Abdal Razak Ali v. Barack H. Obama

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT 0F COLUMBIA I-'ILED WI'!‘II THE
CGHRT s uRrrY omclzr<
CSO: '
ABDUL RAZAK ALI, ) pA-;~E,
)
Petitioner, )
)
v. ) Civil Case No. 10-1020 (RJL)
)
BARACK H. OBAMA,' et al. , )
)
Respondents. )
_(_§LASSIFIED MEMORANDUM OPINION
(February 2011)
For the reasons set forth on the record at the public hearing held on January l1,
201 l, and for the following reasons, the Court DENIES petitioner Ali’s petition for a writ
of habeas corpus.
BACKGROUND
Petitioner Abdul Razak Ali, who now claims his name to be Saeed Bakhouche
(hereafter "petitioner," "Bakhouche," or "Razak"), is a forty-year old Algerian citizen
who was captured on Man::h 28, 2002, by Pakistani forces in a raid at a guesthouse in
Faisa.labad, Palcistan. (Gov’t Amended Narrative Regarding Petitioner Abdal Razak Ali
(ISN 685)), Sept. l0, 2010,‘[‘{ 49, 50 (hereafter "Am. Narr.“).) He was caught together
with a well known Al Qaeda facilitator: Abu Zubaydah. (Id.) lndeed, Abu Zubaydah
' Pursuant to Federa1 Rule of Civil Procedure 25(d), if a public officer named
as a party to an action in his official capacity ceases to hold oftice, the court will
automatically substitute that officer's successor. Accordingly, the Court substitutes
Barack H. Obarna for George W. Bush.
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was at that very time assembling a force to attack U.S. and Allied forces. (Am. Narr. ‘][‘I[
17, 42.) Captured along with the petitioner and Abu Zubaydah were a bevy of Abu
Zubaydah’s senior leadership (Am. Narr. ‘}I 41), including instructors in engineering
small arms, English language (with an American accent), bomb-making, and electrical
circuilry. - Am. Narr. ‘}[ 41.) Also found at the guesthouse were pro~al
Qaeda literature,z electrical components, electrical schematics and diagrams (in both
Arabic and English), notes on circuitry, and at least one item ~ a
typically used as a timer for remote bombing devices (i.e., improvised explosive devices
or "IED"s). (See Gov’t Exs. 4, 69-73.) Petitioner was transported to Bagram Air Force
Base for questioning (see Gov’t Ex. 99), where he was held until his transfer to the U.S.
Naval Base in Guantanarno Bay, Cuba, in June 2002. (Classii``ied Hr' g 'I``r., Dec. 17,
2010, at 66:2-6.)
ANALYSIS
The Govemment contends that the petitioner was a member of Abu Zubaydah’s
force that was reorganizing at that guesthouse in Faisalabad, Palcistan, and preparing for
future operations against U.S. and Allied forces. (Am. Narr. ‘] 17.) ln particular, the
Govemment contends that the petitioner: (1) lived with Abu Zubaydah and a cadre of his
lieutenants during a two week period (Am. Narr. ill 41); (2) previously traveled with Abu
Zubaydah``s force through Afghanistan and ultimately fled with them through
Afghanistan to Pakistan (Am. Narr. ‘l‘][ 29-32, 35, 37»40); and (3) took an English course
3 Among the evidence the Gove.mment offered was a photographic catalog of
items recovered from the Faisalabad guesthouse, including an artillery manual with "al
Qaida" written on the cover in Arabic. (Se¢ Gov‘t Ex. 70, at Nos. 67-68.)
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(with an American accent) while he was staying at Abu Zubaydah’s guesthouse (Gov’t
t~:xs. 64 ar 1; 65 ar 1~,63 at 5-, - classified Hr'g 'rr., Dec. 17, 2010, at 16;10-21.>
As a result, the Government argues that petitioner Bakhouche is the type of individual
that is detainable under the AUMF because he was "part ot" an "associated force" (i.e.,
Abu Zubaydah’s force) engaged in hostilities against the United States or its Allied
forces.
Petitioner, not surprisingly, disagrees. Although he acknowledges being captured
in the same gues thouse as Abu Zubaydah, he denies: (1) ever being in Afghanistan, let
alone being with Abu Zubaydah’s force there (Pet.’s Am. Traverse, Nov. 8, 20l0, at 52,
58); (2) ever taking an English course from Abu Zubaydah’s trainers at the guesthouse
(Gov’t Exs. 27 at 2; 28 at 2; 56 at l); and (3) ever being a member, permanent or
otherwise, of Abu Zubaydah’s force (see Pet.’s Am. Traverse, Nov. 8, 2010, at 25, 27,
5 l, 58). In essence, he claims that the Govemment has mistakenly identified him as a
member of Abu Zubaydah’s force, who traveled with Abu Zubaydah in Afghanistan and
fled with him to Palcistan before gathering at this particular guesthouse to start preparing
for their next offensive against U.S. and Allied forces. Upon reviewing the Retum, the
Traverse, and the oral argument during the merits hearing, l disagree with the petitioner's
contention and conclude for the following reasons that the Govemment has more than
adequately established that it is more likely than not that petitioner Bakhouche was, in
fact, a member of Abu Zubaydah’s force and is therefore detainable under the AUMF.
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At the outset, it is worth noting that our Circuit Court has unequivocally
recognized that Abu Zubaydah and his band of followers have well established ties to al
Qaeda and the Taliban and thus constitute an "associated force" under the AUM.``F. See
Barhoumi v. Obama, 609 F.3d 4l6, 420 (D.C. Cir. 2010) (affirrning the district court's
conclusion that Barhoumi was part of "[Abu] Zubaydah’s militia - an ‘associated force
that was engaged in hostilities against the United States or its coalition partners"’ and ``
affirming denial of petitioner Barhoumi's writ); see also Al Har'bi v. 0bama, No. 05-
02479, 2010 WL 2398883, at *14 (D.D.C. May l3, 2010) ("'l``herc appears to be no
dispute that Abu Zubaydah was an al Qaeda operative and that Al Qaeda-related
activities took place in his [Faisalabad] house."). Thus, a member of Abu Zubaydah’s
force is, by def``mition, detainable under the AUMF. Indeed, petitioner does not dispute
this, and petitioner's counsel readily admits the same. (Classified Hr’g Tr., Dec. l4.
2010, at 30:3-7.) Instead of challenging the lawfulness of detaining a member of Abu
Zubaydah’s force, petitioner instead focuses on whether he was actually a member of
Abu Zubaydah’s force.
The Govemment, of course, does not rely exclusively on petitioner's capture in the
same guesthouse as Abu Zubaydah - although the Govemment contends, and the Court
agrees. that that alone is enough to warrant petitioner's detention under the AUMF. See
Khalifh v. Obama, No. 05-1189, WL 2382925 at *4 (D.D.C. May 29, 2010) ("Whatever
interaction [petitioner] might have had with the top terrorists he met, whether it was
lirnited or extended, his presence with them at [a] guesthouse is quite powerful support to
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the inference that he was considered a member of al Qaida (and/or associated forces) at
the time. Without such an understanding he would not have been permitted to be around
so many terrorists for any amount of time."). Instead, the Govemment directs this Court
to what petitioner was doing while he was at the guesthouse with Abu Zubaydah and his
senior leadership, and what he was doing before he arrived at that guesthouse
As to the former, the Govemment sets forth credible accounts by fellow
guesthouse-dwellers who not only positively identified the petitioner by one or more of
the various names he was using at that time - i.e., Abdul Razak or Usama al Jaza’iri3 -
but who also credibly account for petitioner participating in one of Abu Zubaydah’s
various training programs while he was staying in the guesthouse (i.e., taking a class in
English). Specil``xcally, ISN 703 identified the petitioner as Abdul Razak and stated that
he witnessed him receiving English-language classes from another guesthouse member,
Ghassan Abdulla al~Sharbi (ISN 682) (Gov’t Ex. 64 at l), a "perrnanent member" of Abu
Zubaydah’s force (Gov’t Ex. 136 at 67, No. 12) who was also detained in the March 2002
3 At one point during the habeas petition merits hearing, petitioner's counsel
even contended that her client was not the same Abdul Razak that his fellow Abu
Zubaydah guesthouse-lodgers had identified by that very name. Unfortunately for
petitioner, the Government was able to produce a copy of the exact photograph (number
that was shown to those detainees. That photograph, as it turns out, is
unequivocally a photo of the petitioner. (See Classified Hr‘ g 'I``r., Dec. 17, 2010, at
24:13-15.) Moreover, one of those detainees (ISN 707) also identified the petitioner by a
second name that he used during that time period: Usama al Jaza’in``. (See Gov’t Ex. 37:
Gov’t Ex. 68; Pet.'s Ex. 43.) Considering that these fellow guesthouse lodgers were
people that the petitioner independently identified as living with him at the time of their
capture, it is hard, to say the least. to accredit petitioner's "misidentification" argument
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faid~‘
a contemporaneous diary
propounded by one of Abu Zubaydah’s close friends (the "al Suri Diary")s explained that
English lessons were an important aspect of Abu Zubaydah’s training progra.m. (Gov’t
Ex. 136 at 58 ("Soon our program will begin specializing in electronics, English
1anguage, computer and internet").) Another credible source, ISN 707,° who was also
captured in the guestliouse, identified the petitioner as Usama Al-Jaza’iri and stated that
" In a later interview, ISN 703 once again stated that Abdul Razak was
present for English classes. (Gov’t Ex. 65 at l.)
5 Our Court of Appeals, in a recent case involving another detainee, found
this very diary to be a credible source as to that other detainee’s membership in Abu
Zubaydah’s force. Barhoumi v. Obarna, 609 F.3d 416, 432 (D.C. Cir. 20l0).
‘ The Government contends, and I agree, that ISN 707 is credible with
respect to his photo identifications of the petitioner as Abdul Razak and Usarria al
Jaza’in``, and as to his statements regarding the petitioner taking English lessons while
they were staying together at the Faisalabad guesthouse. How so? First of all, with
respect to ISN 707’s identification of petitioner as Abdul Razak in photograph
that identification was made on multiple occasions and was corroborated independently
by a number of the other detainees who were staying at the same guesthouse, As to his
knowledge of petitioner's other nickname ("kunya"), Usama al Jaza'iri, that too is not
only credible but is consistent with the Govemment’s other evidence. In particular, it is
well established that detainees like the petitioner frequently have more than one kunya,
and since the petitioner by his own admission is an Algerian, having a kuriya ("al
Jaza'iri") that means "the Algerian" is perfectly appropriate. (See Gov’t Ex. 20.)
Moreover, ISN 707’s multiple identifications of the petitioner on a number of separate
occasions as a fellow guesthouse~dweller is consistent with the al Suri Diary’s listing of
the petitioner by the name Usama al Jaza’iri as a permanent member of Abu Zubaydah’s
force. (Gov’t Ex. 136 at 67.) All in all, absent any basis to believe that ISN 707 would
falsely represent his identification of petitioner, the Court is satisfied with ISN 707’s
credibility as to this particular point. As for his taking the English classes offered in the
guesthouse, once again this statement by ISN 707 is independently corroborated by at
least one other guesthouse-dweller, ISN 703. and is perfectly consistent with petitioner
being at that guesthouse at that tirne. »
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they actively sought English lessons together. (Gov’t Ex. 68 at 5', Classified Hr’g Tr.,
Dec. 15, 20l0, at 67:15-17.)7 Thus, combining this evidence with the obvious and
common-sense inference that a terrorist leader like Abu Zubaydah would not tolerate an
unknown and untrusted stranger to dwell in a modest, two-story guesthouse for two
weeks with himself and ten or so of his senior leadership, while they are preparing for
their next operation against U.S. and Allied forces, the Court caxmot help but conclude
that petitioner's presence at this guesthouse is enough, alone, to find that he was more
likely than not a member of Abu Zubaydah’s force. But, there is morel
The Govemment also introduced credible evidence placing the petitioner with Abu
Zubaydah’s force in various places in Afglianistan prior to his stay at the Faisalabad
guesthouse For example, ISN 707, the detainee who positively identified petitioner's
photo by both of the names he was using at that time (i.e., Abdul Razak and Usama al
Jaza'iri) (see Gov’t Ex. 37 at 5 ; Gov’t Ex. 68 at 4; Pet.'s Ex. 43), placed Usama al
Jaza' iri in Barmal, Afghanistan, prior to their arrival in Pakistan. (Gov’t Ex. 68 at 2.)
Specifically, ISN 707 described the route he and a group of comrades took while fleeing
Afghanistan to avoid American air strikes. (ld. at l-2.) Moreover, ISN 707 admitted to
taking shelter with the petitioner at a local school in Afghanistan. together with Abu
Zubaydah himself and several of the other detainees captured later at the Faisalabad
guesthouse, (Id. at 2.) According to ISN 707, that group eventually evacuated Barmal
7 Notwithstandin g accounts from multiple guesthouse-dwellers - and
corroboration from the al Suri Diary ~ petitioner denies that he ever took English lessons,
much less for sinister purposes. (See, e.g., Gov’t Ex. 65 at l; Pet.’s Ex. 23.) These
blanket denials, however, are easily overcome by the overwhelming and persuasive
evidence offered by men who knew petitioner and dwelled with him in the guesthouse
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and traveled together to Bannu, Afghanistan, before being "distributed into two
guesthouses." (Id.) Moreover, ISN 707’s statements do not stand alone. They are
corroborated by the al Suri Diary, which not only lists the petitioner - under the same
name Usama al Jaza’ iri - as a permanent member of Abu Zubaydah’s group, but
effectively° places him on the Afghanistan-Pakistan border in January 2002 with a group
of the very same people ISN 707 described as fleeing together from Afghanistan, only to
be captured together later in the Faisalabad guesthouse, (See Gov’t Ex. 136, at 6, 67.)
Finally, petitioner is cited by his name "Usama al Jaza'iri" in an enemy report
listing the survivors of a fire at a guesthouse barracks in Khowst, Afghanistan, in 200l.
(Gov’t Ex. 94; Gov’t Ex. l20.) The Govemment contends that the report was written
contemporaneously by a member of al Qaeda, the Taliban, or an associated force who
was in the guesthouse barracks at the time of the fire and who reported the accident to
another member of the same associated force. (Classified Hr’g Tr., Dec. l4, 20 l0, at
113:3-115:7.) Indeed, the incident report,° which was later seized by Allied Forces in
Kabul in 2002, is dated "Tliursday, the 28th of Shaban," an Islamic calendar month
"' Although the diary does not specifically list petitioner, by name. as being
with the group at that location, it effectively refers to petitioner by characterizing certain
group members by their relationships with Usama al-Jaza’in'. (See Gov’t Ex. 136 at 6
(describin g "the brothers who worked as trainers in the same camp such as Ashur al~
Jaza’iri, Usamah al-Jaza’iri, [and] Abd al-Bari al-Filistani").)
" Also contained in the report is a list of "rriaterial losses" from the tirc.
which includes a Kalashnikov, an ammunition pouch, and a [rocket-propelled grenade].
(Gov’t Ex. 94 at 3.) »
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which - when converted to a Westem calendar ~ would be November 15, 200l. (See
Gov’t Ex. 137; Classified Hr’g Tr., Ian. 1l, 201 l, at 50:2~51:2.)
In sum, the Govemment proffered more than enough credible evidence for this
Court to conclude that it is more likely than not that petitioner was, indeed, a member of
Abu Zubaydah’s force. That conclusion, l might add, is corroborated further by
petitioner's own admission ~ when he was first interrogated - that he had gone to
Afghanistan to fight in the jihad against the U.S, and its Allied forces. (Gov’t Ex. 23 at
10.)
Bakhouche, of course, vigorously denies the accuracy of the various photo
identifications of him as Abdul Razak, and especially the one photo identification of him
as Usama al Jaza’iri. In particular, he denies being the "Usama al Jaza’in"’ referred to in
the al Suri Diary and the fire incident report and denies being a member, much less a
permanent member, of Abu Zubaydah``s force who traveled with them for a protracted
period in Afghanistan, Notwithstanding petitioner's protestations to the contrary, the
evidence introduced clearly rebuts his position. Indeed, while his challenge to the
reliability of certain photo identifications might be more compelling if these witnesses
had only seen him on one specific occasion in either Paki``stan or Afghanistan, it is
particularly undercut by petitioner' s own admission that he had stayed at the Abu
Zubaydah guesthouse with not only the witness who identified him as Usama al Jaza’iri.
but also with a number of the other witnesses who identified him as Abdul Razak.
Simply put, Bakhouche's effort to undermine the reliability of the Govemment’s
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evidence linking him to the Abu Zubaydah group prior to his capture at the guesdiouse is
inherently flawed and undermined by his own lack of credibility on certain critical points.
In paiticular, Bakhouche’s stubborn insistence that he had never been to Afghanistan, and
did not know or interact in any way with Abu Zubaydah and his lieutenants in that
relatively small guesthouse where they were all captured together, was wholly incredible
As such, the Court has no difficultly concluding that the Govemment more than
adequately established that it is more probable than not that the petitioner was in fact a
member of Abu Zubaydah’s force that had gathered in that Faisalabad guesthouse to
prepare for future attacks against U.S. and Allied forces. Accordingly, petitioner
Bakhouche is being lawfully detained under the AUMF and this Court must, and will
therefore, DENY his petition for a writ of habeas corpus.
CONCLUSION
For all of the foregoing reasons. it is hereby ORDERED that petitioner Abdul
Razak Ali’s, a.k.a. Saeed Bakhouche's, petition for a writ of habeas corpus is DENIED.
SO ORDERED.
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RicHARD J.\eEoN
United States District Judge
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