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UNITEL) sTA'rEs DISTRICT comm . . .
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) CISO-é . l'lclm)c>od
FAI)EL HUSSEIN sALEH )

HENHF, emz., ) Dat° `Z/HZ&Q';`
)

Petiti0ner, ) Civil Action No. 06~1766 (RCL)
)
v. )
)
BARACK H. oBAMA, ¢¢ az., )
)
Resp0ndents. )
)
MEMoRANnUM AN)) oRI)ER

Before the Court is petitioner Fadhel Hussein Saleh Hentif (ISN 259)’s motion for
reconsideration [280] of judge Henry H. Kennedy’s August 1, 2011 order [279] denying
his petition for a writ of habeas corpus. Upon consideration of the motion, the
respondents’ opposition [282] and the petitioner’s reply [283], the entire record herein,
and the applicable law, the Court will deny the motion.

I. BACKGROUND

Pal<istani authorities seized Hentif in late 2001, and the government has held him
at the naval base detention facility in Guantanamo Bay, Cuba, since early 2002. Hentif
filed a petition for a writ of habeas corpus on October 16, 2006, alleging that the
government was unlawfully detaining him. The parties filed cross-motions for judgment
on the record, and Judge Kennedy held a four~day hearing on the merits. Judge Kennedy
issued a memorandum opinion and order denying the petition, an unclassifled, redacted

version of which [281] was made available to the public on September 15, 2011.

 
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Judge Kennedy’s memorandum opinion thoroughly surveys the arguments made
and weighs the credibility of submitted evidence regarding whether Hentif was part of al
Qaeda or the Taliban, and thus whether the government could lawtillly detain him. See
Suleiman v. Obama, 670 F.3d l3Il, 1312 (D.C. Cir. 2012). The opinion focused
primarily on three contested factual issues: (l) why Hentif decided to travel to
Afghanistan; (2) whether Hentif stayed at an al Qaeda guesthouse in Kandahar,
Afghanistan; and (3) the details of Hentit’s activities in Afghanistan.

As to the first issue,

Judge Kennedy also discussed Hentif s involvement with the Abu

 

Bakker Al Saddiq mosque in Sana’a, Yemen, before he left for Afghanistan; at that
mosque, Hentif took a course with a sheik who, according to another detainee, ISN 41,
advocated forjoining the religious struggle in Afghanistan.

The parties disputed the role of Abu Yasser, another man Hentif met at the
mosque, in convincing Hentif to travel to Afghanistan. Hentif stated in interrogations
that Abu Yasser gave him the idea to conduct humanitarian work abroad and conveyed
logistical information about getting to Afghanistan. The govemment stated that,
according to ISN 4I, a man named Yasir Naji inspired that detainee to travel to
Afghanistan forjihad. The government argued that Abu Yasser and Yasir Naji were the
same person, and thus that Abu Yasser likely advocated that Hentif wage jihad in

Afghanistan. Judge Kennedy determined this assertion to be unfounded

 
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Then, Judge Kennedy discussed Hentit’s travel to Afghanistan and noted

disagreement regarding

_whether Al Adani led Hentif to stay at a guesthouse in Quetta,
Pakistan. Howev¢r, Judge Kennedy determined evidence that Al Adani was affiliated
with Al Qaeda to be "particularly damning" with respect to Hentif’ s motivations Mem.
Op. at l4.

Judge Kennedy then turned to Hentifs admitted stay at an Al Qaeda guesthouse
in Kandahar, Afghanistan, run by Abu Khulud. Hentif’s admission that he stayed at the
guesthouse for about five days was "powerful-indeed, overwhelming-evidence that
[he] was part of Al Qaeda." Mem. Op. at 21 (citing and quoting Al Adahi v. Obama, 613

F.3D l102, 1108 (D.C. Cir. 20l0)). Judge Kennedy also deemed important evidence that

He

determined, however, that Hentif did not attend training courses for al Qaeda in

Afghanistan.

 
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Finally, Judge Kennedy discussed the remainder of Hentif’ s time in Afghanistan.
Hentif wanted to meet a man named Omar Al Shamali, and Abu Khulud, who operated
the guesthouse in Kandahar, told Hentif that a man named Hamza Al Ansari in Kabul,
Afghanastan, could put the two in touch. Hentif traveled to Kabul and stayed with Al
Ansari before meeting with Al Shamali. The govemment argued that Al Ansari’s house
was an al Qaeda guesthouse, but Judge Kennedy disagreed. he govemment also argued
that Al Shamali attended al Qaeda training camps and fought at Tora Bora, which Judge
Kennedy also found not to be credible.

Furthermore, while in Kabul, Hentif did work for two men, Qari Bilal and Abdul

Qahar, delivering medical and food supplies. Judge Kennedy agreed that Hentif’ s work

    
 

in Kabul was humanitarian in nature,

respondents argued that Abdul Qahar and Qari BilaI were associated with the Taliban and

that Hentit"s work for them was likely for the benefit of the Taliban, but Judge Kennedy
discounted these claims. Following his work in Kabul, Hentif left Afghanistan and was
seized at the border between Afghanistan and Pakistan; Judge Kennedy disbelieved the
respondents’ assertions that Hentif fought and fled from the battle at Tora Bora.

Having made factual findings regarding the respondents’ assertions, Judge
Kennedy ultimately concluded that the respondents had carried their burden of proof by a

preponderance of the evidence that Hentif was a part of al Qaeda. Key to that

 
   

determination were

 
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Hentif’s admission that he stayed at an al Qaeda guesthouse in Kandahar, and his

-possession of a Casio watch at the time of his seizure. Taken this together,

this evidence was sufficient to validate the govemment’s detention of Hentif.

Hentif now moves for reconsideration, arguing that 
-hrows into doubt the validity of Judge Kennedy’s conclusion.

II. ANALYSIS

   

Federal Rule of Civil Procedure 59(e) provides a vehicle for reconsideration of
final judgments. See Obaydullah v. Obama, Civ. No. 08-1173, 2011 U.S. Dist. LEXIS
30504 (D.D.C. March 24, 2011) (considering Rule 59(e) motion regarding denial of
petition for writ of habeas corpus).' The decision whether to grant a Rule 59(e) motion
"is discretionary," and such motions should not be granted unless “there is an intervening
change of controlling law, the availability of new evidence, or the need to correct a clear

error or prevent manifest injustice." Fireszone v. Firestone, 76 F.3d 1025, 1208 (D.C.

cir. 1992).

Hentif argues that reconsideration is appropriate because

 

' Hentif also purports to tile his motion under Fed. R. Civ. P. 59(a). Rule 59(a)(2) provides that, "[a]fter a
nonjury tria|, the court may, on motion for a new tria|, open the judgment if one has been entered, take
additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry
of a new judgment." Hentif does not suggest however that the Court conduct another.merits hearing. The
Court accordingly considers Hentit"s motion as a standard motion for reconsideration under Rule 59(e).

 
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Thus, he argues, Judge Kennedy’s

determination that Hentif was lawfully detained rests in part on a faulty-and

warrants reconsideration.

The government disclosed-veil prior to Judge Kennedy’s order

denying Hentif`s petition, and it thus cannot be considered "newly discovered evidence"
for the purposes of a motion for reconsideration. Although Hentif notes that disclosure
postdated the merits hearing, Hentif had access to the -for over six
months while disposition of his habeas petition was pending. Hentif thus had ample
opportunity to present Judge Kennedy with notice of the issue prior to judgment.

Evidence is not “newly discovered" if a party had the ability to present it to the finder of

 
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fact prior to entry of judgment See Harris v. Howard Univ., Civ. No. 95-1111, 1996
U.S. Dist. LEXIS 21 780, *9 (D.D.C. May 23, 1996) ("Because plaintiff brings forth new
allegations . . . whose factual predicate was known to her two months prior to this court’s
entry of judgment, the court concludes that her motion‘cannot be granted based on this
ground."); cf, e.g., Desg/ino v. Kennedy, Civ. No. 08~1269, 2009 U.S. Dist. LEXIS
37520, *I5 (E.D. Cal. May 4, 2009) (determining that cases predating order for which
reconsideration was sought were not "intervening" changes in case law); Um`ted States v.
Grenier, Crirn. No. 5:06-346, 2006 U.S. Dist. LEXIS 70450, *6 (N.D. Ohio Sept. 28,
2006) (same).

Even if the Court determined to constitute "newly

discovered evidence," it would not suffice to warrant reconsideration. Although th

undermines the accuracy of Judge Kennedy’s determination

contradict this determination.

 

government would still be able to carl'y its burden of persuasion. To reiterate, Judge

   

Kennedy found particularly importan

  

 
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entif’ s admission that he stayed at an al Qaeda guesthouse in Kandahar; and
possession of a Casio watch at the time of his seizure. This
evidence, considered in total, demonstrates the lawfulness of Hentif's detention.

Accordingly-does not compel reconsideration, and concomitantly no

manifest injustice exists requiring reconsideration.

 

III. CONCLUSION ANI) ORDER
For the reasons stated above, it is hereby
ORDERED that the petitioner’s motion is DENIED.
SO ORDERED.

Signed by Royce C. Lamberth, ChiefJudge, on July 26, 20l2.

 
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