Guantanamo Litigation: District Court

And Another GTMO Habeas Denial: Bostan v. Obama

By Robert Chesney
Monday, October 31, 2011, 4:36 PM

Judge Walton has released his unclassified opinion in Karim Bostan (ISN 975) v. Obama, denying Bostan's habeas petition (the decisions appears to have issued in classified form on October 12th). The government had argued that Boston was part of an al Qaeda "bomb cell" involved in attacks on U.S. forces in Afghanistan in 2002, and Judge Walton found that the government proved this by a preponderance of the evidence. The reasoning is fairly similar to Judge Walton's simultaneous opinion in Hussein v. Obama, the unclassified version of which came out a few days back (and occasioned this post). Here are the key passages [pardon the formatting issues]:

[Bostan is] detainable under the AUMF based on the following facts, all of which are admitted to by the petitioner: (1) that the petitioner was a member of the Jamaat al-Tablighi, Joint Stmt. at 12; (2) that the petitioner met Obaidullah and Wazir through the Jamaat al-Tablighi, Joint Stmt. at 12; (3) that immediately prior to his and the petitioner's capture by Pakistani authorities, Wazir was in possession of a broken cellular telephone, Pet'r's Exhibits, Ex. 507 (MFR March 23,2003) at 6, and a large sum of cash while riding on a bus from Miram Shah to Peshawar; Joint Stmt. at 12; (4) that Wazir gave the telephone to the petitioner as he was exiting the bus to be searched by Pakistani authorities, Pet'r's Exhibits, Ex. 507 (MFR March 23, 2003) at 6; (5) that the petitioner attempted to hide the telephone upon receiving it from Wazir, see id. at 6 (statement by the petitioner that Wazir "passed the phone to him ... and that the [petitioner] hid the phone when it was passed to him"); and (6) Wazir's explanation to the Pakistani authorities that "he was carrying a broken phone" because "the phone could only be repaired in [Pakistan,] since no one" in Afghanistan could repair the device, id. As the Court explains below, these facts, when viewed collectively, demonstrate that the petitioner was more likely than not a "part of' al-Qaeda.

... The most likely explanation underlying the petitioner's actions was his knowledge that the telephone could be used to detonate explosive devices. Thus, the petitioner's possession of the cellular telephone, along with his attempt to conceal the telephone after receiving it from Wazir, undoubtedly weighs heavily in favor of a finding that the petitioner is detainable under the AUMF. ...As the Circuit found in Almerfedi, a detainee's membership in Jamaat al-Tablighi, together with other "damning" circumstantial evidence, is sufficient as a matter of law to justify the detainee's detention. See Almerfedi, _ F.3d at _,201 I WL 2277607, at *5. Here, there is no dispute that the petitioner was a member of that organization. Furthermore, when the petitioner's involvement with Jamaat al-Tablighi is viewed together with the most plausible inferences to be drawn from Wazir's and the petitioner's attempt to conceal an inoperable cellular telephone from Pakistani authorities, this circumstantial evidence is indeed "damning." To be sure, it is perhaps possible that an innocent reason, or several innocent reasons, might explain the petitioner's involvement with a Terrorist Support Entity. his unexplained chance encounter with an acquaintance from that organization at a bus stop, the other individual's possession of a large sum of money and an inoperable cellular telephone, that individual's decision to give possession of the telephone to the petitioner rather than his money to avoid its seizure by government security officials, and the petitioner's decision to conceal the telephone. But, "the far more likely explanation for [this] plethora of damning circumstantial evidence is that [the petitioner] was part of al Qaeda." Uthrnan v. Obama, 637 F.3d 400, 407 (D.C. Cir. 2011). Accordingly, the Court finds that the weight of the evidence in the record supports the petitioner's detention under the AUMF.