* Al Rabiah v. United States (D.D.C. Sep. 17, 2009) (released in unclassified format Friday September 26th)
Judge Kollar-Kotelly has granted habeas relief to GTMO detainee Fouad Mahmoud Al Rabiah. The 65-page opinion is posted here. Some key excerpts follow (please note that I’ve not corrected the formatting errors that occur when copying text from a pdf to Microsoft Outlook):
On the overall outcome:
The evidentiary record 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 The Government has withdrawn its reliance on most of the evidence and allegations that were once asserted against Al Rabiah, and now relies almost exclusively on Al Rabiah’s “confessions”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 same confessions 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 to information that his interrogators obtained from either alleged eyewitnesses who are not credible and as to whom the Government has now largely withdrawn any reliance, or from sources that never even existed. (slip op. at 1)
[T]he Court concludes that Al Rabiah’s uncorroborated confessions are not credible or reliable, and that the Government has failed 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 not been presented to this Court. Al Rabiah’s petition for habeas corpus is GRANTED. (slip op. at 2)
On the evidentiary principles to be applied:
[T]he Court shall deny the Government’s motion to have its evidence admitted with a presumption of accuracy and authenticity.(slip op. at 5)
The Court also finds that there are significant reasons why the Government’s proffered evidence may not be accurate or authentic. Some of the evidence advanced by the Government has been “buried under the rubble of war,” Hamdi, 542 U.S. at 532, in circumstances that have not allowed the Government to ascertain its chain of custody, nor in many instances even to produce infonnation about the origins of the evidence. Other evidence is based on so-called “unfinished” intelligence, infonnation that has not been subject to each of the five steps in the intelligence cycle (planning, collection, processing, analysis and production, and dissemination). Based on the Government’s own declarations, its raw intelligence may not have been fully analyzed for its “reliability, validity, and relevance” in the context of other intelligence where “judgments about its collective meaning” are made. (slip op. at 6)
Still other evidence is based on multiple layers ofhearsay (which inherently raises questions about reliability), or is based on reports of interrogations (often conducted through a translator) where translation or transcription mistakes may occur. (slip op. at 7)
On the scope of the president’s detention authority in the abstract:
the Court shall adopt the reasoning set forth in Judge John D. Bates’s decision in Hamlily v. Obama, and shall partially adopt the Government’s proposed definition of its detention authority.7 The Court agrees that the President has the authority to detain individuals who are “part of’ the Taliban, al Qaeda, or associated enemy forces, but rejects the Government’s definition insofar as it asserts the authority to detain individuals who only “substantially supported” enemy forces or who have “directly supported hostilities” in aid of enemy forces. While evidence of such support is undoubtedly probative of whether an individual is part of an enemy force, it may not by itself provide the grounds for detention. (slip op. at 9)
the “key inquiry” for determining whether an individual has become “part of’ one or more of these organizations is “whether the individual functions or participates within or under the command structure of the organization -i.e., whether he receives and executes orders or directions.” (slip op. at 10)
On the credibility of statements by other detainees that inculpated Al Rabiah, the court noted first that the government withdrew reliance on most such statements, and as to others the court found several of those detainees not to be credible based on inconsistencies in their statement. The court rejected reliance on one specifically because that person’s inculpatory statements were made within a week of having undergone sleep deprivation (and possibly other methods of interrogation, though the redactions make it hard to parse this section).
On Al Rabiah’s own inculpatory statements made while in detention:
the Court finds that none of the alleged eyewitnesses have provided credible allegations against Al Rabiah. Although the Government withdrew most of its reliance on these witnesses for purposes of the Merits Hearing, it is very significant that Al Rabiah’s interrogators apparently believed these allegations at the time they were made, and therefore sought to have Al Rabiah confess to them. As the evidence in the record reflects, Al Rabiah subsequently confided in interrogators b(1), b(2) that he was being pressured to falsely confess to the allegations discussed above. Nevertheless, Al Rabiah’s interrogators ultimately extracted confessions from him, but they never believed his confessions based on the comments they included in their interrogation reports. (slip at 27)
Al Rabiah’s confessions all follow the same pattern: Interrogators first explain to Al Rabiah the “evidence” they have in their possession (and that, at the time, they likely believed to be true). Al Rabiah then requests time to pray (or to think more about the evidence) before making a “full” confession. Finally, after a period of time, Al Rabiah provides a full confession to the evidence through elaborate and incredible explanations that the interrogators themselves do not believe. This pattern began with his confession that he met with Usama bin Laden, continued with his confession that he undertook a leadership role in Tora Bora, and repeated itself multiple other times with respect to “evidence” that the Government has not even attempted to rely on as reliable or credible.(slip at 34)
The Court agrees with the assessment ofAl Rabiah’s interrogators, as well as Al Rabiah’s counsel in this case, that AI Rabiah’s confessions are not credible. Even beyond the countless inconsistencies associated with his confessions that interrogators identified throughout his years of detention, the confessions are also entirely incredible. The evidence in the record reflects that, in 2001, Al Rabiah was a 43 year old who was overweight, suffered from health problems, and had no known history of terrorist activities or links to terrorist activities. He had no military experience except for two weeks ofcompulsory basic training in Kuwait, after which he received a medical exemption. He had never traveled to fghanistan prior to 2001. Given these facts, it defies logic that in October 2001, after completing a two-week leave fonn at Kuwait Airlines where he had worked for twenty years, Al Rabiah traveled to Tora Bora and began telling senior al Qaeda leaders how they should organize their supplies in a six square mile mountain complex that he had never previously seen and that was occupied by people whom he had never previously met, while at the same time acting as a supply logistician and mediator of supply disputes that arose among various fighting factions. (slip 46-47)
[T]he Government emphasized that, even if Al Rabiah’s confessions in 2003 were the product ofabuse or coercion, Al Rabiah repeated his confessions during his Combatant Status Review Tribunal (“CSRT”) proceeding in 2004. The Government argued that the taint of any abuse or coercion in 2003 would have dissipated by the time he provided these later confessions. 8/31/09 Merits Hrg. Tr. at 66 (“any kind ofabuse or coercion certainly … was attenuated one year later by the time of the CSRT statement and beyond”). The Court rejects this argument for both factual and legal reasons. As a factual matter, Al Rabiah’s confessions in connection with his CSRT proceeding are essentially the same as the confessions that his interrogators found to lack credibility when he originally made them, with some variations and inconsistencies. The evidence in the record suggests that Al Rabiah repeated these confessions in the false belief that it would allow him tob~freturn to Kuwait (slip at 49-50)
[editor’s note: This is a particularly important passage] As a legal matter, it is certainly true in the criminal context that coerced confessions do not necessarily render subsequent confessions inadmissible because the coercion can be found to have dissipated. United States v. Bayer, 331 U.S. 532,541 (1941) (holding that a “confession [obtained] under circumstances that preclude its use,” does not “perpetually disable[] the confessor from making a usable one after those conditions have been removed”). Nevertheless, the Court must consider the “totality ofthe circumstances” in order to determine whether there exists evidence from which to find that there was a “clean break” between the coercion and the later confessions. United States v. Karake, 443 F. Supp. 2d 8, 87-88 (D.D.C. 2006). The legal defect associated with the Government’s argument is that it has failed to submit evidence from which the Court could find that the coercion that existed in 2003 had dissipated by 2004. In particular, the Government did not submit into evidence any interrogation reports from November 2003 to July 2004, and provided no information about whether Al Rabiah was interrogated during this period or whether he continued to have contact wittll1llll If anything, the evidence suggests that there was not a “clean break” between the coercion and his laterstatements because there is evidence tha_continued to appear at Al Rabiah’s interrogation sessions through at least September 2004. Ex. 14 at 1 Accordingly, the Court has no basis to find, by a preponderance ofthe evidence, that the confessions that Al Rabiah repeated in 2004 are reliable and credible. (slip op. 51-52)