Awad v. Obama, Civil Action No. 05-CV-2379.

• Decision Date: 12 August 2009
• Docket Number: Civil Action No. 05-CV-2379.
• Citation: 646 F.Supp.2d 20
• Parties: Adham Mohammed Ali AWAD, Petitioner, v. Barack H. OBAMA, et al., Respondents.
• Court: U.S. District Court — District of Columbia

646 F.Supp.2d 20

Adham Mohammed Ali AWAD, Petitioner, v. Barack H. OBAMA, et al., Respondents.

Civil Action No. 05-CV-2379.

United States District Court, District of Columbia.

August 12, 2009.

Ahmed Ghappour, Orrick, Herrington & Sutcliffe LLP, Michael W. Trinh, Diana Rutowski, Menlo Park, CA, Catherine Y. Lui, Orrick, Herrington & Sutcliffe LLP, San Francisco, CA, Glenn K. Jones, Rene Kathawala, Orrick, Herrington & Sutcliffe, New York, NY, Kathleen A. Orr, Orrick, Herrington, & Sutcliffe, LLP, Washington, DC, for Petitioner.

Scott Michael Marconda, Terry Marcus Henry, Alexander Kenneth Haas, David Hugh White, James C. Luh, Julia A. Berman, Kathryn Celia Mason, Patrick D. Davis, Rodney Patton, U.S. Department of Justice, Robert J. Prince, Washington, DC, for Respondents.

MEMORANDUM ORDER DENYING WRIT OF HABEAS CORPUS

JAMES ROBERSTON, District Judge.

Adham Mohammed Al Awad, a citizen of [^{b(1), b(6)} redacted] alleges that he is illegally detained at Guantanamo Bay Naval Base and petitions this Court for a writ of habeas corpus to secure his release. The parties have cross-moved for judgment on the record. The government's motion will be granted.

I. Background

Awad has been in U.S. custody since his capture in Afghanistan on [^b(2) redacted]. He filed his petition four years ago, but that petition and hundreds like it were put on hold until various legal issues, including the jurisdiction of this Court, were resolved. After the Supreme Court held that detainees like Awad have a right to bring habeas petitions and that federal district courts have jurisdiction to hear them, Boumediene v. Bush, 553 U.S. ___, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008), and after Judge Hogan issued his omnibus Case Management Order that has guided the Guantanamo habeas cases' procedures, this case moved on to the merits.

The government filed a factual return asserting the grounds on which Awad is detained—the claim is that he is an al Qaida fighter—and the evidence supporting that claim. Awad then made several requests for discovery. I denied some of those requests outright and denied others without prejudice to their later renewal with the kind of specificity required of motions under Fed.R.Civ.P. 56(f). Awad submitted his traverse without renewing his discovery requests. Both sides then moved for judgment on the record and a hearing on those cross-motions was held on July 31, 2008.

The government's core narrative is that Awad volunteered or was recruited for Jihad soon after September 11, 2001 and traveled from his home in [^{b(1), b(6)} redacted] to Afghanistan; that he trained at the Al Qaida "Tarnak Farms" camp outside Kandahar; that Awad and a group of other Al Qaida fighters were injured in a U.S. air strike at or near the airport in Kandahar and went to Mirwais Hospital for treatment; that these men then barricaded themselves in a section of the hospital; that U.S. and associated forces laid siege to the hospital; that Awad's comrades gave him up because they could not care for his severely injured [^b(1) redacted] and that, after Awad's capture, his al Qaida comrades fought to the death.

The government offers five groups of evidence in support of their narrative: (1) Intelligence reports of Awad's statements to interrogators; (2) statements of a former Guantanamo detainee named [^{b(1), b(6)} redacted] who was inside Mirwais Hospital during the siege and who gave a list of names and descriptions of the Al Qaida fighters, including a man with an [^b(1) redacted] who went by the name [^{b(1), b(6)} redacted] [^{b(1), b(6)} redacted]—a kunya allegedly associated with Awad¹; (3) [^{b(1), b(6)} redacted]; (4) a list found at Tarnak Farms bearing the name [^{b(1), b(6)} redacted] and several of the names that also appear [redacted] on [^{b(1), b(6)} redacted] list of names; and (5) newspaper articles published in American newspapers about the siege at Mirwais Hospital.

Petitioner's story is that he traveled to Afghanistan in mid-September 2001 in order to visit another Muslim country for a few months, intending to return home after his visit; that in early November 2001 he was injured and knocked unconscious during an air raid while walking through a market in Kandahar; that he woke up in Mirwais Hospital after part of his [^b(1) redacted]; that he was heavily medicated, floated in and out of consciousness, slept constantly, and could barely sit up; and that he remained in this condition until his capture.

Awad's case relies mostly on weaknesses and holes in the government's evidence, but, in support of his narrative, he submits an unsigned affidavit, a declaration from his counsel, and different intelligence reports of different statements made to interrogators.

II. Legal Standards

The President is authorized to use 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, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Authorization of Military Force, Pub. L. 107-04, 115 Stat. 224 (2001).

A. Substantial Support

The government's position is that:

[t]he President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces 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 hostilities, in aid of such enemy armed forces.

Respondent's Revised Memorandum Regarding the Government's Detention Authority Relative to Detainees Held at Guantanamo Bay at p. 3 (emphasis added).

In a thoughtful decision that has been followed by many if not most of the judges of this court, Hamlily v. Obama, 616 F.Supp.2d 63 (D.D.C.2009), Judge Bates wrote that the "key inquiry" when analyzing the "part of ... al Qaeda" test is "whether the individual functions or participates within or under the command structure of the organization—i.e. whether he receives and executes orders or directions." Hamlily, 616 F.Supp.2d at 75 (internal citations omitted). I have adopted Judge Bates' approach.

B. Hearsay, Authenticity, Chain of Custody

The government's case relies on "raw" intelligence data, multiple levels of hearsay, and documents whose authenticity cannot be proven (and whose provenance is not known and perhaps not knowable). Awad argues that such evidence should excluded because the government has not made individualized showings that "the hearsay evidence is reliable and that the provision of nonhearsay evidence would unduly burden the movant or interfere with the government's efforts to protect national security." CMO II(A). The government responds generally (not with individualized showings) that its intelligence documents are reliable because they were created during the intelligence gathering process and explains generally why the presentation of non-hearsay evidence would be a burden. The government urges that documents and reports generated for intelligence purposes should be accorded a presumption of reliability and credibility.

The suggestion of a presumption of reliability and credibility goes too far because it would seem to place the burden of rebuttal on the petitioner. I have instead formally "received" all the evidence offered by either side but have assessed it itemby-item for consistency, the conditions in which statements were made and documents found, the personal knowledge of a declarant, and the levels of hearsay. In other words, I have given the evidence the weight I think it deserves.

C. Burden of Proof

The government had the burden of proving the lawfulness of detention by a preponderance of the evidence. CMO II(A); accord, Al Bihani v. Obama, 594 F.Supp.2d 35 (D.D.C.2009); Ali Ahmed v. Obama, 613 F.Supp.2d 51 (D.D.C.2009). The burden of proof never shifted to Awad. No inference was drawn from Awad's decision not to testify or from his failure to sign or swear to his affidavit.

D. Detention for the Continuation of Hostilities

I acknowledge the power of Judge Huvelle's argument in Basardh v. Obama, 612 F.Supp.2d 30, 34 (D.D.C.2009), that "the AUMF does not authorize the detention of individuals beyond that which is necessary to prevent those individuals from rejoining battle," but I decline to follow it in this case and have not considered whether or to what extent the continued detention of Awad supports the AUMF's self-stated purpose of "prevent[ing] ... future acts of international terrorism," Pub. L. 107-04, 115 Stat. 224. Awad is a marginally literate [^b(1) redacted] who has spent more than seven of his twenty six years—since he was a teenager—in American custody. It seems ludicrous to believe that he poses a security threat now, but that is not for me to decide. Combat operations in Afghanistan continue to this day and—in my view—the President's "authority to detain for the duration of the relevant conflict" which is "based on longstanding law-of-war principles" has yet to "unravel." See, Hamdi v. Rumsfeld, 542 U.S. 507, 521, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004).

III. The Evidence

A. "Then Why He Here"

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B. Training

The name "Abu Waqas" appears twice (once...