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Fouad Al Rabiah Opinion

Fouad Al Rabiah Opinion

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Published by Aaron Wiener

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Published by: Aaron Wiener on Sep 25, 2009
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UNCLASSIFIEDIIFOR PUBLIC RELEASEFILED WITH THE
         
TY
UNITED STATES
DISTRICT COURT
FOR THE
DISTRICTOFCOLUMBIA
   
ceo:
DATE:
I
'1
   
AJ
,
'
)
FOUAD MAHMOUD
)
AL RABIAH,
et
al.
)
)
Petitioners,
)
)
v.
)
Civil. Action No. 02-828 (CKK)
)
UNITED STATES,
et al.,
)
)
Respondents.
))
-------------)
CLASSIFIED MEMORANDUM
OPINION
(September
17,
2009)Petitioner Fouad Mahmoud
Al
Rabiah ("AI Rabiah") has been detained by the UnitedStates Government at the Guantanamo Bay Naval Base in Cuba since 2002. The evidentiaryrecord
on
which the Government seeks to justify his indefinite detention is surprisingly bare.The Government has withdrawn its reliance on most
of
the evidence and allegations that wereonce asserted against Al Rabiah, and now relies almost exclusively
on
Al Rabiah's "confessions"to certain conduct. Not only did
Al
Rabiah's interrogators repeatedly conclude that these sameconfessions were not believable -which
Al
Rabiah's counsel attributes to abuse and coercion,some
of
which is supported by the record -but it is also undisputed that
AI
Rabiah confessed toinformation that his interrogators obtained from either alleged eyewitnesses who are not credibleand as to whom the Government has now largely withdrawn any reliance, or from sources thatnever even existed. Far from providing the Court with credible and reliable evidence
as
the basisfor
Al
Rabiah's continued detention, the Government asks the Court to simply accept the sameconfessions that the Government's own interrogators
did
not credit, and to ignore the assessment
UNCLASSIFIEDIIFOR PUBLIC RELEASE
Case 1:02-cv-00828-CKK Document 645 Filed 09/25/2009 Page 1 of 65
 
UNCLASSIFIEDIIFOR PUBLIC RELEASE
Based on this record (or more accurately, in spite
of
it), the Government asserts that it hasthe authority to detain Al Rabiah pursuant to the Authorization for the
Use
of
Military Force,Pub.
L.
No.1
07-40, § 2(a), 115 Stat. 224, 224 (2001) ("AUMF"), which authorizes the use
of
force against certain terrorist nations, organizations, and persons.
Al
Rabiah believes he isunlawfully detained and has filed a petition for a writ
of
habeas corpus.
In
connection with its inquiry into whether
Al
Rabiah is lawfully detained, the Court hasconsidered the factual evidence in the record, the extensive legal briefings submitted
by
theparties, and the arguments presented during a four-day Merits Hearing held on August 26-28,2009, and August 31, 2009, during which the parties proffered evidence based on the writtenrecord and did not present any live testimony. Based on the foregoing, the Court concludes that
Al
Rabiah's uncorroborated confessions are not credible or reliable, and that the Government hasfailed to provide the Court with sufficiently credible and reliable evidence to meet its burden
of
persuasion.
If
there exists a basis for
Al
Rabiah's indefinite detention,
it
most certainly has notbeen presented to this Court. Al Rabiah's petition for habeas corpus is GRANTED.
I. BACKGROUND
A.
Procedural History
Al
Rabiah filed his petition for habeas corpus on May
1,
2002, making this case the oldest
of
the pending Guantanamo Bay habeas cases. After several years
of
litigation, this case wasstayed pending resolution
of
whether the Court had jurisdiction to hear
Al
Rabiah's petition. OnJune 12,2008, the United States Supreme Court issued its decision in
Boumediene
v,
Bush,
I
Al
Rabiah did listen to the unclassified opening statements
of
counsel.
2
UNCLASSIFIEDIIFOR PUBLIC RELEASE
Case 1:02-cv-00828-CKK Document 645 Filed 09/25/2009 Page 2 of 65
 
UNCLASSIFIEDIIFOR PUBLIC RELEASE
clarifYing that this Court had jurisdiction to consider the petition and advising this and the otherjudges
in
this District that "[t]he detainees are entitled to
[]
prompt habeas corpus hearing[s]."
553
U.S.
_,
]
28
S.
Ct. 2229, 2275 (2008).Following the
Boumediene
decision, this and most
of
the other judges in this Districtagreed to consolidate their Guantanamo Bay habeas cases before fonner Chief Judge Thomas
F.
Hogan for issuance
of
an initial case management order that would expeditiously move thesecases toward resolution. Judge Hogan issued a Case Management Order
on
November 6,2008,which he amended on December 16, 2008, and which the Court adopted in this case onDecember 22, 2008. The Court has relied on the Amended Case Management Order as thebackdrop for its subsequent Scheduling Orders in this case?The Government filed an Amended Factual Return on September 5, 2008, and pursuantto the schedule set by the Court, Al Rabiah filed a Traverse on March 30, 2009. The partiesengaged in extensive discovery and motions practice in the interim. Al Rabiah filed a Motion forAdditional Discovery on January 26, 2009, which the Court granted-in-part and denied-in-part onFebruary
12,
2009, after a hearing on February 1], 2009. Al Rabiah filed a Motion to Produce aDeclassified Factual Return on January
9,
2009, which the Government produced on February
6,
2009. The Court also required the Government to provide
Al
Rabiah with certain discovery fromthe Guantanamo Bay Joint Task Force database, although the parties decided to narrow theGovernment's search obligations
in
order to expedite the production
of
specific documents
in
2
The Court extends its gratitude to Judge Hogan for his considerable investment
of
timeand energy to produce the Case Management Order.
3
UNCLASSIFIEDIIFOR PUBLIC RELEASE
Case 1:02-cv-00828-CKK Document 645 Filed 09/25/2009 Page 3 of 65

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