Detention & Guantanamo

Another Habeas Denial

By Robert Chesney
Thursday, October 27, 2011, 5:43 PM

On October 12th, Judge Walton denied habeas relief to GTMO detainee Abdul Qader Ahmed Hussein (ISN 690), and the 22-page unclassified opinion is now available here.

I don't think the opinion breaks any new legal ground (though footnote 11 does note the "open" question whether the government should be held only to a "some evidence" standard rather than the preponderance standard).  The short of it is that Judge Walton found that the government's evidence sufficed to show by a preponderance of the evidence that Hussein was part of the Taliban at the time of his capture.  Here are the particulars:

First, the petitioner's extended stays at two Jama'at al-Tablighi mosques during his visits to Pakistan constitute probative evidence weighing in favor of his detention. See Almerfedi, _ F.3d at _. 2011 WL 2277607, at *4 (finding a single two-and-a-half-month stay at a Jama'at al-Tablighi mosque to be probative). Second, the petitioner's receipt of a Kalashnikov rifle from three Taliban guards in an area near the lines of battle between the Taliban and Northern Alliance, as well as the training he received from one of the Taliban guards regarding how to use the weapon, constitutes probative, if not conclusive, evidence supporting the petitioner's detention. See Sulayman, 729 F. Supp. 2d at 50 (Walton, J.) (concluding that a detainee's "presence at a 'staging area'" near the zone of battle "is by itself highly probative evidence of the [detainee's] status as 'part of the Taliban"); id. at 51 (ascribing additional weight to a detainee's presence at the battle lines where "he took possession of a powerful weapon during ... his visits to the 'staging area"'); cr. Almerfedi, _ F.3d at _, 2011 WL 2277607, at *4 n.7 (observing in dicta that "the government could satisfy its burden [of proof] by showing that an individual was captured carrying a[ Kalashnikov rifle] on a route typically used by al Qaeda fighters"). Third, the petitioner's actions after the September 11, 2001 terrorist attacks were "quite at odds" with his stated innocent intentions, cf. Almerfedi, F.3d at_, 2011 WL 2277607, at *4 (concluding a detainee's travel route that was "quite at odds with his professed desire to travel to Europe to be "damning" circumstantial evidence"); specifically, (1) the petitioner testified that he intended to leave Kabul and travel to Pakistan so that he could reunite with his family in Yemen and possibly get married, id. at 78:17-18, yet he made no credible effort to leave Pakistan; and (2) the petitioner testified that he did not enroll at the Salafi University, even though he traveled to Faisalabad, Pakistan because of his interest to attend the university, see id. at 80: 11-15. These facts, when viewed together, are more than sufficient to constitute the level of "damning" circumstantial evidence that is needed to satisfy the government's burden of proof in this case.

The petitioner's attempt to place an innocuous gloss on these incriminating facts is unavailing; in fact, his explanations are nothing more than "false exculpatory statements" that constitute "evidence-often strong evidence-of guilt." See Al-Adahi v. Obama, 613 FJd 1102, 1107 (D.C. Cir. 2010). With regard to his interactions with the Taliban guards, the Court is simply not persuaded by the petitioner's explanation that these guards were merely his "friends," see Pet'r's Exhibits, Ex. 200 (First Pet'r's Ded,) ~ 21, and that he was only given the weapon to protect himself from wild animals and potential thieves, 5/26110 Hr'g Tr. at 57:6-13. As the Court explained in SUlayman, the fact that the petitioner received a powerful weapon from a Taliban guard in an area near the battle lines "suggest[s] that the [guard] trusted the petitioner enough to allow him to take possession of [his] firearm[]. More importantly, these facts suggest that th[is] individual[] trusted the petitioner because he was loyal to their cause." Sulayman, 729 F. Supp. 2d at 51. In fact, the petitioner's explanation that he was given the weapon to fend off wild animals and potential thieves is inexplicable because "it would be beyond any sense of reason ... that [a] Taliban [guard] would allow a noncombatant to be present in" an area near the battle lines with a deadly weapon. Id. at 51-52. Thus, the Court finds the petitioner's explanations to be without merit.

The nonsensical explanations provided by the petitioner concerning why he stayed in Pakistan after the events of September 11, 2001, likewise cannot be believed. The petitioner testified at the merits hearing that he sought to leave Afghanistan and return to Yemen because he wanted to get married and return to his family, and that while he was in Lahore he intended to make arrangements to travel to Yemen, id. at 78: 17-18. Yet, when the petitioner arrived in Lahore and had the opportunity to fly back to Yemen, id. at 78:22-23, he decided not to do so because he purportedly had "limited" amounts of money and was looking to buy a ticket with a "maximum of one layover," but the only flights available from Lahore to Yemen would require "several layovers in some places and the ticket would be expensive," id. at 79:5-8. The petitioner cannot expect the Court to accept this explanation. First, there is no corroborating evidence in the record showing that flights from Lahore to Yemen with "several layovers" were more expensive than flights with less layovers; in the absence of such evidence, this premise strikes the Court as implausible given that the more layovers a traveler must experience to reach his or her final destination generally results in a less expensive ticket for the traveler. Thus, it makes little sense to the Court that the petitioner was dissuaded from traveling home because he could not Hnd a cheaper ticket with fewer layovers. Furthennore, the Court is not convinced that the petitioner would forego reuniting with his family merely because of the inconvenience of having to make several stops to travel from Lahore to Yemen; it is simply implausible that the unavailability of a convenient flight served as an insurmountable barrier to the petitioner in his efforts to return home. This explanation for why he remained in Lahore renders his reasons unworthy of belief.

The petitioner's actions after deciding not to fly back to Yemen from Lahore are even more inexplicable. The petitioner acknowledged at the merits hearing that flights were also available out of Islamabad, Pakistan, 5/26/10 Hr'g Tr. at 78:22-23, but the petitioner made nO effort to travel north to Islamabad to find a flight to return to Yemen; instead, he traveled west to Faisalabad. He then claims that he traveled to Faisalabad because he wanted to enroll in the SaJafi University, id. at 80:2-4, "and ... study the Koran there," id. at 80:7-8. That statement, too, is not worthy of credit. Despite the petitioner's claims that he wanted to study the Koran, and that this new aspiration supplanted his desire to return to Yemen to reunite with his family and possibly get married, the petitioner admits that he never enrolled as a student at the university upon his arrival in Faisalabad. 5/27/10 Hr'g Tr. at 45:9. The petitioner then attempts to explain why he delayed his effort to enroll in the university by stating that he wanted to "stay[ atJ th[e] house [and} memoriz[e the Koran] as much as [he] could before" being tested by the university on his knowledge of the Koran. Id. at 45:13-16. But, this explanation makes little sense as welJ, since his stated purpose for attending the university was to learn the Koran. In fact, all of the petitioner's explanations seem to be little more than post hac attempts to present goals that change as necessary to support his presence in one part of the world or another. The sum of the petitioner's inexplicable explanations for his actions renders his testimony completely incredible.