UNCLASSIFIEDIIFOR PUBLIC RELEASE 


SECRET 


UNITED STATES DISTRICT COURT FILED WfnI THE

FOR THE DISTRICT OF COLUMBIA cg~TS~ 

KHAIRULLA SAID W ALI DATE:_~~~~~:..r...-_ KHAIRKHWA, 

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

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

BARACK OBAMA et al., 

Respondents. 


MEMORANDUM OPINION 


DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS 

DENYING AS MOOT THE GOVERNMENT'S MOTION FOR THE COURT TO 

CONSIDER ExPARTE INFORMATION ON THE MERITS 

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


MATERIALS OUTSIDE THE RECORD 


I. INTRODUCTION 

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

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

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

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

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

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

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

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

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

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

SECREl 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


SECItE'f 

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

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

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

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

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

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

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

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

a Taliban spokesperson, the Taliban's Acting Interior Minister, the Taliban Governor ofKabul 

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

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

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

to U.S. coalition forces in late 2001. 

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

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

admitted that 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 of imminent 

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

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

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

The government has objected to the petitioner's reliance on eleven documents that were not made 

a part ofthe record, but are nevertheless cited in the petitioner's proposed findings of facts and 

conclusions of law. See generally Govt.'s Opp. To Petr's Reliance on Materials Outside the 

Record. The government's objection is overruled. 

SECRET 


UNCLASSIFIEDIIFOR PUBLIC RELEASE 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 


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

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

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

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

responsibilities. 

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

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

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

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

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

only his most trusted commanders. 

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

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

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

ultimately captured at the home ofa senior Taliban military commander. 

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

proven by a preponderance ofthe evidence that the petitioner was part ofTaliban forces at the 

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

habeas corpus must be denied. 

8EyRET 


UNCLASSIFIEDIIFOR PUBLIC RELEASE 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 


II. BACKGROUND 

A. Factual Overview 

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

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

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

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

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

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

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

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

MFR (May 10, 2002» at 1; GE 45 at 1. 

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

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

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

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

Taliban's spokesman to media outlets such as the BBC and Voice 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 	 Citations to "OE _" refer to the exhibits introduced by the government during the merits 

hearing, whereas citations to "PE _" refer to the exhibits introduced by the petitioner during 

the merits hearing. 

3 	 "Madrassa" (plural·'madaris") derives from the Arabic word for "school." In Pashto, the term is 

commonly used to refer to religious schools ("deeni madaris"). See GE 88 at 20. 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 


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

31 Tr. at 87.4 

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

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

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

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

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

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

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

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

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

forces commenced Operation Enduring Freedom on October 7,2001. See GE 91 ~ 5. By midNovember 2001, U.S. coalition forces had pushed the Taliban out of Mazar-e-Sharif, Herat and 

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

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

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

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

B. Procedural History 

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

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

The merits hearing occurred on March 28-31, 2011. Citations to the hearing transcript shall be 

made by designating the date of the proceedings. 

During the merits hearing. the parties presented a substantial amount of evidence regarding the 

petitioner's alleged role as a Taliban commander during the assaults on Mazar-e-Shariff. See 

infra Part IV.B.2. SECRET 

5 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


SECRtyf' 

of habeas corpus to challenge the legality oftheir detention," id. at 2262, and that the federal 

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

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

GTMO. See generally Pet. 

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

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

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

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

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

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

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

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

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

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

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

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

his traverse in December 2009.6 See generally Traverse. In April 2010, the parties filed crossmotions for judgment on the record. See generally Govt's Mot. for J. on the R.; Petr's CrossMot. for J. on the R. The court denied the parties' cross-motions after concluding that there were 

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

The court granted the government's motion for leave to amend the factual return in September 

2010, Mem. Op. (Sept. 16,2010) at 3-6, and in early March 2011, granted both the government's 

unopposed second motion for leave to amend the factual return and the petitioner's unopposed 

motion for leave to amend the traverse, Order (Mar. 7,2011). The court granted the 

government's unopposed third motion for leave to amend the factual return on March 25, 2011. 

Minute Order (Mar. 25, 2011). SECRE ,. 


6 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

, , 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


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

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

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

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

concerning the lawfulness 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, the parties submitted proposed findings of fact and conclusions of law. With 

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

argument presented by the parties. 

III. EVIDENTIARY MATTERS 

A. Framework for Assessing the Evidence 

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

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

probative to demonstrate the truth 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 any piece of evidence in these 

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

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

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

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

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

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

SECRET 


7 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


The reliability ofany piece ofevidence may be established by the intrinsic characteristics 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

infra Part IV. 

B. Admissibility and Reliability of Hearsay Evidence 

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

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

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

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

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

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

SECRET' 


8 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

, , 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


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

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

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

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

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

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

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

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

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

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

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

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

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

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

ofreliability, and the court considered the reliability ofthe evidence in deciding the weight to 

give the hearsay evidence"). 

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

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

but must instead make individualized determinations about the reliability and accuracy ofthat 

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

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

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

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

SECRE1· 


9 


UNCLASSIFIEDIIFOR PUBLIC RELEASE 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 


presumption of authenticity. Id; see also Almerfedi 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 government in the ordinary course of business was 

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

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

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

this case. See infra Part IV. 

C. Reliance on Ex Parte Information 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

to disclosure). 

SECRET 

10 


UNCLASSIFIEDIIFOR PUBLIC RELEASE 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 


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

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

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

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

no intention ofrelying on any redacted, ex parte information in determining the legality ofthe 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The court reiterated this position in its ruling on the government's fifth ex parte motion for 

exception from disclosure. Mem. Order (Mar. 11,2011) at 3 n.ll. 

The government submitted unredacted versions ts at issue with its ex parte 

motions for exception from djsclosure.a.""l<~-+~"""!'-f"""'''''

"I.'" 

11 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 


7 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


discussed below, the evidence to which both parties had access amply establishes the lawfulness 

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

motion as moot. 

D. Qualification of the Petitioner's Experts 

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

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

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

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

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

testify at the merits hearing.9 

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

qualified to offer expert testimony on each 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 of Williams. The court begins by 

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

1. Legal Standard for the Qualification of Expert Witnesses 

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

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

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

Neither Karzai nor Williams obtained access to or testified on the basis of classified materials in 

this case. 

12 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 


qualifications of expert witnesses. Meister v. Med Eng'g Corp., 267 F.3d 1123, 1127 n.9 (D.C. 

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

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

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

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

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

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

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

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

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

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

F.3d at 1127 n.9. 

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

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

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

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

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

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

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

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

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

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

Id 

13 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

UNCLASSIFIEOIIFOR PUBLIC RELEASE 


tJJ!Cft'l!';) 

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

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

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

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

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

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

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

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

1338-39 (11th Cir. 2009). 

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

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

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

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

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

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

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

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

committee's note (2000). 

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

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

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

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

witness be recognized as a leading authority in the field in question or even a member of a 

C" r.. ".....;f'··'1 r" '~r .....,) t...._ b, {~".~ i 

14 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 


recognized professional commWlity." 29 FED. PRAC. & PROC. (EVID.) § 6265. "The 'assist' 

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

degree." Id. 

2. Hekmat Karzai 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

8ECr{El" 


15 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


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

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

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

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

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

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

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

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

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

prominent and senior member ofthe Taliban government. 

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

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

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

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

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

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

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

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

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

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

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

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

16 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


SltCRR'f' 

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

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

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

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

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

afforded to Karzai's testimony, not his expertise. 

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

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

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

the petitioner's background and posts within the Taliban. 

3. Brian Williams 

Brian Williams is a professor of Islamic History at the University of MassachusettsDartmouth, 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 

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

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

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

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

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

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

Indeed, one of the works which the government has described as an authoritative source on the 

Taliban relies on information obtained from precisely the sort ofinterview which the government 

deemed unreliable during its voir dire ofKarzai. See GE 48 (AHMED RASHID, TALIBAN: 

MILITANT ISLAM, OIL AND FUNDAMENTALISM IN CENTRAL ASIA (2000» at 90-91 (describing 

information obtained from an interview with Samiul Ha leader ofthe Dar-ul-Uloom Haqqania 

madrassa). ,~"\ '-'>~;.' ~"y .... 


\ L~", ~ 

17 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

I ! 

10 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


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

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

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

subjects two and three, both 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 or training on Iran. Id at 6-21. The 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

manual on Afghanistan. PE lIlA, 2. 

18 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


S'BCH'f' 

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

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

that have been published in scholarly journals, 11 as well as policy journals and other 

collections. 12 PE 111 B at 3-7. Furthennore, Williams has taught at least one course covering 

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

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

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

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

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

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

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

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

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

Such expertise could not be obtained without developing a specialized knowledge ofthe 

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

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

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

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

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

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

II 	 See, e.g., Brian Williams, Reportfrom the Field General Dostum and the Mazar i Sharif 

Campaign: New Light on the Northern Alliance Warlords in Operation Enduring Freedom, 21 

SMALL WARS AND INSURGENCIES, no. 4, Dec. 2010, at 610, 611-15. 

12 	 See, e.g., Brian Williams, The Failure ofAl Qaeda Basing Projects: From Soviet Afghanistan to 

the Sunni Triangle, in DENIAL OF SANCTUARY. UNDERSTANDING TERRORIST SAFE HAVENS 49, 

58-59 (Michael Innes ed. 2007). ,,, (e< ('1 r'~ f,":r . .\v/ r \ t". ~ 

19 


UNCLASSIFIEDIIFOR PUBLIC RELEASE 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 


SECM" 


Spring 2006, at 235) at 244 (noting that Iran provided key support to the Northern Alliance 

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

Pakistan). 

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

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

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

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

which he has been proffered. 

IV. ANALYSIS 

A. The Scope of the Government's Detention Authority 

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

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

the President is authorized to use all necessary and appropriate force against 

those nations, organizations, or persons he determines planned, authorized, 

committed, or aided the terrorist attack that occurred on September 11, 2001, or 

harbored such organizations or persons, in order to prevent any future acts of 

international terrorism against the United States by such nations, organizations, 

or persons. 

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

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

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

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

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

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

demonstrate by a preponderance ofthe evidence that the detainee falls within one ofthese 

20 


UNCLASSIFIEDIIFOR PUBLIC RELEASE 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 


SEeH" 

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

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

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

590 F.3d at 878. 13 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Nevertheless, the Circuit has expressly left open the question of whether a lower evidentiary 

standard might be constitutionally permissible. See AI-Adahi v. Ohama, 613 F.3d 1102, 1103 

(D.C. Cir. 2010); see also Esmailv. Ohama, 2011 WL 1327701, at *3 (D.C. Cir. Apr. 8,2011) 

(Silbennan, J., concurring) (stating that "in a habeas corpus proceeding the preponderance of 

evidence standard that the government assumes binds it, is unnecessary - and moreover, 

unreal istic"). j" f '.. f',:!''' 'l~ 

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

21 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 


13 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


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 of his capture to demonstrate that his detention is lawful under 

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

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

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

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

detention standard. It is nonetheless clear that 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 support prong ofthe detention standard). 

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

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

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

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

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

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

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

22 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


SEelH!;'t' 

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

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

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

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

than its constituent parts"). 

B. The Petitioner Is LawfuUy Detained 

1. The Petitioner Was a Senior Taliban Official 

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

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

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

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

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

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

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

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

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

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

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

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

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

stayed at al-Qaida affiliated guesthouses). 

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

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

23 


UNCLASSIFIEDIIFOR PUBLIC RELEASE 

14 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 


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

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

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

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

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

17. In short, the parties agree that the petitioner was not only functionally part 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 ever knowingly 

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

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

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

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

part 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 of additional allegations against the 

petitioner, including allegations that the petitioner had ties to Usama bin Ladin, harbored a1­

Qaida operatives in Herat during his tenure as Governor of Herat and commanded a Taliban 

garrison at Mazar-e-Sharif during Operation Enduring Freedom. The court declines to address 

these allegations because the evidence analyzed below is sufficient to establish the lawfulness of 

the petitioner'S detention. Cj Esmail, 2011 WL 1327701, at *1-3 (affinning the district court's 

denial of the GTMO detainee's habeas petition, despite the petitioner's argument that the district 

court erred in relying on coerced statements and uncorroborated evidence, because "the record 

contains sufficient facts - affected neither by the alleged coercion nor by the lack of 

corroboration - to support the district court's conclusion that [the detainee] was 'part of' al 

Qaeda at the time of his capture")., , ;,', . r .?...".,;:/ ~,,~., ..'~~.,/ ~ \. ',..' f 

24 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 


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

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

2. The Petitioner's Involvement With Talihan Military Operations 

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

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

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

training and experience and possessed military responsibilities is inherently flawed and 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

25 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

seeM" 

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

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

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

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

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

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

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

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

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

Mghan refugees based in Baluchistan and North West Frontier Province (NWFP) 

had been encouraged to join the growing number of radical madrassas during the 

resistance against the former Soviet Union. By 1994, there were thousands of 

Taliban students who had received basic military training. The movement was 

led by a veteran ofthe Afghan Jihad, Mullah Mohammad Omar. 

PElIO'1f9. 

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

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

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

and Pakistan. See GE 48 at 252-55. For instance, Mullah Omar, a founder 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 Kandahar province. Id. at 253. Mullah 

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

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

IS 	 Ahmed Rashid is ajoumalist who has reported on Afghanistan for more than twenty years, first 

as a correspondent for the Far Eastern Economic Review and, more recently, for the BBC Online, 

the Washington Post and the International Herald Tribune. GE 48 at 1. 

( "', i ". p'".. " ... 1" ...',' ," 

• '. 1 I,:! 

26 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


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

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

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

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

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

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

with the Afghan mujahideen under Yunis Khalis. Id 

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

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

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

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

commander during the Soviet occupation. Id at 252. 

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

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

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

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

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

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

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

Oar-ul Uloom HaQqania has been referred to in media reports as the "university ofjihad," GE 68 

(Noreen S. Ahmed-Ullah and Kim Barker, Schooled in Jihad, CHICAGO TRrBUNE, Nov. 28, 

2004) at 3, and as "the breeding ground ofTaliban fundamentalism," GE 21 (Rory McCarthy, 

Dilemma - Pakistan's Clerics Plot Downfall 0/Military Regime: Support/or US Could Spark 

Hardline Uprising, THE GUARDIAN, Sept. 18, 2001) at 2. The leader of the madrassa, Samin! 

Haq, has praised Usama bin Ladin as a "brave and courageous man." GE 68 at 1. According to 

Rashid, Haq's madrassa "became a major training ground for the Taliban leadership." GE 48 at 

90. 

SECRET 

27 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

I I 

16 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


witnesses have acknowledged the authoritativeness ofRashid's reporting supports the reliability 

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

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

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

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

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

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

Omar was "educated in various madrassas in Kandahar," PE Ito, 40, and had "participated in 

the Jihad against the Soviet and Afghanistan communist government under the faction led by 

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

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

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

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

"first head ofthe religious police Qalam Uddin" as a graduate ofHaq's Oar-ul Uloom madrassa). 

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

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

7 

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

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

born in Kandahar province, is a Ourrani Pashtun and is a member 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 

The petitioner notes that one media report states that Mullah Omar attended the Dar-ul Uloom 

madrassa, GE 68 at 2, which differs from Rashid's account, see GE 48 at 91. This inconsistency 

does not call into question the reliability ofRashid's reporting, as the petitioner's own expert has 

corroborated Rashid's account of Mullah Omar's education at madrassas in Kandahar. PE 110, 

40. 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

1 I 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


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

was, at least for a time, a member of the Harakat Mujahideen party 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 madras sa. GE 21 at 2. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

IS 	 The petitioner stated during a_interrogation that he twice traveled to Afghanistan to 

fight jihad, but that he did not train or fight either time. GE 43 at 1. The petitioner provided a 

different account during a_interrogation, in which he stated that he returned to 

Afghanistan from Pakistan only after the withdrawal of Soviet forces in 1989. GE 20 at 1. 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

I I 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SECH'f 

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

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

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

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

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

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

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

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

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

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

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

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

fight with the Afghan mujahideen against the Soviets. 

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

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

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

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

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

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

Taliban's military forces. 

Karzai's testimony about the petitioner is assessed in greater detail later in the following section. 

See infra Part IV.B.2.b.ii. 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

I I 

19 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

provinces. PE 67 at 58. General Dosturn fled to Uzbekistan. Id. In May 1997,2,500 heavilyarmed Taliban troops under the command of Mullah Abdul Razaq rolled into Mazar-e-Sharif 

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

counteroffensive by Uzbek and Hazara fighters pushed the Taliban out 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-Sharif had, by that time, been largely taken 

As discussed below, Mullah Razaq preceded the petitioner as the Governor of Herat. See infra 

Part rv.B.2.d. 

SEq[,<ET 


UNCLASSIFIEDIIFOR PUBLIC RELEASE 

, I 

20 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


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 Mazar region. 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 of August 8, 1998. Id at 73. 

Rashid writes that once Taliban forces entered Mazar-e-Sharif, "[w]hat followed was 

another brutal massacre, genocidal in its ferocity, as the Taliban took revenge on their losses the 

previous year." PE 67 at 73; see also GE 8 (Amnesty International News Service 171198, 

Afghanistan: Thousands o/Civilians Killed Following Taleban Takeover o/Mazar-e Sharif, 

Sept. 3,1998) at 1-2; GE 9 (Dexter Filkins, Afghans Report Ethnic 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," indiscriminately killing women, children and other civilians. PE 67 at 

73; GE 10 (Human Rights Watch Press Release, Afghanistan: The Massacre in Mazar-l Sharif, 

Nov. 1, 1998) at 1. MulJah Abdul Manan Niazi, whom Karzai testified was one of the TaIiban 

commanders who led the offensive on Mazar-e-Sharif. Mar. 31 Tr. at 116, was appointed 

Governor of Mazar hours after its capture and delivered speeches at mosques throughout the city 

inciting violence against Hazaras in retaliation for their killing of Taliban soldiers the previous 

year,2' PE 67 at 74; GE 12 (The Afghanistan Justice Project. Casting Shadows: War Crimes and 

Crimes Against Humanity: 1978-2001 § 7.2 (2005)) at 122. Human Rights Watch stated that 

As discussed below, the petitioner was captured at the Pakistani home of Mullah Niazi. See infra 

Part NA. 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

I I 

21 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


"£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 of renegade Taliban forces but 

had the sanction ofthe Taliban authorities." GE 10 at 1. 

Over the following days, Niazi implemented a systematic program of ethnic cleansing, 

overseeing the segregation and massacre ofthousands of Hazara residents ofMazar-e~Sharif.22 

GE 11 (Michael Winchester, Inside Story: Afghanistan Ethnic Cleansing, ASIA WEEK, 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's northern campaign in July and August 1998. PE 67 at 74. 

ii. The Petitioner's Role in the September 1997 Assault on Mazar-e-Sharif 

Reliable evidence indicates that the petitioner was a commander ofTaliban forces during 

the Taliban's failed September 1997 assault on Mazar-e-Sharif. One such piece of evidence is a 

State Department cable dated September 17, 1997, which reports on a discussion held earlier that 

day between an unidentified U.S. poJitical officer and Tayyab Husseini, a Taliban representative 

at the 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 of Islam, which demands immediate burial, Niazi ordered that 

hundreds of corpses littering the streets be left where they had fallen. PE 11 at 3; GE 1 I at 3. 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

1 t ••• _ 

22 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


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 Department cable 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 what purport to be direct quotations from Husseini. ld at 1-3. 

There is also no dispute that 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 of an official diplomatic exchange between the Taliban and the United States. 

See Petr's Proposed Findings ofPact ,,37-39. Husseini not only identified the petitioner as a 

commander ofTaliban forces, but also provided a detailed account ofthe petitioner'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 by the petitioner to Taliban leaders in Kandahar. GE 2 at 1. 

Furthermore, many ofthe details contained in Husseini's account ofthe fighting around 

Mazar-e-Sharif are 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 the plausibility ofHusseini's account, noting that "Hussei(n]i's comments are 

no[t] surprising" and consistent with reports of"continued fighting around Mazar-i-Sharif on 

September 17." GE 2 at 1,3. 

(. , b . 

34 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

I I 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SICM'f 

Indeed, other than Husseini's identification ofthe petitioner as a commander ofTaliban 

forces, the petitioner has not challenged any other aspects ofHusseini's account ofthe Taliban's 

September 1997 assault on Mazar-e-Shari£ Instead, the petitioner speculates that Husseini's 

account might have been motivated by a desire to "gain political advantage" and argues that this 

possibility renders his statements wholly unreliable. Petr's Proposed Findings of Fact~,-r 38-39. 

The petitioner, however, has not offered any explanation regarding what political advantage 

could conceivably have been gained by falsely identifying the petitioner as a commander ofthe 

Taliban forces. See id. While speculation about Husseini's motivations might call into question 

the accuracy of his characterizations ofthe strength ofthe Taliban's forces and the imminence of 

their victory, the petitioner has not attempted to explain how the specter of political motivations 

casts doubt on his identification ofthe petitioner as a Taliban military commander. 

Moreover, Husseini's statements regarding the petitioner's involvement in the September 

1997 assault on Mazar-e-Sharif are corroborated by a separate account of that campaign authored 

by journalist and 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-Sharif from 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 of whom belonged to the Hikmetyar faction 

of Hizb-e-Islami. 

GE 88 at 103-04. 

Although the petitioner suggests that Matinuddin's account does not independently 

corroborate the State Department cable because Matinuddin may have relied on the same source 

cited in the State Department cable, the petitioner has offered nothing to substantiate that theory. 

35 


UNCLASSIFIEDIIFOR PUBLIC RELEASE 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 


See GE 88 at 1 03-04~ GE 2 at 1. In fact, although Matinuddin and Husseini both identify the 

petitioner as a commander ofTaliban 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 in the 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 of Matinuddin's account is further supported by the fact that the author is 

an experienced military officer, diplomat23 and journalist who has edited and written numerous 

works on Afghanistan. GE 88 at 1. Although the petitioner complains that Matinuddin lacked 

firsthand knowledge of the events at issue and does not identify the sources on which he based 

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 of the 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, other than his identification of the 

23 	 Matinuddin represented Pakistan in several diplomatic capacities, including as its ambassador to 

Thailand. GE 88 at 1. 

24 	 In fact, Williams's insistence that the petitioner could not have served as a Taliban commander 

during any ofthe assaults on Mazar-e-Sharif stems from his erroneous beJief that the 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 leading troops 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 of either account. Indeed, Matinuddin's and Rashid's 

accounts ofthe September 1997 assault on Mazar-e-Sharif are highly consistent with one 

another. See GE 88 at 103-04; PE 67 at 62-63, 229. 

C f f; r ~";: "r vLI ....,.. ; 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

.. _ .J..l ... 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


petitioner as a commander of Taliban 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 of Taliban forces 

in September 1997 is also corroborated by the statements of a 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 

of T aliban forces in September 1997 is consistent with the fact that he possessed military 

experience from his participation in the Afghan jihad, 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 commander who led Taliban forces during the Taliban's assault on 

Mazar-e-Sharif in September 1997. 

iii. The Petitioner's Role in the August 1998 Conquest of Mazar-e-Sharif 

Numerous sources have also reported that after the Taliban's failed September 1997 

assault on Mazar-e-Sharif, the petitioner remained a military commander, directing Taliban 

fighters during the Taliban's northern offensive in the summer of 1998. One of the 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 Major Advance in Northern Afghanistan, AGENCE FRANCE PRESSE, 

July 13, 1998) at 1. The article, which draws from a wide-variety of sources, including western 

aid workers, Taliban officials and Radio Shariat (the Taliban-run radio station), reported that the 

37 


UNCLASSIFIEDIIFOR PUBLIC RELEASE 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 


Taliban had captured Meymaneh, a city to the southwest ofMazar-e-Sharif, and that this victory 

yielded the Taliban 100 enemy tanks and 800 enemy fighters. ld at 1-2. The article further 

reported that Taliban forces were poised to push northward toward the cities ofSherberghan and 

Mazar-e-Sharif. ld According the article, "Tali ban officials were tight-lipped over the militia's 

plans, and said the student movement was busy consolidating their positions, with battle-veteran 

and interior minister Mullah Khairullah Khairkhwa heading the operation." fd at 2 (emphasis 

added). 

This July 13,1998 report is consistent with Rashid's account that on July 12, 1998, 

Taliban forces captured Meymaneh and 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 of Meymaneh and that Mullah Omar had appointed 

"(Interior minister) Mullah Khairullah Khairkhwa to oversee the captured areas and to ensure the 

hundreds ofprisoners taken are well treated.,,26 GE 3 (Taleban Claim Sweep ofAfghanistan's 

Faryab Province, HONG KONG AGENCE FRANCE PRESSE, July 12, 1998) at 2. Although the latter 

report does not expressly state that the petitioner was a TaHban commander, it corroborates that 

the petitioner was at Meymaneh at the time of the Taliban conquest ofthat city and that Mullah 

Omar had placed the petitioner in a position ofleadership during the summer 1998 northern 

offensive. fd 

The July 13. 1998 report identifying the petitioner as a Taliban commander at Meymaneh 

is also corroborated by media accounts reporting on the Taliban's subsequent push from 

Meymaneh to Mazar-e~Sharif On August 3, 1998, Agence France Presse reported that Taliban 

forces advancing on Mazar-e·Sharif from the west had captured the city of Sheberghan. the 

Rashid reports that the majority ofUzbek soldiers captured following the battle for Meymaneh 

were massacred by the Taliban. GE 48 at 72. 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

I I 

26 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


stronghold ofGeneral Dostum lying between Meymaneh and Mazar-e-Sharif. GE 5 (Taliban 

Open Second Front in Battle for North Afghanistan, HONG KONG AGENCE FRANCE PRESSE, Aug. 

3, 1998) at 1; see also GE 48 at 72, 261 (reporting that Taliban forces conquered Sheberghan on 

August 1, 1998). The August 3, 1998 report cited military sources who stated that the assault on 

Sheberghan had been launched from Meymaneh, which provided "an invaluable staging and 

supply post for the latest attack:' GE 5 at 2; see also GE 4 at 2 (reporting that in mid-July, the 

petitioner was in Meymaneh consolidating his forces in preparation for a push toward Mazar-eSharif). The report further stated that this assault was "led by interior minister Mullah 

Khairullah Khairkhwa." GE 5 at 2. 

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 Reports Anti-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-Sharif from the city of Sheberghan to 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 ofa reliable and calm rear. 

ld 

The court notes that the actions attributed to the petitioner in this radio report are highly 

consistent with the descriptions ofthe petitioner's actions in both the previously-discussed State 

Department cable and the July 13, 1998 report. See GE 2 at 1; GE 4 at 1. In each of these 

instances, the petitioner is credited with choosing to make strategic delays in his advance 

, , 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 


towards Mazar-e-Sharif. See GE 6 at 1; GE 2 at 1; GE 4 at 1. The statements attributed to the 

petitioner in the radio report are also consistent with the petitioner's testimony before the ARB, 

during which he acknowledged overseeing the Taliban's efforts to disarm the citizens of northem 

Afghanistan during the Taliban's northern offensive.27 GE 71 at 7. 

Moreover, these accounts ofthe petitioner's role in the capture of Meymaneh and 

Sheberghan are consistent with and corroborated by yet another report regarding the Taliban's 

conquest of Mazar-e-Sharif on August 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 of the Shiite population of Mazar-e-Sharif following 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 when not busy 

making war doubles as the regime's 'interior minister.'" Jd at 3. 

Although the petitioner contends that the author of the Asiaweek article does not specify 

the sources on which he based his reporting, 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 ofthe Asiaweek article that the petitioner 

has challenged is the portion of the article stating that the petitioner received credit for the 

conquest of Mazar-e-Sharif. Indeed, counsel for the petitioner acknowledged that this article 

was a "fairly reliable document." Mar. 28 Tr. at 81, 92. Finally, the Asiaweek account is 

consistent with the overall narrative set forth in the different news reports discussed to this point, 

Even ifthe court were to credit the 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-support responsibilities during a time ofongoing conflict and undermine the petitioner's 

contention that he was merely a civilian bureaucrat with no involvement in any military matters. 

vLbd~t, : 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

, I 

27 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


which document the petitioner's role as a commander ofTaliban forces that advanced toward 

Mazar-e-Sharif from the west, conquering the cities of Meymaneh and Sheberghan along the 

way, and entered the city on August 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 "did nothing but 

distribute propaganda." Mar. 31 Tr. at 152. The purpose ofRadio Shariat reports "was mostly 

to boost the morale of [TalibanJ foot soldiers, mostly to tell individuals that we're going to go 

prepare to take over the area." Id. at 117. Because Radio Shariat is not a reliable source of 

information, the petitioner argues, aU ofthe articles reporting on the petitioner's role in the 

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 information provided by Radio Shariat. The portion ofthe July 13, 

1998 article describing the petitioner's role as the head of forces at Meymaneh appears to have 

been based on the reporter's conversations with Taliban officials identified in the 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 or the Asiaweek article relied on Radio Shariat 

reports. See generally GE 6; GE 11. 

More fundamentally, even if the principal purpose ofRadio Shariat was to distribute 

propaganda to boost the morale of Taliban troops, the petitioner has offered no explanation for 

why the Taliban would have repeatedly and deliberately misidentified him as a commander of 

the Taliban offensive. The petitioner's theory - that all of these reports were disseminated as 

part ofa prolonged conspiracy to falsely identify a civilian bureaucrat with no military 

41 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


experience as a leader of Taliban forces to boost the morale of fighters - 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 subsequent news reports 

without independent corroboration Of verification. This theory, however, is not supported by the 

record. The articles discussed above report on the petitioner's activities at particular points 

during the summer 1998 offensive. GE 4 at 2; GE 5 at 2; GE 6 at 1; GE 11 at 4. 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 a report that 

weeks before, he had been consolidating Taliban forces at Meymaneh, GE 4 at 2. Likewise, 

there is no evidence that the Asiaweek article reporting that the petitioner received "laurels" for 

the capture of Mazar-e-Sharif was based on any ofthe previously discussed articles, which all 

predate the August 8, 1998 conquest of Mazar-e-Sharif. See generally GE 3, 4, 5,6. 

Finally, the court notes that all of these media accounts of the petitioner's role as a 

Taliban commander during 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 

of a 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 or lieutenant colonel in the 

Afghan mujahideen during the Soviet occupation. Id at 1. When asked by GTMO interrogators 

whether he knew of any other detainees with ties to the Taliban or al-Qaida, one ofthe 

individuals that Akhtiar identified was the petitioner. Id After noting that the petitioner had 

been the Taliban Governor of Herat, Akhtiar stated that "KhiruIlah once held the position of 

42 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

I I 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


division commander, commander of a military corps, was the Governor ofMazar-e-Sharif and in 

particular was a sub-commander/trusted person of Mullah Omar." Id. 

The petitioner does not dispute the government's contention that Akhtiar was a senior 

officer within the Afghan mujahideen and was in a position to know the structure ofthe 

Taliban's armed forces. Nor is 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 of country 

were and have been the approaches used" by interrogators to elicit information from Akhtiar. Id. 

The interrogation report notes that Akhtiar had been deemed truthful and cooperative. ld. 

Although Akhtiar incorrectly 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 petitioner possessed administrative authority over 

territories captured during the Taliban's northern offensive in the summer of 1998, including 

Mazar-e-Sharif. See, e.g., PE 36, Att. Bat 1 (interview statement of former Taliban official 

Abdul Salam Rocketi, in which Rocketi states that the petitioner traveled to Mazar-e-Sharif after 

the Taliban's conquest of the city to assist in administrative matters); PE 70 at 3 (petitioner's 

ARB testimony acknowledging that he went to Mazar-e-Sharifto assist the Taliban forces that 

captured the city); GE 15 (Taleban in North Tell UN Human Rights Guaranleed, MAZAR-E 

SHARIF VOICE 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 UN Commission for Human Rights"). The petitioner also 

attacks the reliability of Akhtiar's statements by noting that the interrogation report indicates that 

Akhtiar was to be shown a picture ofthe petitioner at his next interrogation, GE 22 at 2, but there 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

I I 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


is no indication that such an identification ever took place. Yet Akhtiar stated during the 

interrogation that his statements concerned "the Herat province Taliban Governor," id at 1, and 

there is no dispute that the petitioner was the Governor ofHerat, GE 91 117. Thus, there is no 

uncertainty that Akhtiar was referring to the petitioner in his statements. 

In assessing the reliability ofAkhtiar's statements, the court has considered the fact that 

Akhtiar does not expressly identifY the source ofhis information about the petitioner, does not 

provide detailed allegations about the 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 of the corroboration between Akhtiar's statements and the media reports 

addressing the petitioner's role as a Taliban commander, the classified State Department cable 

reporting on the petitioner'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 and provide additional support for the government's 

allegation that the petitioner served as a Taliban military commander. 

To rebut this evidence, the petitioner relies heavily on a March 2002 interrogation report 

in which the interrogator credits the petitioner's claim that he was never a military commander. 

PE 25 (ISN 579 SIR (Mar. 14,2002») at 1. The court notes that the interrogator's conclusions 

regarding the petitioner appear to have been influenced in significant part by his assessment of 

the petitioner's demeanor - namely, that the petitioner 

no signs of deception. See id This assessment was not, 

however, shared by other interrogators who questioned the petitioner. 

44 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

I I 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


that when the 

petitioner answers a question, "it will be minimal at best and require extensive follow up"). 

Furthermore, although the interrogation report states that unidentified "local sources" 

corroborate the petitioner's claim that he was not a military commander at any battle for Mazare-Sharif, PE 25 at 1-2, as previously discussed, the petitioner has been identified as such a 

commander in a variety ofsources, including a classified State Department cable, a publication 

that the petitioner's expert has described as a major scholarly work, the statements of a senior 

Afghan mujahideen commander and in numerous contemporaneous media reports. In the court's 

view, this single interrogation report does not, by itself or in conjunction with the other evidence 

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 

Salam Rocketi28 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 that the 

petitioner was a civilian administrator and not a military commander. See generally 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) at 2; PE 43, Att. B (transcript of interview 

with Rocketi) at 4. He has since reconciled with the current Afghan govemment and is now a 

member ofthe Afghan parliament. Mar. 31 Tr. at 109. 

29 	 Motawakil was fonnerly an executive assistant to Mullah Omar, who later appointed him to serve 

as the Taliban's Foreign Minister. ld. at 108; PE 36, Att. B (transcript of interview with 

Motawakil) at 1. After being arrested and spending three 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. 	 --IOIi].-...........---­ ;, ::.. t) ~ :,' 

45 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

, I 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SECREI 

B; PE 43, Att. B. Rocketi stated that although the petitioner was in Mazar-e-Sharifin the 

summer of 1998, he traveled there "on a civil duty" and "not as part of the military team when 

Taliban [forces] took over the city," PE 36, Att. B at 1. Likewise, Motawakil stated that the 

petitioner was 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 behalf expressly 

for use in this litigation. See generally PE 36; PE 43. Karzai himself indicated 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 about the 

petitioner's role within the Taliban and do not specify the bases for their assertions about the 

petitioner's activities in Mazar-e-Sharif. See PE 36, Att. B at 1-2; PE 43, Att. Bat 4-6. 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 of this litigation. See generally 

GE 2-6, I 1,88. 

Similar considerations limit the weight that the court affords Karzai' s testimony 

regarding the petitioner's roles within the Taliban. Although Karzai testified that the petitioner 

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 petitioner primarily 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 petitioner released, testifying that 

Mullah Khairkhwa is one of the individuals who has quite a lot of respect 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 of national 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 

ofthe peace process 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 issue here. Although there can be no doubt about the 

nobility and importance of the 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 the purview ofthis court. See supra Part IV.A. 

Additional considerations also lead the court to question Karzai's conclusions about the 

petitioner. For instance, Karzai testified that the petitioner could not have been a military 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

r I 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


commander during the conquest of Mazar-e-Sharifbecause Ialiban forces were led by Mullah 

Faisel, chief of the 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 on Mazar-e-Sharif involved tens 

ofthousands of soldiers, id. at 119, a fact that would suggest that the Ialiban must 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 senior Taliban commander involved in the operation does not 

mean that he could not have led Taliban fighters during these engagements. 

Karzai also testified that the 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 prior military 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 of the 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 in bis declaration, most ofthe Taliban's foot soldiers were recruited from'radical 

madrassas, PE 11 0 ~ 9. 

Finally, the court notes that the statements of Karzai, Rocketi and Motawakil all appear to 

draw on the presumption that there existed within the Taliban a strict division between 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 that there was no overlap between 

civilian and military chains ofcommand); PE 36, Att. B at 1 (Rocketi' s testimony that the 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


petitioner "was a civilian person, not a military commander"); PE 43, Att. B at 5 (MotawakiI's 

statement that "[wJe have a structure in Afghanistan that military belongs to Ministry of Defense. 

But [the petitioner] was the interior minister, governor, a spokesman."). 

This presumption, however, contradicts the weight ofthe evidence regarding the structure 

of the Taliban government. For instance, one scholar notes that 

[0Jne of the most remarkable characteristics of the 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. 

GE 47 (Nasreen Ghufran, The Taliban and the Civil War Entanglement in Afghanistan, 41 

ASIAN SURV., no. 3, at 462) at 474. 

This observation is echoed by Rashid, who writes: 

Several members of the 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 of the Taliban expeditionary force 

trapped in the north after the 1997 Mazar defeat. He was then pulled out and sent 

to Herat to organize another offensive and finally returned to his job 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 of the members of the Kandahar and Kabul Shura, except for 

those with physical disabilities, have acted as military commanders at some time 

or the 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 at 2 (reporting that in early 

August 1998, Taliban troops "led by information and culture minister and hardened fighter 

Mullah Amir Khan Muttaqi - had broken through a frontline around 100 kilometers (62 miles) 

east of Mazar-i-Sharif and were continuing their advance"). 

Co 1°" ," \. ,oof' ~ 'v.~) 1~, ';~....~.' f" 

49 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

, , 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 


These sources indicate that senior Taliban officials possessed both military 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, over the broad assertions ofKarzai, Rocketi and 

Motawakil, and finds that they provide additional support for the conclusion that the petitioner 

possessed military responsibilities while he held the post ofActing Interior Minster. See GE 11 

at 3 ("Laurels for the conquest ofAug. 8 went to Khairullah Khairkhwah, a Taliban mullah who 

when not busy making war doubles as the regime's 'interior minister.'''). 

iv. Summary of the Evidence Regarding the Petitioner's Role at Mazar-e-Sharif 

In swnmary, the weight ofthe evidence supports the government's contention that the 

petitioner served as a military commander during the Taliban's assaults on Mazar-e-Sharif in 

September 1997 and the summer of 1998. It is far from clear that these findings, standing alone, 

would establish the lawfulness of the petitioner's detention. Nonetheless, together with the 

evidence ofthe petitioner's involvement with the Afghan mujahideen, see supra Part IV.B.2.a, 

and the petitioner's membership on the TaIiban's Supreme Shura, see infra Part IV.B.2.c, they 

undermine the petitioner's claim that he was merely a civilian official shielded from the 

Taliban's military 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 after the U.s.­

led invasion of Afghanistan. 

c. The Petitioner's Position on the Taliban's Supreme Shura 

As the Taliban rose to power, they instituted a ruling structure organized in three 

50 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

I I 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


Commander of the Faithful). Mullah Omar. Id Below Mullah Omar was the ten-member 

Supreme Shura. which was based in Kandahar. reported directly to Mullah Omar and, according 

to Karzai, was ''It]he highest decision making body of the Taliban." Id; accord GE 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 of the 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 by the Kabul Shura "were conveyed to the Supreme Shura for 

decisions to be made"). Indeed, Karzai stated that "[i]n addition to the I 0 permanent members, 

[Supreme] Shura meetings 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 after the Supreme Shura's decision-making authority waned, it 

continued to have a "consultative function." PE 110 , 18. It is therefore unsurprising that, 

according to Rashid, "[aJlmost all of the members ofthe Kandahar and Kabul Shura, except for 

those with physical disabilities, have acted as military commanders at some time or the other." 

GE 48 at 100-01. 

51 


UNCLASSIFIEDIIFOR PUBLIC RELEASE 

I I 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


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 of military commanders, cuts against the petitioner's assertion that he was a 

civilian bureaucrat sequestered from the Taliban's military matters. The petitioner's membership 

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. 	The Petitioner's Military Responsibilities as Governor of Herat Leading Up to 

Operation Enduring Freedom 

On October 27, 1999, Mullah Omar appointed the petitioner to serve as Governor of 

Herat, a post that he held at the time of the U.S.-led invasion in October 2001. GE 91 ~ 17; GE 

43 at 2. The petitioner has stated that as Governor of Herat, he was a mere civilian 

administrator, collecting taxes, distributing revenues to the Taliban's Minister of Finance 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 a recent 

statement on its "successful administrative poHcy," describing the structure, positions and 

policies of a 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 ofthat province and directs its military, civilian, fmancial 

and legal affairs." See GE 49 (Ikram Maiwandi, The Islamic Emirate ofAfghanistan and Its 

Successful Administrative Policy, AL-SOMOODMAGAZINE, Jan. 27, 201 I) at 2. Thus, under the 

52 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

__ I • 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


SF.iCHT 

Taliban's model for governance, the governor ofa province 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 100-0 I, as well as the fact that the 

individual who preceded the petitioner as Governor ofHe rat, Mullah Abdul Razaq, was a senior 

military commander who was captured at Mazar-e-Sharif in 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 petitioner had both military and civilian responsibilities as the Governor of Herat. 

Indeed, since his capture by Pakistani authorities in early 2002, the petitioner has 

displayed a level of detailed 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 of Herat. One of the 

divisions w[asJ located in 4-5 km East ofthe Governors Office Building in Herat. 

This division consisted mainly of equipment that was left behind by 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 three jets, 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 at the 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 other than saying the 

Sheendand Division had an airstrip." [d. The petitioner further noted that "the Taliban Divisions 

are not the same as the way we (U.S. Army) have our division set.uplestablished" and that all of 

the trainers for these divisions were Taliban commanders who had served in previous wars. fd 

53 


UNCLASSIFIEDIIFOR PUBLIC RELEASE 

UNCLASSIFIEOIIFOR PUBLIC RELEASE 


In other interrogations, the petitioner has described the following military facilities 

located in Herat: 

• 	 Qoli Urdu: The petitioner has described Qoli Urdu as "a large, run-down 

installation, north of Herat." 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 of Herat"). The petitioner has explained that his deputy, Abdul Hanan, 

renovated part of this facility with funding from Mullah Omar. PE 30 (UR 6 034 

0898 02) at 4. 

• 	 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 of Herat 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 of weapons caches 

and the capabilities ofdifferent missile systems. For instance, in an interrogation report dated 

May 26, 2002, the petitioner provided a thorough account of the 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 of the 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 

himself and the Stingers to an undisclosed location in Phil co, on the outskirts of 

Kandahar. To Khairkhwa's knowledge, no new Stingers have been brought into 

[Afghanistan]. All were left over from the time of Jihad (Soviet invasion). Once 

. . .. ,. N, 

." ,..... '<•.54\' '\ i""". 

UNCLASSIFIEOIIFOR PUBLIC RELEASE 

I I 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


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 had previously denigrated old Soviet-made shoulder fired missiles known as 'blue 

pipes"'). 

The petitioner has 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 of military installations, weapons caches and the Taliban's view 

ofthe effectiveness of different missile systems. Rather, this knowledge, coupled with the 

petitioner's detailed knowledge about the locations, personnel and weapons of various 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 petitioner possessed authority over 

both military and civilian matters related to their district. 

55 


UNCLASSIFIEDIIFOR PUBLIC RELEASE 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 


The evidence also indicates that the petitioner's purportedly civilian duties - in particular, 

the disbursement of Taliban funds had, at least on occasion, a direct nexus to Taliban military 

The court's ability to assess the reliability this report is hindered by the report's failure to 

expressly identify its source. See, e.g., Khan, 646 F. Supp. 2d at 11-15 (observing that the court 

could not make reliability detenninations for documents for which the government had not 

identified the source ofthe infonnation); PE 74 (Decl. ofPaul Pillar) ~ 21 (noting the difficulty 

of assessing the reliability ofinfonnation whose source is unknown). Despite this significant 

obstacle, both intrinsic and exogenous factors persuade the court to credit the infonnation 

contained in the report. See Barhoumi, 609 F.3d at 429; Bensayah, 610 F.3d at 726. 

56 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


Moreover, the infonnation in the report is highly consistent with the petitioner's own 

statements - namely, that his responsibilities as Governor ofHerat included disbursing funds and 

implementing orders from the Taliban's director of revenue 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 "emergency operating fundH or "a one-time budget 

allowance." GE 46 at 2. These statements, which do not appear to have been elicited through 

In 1ight ofthese considerations, the court concludes that 

the September 2003 interrogation report corroborate one another 

and constitute reliable evidence that 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 petitioner has attempted to depict his role within the Taliban as that of a 

mere functionary, mechanically carrying out directives imposed by the Taliban's central 

leadership in Kandahar, see, e.g., GE 46 at 2, the evidence simply does not support that 

., 	" 

; 

',,...ii "-. \r/ , ., 

57 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 


SECRET 


characterization. To the contrary, the petitioner admitted during his ARB testimony that while 

he was the Governor of Herat, he served as part of a Taliban deJegation that met with senior 

Iranian officials on January 7, 2001 to discuss a variety ofmatters, including the Taliban's 

ongoing conflict with the Northern Alliance. GE 71 at 7. The petitioner did not deny that one of 

the topics discussed at the meeting was the possibility ofU.S. intervention in the region and 

Iran's purported desire to see the Taliban "join the Northern Alliance in order to defend 

Afghanistan." Id. 

58 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


These statements indicate, however, that far from being sequestered from the TaHban's military 

apparatus, the petitioner wielded at least a degree of control 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 petitioner has himself relied on 

other portions ofthe report to support his petition and there is nothing to suggest that the 

petitioner's statements were elicited through undue coercion or duress. See PE 35 at 1-2. 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

, , 

30 
LlNCLASSIFIEDIIFOR PUBLIC RELEASE 

Although the petitioner has also asserted that all ofthe military 

matters in Herat fell within the authority ofhis deputy, Mullawi Hanan, or Abdul Salam Rocketi, 

the corps commander of Herat, 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 or Rocketi - 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 of Herat. Rather, in light of the Taliban's governance model, pursuant to which 

provincial governors possess both military and civilian authority, the fact that the petitioner's 

predecessor as Governor of Herat was a seasoned military commander, the petitioner's 

possession of detailed and sensitive information about military installations, weapons caches and 

the capabilities of weapons systems, the fact that the 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 a high-level meeting with senior Iranian officials, which 

touched on military and security matters, the court concludes that the petitioner possessed 

military responsibilities during his tenure as Governor of Herat up until the time of the V.SAed 

invasion of Afghanistan. 

" . £:." ('to ,. r" p ;

"".. "'. " 

i. \ ' ,! . V!.._~f l ~'... 

UNCLASSIFIEOIIFOR PUBLIC RELEASE 

, , 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


e. The Petitioner's Support ofTaliban 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. By mid-November, the Taliban had lost control of 

Mazar-e-Sharif, Herat and Kabul. [d.'~ 6-8. The Taliban lost control of Kandahar on 

December 7,2001. Id ~ 9. 

In early October 2001, on the eve of Operation Enduring Freedom, the petitioner 

participated in a high-level meeting with Iranian officials regarding the imminent U.S.-led 

invasion ofAfghanistan. According to the petitioner, "[Iran] contacted unnamed Taliban 

officials in Kandahar ... to request [a] meeting and offer military 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 on the 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 of the border. GE 56 (UR 2340665602) at 1; GE 60 at 2. 

The petitioner has repeatedly acknowledged that he served as a member ofthe Taliban 

envoy that attended this 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 

The petitioner asserts that some of the petitioner's statements regarding the October 2001 

meeting with Iran resulted from interrogations that occurred while the petitioner was subjected to 

sleep deprivation in March 2002. Petr's Proposed Findings of Fact at 89 n.59. The petitioner 

has, however, provided repeated consistent accounts of this meeting during his CSRT testimony 

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 of undue coercion. See AI-Adahi v. 

Obama,692 F. Supp. 2d 85, 100 (D.D.C. 2010) (concluding that the detainee's CSRT statements 

were not tainted by evidence of coercion during prior interrogations) . 

. In t')f""f 

':V" ' ..,I '\ il> " , 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

31 
UNCLASSIFIEDIIFOR PUBLIC' RELEASE 


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

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

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

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

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

The petitioner has provided highly detailed and consistent accounts ofwhat took place 

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

petitioner stated that at the October 2001 meeting, 

the Iranian delegation offered to purchase for the Taliban hand~held Russian 

manufactured, anti-aircraft missiles, which are superior to Stinger missiles. The 

Iranians claimed these missiles could fire to a higher elevation than a Stinger 

missile The Iranians referred to the missiJe as a SAM haft (Field Comment - the 

word haft means the number seven in the Persian-Afghan language). The 

Iranians refused to give more information on the missiles until the Taliban 

delegation proved they had money to buy the missiles. The Iranians als~ said 

they would buy other military equipment for the Taliban, but would not identifY 

the type of equipment until the Taliban delegation proved they had enough 

money .... The Iranians also offered to open the [IranJ/[Afghanistan] border for 

Arabs traveling to and from [AfghanistanJ. The Iranians would let any Arab past 

their border checkpoints entering [Afghanistan]. 

GE 56 at 2. 

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

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

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

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

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

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

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

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

62 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

. .. I I 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


SIUgM!:l' 

Likewise, during an interrogation the petitioner stated that during 

the October 2001 meeting, 

[tJhe Iranians offered the following to the Taliban: 

• 	 Soviet-made SA-7 shoulder-fired anti-aircraft missiles (which were billed as 

being better than U.S. Stinger missiles)[;] 

• 	 other unspecified military equipment (which Khairkhwa assumed was also 

Russian-made )[; and] 

• 	 an offer to allow an open border between [Imn] and [Afghanistan] to allow 

Arabs from Gulf States unfettered access to [Afghanistan] in order to help the 

Taliban against U.S. and Allied forces. 

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

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

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

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

regarding intelligence collection." Id 

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

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

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

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

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

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

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

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

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

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

U.S.-led invasion ofAfghanistan. 

'(' r' r "r 

63 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

,. -, 	 " . 
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 itself with the United States and the Northern Alliance during Operation Enduring 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

r ' ..' 

64 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

UNCLASSIFIEOIIFOR PUBLIC RELEASE 

SECM'f 

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

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

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

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

because oftheir history of animosity. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

65 

UNCLASSIFIEOIIFOR PUBLIC RELEASE 

I I 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


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

but as a Taliban representative. 

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

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

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

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

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

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

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

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

fact that Taliban leaders in Kandahar designated the petitioner to represent the Taliban in highlevel discussions with senior Iranian officials regarding Iran's offer to provide military assistance 

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

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

responsibilities at the time ofthe outbreak ofhostilities with the United States and strongly 

indicates that he was part ofTaliban forces at that time.32 

The petitioner's role in the October 2001 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 200 I regarding Iran's offer to provide military assistance to the Taliban. See GE 45 at 

3; GE 61 at 1-2. It appears, however, that the November 2001 meeting referred to in these 

exhibits and the October 200 I meeting discussed above are one and the same. See GE 45 at 3; 

GE 61 at 1-2. 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 


32 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


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

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

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

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

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

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

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

forces. 

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

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

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

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

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

67 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


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

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

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

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

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

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

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

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

convoy comprised often vehicles that were full ofweapons. 

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

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

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

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

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

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

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

Accordingly, reliable evidence demonstrates that the petitioner was appointed to 

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

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

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

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

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

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

".·,c'. " 

, .. 1 ; 

~,~)= ~~~ ~ 

68 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

I I 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SELMI 

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

weapons to officials in Kandahar. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

contends provides additional support for the lawfulness of his detention. 

3. The Petitioner Had Close Ties to Mullah Omar 

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

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

69 


UNCLASSIFIEDIIFOR PUBLIC RELEASE 

, I 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1997). 

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

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

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

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

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

1101f 19. 

70 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

I I 
UNCLASSIFIEOIIFOR PUBLIC RELEASE 

SECRET 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The petitioner stated that despjtethe.eubJ~c an!loJ109~1pent. he never actually conducted the 

investigation. GE 46 at 2. t, t ' .:.:' 1 

71 


UNCLASSIFIEOIIFOR PUBLIC RELEASE 

I I 

33 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


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

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

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

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

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

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

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

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

close ties with the population of Herat. PE 75 at 3; PE 76 at 244-45. Herat also contained 

numerous Taliban military installations, including its two largest divisions, as well as the 

headquarters of Taliban intelligence. GE 46 at I. Indeed, as previously noted, one 

contemporaneous media report characterized the petitioner's new position one of the "choicest 

jobs" in the Taliban government, awarded to the petitioner because he was a Mullah Omar 

loyalist. GE 40 at 1. 

Moreover, reliable evidence indicates that the petitioner remained within Mullah Omar's 

inner circle after his appointment as Governor ofHerat, as U.S. coalition forces began their 

assault on Taliban forces. Specifically, the court credits an October 13,2001 intelligence report 

citing information provided by a SeeGE 

72 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

I I 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


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 of detail contained in the officer's account, including 

specific infonnation regarding the locations ofTatiban commanders that has been independently 

corroborated. See id at 2 (reporting that Mullah Rocketi, the "corps commander ofJalalabad[,] 

moves between that city and north Kabul"); PE 70 at 139 (listing Rocketi as the "fonner corps 

commander of Jalalabad"). Lastly, the report ofa missile strike occurring the week before 

October 13,2001 is consistent with the timeline of Operation Enduring Freedom, which 

"commenced on 7 October 2001 with coalition air strikes on al-Qaida and Taliban targets 

throughout Afghanistan." GE 77 at 2. In light ofthese indices ofreliability, the court credits the 

report's account that after a U.S. coalition airstrike in early October 2001, Mullah Omar limited 

his circle of contacts to a handful ofhis most trusted and important "commanders," including the 

petitioner. 

In sum, the court finds implausible the petitioner's contention that he was a reluctant 

Taliban member. Rather, the weight of the evidence indicates that the petitioner had close ties 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

I I 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


with Mullah Dmar and that he remained one of Mullah Omar's most trusted associates before 

and after the U.S.-led invasion ofAfghanistan in October 2001. This finding is consistent with 

the court's earlier conclusions that the petitioner was a key Taliban leader entrusted with military 

responsibilities, which he carried out both before and after the commencement of Operation 

Enduring Freedom. See supra Part IV.B.2. Moreover, the fact that the petitioner was one of 

Mullah Omar's trusted associates undermines the petitioner's contention that he was a simple 

civilian bureaucrat shielded from the Taliban's military activities, and provides a useful starting 

point for assessing the petitioner's contention that he had disassociated himself from the Taliban 

by the time ofhis capture in early 2002. 

4. Tbe Petitioner Remained Part oftbe Taliban at the Time of His Apprehension 

As previously discussed, it is not enough for the government to show simply that the 

petitioner was, at one time, a member of the Taliban, al-Qaida or associated forces; to be 

lawfully detained, the petitioner must have been "part of' those forces at the time 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 or the Taliban can show that he was no longer part of such an entity at the 

time ofcapture by showing that he took affirmative actions to abandon his membership." Khalif 

v. Obama, 2010 WL 2382925, at *2 (D.D.C. May 28, 2010) (citing Al Ginco v. Obama, 626 F. 

Supp.2d 123, 128-30 (D.D.C. 2009)). 

The evidence indicates that after tbe commencement of Operation Enduring Freedom, the 

petitioner began hedging his bets. The petitioner has stated that he met with a group 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 officials present were those "who favored a bloodless, peaceful t '. ;~ , , :( 

\! ','. 

"'" j ~"'-; ,l:,x./' It 

74 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

I , 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


end to the fighting in Afghanistan." ld The petitioner has also stated that in early November 

200I, he contacted Hamid Karzai, who was a member ofthe petitioner's Popalzai tribe and 

whom the petitioner had known for many years, to "solicit his advice" about surrendering to u.s. 

coalition forces. GE 45 at 3; see also GE 18 at I (interrogation report in which the petitioner 

stated that he contacted Hamid Karzai to discuss surrendering after the United States began 

bombing Afghanistan); GE 70 at 4 (petitioner's CSRT testimony in which he states that he 

contacted Hamid Karzai "when Herat was taken over"); GE 91 ~ 7 (stipUlating that the Taliban 

lost control of Herat on or about November 13, 2001). According to the petitioner, this evidence 

demonstrates that he had disassociated himself from the Taliban before he was captured by 

Pakistani authorities in late-January or early-February 2002. See GE 91 ~ 18. 

The court disagrees. Even ifthe petitioner did participate in a secret meeting with highlevel Taliban leaders regarding the surrender ofKandahar, there is no evidence that any 

participant at that meeting surrendered to U.S. coalition forces, publicly or privately broke with 

Mullah Omar or took any action signaling an intent to end hostilities with U.S. coalition forces. 

Indeed, in the month before the surrender 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 ifthe petitioner contacted Hamid Karzai in mid-November 2001 to 

discuss the possibility of surrender, the petitioner did not tum himself in, but was instead 

captured in Chaman, Pakistan approximately three months later. GE 91 ~ 18. The petitioner has 

provided no credible explanation for what he was doing or what steps he had taken to 

disassociate himself from the Taliban during the months after he allegedly contacted Hamid 

Karzai to discuss the possibility of surrender. 

~,,t, 1;''';''<:''' ,,~.: 

. .i <,._ f,.~ __ , ~ 

75 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

I I 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


The petitioner has stated that by the time ofhis capture, he had resolved to cooperate with 

U.S. coalition forces and that he traveled to Chama.n, Pakistan to obtain treatment for a stomach 

ailment before turning himself in. GE 45 at 3; GE 70 at 4; GE 71 at 9. The petitioner, however, 

was not captured at a medical office in Chaman. Rather, it is undisputed that the petitioner was 

captured at the Pakistani residence ofsenior Taliban official Abdul Manan Niazi. GE 91 , 18. 

As previously discussed, Niazi was a fonner Taliban military commander and Governor of 

Kabul, who had personally overseen the massacre ofthousands of Shiites in the city of Mazar-eSharifin August 1998 and was part ofthe Taliban delegation that traveled to Iran in October 

200 I to discuss Iran's offer to provide military assistance to the Taliban. See supra Part 

IV.B.2.a. The fact that the petitioner was captured at the home of a hardlinc TaUban military 

commander greatly undennines the petitioner's contention that he had disassociated himself 

from the Taliban prior to his apprehension by Pakistani authorities. See Al-Bihani v. Ohama, 

2010 U.S. Dist. LEXIS 107590, at *33-34 (D.D.C. Sept. 22, 2010) (noting that the fact that the 

petitioner continued to associate with al-Qaida or Taliban operatives undermined the petitioner's 

argument that he had cut his ties with al-Qaida prior to his apprehension); cf Uthman v. Obama, 

2011 WL 1120282, at *4 (D.C. Cir. Mar. 29,2011) (observing that evidence that the petitioner 

was captured in the company ofTaliban and al~Qaida fighters in the vicinity ofTora Bora 

supported the conclusion that he was lawfully detained). 

The petitioner's claim that he had resolved to cooperate with U.S. coalition forces prior to 

his capture is also undermined by the evasiveness he exhibited during his discussions with U.S. 

interrogators. According to the government, the earliest known interrogation ofthe petitioner 

occurred approximately 3:00 p.m. See Govt's Proposed Findings ofFact 

& Conclusions of Law at 82. The interrogator who conducted this inquiry reported that the 

76 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

I , 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

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 'tap dance' around questions." 

GE 64 (ISN 579 Handnote (Feb. 7,2002) at 1. 

The petitioner's refusal to provide full cooperation has been noted by other interrogators, 

who, as previously noted, have described the petitioner as cunning and evasive. See 

PE 34 at 1. The resistance exhibited by the petitioner during these interrogations is not, in the 

court's view, consistent with the petitioner's claim that he had decided to turn himself in and 

cooperate with U.S. coalition forces before he was apprehended in Pakistan. 

In short, the court does not credit the petitioner's contention that he had disassociated 

himself from the Taliban prior to his capture in Chaman, Pakistan. Rather, the weight ofthe 

evidence, especially the fact that he was captured at the home of a senior Taliban official, 

indicates that the petitioner remained part ofTaliban forces at the time of his capture. 

C. Viewing the Totality ofthe Evidence 

There is no dispute about the basic contours of the petitioner's life. The parties agree that 

the petitioner joined the TaHban in 1994 and became a spokesman and district administrator in 

Spin Boldak. He rose through the Taliban ranks and served as a member of the Taliban Supreme 

Shura, the Taliban's Acting Interior Minister and the Governor ofHerat. The petitioner retreated 

from Herat during Operation Enduring Freedom and that he was ultimately captured by Pakistani 

authorities in Chaman, Pakistan in early 2002. 

The parties have, however, offered two starkly different narratives regarding the 

petitioner's tenure with the Taliban. The petitioner contends that he was simply a civilian 

bureaucrat who had no involvement with the Taliban's military forces, lost Mullah Omar's trust 

over time and eventually broke with him and the Taliban during Operation Enduring Freedom. 

:t~'~I' r"~" ./.... ~ 

,- f 

77 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

, . 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 


According to the government, the petitioner was an experienced military leader who wielded 

military authority before and after the commencement of Operation Enduring Freedom, was a 

member ofMullah Omar's inner circle and remained part 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 concludes that the petitioner, like most other senior Taliban leaders, fought with the 

Afghan mujahideen in the 19805, and, like other senior Taliban leaders with civilian titles, 

participated in the Taliban's military efforts to seize control of Afghanistan, serving as a 

commander ofTaliban fighters during the Taliban's assaults on Mazar-e-Sharifin 1997 and 

1998. Even after his appointment as Governor ofHerat in 1999, the petitioner remained 

integrally involved in the Taliban's military forces, operating within the Taliban's formal 

command structure and facilitating the movement of Taliban troops both before and after the 

commencement of Operation Enduring Freedom. Moreover, on the eve of Operation Enduring 

Freedom, the petitioner was dispatched to Iran by Taliban leaders in Kandahar to discuss Iran's 

offer to provide military assistance to the Taliban in anticipation ofthe imminent U.S.-led 

invasion of Afghanistan. 

Throughout his tenure in the Taliban, the petitioner remained a prominent leader and a 

close ally ofMul1ah Omar. The petitioner's ties to Mullah Omar persisted even after a U.S. 

cruise missile struck Mullah Omar's vehicle in the early days ofOperation Enduring Freedom, 

and MuJlah Omar limited his contacts to his most trusted lieutenants, including the petitioner. 

Although the petitioner reached out to Hamid Karzai to discuss the possibility of 

surrender after the commencement of Operation Enduring Freedom, he never turned himself in 

and was captured at the home ofa senior Taliban official. The evidence, therefore, does not 

78 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

I I 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SECRE'f 

support the petitioner's contention that he had disassociated himself from the Taliban by the time 

of his capture. 

Based on these considerations, the court concludes that the government has established 

by a preponderance ofthe evidence that the 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 of habeas corpus must be denied. 

v. CONCLUSION 

For the foregoing reasons, the court denies the petition for a writ of habeas corpus. An 

Order consistent with this Memorandum Opinion is issued separately and contemporaneously 

this 27th day ofMay, 2011. 

RICARDO M. URBINA 

United States District Judge 

79 


UNCLASSIFIEDIIFOR PUBLIC RELEASE 

I •