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Shafiiq v. Obama

United States District Court, District of Columbia

June 5, 2013

SHAFIIQ, et al., Petitioners,
v.
BARACK OBAMA, et al., Respondents. IN RE PETITION OF SUFYIAN BARHOUMI

Page 14

For SHAFIIQ, (Last Name Unknown), Detainee, Petitioner: Omar A. Farah, New York, NY; Shayana Devendra Kadidal, New York, NY; Susan S. Hu, New York, NY.

For JAMAAL KIYEMBA, As next friend of Shafiiq (Last Name Unknown), Petitioner: Mona L. Burton, HOLLAND & HART, LLP, Salt Lake City, UT; Shayana Devendra Kadidal, New York, NY.

For DONALD RUMSFELD, Secretary, United States Department of Defense, Respondent: John P. Lohrer, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Antitrust Division, Washington, DC; Scott Michael Marconda, LEAD ATTORNEY, Alexander Kenneth Haas, David Hugh White, U.S. DEPARTMENT OF JUSTICE, Washington, DC; Terry Marcus Henry, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, CIVIL DIVISION, Washington, DC; Andrew I. Warden, Patrick D. Davis, Robert J. Prince, U.S. DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Washington, DC; Julia A. Berman, Kathryn Celia Davis, Paul A. Dean, U.S. DEPARTMENT OF JUSTICE, Federal Programs Branch, Washington, DC.

For JAY HOOD, Army Brigadier General, Commander, Joint Task Force-GTMO, MIKE BUMGARNER, Army Colonel, Commander, Joint Detention Operations Group-JTF-GTMO, Respondents: Daniel Mark Barish, LEAD ATTORNEY, Andrew I. Warden, Patrick D. Davis, Robert J. Prince, U.S. DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Washington, DC; John P. Lohrer, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Antitrust Division, Washington, DC; Scott Michael Marconda, LEAD ATTORNEY, Alexander Kenneth Haas, David Hugh White, U.S. DEPARTMENT OF JUSTICE, Washington, DC; Terry Marcus Henry, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, CIVIL DIVISION, Washington, DC; Julia A. Berman, Kathryn Celia Davis, Paul A. Dean, U.S. DEPARTMENT OF JUSTICE, Federal Programs Branch, Washington, DC.

For BARACK HUSSEIN OBAMA, II, President of the United States, Respondent: Daniel Mark Barish, LEAD ATTORNEY, Patrick D. Davis, U.S. DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Washington, DC; R. H. Bowles, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC; Paul A. Dean, U.S. DEPARTMENT OF JUSTICE, Federal Programs Branch, Washington, DC.

For ASSOCIATED PRESS, NEW YORK TIMES COMPANY, USA TODAY, Movants: Jeanette Melendez Bead, LEAD ATTORNEY, LEVINE SULLIVAN KOCH & SCHULZ, LLP, Washington, DC.

OPINION

Page 15

ROSEMARY M. COLLYER, United States District Judge.

Sufyian Barhoumi, a native of Algeria, is a detainee held by the United States at Guantá namo Bay, Cuba. This Court previously denied his petition for a writ of habeas corpus and was sustained on appeal, on the basis that he was " 'part of an al-Qaida-associated force engaged in hostilities against the United States or its coalition partners and was therefore lawfully detained." Barhoumi v. Obama, 609 F.3d 416, 418, 391 U.S.App. D.C. 207 (D.C. Cir. 2010). Mr. Barhoumi presents new evidence and argues that he should be relieved from the final judgment against him. The government disagrees. Having considered all of the materials submitted, the underlying record, and the parties' arguments, the Court will deny the motion.

I. BACKGROUND

Sufyian Barhoumi was captured in Faisalabad, Pakistan, in February 2002, during the height of the hostilities in Afghanistan after the attack on September 11, 2001. [2] He had left Algeria after high school and ended up in London, where he attended a mosque that featured films depicting Russian atrocities against Muslims in Chechnya. " Inspired by these films, Barhoumi traveled to Karachi, Pakistan, and then to Jalalabad, Afghanistan, where he trained to fight alongside the Chechens in their struggle against the Russian government." Barhoumi, 609 F.3d at 418. Mr. Barhoumi trained at several military camps in Afghanistan, including Khaldan, a camp run by Abu Zubaydah, " a reputed terrorist leader who commanded his own fighting force" and who was associated with Osama bin Laden, although Abu Zubaydah was not directly under bin Laden's command. Id. Abu Zubaydah " had agreed with Usama bin Laden to coordinate training efforts and allow Khaldan recruits to join al-Qaida." Id. Along the way, Mr. Barhoumi lost all of the fingers and most of his thumb on one hand when a bomb with which he was training exploded prematurely.

Mr. Barhoumi fled Afghanistan through the mountains into Pakistan in late 2001. " In his ARB hearing, [Mr.] Barhoumi testified that he traveled to a guesthouse in Faisalabad, Pakistan, in February 2002," where he was arrested approximately 10 days later " along with Abu Zubaydah, who was also staying at the Faisalabad guesthouse." Id. at 419. Mr. Barhoumi was taken into U.S. custody in May 2002 and transferred to Guantá namo. Id.

Mr. Barhoumi filed a petition for writ of habeas corpus in July 2005. Although this Court dismissed his case after Congress

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passed the Military Commissions Act of 2006, 28 U.S.C. § 2241(e), it vacated that decision when the Supreme Court decided Boumediene v. Bush, 553 U.S. 723, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008), and held that Guantá namo detainees have constitutional protections to file writs of habeas corpus despite the MCA. After extensive briefing, an evidentiary hearing, and oral argument, this Court denied Mr. Barhoumi's petition on September 3, 2009. See Order [Dkt. 219]. The Court, explaining its ruling from the bench, concluded that Mr. Barhoumi was lawfully detained because the evidence supported the government's claim that he was " part of Abu Zubaydah's militia, which was an " associated force . . . engaged in hostilities against the United States or its coalition partners" under the Authorization for Use of Military Force (AUMF). [3] Barhoumi, 609 F.3d at 420.

As the D.C. Circuit noted on appeal, Mr. Barhoumi does not challenge the AUMF detention standard, under which which the President is authorized " to detain persons who were part of[,] or substantially supported, Taliban or al Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners . . . ." Barhoumi, 609 F.3d at 423. Nor does Mr. Barhoumi contest that the militia headed by Abu Zubaydah was so associated within the meaning of the AUMF. Id. " The only dispute, then, is whether Barhoumi was, as the district court found, 'part of' Zubaydah's organization." Id. Both this Court and the Circuit on appeal determined that the record demonstrated Mr. Barhoumi's participation by a preponderance of the evidence. Id. at 422-23 (rejecting Mr. Barhoumi's argument that " a standard of at least clear and convincing evidence" should apply because that argument is " foreclosed by circuit precedent" (citing Al-Bihani v. Obama, 590 F.3d 866, 878, 389 U.S.App. D.C. 26 (D.C. Cir. 2010)).

After canvassing all of the evidence, the D.C. Circuit focused on: Mr. Barhoumi's own statement that he was " trained at the Khaldan camp, which was associated with Zubaydah; " the statement to the Federal Bureau of Investigation by another detainee that Mr. Barhoumi was " captured along with [TEXT REDACTED BY THE COURT] at the Faisalabad guesthouse; " and the statement in the diary of Abu [TEXT REDACTED BY THE COURT] al-Suri, which was recovered from the Faisalabad guesthouse, that Mr. Barhoumi was a " Permanent" member of Mr. Zubaydah's militia (recorded under the name Ubaydah Al-Jaza'iri (Ubaydah the Algerian) in the diary). Id. at 425-27.

Mr. Barhoumi now challenges these conclusions on two separate bases: first, that he was so harshly questioned at Guantá namo Bay in March and April of 2003 that none of his later statements before the ARB or Combatant Status Review Tribunal (" CSRT" ) is reliable, see Classified Mot. Relief (" R. 60 Mot." ) [Dkt. 232]; and second, that the true author of the al-Suri diary was a teenager named [TEXT REDACTED BY THE COURT] whose writings are, for various reasons, unreliable and unrelated to Mr. Barhoumi. See Classified Mot. Supp. R. 60 Mot. [Dkt. 239].

II. LEGAL STANDARD

Mr. Barhoumi argues that the final judgment against him should be vacated pursuant to Rule 60(b)(2) of the Federal Rules of Civil Procedure. Rule 60(b)(2) provides that " the court may relieve a party . . . from a final judgment, order, or proceeding" if the party presents " newly

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discovered evidence which by due diligence could not have been discovered in time for a new trial under Rule 59(b)." In order to receive relief under Rule 60(b)(2), a movant must demonstrate that " '(1) the newly discovered evidence [is] of facts that existed at the time of trial or other dispositive proceeding, (2) the [party seeking relief] must have been justifiably ignorant of [the evidence] despite due diligence, (3) the evidence must be admissible and of such importance that it probably would have changed the outcome, and (4) the evidence must not be merely cumulative or impeaching.'" Lightfoot v. District of Columbia, 555 F.Supp.2d 61, 66-68 (D.D.C. 2008) (quoting United States v. Int'l Bhd. of Teamsters, 247 F.3d 370, 392 (2d Cir. 2001)); see also Manhattan Ctr. Studios, Inc. v. NLRB, 452 F.3d 813, 817, 371 U.S.App. D.C. 437 (D.C. Cir. 2006). A motion under Rule 60(b)(2) " must be made . . . no more than a year after the entry of the judgment or order or the date of the proceeding." ...


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