UNCLASSIFIEOIlFOR PUBLIC RELEASE
8E~RE'FJ1J8fi8fHJ
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MAHMOAD ABDAH, et al.,
Petitionen,
v. Civil Action No. 04-1254 (HHK)
BARACK H. OBAMA, et ai,
Respondents.
MEMORANDUM OPINION AND ORDER
Before the Court is "Petitioner Yasein Khasem Mohammad Esmail [(ISN 522)]'s Motion
for Reconsideration of the Court's April 8, 2010 Order Denying the Petition for a Writ of Habeas
Corpus" [#838]. Petitioner asks the Court to reconsider its ruling based upon two findings it
characterizes as clear error. Upon consideration of the motion, the opposition thereto, and the
record of this case, the Court concludes that the motion shall be denied.
I.
In considering this motion, the Court is mindful that "a district court should not grant a
motion for reconsideration unless the moving party shows new facts or clear errors of law which
compel the court to change its prior position." Nat'l Or. for Mfg. Scis. v. Dep't ofDe!, 199 F.3d
507,511 (D.C. Cir. 2000) (citations omitted). Such a motion "is not an appropriate forum for
rehashing previously rejected arguments or arguing matters that could have been heard during the
pendency of the previous motion." Carter v. Wash. Metro. Area Transit Au/h., 503 F.3d 143,
145 n.2 (D.C. Cir. 2007) (quoting Caisse Nationale de Credit Agricole v. CBllndus., lnc.,
SECR£'f
UNCLASSIFIEOIIFOR PUBLIC RELEASE
UNCLASSIFIEDffFOR PUBLIC RELEASE
9E@ItE'fJ14BF8FtiJ
90F.3d 1254, 1270 (7th Cir. 1996» (internal quotation mark omitted). Petitioner fails to meet
these standards here,
II.
First, Esmail argues that it was "clear error" for the Court to rely on incriminating
statements he made while in custody. Pet'r's Mot. for Recons. at 2. He makes three points in
support of this assertion: (I) that the Court was wrong to draw any inference from the addition of
details regarding alleged abuse while in custody in a declaration Esmail filed shortly before his
hearing that did not appear in a declaration submitted earlier; (2) that the Court failed to take into
account the "totality of the circumstances" in ruling that EsmaiJ's early statements in U.S.
custody were reliable even though he had allegedly previously been tortured in Afghani custody;
and (3) that other findings in the Court's memorandum opinion, in particular that Esmail's
retraction of his statements is unpersuasive and that the statements contain indicia of reliability,
are incorrect. Respondents contend that Esmail made or could have made these arguments at the
merits hearing and that the Court's findings of fact were not incorrect.
The Court rejects Esmail' s arguments. As noted above, a motion for reconsideration "is
not an appropriate forum for rehashing previously rejected arguments or arguing matters that
could have been heard during the pendency of the previous motion." Carler, 503 F.3d at 145 n.2
(quoting Caisse Nalionale de Credit Agricole, 90F.3d at 1270) (internal quotation mark omitted).
The parties thoroughly addressed the issue of whether EsmaiJ's statements were the product of
torture or were instead reliable in their briefing and during the merits hearing. Esmail's
allegations were serious and the Court treated them as such. But after carefully considering the
evidence, including credible affidavits that directly contradicted some of Esmail's assertions, and
2
UNCLASSIFIEDffFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
S8@1l8'fil18F8ftH
the arguments presented by both sides, the Court concluded that Esmail's allegations were
exaggerated and it was appropriate to rely on his statements to interrogators. No facts Esmail
now brings 10 the Court's attention demonstrate that the Court erred. The only new fact
presented, that Esmail's counsel rather than Esmail decided not to include some details in
Esmail's first declaration, does not change the Court's conclusion, which relied on a variety of
factors. I
II.
Second, Esmail argues that it was clear error for the Court to find, based on inferences
from the evidence before it, that Esmail was a fighter at the battle of Tora Bora. He asserts that
the circumstantial evidence on which the Court relied was flawed and that evidence that he was
in the vicinity ofTora Bora is insufficient to support an inference that he was a fighter in the
battle that look place in the cave complex there. Respondents argue that the evidence in the
record supports the Court's fmdings.
The Court is similarly unpersuaded by these arguments, which largely repeat assertions
Esmail has already made. The Court seriously considered the parties' evidence and arguments in
making this weighty decision. As the Court has noted in each of its opinions ruling on petitions
for writs of habeas corpus brought by Guantanamo Bay detainees, these are unique cases that
require consideration of atypical, and in some ways unsatisfying, evidence. But based on the
information before it, the Court found that the facts respondents had shown by a preponderance
Esmail presents a new piece of evidence, arguing that it is corroboration for his
allegations of torture while in Afghani custody. See Pet'r's Mot. for Recons. at 5-6; id., Ex. A.
The doeument, a summary of evidence presented to the Administrative Review Board in the case
of another detainee, does not go to show any new facts. It only reinforces facts of which the
Court was aware but not swayed in light of other information in the record.
SE€MT
3
UNCLASSIFIEDIlFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
QI!!!Rl'llH IllFll," I
of the evidence to be true supported the inference that Esmail was a fighter at Tora Bora.
The only new evidence Esmail presents goes to whether ISN 242, one of the two other
detainees with whom Esmail was captured, was a fighter at Tora Bora. The document contains
an assertion by ISN 242 that his statements to interrogators that he "carr[ied] a weapon" and
"participated in battle" were "made just to satisfy the interviewer." Pet'r's Mot. for Recons., Ex.
A at 2. But it does not necessarily disprove these allegations, and, more significantly, it does not
call into question the evidence in the record ofEsmail's case that ISN 549, the other detainee
with whom Esmail was seized, was a fighter injured in battle. The document therefore does not
demonstrate that the Court's opinion contains clear error.
Ill.
For the foregoing reasons, it is this 14th day of June, 2010 hereby ORDERED that
Petitioner's motion for reconsideration [#838] is DENIED.
SEeR£T
4
UNCLASSIFIEDIIFOR PUBLIC RELEASE