Bostan v. Bush ( 2009 )

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\N'I``TH Tl'E
&5?<1 s norma
CSO:
DATE:
UNI'I``ED STATES DISTRICT COURT
FOR THE DISTR]CT OF COLUMBIA
)
KARIM BOSTAN, )
)
Petitioner, )
)
v. ) Civi1ActionNo.05-8S3
)
BARACK H. OBAMA, )
President of the United States, §:_t a_l_., )
)
Respondents. )
)
MEMORANBUM OPINION
On August 6, 2009, the Court heard oral argument on the merits of the evidentiary
objections filed by Karim Bostzm (ISN 9?5) with respect to the sources of evidence cited by the
government in support of its proposed findings of fact regarding that petitioner.' After
considering the parties’ written submissions and oral arguments,``*`` the Court concluded that it had
to defer its consideration of the petitioner’s objections to the introduction into evidence of certain
intelligence and interrogation reports cited by the government, overrule the petitioner’s
objections to certain statements made by the government in its proposed findings of fact and
' In addition to the President, who is named as a respondent in his official capacity, the petitioner names various
government officials as additional respondents in his habeas corpus petition A motion is currently pending before
judge Thomas F. Hogan of this Court to clarify whether the Secretary of Defense is the only proper respondent in
this case. Because Judge Hogan has not yet resolved that motion. and for ease of reference, the Court refers to the
respondents collectively as the "government" for purposes of this memorandum opinion.
1 ln addition to the oral representations made by the parties at the hearing held on August 6, the Court considered
the following documents in reaching its oral rulings issued that same date and in reaching its written decision today:
(l) the Factual Return filed by the government (the “Gov't’s Return"), (2) Petitioner Kari[m] Bostan’s Traverse (the
"Pet‘r’s T``raverse"}, (3) the Respondents' Proposed Faetual Findings and Sources of Evidence (the “Gov‘t‘s Facts"),
(4] the Respondents’ Motion and Memorandum to Admit Hearsay Evidence (the "Gov’t’s Ment.“}, (5) Petitioner
Kari[m] Bostan’s Opposition to Respondents’ Proposed Factual Findings and Sources of Evidence (the "Pet’r’s
Mem."), and (6) the Respondents`` Reply to Bostan‘s Evidentiary Objections (the "Gov‘t’s Reply").
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conclusions of law, and sustain the petitioner‘s objection to the introduction into evidence of
press releases and news articles proffered by the govemment. The Court issued oral rulings to
that effect at the close of the hearing. Having reflected on those rulings over the preceding
weeks, and in light of the memorandum opinion subsequently issued by the Court in this case
styled Bostan v. Obama, Civil Action Nos. 05-883 (RBW), 05-2386 (RBW), 2009 WL 25 |6296,
_____ F. Supp. 2d __ (D.D.C. Aug, 19, 2009) (Walton, .l.), and the separate memorandum opinion
written in another case involving a detainee at Guantanamo Bay styled Al Bihani v. Oba.rna,
Civil Acton No. 05-2386 (RBW), slip op. (D.D.C. Sept. S, 2009) (Walton, J.), the Court writes
separately to supplement and, in some instances, amend its oral rulings.
I. Baekground
The following facts are alleged in the govemment’s proposed findings of fact and sources
of evidence. The petitioner, the nephew of “a well-known mujahideen commander under
mujahideen leader Mawlawy Khallis," Gov’t’s Facts 1[ lS,’ “lived in the 'I``hbai refugee camp near
Mirarn Shah, Paltistan[,] . , . for approximately 13 years,“ i_c_l_. 1[ l3, during which time he
"guard[ed] a mujahideen command post. . . for 15 to 20 days every five months over a four-to-
five-year period," §§ 1§ l4. "After the [Soviet-Afghan] war, [the petitioner allcgedly] returned to
Khowst from Pakistan and operated a flower shop and a pots and pans store in the Khowst
[b]azaar." § 11 l?'. As alleged by the govemment, "[his] business partner was a man named
Obaidullah," _i§._, another detainee at Guantanamo Bay whom the petitioner "met . . . at a Jarna.at
al-Tablighi [(‘Jamaat’)] religious center [sometime] around 2000," i_d_. 11 18.
According to the government, "Jarnaat is closely aligned with several Paltjstani e)ttremist
groups and the al-Qaida networl-:," and “Jarnaat members have used its peaceful religious
3 The government alleges that l429 F. Supp. 2d 18 (D.D.C. 2006) (Walton, J.), Transcript of August 28, 2009
Status Confe``rence, Bostan v. Obarna, Civil Action No_ 05-883 (RBW) (D.D.C. filed May 3,
2005y
Bctween the Court's initial hearing on the merits of the petitioner’s evidentiary objections
and the continued hearing held on August 28, this member of the Court issued a memorandum
opinion delineating the standard of review the Court would employ in assessing the petitioner’S
challenges to the admissibility of hearsay relied upon by the govemment as a source of evidence
in its proposed factual findings In that memorandum opinion, the Court reiterated its
commitment to enforcing the two-prong standard for the admissibility of hearsay established by
Judge Hogan in his case management order, under which the government must establish both
that the proffered hearsay is reliable and that requiring it to substitute a non-hearsay alternative
would be unduly burdensome or interfere with the govemment’s national security interests. §
§Llg, 2009 WL 2516296, at *2 (“[T]his member of the Court concurs with Judge Hogan as to
how the government’s legitimate national security interests and the petitioner’s compelling
interest in securing his freedom should be balanced_"). The Court also "elaborated“ on the
meaning of the tenn "undue burden," explaining that (l) “[w]here the govemrnent is unable to
produce non-hearsay evidence due to its own administrative or bureaucratic errors or lack of
resources to amass such evidence, it cannot rely upon its shortage of resources or its own
mistakes as justification for the use of hcarsay," (2) “il is no excuse for the government’s lawyers
to assert that there are too many habeas corpus petitions pending before the Court or too few
resources allocated to the Depanment of Justice to compel fidelity to the centuries-old
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proscription against the use of [unreliable] hearsay," @, (3) "the government will need to
demonstrate why the use of non-hearsay alternatives would be unduly burdensome to the
govemment . . . through the use of statements made under oath by persons with personal
knowledge of the matter about which their representations relate,” and (4) "thc undue burden
standard . . . does not mean . . . that hearsay proffered by the government must be admitted into
evidence because that is all the evidence that the government has available to it," § at *3.
Finally, the Court "reject[ed] the broader reading of _P_lgn_di_ and Boumediene advanced by the
govemment," _i§;, declined to follow the rules of evidence employed in the administrative
proceedings created by the Detainee Treatment Act of 2005 (the "Detainee Treatment Act"),
Pub. L. No. 109~148, 119 Stat. 2680 (2005), l, 2009 WL 2516296, at *4, or adopt the
reasoning of Khiali-Gul v. Obarna, Civil Action No. 05-877 (JR) (D.D.C. Apr. 22, 2009),
1, 2009 WL 2516296, at *4-5, and refused to "defer questions of admissibility until all of
the government’s evidence has been considered on the theory that the reliability of a particular
piece of evidence will generally depend on how it fits vtfithin the evidence as a whole," § at *5
(internal quotation marks omitted).
In a footnote appended to its memorandum opinion, the Court noted that it would issue an
order applying the general principles articulated in that decision to specific evidentiary disputes
in this case. I__C_L at 6 n.6. The Court has resisted the urge to reduce its oral rulings to writing in
the past out of both practical concerns about the strain placed on the Court’s resources by the
issuance of numerous written opinions and a concem (in some ways bome out by the
government"s response to the Court’s analysis in its prior memorandum opinion) that a written
opinion might complicate rather than clarify the Court’s position on these matters. However, the
instant dispute between the parties has important ramifications for every other Guantanaino Bay
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detainee with an active habeas corpus petition pending before this member of the Court. Even
more important, the Court is convinced that its oral rulings require further explanation and, in
some instances, reconsideration. The Court has therefore revisited the disputes raised by the
parties in this case so that it can set forth guiding principles for future evidentiary disputes
between the government and petitioners appearing before this member of the Court and apply
those principles to this dispute in a deliberate and systematic marmer.
II. Standard of Review
The standard of review goveming the petitioner’s evidentiary objections is that
articulated by the Court in its prior memorandum in this case. As the Court explained in that
memorandum opinion,
[F]or all of the active habeas corpus petitions pending before this
member of the Court, the government must establish that any
proffered hearsay evidence is admissible either (l) under the
Federal Rules of Evidence, as modified by 23 U.S.C. § 2246, or (2)
by demonstrating that (a) the proffered hearsay is reliable and (b)
that the provision of non-hearsay evidence would unduly burden
the government .. .or interfere with the governrnent’s ability to
protect national security.
I_d_. at *6. Further, the Court ruled that "the more significant a fact the govemment seeks to
establish through the use of hearsay is, the heavier its burden will [have to] be to justify the
Court’s consideration of hearsay as a substitute for its non-hearsay altemative." § at *2.
ll1. Legal Analysis
The sole question presented by the petitioner’s objections is whether the hearsay
proffered by the government in this case may be admitted into evidence under the standards for
admissibility delineated above. In Al Bihani, this Court explained that, generally spealcing, the
evidence proffered by the government consists of multiple levels of hearsay, all of which must
satisfy the two-prong standard for admissibility set forth in Judge Hogan’s case management
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order and explicated in the Court’s prior memorandum opinion in this case. Al Bihani, slip op. at
_13-14. Specif'ically, each piece of evidence proffered by the government consists of at least two
levels of hearsay-the source’s original statement and the memorialization of that statement in a
written report_with an intermediary level of hearsay frequently found in between in the form of
the interpretation of the source’s statement from the source’s native language into English.
Much of the analysis set forth in Al Bihani applies with equal force to this case. As the
Court explained in that memorandum opinion, statements made by the petitioner are admissible
under Federal Rule of Evidence SOI(d)(Z), Al Bihani, slip op. at 14-15, whereas statements made
by other detainees are not admissible under the exception for statements against interest set forth
in Rule 804(b)(3) absent additional information establishing that the statements made were truly
against the detainees’ interests given the circumstances under which they were made, i_cl_. at l5-
l6. Further, statements made by other detainees cannot be admitted into evidence merely
because they are “detaileci," § at 17, or because they are corroborated by other evidence, i_cL at
l'.»"-IS. Rather, the government must establish either that specific statements were produced
under circumstances that guarantee their trustworthiness, i_d_; at l'r``, or "that independently
admissible evidence can be used to assess whether the Lx;c£ of a particular statement is
sufficiently reliable in general to permit the admission of any statements by that source into
evidence," i_c_L at ]8.
Al Bihani also speaks to the question of the reliability of the interpretations of detainee
statements As the Court explained in that case, interpreters employed by the FBI or interpreters
with an international Language Rountable (“ILR“) score “of 3+ in a target language and 3 in
English are sufficiently reliable to permit the admission of their interpretations into eviclence.”
§ at 23. However, interpreters not employed by the FBI with an ILR score of 2+ in English
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lack sufficient credentials "to ensure that any complex statements rendered in English by such an
interpreter are reliable." § at 25. "Accordingly, the Court cannot admit into evidence
interpretations provided by interpreters with a 2+ score in English except with respect to basic
information provided by the detainee." I;d. at 26.°
Finally, "[i]n the context of detainee statements," the Court ruled in Al Bihani that the
g0vemment can only introduce interrogation reports purporting to record admissions by the
petitioner where the govemment establishes that:
[N]ot only . . . would [it] create an undue burden for the
government to call the various interrogators who drafted the
reports as witnesses at the merits phase of this proceeding, but also
that it would create an undue burden for the government to procure
affidavits or declarations from these interrogators setting forth the
information that would otherwise be elicited on direct examination
(e.g., the process used to create the interrogation reports, the
circumstances surrounding the interrogation, and the substance of
the petitioner’s alleged statements (as interpreted by the
interpreter)].
Ld. at 28-29.
The Court further reasoned in Al Bihani that it did not need to "apply the undue burden
prong with the same level of sct'utiny" where statements from other detainees were concerned
because, at least in that case, statements made by other detainees were "less crucial to the
government’s case." I_:L at 29. The Court cautioned, however, that even with respect to
statements made by other detainees, it might “eventually conclude that the reports regarding the
° The Court also held in that the government did not need to call any interpreters as witnesses or provide
affidavits or deciarations from those interpreters because "the petitioner [in that case did] not argue that any specific
statement allegedly made by the petitioner {or any other detainee) was misrransiate " and because the Court did not
perceive any "benefit to subjecting the interpreters used during the petitioner’s (or other detainees’) interrogations to
cross-examination given the substance of the Coutt's ruling on the question of re|iability_" Al Bihani, slip op. at 27.
tn addition, the Court once again warned the government that "if a detainee disputes the accuracy ot`` an
interpretation, [it would] both credit such testimony absent evidence to the contrary" and preclude the government
from introducing "any evidence regarding the background and credentials of the interpreter who provided the
interpretation at issue if such information was not disclosed to the petitioner in discovery." g at 24 n, l 4.
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interrogation of other detainees lack sufficient indicia of reliability to be admitted into evidence,"
which would mean that "the failure of the government to call the interrogators who created the
reports or at least submit sworn statements approximating their testimony would preclude the
Court’s consideration of the substance of those reports." Ld. The Court also reiterated that it has
"serious concerns" regarding the reliability of interrogation reports prepared by unknown
interrogators under unknown circumstances, and “indicated that the government [might] be able
to ameliorate those concerns through the submission of individualized affidavits or declarations,"
@, that explained "the process used to create the interrogation reports, the circumstances
surrounding the interrogation, and the substance of the petitioner’s alleged statements," Q._ at 23-
29. Altematively, and "as a last resort,” the Court opined that the government might be able to
establish the reliability of its interrogation reports “through the submission of a global affidavit
describing the process used by interrogators . . . to reduce what was said and the observations
made during interrogations into their written reports." L at 29.
'l"hus, the Court’s decision in Al Bihani resolves many of the issues present in this case.
For example, field documents, or "FD-$ 023," prepared by FBI agents "to summarize an
interview," "Forrn 405," also known as "FM 40s,” which are used by the Criminal investigation
Task Force “to record investigation activity, such as witness interviews," and surnmary
interrogation reports (“SIRS") "vvritten by the interrogator after an interrogation session," which
"contains all the details of the interrogation session, including date and time, language used,
interrogation approach, and an evaluation of the detainee regarding his deception and
cooperation,“ as well as “all the intelligence gathered from the session," Gov’t’s Mem., Ex. 1
(Declaration of Sept. l9, 2008) (the_l)ecl.")
at '.~', are all explicitly covered by the Court’s ruling in that case, § Al Bihani, slip op. at 217-28
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(listing these documents). Similarly interrogator notes (e.g., IN T244 MFR (Aug. 'F, 2002),
attached as Exhibit 36 to the government’s factual retum, and IN TSO? MFR (Feb. 26, 2003],
attached as Exhibit 37 to the government‘s factual retum), and so-cailed “spot reports"
memorializing statements made by Obaidullah in response to interrogations (e.g,, IN T244 Spot
Report (re: 7)"2)'02 Land-Mine Cache), attached as Exhibit 49 to the government’s factual retum,
and IN T244 Spot Report (re: 7)'10!02 Kabul Attack), attached as Exhibit 50 to the government’s
factual return) must be assessed under the basic format delineated in Al Bihani, though the latter
group of documents may prove to be less of a challenge for the govemment to have admitted into
evidence if, as the documents appear to indicate, they were prepared by military personnel in
Afghanistan soon after Obaidullah was apprehended 83 Gov’t’s Factual Return, Ex. 49 (IN
T244 Spot Report (re: '?)‘2!02 Land-Mine Cache)) at l (indicating that the spot report in question
was prepared by a member of "Bravo Company" in Bagram, Afghanistan); i;d., Ex. 50 (IN 'I``244
Spot Report (re: 7!10!02 Kabul Attaclc)) at l (same).
Nevertheless, three issues raised by the parties require this Court’s attention. First, the
Court must determine whether intelligence reports proffered by the government memorializing
information provided by sources other than Guantanamo Bay detainees may be admitted into
evidence under either the Federal Rules of Evidence or the standard for the admission of
otherwise inadmissible hearsay set forth in judge Hogan’s case management order. Second, the
Court must consider whether any statements allegedly made by Obaidullah and al-Zarnel can be
introduced into evidence regardless of the form in which they are memorialized given the
allegations of those individuals that their inculpatory statements were produced in response to
coercive techniques employed by the govemment. And finally, the Court must assess whether an
FM40 purporting to summarizing an interview of an anonymous fenner soldier can be admitted
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into evidence assuming the government can establish that the document is itself admissible under
the Al Bihani standard. The Court will consider each of these three issues in tum.
A. ``l``he Intelligence Reports
The first question the Court will address is whether it should admit into evidence certain
intelligence reports proffered by the government. These reports consist of at least two levels of
hearsay: the statements contained within the intelligence reports, and the intelligence reports
themselves. However, the petitioner has not objected to the introduction of the intelligence
reports on the grounds that the reports themselves are unreliable or that the government could
call the individuals who prepared the reports as witnesses to testify regarding the statements
contained within those reports, §§ Pet’r’s Mem. at 54-6] (arguing only that the statements
contained within the various intelligence reports proffered by the govemment are inadmissible
because they consist of unverified statements made by sources of unknown reliability). Thus, the
Court will confine its analysis to the admissibility of the underlying hearsay contained within the
intelligence reports proffered by the govemment.
As noted above, the petitioner’s objection to the admission into evidence of the
intelligence reports proffered by the government is that the "reports do not provide sufficient
indicia of reliability to allow courts to assess the reliability of the source or the reliability of the
information contained therein." § at 54. As he sees it, "[r]aw intelligence is essentially
unusable until analyzed by a trained source intelligence anal yst, who uses the intelligence reports
to vv'rite finished intelligence . . . products." ldg (internal quotation marks omitted). "Such
scrutiny is," in the petitioner’s view, "impossible where, as here, [the govemment] redact[s] the
source information or refuse[s] to lum over supplemental information necessary to assessing the
source’s placement and reliability." Ld_; at 55. The petitioner further complains that “the sources
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mission as a cover to recruit religious extremists to terrorist organizations,“ i;l; '§IZS, and to
"help[] recruit foreign fighters for the Taliban and al-Qaida,” igl_. 11 26. lndeed, “[i]n late 2002,
Afghanistan’s foreign minister banned Jamaat from Afghanistan because Jamaat was
strengthening the al-Qaida network under the guise of preaching." § 1121 Nevertheless,
"Jarnaat has offices all over the world and funds its mernbers’ travel to preach about lslarn
worlclwide." I_d_. 1| 23.
With respect to the conflict in Afgha.nistan in particular, Jamaat allegedly "arranged
transportation l``or" an al-Qaida fighter named Musab Omar Ali al-Madoonee "and other fleeing
Arab fighters at a collection point in the Paktia [p]rovince, adjacent to Khowst." I_532 F.3d 834 (D.C. Cir. 2008). In that
case, the circuit court reviewed the decision made by a Combatant Status Review Tribuna] (the
“'I``ribunal" or "CSRT"), a "non-adversarial proeeeding[] [created] to determine whether each
detainee at Guant[a]namo [Bay] meets the criteria to be designated as an enemy cornbatant”
under Department of Defense regulations, § at 838 (internal quotation marks ornitted), that
Huzaif``a Parhat, "a Chinese citizen of Uighur heritage," § at 83'7, "was an enemy combatant”
based "on the theory that he was affiliated with a Uighur independence group" known as the East
1 By a “Hobson’s choice," the g0vemment presumably means "two or more undesirable choices." Bryan A.
Garrier, The Elemgnts of Lega| Style 117 {Oxt``ord Univ. Press 2d ed. 2002). ln point of`` f``act, the phrase
“refers . . . to the option oftaking the one thing offered or nothing at all." Id
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Turkistan islamic Movement (the "ETIM"), which, the Tribunal concluded, was "associated with
al{-]Qaida and the Taliban[] and . . .engaged in hostilities against the United States and its
coalition partners," i;d. at 838 (internal quotation marks omitted). "'I``lre principal evidence
supporting” the latter two conclusions (i.e., that the ETIM was associated with al-Qaida and the
'I``aliban and that it engaged in hostilities against the United States and its coalition partners)
“[ca.rne] from four [United States] government intelligence documents, one from the Department
of State and three from components of the Department of Defense." § at 844.
The District of Columbia Circuit reversed that determination I_d. at 854. Among other
faiiings, the court concluded that it could not "assess the reliability of the assertions in the
documents" purporting to establish that the ETlM was associated with al-Qaida and the Taliban
and that it engaged in hostilities against the United States and its coalition partners fd, at 847.
'I``he Circuit reached that conclusion because the documents did not identify the source of the
allegations contained therein, "any of the underlying reporting upon which the documents’
bottom-line assertions [were] founded," or "any assessment of the reliability of that reporting.”
_l_¢ at 846-4?'. The Circuit reasoned that without the ability to assess the reliability of the
gover'nment’s evidence, it could not carry out Congress’s mandate under the Detainee Treatment
Act, which was to “deterrnine the validity of any final decision of a [CSRT] that an alien is
properly detained as an enemy combatant," § at 840 (citing Detainee 'I``reatment Act §
100 S(e)(Z)(A))-that is,
whether the status determination of the [CSRT] was consistent with the standards
and procedures specified by the Secretary of Defense for [CSRTs] (including the
requirement that the conclusion of the Tribunal be supported by a preponderance
of the evidence and allowing a rebuttable presumption in favor of the
Governrnent's evidence),
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P_a_r_h:;t, 532 F.3d at 840 (citing Detainee Treatrnent Act § IUOS(e)(Q)(C)) modifications in
original). Thus, the Circuit could not determine whether the CSRT’S findings were supported by
a preponderance of the evidence because “[b]efore any such burden can be satisfied in the first
instance, the factfinder must evaluate the raw evidence, finding it to be sufficiently reliable and
sufficiently probative to demonstrate the truth of the asserted proposition with the requisite
degree of certainty." Parhat, 532 F.3d at 847 (quoting Concrete Pipe & Prods., Inc. v. Constr.
Laborers Pension Trust, 508 U.S. 602, 622 (1993)). Likewise, the obligation to assess the
reliability of the hearsay evidence flowed from the statute’s requirement that the government is
entitled to a rebuttable presumption in its favor-indeed, the inability to assess the reliability of
the evidence would result in an irrebuttable, rather than a rebuttable, presumption because the
court could not "ever look behind the presLunption to the actual facts." Parhat, 532 F.3d at 847
(quoting Bismullah v. Gates, 501 F.3d 1'}'8, 186 (D.C. Cir. 2007)). The Circuit, therefore,
concluded that it had an obligation under the Detainee Treatment Act to assess the reliability of
all hearsay evidence proffered by the government. §§ i, 532 F.3d at 854'("[T]his court
[cannot] conclude that [the CSRT’s] decision was consistent with [the] standards and procedures
[under the Detainee Treatment Act] unless we . . . are able to assess the reliability of the
government’s evidence.").
In reaching this conclusion, the District of Columbia Circuit rejected the notion,
advanced by the govemrnent, "that several of the assertions in the intelligence documents are
reliable because they are made in at least three different documents," id at 848, observing that,
"Lewis Carroll notwithstanding, the fact that the government has ‘said it thrice’ does not make
an allegation true." § (quoting Lewis Carroll, The Hunting of the Snark 3 (18?6)). 'I``he court
also refuted the government’s assertion "that the statements made in the documents [were]
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reliable because the State and Defense Departments would not have put them in intelligence
documents were that not the case," observing that this argument came "perilously close to
suggesting that whatever the govemment says must be treated as true, thus rendering superfluous
both the role of the Tribunal and the role that Congress assigned to [t.he circuit] courl." 1
532 F.3d at 849.
The circuit court held instead that the government was required to present its hearsay
evidence “in a fonn, or with sufficient additional information," so as to "perrnit[] the Tribunal
and [the] court to assess its reliability." § lt suggested that “there may well be other forms in
which the government can submit information that will permit an appropriate assessment of the
information’s reliability while protecting the anonymity of a highly sensitive source,"
referencing in particular “the use of appropriate nonclassif``led substitutions under the [CIPA]."
§ Ultimately, however, the court "neither prescribe[d] nor proscribe[d] possible ways in which
the government [might] demonstrate the reliability of its evidence,” choosing instead to “merely
reject the governrnent’s contention that it can prevail by submitting documents that read as if
they were indictments or civil cornplaints, and that simply assert as facts the elements required to
prove that a detainee falls within the definition of enemy combatant." § at SSU.
While Parhat addressed the government‘s evidentiary obligations in the context of a
petition for review from a CSR'I`` determination under the Detainee Treatment Act, which is not
at issue in this case, the circuit court’s observations in that decision apply with equal if not
greater force to the petitioner‘s habeas corpus petition. As this member of the Court has
explained repeatedly, the government must establish the reliability of any hearsay that it seeks to
introduce into evidence in any of the detainee cases pending before the undersigned member of
the Court, just as it was required to do under the Detainee Treatment Act in Parhat. _S_e_e Bostan,
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2009 WL 2516296, at *2 (reiterating the Court’s commitment to enforcing this requirement in
Judge Hogan’s case management order); Al Bihani, slip op. at ll (same). And just as the
'I``ribunal’s inability to assess the reliability of the government’s evidence rendered the rebuttable
presumption of accuracy accorded to that evidence under the Detainee 'l``reatment Act
"effectively irrebuttable," Parhat, 532 F.Sd at 847, so, too, would the Court’s failure to consider
the reliability of the hearsay evidence proffered by the government in this case make it virtually
impossible for the petitioner to challenge the accuracy of the proffered documents themselves.
Thus, this Court is bound by the logic of Parhat in weighing the merits of the parties’ arguments
regarding the reliability of the intelligence reports proffered by the government
This does not mean, however, that the government is permanently foreclosed from
relying upon intelligence documents as a basis for detaining the petitioner as the petitioner
advocates. To the contrary, the court in Parhat made clear that it "[did] n_ot suggest that hearsay
evidence [in the form of intelligence reports] is never reliable," but instead concluded only “that
it must be presented in a form, or with sufficient additional inf``ormation, that permits the . . .
court to assess its reliability." § at 849. Thus, the court decided over the petitioner’s objection
to remand his case for further proceedings before the Tt'ibunal because it did not know "whether
the government ha[d] additional evidence that would cure the reliability issues" identified by the
court. I_d. at 850.
This Court is also not persuaded by the petitioner’s argument that "[r]aw intelligence is
essentially unusable until analyzed by a trained source intelligence analyst." Pet’r’s Mem. at 54.
ee eeee en ee eeeeeeeeee eem.
_ee v eeeeveeeeee eeveeeeee
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determine the reliability of raw intelligence by looking first at the general description of the
source. _lg at 3. Factors to be considered in assessing the source in general include -
-2009 WL 252458? (D.D.C. Aug. ]8, 2009), judge
Bates of this Court followed Parhat in determining whether intelligence reports proffered by the
govemment provided a basis for detaining Shawali Khan, another Guantanarno Bay detainee. l;d.
at *2 ("Even under relaxed evidentiary standards, . . . the credibility or reliability of the evidence
must be assessable by a court . . . . The interplay between the presumptions [in the govemment’s
favor] and the requirement of reliability was squarely addressed in Parhat."). lodge Bates
explained the precedential impact of Parhat as follows:
First, courts must determine whether the evidence relied upon
contains enough information to permit an assessment of reliability.
If it does, then courts must examine that information and determine
whether the evidence is in fact sufficiently reliable to be used as a
justification for detention. But if it does not contain enough
information, and if it is not corroborated by otherwise reliable
evidence, then courts are precluded from assessing the evidence’s
reliability. And if courts cannot assess reliability, then the
evidence in question is inherently unreliable and may not be relied
upon to justify detention
§ at *3.
This member of the Court respectfully disagrees with judge Bates insofar as he suggests
that hearsay can be deemed reliable if it is "corl‘oborated by otherwise reliable evidence." § As
the Court explained in Al Bihani, "[t]o the extent that the information within [an otherwise
unreliable hearsay] statement mirrors [othervvise reliable] corroborating evidence, its admission
into the record would be redundant, and to the extent it differs from the corroborating evidence,
it is no longer corroborated and therefore has no external indicia of reliability." Al Bihani, slip
op. at l?'-i 8. “Further, the otherwise unreliable evidence, while having no probative ef``fect, will
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doubtless create the illusion that the admissible evidence has been corroborated by the otherwise
inadmissible evidence even though the otherwise inadmissible evidence, having no indicia of
reliability of its own, cannot corroborate anything.” Ld. at 18 n.ll. Thus, the use of otherwise
reliable corroborating evidence as a means to assess the reliability of otherwise unreliable
hearsay is ultimately misguided, as its ultimate effect is only to possibly mislead the factfinder
(in this case, the Court) into thinking that the weight of the government’s evidence is greater than
it actually is."
in all other respects, however, this member of the Court agrees with judge Bates’s
formulation of B_rhat_t’s imp0rt. Consequently, with respect to the intelligence reports proffered
by the government in this case, the Court must first “deterrnine whether the evidence relied upon
contains enough information to permit an assessment of reliability," and then “must examine that
information and determine whether the evidence is in fact sufficiently reliable to be used as a
justification for detention." K_h_a_g, 2009 WI.. 252458')', at "‘3. This member of the Court further
agrees with .l ud ge Bates that the principles used by intelligence collectors to assess the credibility
of human intelligence “provide the best set of criteria for a court to use to determine whether the
raw intelligence reports [that the govemment] rel_[ies] upon to justify [the] petitioner’s detention
§
are reliable and credible.’ § And "[i]f the evidence [that the govemment] rel[ies] upon to
9
As an altemative to }udge Bates’s approach, this member of the Court has suggested that "independently
admissible evidence can be used to assess whether the source of a particular statement is sufficiently reliable in
general to permit the admission of any statements by that source into evidence," Al Bihani, slip op. at IS, by
“establish[ing] that the statements provided by that source are, in general, t``actuatly accurate by a preponderance of
the evidence," i_d._ at 19. This approach reflects Parhat's general observation that “there may well be other forms in
which the govemment can submit information that will permit an appropriate assessment of the information‘s
reliability while protecting the anonymity ofa highly sensitive source,” Parhat, 532 F.3d at 849, guoted in §|'lg,
2009 WL 2524587, at *4, and is consistent with the Supreme Court``s ruling in Rugendorf v. United States, 3'.~'6 U.S.
523 (1964), that an affidavit in support of a search warrant containing hearsay may be relied upon "so long as there
was a substantial basis for crediting the hearsay,” § at 533, guoted in W, 2009 WL 2524587, at *4. ln other
words, the approach taken by this member of the Court accords with the very same authorities cited by judge Bates
in §§ for the proposition that, “even if particular evidence is unreliable standing alone, it may nonetheless be
reliable if corroborated by other reliable evidence," l(_h_ag, 2009 WL 252453'?, at *4, and, at least in the estimation of
this mem ber of the Court, addresses more adequately the concems expressed in Parhat and Rugendorf.
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justify detention does not provide enough information to permit assessment" of a source’s
reliability using the criteria outlined above, or otherwise “precludes [the C]ourt from assessing
the reliability of the evidence[,] then the evidence cannot be relied upon to justify detention.” ld_.
Finally, as the Court has previously explained from the bench, and in accordance with the
suggestion of the District of Columbia Circuit in W, the Court will consider source
infonnation that has been redacted §§ parte and g camera where necessary in accordance with
the procedures in the CIPA, as interpreted by this Court in mg Section 4 of the CIPA
provides that “[t]he court, upon a sufficient showing, may authorize the United States to delete
specified items of classified infon'nation from documents . . . , to substitute a summary of the
information for such classified documents, or to substitute a statement admitting relevant facts
that the classified information would tend to prove.” 18 U.S.C. app. 3 § 4. In L_ibl_:)y, this Court
delineated the following procedure for considering g ;L‘t§ submissions under Section 4 of the
CIPA where, as here, the opposing counsel has a security clearance:
Th[e] submission must necessarily include a declaration or
affidavit, executed by an intelligence community official with the
requisite classification review authority, which (l) describes the
reasons for the classification of the information at issue, (2) sets
forth the potential harm to national security that could result from
its disclosure, and (3) explains why the [petitioner’s counsel],
based upon appropriate classification guidelines, does not have a
"need-to-know the information" in its unaltered form. . . .This
showing must detail why the classified documents the government
is producing g ping are of a nature and quality distinguishable
from the classified documents already produced to the [petitioner].
429 F. Supp. 2d at 25.
Upon receiving this submission, the Court "will review it and determine whether the
filing should remain g parte, or whether all or some portion of it should be provided to the
[petitioner]." I_d. And if the Court determines that some or all of the withheld information is
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material to the petitioner’s case but the govemment nonetheless refuses to disclose the
information, the Court may choose to impose sanctions on the government, such as prohibiting
its use of the redacted or withheld information. _S_§§ 18 U.S.C. app. 3 § G(c)-(e) (providing that
where a court refuses to issue an order for "the substitution [of] . . . classified infonnation" v.rith
a summary or statement of relevant facts pertaining to that int``ormation, and the govemment
“object[s] to [the] disclosure of the classified information . . . ," then the Court shall order such
remedial action as it determines is appropriate, including "striking or precluding all or part of the
testimony of a witness."). Additionally, although the CIPA "specilIies] written submissions"
from the government, "[it] do[es] not rule out hearings in which govemment counsel
participate." United States v. Klimavicius-Viloria, 144 F.3d 1249, 1261 (9th Cir. 1998). Thus,
while "[g]_)_c_ 1 hearings are generally disfavored," such hearings “are part of the process that
the district court may use in order to decide the relevancy of the infonnation." I;d.
With these guiding principles in mind, the Court turns to the specific intelligence
documents at issue in this case, which consist of intelligence information reports (“IIRs"), "the
main [Department of Defense] reporting vehicle for the [human intelligence] information used
by [the] DIA and military services,” - Decl. at 6, -
s s f““‘a‘
matter, most of the IIRS proffered by the govemment purport to summarize interrogations of
various detainees at Guantanamo Bay and, in some instances, are derivative of separate
interrogation reports. §:_e Gov’t’s Return, Ex. 41 _ at l-2 (summarizing
statements made by a detainee at Guantanatno Bay bearing the ISN 1045); @, Ex. 42 _
-at 3-4 (surnmarizing FBI 302 memorializing interrogation of-; L, Ex. 43
_ at 6-12 (summarizing FBI 302 memorializing interrogation of the
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[the petitioner] helped make arrangements to take al-Z.ain[e]l and another A_rab fighter to a house
at the Pakistan border," ii 1[ 30.
The government also alleges that the petitioner led an al-Qaida bomb cell in eastern
Af``ghanistan.
Allegedly, "Obaidullah ultimately admitted at the
scene that he was keeping the mines for an individual named Karim and that Karim gave him the
notebook." § 11 38. Ftu‘ther, “[d]uring interrogation at -Airf'ie]d in At``ghanistan,
O'oaidullah [allegedly] admitted his involvement with [the petitioner].“ §§ 11 41.
In addition to Obaidallah’s statements,
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petitioner); id_., Ex. 4¢_ at 1-4 (summarizing interrogation of Guanténamo
Bay detainee bearing the ISN 703); i_cL, Ex. 45 _ at l-2 (summarizing
interrogation of Guantanamo Bay detainee bearing the ISN 839); L, Ex. 46_
at l-2 (summarizing interrogation of Guantanamo Bay detainee bearing the ISN 753); @, Ex. 47
_) at 3-8 (summarizing interrogation of Guanté.narno Bay detainee bearing the
lSN 1021); @, Ex. 4a at 2-4 (summarizing interrogation of "a 25~yea.r old
ethnic Pashtun male Afghan . . . . in [United States] custody"). Accordingly, these documents
are subject to the same requirements previously delineated by this Court with respect to SIRs,
FM40s, and the like: namely, to introduce the statements into evidence, the govemment must
demonstrate that the statements allegedly made by the source, if not admissible under the Federal
Rules of Evidence, (l) were made under circumstances that render them intrinsically reliable or
were made by reliable sources and, (2) with respect to statements crucial to the govemment’s
case (i.e., the sources of any statement inculpating the petitioner in a material way, such as
Obaidullah) that it would be unduly burdensome to call the sources as witnesses or provide
declarations or affidavits under oath in lieu of live testimony, (3) that the statements purportedly
made by these sources were interpreted by a reliable interpreter (i.e., an interpreter who works
for the FBI or who has an ILR score of at least 3 in English), (4) that the interpreted statements
were recorded by the interrogator in a mariner that is reliable, and (5) that the interrogator is
unable to testify or at least submit a declaration or affidavit approximating such testimony. §
Ln_i, slip op. at 14-30. If the government cannot meet these five requirements with respect to
each IIR, the IIR for which these conditions have not been satisfied will be excluded from the
record .
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The Court has already held that_(attached as Exhibit 39 to the
government’s factual return) cannot be introduced into evidence because it is sourced to
unverified sources on the intemet. § Y}B Part I. That leaves _attached as
Exhibit 40 to the govemment’s factual return), which purports to summarize "a notebook
containing a diagram on how to construct a remote-controlled explosive device." Gov’t’s
Factual Retum, Ex. 40 Et l. lt also states that someone (presumably the
owner of the notebook) "received 300 from Abdullah," another "500[,] and then 2,700." l_d; at 2.
Assuming the government can establish that the notebook referenced in this IIR belonged
to Obaidullah, it can use the IIR to establish that he carried around a notebook containing what
amounts to a reference guide on how to construct a bomb. However, unless it can demonstrate
the applicability of one of the hearsay exceptions set forth in the Federal Rulcs of Evidence or
otherwise establish that the notes in the notebook were written under circumstances guaranteeing
their trustworthiness, the government cannot introduce the notebook into evidence for the truth
of the matter asserted thereirl-i.e., that Obaidullah received various amounts of money from
Abdullah Noor_without demonstrating that both the source and the recorder of the contents of
the notebook (presumably Obaidullah on both counts) are generally reliable and that it would be
unduly burdensome for the government to call this source (or these sources) as a witness (or as
witnesses). §e_e infra Part III.B (discussing the undue burden prong of the hearsay standard
governing this case with regards to Obaidullah).
Court to consider the issue g parte and i_n camera consistent with the approach delineated above.
The Court has completed this review and has concluded (l) that knowledge of the source
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information is not material to the petitioner’s case and (2) that the reports are reliable based upon
the source information provided by the govemment §§ Lrte_ and m i. Accordingly, the
government need not disclose any source information regarding these reports to the petitioner to
avoid exclusion, and the reports will be admitted into evidence.
B. The Alleged Statements of Obaidullah and al-Zamel
The bulk of the petitioner’s objections relate to statements made by Obaidullah and al-
Zamel, which, the petitioner contends, are unreliable. Pet’r’s Mem. at 5-41. With respect to
Obaidullah, the petitioner contends that any inculpatory statements proffered by the govemment
are the product of coercion and must be rejected as such. § at 5-25. With respect to al-Zarnel,
the picture is more complicated: at various points, the petitioner argues that any statements made
by that witness must be excluded because (l) al-Zamel was also subjected to coercive
techniques, (2) statements made by al-Zamel concerning conversations allegedly conducted
between him and the petitioner are implausible given the fact that al-Za:rnel speaks only Arabic
and the petitioner speaks only Pashtu, (3) known facts contradict al-Zamel’s statements, (4) al-
Zamel is a known liar, (5) al-Zamel was enticed by interrogators to provide inculpatory
statements against the petitioner, and (6) al-Zaxnel has subsequently recanted his accusations
against the petitioner. I_d_. at 25-41.
The petitioner’s arguments concerning the use ot`` statements allegedly made by
Obaidullah under coercive conditions give rise to a number of legal and evidentiary issues. In a
typical case, “confessions which are involuntary, i_e., the product of coercion, either physical or
psychological," may not be admitted under the Due Process Clause of the Fif’th Amendment (or
the Fourteenth Arnendrnent in state criminal proceedings), "not because such confessions are
unlikely to be true[,] but because the methods used to extract them offend an underlying
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principle in the enforcement of our criminal law: that ours is an accusatorial and not an
inquisitorial system," Rogers v. Richmond, 365 U.S. 534, 540-41 (1961), and "because
declarations procured by torture are not premises from which a civilized forum will infer guilt,"
Lyons v. Okla., 322 U.S. 596, 605 (1944]. The detainees at Guantanamo Bay, however, have no
due process rights. g Kiyemba v. Oba.nia, 555 F.B'd 1022, 1026-27 (D.C. Cir. 2009)
("Decisions of the Supreme Court and of this court . . . hold that the due process clause does not
apply to aliens without property or presence in the sovereign territory of the United States.").'°
At the same time, "another legitimate reason to suppress [the fruits of torture] is the
‘likelihood that the confession is untruc.’“ United States v. Karake, 443 F. Supp. 2d 8, 50-51
(D.D.C. 2006) (quoting Linkletter v. Walker, 381 U.S. 613, 638 (1965)]; se_eg@ jackson v.
l, 378 U.S. 368, 386 (1964) (noting "the probable unreliability of confessions that are
obtained in a manner deemed coercive."]. This second basis for excluding evidence obtained
through coercive means resonates even in the context of these habeas corpus proceedings, as the
Court is required by the Supreme Court’s decision in Boumediene to “conduct a meaningful
review" of "the cause for detention.” Boumediene 128 S. Ct. at 2269. But whereas the former
basis for exclusion invites a categorical prohibition of the kind required by the Due Process
Cfause, the latter basis does not, for it is at least conceivable that the government could establish
either that a specific witness (in this case, Obaidullah) consistently produced accurate
m Thc petitioner suggests in a footnote that "[t]he Supreme Court’s decision to vacate and remand the [District of
Columbia] Circuit’s decision in Rasul v, Myer , 512 F.3d 644 (D.C. Cir. 2008) [(‘Rasul l‘},] demonstrates the
continuing recognition that the Fifth Amendment of the Constitution prohibits the United States from engaging in
torture, no matter who the subject of that torture may be," Pet'r‘s Mem. at 24 n.8 (citing Rasul v. Myers, U.S.
___, _, 129 S. Ct. '!63, 763 (2003) (“Rasul II"]). In point of !``act, the District of Columbia Circuit noted in Ls_u_l
v. Myers, 563 F.3d 52? (D.C. Cir. 2009) ("Rasul III") that in Boumedieng (the decision that led the Supreme Court
to vacate Rasul I, g Rasul ll, _ U.S. at , 129 S. Ct. at 763 (va.cating Rasul I "in light of Boumedienc"]}, the
Supreme Court “disclaimed any intention to disturb existing law ggveming the extraterritorial reach of any
constitutional provisions{] other than the Suspension Clause," and that as a consequence the court “[had to] adhere
to the law of[its] circuit," Rasul Ill 563 F.Jd at 529; i.e., the conclusion reached by the District ofColumbia Circuit
in Rasu| 1 that "Guant{a]namo detainees lack constitutional rights because they are aliens without property or
presence in the United States," Rasul I, 512 F.3d at 663,
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information even when subjected to coercive tactics, or that certain techniques employed by the
govemment, even if coercive, are generally successful in producing reliable information. This
kind of factual inquiry would amount to a virtual trial over the efficacy of torture itself-a
prospect the Court finds both distasteful and distracting.
The petitioner’s argument that Obaidullah’s inculpatory statements should be excluded as
the product of coercive techniques is further complicated by the fact that he supports his
assertions of torture by recourse to hearsay, a form of evidence he finds objectionable in other
circumstances Speciflcally, the petitioner relies upon the following to support his assertion that
Obaidullah was subjected to coercive techniques: (l) a written summary of Obaidullah’s
testimony at his CSRT proceeding, (2) a number of FM4Us summarizing interviews of
Obaidullah and soldiers at -Air Force Base, where Obaidullah was initially detained, (3)
interrogation reports regarding Obaidullah and Wazir, including one suggesting that Obaidullah
be subjected to "an adjusted sleep schedule," (4) passages from a book, newspaper articles, and a
medical web site, (5) the purported transcript of an interview of a former guard at Guantanamo
Bay posted on another web site, and (6) reports prepared by the Office of the inspector General
of the United States Department of justice and the Committee on Arlned Services of the United
States Senate. § Pet’r’s Mem. at 5-22 (citing various exhibits produced by the petitioner in
support of his assertion that Obaidullah was subjected to coercive techniques). The petitioner
has not yet even attempted to demonstrate that these documents, each containing hearsay in one
form or another, are admissible under the hearsay standard governing the introduction into
evidence of the government’s proffered hearsay under the unique circumstances of these
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Guantanamo Bay detainee cases," let alone the Federal Rules of Evidence. Consequently, the
Court cannot consider these documents as a basis for excluding Obaidullah’s purportedly
inculpatory statements at this time.
Ultimately, however, the Court need not decide whether Obaidullah’s alleged statements
were coerced or whether such statements must be excluded if they were the product of the
coercion because the government has not made a threshold showing that the statements in
question are reliable or that it would be unduly burdensome for the government to call
Obaidullah as a witness at the merits phase of this proceeding. ]nstead, the government argues
that his "admissions implicating [the petitioner] are consistent with other evidence" and "should
be considered in the context of the evidence as a whole"_arguments rejected by the Court in ;\_l
Bihani and Bostan, respectively. Gov’t’s Reply at l?; see also Al Bihani, slip op. at 17 ("[``l``]he
existence of evidence corroborating a specific statement made by a declarant . . . does not assist
the Court in determining the reliability of the form . . . in which that information is presented.”);
E';tan, 2009 WL 2516296, at *5 (rcfusing to "defer questions of admissibility until all of the
govemment’s evidence has been considered on the theory that the reliability of a particular piece
of evidence will generally depend on how it fits within the evidence as a whole" (internal
quotation marks omitted]]. lt also argues that Obaidullah’s statements were, on various
occasions, "extremely detailed," Gov’t’s Reply at 21; see also i_d_i_. at 3 ("Obaidullah’s detailed
" The Court has previously expressed some ambivalence about applying judge Hogan’s two-prong standard to
determine whether otherwise inadmissible hearsay proffered by the petitioner should nevertheless be entered into
ovidence. § MiBilli_i, slip op, at 12 n.6 (t``inding it "unclear. . . whether the petitioner should be permitted to
introduce otherwise inadmissible hearsay in this case under any oircumstances, let alone the circumstances
delineated [in ] with respect to the govemment" given that "the Supreme Court mentioned only the
possibility of considering hearsay proffered by the govemment in Hamdi and Boumediene."). At a minimum, the
petitioner should not assume that the Court will employ the same standard for admitting into evidence any otherwise
inadmissible hearsay proffered by the petitioner that it has employed with respect to the govemment‘s proffered
hea``rsay. 0n the other hand, the government should be aware that the Court has ooncems about requiring the
petitioner to play by different rules of admissibility.
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confessions at Bagran\ implicating [the petitioner] are reliable because they are detailed and
consistent with other evidence . . . ."); id at 18 (noting the "detailed accounts of the operations of
the [petitioner’s alleged bomb] cell."), but the Court rejected this argument in Al Bihani as well,
g Al Bihani, slip op. at 17 (explaining that, while “the level of detail provided in a specific
statement may have some impact on the credibility of the substance of the statement once it is
found to be reliable," it "does not provide any assistance in determining whether the form in
which this information is presented is sufficiently reliable for the substance of the statement to be
consideredin the first instance.").
Moreover, the government has not even attempted to demonstrate that it would be unduly
burdensome to call Obaidullah, who is still detained at Guantanamo Bay, as a witness in this
case.'z Given the centrality of Obaidullah’s statements to the government’s case, the
govemment cannot skirt this issue as it did with the comparatively less important witnesses at
issue in Al Bihani. Instead, the government must establish that it would be unduly burdensome
to call Obaidullah as a witness or, failing that, to provide a swom statement setting forth the
testimony that Obaidullah would provide were he called to the witness stand. Until this prong of
the hearsay standard is satisfied and the government has established his reliability as a vvitness in
general (or demonstrated the applicability of one of the hearsay exceptions set forth in the
Federal Rules of Evidence), the govemment cannot rely upon any statements allegedly made by
Obaidullah.
'° Counsel for the government has opined that it is "highly unlikely" that counsel for Obaidul|ah would permit him
to testify on behalf of either the government or the petitioner. Transcript of August 28, 2009 Status Conference at
l0, Bostan, Civi| Action No. 05-883. Setting aside the question of whether Obaidul|ah could invoke any privilege
' against self-incrimination given that he has no due process rights, the Court recognizes that it might be unduly
burdensome, if not impossible, as a practical matter to call Obaidullah as a witness on its behalf if he refuses to
testif``y, However, before any finding of undue burden can be made, the govemment must at least attempt to call him
as a witness or, failing that, attempt to acquire an affidavit or declaration fi'om him regarding the matters it would
otherwise question him about at a hearing.
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These conclusions with respect to Obaidullah directly affect the admissibility of al
Zarnel’s alleged statements. As the govemment concedes, his alleged statements are for the most
part made up of yet more hearsay in the form of alleged "admi[ssions]" made to al-Zamel by the
petitioner and Obaidullah. Given that the Court has provisionally excluded any statements made
by Obaidullah pending further submissions by the govemment, there is no need to consider at
this time whether al-Zamel’s recounting of alleged statements by that witness is separately
admissible.
As for the petitioner’s alleged admissions to al-Zamel, they must be excluded for a
separate reason. 'l``he government freely admits that the statements allegedly made by the
petitioner were not made to al-Zamel directly, but rather were interpreted by another detainee,
Omar Khadr, from the petitioner’s native Pashtun into Arabic. Gov’t’s Reply at 29. 'I``he
government has not established (and presumably cannot establish) that Khadr was sufficiently
proficient in both Arabic and Pashtun to accord his putative interpretations any presumption of
reliability. §§ Al Bihani, slip op. at Zl-Z? (discussing the minimum requirements for
interpretations of statements to be considered sufficiently reliable to perrnit their admission into
evidence). Accordingly, any statements allegedly made by the petitioner to al-Zamel through
Khadr must be excluded based on the current record.
'l``o the extent the government seeks to rely on any statements made by al-Zarnel other
than his representations as to what he was told by Obaidullah or the petitioner (or to the extent
the government is able to convince the Court that Obaidullah’s statements are admissible based
upon any supplemental submissions and argument presented to the Court), it will need to
establish “(l) that the circumstances surrounding the creation of the hearsay are such that the
hearsay is inherently reliable or (2) that the source of the hearsay is generally reliable, thereby
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giving rise to a presumption of reliability as to any hearsay statements provided . . . by [al-
Zamel]." ld_. at 19. The government has not yet attempted to satisfy this standard. Until it does,
al-Zarnel’s statements must be excluded as unreliable hearsay.
The Court does, however, side with the govemment on one point regarding al-Zamel.
Given that he is by all accounts outside the jurisdiction of the United States and free from the
governtnent’s custody, the Court finds that al-Zamel is unavailable to testify as a witness within
the meaning of Federal Rule of Evidence 804(a) and that as a consequence it would be unduly
burdensome to require the govemment to call him as a witness. § October 23, 2009 Order, §
Bihani v. Obama, Civil Action No. 05-2386 (RBW), at 5 ("[T]he Court considers it axiomatic
that the government should not be required to call as a witness in this case an individual who
would be considered unavailable in an ordinary civil lawsuit."). In other words, the government
need only supplement its submissions with regards to the reliability of al-Zamel as a witness (or
provide sufficient evidence to convince the Court by a preponderance that his statements were
made under circumstances guaranteeing their trustworthiness), as it has already satisfied the
undue burden prong of the hearsay standard governing this case.
C. Interview of Anonymous Soldier
The final issue before the Court is the admissibility ofan FM 40 purporting to summarize
an interview of a former soldier that took place on December 18, 2006. Gov’t’s Return, Ex. 21
(FM 40 (Deo. 13, 2006)) at 1. ns with the eoureee ofthe information oontainea within-
submitted by the governrnent, the identity of this fenner soldier is redacted from the FM 40;
however, the government has indicated in its g ;:L, gt_ gam_@ submission to the Court that the
identity of the former soldier has been declassit'led and will be disclosed to the petitioner. lt is
therefore incumbent upon the govemment to demonstrate how it would be unduly burdensome to
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call this fenner soldier as a witness at the merits phase of this case given that the witness is
apparently no longer a member of the military and apparently resides in or near the Washington,
D.C. metropolitan area. Ld. The Court will therefore defer any ruling as to the reliability of the
former soldier‘s statements in the FM 40 until it is clear whether the former soldier will be called
as a witness by the government and, if not, whether the government may substitute the FM 40
memorializing his interview instead.
IV. Conclusion
This memorandum opinion is the third in a series of decisions resolving various
evidentiary issues common to the detainees at Guanta.rlamo Bay with habeas corpus petitions
actively proceeding before this member of the Court. A casual reader might infer from the tenor
of those decisions that the Court finds the government’s evidence unacceptable. Not so. With
minor exceptions, the Court has not categorically excluded any of the evidence presented by the
government, nor is it doing so in this memorandum opinion.
Instead, what the Court has consistently done in these cases is require the government to
support its arguments for admissibility with the best evidence available and in a manner that
guarantees some modicum of trustworthiness in the proffered evidence. That this requirement
has proven so difficult for the government to accept is troubling in and of itself, for the basic
guidelines set forth by the Court-that the govemment should use otherwise inadmissible
hearsay only when it truly needs to do so and the hearsay is reliable-would not be considered
onerous or controversial in virtually any other type of proceeding But these strictures concem
the manner in which the govemment’s proffered evidence has been presented to the Court, not
the evidence itself, and it may well be the case that much if not all of the hearsay proffered by
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And, "[i]n an earlier reported incident, Obaidullah and [‘]Karirn[' allegedly] had been
seen taking some individuals to the hospital after the individuals suffered injuries setting up
some rnines." § 1[40.
That same day, "cluring
interrogation by the [United States] military at Bagratn, Obaidullah [allegedly] provided the
location of [the petitioner’s] home, despite previously professing not to know where
[the petitioner] lived.” l*t_l_. 11 44. "'l``he next day, he also [allegedly] provided information about a
planned attack on Kabul and the location of a landmine cache." g 1[ 44.1.
Ir1 addition, Obaidullah allegedly stated that "[the petitioner] recruited [him] for an al-
Qaida bomb cell," that Obaidullah and the petitioner "met four times and discussed terrorist
attacks," and that, “[a]t their first meeting, [the petitioner] talked about killing Arnericans and a
planned attack on Kabul." I_cl_. 1[44.4. Obaidullah allegedly stated that “[the petitioned had
asked [him] to drive a truck full of wood, lumber[,] and a bomb to Kabul and to place it close to
[United States] forces." I_d_. 1[ 45. As alleged by the government, Obaidullah further stated that,
“[t]wo days after the first meeting [with the petitioner], . . . [the petitioner] told him to prepare a
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the government will be admitted into the record once the government has (to the extent possible]
shored up its evidentiary submissions in the manner required by the Court."
For now, at least, the Court expects that the government, having been placed on notice of
the rulings delineated above and in the Court’s earlier rulings, appreciates what it needs to do to
supplement its evidentiary submissions and will do so (if it can) in an expedited manner. '[``he
Court will therefore direct the government to supplement its evidentiary submissions within
thirty days of the entry of the order accompanying this memorandum opinion, with any response
from the petitioner to follow within fourteen days thereafter. In light of these new deadlines, the
Court will reschedule the status hearing currently scheduled for October 2':', 2009, at 9:00 a.m. to
another date and time to be determined in consultation with counsel for the parties.
Finally, while the Court has regularly granted requests for extensions of time by the
government in response to its preliminary evidentiary rulings because the requested extensions
have to this point been of a reasonable duration and the rulings made by this member of the
Court differ in some respects from other members of the Court, the window of time in which the
government could credibly claim to be surprised by the outcome of these evidentiary disputes
has now closed. The Court therefore expects that the govemment will abide by its rulings from
this point forward with respect to al_l of the active habeas petitions from Guantanarno Bay
pending before this member of the Court, and will look with disfavor upon any requests by the
govemment for extensions of time with respect to those habeas petitions that have not yet
reached the evidentiary phase of the proceedings The path to resolving these cases chosen by
" For example, the government may be able to demonstrate, through the testimony or swom statements of
interrogators, that the circumstances under which Obaidullah and al-Zamel provided their purportedly inculpatory
statements to Guantanamo Bay interrogators are such that the statements truly were statements against interest under
Federal Rule of Evidence 804, in which case many of the concems raised by the Court with respect to the admission
of those statements would dissipate.
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this member of the Court has been a comparatively slower one, but the Court intends now to
proceed with all deliberate speed with respect to resolving all of the cases pending before it from
this point forward.
so oRDERED this ?.Z>"Qay of o.».rob¢r, 2009.
/
GIE B. WALTON
United States District lodge
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landmine cache," ij__ 1 46, and "delivered the landmines to [his] house“ that same day, id._ 11 46.1.
“At their last meeting, about ten to twelve days afier [the petitioner] delivered the landmines,
[he] gave instructions to Obaidullah on how to set up a remote-detonated landmine attack." Id_.
11 46.2.
"During interrogations in Afghanistan, Obaidullah also [allegedly] informed the military
of a different cache of land mines that he and his uncle buried for [the petitioner] in the Mulani
village.“ g ‘g 47. "Obaidullah [allegedly] provided the location of the compound where they
were hidden, the precise location within the compound where they were hi dden, and the name of
the compound’s owner." @1|47.3. Further, Obaidullah allegedly "admitted that [the petitioner]
would probably remove the mines in the near future." g
“After arriving at Guant[a]namo Bay, -allegediy] implicated [the pe'citioner]
in three separate interviews." I_cL 11 48. Specifically, Ellegedly stated "[i]n 0ctober
and November of 2002 . . . that [the petitioner] requested that he store and plant . . . mines, and
that -aid so for m@ney." § 1143.1. “ln march of 2003, _aiiegediy]
repeated his account about the mines," stating that “[the petitioner] had him store the landmines
in return for money that -)wed [the petitioner] for mismanaging their business." Li_.
1]48.3. Moreover, “[a]ccording to -, three days before [his] an:est, [the petitioner]
[allegedly] drew some schematics on how to detonate the mines in [his] notebook, which
-)laced under his mattress." § 1|48.3. Allegedly, .tated that
[the petitioner] told him that the purpose of the mines was to kill people [the petitioner]
dislilced.“ l_c_i_. 11 48.4.
In addition to statements allegedly made to the govemment, Obaiduilah allegedly made
numerous statements to al-Zamel inculpating the petitioner He allegedly told al-Zamel "that
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[he], [the petitioner], Omar Khadr, and others set up an arnbush site in Khowst targeting an
American convoy," § il 52. l, and "that the bomb cell operated under the direction of senior al-
Qaida operative Abu al-Layth al-Libi," § il 52.4, who was allegedly "involved in IED attacks in
eastem Afghanistan, including Khowst," § i[53. More recently, 0baidullah allegedly "told
interrogators at Guant[a]narno [Bay] that [the petitioner] had threatened him," i_rl_. il Sl.l, and
“that he feared for his family in Afghanistan," § il 51.3. Obaidullah also allegedly told Wazir
"that he feared [the petitioner] would kill hirn." § il 51,4.
The petitioner and -were allegedly detained at a checkpoint in Pa.kistan by Pakistani
soldiers on August 13, 2002. § il 54. "'I'he soldiers detained [the petitioner] and ``fter
[allegedly] witnessing -)ass a satellite phone to [the petitioner] as the soldiers prepared to
question -’ Li. 11 55.2. when he was appreh¢naed, ‘-was [aliegedly] carrying $2,?00
in [United States] dollars, 3,600 Pakistani rupees, and '?'0,000 Ai``ghan rupees.” § il 55.1.
According to the govemment, “[t]he bomb notebook recovered from Obaidulla.h contained an
entry about receiving ‘300’ from ‘Abdullah Noor"’ followed by receipts of “‘500’ and ‘2700."’
§ il 55,].1. "Abdullah Noor is Wazir’s brother and [allegedly] is another Ja.rnaat missionary in
Khowst." § il 55.1.2.
According to the government, "Wazir’s and [the petitioner’s] stories have been
inconsistent about why they were traveling together in Pakistan and are not credible." § il 55.
For example, "[the petitioner allegedlyl had originally told investigators that -was taking
the phone to Peshawar to get it fixed, but [then] later said that he leamed the phone was broken
from the guards when they tried to turn it on." I_d_. il 55.2.2. "In some accounts, End
[the petitioner] each claimed that they were traveling together only because they met by chance
at a bus station in Miram Shah, Pa.kistan," § il 55.4, but “li]n a different account, Wazir said that
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they met at a bus stop in Khowst, not Miram Shah," § 11 55.4.1, and on yet another occasion
"Wazir [allegedly] said that he first saw [the petitioner] when [he] got on the bus in Pakistan, as
opposed to at the bus stop," § 1{55.4.2. And while llegedly stated that, "[b]efore
traveling together, . . . [he and the petitioner] had not seen each other for five years," @1] 55.4.3,
“[the petitioner allegedly] said that he and -had seen each other only l5 days before
traveling t0gether. . . and that they saw each other every other 15 days either passing on the
street in Khowst or at the local mosque," § 1[ 55.4.4.
On June 12, 2009, the undersigned member of the Court, with respect to those habeas
corpus petitions filed by detainees at the Guantanamo Bay Naval Base that are now pending
before this member of the Court, amended the case management order goveming these
proceedings to establish a format for determining the admissibility of the evidence relied upon by
the government prior to any factfinding hearing on the merits of the petitions.‘ Specitically, the
Court determined, over the government’s objection, that it would consider questions of
admissibility regarding the government’s evidence prior to holding any merits hearings in the
detainee cases before it because the government’s evidence, if held to be inadmissible in part or
in whole, might not suffice to establish even a prima facie case for military detention under the
standard set forth by this member of the Court in Gherebi v. Obama, 609 P``. Supp. 2d 43 (D.D.C.
2009) (Walton, .T.). The Court therefore established a framework by which the govemment
would identify which sources of evidence it intended to rely upon at any evidentiary hearing on
the merits of the petitioner’s detention, the individual petitioners would file their objections to
any evidence cited, and the Court would resolve such objections before determining whether the
" The Court initially ordered this amendment on june 4, 2009, but reconsidered and eventually vacated that order
upon request from the government
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government’s case was strong enough to require rebuttal evidence from the individual
petitioners.
As directed by the Court, the government has filed a statement of proposed facts listing
the sources of evidence relied upon in this case with respect to each factual assertion. The
govemment has also submitted a lengthy memorandum of law in support of the admissibility of
those sources into evidence, In that memorandum of law, it argues that, pursuant to Hamdi v.
Rumsfeld, 542 U.S. 502 (2004), and Boumediene v. Bush, ___ U.S. __, 128 S. Ct. 2229 (2008),
"hearsay information contained in the regularly prepared intelligence reports that are relied upon
in these cases should be deemed sufficiently reliable to be admitted{] unless sufficient credible
evidence at the merits hearing establishes that the information is unreliable," Gov``t’s Mem. at 3.
lt further advocates that, "[i]n evaluating whether to credit hearsay, the Court should reject
general allegations that the reported information is inaccurate or unreliable, including
unsupported challenges to the reliability of Sources." § at 4. Instead, it suggests that, "to
demonstrate that hearsay evidence in an intelligence report should not be credited, [the]
petitioners should be required to offer credible evidence rebutting the reliability of a document."
Li-
The government also devotes considerable energy to explaining the function of and
justifying its reliance on the various hearsay documents attached to the petitioner’s factual retum.
As explained by the government, there are "two categories of information" upon which it
principally relies: "(l) intelligence reports[] and (2) reports of interviews with the petitioner[]
and others." I_45 F.3d 308, 310 (9th Cir. 1995)]. Further, given that "the
admissions contained in such reports are admissible in ordinary civil or criminal trials," the
govemment contends that "[t]hey should certainly be admissible in the special circumstances of
these habeas proceedings.” Gov’t’s Mem. at 14. “Lilcewise," it argues that “a detainee‘s
inculpatory statements against another petitioner will often also implicate the detainee who is
making the statement," a.nd should therefore "be presumptively reliable according to the same
principles that provide for the admissibility of statements against interest.” 1¢ at I$.
The government opines that "[m]any of the principles described above apply equally to
intelligence reports where such reports reflect the statements of another detaince." I_cl. As for
those reports where the source is confidential, the government suggests that the Court can
evaluate the source’s reliability “based on other evidence in the record." § Additionally, the
government contends that intelligence reports should be admitted into evidence as a general
matter “because intelligence collectors from the [Defense intelligence Agency (the ‘DIA’}] and
the e trained to consider carefully the reliability and
credibility of their human sources." g at 16. Moreover, “[b]efore collected intelligence is
processed into an intelligence report. . . , analysts in a collecting agency . . . process the
information for dissemination to and use by other members of the intelligence community,
including intelligence analysts," who rely on the reports “to prepare broader intelligence
assessments." I_d.at 17.
The petitioner filed his evidentiary objections on .lune 26, 2009. In support of those
objections, the petitioner asserts that “[t]he only two witnesses the government relies upon as
implicating [him]-Obaidullah and [a]l[-]Zarnel-were both tortured, made false allegations due
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