Mohammed Abdullah Taha Mattan v. Barack H. Obama ( 2011 )

UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
SHARQAWI ABDU ALI AL-HAJJ )
(ISN 1457), )
)
Petitioner, )
) Civil No. 09-745 (RCL)
v. )
)
BARACK OBAMA, et at, )
)
Respondents. )
)
MEMORANDUM OPINION
Before the Court is petitioner's Motion [1472J to Strike -Statements in the Factual
Return. Upon consideration of the motion, respondents' opposition, the reply thereto, and
the applicable law, the Court will grant in part and deny in part petitioner's motion. The
Court's reasons are set forth below.
I. Factual & Procedural Background
Petitioner, who is currently detained at Guantanamo Bay, was captured in
Karachi, Pakistan in February 2002. Petitioner's Motion to Strike (Mot. to Strike) Ex. A.
Dec. 15,2010 [1472]. He was held in solitary confinement in Pakistan for three weeks.
Id. Petitioner'S declaration states that he was thereafter sent to a prison in Jordan, where
he was kept in an isolation cell and interrogated extensively. Id. He alleges that he was
placed on the ground during interrogations, "with the interrogator in a chair above
[petitioner] with his foot on [petitioner's] face." Id. He further alleges that, while in
Jordan, he was "beaten regularly," "threatened with electrocution and serious physical
violence," and "regularlY beaten with a rod on the soles of [hisJ feet." Id. Petitioner states
SECRE!f'HNOP'OIfN
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
that he initially refused to sign a document containing statements he had not made, but
that-after his interrogators threatened him-he ultimately signed the document. Id.
Petitioner alleges that, after two years in Jordan, he was flown to a "Dark Prison"
in Kabul, Afghanistan, where he "was kept in complete darkness and subjected to
continuous loud music." ld He complains that his cell was filthy, that the food was
extremely bad, and that he was force-fed when he did not eat. Id. Petitioner states that he
remained in the Dark Prison for five months, after which he was flown to Bagram Air
Force Base. Jd Respondents have indicated that they will neither admit nor deny
petitioner's allegations regarding the time prior to his arrival at Bagram. Respondents'
Opposition (Opp'n) 25, Feb. 4, 2011.
Petitioner arrived at Bagram in May 2004, at which point he came into the
custody of the U.S. Department of Defense. Opp'n 6. Petitioner was told that Bagram
"was a base belonging to the American Anny." Mot. to Strike Ex. A [1472]. He alleges
that, while at Bagram, he was "kept in isolation for two and a half months, in a two foot
by three foot wooden cage with no toilet." Jd He further alleges that "during that time,
[he] was beaten by two soldiers." Id. Respondents deny both allegations and offer
evidence in rebuttal. which the Court will assess below. In August 2004, after four
months at Bagram, petitioner was moved to Guantanamo Bay.
Petitioner's pending motion seeks an order striking statements attributed to him in
respondents' factual return. Petitioner argues that these statements were made after he
had been subjected to the unrefuted physical and psychological abuse described above.
This Court previously ordered that respondents provide petitioner with "all reasonably
available evidence that petitioner was physically or psychologically coerced from the
SECItE'fffNOPOft:.N 2
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
time of his capture to the time he provided the statements relied on in the factual return."
Order, Sept. 4,2009 [] 307]. The Court further ordered that, should respondents "refuse to
deny the allegations of coercion or provide the evidence of coercion as ordered by this
Court, the Court will not allow the government to use any forms of petitioner's
statements in its case-in-chief." Id As noted above, respondents neither admit nor deny
any allegations regarding the period of time petitioner spent in Jordan and Kabul, nor
have they produced any evidence relating to those allegations. Petitioner thus argues that
respondents are prec1uded from using his statements in any manner in the factual return.
Respondents oppose petitioner's motion, arguing that it improperly asks the Court to
apply a per se rule that any unrefuted allegation of torture renders all subsequent
statements inadmissible.
II. Legal Standard
Respondents argue that the Court-even if it accepts petitioner's unrefuted
allegations of torture as true-should not adopt a per se rule excluding all subsequent
statements. Rather, respondents ask the Court to assess whether the effects of the alleged
torture were attenuated with respect to petitioner's statements at Bagram and later at
Guantanamo Bay, such that those statements were untainted by prior coercion.
The Court agrees that attenuation analysis is appropriate here. In criminal law, the
use of torture or coercion to procure information does not automatically render
subsequent confessions unreliable. United Stales v. Bayer, 33 U.S. 532, 540-41 (1947).
The effects of earlier coercion may have dissipated such that subsequent confessions can
be considered voluntary. Id; Oregon v. Elstad, 470 U.S. 298, 311-12 (1985). When
determining whether the effects of earlier coercion have dissipated, criminal courts apply
SFlCRFly/lNOPORN 3
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
a "totality of the circumstances" test. United States v. Karake. 443 F. Supp. 2d 8, 87
(D.D.C. 2006). This multi-factor inquiry enables courts to assess whether there has been
a "break in the stream of events ... sufficient to insulate the statement from the effect of
all that went before." Clewis v. State o/Texas, 386 U.S. 707, 710 (I 967).
Factors guiding this inquiry include "the time that passes between confessions, the
change in place of interrogations, and the change in identity of the interrogators:' Elstad,
470 U.S. at 310. Other factors include "the length of detention," '''the repeated and
prolonged nature of questioning," and "the use of physical punishment such as the
deprivation of food or sleep." Scheckloth v. Bustamonte, 4]2 U.S. 218, 226 (1973).
Additionally, courts may consider "the continuing effect of the prior coercive techniques
on the voluntariness of any subsequent confession." Karake, 443 F. Supp. 2d at 87. The
government bears the burden of proving by a preponderance of the evidence that each
confession was voluntary. ld at 50.
Courts in this District have already applied the totality of the circumstances test in
the context of Guant anam a Bay litigation. See Anam v. Obama, 696 F. Supp. 2d 1,6-8
(D.D.C. 2010) (finding that the government had failed to establish that the petitioner's
statements were untainted by prior coercion); Mohammed v. Obama, 704 F. Supp. 2d I,
24-30 (D.D.C. 2009) (finding that the temporal break between a coerced confession and
a subsequent confession was not long enough, given the length and severity of abuse, to
remove the taint from the subsequent confession); Al Rabiah v. United States, 658 F.
Supp. 2d II, 36-37 (D.D.C. 2009) (finding that, in the absence of evidence to the
contrary, the effects of torture could taint a confession made nine months later). As in the
criminal law context, the government bears the burden of demonstrating that a particular
4
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
statement was not the product of coercion. Anam, 696 F. Supp. 2d at 7; see also Hatim v.
Obama, 677 F. Supp. 2d 1, 12 (D.D.C. 2009) ("[W]hen-as here-the government
presents no evidence to dispute the detainee's allegations of torture and fails to
demonstrate that the detainee was unaffected by his past mistreatment, the court should
not infer that the prior instances of coercion or torture did not impact the accuracy of
detainee's subsequent statements.")
III. Discussion
At the outset, the Court finds that respondents-who neither admit nor deny
petitioner's allegations regarding his custody in Jordan and Kabul-effectively admit
those allegations. Accordingly, the Court accepts petitioner's allegations as true. In
Jordan, petitioner experienced patent coercion during interrogations-including
intimidation, regular beatings, and threats of electrocution and violence. In Kabul, he was
forced to endure complete darkness and continuous loud music. The Court thus finds that
petitioner was subject to physical and psychological coercion in Jordan and Kabul. See,
e.g., Mohammed, 704 F. Supp. 2d 1 at 26-27 (finding that the petitioner, who was
regularly beaten, held in stress positions for days at a time, kept in darkness, subjected to
loud music, and forced to inculpate himself during interrogations, was physically and
psychologically tortured),
In light of this finding, the Court will apply the attenuation analysis described
above to determine the admissibility of petitioner's subsequent statements. In their factual
return, respondents rely on statements petitioner provided immediately following his
capture in Pakistan-before his abuse began-and during his detention at Bagram and
Guantanamo Bay-after, respondents assert, his abuse ended. Accordingly, the Court will
SECR~'fIINOFORN 5
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
consider whether statements made in Pakistan, at Bagram, and at Guantanamo Bay were
coerced or, alternatively, whether they were tainted by prior coercion.
A. Petitioner's Statements in Pakistan
Petitioner al1eges that, following his capture in February 2002. he was held in
solitary confinement in Pakistan for three weeks. Mot. to Strike Ex. A. There, he was
"told that if [he] cooperated [he] would be sent home." Id. He states that, although he
cooperated, he was sent to Jordan. Id. Petitioner's vague statement that he was held in
solitary confinement, without more, gives no indication that he was subject to abuse,
torture, or coercion. The Court thus finds no reason to exclude statements made while
petitioner was in custody in Pakistan.
B. Petitioner's Statements in Bagram
As discussed above, the Court finds that petitioner was subject to physical and
psychological coercion in Jordan and Kabul. Respondents deny, however, any allegations
of torture occurring after petitioner's arrival at Bagram in May 2004. Accordingly, the
Court must first weigh petitioner's allegations against respondents' evidence to determine
whether his statements were the product of coercion. If the Court finds that petitioner's
statements were not coerced, it must then determine whether those statements were
tainted by prior coercive treatment.
1. Petitioner was not subject to ongoing torture or coercion at Bagram.
Petitioner contends that he was subject to ongoing torture at Bagram. He makes
two allegations regarding his custody there-first, that he "was kept in isolation for two
and a half months, in a two foot by three foot wooden cage with no toilet," and second,
that he "was beaten by two soldiers."
SECRET/INOFOM 6
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
With regard to petitioner's first allegation, respondents assert that petitioner was
never kept in a two-by-three-foot wooden cage. Respondents rely on the declarations of
personnel present at Bagram during petitioner's confinement. These dec1arants admit that
they either did not know petitioner personally or were not familiar with the specific
circumstances of his confinement. As their declarations indicate, however, they were
quite familiar with the general circumstances of confinement at Bagram.
a criminal investigator for the U.S. Army Criminal Investigation
Command, states that he was "very familiar" with Bagram's operations and "walked
through andlor around the facility on a daily basis." Opp'n Ex. 2, at, 3. He further states
that he "never saw anything meeting [petitioner's] description" of a two-by-three-foot
cage. ld. at ~ 4. He declares that he is "certain that if anyone had been kept under such
circumstances [he] would have either seen or heard about it." Id.who was an agent with the Department of Defense's Criminal
Investigation Task Force (CITF) while petitioner was at Bagram, visited the facility more
than twenty times in June 2004. Opp'n Ex. 3, at, 17. He states that "[o]n each visit, I
stayed at the faciJity for several hours and was able to see the entire facility. I do not
recall seeing any detainees in cells or cages that were 2 by 3 feet. The smaller, individual
cells that I recall were approximately 8 by 10 feet." Id.Finally, M a j o r _ t h e Army Judge Advocate assigned to Bagram during
petitioner's confinement, "worked in the facility approximately 14 hours every day,
including weekends, and, on a daily basis, walked through all of the locations where the
detainees were held." Opp'n Ex. 4, at, 3. She states that the "individual cells [at Bagram]
were approximately nine by nine feet," "made of wood, [and] had air conditioning." [d. at
SRCH'f'1'INOFOItN 7
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
~ 7. She further states that the individual cells had no toilets and that detainees were
escorted to a bathroom on the main floor. Id Due to the nature of her position, Major
_ "was particularly concerned about ensuring that no detainee mistreatment
occurred." ld at , 11. She thus declares that if any detainee had been kept in the
circumstances petitioner alleges, "I would have either seen it or heard about it. I neither
saw nor heard of any detainee that was kept in isolation in a two foot by three foot
wooden cage with no toilet. HId.
The Court finds that these declarants have provided relevant and reliable evidence
as to the conditions of confinement at Bagram. Notably, Major _ description of
Bagram's isolation cells-aside from her statement as to their size--comports with
petitioner's claim that his eelJ was wooden and had no toilet. Taken together with the
other declarants' statements, this tends to suggest that petitioner's claim as to his cell's
size was a misstatement. In any case, respondents' evidence--given the declarants'
familiarity with the facility, as welJ as the consistency of their statements-negates
petitioner's allegation that he was kept in a two-by-three-foot cage.
The brevity of petitioner's allegation further undermines its credibility. His sole
description of the wooden cage is that it had no toilet. If a detainee were indeed confined
to a two-by-three-foot space for over two months, one would expect some description of
the effects of that experience. But petitioner makes no mention of the effects-physical,
mental, or emotional-of such a lengthy confinement in a severely limited space.
Beyond his declaration, it appears that petitioner made his allegation on one other
occasion-to attorney Kristin Wilhelm in 2006. See Mot. to Strike Ex. B. There is no
other mention of his complaint in the record. Special Agent of CITF, who
SRCRt1'ft1N6P6:RN 8
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
interviewed petitioner at Bagram, states that he complained that guards had hit his head
against a wall but "never complained to me that he had been placed in a two-foot by
three-foot wooden cage." Opp'n Ex. 1, at 9. Special Agent _ later interviewed
petitioner at Ouantanamo Bay, where he stated that "when he was in Jordanian custody,
he was beaten, but he was treated well while in U.S. custody." Opp'n Ex. tc, at 7.'
Although petitioner's silence does not disprove his allegation, it is surprising given the
alleged severity of his confinement and his apparent readiness to raise other complaints.
In sum, the Court finds that respondents' evidence-when compared to the
brevity of petitioner's allegation and the lack of other evidence supporting it-refutes
petitioner's allegation. Bagram's isolation cells. as described by respondents' evidence,
were approximately eight by ten or nine by nine feet and made of wood. They did not
have toilets, but occupants had access to a common bathroom. Confinement in such a cell
simply does not constitute torture. Because petitioner has not established that he was
confined to a two-by-three-foot space, the Court cannot find that the conditions of his
confinement amounted to torture.
With regard to petitioner's second allegation, respondents assert that his statement
that he was "beaten by two soldiers" does not support the inference that he was regularly
beaten at Bagram. Respondents note that, while petitioner's declaration explicitly states
that he was "beaten regularly" in Jordan, there is no indication-either in his declaration,
or elsewhere in the record-that he was beaten more than once at Bagram.
I The Court makes no conclusions regarding the truth of this statement, but simply notes
that petitioner-while raising other complaints, including complaints about his treatment
at Bagram-never complained about the conditions in his cell.
9
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
The Court agrees that petitioner's statement does establish that he was subject to
regular beatings at Bagram. Although a single beating can constitute abuse, petitioner's
statement is not an allegation of ongoing torture. Moreover, there is no suggestion that
petitioner considered the incident to have been part of an effort to coerce statements from
him. In the absence of allegations or evidence to that effect, the Court finds that petitioner
was not subject to coercion at Bagram.
2. Althongh petitioner's statements at Bagram were not coerced, they
were tainted by prior coercive treatment.
Although petitioner has failed to demonstrate that his statements were coerced,
the Court finds that they were not sufficiently attenuated from the coercive treatment he
experienced in Jordan and Kabul. Petitioner gave the statements at issue in June and July
2004--0ne to two months after his arrival at Bagram in May 2004. Immediately prior to
his arrival at Bagram, petitioner was subject to physical and psychological coercion in
Kabul. The Court is not convinced, given such a short span between petitioner's
experience in Kabul and his interviews at Bagram, that there was a "break in the stream
of events ... sufficient to insulate" his statements from the effects of prior coercion. See
Clewis, 386 U.S. at 710. Indeed, the question here "is not the length of time between a
previously coerced confession and the present confession, it is the length of time between
the removal of the coercive circumstances and the present confession." Kamke, 443 F.
Supp. 2d at 89; see also Anam, 696 F. Supp. 2d at 8.
The Court recognizes that, upon petitioner's arrival at Bagram, the location of his
interrogations and the identity of his interrogators changed. But these factors do not
weigh heavily against the extremely short lapse of time between petitioner's experience
SECRH'fY1N6FO~ 10
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
in Kabul and his subsequent statements, particularly given the length and nature of
mistreatment in this case. Because respondents have failed to establish that the effects of
coercion had dissipated by the time of petitioner's interviews in June and July 2004, the
Court will grant petitioner's motion to strike with respect to any statements he made
while in custody at Bagram.
C. Petitioner's Statements at Guantanamo Bay
Petitioner has not alleged mistreatment at Guantanamo Bay. Thus, the Court need
not assess whether his statements there were coerced. Because petitioner was subject to
coercion in Jordan and Kabul, however, the Court must determine whether that coercion
tainted his statements at Guantanamo Bay.
Petitioner gave the statements at issue in September and October 2004-one to
two months after his arrival at Guantanamo Bay in August 2004. As the Court found
above. petitioner was not subject to torture or coercion at Bagram. Thus, in considering
whether the effects of prior coercion had dissipated, the relevant "temporal break" here is
four to five months--that is, the period of time between petitioner's confinement in
Kabul and his interviews at Guantanamo Bay.
The Court finds that petitioner's statements at Guantanamo Bay were not
sufficiently attenuated from the coercive treatment he experienced in Jordan and Kabul.
Although petitioner was free from coercion at Bagram or Guantanamo Bay, this does not
establish that his statements at Guantanamo Bay were untainted by prior coercion.
Indeed, respondents must "demonstrate that the detainee was unaffected by his past
mistreatment." Hatim, 677 F. Supp. 2d at 12 (emphasis added). Here, respondents have
SECItE't¥JN6F6RN 11
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
failed to submit evidence from which the Court can conclude that petitioner was
unaffected by his experience in Jordan and Kabul.
Respondents rely in part on petitioner's statement that "he was treated welJ while
in U.S. custody," Opp'n Ex. lC, at 7, but this does nothing to prove that petitioner was
unaffected by past mistreatment. Moreover, the Court will not engage in circular
reasoning by considering statements made at Guantanamo Bay to determine whether such
statements were voluntary. Respondents further assert that petitioner's statements were
removed from the period of his mistreatment by "several months," during which his
location and interrogators had changed. Opp'n 33. But a mere four to five months of
changed circumstances, when compared to the mistreatment petitioner suffered over the
course of more than two years, does not suffice to remove the taint of coercion. See
Anam, 696 F. Supp. 2d at 8 (finding that a six-month lapse was insufficient for the
petitioner to have recovered from prior abuse where the government had "faiJ[ed] to
establish that months of less-coercive circumstances provide sufficient insulation from
forty days of extreme coercive conditions"). Furthermore, respondents have shown
nothing in the circumstances surrounding petitioner's interrogations to indicate that his
statements were voluntary and reliable. See id. at 9-10 (finding that statements to the
Combatant Status Review Tribunal [CSRT] Were free from prior coercion where such
statements were made two years after coercive treatment had ended, where the CSRT
proceedings were "conducted in a formal manner" and recorded for transparency, and
where the petitioner had a personal representative).
Because respondents have failed to establish that the effects of coercion had
dissipated by the time of petitioner's interviews in September and October 2004. the
SECkE'fY1N6P61tN 12
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
Court will grant petitioner's motion to strike with respect to any statements he made
while in custody at Guantanamo Bay.
IV. CONCLUSION
For these reasons, petitioner's Motion to Strike Statements in the Factual Return
will be granted in part and denied in part. A separate Order shall issue this date.
DATE
~(".~
RO CE C. LA.\fBERTH
CHIEF JUDGE
SJ3€Rt3'ffINOJfORN 13
UNCLASSIFIEDIIFOR PUBLIC RELEASE