Khairkhwa v. Bush

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UNITED STATES DISTRICT COURT FILED WfnI THE
FOR THE DISTRICT OF COLUMBIA cg~TS~
KHAIRULLA SAID W ALI DATE:_~~~~~:..r...-_
KHAIRKHWA,

Petitioner, Civil Action No.: 08-1805 (RMU)

v. Re Docwnent Nos.: 1, 187, 197

BARACK OBAMA et al.,

Respondents.

MEMORANDUM OPINION

DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS

DENYING AS MOOT THE GOVERNMENT'S MOTION FOR THE COURT TO
CONSIDER Ex PARTE INFORMATION ON THE MERITS

OVERRULING THE GOVERNMENT'S OBJECTION TO THE PETITIONER'S RELIANCE ON

MATERIALS OUTSIDE THE RECORD

I. INTRODUCTION

This matter comes before the court on the petition for a writ of habeas corpus filed by

Khairulla Said WaH Khairkhwa (ISN 579) ("the petitioner"), an Afghan national detained at the

United States Naval Station in Guantanamo Bay, Cuba ("GTMO"). The government contends

that the petitioner, a former senior Taliban official, is lawfully detained because he was part of

Taliban forces and purposefully and materially supported such forces in hostilities against the

United States. The petitioner maintains that his detention is unlawful because he was merely a

civilian administrator in the Taliban government with no involvement in the Taliban's military

operations, and because he had disassociated himself from the Taliban by the time ofhis capture.

In March 2011, the court held a merits hearing to assess the lawfulness of the petitioner's

detention. During the eourse of that hearing, the parties introduced dozens of exhibits from a

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variety of classified and public sources, including media reports, scholarly works, interrogation

reports and declarations from intelligence analysts. The court also received live testimony and

declarations from subject matter experts offered by the petitioner. At the conclusion of the

hearing, both parties submitted detailed proposed findings of fact and conclusions of law

encapsulating and amplifying the evidence and argument presented during the merits hearing,)

Having carefully considered the parties' extensive presentations, the court reaches the

following findings. The petitioner was, without question, a senior member of the Taliban both

before and after the U.S.-led invasion of Afghanistan in October 2001. The petitioner served as

a Taliban spokesperson, the Taliban's Acting Interior Minister, the Taliban Governor of Kabul

and a member of the Taliban's highest governing body, the Supreme Shura. The petitioner was a

close associate ofTaliban leader Mullah Mohammed Omar, who appointed him Governor of the

province of Herat in 1999. The petitioner held this office at the time the Taliban government feU

to U.S. coalition forces in late 2001.

Although the petitioner contends that he had no military responsibilities in any of his

posts within the Taliban, the record belies that contention. The petitioner has repeatedly

admitted that after the terrorist attacks of September 11, 2001, he served as a member of a

Taliban envoy that met clandestinely with senior Iranian officials to discuss Iran's offer to

provide the Taliban with weapons and other military support in anticipation of imminent

hostilities with U.S. coalition forces. The petitioner has also exhibited a detailed knowledge

about sensitive military-related matters, such as the ]ocations, personnel and resources ofTaliban

military installations, the relative capabilities of different weapons systems and the locations of

The government has objected to the petitioner's reliance on eleven documents that were not made
a part of the record, but are nevertheless cited in the petitioner's proposed findings of facts and
conclusions of law. See generally Govt.'s Opp. To Petr's Reliance on Materials Outside the
Record. The government's objection is overruled.

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weapons caches. Furthermore, the petitioner operated within the Taliban's fonnal command

structure, providing material support to Taliban fighters both before and after the outset of

hostilities with U.s. coalition forces. These facts are consistent with the TaHban's governance

model, in which nearly all senior Taliban officials were tasked with both civilian and miHtary

responsibilities.

Despite the petitioner's efforts to portray himself as a reluctant, marginal figure within

the Taliban, the record indicates that the petitioner rose to the highest level of the Taliban and

had close ties to Mullah Omar, who repeatedly appointed the petitioner to sensitive, high-profile

positions. Indeed, even after the U.S.-led invasion of Afghanistan, the petitioner remained

within Mullah Omar's inner circle, despite the fact that Mullah Omar had Hmited his contacts to

only his most trusted commanders.

The petitioner remained part of Taliban forces at the time of his capture in early 2002.

Although the petitioner contacted individuals allied with the United States to discuss the

possibility of surrendering himself to U.S. coalition forces, he never turned himself in and was

ultimately captured at the home of a senior Taliban military commander.

In sum, based on a totality of the evidence, the court concludes that the government has

proven by a preponderance of the evidence that the petitioner was part of Taliban forces at the

time of his capture. The petitioner is therefore lawfully detained and his petition for a writ of

habeas corpus must be denied.

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II. BACKGROUND
A. Factual Overview

The following facts are undisputed. The petitioner was born in the Kandahar province of

Afghanistan some time between 1967 and 1972. GE 91 2 (Joint Stipulation of Undisputed Facts)

~ 10; GE 20 (lSN 579 FD-302 (July 2, 2002) at 1; GE 44 (ISN 579 FD-302 (May 26, 2002» at

1; GE 45 (ISN 579 FD-302 (May 13.2002» at 1; GE 70 (ISN 579 CSRT Summarized Statement

(Nov. 8,2004» at l-2. He is a Durrani Pashtu and a member of the Popalzai tribe. GE 91 ~ 11.

Following the Soviet invasion of Afghanistan in 1979, the petitioner relocated with his family to

a refugee camp near Quetta, Pakistan. GE 20 at 1. The petitioner spent the bulk of his youth in

Pakistan and was educated at different madrassas3 in that country. GE 91 ~ 14; GE 43 (ISN 579

MFR (May 10, 2002» at 1; GE 45 at 1.

In 1994, with the Soviets expelled from Afghanistan and various factions fighting for

control over the country, the petitioner returned to Afghanistan. GE 91 ~ 13. He moved to the

village of Spin Boldak in Kandahar province, where he began working for the Taliban. ld In

Spin Boldak, the petitioner functioned primarily as a wayand, or spokesperson, serving as the

Taliban's spokesman to media outlets such as the BBC and Voice of America. GE 20 at 1-2; GE

45 at L The petitioner also served as the Taliban's district administrator for Spin Boldak, the

2
Citations to "OE _ " refer to the exhibits introduced by the government during the merits
hearing, whereas citations to "PE _ " refer to the exhibits introduced by the petitioner during
the merits hearing.
3
"Madrassa" (plural·'madaris") derives from the Arabic word for "school." In Pashto, the term is
commonly used to refer to religious schools ("deeni madaris"). See GE 88 at 20.

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highest-ranking official in that city. GE 71 (ISN 579 ARB Statement (June 22, 2006) at 3; Mar.

31 Tr. at 87.4

The petitioner rose quickly through the Taliban ranks. In 1996, the petitioner was

appointed Governor of Kabul, PE 110 ~ 50, and shortly thereafter, became the Taliban's Acting

Minister of the Interior, id; GE 91 ~ 16. By that time, the Taliban had seized control over

southern and central Afghanistan, including Kabul, and were advancing on the Northern Alliance

stronghold city of Mazar-e-Sharif. 5 GE 91 ~~ 2-3. The Taliban attempted to seize the city in

May and September 1997, but both assaults proved unsuccessful. [d. ~ 3. The Taliban finally

captured Mazar-e-Sharif in August 1998. ld ~ 4.

On October 26, 1999, the petitioner was appointed Governor of Herat, id ~ 17, the

westernmost province in Afghanistan, GE 92. The petitioner held this post when U.S. coalition

forces commenced Operation Enduring Freedom on October 7,2001. See GE 91 ~ 5. By mid-

November 2001, U.S. coalition forces had pushed the Taliban out of Mazar-e-Sharif, Herat and

Kabul. Id. ~~ 6-8. Kandahar fell in early December 2001. Id

In late January or early February 2002, Pakistani authorities captured the petitioner in

Chaman, Pakistan at the home of Abdul Manan Niazi, the former Taliban Governor of Kabul.

Id ~ 18. The petitioner has been detained at GTMO since approximately March 2002.

B. Procedural History

In June 2008, the Supreme Court issued its ruling in Boumediene v. Bush, 12& S. Ct. 2229

(2008), in which the Court held that individuals detained at GTMO are "entitled to the privilege

The merits hearing occurred on March 28-31, 2011. Citations to the hearing transcript shall be
made by designating the date of the proceedings.

During the merits hearing. the parties presented a substantial amount of evidence regarding the
petitioner's alleged role as a Taliban commander during the assaults on Mazar-e-Shariff. See
infra Part IV.B.2.
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of habeas corpus to challenge the legality of their detention," id. at 2262, and that the federal

district courts have jurisdiction over such challenges, id. at 2274. Shortly thereafter, the

petitioner fi1ed a petition for a writ of habeas corpus challenging the legality ofhis detention at

GTMO. See generally Pet.

Although the Supreme Court did not specify what procedures the district courts were to

employ in resolving habeas petitions fi1ed by GTMO detainees, it did emphasize that the

"detainees in these cases are entitled to a prompt habeas corpus hearing." Boumediene, 128 S.

Ct. at 2275. Toward that end, this court and other judges in this district agreed to consolidate

their cases before Judge Hogan for the purpose of adopting common procedures for the GTMO

detainee litigation. See Minute Order (Oct. 29,2008). On November 6, 2008, Judge Hogan

issued a Case Management Order ("CMO") to govern these proceedings, which he amended on

December 16, 2008. See generally Am. CMO (Dec. 16, 2008). This court adopted the

provisions of the amended CMO, subject to modifications set forth in an Omnibus Order issued

on April 23, 2009. See generally Omnibus Order (Apr. 23, 2009).

The government filed its factual return for the petitioner in December 2008. See

generally Factual Return. Following an extensive period ofdiscovery, the petitioner filed

his traverse in December 2009. 6 See generally Traverse. In April 2010, the parties filed cross-

motions for judgment on the record. See generally Govt's Mot. for J. on the R.; Petr's Cross-

Mot. for J. on the R. The court denied the parties' cross-motions after concluding that there were

genuine issues of material fact in dispute, and scheduled a merits hearing to begin in November

The court granted the government's motion for leave to amend the factual return in September
2010, Mem. Op. (Sept. 16,2010) at 3-6, and in early March 2011, granted both the government's
unopposed second motion for leave to amend the factual return and the petitioner's unopposed
motion for leave to amend the traverse, Order (Mar. 7,2011). The court granted the
government's unopposed third motion for leave to amend the factual return on March 25, 2011.
Minute Order (Mar. 25, 2011). SEC RE,.

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2010. Order (Sept. 16,2010). At the petitioner's request, the court rescheduled the merits

hearing to March 2011. Order (Oct. 12,2010).

The merits hearing began on March 28, 2011 and spanned four days. During the course

of the hearing, the parties introduced dozens of exhibits and offered extensive argument

concerning the lawfulness of the petitioner's detention. The court also received live testimony

from a subject matter expert called by the petitioner. See infra Part III.D. At the conclusion of

the merits hearing, the parties submitted proposed findings of fact and conclusions of law. With

the record now complete, the court turns to the applicable legaI standards and the evidence and

argument presented by the parties.

III. EVIDENTIARY MATTERS

A. Framework for Assessing the Evidence

In assessing whether the government has shown that the petitioner is lawfully detained,

the court "must evaluate the raw evidence, finding it to be sufficiently reliable and sufficiently

probative to demonstrate the truth of the asserted proposition with the requisite degree of

certainty." Bensayah v. Obama, 610 F.3d 725, 725 (D.C. Cir. 2010) (quoting Parhat v. Gates,

532 F.3d 834, 847 (D.C. Cir. 2008)). Thus, when relying on any piece of evidence in these

GTMO habeas proceedings, the court must examine that evidence to "detennine whether the

evidence is in fact sufficiently reliable to be used as a justification for detention." Khan v.

Obama, 646 F. Supp. 2d 6, 12 (D.D.C. 2009); see also Naji al Warafi v. Obama, 704 F. Supp. 2d

32,38 (D.D.C. 2010) (observing that "[iJn Guantanamo habeas proceedings, the Court must

assess the accuracy, reliability, and credibility of each piece of evidence presented by the parties

in the context of the evidence as a whole" (internal quotation marks omitted»).

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The reliability of any piece of evidence may be established by the intrinsic characteristics

of that evidence, such as the nature and consistency of the details contained in an account,

Barhoumi v. Obama, 609 F.3d 416, 428~29 (D.C. Cir. 2010), as well as through corroboration by

other evidence in the record, id. at 429 (noting that "an intelligence report's reliability can be

assessed by comparison to 'exogenous information"'); Bensayah, 610 F.3d at 725-26 (citing

Parhat, 532 F.3d at 849). Two pieces of evidence, "each unreliable when viewed alone," can

corroborate each other and mutually establish their reliability. Bensayah, 610 F.3d at 726 (citing

United States v. Laws, 808 F.2d 92, 100-03 (D.C. Cir. 1986».

In this case, the government has based its case on a variety of classi1ied and public

materials, including scholarly works, media reports, expert declarations, intelligence reports,

interrogation reports reflecting statements made by the petitioner and other detainees and

transcripts ofthe petitioner's testimony to the Combatant Status Review Tribunal ("CSRT") and

the Administrative Review Board ("ARB"). A number of these documents contain multiple

levels of hearsay. See FED. R. EVID. 801(c). As dictated by this Circuit, the court shall

individually assess the reliability of each exhibit that it relies on in the course of its analysis. See

infra Part IV.

B. Admissibility and Reliability of Hearsay Evidence

Prior to the merits hearing, the government submitted a motion in which it argued that the

court should afford a presumption of accuracy and authenticity to its hearsay evidence. See

generally Govt's Hearsay Mot. Noting that the motion was substantively identical to motions

resolved by this court in other GTMO cases, the court granted in part and denied in part the

government's motion in an order issued prior to the merits hearing. Order (Mar. 17,2011)

(citing Alsabri v. Obama, 2011 WL 576064, at *5-6 (D.D.C. Feb. 3, 2011); Hatim v. Obama, 677

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F. Supp.2d 1, 7-10 (D. D.C. 2010), rev'd on other grounds, 632 F. 3d 720 (D.C. Cir. 2011». The

reasoning underlying the court's ruling is set forth in greater detail below.

The Circuit has made clear that although "hearsay evidence is always admissible in

Guantanamo habeas proceedings, such evidence must be accorded weight only in proportion to

its reliability." Barhoumi, 609 F.3d at 428 (D.C. Cir. 2010). As the Circuit has stated, "the

question a habeas court must ask when presented with hearsay is not whether it is admissible - it

is always admissible - but what probative weight to ascribe to whatever indicia of reliability it

exhibits." Al Bihani v. Obama, 590 F.3d 866,879 (D.C. Cir. 2010).

Nothing in these Circuit decisions suggests that the court should presume the accuracy or

reliability ofthe government's exhibits; to the contrary, as previously noted, the Circuit has

stated that before relying on any piece of evidence, the court must determine that it is sufficiently

reliable and probative. Bensayah, 610 F.3d at 725 (citing Parhat, 532 F.3d at 847); cf Al Odah

V. Obama, 611 F.3d 8, 14 (D.C. Cir. 2010) (holding that the district court did not err in relying on

hearsay evidence where "[t]he government offered reasons why its hearsay evidence had indicia

of reliability, and the court considered the reliability of the evidence in deciding the weight to

give the hearsay evidence").

Drawing on these principles, this court has held that although hearsay evidence is always

admissible in these habeas proceedings, the court cannot presume the accuracy of such evidence,

but must instead make individualized determinations about the reliability and accuracy of that

evidence and the weight it is to be afforded. A/sabri, 2011 WL 576064, at *5 (citing Hatim, 677

F. Supp. 2d at 10)). The court has also held that based on the principles underlying Federal Rule

of Evidence 803(6), which sets forth the hearsay exception for reports of regularly conducted

activity, the government's interrogation reports and intelligence reports are entitled to a

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presumption of authenticity. Id; see also Almerfedi v. Obama, 2010 WL 691944, at "'1 (D.D.C.

Mar. 1,2010) (concluding that all of the government's hearsay evidence was admissible and that

any evidence created and maintained by the government in the ordinary course of business was

entitled to a rebuttable presumption of authenticity, but rejecting the government's argument that

its evidence should be afforded a presumption of accuracy). As described below, the court has

applied the same framework in assessing the hearsay evidence introduced by the government in

this case. See infra Part IV.

C. Reliance on Ex Parte Information

During the course of this litigation, the government has filed a number of motions for

leave to provide the petitioner with redacted versions of certain documents that are subject to the

automatic disclosure provisions of the CMO. The motions were brought pursuant to § LF of the

CMO, which provides that "[i]fthe government objects to providing the petitioner's counsel with

classified information [otherwise subject to disclosure], the government shall move for an

exception to disclosure." CMO § I.F. Relying on the Circuit's ruling inAI Odah, the court

issued a series of rulings on these motions, ultimately granting the government leave to redact

portions of certain documents disclosed to the petitioner. See, e.g., Mem. Order (May 25, 2010);

Mem. Order (Oct. 5, 201 0) (granting in part and holding in abeyance in part the government's

renewed fourth ex parte motion for exception from disclosure and directing the government to

provide further explanation for its redaction to one document); see also Al Odah v. United States,

559 F.3d 539,545-47 (D.C. Cir. 2009) (concluding that the court may order the disclosure of

classified information to the petitioner only if the evidence is material, access by petitioner's

counsel is necessary to facilitate meaningful habeas review and there are no adequate alternatives

to disclosure).
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In June 2010, the petitioner filed a motion seeking access to the government's ex parte

filings. See generally Petr's Mot. for Access to Ex Parte Filings. The court denied the motion,

concluding that § I.F of the CMO contemplates ex parte applications for exceptions from

disclosure. Mem. Op. (Sept. 16,2010) at 6-9. In so ruling, however, the court noted that it had

no intention of relying on any redacted, ex parte information in determining the legality of the

petitioner's detention.' Id at 8-9.

On March 27, 20 II, the government filed a motion, in which it argued that the court

should, in assessing the lawfulness ofthe petitioner's detention, consider ex parte certain

information redacted from the documents disclosed to the petitioner. s See generally Govt's Mot.

that the Court Consider on the Merits Infonnation Contained in Its 3d & 5th CMO § LF. Motions

("Govt's Mot. for Ex Parte Consideration"). According to the government, the Circuit's ruling

in Al Odah implicitly acknowledges the court's authority to rely on ex parle materials when the

petitioner's access to that infonnation is not necessary to facilitate the court's meaningful review.

See generally id The petitioner disagrees, citing the well-established presumption against the

court's reliance on materials to which both parties do not enjoy access. See generally Petr's

Opp'n to Govt's Mot. for Ex Parte Consideration.

The court is aware that at least one judge in this district has relied on ex parte infonnation

to assess the reliability of materials submitted by the government during a merits hearing. See

Khan v. Ohama, 741 F. Supp. 2d 1, 17 (D.D.C. 2010) (noting that the court conducted an ex

parte review ofunredacted copies of certain intelligence reports to assess their reliability). In

this immediate case, however, the court finds it unnecessary to rule on the issue because, as

7
The court reiterated this position in its ruling on the government's fifth ex parte motion for
exception from disclosure. Mem. Order (Mar. 11,2011) at 3 n.ll.

The government submitted unredacted versions ts at issue with its ex parte
motions for exception from djsclosure.a.""l<~-+~"""!'-f"""'''''
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discussed below, the evidence to which both parties had access amply establishes the lawfulness

ofthe petitioner's detention. See infra Part IV. Accordingly, the court denies the government's

motion as moot.

D. Qualification of the Petitioner's Experts

During the merits hearing, the petitioner sought to introduce testimony from two

individuals proffered as expert witnesses: Hekmat Karzai and Brian Williams. Karzai submitted

a declaration on the petitioner's behalf, see generally PE 110 (Decl. of Hekmat Karzai), and

testified at the merits hearing, see Mar. 31 Tr. at 45-152. Williams also offered a declaration on

the petitioner's behalf, see generally PE lIlA (Decl. of Brian Williams), though he did not

testify at the merits hearing. 9

Following extensive voir dire by the government, the court concluded that Karzai was

qualified to offer expert testimony on each of the matters addressed in his declaration. Mar. 31

Tr. at 92. The court also heard extensive argument from the parties regarding Williams's

qualifications to offer expert testimony in this case, though it declined to rule on the matter

during the hearing.

In the following sections, the court explains in greater detail the basis for its ruling on

Karzai's qualifications and assesses the expert qualifications of Williams. The court begins by

briefly recounting the general principles governing the qualification of expert witnesses.

1. Legal Standard for the Qualification of Expert Witnesses

Federal Rule of Evidence 702 provides that a witness must qualify as an expert to testify

on matters that are scientific, technical or specialized in nature. See FED. R. EVID. 702. The

court must act as a "gatekeeper" and determine the admissibility of expert testimony and the

Neither Karzai nor Williams obtained access to or testified on the basis of classified materials in
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qualifications of expert witnesses. Meister v. Med Eng'g Corp., 267 F.3d 1123, 1127 n.9 (D.C.

Cir. 2001) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,592 n.10 (1993»). The

trial court's gatekeeping obligation applies not only to scientific testimony but to all expert

testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 148 (1999).

In general, Rule 702 has been interpreted to favor admissibility. See Daubert, 509 U.S. at

587; see also FED. R. EVlD. 702 advisory committee's note (2000) ("A review ofthe caselaw

after Daubert shows that the rejection of expert testimony is the exception rather than the rule.").

The adversarial system remains the "traditional and appropriate" mechanism for exposing "shaky

but admissible evidence." FED. R. EVlD. 702 advisory committee's note (2000) (quoting

Daubert, 509 U.S. at 596). Nonetheless, the party presenting the expert bears the burden, by a

"preponderance of proof," of establishing the qualifications of the proposed expert. Meister, 267

F.3d at 1127 n.9.

Rule 702 does not specify any particular means for qualifying an expert, requiring only

that the witness possess the "knowledge, skill, experience, training, or education" necessary to

"assist" the trier of fact. FED. R. EVID. 702. As the Supreme Court stated in Daubert, the trial

court must determine whether the proposed expert possesses "a reliable basis in the knowledge

and experience of [the relevant] discipline." 509 U.S. at 592. In considering whether this

standard is met, courts may consider the factors articulated in Daubert, such as (1) whether the

expert's technique or theory can be or has been tested; (2) whether the technique or theory has

been subject to peer review and publication; (3) the known or potential rate of error of the

technique or theory when applied; (4) the existence and maintenance of standards and controls;

and (5) whether the technique or theory has been generally accepted in the scientific community.

Id

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tJJ!Cft'l!';)

The Supreme Court has, however, noted that the Daubert factors are not exclusive and

may not apply in all cases. Kumho Tire Co., 526 U.S. at 150-51 (noting that Rule 702 envisions

a "flexible" inquiry). In cases in which the Daubert factors do not apply, "reliability concerns

may focus on personal knowledge or experience." Groobert v. President & Dirs. o/Georgetown

Coil., 219 F. Supp. 2d 1,6 (D.D.C. 2002) (citing Kumho Tire Co., 526 U.S. at 149). Formal

education ordinarily suffices, and a person who holds a graduate degree typically qualifies as an

expert in his or her field. See, e.g., Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d

167,176-77 (5th Cir. 2010); Am. Gen. Life. Ins. Co. v. Schoenthal Family, LLC, 555 F.3d 1331,

1338-39 (11th Cir. 2009).

There is, however, no requirement that an expert possess formal education, and an expert

may be qualified on the basis ofhis or her practical experience. See, e.g., Thomas v. Newton

Int'/ Enters., 42 F.3d 1266, 1269-70 (9th Cir. 1994) (concluding that a longshoreman with

twenty-nine years of experience in various positions within the industry was qualified to testify

as an expert about proper safety procedures). As noted in the advisory committee notes to Rule

702, "[i]f the witness is relying solely or primarily on experience, then the witness must explain

how that experience leads to the conclusion reached, why that experience is a sufficient basis for

the opinion, and how that experience is reliably applied to the facts." FED. R. EVID. 702 advisory

committee's note (2000).

The degree of "knowledge, skill, experience, training, or education" required to qualify

an expert witness ~~is only that necessary to insure that the witness's testimony 'assist' the trier of

fact." See Mannino v. Int'/ Mfg. Co., 650 F.2d 846, 851 (6th Cir. 1981) (noting that the weight

of the evidence is a matter to be assessed by the trier of fact). "[I]t is not necessary that the

witness be recognized as a leading authority in the field in question or even a member of a
C"
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recognized professional commWlity." 29 FED. PRAC. & PROC. (EVID.) § 6265. "The 'assist'

requirement is satisfied where expert testimony advances the trier of fact's understanding to any

degree." Id.

2. Hekmat Karzai

Hekmat Karzai, one of the proposed experts on whom the petitioner relies, is the Director

of the Centre for Conflict and Peace Studies, an independent research institute in Afghanistan

dedicated to reducing the threat of political violence and fostering an environment of peace and

stability in that nation. PE 11 0 1I~ 1-2. Karzai earned a master's degree in strategic studies,

focusing on issues such as terrorism, militancy and insurgency, has authored scholarly works on

the Taliban and its relationship with al-Qaida, has traveled extensively in the region and is

personally acquainted with many former Taliban leaders as well as local Afghan officials. Id. ~

4-6; Mar. 31 Ir. at 46-49,52. He is also a senior fellow at the Joint Special Operations

University, Special Operations Command for the United States Military and regularly briefs

senior U.S. commanders in Afghanistan. Mar. 31 Tr. at 46-49.

The petitioner offered Karzai to provide expert testimony on the following subjects: (1)

background on the Taliban government and its relations with Iran; (2) a profile of Mullah Omar;

and (3) the petitioner's background and his role within the Taliban government. PE 110117.

Following a lengthy voir dire, the government conceded Karzai's qualifications to offer expert

testimony on the first two of these issues. Mar. 31 Tr. at 89. The government objected,

however, to Karzai offering expert testimony on the third issue, arguing that his views on the

petitioner's roles within the Taliban were based more on ipse dixit than on rigorous analysis. ld.

at 89-90. The government noted that Karzai had published no scholarly works about the

petitioner and based his opinions about the petitioner primarily on his discussions with

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individuals associated with the petitioner rather than on any rigorous analytical inquiry. Id. at

90. In effect, the government argued, the petitioner was attempting to introduce hearsay

evidence in the guise of expert testimony. Id. at 91.

The court overruled the government's objection based on the following considerations:

having authored a master's thesis on the relationship between the Taliban and al-Qaida, as well

as numerous scholarly works on the Taliban and Afghanistan, Karzai had amassed over a decade

ofexperience conducting research on issues related to the Taliban and Afghanistan by the time

he began researching the petitioner in 2006. Id at 44-49,86. Accordingly, Karzai plainly

possessed the training and experience necessary to conduct research into the petitioner, a

prominent and senior member of the Taliban government.

Indeed, it would appear that in a manner consistent with his training and experience,

Karzai conducted a systematic inquiry into the petitioner. Karzai testified that he formed his

opinions about the petitioner's background and posts within the Taliban by interviewing

numerous people associated with him, including his family, those who worked with him in the

Taliban government on a daily basis and current senior Afghan government officials. Id. at 83­

85. He also consulted primary and secondary sources, such as local Afghan publications, for

information regarding the petitioner's role within the Taliban. Id at 84. Karzai testified that he

sought out a variety of individuals with firsthand knowledge about the petitioner, speaking not

only with individuals from Taliban-dominated southern Afghanistan, but also with individuals

from both the Mazar-e-Sharif region in the north and Herat province in western Afghanistan. ld

at 89. Moreover, Karzai attempted to verify the information he obtained from any source by

seeking corroboration through other sources. [d. at 86-87.

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The government did not explain why Karzai's reliance on information that he obtained

from these interviews precludes him from offering expert testimony, particularly in light of his

efforts to cross-reference and corroborate this information. 1O Although the government

suggested that the rigor of Karzai' s inquiry was undermined by his persona) desire to see the

petitioner freed, Mar. 31 Tr. at 90-91, in the court's view, this factor is relevant to the weight

afforded to Karzai's testimony, not his expertise.

Accordingly, based on Karzai's knowledge, training and experience regarding the

Taliban and his efforts to research the petitioner's background and roles within the Taliban, the

court concluded during the merits hearing that Karzai was qualified to offer expert testimony on

the petitioner's background and posts within the Taliban.

3. Brian Williams

Brian Williams is a professor of Islamic History at the University of Massachusetts-

Dartmouth, where he has taught since 2001. PE 111 A , 1. He has a doctoral degree in Central

Asian History, as well as a master's degree in Russian History and Central Eurasian Studies. Id

Williams has authored more than seventy articles on war and terrorism in Central Eurasia. ld

He has testified as an expert in other GTMO proceedings. See, e.g., Khan, 741 F. Supp. 2d at 8

(noting that Williams offered expert testimony on Afghan warlords).

In his declaration, Williams offers expert opinion testimony on the following four

subjects: (1) the Taliban's conquest of Mazar-e-Sharif; (2) Iranian-Taliban cooperation against

the United States; (3) intelligence sharing between the Taliban and Iran; and (4) al-Qaida bases

10
Indeed, one of the works which the government has described as an authoritative source on the
Taliban relies on information obtained from precisely the sort of interview which the government
deemed unreliable during its voir dire ofKarzai. See GE 48 (AHMED RASHID, T ALIBAN:
MILITANT ISLAM, OIL AND FUNDAMENTALISM IN CENTRAL ASIA (2000» at 90-91 (describing
information obtained from an interview with Samiul Ha leader ofthe Dar-ul-Uloom Haqqania
madrassa). ,~"\ '-'>~;.' ~"y ....

\ L~", ~

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located in Herat. See generally PE lIlA. The government does not dispute Williams's

qualifications to offer testimony on subjects one and four. Mar. 31 Tr. at 6. The government

asserts, however, that Williams lacks the qualifications necessary to offer expert testimony on

subjects two and three, both of which concern the relationship between the Taliban and Iran. ld

More specifically, the government contends that Williams has little expertise on Afghanistan or

the Taliban, having focused the majority of his schoJarJy endeavors on the Russian Caucasus and

Turkey, and that he has no specialized education or training on Iran. Id at 6-21. The

government also points to mistakes and inconsistencies in testimony offered by Williams in other

GTMO proceedings as evidence ofhis lack of expertise. Id at 22-30.

The court disagrees with the government's assessment of Williams's expertise. The

government itself has previously relied on Williams as an expert on the Taliban. Williams

authored a book published in 2001 by U.S. Army Publications entitled "Afghanistan 101: A

Guide to the Afghan Theater of Operations," GE 100, 5, and has lectured on the Taliban and

Afghanistan at the U.S. Special Operations Command at Macdill Air Force Base ("The Role of

Foreign Fighters in the Taliban Insurgency"), Air Force Special Operations Command at

Hurlburt Airfield ("Waging Counter-Insurgency in Afghanistan 1842-2008"), the Joint

Information Operations Warfare Command at Lackland Air Force Base ("Background on Islam,

Suicide Terrorism and Jihad in the Middle East'') and the Central Intelligence Agency's Counter

Terrorist Center ("Profiling Afghan Suicide Bombers"), GE lilB (Curriculum Vitae of Brian

Williams) at 9-10. Williams has worked for a U.S. Army Information Operations team at NATO

Headquarters in Kabul and wrote the Joint Information Operations Warfare Command's field

manual on Afghanistan. PE lIlA, 2.

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Williams has traveled to Afghanistan on four occasions since the fall of the Taliban

government. Id. He has also authored articles discussing Afghanistan in the age of Taliban-rule

that have been published in scholarly journals, 11 as well as policy journals and other
12
collections. PE 111 B at 3-7. Furthennore, Williams has taught at least one course covering

modem Afghan history, including the period of the Taliban, titled "Empires and Invasions: A

History of Afghanistan from Genghis Khan to the War on Terror." GE 95 at 1.

Given his demonstrated scholarship on the history of the Taliban, as well as the

government's own reliance on him as an expert on matters related to the Taliban, it is clear that

Williams possesses the specialized knowledge needed to offer expert opinion testimony on the

Taliban and Afghanistan. Indeed, as previously noted, the government has conceded that

Williams is qualified to offer expert testimony about the battle for Mazar-e-8harif during the rise

of the Taliban and about the presence of al-Qaida bases in Herat province during the Taliban's

rule over Afghanistan. See Mar. 31 Tr. at 6.

Such expertise could not be obtained without developing a specialized knowledge of the

Taliban's relationships with its regional neighbors, including Iran. It is well-established that

Iran, which shares a 400-mile border with Afghanistan, played a central role in Afghan affairs

during the TaJiban's rise to power, providing substantial military support to the Northern

Alliance and other groups in their struggle for control of Afghanistan. See, e.g., PE 75 (Thomas

H. Johnson, Ismail Khan, Herat, and Iranian Influence, 3 8TRATEGle INSIGHTS, no. 7, July 2004,

at 1) at 3; PE 76 (Mohsen M. Milani, Iran's Policy Towards Afghanistan, 60 MIDDLE E.J., no. 2,

II
See, e.g., Brian Williams, Reportfrom the Field General Dostum and the Mazar i Sharif
Campaign: New Light on the Northern Alliance Warlords in Operation Enduring Freedom, 21
SMALL WARS AND INSURGENCIES, no. 4, Dec. 2010, at 610, 611-15.
12
See, e.g., Brian Williams, The Failure ofAl Qaeda Basing Projects: From Soviet Afghanistan to
the Sunni Triangle, in DENIAL OF SANCTUARY. UNDERSTANDING TERRORIST SAFE HAVENS 49,
58-59 (Michael Innes ed. 2007). ,,, (e< ('1 r'~ f,":r
. .\v/ r \ t". ~
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Spring 2006, at 235) at 244 (noting that Iran provided key support to the Northern Alliance

during the battle for Mazar-e-Sharif, in which the Taliban ultimately prevailed with the aid of

Pakistan).

Although the fact that Williams has little demonstrated expertise in Iran is relevant to the

weight that the court ascribes to his views on the relationship between the Taliban and Iran, it

does not preclude him from offering expert testimony on the issue. Accordingly, the court

concludes that Williams is qualified to offer expert opinion testimony on all ofthe issues for

which he has been proffered.

IV. ANALYSIS

A. The Scope of the Government's Detention Authority

The government's authority to detain individuals at GTMO derives from the

Authorization for the Use of Military Force ("AUMF"), which provides that

the President is authorized to use all necessary and appropriate force against
those nations, organizations, or persons he determines planned, authorized,
committed, or aided the terrorist attack that occurred on September 11, 2001, or
harbored such organizations or persons, in order to prevent any future acts of
international terrorism against the United States by such nations, organizations,
or persons.

Pub. L. No. 107-40, 115 Stat. 224 (2001).

This Circuit has delineated two categories of persons detainable under the AUMF: (1)

individuals who are "part of' forces associated with al-Qaida or the Taliban and (2) individuals

who purposefully and materially supported such forces in hostilities against U.S. coalition forces.

Al Bihani, 590 F 3d at 872; see also id at 874 (noting that "both prongs are valid criteria that are

independently sufficient to satisfy the standard"). The burden rests with the government to

demonstrate by a preponderance of the evidence that the detainee falls within one of these

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categories of detainable persons. See Awad v. Obama, 608 F.3d 1, 10 (D.C. Cir. 2010) (stating

that "a preponderance of the evidence standard satisfies constitutional requirements in

considering a habeas petition from a detainee held pursuant to the AUMF"); accord Al Bihan;,

590 F.3d at 878. 13

The Circuit has observed that because al-Qaida's organizational structure is amorphous,

"it is impossible to provide an exhaustive list of criteria for determining whether an individual is

'part of al Qaeda." Bensayah, 610 F.3d at 725. Accordingly, the district courts must determine

whether an individual is "part of" al-Qaida or associated forces on a "case-by-case basis"

employing a "functional rather than a formal approach and by focusing upon the actions of the

individual in relation to the organization." Id. "That an individual operates within al Qaeda's

formal command structure is surely sufficient but is not necessary to show that he is 'part of the

organization." Id.; see also Awad, 608 F.3d at 11 ("Ifthe government can establish by a

preponderance of the evidence that a detainee was part of the 'command structure' of al Qaeda,

this satisfies the requirement to show that he was 'part of al Qaeda. But there are ways other

than making a 'command structure' showing to prove that a detainee is 'part of' al Qaeda."). On

the other hand, "the purely independent conduct of a freelancer is not enough" to show that an

individual is detainable as "part of' of those enemy forces. Bensayah, 610 F.3d at 725; see also

Salahi v. Obama, 625 FJd 745, 752 (D.C. Cir. 2010) (noting that "the government's failure to

prove that an individual was acting under orders from al-Qaida may be relevant to the question

of whether the individual was 'part of the organization when captured").

13
Nevertheless, the Circuit has expressly left open the question of whether a lower evidentiary
standard might be constitutionally permissible. See AI-Adahi v. Ohama, 613 F.3d 1102, 1103
(D.C. Cir. 2010); see also Esmailv. Ohama, 2011 WL 1327701, at *3 (D.C. Cir. Apr. 8,2011)
(Silbennan, J., concurring) (stating that "in a habeas corpus proceeding the preponderance of
evidence standard that the government assumes binds it, is unnecessary - and moreover,
unreal istic"). j" f '.. f',:!''' 'l~
, ' ;: 4:\l ( . .t :
\).,,,,$:- ~M. ~,\-:
t ~";:

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The government's "authority to detain an enemy combatant is not dependent on whether

an individual would pose a threat to the United States or its allies if released." Awad, 608 F.3d at

11. The government must prove, however, that the petitioner was "part of' the Taliban, al-Qaida

or associated forces at the time of his capture to demonstrate that his detention is lawful under

the first prong of the standard. See Salahi, 625 F.3d at 751 (observing that "the relevant inquiry

is whether [the petitioner] was 'part of al-Qaida when captured"); Gherebi v. Obama, 609 F.

Supp. 2d 43, 71 (D.D.C. 2009).

Few courts have delved at length into the ''purposeful and material support" prong of the

detention standard. It is nonetheless clear that as with the "part of' prong of the detention

standard, the inquiry into whether an individual has purposefully and materially supported

hostilities against U.S. coalition forces requires a fact-specific assessment focusing on the actions

of the individual in relation to the organization. See Al-Bihani, 590 F.3d at 873 (noting that even

ifthe detainee could prove that he was a civiHan "contractor" and was not a formal member of

the Taliban, the services that he provided to Taliban fighters engaged in hostilities against U.S.

coalition forces, such as cooking for the unit and carrying a brigade-issued weapon, would render

him detainable under the support prong of the detention standard).

In assessing whether the government has met its burden under either prong of the

detention standard, the court may not view each piece of evidence in isolation, but must consider

the totality ofthe evidence. See AI-Adahi v. Obama, 613 FJd 1102, 1105-06 (D.C. Cir. 2010).

Even if no individual piece of evidence would by itselfjustifY the petitioner's detention, the

evidence may, when considered as a whole and in context, nonetheless demand the conclusion

that the petitioner was more likely than not "part of' the Taliban or al-Qaida or that the petitioner

purposefully and materially supported such forces. Id (concluding that the district court erred in

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"requir[ing] each piece of the government's evidence to bear weight without regard to all (or

indeed any) other evidence in the case"); cj Bourjaily v. United States, 483 U.S. 171, 179-80

( 1987) (observing that "individual pieces of evidence, insufficient in themselves to prove a point,

may in cumulation prove it" because the "sum of an evidentiary presentation may well be greater

than its constituent parts").

B. The Petitioner Is LawfuUy Detained

1. The Petitioner Was a Senior Taliban Official

In many of the GTMO habeas cases litigated since Boumediene, the central question

before the court has been whether the detainee knowingly associated himself with the Taliban,

al-Qaida or related enemy forces. To resolve this question, courts have commonly sifted through

evidence of the detainee's presence at training camps and safchouses and assessed the

plausibility of the detainee's claim that he had no intention ofjoining forces hostile to the United

States. See, e.g., Alsabri, 2011 WL 576064, at *9-32 (analyzing evidence that the detainee had

stayed at al-Qaida and Taliban-affiliated guesthouses and training camps and evaluating the

detainee's assertion that he traveled from Yemen to Afghanistan to find work and a wife);

Kandari v. United States, 744 F. Supp. 2d 11,27-29 (D.D.C. 2010) (assessing the detainee's

assertion that he traveled to Pakistan and then to Afghanistan to obtain religious training and

perform charitable work); Almerfedi v. Ohama, 725 F. Supp. 2d 18,22-31 (DD.C. 2010)

(evaluating the detainee's claim that he traveled from Yemen to Pakistan in the hopes of

facilitating a missionary trip to Europe, as well as the government's evidence that the petitioner

stayed at al-Qaida affiliated guesthouses).

This case proceeds from a different footing. Here, there is no dispute about the

petitioner's long history as a member of the Taliban. As previously noted, the petitioner

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acknowledges that he began working for the TaJiban in 1994 and that he served as the Taliban's

district administrator in Spin Boldak and spokesperson to media outlets such as the BBC and

Voice of America. GE 91 ~ 15; GE 20 at 1-2; GE 45 at 1; GE 70 at 1-2; GE 71 at 3; GE 110,

48. It is undisputed that the petitioner was appointed Governor of Kabul in 1996 and, shortly

thereafter, became the Taliban's Acting Interior Minister. GE 91 ~ 16; GE 110 ~ 50. It is also

undisputed that in October 1999, the petitioner was appointed Governor of Herat province, a

position that he held through the commencement of Operation Enduring Freedom. GE 91 ~~ 5,

17. In short, the parties agree that the petitioner was not only functionally part of the Taliban,

but that he was, in fact, a fonnally-recognized, high-ranking Taliban official at the time of the

U.S.-led invasion of Afghanistan.

As a result, the question before the court is not whether the petitioner ever knowingly

associated himself with the Taliban, but instead, whether the nature and duration of that

association renders him lawfully detained under the AUMF. The government contends that the

petitioner is lawfully detained because he was deeply involved in the Taliban's military

operations throughout his tenure with the Taliban, had close ties to Mullah Omar and remained

part of the Taliban at the time of his capture in early 2002.14 The petitioner, in turn, asserts that

although he was a senior Taliban official, he had no involvement with the Taliban's military

14
During the merits hearing, the government raised a host of additional allegations against the
petitioner, including allegations that the petitioner had ties to Usama bin Ladin, harbored a1­
Qaida operatives in Herat during his tenure as Governor of Herat and commanded a Taliban
garrison at Mazar-e-Sharif during Operation Enduring Freedom. The court declines to address
these allegations because the evidence analyzed below is sufficient to establish the lawfulness of
the petitioner'S detention. Cj Esmail, 2011 WL 1327701, at *1-3 (affinning the district court's
denial of the GTMO detainee's habeas petition, despite the petitioner's argument that the district
court erred in relying on coerced statements and uncorroborated evidence, because "the record
contains sufficient facts - affected neither by the alleged coercion nor by the lack of
corroboration - to support the district court's conclusion that [the detainee] was 'part of' al
Qaeda at the time of his capture")., , ;,', . r
.?..." .,;:/ ~,,~., ..'~~.,/ ~ \. ',..' f

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operations, had no meaningful relationships with senior Taliban leaders and had disassociated

himself from the Taliban by the time of his capture. The court considers these matters in turn.

2. The Petitioner's Involvement With Talihan Military Operations

Throughout this litigation, the petitioner's chief contention has been that he was merely a

civilian administrator who had no involvement with the Taliban's military operations.

According to the petitioner, the evidence purporting to show that he had obtained military

training and experience and possessed military responsibilities is inherently flawed and

unreJiable. The petitioner also relies on the statements of expert witnesses and former Taliban

officials who claim that the petitioner was merely a civilian bureaucrat with no military

responsibilities. The petitioner asserts that as a purely civilian official, he was not part of

Taliban forces, did not purposefully and materially support the Taliban in hostilities against U.S.

coalition forces, and, as a result, is not lawfully detained.

The government does not dispute that a purely civiHan official who had no connection to

any military activities would not be subject to detention under the AUMF. According to the

government, however, the evidence overwhelmingly indicates that like almost all Taliban

leaders, the petitioner obtained military training and experience fighting with the Afghan

mujahideen in the 1980s, and remained deeply involved in the Taliban's military operations until

the time of his capture in early 2002. The court assesses this evidence in the following sections.

a. The Petitioner's Involvement With the Anti-Soviet Afghan Mujabideen

In December 1979, Soviet forces invaded Afghanistan and attempted to occupy the

country. PE 76 at 237-39. Over the next decade, they fought a protracted guerilla war against a

loosely allied coalition of Afghan mujahideen fighters and foreign fighters who had traveled to

Afghanistan to wage jihad against the Soviets. PE 67 (RASHID, TALIBAN, supra) at 197-98.

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In 1989, Soviet forces withdrew from Afghanistan. Id at 198-99. Without Soviet

military assistance, the pro-Soviet Afghan government collapsed. PE 70 (NEAMATOLLAH·

NOJUMI, THE RISE OF THE TALIBAN IN AFGHANISTAN (2002» at 141. During the ensuing struggle

for power, Afghanistan descended into civil war. PE 76 at 199-200; PE 110 '1f'1f 8-10.

It was during this period of civil strife that the Taliban emerged, originating from

madrassas in Afghanistan and Pakistan. See GE 88 (KAMAL MATINUDDIN, THE TALIBAN

PHENOMENON (1999» at 21 ("The most widely circulated theory is that the leadership of the

Taliban emerged from amongst the disgruntled Afghan refugees studying in the deeni madaris

[religious schools] around Quetta and Peshawar."). As Karzai explains in his declaration,

Mghan refugees based in Baluchistan and North West Frontier Province (NWFP)
had been encouraged to join the growing number of radical madrassas during the
resistance against the former Soviet Union. By 1994, there were thousands of
Taliban students who had received basic military training. The movement was
led by a veteran of the Afghan Jihad, Mullah Mohammad Omar.

PElIO'1f9.

According to Ahmed Rashid,IS whose book Taliban is acknowledged by both parties to

be an authoritative account of the history ofthe Taliban, nearly aU of the Talihan's senior Jeaders

were veterans ofthe anti-Soviet mujahideen who had been educated at madrassas in Afghanistan

and Pakistan. See GE 48 at 252-55. For instance, Mullah Omar, a founder of the Taliban and its

supreme leader, had fought against the Soviets as part of the mujahideen faction led by Yunas

Khalis and had attended various madrassas in Kandahar province. Id. at 253. Mullah

Mohammed Hassan, the Taliban's Foreign Minister, had attended a madras sa in Quetta, Pakistan

and also fought under Yunas Khalis in the Afghan mujahideen. Jd Mullah Arnir Khan Muttaqi,

IS
Ahmed Rashid is ajoumalist who has reported on Afghanistan for more than twenty years, first
as a correspondent for the Far Eastern Economic Review and, more recently, for the BBC Online,
the Washington Post and the International Herald Tribune. GE 48 at 1.
( "', i ". p'".. " ... 1" . . .',' ,"
• '. 1 I,:!

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the Taliban's Culture and Information Minister, and Mullah Maulvi Qalamuddin, Head of the

Taliban's Religious Police, were both former Afghan mujahideen commanders, members ofthe

Harakat Mujahideen party led by Mohammed Nabi Mohammedi and educated at the Dar-ul

Uioom Haqqania madrassa near Islamabad, Pakistan. 16 GE 48 at 253-54. Mullah Mohammed

Abbas, the Taliban Health Minister, and Mullah lalaluddin Haqqani, Minister of Frontier Affairs,

were also educated at the Dar-ul Uloom Haqqania madrassa and had fought against the Soviets

with the Afghan mujahideen under Yunis Khalis. Id

As reported by Rashid, the petitioner, who became the Taliban's Acting Interior Minister

and a member of its Supreme Shura, fit this mold precisely. More specifically, Rashid reports

that the petitioner was a graduate of the Dar-ul Uioom Haqqania madrassa, a member of

Mohammed Nabi Mohammedi's Harakat Mujahideen party and a former mujahideen

commander during the Soviet occupation. Id at 252.

The petitioner's expert witnesses have acknowledged the reliability ofRashid's reporting

on the Taliban. WiHiams states in his declaration that Rashid's Taliban is the most significant

work on the history ofthe Taliban and a "must read for anyone trying to understand the events in

this case." PE lIlA, 5. Karzai similarly testified that Rashid possesses an understanding of

Afghanistan that is superior to that of most other purported experts and noted that Rashid's

account of the history of the Taliban was more reliable than other works because it resulted from

Rashid's field work in Afghanistan. Mar. 31 Tr. at 129. The fact that the petitioner's own expert

16
Oar-ul Uloom HaQqania has been referred to in media reports as the "university ofjihad," GE 68
(Noreen S. Ahmed-Ullah and Kim Barker, Schooled in Jihad, CHICAGO TRrBUNE, Nov. 28,
2004) at 3, and as "the breeding ground ofTaliban fundamentalism," GE 21 (Rory McCarthy,
Dilemma - Pakistan's Clerics Plot Downfall 0/Military Regime: Support/or US Could Spark
Hardline Uprising, THE GUARDIAN, Sept. 18, 2001) at 2. The leader of the madrassa, Samin!
Haq, has praised Usama bin Ladin as a "brave and courageous man." GE 68 at 1. According to
Rashid, Haq's madrassa "became a major training ground for the Taliban leadership." GE 48 at
90.

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witnesses have acknowledged the authoritativeness of Rashid's reporting supports the reliability

of his report that the petitioner fought against the Soviets with the Afghan mujahideen.

The court also notes that Rashid's reporting on the backgrounds of other senior Taliban

leaders is independently corroborated by other information in the record. For instance, Rashid's

report that Mullah Omar received a madrassa education in Kandahar and fought with the Afghan

mujahideen faction led by Yunas Khalis, GE 48 at 252, is corroborated by Karzai, who has also

written articles about Mullah Omar, Mar. 31 Ir. at 79, and stated in his declaration that Mullah

Omar was "educated in various madrassas in Kandahar," PE Ito, 40, and had "participated in
the Jihad against the Soviet and Afghanistan communist government under the faction led by

Yunas Khalis," id '42. Similarly, Rashid's report that Mullah Qalamuddin, the Taliban's Head

of Religious Police, was educated at the Dar-w Uloom Haqqania madrassa is corroborated by a

September 2001 article about the Dar-ul Uloom Haqqania madrassa in the The Guardian

newspaper. GE 21 at 2 (reporting on an interview with Samiul Haq and listing the IaIiban's

"first head of the religious police Qalam Uddin" as a graduate of Haq's Oar-ul Uloom madrassa).

Iellingly, the petitioner has identified no other instance in which Rashid has provided incorrect

information about the background of any other senior Taliban leader. I 7

Indeed, much of Rashid' s account of the petitioner's background is independently

corroborated by other evidence in the record. For instance, Rashid reports that the petitioner was

born in Kandahar province, is a Ourrani Pashtun and is a member of the Popalzai tribe, GE 48 at

253, all of which are facts to which the parties have stipulated. GE 91 , 11. Moreover, Karzai,

who conducted an independent inquiry into the petitioner, see supra Part IILD.2, acknowledged

The petitioner notes that one media report states that Mullah Omar attended the Dar-ul Uloom
madrassa, GE 68 at 2, which differs from Rashid's account, see GE 48 at 91. This inconsistency
does not call into question the reliability of Rashid's reporting, as the petitioner's own expert has
corroborated Rashid's account of Mullah Omar's education at madrassas in Kandahar. PE 110,
40.

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during his testimony that the petitioner had attended the Dar-ul Uloom Haqqania madrassa and

was, at least for a time, a member of the Harakat Mujahideen party of Mohammad Nabi

Mohammadi, Mar. 31 Tr. at 139, 142, facts also reported by Rashid, GE 48 at 253. Likewise, the

September 2001 article in The Guardian discussing Samiul Haq identifies the petitioner as one of

the most prominent alumni ofthe Dar-ul Uloom Haqqania madras sa. GE 21 at 2.

Moreover, although the petitioner has given contradictory accounts of his actions during

the Soviet occupation, he has admitted on multiple occasions that while living in Pakistan, he

traveled to Afghanistan to obtain military training and fight with the Afghan mujahideen against

the Soviets. IS GE 43 at 1; GE 45 at 1; GE 71 at 6-7. During a_interrogation, the

petitioner stated that "[tJhe only military training he has [received) consisted of a short period of

time at Camp Marof, near Kandahar, when [he] was in his teens. This camp, who[se]

Commandant was Abdul Raziq, was a Mujahadeen training facility where people were sent

during the AF/Soviet war." GE 45 at 1. Later, during interrogation, the

petitioner acknowledged that "he traveled twice to [Afghanistan] to join the jihad against the

. communists" and attended "a mujahideen training camp in Marof' operated by Abdul Raziq,

though the petitioner denied receiving any training during his time at the camp. GE 43 at 1.

Finally, during his June 2006 ARB proceedings, the petitioner testified that he had participated in

jihad "for a few days" as a youth during the Soviet occupation but that he had received no

military training. GE 71 at 6-7. The fact that the petitioner has admitted that he traveled to

Afghanistan to train and fight with the mujahideen and that he participated in jihad "for a few

days" provides additional corroboration for Rashid's account of the petitioner's background.

IS The petitioner stated during a_interrogation that he twice traveled to Afghanistan to
fight jihad, but that he did not train or fight either time. GE 43 at 1. The petitioner provided a
different account during a_interrogation, in which he stated that he returned to
Afghanistan from Pakistan only after the withdrawal of Soviet forces in 1989. GE 20 at 1.

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The petitioner has offered nothing that persuasively refutes or undercuts the evidence

establishing the petitioner's participation in the Afghan mujahideen. Although the petitioner

suggests that he was in his teens for most ofthe Soviet occupation and lacked any forma]

military training, he has not explained how either fact precludes the possibility that he fought

with the Afghan mujahideen or rose through its ranks. Likewise, although the petitioner objects

by stating that Rashid has not identified the sources of his information regarding the petitioner's

background, the petitioner's own experts have acknowledged that Rashid's reporting is based on

his field work in Afghanistan and is highly authoritative. Mar. 31. Tr. at 129; PE lllA ,., 5.

Finally, although Karzai testified that the petitioner had "absolutely no military background,"

Mar. 31 Tr. at 119, the petitioner has admitted that he traveled to Afghanistan during the Soviet

occupation to receive training and has acknowledged that he engaged in jihad for a period of

. time,19 GE 71 at 6-7. Accordingly, the weight of the evidence indicates that the petitioner did

fight with the Afghan mujahideen against the Soviets.

That the petitioner fought with the Afghan mujahideen, at a time when those forces were

aJlied with the United States and against the Soviet Union, see PE 67 at 197, hardly establishes

the lawfulness ofhis detention. This finding does, however, serve as an important starting point

for assessing the petitioner's role in the Taliban, for it establishes that the petitioner possessed at

least some military experience by the time he joined the Taliban in 1994, and begins to unravel

the petitioner's assertion that he was merely a civilian bureaucrat with no connection to the

Taliban's military forces.

19
Karzai's testimony about the petitioner is assessed in greater detail later in the following section.
See infra Part IV.B.2.b.ii.

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h. The Petitioner's Command of Taliban Forces at Mazar-e-Sharif

i. The Taliban's Efforts to Capture Mazar-e-Shariff

As previously noted, by 1992, Afghanistan had descended into civil war, as different

factions vied for control over the country following the retreat of Soviet forces. By November

1994, Taliban forces had captured Kandahar and by February 1995, had consolidated their

control over the Pashtun lands of southern Afghanistan. PE 110, 11. They then moved west,

conquering Afghanistan's western provinces, including Herat. Id. In August 1996, the Taliban

pushed into lalalabad and in September, captured KabuL Id , 12. By the winter of 1996, the

Taliban controlled twenty-two of Afghanistan's thirty-four provinces. PE 67 at 54. The only

major city not under Taliban control was Mazar-e-Sharif, a city near the northern border with

Uzbekistan and the stronghold of anti-Taliban General Rashid Dostum, whose Uzbek forces had

insulated the city from the fighting sweeping through the rest of Afghanistan. Id. at 54.

In the spring of 1997, the Taliban turned their attention northward. PE 110,14. The

Taliban quickly swept north from Herat and Kabul, seizing control over several northern

provinces. PE 67 at 58. General Dosturn fled to Uzbekistan. Id. In May 1997,2,500 heavily-

armed Taliban troops under the command of Mullah Abdul Razaq rolled into Mazar-e-Sharif

with little resistance,zo Id. Their occupation of the city was short-lived, however, as a

counteroffensive by Uzbek and Hazara fighters pushed the Taliban out of the city days later. Id.

After regrouping, the Taliban launched a second assault on Mazar-e~Sharif in early

September 1997. GE 91,3. General Dosturn returned from exile and pushed the Taliban out of

the Mazar region. PE 67 at 62. Because Mazar-e-Sharif had, by that time, been largely taken

20
As discussed below, Mullah Razaq preceded the petitioner as the Governor of Herat. See infra
Part rv.B.2.d.

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Tahair, who had previously worked with the Iranians, Abdul Manan Niazi, the Governor of

Kabul who had overseen the massacre at Mazar-e-Sharif in August 1998, and the petitioner. GE

56 at 1; GE 57 at 1; GE 60 at 1. The Iranian delegation included the Deputy Commander of the

Iranian Foreign Intelligence Service and the Head of the Afghan Department of the Iranian

Foreign Intelligence Service. GE 56 at 1; GE 57 at I; GE 60 at 1.

The petitioner has provided highly detailed and consistent accounts of what took place

during that October 2001 meeting. For instance, during a March 2002 interrogation, the

petitioner stated that at the October 2001 meeting,

the Iranian delegation offered to purchase for the Taliban hand~held Russian
manufactured, anti-aircraft missiles, which are superior to Stinger missiles. The
Iranians claimed these missiles could fire to a higher elevation than a Stinger
missile The Iranians referred to the missiJe as a SAM haft (Field Comment - the
word haft means the number seven in the Persian-Afghan language). The
Iranians refused to give more information on the missiles until the Taliban
delegation proved they had money to buy the missiles. The Iranians als~ said
they would buy other military equipment for the Taliban, but would not identifY
the type of equipment until the Taliban delegation proved they had enough
money .... The Iranians also offered to open the [IranJ/[Afghanistan] border for
Arabs traveling to and from [AfghanistanJ. The Iranians would let any Arab past
their border checkpoints entering [Afghanistan].

GE 56 at 2.

The petitioner provided a highly consistent account during a May 2002 interrogation,

stating that "Iranian officials offered to broker a peace between the Taliban and the Northern

Alliance so Muslims could unite against the United States. The Iranian officials said that Iran

could track all movements by the United States." GE 57 at 1. According to the petitioner,

"Iranian officials also offered to sell the Taliban SAM-7 missiles and other [unidentified]

weapons if the Taliban could prove that they had the money to buy them. The Iranians also

offered to open their border to Arabs entering Afghanistan. The Afghanistan officials were

directed to take the offers to Mullah ((Omar» and send back a response." Id. at 2.

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Likewise, during an interrogation the petitioner stated that during

the October 2001 meeting,

[tJhe Iranians offered the following to the Taliban:
• Soviet-made SA-7 shoulder-fired anti-aircraft missiles (which were billed as
being better than U.S. Stinger missiles)[;]
• other unspecified military equipment (which Khairkhwa assumed was also
Russian-made)[; and]
• an offer to allow an open border between [Imn] and [Afghanistan] to allow
Arabs from Gulf States unfettered access to [Afghanistan] in order to help the
Taliban against U.S. and Allied forces.

GE 60 at 3. The petitioner also noted that the Iranians indicated their ability to monitor the

activities ofthe U.S. military. ld According to the petitioner, "[tJhe Iranians had told [him] that

'We are following them (the U.S.) everywhere. Khairkhwa was unsure if they meant that they

had satellite capability, but thought the Iranians were speaking figuratively rather than literally

regarding intelligence collection." Id

The petitioner also acknowledged during his CSRT hearing that he was present at the

October 2001 meeting during which Iran pledged to assist the Taliban in their war with the

United States, GE 70 at 2, and testified during his ARB hearing that at the October 2001

meeting, "[t]hc Iranians offered to buy weapons for us because we were on restriction and could

not buy them. That is the truth." GE 71 at 8.

These statements, given at different times during the petitioner's detention, are highly

consistent with one another, and there is no evidence that these statements are unreliable because

they were elicited through undue coercion or duress. Accordingly, the court considers these

statements reliable evidence that the petitioner was part of the Taliban delegation that met with

Iranian officials to discuss Iran's offer to provide the Taliban with military aid on the eve of the

U.S.-led invasion of Afghanistan.

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The petitioner has contended that it is implausible that the Iranians would have offered to

provide military assistance to the Taliban because Iran considered the Taliban an arch-enemy

and allied itself with the United States and the Northern Alliance during Operation Enduring

Freedom. See, e.g., Mar. 31 Tr. at 100-01;PE 110~~25-30; PE lllA ~~ 10-16; PE 75 at 246­

54; PE 78 at 2-3. The court finds these arguments unpersuasive. As an initial matter, the

petitioner's theory - that Iran could not have offered any military assistance to the Taliban

because Iran and the Taliban were enemies - does not adequately account for the complexity of

international relationships in that region. As noted in an article cited by the petitioner, "Iran has

played all sides of the Afghan conflict," having provided military support to different, competing

groups vying for control of Afghanistan before and after the fall ofthe Taliban. PE 75 at 2-3.

Indeed, even as the United States and Iran ostensibly allied themselves during Operation

Enduring Freedom, "Iran also sent large stocks of weapons to Herat and [Afghan warlord Ismail]

Khan, which culminated in the United States firing a cruise missile at Khan's Headquarters,

killing eighteen of his men in January 2002." Id. at 3.

As noted in another article cited by the petitioner, former CIA Director George Tenet

declared in early 2002 that Iran's initial signs of cooperation had "eclipsed" and that "while

Iran's officials express a shared interest in a stable government in Afghanistan, its security forces

appear bent on countering the US presence. This seeming contradiction in behavior reflects

deep-seated suspicions among Tehran's clerics that the US is committed to encircling and

overthrowing them." PE 76 at 248. Yet another article cited by the petitioner states that "[i]n

early 2007, Washington reported that Iran had started to supply sophisticated arms to the Taliban

in western Afghanistan," even as it "increased political and military support to the former

Northern Alliance." PE 78 at 3. Although Karzai stated in his declaration that evidence of

r ' .'

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Iranian support for the Taliban reflects a recent shift in Iranian policy towards the Taliban, PE

110129, these reports indicate Iran did not possess a unitary attitude towards the U.S.-led

invasion of Afghanistan at the time of Operation Enduring Freedom and underscores the

difficulty of presuming that Iran would not have offered military support to the Taliban simply

because of their history of animosity.

Moreover, the petitioner himself is the source of the information regarding the October

2001 meeting between the Taliban delegation and senior Iranian officials. As previously noted,

the petitioner has provided multiple, consistent accounts of Iran's offer to provide the Taliban

with military assistance. The petitioner has offered no explanation for why he would have

fabricated this information during his interrogations. Indeed, in his proposed [mdings of fact, the

petitioner acknowledges that he attended the October 2001 meeting with the Iranian delegation,

though he does not expressly concede that the purpose of the meeting was Iran's offer to provide

military support to the Taliban. See Petr's Proposed Findings of Fact, 292.

The petitioner also contends his mere attendance at the October 2001 meeting does not

support his detention because he was simply there to provide security for the Taliban delegation.

GE 71 at 2, 7. The court disagrees. First, even if the petitioner's role was limited to providing

security for the Taliban delegation, that fact would itself significantly undercut the petitioner's

contention that he was simply a civilian bureaucrat and would demonstrate that he possessed

command authority over Taliban forces on the eve of the U.S.-led invasion and was entrusted

with providing security services in support of a military-related mission. At any rate, the fact

that the petitioner was included in the substantive discussions, see, e.g., GE 70 at 2-3, coupled

with his demonstrated knowledge about missile systems, his military oversight responsibilities as

the Governor of Herat and his close ties to Mullah Omar, see infra Part IV.B.3, suggest that the

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petitioner attended the October 2001 meeting not simply as the Taliban's chief security officer,

but as a Taliban representative.

Finally, the petitioner contends that his attendance at the October 2001 meeting does not

support the lawfulness of his detention because there is no evidence that the Iranian offer was

ever accepted. The court notes at the outset that the petitioner has provided differing accounts of

the Taliban's response to the Iranian offer. See GE 60 at 3 ("Ultimately, the offer was

rejected."); GE 71 at 8 ("When the delegation went back to Kandahar the bombing started, so the

proposition fell apart. "); GE 57 at 2 ("[The petitioner] fled the area shortly after the meeting and

does not know if the offer was ever given to Omar."). At any rate, the significance of this

evidence does not turn on whether the Taliban accepted the Iranian offer, but rather, lies in the

fact that Taliban leaders in Kandahar designated the petitioner to represent the Taliban in high-

level discussions with senior Iranian officials regarding Iran's offer to provide military assistance

to the Taliban in preparation for the imminent U.S.-led invasion. The petitioner's selection to

attend the meeting demonstrates that he was entrusted with significant military-related

responsibilities at the time of the outbreak of hostilities with the United States and strongly

indicates that he was part of Taliban forces at that time.32

The petitioner's role in the October 2001 meeting is consistent with evidence that after

the commencement of Operation Enduring Freedom, the petitioner continued to operate within

the Taliban's formal command structure and provide support for Taliban military forces.

32
The government has argued that the petitioner attended a second meeting with Iranian officials in
November 200 I regarding Iran's offer to provide military assistance to the Taliban. See GE 45 at
3; GE 61 at 1-2. It appears, however, that the November 2001 meeting referred to in these
exhibits and the October 200 I meeting discussed above are one and the same. See GE 45 at 3;
GE 61 at 1-2.

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with the prior reports regarding the petitioner's role in providing financial support for Taliban

troops and security forces, see GE 46 at 2 as well as the petitioner's prior

acknowledgment that Herat contained the Taliban's two largest military divisions and multiple

military insta1lations, 43 at 2; GE 46 at I. Accordingly, the court concludes

that this intelligence report is sufficiently reliable for the court's consideration and further

demonstrates that the petitioner continued to operate within the Taliban's formal command

structure and provide support to Taliban troops after the outset of hostilities with U.S. coalition

forces.

The petitioner's involvement with the Taliban's military apparatus continued even as

U.S. coalition forces pushed the Taliban out ofnorthern Afghanistan. Although the petitioner

has provided contradictory accounts of his retreat from Herat, the petitioner has stated that in

early November 2001, as the bombs began to fall in Herat province, he traveled in a convoy of

ten vehicles to Arghastan, a village in the eastern part of Kandahar province. GE 18 (ISN 579

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MFR (May 7, 2002» at 1. According to the petitioner, the vehicles in his convoy "were full of

weapons." Id The petitioner stated that he "turned the weapons over to a sherif in Arghastan

and then called Hamid «Karzai» to discuss turning himselfin." Id

Although the petitioner would later deny that the vehicles in the convoy contained

weapons, see GE 71 at 6, the court sees no reason to doubt the admission made during the May

2002 interrogation. There is no evidence that this statement was elicited through undue coercion

or duress, and the statement was made shortly after the events at issue. See GE 18 at 1.

Accordingly, the court credits the petitioner's initial admission that he fled to Kandahar in a

convoy comprised of ten vehicles that were full of weapons.

The fact that the petitioner had access to a large volume of weapons demonstrates that he

continued to wield military-type authority even after the U.S.-led invasion of Afghanistan.

Furthermore, although the petitioner contends that he turned the weapons over to an official in

Arghastan affiliated with the post-Taliban government, this claim is not plausible, as the Taliban

did not lose control of Kandahar until December 7,2001, weeks after the petitioner fled Herat for

Arghastan. GE 91 ~ 9. AccordinglY, if, as the petitioner has stated, he surrendered the weapons

in his convoy to a local "sherif' in Arghastan, it would have been to a local Taliban official.

Accordingly, reliable evidence demonstrates that the petitioner was appointed to

represent the Taliban in discussions with high-level Iranian officials regarding Iran's offer to

provide the Taliban military assistance for use against U.S. coalition forces. Reliable evidence

also indicates that after the U.s.-led invasion, the petitioner continued to provide material

support to TaHban forces stationed in Herat and facilitated their movement to other areas in

Afghanistan, implementing orders issued by Taliban leadership in Kandahar. Finally, the

petitioner has admitted that in early November 2001, he retreated from Herat to the Taliban­

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stronghold of Kandahar in a convoy of vehicles full of weapons, and that he delivered those

weapons to officials in Kandahar.

These findings are consistent with the evidence establishing the petitioner's long history

of involvement with the Taliban's military affairs. Like most senior Taliban leaders, the

petitioner obtained military experience fighting with the Afghan mujahideen during the Soviet

occupation. After joining the Taliban in 1994, the petitioner was entrusted with military

responsibilities, sitting on the Taliban's Supreme Shura, which had oversight over military

affairs and serving as a commander of Taliban fighters during the Taliban's northern offensives

in 1997 and 1998. The petitioner remained intimately involved in the Taliban's military affairs

even after being appointed Governor of Herat, as demonstrated by his detailed knowledge about

military installations and weapons systems, his facilitation of funding for Taliban military and

intelligence forces as well as his role as a Taliban representative during discussions with Iranian

officials in January 2000 regarding military and security-related matters.

Together, this evidence establishes that the petitioner was part of the Taliban forces

engaged in hostilities with U.S.-led coalition forces in late 2001. Accordingly, so long as the

evidence indicates that the petitioner remained a part ofthose forces and had not disassociated

himself from the Taliban by the time of his capture in early 2002, the petitioner's detention is

lawful under the AUMF. Before turning to the issue of disassociation, however, the court briefly

addresses the evidence concerning the petitioner's ties to Mullah Omar, which the government

contends provides additional support for the lawfulness of his detention.

3. The Petitioner Had Close Ties to Mullah Omar

Since his apprehension in early 2002, the petitioner has sought to portray himself as a

reluctant Taliban leader. The petitioner has stated that he "was compeUed to work for the

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Taliban because they were in power at the time and, if one didn't, the TaIiban could 'create

problems' for someone." GE 4S at 1. The petitioner has suggested that he joined the Taliban as

a matter of happenstance, stating that while trying to secure ajob in Spin Boldak in 1994, "one

day, an unknown Taliban member asked him to speak with a London, England BBC reporter on

the phone regarding Taliban military positions. The Taliban were so impressed with his

speaking abilities they offered him the position of 'wayand,' or spokesman for the Taliban." GE

20 at 1. He has characterized his appointment as Governor of Herat as a move that came out of

the blue. Id. at 2 ("Taliban official recommended he be appointed Governor of Herat,

[Afghanistan], for unknown reasons."). In fact, during various interrogations, the petitioner

denied holding leadership positions that he now concedes that he possessed. Compare OE 71 at

3 ("I was not the Taliban spokesman.") and GE 43 at 1 (the petitioner's statement that "he was

often mistaken as the Minister of the Interior for the Taliban because he lived at the Ministry and

spoke to the press often") with Petr's Proposed Findings of Fact 1f 6 ("After his return to

Afghanistan in 1994, petitioner was appointed spokesperson for the Taliban government for the

Pashto language because of his proven abilities in providing information to the media."); GE 91

~. 17 (stipulating that the petitioner became the Taliban's Acting Interior Minister in 1996 or

1997).

Despite these efforts to portray himself as a reluctant, marginal Taliban figure, the

evidence indicates that the petitioner was, in reality, a prominent and influential leader within the

Taliban. For instance, as previously discussed, the petitioner quickly rose to the Taliban's

highest ranks, becoming a member of the Supreme Shura, "the most powerful ruling body" in the

Taliban government, OE 48 at 250, which reported directly to Taliban leader Mullah Omar, PE

1101f 19.

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The evidence also indicates that after the petitioner began to serve on the Supreme Shura,

statements of this mullah are corroborated by veteran Afghan mujahideen commander Akhtiar,

who identified the petitioner as "a sub-commander/trusted person of Mullah Omar." GE 22 at 1.

These statements are further corroborated by a November 1999 article published in the

Pakistani newspaper, The News, reporting on Mullah Omar's decision to reshuffle the Taliban

leadership. GE 40 (Editorial: Taleban ReshzifJle, THE NEWS, Nov. 1, 1999) at 1. This reshuffle

resulted in the petitioner's appointment as Governor ofHe rat. Id The article stated that

"[l]oyalists like Mulla Khairullah Khairkhwa, Mulla Abdur Razzaq ... and Mulla Said

Mohammad Haqqani were aU rewarded with the choicest jobs." Id.

The petitioner's status as one of Mullah Omar's trusted associates is also born out by the

fact that Mullah Omar repeatedly appointed the petitioner to serve in prominent and sensitive

posts. In July 1998, Mullah Omar appointed the petitioner to oversee the areas captured during

the Taliban's northern offensive. GE 3 at 2. In August 1998, when Iran threatened war with

Afghanistan after the Taliban murdered eight Iranian diplomats and an Iranian journalist, Mullah

Omar publicly announced that the petitioner would lead a commission to investigate the

murders. 33 GE 13 (Bodies ofRemaining 2 Iranians Found in Afghanistan, THE NEWS, Oct. 7,

1998) at 1; GE 46 at 2. And one year after Iran had threatened war with Afghanistan, Mullah

33
The petitioner stated that despjtethe.eubJ~c an!loJ109~1pent. he never actually conducted the
investigation. GE 46 at 2. t, t ' .:.:' 1

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Omar appointed the petitioner Governor of Herat, GE 43 at 2, one of Afghanistan's largest

provinces, which shares an extensive border with Iran, see GE 92.

PE 35 (ISN 579 CITF Report (Dec. 2, 2002» at 1. According to the petitioner,

Mullah Omar's decision to appoint him Governor of Herat was effectively a demotion and

signaled the fact that the petitioner no longer held Mullah Omar's trust. Mar. 31 Tr. at 113.

The weight of the evidence does not support the petitioner's contention. Herat was a

strategically important province at the time ofthe petitioner's appointment as governor; it

bordered Iran, which had recently threatened war with the Taliban and possessed historically

close ties with the population of Herat. PE 75 at 3; PE 76 at 244-45. Herat also contained

numerous Taliban military installations, including its two largest divisions, as well as the

headquarters of Taliban intelligence. GE 46 at I. Indeed, as previously noted, one

contemporaneous media report characterized the petitioner's new position one of the "choicest

jobs" in the Taliban government, awarded to the petitioner because he was a Mullah Omar

loyalist. GE 40 at 1.

Moreover, reliable evidence indicates that the petitioner remained within Mullah Omar's

inner circle after his appointment as Governor of Herat, as U.S. coalition forces began their

assault on Taliban forces. Specifically, the court credits an October 13,2001 intelligence report

citing information provided by a SeeGE

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27 (IIR 6 931 0020 02) at 1.

that after a U.S. cruise missile had hit Mullah Omar's vehicle one

week earlier during air strikes in Kandahar,

specifically notes that this officer The reliability of the

report is also buttressed by the level of detail contained in the officer's account, including

specific infonnation regarding the locations ofTatiban commanders that has been independently

corroborated. See id at 2 (reporting that Mullah Rocketi, the "corps commander of Jalalabad[,]

moves between that city and north Kabul"); PE 70 at 139 (listing Rocketi as the "fonner corps

commander of Jalalabad"). Lastly, the report of a missile strike occurring the week before

October 13,2001 is consistent with the timeline of Operation Enduring Freedom, which

"commenced on 7 October 2001 with coalition air strikes on al-Qaida and Taliban targets

throughout Afghanistan." GE 77 at 2. In light ofthese indices of reliability, the court credits the

report's account that after a U.S. coalition airstrike in early October 2001, Mullah Omar limited

his circle of contacts to a handful of his most trusted and important "commanders," including the

petitioner.

In sum, the court finds implausible the petitioner's contention that he was a reluctant

Taliban member. Rather, the weight of the evidence indicates that the petitioner had close ties

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with Mullah Dmar and that he remained one of Mullah Omar's most trusted associates before

and after the U.S.-led invasion of Afghanistan in October 2001. This finding is consistent with

the court's earlier conclusions that the petitioner was a key Taliban leader entrusted with military

responsibilities, which he carried out both before and after the commencement of Operation

Enduring Freedom. See supra Part IV.B.2. Moreover, the fact that the petitioner was one of

Mullah Omar's trusted associates undermines the petitioner's contention that he was a simple

civilian bureaucrat shielded from the Taliban's military activities, and provides a useful starting

point for assessing the petitioner's contention that he had disassociated himself from the Taliban

by the time of his capture in early 2002.

4. Tbe Petitioner Remained Part oftbe Taliban at the Time of His Apprehension

As previously discussed, it is not enough for the government to show simply that the

petitioner was, at one time, a member of the Taliban, al-Qaida or associated forces; to be

lawfully detained, the petitioner must have been "part of' those forces at the time of his capture.

See Salah;, 625 F.3d at 751; Gherebi, 609 F. Supp. 2d at 71. «A petitioner who may once have

been part of al-Qaida or the Taliban can show that he was no longer part of such an entity at the

time of capture by showing that he took affirmative actions to abandon his membership." Khalif

v. Obama, 2010 WL 2382925, at *2 (D.D.C. May 28, 2010) (citing Al Ginco v. Obama, 626 F.

Supp.2d 123, 128-30 (D.D.C. 2009)).

The evidence indicates that after tbe commencement of Operation Enduring Freedom, the

petitioner began hedging his bets. The petitioner has stated that he met with a group of high-

level Taliban officials one month before the surrender of Kandahar to discuss the peaceful

surrender of the city. PE 34 at 1. According to the petitioner, the meeting was held without

Mullah Omar's consent and the officials present were those "who favored a bloodless, peaceful
t '. ;~ , , :(
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end to the fighting in Afghanistan." ld The petitioner has also stated that in early November

200 I, he contacted Hamid Karzai, who was a member of the petitioner's Popalzai tribe and

whom the petitioner had known for many years, to "solicit his advice" about surrendering to u.s.

coalition forces. GE 45 at 3; see also GE 18 at I (interrogation report in which the petitioner

stated that he contacted Hamid Karzai to discuss surrendering after the United States began

bombing Afghanistan); GE 70 at 4 (petitioner's CSRT testimony in which he states that he

contacted Hamid Karzai "when Herat was taken over"); GE 91 ~ 7 (stipUlating that the Taliban

lost control of Herat on or about November 13, 2001). According to the petitioner, this evidence

demonstrates that he had disassociated himself from the Taliban before he was captured by

Pakistani authorities in late-January or early-February 2002. See GE 91 ~ 18.

The court disagrees. Even if the petitioner did participate in a secret meeting with high-

level Taliban leaders regarding the surrender of Kandahar, there is no evidence that any

participant at that meeting surrendered to U.S. coalition forces, publicly or privately broke with

Mullah Omar or took any action signaling an intent to end hostilities with U.S. coalition forces.

Indeed, in the month before the surrender of Kandahar, there was fierce fighting between U.S.

coalition and Taliban forces for control ofthe city until it fell on December 7, 2001. GE 77 at 4.

Likewise, even if the petitioner contacted Hamid Karzai in mid-November 2001 to

discuss the possibility of surrender, the petitioner did not tum himself in, but was instead

captured in Chaman, Pakistan approximately three months later. GE 91 ~ 18. The petitioner has

provided no credible explanation for what he was doing or what steps he had taken to

disassociate himself from the Taliban during the months after he allegedly contacted Hamid

Karzai to discuss the possibility of surrender.

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The petitioner has stated that by the time of his capture, he had resolved to cooperate with

U.S. coalition forces and that he traveled to Chama.n, Pakistan to obtain treatment for a stomach

ailment before turning himself in. GE 45 at 3; GE 70 at 4; GE 71 at 9. The petitioner, however,

was not captured at a medical office in Chaman. Rather, it is undisputed that the petitioner was

captured at the Pakistani residence of senior Taliban official Abdul Manan Niazi. GE 91 , 18.

As previously discussed, Niazi was a fonner Taliban military commander and Governor of

Kabul, who had personally overseen the massacre of thousands of Shiites in the city of Mazar-e-

Sharifin August 1998 and was part of the Taliban delegation that traveled to Iran in October

200 I to discuss Iran's offer to provide military assistance to the Taliban. See supra Part

IV.B.2.a. The fact that the petitioner was captured at the home of a hardlinc TaUban military

commander greatly undennines the petitioner's contention that he had disassociated himself

from the Taliban prior to his apprehension by Pakistani authorities. See Al-Bihani v. Ohama,

2010 U.S. Dist. LEXIS 107590, at *33-34 (D.D.C. Sept. 22, 2010) (noting that the fact that the

petitioner continued to associate with al-Qaida or Taliban operatives undermined the petitioner's

argument that he had cut his ties with al-Qaida prior to his apprehension); cf Uthman v. Obama,

2011 WL 1120282, at *4 (D.C. Cir. Mar. 29,2011) (observing that evidence that the petitioner

was captured in the company of Taliban and al~Qaida fighters in the vicinity of Tora Bora

supported the conclusion that he was lawfully detained).

The petitioner's claim that he had resolved to cooperate with U.S. coalition forces prior to

his capture is also undermined by the evasiveness he exhibited during his discussions with U.S.

interrogators. According to the government, the earliest known interrogation of the petitioner

occurred approximately 3:00 p.m. See Govt's Proposed Findings of Fact

& Conclusions of Law at 82. The interrogator who conducted this inquiry reported that the

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petitioner "attempted to evade questions" and noted that "caution should be used when dealing

with the detainee as he attempts to draw in the interrogator and 'tap dance' around questions."

GE 64 (ISN 579 Handnote (Feb. 7,2002) at 1.

The petitioner's refusal to provide full cooperation has been noted by other interrogators,

who, as previously noted, have described the petitioner as cunning and evasive. See

PE 34 at 1. The resistance exhibited by the petitioner during these interrogations is not, in the

court's view, consistent with the petitioner's claim that he had decided to turn himself in and

cooperate with U.S. coalition forces before he was apprehended in Pakistan.

In short, the court does not credit the petitioner's contention that he had disassociated

himself from the Taliban prior to his capture in Chaman, Pakistan. Rather, the weight of the

evidence, especially the fact that he was captured at the home of a senior Taliban official,

indicates that the petitioner remained part ofTaliban forces at the time of his capture.

C. Viewing the Totality of the Evidence

There is no dispute about the basic contours of the petitioner's life. The parties agree that

the petitioner joined the TaHban in 1994 and became a spokesman and district administrator in

Spin Boldak. He rose through the Taliban ranks and served as a member of the Taliban Supreme

Shura, the Taliban's Acting Interior Minister and the Governor of Herat. The petitioner retreated

from Herat during Operation Enduring Freedom and that he was ultimately captured by Pakistani

authorities in Chaman, Pakistan in early 2002.

The parties have, however, offered two starkly different narratives regarding the

petitioner's tenure with the Taliban. The petitioner contends that he was simply a civilian

bureaucrat who had no involvement with the Taliban's military forces, lost Mullah Omar's trust

over time and eventually broke with him and the Taliban during Operation Enduring Freedom.

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According to the government, the petitioner was an experienced military leader who wielded

military authority before and after the commencement of Operation Enduring Freedom, was a

member of Mullah Omar's inner circle and remained part of the Taliban even after the time of

his capture in early 2002.

Viewed in its totality, the evidence provides more support for the government's narrative.

The court concludes that the petitioner, like most other senior Taliban leaders, fought with the

Afghan mujahideen in the 19805, and, like other senior Taliban leaders with civilian titles,

participated in the Taliban's military efforts to seize control of Afghanistan, serving as a

commander ofTaliban fighters during the Taliban's assaults on Mazar-e-Sharifin 1997 and

1998. Even after his appointment as Governor of Herat in 1999, the petitioner remained

integrally involved in the Taliban's military forces, operating within the Taliban's formal

command structure and facilitating the movement of Taliban troops both before and after the

commencement of Operation Enduring Freedom. Moreover, on the eve of Operation Enduring

Freedom, the petitioner was dispatched to Iran by Taliban leaders in Kandahar to discuss Iran's

offer to provide military assistance to the Taliban in anticipation ofthe imminent U.S.-led

invasion of Afghanistan.

Throughout his tenure in the Taliban, the petitioner remained a prominent leader and a

close ally of Mul1ah Omar. The petitioner's ties to Mullah Omar persisted even after a U.S.

cruise missile struck Mullah Omar's vehicle in the early days of Operation Enduring Freedom,

and MuJlah Omar limited his contacts to his most trusted lieutenants, including the petitioner.

Although the petitioner reached out to Hamid Karzai to discuss the possibility of

surrender after the commencement of Operation Enduring Freedom, he never turned himself in

and was captured at the home of a senior Taliban official. The evidence, therefore, does not

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support the petitioner's contention that he had disassociated himself from the Taliban by the time

of his capture.

Based on these considerations, the court concludes that the government has established

by a preponderance of the evidence that the petitioner was part ofTaliban forces engaged in

hostilities against the United States at the time of his capture. The petitioner is therefore lawfuJly

detained and his petition for a writ of habeas corpus must be denied.

v. CONCLUSION

For the foregoing reasons, the court denies the petition for a writ of habeas corpus. An

Order consistent with this Memorandum Opinion is issued separately and contemporaneously

this 27th day of May, 2011.

RICARDO M. URBINA
United States District Judge

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