Khan v. Obama

• Decision Date: 06 September 2011
• Docket Number: No. 10–5306.,10–5306.
• Citation: 398 U.S.App.D.C. 20,655 F.3d 20
• Parties: Shawali KHAN, Appellantv.Barack OBAMA, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

655 F.3d 20

398 U.S.App.D.C. 20

Shawali KHAN, Appellant

v.Barack OBAMA, et al., Appellees.

No. 10–5306.

United States Court of Appeals, District of Columbia Circuit.

Argued May 13, 2011.Decided Sept. 6, 2011.

Appeal from the United States District Court for the District of Columbia (No. 1:08–cv–01101).

Leonard C. Goodman argued the cause and filed the briefs for appellant.H. Thomas Byron, III, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Tony West, Assistant Attorney General, Ian Heath Gershengorn, Deputy Assistant Attorney General, and Douglas N. Letter and Robert M. Loeb, Attorneys. Michael P. Abate and Edward Himmelfarb, Attorneys, entered appearances.Before: SENTELLE, Chief Judge, and GINSBURG and GARLAND, Circuit Judges.Opinion for the Court filed by Circuit Judge GARLAND.GARLAND, Circuit Judge:

Shawali Khan, a detainee at the United States naval base at Guantanamo Bay, Cuba, appeals the denial of his petition for a writ of habeas corpus. The district court found that Khan was “part of” Hezb–i–Islami Gulbuddin (HIG), an associated force of al Qaeda and the Taliban engaged in hostilities against the United States and its coalition partners. Khan's primary contention on appeal is that the district court erred in concluding that intelligence reports offered by the government to prove his membership in an HIG cell were reliable. Finding no error in the district court's careful consideration of the evidence, we affirm its denial of Khan's petition.

I

Khan is an Afghan citizen who, at the time of his capture in mid-November 2002, lived in Kandahar, Afghanistan. By the government's account, Khan's affiliation with HIG began in the 1980s, when he served as a radio operator for the group under the command of his uncle, Zabit Jalil, during the anti-Soviet jihad. The government alleges that, after September 11, 2001, HIG formed an alliance with al Qaeda and the Taliban to attack U.S. and coalition forces operating in Afghanistan. According to contemporaneous reports by U.S. Army intelligence collectors, three Afghan informants told the collectors about the presence of a small HIG terrorist cell in Kandahar.¹

One of the informants (hereinafter Informant A), later identified as a disaffected member of the HIG cell, told the intelligence collectors in late October 2002 that Khan was a communicator for the cell, facilitating radio contact among its members. He also reported that the cell was directed from Quetta, Pakistan, by Khan's uncle. Intelligence Information Report (IIR) 6 044 0266 03 at 1–3 (Oct. 29, 2002) (J.A. 1731–33). According to Informant A, this cell was responsible for explosions near the Kandahar airfield and was planning additional attacks on U.S. forces using radio-controlled binary explosive devices positioned on roads frequented by U.S. military vehicles. IIR 6 044 0249 03 at 1–4 (Oct. 29, 2002) (J.A. 1726–29).

Informant A gave the intelligence collectors specific information about the cell's method of operation. For example, he described how the cell would detonate two explosions timed to maximize casualties:

When the Americans are close enough to the kill zone, the first explosion is detonated.... The intent of the first explosion is to cause injury and disable the vehicle. This act will force other Americans to investigate the scene and help evacuate the wounded. When a large enough crowd has gathered around the disabled vehicle and wounded personnel, a second, more powerful explosion is detonated.... The purpose of the second explosion is to kill the wounded and those who are trying to help them.

Id. at 3 (J.A. 1728); see IIR 6 044 0267 03 at 3 (Oct. 30, 2002) (J.A. 1738). Informant A also identified the precise radio frequencies the cell used in a particular sequence to detonate the two explosions. IIR 6 044 0249 03 at 3 (J.A. 1728); Classified J.A. 1728; see Gov't Br. 10. And in another meeting, he provided additional specific details about some of the cell's intended targets and the type of explosive device used—“a Chinese or Russian antitank mine approximately 12 inches in diameter” connected to an “electric blasting cap” that is in turn “attached to the radio-controlled electronic detonator.” IIR 6 044 0267 03 at 2–3 (J.A. 1737–38).

Further details about Khan's role in the Kandahar HIG cell came from a second Afghan informant (hereinafter Informant B), who “did not personally witness the events he described,” but had “indirect access” to the information. Decl. of Intelligence Collector 1 at ¶ 23 (Mar. 15, 2010) (J.A. 1543); see Decl. of Intelligence Collector 2 at ¶ 20 (Mar. 10, 2010) (J.A. 1572). Informant B reported that Khan was “a go-between and a facilitator” within the cell, that he “use[d][his] oil shop to conduct meetings and as a contact point with other members within the cell,” and that on November 9, 2002, he “delivered a radio-controlled binary detonation device and two blasting caps to an operative working within his organization.” IIR 6 044 0025 03 at 3 (Nov. 9, 2002) (J.A. 1723).

Finally, a third informant, an Afghan government official (hereinafter Informant C), revealed more about the Kandahar HIG cell's plans to attack U.S. and coalition vehicles at two specific locations. IIR 6 044 0300 03 (Nov. 3, 2002) (J.A. 1744–45). He told the intelligence collectors that “mines ha[d] already been emplaced” at these locations, but that “they ha[d] not been armed with a remote detonation device.” Id. (J.A. 1745).

In mid-November 2002, U.S. military officials decided to neutralize the HIG cell. They planned an operation to capture Khan at his shop, using Informant A's tip that Khan would be there at a particular time. The operation was a success, and Khan's home and shop were searched after his arrest. As reflected in several reports and underlying exhibits, the searches uncovered a variety of physical evidence, including a notebook containing Arabic writing about various terrorist activities, a book of poems written in Arabic by a high-level al Qaeda leader, a notebook from the “al-Farouk camp” containing Arabic writing about the use and maintenance of weapons, a notebook with Arabic writing and pictures of Osama bin Laden, Pashtu music praising the Taliban, and a receipt for weapons. See Gov't Br. 13 n. 4 (summarizing material recovered from Khan's properties).

In addition, and more significant, heavily redacted classified intelligence reports state that the search of Khan's properties yielded further, particularly incriminating evidence that confirmed his role in the Kandahar HIG cell. Gov't Br. 13, 55. One of those reports states that [Redaction 1].

On November 22, 2002, Informant B told the intelligence collectors that, after Khan's capture by U.S. forces, Khan's uncle called a meeting with several HIG operatives in Pakistan to replace the entire Kandahar cell. IIR 6 044 0433 03 at 1–2 (Nov. 22, 2002) (J.A. 1753–54). According to the government, improvised explosive device (IED) attacks stopped in the area for about two months after Khan's capture. Decl. of Intelligence Collector 2 at ¶ 15 (Mar. 10, 2010) (J.A. 1570).

During an interrogation by U.S. personnel on December 17, 2002, Khan admitted to possessing [Redaction 2], but said that [Redaction 3].² In subsequent interrogations, he at times admitted to possessing other pieces of physical evidence, and offered exculpatory explanations for some of them. ³ In several interrogations, he also admitted that he had been part of the HIG army during the fight against the Soviet Union in the 1980s and that his uncle Jalil had commanded HIG forces against the Soviets; but at other times, he said he had never been an official member of HIG and/or denied any affiliation with HIG. See Pet'r Br. 11–12 (citing interrogation reports). In numerous interrogations, Khan told his questioners that he was just a shopkeeper, not a terrorist, and had been falsely accused by corrupt Afghans who told lies about him for money.

Khan has been detained at Guantanamo Bay since early 2003. The government contends that Khan's detention is lawful under the Authorization for Use of Military Force (AUMF) that Congress adopted after the September 11, 2001, al Qaeda attacks against the United States.⁴ We have held that the AUMF grants the President authority (inter alia) to detain individuals who are “part of forces associated with Al Qaeda or the Taliban.” Al–Bihani v. Obama, 590 F.3d 866, 872 (D.C.Cir.2010); see Barhoumi v. Obama, 609 F.3d 416, 432 (D.C.Cir.2010).

In June 2008, the Supreme Court ruled in Boumediene v. Bush that “the constitutional privilege of habeas corpus” extends to aliens detained as enemy combatants at Guantanamo. 553 U.S. 723, 732, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008). Shortly thereafter, Khan filed a petition for a writ of habeas corpus. Early in the litigation, Khan moved for judgment on the record, contending that extensive discovery was unnecessary because the government had failed to produce sufficient reliable evidence to justify his detention.

In ruling on Khan's motion, the district court found that the Army intelligence collectors' informant reports lacked adequate indicia of reliability because, inter alia, “all sources are confidential ( i.e., unidentified).”Khan v. Obama, 646 F.Supp.2d 6, 13 (D.D.C.2009). (The government had not yet revealed the informants' identities.) Accordingly, the court held that the informant reports could not, absent other reliable corroborating evidence, justify Khan's detention. At the same time, however, the court found that the government had already produced other reliable evidence suggesting that “petitioner was active in HIG during jihad against the former Soviet Union; HIG was a terrorist organization at the time of petitioner's capture; ... petitioner was a HIG communicator at the time of his capture; and petitioner possessed some al Qaeda- or Taliban-related material at the time of his capture.” Id. at 19. It also...