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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SHAWALl KHAN,
Petitioner,
v. Civil Action No. 08-1101 (JDB)
BARACK H. OBAMA, et al.,
Respondents.
MEMORANDUM OPINION
Shawali Khan, a n _ citizen, has been in U.S. custody since mid-November 2002.
He has been detained at Guantanamo-Bay,.Cuba since early -2003; and on June 25, 2008, he filed
a petition for a writ of habeas corpus in this Court. After several months of preliminary motions
and hearings, the Court entered a Case Management Order ("CMO") on February 20,2009. The
CMO in petitioner's case is slightly different than the CMOs in most other cases involving
Guantanamo detainees. According to petitioner, extensive discovery is unnecessary in this case
because respondents have not produced sufficient reliable evidence to justify his detention.
Hence, petitioner sought -- and received -- an "expedited" CMO, which provided him with an
opportunity to file a motion for judgment on the record before full discovery had been
conducted. That motion is now be~?~~ .~~ .C.~~!\..J~~,I!1?t!?!! .~as been fully briefed and the
Court held a hearing on June 12,2009. For the reasons explained below, petitioner's motion will
be denied.
ANALYSIS
Respondents bear the initial burden of producing sufficient credible evidence to justify an
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individual's detention at Guantanamo. "[O]nce the Government puts forth credible evidence that
the habeas petitioner meets the ... criteria [for detention]~ the onus ... shift[s] to the petitioner
to rebut that evidence with more persuasive evidence that he falls outside the criteria." Hamdi v.
Rumsfeld. 542 U.S. 507,534 (2004); see also Parhat v. Gates. 532 F.3d 834, 847 (D.C. Cir.
2008).1 The question presented here is whether respondents have satisfied their initial burden. If
they have not, then the "onus" will not shift to petitioner and his habeas petition will be granted.
But if respondents have met their initial burden, then petitioner's motion for judgment on the
record must be denied and the discovery phase of this litigation will commence.
As a threshold matter, the Court must bear in mind that -. for the purpose of this motion
-- petitioner has adopted the s~dar~J?rA~t~n~i89,prR~0~~~.9Y.rC?~pondents.Pet'r's Mem. at 16.
On March 13,2009, respondents proposed the following standard:
The President has the authority to detain persons that the President
determines planned, authorized, committed, or aided the terrorist
attacks that occurred on September 11, 2001, and persons who
harbored those responsible for those attacks. The President also has
the authority to detain persons who were part of, or substantially
supported, Taliban or al-Qaida forces-oe-associated forces that are
engaged in hostilities against the United States or its coalition
partners, including any person who has committed a belligerent act,
or has directly supported hostilities, in aid of such enemy armed
forces.
See Resps.' Rev. Mem. Re: Detention Authority. The Court must put aside, for now, the analysis
of respondents' definition that was conducted in this Court's May 19,' 2009 Memorandum
I Respondents attached a classified version of Parhat to their opposition to petitioner's
motion. The Court will only refer to the classified version of Parhat when necessary and will cite
to the reported version of Parhat whenever possible.
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Opinion, and will operate instead under respondents' March 13 proposed statement of its
detention authority. Furthermore, for the purpose of this motion, petitioner "concedes ... that
the allegations set forth against [him] in the factual return would, if they could be proven, make
[him] detainable under [respondents'] definition." Pet'r's Mem. at 16.
Petitioner's concessions narrow the analysis. The only question remaining is whether
enough allegations are supported by reliable, credible evidence to justify petitioner's detention.
See iQ" at 18. So framed, the Court must conduct a two-part inquiry. First, it must scrutinize
respondents' evidence and determine what is reliable and what is not. This examination
constitutes the majority of the analysis that follows. The second step is determining whether the
reliable, credible evidence is sufficient to justify petitioner's detention under respondents'
definition of their authority to detain.
I. Assessment of Reliability
A. General Principles
The Federal Rules of Evidence do not apply. strictly. in these Guantanamo habeas cases.
Instead, courts must be flexible in evaluating the evidence presented by the parties. See Hamdi,
542 U.S. at 539. "Hearsay, for example, may need to be accepted aS,the most reliable available
evidence from the Government in such a proceeding." lQ.. at 533-34., And given "the exigencies
of the circumstances," "th,e Constitl:J.tiKhan v. Bush
Combined Opinion