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UNITED STATES DISTRICT COURT
 

FOR THE DISTRICT OF COLUMBIA
 

) 

ABDAL RAZAK ALI (ISN 685), ) 

) 

Petitioner, ) 

) 

v.	 ) Civil No. 09-745 (RCL) 

) 

BARACK OBAMA, et al., ) 

) 

Respondents. ) 

--------------) 

MEMORANDUM OPINION 

Petitioner is a detainee at the United States Naval Base in Guantanamo Bay, Cuba 

("Guantanamo") who is challenging the legality of his detention by seeking a writ ofhabeas 

corpus. Presently before the Court is petitioner's Motion [902] for Expedited Judgment. 1 Upon 

consideration of the motion, the opposition and reply thereto, the applicable law, and the entire 

record herein, the motion shall be denied for the reasons set forth below. 

I. BACKGROUND 

Petitioner is an~itizen named Said Bin Brahim Bin Umran Bakhouche.2 

(Factual Return and Narrative [hereinafter Return] , I.) He was captured on March 28, 2002 at a 

guesthouse in Faisalabad, Pakistan. (Id." 1,30.) 

1 Petitioner 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 via phone with the Court. Respondents renewed their opposition 

without modification on September 9, 2009. 

2 In 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 of the underlying documents may still be contested in the future. 

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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.) 

_was not a member of AI-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 of recruits 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 ,_wentto 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_was in 

Faisalabad moving from safehouse to safehouse and making preparations to continue fighting. 

(Id. 8.) 

The Zubaydah house was one of the safehouses that was making preparations to continue 

to fight. Specifically, residents of the 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.) 

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They were also learning computer skills and English while preparing for "martyrdom 

operations." (Supplement 8.) In addition, the Zubaydah house had a close relationship with the 

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, petitioner was 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, stated that 

petitioner was a member ofAI-Qaida 

Petitioner has also provided three inconsistent accounts of his activities after September 

11,2001. In the first two accounts, petitioner traveled to Pakistan with a Libyan, 

(ld. 15.) The purpose of their 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.) 

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In the second account, 

(Id.) 

(Id.) He then arrived at the 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 under the Case Management Order ("CMO") issued by Judge 

Hogan ofthis Court in the consolidated Guantanamo habeas cases, Misc. No. 08-442, on 

November 6, 2008, as amended on December 16,2008, and as amended on December 19, 2008 

[797] by Judge Walton of this Court, and the Supplemental Case Management Order [1011] 

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("SCMO") issued by Judge Walton of this Court in Gherbi v. Bush, Civ. No. 04-1164 on 

February 19,2009, as amended on March 27,2009 [1101].4 

Pursuant to the Amended SCMO: 

[a] petitioner may file a motion for expedited judgment on the record only if the 

petitioner believes in good faith that the allegations set forth in the narrative of the 

factual return for that petitioner, if assumed to be true, do not suffice to justify the 

detention of the petitioner pursuant to any authority conferred to the President by 

the Authorization for Use of Military Force, Pub. L. 107-40 (2001). 

Amended SCMO [1101] at 7. Accordingly, a motion for expedited judgment on the record 

operates so that all allegations in the factual return are assumed to be true, and the Court gives 

respondents "the benefit of all 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] on May 21,2009. 

The relevant portion of the standard provides: 

[U]nder the AUMF ... [t]he President has authority to detain persons who are or 

were part of the Taliban or AI Qaeda forces or associated forces that are engaged 

in hostilities against the United States or its coalition partners, including any 

person who has committed (i.e., directly participated 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 

"enemy combatant." (Mot. at 13-17.) In addition, the Hamlily standard is consistent with 

international law and the principles of co-belligerency. See Curtis A. BradeIy & Jack L. 

Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2047, 

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accepting all respondents' factual allegations as true and giving respondents the benefit of all 

reasonable inferences derived from the facts alleged, the factual return suffices to show that 

petitioner is part of the enemy armed forces, and therefore may be detained under the 

Authorization for Use of Military Force ("AUMF"). 

III. ANALYSIS 

A. Petitioner Was Functionally Part Of The Enemy Forces 

Accepting all allegations as true and giving respondents the benefit of all reasonable 

inferences derived from the facts alleged, the Court finds that the factual return suffices to show 

that petitioner is part of the enemy armed forces, and thus may be detained pursuant to the 

AUMF. 

It is undisputed that petitioner was not a member of Al-Qaida or the Taliban. (See Return 

~~ 27-29.) However, one need not be a member of Al-Qaida or the Taliban in order to be 

detained. As stated in Hamlily, "[t]he key inquiry ... is not necessarily whether one selfidentifies as a member of the organization ... , but whether the individual/unctions or 

participates within or under the command structure ofthe organization-i.e, whether he receives 

and executes orders or directions." 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 of enemy forces, and therefore may be detained under the AUMF. 

First, petitioner has received military training on at least two occasions. 

(Return at 8 n.4) 

2112-13 (2005) (stating that international law recognizes that an enemy in an armed conflict 

includes the enemy's associates and arguing that associates or agents of Al-Qaida are therefore 

recognized enemies under international law.) 

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(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 may take many forms. I I. eel., 

"Names, Aliases, Kunyas and Variants" at 4 (September 19,2008).) Aliases may be descriptive 

ofa physical trait or, like a nisba, may identify the residence of the person. (ld. at 3-4.) _ 

which demonstrates that petitioner identified himself as an 

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

to show that he was functionally part of the 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 himself as a Libyan in order to provide cover for his true identity. 

Third, several individuals have stated that they saw petitioner in Afghanistan. _ 

Serving as a driver is sufficient to 

demonstrate that an individual is functionally part of the enemy forces. See Hamlily, 616 F. 

Supp. 2d at 75 (stating that an individual who houses, feeds or transports, AI-Qaida forces may 

be considered functionally part ofthe enemy forces.) Thus, these allegations contradict 

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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 of the enemy 

forces. The Zubaydah house served as a place in which forces were reconstituting to return to 

battle. (Supplement 8.) 

(Id. 14.) 

Furthennore, many of the individuals captured on the raid ofthe Zubaydah house had fled 

Afghanistan. (Id. 15.) Because petitioner was 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 of the enemy force. 

Moreover, the fact tha does not 

Guesthouses, such as the Zubaydah house, had standard operating procedures. ~ecl. at 

3.) The administrator of the house would take one's "passport, identification, money, or other 

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 of someone 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.) 

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respondents the benefit of all reasonable inferences, the Court finds that the factual return 

suffices to show that petitioner is part of the enemy armed forces, and thus may be detained 

pursuant to the AUMF. Accordingly, petitioner's motion is denied. 

B. Respondents Do Not Advance A "Guilt by Association" Theory 

Petitioner contends that respondents advocate a "guilt by association" theory to justify 

petitioner's detention. (Mot. at 7-9.) In support of his argument, petitioner cites several First 

Amendment cases which are inapposite. To be sure, the First Amendment protects 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 of the enemy forces. See Hamlily, 616 F. 

Supp. 2d at 75. 

To answer that question, the Court must view the evidence as a whole. One such piece 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 with the allegations that 

plausible that petitioner was functionally part of the enemy forces. 

Supplement 14.) Accordingly, the Court finds that petitioner's "guilt by association" argument 

is inapplicable to petitioner's habeas proceeding. 

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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. 

DATE	 

~c.;/~ RO E C. LAMBERTH 

CHIEF JUDGE 

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