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FILELJ v';. ,'" rt1~ COURT,,~ECURp'YOFFICER CSO:VJ-..m ..,.­ DATE: ~!\J UN~TED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

OMAR MOHAMMED KHALIFH

Petitioner, , Civil Action No. 05-CV-1189 v.

BARACK H. OBAMA, et al.,

Respondents.

MEMORANDUM ORDER

Omar Mohammed Khalifh (ISN 695), a Libyan national,

alleges that he is illegally detained at Guantanamo Bay

Naval Base and petitions this court for a writ of habeas

corpus to secure his release. Petitioner has filed a

traverse and an amended traverse, and the government has

moved for jUdgment on the record. For the reasons that

follow{ the government's motion will be granted{ and the 1 petition for a writ of habeas corpus will be denied.

Background

Khalifh lost his right leg below the knee in 1998 or

1999 and received a prosthetic limb in mid-2001 from the

International Committee for the Red Cross Kabul Orthopaedic

Centre. J.E. 13. He was captured by Pakistani forces in

I Petitioner's counsel Cary Silverman and Edmund Burke have represented their client zealously and well, providing indepsensible service not only to their client, but also to the court. pro bono publico. in the highest tradition of the bar. Mr. Burke, in particular, traveled all the way from his home in Hawaii to GTMO and back many times. My thanks to both of them.

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Jalalabad, Pakistan, in March 2002 and subsequently

transferred to u.s. custody. He filed this petition in

2005, but his case, like all other habeas corpus petitions

from Guantanamo Bay, was put on hold until the Supreme

Court decided that Guantanamo detainees have a right to

habeas proceedings and that this court has jurisdiction to

hear them. Boumediene v. Bush,

(2008).

With Judge Hogan's omnibus Case Management Order as a

guide, I held a merits hearing on April 19 and 20, 2010.

Although he was given the option to do so, Khalifh did not

testify or listen to the proceedings remotely. I announced

my decision from the bench following the hearing, and now

issue this opinion to make a full record of my reasoning.

I. Legal Standards

The government's authority to detain Khalifh, if any,

derives from the Authorization for use of Military Force

("AUMFU),

Stat. 224 (2001). The court

of appeals has held that the President's authority pursuant

to the AUMF at least includes, but is not necessarily

limited to, detention of "those who are part of forces

associated with Al Qaeda or the Taliban or those who

purposefully and materially support such forces in

hostilities against U.S. Coalition partners. u AI-Bihani v.

Obama,

, 872 (D.C. Cir. 2010). The government

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contends that Khalifh was a part of al-Qaida, the Taliban,

and associated forces, justifying his detention. The

government had the burden of proving the lawfulness of the

detention by a preponderance of the evidence. In re

Guantanamo Bay Detainee Litig., Misc. No. 08-442, CMO § II

(A); Awad, 646 F. Supp. 2d at 23-24; see also Al-Bihani,

590 F.3d at 878 (upholding the constitutionality of the

preponderance standard) .

A. "'Part of"

The test now applied by most jUdges of this court for

determining who is or was ~part of" al-Qaida was first

articulated by Judge Bates: "whether the individual

functions or participates within or under the command

structure of the organization - i.e., whether he receives

and executes orders or directions." Hamlily v. Obama,

(D.D.C. 2009); see also Awad v. Obama,

(D.D.C. 2009) (appeal pending). A

detainee may fit within or under al-Qaida's ~command

structure" even if he never actually fights for al-Qaida.

AI-Sihani, 590 F.3d at 872. Detention is lawful under the

~part of" prong if the detainee has received and executed

al-Qaida's orders, even if he has only been a cook in an

al-Qaida camp. Id.; accord Gherebi v. Obama, 609 F. Bupp.

2d 43, 69, n. 19 (D.D.C. 2009).'

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B. Temporal Issue

Khalifh does not concede that he was ever a member of

al-Qaida, the Taliban, or associated forces, see J.E. 13;

but he argues in the alternative that even if I find that

he was once a member of a detainable organization, his

membership had lapsed by the time of his capture. The

government must show that detention was lawful at the time

of capture. See Salahi v. Obama, 2010 U.S. Dist. LEXIS

'35360, at *8-9 (D.D.C. Apr. 9, 2010) (appeal pending);

Gherebi, 609 F. Supp. 2d. at 71. The government need not

show an affirmative act after 9/11, but to justify

detention it must show that the petitioner was a part of

al-Qaida, the Taliban, or related forces at the time of his

capture. See Salahi,

, at *9­

10. A petitioner who may once have been part of al-Qaida

or the Taliban can show that he was no longer part of such

an entity at the time of capture by showing that he took

affirmative actions to abandon his membership. See, e.g.,

Al Ginco v. ·Obama,

(D.D.C.

2009); Hatim v. Obama,

(D.D.C.

Dec. 15, 2009). In Salahi, I held that a petitioner could

also show lapse of membership even without an affirmative

act of severance, if the evidence that the membership had

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lapsed is "credible and significant." Salahi, U.S. Dist.

LEXIS 35360, at *10-11. That proposition, however (from

which an appeal is pending) rests on unusual facts: in

Salahi's case there was a gap of nearly a decade between

his activity in al-Qaida and his subsequent capture. Id.

at *15-35.

C. Hearsay

Hearsay, along with other evidence normally excluded

by the Federal Rules of Evidence, is admissible in these

proceedings. See AI-Bihani, 590 F.3d at 879-81. All

proffered evidence has been admitted and given the weight

it deserves. See Awad,

.

D. Coerced Statements

Khalifh alleges that he was mistreated during

detention between "late 2004" and "early 2005," see J.E. 13

addendum, so he argues that the court should disregard his

statements during interrogation from that period.

Specifically, Khalifh alleges that during that period he

suffered painful glaucoma that was not sufficiently

treated, was kept in an extremely cold' cell that caused

pain in the metal

and was denied use of his pros·thetic leg. The government

denies mistreating Khalifh. Proof of mistreatment can

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taint a petitioner's statements, raising questions about

their reliability. See,~, Mohammed v. Obama,

(D.D.C. Dec. 16, 2009); Al Rabiah v.

United States,

, *21 (D.D.C. Sept. 17, 2009)

(citing U.S. v. Karake,

(D.D.C.

2006)). Here, I need not resolve whether Khalifh was

mistreated from late 2004 to early 2005 (which I will refer

to as the "window of alleged mistreatment" or the "window

period"), because, as I shall discuss, none of the

statements from the window period are necessary for the

government· to prove its case in toto. Where window-period

statements are the sole or principal evidence supporting a

particular government assertion, I find them unconvincing

for reasons independent of the alleged mistreatment.

II. The Evidence

A. 1992-1996: Libya and Sudan

The details of Khalifh's time in Libya and Sudan are

largely undisputed. While living in Libya, his native

country, Khalifh affiliated himself in 1992 at the age of

20 with the Libyan Islamic Fighting Group ("LIFG"). J.E.

95. He remained active with the LIFG in Libya for three

years.

The LIFG was an organization opposed to Libyan

dictator Mummar al-Qaddafi, which slowly split into a

faction that supported international terrorist networks and

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faction that was strictly Libya-focused and anti-Qaddafi. 2

J.E. 186. As a participant in the LIFG, Khalifh assisted

its members with obtaining weapons, housing, vehicles, and

intelligence. J.E. 30. He fled to Sudan in 1995 because

he learned that the Libyan government was investigating his

activities with the LIFG and intended to question him.

J.E. 30, 91.

In Sudan, Khalifh lived in LIFG-owned houses, J.E. 38,

and worked for a trucking company owned by Osama bin Laden.

J.E. 30, 48, 50. During this time, he severely injured his

left leg while attempting to climb over a wall at a

guesthouse, resulting in numerous large scars on his lower

leg. J.E. 13, 19, 50, 91. While in Sudan, he also

received a significant amount of training in the use of

explosives, as well as training in firearms, topography,

and ambush. 3 J.E. 38 (window period), 41 (window period),

50, 52, 91. The record is clear that Khalifh became an

expert in explosive devices and remained enthusiastic about

discussing, studying, .and teaching the mechanics of their

2 The u.s. designated the LIFG a terrorist group in 2004, and it merged with al-Oaida in 2007. J.E. 4, 186. The exact timing and nature of LIFG's development from an anti-Oaddafi entity into a broader terrorist group is murky and disputed by the parties.

There is conflicting evidence as to whether Khalifh SWOre bayat, or an oath of loyalty, to the LIFG while in Libya. Compare J.E. 91 (Khalifh stated that he was part of a group that swore bayat}. with J.E. 30 IKhalifh denied such an oath). Resolving this factual dispute is unimportant, given the extensive evidence of Khalifh's participation and travels with the LIFG.

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use. See J.E. 38 (window period), 41 (window period)

(noting that "the detainee is excited for the next

[interrogation] session where we could talk [morel about

explosives"), 52. In 1996, due to political pressure, bin

Laden and many of his followers left Sudan for Afghanistan.

J.E. 188. However, Khalifh was not permitted to leave for

Afghanistan with bin Laden's retinue, but left for

Afghanistan around a number of months later on direct

orders from LIFG emir Sadeq.4 J.E. 38 (window period), 48, 5 91.

In sum, the largely undisputed record shows that

Khalifh associated extensively with the LIFG during his

time in Libya and Sudan, and that, when he was in Sudan,

his participation with the LIFG developed into involvement

with al-Qaeda and bin Laden associates. In his declaration

Khalifh denies ever having been a member of the LIFG, ~

J.E. 13, but his admission to following a direct order from

the LIFG to leave Sudan for Afghanistan shows that he was

at least a "part of" the LIFG.

4 In his declaration, Khalifh indicated that he went to Pakistan for a time between leaving Libya and going to Afghanistan, see J.E. 13, but the bulk of the evidence contradicts that claim, and at the merits hearing his counsel did not advance that position. As shall be seen, numerous statements in Khalifh's declaration and supplemental declaration (J.E. 13 & addendum) are contradicted by the most reliable evidence, and I find their probative value to be limited.

j It appears likely that petitioner's departure occurred in 1996, but the record is not entirely clear. See J.E. 48.

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B. 1996-1998: Training Camps in Afghanistan

. After relocating to Afghanistan, Khalifh resided there

(with possible short departures) until leaving for Pakistan

sometime in 2001 or 2002. It is undisputed that he worked

at the Jihad Wahl training camp in Afghanistan. J.E. 173,

174. Jihad Wahl was a paramilitary training facility run

by Osama bin Laden. J.E. 6. Khalifh described Jihad Wahl

as a training camp focused on specialized skills and

advanced tactics, which worked in tandem with bin Laden's

basic training camp at Al-Faruq. J.E. 55.

The bulk of the evidence indicates that Khalifh

arrived at Jihad Wahl in 1996. See J.E. 35 (window

period), 52, 92. While at Jihad Wahl, he worked as an

explosives trainer, received additional training in

guerrilla tactics, repaired vehicles, constructed props for

al-Qaida training videos, commanded a guard post, and moved

equipment as needed. J.E. 52, 54, 55, 57, 92. Of note,

Khalifh described himself as following an order from Abu

Atta, a training camp leader, to build props to assist in

filming a recruiting video. J.E. 52. Later, likely in

1998, Khalifh became an explosives trainer at the al-Faruq

basic training camp. J.E. 54, 57; see also j.E. 6

(describing al-Faruq in detail) .

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Petitioner resists the idea that Jihad Wahl and al-

Faruq should be labeled "al-Qaida" training camps, but

concedes that the camps were run by bin Laden and that they

trained people in guerrilla and terrorist methods. Khalifh

indeed argues that his presence at these camps does not

prove that he was a member of al-Qaida because more than

10,000 individuals passed through them. But Khalifh was

not just passing through; he participated extensively in

these camps, as a trainer and in a low-level leadership

position. He certainly was "part of" al-Qaida during this

period.

C. 1998-Sept. 11, 2001: Loss of Leg and Safe Houses

In his declaration, Khalifh states that he lost his

right leg in 1998 or 1999 when he stepped on a landmine.

J.E. 13. It is undisputed that for a week in 1998, he had

worked wi th the Taliban as a "minesweeper" or sapper. 6 See

Merits H'g Tr. 176-77. It is fairly easy to connect the

two undisputed facts, and indeed most of the evidence shows

that he lost his leg by triggering a mine while working for

the Taliban. He told his u.s. interrogators numerous

alternative stories of how he lost his leg, see J.E. 18,

19, 21, 23, but none is believable in the face of the

~ Khalifh's declaration denies that he ever was a member of the Taliban. J.E. 13. His counsel attempted to rectify the apparent contradiction by contending that during this week Khalifh might have tried, but failed. to join the Taliban.

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obvious inference and additional supporting evidence. In

one interview Khalifh admitted to losing his leg while

clearing mines for the Taliban. J.E. 97 (window period).

This could be discounted, by itself, because it occurred

during the window period, but it has independent

corroboration. Arkam Mohammed Ghafil Al Karim (ISN 653),

who fought on the front lines with the Taliban against the

Northern Alliance in 1999, stated in an interview while

detailed at GTMO that he visited "OTnar the Libyan" at a

hospital after Omar had lost his right leg clearing mines.

J.E. 156. Al Karim identified Khalifh as the person he

meant by "Omar the Libyan." 7

From the time he lost his leg until early 2001, it is

undisputed that Khalifh stayed in a number of guesthouses

in Afghanistan, recuperating from his injury. See

generally J.E. 56, 58, 96, 110, 147; Merits H'g Tr. 127-44,

147-49. When interrogated by U.S. officials at GTMO, he

was able to pinpoint these guesthouses on maps and describe

whom he met there. While petitioner disputes the

characterization, it is clear from the record that these

were al-Qaida guesthouses. The government presented

evidence too extensive to cite showing that Khalifh met

7 Moreover, while numerous individuals in the area at the time went by the kunya ·Omar al Libi,· see J.E. 115, it is unlikely that more than one lost his right leg by clearing mines in the relevant timeframe.

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numerous top-level al-Qaida and Taliban leaders at these

guesthouses. I find Khalifh's presence at these

guesthouses to be the government's strongest evidence.

Whatever interaction he might have had with the top

terrorists he met, whether it was limited or extended, his

presence with them at guesthouses is quite powerful support

to 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 terrorist leaders for any amount of time. s

Petitioner stayed in several hospitals in the same

period during which he stayed at the guesthouses. J.E. 13,

19, 94; see also J.E. 154, 156. Petitioner argues that his

many stays in hospitals demonstrate that he spent a limited

amount of time at guesthouses with al-Qaida leaders, but

the hospital evidence is less exculpatory than he claims.

8 The government also attempted to show that Khalifh worked for bin Laden as an arms b

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Arkam Al Karim (ISN653) stated that he, along with other

front line Taliban fighters, visited "omar al Libi" at

Wazeer Akhbar Khan Hospital in 1998 in order to "pay their

respects." J.E. 156. As discussed above, the Omar al

Libi described by Al Karim is very likely Khalifh. The

clear inference from Al Karim's statement is that he and

other Taliban members were paying respects to Khalifh as a

wounded fellow member of the Taliban and/or al-Qaida.

D. 9/11 to Capture in Pakistan in 2002

Khalifh maintained contact with terrorists in the

period after September 11, 2001. He continued to interact

with LIFG members after 9/11, including Faisal al-Libi and

Ibrahim al-Libi. 9 J.E. 94. 10 He also admitted (in an

interrogation during the window period) to being asked by

an al-Qaida operative, Abu Faraj, to teach al-Qaida members

about the operation of mines. J.E. 36. While there is no

evidence that Khalifh actually fulfilled that request, the

fact that he was asked (if true) supports the idea that he

was considered to be part of al-Qaida.

9The LIFG may have aligned more closely with al-Qaida by the time of 9/11, as it issued a communiqu~ soon after advocating attacks on Americans. J.E. 189.

IOThe interview related in J.E. 94 occurred It is unclear if it falls within the "late 2004" window period.

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I am not convinced by the government's contentions

that Khalifh was present for the fight against the U.S. in

the mountains of Tora Bora and at Taloqan in Novemeber and

December of 2001. 11 I note that the government concedes

that there is absolutely no evidence of what Khalifh might

have actually done at those locations - i.e. , no evidence

that Khalifh personally lifted a hand against the U.S. or

his allies. The government's most convincing evidence is a

series of purported confessions. During an interrogation

in the window period, Khalifh told interrogators the number

of Arabs he believed fought on the front lines in

Afghanistan after 9/11. 12 J.E. 39. In a second

interrogation in the window period, Khalifh purportedly

nslipped," according to his interrogator, and admitted to

being at Taloqan and Tora Bora. J.E. 47. During a third

interrogation in June 2005 (presumably outside of the

"early 2005" window period), Khalifh stated that unlike

II Tora Bora, located in a mountainous region in Afghanistan near the Pakistani border, is a man-made cave complex that could support over a thousand people. J.E. 9. In November 2001, top al-Oaida members retreated to Tora Bora, resolved to make a last stand against u.s. and allied forces there.

American and Afghan forces arrived in December, eventually causing many of the al-Oaida members in the caves to flee for Pakistan, where many of them were later captured. rd. Taloqan was the location of additional fighting between coalition forces and al-Oaida. rd.

11 While the government argues that this implies Khalifh was indeed present at Tora Bora, Khalifh never says when, or what he means by the ~front lines." Moreover, while he states that there were "200 Arabs h on the front lines,

this contradicts the government's expert's statement that Tora Bora housed one to two thousand fighters during the battle. See J.E. 9.

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certain Afghan prisoners who he believed should not be

detained because they were ~onlyU Taliban members, he

stated he was "guiltyU and deserved to be held. J.E. 28.

He also objected to the release of certain European

detainees, in comparison to the continued to detention of

the Afghan detainees, and said that he had been present to

see some of the Europeans attacking American forces. rd.

The government has failed to establish probable cause

to believe Khalifh was present for fighting at Tora Bora

and Taloqan. The first purported confession is not really

a confession at all. The second is characterized as a

slip, without follow-up by the interrogator, and came

during a time of alleged mental distress. The third

alleged confession i$ ambiguous at best, and during that

interrogation Khalifh was extremely angry about the

treatment of the Afghan prisoners. J.E. 28. The record is

clear that Khalifh is an emotional person and prone to

outbursts, not all of which are truthful. Moreover, the

government has presented no corroboration to the alleged

confessions. And while it is amazing what people can do

without their limbs (think: Lord Nelson at Trafalgar),

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Khalifh's leg injuries strongly mitigate against the idea

that he could have traversed the mountains of Tora Bora. 13

Regardless of whether he fought at Tora Bora or

Taloqan, it is undisputed that Khalifh eventually found his

way to Pakistan. In Pakistan, he was captured at a

guesthouse in Jalalabad by Pakistani authorities in March

2002.

Conclusion

While I am not convinced by the government's evidence

related to Tora Bora or Taloqan, the "part of al-Qaida"

determination is a construct of all of the evidence.

Looking at the case from this perspective, the government

has shown more than probable cause to believe that Khalifh

was a part of al-Qaida and associated forces through a

steady string of activity right up until the time of his

capture. 14 In the Sudan, he worked for bin Laden's trucking

company, received training in guerrilla tactics, and

followed direct LIFG orders at least once to leave Sudan.

IJKhalifh once boasted that he could run with his prosthetic leg, J.E. 19, but there is no corroboration of this in his medical records. Cf. J.E. 116 (medical records) at 784 (noting that when Khalifh was given a new prosthetic leg with specialized shoe in 2005, he was able to walk 60 meters without a walker).

14 The government also proved that Khalifh was a part of the LIFG, but I need not determine whether LIFG membership alone supports detention; I take Khalifh's LIFG participation to be important mainly because his LIFG activities increasingly blurred with al-Qaida activities. Similarly, Khalifh's participation with the Taliban is best viewed as a tributary of his al-Qaida membership. rather than as an independent ground for detention.

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In Afghanistan, he trained jihadists at al-Qaida training

camps, attempted to clear mines with the Taliban, and

recuperated from the loss of his leg at al-Qaida safe

hous~s where top al-Qaida personnel were present. After

9/11, with an attack by the U.S. imminent, al-Qaida and

LIFG members in Afghanistan regarded Khalifh as enough of a

fellow traveler to continue to meet with him. While I find

that the government has not shown that Khalifh was at Tora

Bora or Taloqan or that he personally took up arms against

U.S. or coalition forces, it is slicing the law too thin to

require such proof. Given the clear proof of his long-

standing membership in al-Qaida and the LIFG, and the

absence of any evidence of active dissociation or of a

compellingly lengthy lapse in activity (as in Salahi), I

find that Khalifh was a part of al-Qaida at the time his

capture. Accordingly, the petition for writ of habeas

corpus is denied. It is SO ORDERBD.

JAMES ROBERSTON United States District Judge

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