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                             UNITED STATES DISTRICT COURT

                             FOR THE DISTRICT OF COLUMBIA


                                              )
ABDAL RAZAK ALI (ISN 685),                    )
                                              )
               Petitioner,                    )
                                              )
       v.	                                    )              Civil No. 09-745 (RCL)
                                              )
BARACK OBAMA, et al.,                         )
                                              )
               Respondents.                   )
--------------)

                                  MEMORANDUM OPINION

       Petitioner is a detainee at the United States Naval Base in Guantanamo Bay, Cuba

("Guantanamo") who is challenging the legality of his detention by seeking a writ of habeas

corpus. Presently before the Court is petitioner's Motion [902] for Expedited Judgment. 1 Upon

consideration of the motion, the opposition and reply thereto, the applicable law, and the entire

record herein, the motion shall be denied for the reasons set forth below.

I.     BACKGROUND

       Petitioner is an~itizen named Said Bin Brahim Bin Umran Bakhouche. 2

(Factual Return and Narrative [hereinafter Return] , I.) He was captured on March 28, 2002 at a

guesthouse in Faisalabad, Pakistan. (Id." 1,30.)



       1 Petitioner originally filed his Motion [902] for Expedited Judgment on January 16,
2009. Petitioner renewed the motion without modification on May 28,2009 (See Order [1190]),
and again on August 28, 2009 via phone with the Court. Respondents renewed their opposition
without modification on September 9, 2009.

        2 In his motion, petitioner objects to many of the underlying documents relied upon in the
factual return and its supplement because they are unreliable. (Mot. at 9-13.) For the purposes of
this motion, however, the Court must accept all factual allegations as true. Nevertheless, the
veracity of the underlying documents may still be contested in the future.




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15,21.)                                                      a facilitator for AI-Qaida forces, controlled

the guesthouse [hereinafter Zubaydah house] and was also captured there. (Id.           ~   30;

Supplemental Narrative [hereinafter Supplement]          ~   I.)



31.)

           _ w a s not a member of AI-Qaida. (Supplement ~ 1.) However, he associated

with Usama bin Laden and actively supported AI-Qaida. (Id.) Indeed, he met with bin Laden on

several occasions. (Id.) He facilitated the travel of recruits to the Khaldan terrorist training camp

in Afghanistan from 1994 until its closure in 2000. 3 (Id. ~~ 3, 4.) After the terrorist attacks of

September 11, 2001 , _ w e n t to Khost, Afghanistan to prepare for the expected offensive

against bin Laden. (ld.    ~   5.) Then, when the Taliban retreated from Kandahar, he focused his

efforts on helping fighters escape to Pakistan. (Id.     ~ 6). By late March 2002_was in
Faisalabad moving from safehouse to safehouse and making preparations to continue fighting.

(Id.   ~   8.)

            The Zubaydah house was one of the safehouses that was making preparations to continue

to fight. Specifically, residents of the house were attempting to make chemical weapons,




                                                         Decl., "Guesthouses," p. 8 (Sept. 19,2008).)


       3 The Khaldan camp was independent from AI-Qaida, bU~"coordinated and
cooperated with bin Laden in the conduct of training and trainee movements between the
camps." (Supplement ~ 4.)

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They were also learning computer skills and English while preparing for "martyrdom

operations." (Supplement ~ 8.) In addition, the Zubaydah house had a close relationship with the

Issa house, another Faisalabad safehouse making preparations to continue to fight. (See

Supplement ~~ 9-13.) According t                                             who resided at the Zubaydah

house and was captured with petitioner, petitioner was aware of these activities taking place at

the Zubaydah house. (Id.       ~   14.)

            In addition to residing at the Zubaydah house,

                                                                                                       who

also identified petitioner

                              (ld.   ~   27.)




                         (ld.) None of the individuals who identified petitioner, however, stated that

petitioner was a member of AI-Qaida



            Petitioner has also provided three inconsistent accounts of his activities after September

11,2001. In the first two accounts, petitioner traveled to Pakistan with a Libyan,

(ld.   ~   15.) The purpose of their trip was to learn how to read and write, and to study Islam. (ld.)

In the first account, petitioner thought he arrived at a house in Pakistan in October 2001, but later

learned that he was actually in Kabul, Afghanistan. (ld.             ~   16.) He gave his passport and money

to                    who then left petitioner in Kabul. (ld.) Three weeks later, petitioner arrived at

the Zubaydah house in Faisalabad. (ld.              ~   17.)


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        In the second account,




                                                               (Id.)

                              (Id.) He then arrived at the Zubaydah house, where he stayed for

about sixteen days before he was captured. (Id.   ~   19.)

        In his most recent account, petitioner admitted that                                      (Id.




(Id.)

                                                                           (Id.) Petitioner

                                                                           (Id.   ~~   24-25.)

        Last, petitioner has received military training.

                       (Id. at 8 nA), and                                                        Id. ~

26).

II.     LEGAL STANDARD

        This Court is operating under the Case Management Order ("CMO") issued by Judge

Hogan of this Court in the consolidated Guantanamo habeas cases, Misc. No. 08-442, on

November 6, 2008, as amended on December 16,2008, and as amended on December 19, 2008

[797] by Judge Walton of this Court, and the Supplemental Case Management Order [1011]


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("SCMO") issued by Judge Walton of this Court in Gherbi v. Bush, Civ. No. 04-1164 on

February 19,2009, as amended on March 27,2009 [1101].4

       Pursuant to the Amended SCMO:

       [a] petitioner may file a motion for expedited judgment on the record only if the
       petitioner believes in good faith that the allegations set forth in the narrative of the
       factual return for that petitioner, if assumed to be true, do not suffice to justify the
       detention of the petitioner pursuant to any authority conferred to the President by
       the Authorization for Use of Military Force, Pub. L. 107-40 (2001).

Amended SCMO [1101] at 7. Accordingly, a motion for expedited judgment on the record

operates so that all allegations in the factual return are assumed to be true, and the Court gives

respondents "the benefit of all reasonable inferences derived from the facts alleged." Tooley v.

Napolitano, 556 F.3d 836, 839 (D.C. Cir. 2009).

       This Court adopted the detention standard articulated by Judge Bates in Hamlily v.

Obama, 616 F. Supp. 2d 63 (D.D.C. 2009), in a Memorandum Opinion [1187] on May 21,2009.

The relevant portion of the standard provides:

       [U]nder the AUMF ... [t]he President has authority to detain persons who are or
       were part of the Taliban or AI Qaeda forces or associated forces that are engaged
       in hostilities against the United States or its coalition partners, including any
       person who has committed (i.e., directly participated in) a belligerent act in aid of
       such enemy armed forces.

Id at 77-78.~ Accordingly, for the purposes of this motion, this Court. must determine whether,


       4This petition was originally before Judge Walton of this Court, and he amended Judge
Hogan's CMO and issued a SCMO before the petition was transferred to the undersigned
member of this Court on April 21, 2009 [1153]. Accordingly, Judge Walton's Amended CMO is
binding on this Court.

       ~ In adopting this standard, the Court resolved petitioner's issues with the definition of
"enemy combatant." (Mot. at 13-17.) In addition, the Hamlily standard is consistent with
international law and the principles of co-belligerency. See Curtis A. BradeIy & Jack L.
Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2047,

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accepting all respondents' factual allegations as true and giving respondents the benefit of all

reasonable inferences derived from the facts alleged, the factual return suffices to show that

petitioner is part of the enemy armed forces, and therefore may be detained under the

Authorization for Use of Military Force ("AUMF").

III.     ANALYSIS

         A.     Petitioner Was Functionally Part Of The Enemy Forces

         Accepting all allegations as true and giving respondents the benefit of all reasonable

inferences derived from the facts alleged, the Court finds that the factual return suffices to show

that petitioner is part of the enemy armed forces, and thus may be detained pursuant to the

AUMF.

         It is undisputed that petitioner was not a member of Al-Qaida or the Taliban. (See Return

~~   27-29.) However, one need not be a member of Al-Qaida or the Taliban in order to be

detained. As stated in Hamlily, "[t]he key inquiry ... is not necessarily whether one self-

identifies as a member of the organization ... , but whether the individual/unctions or

participates within or under the command structure ofthe organization-i.e, whether he receives

and executes orders or directions." 616 F. Supp. 2d at 75 (emphasis added). In applying the

Hamlily inquiry, the factual allegations, accepted as true and viewed as a whole, demonstrate that

petitioner is functionally part of enemy forces, and therefore may be detained under the AUMF.

         First, petitioner has received military training on at least two occasions.

                                               (Return at 8 n.4)


2112-13 (2005) (stating that international law recognizes that an enemy in an armed conflict
includes the enemy's associates and arguing that associates or agents of Al-Qaida are therefore
recognized enemies under international law.)

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                                         (Id.   ~   26). His training and experience would make him

an asset to the enemy forces either as a fighter or a trainer

                                                                                      It is common

practice for terrorists to use aliases, which may take many forms.        I                         I. eel.,


"Names, Aliases, Kunyas and Variants" at 4 (September 19,2008).) Aliases may be descriptive

ofa physical trait or, like a nisba, may identify the residence of the person. (ld. at 3-4.) _

                                 which demonstrates that petitioner identified himself as an

_          (Id. at 9.) The fact that members of the enemy force knew petitioner by his alias tends

to show that he was functionally part of the enemy forces and was known in their network. "

         In addition to identifying petitioner as

                                                          (Return ~ 27;                            Decl. at

9.) Terrorists often use multiple aliases, which may change upon one's location, "to provide a

degree of 'cover' or operational security." (Id. at 4.) Accordingly, this shows that petitioner may

have attempted to identify himself as a Libyan in order to provide cover for his true identity.

       Third, several individuals have stated that they saw petitioner in Afghanistan. _




                                                            Serving as a driver is sufficient to

demonstrate that an individual is functionally part of the enemy forces. See Hamlily, 616 F.

Supp. 2d at 75 (stating that an individual who houses, feeds or transports, AI-Qaida forces may

be considered functionally part of the enemy forces.) Thus, these allegations contradict


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petitioner's present position that

                                                        6   (Return ~ 25.)



                        (Id. , 31). The fact that petitioner was allowed to stay at the same house as

~nd            other combatants demonstrates that it is plausible petitioner was part of the enemy

forces. The Zubaydah house served as a place in which forces were reconstituting to return to

battle. (Supplement ~ 8.)

                                                                                       (Id.   ~   14.)

Furthennore, many of the individuals captured on the raid of the Zubaydah house had fled

Afghanistan. (Id.   ~   15.) Because petitioner was seen in Afghanistan in the fall of2001, it is

plausible that he too arrived at the Zubaydah house after fleeing Afghanistan.

        Moreover, the fact tha                                                                       does not

disqualify petitioner from being functionally a part of the enemy force.

Guesthouses, such as the Zubaydah house, had standard operating procedures. ~ecl. at

3.) The administrator of the house would take one's "passport, identification, money, or other

travel documents." (Id.) This enabled the administrator to exercise great control over

individuals at a guesthouse, including directing individuals to go to other guesthouses. (Id.)

                                                                        hich tends to show that he was

under the control of someone in the enemy force. (Return ~~ 16, 18.)


        In sum, in viewing the entire record and accepting all allegations as true and giving




~titioner's initial accounts
_ ( R e t u r n ~~ 16-18.)

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respondents the benefit of all reasonable inferences, the Court finds that the factual return

suffices to show that petitioner is part of the enemy armed forces, and thus may be detained

pursuant to the AUMF. Accordingly, petitioner's motion is denied.

       B.      Respondents Do Not Advance A "Guilt by Association" Theory

       Petitioner contends that respondents advocate a "guilt by association" theory to justify

petitioner's detention. (Mot. at 7-9.) In support of his argument, petitioner cites several First

Amendment cases which are inapposite. To be sure, the First Amendment protects an

individual's freedom to associate. U.S. CONST. amend. I. That right, however, is not at issue.

The issue is whether petitioner is functionally part of the enemy forces. See Hamlily, 616 F.

Supp. 2d at 75.

       To answer that question, the Court must view the evidence as a whole. One such piece of

evidence is petitioner's association with the Zubaydah guesthouse. As stated above, the

guesthouse served as a safehouse for reconstituting forces to continue to fight. (Supplement ~ 8.)

When petitioner's association is viewed with the allegations that



plausible that petitioner was functionally part of the enemy forces.

Supplement ~ 14.) Accordingly, the Court finds that petitioner's "guilt by association" argument

is inapplicable to petitioner's habeas proceeding.




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IV.    CONCLUSION

       For the reasons stated above, petitioner's Motion for Expedited Judgment on the Record

is denied. A separate order shall issue this date.




       DATE	
                                                             ~c.;/~
                                                             RO   E C. LAMBERTH
                                                             CHIEF JUDGE




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