Kandari v. United States

• Decision Date: 15 September 2010
• Docket Number: Civil Action No. 02–828(CKK).
• Citation: 744 F.Supp.2d 11
• Parties: Fayiz Mohammed Ahmed Al KANDARI, et al., Petitioners,v.UNITED STATES, et al., Respondents.
• Court: U.S. District Court — District of Columbia

744 F.Supp.2d 11

Fayiz Mohammed Ahmed Al KANDARI, et al., Petitioners,

v.UNITED STATES, et al., Respondents.

Civil Action No. 02–828(CKK).

United States District Court, District of Columbia.

Sept. 15, 2010.

David J. Cynamon, Matthew J. MacLean, Osman Ahmad Handoo, Thomas G. Allen, Pillsbury Winthrop Shaw Pittman LLP, Ronald D. Lee, Arnold & Porter LLP, Washington, DC, Barry Wingard, Kevin B. Bogucki, Office of the Military Commission, Arlington, VA, for Petitioners.Nayef N.N.B.J. Al Mutairi, pro se.Abdulaziz Sayer Owain Al Shammari, pro se.Sayer O.Z. 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, John P. Lohrer, Norman Christopher Hardee, 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, Jonathan S. Needle, Robert J. Prince, U.S. Department of Justice, Brian David Boyle, O'Melveny & Myers, LLP, Robert D. Okun, United States Attorney's Office, Washington, DC, for Respondents.

CLASSIFIED MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, District Judge.

Petitioner Fayiz Mohammed Ahmed Al Kandari (“Al Kandari”) has been detained by the United States Government at the Guantanamo Bay Naval Base in Cuba since 2002. According to his own statements and admissions against interest, Al Kandari was in the mountains near Tora Bora, during the height of the Battle of Tora Bora, armed with a Kalishnikov rifle, and in the company of several members and high-level leaders of al Qaeda, the Taliban, or associated enemy forces, who were actively engaged in fighting the United States and its Coalition allies. Based on these admissions and other evidence in the record, the Government asserts that it has the authority to detain Al Kandari pursuant to 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 Kandari 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 Kandari'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 five-day Merits Hearing held on October 19–23, 2009. The parties did not present any live testimony at the Merits Hearing, but Al Kandari did listen telephonically to the unclassified opening statements by his counsel and Government's counsel. Based on the foregoing, the Court finds that the Government has met its burden to show by a preponderance of the evidence that Al Kandari became part of al Qaeda, the Taliban, or associated enemy forces. Accordingly, the Court shall DENY Al Kandari's petition for habeas corpus.

I. BACKGROUND

A. Procedural History

Al Kandari filed his petition for habeas corpus on May 1, 2002, making this case the oldest of the pending Guantanamo Bay habeas cases.¹ After several years of litigation, this case was stayed pending resolution of whether the Court had jurisdiction to hear Al Kandari'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. 723, 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 (“CMO”) as the backdrop for its subsequent Scheduling Orders.²

The Government filed an Amended Factual Return on September 15, 2008, and pursuant to the schedule set by the Court, Al Kandari filed a Traverse on March 30, 2009. The parties engaged in extensive discovery and motions practice in the interim. AJ Kandari 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. Al Kandari 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 Kandari with certain discovery from the Guantanamo Bay Joint Task Force database. In addition, 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. Finally, the parties filed seven 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 Kandari's Merits Hearing and granted the Government's motion to amend its Statement of Facts and Exhibit List as to Al Kandari, but held their other evidentiary motions in abeyance to be resolved in the context of Al Kandari's Merits Hearing.

On September 9, 2009, the Court issued a Merits Hearing Procedures Order, which scheduled Al Kandari's Merits Hearing to begin on October 19, 2009, and to continue through October 23, 2009, as needed. In addition, as the Court has done with respect to each of the prior Merits Hearings in this case, the Court permitted the parties to file motions for leave to amend the parties' respective Witness and Exhibit Lists, Respondents' Statements of Facts, and/or the underlying Factual Return and Traverse. Pursuant to the schedule proposed by the parties and adopted by the Court, the parties exchanged their initial proposed amended exhibits by October 5, 2009; exchanged any additional amended exhibits by October 9, 2009; and conferred regarding their final Exhibit Lists and any objections to the same prior to their submission to the Court on October 13, 2009.³ This schedule, as suggested by the parties, was intended to ensure that both sides had an opportunity to review the opposing side's proposed amended exhibits, to adjust their own proposed amended exhibits in response, and to narrow any disputes as to the proposed motions to amend. 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 the October 13, 2009 deadline.⁴

The parties timely submitted these materials, and the Court held an on-the-record unclassified telephone conference call with counsel for all parties on October 15, 2009, and a classified status hearing on October 16, 2009, to discuss the parties' motions for leave to amend and their respective objections to the other side's amended exhibits. Discussion principally focused on Al Kandari's objections to Respondents' newly amended exhibits (“Amended Exhibits”), and in particular, on his objection to the admission of certain of the Government's Amended Exhibits on the basis that Petitioner's counsel would not have an opportunity to show or discuss those exhibits with his client, Al Kandari, prior to the Merits Hearing. In an effort to address this specific objection, Respondents—with the Court's firm encouragement—assisted Petitioner's counsel in obtaining expedited declassification review of certain exhibits and in arranging a secure telephone conversation between Petitioner's counsel and Al Kandari in Guantanamo on Sunday, October 18, 2009, to discuss the Amended Exhibits.⁵

At the close of the October 16, 2009 hearing, the Court granted Al Kandari's motion for leave to amend his Exhibit List and granted-in-part and held in abeyance-in-part Respondents' motion for leave to amend the Statement of Material Facts and the Government's Exhibit List. The Court made clear that it would not exclude Respondents' Amended Exhibits from consideration ex ante because of the importance of ensuring that its ruling on Al Kandari's habeas petition was made on the basis of all available evidence. The Court indicated instead that it would permit the presentation of all evidence, including Respondents' Amended Exhibits, during the course of the Merits Hearing and would reserve its final decision regarding the parties' objections to particular pieces of evidence until after all evidence and the parties' positions thereto had been considered. The Court notes that while the volume of Respondents' Amended Exhibits was not insignificant, Respondents' request for leave to amend was timely filed in compliance with the parties' own proposed schedule and both parties were aware that the number of amended exhibits submitted with respect to Al Kandari—the last of the four habeas petitions in this case—was likely to be substantial, given the parties' ongoing efforts to respond to the Court's prior rulings in these habeas cases. Nonetheless, Al Kandari's concerns regarding the timing of the...