Detention & Guantanamo

Oral Argument Preview in Khan v. Obama

By Wells Bennett
Wednesday, May 11, 2011, 10:39 AM

On Friday morning the D.C. Circuit will hear oral argument in Khan v. Obama (Case No. 10-5306), an appeal from the district court’s (Bates, J.) denial of habeas relief.

The appeal does not pose any novel legal issues.  It seems to turn instead on the reliability of the Government’s evidence – chiefly raw intelligence reports from 2002, and sworn declarations, dated 2010, from the intelligence officers who wrote several of the reports.  For that reason, resolution of Khan’s case likely will not alter the habeas landscape in any meaningful fashion.  And, given the forgiving standards of review that apply to many of the district court’s rulings, and the state of the record below, Khan may face difficult odds.

The district court’s opinion and the parties’ appellate briefs are summarized below.  (Readers can find those documents here.)


Before the district court, the Government argued that at the time of his capture in November of 2002, Shawali Khan was a member of Hezb Islami Gulbuddin (“HIG”), a terrorist group associated with al-Qaeda and the Taliban.  Khan countered that the Government had scooped up the wrong man: though he concededly had affiliated with HIG during the Soviet occupation, Khan testified that he had long since quit the group.  And by the time of his capture, Khan said, he had become a petrol salesman with no relationship to HIG or any other terrorist organization.  Khan supported his claims through his own, live testimony; live testimony from an expert witness, a professor at the University of Massachusetts specializing in Afghan warlords; and affidavits from family members.

The District Court’s Opinion

The district court rejected Khan’s petition, and concluded that the Government had lawfully detained him.  Judge Bates first determined that Khan had not really challenged HIG’s association with al-Qaeda or the Taliban.  Consistent with the Government’s evidence, Khan’s expert had agreed that, despite prior acrimony, HIG had reconciled with the Taliban and al-Qaeda sometime after September 11, 2001.  Relatedly, Khan also had not denied his Soviet-era relationship with HIG - though he stated that he had not taken part in armed hostilities, and had merely served as a radio operator.

The only significant contentious matter, the opinion said, was the question of Khan’s alleged association with HIG at the time of his capture.  On that issue, Judge Bates looked to the contents of the 2002 reports and 2010 declarations.  According to these, in 2002 a former HIG member had informed U.S. personnel that Khan was part of a three-member HIG cell, which was planning to attack Americans in Kandahar.  (Khan’s uncle, Zabit Jalil, allegedly was the cell’s leader.)  A second confidential source corroborated the first’s account.  Another informant, an Afghan government official, told the officers that an HIG cell was active in the area.  Based on this intelligence, the Government planned and carried out Khan’s capture.  A search of Khan’s home yielded physical evidence of possible terrorist sympathies, including a notebook containing Arabic writings on assassinations, and another notebook from the al-Farouk terrorist training camp.  Lastly, during interrogation, Khan allegedly made certain incriminating statements.

Judge Bates thought that, if accepted as true, the Government’s factual allegations would be sufficient to demonstrate Khan’s detainability.  The lone question was whether the Government’s proof was reliable.  Judge Bates ultimately concluded that it was, although this was not his initial view.  At first the Government had offered the reports alone as proof of Khan’s detainability.   Bates expressed skepticism, and rejected these as lacking the necessary indicia of reliability under accepted intelligence-gathering standards.  Yet he also offered the Government an opportunity to demonstrate the reports’ reliability through other means.  In response, the Government provided the sworn, 2010 declarations from two American intelligence officers, who claimed to have authored the 2002 intelligence reports, and to have met with sources who described Khan’s HIG activities.

The declarations seemed to persuade Bates on the reliability question.  Among other things, his opinion reasoned that, according to the officers, the HIG source had met with them voluntarily and provided detailed information on past HIG operations.  The officers furthermore were able to corroborate several of the source’s allegations, and relied on them in plotting Khan’s capture.  At the same time, the opinion rejected Khan’s suggestion that the officers or their informants were biased.  In another part of the opinion, Judge Bates dismissed Khan’s challenges to the reliability of other intelligence reporting, which had described the seizure of incriminating material at Khan’s home, and the admissions Khan made during interrogation.

The opinion therefore found the Government’s evidence reliable, and concluded that the Government had shown, by a preponderance of the evidence, that Khan had been lawfully detained under the AUMF.  Judge Bates did not credit Khan’s claim that the Government mistakenly had detained an innocent shopkeeper.

Khan’s Opening Brief

Put simply, Khan challenges the Government’s evidence as insufficient and unreliable.  For example, he argues that the Government failed to establish that, in 2002, an HIG cell actually existed in Kandahar; or more generally that HIG was “associated” with the Taliban for purposes of the AUMF.  In Khan’s view, the district court should have credited Khan’s expert, who testified that a 2002 alliance between HIG probably would not have operated in Kandahar in 2002, and that the accord between HIG and al-Qaeda and the Taliban did not crystallize until 2003 or 2004.  Khan’s brief additionally highlights an excerpt from a book by Sarah Chayes, a former journalist and longtime resident of Afghanistan.  The excerpt described Chayes’ discussion with an Afghan police chief, who told Chayes that no HIG cell was active in Kandahar during the time relevant to Khan’s detention.  In Khan’s view, Judge Bates erroneously refused to rely on Chayes’ unsworn account.

Separately, on the “associated forces” issue, Khan argues that the district court improperly shifted the burden of proof to Khan.  This was because Judge Bates concluded early in the case that the Government had demonstrated the necessary connection between HIG, al-Qaeda and the Talban.  The district court’s opinion said that in the interim, Khan had done nothing to persuade Judge Bates otherwise.  Khan takes this to mean that in the district court’s view, the onus was on him, rather than the Government, to show HIG’s legal link to al-Qaeda or the Taliban.

The brief then turns to its central theme:  variously critiquing Judge Bates’ findings about the reliability of raw intelligence reports from 2002, and more recent declarations from the reports’ authors.  In one passage, Khan says that because the intelligence officers remain anonymous - though sworn, their declarations contain code identifiers rather than the officers’ true names - their oaths are “meaningless as the declarants are not subject to any potential ‘penalty of perjury.’”  Elsewhere Khan disputes the district court’s evaluation of the contradictions between the officers’ declarations and their intelligence reports.  Like Khan, the district court believed these to be discrepant in some respects.  But Judge Bates concluded that the inconsistencies showed only that the officers had misremembered the sequence in which the officers had become acquainted with their HIG source and other sources - a minor error that did not significantly diminish the reliability of the information described by the reports or the declarations.  Taking issue, Khan’s brief contends that the officers’ memory lapse was itself proof that they “fabricated a story to justify their work in 2002, which had been called into question.”  In passing, Khan also says that Judge Bates’ reliability analysis improperly invoked a quote from another habeas case, al-Bihani. Specifically, Khan says, Bates failed to account for limiting language in the al-Bihani opinion.   Khan also emphasizes that he cannot read Arabic, and that he had no knowledge of the materials seized from his home.

Khan lastly notes that he has asked Judge Bates for permission to review the unredacted versions of reports that described the materials allegedly seized from Khan’s home.  In proceedings below, Khan’s counsel had attacked the heavily redacted reports as unreliable, but then suggested that his concerns might be assuaged if Bates reviewed the full, unredacted materials ex parte. After such a review, and in its written opinion, the district court rejected Khan’s contention.  Khan’s position on appeal thus seems to mark a change in tack.  Despite having expressed comfort with the district court’s review procedure, Khan now argues that unless his counsel can access the unredacted reports, he will not have a meaningful opportunity to challenge the district court’s conclusion regarding the reliability of the reports that recount the search of Khan’s home.

The Government’s Response Brief

The Government’s Response Brief encompasses three overarching claims.  First, the Government reiterates that the intelligence reports and declarations sufficiently prove that, at the time of his capture, Khan was a member of HIG - a group “associated” with al-Qaeda and the Taliban under the AUMF.  Despite Khan’s contrary suggestion, the Government says, his expert did not meaningfully disagree with the Government’s claims regarding HIG.  Instead, the expert opined only that it was “unlikely” that HIG operated in Kandahar in 2002.  And, although the expert surmised that HIG’s northern origins would make it unlikely to operate in a southern, Taliban-controlled area like Kandahar, that view is not inconsistent with nascent cooperation between HIG and al-Qaeda and the Taliban, in the period immediately following September 11.  The Government adds that unlike the intelligence officers, Khan’s expert had no access to classified information about HIG activities and was not familiar with Khan’s uncle, who was allegedly the leader of the HIG cell.  Finally, the Government points out that Khan has offered no legal support for his claim that Judge Bates erred in discounting Chayes’ narrative.

Next the Government defends the district court’s appraisal of the intelligence officers’ declarations – among other things, by emphasizing the district court’s broad discretion, the officers’ firsthand knowledge of events, and the detailed character of their declarations.  The Government also stresses that the use of code names need not diminish the force of the officers’ testimonial oaths.  “The use of a pseudonym does not constitute anonymity,” the Government writes, and Khan “is simply wrong to argue that the intelligence collectors are not subject to any penalty of perjury.”  Nor, the Government contends, did the district court err in downplaying the importance of the collectors’ mistaken recollections.  As Judge Bates found, those inaccuracies bore on timing only, not on the collectors’ assessments of the reliability of their sources.  At the same time, Khan’s intimation of bias or fabrication by the officers is unsupported by evidence, and Bates’ reliance on al Bihani is beside the point, as Bates merely cited that decision as “an example of a decision addressing the reliability of confidential intelligence sources.”

The Response Brief’s third and final argument pertains to the district court’s ex parte review of intelligence reports pertaining to the search of Khan’s residence.  In short, the Government states that Khan’s counsel approved of this ex parte review.  Consequently, Khan cannot now complain that an ex parte procedure lead Judge Bates to find the reports reliable.  Said differently, Khan has waived any objection to Judge Bates’ approach.

Khan’s Reply Brief

Khan advances five arguments in reply.

First, Khan says, the Government’s evidence of an HIG cell in Kandahar consisted of nothing more than the uncorroborated word of a single, HIG-affiliated informant.  That was legally insufficient, according to Khan.  (Khan dismisses the Government’s claim that other sources corroborated the HIG informant’s account.)  And the Government likewise fails to substantiate its critique of Khan’s expert, regarding the tribal and geographic attributes that made HIG’s migration to Kandahar unlikely in 2002.  Khan next argues that the Government is mistaken about the admissibility of Chayes’ account.  Judge Bates could have taken judicial notice of the trustworthiness of her work, including her claim that an Afghan police official told her that HIG was inactive in Kandahar around the time of Khan’s detention.

Secondly, on the “associated forces” issue, the Reply Brief reiterates that the district court improperly placed the burden of proof on Khan, rather than on the Government.  And though the Government characterizes its association evidence as unrebutted “testimony,” no live testimony was presented during the evidentiary hearing.  Instead, Khan says, the Government offered only a single declaration from an intelligence official.  Khan countered that with live testimony from his expert, and the district court erred by crediting the former over the latter.

With respect to reliability, Khan stoutly maintains that anonymous declarations are not subject to the penalty of perjury under federal law; that the Government cannot escape the district court’s improper reliance on the al-Bihani decision; that the Government also cannot establish an intelligence source’s reliability without offering evidence that the source had reported reliably in the past; that the intelligence officials’ declarations do not stand unrebutted, as the Government claims; and that the declarations contain materially false statements and lacked objective factual content.

Fourth, Khan disputes the Government’s arguments regarding the district court’s ex parte review, on four separate grounds.  First, Khan says, Khan’s counsel did not waive his right to review unredacted intelligence reports, mostly because the Court of Appeals had required Khan to file his opening appellate brief while his motion to review the unredacted materials was still pending before the district court.  Second, Khan says that he was entitled to review the unredacted materials, as Judge Bates’ substitutes were legally inadequate under settled case law.   Third, Khan claims that the Government impermissibly has exploited its power to classify information, to Khan’s detriment.  Fourth, Khan once more claims that one officer’s declaration, and the raw intelligence reports, are both unreliable.

Lastly the Reply argues that Khan “has never raised any conspiracy theories.”  To the contrary, Khan merely has suggested that informants often lie, and that the Government’s sources did so in his case.

A three-judge panel, consisting of Chief Judge Sentelle and Judges Ginsburg and Garland, is presiding over Khan’s appeal.  Leonard C. Goodman is expected to argue on Khan’s behalf, and H. Thomas Byron III will argue the Government’s position.