Khan v. Obama

• Decision Date: 03 September 2010
• Docket Number: Civil Action No. 08–1101 (JDB).
• Citation: 741 F.Supp.2d 1
• Parties: Shawali KHAN, Petitioner,v.Barack H. OBAMA, et al., Respondents.
• Court: U.S. District Court — District of Columbia

741 F.Supp.2d 1

Shawali KHAN, Petitioner,

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

Civil Action No. 08–1101 (JDB).

United States District Court, District of Columbia.

Sept. 3, 2010.

Leonard C. Goodman, H. Candace Gorman, Law Office of H. Candace Gorman, Chicago, IL, Gitanjali Gutierrez, New York, NY, Kent Spriggs, Spriggs Law Firm, Tallahassee, FL, for Petitioner.Frederick Sherwood Young, Judry Laeb Subar, Kristofer Ryan McDonald, Mary Elizabeth Carney, Scott Douglas Levin, Scott Michael Marconda, Alexander Kenneth Haas, David P. Avila, David Hugh White, Julia A. Berman, Kathryn Celia Mason, Patrick D. Davis, Robert J. Prince, Terry Marcus Henry, U.S. Department of Justice, Washington, DC, for Respondents.

MEMORANDUM OPINION

JOHN D. BATES, District Judge.

Shawali Khan, an Afghan citizen, has been in United States custody since mid-November 2002, and has been detained at the United States Naval Base at Guantanamo Bay, Cuba, since early 2003. Contending that he is unlawfully detained under the Authorization for Use of Military Force (“AUMF”), Pub. L. No. 107–40, 115 Stat. 224 (2001), Khan filed a petition for a writ of habeas corpus in this Court. The government has responded that Khan is lawfully detained because he was a member “of Hezb–i–Islami Gulbuddin (‘HIG’), an organization that served as an associated force of the Taliban and al-Qaida in hostilities against the United States and its coalition partners.” Resp'ts' Pre–Hearing Mem. (“Resp'ts' Mem.”), 1.

During the early stages of this litigation, Khan “sought—and received—an ‘expedited’ [Case Management Order], which provided him with an opportunity to file a motion for judgment on the record before full discovery had been conducted.” Khan v. Obama, 646 F.Supp.2d 6, 10 (D.D.C.2009). The Court denied Khan's motion for judgment on the record, concluding that “although much of respondents' evidence is fatally lacking adequate indicia of reliability, the evidence that remains is sufficient ... to warrant denial of petitioner's motion.” Id. at 20. The parties thereafter completed discovery.

On May 13, 14, and 17, 2010, the Court held an evidentiary hearing, at which it heard arguments from counsel, considered the written evidence in the case, and heard testimony from Khan and from Professor Brian Williams, Khan's expert on Afghan warlords. Upon review of all the evidence presented and considered at the evidentiary hearing, the parties' several memoranda, the applicable law, and the entire record herein, and for the reasons set forth below, the Court will deny Khan's petition for a writ of habeas corpus. As framed over the course of these proceedings, this case now centers on a few key pieces of evidence, which the Court finds reliable and which clearly establish Khan was a “part of” HIG when he was captured in 2002. Hence, he is lawfully detained.

LEGAL STANDARDS

I. Burden of Proof

Pursuant to the Case Management Order in this action, “[t]he government bears the burden of proving by a preponderance of the evidence that the petitioner's detention is lawful.” Feb. 20, 2010 Case Management Order [Docket Entry 81], at 3; accord Al–Adahi v. Obama, 613 F.3d 1102, 1104–05 (D.C.Cir.2010); Awad v. Obama, 608 F.3d 1, 10–11 (D.C.Cir.2010). That standard “ ‘simply requires the trier of fact to believe that the existence of a fact is more probable than its nonexistence before he may find in favor of the party who has the burden to persuade the judge of the fact's existence.’ ” Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 622, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993) (quoting In re Winship, 397 U.S. 358, 371–72, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring) (citation omitted)).

II. The Government's Detention Authority

The AUMF 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.” AUMF, § 2(a). Such “necessary and appropriate force” includes the power to detain combatants subject to such force. See Hamdi v. Rumsfeld, 542 U.S. 507, 519, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (plurality opinion); Al–Bihani v. Obama, 590 F.3d 866, 872 (D.C.Cir.2010) [hereinafter Al–Bihani II ]. The scope of this power is broad: the government may detain any individual “engaged in hostilities ... against the United States,” who “purposefully and materially supported hostilities against the United States or its coalition partners,” or who “is part of the Taliban, al-Qaida, or associated forces.” Al–Bihani II. 590 F.3d at 871–72; see also Hamlily v. Obama, 616 F.Supp.2d 63, 75 (D.D.C.2009).

“[T]here are no settled criteria,” for determining who is “part of” the Taliban, al-Qaida, or an associated force. Hamlily, 616 F.Supp.2d at 75; accord Bensayah v. Obama, 610 F.3d 718, 725 (D.C.Cir.2010). “That determination must be made on a case-by-case basis by using a functional rather than formal approach and by focusing on the actions of the individual in relation to the organization.” Bensayah, 610 F.3d at 725; accord Hamlily, 616 F.Supp.2d at 75. The Court must consider the totality of the evidence to assess the individual's relationship with the organization. See Naji al Warafi v. Obama, 704 F.Supp.2d 32, 37–39 (D.D.C.2010). But being “part of the Taliban, al-Qaida, or an associated force requires “some level of knowledge or intent.” Hamlily, 616 F.Supp.2d at 75; see also Bensayah, 610 F.3d at 725 (“purely independent conduct of a freelancer is not enough” to demonstrate an individual was “part of an organization.).

III. Preliminary Evidentiary Issues

The evidence on which the government relies to justify Khan's detention is “atypical of evidence usually presented in federal actions.” Abdah v. Obama, 709 F.Supp.2d 25, 27 (D.D.C.2010). Indeed, the government presents a variety of documents “produced and used by government intelligence agencies.” Id. This evidence includes Information Reports (“IIRs”), [redacted] and Form 40s (“FM40s”). IIRs are Department of Defense documents reporting information obtained from human intelligence sources by the Defense Intelligence Agency and the military's intelligence services. See Evidentiary Hr'g, Resp'ts' Ex. 11 (Decl. of [redacted] Intelligence 101 (“Intelligence 101”), at 6. [redacted] Finally, FM40s are law documents that record “investigation activity, such as witness interviews,” and “record information relevant to how a crime was committed as well as the logical and factual basis for any deductions about guilt.” Intelligence 101 at 7.

Although many of these documents contain hearsay, hearsay is always admissible in Guantanamo habeas cases. See Al–Bihani II, 590 F.3d at 879. The Court must determine, however, “what probative weight to ascribe to whatever indicia of reliability [the hearsay evidence] exhibits.” Id. Hence, “ ‘[t]he fact finder must evaluate the raw evidence,” resolving whether it is “sufficiently reliable and sufficiently probative to demonstrate the truth of the asserted proposition with the requisite degree of certainty.’ ” Parhat v. Gates, 532 F.3d 834, 847 (D.C.Cir.2008) (quoting Concrete Pipe & Prods., Inc., 508 U.S. at 622, 113 S.Ct. 2264). The parties therefore must present hearsay evidence “in a form, or with sufficient additional information, that permits the ... court to assess its reliability.” Id. at 849.

Under Parhat, then, the Court first considers whether a particular piece of evidence itself possesses “sufficient hallmarks of reliability,” and whether it is corroborated by other reliable evidence. See Khan, 646 F.Supp.2d at 12; see also Parhat, 532 F.3d at 849 (“There may well be other forms in which the government can submit information that will permit an appropriate assessment of the information's reliability while protecting the anonymity of a highly sensitive source.”); Rugendorf v. United States, 376 U.S. 528, 533, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964) (affidavit in support of a search warrant containing hearsay from a confidential source may be reliable “so long as there was a substantial basis for crediting the hearsay”); United States v. Laws, 808 F.2d 92, 100–03 (D.C.Cir.1986) (one informant's hearsay statement can corroborate another informant's hearsay statement). The Court then determines “whether the evidence is in fact sufficiently reliable to be used as a justification for detention.” Khan, 646 F.Supp.2d at 12. “[I]f courts cannot assess reliability, then the evidence in question is inherently unreliable and may not be relied upon to justify detention.” Id.

The government also supports its case for Khan's detention with declarations from government officials and intelligence collectors. A court generally may consider sworn affidavits in a habeas proceeding. See 28 U.S.C. § 2246 (“On application for a writ of habeas corpus, evidence may be taken orally or by deposition, or, in the discretion of the judge, by affidavit.”); accord Bostan v. Obama, 662 F.Supp.2d 1, 4 (D.D.C.2009) (government may use affidavits or declarations rather than live witness testimony).¹ And in Guantánamo habeas cases, the government may establish a source's reliability through a sworn declaration “from a relevant member of the intelligence community attesting to personal knowledge of the accuracy of a source's statements.” Al–Bihani v. Obama, 662 F.Supp.2d 9, 20 n. 12 (D.D.C.2009) [hereinafter Al–Bihani I].

ANALYSIS

The government asserts that it can detain Khan under the AUMF because he was a member of an HIG cell operating in Kandahar, Afghanistan, in 2002. The government's narrative proceeds in three parts: (1) HIG is “a terrorist organization that functions as an associated force of al-Qaida and the Taliban in hostilities against the U.S. and its coalition partners,” Resp'ts' Mem. at 9; (2) Khan had a long-standing association with HIG, serving as a radio operator during the...