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FILED WfnI THE UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA

# cg~TS~ KHAIRULLA SAID WALI

# DATE:_~~~~~:..r...-_ KHAIRKHWA, Petitioner, Civil Action No.: 08-1805 (RMU)


### v. Re DocwnentNos.: 1, 187, 197 BARACK OBAMA 

### etal., Respondents. MEMORANDUM OPINION DENYINGTHE PETITION FORAWRITOF HABEAS CORPUS DENYING AS MOOTTHE GOVERNMENT'S MOTION FOR THE COURT TO CONSIDER

### ExPARTEINFORMATION ON THE MERITS OVERRULING THE GOVERNMENT'S OBJECTION TO THEPETITIONER'S RELIANCE ON MATERIALS OUTSIDE THE RECORD I. INTRODUCTION This matter comes before the court on the petition for a writ ofhabeas corpus filed by Khairulla Said WaH Khairkhwa (ISN 579) ("the petitioner"), anAfghan national detained at the United States Naval Station in Guantanamo Bay, Cuba ("GTMO"). The government contends that the petitioner, a former seniorTaliban official, is lawfully detainedbecause he was part of Taliban forces and purposefully and materially supported suchforces in hostilities against the United States. The petitionermaintains 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 haddisassociated himselffrom the Talibanbythe time ofhis capture. In March 2011, the court held a merits hearingto assess the lawfulness ofthe petitioner's detention. During the eourse ofthat hearing, the parties introduced dozens ofexhibits from a



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### SECItE'f variety ofclassified and public sources, including mediareports, 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. Atthe conclusion ofthe hearing, bothparties submitted detailed proposed findings offact and conclusions oflaw encapsulating and amplifying the evidence and argument presented during the merits hearing,) Having carefully considered the parties' extensive presentations, the courtreaches the following findings. The petitioner was, without question, a senior member ofthe Taliban both before and after the U.S.-led invasion ofAfghanistan in October 2001. The petitioner served as
a Taliban spokesperson, the Taliban's Acting Interior Minister, the Taliban Governor ofKabul and a member ofthe Taliban'shighest governing body, the Supreme Shura. Thepetitioner was a close associate ofTaliban leaderMullah Mohammed Omar, who appointed him Governor ofthe province ofHerat in 1999. The petitionerheld this office atthe time the Taliban government 

### feU to U.S. coalition forces in late 2001. Although the petitionercontends that he had no military responsibilities in any ofhis posts within the Taliban, the recordbelies that contention. The petitionerhas repeatedly admittedthat after the terrorist attacks ofSeptember 11, 2001, he served as a member ofa 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 ofimminent hostilities with U.S. coalition forces. The petitionerhas also exhibited a detailed knowledge about sensitive military-related matters, such as the ]ocations, personnel and resources ofTaliban military installations, the relative capabilities ofdifferent weapons systems and the locations of

The government has objected to the petitioner's reliance on eleven documents that were notmade a part ofthe record, but are nevertheless cited in the petitioner's proposed findings offacts and conclusions oflaw. 

### 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 afterthe outset of hostilities with U.s. coalition forces. These facts are consistent with the TaHban's governance model, inwhich nearly all seniorTaliban officials were tasked with both civilian and miHtary responsibilities. Despite thepetitioner's efforts to portray himselfas a reluctant, marginal figure within the Taliban, the record indicates that the petitioner rose to the highest level ofthe Taliban and had close ties to Mullah Omar, who repeatedly appointed the petitionerto sensitive, high-profile positions. Indeed, even afterthe U.S.-led invasion ofAfghanistan, the petitioner remained within Mullah Omar's inner circle, despite the fact thatMullah Omarhad Hmited his contacts to only his most trusted commanders. Thepetitionerremained part ofTaliban forces at the time ofhis capture inearly 2002. Although the petitioner contacted individuals allied with the United States to discuss the possibility ofsurrendering himselfto 

### U.S. coalition forces, he neverturned himselfin and was ultimately captured at the home ofa senior Taliban military commander. In sum, based on a totality ofthe evidence, the court concludes that the government has proven by a preponderance ofthe evidence that the petitioner waspart ofTaliban forces atthe time ofhis capture. Thepetitioner 

### 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 Kandaharprovince of Afghanistan some time between 1967 and 1972. GE 91 2 

### (Joint Stipulation ofUndisputed 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 ofthe Popalzai tribe. GE 91**~** 

### 11. Following the Soviet invasion ofAfghanistan in 1979, the petitioner relocated with his family to
a refugee camp near Quetta, Pakistan. GE 20 at 

### 1. The petitioner spent the bulk ofhis 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, withthe 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 ofSpin 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 ofAmerica. 

### GE 20 at 1-2; 

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

2 Citationsto "OE_"referto the exhibits introduced

### by the government during the merits hearing, whereas citationsto "PE _"refer tothe 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 inthat 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 ofKabul, PE 

### 110**~** 

### 50, and shortly thereafter, became the Taliban's Acting Minister ofthe 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 ofMazar-e-Sharif. 5 

### GE 91**~~** 

### 2-3. The Taliban attempted to seize the city in May and September 1997, butboth assaults proved unsuccessful. [d.**~** 

### 3. The 

### Taliban finally captured Mazar-e-Sharifin August 1998. ld**~** 

### 4. On 

### October 26, 1999, the petitioner was appointed Governor ofHerat, id**~** 

### 17, the westernmostprovince in Afghanistan, GE 

### 92. The petitionerheld this post when U.S. coalition forces commenced Operation Enduring Freedom on October 7,2001. See 

### GE 91**~** 

### 5. By midNovember 2001, U.S. coalition forces had pushed the Taliban out ofMazar-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 petitionerin Chaman, Pakistan at the home ofAbdul Manan Niazi, the former Taliban Governor ofKabul. 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 ofthe proceedings. During the merits hearing. the parties presented a substantial amount 

### ofevidence 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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ofhabeas corpusto challenge the legality oftheir detention," 

### id. at 2262, and thatthe federal district courts havejurisdictionover such challenges, 

### id. at 2274. Shortly thereafter, the petitioner fi1ed a petition for a writ ofhabeas corpus challengingthe legality ofhis detention at GTMO. 

### See generally Pet. Although the Supreme Courtdid not specify what procedures the district courts were to employ in resolving habeaspetitions fi1ed by GTMO detainees, it did emphasize thatthe "detainees in these cases are entitledto a prompt habeas corpus hearing." 

### Boumediene, 128 S. Ct. at 2275. Toward that end, this court and otherjudges inthis district agreedto consolidate their cases before Judge Hogan for thepurpose ofadopting commonprocedures for the GTMO detainee litigation. 

### See Minute Order (Oct. 29,2008). OnNovember 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 ofthe amended CMO, subject to modifications set forth in an Omnibus Order issued
on April 23, 2009. 

### See generally Omnibus Order (Apr. 23, 2009). The governmentfiled its factual return for the petitioner inDecember2008. 

### See generally Factual Return. Following an extensiveperiod ofdiscovery, the petitionerfiled his traverse in December 2009.6 

### See generally Traverse. In April 2010, the parties filed crossmotions forjudgment on the record. 

### See generally Govt's Mot. for 

### J. onthe R.; Petr'sCrossMot. for 

### J. on the R. The courtdenied the parties' cross-motions after concluding that there were genuine issues ofmaterial 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). 

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2010. Order (Sept. 16,2010). Atthepetitioner's request, the court rescheduled the merits hearing to March 2011. Order (Oct. 12,2010). The merits hearing began onMarch 28, 2011 and spanned four days. During the course ofthe hearing, theparties introduced dozens ofexhibits and offered extensive argument concerning the lawfulness ofthe 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, theparties submitted proposed findings offact and conclusions oflaw. With the record now complete, the courtturns to the applicable legaI standards and the evidence and argument presented by the parties.



### III. EVIDENTIARY MATTERS A. Frameworkfor Assessing the Evidence In assessing whetherthe governmenthas shownthatthepetitioner is lawfully detained, the court "mustevaluate the raw evidence, finding itto be sufficiently reliable and sufficiently probative to demonstrate the truth ofthe 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 anypiece ofevidence in these GTMO habeas proceedings,the courtmust examine that evidence to "detenninewhether the evidence is in fact sufficiently reliable to be used as ajustification 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 ofeach piece ofevidence presentedby the parties inthe context ofthe evidence as a whole" (internal quotation marks omitted»). 

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The reliability ofany piece ofevidence may be established by the intrinsic characteristics ofthat evidence, such as the nature and consistency ofthe 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 canbe assessed by comparison to 'exogenous information"'); Bensayah, 610 F.3d at 725-26 (citing Parhat, 532 F.3d at 849). Two pieces ofevidence, "each unreliable when viewed alone," can corroborate each other and mutually establish their reliability. Bensayah, 610 F.3d at 726 (citing UnitedStates v. Laws, 808 F.2d 92, 100-03 (D.C. Cir. 1986». In this case, the government has based its case on a variety ofclassi1ied and public materials, including scholarly works, mediareports, expert declarations, intelligence reports, interrogation reports reflecting statements made by the petitioner and otherdetainees and transcripts ofthe petitioner's testimony to the Combatant Status Review Tribunal ("CSRT") and the Administrative Review Board ("ARB"). A number ofthese documents contain multiple levels ofhearsay. See FED. R. EVID. 801(c). As dictated by this Circuit, the court shall individually assess the reliability ofeach exhibit that it relies on in the course ofits analysis. See infra Part IV. 

### B. Admissibility and Reliability ofHearsay Evidence Prior to the merits hearing, the government submitted a motion in which it argued that the court should afford a presumption ofaccuracy 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 inpart and denied in part the government's motion in an order issued prior to the merits hearing. Order (Mar. 17,2011) (citingAlsabriv. 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'don othergrounds, 632 F. 3d 720 (D.C. Cir. 2011». The reasoning underlying the court's ruling is set forth in greater detail below. The Circuithas made clear that although "hearsay evidence is always admissible in Guantanamo habeas proceedings, such evidence must be accorded weight onlyin 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 whatprobative weightto ascribe to whatever indiciaofreliability it exhibits." 

### AlBihani v. 

### Obama, 590 F.3d 866,879 (D.C. Cir. 2010). Nothing 

### in these Circuit decisions suggests that the court should presumethe accuracy or reliability ofthe government's exhibits; to the contrary, as previously noted, the Circuithas stated that before relying on any piece ofevidence, the court must determine that 

### itis sufficiently reliable and probative. 

### Bensayah, 610 F.3d at 725 (citing 

### Parhat, 532 F.3d at 847); 

### cfAl Odah
V. 

### Obama, 611 F.3d 8, 14 (D.C. Cir. 2010) (holdingthat the district court did noterrin relying on hearsay evidence where "[t]he government offered reasons why its hearsay evidence had indicia ofreliability, andthe court consideredthe reliability ofthe evidence indeciding the weight to give the hearsay evidence"). Drawing onthese principles, this court has held that although hearsay evidence is always admissible in these habeas proceedings, the court cannot presumethe accuracy ofsuch evidence, but must instead make individualized determinations aboutthereliability and accuracy ofthat evidence and the weight itis 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 ontheprinciples underlying Federal Rule ofEvidence 803(6), which sets forth the hearsay exception for reports ofregularly conducted activity, the government's interrogationreports and intelligence reports are entitledto a 

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### presumption ofauthenticity. 

### Id; see alsoAlmerfedi v. 

### Obama, 2010 WL 691944, at "'1 (D.D.C. Mar. 1,2010) (concluding that all ofthe government's hearsay evidence was admissible and that any evidence created and maintained by the governmentin the ordinary course ofbusiness was entitled to arebuttable presumption ofauthenticity, butrejecting the government's argument that its evidence should be afforded a presumption ofaccuracy). 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 

### ExParte Information During the course ofthis litigation, the governmenthas filed a number ofmotions for leave to provide the petitioner with redacted versions ofcertain documents that are subjectto the automatic disclosure provisions ofthe CMO. The motions were brought pursuantto §

### LF ofthe CMO, which provides that "[i]fthe government objects to providing the petitioner's counsel with classified information [otherwise subjectto 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 ofrulings on these motions, ultimately granting the government leave to redact portions ofcertain documents disclosed to the petitioner. 

### See, e.g., Mem. Order (May 25, 2010); Mem. Order (Oct. 5, 2010) (granting in part and holding in abeyance in part the government's renewed fourth 

### exparte motion for exception from disclosure and directing the government to provide further explanation for its redaction to one document); 

### see alsoAl Odah v. 

### UnitedStates, 559 F.3d 539,545-47 (D.C. Cir. 2009) (concluding that the court may orderthe disclosure of classified information to the petitioner only 

### ifthe 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 

### exparte filings. 

### See generally Petr's Mot. for Access to 

### Ex Parte Filings. The court denied the motion, concluding that 

### § I.F ofthe CMO contemplates 

### exparte 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 ofrelying on any redacted, 

### exparte information indetermining the legality ofthe petitioner's detention.' 

### Id at 8-9. OnMarch 27, 20II, the government filed a motion, in which it arguedthat the court should, in assessing the lawfulness ofthe petitioner's detention, consider

### exparte certain information redacted from the documents disclosed to the petitioner.s 

### See generally Govt's Mot. that the Court Consideronthe Merits Infonnation Contained in Its 3d 

### & 5th CMO 

### § LF. Motions ("Govt's Mot. for 

### Ex Parte Consideration"). According to the government, the Circuit'sruling in

### Al Odah implicitly acknowledges the court's authority to rely on 

### exparle materials when the petitioner's access to that infonnation is not necessary to facilitate the court'smeaningful review. 

### See generally id The petitioner disagrees, citing the well-established presumption against the court'sreliance onmaterials to which both parties do not enjoy access. 

### See generally Petr's Opp'nto Govt's Mot. for 

### Ex Parte Consideration. The court is aware that at least onejudgeinthis district has relied on 

### exparte infonnation to assess the reliability ofmaterials submitted by the government during a merits hearing. 

### See Khan v. Ohama, 741 F. Supp. 2d 1, 17 (D.D.C. 2010) (noting thatthe court conducted an 

### ex parte review ofunredacted copies ofcertain intelligence reports to assess theirreliability). In this immediate case, however, the court finds 

### itunnecessary to rule onthe issue because, as The court reiterated this position in its ruling on the government's fifth 

### exparte motion for exception from disclosure. Mem. Order (Mar. 11,2011) at 3 n.ll. The government submitted unredacted versions ts at issue with its 

### exparte 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 ofthe 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. ofHekmat 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. ofBrian 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 ofthe 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 ofWilliams. The court begins by brieflyrecounting the 

### general principles governing the 

### qualification ofexpert witnesses. 1. Legal Standard for the Qualification ofExpertWitnesses Federal Rule ofEvidence 702

### provides that awitness must qualify as an expert to testify
on matters that are scientific, technical or specialized in nature. 

### See FED. R. EVID. 702. 

### The courtmust act as a "gatekeeper" and determine the admissibility ofexpert testimony and the
Neither Karzai nor Williams obtained access 

### to ortestified 

### on the basis 

### ofclassified materials 

### in this case. 12 

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qualifications ofexpert 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 reviewofthe caselaw after

### Daubert shows that the rejection ofexpert testimony 

### is the exception ratherthan the rule."). The adversarial system remainsthe "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 partypresentingthe expert bears the burden, bya "preponderance ofproof," ofestablishing the qualifications ofthe proposed expert. 

### Meister, 267 F.3d at 1127 n.9. Rule 702 does not specify any particularmeans for qualifying an expert, requiring only that the witness possess the "knowledge, skill, experience, training, oreducation" necessary to "assist" the trier offact. FED. 

### R. EVID. 702. As the Supreme Court stated in

### Daubert, the trial court must determine whetherthe proposed expert possesses "areliable basis in the knowledge and experience of[the relevant] discipline." 509 U.S. at 592. In consideringwhetherthis standard ismet, courts mayconsiderthe factors articulated in

### Daubert, such as (1) whetherthe expert'stechnique ortheory can be or

### has been tested; (2) whether the technique or theory has been subjectto peerreview andpublication; (3) the known orpotential rate oferror ofthe technique ortheory when applied; (4) the existence and maintenance ofstandards and controls; and (5) whether the technique ortheoryhas 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." 

### Groobertv. 

### 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 expertin his orher 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. 

### SchoenthalFamily, LLC, 555 F.3d 1331, 1338-39 (11th Cir. 2009). There 

### is, however, no requirement that an expertpossess formal education, and 

### an expert may be qualified on the basis ofhis orher 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 ofexperience 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]fthe 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 trierof fact." 

### See Mannino v. Int'/

### Mfg. Co., 650 F.2d 846, 851 

### (6th Cir. 1981) (noting that the weight ofthe evidence is a matter to be assessed by the trier offact). "[I]t

### is 

### not necessary thatthe witness be 

### recognized as a leading authority in the field in question or even a member ofa C"

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### .....,) t...._

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recognized professional commWlity." 29 FED. PRAC. & PROC. (EVID.) 

### § 6265. "The 'assist' requirement is satisfied where expert testimony advances thetrier offact's understanding to any degree." 

### Id. 

### 2. Hekmat Karzai Hekmat Karzai, one ofthe proposedexperts onwhom the petitionerrelies, isthe Director ofthe Centre for Conflict and Peace Studies, an independent research institute inAfghanistan dedicated to reducing the threat ofpolitical violence and fostering an environment ofpeace and stability in that nation. PE 110**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 inthe 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 atthe 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 ofMullah Omar; and (3) the petitioner's background and his role within the Taliban government. PE 110117. Following a lengthyvoir dire, the government conceded Karzai's qualifications to offer expert testimony onthe first two ofthese issues. Mar. 31 Tr. at 89. The government objected, however, to Karzai offeringexpert testimony on the third issue, arguing that his views onthe petitioner's roles within the Taliban were based more on 

### ipse dixit than onrigorous analysis. 

### ld. at 89-90. The government noted that Karzai had published no scholarly works about the petitioner andbased his opinions aboutthe petitioner primarily onhis discussions with 

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### individuals associated with the petitioner ratherthan on any rigorous analytical inquiry. Id. 

### at 90. In effect, the government argued, the petitioner was attempting to introduce hearsay evidence in the guise ofexpert 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 petitionerin 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 ofthe Taliban government. Indeed, 

### it would appear that in amanner consistent withhis training and experience, Karzai conducted a systematic inquiry into the petitioner. Karzai testified that he formed his opinions aboutthe petitioner'sbackground 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 withinthe Taliban. Id 

### at 84. Karzai testified that he sought out a variety ofindividuals 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-Sharifregion in the north and Heratprovince 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.

16 UNCLASSIFIEDIIFOR PUBLIC RELEASE

### UNCLASSIFIEDIIFOR PUBLIC RELEASE SltCRR'f' The government did not explain why Karzai'sreliance on information that he obtained from these interviews precludes him from offering experttestimony, particularlyinlight ofhis efforts to cross-reference and corroborate this information. 1O Although the government suggested thatthe rigor ofKarzai'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 

### isrelevant to the weight afforded to Karzai's testimony, not his expertise. Accordingly, based on Karzai's knowledge, training andexperience regarding the Taliban and his efforts toresearch the petitioner's background and roles withinthe Taliban, the court concluded during the merits hearing that Karzai was qualified to offer expert testimony on thepetitioner's background and posts within the Taliban. 

### 3. Brian Williams Brian Williams is a professor ofIslamic History at the University ofMassachusettsDartmouth, where he has taught since 

### 2001. PE 111A , 

### 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 Williamshas authored more than seventy articles onwarandterrorism in Central Eurasia. 

### ld He has testified as an expert in other GTMOproceedings. 

### See, 

### e.g., Khan, 741 F. Supp. 2d at 8 (noting thatWilliams offered expert testimony on Afghan warlords). Inhis declaration, Williams offers expert opinion testimony on the following four subjects: (1) the Taliban'sconquest ofMazar-e-Sharif; (2) Iranian-Taliban cooperation against the United States; (3) intelligence sharing between the Taliban and Iran; and (4) al-Qaidabases
Indeed, one ofthe works which the government has described as an authoritative sourceon the Taliban relies on information obtained from precisely the sortofinterview which the government deemed unreliable during its voir dire ofKarzai. See GE48 (AHMED RASHID, TALIBAN: MILITANT ISLAM, OILAND 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~", ~**  17 

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I ! 10

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### located in Herat. See generally

### PE lIlA. The government does not dispute Williams's qualifications to offertestimony on subjects one and four. Mar. 31 Tr. at 6. The government asserts, however, that Williams lacks the qualifications necessary to offer experttestimony on subjects two and three, both ofwhich 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 ofhis schoJarJy endeavors on the Russian Caucasus and Turkey, and that he has no specialized education ortraining 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 ofexpertise. Id 

### at 22-30. The court disagrees with the government's assessment ofWilliams's expertise. The government itselfhas previously relied on Williams as an expert onthe Taliban. Williams authored a book published in 2001 by U.S. Army 

### Publications entitled "Afghanistan 101: A Guide to the Afghan Theater ofOperations," 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 ofBrian 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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### S'BCH'f'
Williams has traveled to Afghanistan onfour occasions sincethe fall ofthe Taliban government. 

### Id. He 

### has also authored articles discussing Afghanistan in the age ofTaliban-rule that have beenpublished in scholarlyjournals,11 as well as policyjournals and other collections. 12 PE 111B at 3-7. Furthennore, Williams has taught at least onecourse covering modem Afghan history, includingthe period ofthe Taliban, titled "Empires and Invasions: A History ofAfghanistan from Genghis Khan to the WaronTerror." GE 95 at 1. Given his demonstrated scholarship on the history ofthe Taliban, as well as the government's ownreliance onhim as an expert onmatters related to the Taliban, it is clearthat Williams possessesthe specialized knowledge needed to offer expert opiniontestimonyonthe Taliban and Afghanistan. Indeed, as previously noted, the government has concededthat Williams is qualified to offerexperttestimony about the battle for Mazar-e-8harifduring the rise ofthe Taliban and about the presence ofal-Qaida bases in Herat province during the Taliban's rule over Afghanistan. 

### See Mar. 31 Tr. at 6. Such expertise could not be obtainedwithout developing a specialized knowledge ofthe Taliban'srelationships with itsregional neighbors, including Iran. Itis well-established that Iran, which shares a 400-mile border with Afghanistan, played a central role in Afghan affairs during the TaJiban's rise topower, providing substantial military support to the Northern Alliance and other groups in their struggle for control ofAfghanistan. 

### See, e.g., PE 75 (Thomas 

### H. Johnson, 

### Ismail Khan, Herat, andIranian Influence, 3 8TRATEGle INSIGHTS, no. 7, July 2004, at 1) at 3; PE 76 (Mohsen M. Milani,

### Iran's Policy TowardsAfghanistan, 60MIDDLE E.J., no. 2,

II See, e.g., Brian Williams, Reportfrom the Field GeneralDostum andthe Mazar i Sharif Campaign: New Light

### on the NorthernAlliance 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 of Al QaedaBasingProjects: From SovietAfghanistan 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/

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### SECM" Spring 2006, at 235) at 244 (notingthat Iran provided key support tothe 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 onthe relationship between the Taliban and Iran, it does not preclude him from offering experttestimony on the issue. Accordingly, the court concludes that Williams is qualified to offer expert opiniontestimony on all ofthe issues for which he has been proffered.

IV. ANALYSIS 

### A. The Scope ofthe Government's Detention Authority The government's authority to detain individuals at GTMO derives from the Authorization for the Use ofMilitary Force ("AUMF"), whichprovides 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, orpersons. Pub. 

### L. No. 107-40, 115 Stat. 224 (2001). This Circuit has delineated two categories ofpersons detainable underthe AUMF: (1) individuals who are "part of' forces associated with al-Qaida orthe Taliban and (2) individuals who purposefully and materially supported such forces in hostilities against U.S. coalition forces. 

### AlBihani, 590 F3dat 872; 

### see also id at 874 (noting that "bothprongs are valid criteriathat are independently sufficient to satisfy the standard"). The burden rests with the government to demonstrate by a preponderance ofthe evidencethat the detainee falls within one ofthese

20 

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### SEeH" 

### categories ofdetainable persons. SeeAwadv. Obama, 

### 608 F.3d 1, 10 (D.C. Cir. 2010) (stating that "apreponderance ofthe evidence standard satisfies constitutional requirements in considering a habeas petition from a detainee held pursuant to the AUMF"); accordAlBihan;, 

### 590 

### F.3d at 878. 13 

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

### impossible to provide an exhaustive list ofcriteria 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-Qaidaor associated forces on a "case-by-case basis" employing a "functional rather than a formal approach and by focusing upon the actions ofthe individual in relation to the organization." 

### Id. "That an individual operates within al Qaeda's formal command structure is surely sufficientbut is not necessary to showthat he is 'part of the organization." 

### Id.; see alsoAwad, 

### 608 F.3d at 11 ("Ifthe government can establish by a preponderance ofthe evidence that adetainee was part ofthe 'command structure' ofal Qaeda, this satisfies the requirementto show thathe 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 otherhand, "the purely independent conduct ofa freelancer is not enough" to showthat an individual is detainable as "part of' ofthose enemy forces. 

### Bensayah, 610 F.3d at 725; 

### see also Salahi v. Obama, 

### 625 FJd745, 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 ofwhether the individual was 'part of the organization when captured").
Nevertheless, the Circuit has expressly left open 

### the question ofwhether a lower evidentiary standard might be constitutionally permissible. SeeAI-Adahiv. 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 

### ahabeas corpus proceeding the preponderance 

### of evidence standard that the government assumes binds it, is unnecessary - and moreover, unrealistic"). j" f '.. 

### f',:!'''**'l~** , ' ;: 4: ( : \).,,,,$:-**~M. ~,\-:**  t \l**~";:** . .t 

### 21 UNCLASSIFIEDIIFOR PUBLIC RELEASE 13

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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 ifreleased." 

### 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 ofhis capture to demonstrate that his 

### detention is lawful under the first prong ofthe standard. See Salahi, 

### 625 F.3d at 

### 751 (observing that "therelevant inquiry is whether [the petitioner] was 'partof 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 ofthe detention standard. It

### is nonetheless clearthat as with the "part of'prong ofthe 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 ofthe 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 supportprong ofthe detention standard). In assessing whether the government has met its 

### burden under eitherprong ofthe detention standard, the court may not view eachpiece of

### evidence in isolation, but must consider the totality oftheevidence. 

### SeeAI-Adahi v. 

### Obama, 613 FJd 1102, 1105-06 (D.C. 

### Cir. 2010). Even ifno individual piece ofevidence would by itself justifY 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 thepetitioner purposefully and materially supported such forces. 

### Id (concluding that the district court erred in

22 UNCLASSIFIEDIIFOR PUBLIC RELEASE

### UNCLASSIFIEDIIFOR PUBLIC RELEASE SEelH!;'t' "requir[ing] eachpiece ofthe government's evidence to bearweightwithout regard to all (or indeed any) other evidence in the case"); 

### cj Bourjaily 

### v. UnitedStates, 483 U.S. 171, 179-80 (1987) (observing that "individual pieces ofevidence, insufficient in themselves to prove a point, may in cumulation prove it" because the "sumofanevidentiary presentation may well be greater than its constituentparts"). 

### B. ThePetitionerIs LawfuUy Detained 1. The PetitionerWas a SeniorTaliban Official In many ofthe GTMO habeas cases litigated since

### Boumediene, the central question before the courthas been whetherthe detainee knowingly associated himselfwith the Taliban, al-Qaida or related enemy forces. To resolve this question, courts have commonly sifted through evidence ofthe detainee's presence attraining camps and safchouses and assessed the plausibility ofthe detainee's claim that he had no intention of joining 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 assertionthat he traveled from YementoAfghanistan to find work and a wife); 

### Kandari v. 

### UnitedStates, 744 F. Supp. 2d 11,27-29 (D.D.C. 2010) (assessing the detainee's assertionthat 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 claimthat he traveled from Yemen to Pakistan in the hopes of facilitating a missionary trip to Europe, as well as the government's evidencethat 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 memberofthe Taliban. Aspreviouslynoted, thepetitioner

23 

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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 GovernorofKabul 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 ofHeratprovince, a position that he held throughthe commencement ofOperation Enduring Freedom. GE 91**~~** 

### 5, 17. In short, the parties agree that the petitioner was not only functionally part ofthe Taliban, but that he was, in fact, a fonnally-recognized, high-ranking Taliban official at the time ofthe U.S.-led invasion ofAfghanistan. As a result, the question before the court is not whether the petitioner everknowingly associated himselfwith the Taliban, but instead, whether the nature and duration ofthat associationrenders him lawfully detained under the AUMF. The government contends thatthe petitioner is lawfully detained because he was deeply involved inthe Taliban's military operations throughout his tenure with the Taliban, had close ties to Mullah Omar and remained part ofthe Taliban at the time ofhis 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

During the merits hearing, the government raised a host ofadditional 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 ofHerat and commanded a Taliban garrison at Mazar-e-Sharifduring 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 ofthe 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 'partof' al Qaeda at the time ofhis capture")., , ;,',
. 

# r

.?
... ".,;:/**~,,~.,** ..**'~~.,/ ~**  \. ',
..' f 

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operations, had no meaningful relationships with senior Taliban leaders and had disassociated himselffrom the Taliban bythe time ofhis capture. The court considers these matters in turn. 

### 2. The Petitioner's Involvement With Talihan Military Operations Throughout this litigation, the petitioner's chiefcontention 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 hehad obtained military training and experience and possessed military responsibilities is inherently flawed and unreJiable. The petitioner also relies onthe statements ofexpert witnesses and former Taliban officials who claim that the petitionerwas 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 notpurposefully 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 connectionto 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 withthe Afghan mujahideen in the 1980s, and remained deeply involved in the Taliban's military operations until the time ofhis capture in early 2002. The court assesses this evidence in the following sections.


### a. ThePetitioner'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. Overthe next decade, they fought a protracted guerilla war against a loosely allied coalition ofAfghan mujahideen fighters and foreign fighters who hadtraveled to Afghanistan to wagejihadagainst the Soviets. PE 67 (RASHID, 

### TALIBAN, 

### supra) at 197-98.



### 25 UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR PUBLIC RELEASE 

## seeM"
In 1989, Sovietforces 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 ofcivil strife that the Taliban emerged, originating from madrassas in Afghanistan and Pakistan. See 

### GE 88 (KAMAL MATINUDDIN, THETALIBAN PHENOMENON (1999» at 21 ("The most widely circulated theory is that the leadership ofthe 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, Mghanrefugees based 

### in Baluchistan and North West Frontier Province (NWFP) had been encouraged tojointhe growing number ofradical 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 ofthe AfghanJihad, Mullah Mohammad Omar. PElIO'1f9. According to Ahmed Rashid,IS whose book Taliban 

### is acknowledged by both parties to be an authoritative account ofthe history ofthe Taliban, nearly 

### aU ofthe Talihan's seniorJeaders
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 ofthe Taliban and its supreme leader, had fought against the Soviets as part ofthe mujahideen faction led by Yunas Khalis and had attended various madrassas in Kandaharprovince. Id. 

### at 253. Mullah Mohammed Hassan, the Taliban's Foreign Minister, had attended a madrassa in Quetta, Pakistan and also fought under Yunas Khalis in the Afghan mujahideen. Jd 

### Mullah Arnir Khan Muttaqi,

IS Ahmed Rashid is ajoumalistwho has reported on Afghanistan for more than twenty years, first as a correspondent for the FarEastern Economic Review and, more recently, for the BBCOnline, the Washington Postand the InternationalHerald 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 ofthe 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 madrassanear Islamabad, Pakistan. 16 

### GE 48 at 253-54. Mullah Mohammed Abbas, the Taliban Health Minister, and Mullah lalaluddin Haqqani, MinisterofFrontierAffairs,
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 InteriorMinister and a member ofits Supreme Shura, fit this moldprecisely. More specifically, Rashid reports that the petitioner was a graduate ofthe 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 oftheTaliban 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 ofmost otherpurported experts and noted that Rashid's account ofthe history ofthe 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

Oar-ul Uloom HaQqania has been referred to in media reports as the "university of jihad," GE 68 (Noreen S. Ahmed-Ullah and Kim Barker, Schooledin Jihad, CHICAGOTRrBUNE, Nov. 28, 2004) at 3, and as "the breeding ground ofTaliban fundamentalism," GE 21 (Rory McCarthy, Dilemma

- Pakistan's Clerics PlotDownfall

### 0/ MilitaryRegime: Support/or US CouldSpark Hardline Uprising, THE GUARDIAN, Sept. 

### 18, 2001) at

### 2. The leader ofthe 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 majortraining ground for the Taliban leadership." GE 48 at 90. 

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witnesses have acknowledged the authoritativeness ofRashid'sreporting supports the reliability ofhis report that the petitioner fought against the Soviets with the Afghan mujahideen. The court also notes that Rashid's reporting onthe backgrounds ofother seniorTaliban leaders is independently corroborated byotherinformation inthe record. Forinstance, Rashid's report that Mullah Omarreceived a madrassa education in Kandahar and fought with theAfghan mujahideen faction led by Yunas Khalis, 

### GE 48 at

### 252, is corroboratedby 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 Sovietand Afghanistan communist government under the faction led by Yunas Khalis," 

### id 

### '42. Similarly, Rashid's report that Mullah Qalamuddin,the Taliban's Head ofReligious Police, was educated at the Dar-w UloomHaqqaniamadrassa is corroboratedby a September

### 2001 article aboutthe Dar-ul Uloom Haqqania madrassa in the The Guardian newspaper. GE 

### 21 at 

### 2 (reporting onan interview with Samiul Haq and listing the IaIiban's "firsthead ofthe religious police 

### Qalam Uddin" as a graduate ofHaq's Oar-ul Uloom madrassa). Iellingly, the petitionerhas identified no other instance in which Rashid has provided incorrect information about the background ofanyother seniorTaliban leader.I7 Indeed, much ofRashid's account ofthe petitioner'sbackground is independently corroborated byotherevidence in therecord. For instance, Rashid reports that the petitioner was born in Kandahar province, is a Ourrani Pashtun and is a member ofthe Popalzai tribe, 

### GE 48 at 253, all ofwhich 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 Thepetitionernotes that one mediareport states thatMullah Omarattended the Dar-ul Uloom madrassa, GE 68 at 2, which differs from Rashid's account,

### see GE 48 at 91. This inconsistency does notcall into question the reliability ofRashid's reporting, as the petitioner's own expert has corroborated Rashid's account ofMullah Omar's education at madrassas in Kandahar. PE 110, 40.

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### during his testimonythatthe petitionerhad attended the Dar-ul Uloom Haqqania madrassa and 

### was, at least for a time, a member ofthe Harakat Mujahideenparty ofMohammad 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 madrassa. GE 21 at 2. Moreover, although the petitionerhas given contradictory accounts ofhis 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 ofa short period of time at Camp Marof, near Kandahar, when [he] was in his teens. This camp, who[se] Commandant was Abdul Raziq, was aMujahadeen training facility where people were sent during the 

### AF/Soviet war." GE 45 

### at 1. 

### Later, during interrogation, the petitioneracknowledged 

### that "he traveled twice to [Afghanistan] tojointhejihad against the

.communists" and attended "amujahideen training camp in

### Marof' operated by Abdul Raziq,

though the petitionerdenied 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 petitionerhas admitted that he traveled to Afghanistan to train and fight with the mujahideen and that he participated injihad "for a few days" provides additional corroboration for Rashid's account ofthe petitioner's background.

IS The petitioner stated during a_interrogationthat he twice traveled to Afghanistan to fightjihad, but thathe did not train orfight 

### eithertime. GE 43 at 1. The petitionerprovided a different accountduring a_interrogation, in which he stated that he returned to Afghanistan from Pakistan 

### only afterthe withdrawal ofSoviet forces in 

### 1989. GE 

### 20 at 1.

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### SECH'f 

### The petitionerhas 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, hehas not explained how either factprecludes the possibility that he fought with the Afghan mujahideen orrose through its ranks. Likewise, although the petitioner objects by stating that Rashid has not identified the sources ofhis information regardingthe 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 thatthe petitionerhad "absolutely no military background," Mar. 31 Tr. at 119, the petitionerhas admitted thathe traveled to Afghanistan during the Soviet occupation to receive training and has acknowledged that he engaged injihad for aperiod of

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

fight with the Afghan mujahideen against the Soviets. That the petitionerfought 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 petitionerpossessed at least some military experience bythe time hejoinedthe 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.

Karzai's testimony aboutthe 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 ofTaliban Forces atMazar-e-Sharif i. 

### TheTaliban's Efforts to CaptureMazar-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 ofSoviet forces. By November 1994, Taliban forces had captured Kandahar and by February 1995, had consolidated their control over the Pashtun lands ofsouthern Afghanistan. PE 110, 11. They then moved west, conquering Afghanistan's western provinces, including Herat. Id. InAugust 1996, the Taliban pushed into lalalabad and in September, captured KabuL 

### Id , 12. By the winter of 1996, the Taliban controlled twenty-two ofAfghanistan's thirty-four provinces. PE 67 at 54. The only major city not under Taliban control was Mazar-e-Sharif, 

### a city nearthe northern border with Uzbekistan and the stronghold ofanti-Taliban General Rashid Dostum, whose Uzbek forces had insulated the city from the fighting sweeping through the rest ofAfghanistan. 

### 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 heavilyarmed Taliban troops under the command ofMullah Abdul Razaq rolled into Mazar-e-Sharif with little resistance,zo Id. Their occupation ofthe city was short-lived, however, as a counteroffensive by Uzbek and Hazara fighters pushed the Taliban out ofthe 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-Sharifhad, by that time, been largely taken
As discussed below, Mullah Razaq preceded the petitioner as 

### the Governor ofHerat. See infra Part rv.B.2.d. 

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### over by Hazara groups, General Dostum based his Uzbek forces in the nearby city of Sheberghan. ld 

### at 63. In July 1998, 

### the TaIiban commenced a

### third offensive to capture 

### the Mazarregion. GE 

### 91114. Taliban forces stationed in the western province ofHe rat swept towards Mazar-e-Sharif from the west, routing General Dostum's forces in Meymaneh on July 12, 1998, 

### and capturing General Dostum's headquarters 

### in Sheberghan on August I, 1998. 

### PE 67 at 72-73. These Taliban forces then annihilated the Hazara troops guarding the western road to Mazar-e-Sharif and entered the city on the morning ofAugust 8, 1998. Id 

### at 73. Rashid writes that once Taliban forces entered Mazar-e-Sharif, "[w]hatfollowed was another brutal massacre, genocidal in its ferocity, as the Taliban took revenge ontheir losses the previous year." PE 67 at 73; see also 

### GE 8 (Amnesty International News Service 171198, Afghanistan: Thousands o/CiviliansKilledFollowing Taleban Takeover o/Mazar-eSharif, 

### Sept. 3,1998) 

### at 1-2; 

### GE 9 

### (Dexter Filkins,Afghans ReportEthnic Massacre by Taliban, L.A. 

### TIMES, Sept. 18, 1998) 

### at 1. 

### On the first day ofthe occupation, Taliban forces swept through the 

### city in a "killing frenzy," indiscriminatelykilling women, children and other civilians. PE 67 

### at 73; GE 10 (Human Rights Watch Press Release, Afghanistan: The Massacre inMazar-lSharif, 

### Nov. 1, 1998) at 1. MulJah Abdul Manan Niazi, whom Karzai testified was one ofthe TaIiban commanders who led the 

### offensive on Mazar-e-Sharif. Mar. 31 

### Tr. at 116, 

### was appointed Governor ofMazar hours after its capture and delivered speeches at 

### mosques throughout the city inciting violence against Hazaras in retaliation for theirkilling ofTaliban soldiers the

### previous year,2' PE 67 

### at 74; 

### GE 12 

### (The Afghanistan Justice Project. CastingShadows: War Crimes and CrimesAgainstHumanity: 1978-2001 

### §7.2 (2005)) at 122. Human Rights Watch stated that
As discussed 

### below, the petitioner was 

### captured at the Pakistani home ofMullah 

### Niazi. See infra Part

### NA.

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"£tJhese speeches, given by the most senior Taliban official in Mazar at the time, clearly indicate that the killings and other attacks on Hazaras were not the actions ofrenegade Taliban forces but had the sanction ofthe Taliban authorities." GE 10 at 1. Over the following days, Niazi implemented a systematic program ofethnic cleansing, overseeing the segregation and massacre ofthousands ofHazara residents**ofMazar-e~Sharif.22** GE 11 (Michael Winchester, 

### Inside Story: Afghanistan Ethnic Cleansing, ASIAWEEK, Nov. 6, 

### 1998) at

### 3; PE 

### 67 at 

### 73-74. Rashid estimates that between 

### 6,000 to 

### 8,000 civilians were killed during the Taliban'snorthern campaigninJuly and August 

### 1998. PE 67 at 

### 74. ii. 

### ThePetitioner's Role in the September 1997 Assault on Mazar-e-Sharif Reliable evidence indicates that the petitionerwas a commander ofTaliban forces during the Taliban's failed September 

### 1997 assault onMazar-e-Sharif. One such piece ofevidence is a State Department cable dated September 

### 17, 1997, which reports on a discussion held earlierthat day between an unidentified U.S. poJitical officer and Tayyab Husseini, 

### a Taliban representative atthe Taliban-controlled Afghan embassy in Islamabad. GE 

### 2 at 

### 1. According to the cable, Husseini stated that Taliban forces, allied with local Pas[hJtuns, are poised to seize Mazar-i-Sharif city from the Northern Alliance in the "next several days." Smiling broadly, Husseini said KhairulJah Khairkhwa[], the Taliban commander in the North and their "Acting Minister of[the] Interior," has been [in] contact with Kandahar and told Taliban authorities there that "Taliban forces are in position to launch a final offensive on the city." However, Khairk[hwa] said he is waiting for reinforcements from Taliban bases in Kunduz and for further uprisings among northern [PJashtuns living near Mazar-i-Sharif before launching the planned assault.

Contrary to all injunctions ofIslam, which demands immediate burial, Niazi ordered that hundreds ofcorpses littering the streets be left where they had fallen. PE 11 at 3; GE 1 I at3.

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GE 2 (State Department FM, (Sept. 17, 1997») at 1. Husseini also stated that Taliban forces were receiving assistance from "pro-Taliban Hezb-i-lslami elements" attacking the city from the west. 

### ld Although the State Departmentcable contains multiple levels ofhearsay, 

### it possesses ample indices ofreliability. See id As an initial matter, the petitioner

### has not suggested that the cable inaccurately summarizes Husseini's statements. Indeed, the author ofthe cable appears to have taken great pains to provide a detailed account ofthe discussions between Husseini and the U.S. political officer, including whatpurport to bedirect quotations from Husseini. 

### ld at 1-3. There is also no disputethat Husseini was a political officer and a representative ofthe Taliban at the time ofthe September 17, 1997 meeting and that his statements were given voluntarily as part ofan official diplomatic exchange betweenthe Taliban and the United States. See Petr's Proposed Findings ofPact ,,37-39. Husseini not only identified thepetitioner as a commander ofTaliban forces, but also provided a detailed account ofthepetitioner's activities
as a commander, such as his strategic decision to wait for reinforcements before continuing his push towards Mazar-e-Sharif, and expressly identified the source ofhis account
- nameJy, reports sent from the field bythe petitioner to Taliban leaders in Kandahar. GE 2 at 1. Furthermore, many ofthe details contained in Husseini's account ofthe fighting around Mazar-e-Sharifare corroborated by other sources in the record. See GE 88 at 103-04 (reporting that Hizb-i-Islami forces assisted in the Taliban September 1997 assault on Mazar-e-Sharif); GE 48 at 229 (noting "heavy fighting again near Mazar" on September 18, 1997). The author ofthe cable remarks on theplausibility ofHusseini's account, noting that "Hussei(n]i's comments are no[t] surprising" and consistent with reports of"continued fighting around Mazar-i-Sharifon September 17." GE 2 at 1,3. (. 

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### SICM'f Indeed, otherthan Husseini'sidentification ofthe petitioner as a commander ofTaliban forces, the petitionerhas notchallenged any other aspects ofHusseini's account ofthe Taliban's September 1997 assault on Mazar-e-Shari£ Instead, the petitioner speculatesthat Husseini's account mighthave been motivated by a desire to "gainpolitical advantage" and argues thatthis possibilityrenders his statementswholly unreliable. Petr's Proposed Findings of**Fact~,-r** 38-39. Thepetitioner, however, has notoffered any explanation regarding what political advantage could conceivably have been gained by falsely identifyingthepetitioner as a commander ofthe Taliban forces. 

### See id. While speculation about Husseini's motivations might call into question the accuracy ofhis characterizations ofthe strength ofthe Taliban's forces and the imminence of their victory, the petitionerhas not attempted to explainhow the specter ofpolitical motivations casts doubt on his identification ofthepetitioner as a Taliban military commander. Moreover, Husseini's statements regarding the petitioner's involvement inthe September 1997 assault on Mazar-e-Sharifare corroborated by a separate account ofthat campaign authored byjournalistand diplomat Kamal Matinuddin. 

### See GE 88 at 1. In 

### The Taliban Phenomenon, Matinuddin writes that in September 1997, Truiban forces took control of the bypass running towards the river port of Hairatan on the Oxus, thus threatening Mazar-e-Shariffrom the rear. Omar had predicted that it would be only a matter of time before the Taliban scored further military victories, and he was not far wrong as, led by Mullah Khairullah Khairkhwa, they entered Mazar-e-Sharif a day later with the support of Majeed Bacha, Bashir Khan, and Jumma Khan Hamdar, all ofwhom belonged to the Hikmetyar faction ofHizb-e-Islami. GE 88 at 103-04. Although the petitioner suggests that Matinuddin's account does not independently corroborate the State Departmentcable because Matinuddin mayhave relied onthe same source cited in the State Department cable, the petitionerhas offered nothing to substantiate thattheory.

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See GE 88 at 1**03-04~** GE 

### 2 at 1. In fact, although Matinuddin and Husseini both identify the petitioner as a commanderofTaliban forces and note that Hizb-i-Islami fighters participated in the assault, the two accounts otherwise possess few overlapping details. 

### Compare GE 88 at 104 (identifying the specific Hizb-i-Islami leaders who participated in the Taliban's September 1997 assault, a detail not included inthe State Department cable) with GE 2 at I (providing information about tactical decisions and the locations offorces involved in the assault, details not present in Matinuddin's account). The reliability ofMatinuddin's account is further supported by the fact that the author is
an experienced military officer, diplomat23 andjournalistwho has edited and written numerous works onAfghanistan. GE 88 at 1. Although the petitionercomplainsthat Matinuddin lacked firsthand knowledge ofthe events at issue and does not identify the sources on which hebased his account, the petitioner's own subject matter expert lists Matinuddin's The Taliban 

### Phenomenon as one ofthe most significant "major scholarly works" on the rise ofthe Taliban.24 PE lilA'

### 5. Indeed, the petitioner can only point to minor purported inconsistencies between Matinuddin's account and Rashid's account ofthe TaIiban's September 1997 offensive,25 and does not challenge any core aspect ofMat in

uddin's reporting, otherthan his identification ofthe

23 Matinuddin represented Pakistan in several diplomatic capacities, including as its ambassadorto Thailand. GE 88 at 1. 24 In fact, Williams's insistence thatthe petitioner could not have served as a Taliban commander during any ofthe assaults on Mazar-e-Sharifstems from his erroneous beJiefthatthe petitioner is not mentioned as a military commander in any these "major scholarly works." PE I 1]

# ,9 ("Simply put, had there been a Mullah Khairkhwa leadingtroops on the northern front from 1997 to 1998[,] one ofthese scholars
... would have recorded his name somewhere."). The petitioner notes that according to Matinuddin, the Taliban captured the town ofTashkurgan on September 9, 1997, GE 88 at 103-04, while Rashid reports that the Taliban captured the same town on September 7, 1997, PE 67 at 62. This minor inconsistency does not, in the court's view, significantly undennine the reliabiJity ofeither account. Indeed, Matinuddin's and Rashid's accounts ofthe September 1997 assault on Mazar-e-Sharifare highly consistent with one another. See GE 88 at 103-04; PE 67 at 62-63, 229. 

### C f 

# f; r**~";:** 

# "r vLI
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.._ .J..l
...

### UNCLASSIFIEDIIFOR PUBLIC RELEASE



### petitioner as a commander ofTaliban forces. Based on these considerations, the court concludes that Matinuddin's and Husseini's highly consistent accounts ofthe September 1997 assault on Mazar-e-Sharifare accurate**~nd** 

### reliable evidence ofthe petitioner's role as a Taliban commander, Furthermore, as discussed below, the petitioner's role as a commander ofTaliban forces in September 1997 is also corroborated by the statements ofa former senior officer in the Afghan mujahideen, who expressly identified the petitioner as a former Taliban military commander, 

### GE 22 at 1; 

### infra Part IV.B.2.b.iii. The court also notes that the petitioner's role as a commander ofTaliban forces in September 1997 is consistent with the fact that he possessed military experience from his participation in the Afghanjihad, 

### see supra Part IV.B.2.a, as well as the evidence indicating that the petitioner participated in the August 1998 assault on Mazar-e-Sharif,


### see infra Part IV,B.2.b.iiL Thus, the weight ofthe evidence supports the conclusion 

### that the petitioner was a military commanderwho led Taliban forces during the Taliban's assault on Mazar-e-Sharifin September 1997. iii. 

### The Petitioner's Role in the August 1998 Conquest ofMazar-e-Sharif Numerous sources have also reported that after the Taliban's failed September 1997 assault on Mazar-e-Sharif, the petitionerremained a military commander, directing Taliban fighters during the Taliban's northern offensive in the summer of 1998. One ofthe earliest of these sources is an article published by a western media outlet on July 13, 1998, which reported
on the Taliban's fresh bid to seize the northern territories remaining outside their control. 

### GE 4 (Stefan Smith, 

### Taliban Make MajorAdvance inNorthernAfghanistan, AGENCE FRANCEPRESSE, July 13, 1998) at 1. The article, which draws from a wide-variety ofsources, including western aid workers, Taliban officials and Radio Shariat (the Taliban-run radio station), reported that the

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Taliban had captured Meymaneh, a cityto the southwestofMazar-e-Sharif, and thatthis victory yielded the Taliban 100 enemytanks and 800 enemy fighters. 

### ld at 1-2. The article further reported thatTaliban forces werepoised to push northward toward the cities ofSherberghan and Mazar-e-Sharif. 

### ld According the 

### article, "Taliban officials were tight-lipped overthe militia's plans, and said the student movement was busy consolidatingtheir positions, with battle-veteran and interiorminister Mullah Khairullah Khairkhwa heading the operation." 

### fd at2 (emphasis added).ThisJuly 13,1998 report is consistent with Rashid's account that onJuly 12, 1998, Taliban forces captured Meymanehand seized" 

### 100 tanks and vehicles and some 

### 800 Uzbek soldiers." GE 48 at 72. The report is also consistent with a July 12, 1998 news report stating that Taliban soldiers had conquered the city ofMeymaneh and thatMullah Omarhad appointed "(Interiorminister) Mullah Khairullah Khairkhwa to oversee the captured areas and to ensure the hundreds ofprisonerstaken are well treated.,,26 

### GE 3 (Taleban Claim Sweep of Afghanistan's Faryab Province, HONG KONG AGENCE FRANCEPRESSE, July 12, 1998) at 2. Although the latter report does not expressly statethat the petitioner was a TaHban commander, it corroborates that the petitioner was at Meymaneh at the time ofthe Taliban conquest ofthat city andthat Mullah Omar had placed the petitionerin a position ofleadershipduring the summer 1998 northern offensive. 

### fd The July 

### 13. 1998 report identifyingthe petitioner as a Taliban commander at Meymaneh is also corroboratedby media accounts reporting onthe Taliban's subsequent push from Meymaneh to**Mazar-e~Sharif** On August 3, 1998,AgenceFrance Presse reported that Taliban forces advancing on Mazar-e·Shariffrom the west had captured the city ofSheberghan. the
Rashid reports that the majority ofUzbek soldiers captured following the battle for Meymaneh were massacred bythe Taliban. GE 48 at 72.

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stronghold ofGeneral Dostum lyingbetween Meymaneh and Mazar-e-Sharif. GE 5 (Taliban Open SecondFront in Battle forNorth Afghanistan, HONG KONG AGENCE FRANCE PRESSE, Aug. 3, 1998) at 1; see also GE48 at 72, 261 (reporting that Taliban forces conquered Sheberghan on August 1, 1998). The August 3, 1998 report cited military sources who stated thatthe assault on Sheberghanhad been launched from Meymaneh, which provided "aninvaluable staging and supply post for the latest attack:' GE 5 at 2; see also GE 4 at 2 (reporting that in mid-July, the petitionerwas in Meymaneh consolidatinghis forces inpreparation for a pushtoward Mazar-eSharif). The report further stated that this assault was "ledby interior ministerMullah Khairullah Khairkhwa." GE 5 at2. These accounts fmd further corroboration in an August 5, 1998 radio report from the Moscow Radio Rossii Network, a media outlet with correspondents stationed 

### in the region. GE 

### 6(Moscow ReportsAnti-Taleban Counter-Offensive Under Way, Moscow RADIO Rossn NETWORK, Aug. 5, 1998) at 1-2. The radio report explained that Taliban forces were advancing towards Mazar-e-Shariffrom the city ofSheberghanto the west. 

### Id at 1. The report further stated that Khairollah Khairkhwa, interior minister in the Taleban administration, who was advancing toward the town from the west, has halted his troops' advance. He has ordered that the weapons abandoned in large quantities by the alliance soldiers should be collected and the local population disarmed. Explaining his order, Khairkhwa said: We must assure ourselves ofareliable and calm rear. 

### ld The court notes thatthe actions attributed to the petitioner inthis radio report are highly consistentwith the descriptions ofthe petitioner's actions inboth the previously-discussed State Department cable and the July 13, 1998 report. See GE 2 at 1; GE 4 at 1. In each ofthese instances, thepetitioner is credited with choosing to make strategic delays inhis advance

, 

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towards Mazar-e-Sharif. See GE 6 at 1; GE 2 at 1; GE4 at 1. The statements attributed to the petitioner in the radio report are also consistent with the petitioner'stestimonybefore the ARB, during which he acknowledged overseeing the Taliban's efforts to disarm the citizens ofnorthem Afghanistanduring the Taliban's northern offensive.27 GE 71 at 7. Moreover, these accounts ofthe petitioner'srole in the capture ofMeymaneh and Sheberghan are consistent with and corroborated by yet another report regarding the Taliban's conquest ofMazar-e-SharifonAugust 8, 1998. On November 6, 1998,Asiaweek, a western
news magazine, published an article entitled, "Inside Story: Afghanistan Ethnic Cleansing." GE II at 1. Drawing on a variety ofsources, including interviews with eyewitnesses, the article described the systematic massacre ofthe Shiite population ofMazar-e-Shariffollowing the Taliban's conquest ofthat city. See generally id The article specifically noted that "laurels for the conquest ofAug. 8 went to Khairullah Khairkhwah, a Ta1iban mullah who whennotbusy making war doubles as theregime's 'interior minister.'" Jd at 3. Although the petitioner contends thatthe author oftheAsiaweekarticle does not specify the sources on which he based hisreporting, the article expressly states that the account is drawn from "interviews with survivors
... and documents obtained from international aid organizations." Jd at 

### 1. Furthermore, the only aspect oftheAsiaweekarticle thatthe petitioner has challenged is the portion ofthe article stating that the petitionerreceived credit for the conquest ofMazar-e-Sharif. Indeed, counsel for the petitioner acknowledged that this article
was a "fairly reliable document." Mar. 28 Tr. at 81, 92. Finally, theAsiaweekaccount is consistent with the overall narrative set forth in the different news reports discussed to this point, Even ifthecourt were to creditthe petitioner's assertion that his role in the Taliban's northern offensive was limited to disanning the local populations conquered by TaJiban forces, see GE 3 at 2; GE 71 at 4, this fact would demonstrate that the petitioner

### was entrusted with significant military-supportresponsibilities during atime ofongoing conflict and undermine the petitioner's contention that he was merely a civilian bureaucratwith no involvement in any military matters.

### vLbd~t, 

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which document the petitioner'srole as a commander ofTaliban forces that advanced toward Mazar-e-Shariffrom the west, conquering the cities ofMeymaneh and Sheberghan along the way, and entered the city onAugust 8, 1998. 

### ld. The petitioner contends that these media reports are unreliable because they rely on information disseminated by Radio Shariat, a Taliban-controlled radio station. According to Karzai, Radio Shariat was merely a mouthpiece for the Taliban government that "didnothing but distribute propaganda." Mar. 31 Tr. at 152. The purpose ofRadio Shariat reports "wasmostly to boost the morale of[TalibanJ foot soldiers, mostly totell individuals that we're going to go prepare to take overthe area." 

### Id. at 117. Because Radio Shariat is not a reliable source of information, the petitioner argues, aU ofthe articles reporting on the petitioner'srole inthe Taliban's northern offensive of 1998 are also unreliable. The petitioner's arguments are unpersuasive. As an initial matter, not every media report discussed above relied on informationprovided by Radio Shariat. The portion ofthe July 13, 1998 article describing the petitioner's role as the head offorces at Meymaneh appears to have been based on the reporter's conversations with Taliban officials identified inthe article, such as Mawlawi Abdurrahman and Mullah Abdul Raj. GE 4 at 1-2. Likewise, there is nothing to indicate that the Moscow Radio Rossii report orthe

### Asiaweekarticle relied onRadio Shariat reports. 

### See generally GE 6; GE 11. More fundamentally, even ifthe principal purpose ofRadio Shariat was to distribute propaganda to boost the morale ofTaliban troops, the petitionerhas offered no explanation for why the Taliban would have repeatedly and deliberately misidentified him as a commander of the Taliban offensive. Thepetitioner'stheory

- that all ofthese reports were disseminated as part ofa prolonged conspiracy to falsely identify a civilian bureaucrat with no military



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experience as a leader ofTaliban forces to boost the morale offighters

- is too farfetched, speculative and unexplained to be credited by the court. The petitioner also conjectures that once he was falsely identified as a military commander in one article, this label was picked up and repeated in subsequentnews reports without independent corroboration Ofverification. This theory, however, isnot supportedbythe record. The articles discussed above report on the petitioner's activities at particularpoints duringthe summer 1998 offensive. GE 4 at 2; GE 5 at 2; GE 6 at 1; GE 11 at4. The petitioner does not explain how, 

### tor instance, his reported decision to halt his troops' advance to collect weapons from the local populations, GE 6 at I, could have been propagated from areport that weeks before, he had been consolidating Taliban forces at Meymaneh, GE 4 at 2. Likewise, there is no evidence that theAsiaweekarticle reporting thatthepetitionerreceived "laurels" for the capture ofMazar-e-Sharifwas based onany ofthe previously discussed articles, which all predatethe August 8, 1998 conquest ofMazar-e-Sharif. See generally GE 3, 4, 5,6. Finally, the court notes that all ofthese media accounts ofthe petitioner's role as a Taliban commanderduring the summer 1998 northern offensive

- as well as the reports ofthe petitioner'S role as a Taliban commander in September 1997

- are corroborated 

### by the statements ofa former Afghan mujahideen commander, Mohammad Akhtiar (ISN 1036). See GE 22 (ISN 1036 SIR (Dec, 27, 2005» at 1-2. Akhtiar was a former colonel orlieutenant colonel in the Afghan mujahideenduring the Soviet occupation. 

### Id at 1. When asked by GTMO interrogators whether he knew ofany otherdetainees with ties to the Taliban or al-Qaida, one ofthe individualsthat Akhtiaridentified was the petitioner. 

### Id Afternoting that the petitionerhad been the Taliban Governor ofHerat, Akhtiar stated that "KhiruIlah once held the position of



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division commander, commanderofa military corps, was the Governor ofMazar-e-Sharifand in particular was a sub-commander/trustedperson ofMullah Omar." Id. Thepetitioner does not dispute the government's contention that Akhtiar was a senior officer within the Afghan mujahideen and was in a position to knowthe structure ofthe Taliban's armed forces. Noris there any evidence that Akhtiar was coerced into making his statements about the petitioner; to the contrary, the interrogation report states that "the direct approach orchestrated with the pride and ego up (proper military protocol) and love ofcountry
were and have been the approaches used" by interrogators to elicit informationfrom Akhtiar. 

### Id. The interrogation report notes that Akhtiar had been deemed truthful and cooperative. ld. Although Akhtiarincorrectly identified the petitioner as the "Governor ofMazar-eSharif," 

### id. at 1, this statement does not dramatically alter the court's assessment ofAkhtiar's reliability, as 

### it is undisputed that the petitionerpossessed administrative authority over territories captured during the Taliban'snorthern offensive in the summer of 1998, including Mazar-e-Sharif. See, e.g., PE 36, Att. Bat 1(interview statement offormer Taliban official Abdul Salam Rocketi, in which Rocketi states that the petitioner traveled to Mazar-e-Sharifafter the Taliban's conquest ofthe city to assist in administrative matters); PE 70 at 3 (petitioner's ARB testimony acknowledging thathe went to Mazar-e-Sharifto assist the Taliban forces that captured the city); GE 15 (Taleban inNorth Tell UNHuman Rights Guaranleed, MAZAR-E SHARIFVOICE OF SHARI'AH RADIO, Aug. 8, 1998) at I (reporting that "[t]he acting minister of internal affairs and coordinator ofthe northern provinces, esteemed Mowlawi Khayrollah Khairkhwa, met a delegation ofthe UNCommission for 

### Human Rights"). The petitioner also attacks the reliability ofAkhtiar's statements by noting that the interrogation report indicates that Akhtiar was to be shown a picture ofthepetitionerat his next interrogation, GE 22 at 2, but there

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is no indication that such an identification evertook place. Yet Akhtiar stated during the interrogation that his statements concerned "the Herat province Taliban Governor," 

### id at 1, and there is no dispute thatthe petitioner was the Governor ofHerat, GE 91 

## 1 17. Thus, there is no uncertainty that Akhtiar was referring to the petitionerin his statements. In assessing the reliability ofAkhtiar's statements, the court has considered the fact that Akhtiardoes not expressly identifY the source ofhis information about the petitioner, does not provide detailed allegations aboutthe petitioner, 

### see GE 22 at 1, and had requested psychological treatment around the time he made these statements, PE 72 (medical records for ISN 1036) at 1­ 4. Nonetheless, in light ofthe corroboration between Akhtiar's statements and the mediareports addressing the petitioner's role as a Taliban commander, the classified State Department cable reporting on thepetitioner's role as a military commander, the interrogator's assessments of Akhtiar's truthfulness and the lack ofany evidence ofundue coercion, the court concludes that Akhtiar's statements are sufficiently reliable andprovide additional support for the government's allegation that the petitioner served as a Taliban military commander. To rebut this evidence, the petitionerrelies heavily ona March 2002 interrogation report in which the interrogator creditsthe petitioner's claim that he was nevera military commander. PE 25 (ISN 579 SIR (Mar. 14,2002») at 1. The court notes that the interrogator's conclusions regarding thepetitioner appearto havebeen influenced in significant part

### by his assessment of thepetitioner's demeanor

- namely, that the petitioner
no signs ofdeception. 

### See id This assessment was not, however, shared by other interrogators who questioned the petitioner.

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that when the petitioneranswers a question, "itwill be minimal at best and require extensive follow up"). Furthermore, although the interrogation report states that unidentified "local sources" corroborate the petitioner'sclaim that he was nota military commander at any battle for Mazare-Sharif, PE 25 at 1-2, as previouslydiscussed, thepetitionerhas beenidentified as such a commander in a variety ofsources, including a classified State Department cable, a publication that the petitioner's experthas described as a major scholarly work, the statements ofa senior Afghan mujahideen commander and innumerous contemporaneous mediareports. In the court's view, this single interrogationreport does not, by itselforin conjunction with the otherevidence offered by the petitioner, outweigh the evidence establishing the petitioner's role as a military commander. The petitioner also relies on statements by two former Taliban officials, Mullah Abdul SalamRocketi28 and Wakil Akhmad Motawakil,29 to support his contention that he was never a military leader. In interviews given to the petitioner's investigator, both men stated thatthe petitioner was a civilian administrator and nota military commander. Seegenerally PE 36, Att.

28 Rockett is a fonner Taliban military commander who led Taliban forces during the U.S.-led invasion ofAfghanistan. GE 27 (IIR 6 931 002002) at2; PE43, Att. B (transcript ofinterview with Rocketi) at4. Hehas since reconciled with the currentAfghan govemment and is now a member oftheAfghan parliament. Mar. 31 Tr. at 109. 29 Motawakil was fonnerly an executive assistantto Mullah Omar, who later appointed him to serve as the Taliban's Foreign Minister. ld. at 108; PE 36, Att. B (transcript ofinterview with Motawakil) at 1. After being arrested and spendingthree years in Bagram prison, Motawakil was released and currently works with Karzai's Centre for Conflict and Peace Studies. Mar. 3 I Tr. at 108. 

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### B; PE 43, Att. 

### B. Rocketi stated that although the petitioner was in Mazar-e-Sharifin the
summerof 1998, he traveled there "on a civil duty" and "notas part

### ofthe military team when Taliban [forces] took overthe city," PE 36, Att. B at 

### 1. Likewise, Motawakil stated thatthe petitionerwas not a military official and had always worked as a civilian administrator. PE 43, Att. B 

### at 4. In the court's view, these statements do not, standing alone or in conjunction with the other evidence offered by the petitioner, overcome the weight ofthe evidence establishing the petitioner's military role. Unlike the news reports, scholarly works and other sources previously discussed, Rocketi and Motawakil provided their statements on the petitioner's behalfexpressly for use in this litigation. See generally

### PE 36; PE 43. Karzai himselfindicated that Rocketi had
a close relationship with the petitioner, having served as a corps commander in Herat during the petitioner's tenure as the Governor ofHerat. Mar. 31 Tr. at 87 (counting Rocketi among the individuals who had "daily and regular contacts with Mullah Khairkhwa"). Similarly, Karzai testified that Motawakil is "extremely interested in detainee affairs" and works with Karzai's Centre for Conflict and Peace Studies, which has acknowledged that it has 

### an interest in seeking the petitioner's release. See 

### Mar. 31 Tr. at 125. The court also notes that Rocketi and Motawakil provide only broad statements aboutthe petitioner's role within the Taliban and do not specify the bases for their assertions aboutthe petitioner's activities in Mazar-e-Sharif. See 

### PE 36, Att. 

### B at 1-2; PE 43, Att. Bat4-6. These statements stand in stark contrast to the detailed accounts contained in the State Department cable and the media reports addressing the petitioner's role as a military commander, which contain contemporaneous accounts ofthe petitioner's activities created long before the

46 UNCLASSIFIEDIIFOR PUBLIC RELEASE I ,UNCLASSIFIEDIIFOR PUBLIC RELEASE SKCIY!;i' petitioner's apprehension and years before the commencement ofthis litigation. See generally GE 2-6, I 1,88. Similarconsiderations limit the weight that the court affords Karzai's testimony regarding the petitioner's roles within the Taliban. Although Karzai testified that thepetitioner
was never a Taliban military commander, Mar. 

### 31 Tr. at 

### 115, 119, his testimony does not independently corroborate the statements ofRocketi and Motawakil, as Karzai acknowledged that he based his conclusions about the petitionerprimarily on conversations he had with individuals associated with the petitioner, 

### id. at 85-88, including Rocketi, 

### id at 87, and, presumably, Motawakil, 

### id 

### at 88,109. Furthermore, Karzai candidly acknowledged that he and his organization, which is devoted to furthering the peace and stability ofAfghanistan, have 

### an independent desire to see the petitionerreleased, testifying that 

### Mullah Khairkhwa is one ofthe individuals who has quite a lot ofrespect within the Taliban and from so many different communities. 

### His release couldhave a significant impact on the peace process that exists in Afghanistan, particularly in terms ofnational security and particularly in terms of what he can bring to the table. Many of the senior people still hold him in very high esteem, in high regards, so releasing him would make a very serious statement not only in terms ofthepeaceprocess but also about what the United States represents. 

### Mar. 31 Tr. at 125. Thus, Karzai's comments about the petitioner appear to have been motivated by policy considerations unrelated to the evidence at issuehere. Although there can be no doubt about the nobility and importance ofthe cause championed by 

### Karzai and his organization, considerations about the wisdom and utility ofreleasing the petitioner, which motivated Karzai's testimony, are matters for the political branches beyond thepurview ofthis court. See supraPart IV.A. Additional considerations also lead the court to question Karzai's conclusions about the petitioner. Forinstance, Karzai testified that the petitioner could nothave been a military

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commander during the conquest ofMazar-e-Sharifbecause Ialiban forces were led byMullah Faisel, chiefofthe army for the Taliban, and later by Mullah Dadullah and Mullah Niazi. Mar. 31 Ir. at 115-16. Yet according to Karzai, the Taliban assault onMazar-e-Sharifinvolved tens ofthousands ofsoldiers, id. at 119, a fact that would suggest thatthe Ialibanmust have had multiple commanders leading its forces, 

### see, e.g., GE 48 at 100-01 (listing various Ialiban officials who acted as commanders during the assaults on Mazar-e-Sharif). The fact that the petitioner was not the only or most seniorTaliban commander involved inthe operation does not
mean that he could not have led Taliban fighters during these engagements. Karzai also testified thatthe petitioner could not have served as a commander during the conquest ofMazar-e-Sharif"because he has absolutely no military background, never fought in a battle, [and] was religiously educated." Mar. 31 Ir. at 119. Yet, as previously discussed, the petitioner did possess priormilitary experience, having fought with the Afghan mujahideen during the Soviet occupation. 

### See supra Part IV.B.2.a. Furthermore, the fact that the petitioner
was "religiously educated" provides little support for Karzai's conclusion; as previously discussed, most ofthe senior leaders oftbe Taliban, including Mullah Omar, had received religious education in madrassas,

### see GE 48 at 252-55; GE 88 at 21) and, as Karzai himself acknowledged inbis declaration, most ofthe Taliban's foot soldiers were recruited from'radical madrassas, PE 110**~** 9. Finally, the court notes that the statements ofKarzai, Rocketi and Motawakil all appearto draw onthe presumption that there existed within the Taliban a strict divisionbetween military and civilian personneL 

### See Mar. 31 Tr. at 118-19 (Karzai's testimony that military and civilian responsibilities were distinct); 

### id at 149 (Karzai's testimony thatthere was no overlap between civilian and military chains ofcommand); PE 36, Att. B at 1 (Rocketi's testimony that theUNCLASSIFIEDIIFOR PUBLIC RELEASE

petitioner "was a civilian person, not a military commander"); PE 43, Att. B at 5 (MotawakiI's statementthat "[wJe have a structure in Afghanistan that military belongsto Ministry ofDefense. But [the petitioner] wasthe interior minister, governor, a spokesman."). This presumption, however, contradicts the weight ofthe evidenceregarding the structure ofthe Taliban government. Forinstance, one scholar notes that 

### [0Jne ofthe most remarkable characteristics ofthe Taliban leadership is that top government officials often switch from the battlefield to the ministry and back again. each time following the orders from Mullah Omar. In one sense, this produces remarkable flexibility among the Taliban hierarchy as they all act as both administrators and military commanders. GE47 (Nasreen Ghufran, The Taliban andthe Civil War Entanglement inAfghanistan, 41 ASIAN SURV., no. 3, at462) at474. This observation is echoed by Rashid, who writes: Several members ofthe military Shura are also acting ministers, creating even greater chaos in the Kabul administration. Thus Mullah Mohammed Abbas, the Health Minister, was the second-in-command ofthe Taliban expeditionary force trapped inthe north after the 1997 Mazardefeat. He was then pulled out and sent to Herat to organize another offensive and finally returned to hisjob as Minister six months later . . " Mullah Ehsanullah Ehsan, the Governor of the State Bank[,J commanded an elite force of some 1,000 Kandaharis, ensuring his financial job received little attention before he was killed in Mazar in 1997. Mullah Abdul Razaq, Governor of Herat, who was captured in Mazar in 1997 and later freed, has been leading military offensives all over the country since 1994. Almost all ofthe members ofthe Kandahar and Kabul Shura, except for those with physical disabilities, have acted as military commanders at some time orthe other. GE 48 at 100-01; 

### see also GE 88 at 100 (listing Taliban ministers captured during the Northern Alliance's May 1997 counteroffensive in Mazar-e-Sharif); GE 5 at2 (reporting that in early August 1998, Talibantroops "led by information and culture ministerand hardened fighter MullahAmir Khan Muttaqi

- had broken through a frontline around 100 kilometers (62 miles) east ofMazar-i-Sharifand were continuing their advance"). 

## Co 1°" ,"\. ,oof'**~ 'v.~)** **1~, ';~**  ....**~.'** f" 49 UNCLASSIFIEDIIFOR PUBLIC RELEASE

, 

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These sources indicatethat senior Taliban officialspossessed bothmilitary and civilian responsibilities and that many Taliban officials with civilian titles functioned as military commanders during the Taliban's various assaults on Mazar-e-Sharif. See GE 5 at 2; GE 48 at 100-01. The court credits these reports, which identify specific Taliban leaders who functioned
as dual military and civilian officials, overthe broad assertions ofKarzai, Rocketi and Motawakil, and finds that they provide additional support for the conclusion that the petitioner possessed military responsibilities whilehe held the post ofActing Interior Minster. See GE 11 at 3 ("Laurels for the conquest ofAug. 8 went to Khairullah Khairkhwah, a Talibanmullah who when not busy making wardoubles as the regime's 'interiorminister.'''). 

### iv. Summary ofthe Evidence Regardingthe Petitioner's Role at Mazar-e-Sharif

In swnmary, the weight ofthe evidence supports the government's contentionthat the petitioner served as a military commanderduring the Taliban's assaults on Mazar-e-Sharifin September 1997 and the summer of 1998. It is far from clearthat these findings, standing alone, would establish the lawfulness ofthe petitioner's detention. Nonetheless, together withthe evidence ofthe petitioner's involvement with the Afghan mujahideen, see supraPart IV.B.2.a, and the petitioner's membership on the TaIiban's Supreme Shura, see infra Part IV.B.2.c, they undermine thepetitioner's claim thathe was merely a civilian official shielded from the Taliban'smilitary affairs and support the notion, as elaborated in the following sections, that the petitioner remained integrally involved in the Taliban's military forces before and afterthe U.s.­ led invasion ofAfghanistan.


### c. ThePetitioner's Position on the Taliban's Supreme Shura As the Taliban rose topower, they instituted a ruling structure organized in three

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### Commander ofthe Faithful). Mullah Omar. 

### Id Below Mullah Omar was the ten-member Supreme Shura. which was based in Kandahar. reported directly to Mullah Omarand, according to Karzai, was ''It]hehighest decision making body ofthe Taliban." Id; 

### accordGE 48 at 

### 250. Subordinate to the Supreme Shura were two sub-councils, the Military Shura and the Kabul Shura. PE 

### 110"19,21. Ample evidence establishes that the petitioner served as a member ofthe Taliban's Supreme Shura. GE 48 at 

### 250; GE 88 at 44; Mar. 31 Tr. at 135. It is equally clear that the Supreme Shura possessed authority over military matters. Karzai noted that the Military Shura, a body "in charge ofdevising strategies and implementing tactical decisions," reported to the Supreme Shura. PE 

### 110,21. The Kabul Shura, whose responsibilities included "the Kabul front against the Northern Alliance," also reported to the Supreme Shura. 

### Id, 22 (noting that "(i]mportant issues" faced bythe Kabul Shura "were conveyed tothe Supreme Shura for decisions to be made"). Indeed, Karzai stated that "[i]n addition to the I 0 permanent members, [Supreme] Shurameetings a1so involved military commanders, tribal leaders" and others. 

### ld, 

### 20. The petitioner notes that after 1996, governmental power was concentrated in the hands ofMullah Omar, who held ultimate decision-making authority over all matters. GE 48 at 

### 102; PE 

### 110, 18. Nonetheless, even afterthe Supreme Shura's decision-making authority waned, it continued to have a "consultative function." PE 110 , 18. It

### is therefore unsurprisingthat, according to Rashid, "[aJlmost all ofthe members ofthe Kandahar and Kabul Shura, except for those with physical disabilities, have acted as military commanders at some time orthe other." GE 48 at 100-01.



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### 8El!MT The fact that the petitioner was appointed to serve on the Supreme Shura, which reported directly to Mul1ah Omar, possessed responsibility over military matters and was comprised almost exclusively ofmilitary commanders, cuts against the petitioner's assertion thathe was a civilian bureaucrat sequestered from the Taliban's military matters. The petitioner'smembership in the Supreme Shura is also consistent with the evidence that the petitioner obtained military experience with the Afghan mujahideen, led Taliban forces during the Taliban's northern offensives in 1997 and 1998 and, as discussed below, continued to wield military responsibilities through the U.S.-led invasion ofAfghanistan. d. ThePetitioner's MilitaryResponsibilities as Governor ofHerat LeadingUp to Operation EnduringFreedom 

### On October 27, 1999, Mullah Omar appointed the petitionerto serve as Governor of Herat, apostthat he held at the time ofthe U.S.-led invasion in October 2001. GE 91**~** 

### 17; GE 43 at 2. The petitionerhas stated that as Governor ofHerat, he was a mere civilian administrator, collecting taxes, distributing revenues to the Taliban's Minister ofFinance and resolving local disputes, GE 71 at 5; PE 12 (ISN 579 MFR (May 30, 2002» at I, and maintains that he had no involvement with any military matters, GE 70 at 2; PE 12 at 1. 

### The evidence does not support the petitioner's assertions. The court notes that in arecent statement on its "successful administrative poHcy," describing the structure, positions and policies ofa prospective Taliban government, the Taliban explained that each province of Afghanistan "is an independent unit with a commander called the Governor" who is "directly responsible for the Supreme Command ofthatprovince and directs its 

### military, civilian, fmancial and legal affairs." See 

### GE 49 (Ikram Maiwandi, The Islamic Emirate of Afghanistan andIts SuccessfulAdministrative Policy, 

### AL-SOMOODMAGAZINE, Jan. 27, 201 I) at 2. Thus, under the

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__ I •

### UNCLASSIFIEDIIFOR PUBLIC RELEASE SF.iCHT 

### Taliban's model for governance, the governor ofaprovince serves as its highest civilian and military authority. 

### See id. This governance model is consistent with the fact that nearly all senior Taliban leaders held both civilian and military positions, 

### see, e.g., GE 48 at 100-0I, as well as the fact that the individual who preceded the petitioner as Governor ofHerat, Mullah Abdul Razaq, was a senior military commander who was captured at Mazar-e-Sharifin 1997 and, after his release, led military offensives all over the country, GE 48 at 100; GE 88 at 100. The facts support the notion that the petitionerhad both military and civilian responsibilities as the Governor ofHerat. Indeed, since his capture by Pakistani authorities in early 2002, thepetitionerhas displayed a level ofdetailed knowledge about military installations in Herat that would suggest he was no mere tax 

### collector. For example, during one interrogation, the petitioner stated that the Taliban's 2 largest divisions were located in the region ofHerat. One ofthe divisions w[asJ located in 4-5 

### km East ofthe Governors Office Building in Herat. This division consisted mainly ofequipment that was left behindby the Russians. Approx. 30-40 tanks, (some not operational), all types of artillery, weaponry, "lots" of shoulder rockets displayed on the tarmac[] for everyone to see how strong the Taliban was. GE 46 (ISN 579 MFR (Sept. 25, 2003)) at 1. According to the petitioner, this division possessed threejets, one cargo plane and two helicopters and was commanded by Abdul Salam Rocketi. 

### Id. at 1-2. The petitioner also stated that the other Taliban division was located atthe Sheendand Airbase and was commanded by Peer Aagha. 

### Id. at 2. The petitioner explained that "this division had the same type of equipment as the first division
... and would not go into great detail otherthan saying the Sheendand Divisionhad an airstrip." 

### [d. The petitioner further noted that "the Taliban Divisions
are not the same as the waywe (U.S. Army) have ourdivision set.uplestablished" and that all of the trainers for these divisions were Taliban commanders who had served in previous wars. fd



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In other interrogations, the petitionerhas described the following military facilities located in Herat:
• Qoli Urdu: The petitioner has described Qoli Urdu as "a large, run-down installation, north ofHerat." GE 43 at 2; see also GE 45 at 1 (interrogation report in which the petitioner describes Qoli Urdu as "a very big military installation just north ofHerat"). The petitioner has explained that his deputy, Abdul Hanan, renovated part ofthis facility with funding from Mullah Omar. PE 30 (UR 6 034 0898 02) at4.

• Qoai Char ("Force 4"): The petitioner stated that "an installation called Force 4 had 30 to 40 operational, Soviet-era tanks and 100 broken tanks. Force 4 is located west ofHerat towards the Iranian border." GE 43 at 2; see also GE 45 at 1 (interrogation report in which the petitioner identified "Qoai #4
. . . in the western part of stationed


# •

The petitioner also possessed detailed knowledge about the locations ofweapons caches and the capabilities ofdifferent missile systems. For instance, in an interrogation report dated May 26, 2002, the petitionerprovided a thorough account ofthe acquisition, maintenance, locations and capabilities ofthe Taliban's Stinger missile inventory: From 1996 to 2001, [Mullah] Ghazi handled the Taliban's inventory of Stinger Missiles due to his prior training and knowledge ofthe missiles. When a Stinger Missile was found in [Afghanistan], Ghazi was responsible for verifying its authenticity and serviceability first and then its storage and delivery to field units. Khairkhwa advised [that] the Stinger Missiles were originally stored at a prior residence of Mullah Omar's in Kandahar.
. .. [In 2000], Omar
... moved himselfand the Stingers to an undisclosed location in Philco, on the outskirts of Kandahar. To Khairkhwa's knowledge, no new Stingers have been brought into [Afghanistan]. All were left over from the time ofJihad (Soviet invasion). Once

. . .. ,. N, ." ,..... '< •.54\' '\ i""". UNCLASSIFIEOIIFOR PUBLIC RELEASE
I I

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### the Taliban put the word out, people who possessed or found Stingers would either give or sell the[m] to the Taliban. In other instances, they were taken by force. The Taliban did not use the Stingers against 

### V.S. or Allied war planes. Allied aircraft flew too high 

### and the Taliban figured since they were 

### V.S. made, U.S. planes would have appropriate countermeasures for them. Although the Stingers were prized, the Taliban had no interest in Soviet made SA-7's or "blue pipes" as they were called. They were considered useless. GE 44 at 

### 3-4; 

### see also GE 60 (lSN 579 FD-302 (June 2, 2002» at 

### 3 (interrogator's comment that "Khairkhwa hadpreviously denigrated old Soviet-made shoulder fired missiles known as 'blue pipes"').

The petitionerhas failed to explain why a civilian bureaucrat, whose responsibilities were limited to collecting taxes and resolving civil disputes, would possess such detailed and sensitive knowledge about the locations ofmilitary installations, weapons caches and the Taliban's view ofthe effectiveness ofdifferent missile systems. Rather, this knowledge, coupled with the petitioner's detailed knowledge aboutthe locations, personnel and weapons ofvarious military bases in Herat and the fact that the petitioner's predecessor was a seasoned military commander, support the notion that Taliban provincial governors like the petitionerpossessed authority over both military and civilian matters related to their district.



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The evidence also indicates that the petitioner's purportedly civilian duties

- inparticular, the disbursement ofTalibanfunds had, atleast on occasion, a direct nexus to Taliban military

The court's ability to assess the reliability this report is hindered bythe report's failure to expressly identify its source. See, e.g., Khan, 646 F. Supp. 2d at 11-15 (observingthatthe court could not make reliability detenninations for documents for whichthe government had not identified the source ofthe infonnation); PE74 (Decl. ofPaul Pillar)**~** 21 (notingthedifficulty ofassessing the reliability ofinfonnation whose source is unknown). Despitethis significant obstacle, both intrinsic and exogenous factors persuadethe court to credit the infonnation contained in the report. See Barhoumi, 609 F.3d at 429; Bensayah, 610 F.3d at 726.

56 

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Moreover, the infonnation in the report is highly consistent withthe petitioner's own statements
- namely, thathis responsibilities as Governor ofHerat included disbursing funds and implementing orders from the Taliban's director ofrevenue and expense in Kandahar. PE 12 at I; PE 82 {ISN 579 MFR (May 28, 2002» at 1-2. Indeed, the petitioner admitted during a September 2003 interrogation that on another occasion, Taliban leadership in Kandahar directed him to transfer four to five million Afghan rupees to the Taliban Intelligence Agency, headquartered in Herat, as a type of"emergencyoperating fundH or "aone-time budget allowance." GE 46 at 2. These statements, which do not appear to have been elicited through

In 1ight ofthese considerations, the courtconcludes that the September2003 interrogation report corroborate one another and constitutereliable evidencethat even in discharging his "civilian"duties, the petitioner operated within the Taliban's fonnal command structure and provided material support to the Taliban's military forces and security apparatus. Although the petitionerhas attempted to depict his role within the Taliban as that ofa
mere functionary, mechanically carrying outdirectives imposed by the Taliban's central leadership in Kandahar, 

### see, e.g., GE 46 at 2, the evidence simply doesnot supportthat

., "

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### UNCLASSIFIEDIIFOR PUBLIC RELEASE SECRET characterization. To the contrary, thepetitioner admitted during his ARB testimony that while he was the Governor ofHerat, he served as part ofa TalibandeJegation that met with senior Iranian officials onJanuary 7, 2001 to discuss a variety ofmatters, including the Taliban's ongoing conflict withthe Northern Alliance. GE 71 at 7. Thepetitionerdidnotdeny that one of the topics discussed at the meeting was thepossibility ofU.S. intervention inthe region and Iran'spurported desire to seetheTaliban "join the Northern Alliance in order to defend Afghanistan." 

### Id.

58 

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These statements indicate, however, that far from being sequestered from the TaHban's military apparatus, the petitioner wielded at least a degree ofcontrol over military matters, a fact that is consistent with the Taliban's governance model as well as the petitioner's demonstrated knowledge about military installations in Herat. The petitioner notes that both Motawakil and Rocketi stated that the provincial governorship was a purely civilian post with no nexus to military matters. PE 36, Att. B at 1; PE

The reliability ofthis interrogation report is unquestioned, as the petitionerhas himselfrelied on other portions ofthe report to support his petition and there is nothingto suggestthat the petitioner's statements were elicited through undue coercion or duress. 

### See PE 35 at 1-2.



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### Although the petitionerhas also asserted that all ofthe military matters in Herat fell within the authority ofhis deputy, Mullawi Hanan, or Abdul Salam Rocketi, the corps commander ofHerat, PE 19 (lSN 579 Knowledgeability Brief(May 12,2002» at 1-2, this claim is not consistent with his demonstrated knowledge about military installations in Herat, 

### see, e.g., GE 46 at 1-2, the fact that Hanan's office was located "on the other side ofthe

petitioner

- rather than Hanan orRocketi

- participated in the October 2001 meeting with Iranian officials regarding Iran's offer to supply military aid to the Taliban, 

### see GE 60 (ISN 579 FD-302 (June 

### 2,2002) 

### at 2-3. 

### In sum, the court is not persuaded by the petitioner's contention that he was a civilian functionary shielded from the Taliban's military operations during the time he served as the Governor ofHerat. Rather, in light ofthe Taliban's governance model, pursuant to which provincial governors possess both military and civilian authority, the fact that the petitioner's predecessor as Governor ofHerat was a seasoned military commander, the petitioner's possession ofdetailed and sensitive information about military installations, weapons caches and the capabilities ofweapons systems, the fact thatthe petitioner acted within the Taliban's command structure and provided material support to the Taliban's military and security forces and the petitioner's participation in ahigh-level meeting with senior Iranian officials, which touched on military and security matters, the court concludes that the petitionerpossessed military responsibilities during his tenure as Governor ofHerat up until the time ofthe V.SAed invasion ofAfghanistan.

. £:. " ('to 

# r"
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### ,!
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### UNCLASSIFIEDIIFOR PUBLIC RELEASE



### e. The Petitioner's SupportofTaliban Forces in Hostilities Against the United States After the terrorist attacks on September 11,2001, the United States and coalition forces initiated Operation Enduring Freedom and commenced attacks on Taliban and al-Qaida forces in Afghanistan on October 7, 2001. GE 91**~** 

### 5. Bymid-November, the Taliban had lost control of Mazar-e-Sharif, Herat and Kabul.**[d.'~** 

### 6-8. The Taliban lost control ofKandahar on December 7,2001. 

### Id**~** 

### 9. In early October 2001, onthe eve ofOperation Enduring Freedom, the petitioner participated 

### in a high-level meeting with Iranian officials regarding the imminentU.S.-led invasion ofAfghanistan. According to the petitioner, "[Iran] contacted unnamed Taliban officials in Kandahar
... to request [a] meeting and offermilitary aid to the Taliban against U.S. and Allied forces. The meeting was approved in Kandahar by Abdul Mulawi." GE 60 at 2; 

### see a/so GE 57 (IIR 6 034 044202) at 1 (interrogation report from May 2002 in which the petitioner states that "Iranian officials contacted [unidentified] Taliban officials in Kandahar
... and requested a meeting onthe Iran-Afghanistan border near Herat
... in October 200t"). According to the petitioner, the meeting took place at a military post south ofIslam Qalah on the Iranian side ofthe border. GE 56 (UR 2340665602) at 1; GE 60 at 2. Thepetitionerhas repeatedly acknowledged 

### that he served as a member ofthe Taliban envoy that attendedthis meeting. GE 56 at 1; GE 57 at 1; GE 60 at 1; GE 70 at 2.31 

### According to the petitioner, the members ofthe Taliban delegation were Abdul Hamid Akundzada and Qari

Thepetitioner asserts that some ofthe petitioner's statements regarding the October 2001 meeting with Iran resulted from interrogations that occurred whilethe petitioner was subjected to sleep deprivation in March 2002. Petr'sProposed Findings ofFactat 89 n.59. The petitioner has, however, provided repeated consistent accounts ofthis meeting duringhis CSRTtestimony in November 2004, GE 70 at 2, and his ARB hearing in June 2006, GE 71 at 8, undennining any inference that his accounts are unreliable as the result ofundue coercion. SeeAI-Adahiv. Obama,692 F. Supp. 2d 85, 100 (D.D.C. 2010) (concluding thatthe detainee's CSRT statements were not tainted by evidence ofcoercion during prior interrogations)
.



# . In t')f""f ':V" '
..,I '\ il> " , 

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Tahair, who had previously worked withthe Iranians, Abdul Manan Niazi, the Governorof Kabul who had overseenthe massacre at Mazar-e-SharifinAugust 1998, and thepetitioner. GE 56 at 1; GE 57 at 1; GE 60 at 1. The Iranian delegation included the Deputy Commanderofthe Iranian Foreign Intelligence Service and the Head ofthe Afghan Department ofthe Iranian Foreign Intelligence Service. GE 56 at 1; GE 57 at I; GE 60 at 1. Thepetitionerhas provided highly detailed and consistent accounts ofwhattookplace during that October2001 meeting. Forinstance, during a March 2002 interrogation, the petitioner stated that atthe October2001 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. Thepetitionerprovided a highly consistent account during a May 2002 interrogation, stating that "Iranianofficials offered to broker a peace betweenthe Taliban and the Northern Alliance so Muslims could unite against the United States. The Iranian officials said that Iran could track all movements bythe 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 ifthe Taliban couldprove that they had the money to buy them. The Iranians also offered to open theirborderto Arabs enteringAfghanistan. The Afghanistan officials were directed to take the offers to Mullah ((Omar» and send back a response." Id. at2.


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. .. I IUNCLASSIFIEDIIFOR PUBLIC RELEASE SIUgM!:l' Likewise, during an interrogation the petitioner stated that during the October 2001 meeting, [tJhe Iranians offeredthe following tothe Taliban: • Soviet-made SA-7 shoulder-fired anti-aircraft missiles (which were billed as being betterthan U.S. Stingermissiles)[;] • 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 GulfStates unfettered access to [Afghanistan] in orderto help the Taliban againstU.S. and Allied forces. GE 60 at 3. The petitioner also noted that the Iranians indicated their ability to monitorthe activities ofthe U.S. military. 

### ld According to the petitioner, "[tJhe Iranians hadtold [him] that 'We are following them (the U.S.) everywhere. Khairkhwa was unsure ifthey meant thatthey had satellite capability, but thought the Iranians were speaking figuratively ratherthanliterally regarding intelligence collection." 

### Id The petitioner also acknowledged during his CSRThearing thathe was present at the October

### 2001 meeting during which Iran pledged to assistthe Taliban in their war with the United States, GE 70 at 

### 2, andtestified during his ARB hearing that at the October 2001 meeting, "[t]hc Iranians offeredto buy weapons for us because we were onrestriction 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 evidencethat these statements are unreliablebecause they were elicited through undue coercion or duress. Accordingly, the courtconsiders these statements reliable evidencethatthe petitioner was part ofthe Taliban delegation that met with Iranian officials to discuss Iran's offerto provide the Taliban with military aid on the eve ofthe U.S.-led invasion ofAfghanistan. 

# '(' r' r 

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,. -, "

.

### UNCLASSIFIEDIIFOR PUBLIC RELEASE SI!3€M'f 

### 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 itselfwith 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 ofthe Afghan conflict," having provided military support to different, competing groups vying for control ofAfghanistan before and afterthe 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 ofweapons to Herat and [Afghan warlord Ismail] Khan, which culminated in the United States firing a cruise missile at Khan's Headquarters, killing eighteen ofhis 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 ofcooperation 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 seemingcontradiction in behaviorreflects 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 "increasedpolitical and military support to the former Northern Alliance." PE 78 at 

### 3. 

### Although Karzai stated in his declaration that evidence of 

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### SECM'f
Iranian support for the Taliban reflects a recent shift in Iranian policy towards the Taliban, PE 110129,these reports indicate Iran did notpossess a unitary attitude towards the U.S.-led invasion ofAfghanistan at the time ofOperation Enduring Freedom and underscores the difficulty ofpresuming that Iran would not have offered military support to the Taliban simply because oftheir history ofanimosity. Moreover, the petitioner himselfis the source ofthe information regarding the October 2001 meeting between the Taliban delegation and senior Iranian officials. As previously noted, the petitioner has provided multiple, consistent accounts ofIran's offerto 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 offact, the petitioner acknowledges that he attended the October 2001 meeting withthe Iranian delegation, though he does not expressly concede that the purpose ofthe meetingwas Iran's offer to provide military support to the Taliban. 

### See Petr's Proposed Findings ofFact,292. The petitioner also contends his mere attendance at the October 2001 meeting does not support his detention because he was simplythere to provide security for the Taliban delegation. GE 71 at 2, 7. The court disagrees. First, even ifthe petitioner's role was limited to providing security for the Taliban delegation, that fact would itselfsignificantly undercut the petitioner's contention that he was simply a civilian bureaucrat and would demonstrate that he possessed command authority over Taliban forces onthe eve ofthe U.S.-led invasion and was entrusted with providing security services in support ofa military-related mission. At any rate, the fact that the petitioner was included inthe 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 ofHerat 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 chiefsecurity officer, but as a Taliban representative. Finally, thepetitionercontends that his attendance atthe October 2001 meeting does not support the lawfulness ofhis detention because there is no evidence that the Iranian offer was
everaccepted. The court notes atthe outsetthatthe petitioner has provided differing accounts of the Taliban'sresponse to the Iranian offer. 

### See GE 60 at 3 ("Ultimately, the offer was rejected."); GE 71 at 8 ("Whenthe delegation wentback to Kandaharthe bombing started, so the proposition fell apart."); GE 57 at 2 ("[The petitioner] fled the area shortly after the meeting and does not know ifthe offer was ever given to Omar."). At any rate, the significance ofthis evidence does not turn on whether the Taliban accepted the Iranian offer, butrather, lies in the fact that Talibanleaders in Kandahar designated the petitionerto represent the Taliban inhighlevel discussions with senior Iranian officialsregarding Iran's offerto provide military assistance to the Taliban in preparation for the imminent U.S.-led invasion. Thepetitioner's selection to attend the meeting demonstrates that he was entrusted with significant military-related responsibilities atthe time ofthe outbreak ofhostilities with the United States and strongly indicates that he was part ofTaliban forces at that time.32 The petitioner'srole in the October2001 meeting is consistent with evidence that after the commencement ofOperation Enduring Freedom, the petitioner continued to operate within the Taliban's formal command structure and provide support for Taliban military forces.

The government has argued that the petitioner attended a second meeting with Iranian officials in November 200I regarding Iran's offerto 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 October200I meeting discussed above are one and the same. 

### See GE 45 at 3; GE 61 at 1-2.

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with the priorreports regarding the petitioner'srole in providing financial support for Taliban troops and security forces, 

### see GE 46 at 2 as well as the petitioner'sprior acknowledgment that Herat contained the Taliban's two largest

### military divisions and multiple military insta1lations, 43 at 2; GE 46 at I. Accordingly, the courtconcludes that this intelligence report is sufficiently reliable for the court's consideration and further demonstrates that the petitionercontinued to operate within the Taliban's formal command structure and provide supportto Talibantroops afterthe outset ofhostilities with U.S. coalition forces. Thepetitioner's involvement with the Taliban's military apparatus continued even as U.S. coalition forces pushed the Taliban outofnorthern Afghanistan. Although the petitioner 

### has provided contradictory accounts ofhis retreat from Herat, thepetitioner has stated that in early November 2001, as the bombs beganto fall inHeratprovince, he traveled in a convoy of ten vehicles to Arghastan, a village inthe eastern part ofKandahar province. GE 18 (ISN 579

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

### Id The petitioner stated that he "turned the weapons overto a sherifinArghastan andthen 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 evidencethat this statement was elicited through undue coercion
orduress, and the statementwas made shortly after the events at issue. 

### See GE 18 at 1. Accordingly, the court credits the petitioner's initial admission thathe fled to Kandahar in a convoy comprised often vehiclesthat were full ofweapons. The fact that the petitionerhad access to a large volume ofweapons demonstrates that he continued to wield military-type authority even after the U.S.-led invasion ofAfghanistan. Furthermore, althoughthe petitionercontends that he turned the weapons overto an official in Arghastan affiliated with thepost-Taliban government, this claim is not plausible, as the Taliban did not lose control ofKandahar until December 7,2001, weeks after the petitionerfled Herat for Arghastan. GE 91**~** 9. AccordinglY, if, as the petitionerhas stated, he surrendered the weapons in his convoy to a local "sherif' in Arghastan, itwould have beento a local Taliban official. Accordingly, reliable evidence demonstrates thatthe petitionerwas appointed to represent the Taliban in discussions withhigh-level Iranian officials regarding Iran's offerto provide the Taliban military assistance for use against U.S. coalitionforces. Reliable evidence also indicates that afterthe U.s.-led invasion, the petitioner continuedto provide material supportto TaHban forces stationed in Heratand facilitated their movement to other areas in Afghanistan, implementing orders issued byTaliban leadership in Kandahar. Finally, the petitionerhas admitted that in earlyNovember 2001, he retreated from Heratto the Taliban­

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### SELMI stronghold ofKandahar in a convoy ofvehicles full ofweapons, and that he delivered those weapons to officials in Kandahar. These findings are consistent with the evidence establishing the petitioner's long history ofinvolvement with the Taliban's military affairs. Like most seniorTaliban leaders, the petitioner obtained military experience fighting with the Afghan mujahideen during the Soviet occupation. Afterjoiningthe Taliban in 1994, the petitioner was entrusted with military responsibilities, sitting on the Taliban's Supreme Shura, which had oversight overmilitary affairs and serving as a commanderofTaliban fighters duringtheTaliban's northern offensives in 1997 and 1998. Thepetitionerremained intimately involved in the Taliban's military affairs
even after being appointed GovernorofHerat, as demonstrated by his detailed knowledge about military installations and weapons systems, his facilitation offunding for Talibanmilitary and intelligence forces as well as his role as a Taliban representative during discussions with Iranian officials inJanuary 2000 regarding military and security-related matters. Together, this evidence establishes that the petitionerwas part ofthe Taliban forces engaged in hostilities with U.S.-led coalition forces in late 2001. Accordingly, so long as the evidence indicatesthat the petitioner remained a part ofthose forces and had not disassociated himselffrom the Talibanbythetime ofhis capture in early 2002, the petitioner's detention is lawful under the AUMF. Before turning to the issue ofdisassociation, however, the court briefly addresses the evidence concerning the petitioner'sties to Mullah Omar, which the government contends provides additional support for the lawfulness ofhis detention. 

### 3. ThePetitionerHad Close Ties to Mullah Omar Since his apprehension inearly 2002, the petitioner has soughtto portrayhimselfas a reluctant Taliban leader. The petitionerhas stated that he "was compeUed to work for the



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Taliban because they were inpower at the time and, ifone didn't, the TaIiban could 'create problems' for someone." GE 4S at 1. The petitionerhas suggestedthat hejoinedthe Taliban as
a matter ofhappenstance, statingthat while trying to secure ajob in Spin Boldakin 1994, "one day, an unknown Taliban member asked him to speak with a London, England BBC reporter on the phone regarding Talibanmilitary 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 ofHerat as a move that came out of the blue. 

### Id. at2 ("Taliban official recommended hebe appointed Governor ofHerat, [Afghanistan], for unknownreasons."). In fact, during various interrogations,the petitioner denied holding leadershippositions that he now concedes thathepossessed. Compare OE 71 at 3 ("I was not theTaliban spokesman.") 

### andGE 43 at 1 (the petitioner's statement that "hewas often mistaken as the Minister ofthe Interior for the Taliban because he lived at the Ministry and spoke to the press often") 

### with Petr's Proposed Findings ofFact 1f6 ("After his return to Afghanistan in 1994, petitioner was appointed spokesperson for the Taliban government for the Pashto language because ofhis proven abilities in providing information to the media."); GE 91**~.** 17 (stipulating that the petitioner becamethe Taliban's Acting Interior Ministerin 1996 or 1997). Despitethese effortsto portrayhimselfas 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 quicklyrose to the Taliban's highestranks, becoming a memberofthe Supreme Shura, "themost powerful ruling body" inthe Taliban government, OE 48 at 250, which reported directly to Taliban leaderMullah Omar, PE 1101f 19.



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The evidence also indicates that after the petitioner beganto serve onthe Supreme Shura,

statements ofthis mullah are corroborated by veteran Afghan mujahideen commanderAkhtiar, who identified the petitioner as "a sub-commander/trusted person ofMullah Omar." GE22 at 1. These statements are further corroborated bya 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, THENEWS, Nov. 1, 1999) at 1. This reshuffle resulted 

### in the petitioner's appointment as GovernorofHe rat. 

### Id The article statedthat "[l]oyalists like Mulla Khairullah Khairkhwa, MullaAbdurRazzaq
... and Mulla Said Mohammad Haqqani were aU rewarded with the choicestjobs." Id. The petitioner's status as one ofMullah Omar'strusted associates is also born out by the fact 

### that Mullah Omarrepeatedly 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 murderedeight Iranian diplomats and an Iranianjournalist, Mullah Omarpublicly announced that thepetitioner would lead a commission to investigate the murders. 33 GE 13 (Bodies of Remaining2 Iranians Found inAfghanistan, THENEWS, Oct. 7, 1998) at 1; GE 46 at2. And one year after Iran had threatened war with Afghanistan, Mullah

The petitioner statedthat**despjtethe.eubJ~c an!loJ109~1pent.**  he never actually conductedthe investigation. GE46 at 2. t, 

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Omarappointed thepetitioner Governor ofHerat, GE 43 at2, one ofAfghanistan'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 ofHerat was effectively a demotion and signaled the fact that the petitionerno longer held Mullah Omar's trust. Mar. 31 Tr. at 113. The weight ofthe evidence does not support the petitioner's contention. Herat was a strategically important province atthe time ofthe petitioner's appointment as governor; it bordered Iran, whichhad recently threatened war with the Taliban and possessed historically close ties with the population ofHerat. PE75 at 3; PE 76 at 244-45. Herat also contained
numerous Taliban military installations, including its two largest divisions, as well as the headquarters ofTaliban intelligence. GE 46 at I. Indeed, as previously noted, one contemporaneous media report characterized the petitioner's newposition one ofthe "choicest jobs" inthe Taliban government, awarded to the petitionerbecause he was a Mullah Omar loyalist. GE40 at 1. Moreover, reliable evidence indicates that the petitioner remained within Mullah Omar's inner circle after his appointment as Governor ofHerat, as U.S. coalitionforces begantheir 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 ofthe report is also buttressed by the level ofdetail 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 commanderofJalalabad[,]
moves between that city and north Kabul"); PE 70 at 139 (listing Rocketi as the "fonner corps commander ofJalalabad"). Lastly, the report ofa missile strike occurring the week before October 13,2001 is consistent with the timeline ofOperation Enduring Freedom, which "commenced on 7October 2001 with coalition air strikes on al-Qaida and Taliban targets throughout Afghanistan." GE 77 at 2. In light ofthese indices ofreliability, the courtcredits the report's account that after aU.S. coalition airstrike in early October 2001, Mullah Omar limited his circle ofcontacts to a handful ofhis mosttrusted and important "commanders," including the petitioner. In sum, the court finds implausible the petitioner's contention that he was areluctant Taliban member. Rather, the weight ofthe evidence indicates that the petitionerhad close ties

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with Mullah Dmarand that heremained one ofMullah Omar'smosttrusted associates before and afterthe U.S.-led invasion ofAfghanistan in October2001. This finding is consistent with the court's earlier conclusionsthat the petitionerwas a key Taliban leader entrusted with military responsibilities, which he carried outboth before and afterthe commencementofOperation Enduring Freedom. See supraPart IV.B.2. Moreover, the fact that the petitioner was one of Mullah Omar'strusted associates undermines the petitioner's contention that he was a simple civilianbureaucrat shielded from the Taliban's military activities, and provides a useful starting point for assessing the petitioner's contentionthat hehad disassociated himselffrom the Taliban bythe time ofhis capture in early 2002. 

### 4. Tbe PetitionerRemained PartoftbeTaliban at the Time ofHis Apprehension

As previously discussed, 

### it is not enough for the governmentto show simply that the petitioner was, at onetime, a member ofthe Taliban, al-Qaida orassociated forces; to be lawfully detained, thepetitioner musthave been "partof'those forces atthe time ofhis capture. See Salah;, 625 F.3d at 751; Gherebi, 609 F. Supp. 2d at 71. «A petitioner who may once have been part ofal-Qaida orthe Talibancan show that he was no longerpartofsuch an entity at the time ofcapture by showingthathe took affirmative actions to abandon his membership." Khalif
v. Obama, 2010 WL 2382925, at *2 (D.D.C. May 28, 2010) (citingAlGinco v. Obama, 626 F. Supp.2d 123, 128-30 (D.D.C. 2009)). The evidence indicates that aftertbe commencement ofOperation Enduring Freedom, the petitioner began hedging his bets. The petitionerhas stated that he met with a group ofhighlevel Taliban officials one month before the surrender ofKandahar to discuss the peaceful surrender ofthe city. PE 34 at 

### 1. According to the petitioner, the meeting was held without Mullah Omar's consent and the officialspresent were those "who favored a bloodless, peaceful t '.**;~** , , :(

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endto the fighting in Afghanistan." 

### ld Thepetitionerhas also stated that in early November 200I,he contacted Hamid Karzai, who was a member ofthe petitioner's Popalzai tribe and whomthe petitionerhad known for many years, to "solicithis advice" about surrenderingto 

## u.s. coalition forces. GE 45 at 3; 

### see also GE 18 at I (interrogation reportin which the petitioner statedthat 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 "whenHerat was taken over"); GE 91**~** 7 (stipUlating that the Taliban lost control ofHerat onorabout November 13, 2001). According to the petitioner, this evidence demonstrates thathe had disassociated himselffrom the Taliban before he was captured by Pakistani authorities in late-January orearly-February 2002. 

### See GE 91**~** 18. The court disagrees. Even ifthe petitioner did participate in a secret meeting with highlevel Taliban leaders regarding the surrender ofKandahar, there is no evidencethat any participant at that meeting surrendered to U.S. coalition forces, publicly orprivately broke with Mullah Omar ortook any action signaling an intent to end hostilities with U.S. coalition forces. Indeed, inthe monthbefore the surrender ofKandahar, 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 ifthepetitionercontacted Hamid Karzai in mid-November 2001 to discuss the possibility ofsurrender, the petitioner did not tum himselfin, but was instead captured in Chaman, Pakistan approximately three months later. GE 91**~** 18. The petitionerhas provided no credible explanation for what he was doing orwhat steps he hadtaken to disassociate himselffrom the Taliban during the months afterhe allegedly contactedHamid Karzai to discuss the possibility ofsurrender.**~,,t,** 1;''';''<:'''**,,~.:**

. .i 

### <,._

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Thepetitionerhas stated thatbythe time ofhis capture, he hadresolved to cooperate with U.S. coalition forces and thathe traveled to Chama.n, Pakistan to obtain treatment for a stomach ailment before turninghimselfin. GE 45 at 3; GE 70 at4; GE 71 at 9. Thepetitioner, however,
was not captured at a medical office in Chaman. Rather, it is undisputed that the petitioner was captured at the Pakistani residence ofseniorTaliban official Abdul Manan Niazi. GE 91 , 18. Aspreviously discussed, Niazi was a fonner Taliban military commanderand Governor of Kabul, who hadpersonally overseenthe massacre ofthousands ofShiites in the city ofMazar-eSharifinAugust 1998 and was partofthe Taliban delegation that traveled to Iran in October 200I to discuss Iran's offerto provide military assistance to the Taliban. 

### See supra Part IV.B.2.a. The fact that the petitionerwas captured at thehome ofa hardlinc TaUban military commandergreatlyundenninesthe petitioner's contention that he haddisassociated himself from the Taliban priorto his apprehensionby Pakistani authorities. 

### SeeAl-Bihani v. Ohama, 2010 U.S. Dist. LEXIS 107590, at *33-34 (D.D.C. Sept. 22, 2010) (noting thatthe fact that the petitioner continuedto associate with al-Qaida or Taliban operatives undermined the petitioner's argument that he had cuthis ties with al-Qaida priorto 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 inthe company ofTaliban and**al~Qaida** fighters in the vicinity ofTora Bora supported the conclusion that he was lawfully detained). Thepetitioner'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 earliestknown interrogation ofthe petitioner occurred approximately 3:00p.m. 

### See Govt's Proposed Findings ofFact & Conclusions ofLawat 82. The interrogator who conducted this inquiryreported that the



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### S!!ClmT 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 'tapdance' around questions." GE 64 (ISN 579 Handnote (Feb. 7,2002) at 1. The petitioner'srefusal to provide full cooperationhas been noted by other interrogators, who, as previously noted, have described the petitioner as cunning and evasive. 

### See PE 34 at 1. Theresistance exhibited by the petitioner during these interrogations is not, in the court's view, consistent withthe petitioner's claim that he had decided to turn himselfin and cooperate with U.S. coalition forces before hewas apprehended in Pakistan. In short, the court does not credit thepetitioner's contention that he had disassociated himselffrom the Taliban priorto his capture in Chaman, Pakistan. Rather, the weight ofthe evidence, especiallythe fact that he was captured atthe home ofa seniorTaliban official, indicates that the petitioner remained part ofTaliban forces at the time ofhis capture. C. Viewing the Totality 

### oftheEvidence There is no dispute about the basic contours ofthe petitioner's life. The parties agree that the petitionerjoined the TaHban in 1994 andbecame a spokesman and district administrator in Spin Boldak. He rose through the Taliban ranks and served as a member ofthe Taliban Supreme Shura, the Taliban's Acting InteriorMinister and the Governor ofHerat. The petitionerretreated from Herat during Operation EnduringFreedom and that he was ultimately capturedbyPakistani authorities in Chaman, Pakistan in early 2002. The parties have, however, offered two starkly different narratives regarding the petitioner's tenure withthe 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
overtime and eventually broke with him and the Taliban during Operation Enduring Freedom.**:t~'~I' r"~"**  

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According to the government, the petitioner was an experienced military leader who wielded military authority before and after the commencement ofOperation EnduringFreedom, was a member ofMullah Omar's inner circle and remainedpart ofthe 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 concludesthat the petitioner, like most other senior Taliban leaders, fought with the Afghan mujahideen in the 19805, and, like other senior Taliban leaders withcivilian titles, participated in the Taliban's military efforts to seize control ofAfghanistan, serving as a commander ofTaliban fighters during the Taliban's assaults on Mazar-e-Sharifin 1997 and 1998. Even after his appointment as Governor ofHerat in 1999, the petitionerremained integrally involved in the Taliban's military forces, operating within the Taliban's formal command structure and facilitating the movement ofTaliban troops both before and after the commencement ofOperation Enduring Freedom. Moreover, on the eve ofOperation Enduring Freedom, the petitioner was dispatched to Iran by Taliban leaders in Kandaharto discuss Iran's offer to provide military assistance to the Taliban in anticipation ofthe imminent U.S.-led invasion ofAfghanistan. Throughouthis tenure in the Taliban, the petitionerremained a prominent leader and a close ally ofMul1ah Omar. The petitioner's ties to Mullah Omarpersisted even after a U.S. cruise missile struck Mullah Omar'svehicle in the early days ofOperation EnduringFreedom, and MuJlah Omar limited his contacts to his most trusted lieutenants, including the petitioner. Although the petitionerreached outto Hamid Karzai to discuss the possibility of surrender after the commencementofOperation Enduring Freedom, he never turned himselfin and was captured at the home ofa senior Taliban official. The evidence, therefore, does not



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### SECRE'f support the petitioner's contention that he had disassociated himselffrom the Taliban by the time ofhis capture. Based on these considerations, the court concludes that the government has established by apreponderance ofthe evidence thatthe petitioner

### was part ofTaliban forces engaged in hostilities against the United States at the time ofhis capture. The petitioner is therefore lawfuJly detained and his petition for a writ ofhabeas corpus must be denied.



# v. CONCLUSION 

### Forthe foregoing reasons, the court denies the petition for a

### writ ofhabeas corpus. An Order consistent with 

### this Memorandum Opinion 

### is issued separately and contemporaneously this 27th day ofMay, 2011.

RICARDO M. URBINA United States District Judge



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I •