Al Mutairi v. U.S.

• Decision Date: 29 July 2009
• Docket Number: Civil. Action No. 02-828 (CKK).
• Parties: Khalid Abdullah Mishal AL MUTAIRI, et al., Petitioners, v. UNITED STATES, et al., Respondents.
• Court: U.S. District Court — District of Columbia

644 F.Supp.2d 78

Khalid Abdullah Mishal AL MUTAIRI, et al., Petitioners, v. UNITED STATES, et al., Respondents.

Civil. Action No. 02-828 (CKK).

United States District Court, District of Columbia.

July 29, 2009.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

David J. Cynamon, Matthew J. Maclean, Osman Ahmad Handoo, Pillsbury Winthrop Shaw Pittman LLP, Washington, DC, for Petitioners.

Nayef N.N.B.J. Al Mutairi, pro se.

Abdulaziz Sayer Owain Al Shammari, pro se.

Abdullah Saleh Ali Al Ajmi, pro se.

Mesfer Saleh Ali Al Ajmi, pro se.

Mohammed Funaitel Al Dihani, pro se.

Mubara F.S.M. Al Daihani, pro se.

Adil Zamil Abdull Mohssin Al Zamil, pro se.

Walid Z.A. Al Zamel, pro se.

Nasser Nijer Naser Al Mutairi, pro se.

Saad Madai Saad Hawash Al-Azmi, pro se.

Hamad Madai Saad, pro se.

Alexander Kenneth Haas, Daniel M. Barish Norman Christopher Hardee, Paul Edward Ahern, Sean W. O'Donnell, Jr., Andrew I. Warden, August Edward Flentje, David Hugh White, Julia A. Berman, Kathryn Celia Mason, Kristina Ann Wolfe, Patrick D. Davis, Sarah Maloney, Timothy Burke Walthall, Terry Marcus Henry, U.S. Department of Justice, Brian David Boyle, O'Melveny & Myers, LLP, John P. Lohrer, Robert D. Okun, United States Attorney's Office, Washington, DC, for Respondents.

CLASSIFIED MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, District Judge.

Petitioner Khalid Abdullah Mishal Al Mutairi ("Al Mutairi") has been detained by the United States Government at the Guantanamo Bay Naval Base in Cuba since 2002. He has not been charged criminally and no charges have been referred against him to a military commission. The Government justifies his detention based on the authority granted to President Barack H. Obama by the Authorization for the Use of Military Force, Pub.L. No. 107-40, § 2(a), 115 Stat. 224, 224 (2001) ("AUMF"), which authorizes the use of force against certain terrorist nations, organizations, and persons. Al Mutairi believes he is unlawfully detained and has filed a petition for a writ of habeas corpus.

This civil proceeding requires the Court to determine whether or not Al Mutairi's detention is lawful. In connection with this inquiry, the Court has considered the factual evidence in the record, the extensive legal briefing submitted by the parties, and the arguments presented during a two-day Merits Hearing held on July 6-7, 2009.¹ Based on the foregoing, the Court finds that the Government has at best shown that some of Al Mutairi's conduct was consistent with persons who may have become a part of al Qaida or an associated force of al Qaida, but there is nothing in the record beyond speculation that Al Mutairi did, in fact, train with or otherwise become a part of either or both of those organizations. While Al Mutairi's described travels within Afghanistan lack credibility, the Government has not supplanted Al Mutairi's version of his travels with sufficiently credible and reliable evidence to meet its burden of persuasion by a preponderance of the evidence. Accordingly, the Court shall GRANT Al Mutairi's petition for habeas corpus.

I. BACKGROUND

A. Procedural History

Petitioner filed his petition for habeas corpus on May 1, 2002, making this case the oldest of the pending Guantanamo Bay habeas cases. After several years of litigation, this case was stayed pending resolution of whether the Court had jurisdiction to hear Al Mutairi's petition. On June 12, 2008, the United States Supreme Court issued its decision in Boumediene v. Bush, clarifying that this Court had jurisdiction to consider the petition and advising this and the other judges in this District that "[t]he detainees are entitled to [] prompt habeas corpus hearing[s]." 553 U.S. ___, 128 S.Ct. 2229, 2275, 171 L.Ed.2d 41 (2008).

Following the Boumediene decision, this and most of the other judges in this District agreed to consolidate their Guantanamo Bay habeas cases before former Chief Judge Thomas F. Hogan for issuance of an initial case management order that would expeditiously move these cases toward resolution. Judge Hogan issued a Case Management Order on November 6, 2008, which he amended on December 16, 2008, and which the Court adopted in this case on December 22, 2008. The Court has relied on the Amended Case Management Order as the backdrop for its subsequent Scheduling Orders in this case.²

The Government filed an Amended Factual Return on September 18, 2008, and pursuant to the schedule set by the Court, Al Mutairi filed a Traverse on March 30, 2009. The parties engaged in extensive discovery and motions practice in the interim. Petitioner filed a Motion for Additional Discovery on January 26, 2009, which the Court granted-in-part and denied-in-part on February 12, 2009, after a hearing on February 11, 2009. Petitioner filed a Motion to Produce a Declassified Factual Return on January 9, 2009, which the Government produced on February 6, 2009. The Court also required the Government to provide Al Mutairi with certain discovery from the Guantanamo Bay Joint Task Force database. Additionally, the parties filed six pre-hearing motions, most of which sought rulings concerning the admissibility of particular evidence. By Order dated June 16, 2009, the Court granted the parties' motions to rely on hearsay evidence at Al Mutairi's Merits Hearing, but held their other evidentiary motions in abeyance.³

To narrow the disputed issues presented at the Merits Hearing and to focus the parties on the specific documents underpinning their respective arguments, the Court ordered the Government to file a Statement of Facts on which they intended to rely at the Merits Hearing (which narrowed the allegations presented in the Amended Factual Return), and instructed both parties to submit Witness and Exhibit Lists. The Court advised the parties that it would likely exclude from consideration any evidence at the Merits Hearing that had not been identified in the Witness and Exhibits Lists by June 29, 2009 (one week prior to the scheduled Merits Hearing).⁴ The parties timely submitted these materials and the Court held a two-day Merits Hearing on July 6-7, 2009.

B. Evidentiary Approach

As stated above, the Court granted the parties' motions to rely on hearsay evidence in this proceeding. The plurality in Hamdi v. Rumsfeld specifically acknowledged that "[h]earsay ... may need to be accepted as the most reliable available evidence from the Government." 542 U.S. 507, 534, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004). The Court finds that allowing the use of hearsay by both parties balances the need to prevent the substantial diversion of military and intelligence resources during a time of hostilities, while at the same providing Al Mutairi with a meaningful opportunity to contest the basis of his detention. The Court is fully capable of considering whether a piece of evidence (whether hearsay or not) is reliable, and it shall make such determinations in the context of the evidence and arguments presented during the Merits— Hearing including any arguments the parties have made concerning the unreliability of hearsay evidence. Cf. Parhat v. Gates, 532 F.3d 834, 849 (D.C.Cir.2008) (explaining, in the context of the Detainee Treatment Act, that the Court was "not suggest[ing] that hearsay evidence is never reliable—only that it must be presented in the form, or with sufficient additional information, that permits [the finder of fact] to assess its reliability") (emphasis in original).

For similar reasons, the Court shall deny the Government's motion to have its evidence admitted with a presumption of accuracy and authenticity. Relying in part on the Supreme Court's statement in Hamdi v. Rumsfeld that "the Constitution would not be offended by a presumption in favor of the Government's evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided," 542 U.S. at 534, 124 S.Ct. 2633, the Government argues that a presumption as to its evidence is both appropriate and necessary. The Court disagrees. One of the central functions of the Court in this case is "to evaluate the raw evidence" proffered by the Government and to determine whether it is "sufficiently reliable and sufficiently probative to demonstrate the truth of the asserted proposition with the requisite degree of clarity." Parhat, 532 F.3d at 847. Simply assuming the Government's evidence is accurate and authentic does not aid that inquiry. Cf. Ahmed v. Obama, 613 F.Supp.2d 51, 55 (D.D.C.2009) (rejecting a presumption of accuracy for the Government's evidence and holding that "the accuracy of much of the factual material contained in [the Government's] exhibits is hotly contested for a host of different reasons ...").

The Court also finds that there are significant reasons why the Government's proffered evidence may not be accurate or authentic. Some of the evidence advanced by the Government has been "buried under the rubble of war," Hamdi, 542 U.S. at 532, 124 S.Ct. 2633, in circumstances that have not allowed the Government to ascertain its chain of custody, nor in many instances even to produce information about the origins of the evidence. Other evidence is based on so-called "unfinished" intelligence, information that has not been subject to each of the five steps in the intelligence cycle (planning, collection, processing, analysis and production, and dissemination). Based on the Government's own declarations, its raw intelligence has not been fully analyzed for its "reliability, validity, and relevance" in the context of other intelligence where "judgments about its collective meaning are made." Gov't's Ex. 1 at 5 (Decl. of[redacted]) Still other evidence is based on multiple layers of hearsay (which inherently raises questions about reliability), or is based on reports of interrogations (often conducted through a translator) where translation or transcription mistakes may occur. In this case, for example, the Government believed for over three...