Hentif v. Obama

• Decision Date: 01 August 2011
• Docket Number: Civil Action No. 06–1766 (HHK).
• Citation: 810 F.Supp.2d 33
• Parties: Fadhel Hussein Saleh HENTIF, et al., Petitioners, v. Barack H. OBAMA, et al., Respondents.
• Court: U.S. District Court — District of Columbia

810 F.Supp.2d 33

Fadhel Hussein Saleh HENTIF, et al., Petitioners,

v.Barack H. OBAMA, et al., Respondents.

Civil Action No. 06–1766 (HHK).

United States District Court, District of Columbia.

Aug. 1, 2011.

Brent Nelson Rushforth, Kit A. Pierson, Cohen Milstein Sellers & Toll PLLC, Washington, DC, James G. Szymanskim, M. Alexander Bowie, II, Day Pitney LLC, New York, NY, Janet Elizabeth Haws, Salt Lake City, UT, Megan K. Tlusty, Florham Park, NJ, for Petitioners.

Kathryn Celia Mason, Scott Michael Marconda, Terry Marcus Henry, Trish Maskew, Alexander Kenneth Haas, Carolyn Gail Mark, Jonathan S. Needle, Julia A. Berman, Kristina Ann Wolfe, Patrick D. Davis, U.S. Department of Justice, Andrew I. Warden, Robert J. Prince, Washington, DC, for Respondents.

MEMORANDUM OPINION

HENRY H. KENNEDY, JR., District Judge.

Fadhel Hussein Saleh Hentif (ISN 259), a Yemeni citizen, was seized by Pakistani authorities in late 2001 and has been held by the United States at the naval base detention facility in Guantanamo Bay, Cuba since early 2002. Hentif has filed a petition for a writ of habeas corpus contending that he is unlawfully detained. Respondents in this case, President Barack H. Obama and other high-level officials in the United States Government, argue that Hentif is lawfully held and therefore should remain in U.S. custody. The parties filed cross-motions for judgment on the record and appeared before the Court for a four-day hearing on the merits of Hentif's petition. Upon consideration of the motions and the evidence presented at the merits hearing, the Court concludes that respondents have demonstrated that Hentif's detention is lawful. Therefore, Hentif's petition shall be denied.

I. LEGAL STANDARDS

A. Scope of the Government's Detention Authority

The Authorization for Use of Military Force (“AUMF”), Pub. L. No. 107–40, 115 Stat. 224 (2001), authorizes the President 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.” Pub. L. 107–40, § 2(a), 115 Stat. at 224. The U.S. Supreme Court has held that the U.S. District Court for the District of Columbia has jurisdiction over petitions for writs of habeas corpus brought by detainees held at Guantanamo Bay pursuant to the AUMF. See Boumediene v. Bush, 553 U.S. 723, 792, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008); Rasul v. Bush, 542 U.S. 466, 483–84, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004). The Supreme Court has provided “scant guidance,” however, as to whom respondents may lawfully detain under the statute. Al–Bihani v. Obama, 590 F.3d 866, 870 (D.C.Cir.2010) (noting that the Supreme Court has “consciously le[ft] the contours of the substantive and procedural law of detention open for lower courts to shape in a common law fashion” (citing Hamdi v. Rumsfeld, 542 U.S. 507, 522, n. 1, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (plurality opinion); Boumediene, 553 U.S. at 796, 128 S.Ct. 2229)).

Although the D.C. Circuit “has yet to delineate the precise contours” of the proper legal standard by which to evaluate the lawfulness of the detention of the individuals held at Guantanamo Bay, Barhoumi v. Obama, 609 F.3d 416, 424 (D.C.Cir.2010), it has held that any individual who is “part of” Al Qaeda or the Taliban may be detained pursuant to the AUMF. Al–Adahi v. Obama, 613 F.3d 1102, 1103 (D.C.Cir.2010); see also Bensayah v. Obama, 610 F.3d 718, 725 (D.C.Cir.2010); Awad v. Obama, 608 F.3d 1, 11 (D.C.Cir.2010). The determination of whether an individual is “part of” Al Qaeda “must be made on a case-by-case basis by using a functional rather than formal approach and by focusing upon the actions of the individual in relation to the organization.” Bensayah, 610 F.3d at 725. Accordingly, in this case, the Court will assess whether respondents have shown that Hentif is functionally part of Al Qaeda or the Taliban.

B. Burden of Proof

As stated in the Amended Case Management Order that governs this case, “[t]he government bears the burden of proving by a preponderance of the evidence that the petitioner's detention is lawful.” In re Guantanamo Bay Litig., Misc. No. 08–442, CMO § II.A, 2008 WL 4858241 (Nov. 6, 2008); see also Awad, 608 F.3d at 10 (upholding the preponderance of the evidence standard as constitutional in the evaluation of habeas petitions from Guantanamo Bay detainees); Al–Bihani, 590 F.3d at 878 (same).¹ Accordingly, Hentif need not prove that he is unlawfully detained; rather, respondents must produce “evidence which as a whole shows that the fact sought to be proved,” that Hentif was part of Al Qaeda or the Taliban, “is more probable than not.” United States v. Mathis, 216 F.3d 18, 28 (D.C.Cir.2000) (quoting United States v. Montague, 40 F.3d 1251, 1255 & n. 2 (D.C.Cir.1994)); see also Almerfedi v. Obama, 654 F.3d 1, 5 (D.C.Cir.2011) (“The preponderance standard ... asks the court simply to ‘make a comparative judgment about the evidence’ to determine whether a proposition is more likely true than not true based on the evidence in the record.”) (quoting Lindsay v. NTSB, 47 F.3d 1209, 1213 (D.C.Cir.1995)). If respondents meet this burden, the Court must deny Hentif's petition. In considering whether respondents have met this burden, the Court will evaluate the totality of the evidence, rather than viewing each piece of evidence in isolation. See Al–Adahi, 613 F.3d at 1105–06; see also Salahi v. Obama, 625 F.3d 745, 753 (D.C.Cir.2010).

C. Evidentiary Issues

The Court notes at the outset two issues regarding the evidence in this case.

First, as explained in an order entered in this case on July 7, 2010 [# 265], the Court has permitted the admission of hearsay evidence but considers at this merits stage the accuracy, reliability, and credibility of all of the evidence presented to support the parties' arguments. The D.C. Circuit has mandated this approach. See Al–Bihani, 590 F.3d at 879 (“[T]he question a habeas court must ask when presented with hearsay is not whether it is admissible—it is always admissible—but what probative weight to ascribe to whatever indicia of reliability it exhibits.”); see also Odah v. United States, 611 F.3d 8, 14 (D.C.Cir.2010) (holding that “[t]he law is against” a detainee who argued that some types of hearsay are not admissible in these Guantanamo Bay cases); Awad, 608 F.3d at 7 (reaffirming the rule articulated in Al–Bihani and noting that a district court errs not by relying on hearsay, but by relying on “unreliable hearsay”). The Court's assessment of the weight properly accorded to particular pieces of evidence appears throughout this opinion.

Second, the nature of the evidence before the Court is atypical of evidence usually presented to federal courts. Respondents have offered a variety of types of documents produced and used by government intelligence agencies that are not the direct statements of the individuals whose personal knowledge they reflect. The evidence in this case includes Form 40s (“FM40s”), Summary Interrogation Reports (“SIRs”), Intelligence Information Reports (“IIRs”), Memoranda for Records (“MFRs”), Field Documents (“FD–302s”) [redacted] FM40s are records of investigation activities, here witness interviews, conducted by the Criminal Investigation Task Force, a federal law enforcement agency. SIRs are summaries of interrogations conducted under the auspices of the Department of Defense. IIRs are Department of Defense documents for recording human intelligence, which may contain information derived from an SIR.² MFRs are similar to SIRs. FD–302s are forms completed by FBI agents summarizing interviews. [Redacted].³ Neither party called any live witnesses.

II. ANALYSIS

Hentif, or ISN 259,⁴ was born in 1981 in the Al Jawf region of Yemen. At some point after turning eighteen, he left home for the city of Sana'a, Yemen. At some later date, he left Sana'a and traveled to Afghanistan. Late in 2001, he crossed the Afghan border into Pakistan and was seized by Pakistani authorities, who ultimately transferred him to U.S. custody. The parties dispute the timing and purpose of Hentif's travels and the nature of his activities while in Afghanistan. They have divided their factual disagreements into three broad issues, which the Court will address in turn.

A. Issue One: Whether Hentif was Recruited to Join Al Qaeda or Taliban Forces in Afghanistan.1. Respondents' arguments

Respondents contend that Hentif's purpose in leaving Yemen for Afghanistan was to fight with Al Qaeda or Taliban forces. [Redacted].^5,6

Respondents further point to [redacted] details about Hentif's decision to go to Afghanistan. First, they note that Hentif reported attending the [redacted] mosque in Sana'a. See JE 94 (Decl. of Hentif (June 8, 2010)) ¶ 10; JE 10 (FD–302 summarizing April 13, 2002 interrogation of Hentif) at 3; JE 13 (MFR [redacted] interrogation of Hentif) at 2. He stated that, at this mosque, he took a course from a man named [redacted] JE 10 at 3. This information is incriminating, according to respondents, because another Guantanamo Bay detainee, [redacted] reportedly said in an interrogation that [redacted] told him “that the struggle in [Afghanistan] was religiously supported and that one should fight if possible.” JE 28 (IIR dated 2004 reporting information derived from [redacted] at I.

Second, Hentif reportedly said during his interrogations at Guantanamo Bay that he met a man named [redacted] at this mosque, and that [redacted] played a role in Hentif's decision to go to Afghanistan. See JE 10 at 3; JE 13 at 2–3; JE 14 (MFR [redacted] interrogation of Hentif) at 1 [redacted] is the first person to give [Hentif] the idea to go to Afghanistan.”). Respondents further assert that [redacted] “advised [Hen...