UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ABDULRAHIM ABDUL RAZAK AL )
GINCO, )
)
Petitioner, )
)
v. ) Civil Case No. 05-1310 (RJL)
)
BARACK H. OBAMA, et al., 1 )
)
Respondents. )
~
MEMORANDUM ORDER
(June -z.."1.-.-, 2009)
Petitioner Abdulrahim Abdul Razak Al Ginco (who now prefers the surname
Janko) ("petitioner" or "Janko") is a detainee being held at the U.S. Naval Base at
Guantanamo Bay, Cuba. He alleges that he is being unlawfully detained by Respondents
President Barack H. Obama, Secretary of Defense Robert M. Gates, Rear Admiral David
M. Thomas, Jr., and Army Colonel Bruce Vargo (collectively, "respondents" or the
"Government"). On May 28, 2009, this Court commenced habeas corpus proceedings for
petitioner Janko. That morning, counsel for both parties made unclassified opening
statements in a public hearing. Petitioner Janko listened to a live translation of these
opening statements via a telephone transmission to Guantanamo Bay, Cuba.
Pursuant to Federal Rule of Civil Procedure 25( d), if a public officer named as a party to
an action in his official capacity ceases to hold office, the Court will automatically substitute that
officer's successor. Accordingly, the Court substitutes Barack H. Obama for George W. Bush,
Robert M. Gates for Donald H. Rumsfeld, David M. Thomas, Jr., for Jay Hood, and Bruce Vargo
for Michael 1. Bumgarner.
Thereafter, the Court went into a closed-door session to hear each side present an
opening statement that included relevant classified information. Upon completion of
those statements, each side presented its evidence, most of which included classified
material, and arguments regarding various material issues of fact in dispute by the parties.
Because those presentations were not completed by the early evening of May 28,2009,
the Court reconvened the following day to hear final arguments from both sides. In the
interim, petitioner Janko decided not to testify on his own behalf. After the Court heard
each side's closing arguments, the Court informed the parties that it would hold a public
hearing in the near future to announce its decision. A classified version of this opinion
setting forth in greater detail the factual basis of the Court's ruling will be distributed in
the near future through the Court Security Office, together with the final judgment.
Before stating the Court's ruling, a brief statement of the relevant factual and
procedural background of this case is appropriate.
BACKGROUND
Petitioner Janko, a Syrian citizen who spent his teen years in the United Arab
Emirates, was taken into custody by U.S. forces in January 2002 in Kandahar,
Afghanistan. (Unclassified Return ~~ 1-2, 19 [Dkt. #117]; Unclassified Traverse at 81-
82, 92 [Dkt. # 151].) Initially he was held and questioned at Kandahar Air Base, until he
was ultimately taken to Guantanamo Bay, Cuba, after approximately 100 days.
(Unclassified Return ~ 42, n.12; Unclassified Traverse at 2.)
2
In the aftermath of the Supreme Court's decision in Rasul v. Bush, 542 U.S. 466,
473 (2004) (holding that 28 U.S.C. § 2241 extended statutory habeas corpus jurisdiction
to Guantanamo), petitioner Janko filed his habeas corpus petition with this Court on June
30,2005. (Pet. for Writ of Habeas Corpus [Dkt. #1]; see also Suppl. Pet. for Writ of
Habeas Corpus [Dkt. #3].) As with hundreds of other petitions filed around that time, no
action was taken by this Court on the petition until the Supreme Court ruled on June 12,
2008 in Boumediene v. Bush, 128 S. Ct. 2229 (2008), that Guantanamo detainees are
"entitled to the privilege of habeas corpus to challenge the legality of their detention." Id.
at 2262.
In the month following the Boumediene decision, I met with counsel in petitioner
Janko's case on a number of occasions to discuss issues unique to his case and procedural
issues attendant to the habeas process. On July 30, 2008, I ordered respondents to file
their Factual Return by October 24, 2008. (Briefing and Scheduling Order, July 30, 2008
[Dkt. #84].) On September 9,2008, the Government sought a thirty-day extension for the
production of the Janko Factual Return. (Mot. for Partial Relief, Sept. 9,2008 [Dkt.
#102].) The Government's motion was granted on September 23,2008, and respondents
were ordered to file their Factual Return by November 21, 2008, (Order, Sept. 23, 2008
[Dkt. #104]), which they did.
On November 28, 2008, the Court issued its Case Management Order ("CMO")
for the case. (Case Management Order, Nov. 28, 2008 [Dkt. #111].) That order was
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essentially a duplicate of the earlier CMO I had issued on August 27, 2008 in the
Boumediene v. Bush case, No. 04-cv-1166.
On December 4, 2008, the Court met with counsel to discuss any issues raised
after reviewing respondents' Factual Return. On December 5,2008, the Government
filed an unclassified version of the Factual Return. (Notice of Filing of Unclassified
Factual Return, Dec. 5,2008 [Dkt. #117].) Between October 22,2008 and April 3, 2009,
petitioner's counsel filed a series of motions seeking, or related to, discovery. Four
hearings were held to address those motions between December 10, 2008 and April 1,
2009.
On December 22,2008, a possible conflict of interest issue arose as to petitioner's
counsel's continued representation of Janko. As a result, the schedule in the case was
indefinitely continued until that issue was resolved. Ultimately it was resolved on
February 27, 2009, and the Court ordered petitioner's counsel to file petitioner's Initial
Traverse by March 16,2009. (Order, Feb. 27, 2009 [Dkt. #127].) Petitioner's counsel
complied. Indeed, petitioner's counsel subsequently sought to supplement petitioner's
Traverse on three occasions, and the Court granted each request. The Government also
sought leave to supplement its Factual Return on May 18, 2009, which the Court
permitted. On May 26, 2009, a pre hearing conference was held with counsel in an effort
to narrow the factual issues to be covered at the merits hearing.
4
Based on a careful review of the Factual Return and Traverse and after a day and a
half of hearings on the factual issues in dispute and the arguments of counsel, the
following is the Court's ruling on Janko's petition.
LEGAL STANDARD
Under the CMO, the Government bears the burden of proving the lawfulness of
the petitioner's detention by a preponderance of the evidence. (CMO ~ II.A.) The
Government contends that petitioner Janko is being lawfully detained pursuant to the
Authorization for Use of Military Force ("AUMF,,).2 In specific, the Government
initially argued that petitioner Janko was being lawfully detained because he is an
"enemy combatant" who can be held pursuant to the AUMF. (Notice of Filing of
Statement of the Legal Bases for Petitioner's Lawful Detention as an Enemy Combatant,
Dec. 9, 2008 [Dkt. #118].) In that regard, the following definition of "enemy combatant"
was previously adopted by this Court in the Boumediene cases to delineate those who
could be lawfully detained:
An "enemy combatant" is an individual who was part of or
supporting Taliban or al Qaeda forces, or associated forces
that are engaged in hostilities against the United States or its
2
In response to the September 11 th terrorist attacks, Congress passed a joint resolution
authorizing the President to:
[U]se all necessary and appropriate force against those nations, organizations, or
persons he determines planned, authorized, committed, or aided the terrorist
attacks 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.
Authorization for Use of Military Force, Pub. L. No. 107-40, §§ 1-2, 115 Stat. 224 (Sept. 18,
2001).
5
coalition partners. This includes any person who has
committed a belligerent act or has directly supported
hostilities in aid of enemy armed forces.
Boumediene v. Bush, 583 F. Supp. 2d 133, 133 (D.D.C. 2008). In the aftermath of the
change in administrations in January 2009, however, the Government, for reasons not
known to this Court, now eschews the use of the phrase "enemy combatant" and simply
argues instead that petitioner lanko is the type of individual that is detainable under the
AUMF. (Notice of Refinement of Position with Regard to Authority to Detain, May 4,
2009 [Dkt. #143].) In fact, they go so far as to advocate that the Court adopt an even
higher standard regarding the "supporting Taliban or al Qaeda forces" portion of this
Court's definition of enemy combatant, by requiring a showing of "substantial support"
to the Taliban or al Qaeda. (ld. at 1-2.)
Fortunately, however, the Court need not decide whether to adopt the
Government's new definition in this case. The Government's theory of lawful detention
here is not based on "support" to either the Taliban or al Qaeda, but rather petitioner's
being "part of' the Taliban or al Qaeda when he was taken into custody. (Unclassified
Oral Arg. Tr. 31, May 28, 2009.) Accordingly, the question before this Court is simply
whether the Government has shown by a preponderance of the evidence that petitioner
Janko is being lawfully detained - i.e., is an enemy combatant - because he was "part of'
the Taliban or al Qaeda at the time he was taken into custody by U.S. forces. Because the
Government's evidence principally consists of classified intelligence reports from various
6
government law enforcement and intelligence services, the Court is limited to the
following discussion of unclassified information relied upon in the Government's case.
ANALYSIS
The Government contends, in essence, that petitioner Janko is an enemy
combatant because he was "part of ... Taliban or al Qaeda forces" at the time he was
taken into custody by U.S. forces in 2002. In particular, the Government argues that
petitioner Janko: (1) traveled to Afghanistan to participate in jihad on behalf of the
Taliban; (2) stayed for several days at a guesthouse used by Taliban and al Qaeda fighters
and operatives in early 2000, where he helped clean some weapons; and (3) thereafter
attended the al Farouq training camp for a brief period of time. (Unclassified Return ~~
27-30,32-40; Unclassified Oral Arg. Tr. 21-27.) The Government effectively concedes,
however, that petitioner Janko was not only imprisoned, but tortured by al Qaeda into
making a false "confession" that he was a U.S. spy, and imprisoned thereafter by the
Taliban for over eighteen months at the infamous Sarpusa prison in Kandahar. 3
(Unclassified Return ~ 42; Unclassified Traverse at 13-15, 84-86.) Notwithstanding these
extraordinary intervening events, the Government contends that Janko was still "part of'
the Taliban and/or al Qaeda when he was taken into custody after U.S. forces learned
3
Petitioner Janko contends, and the Government does not dispute, that the conditions in
the Sarpusa prison were so terrible - if not horrific - that many prisoners died while incarcerated.
Prisoners were fed next to nothing, and the prison was overcrowded, unsanitary, and lacked
sufficient medical care. (Unclassified Traverse at 86; Unclassified Traverse Ex. 4, ~ 37;
Unclassified Traverse Ex. 12, ~ 3.)
7
from a reporter of petitioner' s presence at the abandoned prison in January 2002.4
(Unclassified Oral Arg. Tr. 9, 31; Unclassified Traverse at 86-92.)
Petitioner, not surprisingly, disagrees. He denies going to Afghanistan to
participate in jihad and, while he admits to staying briefly at a Taliban guesthouse, he
claims he did so against his will. (Unclassified Oral Arg. Tr. 6, 18; Unclassified Traverse
at 44.) Moreover, he contends that he was later taken "involuntarily" to the al Farouq
training camp, fearing that he would be killed ifhe did not comply. (Unclassified Oral
Arg. Tr. 6, 18; Unclassified Traverse at 46-48.) While there he claims he received no
more than small arms training and asked to leave on his eighteenth day in residence.
(Unclassified Oral Arg. Tr. 18; Unclassified Traverse at 49.) Finally, he claims that he
was accused by al Qaeda leaders of being a spy and was tortured 5 repeatedly by al Qaeda
for three months until he gave a false "confession" to being a U.S. spy. (Unclassified
Oral Arg. Tr. 7, 18; Unclassified Traverse at 84-86.) In addition, petitioner stresses, and
the Government does not dispute, that by the point in time he was taken into U.S. custody
in 2002 he was a free man that had been left behind in late 2001 at the Sarpusa prison
with thousands of Northern Alliance prisoners. (Unclassified Oral Arg. Tr. 5-8,20;
4
Originally, the Government and the U.S. media mistook Janko as one of a number of
suicide martyrs based on videotapes captured at an al Qaeda safehouse. (Unclassified Oral Arg.
Tr. 12-13; Unclassified Traverse at 92-93.) The tape involving Janko, however, was actually an
al Qaeda torture tape. (Unclassified Oral Arg. Tr. 12-13; Unclassified Traverse at 2.)
Nevertheless, upon debriefing and interrogating Janko, the Government came to realize he had
had a preexisting relationship with al Qaeda prior his incarceration by the Taliban. (Unclassified
Return ~~ 1,42 n.12.)
5
Although a detailed description ofthe various torture methods the petitioner was
subjected to by al Qaeda is beyond the scope of this opinion, it would be fair to say that ifhis
8
Unclassified Traverse at 86-92.) Thus, petitioner contends, in essence, that even ifhe had
had a prior relationship with al Qaeda or the Taliban in 2000, his subsequent torture and
imprisonment for eighteen months vitiates that relationship to such a degree that he no
longer was "part of" al Qaeda or the Taliban when he was taken in custody in 2002. The
Government disagrees.
By taking a position that defies common sense, the Government forces this Court
to address an issue novel to these habeas proceedings: whether a prior relationship
between a detainee and al Qaeda (or the Taliban) can be sufficiently vitiated by the
passage of time, intervening events, or both, such that the detainee could no longer be
considered to be "part of" either organization at the time he was taken into custody.6 The
answer, of course, is yes. Accordingly, the question before the Court today is whether
that is exactly what happened in this case. For the following reasons, I believe it is.
Whether someone is "part of" the Taliban or al Qaeda is a factual question that the
Government has the burden of proving by a preponderance of the evidence. Although
neither Congress, nor the Executive, have ever defined the minimum evidentiary showing
necessary to warrant being adjudged "part of" either organization, a showing of some
relationship between the detainee and al Qaeda (or the Taliban) is - at a minimum -
necessary. Obviously, the more ephemeral, or undefined, the relationship, the less likely
account is true even in part, al Qaeda's conduct would be fairly characterized as barbaric.
6 Happily, the Government, to its credit, does not go so far as to contend that any prior
relationship with al Qaeda or the Taliban, however distant in the past and regardless of
intervening circumstances, is a sufficient basis to hold an individual under the AUMF
indefinitely. (Classified Oral Arg. Tr. 39, May 29,2009 ("[W]e are not saying once a Taliban,
9
it will satisfy the "part of' requirement. Conversely, the more explicit, in word and deed,
the conduct of the detainee vis-a-vis the organization, the more likely it is that it will
7
constitute evidence of a sufficient relationship.
Here, the Government contends that petitioner Janko was "part of' al Qaeda
and/or the Taliban prior to his being imprisoned and tortured, as evidenced by his travel
to Afghanistan, stay at a certain Taliban guesthouse for approximately five days, and his
attendance at the notorious al Parouq training camp for two-plus weeks. (Unclassified
Oral Arg. Tr. 31.) The Government also contends, in essence, that the extreme treatment
Janko was subjected to over a substantial period of time thereafter was not sufficient to
vitiate that relationship. As such, the Government contends he was still "part of' those
organizations when he was ultimately taken into custody by the U.s. forces some two
years later. I disagree!
To determine whether a pre-existing relationship sufficiently eroded over a
sustained period of time, the Court must, at a minimum, look to the following factors: (1)
the nature of the relationship in the first instance; (2) the nature of the intervening events
or conduct; and (3) the amount of time that has passed between the time of the pre-
existing relationship and the point in time at which the detainee is taken into custody. A
fair application of these factors to the circumstances here overwhelmingly leads this
always a Taliban.").)
7
Indeed, as Judge Bates of this Court recently noted, "[w]ith respect to the criteria to be
used in determining whether someone [i]s 'part of the 'Taliban or al Qaeda, '" the Court must,
"by necessity, employ an approach that is more functional than formal, as there are no settled
criteria for determining who is a 'part of an organization such as al Qaeda." Hamlily v. Obama,
10
Court to conclude that the relationship that existed in 2000 - such as it was - no longer
existed whatsoever in 2002 when Janko was taken into custody. How so?
First, the nature of the relationship, as portrayed by the Government's evidence,
was - at best - in its formative stage. In that regard, the Government relies almost
exclusively on the detainee's own statements during interviews at Guantanamo to
establish that he had spent a brief period of time in the company ofal Qaeda. To say the
least, five days at a guesthouse in Kabul combined with eighteen days at a training camp
does not add up to a longstanding bond of brotherhood. Assuming arguendo that these
allegations were established by a preponderance of the evidence,s the Government has
demonstrated, at most, that Janko was trusted enough to be inducted into al Qaeda's
military training program. And while there is no evidence - from either side - as to why
he suddenly was suspected by al Qaeda leaders of spying and was tortured for months
into giving a false confession, it is highly unlikely that by that point in time al Qaeda (or
the Taliban) had any trust or confidence in him. Surely extreme treatment of that nature
evinces a total evisceration of whatever relationship might have existed! Stated simply,
absent proof to the contrary - which is totally lacking here - no remnant of that
preexisting relationship appears to have survived. And if that were not enough, then the
combination of Janko's incarceration thereafter for a substantial eighteen-plus month
No. 05-763, 2009 WL 1393113, at *8 (D.D.C. May 19,2009).
8
The Court need not directly address whether the Government met its burden under the
CMO to prove by a preponderance of the evidence that petitioner was ajihadist who had a
preexisting relationship with al Qaeda because even if the Government had, such a showing
would have been to no avail based on the subsequent events established in this case for the
11
period by the Taliban and subsequent abandonment by his captors when U.S. forces
ultimately liberated Kandahar, is even more definitive proof that any preexisting
relationship had been utterly destroyed.
Thus, combining the limited and brief nature of lanko's relationship with al Qaeda
(and/or the Taliban), with the extreme conduct by his captors over a prolonged period of
time, the conclusion is inescapable that his preexisting relationship, such as it was, was
sufficiently vitiated that he was no longer "part of' al Qaeda (or the Taliban) at the time
he was taken into custody by U.S. forces in 2002. Accordingly, the Government has
failed to establish by a preponderance of the evidence that lanko was lawfully detainable
as an enemy combatant under the AUMF at the time he was taken into custody, and the
Court must, and will, GRANT his petition for a writ of habeas corpus and order the
Government to take all necessary and appropriate diplomatic steps to facilitate his release
forthwith.
CONCLUSION
F or all the foregoing reasons, and for the reasons in the forthcoming classified
version of this opinion, it is hereby
ORDERED that petitioner Abdulrahim Abdul Razak Al Ginco's petition for writ
of habeas corpus is GRANTED; and it is further
reasons set forth in this opinion.
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ORDERED that respondents are directed to take all necessary and appropriate
diplomatic steps to facilitate the release of petitioner Janko forthwith.
SO ORDERED.
13