Khairkhwa v. Obama, Civil Action No. 08–1805.

Decision Date27 May 2011
Docket NumberCivil Action No. 08–1805.
Citation793 F.Supp.2d 1
PartiesKhairulla Said Wali KHAIRKHWA, Petitioner,v.Barack OBAMA, et al., Respondents.
CourtU.S. District Court — District of Columbia

OPINION TEXT STARTS HERE

J. Griffin Morgan, Robert M. Elliot, Elliot Pishko Morgan, P.A., Winston–Salem, NC, C. Frank Goldsmith, Goldsmith, Goldsmith & Dews, P.A., Marion, NC, for Petitioner.David Chadwick Roby, Terry Marcus Henry, David Hugh White, Julia A. Berman, Lori Buff Warlick, Patrick D. Davis, Peter James McVeigh, Robert J. Prince, Timothy Bo Stanton, U.S. Department of Justice, Ephraim Wernick, United States Attorney's Office for DC, Washington, DC, for Respondents.

MEMORANDUM OPINION

Denying the Petition for a Writ of Habeas Corpus

Denying as Moot the Government's Motion for the Court to Consider Ex Parte Information on the Merits

Overruling the Government's Objection to the Petitioner's Reliance on Materials Outside the Record

RICARDO M. URBINA, District Judge.

I. INTRODUCTION

This matter comes before the court on the petition for a writ of habeas corpus filed by Khairulla Said Wali Khairkhwa (ISN 579) (“the petitioner), an Afghan national detained at the United States Naval Station in Guantanamo Bay, Cuba (“GTMO”). The government contends that the petitioner, a former senior Taliban official, is lawfully detained because he was part of Taliban forces and purposefully and materially supported such forces in hostilities against the United States. The petitioner maintains that his detention is unlawful because he was merely a civilian administrator in the Taliban government with no involvement in the Taliban's military operations, and because he had disassociated himself from the Taliban by the time of his capture.

In March 2011, the court held a merits hearing to assess the lawfulness of the petitioner's detention. During the course of that hearing, the parties introduced dozens of exhibits from a variety of classified and public sources, including media reports, scholarly works, interrogation reports and declarations from intelligence analysts. The court also received live testimony and declarations from subject matter experts offered by the petitioner. At the conclusion of the hearing, both parties submitted detailed proposed findings of fact and conclusions of law encapsulating and amplifying the evidence and argument presented during the merits hearing.1

Having carefully considered the parties' extensive presentations, the court reaches the following findings. The petitioner was, without question, a senior member of the Taliban both before and after the U.S.-led invasion of Afghanistan in October 2001. The petitioner served as a Taliban spokesperson, the Taliban's Acting Interior Minister, the Taliban Governor of Kabul and a member of the Taliban's highest governing body, the Supreme Shura. The petitioner was a close associate of Taliban leader Mullah Mohammed Omar, who appointed him Governor of the province of Herat in 1999. The petitioner held this office at the time the Taliban government fell to U.S. coalition forces in late 2001.

Although the petitioner contends that he had no military responsibilities in any of his posts within the Taliban, the record belies that contention. The petitioner has repeatedly admitted that after the terrorist attacks of September 11, 2001, he served as a member of a Taliban envoy that met clandestinely with senior Iranian officials to discuss Iran's offer to provide the Taliban with weapons and other military support in anticipation of imminent hostilities with U.S. coalition forces. The petitioner has also exhibited a detailed knowledge about sensitive military-related matters, such as the locations, personnel and resources of Taliban military installations, the relative capabilities of different weapons systems and the locations of weapons caches. Furthermore, the petitioner operated within the Taliban's formal command structure, providing material support to Taliban fighters both before and after the outset of hostilities with U.S. coalition forces. These facts are consistent with the Taliban's governance model, in which nearly all senior Taliban officials were tasked with both civilian and military responsibilities.

Despite the petitioner's efforts to portray himself as a reluctant, marginal figure within the Taliban, the record indicates that the petitioner rose to the highest level of the Taliban and had close ties to Mullah Omar, who repeatedly appointed the petitioner to sensitive, high-profile positions. Indeed, even after the U.S.-led invasion of Afghanistan, the petitioner remained within Mullah Omar's inner circle, despite the fact that Mullah Omar had limited his contacts to only his most trusted commanders.

The petitioner remained part of Taliban forces at the time of his capture in early 2002. Although the petitioner contacted individuals allied with the United States to discuss the possibility of surrendering himself to U.S. coalition forces, he never turned himself in and was ultimately captured at the home of a senior Taliban military commander.

In sum, based on a totality of the evidence, the court concludes that the government has proven by a preponderance of the evidence that the petitioner was part of Taliban forces at the time of his capture. The petitioner is therefore lawfully detained and his petition for a writ of habeas corpus must be denied.

II. BACKGROUND
A. Factual Overview

The following facts are undisputed. The petitioner was born in the Kandahar province of Afghanistan some time between 1967 and 1972. GE 91 2 (Joint Stipulation of Undisputed Facts) ¶ 10; GE 20 (ISN 579 FD–302 (July 2, 2002)) at 1; GE 44 (ISN 579 FD–302 (May 26, 2002)) at 1; GE 45 (ISN 579 FD–302 (May 13, 2002)) at 1; GE 70 (ISN 579 CSRT Summarized Statement (Nov. 8, 2004)) at 1–2. He is a Durrani Pashtu and a member of the Popalzai tribe. GE 91 ¶ 11. Following the Soviet invasion of Afghanistan in 1979, the petitioner relocated with his family to a refugee camp near Quetta, Pakistan. GE 20 at 1. The petitioner spent the bulk of his youth in Pakistan and was educated at different madrassas 3 in that country. GE 91 ¶ 14; GE 43 (ISN 579 MFR (May 10, 2002)) at 1; GE 45 at 1.

In 1994, with the Soviets expelled from Afghanistan and various factions fighting for control over the country, the petitioner returned to Afghanistan. GE 91 ¶ 13. He moved to the village of Spin Boldak in Kandahar province, where he began working for the Taliban. Id. In Spin Boldak, the petitioner functioned primarily as a wayand, or spokesperson, serving as the Taliban's spokesman to media outlets such as the BBC and Voice of America. GE 20 at 1–2; GE 45 at 1. The petitioner also served as the Taliban's district administrator for Spin Boldak, the highest-ranking official in that city. GE 71 (ISN 579 ARB Statement (June 22, 2006)) at 3; Mar. 31 Tr. at 87.4

The petitioner rose quickly through the Taliban ranks. In 1996, the petitioner was appointed Governor of Kabul, PE 110 ¶ 50, and shortly thereafter, became the Taliban's Acting Minister of the Interior, id.; GE 91 ¶ 16. By that time, the Taliban had seized control over southern and central Afghanistan, including Kabul, and were advancing on the Northern Alliance stronghold city of Mazar–e–Sharif.5 GE 91 ¶¶ 2–3. The Taliban attempted to seize the city in May and September 1997, but both assaults proved unsuccessful. Id. ¶ 3. The Taliban finally captured Mazar–e–Sharif in August 1998. Id. ¶ 4.

On October 26, 1999, the petitioner was appointed Governor of Herat, id. ¶ 17, the westernmost province in Afghanistan, GE 92. The petitioner held this post when U.S. coalition forces commenced Operation Enduring Freedom on October 7, 2001. See GE 91 ¶ 5. By mid-November 2001, U.S. coalition forces had pushed the Taliban out of Mazar–e–Sharif, Herat and Kabul. Id. ¶¶ 6–8. Kandahar fell in early December 2001. Id.

In late January or early February 2002, Pakistani authorities captured the petitioner in Chaman, Pakistan at the home of Abdul Manan Niazi, the former Taliban Governor of Kabul. Id. ¶ 18. The petitioner has been detained at GTMO since approximately March 2002.

B. Procedural History

In June 2008, the Supreme Court issued its ruling in Boumediene v. Bush, 553 U.S. 723, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008), in which the Court held that individuals detained at GTMO are “entitled to the privilege of habeas corpus to challenge the legality of their detention,” id. at 2262, and that the federal district courts have jurisdiction over such challenges, id. at 2274. Shortly thereafter, the petitioner filed a petition for a writ of habeas corpus challenging the legality of his detention at GTMO. See generally Pet.

Although the Supreme Court did not specify what procedures the district courts were to employ in resolving habeas petitions filed by GTMO detainees, it did emphasize that the “detainees in these cases are entitled to a prompt habeas corpus hearing.” Boumediene, 128 S.Ct. at 2275. Toward that end, this court and other judges in this district agreed to consolidate their cases before Judge Hogan for the purpose of adopting common procedures for the GTMO detainee litigation. See Minute Order (Oct. 29, 2008). On November 6, 2008, Judge Hogan issued a Case Management Order (“CMO”) to govern these proceedings, which he amended on December 16, 2008. See generally Am. CMO (Dec. 16, 2008). This court adopted the provisions of the amended CMO, subject to modifications set forth in an Omnibus Order issued on April 23, 2009. See generally Omnibus Order (Apr. 23, 2009).

The government filed its factual return for the petitioner in December 2008. See generally Factual Return. Following an extensive period of discovery, the petitioner filed his traverse in December 2009.6See generally Traverse. In April 2010, the parties filed cross-motions for judgment on the record. See generally Govt's Mot. for J. on the R.; Petr's Cross–Mot. for J. on the R. The court denied the parties' cros...

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