UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNITED STATESDISTRICT COURT FORTHE DISTRICT OF COLUMBIA ) ABDAL RAZAKALI (ISN 685), ) ) Petitioner, ) ) 

### v. ) Civil No. 09-745 (RCL) ) BARACKOBAMA,

### etal., ) ) Respondents. ) --------------) MEMORANDUM OPINION Petitioner is a detainee at the United States Naval Base in Guantanamo Bay, Cuba ("Guantanamo") who is challenging the legality ofhis detention by seeking a writ ofhabeas corpus. Presently before the Court is petitioner's Motion [902] for Expedited Judgment. 1 Upon consideration ofthe motion, the opposition and reply thereto, the applicable law, andthe entire record herein, the motion shall be denied for the reasons set forth below. I. BACKGROUND Petitioner is

### an~itizen named Said Bin Brahim BinUmran Bakhouche.2 (Factual Return and Narrative [hereinafterReturn] , I.) He was captured on March 28, 2002 at a guesthouse in Faisalabad, Pakistan. 

### (Id." 1,30.)

1Petitioner originally filed his Motion [902] for Expedited Judgment on January 16, 2009. Petitioner renewed the motion without modification on May 28,2009 (See Order [1190]), and again on August 28, 2009 viaphone with the Court. Respondents renewedtheir opposition without modification on September 9, 2009.
2In his motion, petitioner objects to many ofthe underlying documents relied upon in the factual return and its supplement because they are unreliable. (Mot. at 9-13.) For the purposes of this motion, however, the Court must accept all factual allegations as true. Nevertheless, the veracity ofthe underlying documents may still be contested in the future.

UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR PUBLIC RELEASE

15,21.) a facilitator for AI-Qaida forces, controlled the guesthouse [hereinafter Zubaydah house] and was also captured there. (Id. 30; Supplemental Narrative [hereinafter Supplement] I.)
31.) _wasnot a member ofAI-Qaida. (Supplement 1.) However, he associated with Usama bin Laden and actively supported AI-Qaida. 

### (Id.) Indeed, he met with bin Laden on several occasions. (Id.) He facilitated the travel ofrecruits to the Khaldan terrorist training camp in Afghanistan from 1994 until its closure in 2000.3 (Id.**~~** 3, 4.) After the terrorist attacks of September 11, 2001 ,_went to Khost, Afghanistan to prepare for the expected offensive against bin Laden. (ld. 5.) Then, when the Taliban retreated from Kandahar, he focused his efforts on helping fighters escape to Pakistan. (Id. 6). By late March 2002_wasin Faisalabad moving from safehouse to safehouse and making preparations to continue fighting. (Id. 8.) The Zubaydah house was one ofthe safehouses that was making preparations to continue to fight. Specifically, residents ofthe house were attempting to make chemical weapons,

Decl., "Guesthouses," p. 8 (Sept. 19,2008).)

3 The Khaldan camp was independent from AI-Qaida,

## bU~"coordinated and cooperated with bin Laden in the conduct oftraining and trainee movements between the camps." (Supplement 4.) 2

UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR PUBLIC RELEASE

They were also learning computer skills and English while preparing for "martyrdom operations." (Supplement 8.) In addition, the Zubaydah house had a close relationship withthe Issa house, another Faisalabad safehouse making preparations to continue to fight. (See Supplement**~~** 9-13.) According t who resided at the Zubaydah house and was captured with petitioner, petitionerwas aware ofthese activities taking place at the Zubaydah house. (Id. 14.)

who
(ld. 27.) also identified petitioner In addition to residing at the Zubaydah house,

(ld.) None ofthe individuals who identified petitioner, however, statedthat petitionerwas a member ofAI-Qaida

Petitioner has also providedthree inconsistent accounts ofhis activities after September 11,2001. In the first two accounts, petitionertraveled to Pakistan with a Libyan, (ld. 15.) The purpose oftheir trip was to learn how to read and write, and to study Islam. (ld.) In the first account, petitioner thought he arrived at a house in Pakistan in October 2001, but later learned that he was actually in Kabul, Afghanistan. (ld. 16.) He gave his passport and money to who then left petitioner in Kabul. (ld.) Three weeks later, petitioner arrived at the Zubaydah house in Faisalabad. (ld. 17.)
3

UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR PUBLIC RELEASE

In the second account,

(Id.) (Id.) He then arrived atthe Zubaydah house, where he stayed for about sixteen days before he was captured. (Id. 19.) In his most recent account, petitioner admitted that (Id.

(Id.) Petitioner (Id.**~~** 24-25.) Last, petitioner has received military training. (Id.)

(Id. at 8 nA), and Id. 26). 

### II. LEGAL STANDARD This Court is operating underthe Case Management Order ("CMO") issued by Judge Hogan ofthis Court inthe consolidated Guantanamo habeas cases, Misc. No. 08-442, on November 6, 2008, as amended onDecember 16,2008, and as amended on December 19, 2008 [797] by Judge Walton ofthis Court, and the Supplemental Case Management Order [1011]
4

UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR PUBLIC RELEASE

("SCMO") issued by Judge Walton ofthis Court in Gherbi v. Bush, Civ. No. 04-1164 on February 19,2009, as amended onMarch 27,2009 [1101].4 Pursuant to the Amended SCMO: [a] petitioner may file a motion for expeditedjudgment on the record onlyifthe petitioner believes in good faith that the allegations set forth in the narrative ofthe factual return for that petitioner, ifassumed to be true, do not suffice tojustifythe detention ofthe petitionerpursuant to any authority conferred to the President by the Authorization for Use ofMilitary Force, Pub. 

### L. 107-40 (2001). Amended SCMO [1101] at 7. Accordingly, a motion for expeditedjudgment onthe record operates so that all allegations in the factual return are assumed to be true, and the Court gives respondents "the benefit ofall reasonable inferences derived from the facts alleged." Tooley v. Napolitano, 556 F.3d 836, 839 (D.C. Cir. 2009). This Court adopted the detention standard articulated by Judge Bates in Hamlily v. Obama, 616 F. Supp. 2d 63 (D.D.C. 2009), in a Memorandum Opinion [1187] onMay 21,2009. The relevant portion ofthe standard provides: [U]nderthe AUMF
... [t]he President has authority to detain persons who are or were part ofthe Taliban orAI Qaeda forces or associated forces that are engaged in hostilities against the United States orits coalition partners, including any person who has committed (i.e., directlyparticipated in) a belligerent act in aid of such enemy armed forces. Id at**77-78.~** Accordingly, for the purposes ofthis motion, this Court.must determine whether,
4This petition was originally before Judge Walton ofthis Court, and he amended Judge Hogan's CMO and issued a SCMO before the petition was transferred to the undersigned member ofthis Court on April 21, 2009 [1153]. Accordingly, Judge Walton's Amended CMO is binding on this Court. In adopting this standard, the Court resolved petitioner's issues with the definition of "enemycombatant." (Mot. at 13-17.) 

### In addition, the Hamlily standard is consistent with international law and the principles ofco-belligerency. See Curtis A. BradeIy & Jack 

### L. Goldsmith, CongressionalAuthorization andthe War on Terrorism, 118 Harv. 

### L. Rev. 2047, 

### 5

UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR PUBLIC RELEASE

accepting all respondents' factual allegations as true and giving respondents the benefit ofall reasonable inferences derived from the facts alleged, the factual return suffices to show that petitioner is part ofthe enemy armed forces, and therefore may be detained under the Authorization for Use ofMilitary Force ("AUMF"). 

### III. ANALYSIS 

### A. PetitionerWas Functionally Part OfThe Enemy Forces Accepting all allegations as true and giving respondents the benefit ofall reasonable inferences derived from the facts alleged, the Court finds that the factual return suffices to show that petitioner is part ofthe enemy armed forces, and thus may be detained pursuant to the AUMF. Itis undisputed that petitioner was not a member ofAl-Qaida or the Taliban. (See Return**~~** 27-29.) However, one need not be a member ofAl-Qaida or the Taliban in order to be detained. As stated inHamlily, "[t]he key inquiry
... is not necessarily whether one selfidentifies as a member ofthe organization
... , but whether the individual/unctions or participates within or under the command structure ofthe organization-i.e, whether he receives and executes orders ordirections." 616 F. Supp. 2d at 75 (emphasis added). In applying the Hamlily inquiry, the factual allegations, accepted as true and viewed as a whole, demonstrate that petitioner is functionally part ofenemy forces, and therefore may be detained underthe AUMF. First, petitioner has received military training on at least two occasions. (Return at 8 n.4)
2112-13 (2005) (stating that international lawrecognizes that an enemy in an armed conflict includes the enemy's associates and arguing that associates or agents ofAl-Qaida are therefore recognized enemies under international law.) 6

UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR PUBLIC RELEASE

(Id. 26). His training and experience would make him

It is common an asset to the enemy forces either as a fighter or a trainer
practice for terrorists to use aliases, which maytake many forms. I I. eel., "Names, Aliases, Kunyas and Variants" at 4 (September 19,2008).) Aliases may be descriptive ofaphysical trait or, like a nisba, may identify the residence ofthe person. (ld. at 3-4.)
_ which demonstrates that petitioner identified himselfas an

_ (Id. at 9.) The fact that members ofthe enemy force knew petitioner by his alias tends

to show that he was functionally part ofthe enemy forces and was known in their network. " In addition to identifying petitioner as (Return 27; Decl. at 9.) Terrorists often use multiple aliases, which may change upon one's location, "to provide a degree of'cover' or operational security." (Id. at 4.) Accordingly, this shows that petitioner may have attempted to identify himselfas a Libyan in order to provide cover for his true identity. Third, several individuals have stated that they sawpetitioner in Afghanistan.
_

Serving as a driver is sufficient to demonstrate that an individual is functionally part ofthe enemy forces. 

### See Hamlily, 616 F. Supp. 2d at 75 (stating that an individual who houses, feeds ortransports, AI-Qaida forces may be considered functionally part ofthe enemy forces.) Thus, these allegations contradict 

### 7

UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR PUBLIC RELEASE

petitioner's present position that

6 (Return 25.)
(Id. , 31). The fact that petitioner was allowed to stay at the same house as

## ~nd other combatants demonstrates that it is plausible petitioner was part ofthe enemy forces. The Zubaydah house served as a place in which forces were reconstituting to return to battle. (Supplement 8.) (Id. 14.) Furthennore, many ofthe individuals captured onthe raid ofthe Zubaydah house had fled Afghanistan. (Id. 15.) Because petitionerwas seen in Afghanistan in the fall of2001, it is plausible that he too arrived at the Zubaydah house after fleeing Afghanistan.
disqualify petitioner from being functionally a part ofthe enemy force. Moreover, the fact tha does not
Guesthouses, such as the Zubaydah house, had standard operating procedures.

### ~ecl. at 3.) The administrator ofthe house would take one's "passport, identification, money, orother travel documents." (Id.) This enabled the administrator to exercise great control over individuals at a guesthouse, including directing individuals to go to other guesthouses. 

### (Id.) hich tends to show that he was under the control ofsomeone in the enemy force. (Return**~~** 16, 18.) In sum, in viewing the entire record and accepting all allegations as true and giving**~titioner'** s initial accounts _(Return**~~** 16-18.) 

### 8

UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEOIIFOR PUBLIC RELEASE

respondents the benefit ofall reasonable inferences, the Court finds that the factual return suffices to showthat petitioner is part ofthe enemy armed forces, and thus may be detained pursuantto the AUMF. Accordingly, petitioner's motion is denied. B. Respondents Do Not Advance A "Guilt by Association" Theory Petitioner contends that respondents advocate a "guiltby association" theory tojustify petitioner's detention. (Mot. at 7-9.) In support ofhis argument, petitioner cites several First Amendment cases which are inapposite. To be sure, the First Amendmentprotects an individual's freedom to associate. U.S. CONST. amend. I. That right, however, is not at issue. The issue is whether petitioner is functionally part ofthe enemy forces. 

### See Hamlily, 616 F. Supp. 2d at 75. To answer that question, the Court must viewthe evidence as a whole. One suchpiece of evidence is petitioner's association with the Zubaydah guesthouse. As stated above, the guesthouse served as a safehouse for reconstituting forces to continue to fight. (Supplement 8.) When petitioner's association is viewed withthe allegations that
plausible that petitioner was functionally part ofthe enemy forces. Supplement 14.) Accordingly, the Court finds that petitioner's "guilt by association" argument is inapplicable to petitioner's habeas proceeding.

9

UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR PUBLIC RELEASE

IV. CONCLUSION For the reasons stated above, petitioner's Motion for Expedited Judgment on the Record is denied. A separate order shall issue this date.

# ~c.;/~ DATE RO E C. LAMBERTH CHIEF JUDGE

10

UNCLASSIFIEDIIFOR PUBLIC RELEASE