 1842-2008"), the Joint Information Operations Warfare Command at Lackland Air Force Base ("Background on Islam, Suicide Terrorism and Jihad in the Middle East'') and the Central Intelligence Agency's Counter Terrorist Center ("Profiling Afghan Suicide Bombers"), GE lilB (Curriculum Vitae of Brian Williams) at 9-10. Williams has worked for a U.S. Army Information Operations team at NATO Headquarters in Kabul and wrote the Joint Information Operations Warfare Command's field manual on Afghanistan. PE lIlA, 2. 18 UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE S'BCH'f' Williams has traveled to Afghanistan on four occasions since the fall of the Taliban government. Id. He has also authored articles discussing Afghanistan in the age of Taliban-rule that have been published in scholarly journals, 11 as well as policy journals and other 12 collections. PE 111 B at 3-7. Furthennore, Williams has taught at least one course covering modem Afghan history, including the period of the Taliban, titled "Empires and Invasions: A History of Afghanistan from Genghis Khan to the War on Terror." GE 95 at 1. Given his demonstrated scholarship on the history of the Taliban, as well as the government's own reliance on him as an expert on matters related to the Taliban, it is clear that Williams possesses the specialized knowledge needed to offer expert opinion testimony on the Taliban and Afghanistan. Indeed, as previously noted, the government has conceded that Williams is qualified to offer expert testimony about the battle for Mazar-e-8harif during the rise of the Taliban and about the presence of al-Qaida bases in Herat province during the Taliban's rule over Afghanistan. See Mar. 31 Tr. at 6. Such expertise could not be obtained without developing a specialized knowledge of the Taliban's relationships with its regional neighbors, including Iran. It is well-established that Iran, which shares a 400-mile border with Afghanistan, played a central role in Afghan affairs during the TaJiban's rise to power, providing substantial military support to the Northern Alliance and other groups in their struggle for control of Afghanistan. See, e.g., PE 75 (Thomas H. Johnson, Ismail Khan, Herat, and Iranian Influence, 3 8TRATEGle INSIGHTS, no. 7, July 2004, at 1) at 3; PE 76 (Mohsen M. Milani, Iran's Policy Towards Afghanistan, 60 MIDDLE E.J., no. 2, II See, e.g., Brian Williams, Reportfrom the Field General Dostum and the Mazar i Sharif Campaign: New Light on the Northern Alliance Warlords in Operation Enduring Freedom, 21 SMALL WARS AND INSURGENCIES, no. 4, Dec. 2010, at 610, 611-15. 12 See, e.g., Brian Williams, The Failure ofAl Qaeda Basing Projects: From Soviet Afghanistan to the Sunni Triangle, in DENIAL OF SANCTUARY. UNDERSTANDING TERRORIST SAFE HAVENS 49, 58-59 (Michael Innes ed. 2007). ,,, (e " , UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC' RELEASE Tahair, who had previously worked with the Iranians, Abdul Manan Niazi, the Governor of Kabul who had overseen the massacre at Mazar-e-Sharif in August 1998, and the petitioner. GE 56 at 1; GE 57 at 1; GE 60 at 1. The Iranian delegation included the Deputy Commander of the Iranian Foreign Intelligence Service and the Head of the Afghan Department of the Iranian Foreign Intelligence Service. GE 56 at 1; GE 57 at I; GE 60 at 1. The petitioner has provided highly detailed and consistent accounts of what took place during that October 2001 meeting. For instance, during a March 2002 interrogation, the petitioner stated that at the October 2001 meeting, the Iranian delegation offered to purchase for the Taliban hand~held Russian manufactured, anti-aircraft missiles, which are superior to Stinger missiles. The Iranians claimed these missiles could fire to a higher elevation than a Stinger missile The Iranians referred to the missiJe as a SAM haft (Field Comment - the word haft means the number seven in the Persian-Afghan language). The Iranians refused to give more information on the missiles until the Taliban delegation proved they had money to buy the missiles. The Iranians als~ said they would buy other military equipment for the Taliban, but would not identifY the type of equipment until the Taliban delegation proved they had enough money .... The Iranians also offered to open the [IranJ/[Afghanistan] border for Arabs traveling to and from [AfghanistanJ. The Iranians would let any Arab past their border checkpoints entering [Afghanistan]. GE 56 at 2. The petitioner provided a highly consistent account during a May 2002 interrogation, stating that "Iranian officials offered to broker a peace between the Taliban and the Northern Alliance so Muslims could unite against the United States. The Iranian officials said that Iran could track all movements by the United States." GE 57 at 1. According to the petitioner, "Iranian officials also offered to sell the Taliban SAM-7 missiles and other [unidentified] weapons if the Taliban could prove that they had the money to buy them. The Iranians also offered to open their border to Arabs entering Afghanistan. The Afghanistan officials were directed to take the offers to Mullah ((Omar» and send back a response." Id. at 2. 62 UNCLASSIFIEDIIFOR PUBLIC RELEASE . .. I I UNCLASSIFIEDIIFOR PUBLIC RELEASE SIUgM!:l' Likewise, during an interrogation the petitioner stated that during the October 2001 meeting, [tJhe Iranians offered the following to the Taliban: • Soviet-made SA-7 shoulder-fired anti-aircraft missiles (which were billed as being better than U.S. Stinger missiles)[;] • other unspecified military equipment (which Khairkhwa assumed was also Russian-made)[; and] • an offer to allow an open border between [Imn] and [Afghanistan] to allow Arabs from Gulf States unfettered access to [Afghanistan] in order to help the Taliban against U.S. and Allied forces. GE 60 at 3. The petitioner also noted that the Iranians indicated their ability to monitor the activities ofthe U.S. military. ld According to the petitioner, "[tJhe Iranians had told [him] that 'We are following them (the U.S.) everywhere. Khairkhwa was unsure if they meant that they had satellite capability, but thought the Iranians were speaking figuratively rather than literally regarding intelligence collection." Id The petitioner also acknowledged during his CSRT hearing that he was present at the October 2001 meeting during which Iran pledged to assist the Taliban in their war with the United States, GE 70 at 2, and testified during his ARB hearing that at the October 2001 meeting, "[t]hc Iranians offered to buy weapons for us because we were on restriction and could not buy them. That is the truth." GE 71 at 8. These statements, given at different times during the petitioner's detention, are highly consistent with one another, and there is no evidence that these statements are unreliable because they were elicited through undue coercion or duress. Accordingly, the court considers these statements reliable evidence that the petitioner was part of the Taliban delegation that met with Iranian officials to discuss Iran's offer to provide the Taliban with military aid on the eve of the U.S.-led invasion of Afghanistan. '(' r' r "r 63 UNCLASSIFIEDIIFOR PUBLIC RELEASE ,. -, " . UNCLASSIFIEDIIFOR PUBLIC RELEASE SI!3€M'f The petitioner has contended that it is implausible that the Iranians would have offered to provide military assistance to the Taliban because Iran considered the Taliban an arch-enemy and allied itself with the United States and the Northern Alliance during Operation Enduring Freedom. See, e.g., Mar. 31 Tr. at 100-01;PE 110~~25-30; PE lllA ~~ 10-16; PE 75 at 246­ 54; PE 78 at 2-3. The court finds these arguments unpersuasive. As an initial matter, the petitioner's theory - that Iran could not have offered any military assistance to the Taliban because Iran and the Taliban were enemies - does not adequately account for the complexity of international relationships in that region. As noted in an article cited by the petitioner, "Iran has played all sides of the Afghan conflict," having provided military support to different, competing groups vying for control of Afghanistan before and after the fall ofthe Taliban. PE 75 at 2-3. Indeed, even as the United States and Iran ostensibly allied themselves during Operation Enduring Freedom, "Iran also sent large stocks of weapons to Herat and [Afghan warlord Ismail] Khan, which culminated in the United States firing a cruise missile at Khan's Headquarters, killing eighteen of his men in January 2002." Id. at 3. As noted in another article cited by the petitioner, former CIA Director George Tenet declared in early 2002 that Iran's initial signs of cooperation had "eclipsed" and that "while Iran's officials express a shared interest in a stable government in Afghanistan, its security forces appear bent on countering the US presence. This seeming contradiction in behavior reflects deep-seated suspicions among Tehran's clerics that the US is committed to encircling and overthrowing them." PE 76 at 248. Yet another article cited by the petitioner states that "[i]n early 2007, Washington reported that Iran had started to supply sophisticated arms to the Taliban in western Afghanistan," even as it "increased political and military support to the former Northern Alliance." PE 78 at 3. Although Karzai stated in his declaration that evidence of r ' .' 64 UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEOIIFOR PUBLIC RELEASE SECM'f Iranian support for the Taliban reflects a recent shift in Iranian policy towards the Taliban, PE 110129, these reports indicate Iran did not possess a unitary attitude towards the U.S.-led invasion of Afghanistan at the time of Operation Enduring Freedom and underscores the difficulty of presuming that Iran would not have offered military support to the Taliban simply because of their history of animosity. Moreover, the petitioner himself is the source of the information regarding the October 2001 meeting between the Taliban delegation and senior Iranian officials. As previously noted, the petitioner has provided multiple, consistent accounts of Iran's offer to provide the Taliban with military assistance. The petitioner has offered no explanation for why he would have fabricated this information during his interrogations. Indeed, in his proposed [mdings of fact, the petitioner acknowledges that he attended the October 2001 meeting with the Iranian delegation, though he does not expressly concede that the purpose of the meeting was Iran's offer to provide military support to the Taliban. See Petr's Proposed Findings of Fact, 292. The petitioner also contends his mere attendance at the October 2001 meeting does not support his detention because he was simply there to provide security for the Taliban delegation. GE 71 at 2, 7. The court disagrees. First, even if the petitioner's role was limited to providing security for the Taliban delegation, that fact would itself significantly undercut the petitioner's contention that he was simply a civilian bureaucrat and would demonstrate that he possessed command authority over Taliban forces on the eve of the U.S.-led invasion and was entrusted with providing security services in support of a military-related mission. At any rate, the fact that the petitioner was included in the substantive discussions, see, e.g., GE 70 at 2-3, coupled with his demonstrated knowledge about missile systems, his military oversight responsibilities as the Governor of Herat and his close ties to Mullah Omar, see infra Part IV.B.3, suggest that the 65 UNCLASSIFIEOIIFOR PUBLIC RELEASE I I UNCLASSIFIEDIIFOR PUBLIC RELEASE petitioner attended the October 2001 meeting not simply as the Taliban's chief security officer, but as a Taliban representative. Finally, the petitioner contends that his attendance at the October 2001 meeting does not support the lawfulness of his detention because there is no evidence that the Iranian offer was ever accepted. The court notes at the outset that the petitioner has provided differing accounts of the Taliban's response to the Iranian offer. See GE 60 at 3 ("Ultimately, the offer was rejected."); GE 71 at 8 ("When the delegation went back to Kandahar the bombing started, so the proposition fell apart. "); GE 57 at 2 ("[The petitioner] fled the area shortly after the meeting and does not know if the offer was ever given to Omar."). At any rate, the significance of this evidence does not turn on whether the Taliban accepted the Iranian offer, but rather, lies in the fact that Taliban leaders in Kandahar designated the petitioner to represent the Taliban in high- level discussions with senior Iranian officials regarding Iran's offer to provide military assistance to the Taliban in preparation for the imminent U.S.-led invasion. The petitioner's selection to attend the meeting demonstrates that he was entrusted with significant military-related responsibilities at the time of the outbreak of hostilities with the United States and strongly indicates that he was part of Taliban forces at that time.32 The petitioner's role in the October 2001 meeting is consistent with evidence that after the commencement of Operation Enduring Freedom, the petitioner continued to operate within the Taliban's formal command structure and provide support for Taliban military forces. 32 The government has argued that the petitioner attended a second meeting with Iranian officials in November 200 I regarding Iran's offer to provide military assistance to the Taliban. See GE 45 at 3; GE 61 at 1-2. It appears, however, that the November 2001 meeting referred to in these exhibits and the October 200 I meeting discussed above are one and the same. See GE 45 at 3; GE 61 at 1-2. UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE with the prior reports regarding the petitioner's role in providing financial support for Taliban troops and security forces, see GE 46 at 2 as well as the petitioner's prior acknowledgment that Herat contained the Taliban's two largest military divisions and multiple military insta1lations, 43 at 2; GE 46 at I. Accordingly, the court concludes that this intelligence report is sufficiently reliable for the court's consideration and further demonstrates that the petitioner continued to operate within the Taliban's formal command structure and provide support to Taliban troops after the outset of hostilities with U.S. coalition forces. The petitioner's involvement with the Taliban's military apparatus continued even as U.S. coalition forces pushed the Taliban out ofnorthern Afghanistan. Although the petitioner has provided contradictory accounts of his retreat from Herat, the petitioner has stated that in early November 2001, as the bombs began to fall in Herat province, he traveled in a convoy of ten vehicles to Arghastan, a village in the eastern part of Kandahar province. GE 18 (ISN 579 67 UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE MFR (May 7, 2002» at 1. According to the petitioner, the vehicles in his convoy "were full of weapons." Id The petitioner stated that he "turned the weapons over to a sherif in Arghastan and then called Hamid «Karzai» to discuss turning himselfin." Id Although the petitioner would later deny that the vehicles in the convoy contained weapons, see GE 71 at 6, the court sees no reason to doubt the admission made during the May 2002 interrogation. There is no evidence that this statement was elicited through undue coercion or duress, and the statement was made shortly after the events at issue. See GE 18 at 1. Accordingly, the court credits the petitioner's initial admission that he fled to Kandahar in a convoy comprised of ten vehicles that were full of weapons. The fact that the petitioner had access to a large volume of weapons demonstrates that he continued to wield military-type authority even after the U.S.-led invasion of Afghanistan. Furthermore, although the petitioner contends that he turned the weapons over to an official in Arghastan affiliated with the post-Taliban government, this claim is not plausible, as the Taliban did not lose control of Kandahar until December 7,2001, weeks after the petitioner fled Herat for Arghastan. GE 91 ~ 9. AccordinglY, if, as the petitioner has stated, he surrendered the weapons in his convoy to a local "sherif' in Arghastan, it would have been to a local Taliban official. Accordingly, reliable evidence demonstrates that the petitioner was appointed to represent the Taliban in discussions with high-level Iranian officials regarding Iran's offer to provide the Taliban military assistance for use against U.S. coalition forces. Reliable evidence also indicates that after the U.s.-led invasion, the petitioner continued to provide material support to TaHban forces stationed in Herat and facilitated their movement to other areas in Afghanistan, implementing orders issued by Taliban leadership in Kandahar. Finally, the petitioner has admitted that in early November 2001, he retreated from Herat to the Taliban­ ".·,c'. " , .. 1 ; ~,~)= ~~~ ~ 68 UNCLASSIFIEDIIFOR PUBLIC RELEASE I I UNCLASSIFIEDIIFOR PUBLIC RELEASE SELMI stronghold of Kandahar in a convoy of vehicles full of weapons, and that he delivered those weapons to officials in Kandahar. These findings are consistent with the evidence establishing the petitioner's long history of involvement with the Taliban's military affairs. Like most senior Taliban leaders, the petitioner obtained military experience fighting with the Afghan mujahideen during the Soviet occupation. After joining the Taliban in 1994, the petitioner was entrusted with military responsibilities, sitting on the Taliban's Supreme Shura, which had oversight over military affairs and serving as a commander of Taliban fighters during the Taliban's northern offensives in 1997 and 1998. The petitioner remained intimately involved in the Taliban's military affairs even after being appointed Governor of Herat, as demonstrated by his detailed knowledge about military installations and weapons systems, his facilitation of funding for Taliban military and intelligence forces as well as his role as a Taliban representative during discussions with Iranian officials in January 2000 regarding military and security-related matters. Together, this evidence establishes that the petitioner was part of the Taliban forces engaged in hostilities with U.S.-led coalition forces in late 2001. Accordingly, so long as the evidence indicates that the petitioner remained a part ofthose forces and had not disassociated himself from the Taliban by the time of his capture in early 2002, the petitioner's detention is lawful under the AUMF. Before turning to the issue of disassociation, however, the court briefly addresses the evidence concerning the petitioner's ties to Mullah Omar, which the government contends provides additional support for the lawfulness of his detention. 3. The Petitioner Had Close Ties to Mullah Omar Since his apprehension in early 2002, the petitioner has sought to portray himself as a reluctant Taliban leader. The petitioner has stated that he "was compeUed to work for the 69 UNCLASSIFIEDIIFOR PUBLIC RELEASE , I UNCLASSIFIEDIIFOR PUBLIC RELEASE Taliban because they were in power at the time and, if one didn't, the TaIiban could 'create problems' for someone." GE 4S at 1. The petitioner has suggested that he joined the Taliban as a matter of happenstance, stating that while trying to secure ajob in Spin Boldak in 1994, "one day, an unknown Taliban member asked him to speak with a London, England BBC reporter on the phone regarding Taliban military positions. The Taliban were so impressed with his speaking abilities they offered him the position of 'wayand,' or spokesman for the Taliban." GE 20 at 1. He has characterized his appointment as Governor of Herat as a move that came out of the blue. Id. at 2 ("Taliban official recommended he be appointed Governor of Herat, [Afghanistan], for unknown reasons."). In fact, during various interrogations, the petitioner denied holding leadership positions that he now concedes that he possessed. Compare OE 71 at 3 ("I was not the Taliban spokesman.") and GE 43 at 1 (the petitioner's statement that "he was often mistaken as the Minister of the Interior for the Taliban because he lived at the Ministry and spoke to the press often") with Petr's Proposed Findings of Fact 1f 6 ("After his return to Afghanistan in 1994, petitioner was appointed spokesperson for the Taliban government for the Pashto language because of his proven abilities in providing information to the media."); GE 91 ~. 17 (stipulating that the petitioner became the Taliban's Acting Interior Minister in 1996 or 1997). Despite these efforts to portray himself as a reluctant, marginal Taliban figure, the evidence indicates that the petitioner was, in reality, a prominent and influential leader within the Taliban. For instance, as previously discussed, the petitioner quickly rose to the Taliban's highest ranks, becoming a member of the Supreme Shura, "the most powerful ruling body" in the Taliban government, OE 48 at 250, which reported directly to Taliban leader Mullah Omar, PE 1101f 19. 70 UNCLASSIFIEDIIFOR PUBLIC RELEASE I I UNCLASSIFIEOIIFOR PUBLIC RELEASE SECRET The evidence also indicates that after the petitioner began to serve on the Supreme Shura, statements of this mullah are corroborated by veteran Afghan mujahideen commander Akhtiar, who identified the petitioner as "a sub-commander/trusted person of Mullah Omar." GE 22 at 1. These statements are further corroborated by a November 1999 article published in the Pakistani newspaper, The News, reporting on Mullah Omar's decision to reshuffle the Taliban leadership. GE 40 (Editorial: Taleban ReshzifJle, THE NEWS, Nov. 1, 1999) at 1. This reshuffle resulted in the petitioner's appointment as Governor ofHe rat. Id The article stated that "[l]oyalists like Mulla Khairullah Khairkhwa, Mulla Abdur Razzaq ... and Mulla Said Mohammad Haqqani were aU rewarded with the choicest jobs." Id. The petitioner's status as one of Mullah Omar's trusted associates is also born out by the fact that Mullah Omar repeatedly appointed the petitioner to serve in prominent and sensitive posts. In July 1998, Mullah Omar appointed the petitioner to oversee the areas captured during the Taliban's northern offensive. GE 3 at 2. In August 1998, when Iran threatened war with Afghanistan after the Taliban murdered eight Iranian diplomats and an Iranian journalist, Mullah Omar publicly announced that the petitioner would lead a commission to investigate the murders. 33 GE 13 (Bodies ofRemaining 2 Iranians Found in Afghanistan, THE NEWS, Oct. 7, 1998) at 1; GE 46 at 2. And one year after Iran had threatened war with Afghanistan, Mullah 33 The petitioner stated that despjtethe.eubJ~c an!loJ109~1pent. he never actually conducted the investigation. GE 46 at 2. t, t ' .:.:' 1 71 UNCLASSIFIEOIIFOR PUBLIC RELEASE I I UNCLASSIFIEDIIFOR PUBLIC RELEASE Omar appointed the petitioner Governor of Herat, GE 43 at 2, one of Afghanistan's largest provinces, which shares an extensive border with Iran, see GE 92. PE 35 (ISN 579 CITF Report (Dec. 2, 2002» at 1. According to the petitioner, Mullah Omar's decision to appoint him Governor of Herat was effectively a demotion and signaled the fact that the petitioner no longer held Mullah Omar's trust. Mar. 31 Tr. at 113. The weight of the evidence does not support the petitioner's contention. Herat was a strategically important province at the time ofthe petitioner's appointment as governor; it bordered Iran, which had recently threatened war with the Taliban and possessed historically close ties with the population of Herat. PE 75 at 3; PE 76 at 244-45. Herat also contained numerous Taliban military installations, including its two largest divisions, as well as the headquarters of Taliban intelligence. GE 46 at I. Indeed, as previously noted, one contemporaneous media report characterized the petitioner's new position one of the "choicest jobs" in the Taliban government, awarded to the petitioner because he was a Mullah Omar loyalist. GE 40 at 1. Moreover, reliable evidence indicates that the petitioner remained within Mullah Omar's inner circle after his appointment as Governor of Herat, as U.S. coalition forces began their assault on Taliban forces. Specifically, the court credits an October 13,2001 intelligence report citing information provided by a SeeGE 72 UNCLASSIFIEDIIFOR PUBLIC RELEASE I I UNCLASSIFIEDIIFOR PUBLIC RELEASE 27 (IIR 6 931 0020 02) at 1. that after a U.S. cruise missile had hit Mullah Omar's vehicle one week earlier during air strikes in Kandahar, specifically notes that this officer The reliability of the report is also buttressed by the level of detail contained in the officer's account, including specific infonnation regarding the locations ofTatiban commanders that has been independently corroborated. See id at 2 (reporting that Mullah Rocketi, the "corps commander of Jalalabad[,] moves between that city and north Kabul"); PE 70 at 139 (listing Rocketi as the "fonner corps commander of Jalalabad"). Lastly, the report of a missile strike occurring the week before October 13,2001 is consistent with the timeline of Operation Enduring Freedom, which "commenced on 7 October 2001 with coalition air strikes on al-Qaida and Taliban targets throughout Afghanistan." GE 77 at 2. In light ofthese indices of reliability, the court credits the report's account that after a U.S. coalition airstrike in early October 2001, Mullah Omar limited his circle of contacts to a handful of his most trusted and important "commanders," including the petitioner. In sum, the court finds implausible the petitioner's contention that he was a reluctant Taliban member. Rather, the weight of the evidence indicates that the petitioner had close ties UNCLASSIFIEDIIFOR PUBLIC RELEASE I I UNCLASSIFIEDIIFOR PUBLIC RELEASE with Mullah Dmar and that he remained one of Mullah Omar's most trusted associates before and after the U.S.-led invasion of Afghanistan in October 2001. This finding is consistent with the court's earlier conclusions that the petitioner was a key Taliban leader entrusted with military responsibilities, which he carried out both before and after the commencement of Operation Enduring Freedom. See supra Part IV.B.2. Moreover, the fact that the petitioner was one of Mullah Omar's trusted associates undermines the petitioner's contention that he was a simple civilian bureaucrat shielded from the Taliban's military activities, and provides a useful starting point for assessing the petitioner's contention that he had disassociated himself from the Taliban by the time of his capture in early 2002. 4. Tbe Petitioner Remained Part oftbe Taliban at the Time of His Apprehension As previously discussed, it is not enough for the government to show simply that the petitioner was, at one time, a member of the Taliban, al-Qaida or associated forces; to be lawfully detained, the petitioner must have been "part of' those forces at the time of his capture. See Salah;, 625 F.3d at 751; Gherebi, 609 F. Supp. 2d at 71. «A petitioner who may once have been part of al-Qaida or the Taliban can show that he was no longer part of such an entity at the time of capture by showing that he took affirmative actions to abandon his membership." Khalif v. Obama, 2010 WL 2382925, at *2 (D.D.C. May 28, 2010) (citing Al Ginco v. Obama, 626 F. Supp.2d 123, 128-30 (D.D.C. 2009)). The evidence indicates that after tbe commencement of Operation Enduring Freedom, the petitioner began hedging his bets. The petitioner has stated that he met with a group of high- level Taliban officials one month before the surrender of Kandahar to discuss the peaceful surrender of the city. PE 34 at 1. According to the petitioner, the meeting was held without Mullah Omar's consent and the officials present were those "who favored a bloodless, peaceful t '. ;~ , , :( \! ','. "'" j ~"'-; ,l:,x./' It 74 UNCLASSIFIEDIIFOR PUBLIC RELEASE I , UNCLASSIFIEDIIFOR PUBLIC RELEASE end to the fighting in Afghanistan." ld The petitioner has also stated that in early November 200 I, he contacted Hamid Karzai, who was a member of the petitioner's Popalzai tribe and whom the petitioner had known for many years, to "solicit his advice" about surrendering to u.s. coalition forces. GE 45 at 3; see also GE 18 at I (interrogation report in which the petitioner stated that he contacted Hamid Karzai to discuss surrendering after the United States began bombing Afghanistan); GE 70 at 4 (petitioner's CSRT testimony in which he states that he contacted Hamid Karzai "when Herat was taken over"); GE 91 ~ 7 (stipUlating that the Taliban lost control of Herat on or about November 13, 2001). According to the petitioner, this evidence demonstrates that he had disassociated himself from the Taliban before he was captured by Pakistani authorities in late-January or early-February 2002. See GE 91 ~ 18. The court disagrees. Even if the petitioner did participate in a secret meeting with high- level Taliban leaders regarding the surrender of Kandahar, there is no evidence that any participant at that meeting surrendered to U.S. coalition forces, publicly or privately broke with Mullah Omar or took any action signaling an intent to end hostilities with U.S. coalition forces. Indeed, in the month before the surrender of Kandahar, there was fierce fighting between U.S. coalition and Taliban forces for control ofthe city until it fell on December 7, 2001. GE 77 at 4. Likewise, even if the petitioner contacted Hamid Karzai in mid-November 2001 to discuss the possibility of surrender, the petitioner did not tum himself in, but was instead captured in Chaman, Pakistan approximately three months later. GE 91 ~ 18. The petitioner has provided no credible explanation for what he was doing or what steps he had taken to disassociate himself from the Taliban during the months after he allegedly contacted Hamid Karzai to discuss the possibility of surrender. ~,,t, 1;''';''<:''' ,,~.: . .i <,._ f,.~ __, ~ 75 UNCLASSIFIEDIIFOR PUBLIC RELEASE I I UNCLASSIFIEDIIFOR PUBLIC RELEASE The petitioner has stated that by the time of his capture, he had resolved to cooperate with U.S. coalition forces and that he traveled to Chama.n, Pakistan to obtain treatment for a stomach ailment before turning himself in. GE 45 at 3; GE 70 at 4; GE 71 at 9. The petitioner, however, was not captured at a medical office in Chaman. Rather, it is undisputed that the petitioner was captured at the Pakistani residence of senior Taliban official Abdul Manan Niazi. GE 91 , 18. As previously discussed, Niazi was a fonner Taliban military commander and Governor of Kabul, who had personally overseen the massacre of thousands of Shiites in the city of Mazar-e- Sharifin August 1998 and was part of the Taliban delegation that traveled to Iran in October 200 I to discuss Iran's offer to provide military assistance to the Taliban. See supra Part IV.B.2.a. The fact that the petitioner was captured at the home of a hardlinc TaUban military commander greatly undennines the petitioner's contention that he had disassociated himself from the Taliban prior to his apprehension by Pakistani authorities. See Al-Bihani v. Ohama, 2010 U.S. Dist. LEXIS 107590, at *33-34 (D.D.C. Sept. 22, 2010) (noting that the fact that the petitioner continued to associate with al-Qaida or Taliban operatives undermined the petitioner's argument that he had cut his ties with al-Qaida prior to his apprehension); cf Uthman v. Obama, 2011 WL 1120282, at *4 (D.C. Cir. Mar. 29,2011) (observing that evidence that the petitioner was captured in the company of Taliban and al~Qaida fighters in the vicinity of Tora Bora supported the conclusion that he was lawfully detained). The petitioner's claim that he had resolved to cooperate with U.S. coalition forces prior to his capture is also undermined by the evasiveness he exhibited during his discussions with U.S. interrogators. According to the government, the earliest known interrogation of the petitioner occurred approximately 3:00 p.m. See Govt's Proposed Findings of Fact & Conclusions of Law at 82. The interrogator who conducted this inquiry reported that the 76 UNCLASSIFIEDIIFOR PUBLIC RELEASE I , UNCLASSIFIEDIIFOR PUBLIC RELEASE S!!ClmT petitioner "attempted to evade questions" and noted that "caution should be used when dealing with the detainee as he attempts to draw in the interrogator and 'tap dance' around questions." GE 64 (ISN 579 Handnote (Feb. 7,2002) at 1. The petitioner's refusal to provide full cooperation has been noted by other interrogators, who, as previously noted, have described the petitioner as cunning and evasive. See PE 34 at 1. The resistance exhibited by the petitioner during these interrogations is not, in the court's view, consistent with the petitioner's claim that he had decided to turn himself in and cooperate with U.S. coalition forces before he was apprehended in Pakistan. In short, the court does not credit the petitioner's contention that he had disassociated himself from the Taliban prior to his capture in Chaman, Pakistan. Rather, the weight of the evidence, especially the fact that he was captured at the home of a senior Taliban official, indicates that the petitioner remained part ofTaliban forces at the time of his capture. C. Viewing the Totality of the Evidence There is no dispute about the basic contours of the petitioner's life. The parties agree that the petitioner joined the TaHban in 1994 and became a spokesman and district administrator in Spin Boldak. He rose through the Taliban ranks and served as a member of the Taliban Supreme Shura, the Taliban's Acting Interior Minister and the Governor of Herat. The petitioner retreated from Herat during Operation Enduring Freedom and that he was ultimately captured by Pakistani authorities in Chaman, Pakistan in early 2002. The parties have, however, offered two starkly different narratives regarding the petitioner's tenure with the Taliban. The petitioner contends that he was simply a civilian bureaucrat who had no involvement with the Taliban's military forces, lost Mullah Omar's trust over time and eventually broke with him and the Taliban during Operation Enduring Freedom. :t~'~I' ,- f r"~" ./.... ~ 77 UNCLASSIFIEDIIFOR PUBLIC RELEASE , . UNCLASSIFIEDIIFOR PUBLIC RELEASE According to the government, the petitioner was an experienced military leader who wielded military authority before and after the commencement of Operation Enduring Freedom, was a member of Mullah Omar's inner circle and remained part of the Taliban even after the time of his capture in early 2002. Viewed in its totality, the evidence provides more support for the government's narrative. The court concludes that the petitioner, like most other senior Taliban leaders, fought with the Afghan mujahideen in the 19805, and, like other senior Taliban leaders with civilian titles, participated in the Taliban's military efforts to seize control of Afghanistan, serving as a commander ofTaliban fighters during the Taliban's assaults on Mazar-e-Sharifin 1997 and 1998. Even after his appointment as Governor of Herat in 1999, the petitioner remained integrally involved in the Taliban's military forces, operating within the Taliban's formal command structure and facilitating the movement of Taliban troops both before and after the commencement of Operation Enduring Freedom. Moreover, on the eve of Operation Enduring Freedom, the petitioner was dispatched to Iran by Taliban leaders in Kandahar to discuss Iran's offer to provide military assistance to the Taliban in anticipation ofthe imminent U.S.-led invasion of Afghanistan. Throughout his tenure in the Taliban, the petitioner remained a prominent leader and a close ally of Mul1ah Omar. The petitioner's ties to Mullah Omar persisted even after a U.S. cruise missile struck Mullah Omar's vehicle in the early days of Operation Enduring Freedom, and MuJlah Omar limited his contacts to his most trusted lieutenants, including the petitioner. Although the petitioner reached out to Hamid Karzai to discuss the possibility of surrender after the commencement of Operation Enduring Freedom, he never turned himself in and was captured at the home of a senior Taliban official. The evidence, therefore, does not 78 UNCLASSIFIEDIIFOR PUBLIC RELEASE I I UNCLASSIFIEDIIFOR PUBLIC RELEASE SECRE'f support the petitioner's contention that he had disassociated himself from the Taliban by the time of his capture. Based on these considerations, the court concludes that the government has established by a preponderance of the evidence that the petitioner was part ofTaliban forces engaged in hostilities against the United States at the time of his capture. The petitioner is therefore lawfuJly detained and his petition for a writ of habeas corpus must be denied. v. CONCLUSION For the foregoing reasons, the court denies the petition for a writ of habeas corpus. An Order consistent with this Memorandum Opinion is issued separately and contemporaneously this 27th day of May, 2011. RICARDO M. URBINA United States District Judge 79 UNCLASSIFIEDIIFOR PUBLIC RELEASE I • --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2664127. Public record. Not legal advice.