Awad v. Bush ( 2009 )

UNCLASS|F|ED//FOR PUBL|C REtEASE
F¢Lso wnH
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ADHAM MOHAMMED ALI AWAD
Petitioner, : Civil Action No. 05-CV-2379
v. ~
BARACK H. OBAMA, et al.,
Respondents.
MEMORANUM ORDER DENYING WRIT OF HABEAS CORPUS
. . bU%b@)
Adham Mohammed Al Awad, a citizen of alleges
that he is illegally detained at Guantanamo Bay Naval Base
and petitions this Court for a writ of habeas corpus to
secure his release. The parties have cross-moved for
judgment on the record. The government's motion will be
granted.
I. Background
Awad has been in U.S. custody since his capture in
Afghanistan on N2) He filed his petition
four years ago, but that petition and hundreds like it were
put on hold until various legal issues, including the
jurisdiction of this Court, were resolved. After the
Supreme Court held that detainees like Awad have a right to
bring habeas petitions and that federal district courts
have jurisdiction to hear them, Boumediene v. Bush, 553
U.S. ---, 128 S. Ct. 2229, l7l L.Ed.2d 41 (2008), and after
_ 1 _
UNCLASS|FlED//FOR PUBL|C RELEASE
UNCLASS|F|ED//FOR PUBL|C RELEASE
Judge Hogan issued his omnibus Case Management Order that
has guided the Guantanamo habeas cases' procedures, this
case moved on to the merits.
The government filed a factual return asserting the
grounds on which Awad is detained - the claim is that he is
an al Qaida fighter - and the evidence supporting that
claim. Awad then made several requests for discovery. I
denied some of those requests outright and denied others
without prejudice to their later renewal with the kind of
specificity required of motions under Fed. R. Civ. P.
56(f). Awad submitted his traverse without renewing his
discovery requests. Both sides then moved for judgment on
the record and a hearing on those cross-motions was held on
July 3l, 2008.
The government's core narrative is that Awad
volunteered or was recruited for Jihad soon after September
ll, 2001 and traveled from his home in %1%b to
Afghanistan; that he trained at the Al Qaida “Tarnak Farms”
camp outside Kandahar; that Awad and a group of other Al
Qaida fighters were injured in a U.S. air strike at or near
the airport in Kandahar and went to Mirwais Hospital for
treatment; that these men then barricaded themselves in a
section of the hospital; that U.S. and associated forces
laid siege to the hospital; that Awad’s comrades gave him
_ 2 _
UNCLASS|F|ED//FOR PUBLIC RELEASE
UNCLASS|FlED//FOR PUBL|C RELEASE
up because they could not care for his severely injured`` -
bU) and that, after Awad’s
capture, his al Qaida comrades fought to the death.
The government offers five groups of evidence in
support of their narrative: (l) Intelligence reports of
Awad’s statements to interrogators; (2) statements of a
, N1LN5) _ ,
former Guantanamo detainee named who was inside
Mirwais Hospital during the siege and who gave a list of
names and descriptions of the Al Qaida fighters, including
a man with an bm who went by the name :(25)``
a list found at Tarnak Farms bearing the name
and several of the names that also appear_
b(l),b(€) .
_on list of names; and (5) newspaper
articles published in American newspapers about the siege
at Mirwais Hospital.
1 A kun a is traditional, honorific nickname.
Decl. at 2. A man's kunya will often
e the word "abu" - literally translated to mean father -
and then th ' first born child. Id. According
to Al Qaida members also use kunyas
as onori ic pseudonyms. Id. These kunyas are not
dependent on whether an individual is a father and are
sometimes used to conceal a true identity.
_ 3 _
uNCLASSlF\ED//FOR PuBLlC RELEASE
uNcLAsslFlED//FOR Puauc RELEASE
Petitioner's story is that he traveled to Afghanistan
in mid-September 2001 in order to visit another Muslim
country for a few months, intending to return home after
his visit; that in early November 2001 he was injured and
knocked unconscious during an air raid while walking
through a market in Kandahar; that he woke up in Mirwas
Hospital after part of hisbU) - that he
was heavily medicated, floated in and out of consciousness,
slept constantly, and could barely sit up; and that he
remained in this condition until his capture.
Awad's case relies mostly on weaknesses and holes in
the government's evidence, but, in support of his
narrative, he submits an unsigned affidavit, a declaration
from his counsel, and different intelligence reports of
different statements made to interrogators.
II. Lega1 Standards
The President is authorized 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 ll, 2001, or harbored such
organizations or persons, in order to prevent
any future acts of international terrorism
against the United States by such nations,
organizations or persons.
Authorization of Military Force, Pub. L. 107-04, 115 Stat.
224 (200l).
_ 4 _
uNCLAS$FEDNFoRPuBuCRELEASE
UNCLASS|F|ED//FOR PUBL|C RELEASE
A. Substantia1 Support
The government's position is that:
[t]he President has the authority to detain
persons that the President determines
planned, authorized, committed, or aided the
terrorist attacks that occurred on September
ll, 2001, and persons who harbored those
responsible for those attacks. The President
also has the authority to detain persons who
were part of, or substantially supported,
Taliban or al-Qaida forces or associated
forces that are engaged in hostilities
against the United States or its coalition
partners, including any person who has
committed a belligerent act, or has directly
supported hostilities, in aid of such enemy
armed forces.
Respondent's Revised Memorandum Regarding the Government's
Detention Authority Relative to Detainees Held at
Guantanamo Bay at p. 3 (emphasis added).
In a thoughtful decision that has been followed by
many if not most of the judges of this Court, Hamily v.
Obama, 2009 WL 1393113 (D.D.C. 2009), Judge Bates wrote
that the “key inquiry” when analyzing the “part of . . . al
Qaeda” test is “whether the individual functions or
participates within or under the command structure of the
organization-i.e. whether he receives and executes orders
or directions.” Hami1yg 2009 WL 13931l3 at * 8 (internal
citations omitted). I have adopted Judge Bates' approach.
_ 5 _
uNcLASSlFlED//FOR PuBLlc RELEASE
UNCLASS|F|ED//FOR PUBL|C RELEASE
B. Hearsay, Authenticity, Chain of Custody
The government's case relies on “raw” intelligence
data, multiple levels of hearsay, and documents whose
authenticity cannot be proven (and whose provenance is not
known and perhaps not knowable). Awad argues that such
evidence should excluded because the government has not
made individualized showings that “the hearsay evidence is
reliable and that the provision of nonhearsay evidence
would unduly burden the movant or interfere with the
government's efforts to protect national security.” CMO II
(A). The government responds generally (not with
individualized showings) that its intelligence documents
are reliable because they were created during the
intelligence gathering process and explains generally why
the presentation of non-hearsay evidence would be a burden.
The government urges that documents and reports generated
for intelligence purposes should be accorded a presumption
of reliability and credibility.
The suggestion of a presumption of reliability and
credibility goes too far because it would seem to place the
burden of rebuttal on the petitioner. I have instead
~formally “received” all the evidence offered by either side
but have assessed it item-by-item for c0nsistency, the
conditions in which statements were made and documents
_ 5 _
uNCLASmFEDnFoRPuBuCRELEAsE
UNCLASS|F|ED//FOR PUBL|C RELEASE
found, the personal knowledge of a declarant, and the
levels of hearsay. In other words, I have given the
evidence the weight I think it deserves.
C. Burden of Proof
The government had the burden of proving the
lawfulness of detention by a preponderance of the evidence.
CMO II (A); accord, Al Bihani v. Obama, 594 F. Supp. 2d 35(D.D.C. 2009); Ali Ahmed v. Obama, 613 F. Supp. 2d 51 (D.D.C.
2009), The burden of proof never shifted to Awad. No
inference was drawn from Awad's decision not to testify or
from his failure to sign or swear to his affidavit.
D. Detention for the Continuation of Hosti1ities
1 acknowledge the power of Judge Huvelle's argument in
Basardh v. Obama, 612 F. Supp. 2d 30, 34 (D.D.C. 2009), that
“the AUMF does not authorize the detention of individuals
beyond that which is necessary to prevent those individuals
from rejoining battle,” but I decline to follow it in this
case and have not considered whether or to what extent the
continued detention of Awad supports the AUMF's self-stated
purpose of “prevent[ing] future acts of international
terrorism,” Pub. L. 107-O4, 115 Stat. 224. Awad is a
marginally literate who has spent more than seven
of his twenty six years - since he was a teenager - in
American custody. lt seems ludicrous to believe that he
_ 7 _
uNCLASSFEDNFoRPuBuCRELEASE
UNCLASS|F|ED//FOR PUBL|C RELEASE
poses a security threat now, but that is not for me to
decide. Combat operations in Afghanistan continue to this
day and - in my view - the President's “authority to detain
for the duration of the relevant conflict” which is “based
on longstanding law-of-war principles” has yet to
“unravel.” See, Hamdi v. Rumsfeld, 542 U.S. 507, 521
(2004).
III. The Evidence
A. “Then why He Here”
2
2 In his affidavit, Awad claims that any incriminating
statements he made were made “as a result of torture, the
threat of torture or coercion and are therefore
unreliable.” Awad Aff. I 5; Jones Aff. I 7. The only
specific allegation of coercion is the claim that
interrogators threatened to withhold medical treatment
_ 3 _
uNCLASSlFlED//FOR PuBLIC RELEASE
UNCLASSIF|ED//FOR PUBL|C RELEASE
until Awad provided them information. The government
retorts that interrogators’ notes reveal that Awad was
provided care and that he used his medical condition as an
excuse to avoid answerin difficult o_\_- ``
uNcLAsslFlED//FoR Puauc RELEASE
UNCLASSlF|ED//FOR PUBL|C RELEASE
B. Training
The name “Abu Waqas” appears twice (once crossed out)
on a list of names found in a one hundred page document
retrieved from Al-Qaida’s “Tarnak Farms” training camp in
Kandahar sometime after that facility was taken by U.S. and
associated forces.3 An intelligence
report states that the document also contains notes on
small arms and sniper training instruction, and aiming and
distance calculations.
Awad denies any association with the name “Abu Waqas,”
but this denial is not credible. He has identified himself
on at least one occasion as “Waqqas Adham Mohammed Ali Ala-
Awad.” ISN 88 FD-302 (May 4, 2002).
petitioner's counsel fine-tuned the argument to an
assertion that Awad never used the honorific “Abu” before
“Waqas.” That position is inconsistent with the other
evidence. “Abu” appears before 53 of the 59 names on the
_ D2 D3
Tarnak Farms list.
Decl. at 2.
3 There is no dispute that Tarnak Farms was an Al aida p
that provided advanced training. See, generally,
Decl.
.. __
UNCLASS|F|ED//FOR PUBL|C RELEASE
UNCLASS|F|ED//FOR PUBL|C RELEASE
Except for the appearance of what seems to be his name
on a list, however, the evidence that Awad received
training at Tarnak Farms is nonexistent. we do not know
the purpose of the list or when it was written.
Even the
translator claimed only that it was “possibly” a list of
b(l)
b(1)
b 2
implausible, but, in the absence of better evidence on the
government's side, I find the claim of Tarnak Farms
training to be unsupported.
_]_]__
uNcLAsmFmouFoRPuBucRELEAsE
UNCLASS|F|ED//FOR PUBL|C RELEASE
C. Mirwais Hospital
The government relies mostly on newspaper articles to
provide background information on the barricade and siege
at Mirwais Hospital.4 Awad has not asked that I disregard
those articles, conceding that “they are informative on
certain points." Tr 55:1-8. 1 will accordingly consider
the articles sufficiently reliable on points that are not
seriously disputed: that Al Qaida fighters entered and
barricaded themselves inside the Mirwais Hospital at some
time during the first week of December 200l; that U.S. and
affiliated forces laid siege to the hospital; and that the
siege ended in late January 2002 when U.S. associated
forces confronted and killed the remaining members of the
Al Qaida group. I will also turn to these articles to fill
in evidentiary gaps when there is corroboration.
Awad concedes that he was captured in the Mirwais
b(l)
Hospital on Tr 53:21-25, The
government's primary evidence of Awad's involvement that he
4 Karl Vick, Hospital Detention of Arab Fighter Ends with
Suicide, Wash. Post, Jan 8, 2002, at A12; Drew Brown, Al-
Qauda Group Holed up in Hospital, Phil. Inq., Dec. 30,
2001, at AlO; Pamela Constable, Kandahar Hospital Seige
Ends in al Qaeda Deaths, Wash. Post, Jan 28, 2002, at A12;
Thomas E. Ricks & Karl Vicks, U.S. Reports Calm in
Afghanistan on Christmas Eve; At Kandahar Hospital, Arrest
Brings Gunfire, wash Post, Dec. 25, 2001, at A2l; Drew
Brown, Armed Patients, Not the Sick, Biggest Concern at
Hospital, Miami Herald, Dec. 26, 2001, at 21A.
_ ..
UNCLASS|FlED//FOR PUBL|C RELEASE
UNCLASS|F|ED//FOR PUBL|C RELEASE
participated in the siege is statements by
a former Guantanamo detainee who claimed to have
been inside the hospital and to have spoken with the al
Qaida fighcers. isN_FD-302 (June 6, 2002),-
1 who was captured on December 25, 2001 (and
who denies that he was part of al Qaida), told
interrogators that he was in Afghanistan working with the
charity Al Wafa; that one day he was hit by a car; that he
woke up in Mirwais Hospital in the same room as the Al
Qaida fighters; and that they struck up a conversation.
ISN-FD-302 (June 6, 2002). They told him that they
were involved in a car wreck5 while fleeing a U.S. airstrike
and talked about their weapons, althoughnever saw
any' also provided names and
descriptions for the surviving eight members of the al
Qaida group, including an C1'C6
Id. Four of the other names
provided were identical to or
transliterations of names listed near “Abu Waqas" on the
Tarnak Farms document. Compare, wi't:h,
Awad was shown a picture of -but denied ever
knowing him. ISN 88 FD-302 (October 15, 2002) . bm'b(z)
$Apparently there are man bad drivers in Afghanistan.
_ _
UNCLASS|F|ED//FOR PUBL|C RELEASE
b(l)
Awad Aff-
M.- when man
UNCLASSlFlED//FOR PUBL|C RELEASE
began in the city of Kandahar [Awad was separated from
Sugara] and he never saw him again. [Awad] was pulling
someone from the rubble of a bomb destroyed building when
he was injured. . . . He woke up in a hospital . . . .”).
Awad asserts that after his leg was amputated he was
“located near elderly patients and children” and that while
at the hospital he was “semi-conscious and in continuous
pain . . . [and was] on pain medication throughout [his]
time in the hospital that made [him] sleep.” Awad Aff.
; I14. He “denied being with the other Arabs . . . and
§ d offered that he was on the first floor of the hospital
[but] was later moved to the second floor . . . where
there were other Arabs whom he did not know.” ISN 88 FD-
302 (October 15, 2002); Awad Aff.LI 12-13.
" Awad Aff- €116'~
(“No weapons or documents were found on” Awad when he
N2)
was arrested), an assertion that is uncontested.
re derivative documents reflecting an
accumulation of information from other sources. Tr 32:21-
_ 14 _
UNCLASSIFlEb//FOR PUBL|C RELEASE
uNcLAsSlFlED//FoR Pusuc RELEASE
The only first-hand evidence offered by the government
about Awad's capture was the report of a March 2006
interview with a who claimed that he led
the group that had taken Awad into custody. FM40
(March 15, 2006) . That report is internally inconsistent,
completely unreliable, and is given no weight.
was a typographical error and that
Awad’s injury more likely occurred on December 2, 2001, the
approximate date that the Al Qaida fighters barricaded
Mirwais Hospital. Although there is some evidence to
23.
_ 1 5 _
UNCLASS|F|ED//FOR PUBL|C RELEASE
uNcLAsmFmDuFoRPuBucRELEAsE
support this theory, see, ISN 88
(stating that the date of "capture" was "3 weeks
ago,”),7 l will not credit this convenient explanation. lt
does not explain why thebQ) states that Awad was
injured onbQ) Nor does it explain why a
different typo in the N2) was later
corrected, while thebQ) date was left unchanged.
Compare,b@) ,
wir:h, see, Res. MJR at 26."
DI
Up to this point, we have (a) a reasonable inference
that Awad went to Kandahar to fight, (b) no reliable
evidence that he was actually trained there, (c) undisputed
evidence that he was in Mirwais Hospital during part of the
siege, and (d) inconsistent evidence about how and when he
arrived there,
7The parties are in general agreement that “capture” in this
document should be read as “injury.” Tr. 52:2-54:9; Res.
Opp. 26-28.
Although this undermines the credibility of
any information from that document, the government was
unable to find the underlying document from which the
November 1, 2001, date was taken. Tr 33:l9-23. Because
the November date is favorable to Awad and it is not
refuted with equally strong evidence, I will assume it to
be accurate.
_. __
UNCLASS|F|ED//FOR PUBL|C RELEASE
UNCLASS|F|ED//FOR PUBL|C RELEASE
Five of
their names match names found on the list provided by
j and three of them match names found on the Tarnak
That
remark finds corroboration in a newspaper account of a
_]_7_
UNCLASS|F|ED//FOR PUBL|C RELEASE
UNCLASS|F|ED//FOR PUBL|C RELEASE
fighter who was killed trying to escape the siege at
Mirwais after the date that Awad was captured. Karl Vick,
Hospi tal Detention of Arab Fighter Ends with Suicide, Wash.
Post, Jan 8, 2002, at A12.
9 The government relies on an identification of by
another detainee given during an interrogation taken at
Bargram, Afghanistan. ISN A2 FM40 (June l4, 2004).
10 the Guantanamo detainee told interrogators that
he guarded the Kandahar Airport from after September ll,
2001, until mid-November 2001. ISN j FD-302 (November l,
2002). Although Awad argues out that this would have
prevented - from training at Tarnak Farms when
w l have been there, that is not necessarily true. aj
a said that he had trained at the Al Faruq camp, and it
is logical that an Al Qaida guard would receive advanced
training.
_ 1 8 __
UNCLASS|F|ED//FOR PUBL|C RELEASE
UNCLASS|F|ED//FOR PUBL|C RELEASE
He denies having met al-Dhali or al-Fadhl. Awad Aff. 9[7.
He argues that, because the siege‘at Mirwais Hospital was a
well-publicized event, al-Dhali would have known that Awad
was captured, and would not have guessed that he was
hiding. Awad also points out
The following table demonstrates the importance-
_ The correlation among the names on the al
Joudi list, the Tarnak Farms list,
-is too great to be mere coincidence. The
I believe, the points
that tip the scale finally in the government's favor.
_ ..
UNCLASS|FlED//FOR PUBL|C RELEASE
UNCLASS|F|ED//FOR PUBL|C RELEASE
List Tarnak Farms
List
. ».
' Abu Waqas
with an
amputated
right leg
IV. Conclusion
The case against Awad is gossamer thin. The
evidence is of a kind fit only for these unique proceedings
_ 2 0 _
UNCLASS|F|ED//FOR PUBL|C RELEASE
UNCLASS|F|ED//FOR PUBL|C RELEASE
and has very little weight. In the end, however, it
appears more likely than not that Awad was, for some period
of time, “part of” al Qaida. At the very least Awad’s
confessed reasons for traveling to Afghanistan and the
correlation of names on a the list-clearly tied
to al Qaida make it more likely than not that he knew the
al Qaida fighters at the hospital and joined them in the
barricade.
~k * 1\'
The petition for writ of habeas corpus is denied.
@ww kinds
JAMES ROBERSTON
United States District Judge
- 2 1 - ,
UNCLASS|F|ED//FOR PUBL|C RELEASE