UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ABDUL RAZAK ALI, ) ) Petitioner, ) ) v. ) Civil Case No. 10-1020 (RJL) ) BARACK H. OBAMA,1 et al., ) ) Respondents. )

tL- MEMORANDUM ORDER (January-LL,20ll)

Petitioner Abdul Razak Ali, who now claims his name to be Saeed Bakhouche

(hereafter "petitioner," "Bakhouche," or "Razak"), is an Algerian detainee being held at

the U.S. Naval Base at Guantanamo Bay, Cuba. He alleges that he is being unlawfully

detained by President Barack H. Obama, Secretary of Defense Robert M. Gates, and

various others in the relevant chain of command (collectively, "Respondents" or the

"Government"). On December 14,2010, this Court commenced a habeas corpus hearing

for Bakhouche. That morning, counsel for both parties made unclassified opening

statements in a public hearing. Petitioner listened to a live translation of the opening

statements via a telephone transmission to Guantanamo Bay, Cuba.

Pursuant to Federal Rule of Civil Procedure 25(d), if a public officer named as a party to an action in his official capacity ceases to hold office, the court will automatically substitute that officer's successor. Accordingly, the Court substitutes Barack H. Obama for George W. Bush.

1 Thereafter, the Court went into a closed-door session to hear each side present an

opening statement that included relevant classified information. Upon completion of

their statements, each side presented its evidence, most of which included classified

material, and arguments regarding various material issues of fact in dispute between the

parties. Because these presentations were not completed by the end of the day on

December 14, 2010, the Court reconvened the following day. Once again, presentations

and arguments relating to various classified materials consumed most of this day and the

Court, as a result, scheduled closing arguments two days later, on December 17, 2010.

After hearing each side's closing arguments, the Court informed the parties that it would

hold a public hearing in the near future to announce its decision. A classified version of

this opinion setting forth in greater particularity the factual basis of the Court's ruling will

be distributed in the upcoming weeks and issued through the Court Security Office,

together with the final judgment.

Before stating the Court's ruling, a brief statement of the relevant factual and

procedural background of the case is appropriate.

BACKGROUND

Petitioner is a forty-year old Algerian citizen who was captured on March 28,

2002, by Pakistani forces in a raid at a guesthouse in Faisalabad, Pakistan. He was

caught together with a well known Al Qaeda facilitator: Abu Zubaydah. Indeed, Abu

Zubaydah was at that very time assembling a force to attack U.S. and Allied forces.

Captured along with the petitioner and Abu Zubaydah were a bevy of Abu Zubaydah's

senior leadership, including instructors in engineering, small arms, English language

2 (with an American accent), and various electrical circuitry specialists. Also found at the

guesthouse were pro-al Qaeda literature, electrical components, and at least one device

typically used to assemble remote bombing devices (i.e., improvised explosive devices or

"IED"s). Petitioner was transported to Bagram Air Force Base for questioning, where he

was held before being transferred to the U.S. Naval Base in Guantanamo Bay, Cuba, in

June 2002.

In the aftermath of the Supreme Court's decision in Rasul v. Bush,

(2004) (holding that 28 U.S.C § 2241 extended statutory habeas corpus

jurisdiction to Guantanamo), petitioner filed this habeas corpus petition in this Court on

December 21,2005. (Pet. For Writ of Habeas Corpus [Dkt. #1].) The case was

originally assigned to my colleague, Judge Reggie B. Walton. As with hundreds of other

petitions filed around that time, no action was taken until the Supreme Court ruled on

June 12,2008, in Boumediene v. Bush,

(2008), that Guantanamo

detainees are "entitled to the privilege of habeas corpus to challenge the legality of their

detention." (Jd. at 2262.)

Pursuant to an agreement between most of the judges of this Court, Judge Walton

agreed to have Judge Thomas F. Hogan formulate the initial Case Management Order

("CMO") which would define the procedural process (i.e., including the burden of proof,

standard of proof, and definition of enemy combatant) that would guide the litigation of 2 these detainee cases. On November 6,2008, Judge Hogan issued a consolidated Case

2 I chose not to reassign the habeas cases originally on my docket to Judge Hogan for this purpose. Instead, I issued my own CMO on August 27, 2008, that I used in the various 3 Management Order for all of the judges who had transferred their cases to him for this

procedural purpose. (Case Mgm't Order, Nov. 6, 2008 [Dkt. #689].) That CMO was

amended several times thereafter by both Judge Walton (i.e., on November 12,2008

(Order, Nov. 12,2008 [Dkt. #695]) and December 19,2008 (Order, Dec. 19,2008 [Dkt.

#797])) and by Judge Hogan on December 16,2008 (Order, Dec. 16,2008 [Dkt. #784]).

Ultimately, petitioner filed a Motion for an Expedited Judgment in his case on January

16,2009. (Notice of Filing Mot. for Expedited J., Jan. 16,2009 [Dkt. #902].) Judge

Walton issued a further supplemental Case Management Order thereafter on February 19,

2009 (Supp. Case Mgm't Order, Feb. 19,2009 [Dkt. #1011]), which he amended on

March 27,2009 (Order, Mar. 27, 2009 [Dkt. #1101]).

On April 21,2009, Judge Walton transferred this case to Chief Judge Lamberth

for reasons of judicial economy. (Order, Apr. 21,2009 [Dkt. #1153].) On May 28, 2009,

petitioner filed a Renewed Motion for Expedited Judgment. (Order Memorializing Oral

Rulings, May 28,2009 [Dkt. #1190].) The Government filed its Factual Return on July

29,2009. (Notice of Pub. Filing of Factual Return, July 29, 2009 [Dkt. #1282].) Again

on August 28,2009, petitioner filed a Renewed Motion for Expedited Judgment. (See

Memo. and Op., Nov. 19,2009, at n.l [Dkt. #1337].) On September 24,2009, Chief

Judge Lamberth denied petitioner's motion. (Jd.)

habeas proceedings assigned to me. That CMO, among other things, placed the burden of proof on the Government, set the standard of proof as a preponderance of the evidence, provided discovery rights for detainees (including a right to "eXCUlpatory" materials), and formulated the procedural processes that would guide the hearings in my Court. In addition, it set forth the definition of "enemy combatant" that the Government's evidence would have to satisfy. (See Boumediene v. Bush, No. 04-1166, Case Mgm't Order, Aug. 27, 2008 [Dkt. #142].) This procedural framework was ultimately blessed by our Circuit Court this past June in Al-Bihani v. Obama,

(D.C. Cir. 2010). 4 On October 5, 2009, petitioner filed his Traverse in this case and filed motions

seeking certain discovery. (Notice of Filing Traverse, Oct. 5,2009 [Dkt. #1317].) While

this discovery process was still pending, however, petitioner moved to recuse Chief Judge

Lamberth on January 29, 2010, based on public comments he had made regarding the

role of the legislature in deciding issues related to detention cases. (Mot. for Recusal,

Jan. 29, 2010 [Dkt. #1361].) On June 6, 2010, Judge Lamberth issued an order recusing

himself from the case. (Order, June 6, 2010 [Dkt. #1418].) On June 16,2010, the case

was randomly reassigned to this Court. (Reassgm't of Civil Case, June 16,2010 [Dkt.

#1419].) On August 4,2010, I scheduled an initial status conference in this case for

August 19,2010. (Minute Entry, Aug. 4, 2010.)

On August 19, this Court met with the parties and inquired into the state of the

record and remaining discovery issues, and to set a date for the merits hearing. (Minute

Entry, Aug. 19,2010.) Six days later, on August 25,2010, I issued a CMO in this case.

(Case Mgm't Order, Aug. 25, 2010 [Dkt. #1423].) That order was virtually identical to

the CMO I had issued on August 27,2008, in Boumediene v. Bush, No. 04-cv-1166, and

that I had used in the six other habeas merits hearings I held in the eight months that

followed the Boumediene hearing. (No. 04-cv-1166, Case Mgm't Order, Aug. 27, 2008

[Dkt. #142].) It was also virtually identical to the CMO I had issued just a few weeks

earlier, on August 4,2010, in Obaydullah v. Obama. (No. 08-cv-1173, Case Mgm't

Order, Aug. 4, 2010 [Dkt. #77].)

On August 26, 2010, I held a discovery hearing to address certain pending

discovery requests by the petitioner. (Minute Entry, Aug. 26, 2010.) On September 10,

5 2010, I held a follow-up status conference to address those discovery issues further and to

schedule the merits hearing in this case for October 4 and 5, 2010. (Minute Entry, Sept.

10,2010.) On September 15,2010, however, petitioner's counsel requested a

continuance of the merits hearing to enable her to meet once again with her client in

Cuba. (Mot. to Reschedule Habeas Hr'g, Sept. 15,2010 [Dkt. #1428].) On September

21, 20 I 0, I granted her request and converted the October 4, 2010 hearing into a status

hearing. (Minute Entry, Sept. 21, 2010.) On October 4,2010, I rescheduled the merits

hearing for December 14 and 15,2010, and gave petitioner until November 5, 2010, to

amend his Traverse. (Minute Entry, Oct. 4, 2010.) On November 18,2010, the

Government filed its response to the Amended Traverse. (Notice of Filing Resp. to Pet.'s

Amended Traverse, Nov. 18,2010 [Dkt. #1443].)

On December 7, 2010, I held a pre-hearing conference with counsel in an effort to

narrow the factual issues to be covered at the merits hearing. (See Minute Entry, Oct. 4,

2010.) At that hearing I informed detainee's counsel that I had received a notice of an ex

parte filing from the Government the previous day that was classified at the top secret

level. (See Notice of Classified Ex Parte Filing, Dec. 6, 2010 [Dkt. #1444].) In

addition, I informed the parties that it had been my practice in all of my previous habeas

cases to refrain from reviewing such filings until such time as I had a need to do so.

Indeed, I informed counsel for both parties that because detainee counsel, in my

judgment, has a "need to know" any evidence being relied upon by the Government to

sustain petitioner's ongoing detention, the Government would only be permitted to keep

this evidence from detainee counsel if doing otherwise would endanger our national

6 security. Accordingly, unless and until the Government needed to rely on the

information contained in the ex parte filing in either its case-in-chief or rebuttal case, the

Court would not review it or conduct the type of hearing that using it would necessitate.

Neither side noted any concern regarding this approach. Moreover, at no time during the

merits hearing held on December 14, 15, and 17, did the Government either inform the

Court that its ex parte filing related to its pretrial discovery obligations or express any

need or intent to rely upon the evidence contained in the ex parte filing.

On December 22, 2010, the Court informed the parties that it would announce its

unclassified opinion in open court on December 30, 2010. On December 23,2010,

however, counsel for the Department of Justice informed the Court's staff/or the first

time that it had just received permission from its client to inform the Court via telephone

that the ex parte pleading it had previously filed concerned potentially exculpatory

information that the Government had not turned over to detainee counsel because it was

classified at a higher classification level than detainee counsel was authorized to view.

As a result, I immediately held an ex parte hearing that afternoon with Government

counsel to inquire into the circumstances surrounding the Government's failure to

previously inform me of this fact and to obtain some sense as to the nature of this

"exculpatory" material. I specifically cautioned counsel, however, not to reveal at this

point the substance of the material contained in its ex parte filing. At that hearing,

Department of Justice counsel apologized for failing to inform the Court directly of the

exculpatory nature of its ex parte filing. In addition, he informed the Court that the

nature of the exculpatory evidence was such that it related only to the credibility and

7 reliability of one particular identification witness that the Government was relying upon

in its case-in-chief. In response, the Court informed the Government counsel that in its

judgment, detainee counsel has a need to know and a right to review exculpatory material

that relates to the credibility and reliability of any witness whose statements are being

relied upon by the Government. Accordingly, in order to legally justify not providing

such information to detainee counsel, the Government would have to satisfy the Court

that providing such information to detainee counsel for use in a closed proceeding would

somehow endanger the national security of the United States. As such, the Government,

in essence, had to decide whether it wished to continue relying on the statements of this

witness. If so, the Court would hold an ex parte hearing on December 28, 2010, to

address the national security implications of revealing this exculpatory information to

detainee counsel. If not, the Court would hold a conference call that same day to inform

detainee counsel of these developments, and of the Government's withdrawal of reliance

on this particular witness.

On December 24, 2010, Government counsel notified the Court via facsimile that

it had decided to withdraw all reliance on the witness in question, thereby obviating the

necessity of an ex parte hearing on December 28, 2010. As a consequence, the Court had

no need to open and review the materials in the ex parte application. Three days later,

the Government filed a public pleading in advance of the scheduled telephone call in

which it notified detainee counsel of its intention to withdraw its reliance on the

statements of this particular witness. (See Resp.'s Notice of Withdrawal of Reliance on

Statements by Third-Party Detainee, Dec. 27, 2010 [Dkt. #1445].) Unfortunately, the

8 Government's filing did not give a complete and accurate description of the events

preceding that decision. Nevertheless, the Court held the conference call with counsel for

both sides on December 28, 2010, to correct the record for the benefit of detainee's

counsel and to address those events. On that occasion, detainee counsel requested an

opportunity to reformulate and re-present her closing argument in light of the removal of

the evidence from the Government's case. (See also Pet. 's Mot. to Withhold Ruling,

Dec. 28,2010 [Dkt. #1446].) The Court granted her request and set a hearing for January

4, 2011. (Minute Entry, Jan. 4, 2011.) On that day, counsel for both sides presented

hour-long supplemental closing arguments to the Court based on the amended record.

After a careful review of the Factual Return and Traverse, in all of their amended

forms, and after three days of hearings on the factual issues in dispute and the arguments

of counsel, the following is the Court's ruling on Bakhouche's petition.

LEGAL STANDARD

Under this Court's CMO, the Government bears the burden of proving the

lawfulness of the petitioner's detention by a preponderance of the evidence. In the

Boumediene cases, and in six subsequent habeas merits hearings, the Court adopted the

following definition of "enemy combatant" to delineate those who could be detained

lawfully:

An "enemy combatant" is an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.

9 Boumediene v. Bush,

(D.D.C. 2008). In the aftermath of the

change in administrations in January 2009, however, the Government for reasons

unknown to this Court, now eschews the use of the phrase "enemy combatant" and

simply argues instead that petitioner Bakhouche is the type of individual that is

detainable under the AUMF because he was "part of' an "associated force" (i.e., Abu

Zubaydah's force) engaged in hostilities against the United States or its Allied forces.

Either way, the petitioner's status ultimately depends on his relationship, if any, with Abu

Zubaydah's force. Fortunately, there is no real discrepancy between these two standards

in that regard, and therefore choosing between them is not necessary to a ruling on the

petition in this case.

ANALYSIS

The Government contends that the petitioner was a member of Abu Zubaydah's

force that was reorganizing at a guesthouse in Faisalabad, Pakistan, and preparing for

future operations against U.S. and Allied forces. In particular, the Government contends

that the petitioner: (1) lived with Abu Zubaydah and a cadre of his lieutenants during a

two week period; (2) previously traveled with Abu Zubaydah's force through

Afghanistan and ultimately fled with them through Afghanistan to Pakistan; and (3) took

an English course (with an American accent) when he was staying at Abu Zubaydah's

guesthouse.

Petitioner, not surprisingly, disagrees. Although he acknowledges being captured

in the same guesthouse as Abu Zubaydah, he denies: (1) ever being in Afghanistan, let

alone being with Abu Zubaydah's force there; (2) ever taking an English course from

10 Abu Zubaydah's trainers at the guesthouse; and (3) ever being a member, permanent or

otherwise, of Abu Zubaydah's force. In essence, he claims that the Government has

mistakenly identified him as a member of Abu Zubaydah's force, who traveled with Abu

Zubaydah in Afghanistan and fled with him to Pakistan before gathering at this particular

guesthouse to start preparing for their next offensive against u.s. and Allied forces.

Upon reviewing the Return, the Traverse, and the oral argument during the merits

hearing, I disagree with the petitioner's contention and conclude for the following

reasons that the Government 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.

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 AUMF. See Barhoumi v.

Obama,

(D.C. Cir. 2010) (affirming 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); Al Harbi v. Obama, No. 05-02479,

, at

*14 (D.D.C. May 13,2010) ("There 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 definition, detainable under

the AUMF. Indeed, petitioner does not dispute this, focusing instead on whether he was

actually a member of Abu Zubaydah's force.

11 The Government, of course, does not rely exclusively on petitioner's capture in the

same guesthouse as Abu Zubaydah - although the Government contends, and the Court

acknowledges, that that alone is enough to warrant petitioner's detention under the

AUMF. See Khalifh v. Obama, No. 05-1189, at 12 (D.D.C. May 29, 2010) ("Whatever

interaction [petitioner] might have had with the top terrorists he met, whether it was

limited or extended, his presence with them at [a] guesthouse is quite powerful support to

the inference that he was considered a member of al Qaeda (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 Government 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 Government sets forth credible accounts by fellow

guesthouse dwellers who not only positively identified the petitioner by one of the

various names he was using at that time - i. e., Abdul Razak - 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). 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

cannot help but conclude that petitioner's presence at this guesthouse is enough, alone, to

12 find that he was more likely than not a member of Abu Zubaydah's force. But, there is

more!

The Government also introduced credible evidence placing petitioner with Abu

Zubaydah's force in various places in Afghanistan prior to his stay at the Faisalabad

guesthouse. For example, one of his fellow detainees - who was also captured in the

guesthouse - 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) and recalled petitioner being in a

particular location in Afghanistan prior to their arrival in Pakistan. His statements were

corroborated by a contemporaneous diary propounded by one of Abu Zubaydah's close

friends (the "al Suri diary") which not only listed petitioner - under the same name

Usama al Jaza'iri - as a permanent member of Abu Zubaydah's group, but also placed

him in at least one of the same locations in which this eyewitness identified him. Indeed,

our Court of Appeals, in a recent case involving another detainee who was captured the

same day in the same guesthouse as petitioner, found this very diary to be a credible

source as to that other detainee's membership in Abu Zubaydah's force. Barhoumi,609

F 3d at 432. In addition, petitioner was cited by that same name in a separate report

listing the survivors of a fire in a different location in Afghanistan. In sum, the

Government 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, I 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.

13 Bakhouche, of course, vigorously denies the accuracy of the numerous 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'iri" 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. To the extent I can be specific in discussing the shortcomings of

his position in this unclassified opinion, suffice it to say that while his challenge to the

reliability of certain photo identifications might be more compelling if these witnesses

had only seen him on one particular occasion in either Pakistan 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 Government's

evidence linking him to the Abu Zubaydah group prior to his capture at the guesthouse is

inherently flawed and undermined by his own lack of credibility on certain critical points.

In particular, 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, was wholly incredible.

As such, the Court has no difficultly concluding that the Government 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

14 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, and for the reasons that will be set forth in greater

particularity in the forthcoming classified version of this opinion, 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.

lO.tOw~ I . ruCHARDJ:18O United States District Judge

15