Khan v. Bush ( 2014 )

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SHAW,\\LI KHAN, g 1 30
' Datc ____Q_Qz_/rq
I|.l’e¢itiouer.
v.
BARACK OBAMA, et al.,
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Respondents.
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i MEM RANDUM PINI N
Civil Action No. 08-1101 (JDB)
Shaw'ali K]tan, a citizen of At``ghanistan, has been in United States custody since mid-
Novemberi 200?_, and hats been detained at the United States Naval Base al Guanténamo Bay,
Cuba sinei early 2003. Contending that he was unlawfully detained under the September 13,
2001 Auth|oriz.ation for Use of Mililary Force- (“AUMF"), Pu.b. L. No. 107~40, 115 Stat. 224
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(2001), Kl'l_lan filed a petition for a writ of habeas corpus in 2008. Afi.er several years of
discovery, zbriefing, and a t}tree-day evidentiary hearing, this Court denied Khen's petitiort.
eoncludjng,ii that it was more likely than not that K.han was "part of" l-Iezb-``t-Isla.mi Guibuddw
("H]G"), "associated force" of the Taliban and al-Qaeda in hostilities against the United Statcs
end irs eeehtiee partners end, henee, met mem wee tewhmy deeeined under the AUMF. the
D.C. Ciroui``t a_ff'tn'ned.
Now before the Cout't is Khan's motion for post-judgment relief under Federaj Ruie of
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Civil Proceidure 60('0). Khan argues that subsequent developments have weakened the
govemment? case for detention and that, therefore, the Conrt should vacate its prior judgment
and reopen i.hese proceedings. Althouglu the govemrnent’s case for Kjtan's detention has been
weakened slightly by recent developmcnts, it remains more likely than not that Khan was "part
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of" forc¢i,s associated with the Taliban and al-Qaeda at the time of his captnre. lo addition.
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Khan's motion fails to clear the high bar required to obtain post-judgment relief under Rule
60(b). For these reasons, Khan‘s detention remains Iawful, and his motion will be denied.
BACKGROUN``D
I. Fictual Baekgrougg
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lt is undisputed that Shawalj Khan is a citizen of Afghanistan, who, at the time he was
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captured in Novernber 2002, was living in the Kartdahar region and managing a small oil shop.
Other than that, the parties disagree on almost every relevant fact in this case. So, the Court will
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offer a broad summary of the factual narratives offered by each side.
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The government's narrative: Khan was a member nfao H!G cell.
Ac\:ording to the goverrunent: Khan's connections to HIG date back to the time of the
Soviet invTsion of Afghanistan in the 19305. l_(han v, Q§_a;n_a, 655 F.3d 20, 21 (D.C. Cir. 201))
Khan v __QI@§, 646 F. Supp. 2d 6, l? (D.D.C. 2009) (“Khan l") (Kh.an
("@an IIli-'); see also
"was aetivi in HIG duringjihad against the former Soviet Union"). l(han allegedly worked as a
radio opera``tor in a unit commanded by his unole, Zabit Jalil, Eghting, with the mujahidecn in the
anti-Soviet ji,had. }§_han [II, 655 F.3d at 21. After HIG's founder, leader, and namesake,
Gulbidd.in l*lekrnatyar, returned to Afghanistan from his exile in iran after September ll, 2001,
HIG joined forces with al-Qaeda and the Taliban to fight limited States and coalition forces
operating At``ghanislan. §_ee_ _igL; see also May IJ. 2010 Hr'g Tr. 103:15-1? (Testimony of Proi``.
Brian Williams) ("[P]ost 9!11, when you have this burying of the hatebet between the
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Ta]iban . . . land HIG, you also have the sort of buryi_ng of the hatchet with Bin l``_,aden and
a.l-Qaeda."). Around that same time period, as reported by various ll_S. intelligence eollectors, a
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basis for any deductions about guilt." Li. at 7.
Al ough many of these documents contain hearsay, hearsay is always admissible in
Guanlan o habeas cases. §g_e Al-Bihani, 590 F,3d at 879. The Court must cletermine,
however, what probative weight to ascribe to whatever indicia of reliability [the hearsay
evidence] e)thibits." ld_. Henee, "‘[t_|he l``act linder must evaluate the raw evidence,“ resolving
whether it is "sut"ticiently reliable and sufficiently probative to demonstrate the truth of the
asserted pr position with the requisite degree of certa.inty."' _Ifarhat v. Gates 532 I-``.Bd 334, 847
(D.C. Cir. ?008) (quoting Conere;te Pip_e, 508 U.S. at 622)). 'Ihe parties therefore must present
hearsay evidence "in a t``orrn, or with sufficient additional inf``ormation, that permits the . . . court
to assess ltd reliability." _Ig at 849.
Un er P_ar@, then, the Court first considers whether a particular piece of evidence itself
possesses "Tut``ficient ltallmarl308 F.2d 92, 100~03 (D,C.
Cir. !98 ) (one informants hearsay statement can corroborate another infonnant's hearsay
statement . The Court then determines “'whether the evidence is irt fact sufficiently reliable to be
used as a ``ustification for detention." 1 646 F. Supp. 2d at 12. "[l]f courts cannot assess
reiiability,`` then the evidence in question is inherently unreliable end may not be relied upon to
justify detention." Ld_.
UI. Federal Rul¢ of Qivi! Proce§ure 6|}[{1}
Ruie 60(b) provides that a district court "may relieve a party . . . from a final judgrnenL
order, or p eeeding" for one ot`` six specified reasons:
( l ], istakc, inadvertence, surprise, or excusable neglect;
(Z).newly discovered evidence that, with reasonable diligence, could not have
bee discovered in time to move for a new trial under Rule S‘.-``»'(``b);
(3] aud[,] misrepresentation, or misconduct by an opposing party;
(4) ‘he judgment is void;
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(S) ihe judgment is satisf``\cd, released or discharged . . . ; or
(6) any other reason thatjusti.fies relief.
Fed. R. Civi P_ GO(b). in addition, Rule 60(d)(3] clarifies that "{t]his rule does not limit a court's
power to . . set aside a judgment for fraud on the cour't."
Rul 60([)) contains additional temporal obstacles Specifieally, a motion seeking relief
under Rule:a
judgment or order or the date of the proceoding." Fed. R. Civ. P, 60{¢](1). "This one-year time
60(}>](1), [2) or (3) must be filed "no more than a year after the entry of the
limit is 'ironelad."' f_)wens v. District of Coltzrnbi§., 531 F. Supp, 2d 48, 58 (D.D.C. 2009)
quoting Q_<>_iana ».». ctA, 607 F.zd 339, 312 (D.c_ C,ir. 1973)).
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A ll'~lule 60(\:»] motion filed after one year, under the "catch-ail" provision in Rule 6<){b)(6),
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cannot rellrv on "any other reason that justiiics relief," if that "reason" would have been covered
by the (time-barred) provisions in Rules 60(13)(1), (2), or (3). "'l``o interpret ofl(b)(€) any other
way woull:l make the time limitations on motions under 60(|3)(|)-(3) mean``tngless.“ Baltjg Air
Lines Ine*_. v. '[``ransaction Mg_r;tt. lnc., 98 F.Jd 640, 642 (D.C. Cir. 1996); williamsburg Wax
Musggrg, ind v. Historr``c Figp_res_¢lng, 810 F.?d 243, 249 (D.C. Cir. 1937) (‘°[i]t is generally
accepted ibm cases clearly falling under Rule GU(b)(I) cannot be brought i.vithjn the more
generous l ule 60(_}3)(6) in order to escape the former’s one year time lirnitation."); L_<’._Qs_Q
Liljeberg ``i§v. l;|ealth Servs. Agg~ uisition Cg[g., 436 U.S. 847, 863 (1938] ("Rule
60(1:)(6) . grants federal courts broad authority to relive a party from a final judgment . . . ,
provided that the motion _ , _ is not premised on one of the grounds f``or relief enumerated in
clauses (b} l) through (b)($)."),
As a general rnatter, "[_a] district court considering a motion for relief from judgment
under Rule' 60(1)) must strike a delicate balance between the sanctity of final judgments and the
incessant command of a court``s conscience that justice be done in light of all the facts." Q§J_``_Q_L
MJJ S.I__I_rt&, 751 F.§d 642, 646 {D.C. Cir, 20l4) (emphasis, cllipsis, and internal quotation
marks ontitted). According,]y, "reliel`` under Rule 60(``&))(6) is appropriate only in ‘extraordioary
circurnstandes.‘" nor v. Gate§, 481 F.]d 788, 790 (D.C. Cir. 200'?) (quoting Ackerrnarm v.
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L_.l_nited States, 340 U.S. ``193, 199(1950)). Ultimately, "[t]he trial judge . . .is vested \.vith a large
measure of i:iiscrer.ion in deciding whether to grant a Rule 60(}:1) motion.“ Bain, 751 F.3d at 646
(incerna.l qu ration marks omitted).
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ANALY§IS
B cause Khan challenges a final judg:rnent, he faces a higher bar to obtain relief than he
did when he Court first considered his habeas _petition. For that reason, the Court could deny his
motion failure to present the sort of "cxl:raordinary circumstances" needed to justify relief
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under Rule 60(b); for failure to raise some of his arguments in a timely fashion; and for failure to
demonstrate that some of his evidence is, in fact, "newly discovered"_even without determining
whether it_,is more likely than not, on the state of the current record, that he is legally detainable
under thai AUMF. The Court will address all of those defects in Khan's motion, which
significantly limit Khan's ability to obtain post-judgtxient relief. But, because Khan alleges that
he is an innocent titan who has been unlawfully detained at Guanténamo Bay for over a deeede,
and becaus!e the governments evidence in this case has never been overwhelming, the Court also
believes it itppropriate to conduct a somewhat more searching inquiry into the current slate of the
remaining ividence in this case. Nevertheless, after conducting this (essentially, de novo} review
of the evid ntiary record, the Court is still convinced that it is more likely than not that Khan was
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"part of" a force associated with the al-Qacda and the Taliban at the time of his capwre. For all
these reasols, Khan's motion will be denied
I. Posi-.Iud@ent I)evelopments Do Noi Undegg'tne The Conclusion Tbat lt [s More
Like|y Thao §ot That K.han is Lawful!! Detained Under Tbe AUMF.
Since entering judgment in this case, several new developments have undennined the
governmen -'s case for detention Most irnportantly, the govcmmerzt abandoned all reliance on
Khan's sta ements, as memorialized by interrogation reports submitted as part of the
H°'~‘>f“m¢“l=‘» ‘=&S=~*“-¢*“'sf- fn addifi°"»_
argues Kharz, contradicts some key facts in the government‘s case, and
‘ ``l``hclCourf will not discuss in this opinion amy evidence that is tumecessary or irrelevant to disposition of
the pending motions.
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thus casts oubt upon the credibility of`` all of the intelligence collectors, whose declarations have
been reliec\ upon heavily in this cme (by both this Court and the D.C. Circuit). Ult"trnately,
although fl:iese developments ha.ve, undoubtedly, rnade this a closer case, il is still more likely
than not tblat Khan was "part ot" an associated force of the 'I``aliban and al-Qaeda at the time of
his capturoi
A. The Court need not revisit its prior conclusion that H'IG is an "assoeiated
force" of the 'I``aliban and al-Qaeda.
T``here is no allegation that Khan was "part of" the Taliban or al»Qaeda at the time of his
captttre-o y that he was a member of a small HIG cell.s So in order to detain him, the
government must demonstrate a link between l~{IG md the Taliban or al-Qaeda, existing at the
time of Khan``s capture. § _Al»Bihaiti 590 F.Bd at 872 (allowing detention of an individual who
"engagecl in hostilities . . . against the Un.ited States," who "purposefuily and materially
supported hostilities against the United States or its coalition partner's," or who "is part of the
Ta_liban, a]»- aida, or associated forces").
Once again, "[t]hc Court does not assess whether HTG is an ‘associated force' of al~Qaida
or thc Taiibian on a blank slate." a, '?41 F. Supp. 2d at B. This issue was heavily disputed
at the evidentiary hearing in May 2010. 'Ihe government presented evidence that-despite past
disa_g:reem s--HIG had "buried the hatchct" with the Taliba.n and al~Qaeda after Septernber l l,
2001 and the start of`` Operation Enduring Freodont, and began a cooperative campaign to target
U.S. and coalition forces in the region. See, e.g., Evidentia.ry Hr’g, Ciov’t's Eic. 13 (Decl. cfr
5 To be prec``tse, there are some suggestions in the record that K.han was conscript.cd by the Taliban during
the Soviet invzision of At'ghanistzn, and that he briefiy fought vvith the 'l``aliban against the Northern Alliance in the
carty 1990:. But the government does not rely on Khan's history with the 'I``aliban to justify his detention, so the
Coor\: does not rely on that evidence in ruling on this motion (just aa it did not rely on that evidence in its previous
denial of Khan_§s habeas petition)_ §;_g Khan ll, 741 F. Supp. 2d at 9 n.ti.
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On the other hand, Khan offered testimony from Professor Brian Willlams, his expert on Afghan
warlords, ho testified that it was in~ilikely that HIG would be operating in the Kandahar region
of Afghari:istan at the relevant tin'le period. See, e.g., Evidentiary Hr'g, Pet‘r‘s Ex. B (Deol. of
Brian Williarns), ar 8 ("'l``he odds are against Hekrrrntya.r having followers in distant Kandahar so
soon after his return from exile."]; May 13, 2010 Hr'g 'l``r. llE:JU-}Z ("] don't want to say that
there's no _;lvay I-lelcn'iat'yar could be L‘dere, but l will say that it strikes me as strange, irnprobable,
unlikely." .
Co sidering oil of this evidence, the Court concluded that "HIG was an 'associntcd force‘
of al-QaidT and the Taliban at the time of Khlsn's capture in late 20(}2,“ l<_han ll '!41 P. Supp. 2d
at B; ;Lo_rd Kh__an__l, 646 F. Supp. 2d at 19. 'i``he Court noted that Profes.sor williams softened his
position u.rider cross-examination, and that he ultimately acknowledged that "af°ter September ll,
2001, HIG reconcile " with the Taliban, leading to a “loose sort of collective rni.ssiorc" between
the two or izntions. l, 74| F. Supp. 2d ar 8 de 8 n_4. When K_lran raised this issue on
appeel, th D.C. Circuir agreed that Professor Williams' testimony "did not truly rebut the
governments position," and affirmed this Court’s conclusion that "H]G was associated with
al Qaeda and the "l``aliban in late 2002." a, 655 F.3d 3133.
In tit Rule 60(\3) motion, K_har\ does not explicitly challenge the conclusion that HIG js
properly co sidered an "associatcd force“ of the 'l``a.libar\ a.rrd al-Qaeda. None of the "new"
evidence he puts forth relates to H.IG'S relationship u'it.’r\ the 'I``aliban or al-Qacda. Arld this Cottrt
did not rely on Khan's statements, now vvithd.rawn from the governments case, in any significant
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way in issu`` g its previous decisions on this issue. Nor did the D.C_ Circuit. Acoordingly, the
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conclusio that HIG is an "associated force" of the Taliban and ai-Qaeda stands unchallenged
Henoe, the government need only show that it is more likely than not that Khan was "part oi"
l-llG at thei time of his capture in order to lawfully detain him. §§ Al-Bihani 590 F,Zd at 871
B.i Even without Kdan’s statements. sufficient evidence supports the conclusion
§ th at Khan was "part of" HIG at the time of his capture
most significant development since the entry of judgment in this Court, and the D.C.
Circuit's nnanoe of that judgmertt, is the governrnent's decision to abandon any reliance on
K_lmn‘s statements (tbsl is, with the exception of Khan's testimony at the merits hearing). Those
statements were relied upon by the government for many years, and were specifically advanced
by the go ermnent at the men'ts hearing as pari of the case for K.lran's detention. But, as
discussed below, although Khan's statements generally supported the conclusion that Kh.an was
detainablc \under the AUivfF, those (mostly incriminating) statements were not central to the
analysis initltis Court or in the D.C. Circlljt. Even without them, other evidence in the record
supports the conclusion that it is more likely than not that K_han was an HIG opersrLive»»-nol an
innocent shopkeepe.z.
i. intelligence rep_grts describe highly incriminating Qhvsica.l evidence
recovered at K.ltan's progerties.
"As framed over the course of these proceodings, this case now centers on a few key
pieces oi``e idence" that are highly incriminating Khan II '?dl F- Supp. 2d at 4. Ch.ief a;tnong
thern: intelligence reports describing physical evidence recovered at Khsn‘s properties, which is
not just incriminating on its own., but also corroborates other incriminating reports from Afg,hart
informants
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Needless 10 say, the odds of this
exact appearing by chance in two places at once-first, in a description from
an inform about K_l'ian's involvement in an H[G ceil; sccond, otc-found at a search
incident to Khan``s arrcs!--approach zero. A_od although there may be, lhooreiically, alternative
possible e)cV>Ianatio'ns-for example, that Khan was set up as a part of some elaborate
conspiraey°Y-it is much more likely than not that Khan was in possession -
-[or die reason offered by the government and its informants: Khan was pan of an HIG eell,
planning attacks on U.S, and coalition forces by means of a radio-controllcd, bina.ry explosive
5 The§l_``ourt will discuss (and reject) lhia theory beiow. § ``\nl'ra, Section I.B.¢l.
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device As the Conrt explained once before, “[t]he government's narrative . . . corroborates
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itself--tltat recovered from Khan‘s properties renders
ratable [ri.ronnant maj report _tnd vice v@rsa." Lg, 741 r. supp
2d at]B.
Ev\rn setting aside _other physical evidence recovered by U.S. forces
‘“"“‘“ '"““““B~ F°'@““P‘°»“"“‘B_
on Khan‘s properly is, once again,
highly supportive of the conclusion that Khan was a member of an HIG cell, specializing in
explosive attacks on U.S. and coalition personnel.
None of this evidence depends on Khan``s statements. '[``o be sure, time Court did cite a
o¢t~,emb¢rtiv, 2002 mtemgarian r¢prm_zn which khan admitted-
(he offered somewhat implausible explanations -
as additional corroboration of the government‘s arguments tying K_l'!an to this evidence §ee_
K.han ll 7 l F. Supp. 2d at 17 ("The Court concludes, however, that it need not rely on the four
corners of the interrogation summary to determine its reliability~the other evidence in the
f~'=<><>'d ‘==>"<``>b<>r~'="~=s Kvw‘s @dmfS-°»i@'=_ Buf the
evidence itleli* is still highly incriminating, and is still reliable enough for current purposes, §
infra Secn``o I.B.Cl, even without Khan's statements.
2. I_ri_telligence docurncn;§ detail incriminating g@rts §@m several
_informants.
Sev- l informants pointed to Khan as a key member of an HIG cell that targeted U.S.
and coalition forces in and around Kandahar, informant A "idcritificd two members of the cell-»
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Shawali Kithn and Noor Agha--and indicated that IP' HIG 31 ita lime of his ~=ar=w»“=» _Khmn lack of
Arabic proficiency does not undermine that conc|usion.
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gtoup‘s ciirnrnurticator, reporting that Khan facilitated radio contact arnongst the cell's members
na 6 044§0266 03, st 3.
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A %econd informarxt, informant B, also earned I(ha.n as a member of the Kandahar HIG
celi, desci‘ibing Khan as "a gca-between and a facilitntor." Evidentiazy Hr'g, Gov‘t's EX. l'?
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(ITR 6 0441! 0025 03), at 3, He claimed that Khan "use[d] [his] oil shop to conduct meetings and
es a contact point vvith other members within the cel]." §§ Finally, a third infomra.nt, lnformant
C, ol``fcred?additionel specifics about the HIG ccll``s fixture plans to carry out att.acks: apparently,
"mines haid] already been ernplaccd“ at two specific locat:ions, but "they ha[d] not been armed
vvith a remote detonation deviee" yel. Evident.iaxy Hr’g, Gov‘t‘s Ex. 21 (HR 6 044 0300 03), et 5.
ln November 01§``2002, thc U.S. rnilitnry decided to capture Khan and neutralize the HIG
oell. Relyipg on informant A to identify Khan's likely whereabouts on a particular date and time,
American forces successfully carried out an operation to capture Khan. Evidentiary l-lr'g, Gov’t's
E)c. l, Dec '. of-at 11’,- 45-46.2 Afier arresting Khan, and searching his oil shop and his
home, U.S.il forces recovered several pieces of incriminating physical evidence,_
documents were mostly written in Arabic. and included several notebooks about assassination,
surveillance counterfeiting and the use and maintenance of autornat:ic weapons, and a book of
poems authored by a high~level al-Qaed.a leader. S€c generally Evidentiary Hr‘g, Gov't‘s Ex. 59,
l _,,__.
:Fis a unique alphanurneric identif``uer used by one ol`` the members of the intelligence team that
captured an_ n Kandaha.r. The other intelligence collectors use similar alphannmeric codes as identit``iers. "Khan
complains that§ because the collectors identify Lltemselves with their alpha.numeric codes and ranks ranier tzhan their
actual na:mes, their statements are not subject to the penalty of peljt.o'y and their oaths are rneaningless." __Kh_a!_:_§l,
655 F.3d al 30i But, as explained by the D_C. Circuit. this Court has already "properly rejected this argument, as it
finds no suppo'rt in either case law or the perjury statute." Id. "There is no serious dispute that the alphanumcric
codes refer m s’ ecific individuals who could be identified for pt¢;rposes ot``a perjury proseeution." §
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Il_. Kh_ n Is Nnt Entitled 'T``o Relief Under Rule 60{b}.
l``he preceding discussion has artalyzed the remaining evidence in this case to consider
whether, on the state of the current record, it is more likely than not that Khan was "part of" HIG
at the lime
that questi |n in the afl``innative. But, in truth, the Court need not consider all ofthis information
of his capture and, thus, lawfully detainable under the AUMIF. 'l``he Court answered
on a clean late, because a final judgment has already been entered in this ca.se. For that reason,
any relief might be entitled to must fit through the narrow windo\v offered by Federal Rule
of Civil Procedure GU(b). Khan, however, cannot make the high showing required to obtain
post-judgment relief. Hence, even if a de novo review of the current state of the evidentiary
record had given the Court pause about the propriety of the governments initial decision to
detain him,:Kha.n would still not he entitled to relief.
A. l Khan‘s motion is partially time-barred.
A niotion seeking relief under Rules ofl(b}{l), (2) or (3) must be filed "no more than a
year after tne entry of the judgment or order or the date of the proceeding" Fed. R. Civ. P.
60(¢)(1). "``I'liis one~yea: time limit is 'ironclad.'" Owen.s 631 F. Supp. 2d at 58 (quoting
Goland 60}' F.2d at 372). Khan's motion \.vas filed more than one year after the entry of
judgment in this ease. Henee, as Khan ooncedes, he cannot obtain relief under Rule Et)(h)(l),
(2], or (3}. |§e_e Pet'r’s Rep|y in Supp. ofMot. for Post-Judgrnent Relief("Pet'r's Reply") [l\loticed
at ECF No. l 54], at 2 ("The government correctly observes that Kha.n's Rule 60 motion was filed
outside of the one-year time limitation imposed under Rule 60{13)(] -3)."). In other words, Klian
cannot rely`` on "mistal the
extraordi_rto.ty relief of reopening a final judgment Hence, upon consideration of the pnrtics’
subrniusioris, the extensive evidentiary record in this case, applicable lnw, and the entire record
herein, motion for post-judgment relief will be denied A separate Order has issued on
this datc."
n khan also resorts lo an ad hgmiggm attack on government co\.tnsel, clairning that one ol“ the Departntent
of lustice attorneys assigned to this case committed a discovery violation in another Guantanzuno Bay habeas case in
this district _.»3_li Case No. til-1020 {R.IL}. The Court need not say much about this e.rgument, except that
any discoveng problems in another case have no bearing on th.is one, and that Kltan's argument is, ultirrtanely,
unpersuasivc,~.and based upon exaggerations about the record in j‘,.
n a recent status confercnce, Kltan‘s counsel argued that the govemment will be obligated to release
Khan once U. . "ltoscilitics" in Afg,hanista.ri come to a close As the Court explained at the status oonference, and as
another judgeiin this district recently held. whatever significance the end of active hostilities in Al``gha.nistan may
have for detainees like Khan, that issue can be addressed ifaltd when hostilities amc As of this date, active
hostilities remain ongoing so any further discussion ot``this issue would be premarure. ,"iq§
2014 W``L 33097'?2, at ‘7 {D.D.C. Aug, 3, 20!4) ("Whilc thc Prcsident expressed a:nbiti'ons of having less than
LD,OOO t'roops!in Afg,ltanistan ar the beginning of 20! 5, thc hostilities in Al'g,hanisran remain ongoing as of thc date
of this Memor|enduro Oplnlon. According|y. Petitioncr's detention remains lawful under the AUMF ar this timc."}
('tnlcrna| citation omitted].
"' Rei.enlly, government counsel notified chiunbers and Khan's counsel Lhal the government would til-cely be
producing additional documents to K_ltan's counsel in the coming wecks, alter classification review by the relevant
government agencies is corrrplete. No explanation has yet been offered ns to why additional documents would need
lo be producec( at this late stage. And neither the Cour‘t, nor Khan``s counscl, ``Ls currently aware of the contents Of``
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Dalod: Sc``ptcmbcr 2, 2014
oil
JOHN D. BATES
United States Diso'ict judge
}
______.__; .,.,:____:_ ______._n.__....___.____._..____.,.__..._~.- .-_.
these documo§r whether and how lhey might dc relevant Lo the pending motions. Becausc Khnn's mo!ions have
already been Qendiog for quite some timc, because it i.s not clear that these additional documents will have any
relevance to the pending mo\iona, and because it is not clear when, ifever, any new motion from I~{han‘s counsel
might be filed in response co the governmem's bela\ed production, the Cou.rt is deciding the pending motions now, in
due interest ofj‘udicial cf‘f``iciency.
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nl=or’~zoi)§-ooo»tss marmony Databa.~,¢ Enuy); evidentiary ttr'g, cows Ex. 60,
AFGF-Z :3~000433 (Original); Evidentiary Hr’g, Gov't‘s Ex. 62 AFGP-ZOU}-OOU¢E@¢
('nanstavi ln); evidentiary Hr'g, cows Ex. 63, Arot=_zooa_ooos¢so (ongann). _
_r
AHer Khan's capture, informant B reported that Khan's uncle, Zabit .la!il-a long-time
HIG corrm_tander and the leader of the Kandahar HIG cell--called a meeting with his HIG
colleagues in Pakistan, explaining his desire to replace thc entire Kanclahar cell, which he felt
had been compromised as a result of Khan's capture §e_g Evidcntiary Hr'g, Gov't‘s E)c. 23
(HR 6 044 0433 03) at l»2 (Nov. 22, 2002). And, for the two months following Khan's capture,
improvisedl explosive device attacks in the area stopped completely. Evidentiaxy Hr’g, Gov't’s
sx. 2, neel- f;'§ 15@.
B.
l Khan's narra¢ive: l{hao is am innocent shopkeeper.
Prirharily, K.han challenges the reliability of the g€)vemment's eviclence, rather than
offering hl:li own, alternative na:rrntive. But, to_ the extent he offers his own version of events,
K.l'ran claire to be an innocent shopkeeper, wrongfully accused by corrupt Afghans who offered
lies about him to U.S. forces in return for money. Regnrding the physical evidence recovered at
his oil shop;'and his home, Khan has of‘l”ered some shifting explanarions, but primarily claims tl')at
he both (l} !did not know what the items were (c.g.,
he couldn't read the jihadist training materials because he speaks Pashto, not
Arabie), an (2) they did not belong to him (e.g., they were recovered by chance during some
Iooting he did of local businesses or homes abandoned by Arabs fleeing the region).
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II. Pi'ocedural Baclg}roun§
'Bou;_ged@e v. Bush the United States Supreme Court held that aliens detained as
enemy co bataxtts at the United States Naval Base at Guantanamo Bay, Cuba "are entitled to the
privilege 'oi`` habeas corpus to challenge the legality of their detention." 553 U.S. 723, 771
(2008). Khan filed a petition for a writ of habeas corpus two weeks after §_o_gt_gii_eg issued, on
lime 25, 008_ §ge_ Khan's Pet. [ECF No. l]. ln his petition, Klia.n alleged that he was "detained
without la¥.vft.il basis," and asked to be released
D\.iring the early stages of this litigan``on, Khan "sought_and received-~an 'expedit.ed'
[Case Management Order], which provided him with an opportunity to file a motion for
judgment n thc record before full discovery had been conducted.“ Kh_#a;n_l, 646 F. Supp. 2d at
lO; s_egt_]_s_o Feb. 10, 2009 Case Martagement Order [ECF No. Sl]. Klmn took advantage of this
opporrunit\, but the Court denied his motion for judgment on the rocord, concluding that
"altltough iduch of respondents' evidence is fatally lacking adequate indicia of reliability, the
evidence dial remains is sufficient . . . to warrant denial of petitioners rnotion_" K_lrag_l_, 646
I``~. Supp. 2c1 at 20; §g;a_l_g& gl_. at l3 (pointing out "tivo crucial dei``tciencies" in the intelligence
reports sub'rnitted by the government in support of Kl'iart's detention: (1) "tltey contain multiple
levels of hi arsay" and (2) "all sources are cont]dential"). The parties thereafter completed
discovery. ``In May 2010, the Cou.rt held a three-day evidentiary hearing, at which it heard
arguments irom counsel, considered the written evidence in lite caso, and heard testimony i``torn
Khan and fr m Professor Brian Williarns, Klran's expert on Ai``ghan warlords_
A_Hci] considering all of the evidence in the reeord, the Court denied Khan's habeas
petition on depternber 3, 2010. The Court relied heavily on swom declarations from members of
t|:te intelligeitce team who had authored intelligence reports tying l616 F. Supp. 2d 63, 75 (D.D.C. 2009).
"[T],here are no settled criten'a," for determining who is "part ol"‘ the 'l``alibart, al~Qaeda,
or an associated foree. Ha.rnlily, 616 F. Supp. 2d at 75; accord Bensa§;ai_t v. Qbt£a, 610 F.Jd
?18, 725 ( _C. Cir. 2010), "T'hat determination must be made on a ease-by-ease basis by using a
functional Itther than formal approach and by focusing on the actions of the individual in
relation to c organiz.ation." Bensayah, 610 F.3d at ?25. '[``he Court must consider t.'ne totality of
the evidence to assess the individual's relationship vvith the organization. § Na]``i al Waraii g,
Q_ii_a_n_tz_t, 704! F. Supp. 2d 32, 38 (D.D.C. 2010). But being "part of" the Taliban, ai-Qaeda, or an
l
’ Unt‘ mma.tely, an administrative oversight led to considerable delay in resolution of the pending utotions.
The Court si.tte;:re|y regrets the error. tn the t``txtttre, counsel are encouraged to contact chambers to inquire about the
status oi" a pending motion that has not been addressed in a reasonably timely mannor.
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associate force requires "some level of knowledge or intenr." Harnlilv, 616 F. Supp. 2d at ?5;
see also flensayah, 610 F.3d at ?25 ("purcly independent conduct of a freelartcer is not enough"
to demonltrate an individual was "part of" an organization).
II. E\lidentiar_~g Isaues
l
Pu``rsuant to the Case Management Order in this action, "[tlhe government bears the
burden of proving by a preponderance of the evidence that the petitioner's detention is lawi"‘trl."
Feb, 20, 2009 Case Management Order, § lI.A; accord Al-Adahi v Obama, 613 F.3d 1102, 1105
(D.C. Ci:r. 2010); Awad v. §}b@g,, 608 F.Jd l, lD-ll (D.C. Cir. 2010). That standard “'sirnply
requires c trier of fact to believe that the existence of a fact is more probable than its
nonexistence before he may find in favor of the party who has the burden to persuade the judge
of the fact'_s, existenee.'" Q_Qncrete pipe & .P‘rgds. gi Ca|.,_ lnc. v_ Cons|:r. Labgger§ Pensign Trus}
for S. Cgll, 503 U.S. 602, 622 (1993) (quoring In re inshi , 397 U.S. 358, 3?1~’)``2 (1970)
(I'larlan, J-, concurring)).
Th evidence on which the government relies to justify Khan's detention is "atypical of
evidence ally presented in federal actions." Abdah v. Qbazna, 709 F. Supp. 2d 25, 2? (D.D.C.
2010), In articular, the government presents a variety of documents "produced and used by
governmen intelligence ageneies." _i_gi__. This evidence includes intelligence information Reports
("xlnt~.~'), d norm 405 ("Fr.r»ros").
llRs are Departrnent of Defense documents reporting information obtained from human
intelligence sources by the Deferise Intellig,ence Agency and the military's intelligence services.
§gg Eviden iary I-lr’g. Gov't‘s Ex. ll (Decl. of at 6. FM-¢Ds are
law enforcement documents that record "investigation activity, such as witness intewiews," and
"record info\rrnation relevant to how a crime was committed as well as the logical and factl.lal
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