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                            UNITED STATES DISTRICT COURT

                            FOR THE DISTRICT OF COLUMBIA



 SHAWALl KHAN,

        Petitioner,
                v.                                             Civil Action No. 08-1101 (JDB)
 BARACK H. OBAMA, et al.,

        Respondents.



                                  MEMORANDUM OPINION

       Shawali Khan, a n _ citizen, has been in U.S. custody since mid-November 2002.

He has been detained at Guantanamo-Bay,.Cuba since early -2003; and on June 25, 2008, he filed

a petition for a writ of habeas corpus in this Court. After several months of preliminary motions

and hearings, the Court entered a Case Management Order ("CMO") on February 20,2009. The

CMO in petitioner's case is slightly different than the CMOs in most other cases involving

Guantanamo detainees. According to petitioner, extensive discovery is unnecessary in this case

because respondents have not produced sufficient reliable evidence to justify his detention.

Hence, petitioner sought -- and received -- an "expedited" CMO, which provided him with an

opportunity to file a motion for judgment on the record before full discovery had been

conducted. That motion is now be~?~~ .~~ .C.~~!\..J~~,I!1?t!?!! .~as been fully briefed and the

Court held a hearing on June 12,2009. For the reasons explained below, petitioner's motion will

be denied.

                                           ANALYSIS

       Respondents bear the initial burden of producing sufficient credible evidence to justify an




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individual's detention at Guantanamo. "[O]nce the Government puts forth credible evidence that

the habeas petitioner meets the ... criteria [for detention]~ the onus ... shift[s] to the petitioner

to rebut that evidence with more persuasive evidence that he falls outside the criteria." Hamdi v.

Rumsfeld. 542 U.S. 507,534 (2004); see also Parhat v. Gates. 532 F.3d 834, 847 (D.C. Cir.

2008).1 The question presented here is whether respondents have satisfied their initial burden. If

they have not, then the "onus" will not shift to petitioner and his habeas petition will be granted.

But if respondents have met their initial burden, then petitioner's motion for judgment on the

record must be denied and the discovery phase of this litigation will commence.

       As a threshold matter, the Court must bear in mind that -. for the purpose of this motion

-- petitioner has adopted the s~dar~J?rA~t~n~i89,prR~0~~~.9Y.rC?~pondents.Pet'r's Mem. at 16.

On March 13,2009, respondents proposed the following standard:

               The President has the authority to detain persons that the President
               determines planned, authorized, committed, or aided the terrorist
               attacks that occurred on September 11, 2001, and persons who
               harbored those responsible for those attacks. The President also has
               the authority to detain persons who were part of, or substantially
               supported, Taliban or al-Qaida forces-oe-associated forces that are
               engaged in hostilities against the United States or its coalition
               partners, including any person who has committed a belligerent act,
               or has directly supported hostilities, in aid of such enemy armed
               forces.

See Resps.' Rev. Mem. Re: Detention Authority. The Court must put aside, for now, the analysis

of respondents' definition that was conducted in this Court's May 19,' 2009 Memorandum



         I Respondents attached a classified version of Parhat to their opposition to petitioner's
motion. The Court will only refer to the classified version of Parhat when necessary and will cite
to the reported version of Parhat whenever possible.




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Opinion, and will operate instead under respondents' March 13 proposed statement of its

detention authority. Furthermore, for the purpose of this motion, petitioner "concedes ... that

the allegations set forth against [him] in the factual return would, if they could be proven, make

[him] detainable under [respondents'] definition." Pet'r's Mem. at 16.

        Petitioner's concessions narrow the analysis. The only question remaining is whether

enough allegations are supported by reliable, credible evidence to justify petitioner's detention.

See iQ" at 18. So framed, the Court must conduct a two-part inquiry. First, it must scrutinize

respondents' evidence and determine what is reliable and what is not. This examination

constitutes the majority of the analysis that follows. The second step is determining whether the

reliable, credible evidence is sufficient to justify petitioner's detention under respondents'

definition of their authority to detain.

I. Assessment of Reliability

A. General Principles

        The Federal Rules of Evidence do not apply. strictly. in these Guantanamo habeas cases.

Instead, courts must be flexible in evaluating the evidence presented by the parties. See Hamdi,

542 U.S. at 539. "Hearsay, for example, may need to be accepted aS,the most reliable available

evidence from the Government in such a proceeding." lQ.. at 533-34., And given "the exigencies

of the circumstances," "th,e Constitl:J.ti<?,~.~~~I,~ ~~.~.~e,,?ff~.~~~~.~~ ..apresumption in favor of the

Government's evidence, so long as that presumption remained a rebuttable one and fair

opportunity for rebuttal were prOVided." Id.



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       Even under relaxed evidentiary standards, however, the credibility or reliability of the

evidence must be assessable by a court lest the presumptions in favor of respondents become

irrebuttable. Parhat, 532 F.3d at 847. The interplay between the presumptions and the

requirement of reliability was squarely addressed in Parhat. 2 Respondents in that case relied on

various forms of evidence, including "four U.S. government intelligence documents" that

purportedly showed that a certain group was "associated with" al Qaeda or the Taliban and was

engaged in hostilities against the United States or its coalition partners. Id. at 844, 846; ~

also Parhat, classified slip op. at 19-24 (describing the four intelligence documents). The D.C.

Circuit held that the four intelligence documents were not reliable enough to justify the

                                      .. .~.. ... ... , .. , . "., .... ­
petitioner's detention. The court first noted that the,documents were not definitive in their

conclusions -- they repeatedly stated that a particular activity "reportedly" occurred and that

something "may" be true. 3 Parhat, 532 F.3d at 846. Moreover,


         2 Respondents attempt to distinguish Parhat because it involved review of a determination
made by a Combatant Status Review Tribunal (CSRT), not a habeas proceeding, and that more
"flexible" procedures are permitted in habeas proceedings such as these. See Resps.' Opp. at 15.
This distinction is unconvincing. The Supreme Court has held that CSRT proceedings are not
sufficiently rigorous to qualify as an adequate substitute for habeas. See Boumediene y. Bush,
128 S. Ct. 2229, 2271-74 (2008). Hence, as Parhat itself recognized, respondents' evidence is
subject to more stringent requirements in a habeas proceeding than in review of a CSRT
detennination. See Parhat, 532 F.3d at 851 ("[T]he habeas proceeding wiU have procedures that
are more protective of [petitioner's] rights than those available under the [Detainee Treatment
Act].").

        3 Respondents point out that Parhat involved "finished" intel1ig~nce reports whereas the
present case involves "raw" intelligence reports. ~ Resps.' Opp. at 15-16. Parhat, respondents
maintain, is thus distinguishable. But, as discussed in greater detail below, the flaws the Parhat
court identified are not unique to finished intelligence reports, so this distinction, if it is a
difference at all, certainly does not make ~ inapplicable here.

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               in virtually every instance, the documents do not say who
               "reported" or "said" or "suspected" those things. Nor do they
               provide any of the underlying reporting upon which the documents'
               bottom-line assertions are founded, nor any assessment of the
               reliability of that reporting. Because of those omissions, the
               Tribunal could not and this court cannot assess the reliability of the
               assertions in the documents. And because of this deficiency, those
               bare assertions cannot sustain the determination that [petitioner] is
               an enemy combatant.

Id. at 846-47. The court reached this conclusion because "[i]f a Tribunal cannot assess the

reliability of the government's evidence, then the 'rebuttable' presumption becomes effectively

irrebuttable." Id. at 847 (citing Bismullah v. Gates, 501 FJd 178, 186 (D.C. Cir. 2007».

        Respondents in Parhat offered two reasons why identifying the sources of information

was unnecessary to assess reliability. Each was rejected by the court. First, the court considered

respondents' contention that "assertions in the intelligence documents are reliable because they

are made in at least three different documents." Id. at 848. The court rejected the argument,

observing that "the fact that the government has 'said it thrice' does not make an allegation true."

Id. (quoting Lewis Carroll, The Hunting of the Snark 3 (1876». Indeed, the court noted that all
                                      . '    -. ;'   '~:'i~···Y·1·-··1·!·····-   -. .
of the documents making a particular allegation "may ultimately derive from a single source."

Id. at 849. Second, the court considered respondents' contention "that the statements made in the

documents are reliable because the State and Defense Departments would not have put them in

intelligence documents were that not the case." Id. The court dismissed this argument as well,

writing that "[t]his comes perilously close to suggesting that whatever the government says must

be treated as true." Id.



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          Hence, Parhat contemplates the following decisional framework. First, courts must

determine whether the evidence relied upon contains enough information to permit an

assessment of reliability. If it does, then courts must examine that information and determine

whether the evidence is in fact sufficiently reliable to be used as a justification for detention. But

if it does not contain enough information, and if it is not corroborated by otherwise reliable

evidence, then courts are precluded from assessing the evidence's reliability. And if courts

cannot assess reliability, then the evidence in question is inherently unreliable and may not be

relied upon to justify detention.

          What information, then, mpst respondents provide to permit courts to assess the

reliability of evidence gathered during intelligence operations? The Declaration o f _

                         attached to respondents' factual return, provides some insight. To

evaluate the credibility of human intelligence, collectors of intelligence look at "two broad

areas."                         Decl. at 8. First, they look at an intelligence report's_




                                    IQ.. at 8-9. Second, intelligence collectors e x a m i n e _



                             Id. at 9. These principles •• set out by   re~pondents   themselves -­

provide the best set of criteria for a court to use to determine whether the raw intelligence reports



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respondents rely upon to justify petitioner's detention are reliable and credible.

        In sum, these Guantanamo habeas proceedings require greater flexibility than normal

civil or criminal proceedings. But under Parhat, courts must still be able to assess the reliability

and credibility of the evidence respondents rely upon to justify detention. The mere fact that the

intelligence community reI ies upon a certain kind of information does not relieve courts of their

duty independently to assess the evidence. The                                    Declaration aids courts in

carrying out this duty because it sets out criteria that intelIigence collectors themselves look to in

assessing the reliability or credibility of intelligence documents. If the evidence respondents rely

upon to justify detention does not provide enough information to permit assessment of the

                       factors -- or only does so in a way that nonetheless precludes a court from

assessing the reliability of the evidence -- then the evidence cannot be relied upon to justify

detention. With these principles in mind, the Court will proceed with its analysis of the evidence

in this case.

B. Analysis ofRespondents' Evidence

        Respondents rely on four categories ofevidenc.e."First are .reports of petitioner's own

statements, including a transcript of Administrative Review Board ("ARB") proceedings.

Petitioner only challenges the reliability of two essentially identical reports, both stemming from

a February 17,2003 interview of him. See Pet'r's Rep. at 2-3. The contents of those two

interview reports are not material to the resolution of petitioner's motion, and he concedes that
                           .    .          _ _ .•   ~.~._ ••••••• ~    .l  ! __.



the remaining interview reports may be deemed reliable at this stage ofthe proceedings. Id.



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Second are twelve "raw intelligence reports" concerning petitioner. 4 He challenges the reliability

of all of these reports under Parhat because they all contain at least some level of hearsay and the

sources for the reports are confidential. See id. at 5-8. Third are six reports cataloging materials

allegedly found in petitioner's home. Petitioner challenges the reliability of these reports as well.

Id. at 4-5. The final category is reports of statements made by other detainees. Only one

document falls into this category. See ISN 850 FD-302 (May 28, 2003). But it does not advance

respondents' case for petitioner's detention, and he does not challenge its reliability.

1.	 Raw Intelligence Reports

        The initial step in analyzing the raw intelligence reports is determining which, if any,

have sufficient hallmarks of reliability -- as set out in the                       _-to

allow the Court to assess their reliability and credibility. Reports lacking those hallmarks of
                                          .                '."

reliability -- which, as discussed below, is all of the reports -- are inherently unreliable under

Parhat and may not be relied upon to justify detention. s Two crucial deficiencies -- although not

the only ones -- in the reports are that they contain multiple levels of hearsay and all sources are




Iiiiiiiii
        4   Fourteen raw intelligence reports are attached to the factual return. But two of those
                   do with petitioner. See


        S   This determination should not be inte

w~as                                                 and

are categorically unreliable. As respondents point out,                are similar to Federal

Bureau ofInvestigation FD-302 documents, which are often used as evidence. See Resps.' Op

at 10 (citing, inter alia, Moore y. Ashcroft, 401 F. Supp. 2d 1, 12 (D.D.C. 2005). Indeed, on

~ntly have attached to petitioner's factual return by mistake -­
_ . . _ - - contains detailed infonnation about the source and his placement. Such a
raw intelligence report might well be reliable under the standards set forth in Parhat.

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confidential (l&., unidentified). But, as respondents point out, even if particular evidence is

unreliable standing alone, it may nonetheless be reliable if corroborated by other reliable

evidence. See Rugendorf v. United States, 376 U.S. 528, 533 (1964) (holding that an affidavit in

support of a search warrant containing hearsay from a confidential source may be reliable "so

long as there was a substantial basis for crediting the hearsay"); see also Parhat, 532 F.3d at 849

("[T]here may well be other forms in which the government can submit information that will

permit an appropriate assessment of the information's reliability while protecting the anonymity

of a highly sensitive source. ").

        Hence, once the Court has determined that none of the raw intelligence reports are

reliable on their own, it must still assess whether other reliable evidence adequately corroborates

the allegations made in those reports. In making this latter determination, the Court will bear in

mind the procedural posture of this case. The question now presented is whether respondents

have satisfied their initial burden ofjustifying petitioner's detention. Petitioner argues in favor of

a standard akin to the Fed. R. Civ. P. 56 summary judgment standard. See Pet'r's Mem. at 17.

Such a standard might be appropriate once discovery has transpired. Here, however, petitioner

requested and received an "expedited" CMO that permitted him to file a motion for judgment on

the record before discovery has occurred. Because he contends that respondents have failed to

meet their initial burden ofjustifying his detention, the present motion is more like a motion to

dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6). In any event, inferences are

drawn in favor of the non-movant for bothmotio~~,for summary judgment and motions to



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dismiss. See Anderson v. Liberty Lobby. Inc.. 477 U.S. 242, 255 (1986) (summary judgment);

Scheuer v, Rhodes, 416 U.S. 232, 236 (1974) (motion to dismiss). So, for the purpose of this

motion, the Court will draw inferences on all disputed issues in respondents' favor.

        a. Report-by-Report Analysis

                                              This report states that petitioner's_6_

was active in Hezb-i-Islami Gulbuddin ("HIG"), and that HIG has taken actions to harm U.S.

forces. The source for the report is a "senior level Afghan tribesman" with "indirect access due

to his position" and whose reliability is "yet to be determined." No other information is provided

in the source description. The report does not explain why the source had indirect access to this

information, what kind of control the collector had over the source, or what kind of motivation or

wittingness the source had when making the statement. See                               Decl. at 8-9.

Nor does the report provide any "context statement" regarding the     ci~cumstances   in which the

information was obtained. See id. at 9. The report thus bears none ofthe hallmarks of reliability

that the intelligence community itself looks to in assessing the reliability of raw, human

intelligence. Absent such indicia of reliability, this Court cannot assess the report's reliability.

Hence, under Parbat. unless other reliable evidence corroborates the information contained in the

report, it may not be used to justify petitioner's detention.




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                                               According to this report, which does not mention

petitioner, a HIG cell in Kandahar was responsible for explosions near the Kandahar airfield in

October 2002. HIG had reportedly conducted surveillance ofD.S. vehicles and devised a plan

for attacking them. The source for the report is an "Afghan civilian" who obtained the

information during the "normal course of daily activities," had "direct access," and whose

reliability is "yet to be determined."

                   Like those reports, it is lacking the indicia of reliability set forth in the

                       Declaration, and it therefore· cannot be relied upon absent corroboration by

other evidence.

                                               A small RIG cell entered Kandahar, according to this

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report, and petitioner was a communicator and used a radio in h i s _ to communicate

between various BIG elements. The report also details various terrorist activities undertaken by

•    and another man affiliated with H I G , _ Like the report immediately above, the

source is an "Afghan civilian" who obtained the information during the "normal course of daily

activities," had "direct access," and whose reliability is "yet to be determined." And hence, also

like the reports above, this report is lacking sufficient indicia of reliability for the Court to assess

its credibility.

                                                                                        These reports

both describe a planned attack on U.S. vehicles. Neither mentions petitioner. The source for the

October 30 report is an "Afghan civilian" with "direct access" who obtained the information

during the "normal course of daily activities," whereas for the November 3 report the source is

an "Afghan government official" with "indirect access" who obtained the information during the

"normal course of official duties." The reliability for both sources is "yet to be determined."

These reports are flawed for the same reasons explained for the other reports above. Under

Parhat, neither report, standing alone, may be relied upon to justify petitioner's detention.

                                              This report states that petitioner first became involved

with HIG during the jihad against the former Soviet Union. It claims that petitioner then became

a HIG facilitator who used h i s _ in Kandahar to conduct meetings. The report also avers

that petitioner delivered a detonation device on November 9,2002, which was to be used for

attacks against the United States. The source is an "Afghan government official" who obtained



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the information during the "normal course of official duties," who has "indirect access," and

whose "reliability is yet to be determined." Like all of the reports described above, this report is

lacking sufficient hallmarks of reliability and hence cannot justify petitioner's detention absent

corroboration.

                                               According to this report, petitioner was the leader of

a HIG propaganda group in Kabul, and an unnamed HIG and Taliban facilitator incited a protest

at the University of Kabul on November 11-12,2002. The report also states that petitioner was

captured by U.S. forces on                                     . The source description for this

report is slightly different than the other reports discussed above. The source is an unnamed

                                  ho obtained the information during the "course of official duties"

and had "indirect access." The source has "reported reliably in the past." But it is also stated

that the report contains "third-hand information, some of which has been verified through actual

reported events."7 Although slightly differentthan the reports described above, this report

suffers from similar flaws. The unnamed                                   has reported reliably, but

the report explicitly contains "third-hand information" with no reference to the source of that

information. And like the reports above, the report lacks a context statement, any information

about the collector's control over the source, or a description of the source's motivation or

wittingness. The Court cannot assess the reliability ofthisreport, and, under Parhat, the report

therefore cannot be used to justify petitioner's detention.


          7 The report does not explain what information was verified through actual reported
events.

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                                                                                          These reports

provide that_held a meeting after petitioner's capture. • was reportedly concerned about

the effectiveness of the HIG cell in Kandahar without petitioner, and was looking for whoever

had provided information leading to his capture. The source of both reports is an "Afghan

government official" who obtained the information during the "normal course of official duties,"

had "indirect access," and whose reliability is "yet to be determined." Like all of the other

reports, these two reports lack the                          indicia of reliability, thus preventing the

Court from assessing their credibility.

                                                A HIG cell entered Kandahar on December 28,

2002, according to this report. It names the leader of the cell (not petitioner), and describes

petitioner as "a HIG extremist arrested by                                          . The report has

two sources, both "Afghan government officials" who obtained the information during the

"normal course of official duties" and had "indirect access." One source's reliability is "yet to be

determined" and the other is "fairly reliable." Although the report is slightly different than the

majority of reports above in that it provides that one source is "fairly reliable," it is still lacking

the critical hallmarks of reliability set forth in the                        Declaration. Hence, like

the other reports, it cannot justify detention under Parhat unless soine distinct reliable evidence

corroborates the facts contained in the report.

                                              According to this report, ~ personal phone book was

found on a driver who attempted to run through a checkpoint. The phone book contained an



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entry for                  and listed a Saudi cell phone number. The report contains no

information whatsoever describing the source. The report is thus completely lacking indicia of

reliability and cannot be relied upon to justify detention absent further corroboration.

                                             This report provides that members ofHIG and al

Qaeda met on July 20,2003 and agreed to attack U.S. forces. It does not mention petitioner.

Like many ofthe reports above, the source is an "Afghan government official" who obtained the

infonnation during the "nonnal course of official duties," had "indirect access," and whose

reliability is "yet to be determined." And, like those other reports, the absence of the criteria set

forth in the                         eclaration bars this Court from assessing the reliability of the

report. Hence, unless the information contained in the report is independently corroborated,

respondents may not rely on this report to justify petitioner's detention.

                                       •      *          •    •
        In addition to the deficiencies described above, the reports, read together, contain another

crucial flaw: all of the information contained in the reports could come from a single individual.

No source is identified by name. To be sure, the source descriptions,vary slightly: a "senior

level Afghan tribesman"; an "Afghan civilian"; or an "Afghan government official." But on the

record before the Court, those descriptions could all refer to the same person. The only report

that provides a different source description is                     which states that the source is

an unnamed                                   but also states that the rep~rt contains "third-hand

information." The information provided in this report, then, could be from the same person



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listed as the source in all of the other reports.

        The D.C. Circuit confronted a similar problem in Parhat. The materials respondents

relied upon in that case also failed to identifY the sources of allegations, and the court noted that

all of the documents making a particular allegation "may ultimately derive from a single source."

532 F.3d at 849. When respondents argued that the court could find the allegations reliable

because similar allegations were made in multiple documents, the court noted that "the fact that

the government has 'said it thrice' does not make an allegation true."· Id. at 848 (quoting Carroll,

The Hunting of the Snark 3). This Court agrees. Unless respondents can demonstrate that

multiple sources were making similar allegations about petitioner, these raw intelligence reports

cannot corroborate one another. But nothing in the current record suggests that the raw

intelligence reports relied upon here come from multiple sources. Hence, only if other evidence

in the record corroborates the allegations contained in those reports may respondents rely upon

such allegations at this stage of the proceedings.

        b. Corroboration for Allegations Made in Raw Intelligence Reports

        As respondents would have it, the raw intelligence reports, woven together, support the

following narrative: (1) petitioner was active in HIG during jihad against the former Soviet

Union, see, e.g.,                       (2) HIG was and remains a terrorist organization, see. e.g.,

                    ; (3) petitionerl~was a HIG commander, see. e.g.,

. ; (4) petitioner was active in HIG ~s .(i.~()mmll!1!S~~9.~ W,f(i<;Hitator ,at the time of his capture in




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                  (6) petitioner delivered a detonation device for attacks on U.S. forces, see~

_             (7) he was a HIG propaganda leader in Kabul, ~                         ; and (8) his

name was found in the personal phone book of a man who attempted to run through a U.S.

checkpoint, see                       As discussed in the preceding section, none of the raw

intelligence reports -- either individually or collectively .- contain enough infonnation to permit

the Court to assess their reliability. In this section, the Court will examine whether other

evidence in the record -- such as petitioner's own statements -- corroborate any aspects of

respondents' narrative as drawn initially from the intelligence reports.

       The first aspect -- that petitioner was active in HIG during jihad against the former Soviet

Union -- is amply corroborated by other reliable evidence. Although petitioner has occasionally

denied this charge, see. e.g.,                                 he has more often than not admitted

it, see. e.g., ISN FM-40 (Feb. 21,2003). Likewise, RIG's characterization as a violent

organization, the second aspect of respondents' narrative, is also supported by independent,

reliable evidence. For example, the Declaration o~a Senior Intelligence Analyst at

the                                 describes HIG's "30-year history of supporting jihad in

Afghanistan" and explains HIG's "important and deliberate role in supporting continued attacks

against coalition and Afghan forces throughout 2002." ~ecl. at 1-2. So, too,_role as

a HIG commander has independent, reliable support. His precise role is subject to debate -- for

example, petitioner stated on one occasion that~as only a HIG commander duringjihad



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against the former Soviet Union, ~ ARB Tr. at 5-6 -- but petitioner's admission that_has a

history as a HIG commander is sufficient, at this stage, to corroborate the raw intelligence

reports on this third aspect of respondents' narrative.

       The fourth aspect of the narrative is petitioner's role in HIG at the time of his capture.

This is a crucial subject. Petitioner's continuing involvement in HIG is mentioned in two of the

raw intelligence reports, ~                       and                      , and alluded to in two

others, see                      nd                       Of course, an allegation does not become

reliable merely because it is supported by several unreliable reports. See Parhat, 532 F.3d at

848; cf. Ali Ahmed v. Obama, Civ.A.No. 05-1678, unclassifed slip op. at 11-12 (May 11, 2009)

("[T]he mosaic theory is only as persuasive as the tiles which compose it and the glue which

binds them together -- just as a brick wall is only as strong as the individual bricks which support

it and the cement that keeps the bricks in place. Therefore, if the individual pieces of a mosaic

are inherently flawed or do not fit together, then the mosaic will split apart, just as the brick wall

will collapse."). But other, more reliable, evidence also lends some credence to this aspect of

respondents' narrative, at least at this early stage of the proceedings.



ISN 899 FM-40 (Feb. 7, 2003), ISN 899 FM-40 (Feb. 21, 2003), and

_ b u t see                                                                This admission

corroborates respondents' allegation that petitioner was once a HIG communicator, albeit twenty

or more years before his capture. To be sure, petiiioner denies the allegation that he was a HIG



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communicator at the time of his capture. Moreover, the Court will not adopt a "once a HIG

communicator, always a HIG communicator" approach. But at this stage of the proceedings, the

Court must draw inferences in respondents' favor, and inferring that petitioner remained a RIG

communicator from the fact that he once was a HIG communicator (and h i s _ has a history

as a HIG leader) does not require a fertile imagination. Hence, petitioner's admissions that he

once was a HIG radio operator serve to corroborate that he also was one at the time of his

capture in                    The Court does not intimate that there is strong support for that

conclusion. But at this time and with all inferences drawn in respondents' favor, there is

sufficient corroboration to rely on that assertion.

        The remaining four aspects of respondents' narrative, however, are entirely lacking in




in petitioner's statements nor corroborativeeyid~Q~e ~ls~wh!:1re, .Si~ilarJy, the only source of
                                                    ..

respondents' assertion that petitioner delivered a detonation device for attacks on U.S. forces is a

single, unreliable raw intelligence report. See                     . The same holds true for

respondents' claims that petitioner was a HIG propaganda leader in Kabul, see

. ' and that petitioner's name was foun~ in th~. J?~rs.o.~~~.P.~?!l~ book ;of a man who attempted to



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run through a U.S. checkpoint, ~                          Lacking any corroboration, these reports

must stand on their own. But because they lack the information the Court needs to gauge their

reliability, the allegations in the reports cannot be used to justify petitioner's detention. See

Parhat, 532 F.3d at 847-48. Hence, none of these last four aspects of respondents' narrative are

reliable enough for respondents, and hence this Court, to rely on them in justifying petitioner's

detention.

          In sum, of the eight aspects of respondents' narrative set out above, only half may be used

to justify petitioner's detention at this stage of the proceedings. The allegation

                                                                    that RIG was a terrorist

organization at the time of petitioner's capture, that. was a RIG commander, and that

petitioner was active in HIG as a communicator at the time of his capture are sufficiently

corroborated for respondents to rely upo.~ 0~~. ~~.~hi~ ,~t~~,~..~f.the pr.oceedings. Because the

remaining allegations are not supported by reliable evidence, the Court will not consider those

assertions in resolving petitioner's motion for judgment on the record.

2. Materials Found in Petitioner's Rome

          Six reports from the so-called _           database describe materials found in

petitioner's home after his capture in                    The first describes an Arabic notebook

containing information regarding assassinations and a plan to kidnap the President of the United

States.                        . The notebook also contains information regarding intelligence,

surveillance, and counterfeiting. The second report describes a book of poetry (in Arabic)



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written by Abu Hafs, an al Qaeda leader.                         . Third is a report cataloging

money worth about SO cents.                            The fourth report describes Persian or Farsi

documents that appear to be someone else's personal documents, but also contain information

about land mine recognition.                           Fifth is a report about an Arabic notebook

describing the use of several kinds of weapons. According to the report, the first page of the

notebook "has the name of                              who's most likely to be the owner of this

notebook."                          The final report describes Pushtu music in praise of the

Taliban.

       Petitioner contends that these reports are unreliable for the same reasons the raw

intelligence reports are unreliable. But raw intelligence reports are "human intelligence"

whereas these reports describe physical items found in petitioner's home. Therefore, the same

                       hallmarks of reliability analysis does not apply.

                                                                                   See, e.g., •



• . Id. But he does not deny that these materials were found in his home. The reason he

possessed these materials, then, requires a credibility determination that this Court cannot make

at this stage of the proceedings. Hence, because the reports of physical items found in

petitioner's home are not inherently unreliable in the same way the other raw intelligence reports

are, respondents may rely on these reports at this stage of proceedings to justify petitioner's

detention.



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II. Reliable Evideoce to Justify Petitioner's Detention

       To determine whether respondents have provided sufficient reliable evidence to satisfy

their initial burden ofjustifying petitioner's detention, the Court will apply respondents' standard

for their authority to detain,S under which a person who was "part of, or substantially supported,

Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United

States or its coalition partners, including any person who has committed a belligerent act, or has

directly supported hostilities, in aid of such enemy armed forces" may be detained. See Resps.'

Rev. Mem. Re: Detention Authority, As discussed above, the reliable evidence presented by

respondents to justify petitioner's detention is as follows: petitioner was active in HIG during

jihad against the former Soviet Union; HIG was a terrorist organization at the time of petitioner's

capture;. was a HIG commander; petitioner was a HIG communicator at the time of his

capture; and petitioner possessed some al Qaeda- or Taliban-related material at the time of his

capture. Additionally, petitioner has stated that he was conscripted by the Taliban in the late

1990s and worked as a guard and laborer for two months. See ISN 899 FM-40 (Feb. 7, 2003);

see also ARB Tr. at 3-4.

       The question, then, is whether this evidence is sufficient for respondents to meet their

initial burden of demonstrating that petitioner's detention is justified. The Court determines that

it is. Respondents have provided enough evidence to show that HIG qualifies as an "associated

force£] ... engaged in hostilities against the United States or its coalition partners." See~


        8 As discussed previously, petitioner has accepted respondents' statement of the detention
authority for the purpose of the present motion.,'\1 ,\.' \ ':;1
                                          t    ,
                                                   Pct'r's Mem, at 16.
                                                                 .

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       To be clear, the Court offers no opinion at this stage of the proceedings as to whether this

evidence and these allegations are ultimately sufficient to justifY petitioner's detention under the

Court's May 19,2009 interpretation .0J.(€<sp(mdem~'.,a4th9.rjty. ~9 d~tafn. Similarly, the Court

offers no opinion as to petitioner's credibility or the ultimate inferences that it will draw from the

evidence as presented. The Court only holds that although much of respondents' evidence is

fatally lacking adequate indicia of reliability, the evidence that remains is sufficient -- under



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respondents' previous interpretation of their authority to detain -- to warrant denial of petitioner's

motion. Accordingly, petitioner's motion for judgment on the record will be denied. A separate

order accompanies this opinion.



                                                            /s/
                                                       JOHN D. BATES
                                                   United States District Judge

Date:     July 31, 2009




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