Paracha v. Bush

UNCLASSIFIED//FOR PUBLIC RELEASE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMAIAY with Classified

Informati ecurity Officer

SAIFULLAH ABDULLAH CISO 7

PARACHA, Date _ Zl gozre

Petitioner,

v. Civil Action No. 04-2022 (PLF)

DONALD J. TRUMP, et al.,

Respondents.

Nee mee ee ee ee ee ee ee ee”

OPINION

In July 2003, the United States apprehended petitioner Saifullah Paracha, a

successful Pakistani businessman, on the belief that he had provided financial and other support

to members of the Taliban and Al-Qaeda over the course of several years immediately before

and after the terrorist attacks of September 11, 2001. Mr. Paracha was taken to Bagram Air

Force Base in Afghanistan for interrogation and then to the United States Naval Base at

Guantanamo Bay, Cuba, where he remains to this day. More than sixteen years after his capture,

Mr. Paracha has never been charged before a military commission or any other tribunal.

In November 2004, Mr. Paracha filed a petition for a writ of habeas corpus

challenging the government’s legal authority to detain him. See Dkt. No. 1. He amended the

petition in December of that year. Dkt. No. 11. The parties have vigorously and capably

litigated that petition, and the Court ultimately held a two-week long classified evidentiary

hearing in October 2019, at which counsel presented hundreds of exhibits and made extensive

argument on five disputed issues of material fact. Upon thorough consideration of the amended

factual return, the amended traverse, the pre-hearing merits and opposition briefs, the arguments

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and exhibits presented by counsel at the evidentiary hearing, the relevant legal authorities, and

the entire record in this case, the Court will deny Mr. Paracha’s amended petition for habeas

corpus.

Congress has granted the President expansive legal authority to detain individuals

associated with the Taliban and Al-Qaeda, even those who have not directly participated in

hostilities against the United States. In earlier Guantanamo Bay habeas corpus litigation, the

United States Court of Appeals for the District of Columbia Circuit has held that the government

bears a low burden of proof to establish its detention authority. Petitioner’s objections to the

prevailing standards for detention authority and the burden of proof are noted and preserved for

appeal. As the law stands, however, the Court concludes that respondents possess the legal

authority to detain Mr. Paracha because they have established by a preponderance of the

evidence that he provided substantial support to the Taliban and to Al-Qaeda. The Court takes

no position as to whether Mr. Paracha was a part of either the Taliban or Al-Qaeda,

Part I of this opinion sets forth the factual and procedural background of this case.

Part II presents the legal framework under which the Court analyzes habeas corpus petitions

from alleged alien unprivileged enemy combatants detained at Guantanamo Bay. Under this

framework, determining whether the government has the authority to detain Mr. Paracha is “a

mixed question of law and fact.” Barhoumi v. Obama, 609 F.3d 416, 423 (D.C. Cir. 2010).

“Whether a detainee’s alleged conduct . . . justifies his detention . . . is a legal question[, and]

whether the government has proven that [a detainee did engage in that] conduct . . . is a factual

question.” Id. Part III discusses certain evidentiary issues raised by the parties. The Court’s

Findings of Fact appear in Part IV, while Part V contains the Court’s Conclusions of Law.

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I. BACKGROUND

A, Factual Overview

Saifullah Paracha is a western-educated businessman. He was born in a rural

village in Pakistan and, though raised in poverty, successfully pursued an education. Mr.

Paracha received a student visa to travel to the United States, where he graduated from the New

York Institute of Technology in 1974. Thereafter, he launched a travel agency in New York

City, the first of his many business ventures. Mr, Paracha received a permanent resident visa

from the United States consulate in Pakistan; over the next several decades, Mr. Paracha

travelled frequently between Pakistan and the United States. Several of Mr. Paracha’s eleven

siblings emigrated to the United States, and many of his extended family live in the United States

to this day. Mr. Paracha is a practicing Muslim, and his counsel introduced evidence to

demonstrate that Mr. Paracha has cosmopolitan and moderate sympathies. Mr. Paracha and his

wife, Farhat, sent their children to private Catholic schools in Pakistan. The family travelled

frequently, to the United States and elsewhere, and “enjoyed a comfortable life similar to that of

many westerners.” Petitioner’s Classified Amended Traverse (“P. Am. Traverse”), at 4. He took

business trips to Malaysia, Saudi Arabia, Iran, Iraq, Sweden, the United Kingdom, China, and

India; he traveled for leisure to Japan, Yugoslavia, the Philippines, and the United Arab

Emirates. FBI Electronic Communication (“EC”) 7/16/03, JE 70-16, at 894,!

In citing to exhibits, the Court observes the following conventions. Unless

otherwise indicated in the citation, a particular report or set of notes concerns the petitioner. The

date given in the citation is conveyed in MM/DD/YYYY format; the date listed is the date

appearing on the title page of the exhibit or, if not available, the date on which an interview took

place. Some of the FBI documents in this case refer to petitioner with the identifier “ISN 1094,”

while Department of Defense documents often a E” refers to a Joint Exhibit, “PE”

refers to a Petitioner’s Exhibit, and “RE” refers to a Respondents* Exhibit. Numbered

attachments to exhibits are appended to the name of the exhibit: JE 70-12, for example, indicates

Joint Exhibit 70, Attachment 12. Page numbers in the citations refer to the continuous Bates

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Several of Mr. Paracha’s business and charitable ventures are relevant to the

conduct at issue in this case. See Part IV.A, infra. First, in the early 1990s, Mr. Paracha and

Charles Anteby launched International Merchandise, Pvt. Ltd, which operated as a buying and

selling agent coordinating garment purchasers in New York and textile manufacturers in

Pakistan. “Mr. Paracha and Mr. Anteby did not ship merchandise; rather, the business facilitated

connections between suppliers and purchasers.” P, Am. Traverse at 4. The company had 30 to

40 employees, and the petitioner managed its accounting and administrative functions. Uzair

Paracha FD-302, 03/30/03, JE 55, at 415. Second, Mr. Paracha founded and ran Universal

Broadcasting, a media company in Pakistan that “produced programming on current affairs,

politics, and religion, as well as entertainment.” P. Am. Traverse at 4. The studio aimed to sell

its programs for distribution to cable outlets around the world; it employed about 20 people.

Uzair Paracha FD-302 05/01/03, JE 57, at 430. Third, Petitioner owned an industrial company,

Abson Industries, which manufactured polypropylene bags for packaging heavy items like

cement. Uzair Paracha FD-302 05/05/2003, at 435. Fourth, petitioner launched a real estate

company, SS Associates, to manage the redevelopment, construction, and sale of a beachfront

apartment complex called Cliftonia. FBJ EC 10/23/04, JE 70-32, at 964. The government does

not dispute that International Merchandise, Universal Broadcasting, Abson Industries, and SS

Associates were bona fide companies.

In addition to these business ventures, it is undisputed that Mr. Paracha was an

active philanthropist who was particularly interested in building schools and hospitals in Pakistan

and, later, in Afghanistan. Mr. Paracha was an active member of the Council of Welfare

numbers the parties have assigned to the joint exhibits, where available, or to internal pagination

of the documents, where Bates stamps are unavailable.

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Organizations (“CWO”), a charitable organization “made up of successful Pakistani businessmen

and political leaders,” who shared a goal of “provid[ing] support in Pakistan and the region

regarding education, health, justice, and food support.” P. Am. Traverse at 4. As “a respected

man in his community,” Mr. Paracha had substantial social status and political connections. See

id. For example, he travelled with or maintained relationships with Saudi Arabia’s minister of

petroleum, the President of Afghanistan, the President of Pakistan, the head of Pakistan’s

intelligence service, the mayor of Karachi, and various other political and educational! leaders in

Pakistan. See Respondents’ Classified Merits Brief (“R. Merits Br.”) at 15; FBI EC 10/26/2004,

JE 70-33, at 974,

In the course of managing his business and philanthropic affairs, Mr. Paracha

interacted with members and leaders of various extremist groups, including Al-Qaeda and the

Taliban, the latter of which governed Afghanistan for several years of the period relevant to this

case. Mr. Paracha’s connection to three Al-Qaeda figures, in particular, lie at the heart of this

case: Khaleid Sheikh Mohammed (“KSM”) (the alleged planner of the 9/11 attacks), Ammar Al-

Baluchi (an alleged Al-Qaeda financier and logistician), and Majid Khan (who has admitted to

serving as an operational agent attempting to set up an Al-Qaeda cell in the United States). All

three individuals were captured in 2003 and subjected to the CIA’s since-discredited enhanced

interrogation techniques (“EITs”). Each of these men provided information indicating that

petitioner and his son, Uzair Paracha, had provided assistance to Al-Qaeda.

The FBI interrogated Uzair Paracha in the United States in March 2003, first

during voluntary interviews and later — after his arrest as a material witness in another

investigation — at proffer sessions with prosecutors, during which Uzair was assisted by counsel,

See Part IILC.2, infra. Uzair Paracha provided substantial information, independent of the

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statements extracted from KSM, Al-Baluchi, and Khan, that linked Saifullah Paracha to Al-

Qaeda.

On the basis of the information gathered from the Al-Qaeda sources and Uzair

Paracha, the United States decided to apprehend Saifullah Paracha in 2003.

So the United States turned to Charles Anteby, Mr. Paracha’s U.S.-based business

partner, to execute a scheme that lured Mr. Parachdln

opportunity, P. Am. Traverse at 5. The United States captured Mr. Parach

nder the pretense of a business

2003. DoD Interrogator Notes 07/08/03, JE 7, at 79. Mr. Paracha was transported first to

Bagram Air Force Base in Afghanistan, where he was held for 15 months, and then to

Guantanamo Bay, where he has remained, United States military, intelligence, and law

enforcement personnel have visited or interrogated Mr. Paracha hundreds of times. Unlike some

of the other detainees remaining at Guantanamo Bay, however, Mr. Paracha has not been

charged before a military commission or transferred for trial before another competent tribunal.

Nor has he ever been cleared for release to Pakistan or any other country.

Petitioner’s statements during these interrogations — as supplemented and

corroborated by statements made by his son, Uzair Paracha — provide most of the evidence with

which the parties have litigated this case. Mr. Paracha and the respondents broadly agree about

what the petitioner did in Afghanistan and Pakistan from 1999 to 2003. As discussed in the

Court’s Findings of Fact, see Part ['V, infra, neither Mr. Paracha nor his counsel dispute that Mr.

Paracha met Osama Bin Laden on two separate trips to Afghanistan, or that Mr. Paracha

undertook a variety of tasks at the request of several of Bin Laden’s lieutenants. He distributed a

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press release, produced a video message, temporarily held substantial funds belonging to Al-

Qaeda, and provided various other advice and assistance at the request of individuals who have

since been confirmed to be KSM and Al-Baluchi. It is likewise beyond dispute that Mr. Paracha

knew senior leaders of the Taliban and provided certain assistance to its members: Mr. Paracha

helped raise thousands of dollars to purchase a vehicle that Taliban fighters used in combat and

provided other financial support at the request of jihadists.

B, Procedural History

Mr. Paracha filed his petition for habeas corpus in November 2004, see Dkt.

No. 1, and filed the amended petition for habeas corpus that is now before the Court, see Dkt.

No, 11, in December 2004. Mr. Paracha does not dispute many of the facts alleged concerning

what he is alleged to have done for KSM and Al-Baluchi. Rather, at the current phase of this

litigation Mr. Paracha claims that he did not know that KSM and AJ-Baluchi were members of

Al-Qaeda, and did not intend to provide substantial assistance to any hostilities against the

United States. Accordingly, he argues that the government does not have the legal authority to

detain him as a substantial supporter of Al-Qaeda or the Taliban.

This Court has declined several previous requests to reach the merits of the

petition. The Court denied Mr. Paracha’s petition for a temporary restraining order in December

2004, see Dkt. No. 10, and denied a petition for preliminary injunction in November 2006, see

Minute Order of November 20, 2006. And the Court has three times denied motions for

summary judgment from Mr. Paracha. The Court denied Mr. Paracha’s first motion for

summary judgment in November 2006 because the case was stayed at the time, a decision

summarily affirmed by the court of appeals in February 2007, See Mandate, Dkt. No. 135. After

the stay was lifted, the Court denied summary judgment in March 2009. See Dkt. No. 267. The

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Court denied Mr. Paracha’s third motion for summary judgment in June 2016, finding no

jurisdiction to consider Mr. Paracha’s claims that statutes concerning detainees constituted

unlawful bills of attainder, See Dkt. No. 439. The court of appeals affirmed in April 2017. See

Dkt. No, 468.

In addition to these potentially dispositive motions, the parties have litigated

procedural matters before this Court and before Judge Thomas Hogan, before whom many of the

Guantanamo cases were consolidated for case management. Specifically, the parties have

contested several matters of discovery, see, e.g., Dkt. Nos. 68, 70, 281, 282, 285, 286, 296;

aspects of the case management order, see, e.g., Dkt, Nos. 204, 212; and procedures for access to

information, see, e.g., Dkt. Nos. 257, 268, 279, 289, 301,

Despite these disputes, proceedings in this matter have been stayed at the request

of the parties for a substantial portion of the fifteen years since Mr. Paracha filed his petition

before this Court. From March 2005 to July 2008, the case was stayed on respondents’ motion

while the parties litigated whether federal district courts have jurisdiction to decide Guantanamo

habeas petitions. See Dkt. Nos. 161, 175. And, from May 2011 to April 2016, the case was

stayed on Mr. Paracha’s own motion while he sought additional counsel and otherwise

considered his approach to the case. See Dkt. Nos, 367, 423.

The current phase of these proceedings began in March 2016, when Mr. Paracha

moved to lift the stay, see Dkt. No. 423, so that this Court could consider his second motion for

summary judgment, see Dkt. No. 401 (a motion the Court has since denied, see Dkt, No. 439),

After the Court lifted this five-year stay, during which time respondents’ discovery obligations

under the case management order had also been stayed by order of the Court, see Dkt. No. 367,

the parties conducted additional discovery and prepared revised briefing. See, e.g., Dkt.

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Nos. 426, 427, 429. In July 2017, respondents filed an amended factual return setting out the

evidence of the petitioner’s alleged support for and affiliation with Al-Qaeda and the Taliban.

See Dkt. No, 469, In December 2018, after seeking a number of extensions, Mr, Paracha filed

his amended traverse to explain why the government lacks the legal authority to continue to

detain him. See Dkt. No. 505.

In May 2019, the Court granted Mr. Paracha’s request to schedule an evidentiary

hearing on his amended petition for habeas corpus. See Dkt. No. 515. In 2019, in preparation

for the hearing, the parties concluded discovery, see Dkt. Nos. 515, 517; the Court ruled on an

evidentiary motion, see Dkt. No. 545, the Court resolved several requests from respondents to

exclude certain classified material from their discovery obligations, see Dkt, Nos. 524, 544, 548;

and the parties filed simultaneous classified prehearing merits briefs and briefs in opposition.

The Court held an evidentiary hearing from October 21 to 30, 2019. The hearing

began with unclassified opening statements, which were transmitted via a live audio connection

to the Naval Base at Guantanamo Bay. This enabled Mr. Paracha to listen to the unclassified

opening statements in real time. The remainder of the proceedings were classified and,

therefore, conducted in a sealed courtroom that was closed to Mr. Paracha and to the public. Mr.

Paracha did not testify at the hearing, and neither party called any live witnesses. Instead, the

parties presented evidence and made arguments from hundreds of joint exhibits, consisting

largely of interview reports and other documents concerning Mr. Paracha’s interrogations

prepared by the F sa and Department of Defense. The parties also discussed evidence

connected with the interrogation and trial of Mr. Paracha’s son, Uzair Paracha. Petitioner also

submitted expert reports on certain aspects of Pakistani culture and on the physical and

psychological effects of certain interrogation techniques. Respondents submitted a declaration

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from Special Agent Janelle Miller, Mr. Paracha’s primary FBI interrogator and the author of

many of the interrogation reports in the record, and declarations from a number of military

officials with responsibility for fighting terrorism and supervising detention at Guantanamo Bay.

The parties made classified closing arguments on November 19, 2019, and the amended habeas

corpus petition is now ripe for the Court’s decision,

Il. LEGAL STANDARDS

A. The Detention Standard

1, Statutory framework for detention: the AUMF and the NDAA

Respondents’ legal authority to detain petitioner derives from the 2001

Authorization for the Use of Military Force, 50 U.S.C. § 1541, (the “AUMF”), The present

controlling detention standard, clarifying the scope of authority under the AUMF, appears in the

National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, 125 Stat. 1298,

1562 (the “NDAA”). The NDAA allows the President to detain those who are part of — or

provide substantial support to — the Taliban, Al-Qaeda, or their associated forces at the time of

capture, Id, at § 1021(b),

Within a week of the terrorist attacks of September 11, 2001, the United States

Congress passed the AUMF, which authorized the President “to prevent any future acts of

international terrorism against the United States” by using

all necessary and appropriate force against those nations,

organizations, or persons he determines planned, authorized,

committed or aided the terrorist attacks that occurred on September

11, 2001, or harbored such organizations or persons

AUMF Sec. 2(a). With respect to the AUMF’s authorization of “force,” the Supreme Court has

held that the “detention of individuals . . . is so fundamental and accepted an incident to war as to

be an exercise of the ‘necessary and appropriate force’ Congress has authorized the President to

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use.”” Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004) (O’Connor, J., plurality opinion) (emphasis

added),

Several years after Mr. Paracha filed the instant petition, the Supreme Court

confirmed that the President’s authority to detain individuals pursuant to the AUMF can be

challenged by filing a habeas corpus petition, and that the United States District Court for the

District of Columbia has jurisdiction over habeas corpus petitions filed by detainees held at

Gietasage Bay under authority of the AUMF. Boumediene v. Bush, 553 U.S, 723 (2008)

(invalidating a statutory provision which purported to withdraw jurisdiction over such habeas

claims from the federal courts). See also Rasul v. Bush, 542 U.S. 466, 483-84 (2003), Indeed,

“the writ of habeas corpus remains the sole means by which Guantanamo detainees may

challenge the legality of their detention.” Ahjam v. Obama, 37 F. Supp. 3d 273, 278 (D.D.C.

2014), appeal dismissed, No. 14-5116 (D.C. Cir. Jan. 16, 2015),

Boumediene confirmed this Court’s jurisdiction, but did little to establish the

procedural framework for considering Guantanamo detainees’ habeas petitions and left open the

scope of the government’s detention authority. Boumediene v. Bush, 553 U.S, at 796 (“We

make no attempt to anticipate all of the evidentiary and access-to-counsel issues . . . and the other

remaining questions [that] are within the expertise and competence of the District Court to

address in the first instance.”’), See also Almerfedi v. Obama, 725 F. Supp. 2d 18, 20 (D.D.C.

2010), rev’d on other grounds 654 F.3d 1 (D.C. Cir. 2011). After Boumediene, judges in this

district adopted a range of approaches to assess the government’s detention authority. See, e.g.,

Gherebi v. Obama, 609 F. Supp. 2d 43, 62-71 (D.D.C. 2009); Hamlily v. Obama, 616 F. Supp.

2d 63, 68-77 (D.D.C. 2009),

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In 2010, the United States Court of Appeals for the District of Columbia Circuit

responded to this diversity of approaches by attempting “to narrow the legal uncertainty that

clouds military detention.” Al-Bihani v. Obama, 590 F.3d 866, 870 (D.C. Cir. 2010). The court

of appeals looked to the jurisdictional provisions of the Military Commissions Acts of 2006 and

2009 to construe the scope of detention authority under the AUMF. Id. at 871-72. The Military

Commissions Act of 2006 authorized trial by military commission of anyone who is an

“unlawful enemy combatant,” which the statute defines as a person who has “engaged in

hostilities or who has purposefully and materially supported hostilities against the United

States,” but “who is not a Jawful enemy combatant.” Pub. L. No, 109-366, sec. 3, § 948(a)(1)

(emphasis added), This definition explicitly includes any “person who is part of the Taliban, al

Qaeda, or associated forces.” Id.

Similarly, the Military Commissions Act of 2009 authorizes trial by military

commission of an “alien unprivileged enemy belligerent,” which it defines, among other things,

as a person who “purposefully and materially supported hostilities against the United States and

its coalition partners.” Pub. L. No. 111-84, § 1802, Accordingly, our court of appeals noted in

ALBihani that “the government’s detention authority logically covers a category of persons no

narrower than is covered by its military commission authority,” but explained that the

government’s “[d]etention authority in fact sweeps wider.” Al-Bihani v, Obama, 590 F.3d at 872

(emphasis added). The court concluded that the “class of persons subject to detention” includes

at least those who “purposefully and materially support such forces in hostilities against U.S.

Coalition partners.” Id.?

3 Petitioner’s initial merits brief cites the purpose and materiality requirements with

apparent approval. See P. Merits Br. at 2-6,

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The most current and precise statement of the government’s detention authority,

however, is the National Defense Authorization Act of 2012 (“NDAA”), which codifies and

arguably expands Al-Bihani’s statement of the AUMF detention authority. In the NDAA,

Congress confirmed that “the authority of the President to use all necessary and appropriate force

pursuant to [the AUMF] includes the authority for the Armed Forces of the United States to

detain covered persons . . . pending disposition under the law of war.” NDAA Sec. 1021(a)

(emphasis added). As relevant to this case, the NDAA defines a covered person as “any person”

who “was a part of or substantially supported al-Qaeda, the Taliban, 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 such hostilities in aid of such

enemy forces.” NDAA Sect. 1021(b) (emphases added).

In short, the NDAA authorizes detention for all those who rendered “substantial

support” to Al-Qaeda or the Taliban, as opposed to only those who gave “purposeful and

material support,” under the terms of the Military Commissions Acts that formed the basis of the

court of appeals’ analysis in Al-Bihani, See Al-Hela v. Trump, No. 05-cv-01048, 2019 U.S.

Dist. Lexis. 42717 at *14 (D.D.C. Mar. 15, 2019). The NDAA’s “part of” and “substantial[]

support” prongs are each “valid criteria that are independently sufficient to satisfy the standard.”

Al-Bihani v. Obama, 590 F.3d at 874.> Determining whether a detainee was part of or

substantially supported Al Qaeda or the Taliban is ‘‘a mixed question of law and fact.”

Barhoumi v. Obama, 609 F.3d at 423. “Whether a detainee’s alleged conduct . . . justifies his

3 As relevant to Mr. Paracha’s petition, the “disposition under the law of war”

authorized for such persons may include, inter alia, “detention under the law of war without trial

until the end of the hostilities authorized by the AUMF.” NDAA at Sec. 1021(c).

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detention under the AUMF is a legal question|, and] whether the government has proven that

conduct is a factual question.” Id,

In the instant case, the government alleges three bases for detaining Mr, Paracha,

each of which is independently sufficient under the AUMF and NDAA: (i) that petitioner gave

substantial support to the Taliban; (ii) that petitioner gave substantial support to Al-Qaeda; and

(ii) that petitioner was part of Al-Qaeda. R. Opp. Merits Br. at 20. Accordingly, assessment of

the habeas petition requires the Court to interpret the scope of the detention authority conferred

by the “substantial support” prong of the NDAA. The Court has determined that it need not

interpret the scope of the detention authority conferred by the “part of’ prong of the NDAA

because the Court concludes that Mr. Paracha has rendered substantial support to Al-Qaeda and

the Taliban. See Part V, infra. That finding alone requires denial of Mr. Paracha’s habeas

petition.

2. Detention based on “substantial support”

There is not yet binding authority in this circuit on the precise limits of detention

authority under the current “substantial support” standard, likely because most Guantanamo

habeas petitioners have been detained under the “part of” prong, and few cases have relied

primarily on allegations of “substantial support” since enactment of the 2012 NDAA. See Al-

Hela v. Trump, 2019 U.S. Lexis 42717 at *7-8. The earlier cases nevertheless offer important

guidance.

In Al-Bihani, the court of appeals did confirm that the scope of the government's

AUMEF detention authority for “substantial support” can be understood by reference to the

“material support” jurisdictional provisions of the Military Commissions Act of 2009, As Judge

Lamberth has observed, the Military Commissions Act of 2009 elsewhere incorporates by

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reference a definition for material support of terrorism that appears in a criminal statute,

18 U.S.C. § 2339A(b). Al-Hela v. Trump, 2019 U.S. Dist. Lexis 42717 at *11-12. That statute

establishes criminal liability for providing the following kinds of “material support:”

any property, tangible or intangible, or service, including currency

or monetary instruments or financial securities, financial services,

lodging, training, expert advice or assistance, safehouses, false

documentation or identification, communications equipment,

facilities, weapons, lethal substances, explosives, personnel (one or

more individuals who may be or include oneself), and

transportation, except medicine or religious materials.

18 U.S.C. § 2339A(b). Relying on the presumption of consistent usage, Judge Lamberth

persuasively argued that “this definition should guide . . . interpretation of the types of conduct

that the Al-Bihani court envisioned would constitute ‘purposeful and material support’ to Al-

Qaeda, the Taliban, or associated forces such as to subject an individual to detention under the

AUMF.” See Al-Hela v. Trump, 2019 U.S. Dist. Lexis 42717 at *13,

The D.C. Circuit’s 2010 interpretation of detention authority in Al-Bihani

predated the NDAA standard. Even so, for the reasons described in Judge Lamberth’s thorough

opinion, the Court finds that the definition of material support contained in 18 U.S.C,

§ 2339A(b) offers a useful guide for assessing the types of conduct and assistance that may

constitute “substantial support” under the current NDAA detention standard. See Al-Hela v.

Trump, 2019 U.S. Dist. Lexis 42717 at *11-15.

Ultimately, this Court’s assessment of the government’s detention authority under

the AUMF “must be made on a case-by-case basis by using a functional rather than a formal

approach and by focusing upon the actions of the individual in relation to the organization.” Al-

Madhwani v. Obama, 642 F, 3d 1071, 1074 (D.C. Cir. 2011), see also Uthman v. Obama, 637

F.3d 400, 402 (D.C. Cir. 2011); Salahi v. Obama, 625 F.3d 745, 751-52 (D.C. Cir. 2010). Mr.

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Paracha attempts to place three limitations on the scope of detention authority under the

“substantial support” prong, each of which merit examination,

a, Substantial support does not require specific knowledge or intent

First, Mr. Paracha argues that, to establish substantial support for Al-Qaeda or the

Taliban, the government must establish that the petitioner “knew and intended that , . . his

actions [would] support hostilities against the United States.” Petitioner’s Classified Merits

Brief (“P. Merits Br.”), at 3-4. This is not an accurate statement of the NDAA detention

standard. Petitioner emphasizes the D.C. Circuit’s reliance on analogous provisions of the

Military Commissions Acts of 2006 and 2009 — which do contain language requiring purposeful

and material support — to define the scope of detention authority under the AUMF. But this

language merely defines those who may be fried by a military commission; it does not create a

heightened intent requirement for who may be detained. As noted above, “the government’s

detention authority logically covers a category of persons no narrower than is covered by its

military commission authority,” but its “[dJetention authority in fact sweeps wider... .” Al-

Bihani v. Obama, 590 F.3d at 872.

Petitioner also emphasizes that, under the criminal material support of terrorism

statute, on which Judge Lamberth relied to interpret the substantial support standard under the

AUMF and NDAA, conviction requires that a defendant knew or intended that the material

support would be used for terrorism. P. Merits Br. at 5. But Al-Hela cited the material support

statute to address the types of conduct that might amount to material support, not to consider

intent. See Al-Hela v. Trump, 2019 U.S. Dist. Lexis 42717 at *10-13. Guantanamo habeas

petitions are civil cases assessing military detention authority; they are not criminal cases

determining criminal culpability. Al-Hela offers little basis for importing criminal mens rea

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analysis into this civil litigation. Our court of appeals has generally declined to impose

limitations on the government's detention authority that do not appear in the statute itself:

[The detainee] argues that the government must show that he was

involved in the “command structure” of al Qaeda or the Taliban,

rather than [being] merely “part of” those organizations. But

“nowhere in the AUMF is there mention of a command structure.”

While such a showing would be enough to sustain [the detainee’s]

detention, it is not necessary.

Hussain v. Obama, 718 F.3d 964, 967 (D.C. Cir. 2013) (interna! citations omitted).

What the government is required to prove, with respect to knowledge, is that

petitioner knew whom he was supporting. The court of appeals has held that the “purely

independent conduct of a freelancer is not enough” to justify detention. Bensayah v. Obama, 610

F.3d 718, 725 (D.C. Cir. 2010). As the respondents acknowledged at the evidentiary hearing in

this matter, the government must prove that Mr. Paracha knew that KSM, Al-Baluchi, and Majid

Khan were part of Al-Qaeda in order to establish that assistance given to those individuals

amounts to substantial support.* Similarly, the government must prove that Mr. Paracha knew he

was dealing with the Taliban or its fighters in order for that assistance to support a claim of

substantial support.

b. Substantial support does not require any nexus with active hostilities

Second, Mr. Paracha makes the closely related claim that detention authority

exists only where the government can show that a detainee’s alleged substantial support did, in

fact, provide aid to acts of hostilities against the United States. R. Merits Br. at 3-6. Such

support can only be proven, the petitioner argues, if the government can “establish that Mr.

4 As described below, it is immaterial that Mr. Paracha knew KSM, Al-Baluchi,

and Majid Khan under false names. What matters is that Mr. Paracha knew that these

individuals were Al-Qaeda.

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Paracha either committed a belligerent act against the United States or coalition forces” or that

the assistance he provided “directly (and not just tangentially) supported such hostilities.” Id.

These proposed limitations on the government’s detention authority have no statutory basis and

‘are at odds with the law of this circuit,

The NDAA makes clear that the government does not need to establish any nexus

between petitioner and hostilities against the United States. The statute authorizes detention of a

person who “was a part of or substantially supported al-Qaeda, the Taliban, 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 such hostilities.” 2012

NDAA §1021(b)(2) (emphasis added). This text shows two things. First, the “engaged in

hostilities against the United States” language is part of the definition of an associated force, not

of the person who is “part of or substantially supported” the proscribed organizations. Second,

detainable conduct is not /imited to the commission of a belligerent act or direct support for a

belligerent act. The use of the word “including” confirms that these are examples of, rather than

requirements for, detainable conduct. See also Al-Hela v. Trump, 2019 U.S. Dist. Lexis 42717

at *23 (“[I]ndividuals may be detained despite remote or non-existent linkages to the traditional

battlefield.”’)

This statutory scheme accords with longstanding precedent. Courts have long

held that enemy belligerents can be detained even if “they haye not actually committed or

attempted to commit any act of depredation or entered the theatre or zone of active military

operations.” Ex Parte Quirin, 317 U.S. 1, 38 (1942). In the modern context, the D.C. Circuit has

rejected the notion that a detainee must have Spaged in hostilities to be subject to detention

under the AUMF or NDAA. Hussain v. Obama, 718 F.3d at 968. And “[p]roof that [a detainee]

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.., actively engaged in combat against the United States and its allies is unnecessary” to detain

individuals as “part of the Taliban or Al-Qaeda.” Khairkhwa vy. Obama, 703 F.3d 547, 550 (D.C.

Cir. 2012). Accordingly, the Court holds that proof that a detainee supported combat or other

hostilities against the United States is also unnecessary to detain an individual as a substantial

supporter of Al-Qaeda, the Taliban, or their associated forces. Requiring a nexus with

hostilities, as petitioner proposes for substantial support, would be “inconsistent with the realities

of modern warfare,” in which

[c]lommanding officers rarely engage in hand-to-hand combat;

supporting troops behind the front lines do not confront enemy

combatants face to face; supply-line forces, critical to military

operations, may never encounter their opposition.

Khairkhwa v. Obama, 703 F.3d at 550. See also Hussain v. Obama, 718 F.3d at 967-68. The

question is whether the petitioner supported one of the organizations that is engaged in hostilities

against the United States, not whether the petitioner supported or participated in the hostilities.

¢. Detention based on substantial support does not require proof of future dangerousness

The third limitation that the petitioner asks the Court to place on detention

authority is a requirement that the government must prove “that Mr. Paracha continues to present

a threat to security, and that his detention is absolutely necessary for security reasons.” P. Merits

Br. At 6, The claim appears to derive from Al-Hela’s consideration of the law of war and the

Fourth Geneva Convention, under which internment is permitted only where “absolutely

necessary” for “imperative reasons of security.” See P. Merits Br. At 6. (citing 6 U.S.T. 3516).

But our court of appeals has already held that “the United States’ authority to

detain an enemy combatant is not dependent on whether an individual would pose a threat to the

United States or its allies if released.” Awad v. Obama, 608 F.3d 1, 11 (D.C. Cir. 2010). Nor do

the relevant statutes impose any future dangerousness limitation. As Mr. Paracha points out, the

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AUMF does confer authority in connection with a particular purpose: “to prevent any future acts

of international terrorism against the United States.” AUMF Sec. 2(a). While it is possible to

read this language as imposing a limit on what can be deemed “necessary and appropriate,” the

NDAA clarifies the meaning of the AUMF, and explicitly authorizes detention “without trial

until the end of the hostilities authorized by the AUMF.” NDAA § 1021(b). See also Al-Alwi v.

Trump, 901 F.3d 294, 298 (D.C. Cir. 2018). And the court of appeals has said that this

question — “the determination of when hostilities have ceased” — is irreducibly “a political

decision, [in which the courts] defer to the Executive’s opinion on the matter, at least in the

absence of an authoritative congressional declaration purporting to terminate the war.” Al-

Bihani v. Obama, 590 F.3d at 874.

A caveat applies to the Court’s view of each of petitioner’s three contentions

about the meaning of the “substantial support” prong of the NDAA. The Court notes that the

United States Court of Appeals for the District of Columbia Circuit has not yet conclusively

interpreted the scope of this “substantial support” detention authority with respect to petitioner’s

knowledge, his participation in or support for belligerent acts against the United States, or his

future dangerousness. Indeed, several of these questions are now before the D.C. Circuit on

appeal, See Al-Hela v. Trump, Civ. No. 19-5079, Brief of Petitioner-Appellant, (D.C. Cir, Oct.

16, 2019) (Dkt. No. 181196). Petitioner’s objections to this Court’s interpretations of the

provision are noted, and are preserved for appeal, where they will be entitled to de novo review.

B. Burden of Proof

In arguing that petitioner was “part of” or “substantially supported” a terrorist

organization under the detention standard just described, the government bears the burden of

proof. Specifically, the case management order governing the Guantanamo habeas petitions

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consolidated in this district — including Mr, Paracha’s petition — states that the government must

prove by a preponderance of the evidence that petitioner’s detention is lawful. See Case

Management Order, Dkt. No. 204, Sec. ILA. See also Awad v. Obama, 608 F.3d at 10 (finding

the preponderance standard to be constitutionally sufficient). The preponderance standard

requires this Court “to make a comparative judgment about the evidence to determine whether a

proposition is more likely true than not true based on all the evidence in the record.” Almerfedi

v. Obama, 654 F.3d at 5 (internal citations and quotations omitted),

In the context of the detention authority conferred by the AUMF and the NDAA,

then, this preponderance standard requires the government to establish that it was more likely than

not that the petitioner was “part of’ or “substantially supported” Al-Qaeda, the Taliban, or one of

their associated forces. Al-Hela v. Trump, 2019 U.S. Dist. Lexis. 42717 at *25. Mr. Paracha

recognizes that controlling case law requires this Court to evaluate his petition under the

preponderance of the evidence standard, but he maintains that the higher “clear and convincing”

standard should be applied instead. Petitioner’s Classified Opposition Merits Brief (“P. Opp.

Merits Br.”), at 2-3. That objection is preserved for any appeal.

Ill, EVIDENTIARY DETERMINATIONS

Before turning to analyze the substance of the petitioner’s claim that the

government lacks the legal authority to detain Mr. Paracha, the Court first addresses several

threshold evidentiary matters. See Alsabri v. Obama, 764 F. Supp. 2d. 60, 66-67 (D.D.C. 2011).

First, as the Court held in an October 2019 memorandum opinion, see Dkt. No. 545, government

records containing hearsay are admissible in this matter. And, with respect to one such disputed

record, the Court now confirms that it will admit and consider the stipulation of facts that Majid

Khan entered before his military commission. See Part III.A, infra. Second, as the Court held in

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October 2019, the records of hearsay admitted in evidence are entitled to a rebuttable

presumption of regularity — that is, the presumption that the records accurately record the

statements made by the objects of the reports — subject to rebuttal by clear evidence. See Dkt.

No. 545 at 1-3. Following extensive argument on this matter during the evidentiary hearing, the

Court now finds that petitioner has not provided clear evidence to rebut the presumption of

regularity with respect to any category of the government’s evidence. See Part IJI.B, infra.

Third, the Court must independently determine the substantive truth or reliability of the witness

statements contained in the hearsay records. See Dkt. No. 545 at 4, With respect to particular

categories of evidence challenged by the petitioner, the Court now finds (i) that Mr, Paracha’s

statements to his interrogators were not the products of undue coercion; and (ii) that the

statements of Uzair Paracha on which the government relies are generally reliable. See Part

ITI.C, infra.

A. The Admissibility of Hearsay Evidence

No witnesses have appeared to testify and be cross-examined in this matter.

Although there are matters on which Mr. Paracha’s live testimony would have been illuminating,

the Court has drawn no inference, adverse or otherwise, from Mr. Paracha’s decision not to

testify at his evidentiary hearing. See P. Opp. Merits Br. at 13-14. The evidence consists largely

of documents reflecting the statements of petitioner, his son, and several other individuals. For

example, the case features Intelligence Information Reports (“IRs”) and Summary Interrogation

Reports (“SIRs”) prepared by agents of the Department of Defense (“DoD”); FD-302s, FM40s,

and Electronic Communications (“ECs”) prepared by the Federal Bureau of Investigation

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| other documents. See P. Am. Traverse at 14-15.° In addition to the reports

themselves, other evidence includes a declaration to the Court provided by FBI Special Agent

Janelle Miller, who conducted many of Mr. Paracha’s interrogations, and Special Agent Miller's

handwritten notes for some of the interrogations she conducted. The parties provided much of

this evidence in the form of Joint Exhibits, which were admitted into evidence en masse during

the evidentiary hearing.

The witness statements in these Joint Exhibits, which the government uses to

establish Mr. Paracha’s conduct and knowledge with reference to Al-Qaeda and the Taliban,

plainly constitute hearsay. See FED. R. EVID. 801(c). But the D.C. Circuit has confirmed, and

petitioner does not dispute, that hearsay evidence like this is “always admissible” in Guantanamo

habeas petitions. Al-Bihani v. Obama, 590 F.3d at 879. Accordingly, in October 2019 the Court

granted respondents’ motion to admit hearsay statements in this matter. See Dkt. No. 545.

In addition, the Court must now rule on the use of one piece of hearsay evidence

that remains in dispute: the stipulation of facts that Majid Khan submitted as part of his guilty

plea before a military commission. See Khan Stipulation, JE 103. In contrast with Mr.

Paracha’s other evidentiary arguments, the petitioner’s request to exclude the stipulation is a

prudential argument about the fairness of the discovery process. P. Opp. Merits. Br. at 11-12.°

5 An IIR is a DoD document that records information derived from human sources.

An SIR is a summary of a DoD interrogation, and which includes information about the

circumstances of an interrogation itself. FD-302s are FBI forms that summarize interviews, as is

an EC. An FM40 is a record of investigative activities, See P. Am. Traverse at 14. Many of

these documents contain a summary of a particular witness or subject’s interview, based on the

interviewer’s understanding of the statements made by the witness. The subjects of the

interrogation did not prepare or review the reports used in this case, nor do the reports offer a

verbatim account of interrogations. P. Merits Br. at 9.

a That is, Mr. Paracha has not argued that the Khan stipulation is irregular or

inaccurate, in contrast to the arguments he makes about the records concerning his own

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Much earlier in this case, the petitioner lodged discovery requests seeking to interview Majid

Khan and to obtain other documents associated with Khan’s interrogations or statements to

interrogators. The government opposed the request, explaining that it did not intend to rely on

any statements from Khan, and that it was only required to provide documents it used to justify

detention. See Notice of Respondents’ 10/14/16 Classified Opposition to Discovery Motions,

Dkt. 455, at 8. Respondents repeated this claim in July 2018. See Notice of Respondents’

Response to Petitioner’s Supplement to July 23, 2018 Joint Status Report, Dkt. No. 498, at 3-4.

Respondents’ prehearing merits brief, however, does cite several portions of Majid Khan's

stipulation of fact. See, e.g., R. Merits Br. at 54. Mr. Paracha decries this “eleventh hour. . .

change [of] course,” and asks the court to exclude the stipulation from consideration. P. Opp.

Merits Br. at 12.

The Court will not do so. It is true that respondents objected to providing

additional discovery concerning Majid Khan earlier in the discovery process, and then later

relied on a statement from Majid Khan. As amended, the Case Management Order does require

the government to produce, upon request, “documents and objects in the government’s

possession that the government relies on to justify detention.” See Case Management Order,

Dkt. No. 204, at Part .E.1; Amended Case Management Order, Dkt. 219, at 2-3. Here, the only

Majid Khan document in question is his stipulation, and respondents have provided that

document to the petitioner. See JE 103.’

statements. And, although petitioner challenges the power dynamics of the guilty plea process,

there is no formal claim that the stipulation — which was prepared with the benefit of counsel — is

coerced or otherwise unreliable.

4 Of course, respondents have long had an obligation to produce exculpatory

evidence, which in this case includes all “reasonably available evidence in the government’s

possession that tends materially to undermine the evidence that the government intends to rely on

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Whether petitioner should also have been able to interview Majid Khan or seek

additional discovery on his background is not a question now before the Court.® In fact, the

petitioner waived all but three outstanding discovery requests — including any requests to

interview Majid Khan — at a status conference in May 2019. See Memorandum Opinion and

Order, Dkt. No. 517, at 3. Although this waiver predated respondents’ merits briefing citation to

the Khan stipulation, petitioner has nevertheless been clear in his desire to proceed to

adjudicating the merits without further delay. See id. Mr. Paracha’s petition is fully briefed,

discovery has concluded, and the parties proceeded by mutual consent to a merits hearing

without opting to file any further formal discovery motion.

In the context of the broad admissibility that the court of appeals has established

for these civil Guantanamo proceedings, see Al-Bihani v. Obama, 590 F.3d at 879, the Court will

not decline to consider relevant evidence that is properly before it. Notably, the Khan stipulation

bears substantial indicia of regularity and reliability: it is a government document from a formal

adjudicative proceeding, and all parties to the document were advised by counsel. The parties to

this habeas proceeding, moreover, had the opportunity to address the reliability of the stipulation

during the evidentiary hearing. The stipulation was part of the parties’ joint exhibits, and it has

already been admitted into evidence. For these reasons and the reasons stated on the record

during the evidentiary hearing, the Court will consider the Khan stipulation.

... including any evidence or information that undercuts the reliability of the government's

evidence.” Amended Case Management Order, Dkt. 308, at 2. There is no reason to suspect that

respondents have not attended to these obligations, including with respect to their reliance on the

statements of Majid Khan.

a The Court notes, however, that discretionary discovery in Guantanamo habeas

petitions is limited. See Case Management Order, Dkt. No. 204. “A habeas petitioner, unlike

the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary

course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997).

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B. The Presumption of Regularity for Hearsay Evidence

Respondents’ evidentiary motion also requested this Court to accord each piece of

hearsay evidence a rebuttable presumption of regularity: that it is both an authentic government

document and an accurate summary or record of a statement made by a non-government person

to the government official who produced the document. The D.C. Circuit has held that “in

Guantanamo habeas proceedings, a rebuttable presumption of regularity applies to official

government records, including intelligence reports likes the [ones] at issue here.” Latif v.

Obama, 677 F.3d 1175, 1185 (D.C, Cir. 2011), Accordingly, in October 2019 the Court granted

respondents’ motion to accord their evidence the presumption of regularity (with Mr. Paracha’s

objection to the presumption preserved for any appeal). Memorandum Opinion and Order, Dkt.

No. 545. In so doing, the Court determined that the presumption of regularity could only be

rebutted by “clear evidence of irregularity — a standard higher than preponderance of the

evidence but lower than beyond a reasonable doubt.” See id. at 4 (citing Addington v. Texas,

441 U.S, 418, 423-35 (1979)). See also People for the Ethical Treatment of Animals v. United

States Dep’t of Agric., 918 F.3d 151, 157 (D.C. Cir. 2019). But “the presumption has an

important limitation: it only permits a court to conclude that the statements in the government

record were actually made; it says nothing about whether those statements are true.” Dkt. No.

545 at 2, This Court retains the responsibility to determine the probative weight to which any

piece of hearsay evidence is entitled,

At the evidentiary hearing, counsel for Mr. Paracha attempted to rebut the

presumption of regularity by demonstrating that the interrogation reports — as a group and with

respect to several individual reports — should not be regarded as accurate accounts of Mr.

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Paracha’s statements during interrogations.” Upon careful consideration of the arguments, the

briefing, and the evidence in question, the Court now finds that Mr. Paracha has not rebutted the

presumption of regularity with respect to any category of evidence at large.

Petitioner presents several broad arguments in an attempt to undermine the

accuracy of the reports, none of which ultimately is persuasive. Counsel identify several

discrepancies between the handwritten notes prepared contemporaneously with an interrogation

and the formal report, prepared after the fact, that the interrogator ultimately submitted.

Petitioner suggests that different cultural understandings might have caused report writers to

omit portions of the interview that were, in fact, significant.'® Petitioner’s counsel also imply

that some of the reports elide the distinction between the interrogators’ own views and what Mr.

Paracha actually said during the interviews.

Many of these arguments relate to the question of whether Mr. Paracha knew that

KSM and Al-Baluchi were Al-Qaeda, which the Court addresses in Part IV, infra. Other

arguments along these lines invite the Court to parse the sequencing, spacing, and alignment of

various handwritten notes and, on that basis, to draw various conclusions about the

corresponding official report. See, e.g., Miller Notes 07/10/03, JE 70-4, at 794. The Court

appreciates Mr. Paracha’s counsel’s ingenuity, and has carefully examined the handwritten notes

2 Mr. Paracha’s counsel also made the separate argument that statements in several

categories of evidence are not reliable. See Part IJI.C, infra.

For example, Mr. Paracha told Special Agent Miller that “Mir” — later revealed to

be KSM — did not have a beard and did not wear traditional clothing. See Miller Notes 07/11/03,

JE 70-6, at 820. That fact was omitted from the report, see FBI EC 07/11/03, JE 70-7, though

someone with a closer cultural understanding might have appreciated that “Mir” did not have the

usual appearance of an extremist. And one EC omitted the fact, present in Special Agent

Miller’s handwritten notes, that petitioner believed radio stations would pay him money for

“UBL’s word,” suggesting a profit motive. See Miller Notes 07/08/03, JE 70-1, at 768.

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in question. This speculative graphology, however, does not undermine the presumption of

regularity with respect to any of the notes or corresponding reports at issue here.

Mr. Paracha has established to the Court’s satisfaction that there are some

disparities between the handwritten notes and the final reports for particular interrogations, and

that that final reports do not reflect every nuance of the underlying interrogations. With a single

exception, however, Mr, Paracha has not undermined the presumption that the reports are

accurate summaries of Mr. Paracha’s statements to interrogators.'' Some of the reports are more

detailed than others, and some were prepared more quickly after the conclusion of their

interviews. But these.differences go to the probative weight the Court accords each report, not to

the question of whether the reports generally contain an accurate account of Mr. Paracha’s

Fakencaie during interrogations.

In fact, there is also substantial affirmative evidence to bolster the accuracy of the

reports. For one, the interrogations took place entirely in English, in which Mr. Paracha is

fluent. This removes a communication barrier that has plagued interrogations of other

Guantanamo detainees and has affected other courts’ assessments of the accuracy of intelligence

reports. See Alsabri v. Obama, 764 F. Supp. 2d at 68. And interrogators from the agencies or

departments who interviewed Mr. Paracha — F Bi onc DoD — were each bound by policies

requiring them to write reports that accurately reflected the statements of an interviewee. See R-

Merits Br. Exhibits 3, 98, 99, 101. Of particular note, FBI agents are trained in the timely,

Hl In comparing multiple reports of the same interrogation, Mr. Paracha argued

persuasively that his comments about how he would smuggle chemicals into the United States

were offered as a response to an interrogator’s hypothetical. See Part IV.D, infra. To the extent

that the reports suggest that Mr. Paracha disclosed any concrete plan to smuggle explosives in

this way, the reports are inaccurate in that respect.

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complete, and accurate reporting of interviews. See Decl. of Jimmy H. Hammock, Jr., FBI

Training Division, JE 101, at 1175-76. Special Agent Miller confirms that she was careful to

differentiate her own analysis from her summary of Mr. Paracha’s statements, clearly labelling

any of her own opinions and usually placing them at the end of her reports. Decl. of Janelle

Miller (“Miller Decl.”), JE 70, at 49 5S, 11, 20,

Mr. Paracha’s counsel also attempt to rebut the presumption of regularity with

reference to the government reports by noting the general climate in which the interrogations

took place and the interagency dynamics that shaped some of the interrogations.'? Special Agent

Miller explained that the FBI’s goal during interrogations was to get truthful information from

Mr. Paracha, to gather intelligence, and to prevent future attacks. Miller Decl., JE 70, at 753.

But petitioner’s counsel speculate, without direct evidence that one of these goals predominated:

there was a bias to understand information provided by petitioner in terms of whether it provided

information that could be used to prevent a future attack. See Oct. 25, 2019 Tr. at 61:22-62:2

(“Their focus was to stop imminent terror attacks... . That’s what’s being brought into these

interrogations. So this strong motive and intense bias and the lack of understanding of cultural

differences is what we submit led to the inaccurate reporting ,. , ,”).'4

Mr. Paracha’s counsel appear to suggest that a blend of patriotism, bias, and

inexperience caused multiple interrogators — across the DoD, ri to accidentally or

I? Petitioner’s briefing does not request an explicit evidentiary ruling on this matter,

which was expressed for the first time at the evidentiary hearing.

a3 See also P. Merits Br. at 12-13 (indicating that the interrogators were “looking to

confirm false statements made by |petitioner’s son Uzair Paracha] when interrogating Saifullah

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intentionally misrepresent what Mr, Paracha actually said during the interviews. But petitioner

does not carry this argument What petitioner has identified are the inevitable dynamics of

interrogation, and not evidence that the products of those interrogations were systematically

nachaie lor one matter, with minor differences, other reports — prepared by different

authors from different agencies participating in the same interrogations — tend to corroborate

each other. They also contain a fair amount of information that Mr. Paracha identifies as

exculpatory: his repeated disavowals of violent extremism and his purportedly innocent business

motivations, for example, are reflected in the interrogation reports. Interrogators deliberately

trying to frame Mr. Paracha — or even biased interrogators — are unlikely to have included such

exculpatory details in their reports.

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In summary, Mr, Paracha has not overcome the presumption of regularity to

which the government’s records are entitled, He has failed to provide clear evidence that the

records are inauthentic or do not accurately capture the substance of the statements he made to

interrogators. Mr. Paracha has not marshaled clear evidence of any such defects with respect to

any broader category of the respondents’ evidence. As to the reliability of individual reports, the

Court’s Findings of Fact and Conclusions of Law cite and rely only on reports that the Court

finds to be accurate.

C. The Reliability of Certain Hearsay Evidence

In addition to presenting several arguments attempting to rebut the presumption of

regularity with respect to some of respondents’ evidence, see Part IIJ.B, supra, Mr. Paracha’s

counsel also have argued that several categories of evidence — even if they are accurate records

of what a witness said — should nevertheless be regarded as unreliable and given little or no

probative weight as to the truth of the statements they contain, Before relying on any piece of

evidence in these Guantanamo habeas proceedings, the court “must examine that information

and determine 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). In Guantanamo habeas cases,

individual pieces of evidence “should be evaluated based on the evidence as a whole.” See

Mohammed v. Obama, 704 F. Supp. 2d 1, 7 (D.D.C. 2009). Reliability may be assessed “by the

intrinsic characteristics of the evidence, such as the nature and consistency of the details

contained in the hearsay, as well as through corroboration by other evidence in the record.”

Alsabri v. Obama, 764 F. Supp. 2d. at 67-68 (internal citations omitted).

Upon careful consideration of the arguments, the briefing, and the evidence in

question, the Court now finds that (i) Mr. Paracha’s own statements are not undermined by the

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conditions of his interrogation and confinement, see Part III.C.1, infra; and (ii) statements made

by Mr. Paracha’s son Uzair are not undermined by the conditions of Uzair’s interrogation see

Part II.C.2, infra,

1. Saifullah Paracha’s statements are not undermined by the conditions of his

confinement or interrogation

Although the government first learned about Mr. Paracha’s alleged support to Al-

Qaeda and the Taliban from statements extracted from other detainees by torture, respondents do

not now rely on any of those statements in attempting to carry their burden of proof in opposition

to the instant habeas petition. See R. Merits Br. 18-60.; R. Opp. Merits Br. 20-45; Oct. 25, 2019

Tr. at 5:19-23 (“[W]e do not rely on any interrogation statements of Khalid Sheikh Mohammed

or Ammar al-Baluchi, . . . and we also do not rely on any interrogation statements of Majid

Khan.”). Instead, the government presents its case primarily through Mr. Paracha’s own

statements, as reflected primarily in reports of his interrogations. Mr. Paracha’s counsel,

however, “respectfully request[] this Court critically examine the intelligence reports alleged ta

be Mr. Paracha’s statements for accuracy and reliability,” in light of the conditions of Mr.

Paracha’s confinement and the nature of his interrogation. P. Merits Br. at 11-12,

Having considered the accuracy of the reports, see Part III.B, supra, the Court

turns now to assess the reliability of this evidence through the lens suggested by Mr. Paracha’s

counsel. Mr. Paracha attempts to illustrate the allegedly coercive conditions of his confinement

and interrogations through the report of an expert, excerpts from a report of the Senate Select

Committee on Intelligence, and his own personal declaration. Each of these arguments relies

more on implication than on evidence. The Court considers the reports and the declaration in

turn.

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a. The Reports

The petitioner has provided the Court with two reports about certain “Enhanced

Interrogation Techniques” (“EITs”) including sleep and sensory deprivation, stress positions,

sexual humiliation, and waterboarding — now widely recognized as torture — that the CIA used in

tandem with interrogation to induce psychological breakdown and severe physical pain in certain

detainees at Guantanamo and other sites. See Report of Dr. Stephen N. Xenakis (“Xenakis

Report’), JE 209, at 1545. The first report is an expert report from Dr. Stephen Xenakis, a

retired Army General and medical doctor who is board certified in psychiatry and neurology.

See id. at 1542, Dr. Xenakis has personally examined a number of Guantanamo detainees who

have filed habeas corpus petitions in this District, and has testified on their behalf. His expertise

is substantial and unchallenged. He did not, however, examine Mr. Paracha or his medical

records, See id. at 1543, 1547. The Xenakis Report discusses the nefarious consequences of the

EITs and other conditions at Guantanamo, and how they “can induce not only feelings of

helplessness, but also [result in] manipulation into compliance, and exploitation to confessions of

activity that was untrue and unfounded.” P. Am. Traverse at 15 (quoting Xenakis Report, JE

209, at 1544),

In addition to the Xenakis Report, Mr. Paracha also relies on the Executive

Summary of the Report of the Senate Select Committee on Intelligence Committee Study of the

Central Intelligence Agency, (the “Senate Report”), excerpts of which petitioner introduced into

evidence. See PE A. Like Dr, Xenakis, the authors of the Senate Report conclude that the CIA’s

EITs were “not an effective means of acquiring intelligence or gaining cooperation from

detainees.” P. Am. Traverse at 16. Mr. Paracha’s counsel argue generically that that the Senate

Report “offers insight into the interrogation techniques used by intelligence agencies,” P. Merits

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. Br. at 11-12, and that it “supports Dr. Xenakis’ conclusions,” P. Am. Traverse at 16. Mr,

Paracha’s counsel also point to a footnote — an unredacted version of which was produced by

order of this Court — indicating that, when the CIA first sought custody of the petitioner, the CIA

contemplated deploying the EITs to interrogate Mr. Paracha. PE A at 357; see also P. Am.

Traverse at 17.

If Mr. Paracha had been the victim of the kind of interrogation techniques

described in the Xenakis Report and the Senate Report, the Court would have serious doubts as

to the reliability of his statements to interrogators. Neither report, however, furnishes any

concrete evidence that respondents actually applied EITs to Mr. Paracha, or otherwise coerced

him impermissibly during his interrogations,

On this score, the Xenakis Report has a pronounced flaw that severely constrains

its relevance to this Court's assessment of the reliability of the interrogation reports and other

evidence. Although Dr, Xenakis opines in a convincing and harrowing manner about the

problems that other Guantanamo detainees have experienced, Dr. Xenakis never met or

examined Mr. Paracha, nor has he examined any of the documents in this case. As a result, he

does not attempt — he cannot attempt — to discuss whether Mr. Paracha himself has been the

victim of EITs, or whether he has otherwise suffered from any of the physical or mental injuries

that can produce unreliable interrogation responses. See JE 209 at 1542-47. Absent this

information, the Xenakis Report cannot, as Mr. Paracha’s counsel claim, provide “a framework

for understanding the impact of [EITs] on Mr. Paracha.” Am. Traverse at 18 (emphasis added).

The Senate Report is similarly unavailing. Although it reveals that the CIA

contemplated torturing Mr. Paracha, it also explicitly confirms that Mr, Paracha was not himself

subjected to the EITs with which the CIA mistreated many other detainees at Guantanamo.

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Importantly, Appendix 2 of the unclassified Executive Summary of the Senate Report contains

an apparently comprehensive list of all detainees whom the CIA subjected to the EITs discussed

within the Senate Report. Petitioner’s name does not appear on the list, so the Senate Report has

no relevance as to the treatment Mr. Paracha himself received. See CIA Detainees from 2002-

2008, Appendix 2 of the SSCI Executive Summary, JE 105, at 1210-13.

b. Mr, Paracha’s Declaration

Mr. Paracha also attempts to undermine the reliability of the government’s

evidence with his own declaration and with descriptions of the interrogations from a number of

the government’s reports. The declaration was prepared with the assistance of Mr. Paracha’s

able counsel in November 2018. It was drafted in connection with the Amended Traverse with

the specific goal of attacking the government’s authority to detain Mr. Paracha. As a result, the

Court believes the Paracha Declaration to be the best and most direct evidence available to assess

the petitioner’s claims of coercion. Ultimately, however, the allegations in Mr. Paracha’s

declaration and the government records of the interrogations do not establish that the kind of

coercive techniques described in the Xenakis Report and the Senate Report were applied to the

petitioner.

Capture and Transportation: The first component of Mr. Paracha’s declaration

concerns a broad group of allegations about Mr. Paracha’s capture and transportation. During

Mr, Paracha’s initial ares he was hooded and shackled in a manner that he avers

made it difficult for him to breathe, though the hood was adjusted upon request. He was

transported in a vehicle without access to food, water, or a bathroom. Later, he was taken on a

plane to Bagram Air Force Base in Afghanistan. See Decl. of Saifullah Paracha (“Paracha

Decl.”), JE 201, at {§] 2-4. His transport from Bagram to Guantanamo was similarly harsh:

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ee Id. at ] 18-21. But there is no indication that the

government interrogated Mr. Paracha while transporting him in this manner, or that these

conditions persisted beyond the time in transit. And the earliest of the interrogations on which

the government now relies were conducted in July 2003, roughly a month after Mr. Paracha was

first captured.

Conditions of Confinement: The second component of Mr. Paracha’s

declaration concerns the conditions of his confinement at Bagram and at Guantanamo. The

petitioner describes the challenges and discomfort of daily living in military custody:

inconsistent and uncomfortable temperatures, unclean and pest-plagued conditions, low-quality

sleeping and recreation facilities, social isolation, challenges in meeting religious obligations,

and occasional clashes with personnel. See, e.g., Paracha Decl. at YJ 6-8. Mr. Paracha also notes

the discomfort imposed by his medical conditions, see id. at J] 9, 13, 21, treatment of which the

parties have separately litigated before this Court. See Dkt. Nos. 124, 126.

For example, interrogators did not interview Mr. Paracha for a few weeks in December

2004, and he “became much more agitated when. . . being interviewed and has stated that he

doesn’t get much sleep because he is sleeping on a very thin mattress.” Miller Decl., JE 70, at

763 (discussing FBI ERC 12/10/04, JE 70-39, at 107).

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Petitioner’s counsel argue that these are coercive conditions that undermine the

reliability of Mr. Paracha’s statements. P. Merits Br. at 11-12. But the description of these

conditions and disciplinary tactics do not show, by a preponderance of the evidence, an unduly

coercive environment. And the evidence does not approach the abusive circumstances described

in the Senate Report.

Sleep Deprivation and Stress Positions: The third component of Mr. Paracha's

declaration contains more serious allegations of mistreatment: the use of sleep deprivation and

stress positions during his initial detention at Bagram Air Force Base. Mr. Paracha explains that

“in the first approximately 14 months . . . | was regularly denied water and access to bathroom

facilities. Music was played at a high volume 24 hours a day to prevent me from sleeping.”

Paracha Decl. § 5. While troubling, Mr. Paracha is vague as to the details, and he says nothing

specific about the duration of this tactic and its impact on him, The implication is that music was

played at high volume all day, every day, for 14 months. This appears to be hyperbole: if

nothing else, such a practice would not leave time for interrogations. Mr. Paracha does not

actually indicate the extent to which he lost sleep, but he was obviously able to get some sleep

during the 14 months he was at Bagram.

Moreover, this account also does not show the severity of the sleep deprivation

described in the Senate Report. As discussed, the CIA practiced sleep deprivation by means of

active physical interventions and strategically paired it with interrogation sessions. Dr. Xenakis’

Report confirms that, as an EIT used by the CIA, this tactic entailed extended sleep deprivation

and altered sleep cycles for periods exceeding 96 hours to induce hallucination, delusions, and

confusion, Mr. Paracha does not allege use of these tactics or claim this kind of psychological

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symptoms, nor has he identified anything from the medical records produced by the government

that reflect these psychological symptoms.

Janelle Miller, the FBI Agent who conducted many of petitioner’s interrogations

at Bagram and at Guantanamo, also contradicts specific aspects of Mr. Paracha’s claims.

Although she saw Mr. Paracha primarily during interrogations, her declaration explains that she

does not recall loud music being played, that she would not have wanted temperature extremes,

and that she allowed breaks for petitioner to pray and use the restroom. Miller Decl., JE 70, at

4 7-10.

While Special Agent Miller “had no role in Saifullah Paracha’s conditions of

confinement at Bagram outside of the interview room for the interviews [she] conducted,” Miller

Decl. at § 4, her observations are nevertheless useful to assessing Mr. Paracha’s general health

and whether he was the victim of the kinds of coercive tactics that his counsel now mention.

Notably, Special Agent Miller did not recall “Saifullah ever falling asleep or nodding off during

interviews,” at Bagram, the only place he complains of sleep deprivation occurring. See id. at

4/6. This tends to undermine the idea that Mr. Paracha was the victim of substantial sleep

deprivation. And Special Agent Miller noted that “Saifullah was pretty friendly in the beginning

of these interviews” — the interviews on which the government most relies. “He was never mean

and did not refuse to talk,” even when he was “a little moody.” Rather, he “liked to talk and was

very talkative.” Id. at 6. Special Agent Miller recalls that “Saifullah Paracha was happy to see

me when I first saw him in Guantanamo, after having previously interviewed him at Bagram.”

Id. at] 19.

The other potentially significant condition that Mr. Paracha’s declaration

describes is the use of stress positions. Mr. Paracha reports that, during his custody at Bagram,

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“[i]f you talked to someone in another cell, you would be punished. The punishment was being

forced to hold a stress position for hours. If the guards caught anyone whispering, all detainees

would be punished for it with stress positions.” Paracha Decl. at §10. For one, this discussion

of whispering undermines his claim that loud music played constantly. More importantly, Mr.

Paracha describes only one instance of actually being subjected to a stress position himself. He

reports that on one occasion, while he was housed in a communal space, guards caught two other

men talking and “made us all assume a stress position. I was very upset after this incident and

stopped eating.” Id. at ] 14-15.

This description contains no indication of what stress position was used, how long

it was imposed, or whether it had any lasting physical effect. Other detainees — those who are

the subject of the Senate Report on EITs — endured repeated and brutal stress positions in

conjunction with the interrogations themselves. They were shackled with their hands above their

heads for days at atime. Their heads were repeatedly slammed into the wall. Mr. Paracha’s

counsel rely on the freighted resonance of the “stress position” terminology. But there is nothing

in Mr. Paracha’s declaration or any of the other evidence to show that Mr. Paracha was subjected

~ even once — to the kind of torture revealed in the Xenakis Report and the Senate Report.

Interrogation techniques: The fourth and final component of Mr. Paracha’s

declaration — and most relevant to the Court’s considerations of the reliability of Mr. Paracha’s

statements to the government — are allegations with respect to the interrogations themselves. The

petitioner reports that at Bagram he was “frequently removed from [his] cell and interrogated . . .

multiple times per day for hours at a time.” Paracha Decl. at § 11. Then, Mr. Paracha makes his

most pointed claim about coercion:

During those interrogations, the people asking questions would try

to put words in my mouth and get me to agree with their answers. If

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I resisted and my answers did not agree with what they said, they

would insist my answers were impossible. This happened over and

over. Interrogators would tell me what they wanted me to say and

then try to force me to agree with their words.

Id. Mr. Paracha also indicates that interrogators denied his requests for water and restroom

breaks. Id. at ] 12. With respect to his interrogations at Guantanamo, Mr. Paracha indicates that

he was “frequently interrogated and questioned during my first few years” in Cuba:

The interrogators would try to put words in my mouth. They would

also promise to protect me and make other offers if I would “tell

them the truth.” I was already telling them the truth, but they would

insist that I was lying. It was common for interrogators to tell me

that my situation was hopeless if I did not agree with them.

Id. at § 26.

On this basis, Mr. Paracha’s counsel urge the Court to conclude that Mr. Paracha

said things that were untrue, that his will was overborne, and that he was coerced into making

false statements. But Mr. Paracha himself claims no such thing: his declaration says that the

interrogators fried to put words in his mouth. He does not claim that the interrogators actually

succeeded in inducing him to say something that was not true, or that he ever falsely confessed.

In fact, he says the opposite: that he told the interrogators the truth. A number of the

government’s reports show a person in control of his faculties, holding forth calmly and at

length, even during uncomfortable circumstances il}. one early

interrogation session at Bagram, an interrogator described Mr. Paracha as a “gentleman” who

was “very talkative. It seemed like he wanted to get a few things off his chest.’ DoD

Interrogator Notes 07/10/2003, JE 8, at 87. Later—even after years in confinement, Mr. Paracha

“recited some verses of Urdu poetry” for his interrogator, and “conversed about Urdu literature.”

Interview Report 7/11/2007, JE 35, at 253.

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The government provided petitioner with its Amended Factual Return setting out

the details of its claims in April 2018, more than seven months before petitioner filed the

Amended Traverse to which his declaration was appended. Even though Mr. Paracha has seen

this account of the statements on which the government relies, Mr. Paracha’s counsel have not

identified a single specific example — not in the petitioner’s declaration and not in several rounds

of briefing — of a time in which Mr. Paracha lied, falsely confessed, or was coerced into making

a statement. There is no specific example of an occasion that interrogators successfully “put

words in [Mr. Paracha’s] mouth.” See Paracha Decl. at ¥ 26.

The declaration provided by FBI] Special Agent Janelle Miller also undercuts Mr.

Paracha’s counsel’s interpretation of the interrogations. Special Agent Miller, who interviewed

petitioner more than thirty times at both Bagram and Guantanamo, describes her interviews as

being “friendly and interactive,” first building rapport using open-ended questions. Miller Decl.,

JE 70, at § 5. She indicates that she did not make promises to the petitioner or threaten him, and

that she “did not put words in Saifullah Paracha’s mouth,” Id, at {[ 5-7. She admits that her

question choices were informed by her prior experience interrogating Uzair Paracha. Id. at § 5.

And although she confronted Mr. Paracha when she identified inconsistencies in his story, see id.

at 24, that is a customary component of all interrogations. When it came to producing her

reports, however, Special Agent Miller faithfully “wrote down what Saifullah Paracha said in the

interviews.” Id. at] 5. During this time, “it was the policy of the FBI that no attempt be made to

obtain a statement by force, threats or promises,” and “no interrogations were to be conducted

using methods which could be interpreted as inherently coercive.” See Decl. of Jimmy

Hammock, FBI Training Division, JE 101, at 4 7.

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Consequences of confinement and interrogation: Relying on all four of the

subjects discussed by Mr. Paracha in his declaration, his counsel argue that Mr. Paracha was

“frequently subjected” to the deplorable abuses summarized in the Senate Report and Dr.

Xenakis’ declaration, “bookended by repeated interrogations.” P. Am. Traverse at 16. The

declaration shows no such thing. Indeed, while the declaration and other evidence describe

conditions that are deeply unpleasant, many of these are the near-inevitable concomitants of

military detention and interrogation. Furthermore, it sbpeaeé that interrogators assessed Mr.

Paracha’s health at the beginning of most interviews. See, e.g., DoD Interrogator Notes

07/08/03, JE 7, at 79; Report of Interview with ISN 1094, July 7-11, 2007, JE 35, at 250

(describing a course of interviews during which “in the beginning of each interview [Mr.

Paracha] was asked about his health and comfort”). And the interrogators were attentive to Mr.

Paracha’s physical health and mood: they even asked doctors to examine Mr. Paracha before an

interrogation if he appeared to be unwell. See FBI EC 07/14/03, JE 70-12, at 875. The reports

do indicate that Mr. Paracha suffered from general health problems. See id. (noting that Mr.

Paracha suffered from high blood pressure and that he “felt light-headed in the morning”). But

the reports offer little support for the idea that Mr. Paracha was suffering grueling physical or

emotional abuse.

Petitioner’s position on the coercive conditions of his interrogations also entails a

logical difficulty. Mr. Paracha admits the truth of the substantial majority of the facts on which

the government relies, most of which emerge from petitioner’s own statements during the

interrogations he now challenges, See Respondents’ Classified Opposition Merits Brief (“R.

Opp. Merits. Br.”), at 16-17 (summarizing conceded facts); see also Noy. 19, 2019 Tr, 12:11-

48:12 (summarizing respondents’ account of the “undisputed” facts), Indeed, he even

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emphasizes a number of exculpatory details that also emerge from these interviews. Mr. Paracha

appears to acknowledge that /hese statements were accurately recorded and were obtained free of

coercion. Mr. Paracha’s counsel now argue that some of the additional claims from these very

same interviews — largely those pertaining to his knowledge and intent — should be regarded as

unreliable. There is no explanation of how the conditions and tactics relating to a particular

interrogation could be coercive as to some statements but not others, let alone any proposal for

how the Court might decide which claims are which.

Finally, there is substantial affirmative evidence that Mr. Paracha’s statements to

interrogators are generally reliable. With few exceptions, they speak to matters within Mr.

Paracha’s direct experience or first-hand knowledge and are laden with substantial details.

Although Mr. Paracha’s grasp of the relative dates of certain events is less than perfect, the

interrogation reports consistently demonstrate a remarkable command of the places, persons, and

circumstances at the heart of the government’s allegations. On the whole, the reports show that

Mr. Paracha had an excellent memory and a willingness to speak frankly with interrogators,

especially about the details of his own accomplishments. These characteristics underscore the

reliability of the reports. See Alsabri v. Obama, 764 F, Supp. 2d. at 68. Although Mr. Paracha’s

explanation of the significance of his actions evolves over time, his account of his actions

themselves remains generally consistent. What changes is Mr. Paracha’s dawning realization of

the consequences of his intimate relationship with members Al-Qaeda, and his previous

statements acknowledging the relationship.

In summary, upon review of the Xenakis Report, the Senate Report, the Paracha

Declaration, and other evidence on the conditions of Mr. Paracha’s confinement and methods of

interrogation, the Court finds that the conditions and methods do not systematically undermine

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the reliability of Mr, Paracha’s statements to his interrogators. Certain individual statements

from Mr. Paracha are more credible — and are entitled to greater probative weight — than others.

The Court’s Findings of Fact and Conclusions of Law rely exclusively on reports and statements

that the Court considers reliable, See Parts IV, V, infra.

2. Uzair Paracha’s pretrial statements are reliable

Mr. Paracha has also placed at issue the reliability of a second set of records relied

upon by the government: statements made by the petitioner’s son, Uzair Paracha, at several

phases of his investigation and trial on terrorism-related charges in the United States District

Court for the Southern District of New York. Three categories of statements from Uzair are at

issue in this case: Uzair’s statements during the initial investigation, his statements to the

government during proffer sessions, and his statements at his criminal trial. Petitioner now

argues that Uzair’s statements “corroborate nothing and are wholly unreliable,” a claim that

appears to apply to all of Uzair’s statements. P. Am. Traverse at 59 (emphasis added).'° The

petitioner therefore “requests this Court [to] ascribe Uzair’s statements mo weight.” P. Merits Br.

at 1! (emphasis added). The Court finds, however, that the Uzair Paracha statements on which

the government relies — the pretrial statements and the proffer sessions statements — are, as a

group, generally reliable. It therefore denies the petitioner’s request.

Initial Interviews: Acting on the basis of intelligence gathered from other

detainees, the FBI approached Uzair Paracha at his New York office on the evening of March 28,

2003, about a year after Uzair arrived in the United States from Pakistan. Uzair agreed to speak

8 Petitioner supports these claims by reference to Judge Sidney Stein’s 2018

decision, based on newly discovered evidence, to set aside Uzair Paracha’s 2005 conviction. See

P. Am. Traverse, Ex. G., United States v. Uzair Paracha, No. 1:03-CR-01197, 2018 WL 3238824

(S.D.N.Y. July 3, 2018) (appeal filed).

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with the agents and accompanied them to the FBI offices, where he was interviewed until 4:00

AM the following moming, and then escorted to a hotel by the FBI so that he could rest and

continue his interview later that day. United States v, Uzair Paracha, 2018 WL 3238824 at *3.

In this second interview, the FBI advised Uzair of his Miranda rights, which he waived, and

continued questioning him. In all, Uzair participated in three days of questioning without the aid

of counsel. During these interviews, Uzair initially denied any knowledge of Al-Qaeda, He

soon changed his account, however, and made a number of statements on which the government

now relies in this case to support its detention of Saifullah Paracha. Among other things, Uzair

admitted that he and his father had been affiliating with people they knew to be members of Al-

Qaeda and had been offering them certain saattance, ae

Statements at Proffer Sessions: On March 31, 2003, the FBI arrested Uzair

Paracha on a material witness warrant. Over the next two months, Paracha continued to

cooperate and answer questions for the FBI in a series of proffer sessions at the Office of the

United States Attorney for the Southern District of New York, during which time he was

accompanied and assisted by defense counsel. United States v. Uzair Paracha, 2018 WL

3238824 at *3. During these sessions, Uzair both elaborated on and contradicted portions of his

earlier statements. Although he offered occasionally inconsistent details of the timing, financial

7 Among other things, Uzair confirmed (i) that he agreed to help Majid Khan enter

the United States and had met with Al-Baluchi, whom he knew under a different name, about

these plans; (ii) that he knew Khan and Al-Baluchi were Al-Qaeda, and learned this information

from his father, the petitioner; (iii) that he “suspected [Saifullah Paracha] of being Al-Qaeda”

and that he “‘wouldn’t be surprised’ to learn that his father was involved in a terrorist plot,

because ‘his father had met [Bin Laden]’ and ‘expressed admiration for [him];*” and (iv) that

Majid Khan gave him several tasks to facilitate Khan’s re-entry to the United States. United

States v. Uzair Paracha, 2018 WL 3238824 at *3. See also Uzair Paracha FD-302 03/30/03, JE

55; Uzair Paracha FD-302; Uzair Paracha FD-302 04/23/03, JE 56; Uzair Paracha FD-302

05/01/03, JE 57; Uzair Paracha FD-302 05/05/03, JE 58.

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details, and motivation for certain interactions he and his father had with Al-Qaeda, Uzair did not

“ever disavow his admissions to knowing that [Majid] Khan and al-Baluchi were al Qaeda

members, that by assisting Khan he was helping al Qaeda, and that his father had business

dealings with the terrorist group.” Id. at *3-4. It is these admissions on which the government

principally relies, primarily for the purpose of bolstering its claims about Saifullah Paracha’s

knowledge of Al-Qaeda and his assistance to Majid Khan. On the strength of these admissions, a

federal grand jury charged Uzair with five felony counts on terrorism-related charges in October

2003,

Statements at Trial: At his criminal trial in 2005, Uzair changed his approach.

He acknowledged making the incriminating statements about himself and his father, but

“maintained that key portions of them constituted false confessions made out of a combination of

fear, intimidation, and exhaustion.” United States v. Uzair Paracha, 2018 WL 3238824 at *5.

Although he admitted to his conduct, Uzair denied knowing that Al-Baluchi or Khan were

members of Al-Qaeda at the time he met them, and said that he took steps to help Majid Khan

out of respect for his father rather than from any extremist fervor.

Uzair explained that he decided to give the incriminating statements to the FBI]

during his pre-arrest interviews because, after telling the truth, he had not been allowed to go

home. Uzair claimed that he felt pressured to admit affiliation with Al-Qaeda during his initial

interviews: that his cell phone was taken to prevent contact with his family, that he was subjected

to a strip search in a hotel room after his first night of interrogation, and that he was threatened

with arrest or jail if he invoked his right to counsel. United States v. Uzair Paracha, 2018 WL

3238824 at *6. The government denied each of these allegations. Id. At trial, Uzair said that he

decided to falsely implicate himself and his father during the first three days of interviews and

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over the course of several months of proffer sessions “because I thought that is what they wanted

to hear,” and because he “hoped that by cooperating he would be allowed to return home to

Pakistan.” Id. at 5.

Implications of the New Trial Order: At the conclusions of Uzair Paracha’s

trial in 2005, the jury convicted him on all five counts, and Judge Stein sentenced him to thirty

years’ imprisonment. United States v. Uzair Paracha, 2018 WL 3238824 at *7. In 2018,

however, Judge Stein set aside Uzair’s conviction and granted him a new trial on the basis of

new evidence: post-trial statements from Majid Khan, Al-Baluchi, and KSM that tend to

exculpate Uzair Paracha by denying fundamental elements of the government’s case — elements

to which Uzair Paracha had stipulated at trial. The petitioner here argues that Judge Stein's

Opinion raised “concerns of coercion and inconsistent statements” and that, therefore, this Court

should give no weight to Uzair’s admissions. P. Merits Br. at 9.

The Court reads Judge Stein’s opinion differently, particularly when it is

considered in combination with his pre-trial opinion denying Uzair Paracha’s own motion to

suppress those very admissions. “Although Judge Stein noted some inconsistencies among

Uzair’s statements, and that some lacked corroboration, he did not ground his decision [to grant a

new trial] on those concerns.” R. Opp. Merits Br. at 18. These are the same inconsistencies that

were highlighted at trial, during post-trial briefing, and at sentencing — and they did not prevent a

judgment of guilty and a sentence. Judge Stein simply concluded that, had the newly discovered

exculpatory statements been available to Uzair Paracha, Uzair would have made different

strategic decisions about whether to stipulate to his interlocutors’ membership in Al-Qaeda, This

is a judgment about the strength of the government’s case for conviction. Judge Stein concluded

that, on all of the evidence, there was a significant chance that the introduction of the new

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evidence could have induced a reasonable doubt in the minds of enough jurors to prevent a

conviction.

This question — whether a unanimous jury would have found Uzair Paracha guilty

of five specific felony charges beyond a reasonable doubt — is not the question before this Court.

In this civil matter, the only relevant question about Uzair Paracha is whether the statements he

made during his pre-arrest interviews and his proffer sessions, and on which the government now

relies in this proceeding, should be denied all probative weight.

They should not be, for several reasons. First, as Judge Stein found in his

decision denying Uzair Paracha’s motion to suppress the statements, the circumstances of Uzair

Paracha’s interviews were not coercive. It is quite reasonable for petitioner to highlight some of

the unusual features of the interrogation, at least with respect to its initial phases. But Judge

Stein thoroughly examined the circumstances of the initial interrogations during an evidentiary

hearing on Uzair’s motion to suppress these statements. Judge Stein denied the motion, noting

that Uzair’s statements were “not obtained involuntarily and that those statements were not

obtained in violation of his Fifth Amendment privilege not to incriminate himself.” United

States v. Uzair Paracha, Crim. No. 03-1197, Op. & Order (S.D.N.Y, Aug. 24, 2004) (Dkt.

No. 28). Judge Stein had the benefit of a full evidentiary hearing on this question, and this Court

sees no cause to supplant his well-reasoned conclusion that Uzair’s pre-arrest statements were

voluntary.

Second, as to the purported contradictions between Uzair’s pre-arrest statements

and the trial testimony, some of the statements that Judge Stein identified are now corroborated

by materials that were not available to Judge Stein. Most notably, Uzair’s accounts of his

assistance to Majid Khan match the essential details of the account given by the petitioner

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himself, despite the fact that the two had no opportunity to coordinate, It is hard to imagine that

Uzair could have concocted a story to tell FBI agents during his pre-trial interrogations and that,

years later, without speaking to Uzair, Saifullah Paracha would offer much the same account.

See Part IV, infra. Importantly, Uzair does not deny making the statements to the FBI; he just

said at trial that he lied. During the initial interrogation, however, Uzair had not yet been charged

and, perhaps, did not grasp the implications of his statements. At trial, however, Uzair was

aware of the charges and saw the consequences of his affiliation with Al-Qaeda members —

enabling him to target which of his admissions were especially problematic and should be

retracted. The “inconsistencies” appear to be self-serving.

Third, petitioner asks the Court to believe a series of events and motivations that

is nothing short of confounding. Uzair now claims that his initial denial of any knowledge of Al-

Qaeda was the truth. Almost everything else he said — all of the incriminating statements linking

himself and his father, everything he said over several days of interview sessions and several

months of proffer sessions — was a lie designed to obtain his freedom. Uzair Paracha may have

been young and “without any interactions with law enforcement either in Pakistan or in the

United States.” P. Opp. Merits Br. at 8. As Judge Stein observed, Uzair may have even

displayed “Hamlet-like indecision on... whether to call a lawyer . . . among other odd behavior

tending to show he may not have fully grasped the nature of the situation he was in.” United

States v. Uzair Paracha, 2018 WL3238824 at *16. But the Court cannot believe that Uzair

decided that the best way to attain his release was to concoct stories for the FBI about extensive

affiliations he and his father had with the world’s most notorious terrorist organization. It is

likewise difficult to credit the idea that Uzair would have fabricated this evidence while guided

by counsel, who would surely have advised him of the perils of lying during a proffer session.

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Accordingly, the Court finds that Uzair Paracha’s pretrial statements were not

coerced and are generally reliable. Nevertheless, the Court takes note of the fact that those

statements themselves contain contradictions in certain details. In the Findings of Fact and

Conclusions of Law that follow, the Court has primarily relied on statements from Uzair that are

externally corroborated. The Court has assessed the relevant statements individually and

accorded them the probative weight each deserves.

IV. FINDINGS OF FACT

The instant petition turns both on what Paracha did for Al-Qaeda and the Taliban

and — more vigorously disputed by the parties — what he Anew at the time he interacted with

Osama Bin Laden and other members of Al-Qaeda. Both questions are the focus of the Court’s

Findings of Fact.'®

The parties’ presentations at the evidentiary hearing addressed five material

issues in dispute. With respect to each of the material issues in dispute, the Court makes the

following Findings of Fact by a preponderance of the evidence. As noted in Part IU, supra, this

standard entails “a comparative judgment about the evidence to determine whether a proposition

is more likely true than not true based on all the evidence in the record.” Almerfedi v. Obama,

654 F.3d at 5.

A, Mr, Paracha Provided Assistance to Taliban Fighters

The government’s evidence on the first disputed issue of material fact includes

both specific claims about instances of support to the Taliban and Al-Qaeda and general claims

about Mr. Paracha’s status within the extremist community and his attitudes toward it.

A Whether based on the conduct described in the Findings of Fact, respondents

possess the legal authority to detain Mr. Paracha is discussed in the Court’s Conclusions of Law,

See Part V, infra.

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|, Mr. Paracha was knowledgeable about the Taliban and endorsed the organization

Mr. Paracha has been open about his support for the Taliban. He admired the

stabilizing role that it played in Afghanistan after that country’s war with the Soviet Union, and

he believed that the Taliban was the best choice for the Afghan people. FBI EC 10/14/04,

JE 70-30, at 949; FM40 10/15/03, JE 26, at 201. Similarly, during early interrogations at

Bagram, Mr. Paracha openly admitted that he “sympathizes with [Al-Qaeda],” FBI EC 07/11/03,

JE 70-7, and said that he “felt it was a privilege to work with [Al-Qaeda],” FBI EC 07/13/03, JE

70-10, at 866.

Petitioner offers information on the Pakistani cultural context in an attempt to

neutralize the implications of these attitudes. One of petitioner’s experts, Dr. Sadia Saeed, is a

native of Pakistan and a professor of Sociology at the University of San Francisco. In her report,

Dr, Saeed surveys Pakistani news media and academic sources to opine on the attitudes that

Pakistanis most likely had towards the Taliban and Al-Qaeda in the period immediately before

and after 9/11. Dr. Saeed explains that, before 9/11, “expressing support for the Taliban

regime . . , was the official state policy of Pakistan, Thus, expressing support for, and doing

business or charitable work with, the Taliban during this time would not have been illegal or

unusual .., in Pakistan.” Perceptions of Taliban, Al-Qaeda, and Osama Bin Laden in Pakistan

(“Saeed Report”), JE 211, at 1560. Dr. Saeed writes that “pro-Taliban sentiments were widely

shared by ordinary Pakistanis.” See id. at 1562. Petitioner’s counsel suggested during the

evidentiary hearing that many people would have found it difficult even to distinguish between

the numerous extremist groups active in the middle east at the time.

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The Court assumes for the sake of argument that Dr. Saeed has reasonably

described the attitudes of so-called “ordinary Pakistanis” before 9/11,'? Mr. Paracha, however,

was no ordinary Pakistani. He lived in the United States for fifteen years. In his education, his

cosmopolitan world-view, his consumption of western news media, his political connections, and

his resources, Mr. Paracha was unusual. See Part [.A, supra. Dr. Saeed’s report itself

distinguishes the views and the conduct of “the English-speaking elite’ — like Mr. Paracha — and

“the average non-English speaking Pakistani.” JE 211 at 1578. See also id. at 1564 (noting that

“the more liberal public” held “perceptions about the Taliban that were different” from the

ordinary public).

Drawing on Dr. Saeed’s findings, petitioner also argues that it would have been

hard for any Pakistani to conduct charitable work in Afghanistan without having contact with the

Taliban. P. Merits Br. at 15. But this case does not present a question of casual contact or

glancing acquaintance, Mr. Paracha did not just tolerate the Taliban to the extent necessary to

do his charitable work: his statements to interrogators confirm that he had substantial knowledge

of the extremist landscape and that he endorsed the Taliban, in particular, FBI EC 10/14/04,

JE 70-30, at 949,

Moreover, Mr. Paracha’s engagement with the Taliban went beyond

understanding and approval. Petitioner himself denied being an “Islamic militant,” but the

evidence shows that that he freely associated with many who were, See JE 8 at 84. For

i? The Report does contain an unsupported — and likely unsupportable — claim about

Bin Laden’s fatwa calling on all Muslims to kill Americans. Dr. Saeed writes that “the exact

circulation of this fatwa cannot be ascertained although it can be reasonably surmised that it

would have made the rounds exclusively among extremist groups.” JE 211] at 1571-72. Other

evidence in the record renders this supposition unlikely: the fatwa was discussed in the Pakistani

press before and after 9/11.

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example, Mr, Paracha knew members of the Taliban leadership personally. JE 70-30 at 949.

Accordingly, both Lashkar-e-Tayyibe, designated by the U.S. Department of State as a Foreign

Terrorist Organization (“FTO”), and Jamaat Islami, a Pakistani political-religious group, asked

Paracha to broker meetings with Taliban leadership. FBI EC 10/26/2004, JE 70-33 at 972. Mr.

Paracha frequently received solicitations of this kind. He knew Mufti Abdul Rasheed, head of

the Al-Rashid Trust in Pakistan, which provided “the most help” to the Taliban, including food

and shelter. FBI EC 12/03/04, JE 70-37, at 995. Rasheed frequently solicited money from

Paracha for jihadist causes. Id. Paracha declined to assist Rasheed — but only because his own

organization, the Council of Welfare Organizations, was already helping the fighters in other

ways.

Mr. Paracha also provided more direct assistance to certain non-Taliban fighters

in the region. He supported the mujahedeen fighting to “keep the Jihad alive in Kashmir,” and

even helped the fighters to get out of jail when the Pakistani Sucutie arrested them. FBI EC

10/26/2004, JE 70-33, at 971.2" He also claimed credit for assisting mujahedeen in Chechnya,

Kashmir, and Afghanistan. Id.

In short, these affiliations and acts of assistance show a comprehensive and

nuanced grasp of various Pakistani and Afghan jihad-oriented organizations, their leadership,

and their causes. The government does not allege that any of the foregoing attitudes or

affiliations show that Mr. Paracha was pari of the Taliban or one of the other non-Al-Qaeda

jihadist organizations, And, as Mr. Paracha’s counsel have pointed out, association and offers of

assistance may not themselves amount to the provision of substantial support. Even so, these

2 Mujahedeen are Muslim guerilla fighters. Saeed Report, JE 211, at 1558.

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substantial and longstanding affiliations with the Taliban and other jihadist organizations — and

Mr. Paracha’s knowledge of and admiration for them — are the context in which the Court

considers the import of Mr. Paracha’s more overt activities. The Court makes the following

Findings of Fact with respect to the respondents’ three specific claims of assistance.

2. Mr. Paracha helped Taliban fighters to procure military equipment

On four occasions between 1999 and 2002, Mr. Paracha travelled to Afghanistan

as a member or leader of delegations representing Pakistani charitable organizations. See FBI

EC 08/11/03, JE 71, at 1013-14; see also Part IV.B, infra. Petitioner went to Afghanistan for the

second time about a year before the 9/11 terrorist attacks, in December of 1999 or early 2000.

Mr. Paracha led a delegation that met with key Taliban leaders, including the Deputy Foreign

Minister. The delegation stayed in a Taliban guest house in Kandahar. FBI EC 10/26/2004,

JE70-33, at 972; FBI EC 01/22/2004, JE 73, at 1024.

During this trip, Mr. Paracha and the delegation met and provided aid to Taliban

fighters who were battling the Northern Alliance.”! Two of the fighters, Abdul Rahman and Abu

Jabrail, asked for money to purchase a four-wheel drive vehicle. Mr, Paracha and the delegates

raised roughly $7,000 to give to Rahman and Jabrail. See FBI EC 11/05/2004, JE 70-36, at 989.

Mr. Paracha confirmed to interrogators that the money was used to purchase a used four-wheel

drive vehicle. It appears that the vehicle was used in fighting against the United States during

the war in Afghanistan. See JE 70-33 at 972 (indicating that, when the Taliban fighters spoke

2 The Northern Alliance was a group in the northern part of Afghanistan, including

a number of those from Afghanistan’s pre-Taliban government, who opposed the Taliban’s

takeover of the country. The Northern Alliance supported the United States invasion after 9/11.

See P. Am. Factual Return at 6,

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with Mr. Paracha shortly after the United States invaded, the vehicle had been “hit by a bomb

during the fighting in Afghanistan”).

Petitioner does not deny that he contributed to the purchase of a fighting vehicle

for Taliban fighters. Rather, Mr. Paracha argues that the purpose of the trip was primarily

charitable, that he made this financial contribution as part of a large delegation, and that it cannot

be the basis for substantial support because the decision to contribute money was a collective

one. But the evidence reveals that Mr. Paracha was a leader of the effort, not a passive

participant. As the head of the delegation, Mr. Paracha “placed a Pakistani in charge of

collecting all the money for the fighters.” FBI EC 11/05/2004, JE 70-36, at 989. And, several

weeks after the delegation returned to Pakistan, it was Mr. Paracha whom the fighters called to

confirm receipt of the $7000 contribution, which offers further evidence of the petitioner’s

leading role. Id. at 990.** Accordingly, the Court finds by a preponderance of the evidence that

Mr. Paracha led an effort to gather money that was used to purchase a vehicle for Taliban

fighters, and the fighters used the vehicle in combat against the United States.

3. Mr. Paracha provided financial support to Taliban fighters

Mr. Paracha received many additional requests from Taliban fighters. In fact, Mr.

Paracha told the FBI that, after the United States invaded Afghanistan in September 2001,

jihadists fighting against American troops “would come to his office and ask for things because

the jihadists knew Paracha could get things done.” JE 70-30 at 950.” For example, Saud

or In addition to challenging some of these facts, the petitioner also makes legal

arguments that this contribution does not amount to “substantial support” of the Taliban for

purposes of the NDAA. The Court addresses these arguments in Part V, infra.

# Throughout this Opinion, quotations attributed to Paracha are taken from the

government reports summarizing Paracha’s interrogations. Unless otherwise noted, these reports

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Ahmed, a Pakistani whom Mr. Paracha met on a trip to Afghanistan, served as a middleman

between Dr. Naseem (of the CWO) and the Taliban. Saud Ahmed asked Mr. Paracha for

“money for food and medicines for the fighters in [Afghanistan].”” FBI EC 10/26/2004, JE70-33,

at 971. Mr. Paracha confirmed that Ahmed gave money for such things to the fighters, but the

report detailing Ahmed’s request to Mr. Paracha is not clear as to whether Mr. Paracha himself

contributed in response to the solicitation. Id.

Shortly after the start of the U.S.-Afghanistan war, Abdul Rahman and Abu

Jabrail again contacted Mr. Paracha —this time to seek financial support for the Taliban's war

against the United States. FBI EC 10/26/2004, JE70-33, at 972. Mr. Paracha declined — not

because he did not support the cause, but because he was already sending medicine and other

supplies to the fighters; and “he knew from living in the US that it was a waste to give the

fighters money because they would not win,” Id. at 973. The request establishes that Taliban

fighters recognized Mr. Paracha, among the various members of the delegation, as a leader and

potential source of aid.

The requests for assistance continued as the U.S.-Afghanistan war waged on.

Pakistani and Afghan fighters “who were supporters of the Taliban” came to Mr. Paracha’s

office five or six times to ask for thousands of dollars to “buy weapons to fight in the war in

[Afghanistan] against the [United States].” FBI EC 10/14/04, JE 70-30, at 951. Mr. Paracha

agreed to assist, but told interrogators that he did so by providing them “money so the jihadists

could buy cement to build a mosque in Pakistan near the [Afghanistan] border.” Id. Mr, Paracha

had one of his employees deliver the equivalent of $600 directly to a cement company. Id.

contain the interrogators’ accounts of Paracha’s direct statements but do not purport to be

verbatim quotations.

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With reference to all of the foregoing solicitations, petitioner’s counsel point out

that Mr. Paracha did not admit to providing direct financial support to the Taliban for weapons

purchases, and that Mr. Paracha also rejected solicitations. Nevertheless, when Mr. Paracha

agreed to provide $600 — allegedly to a cement company for mosque construction — he did so in

direct response to an explicit request for weapons, and he indicated that the contribution was “to

help” the war in Afghanistan, FBI EC 10/13/04, JE 70-30, at 951. It is not clear how such a

mosque would be helpful in defeating the United States, or why the Taliban fighters would

decide to organize and protect a construction project in the midst of a pitched battle with the

world’s largest military. Mr. Paracha never visited the mosque and was unable to provide any

details about the mosque, including whether it had ever been built. Id. He acknowledged that it

“was possible” that the jihadists could have used the money for another purpose. Id. On these

facts, itis more likely than not that the money Mr. Paracha provided — ostensibly for construction

of a mosque — was diverted to another use.

Mr. Paracha discussed his trips to Afghanistan in a 2005 Administrative Review

Board proceeding, explaining that “I had no inclination toward the Taliban, the Taliban

government, or the Northern Alliance. | am not a political man. | just wanted to help people. I am

not an extremist.” ARB Summary 12/07/05, JE 64, at 640. Mr. Paracha may well have desired

to help people. Indeed, there is no necessary contradiction in being both a benevolent

businessman and also a committed jihadist. In the context of his earlier admissions of aid and

explicit engagement with the Taliban’s political program, however, this statement appears to be

an attempt to conceal the depth of his support for the Taliban.

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The Court finds by a preponderance of the evidence (i) that petitioner provided

medicine and other supplies to the fighters; and (ii) that he provided financial support to Taliban

fighters on at least one occasion, in the form of a donation worth $600.

4, The government has not established by a preponderance of the evidence that Mr. Paracha

provided direct support to Al-Qaeda fighters

In contrast to the numerous requests for assistance that Mr. Paracha admits he

received from the Taliban, he claims that Al-Qaeda did not come to him with requests for money

for the war in Afghanistan. FBI Intelligence Report 07/10, JE 40, at 298.74 The government has

identified one statement from Mr. Paracha that arguably reflects a request for direct aid to Al-

Qaeda fighters.2> Dr. Naseem, head of the Siddiqui Memorial Trust, asked Mr. Paracha for help

providing gas masks during the Afghan-U.S. war, and Paracha initially told his interrogator that

“the gas masks were for the Afghan people.” FBI EC 10/13/2004, JE 70-30, at 950, When the

interrogator challenged Mr. Paracha about the plausibility of providing gas masks to all Afghan

people, the report indicates that “Paracha admitted that the gas masks were for the Taliban and

AQ fighters.” Id.

Respondents believe that this exchange reflects a request to furnish gas masks for

Al-Qaeda fighters, but that is not the best reading of the interrogation report summarizing the

conversation. Petitioner has persuasively argued that the report shows an after-the-fact

a4 Some of Uzair Paracha’s early statements to the FBI, however, contradict this

claim, Uzair claims that, in approximately the summer of 2002, members of Al-Qaeda came to

Mr. Paracha to ask for money to purchase weapons for their war against the U.S. Uzair was not

sure whether Mr. Paracha ever agreed. Uzair Paracha FD-302, JE 55, at 420. See also Uzair

Paracha FD-302 05/01/03, JE 57, at 430 (indicating that “[bJetween August and December 2002,

the Al-Qaeda people approached Saifullah . . . on a couple of occasions” to ask for money for

weapons),

as As discussed below, however, petitioner received many requests for broader

logistical and financial assistance to Al-Qaeda.

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concession about a purpose that Dr. Naseem may have had in mind, rather than an expression of

Mr. Paracha’s understanding and intent at the time of his discussion with Dr. Naseem. Like Mr.

Paracha, Dr. Naseem was part of the Council of Welfare Organizations, a group of Pakistani

charities that was dedicated to health and other causes in Pakistan and Afghanistan. An attempt

to procure gas masks — even if not enough for all Afghan people —is consistent with the

humanitarian aims of that organization. Finally, as respondents concede, Mr. Paracha never

actually took any concrete steps to provide gas masks,

Accordingly, the Court finds that the government has failed to prove by a

preponderance of the evidence that Mr. Paracha’s conyersation about gas masks with Dr.

Naseem establishes any direct support to Al-Qaeda fighters, or that Mr. Paracha provided any

other direct support to Al-Qaeda fighters.

B. Mr, Paracha’s Meetings with Osama Bin Laden Demonstrate that he was Trusted by and

Eager to Work with Al-Qaeda.

The government’s evidence on the second disputed issue of material fact concerns

Mr. Paracha’s two meetings with Osama Bin Laden in Afghanistan,”° The parties agree that the

meetings took place, but they disagree about the nature of a conversation that occurred at one of

the meetings and about what the meetings reveal about the intentions of Mr. Paracha and Al-

Qaeda.

In December 1999 or January 2000, petitioner led a charitable delegation of

Pakistanis to Afghanistan, his second visit to that country. He and his fellow travelers stayed at a

Taliban guest house in Kandahar, FBI EC 11/05/04, JE 70-36, at 989. Mr. Paracha was one of a

o The reports and other evidence frequently refer to Osama Bin Laden as “UBL,”

referring to the alternate spelling Usama, or as “the Sheikh.” See Miller Decl., JE 70, at 12.

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select group of the delegation — between six and fifteen of the roughly 100 travelers — who were

invited to meet personally with Osama Bin Laden. The group travelled to the meeting site by

car, arriving after dark and parking inside a building. FBI EC 07/11/03, JE 70-7, at 840;

JE 70-36, at 989, Numerous bodyguards secured the building, but none of the visitors was

searched or blindfolded. FBI EC 07/09/03, JE 70-3, at 787.

Inside the building, Osama Bin Laden shook the attendees’ hands and spoke to the

group for thirty to forty minutes. He read from the Koran and the sayings of the Prophet, and

gave what Mr. Paracha described as “a speech . . . about jihad and fight against injustice.”

07/11/04 DoD Interrogator Notes, JE 9, at 91. See also SIR 11/03/2004, JE 37, at 279

(indicating that the Koranic verses encouraged Muslims to help other Muslims). Special Agent

Miller’s handwritten notes of this interrogation contain Mr. Paracha’s statement that the “UBL

message” at this meeting was “jihad — stand up & fight against injustice.” Miller notes

(7/11/2003, JE 70-6, at 824 (emphasis in original). Another interrogation report relays Mr,

Paracha’s claim that Osama Bin Laden spoke on this occasion against the United States’ policy

in Israel and praised an Egyptian dictator. JE 70-3 at 787.

Toward the end of the meeting, Saifullah Paracha spoke directly with Osama Bin

Laden. Mr. Paracha gave Osama Bin Laden his business card, “offering his media company to

spread UBL message” [sic]. JE 9 at 91; see also JE 37 at 280. At another interrogation

addressing the same meeting, Mr. Paracha elaborated that “he offered [Bin Laden] the use of

[Paracha’s] media company” by proposing that Bin Laden record his message in English, which

would allow him to “get his message across to many more people.” JE 70-3 at 787. The parties

vigorously dispute what Mr. Paracha understood Bin Laden’s “message” to be when he offered

to disseminate it.

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Petitioner’s second meeting with Osama Bin Laden took place on his third trip to

Afghanistan, which was likely in April or May 2001, just a few months before the 9/11 terrorist

attacks, The second meeting followed a routine similar to the first: Mr. Paracha travelled with a

charitable delegation and stayed at a Taliban compound on the outskirts of Kandahar. A Deputy

Foreign Minister of the Taliban informed the group that a select subset of the delegation had

been invited to meet with Osama Bin Laden. FBI EC 11/05/04, JE 70-36, at 991. Petitioner

again travelled by car to visit Bin Laden; as before, Bin Laden's handlers imposed no security

screening on the visitors. Bin Laden prayed with the group, and they shared a meal. SIR

11/03/04, JE 37, at 286. Mr. Paracha told interrogators that he did not speak personally with Bin

Laden, about his business proposal or otherwise, during this second meeting. Id.; JE 70-36 at 91.

|. The meetings show that Al-Qaeda trusted Mr. Paracha

The circumstances of the meetings show that Al-Qaeda had some measure of trust

in Saifullah Paracha. As an initial matter, it is clear that when Mr. Paracha met with Bin Laden,

he was meeting with the man in his capacity as the head of Al-Qaeda: Bin Laden helped found

the organization and, by the time of the meeting, was known as its unquestioned leader, See

Respondents’ Classified Amended Factual Return (“R. Am. Factual Return”), at 9 (citing The

9/11 Commission Report); Decl. of TE 5 2x ground Declaration — Al Qaida (|

Decl.”), JE 5, at 65. Moreover, as described above, the meeting for the Pakistani delegates was

arranged by an Al-Qaeda ally, and Bin Laden's remarks touched on the ideological agenda of Al-

Qaeda. There is no evidence that Bin Laden — by this time a fugitive — was engaged in some

public or legitimate business that is separate from Al-Qaeda. Osama Bin Laden’s work was Al-

Qaeda’s work.

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The implications of the meetings, from Al-Qaeda’s perspective, are similarly

clear, By the time he met Mr, Paracha, Osama Bin Laden had not yet launched the 9/11 terrorist

attacks but was already an internationally hunted terrorist.

Mr, Paracha mentioned the security arrangements during multiple

interrogations — the meeting clearly made a distinct impression on Mr. Paracha about the stakes

of dealing with Bin Laden.

The fact that petitioner was able to meet Bin Laden at all is notable. Only a select

cohort of the larger Pakistani delegation was invited. As the government has represented, it is

unusual for Guantanamo habeas petitioners, even those detained for their alleged affiliations with

Al-Qaeda, to have met Bin Laden himself. Nov. 19, 2019 Tr. 20:16-22. It is even more notable

that, having been permitted to meet Bin Laden, Mr. Paracha and his companions were allowed to

observe the route of travel, enabling them to identify Bin Laden's location, They were allowed

to enter his presence — and to make physical contact with him — without so much as a cursory

search. The Court finds by a preponderance of the evidence that, in 2000 and 2001, Osama Bin

Laden and Al-Qaeda trusted petitioner with important information respecting the organization.

2. Mr, Paracha knew about Al-Qaeda and was eager to work with the group

Petitioner does not dispute his eagerness to do some form of business with Osama

Bin Laden. P. Merits Br. at 17. All of the reports indicate that Mr. Paracha offered his business

card and made a business proposition concerning the use of his television studio. The Court

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therefore finds by a preponderance of the evidence that Mr. Paracha was eager to do business

with Osama Bin Laden.

The parties do dispute, however, what Mr. Paracha knew about Al-Qaeda at the

time he met Bin Laden, the nature of the business arrangement that Mr. Paracha contemplated

with Bin Laden, and whether or not the proposal embraced Al-Qaeda’s extremist aims. The

Court’s analysis of Mr. Paracha’s knowledge of Al-Qaeda is relevant both to its findings on the

import of his meeting with Bin Laden and to its Findings of Fact respecting the assistance he

gave to Bin Laden’s emissaries. See Part IV.C, infra.

Mr. Paracha argues that his proposal to Bin Laden was motivated by a desire to

make money and the thought that “{Bin Laden’s] prestige in Islamic society could help bridge

the gap between Islam and the western culture.” ae

Interview, JE 50, at 371. To that end, “he envisioned [Bin Laden] quoting verses from the Koran

and then a translation being made into English immediately following each verse.” FBI

Information Report 01/24/04, JE 47, at 361. Mr. Paracha argues that he intended to write the

script for any video and would not have allowed a message of violent jihad. FM40 10/15/04,

JE 238, at 1810; SIR 02/26/04, JE 285, 2219,

Counsel for petitioner have provided some support for Mr. Paracha’s explanation

of his offer to Bin Laden. For example, Mr. Paracha had produced other news items about the

Afghanistan-U.S. conflict to sell to Western media, and he had produced at least one other video

with a Muslim cleric that espouses a peaceful vision of Islam. See Gaillard T. Hunt Decl., PE H.

Petitioner’s counsel argue that it was not unreasonable to suppose that Mr. Paracha would

produce such a video, in light of Pakistani culture’s view of Al-Qaeda, In the Saeed Report,

petitioner's expert explains that, before 9/11, “Pakistanis who knew about Al-Qaeda may have

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reasonably perceived it to be an organization engaged in the betterment of Muslims worldwide.”

JE 211 at 1571. Mr. Paracha himself stated that “99% of Pakistanis like [Osama Bin Laden].

The younger generation thinks [Bin Laden] is a hero.” DoD Interrogator Notes 07/10/2003,

JE 8, at 87. Dr. Saeed explains that, before 9/11, most jihad discussed in Pakistan referred to a

moral or rhetorical battle, rather than a violent physical conflict. JE 211 at 1569.7” She

concludes that “ordinary Pakistanis” would not have been able to distinguish between Al-Qaeda

and the Taliban, and that “only a very keen follower of news emanating from the West about

terrorism, or someone very knowledgeable about Western sources” would have understood the

distinctions between Al-Qaeda, the Taliban, and other Islamic groups. Id. at 1572.

Saifullah Paracha, however, was just the kind of “keen follower” of western news

that Dr. Saeed envisions. He lived in the United States for fifteen years, owned businesses here,

and displayed the American flag in the lobby of his office in Pakistan. Petitioner’s Submission

for 03/21/17 Periodic Review Board, PE G, at 27, The evidence shows that he traveled

frequently, spoke and read English fluently, and consumed western media, including CNN, the

BBC, and Newsweek. See ARB Summary 12/07/05, JE 64, at 654. During one interrogation,

for example, Mr. Paracha engaged his interrogator in a conversation about the outcome of the

2004 presidential election in the United States, and the two discussed the possible outcomes

based on the results in Florida and Ohio. SIR 11/03/2004, JE 37, at 272. He also wrote letters to

zi Mr, Paracha explained that his own views on the propriety of jihad are at odds

with Al-Qaeda’s message. He believes that “[i]n a sovereign state with an army there is no need

for group jihad by the civilians,” that group jihad is not authorized against innocent civilians, and

that Bin Laden had no authority under Islamic law to proclaim jihad. FBI EC 05/05/04, JE 77,

at 1045. The Court has no reason to doubt petitioner’s belief that “Islam forces no person to

change his religion” and that “Muslims have a responsibility to protect non-Muslims.” Id. Mr.

Paracha’s personal views are not incompatible with his knowledge of Al-Qaeda’s views to the

contrary,

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American Presidents which displayed an understanding of American politics and strategic

priorities. See 05/12/2001 Letter from Saifullah Paracha to George H. W. Bush, JE 272, at 2131.

This background and familiarity with western sources is powerful evidence of

what Mr. Paracha would have known. For years before the terrorist attacks of 9/11, the English-

language media in Pakistan was writing about Bin Laden’s affiliation with Al-Qaeda and his

association with various violent terrorist attacks. See, e.g., American Officials Take Threats

Seriously, THE DAWN (Feb. 26, 1998), JE 107, at 1331 (providing notice, in Pakistan’s largest

English language newspaper, that Bin Laden published an edict requiring Muslims to kill

Americans and their allies in any country in the world); Saudi Millionaire Tops List of Bombing

Suspects, THE DAWN (Aug. 9, 1998), JE 108, at 1334 (indicating that the United States suspected

Osama Bin Laden of bombing American embassies in Kenya and Tanzania). Mr. Paracha

himself confirmed to an interrogator that he consumed media reports concerning Al-Qaeda,

indicating that he knew about the location of Al-Qaeda training camps “from watching television

and reading the newspaper.” TRRS-03-07-1485, JE 120, at 1451.

Ultimately, the evidence is clear that Mr. Paracha was aware that Osama Bin

Laden and Al-Qaeda were regarded as terrorists, and that Bin Laden was inextricably linked with

Al-Qaeda itself. Mr. Paracha confirmed as much to FBI interrogators in January 2004,

explaining that “he was very interested [in meeting Bin Laden] because he admired UBL greatly.

Even though UBL had already been implicated in terrorist[] attacks, [Mr.] Paracha felt he was

being exploited by the media and other groups (Jews).” FBI EC 01/22/2004, JE 73, at 1025. He

displayed similar knowledge of Al-Qaeda during another interview a few days later. Mr.

Paracha wid interrogator that, at the time of his meeting with Bin Laden, he understood

that Bin Laden “was a known terrorist who spouted the destruction of the United States and

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western culture.” eee 50, at 371. Even so, he said, he simply did

not believe that this presented a contradiction with his aims of using Bin Laden to spread “the

message that Islam is a peaceful religion.” Id. Finally, during an Administrative Review Board

proceeding at Guantanamo, the presiding officer noted that “in 1999 when you met him, Usama

bin Ladin had already facilitated terrorist acts against the United States. [He] was a wanted

fugitive by the United States government.” ARB Summary 12/07/05, JE 64, at 645. When the

presiding officer of the ARB asked Mr. Paracha to confirm that “you knew that at the time you

met him,” Mr, Paracha responded in the affirmative: “I did know that.” Id.

It is clear to the Court that Osama Bin Laden was never going to produce a video

extolling a peaceful and harmonious vision of Islam. By the time Mr, Paracha offered to spread

Bin Laden’s message, Bin Laden and Al-Qaeda had declared a jihad calling for the murder of

United States military personnel on the Arabian Peninsula; had purported to issue a fatwa calling

on all Muslims to kill Americans anywhere in the world; and had been widely accused of

murderous bombings against U.S military and diplomatic facilities. See R. Am. Factual Return

at 4. Since the moment of its founding, Al-Qaeda’s overarching goal has been “re-establishing

the Islamic Caliphate, unified by a common militant-Salafist ideology rooted in a violent

rejections of apostasy and characterized by fervent opposition to Western influence.” S|

Decl., JE 5, at 64.

In this context, Mr. Paracha’s claim that he was hoping to use Bin Laden to

spread a message of intercultural harmony to bridge the Muslim-Christian divide, see FBI EC

01/24/04, JE 32, at 2, is not remotely credible. Nor is Mr. Paracha’s claim that he did not know

the content of Bin Laden’s message at all, See JE 36 at 2. Instead, Mr. Paracha’s earlier

statement is far more consistent with the body of evidence: Mr. Paracha “admitted that [Osama

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Bin Laden’s] message would be to do a jihad against westerners and the US.” FBI EC 07/10/03,

JE70-5, at 816.

For the foregoing reasons, the Court makes the following Findings of Fact by a

preponderance of the evidence: (i) when he met Osama Bin Laden, Mr. Paracha knew that

Osama Bin Laden was the leader of Al-Qaeda and that Bin Laden and Al-Qaeda had been

accused of violent terrorist attacks; (1i) Mr. Paracha was nevertheless eager to work with Bin

Laden and Al-Qaeda; and (iii) when he offered to spread Bin Laden’s message, Mr. Paracha

knew that Bin Laden and Al-Qaeda’s message was one of violent jihad.

C. Mr. Paracha Supported Al-Qaeda by Knowingly Providing Assistance to Khalid Sheikh

Mohammed and Ammar Al-Baluchi

The third material issue of disputed fact concerns the nature of the activities that

Mr. Paracha conducted over a period of several years with two important Al-Qaeda figures:

Khaleid Sheik Mohammed (““KSM”) and Ammar Al-Baluchi (“Al-Baluchi”), In June or July of

2000, approximately six months after Mr. Paracha’s second meeting with Osama Bin Laden,

KSM came to Mr. Paracha’s office bearing Mr. Paracha’s business card, the exact card Mr.

Paracha had given to Osama Bin Laden.** Mr. Paracha told interrogators that KSM “was sent by

Osama Bin Laden to obtain further details on [Mr.] Paracha’s broadcasting company, Universal

Broadcasting Limited Organization, and what [Mr.] Paracha’s intentions were concerning UBL.”

FBI EC 01/24/04, JE 32, at 232.

28 KSM introduced himself to Mr. Paracha as “Mir,” and Mr. Paracha knew him by

that name for the duration of their relationship. The parties now agree that “Mir” was an alias or

Pakistani name for KSM. Sc 1/26/05 JE 89, at 1091.

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After their first or second meeting, KSM introduced Mr. Paracha to his nephew

Ammar Al-Baluchi, indicating that Al-Baluchi could help with the media project.”” From the

summer of 2000 until early 2003, when the United States captured Al-Baluchi and KSM, Mr.

Paracha had frequent contact with the two men and collaborated with them on a number of

projects. KSM, allegedly a senior Al-Qaeda planner and mastermind of the 9/11 attacks, and Al-

Baluchi, allegedly an Al-Qaeda financier, are now facing charges before a military commission

at Guantanamo for their alleged involvement in the 9/11 attacks.

1, Petitioner knew KSM and Al-Baluchi were part of Al-Qaeda when he assisted them

How much petitioner knew about KSM and Al-Baluchi during the time he

interacted with them is the single most hotly contested factual issue before this Court. Mr.

Paracha concedes that he knew KSM and AlI-Baluchi and that he did business with them, And

no party seriously contests, for the purposes of this litigation, that KSM and Al-Baluchi were, in

fact, members of Al-Qaeda. But Mr. Paracha vigorously denies that, in doing business with

KSM and Al-Baluchi, he “knowingly interacted with members of al-Qaeda or anti-Coalition

forces.” Nov. 19, 2019 Tr. at 125:13-15 (describing this as the “main issue at dispute in this

case”), Rather, Mr. Paracha thought he was engaging with “Pakistani businessmen,” not

“members of|] a terrorist organization.” Id. at 125:16-19. On this score, Mr. Paracha notes that

KSM had the well-groomed appearance of a modern Pakistani businessman: he was clean-

shaven and wore a white cap. See Janelle Miller Notes 07/11/03, JE 70-6, at 820. Nothing about

KSM’s appearance struck Mr. Paracha as resembling the usual radical Islamic extremist militant.

an KSM introduced Al-Baluchi as “Mustafa,” and Mr. Paracha knew him by that

name for the duration of their relationship. The parties now agree that “Mustafa” was an alias

for Ammar Al-Baluchi. Sc 1/25/03, JE 89, at 1090.

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The cumulative weight of the evidence before the Court — Mr. Paracha’s own

admissions, in particular — render Mr, Paracha’s denial of knowledge incredible and

unpersuasive. First, the Court has already found by a preponderance of the evidence that Mr.

Paracha knew at the time he first met Bin Laden that the he was widely regarded as a terrorist

and Al-Qaeda a terrorist organization. See Part IV.2, supra. That is why it is so notable that,

when Mr. Paracha met KSM and Al-Baluchi, he knew them to be “men of the sheikh” — that is,

men who had been sent by Bin Laden. See FBI EC 11/05/04, JE 70-36, at 989 (When Mr.

Paracha was asked “if he wanted to meet the Sheikh that evening,” during a trip to Afghanistan,

“Paracha knew the Sheikh to be Usama Bin Laden.”).2° Mr. Paracha knew that Bin Laden sent

KSM and Al-Baluchi because they told Mr. Paracha as much: “When KSM and [AI-Baluchi]

showed up [six] months later after meeting UBL — they said they were here for the Sheikh.”

Janelle Miller Notes, 07/10/03, JE 70-4, at 804; see also Miller Decl., JE 70, at 757 (reporting

Special Agent miller’s explanation that Mr. Paracha used “the sheikh” to refer to Bin Laden

during his interviews). And when Mr, Paracha described his early meetings with KSM during

another interview, he “admitted that when [KSM] showed up at Paracha’s business, he knew

KSM was part of UBL’s media committee.” FBI ECD 10/13/2004, JE70-30, 949.

a0 Although the parties dispute whether “men of the sheik” or “the sheik’s people”

refers explicitly to membership in JL: i ai a as, there is

no dispute that Mr. Paracha did refer to Bin Laden as “the Sheikh.” See Miller Decl., JE 70,

at 757 (reporting that Mr. Paracha referred to Bin Laden as “the Sheikh” during interviews).

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In light of the evidence before the Court, it is highly unlikely that Bin-Laden was

sending out emissaries as part of a media committee that was not associated with Al-Qaeda.?!

Moreover, Mr, Paracha was aware that Bin Laden was regarded as the leader of Al-Qaeda, see

FM40 10/15/2003, JE 238, at 1810, and that Bin Laden sent KSM and Al-Baluchi to see him.

Those facts, in combination, offer powerful evidence that Mr. Paracha knew that KSM and Al-

Baluchi were also part of Al-Qaeda.

Second, and most notably, petitioner himself admitted to interrogators on several

occasions that he was aware of KSM and Al-Baluchi’s Al-Qaeda affiliations,

et Decl., JE 5, at 65 (“Al-Qaida leadership is best analyzed from a

_

functional perspective . .. [its] structure on multiple levels includes an overall emir-leader, a

spiritual wing, [and] leaders for interdependent functional arms (i.e. media, finance, logistics,

etc.)”).

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During an April 2004 interview, interrogators pressed Mr. Paracha on what he

knew about his interlocutors. They write that “[a]fter a lengthy time, [Mr.] Paracha finally

admitted that he knew all along that when he was dealing with [KSM] and Al-Baluchi . . . they

were associated with Al-Qaeda.” FBI EC 05/02/2004, JE 77, at 1044 (describing the

interrogators’ approach as “hostile” and “aggressive”), Mr. Paracha also told his son Uzair that

KSM and Al-Baluchi were part of Al-Qaeda and observed to an interrogator that that “sometimes

KSM had extremist views.” DoD Interrogator Notes 07/11/04, JE 9, at 92. Uzair corroborated

this information in one of his early interviews with the FBI, explaining that his father was doing

business with individuals who “were Al-Qaeda and[] loyal to Usama.” Uzair Paracha FD-302

03/30/2003, JE 55, at 419.

Mr. Paracha’s counsel do not — cannot — debate the substantive import of Mr.

Paracha’s admissions that he knew KSM and Al-Baluchi were Al-Qaeda. Instead, counsel resort

to arguments that the reports reflect the views of their authors, rather than the statements of Mr.

Paracha.*? But the Court has already concluded that petitioner has not rebutted the presumption

of regularity with respect to these documents. See Part HI.B, supra. The consistency of the

admissions — from different discussions with different interviewers at different periods of time —

43 Mr. Paracha’s counsel make this claim with reference to

JE 77, in which Mr. Paracha “finally admitted” knowledge, and JE 70-4, in which Special Agent

Miller note that “Saif knew these men to [be] men of the sheikh.”

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bolsters the conclusion that these documents report Mr. Paracha’s statements, rather than the

interrogators’ characterizations. Petitioner’s counsel also cite several interrogations in 2004

during which Mr. Paracha claimed not to know that KSM and Al-Baluchi were part of Al-Qaeda.

See P. Merits Br. 20 (citing Traverse at 50-53), But these denials are not credible in light of Mr.

Paracha’s numerous other admissions of knowledge, both before and after 2004, and in light of

the tremendous weight of the other evidence. In fact, the denials underscore Mr. Paracha’s

awareness that his Al-Qaeda affiliations were problematic. See Al-Adahi v. Obama, 613 F.3d

1102, 1107 (D.C. Cir. 2010) (indicating that false exculpatory statements are “evidence — often

strong evidence — of guilt”).

Third, even if the Court were to set aside these admissions from Mr. Paracha

himself, certain aspects of KSM and Al-Baluchi’s conduct would have alerted petitioner to the

fact that his interlocutors were spedking on behalf of Al-Qaeda. For example, during a July 2003

interview. Mr. Paracha reported that Al-Baluchi gave him a CD containing a video of Al-Qaeda

members using chemical weapons on dogs at an Al-Qaeda training camp. TRRS-03-07-1485,

JE 120, at 1451, Al-Baluchi identified the video as an Al-Qaeda training video, and asked Mr.

Paracha to use his media studio to dub the video into Urdu. Mr. Paracha found the content of the

video abhorrent and refused. Although the petitioner did not provide direct assistance to Al-

Qaeda on this occasion, the transaction illustrates his knowledge that Al-Baluchi was working on

behalf of Al-Qaeda — and was enlisting him to help spread a violent message. Paracha’s

justification is itself revealing: he described the video as “just Al-Qa’ida propaganda” and

explained that “just because [Al-Baluchi] delivered the CD and is part of Al-Qa'ida doesn’t

mean he had anything to do with the making of the video.” Id. (emphasis added).

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Similarly, Mr. Paracha’s accounts of KSM’s requests illustrate the petitioner’s

understanding that KSM, too, was working on behalf of Al-Qaeda. In June 2002, for example,

KSM asked Mr. Paracha to help secure housing in Karachi for Al-Qaeda people and their

widows and children. FBI EC 7/10/2003, JE 70-5, at 815, See also Part I1V.C.2-4, infra (detailing

Paracha’s assistance to KSM and AL-Baluchi).

Mr. Paracha even directed KSM to identify himself by a false name when he

called Paracha’s office. Mr. Paracha could have chosen any false name, but he chose Uzair — the

name of his son. DoD Interrogator Notes 07/12/03, JE 10, at 95. Mr. Paracha explained that the

name was designed to ensure that he always accepted the call. If anything, that explanation

indicates Mr. Paracha’s eagerness to work with KSM and the high regard in which the two held

each other, Id. (“[KSM] treated [Mr, Paracha] with the respect a son would show his father, so

{Mr. Paracha] had [KSM] use his son’s name.”). And the most immediate impact of using a

false name is more obvious: to ensure that no one listening to the call can identify the true

identity of the caller. Mr. Paracha’s caution about revealing his affiliation with KSM

underscores his awareness that KSM was Al-Qaeda.

Some of the defensive comments that Paracha made to interrogators illuminate

the origins of the position that Mr, Paracha has now taken, that he did not know KSM and AIl-

Baluchi were members of Al-Qaeda, In an early interview, Mr. Paracha told an interrogator that

“he didn’t think that meeting with AQ is a crime, It’s just business.” FBI EC 7/10/2003,

JE 70-5, at 817. These statements

contain not a trace of shame or evasion. Accordingly, the statements appear highly reliable to

the Court. These are not the statements of a man who merely tolerated Al-Qaeda. These are the

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statements of a person who is sure he is right: collaboration is acceptable as long as it is for the

sake of business,

Only later — after he learned that working with Al-Qaeda could, in fact, place him

in legal jeopardy — did Mr. Paracha begin to deny that he knew he was meeting with Al-Qaeda in

the first place. By May 2004, it appeared to interrogators that Mr. Paracha was “pranc[ing]

around” the issue of Al-Qaeda. FBI EC 05/24/04, JE 33, at 237. He admitted that KSM and Al-

Baluchi were supporters of and sympathetic to Bin Laden, but Mr. Paracha “‘fell short of saying

they were definite members of AQ.” IIR 05/24/04, JE 17, at 139. If there were nothing wrong

with doing business with Al-Qaeda, that precise membership status would not have been a

distinction that Mr. Paracha needed to make. These comments appear to be an after-the-fact

justification of his involvement with KSM and Al-Baluchi.

Finally, by the time of his Annual Review Board in 2005, Mr. Paracha said of

KSM and AI-Baluchi that “[t]hey have been labelled as terrorists. | don’t know if they are

terrorists or not, but associating with them is bad.” And “[t]hese are controversial people and it

would be better for me not to get involved with them.” Unclassified Summary of ARB

Proceedings, JE 64, at 652. This conversation shows Mr. Paracha adopting two strategies at

once: denying that Mr. Al-Baluchi and KSM are all that bad, but distancing himself from them

nevertheless. This evasive behavior only underscores the potency of Mr. Paracha’s unvarnished

early acknowledgements of KSM and Al-Baluchi’s Al-Qaeda affiliation.

For the foregoing reasons, the Court finds by the preponderance of the evidence

that Al-Baluchi and KSM were members of Al-Qaeda and that Mr. Paracha knew this throughout

the course of their relationship. The Court now assesses the assistance that Mr. Paracha

allegedly rendered to KSM and Al-Baluchi in light of this knowledge.

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2. Petitioner assisted KSM and Al-Baluchi by promulgating Al-Qaeda’s message

Mr, Paracha’s original offer to Osama Bin Laden was to help spread his message,

and the government claims that Mr. Paracha did just that on several occasions.

a. Production of a program with Bin Laden

During Mr. Paracha’s first visit with KSM, the two discussed a variety of details

for how Mr. Paracha might record a video of Bin Laden helping to spread his message: the types

of cameras to be used, procurement of the necessary equipment, and the studio to be used,

among other details. FBI EC 01/24/04, JE 32, at 231. See Interview Report 07/11/07, JE 35,

at 258. Mr. Paracha told interrogators that KSM evinced a pronounced concern for Bin Laden’s

physical and operational security: he wanted to select the equipment, wanted to use his own crew

for the recording, and did not want to record at Mr. Paracha’s customary studio. See DoD

Interrogator Notes 07/22/03, JE 13, at 109, Mr, Paracha acceded to these requests: he agreed to

purchase the equipment for KSM, allow KSM to keep the equipment at the conclusion of the

project, and provide all the needed technical support. FB] EC 01/24/04, JE 32, at 231.

Petitioner makes two arguments about these activities. First, he argues that Mr.

Paracha’s assistance cannot constitute substantia] support of Al-Qaeda because Mr. Paracha

intended to produce a video encouraging peace and harmony. For the reasons already described,

this argument is unavailing. Moreover, petitioner knew that Bin Laden was not going to promote

a video designed to attract western audiences, but proceeded with helping to plan for the video

anyway. See DoD Interrogator Notes July 22, 2003, JE 13, at 109 (indicating that Mr. Paracha

“advised UBL to speak in English when he recorded speeches, in order to expand his audience,

but UBL wouldnt”). Second, petitioner argues that Mr. Paracha did not assist Al-Qaeda with

these services because no video of Bin Laden was ultimately produced. Indeed, there is no

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evidence that Mr. Paracha ever produced a recording featuring Bin Laden. Mr. Paracha did,

however, take concrete — and costly — steps toward doing so. Petitioner purchased the equipment

needed to produce the video and built a soundproof room in which it could be recorded; KSM

inspected the arrangements. See SIR 10/11/2004, JE 36, at 270. And Mr. Paracha also provided

a “detailed explanation . . . concerning the recording equipment to be used during the sessions.”

FBI EC 01/24/04, JE 32, at 231,

b. Production of programs with Al-Baluchi

During Mr. Paracha’s second or third meeting with KSM, KSM introduced his

nephew, Al-Baluchi, to Mr. Pacha is E 89, at 1090. Petitioner

and Al-Baluchi met four or five times independently of KSM — continuing even after KSM was

captured and Mr, Paracha learned of KSM'’s role in the 9/11 attacks — and Mr. Paracha added Al-

Baluchi’s number to his cell phone. Mr. Paracha told interrogators that, at some point after 9/11,

Al-Baluchi himself decided he wanted to work with the petitioner to produce a video. FBI EC

07/11/03, JE 70-7, at 840, Petitioner directed his staff at Universal Broadcasting to assist Al-

Baluchi. Al-Baluchi appeared with other Al Qaeda members to record several videos, and Abdul

Raman, one of Al-Baluchi’s employees, edited the programs. Id. at 840-41. Petitioner suspects

that Al-Baluchi’s tapes were sent to the Al-Jazeera network. Id. at 841.

Petitioner’s counsel no longer appear to question that Mr. Paracha facilitated these

recordings.*4 Rather, counsel claim that Mr, Paracha cannot have helped to spread Al-Qaeda’s

34

Petitioner’s initial merits brief claimed that “no program was ever produced or

aired,” see P. Merits Br. at 25, which is not accurate. See FBI EC 07/11/03, JE 70-7, at 840-41.

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the conclusion that Mr. Paracha knew he was producing a video for an Al-Qaeda

of the reasons described earlier — that Mr. Paracha knew that these “men of the sheikh” were Al-

Qaeda. And, in the context of the rest of the relationship and all of the other requests that KSM

and Al-Baluchi were making of Al-Qaeda, it is more likely than not that the video Mr. Paracha’s

company produced starring an Al-Qaeda operative was, in fact, a video concerning Al-Qaeda’s

message. Indeed, when Mr. Paracha instructed his staff to assist Al-Baluchi, he told them that

they “would be doing this on a regular basis for UBL message.” Janelle Miller Notes

07/11/2003, JE 70-6, at 829 (emphasis added),

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c. Distribution of a press release for Al-Qaeda

At some point between November 2002 to January 2003, Mr. Paracha told

interrogators, ““Al-Baluchi asked [Mr.] Paracha to get a message out to the people for UBL.

Paracha sent it to a Pakistani newspaper. He did not read the message and did not know what the

message was about.” FBI EC 07/09/03, JE 70-3, at 788.

Again, petitioner’s counsel do not dispute that Mr. Paracha’s company had a hand

in publishing the press release. They do, however, attempt to minimize Mr. Paracha’s own role,

noting that it was an employee, Tariq Shadab, whose direct work got the article published in a

newspaper. P, Merits Br. at 26, But Shadab was Mr. Paracha’s employee, and acted at Mr.

Paracha’s direction. And Mr, Paracha’s company was credited with the press release in the

newspaper. JE 70-30, FBI EC 10/13/04, at 951.

Petitioner’s counsel also repeat the argument that Mr. Paracha was not aware of

the specific contents of the press release and, therefore, cannot be said to have helped promulgate

a message whose contents he did not know, There is evidence, however, that Mr. Paracha did

understand the general thrust of the press release. He has explained that the release detailed “the

Islamic spin on UBL’s cause” and that it was “consistent with other AQ press releases

ae: 89, at 1090; JE 70-30 at 951. Whether or not Mr. Paracha had

granular knowledge of the press release’s content, he knew that an Al-Qaeda operative doing Al-

Qaeda business asked him to distribute the document, and Mr. Paracha described it as containing

UBL’s message.

With respect to several different alleged acts of assistance, Mr. Paracha’s counsel

have argued that Mr. Paracha was motivated purely by business interests, and that Mr. Paracha

never would have allowed production of a message with violent or anti-western content. This

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position is undermined by Mr, Paracha’s claim that he allowed his companies to produce and

disseminate content for Al-Qaeda without Mr. Paracha’s prior review, Mr. Paracha placed his

companies and his professional networks at the disposal of a man he knew to be from Al-Qaeda

—aman who, leaving no doubt about his intentions, had also asked Mr. Paracha’s help to

promulgate a decidedly violent Al-Qaeda training video. TRRS 07/21/2003, JE 120, at 1451. It

is also notable that Mr. Paracha decided not to charge Al-Baluchi for the equipment, the studio

time, or the editing services. This undermines the idea that Mr. Paracha’s relationship with Al-

Qaeda was motivated primarily by his business interests.

Accordingly, the Court makes the following Findings of Fact by a preponderance

of the evidence: (i) Mr. Paracha knowingly helped Al-Qaeda spread its message by providing

equipment and communications consulting services to Al-Qaeda in connection with a plan to

film a video of Bin Laden; (ii) Mr. Paracha knowingly helped Al-Qaeda spread its message by

providing equipment and technical expertise to record a video featuring Ammar AI-Baluchi; and

(iii) Mr. Paracha knowingly helped Al-Qaeda spread its message by distributing a press release.

3. Petitioner assisted KSM and Al-Baluchi by retaining Al-Qaeda funds for safekeeping

Respondents’ most substantial allegations — the core of their claims that petitioner

provided substantial support to Al-Qaeda — concern two occasions on which Mr. Paracha

accepted large sums of money from Al-Qaeda members. Respondents argue, and the Court

agrees, that the money Mr. Paracha received belonged to Al-Qaeda, and that Mr. Paracha took

the money to safeguard Al-Qaeda’s assets during a time of great peril for the organization.

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a. $500,000 from KSM

In 2002 — not long after the 9/11 attacks - KSM gave Mr. Paracha $500,000 “to

hold on to.” DoD Interrogator Notes 07/09/03, JE 7, at 80. Paracha returned the money — giving

it to Al-Baluchi, upon his request, six months later. Mr. Paracha alleges that he gave the interest

he accrued from holding the money, about $20,000, to a hospital charity, Id. Mr. Paracha self-

disclosed the $500,000 transaction during early interrogations. He has consistently characterized

the transaction as an investment by KSM in Mr. Paracha’s business.

Importantly, however, Petitioner has provided at least four different explanations

about the purpose of this transaction. In interviews on July 8 and 9, 2003, Mr. Paracha explained

that the money was an investment in procuring rights for TV shows in the United States and the

United Kingdom. FBI EC 07/09/03, JE 70-3, at 787 (emphasis added). In October 2004, he told

interviewers that he needed $500,000 to establish a line of credit to begin transmitting TV

programs abroad. FBI EC 10/18/2004, JE 70-31, at 957 (emphasis added). In January 2004, and

again in March 2006, Mr. Paracha explained that KSM provided the money tn cash simply “to

open an account, for future investment.” a 2520: JE 89,

at 1090; see also FM40 03/22/06 PM, JE 28, at 209 (“Paracha stated that he took the money from

KSM to invest it for a period of about six months.”). Earlier that same day in March 2006,

however, “[Mr.] Paracha claimed he used KSM as a private loan broker and used the $500,000 to

restore his credit rating, because of an industrial business bankruptcy, and he told KSM he could

give it back after approximately six months.” FM40 03/22/06 AM, JE 27, at 206.

The diversity of these explanations offers substantial evidence that Mr. Paracha is

concealing the true purpose and significance of his of the transaction. So, too, does the fact that

Mr, Paracha never consummated any of the alleged business purposes of the “loan” or

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