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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

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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

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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." Fed.R.Civ.P. 60(c)(1). The moving party must show that the proffered evidence is " of such a material and controlling nature as will probably change the outcome." In re Korean Airlines, 156 F.R.D. 18, 22 (D.D.C. 1994).

The Court finds that Mr. Barhoumi presents " new evidence" previously unknown to his counsel and which existed at the time of the hearing on his habeas petition; that the unique circumstances of Guantanamo proceedings explain counsel's earlier lack of knowledge of the interrogations of Mr. Barhoumi; [4] that the evidence of the interrogations of Mr. Barhoumi and the alleged teenage author of the al-Suri diary would be admissible in a Guantá namo habeas proceeding, although hearsay; and the evidence is not merely impeaching or cumulative, although some of it is offered to impeach the provenance of the al-Suri diary. However, the Court cannot agree that either type of evidence " probably would have changed the outcome." Lightfoot, 555 F.Supp.2d at 68.

III. ANALYSIS

Mr. Barhoumi presents two kinds of newly-discovered evidence and argument: first, in his Rule 60(b) Motion, that he was subjected to harsh interrogation during March and April 2003 so that no reliance can be placed on his later testimony, and second, in the Motion to Supplement, that the al-Suri diary was authored by a plagiarizing teenager and not an Abu Zubaydah confidant, so it is not reliable. Both certainly require serious consideration and cannot be ignored. With such consideration, however, it becomes evident that neither is of such import to the question of Mr. Barhoumi's role in the Zubaydah militia as to have affected the outcome of this case.

A. Harsh Interrogation Techniques

In his Rule 60(b) Motion, filed with the Court Security Officer on August 27, 2010, Mr. Barhoumi sought relief from the judgment against him and for sanctions against the government for its failure to

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disclose exculpatory evidence before judgment was entered. The motion was based on " over 600 pages of recently disclosed documents describing, among other things, the government's exceedingly harsh and inhumane treatment of [Mr.] Barhoumi at Guantanamo." R. 60(b) Mot. at 1. The initial tranche of documents was released on June 29, 2010, 18 days after the Circuit's opinion was posted (although 78 days before the mandate was issued) and nearly a year after the habeas hearing on Mr. Barhoumi's petition, " with no credible explanation for the extraordinarily late date of disclosure." R. 60(b) Mot. at 2. The Government produced additional classified documents on August 24, 2010. Id.

Mr. Barhoumi contends that his interrogations in March and April 2003 were " severe, cruel, and dehumanizing." Id. at 3. He specifically notes that a high-ranking military officer expressed concern that some aspects of the interrogation " 'may have exceeded the scope'" of instructions, particularly as it involved " 'threats of transfer to a worse place or transfer to a prison (where a detainee would be subjected to forced homosexual acts),'" which the officer " 'ma[d]e clear that [he] disapprove[d].'" Id. at 4 (quoting R. 60(b) Mot., Ex. 3 at 292 (26 May 2006 Memorandum from General Brantz Craddock, United States Southern Command)). Mr. Barhoumi maintained silence during almost all of these interrogations, id. at 4, but he appeared to be affected by the interrogation techniques through obvious signs of stress and agitation. Id.

The Court has reviewed all the Memoranda for Record (MFRs) that recount these interrogations. [TEXT REDACTED BY THE COURT] [5] See R. 60(b) Mot., Ex. 1, at 5 (March 1, 2003 MFR). Mr. Barhoumi had earlier been questioned by the FBI and had answered some questions. During the March-April 2003 questioning [TEXT REDACTED BY THE COURT] [6] R. 60(b) Mot. at 4. Counsel argue that this treatment in March and April 2003 " could have impacted his statements during subsequent CSRT and ARB proceedings." Id. at 5, see also id. (" Because the Court relied extensively on Barhoumi's own statements . . ., the Court may have reached a different decision in this case had the government produced these documents when Barhoumi's habeas petition was pending." ). Counsel also argue that the " late-disclosed evidence, had it been timely produced, may have had an impact on the ultimate outcome of this case." Id. at 6.

While the Court deplores the late production of these documents, see below, it cannot agree with counsel's argument that earlier disclosure would have affected the legal and factual conclusions in the case. It is clear Mr. Barhoumi appeared at times [TEXT REDACTED BY THE COURT] R. 60(b) Mot., Ex. 2, at 7-9 (March 2, 2003 MFR); [TEXT REDACTED BY THE COURT] id. at 18 (March 8, 2003 MFR); [TEXT REDACTED BY THE COURT] id. at 66 (April 3, 2003 MFR). [TEXT REDACTED BY THE COURT] Id. at 79 (April 7, 2003 MFR), 83 (April 8, 2003 MFR). [TEXT REDACTED BY THE COURT] R. 60(b) Mot., Ex. 1 at 17 (March 5, 2003 MFR). [TEXT REDACTED BY THE COURT] E.g., id. at 18 (March 8, 2003 MFR). [TEXT REDACTED BY THE COURT] when Mr. Barhoumi was left alone in the interrogation room with the interpreter, he engaged " in a one hour two-way conversation" in which he advised the interpreter, among other things, that " the only reason he was talking now was to pass a message . . . that he would never talk regardless of how bad his life gets" and that " being placed in isolation only serves to make him[] . . . stronger against interrogation." Id. at 22 (March 9, 2003 MFR). [TEXT REDACTED BY THE COURT] Mr. Barhoumi again

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took the opportunity to talk to the interpreter when they were left alone, to complain about the interrogators and their disrespect for his mother, as well as his need to pray. Id. at 24-25 (March 10, 2003 MFR). When immediately given time to pray, Mr. Barhoumi told his interrogator that " he is a good Muslim, and not a member of Al-Quada [sic]." Id. at 25. Nonetheless, " he declined" to answer questions about his travel prior to capture. Id.

Mr. Barhoumi refused to talk at all during most of his interrogation sessions in the period under scrutiny. He did speak to interrogators [TEXT REDACTED BY THE COURT] but only to try to collect information about the current situation in Iraq and the current disposition of Saddam Hussein. Additionally, he complained about not being treated with respect." Id. at 108 (April 21, 2003 MFR). [TEXT REDACTED BY THE COURT] Id. at 112 (April 22, 2003 MFR). [TEXT REDACTED BY THE COURT] Id. at 114. [TEXT REDACTED BY THE COURT] Id. However [TEXT REDACTED BY THE COURT] Id. at 115 (April 23, 2003 MFR) [TEXT REDACTED BY THE COURT]

The personal strength of Mr. Barhoumi is evident. [TEXT REDACTED BY THE COURT] Obviously, his statements to the FBI and others before the period of harsh interrogation are not affected by the interrogation in 2003. Counsel offer no evidence that his later statements were affected, either when testifying before the CSRT in September 2004, 17 months after the harsh interrogations ended, or before the ARB in January 2008, 57 months afterwards. To the contrary, the current record does not support a conclusion that Mr. Barhoumi's will was overborne by the interrogation in March and April 2003, much less at any later time. [7] See Anam v. Obama, 696 F.Supp.2d 1, 5-7 (D.D.C. 2010) (in Guantá namo habeas proceeding, holding that confessions made during confinement at Guantá namo were tainted by prisoner's " harsh treatment" during earlier interrogations in Afghan prisons, including [TEXT REDACTED BY THE COURT] [8] Counsel's breathless argument that " [t]here can be no question that the treatment detailed in the government's late-disclosed evidence constitutes torture under various accepted definitions, and that it had a lasting effect on Barhoumi's mental and physical state," R. 60(b) Mot. Reply (notice of filing at [Dkt. 238]) at 2, does not constitute evidence of its truth. Counsel's certainty of a " lasting effect" on Mr. Barhoumi's psyche from interrupted sleep patterns and repetitive rounds of harsh questioning for two months in 2003 is completely unsupported. The Court intimates no judgment about the nature of the March-April 2003 questioning of Mr. Barhoumi, finding only that there is no evidence that it affected his later statements to the CSRT and ARB. It provides no reason, therefore, to reopen this matter.

B. Delayed Release of Documentation

Counsel for Mr. Barhoumi also seek sanctions against the government

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pursuant to Federal Rules of Civil Procedure 37(c)(1)(A) and (C) for its failure to produce these documents on a timely basis when his petition was pending. See R. 60(b) Mot. at 8. Because counsel are based in Denver, Colorado, and were required to make two unexpected trips to the secured facility in Washington to review the documents and prepare their motion, they seek money sanctions to pay for their trips and time. Id.

Government counsel argue that they fulfilled their obligations fully, regularly supplementing discovery with arguably exculpatory evidence as the Amended Case Management Order required and as such evidence was identified. See Gov't Opp. R. 60(b) Mot. at 5-8 (explaining history of production of documents in this case). The government notes that Mr. Barhoumi did not seek any discovery relating to questioning in 2003 and never mentioned his interrogation, so government counsel (located in the District of Columbia) did not seek any such documentation from Guantanamo. Further, government counsel's review of materials for exculpatory evidence relating to Mr. Barhoumi did not include review of materials assembled by the Guantanamo Review Task Force pursuant to Executive Order 13,492, 74 Fed. Reg. 4897 (Jan. 22, 2009), because it was neither sought by Mr. Barhoumi nor ordered by the Court. Gov't Opp. R. 60(b) Mot. at 6 (citing Decl. of Terry M. Henry, Assistant Branch Director, U.S. Dep't of Justice, ¶ ¶ 5-9)). Only in the spring of 2010, when searching Task Force records for information on Mr. Barhoumi because one or more of his interrogation statements was being used in the case of Alhag (ISN 686) v. Obama, No. 05-cv-2199 (HHK), did government counsel discover the instant MFRs and other documents concerning his interrogation. Id. at 7. They then sought authorization to disclose these classified documents to Mr. Barhoumi's lawyers in June 2010 and, upon further searches and evaluation for classification, disclosed a second tranche of documents in August 2010.

A Case Management Order was issued by the Court in all of the Guantanamo cases in 2008, and it was adopted in this case as amended on December 16, 2008. See Amended Case Management Order (" CMO" ), [Dkt. 154]. The CMO ordered the government to disclose all " reasonably available evidence," defined to mean " evidence contained in any information reviewed by attorneys preparing factual returns for all detainees" as well as " any other evidence the government discovers while litigating habeas corpus petitions filed by detainees at Guantanamo Bay." Id. § 1.D.1. The Court's careful definition recognized that the United States could have information about the detainees spread across the world in various operations of war, to which government lawyers on the habeas cases did not have access. However, all documents on which the government relied to support detention or which it discovered during the litigation of these habeas cases were ordered released so that both parties would have equal knowledge. [9] The specific evidence at issue--MFRs on the interrogations of Mr. Barhoumi at Guantanamo in 2003 and the alleged teenage author of the al-Suri diary--was collected for purposes of the Task

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Force appointed by President Obama in January 2009, well after Mr. Barhoumi's 2005 habeas petition. Despite the CMO, without a specific request from Mr. Barhoumi's lawyers or order from this Court, government counsel did not search the Task Force data base to augment their discovery in this case.

This Court agrees with Mr. Barhoumi's lawyers that government counsel were required by the terms of the CMO to search for, locate, and produce the documents in question once they were gathered for purposes of the Task Force. The documents should have been disclosed earlier. The defense that Mr. Barhoumi's lawyers did not specifically request and the Court did not specifically order such disclosure in this case is unavailing. The Task Force was convened under the auspices of the Attorney General, ultimate supervisor of government counsel here, and information known to it could not be ignored as " not reasonably available" to these Department of Justice counsel. See Executive Order 13492, 74 Fed. Reg. at 4898 (" [T]he Attorney General . . . shall coordinate the Review . . . ." ). Thus, the Court agrees with Mr. Barhoumi's counsel that a violation of the CMO occurred.

Even so, the Court finds that no sanction is appropriate. Even assuming arguendo that the discovery provisions of the Federal Rules provide authority for sanctions in Guantá namo habeas proceedings, justice does not require entry of any of the sanctions available under either Rule 37(b) or 37(c)(1). [10] See Fed.R.Civ.P. 37(b)(2)(A) (providing that a Court " may issue further just orders" upon a discovery violation (emphasis added)), Fed.R.Civ.P. 37(c)(1)(A) (providing that for a failure to disclose a court " may order payment of . . . reasonable expenses" (emphasis added)). " The central requirement of Rule 37 is that 'any sanction must be just.'" Bonds v. District of Columbia, 93 F.3d 801, 808, 320 U.S.App. D.C. 138 (D.C. Cir. 1996) (quoting Ins. Corp. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982)). The law governing habeas proceedings, including the disclosure requirements that were breached here, was too much in flux to justify an award of sanctions. Whether Mr. Barhoumi even had the right to file this proceeding was unsettled until Boumediene was decided in 2008, and the very discovery provision requiring this disclosure, § 1.D.1, was changed between the original Case Management Order issued by Judge Hogan on November 6, 2008, and the amended CMO. Under the original order, the government arguably complied with its obligations. Moreover, the Henry Declaration submitted by the government shows that Mr. Barhoumi's counsel received the first tranche of materials within a month of DOJ counsel becoming aware of their existence. Henry Decl. ¶ ¶ 8, 10. In these circumstances, the Court finds that no purpose would be served by granting Mr. Barhoumi's motion for sanctions.

C. Author of " al-Suri Diary"

On review, the D.C. Circuit stated that " the central issue in this case" is

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whether " the al-Suri diary is sufficiently reliable." Barhoumi, 609 F.3d at 424. " Applying the reliability requirement set forth by this court in Parhat v. Gates, 532 F.3d 834, 382 U.S.App. D.C. 233 (D.C. Cir. 2008), we conclude that the district court did not clearly err in relying on the diary." Id. The Supplement to Mr. Barhoumi's Rule 60(b) motion challenges directly the authorship of the al-Suri diary. The Court will grant Mr. Barhoumi's motion for leave to file his Supplement to his Rule 60(b) Motion and considers it in conjunction with his original motion under Rule 60(b).

" To begin with," Mr. Barhoumi " was captured along with Zubaydah at the Faisalabad guesthouse, a fact he acknowledges. Barhoumi also acknowledges that he trained at the Khaldan camp." Barhoumi, 609 F.3d at 425; see also id. (" [T]he government's assertion here that Zubaydah ran the Khaldan camp is backed up by testimony from a self-professed Khaldan trainee who, in proceedings having nothing to do with Barhoumi and which predated the September 11, 2001, attacks, attested to Zubaydah's connection to Khaldan." ). According to Circuit precedent, these facts alone may be sufficient to warrant Mr. Barhoumi's detention. Id. at 425, 427.

Beyond these facts, the Circuit identified the last page of the al-Suri diary, listing Mr. Barhoumi as a " Permanent" member of the Zubaydah forces, as " perhaps the most probative record evidence that [Mr. Barhoumi] was in fact 'part of' Zubaydah's associated force." Id. at 425. In rejecting Mr. Barhoumi's challenge to the diary, the Circuit described it as " more than 65 pages of detailed observations recorded by a self-professed associate of both Zubaydah and Barhoumi." Id. at 428. After evaluating the diary's " internal coherence as well as its consistency with uncontested record evidence," the Court of Appeals " conclude[d] that the al-Suri diary contains sufficient indicia of reliability to justify the district court's reliance on it." Id. In reaching that conclusion, the D.C. Circuit rejected Mr. Barhoumi's attempt to analogize his case to Parhat v. Gates, 532 F.3d 834, 382 U.S.App. D.C. 233 (D.C. Cir. 2008), in which the Court found intelligence reports " inherently unreliable." Barhoumi, 609 F.3d at 428-29 (" The al-Suri diary is therefore a far cry from the 'bare assertions' deemed unreliable in Parhat, 532 F.3d at 847, as it possesses both endogenous and exogenous indicia of reliability." ).

In his Supplemental Motion, Mr. Barhoumi contends that " [t]he evidence submitted in conjunction with this Motion is significant and calls into question the reliability of the al-Suri diary." Mot. Supp. R. 60(b) Mot. ¶ 4. Comparing the past lack of information on the identity of the diary's author, Mr. Barhoumi argues:

Now, thanks to a recent government disclosure in another case, we do know who al-Suri is, and documents obtained from another case reveal that the al-Suri diary is nothing more than a combination of pages of a diary authored by a teenager named [TEXT REDACTED BY THE COURT], who included miscellaneous pages from the historical works of Sheik Abdullah Azzaz that describe Soviet/Afghani hostilities from years before the present war on terror even began.

Id. ¶ 9. [11] Mr. Barhoumi's argument is based on the government's description of the author of the diary in a pleading filed in Ali (ISN 685) v. Obama, No. 10-cv-1020 (RJL), another Guantanamo habeas case, as " [TEXT REDACTED BY THE COURT] al-Suri, aka [TEXT REDACTED BY THE COURT] Al-Suri."

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Mr. Barhoumi claims that [TEXT REDACTED BY THE COURT] al-Suri, aka [TEXT REDACTED BY THE COURT] Al-Suri, is the same person as [TEXT REDACTED BY THE COURT], a teenager who allegedly kept a diary and included in it miscellaneous pages from the historical works of Sheik Abdullah Azzam.

At the outset, it bears noting that the authorship of the al-Suri diary is irrelevant to a large extent. Neither this Court nor the D.C. Circuit relied on the identity of Mr. al-Suri to find his diary persuasive. See Barhoumi, 609 F.3d at 429 (" [A]lthough it is true, as [Mr.] Barhoumi emphasizes, that the government has provided no information about al-Suri, the diary itself suggests that al-Suri possessed first-hand knowledge of Zubaydah and his organization." ). It was the diary's " more than 65 pages of detailed observations" with " internal coherence [and] . . . its consistency with uncontested record evidence," that lent it authority. Id. at 428. Whether written by a man named al Suri or a man named [TEXT REDACTED BY THE COURT], the diary itself carries the same hallmarks of credibility and reliability.

Recognizing this, Mr. Barhoumi's counsel attempt to transform the al-Suri diary into something entirely different. Relying primarily on analyses by unnamed persons working for detainee Abdal Razak Ali (ISN 685), Mr. Barhoumi's lawyers argue that a comparison between English translations of the al-Suri diary and Sheik Azzam's writings demonstrate that the former is, in large part, plagiarized from the latter. Although they cite 56 of the al-Suri diary's 63 pages that allegedly " describe battles and individuals related to the Soviet invasion reflected in Azzam's writings and books," Mot. Supp. R. 60(b) Mot. ¶ 17, counsel provide no expert analysis or other support for their statement. Only in their Reply do counsel for Mr. Barhoumi offer a chart that notes small similarities, such as: references to the name Abu Ubaida (or Ubaydah), [12] a name admittedly used by Mr. Barhoumi and mentioned in the al-Suri diary, compared to approximately the same name with different spellings in The Signs of the Merciful in the Jihad of the Afghan and The Lofty Mountain, written by Sheik Azzam; a reference to " green birds" in the al-Suri diary compared to " hearts of green birds" in The Lofty Mountain; a reference to " shining lights from the graves of Arab martyrs in Qandahar" in the al-Suri diary compared to light coming from " a Shaheed" and " Suraquah" in The Lofty Mountain and The Signs of the Merciful in the Jihad of the Afghan, respectively; references in the al-Suri diary that " Taliban bodies do not decay" and their blood remains hot after death compared to references in The Signs of the Merciful in the Jihad of the Afghan to lack of rot in the bodies of martyrs and their fresh flowing blood a year after death; plus similar, limited, comparisons. See Reply Mot. Supp. R. 60(b) Mot. at 2-5.

Assuming that this evidence should be considered at all, despite its tardy presentation in a Reply brief, it is not persuasive. The adoption of words, phrases and revelations from early holy works by devout followers writing later commonly demonstrates

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continuity of religious belief, not identical authorship. While it makes no finding, having insufficient Islamic scholarship and no access to the original writings in their original language(s), the Court concludes that the similarities among the three writings relied upon by Mr. Barhoumi do not carry his argument. They are certainly not sufficiently persuasive to say that they probably " would have changed the outcome" of the case. Lightfoot, 555 F.Supp.2d at 66-68.

Further, however, Mr. Barhoumi cites interview reports that a teenager named [TEXT REDACTED BY THE COURT] was staying at the guesthouse in Faisalabad when Mr. Barhoumi and Mr. Zubaydah were apprehended there; that [TEXT REDACTED BY THE COURT] was most knowledgeable about computers among those at the guesthouse; and that [TEXT REDACTED BY THE COURT] was attempting to upload a book he had written about the life of Sheik Azzam. Mot. Supp. R. 60(b) Mot. ¶ ¶ 12-16, 19. Mr. Barhoumi contends that these facts demonstrate that the '[TEXT REDACTED BY THE COURT] al-Suri, aka [TEXT REDACTED BY THE COURT] Al-Suri" --identified by the government in Ali v. Obama as author of the al-Suri diary--is really [TEXT REDACTED BY THE COURT], whose written references to Abu Ubaida (or Ubaydah) in the al-Suri diary did not refer to Mr. Barhoumi. [13] Id. ¶ ¶ 10-12.

Counsel put too much weight on the name similarity when the real Arabic names contain sounds not readily translated into English and it is doubtful that many records contain persons' true names. See n. 12, supra. The instant record contains multiple similar names referencing obviously different persons who were staying in the Faisalabad guesthouse, undercutting Mr. Barhoumi's argument that the teenager [TEXT REDACTED BY THE COURT] must have been the author of the al-Suri diary. An FBI report, for example, reflects an interview of [TEXT REDACTED BY THE COURT] a computer specialist. See Mot. Supp. R. 60(b) Mot., Ex. C at 1 (June 13, 2002 FBI FD-302 Report) (" [TEXT REDACTED BY THE COURT] advised that he had helped/taught others to use and set up email accounts on the computer." ) The computer specialist [TEXT REDACTED BY THE COURT] at times used the kunya [TEXT REDACTED BY THE COURT] and sustained gunshot wounds in the raid of the Faisalabad guesthouse, during which he was seized. Id. [TEXT REDACTED BY THE COURT] the computer specialist identified a photograph of [TEXT REDACTED BY THE COURT] someone clearly other than himself, as " [TEXT REDACTED BY THE COURT] from the Faisalabad safehouse." Id. at 4 (referencing photograph [TEXT REDACTED BY THE COURT]

In another FBI interview, [TEXT REDACTED BY THE COURT] the computer specialist--identified by the FBI as [TEXT REDACTED BY THE COURT] see Mot. Supp. R. 60(b) Mot., Ex. D (Investigative Report) at 1--said that he had been most knowledgeable about the computer among those at the Faisalabad guesthouse, id. at 20, and had been shot in the stomach and his right hand, id. at 26. [TEXT REDACTED BY THE COURT] also described [TEXT REDACTED BY THE COURT] arrival at the safehouse, using [TEXT REDACTED BY THE COURT] kunya, [TEXT REDACTED BY THE COURT] Id. at 16-17. [TEXT REDACTED BY THE COURT] the computer specialist said that he had never seen [TEXT REDACTED BY THE COURT] before but that " [TEXT REDACTED BY THE COURT] greeted [TEXT REDACTED BY THE COURT] as he arrived." Id. Notably, [TEXT REDACTED BY THE COURT] the computer specialist also stated that Mr. Barhoumi, identified as Shafiq, greeted [TEXT REDACTED BY THE COURT] upon the latter's arrival at the guesthouse. Id. [14] [TEXT REDACTED BY THE COURT] the computer

Page 25

specialist further said that he had set up an email account at the Faisalabad safehouse for [TEXT REDACTED BY THE COURT] Id. at 20. When Pakistani police raided the safehouse, its occupants fled to the roof. Id. [TEXT REDACTED BY THE COURT] was among those on the rooftop where he saw [TEXT REDACTED BY THE COURT] with Mr. Barhoumi (identified as Shafiq). Id. at 25. Thus, based on the evidence Mr. Barhoumi himself has submitted, his preferred author, [TEXT REDACTED BY THE COURT] reported others of approximately the same name [TEXT REDACTED BY THE COURT] being at the same location at the same time.

Additional exhibits submitted by Mr. Barhoumi recount interviews with Ahmed Bin Kadr Labed (ISN 703), in which Mr. Labed referred to both [TEXT REDACTED BY THE COURT] the computer specialist [TEXT REDACTED BY THE COURT] [15] and a second [TEXT REDACTED BY THE COURT] at the Faisalabad safehouse. See Mot. Supp. R. 60(b) Mot., Ex. G (Mar. 3, 2006 ISN 703 Report of Investigative Activity) (referencing [TEXT REDACTED BY THE COURT] and Noor Uthman Muhammad, known as Samir), and id., Ex. H [16] (Oct. 24, 2002 FBI FD-302 Report) [TEXT REDACTED BY THE COURT] Finally, the author of the al-Suri diary himself referred in the third person to [TEXT REDACTED BY THE COURT] as a computer specialist who had joined them recently:

Brother [TEXT REDACTED BY THE COURT] Al-Din Al-((Muhtasab)) (he is the brother amongst the many who entered Afghanistan recently and since he is specialized in computers, he joined our group so that my friend [Zubaydah] could benefit from his expertise)[.]

Mot. Supp. R. 60(b) Mot., Ex. I (al-Suri Diary, [TEXT REDACTED BY THE COURT]) at 6. This particular [TEXT REDACTED BY THE COURT] may or may not be [TEXT REDACTED BY THE COURT], who also was known as [TEXT REDACTED BY THE COURT] and who had " recently" joined them. See June 13, 2002 FBI FD-302 Report at 1; Mot. Supp. R. 60(b) Mot., Ex. E (Dep't of Defense Intelligence Report) at 4 (" [TEXT REDACTED BY THE COURT] taught computer training at the safe house . . . known to interviewers as [TEXT REDACTED BY THE COURT]" ); Mar. 3, 2006 ISN 703 Report of Investigative Activity at 1-3; Oct. 24, 2002 FBI FD-302 Report at 6-7. The al-Suri diary names '[TEXT REDACTED BY THE COURT] Al-Din Al-Muhtassib Al-Suri" as a permanent member of Abu Zubaydah's force, along with Abu Kamil al-Suri (" Myself, Abu [TEXT REDACTED BY THE COURT] al-Suri: Permanent" ) and Mr. Barhoumi (" Ubaydah al-Jaza'iri: Permanent" ). See al-Suri Diary at 67 (lines 2, 5 and 8).

" The party seeking relief from judgment has an onerous standard to meet." Int'l Bhd. of Teamsters, 246 F.3d at 392. Not only must he present " new evidence," but he must show that his new evidence is so sufficiently material and important that the previous result, had the new evidence been known, would probably be changed.

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Id. Mr. Barhoumi argues that his new evidence suggests a different author of the al-Suri diary, but he fails to support his argument that the al-Suri diary is actually plagiarized from Sheik Azzam. He also fails to deal with the evidence of multiple persons with approximately similar names at the Faisalabad guesthouse at the time in question, or the fact that his proffered author of the al-Suri diary, [TEXT REDACTED BY THE COURT], himself reported on the presence of such similar persons, as did others in a variety of investigative reports and settings.

Confusion about a fact is not evidence that a contrary fact is more accurate. At best, Mr. Barhoumi has offered evidence that a young man known as [TEXT REDACTED BY THE COURT] whose name might have been [TEXT REDACTED BY THE COURT], had knowledge of computers, was interested in Sheik Azzam, and stayed at the Faisalabad guest house when it was raided. Whether [TEXT REDACTED BY THE COURT] was writing a book about Sheik Azzam or merely trying to upload a copy of one of Sheik Azzam's books is unclear. See Mot. Supp. R. 60(b) Mot. ¶ 14 (arguing that Mr. Labed's statement '[TEXT REDACTED BY THE COURT] was attempting was placing [sic] a book on the internet, which was written by Abdullah Azzam, so others could read it," from the Mar. 3, 2006 ISN 703 Report of Investigative Activity at 3, shows '[TEXT REDACTED BY THE COURT] was . . . writing a book about Sheik Abdullah Azzam" ). But nothing in the record suggests that [TEXT REDACTED BY THE COURT] was keeping a diary and, as explained above, nothing in the commonality of small phrases used in the diary and used by Sheik Azzam demonstrate that the diary is actually plagiarized from Sheik Azzam's books, as Mr. Barhoumi contends.

Mr. Barhoumi argues that his new evidence shows that much of the text of the al-Suri diary comes from the writings of Sheik Azzam and refers to different times, places and people and that the author of the al-Suri diary was really a young man with no attachment to Abu Zubaydah or Mr. Barhoumi. His first challenge fails for lack of substantive support beyond lawyer argument. His second challenge fails for want of persuasive evidence that it is more likely true than not.

IV. CONCLUSION

The movant under Rule 60(b)(2) must satisfy each part of a rigorous four-part test to gain relief. See Lightfoot, 555 F.Supp.2d at 66-68. This Court has studied Mr. Barhoumi's briefs, exhibits and contentions at length. He has not shown that the evidence he presents now, if available before, would probably have made a difference to the outcome of his petition for a writ of habeas corpus. Accordingly, his motion will be denied. A memorializing Order will be entered on the public docket, and this Opinion will be submitted to the Court Security Officer for classification review.


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