Khalifh v. Bush ( 2010 )

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UN~TED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
OMAR MOHAMMED KHALIFH
Petitioner, , Civil Action No. 05-CV-1189
v.
BARACK H. OBAMA, et al.,
Respondents.
MEMORANDUM ORDER
Omar Mohammed Khalifh (ISN 695), a Libyan national,
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. Petitioner has filed a
traverse and an amended traverse, and the government has
moved for jUdgment on the record. For the reasons that
follow{ the government's motion will be granted{ and the
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petition for a writ of habeas corpus will be denied.
Background
Khalifh lost his right leg below the knee in 1998 or
1999 and received a prosthetic limb in mid-2001 from the
International Committee for the Red Cross Kabul Orthopaedic
Centre. J.E. 13. He was captured by Pakistani forces in
I Petitioner's counsel Cary Silverman and Edmund Burke have represented
their client zealously and well, providing indepsensible service not
only to their client, but also to the court. pro bono publico. in the
highest tradition of the bar. Mr. Burke, in particular, traveled all
the way from his home in Hawaii to GTMO and back many times. My thanks
to both of them.
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Jalalabad, Pakistan, in March 2002 and subsequently
transferred to u.s. custody. He filed this petition in
2005, but his case, like all other habeas corpus petitions
from Guantanamo Bay, was put on hold until the Supreme
Court decided that Guantanamo detainees have a right to
habeas proceedings and that this court has jurisdiction to
hear them. Boumediene v. Bush, 128 S.Ct. 2229 (2008).
With Judge Hogan's omnibus Case Management Order as a
guide, I held a merits hearing on April 19 and 20, 2010.
Although he was given the option to do so, Khalifh did not
testify or listen to the proceedings remotely. I announced
my decision from the bench following the hearing, and now
issue this opinion to make a full record of my reasoning.
I. Legal Standards
The government's authority to detain Khalifh, if any,
derives from the Authorization for use of Military Force
("AUMFU), Pub. L. 107-04, 115 Stat. 224 (2001). The court
of appeals has held that the President's authority pursuant
to the AUMF at least includes, but is not necessarily
limited to, detention of "those who are part of forces
associated with Al Qaeda or the Taliban or those who
purposefully and materially support such forces in
hostilities against U.S. Coalition partners. u AI-Bihani v.
Obama, 590 F.3d 866, 872 (D.C. Cir. 2010). The government
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contends that Khalifh was a part of al-Qaida, the Taliban,
and associated forces, justifying his detention. The
government had the burden of proving the lawfulness of the
detention by a preponderance of the evidence. In re
Guantanamo Bay Detainee Litig., Misc. No. 08-442, CMO § II
(A); Awad, 646 F. Supp. 2d at 23-24; see also Al-Bihani,
590 F.3d at 878 (upholding the constitutionality of the
preponderance standard) .
A. "'Part of"
The test now applied by most jUdges of this court for
determining who is or was ~part of" al-Qaida was first
articulated by Judge Bates: "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." Hamlily v. Obama, 616
F. Supp. 2d 63, 75 (D.D.C. 2009); see also Awad v. Obama,
646 F. Supp. 2d 20, 23 (D.D.C. 2009) (appeal pending). A
detainee may fit within or under al-Qaida's ~command
structure" even if he never actually fights for al-Qaida.
AI-Sihani, 590 F.3d at 872. Detention is lawful under the
~part of" prong if the detainee has received and executed
al-Qaida's orders, even if he has only been a cook in an
al-Qaida camp. Id.; accord Gherebi v. Obama, 609 F. Bupp.
2d 43, 69, n. 19 (D.D.C. 2009).'
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B. Temporal Issue
Khalifh does not concede that he was ever a member of
al-Qaida, the Taliban, or associated forces, see J.E. 13;
but he argues in the alternative that even if I find that
he was once a member of a detainable organization, his
membership had lapsed by the time of his capture. The
government must show that detention was lawful at the time
of capture. See Salahi v. Obama, 2010 U.S. Dist. LEXIS
'35360, at *8-9 (D.D.C. Apr. 9, 2010) (appeal pending);
Gherebi, 609 F. Supp. 2d. at 71. The government need not
show an affirmative act after 9/11, but to justify
detention it must show that the petitioner was a part of
al-Qaida, the Taliban, or related forces at the time of his
capture. See Salahi, 2010 U.S. Dist. LEXIS 35360, at *9­
10. A petitioner who may once have been part of al-Qaida
or the Taliban can show that he was no longer part of such
an entity at the time of capture by showing that he took
affirmative actions to abandon his membership. See, e.g.,
Al Ginco v. ·Obama, 626 F. Supp. 2d 123, 128-30 (D.D.C.
2009); Hatim v. Obama, 2009 WL 5191429, at *10, 12 (D.D.C.
Dec. 15, 2009). In Salahi, I held that a petitioner could
also show lapse of membership even without an affirmative
act of severance, if the evidence that the membership had
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lapsed is "credible and significant." Salahi, U.S. Dist.
LEXIS 35360, at *10-11. That proposition, however (from
which an appeal is pending) rests on unusual facts: in
Salahi's case there was a gap of nearly a decade between
his activity in al-Qaida and his subsequent capture. Id.
at *15-35.
C. Hearsay
Hearsay, along with other evidence normally excluded
by the Federal Rules of Evidence, is admissible in these
proceedings. See AI-Bihani, 590 F.3d at 879-81. All
proffered evidence has been admitted and given the weight
it deserves. See Awad, 646 F. Supp. 2d at 23.
D. Coerced Statements
Khalifh alleges that he was mistreated during
detention between "late 2004" and "early 2005," see J.E. 13
addendum, so he argues that the court should disregard his
statements during interrogation from that period.
Specifically, Khalifh alleges that during that period he
suffered painful glaucoma that was not sufficiently
treated, was kept in an extremely cold' cell that caused
pain in the metal
and was denied use of his pros·thetic leg. The government
denies mistreating Khalifh. Proof of mistreatment can
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taint a petitioner's statements, raising questions about
their reliability. See,~, Mohammed v. Obama, 2009 WL
4884194, * 24-27 (D.D.C. Dec. 16, 2009); Al Rabiah v.
United States, 2009 WL 3083077, *21 (D.D.C. Sept. 17, 2009)
(citing U.S. v. Karake, 443 F. Supp. 2d 8, 87-88 (D.D.C.
2006)). Here, I need not resolve whether Khalifh was
mistreated from late 2004 to early 2005 (which I will refer
to as the "window of alleged mistreatment" or the "window
period"), because, as I shall discuss, none of the
statements from the window period are necessary for the
government· to prove its case in toto. Where window-period
statements are the sole or principal evidence supporting a
particular government assertion, I find them unconvincing
for reasons independent of the alleged mistreatment.
II. The Evidence
A. 1992-1996: Libya and Sudan
The details of Khalifh's time in Libya and Sudan are
largely undisputed. While living in Libya, his native
country, Khalifh affiliated himself in 1992 at the age of
20 with the Libyan Islamic Fighting Group ("LIFG"). J.E.
95. He remained active with the LIFG in Libya for three
years. Id. The LIFG was an organization opposed to Libyan
dictator Mummar al-Qaddafi, which slowly split into a
faction that supported international terrorist networks and
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faction that was strictly Libya-focused and anti-Qaddafi. 2
J.E. 186. As a participant in the LIFG, Khalifh assisted
its members with obtaining weapons, housing, vehicles, and
intelligence. J.E. 30. He fled to Sudan in 1995 because
he learned that the Libyan government was investigating his
activities with the LIFG and intended to question him.
J.E. 30, 91.
In Sudan, Khalifh lived in LIFG-owned houses, J.E. 38,
and worked for a trucking company owned by Osama bin Laden.
J.E. 30, 48, 50. During this time, he severely injured his
left leg while attempting to climb over a wall at a
guesthouse, resulting in numerous large scars on his lower
leg. J.E. 13, 19, 50, 91. While in Sudan, he also
received a significant amount of training in the use of
explosives, as well as training in firearms, topography,
and ambush. 3 J.E. 38 (window period), 41 (window period),
50, 52, 91. The record is clear that Khalifh became an
expert in explosive devices and remained enthusiastic about
discussing, studying, .and teaching the mechanics of their
2 The u.s. designated the LIFG a terrorist group in 2004, and it
merged with al-Oaida in 2007. J.E. 4, 186. The exact timing and
nature of LIFG's development from an anti-Oaddafi entity into a broader
terrorist group is murky and disputed by the parties.
There is conflicting evidence as to whether Khalifh SWOre bayat, or
an oath of loyalty, to the LIFG while in Libya. Compare J.E. 91
(Khalifh stated that he was part of a group that swore bayat}. with
J.E. 30 IKhalifh denied such an oath). Resolving this factual dispute
is unimportant, given the extensive evidence of Khalifh's participation
and travels with the LIFG.
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use. See J.E. 38 (window period), 41 (window period)
(noting that "the detainee is excited for the next
[interrogation] session where we could talk [morel about
explosives"), 52. In 1996, due to political pressure, bin
Laden and many of his followers left Sudan for Afghanistan.
J.E. 188. However, Khalifh was not permitted to leave for
Afghanistan with bin Laden's retinue, but left for
Afghanistan around a number of months later on direct
orders from LIFG emir Sadeq.4 J.E. 38 (window period), 48,
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91.
In sum, the largely undisputed record shows that
Khalifh associated extensively with the LIFG during his
time in Libya and Sudan, and that, when he was in Sudan,
his participation with the LIFG developed into involvement
with al-Qaeda and bin Laden associates. In his declaration
Khalifh denies ever having been a member of the LIFG, ~
J.E. 13, but his admission to following a direct order from
the LIFG to leave Sudan for Afghanistan shows that he was
at least a "part of" the LIFG.
4 In his declaration, Khalifh indicated that he went to Pakistan for a
time between leaving Libya and going to Afghanistan, see J.E. 13, but
the bulk of the evidence contradicts that claim, and at the merits
hearing his counsel did not advance that position. As shall be seen,
numerous statements in Khalifh's declaration and supplemental
declaration (J.E. 13 & addendum) are contradicted by the most reliable
evidence, and I find their probative value to be limited.
j It appears likely that petitioner's departure occurred in 1996, but
the record is not entirely clear. See J.E. 48.
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B. 1996-1998: Training Camps in Afghanistan
. After relocating to Afghanistan, Khalifh resided there
(with possible short departures) until leaving for Pakistan
sometime in 2001 or 2002. It is undisputed that he worked
at the Jihad Wahl training camp in Afghanistan. J.E. 173,
174. Jihad Wahl was a paramilitary training facility run
by Osama bin Laden. J.E. 6. Khalifh described Jihad Wahl
as a training camp focused on specialized skills and
advanced tactics, which worked in tandem with bin Laden's
basic training camp at Al-Faruq. J.E. 55.
The bulk of the evidence indicates that Khalifh
arrived at Jihad Wahl in 1996. See J.E. 35 (window
period), 52, 92. While at Jihad Wahl, he worked as an
explosives trainer, received additional training in
guerrilla tactics, repaired vehicles, constructed props for
al-Qaida training videos, commanded a guard post, and moved
equipment as needed. J.E. 52, 54, 55, 57, 92. Of note,
Khalifh described himself as following an order from Abu
Atta, a training camp leader, to build props to assist in
filming a recruiting video. J.E. 52. Later, likely in
1998, Khalifh became an explosives trainer at the al-Faruq
basic training camp. J.E. 54, 57; see also j.E. 6
(describing al-Faruq in detail) .
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Petitioner resists the idea that Jihad Wahl and al-
Faruq should be labeled "al-Qaida" training camps, but
concedes that the camps were run by bin Laden and that they
trained people in guerrilla and terrorist methods. Khalifh
indeed argues that his presence at these camps does not
prove that he was a member of al-Qaida because more than
10,000 individuals passed through them. But Khalifh was
not just passing through; he participated extensively in
these camps, as a trainer and in a low-level leadership
position. He certainly was "part of" al-Qaida during this
period.
C. 1998-Sept. 11, 2001: Loss of Leg and Safe Houses
In his declaration, Khalifh states that he lost his
right leg in 1998 or 1999 when he stepped on a landmine.
J.E. 13. It is undisputed that for a week in 1998, he had
worked wi th the Taliban as a "minesweeper" or sapper. 6 See
Merits H'g Tr. 176-77. It is fairly easy to connect the
two undisputed facts, and indeed most of the evidence shows
that he lost his leg by triggering a mine while working for
the Taliban. He told his u.s. interrogators numerous
alternative stories of how he lost his leg, see J.E. 18,
19, 21, 23, but none is believable in the face of the
~ Khalifh's declaration denies that he ever was a member of the Taliban.
J.E. 13. His counsel attempted to rectify the apparent contradiction
by contending that during this week Khalifh might have tried, but
failed. to join the Taliban.
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obvious inference and additional supporting evidence. In
one interview Khalifh admitted to losing his leg while
clearing mines for the Taliban. J.E. 97 (window period).
This could be discounted, by itself, because it occurred
during the window period, but it has independent
corroboration. Arkam Mohammed Ghafil Al Karim (ISN 653),
who fought on the front lines with the Taliban against the
Northern Alliance in 1999, stated in an interview while
detailed at GTMO that he visited "OTnar the Libyan" at a
hospital after Omar had lost his right leg clearing mines.
J.E. 156. Al Karim identified Khalifh as the person he
meant by "Omar the Libyan." 7 Id.From the time he lost his leg until early 2001, it is
undisputed that Khalifh stayed in a number of guesthouses
in Afghanistan, recuperating from his injury. See
generally J.E. 56, 58, 96, 110, 147; Merits H'g Tr. 127-44,
147-49. When interrogated by U.S. officials at GTMO, he
was able to pinpoint these guesthouses on maps and describe
whom he met there. While petitioner disputes the
characterization, it is clear from the record that these
were al-Qaida guesthouses. The government presented
evidence too extensive to cite showing that Khalifh met
7 Moreover, while numerous individuals in the area at the time went by
the kunya ·Omar al Libi,· see J.E. 115, it is unlikely that more than
one lost his right leg by clearing mines in the relevant timeframe.
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numerous top-level al-Qaida and Taliban leaders at these
guesthouses. I find Khalifh's presence at these
guesthouses to be the government's strongest evidence.
Whatever interaction he might have had with the top
terrorists he met, whether it was limited or extended, his
presence with them at guesthouses is quite powerful support
to the inference that he was considered a member of al-
Qaida (and/or associated forces) at the time. without such
an understanding, he would not have been permitted to be
around so many terrorist leaders for any amount of time. s
Petitioner stayed in several hospitals in the same
period during which he stayed at the guesthouses. J.E. 13,
19, 94; see also J.E. 154, 156. Petitioner argues that his
many stays in hospitals demonstrate that he spent a limited
amount of time at guesthouses with al-Qaida leaders, but
the hospital evidence is less exculpatory than he claims.
8 The government also attempted to show that Khalifh worked for
bin Laden as an arms
b
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Arkam Al Karim (ISN653) stated that he, along with other
front line Taliban fighters, visited "omar al Libi" at
Wazeer Akhbar Khan Hospital in 1998 in order to "pay their
respects." J.E. 156. As discussed above, the Omar al
Libi described by Al Karim is very likely Khalifh. The
clear inference from Al Karim's statement is that he and
other Taliban members were paying respects to Khalifh as a
wounded fellow member of the Taliban and/or al-Qaida.
D. 9/11 to Capture in Pakistan in 2002
Khalifh maintained contact with terrorists in the
period after September 11, 2001. He continued to interact
with LIFG members after 9/11, including Faisal al-Libi and
Ibrahim al-Libi. 9 J.E. 94. 10 He also admitted (in an
interrogation during the window period) to being asked by
an al-Qaida operative, Abu Faraj, to teach al-Qaida members
about the operation of mines. J.E. 36. While there is no
evidence that Khalifh actually fulfilled that request, the
fact that he was asked (if true) supports the idea that he
was considered to be part of al-Qaida.
9The LIFG may have aligned more closely with al-Qaida by the time of
9/11, as it issued a communiqu~ soon after advocating attacks on
Americans. J.E. 189.
IOThe interview related in J.E. 94 occurred
It is
unclear if it falls within the "late 2004" window period.
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I am not convinced by the government's contentions
that Khalifh was present for the fight against the U.S. in
the mountains of Tora Bora and at Taloqan in Novemeber and
December of 2001. 11 I note that the government concedes
that there is absolutely no evidence of what Khalifh might
have actually done at those locations - i.e. , no evidence
that Khalifh personally lifted a hand against the U.S. or
his allies. The government's most convincing evidence is a
series of purported confessions. During an interrogation
in the window period, Khalifh told interrogators the number
of Arabs he believed fought on the front lines in
Afghanistan after 9/11. 12 J.E. 39. In a second
interrogation in the window period, Khalifh purportedly
nslipped," according to his interrogator, and admitted to
being at Taloqan and Tora Bora. J.E. 47. During a third
interrogation in June 2005 (presumably outside of the
"early 2005" window period), Khalifh stated that unlike
II Tora Bora, located in a mountainous region in Afghanistan near the
Pakistani border, is a man-made cave complex that could support over a
thousand people. J.E. 9. In November 2001, top al-Oaida members
retreated to Tora Bora, resolved to make a last stand against u.s. and
allied forces there. Id. American and Afghan forces arrived in
December, eventually causing many of the al-Oaida members in the caves
to flee for Pakistan, where many of them were later captured. rd.
Taloqan was the location of additional fighting between coalition
forces and al-Oaida. rd.
11 While the government argues that this implies Khalifh was indeed
present at Tora Bora, Khalifh never says when, or what he means by the
~front lines." Moreover, while he states that there were "200 Arabs h
on the front lines, id., this contradicts the government's expert's
statement that Tora Bora housed one to two thousand fighters during the
battle. See J.E. 9.
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certain Afghan prisoners who he believed should not be
detained because they were ~onlyU Taliban members, he
stated he was "guiltyU and deserved to be held. J.E. 28.
He also objected to the release of certain European
detainees, in comparison to the continued to detention of
the Afghan detainees, and said that he had been present to
see some of the Europeans attacking American forces. rd.
The government has failed to establish probable cause
to believe Khalifh was present for fighting at Tora Bora
and Taloqan. The first purported confession is not really
a confession at all. The second is characterized as a
slip, without follow-up by the interrogator, and came
during a time of alleged mental distress. The third
alleged confession i$ ambiguous at best, and during that
interrogation Khalifh was extremely angry about the
treatment of the Afghan prisoners. J.E. 28. The record is
clear that Khalifh is an emotional person and prone to
outbursts, not all of which are truthful. Moreover, the
government has presented no corroboration to the alleged
confessions. And while it is amazing what people can do
without their limbs (think: Lord Nelson at Trafalgar),
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Khalifh's leg injuries strongly mitigate against the idea
that he could have traversed the mountains of Tora Bora. 13
Regardless of whether he fought at Tora Bora or
Taloqan, it is undisputed that Khalifh eventually found his
way to Pakistan. In Pakistan, he was captured at a
guesthouse in Jalalabad by Pakistani authorities in March
2002.
Conclusion
While I am not convinced by the government's evidence
related to Tora Bora or Taloqan, the "part of al-Qaida"
determination is a construct of all of the evidence.
Looking at the case from this perspective, the government
has shown more than probable cause to believe that Khalifh
was a part of al-Qaida and associated forces through a
steady string of activity right up until the time of his
capture. 14 In the Sudan, he worked for bin Laden's trucking
company, received training in guerrilla tactics, and
followed direct LIFG orders at least once to leave Sudan.
IJKhalifh once boasted that he could run with his prosthetic leg, J.E.
19, but there is no corroboration of this in his medical records. Cf.
J.E. 116 (medical records) at 784 (noting that when Khalifh was given a
new prosthetic leg with specialized shoe in 2005, he was able to walk
60 meters without a walker).
14 The government also proved that Khalifh was a part of the LIFG, but I
need not determine whether LIFG membership alone supports detention; I
take Khalifh's LIFG participation to be important mainly because his
LIFG activities increasingly blurred with al-Qaida activities.
Similarly, Khalifh's participation with the Taliban is best viewed as a
tributary of his al-Qaida membership. rather than as an independent
ground for detention.
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In Afghanistan, he trained jihadists at al-Qaida training
camps, attempted to clear mines with the Taliban, and
recuperated from the loss of his leg at al-Qaida safe
hous~s where top al-Qaida personnel were present. After
9/11, with an attack by the U.S. imminent, al-Qaida and
LIFG members in Afghanistan regarded Khalifh as enough of a
fellow traveler to continue to meet with him. While I find
that the government has not shown that Khalifh was at Tora
Bora or Taloqan or that he personally took up arms against
U.S. or coalition forces, it is slicing the law too thin to
require such proof. Given the clear proof of his long-
standing membership in al-Qaida and the LIFG, and the
absence of any evidence of active dissociation or of a
compellingly lengthy lapse in activity (as in Salahi), I
find that Khalifh was a part of al-Qaida at the time his
capture. Accordingly, the petition for writ of habeas
corpus is denied. It is SO ORDERBD.
JAMES ROBERSTON
United States District Judge
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