Terrorism Trials: Military Commissions

This Will Quench Your Thirst for Obaydullah

By Ritika Singh
Friday, March 9, 2012, 5:25 PM

Last month, Charlie Savage of the New York Times ran this story about an Afghan detainee at Guantanamo Bay by the name of Obaydullah--whose lawyers have made up this handy fact sheet. As Ben earlier wrote, Obaydullah lost his habeas case at the district court level in October 2010, but Savage reported that there have been new developments since:

His case. . . drew new attention after a military defense team began investigating it last year. They talked to village elders, neighbors and family members who corroborated crucial aspects of the benign explanations offered by Mr. Obaydullah, and they concluded that certain intelligence about him had been "mischaracterized."

This post is designed to give readers the documents that lie beneath this yarn.

Because the district court had already ruled, Obaydullah's case is under appeal to the D.C. Circuit. In his opinion, U.S. District Judge Richard Leon summarized the case as follows:

The Government contends that Obaydullah was a member of an Al Qaeda "bomb cell" operating in the Khost region of Afghanistan at the time he was taken into custody by U.S. forces in 2002. In particular, the Government contends that petitioner: (1) was hiding on his property a chache of 23 anti-tank mines and seven plastic mine shells from which explosives had been removed; (2) was captured in possession of a notebook containing instructions and wiring diagrams for how to build a remote-control detonating device (i.e. IED); (3) was storing an automobile that contained dried blood and Taliban propaganda, and that had been used by him and another to ferry to a local hospital certain bomb cell members who had been injured in an accidental explosion; and (4) has repeatedly given false and implausivle explanations regarding his knowledge of, and involvement with, these explosives, this notebook, and this automobile. In short, the Government contends that its pre-raid intelligence sources linking Obaydullah to the bomb cell have been more than adequately corroborated and that it is therefore more likely than not that petitioner was indeed a member of that al Qaeda cell.

Petitioner, not surprisingly, disagrees. he denies any ownership interest in the mines and automobile recovered from his property. Moreover, he claims that the notebook contains nothing more than his notes from a bomb detection class he had been required by the Taliban to attend some eight months earlier, as well as notes from his business. In essence, he claims that the unidentified sources of the Government's pre-raid intelligence have falsely accused him of membership in this supposed al Qaeda bomb cell.

Upon reviewing the return, the traverse, and oral arguments during the merits hearing, I. . . conclude. . . that the Government has more than adequately established that it is more likely than not that the petitioner was in fact a member of an al Qaeda bomb cell, and therefore detainable under the AUMF.

Obaydullah filed his brief on November 21, 2011, arguing "this Court should reverse the judgment with directions to grant Obaidullah's habeas petition. At a minimum, the Court should reverse for further proceedings that exclude both the uncorroborated pre-raid intelligence and Obaidullah's coerced statements during the July 2002 raid."

The government responded with its brief on January 30, 2012, concluding that Obaydullah “was plainly a member of an Al Qaeda bomb cell, and the district court did not commit clear error in concluding otherwise.” The government also filed a notice of classified filings, in which it mentioned a classified supplement to its brief and a classified supplemental appendix. Obaidullah's lawyers objected, filing a motion to strike the government's ex parte appendix and ex parte supplemental brief. The government's response to this motion is available here. The issue of the secret evidence in the case was also the subject of this story by Mike Scarecella in the National Law Journal. Oral arguments in the appeal are scheduled for April 24, 2012.

Meanwhile, however, Obaydullah's lawyers filed a motion under Rule 60(b)(2) in the the district court on February 8, 2012, trying to reopen the record because of "additonal exculpatory information uncovered in a recent investigation." The motion argues that "the newly-discovered evidence. . . completely refutes a key finding supporting the Court's denial of Obaidullah's habeas petition, as well as the Court's denial of Obaidullah's motion for reconsideration. The other newly-discovered evidence similarly undermines the Government's evidence against Obaidullah."

What is this "newly discovered evidence"? This declaration from Lieutenant Commander Richard Pandis of the U.S. Naval Reserve, an investigator detailed to Obaydullah's case, summarizes the defense's new material. Among other things, he concludes:

My investigation has given me no reason to believe that Obaydullah or any other particular parerson was actually visually identified at the time of the report about injured persons being ferried in a vehicle. Instead, my investigation leads me to believe that the intelligence was unintentionally mischaracterized by individuals and documents describing it to the District Court.

He also investigated other allegations, including the "presence of dried blood residue" in a car that "was parked in the courtyard of Obaidullah's family compound on the night Obaidullah and two of his cousins were taken into custody." He concluded that, contrary to previous assertions that the blood came from "ferrying wounded individuals from an accidental IED explosion," there was compelling evidence that it was from the birth of Obaydullah's daughter as he was taking his wife to the hospital.

The government's response to this motion, filed a week ago, is not yet public, nor is Obaydullah's reply--which is due today. We will post both briefs as soon as we can get our grubby little paws on them.

Obaydullah has also been the subject of an abortive military commission proceedings. Here are the sworn charges of conspiracy and providing material support for terrorism that were brought against him in September 2008. Here is the request for speedy trial brought by counsel on April 6, 2011--which prompted a dismissal of charges without prejudice on June 7, 2011. No documents other than the charge sheet and the dismissal are available on the military commission system's docket.