Almerfedi v. Obama

• Decision Date: 08 July 2010
• Docket Number: Civil Action No. 05-1645(PLF).
• Parties: Hussain Salem Mohammad ALMERFEDI, Petitioner, v. Barack OBAMA, President of the United States, et al., Respondents.
• Court: U.S. District Court — District of Columbia

725 F.Supp.2d 18

Hussain Salem Mohammad ALMERFEDI, Petitioner,

v.Barack OBAMA, President of the United States, et al., Respondents.

Civil Action No. 05-1645(PLF).

United States District Court,District of Columbia.

July 8, 2010.

Keith Simmons, Stephen McCoy Elliott, U.S. Department of Justice, Washington, DC, for Respondents.

Judith Brown Chomsky, Law Offices of Judith Chomsky, Elkins Park, PA, Alan Arnold Pemberton, Brian E. Foster, Mary L. McKinney, Schuyler William Livingston, Jr., Covington & Burling LLP, Washington, DC, David H. Remes, Appeal for Justice, Silver Spring, MD, for Petitioner.

CLASSIFIED OPINION

PAUL L. FRIEDMAN, District Judge.

Petitioner Hussain Salem Mohammad Almerfedi has been in the custody of the United States since 2002, and has been held at the Guantanamo Bay Naval Base in Cuba since 2003. He has filed a petition for a writ of habeas corpus, by which he challenges the legality of his detention and asks the Court to order him released. The government asserts that it has the authority to detain petitioner pursuant to the Authorization for the Use of Military Force, Pub.L. No. 107-40, 115 Stat. 224 (2001), because; (1) while staying at al Qaeda guesthouses in Iran, petitioner acted as an al Qaeda facilitator helping foreign fighters infiltrate Afghanistan; (2) [redacted] (3) petitioner actively associated with Jama'at al-Tablighi, an Islamic missionary organization, at the same time this organization provided logistical support and operational coverage to terrorist organizations and foreign fighters fleeing Afghanistan. Petitioner denies that he had any association with al Qaeda or other terrorist groups and maintains that his association with Jama'at al-Tablighi was innocent.

In order to determine whether petitioner's detention is lawful, the Court has carefully considered the documents admitted in evidence, the extensive legal briefs submitted by the parties, and the arguments presented by counsel at the three day Merits Hearing held on March 3, 4 and 5, 2010. At the beginning of the Merits Hearing, petitioner listened by telephone to the unclassified opening statements presented by his counsel and by government counsel. Thereafter, the proceedings were closed. Counsel presented no witnesses at the Merits Hearing, but relied exclusively on documentary evidence and the inferences they asked the Court to draw from the evidence. Based on the evidence and the arguments presented, the Court finds that the government has not met its burden to show by a preponderance of the evidence that it has legal authority to detain the petitioner. Accordingly, the Court will grant the petition for habeas corpus.

I. BACKGROUND

A. Procedural History

Petitioner filed his petition for a writ of habeas corpus on August 16, 2005, Shortly thereafter, this case was stayed pending resolution of the question whether this Court has jurisdiction over habeas petitions filed by Guantanamo detainees. After extensive litigation regarding these habeas petitions, the Supreme Court's 2008 decision in Boumediene v. Bush finally made clear that this Court does have jurisdiction to consider habeas petitions from detainees held at Guantanamo Bay, and advised the judges of the Court that “[t]he detainees in these cases are entitled to a prompt habeas corpus hearing.” Boumediene v. Bush, 553 U.S. 723, 795, 128 S.Ct. 2229, 2275, 171 L.Ed.2d 41 (2008). Following the Boumediene decision, the undersigned and most of the other judges of this Court agreed to consolidate their Guantanamo Bay habeas cases before former Chief Judge Thomas F. Hogan for coordination and management. Judge Hogan issued numerous invaluable decisions that established a procedural framework for these unique cases. The individual judges retained the cases for resolution of the merits of the habeas petitions.

Decisions of the Supreme Court and the D.C. Circuit have made plain that the government bears the burden of establishing that a Guantanamo detainee's detention is lawful, and it must do so by a preponderance of the evidence. See Boumediene v. Bush, 553 U.S. at 723, 128 S.Ct. at 2229; Awad v. Obama, 608 F.3d 1, 10-11 (D.C.Cir.2010); Al-Bihani v. Obama, 590 F.3d 866, 878 (D.C.Cir.2010); see also In re Guantanamo Bay Detainee Litig., Misc. No. 08-0442, CMO § II.A, 2008 WL 4858241 (D.D.C. Nov. 6, 2008). The petitioner need not prove his innocence or that his detention is unlawful. See Al Mutairi v. United States, 644 F.Supp.2d 78, 86 (D.D.C.2009). Rather, the government must prove that it is more probable than not that he was part of or substantially supported the Taliban or al Qaeda. See Al Odah v. United States, 611 F.3d 8, 13-14 (D.C.Cir.2010) (preponderance of the evidence standard is constitutional in evaluating a habeas petition from Guantanamo Bay detainee).

The Supreme Court's decision in Boumediene left open the scope of the government's detention authority. See Boumediene v. Bush, 553 U.S. at 732-33, 128 S.Ct. at 2240. In its wake, judges of this Court have issued numerous thoughtful opinions addressing the scope of the government's legal 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). The court of appeals recently resolved some of the different approaches taken by the judges of this Court in its decision in Al-Bihani v. Obama, 590 F.3d 866 (D.C.Cir.2010). The court concluded that the government could lawfully detain “an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners,” or “an individual [who] ‘substantially support[s]’ enemy forces.” Id. at 872. This two-pronged definition-both membership and substantial support-includes “those who are part of al Qaeda or the Taliban or those who purposefully and materially support such forces in hostilities against U.S. Coalition partners.” Id. The court of appeals concluded that “both prongs are valid criteria that are independently sufficient” to justify detention. Id. at 874. ¹ The government filed an amended Factual Return in this case on October 29, 2008. Petitioner filed a Traverse on May 29, 2009. The parties engaged in discovery and motions practice both before and after the filing of the Traverse. On August 5, 2009, over petitioner's objection, the Court granted the government's motion to stay the case on the ground that petitioner had been approved for transfer from Guantanamo Bay. See Sealed Memorandum Opinion and Order, Dkt. No. 183 (Aug. 5, 2009). The government was unable to secure petitioner's transfer by December 1, 2009, however, and the Court then lifted the stay and set a schedule for briefing on the merits and a Merits Hearing. The Court thereafter ordered the government to provide petitioner with additional discovery. The government was unable to complete production of this discovery by the date of the Merits Hearing, but petitioner decided to proceed with the Merits Hearing even though the discovery to which he was entitled had not been fully produced.

Prior to the Merits Hearing, the Court issued an Order stating that it would admit hearsay evidence, as required by the court of appeals' decision in Al-Bihani. See Almerfedi v. Obama, Civil Action No. 05-1645, 2010 WL 691944 at *1, 2010 U.S. Dist. LEXIS 17706 at *2 (D.D.C. Mar. 1, 2010). See also Al Odah v. United States, 611 F.3d at 14 (hearsay evidence is admissible if it is reliable). The Court explained that it would accord any evidence that had been created and maintained in the ordinary course of business a rebuttable presumption of authenticity. See Almerfedi v. Obama, 2010 WL 691944 at *1, 2010 U.S. Dist. LEXIS 17706 at *2. But the Court denied the government's request to give such evidence a presumption of accuracy. It stated that instead it would “consider the accuracy, reliability, and credibility of all of the evidence presented on a case-by-case basis in the context of the evidence as a whole and the arguments presented by counsel during the merits hearing.... The proponent of any piece of evidence must establish its accuracy, reliability, and credibility.” See id. at *1, 2010 U.S. Dist. LEXIS 17706 at *3.

II. DISCUSSION

The government argues that petitioner is detained lawfully because he was part of al Qaeda. More specifically, the government asserts that petitioner was an al Qaeda facilitator who frequented al Qaeda guesthouses in Iran [redacted] and helped fighters infiltrate Afghanistan from Iran to fight against coalition forces. The government also asserts that petitioner's active association with Jama'at al-Tablighi-an Islamic missionary organization that the government says provides logistical support and operational coverage to terrorist organizations-further justifies petitioner's lawful detention.

The government urges the Court to view the legality of petitioner's detention by looking at the totality of the evidence, which the Court has done. The Court has “evaluate[d] the raw evidence” to determine whether it is “sufficiently reliable and sufficiently probative to demonstrate the truth of the asserted proposition with the requisite degree of certainty.” Bensayah v. Obama, 610 F.3d 718, 725 (D.C.Cir.2010) (quoting Parhat v. Gates, 532 F.3d 834, 847 (D.C.Cir.2008)). When individual pieces of evidence are unreliable, however, the Court has not presumed their contents to he true in order to buttress the presumed accuracy of other flawed evidence. See, e.g., Al-Adahi v. Obama, Memorandum Opinion, Civil Action No. 05-0280, 2009 WL 2584685 at *4-5, 2009 U.S. Dist. LEXIS 75103 at *17-18 (D.D.C. Aug. 21, 2009).

A. Petitioner's Version of Events

Petitioner was born in Yemen in 1977. See Joint Exhibit (“JE”) 76, Declaration of Hussain Salem Mohammad Almerfedi (“Almerfedi Decl.”) ¶ 2. According to petitioner, he lived with his parents in Aden, a city in southern Yemen, until September...