Memorandum Opinion in Khairkhwa v. Obama

This matter comes before the court on the petition for a writ of habeas corpus filed by Khairulla Said Wali 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 of his 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 of exhibits from a 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 of Kabul and a member of the Taliban's highest governing body, the Supreme Shura. The petitioner was a close associate of Taliban 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 of his posts within the Taliban, the record belies that contention. The petitioner has repeatedly admitted that after the terrorist attacks of September 11, 2001, he served as a member of a 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 of Taliban military installations, the relative capabilities of different weapons systems and the locations of 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 Taliban's governance model, in which nearly all senior Taliban officials were tasked with both civilian and military 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 limited his contacts to only his most trusted commanders. The petitioner remained part of Taliban 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 of Taliban forces at the time ofhis capture. The petitioner is therefore lawfully detained and his petition for a writ of habeas corpus must be denied.