Shafiiq v. Bush ( 2013 )

UNCLASSIFIED//FOR PUBLIC RELEASE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
SHAFIIQ, et aL, )
)
Petitioners, )
)
v. ) Civil Action No. 05-1506 {RMC)
)
BARACK OBAMA, eta/., )
)
Filed with Classified
Respondents. )
Infonnation Security Officer
)
IN RE PETITION OF ) CISO ?fft.h ~
SUFYIAN BARHOUMI 1
(ISN 694)
)
)
Date \ [itNE _s- ~
OPINION
Sufyian Barhoumi, a native of Algeria, is a detainee held by the United States at
Guantanamo Bay, Cuba. This Court previously denied his petition for a writ of habeas corpus
and was sustained on appeal, on the basis that he was "'part o:f an al·Qaida·associate609 F.3d 416, 418 (D.C. Cir. 20 I 0). Mr. Barhourni presents
new evidence and argues that he should be relieved from the final judgment against him. The
1
Petitioner's correct name is uncertain. His counsel identify him as Sufyian Barhoumi
and call him Mr. Barhoumi. See Pet'r's Mot. Relief [Dkt. 232] at 1. When he appeared before
an Administrative Review Board (ARB) at Guantanamo Bay in January 2008, he agreed that his
name is Barghomi fsic] Sufyian, and the Presiding Officer referred to him as Mr. Sufyian. See
Respondent's Excerpted and Highlighted Materials for Oral Argument July 13, 2009, Ex. 11, at
1, 6. Petitioner also used aliases, including "Abu Obaida, Ubaydah al Jaza'iri, and Shafiq."
Barhoumi v. Obama, 609 F.3d 416, 426 (D.C. Cir. 20 I 0). For clarity, the Court will refer to him
as Sufyian Barhoumi.
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govcrrunent disagrees. Having considered all ofthe materials submitted, the underlying record,
and the parties' arguments, the Court will deny the motion.
I. BACKGROUNI>
Sufyian Barhoumi was captured in Faisalabad, Pakistan, in February 2002, during
the height of the hostilities in Afghanistan after the attack on September 11, 2001. 2 He had left
Algeria after high school and ended up in London, where he attended a mosque that featured
films depicting Russian atrocities against Muslims in Chechnya. "Inspired by these films,
Barhoumi traveled to Karachi, Pakistan, and then to Jalalabad, Afghanistan, where he trained to
fight alongside the Chechens in their struggle against the Russian government." Barhoumi, 609
F.3d at 418. Mr. Barhoumi trained at several military camps in Afghanistan, including Khaldan,
a camp run by Abu Zubaydah, "a reputed terrorist leader who commanded his O'WTl fighting
force" and who was associated with Osama bin Laden, although Abu Zubaydah was not directly
under bin Laden's command. !d. Abu Zubaydah "had agreed with Usama bin Laden to
.
coordinate training efforts and allow Khaldan recruits to join al-Qaida." !d. Along the way, Mr.
Barhoumi lost all of the fingers and most of his thumb on one hand when a bomb with which he
was training exploded prematurely.
Mr. Barhoumi fled Afghanistan through the mountains into Pakistan in late 2001.
"In his ARB hearing, [Mr.] Barhoumi testified that he traveled to a gucsthousc in Faisalabad,
2
In this case, the D.C. Circuit prepared both a classified opinion and a redacted, public
version. See Notice of Filing of D.C. Circuit Mandate and Opinion [Dkt. 237]. In this Opinion,
the Court will cite to the public version where possible. The circuit's opinion provides a more
detailed summary of the record evidence. See Barhoumi, 609 F.3d at 418-19.
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Pakistan, in Febmary 2002,'' where he was arrested approximately I 0 days later "along with Abu
Zubaydah, who was also staying at the Faisalabad guesthouse." Jd. at 419. Mr. Barhoumi was
taken into U.S. custody in May 2002 and transferred to Guantanamo. Jd.
Mr. Barhoumi filed a petition for writ of habeas corpus in July 2005. Although
this Court dismissed his case after Congress passed the Military Commissions Act of 2006, 28
U.S.C. § 224J(e), it vacated that decision when the Supreme Court decided Boumediene v. Bush,
553 U.S. 723 (2008), and held that Guantanamo detainees have constitutional protections to file
writs of habeas corpus despite the MCA. After extensive briefing, an evidentiary hearing, and
oral argument, t.his Court denied Mr. Barhoumi's petition on September 3, 2009. See Order [Dkt.
21 9]. The Court, explaining its mling from the bench, concluded that Mr. Barhoumi was
lawfully detained because the evidence supported the government's claim that he was "part of'
Abu Zubaydah's militia, which was an "associated force ... engaged in hostilities against the
United States or its coalition partners" under the Authorization for Use of Military Force
(AUMF). 3 Barhoumi, 609 F.3d at 420.
As the D.C. Circuit noted on appeal, Mr. Barhoumi does not challenge the AUMF
detention standard, under which which the President is authorized "to detain persons who were
part of(,] or substantially supported, Tali ban or ai Qaida f()rces or associated forces that are
engaged in hostilities against the United States or its coalition partners ...." Barhoumi, 609
F.3d at 423. Nor does Mr. Barhoumi contest that the militia headed by Abu Zubaydah was so
3
Pub. L. No. 107-40, § 2(a), 115 Stat. 224,224 (2001) (reprinted at 50 U.S.C. § 1541note).
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associated within the meaning of the AUMF. !d. "The only dispute, then, is whether Barhoumi
wa.;;, as the district court found, 'part of' Zubaydah's organization." Id Both this Court and the
Circuit on appeal determined that the record demonstrated Mr. Barhoumi's participation by a
preponderance of the evidence. /d at 422-23 (rejecting Mr. Barhoumi's argument that "a
standard of at least clear and convincing evidence" should apply because that argwnent is
"toreclosed by circuit precedent" (citing Al-Bihani v. Obama, 590 FJd 866, 878 (D.C. Cir.
2010)).
After canvassing all of the evidence, the D.C. Circuit focused on: Mr. Barhoumi's
own statement that he was "trained at the Khaldan camp, which was associated with Zubaydah;"
the statement to the Federal Bureau of Investigation by another detainee that Mr. Barhoumi was
"captured along w i t h - at the Faisalabad guesthouse;" and the statement in the diary of
Abu IIIII al-Suri, which was recovered from the Faisalabad guesthouse, that Mr. Barhoumi was
a "Permanent" member of Mr. Zubaydah's militia (recorded under the name Ubaydah Al-Jaza'iri
(Ubaydah the Algerian) in the diary). !d. at 425-27.
Mr. Barhoumi now challenges these conclusions on two separate bases: first, that
he was so harshly questioned at Guantanamo Bay in March and April of2003 that none ofhis
later statements before the ARB or Combatant Status Review Tribunal ("CSRT") is reliable, see
Classified Mot. Relief("R. 60 Mot.") [Dkt. 232]; and second, that the true author of the al-Suri
diary was a teenager n a m e d - whose writings are, for various reasons, unreliable and
unrelated to Mr. Barhoumi. See Classified Mot. Supp. R. 60 Mot. [Dkt. 239].
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II. LEGAL STANDARD
Mr. Barhoumi argues that the final judgment against him should be vacated
pursuant to Rule 60(b)(2) of the Federal Rules of Civil Procedure. Rule 60(b)(2) provides that
'"the court may relieve a party ... from a final judgment, order, or proceeding" if the party
presents "newly discovered evidence which by due diligence could not have been discovered in
time for a new trial under Rule 59(b)." In order to receive relief under Rule 60(b)(2), a movant
must demonstrate that '"(I) the newly discovered evidence [is] of facts that existed at the time of
trial or other dispositive proceeding, {2) the [party seeking relief] must have been justifiably
ignorant of rthe evidence J despite due diligence, (3) the evidence must be admissible and of such
importance that it probably would have changed the outcome, and (4) the evidence must not be
merely cumulative or impeaching."' Lightfoot v. District of Columbia, 555 F. Supp. 2d 61, 66--68
(D.D.C. 2008) (quoting United States v. Int'l Bhd. ofTeamsters, 247 F.3d 370, 392 (2d Cir.
2001 )); see also Manhattan Ctr. Studios, Inc. v. NLRB, 452 F.3d 813, 817 (D.C. Cir. 2006). A
motion under Rule 60(b)(2) "must be made ... no more than a year after the entry of the
judgment or order or the date ofthe proceeding." Fed. R. Civ. P. 60(c)(l). The moving party
must show that the proffered evidence is "of such a material and controlling nature as will
probably change the outcome." 1n re Korean Airlines, I 56 F.R.D. 18,22 (D.D.C. 1994).
"!be Court finds that Mr. Barhoumi presents "new evidence" previously Wlknown
to his counsel and which existed at the time of the hearing on his habeas petition; that the unique
circumstances ofGuantanamo proceedings explain counsel's earlier lack ofknowledge of the
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interrogations of Mr. Barhoumi; 4 that the evidence of the interrogations of Mr. Barhoumi and the
alleged teenage author of the al-Suri diary would be admissible in a Guantanruno habeas
proceeding, although hearsay; and the evidence is not merely impeaching or cumulative, although
some of it is offered to impeach the provenance of the al-Suri diary. However, the Court cannot
agree that either type of evidence "probably would have changed the outcome." Dghtfoot, 555 F.
Supp. 2d at 68.
III. ANALYSIS
Mr. Barhoumi presents two kinds of newly-discovered evidence and argument:
first, in his Rule 60(b) Motion, that he was subjected to harsh interrogation during March and
April2003 so that no reliance can be placed on his later testimony, and second, in the Motion to
Supplement, that the al-Suri diary was authored by a plagiarizing teenager and not an Abu
Zubaydah contidant, so it is not reliable. Both certainly require serious consideration and cannot
be ignored. With such consideration, however, it becomes evident that neither is of such import
to the question of Mr. Barhoumi's role in the Zubaydah militia as to have affected the outcome of
this case.
4
As the government points out, Mr. Barhoumi himself was clearly in a position to
inform his lawyers of the 2003 interrogation. Classified Gov't Opp. R. 60(b) Mot. [Dkt. 235] at
15-16. In this environment, however, the Court places no weight on that fact, even though Mr.
Barhoumi is the Petitioner. Detainees at Guantanamo and their lawyers have great difficulty
communicating, visiting, and, most of all, establishing mutual trust. Fearing other terrorist
activity, the government has been slow and reluctant to share cJassificd information. Mr.
Barhoumi's counsel are working pro bono in the fmest tradition of the legal profession and
deserve the gratitude of the Court and the government. ll1e Court will not fault client or counsel
for lack of communication about interrogations that occurred two years before the petition was
filed.
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A. Harsh Interrogation Techniques
In his Rule 60(b) Motion, filed with the Court Security Officer on August 27,
2010, Mr. Barhoumi sought relief from the judgment against him and for sanctions against the
government for its failure to disclose exculpatory evidence before judgment was entered. The
motion was based on "over 600 pages of recently disclosed documents describing, among other
things, the government's exceedingly harsh and inhumane treatment of [Mr.! Barhoumi at
Guantanamo." R. 60(b) Mot. at 1. The initial tranche of documents was released on June 29,
20 I0, 18 days after the Circuit's opinion was posted (although 78 days before the mandate was
issued) and nearly a year after the habeas hearing on Mr. Barhoumi's petition, "with no credible
explanation for the extraordinarily late date of disclosure." R. 60(b) Mot. at 2. The Government
produced additional classified documents on August 24, 2010. ld
Mr. Barhoumi contends that his interrogations in March and April 2003 were
"severe, cruel, and dehumanizing." fd at 3. He specifically notes that a high-ranking military
officer expressed concern that some aspects ofthe interrogation '"may have exceeded the scope'''
of instructions, parti.cularly as it involved "'threats of transfer to a worse place or transfer to a
prison (where a detainee would be subjected to forced homosexual acts),"' which the officer
"'rna[d]e clear that [he] disapprovel_d].'" Id at 4 (quoting R. 60(b) Mot., Ex. 3 at 292 (26 May
2006 Memorandum from General Brantz Craddock, United States Southern Command)). Mr.
Barhoumi maintained silence during almost all of these interrogations, id at 4, but he appeared to
be affected by the interrogation techniques through obvious signs of stress and agitation. Id
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The Court has reviewed all the Memoranda for Record (MFRs) that recount these
R. 60(b) Mot., Ex. I, at 5 (March 1, 2003 MFR). Mr. Barhoumi had
earlier been questioned by the PBI and had answered some questions. During the March~ April
at 4. Counsel argue that this treatment in March and April2003 "could have impacted his
statements during subsequent CSRT and ARB proceedings." ld. at 5, see also id. ("Because the
Court relied extensively on Barhoumi's own statements ... , the Court may have reached a
different decision in this case had the government produced these documents when Barhoumi's
habeas petition was pending."). Counsel also argue that the "late~isclosed evidence, had it been
timely produced, may have had an impact on the ultimate outcome of this case." Id at 6.
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While the Court deplores the late production of the~>e documents, see below, it
cannot agree with counsel's argument that earlier disclosure would have affected the legal and
factual conclusions in the case. It is clear Mr. Barhoumi appeared at
. 60(b) Mot., Ex. 2, at 7-9 (March 2, 2003 MFR);
R. 60(b) Mot., Ex. 1 at 17 (March 5, 2003 MFR) .
.g., id at 18 (March 8, 2003 MFR)
when Mr. Barhoumi was left alone in the interrogation room with the interpreter, he engaged "in
a one hour two-way conversation" in which he advised the interpreter, among other things, that
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"the only reason he was talking now was to pass a message ... that he would never talk
regardless of how bad his life gets" and that "being placed in isolation only serves to make him[ ]
... stronger against interrogation." !d. at 22 (March 9, 2003 MFR).
Barhoumi again took the opportunity to talk to the interpreter when they were left alone, to
complain about the interrogators and their disrespect for his mother, as well as his need to pray.
!d. at 24-25 (March 10, 2003 MFR). When immediately given time to pray, Mr. Barhoumi told
his interrogator that "he is a good Muslim, and not a member of Al-Quada [sic]." !d. at 25.
Nonetheless, "he declined" to answer questions about his travel prior to capture. ld.
Mr. Barhoumi refused to talk at all during most of his interrogation sessions in the
period under scrutiny. He did speak to · t only to try to collect
information about the current situation in Iraq and the current disposition of Saddam Hussein.
Additionally, he complained about not being treated with respect." ld at I 08 (April 21, 2003
The personal strength ofMr. Barhoumi is evident.
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his statements to the FBI and others before the period of harsh interrogation are not affected by
the interrogation in 2003. Counsel offer no evidence that his later statements were affected,
either when testifYing before the CSRT in September 2004, 17 months after the harsh
interrogations ended, or before the ARB in January 2008, 57 months afterwards. To the contrary,
the current record does not support a conclusion that Mr. Barhoumi's will was overborne by the
interrogation in March and April2003, much less at any later time. 7 See Anam v. Obama, 696 F.
Supp. 2d l, 5-7 (D.D.C. 2010) (in Guantanamo habeas proceeding, holding that confessions
made during confinement at Guantanamo were tainted by prisoner's "harsh treatment" during
earlier interrogations in Afghan prisons, including
Counsel's breathless argument that
"[t]here can be no question that the treatment detailed in the government's late-disclosed
evidence constitutes torture under various accepted definitions, and that it had a lasting effect on
7
Mr. Barhoumi has knowledge of the impact ofthe March-April2003 interrogation on
his later statements, if any. Counsel's supposition that it "may have" affected his later testimony
before the CSRT and ARB is insufficient to carry the point.
8
This case is starkly different from Anam for three reasons. First, unlike Anam, there is
no evidence that Mr. Barhoumi suffered "harsh interrogation techniques" before arriving at
Guantanamo. Anam, 696 F. Supp. 2d at 7. Second, during the March-April2003 interrogations,
unlike the petitioner in Anam who confessed while being subject to interrogation, Mr. Barhoumi
never confessed, remaining steadfast in his refusal to cooperate. The presence of the first
coerced confession was key to the Anam court's finding that the later confession should be
· disregarded because "the interrogators at Guantanano ... reviewed Petitioner's coerced
confessions from Afghanistan and asked him to make identical confessions." Jd Third, the
nature of the of the in Anam
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Barhoumi's mental and physical state," R. 60(b) Mot. Reply (notice of filing at [Dkt. 238]) at 2,
does not constitute evidence of its truth. Counsel's certainty of a "lasting effect" on Mr.
Barhoumi's psyche from interrupted sleep patterns and repetitive rounds of harsh questioning for
two months in 2003 is completely unsupported. The Court intimates no judgment about the
nature of the March-April 2003 questioning of Mr. Barhourni, finding only that there is no
evidence that it aflected his later statements to the CSRT and ARB. It provides no reason,
therefore, to reopen this matter.
8. Delayed Release of llocumentation
Counsel for Mr. Barhoumi also seek sanctions against the government pursuant to
Federal Rules of Civil Procedure 37(c)(l)(A) and (C) for its failure to produce these documents
on a timely basis when his petition was pending. SeeR. 60(b) Mot. at 8. Because counsel are
based in Denver, Colorado, and were required to make two unexpected trips to the secured
facility in Washington to review the documents and prepare their motion, they seek money
sanctions to pay for their trips and time. !d.
Government counsel argue that they fulfilled their obligations fu!Jy, regularly
supplementing discovery with arguably exculpatory evidence as the Amended Case Management
Order required and as such evidence was identified. See Gov't Opp. R. 60(b) Mot. at 5-8
(explaining history of production of documents in this case). The government notes that Mr.
Barhoumi did not seek any discovery relating to questioning in 2003 and never mentioned his
interrogation, so government counsel (located in the District of Columbia) did not seek any such
documentation from Guantanamo. Further, government counsel's review ofmaterials for
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exculpatory evidence relating to Mr. Barhoumi did not include review of materials assembled hy
the Guantanamo Review Task Force pursuant to Executive Order 13,492, 74 Fed. Reg. 4897(Jan. 22, 2009), because it was neither sought by Mr. Barhoumi nor ordered by the Court. Gov't
Opp. R. 60(b) Mot. at 6 (citing Decl. ofTerry M. Henry, Assistant Branch Director, U.S. Dep't
of Justice, 1,[ 5-9)). Only in the spring of2010, when searching Task Force records for
information on Mr. Barhoumi because one or more of his interrogation statements was being
used in the case of Alhag (JSN 686) v. Ohama, No. 05-cv-21 99 (HHK), did government counsel
discover the instant MFRs and other docwnents concerning his interrogation. ld at 7. They then
sought authorization to disclose these classified documents to Mr. Barhoumi's lawyers in June
20 I 0 and, upon further searches and evaluation for classii1cation, disclosed a second tranche of
documents in August 2010.
A Case Management Order was issued by the Court in all of the Guantanarno
cases in 2008, and it was adopted in this case as amended on December 16, 2008. See Amended
Case Management Order ("CMO"), fDkt. I 54]. The CMO ordered the government to disclose
all "reasonably available evidence," defined to mean "evidence contained in any infimnation
reviewed by attorneys preparing factual returns for all detainees" as well as "any other evidence
the government discovers while litigating habeas corpus petitions filed by detainees at
Guantanamo Bay." !d. § I.D.l. The Court's careful definition recognized that the United States
could have infom1ation aboutthe detainees spread across the world in various operations of war,
to which government lawyers on the habeas cases did not have access. However, all documents
on which the government relied to support detention or which it discovered during the litigation
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of these habeas cases were ordered released so that both parties would have equal knowledge.
The specific evidence at issue-MFRs on the interrogations of Mr. Barhoumi at Guantanamo in
2003 and the alleged teenage author of the al-Suri diary-was collected for purposes of the Task
Force appointed by President Obama in January 2009, well after Mr. Barhoumi's 2005 habeas
petition. Despite the CMO, without a specific request from Mr. Barhoumi 's lawyers or order
from this Court, government counsel did not search the Task Force data base to augment their
discovery in this case.
This Court agrees with Mr. Barhoumi's lawyers that government counsel were
required by the terms of the CMO to search for, locate, and produce the documents in question
once they were gathered for purposes of the Task Force. The documents should have been
disclosed earlier. The defense that Mr. Barhoumi's lawyers did not specifically request and the
Court did not specifically order such disclosure in this case is unavailing. The Task Force was
convened under the auspices of the Attorney General, ultimate supervisor of government counsel
here, and information known to it could not be ignored as "not reasonably available" to these
Department of Justice counsel. See Executive Order 13492, 74 Fed. Reg. at 4898 ("['r]he
Attorney General ... shall coordinate the Review .... "). Thus, the Court agrees with Mr.
Barhoumi's counsel that a violation of the CMO occurred.
9
The CMO recognized that certain circumstances could arise in whjch the information to
be disclosed to petitioner's counsel was classified and the government objected to disclosure.
CMO § l.F. There is no such issue here. See Mousovi v. Obama, No. 05-1124, 2013 WL 97355,
at *4-5 (D.D.C. Jan. 9, 2013) (discussing AI Odah v. United States, 559 F.3d 539 (D.C. Cir.
2009) and concluding that Top Secret material need not be disclosed to a petitioner's counsel
even if relevant despite the fact that the Court could review it).
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Even so, the Court finds that no sanction is appropriate. Even assuming arguendo
that the discovery provisions of the Federal Rules provide authority for sanctions in Guantanamo
habeas proceedings, justice does not require entry of any of the sanctions available under either
Rule 37(b) or 37(c)(1 ). 10 See Fed. R. Civ. P. 37(b)(2)(A) (providing that a Court "may issue
further just orders" upon a discovery violation (emphasis added)), Fed. R. Civ. P. 37(c)(l)(A)
(providing that for a failure to disclose a court "may order payment of ... reasonable expenses"
(emphasis added)). "The central requirement of Rule 37 is that 'any sanction must be just."'
Bonds v. District ofColumbia, 93 F.3d 801, 808 (D.C. Cir. 1996) (quoting Ins. Corp. v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 707 (1982)). The law governing habeas
proceedings, including the disclosure requirements that were breached here, was too much in flux
to justify an award of sanctions. Whether Mr. Barhoumi even had the right to t1le this
proceeding was unsettled until Boumediene was decided in 2008, and the very discovery
provision requiring this disclosure, § l.D.l, was changed between the original Case Management
Order issued by Judge Hogan on November 6, 2008, and the amended CMO. Under the original
order, the government arguably complied with its obligations. Moreover, the Henry Declaration
submitted by the government shows that Mr. Barhoumi's counsel received the first tranche of
10
Mr. Barhoumi, relying primarily on Ninth Circuit precedent, asks the Court to find that
the government is not immune from an award of sanctions under Rule 37. SeeR. 60(b) Mot.
Reply at 8. Government counsel respond that Mr. Barhourni's Ia~yers cannot collect money
damages from the United States, which enjoys sovereign immunity. See, e.g., FDIC v. Meyer,
510 U.S. 471, 475 (1994) (absent a specific waiver, the United States government is protected
from suit by the doctrine of sovereign immunity); see also Clark v. Library ofCongress, 750
F .2d 89, I 03 (D.C. Cir. 1984) (sovereign immunity bars suits for money damages against public
officials sued in their official capacities absent a specific waiver). Because the Court concludes
that sanctions arc not appropriate, the Court docs not reach Mr. Barhoumi's argument.
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materials within a month ofDOJ counsel becoming aware oftheir existence. Henry Decl. ,~ 8,
10. In these circumstances, the Court finds that no purpose would be served by granting Mr.
Barhoumi's motion for sanctions.
C. Author of "ai-Suri Diary"
On review, the D.C. Circuit stated that "the central issue in this case" is whether
"the al-Suri diary is sufficiently reliable." Barhoumi, 609 F.3d at 424. "Applying the reliability
requirement set torth by this court in Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008), we
conclude that the district court did not clearly err in relying on the diary." ld The Supplement to
Mr. Barhoumi's Rule 60(b) motion challenges directly the authorship ofthc ai-Suri diary. The
Court will grant Mr. Barhoumi's motion for leave to file his Supplement to his Rule 60(b)
Motion and considers it in conjunction with his original motion under Rule 60(b).
"To begin with," Mr. Barhoumi "was captured along with Zubaydah at the
Faisalabad guesthousc, a fact he acknowledges. Barhoumi also acknowledges that he trained at
the Khaldan camp." Barhoumi, 609 F.3d at 425; see also id ("[T]he government's assertion here
that Zubaydah ran the Khaldan camp is backed up by testimony from a self-professed Khaldan
trainee who, in proceedings having nothing to do with Barhoumi and which predated the
September ll, 2001, attacks, attested to Zubaydah's connection to K.haldan. "). According to
Circuit precedent, these facts alone may be sufficient to warrant Mr. Barhoumi's detention. Id at
425,427.
Beyond these facts, the Circuit identified the last page of the al-Suri diary, listing
Mr. Barhoumi as a "Permanent" member of the Zubaydah forces, as "perhaps the most probative
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record evidence that [Mr. Barhoumi] was in fact 'part of Zubaydah's associated force." /d. at
425. In rejecting Mr. Barhoumi's challenge to the diary, the Circuit described it as "more than 65
pages of detailed observations recorded by a self-professed associate of both Zubaydah and
Barhoumi." Id. at 428. After evaluating the diary's "internal coherence as well as its consistency
with uncontested record evidence," the Court of Appeals "conclude[d] that the al-Suri diary
contains sufficient.indicia of reliability to justify the district court's reliance on it." Id In
reaching that conclusion, the D.C. Circuit rejected Mr. Barhoumi's attempt to analogize his case
to Parhat v. Gates, 532 F.3d 834·(D.C. Cir. 2008), in which the Court found intelligence reports
"inherently unreliable." Barhoumi, 609 F.3d at 428-29 ("The al-Suri diary is therefore a far cry
from the 'bare assertions' deemed unreliable in Parhat, 532 F.3d at 847, as it possesses both
endogenous and exogenous indicia of reliability.").
In his Supplemental Motion, Mr. Barhoumi contends that "[t]he evidence
submitted in conjunction with this Motion is significant and calls into question the reliability of
the al-Suri diary." Mot. Supp. R. 60(b) Mot., 4. Comparing the past lack of information on the
identity of the diary's author, Mr. Barhoumi argues:
Now, thanks to a recent government disclosure in another case, we do
know who al-Suri is, and documents obtained from another case
reveal that the ai-Suri diary is nothing more than a combination of
pages of a diary authored by a teenager n a m e d - · who
included miscellaneous pages from the historical works of Sheik
Abdullah Azzaz that describe Soviet/Afghani hostilities from years
before the present war on terror even began.
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11
Mr. Barhoumi's argument is based on the govcmment's description ofthe author of
the diary in a pleading filed in Ali (JSN 685) v. Obama, No. 10-cv-1 020 (RJL), another
Al-Suri, is the same person as-,
Guantanamo habeas case, a s · - aJ-Suri, a k a - Al-Suri." Mr. Barhoumi claims
t h a t - al-Suri, a teenager who
allegedly kept a diary and included in it miscellaneous pages from the historical works of Sheik
Abdullah Az..zam.
At the outset, it bears noting that the authorship of the al-Suri diary is irrelevant to
a large extent. Neither this Court nor the D.C. Circuit relied on the identity of Mr. al-Suri to find
his diary persuasive. See Barhoumi, 609 F.3d at 429 ("[A]lthough it is true, as [Mr.] Barhoumi
emphasizes, that the govcrrunent has provided no information about al-Suri, the diary itself
suggests that al-Suri possessed first-hand knowledge of Zubaydah and his organization."). It was
the diary's "more than 65 pages of detailed observations" with "internal coherence [and] ... its
consistency with uncontested record evidence," that lent it authority. Jd at 428. Whether written
by a man named al Suri or a man n a m e d - , the diary itself carries the same hallmarks
of credibility and reliability.
Recognizing this, Mr. Barhoumi's counsel attempt to transform the al-Suri diary
into something entirely different. Relying primarily on analyses by tmnamed persons working for
detainee Abdal Razak Ali (ISN 685), Mr. Barhowni's lawyers argue that a comparison between
English translations ofthe al-Suri diary and Sheik Azzaro's writings demonstrate that the former
11
Mr. Barhoumi relies on the government's Amended Narrative Regarding Petitioner
Abdal Razak Ali (ISN 685), which refers t o · - al-Suri, a k a - Al-Suri." Id ~ l 0.
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is, in large part, plagiarized from the latter. Although they cite 56 of the al-Suri diary's 63 pages
that allegedly "describe battles and individuals related to the Soviet invasion reflected in
Azzam's writings and books," Mot. Supp. R. 60(b) Mot.~ 17, counsel provide no expert analysis
or other support for their statement. Only in their Reply do counsel for Mr. Barhoumi offer a
12
chart that notes small similarities, such as: references to the name Abu Ubaida (or Ubaydah), a
name admittedly used by Mr. Barhoumi and mentioned in the al-Suri diary, compared to
approximately the same name with different spellings in The Signs of the Merciful in the Jihad of
the Afghan and The Lofty Mountain, written by Sheik Azzam; a reference to "green birds" in the
al-Suri diary compared to "hearts of green birds" in The Lofty Mountain; a reference to "shining
lights from the graves of Arab martyrs in Qandahar" in the al-Suri diary compared to light
coming from "a Shaheed" and "Suraquah" in The Lofty Mountain and The Signs <~{the Merciful
in the Jihad of the Afghan, respectively; references in the al-Suri diary that "Tali ban bodies do
not decay" and their blood remains hot after death compared to references in The Signs ofthe
Merc(ful in the Jihad of the Afghan to lack of rot in the bodies of martyrs and their fresh flowing
blood a year after death; plus similar, limited, comparisons. See Reply Mot. Supp. R. 60(b) Mot.
at 2-5.
12
Abu Ubaydah was a kunya admittedly used by Mr. Barhoumi; the evidence indicates
that he kunya is used to conceal true identities. See generally
Kunyas, Aliases and Variants" (Sept. 19, 2009)
(exhibit to the Factual Return) at 2 (Redacted version available as Exhibit to Public Factual
Return, [Dkt. 259-2] pages 39-51). "Because Arabic and English have several letters
representing sounds that do not correspond directly, several letters or letter combinations are used
to represent the same sound. For example, 'Noor' and 'Nur' are two variants of the same word.
Additionally, 'AI,' 'Ul,' and 'Ur' are commonly interc~d 'Uddin."'
Gov't Opp. Mot. Supp. R. 60(b) Mot. at 9 n.IO (citing~ecl).
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Assuming that this evidence should be considered at all, despite its tardy
presentation in a Reply brief, it is not persuasive. The adoption of words, phrases and revelations
from early holy works by devout followers writing later commonly demonstrates continuity of
religious belief, not identical authorship. While it makes no finding, having insuflicient Islamic
scholarship and no access to the original writings in their original languagc(s), the Court
concludes that the similarities among the three writings relied upon by Mr. Barhoumi do not
carry his argument. They are certainly not sufficiently persuasive to say that they probably
"would have changed the outcome" of the case. Lightfoot, 555 F. Supp. 2d at 66-68.
Further, however, Mr. Barhoumi cites interview reports that a teenager named
- was staying at the guesthouse in Faisalabad when Mr. Barhoumi and Mr. Zubaydah
were apprehended there; t h a t - was most knowledgeable about computers among
those at the guesthouse; and that IIIII. was attempting to upload a book he had written
about the life ofSheik Azzam. Mot. Supp. R. 60(b) Mot.,, 12-16, 19. Mr. Barhoumi contends
that these facts demonstrate that the · - al-Suri, a k a - AI-Suri"-identified by the
government in AIi v. Obama as author of the ai-Suri diary-is r e a l l y - · whose written
references to Abu Ubaida (or Ubaydah) in the al-Suri diary did not refer to Mr. Barhoumi. 13 !d.
,, 10-12.
13
Establishing- as the diary's author supports Mr. Barhoumi's argument that
he was not "part of' Zubaydah's forces because, according to Mr. Barhoumi,- had not
seen Zubaydah prior to March 2002 and thus "could not possibly have been a 'close associate' of
Zubaydah at the time ofthe March 28, 2002 raid." Mot. Supp. R. 60(b) Mot. ,119.
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Counsel put too much weight on the name similarity when the real Arabic names
contain sounds not readily translated into English and it is doubtful that many records contain
persons' true names. Seen. 12, supra. The instant record contains multiple similar names
referencing obviously different persons who were staying in the Faisalabad guesthouse,
undercutting Mr. Barhoumi's argument that the t e e n a g e r - must have been the author
ofthe al-Suri diary. An FBI report, for example, reflects an interview o - a
computer specialist. See Mot. Supp. R. 60(b) Mot., Ex. Cat 1 (June 13, 2002 FBI FD-302
Report) ('. . advised that he had helped/taught others to use and set up email accounts on the
computer.") The computer specialist- at times used the k u n y a - and sustained
gunshot wounds in the raid of the Faisalabad guesthouse, during which he was seized. !d . .
-
photograph. .
as·-
the computer specialist identified a photograph
clearly other than himself,
someone
from the Faisalabad safehouse." Id at 4 (referencing
In another FBI interview, the computer specialist-identified
by the FBI as Mot. Supp. R. 60(b) Mot., Ex. D
(Investigative Report) at 1-said that he had been most knowledgeable about the computer
among those at the Faisalabad guesthouse, id at 20, and had been shot in the stomach and his
right hand, id. at 26. also arrival at the safehouse,
u s i n g - k u n y a , - /d. at 16-17. the computer specialist said
that he had never s e e n - before but that greeted
- a s he arrived." /d. Notably, the computer specialist also stated that
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email account at the Faisalabad safehouse for Id at 20. When
Pakistani police raided the safehouse, its occupants fled to the roof. Id. was
among those on the rooftop where he sa with Mr. Barhoumi
(identified as Shafiq). Id. at 25. Thus, based on the evidence Mr. Barhoumi himselfhas
submitted, his preferred a u t h o r , - reported others of approximately the same name
being at the same location at the same
time.
Additional exhibits submitted by Mr. Barhoumi recount interviews with Ahmed
Bin Kadr Labed (ISN 703), in which Mr. Labed referred to both. . the computer specialist
5
and a second. . at the Faisalabad safehouse. See Mot. Supp. R.
60(b) Mot., Ex. G (Mar. 3, 2006 ISN 703 Report of!nvestigative Activity) (referencing~
14
- the computer specialist, indicated that he purchased various supplies for
Mr. Barhoumi/Shafiq to train on and build remote controls. Id at 21-24. Shafiq was training
"Jubran" on electronics and was very secretive. ld. at 24, 28. Mr. Barhoumi's own Exhibit F, a
report of an interview of ISN 696, indicates that "S [h]afiq, who had a deformed hand, was one of
the trainers from the training camp at Faisalabad. Shafiq taught how to weld and fix electronic
bombs." See Mot. Supp. R. 60(b) Mot., Ex. F (Aug. 8, 2002 Report of Investigative Activity of
ISN 696).
15
Mr. Labed "stated. . had a computer in his room, and was very knowledgeable
about computers. Mr. Labed stated one of the projects[] Illwas attempting was placing a book
on the internet, which was written by Abdullah Azzam, so others could read it." See Mot. Supp.
R. 60(b) Mot., Ex. G (Mar. 3, 2006 ISN 703 Report ofinvestigative Activity) at 3.
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and Noor Uthrnan Muhammad, known as Sarnir), and id, Ex. H 16 (Oct. 24, 2002 FBI FD-302
Report) Finally, the author of the al-Suri diary
himself referred in the third person to . . as a computer specialist who had joined them
recently:
BrotheriiiiAt-DinAI-((Muhtasab)) (he is the brother amongst the
many who entered Afghanistan recently and since he is specialized in
computers, he joined our group so that my friend [Zubaydah) could
benefit from his expertise)[.]
may or may not be-
Mot. Supp. R. 60(b) Mot., Ex. I (al-Suri Diary at 6. This particular . .
who also was known a s - and who had "recently" joined
them. See June 13, 2002 FBI FD-302 Report at 1; Mot. Supp. R. 60(b) Mot., Ex. E (Dcp't of
Defense Intelligence Report) at 4 ('-taught computer training at the safe house ... known to
interviewers ");Mar. 3, 2006 ISN 703 Report oflnvestigative
Activity at 1--3; Oct. 24,2002 FBI FD-302 Report at 6-7. The al-Suri diary names '. . AI-
Din AI-Muhtassib AI-Suri" as a permanent member of Abu Zubaydah's force, along with Abu
Kamil al-Suri ("Myself, A b u - al-Suri: Permanent") and Mr. Barhoumi ("Ubaydah al-
Jaza'iri: Permanent"). See al-Suri Diary at 67 (lines 2, 5 and 8).
16
Interviewed on October 22 and 23, 2 0 0 2 , - said that . . "was a 24 year old
Syrian who spoke English and sounded educated. He would teach some of the brothers about
using the computer. He t o l d - that he resided in Saudi Arabia. He t o l d - , while
they were in Pakistani prison together, that he was going to receive $50,000 when he finished a
book he was writing about Sheik Azzam, the man who was Osama Bin Ladin's mentor." Mot.
Supp. R. 60(b) Mot., Ex. H (Oct. 24, 2002 FBI FD-302 Report) at 5-6.
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"The party seeking relief from judgment has an onerous standard to meet." lnt 'I
Bhd ofTeamsters, 246 F.3d at 392. Not only must he present "new evidence," but he must show
that his new evidence is so sufficiently material and important that the previous result, had the
new evidence been knovm, would probably be changed. !d. Mr. Barhoumi argues that his new
evidence suggests a different author of the al-Suri diary, but he fails to support his are,rument that
the al-Suri diary is actually plagiarized from Sheik Azzam. He also fails to deal with the
evidence of multiple persons with approximately similar names at the faisalabad guesthouse at
the time in question, or the fact that his proffered author of the al-Suri d i a r y , - himself
reported on the presence of such similar persons, as did others in a variety of investigative reports
and settings.
Confusion about a fact is not evidence that a contrary fact is more accurate. At
best, Mr. Barhoumi has offered evidence that a young man knovm as- whose name might
have b e e n - , had knowledge of computers, was interested in Sheik Azzam, and stayed
at the Faisalabad guest house when it was raided. was 11"riting a book
about Sheik Af..zarn or merely trying to upload a copy of one of Sheik Azzam 's books is unclear.
See Mol. Supp. R. 60(b) Mot.~ 14 (arguing that Mr. Labed's statement . . . was attempting
was placing [sic] a book on the intemet, which was written by Abdullah Azzarn, so others could
read it," from the Mar. 3, 2006 ISN 703 Report oflnvestigative Activity at 3, shows . . . was
... writing a book about Sheik Abdullah Azzam"). But nothing in the record suggests that. .
- was keeping a diary and, as explained above, nothing in the commonality of small
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phrases used in the diary and used by Sheik Azzam demonstrate that the diary is actually
plagiarized from Sheik Azzaro's books, as Mr. Barhoumi contends.
Mr. Barhoumi argues that his new evidence shows that much of the text of the al-
Suri diary comes from the writings of Sheik Azzam and refers to different times, places and
people and that the author of the al-Suri diary was reaily a young man with no attachment to Abu
Zubaydah or Mr. Barhoumi. His first challenge fails for lack of substantive support beyond
lawyer argument. His second challenge fails for want of persuasive evidence that it is more
likely true than not.
IV. CONCLUSION
The movant under Rule 60(b){2) must satisfY each part of a rigorous four-part test
to gain relief. See Lightfoot, 555 F. Supp. 2d at 66--68. This Court has studied Mr. Barhoumi's
briefs, exhibits and contentions at length. He has notshown that the evidence he presents now, if
available before, would probably have made a difference to the outcome of his petition for a writ
of habeas corpus. Accordingly, his motion will be denied. A memorializing Order will be
entered on the public docket, and this Opinion will be submitted to the Court Security Officer for
classification review.
DATE: June 5, 2013
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ROSEMARYM. COLLYER
United States District Judge
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