# Paracha v. Bush > District Court, District of Columbia · March 27, 2020 URL: https://www.frixlaw.com/law-library/cases/4520406 ## Case - **Court:** District Court, District of Columbia - **Decided:** March 27, 2020 - **Precedential status:** Published - **Opinion:** Opinion - **Judges:** Judge Paul L. Friedman - **Nature of suit:** Civil - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4520406 ## How later opinions describe it (automated extraction) - finding the preponderance standard to be constitutionally sufficient ## Opinion text 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 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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. UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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 3 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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. 4 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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. UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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 10 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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), 11 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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, 12 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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). 13 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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 14 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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. UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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 16 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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. 17 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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] Ik UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE .., 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 19 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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 nn UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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 21 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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 22 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE | 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 23 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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 24 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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). 4 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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. 26 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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. 27 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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. 28 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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 Paracha™ UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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. UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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 31 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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. 32 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE 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 33 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE . 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. 34 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE 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: 35 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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). UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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 37 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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, 38 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE “[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 39 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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. 40) UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE 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. Al UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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 42 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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 4} UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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). 44 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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. 45 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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 46 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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 47 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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 48 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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. 49 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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. 50 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE |, 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. 51 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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. 52 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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. 33 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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, 34 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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 55 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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. 56 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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. 57 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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. 58 UNCLASSIFIED//FFOR PUBLIC RELEASE UNCLASSIFIED//FFOR PUBLIC RELEASE 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 abou [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4520406. Public record. Not legal advice.