Shafiiq v. Bush

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) SHAFIIQ, et aL, ) ) Petitioners, ) ) v. ) Civil Action No. 05-1506 {RMC) ) BARACK OBAMA, eta/., ) ) Filed with Classified Respondents. ) Infonnation Security Officer ) IN RE PETITION OF ) CISO ?fft.h ~ SUFYIAN BARHOUMI 1 (ISN 694) ) ) Date \ [itNE _s- ~

OPINION

Sufyian Barhoumi, a native of Algeria, is a detainee held by the United States at Guantanamo 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 o:f an al·Qaida·associate<J 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 (D.C. Cir. 20 I 0). Mr. Barhourni presents new evidence and argues that he should be relieved from the final judgment against him. The

1 Petitioner's correct name is uncertain. His counsel identify him as Sufyian Barhoumi and call him Mr. Barhoumi. See Pet'r's Mot. Relief [Dkt. 232] at 1. When he appeared before an Administrative Review Board (ARB) at Guantanamo Bay in January 2008, he agreed that his name is Barghomi fsic] Sufyian, and the Presiding Officer referred to him as Mr. Sufyian. See Respondent's Excerpted and Highlighted Materials for Oral Argument July 13, 2009, Ex. 11, at 1, 6. Petitioner also used aliases, including "Abu Obaida, Ubaydah al Jaza'iri, and Shafiq." Barhoumi v. Obama, 609 F.3d 416, 426 (D.C. Cir. 20 I 0). For clarity, the Court will refer to him as Sufyian Barhoumi.

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i:lilwllli1TIINQ FQMJM govcrrunent disagrees. Having considered all ofthe materials submitted, the underlying record, and the parties' arguments, the Court will deny the motion.

I. BACKGROUNI>

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 O'WTl fighting force" and who was associated with Osama bin Laden, although Abu Zubaydah was not directly

under bin Laden's command. !d. Abu Zubaydah "had agreed with Usama bin Laden to . coordinate training efforts and allow Khaldan recruits to join al-Qaida." !d. 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 gucsthousc in Faisalabad,

2 In this case, the D.C. Circuit prepared both a classified opinion and a redacted, public version. See Notice of Filing of D.C. Circuit Mandate and Opinion [Dkt. 237]. In this Opinion, the Court will cite to the public version where possible. The circuit's opinion provides a more detailed summary of the record evidence. See Barhoumi, 609 F.3d at 418-19.

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S~CR:~TlPJ)JQ FQIUT Pakistan, in Febmary 2002,'' where he was arrested approximately I 0 days later "along with Abu Zubaydah, who was also staying at the Faisalabad guesthouse." Jd. at 419. Mr. Barhoumi was taken into U.S. custody in May 2002 and transferred to Guantanamo. Jd.

Mr. Barhoumi filed a petition for writ of habeas corpus in July 2005. Although this Court dismissed his case after Congress passed the Military Commissions Act of 2006, 28 U.S.C. § 224J(e), it vacated that decision when the Supreme Court decided Boumediene v. Bush, 553 U.S. 723 (2008), and held that Guantanamo detainees have constitutional protections to file writs of habeas corpus despite the MCA. After extensive briefing, an evidentiary hearing, and oral argument, t.his Court denied Mr. Barhoumi's petition on September 3, 2009. See Order [Dkt. 21 9]. The Court, explaining its mling 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, Tali ban or ai Qaida f()rces 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

3 Pub. L. No. 107-40, § 2(a), 115 Stat. 224,224 (2001) (reprinted at 50 U.S.C. § 1541 note).

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8ll81li3'4Y/N8 P8JilP'I associated within the meaning of the AUMF. !d. "The only dispute, then, is whether Barhoumi wa.;;, 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. /d at 422-23 (rejecting Mr. Barhoumi's argument that "a standard of at least clear and convincing evidence" should apply because that argwnent is "toreclosed by circuit precedent" (citing Al-Bihani v. Obama, 590 FJd 866, 878 (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 w i t h - at the Faisalabad guesthouse;" and the statement in the diary of

Abu IIIII 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). !d. at 425-27.

Mr. Barhoumi now challenges these conclusions on two separate bases: first, that he was so harshly questioned at Guantanamo Bay in March and April of2003 that none ofhis 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 n a m e d - whose writings are, for various reasons, unreliable and unrelated to Mr. Barhoumi. See Classified Mot. Supp. R. 60 Mot. [Dkt. 239].

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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 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 '"(I) 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 rthe evidence J 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. ofTeamsters, 247 F.3d 370, 392 (2d Cir. 2001 )); see also Manhattan Ctr. Studios, Inc. v. NLRB, 452 F.3d 813, 817 (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 ofthe proceeding." Fed. R. Civ. P. 60(c)(l). The moving party must show that the proffered evidence is "of such a material and controlling nature as will probably change the outcome." 1n re Korean Airlines, I 56 F.R.D. 18,22 (D.D.C. 1994).

"!be Court finds that Mr. Barhoumi presents "new evidence" previously Wlknown to his counsel and which existed at the time of the hearing on his habeas petition; that the unique circumstances ofGuantanamo proceedings explain counsel's earlier lack ofknowledge of the

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St!!tJIUYP/:n8 P8RN 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 Guantanruno 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." Dghtfoot, 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 April2003 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 contidant, 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.

4 As the government points out, Mr. Barhoumi himself was clearly in a position to inform his lawyers of the 2003 interrogation. Classified Gov't Opp. R. 60(b) Mot. [Dkt. 235] at 15-16. In this environment, however, the Court places no weight on that fact, even though Mr. Barhoumi is the Petitioner. Detainees at Guantanamo and their lawyers have great difficulty communicating, visiting, and, most of all, establishing mutual trust. Fearing other terrorist activity, the government has been slow and reluctant to share cJassificd information. Mr. Barhoumi's counsel are working pro bono in the fmest tradition of the legal profession and deserve the gratitude of the Court and the government. ll1e Court will not fault client or counsel for lack of communication about interrogations that occurred two years before the petition was filed.

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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 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, 20 I0, 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. ld

Mr. Barhoumi contends that his interrogations in March and April 2003 were "severe, cruel, and dehumanizing." fd at 3. He specifically notes that a high-ranking military officer expressed concern that some aspects ofthe interrogation '"may have exceeded the scope''' of instructions, parti.cularly 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 "'rna[d]e clear that [he] disapprovel_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

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The Court has reviewed all the Memoranda for Record (MFRs) that recount these

R. 60(b) Mot., Ex. I, at 5 (March 1, 2003 MFR). Mr. Barhoumi had

earlier been questioned by the PBI and had answered some questions. During the March~ April at 4. Counsel argue that this treatment in March and April2003 "could have impacted his statements during subsequent CSRT and ARB proceedings." ld. 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~isclosed evidence, had it been timely produced, may have had an impact on the ultimate outcome of this case." Id at 6.

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While the Court deplores the late production of the~>e 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

. 60(b) Mot., Ex. 2, at 7-9 (March 2, 2003 MFR); R. 60(b) Mot., Ex. 1 at 17 (March 5, 2003 MFR) .

.g., id at 18 (March 8, 2003 MFR) 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

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"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." !d. at 22 (March 9, 2003 MFR). Barhoumi again 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. !d. 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]." !d. at 25. Nonetheless, "he declined" to answer questions about his travel prior to capture. ld.

Mr. Barhoumi refused to talk at all during most of his interrogation sessions in the period under scrutiny. He did speak to · t 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." ld at I 08 (April 21, 2003

The personal strength ofMr. Barhoumi is evident.

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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 April2003, much less at any later time. 7 See Anam v. Obama, 696 F. Supp. 2d l, 5-7 (D.D.C. 2010) (in Guantanamo habeas proceeding, holding that confessions made during confinement at Guantanamo were tainted by prisoner's "harsh treatment" during earlier interrogations in Afghan prisons, including

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

7 Mr. Barhoumi has knowledge of the impact ofthe March-April2003 interrogation on his later statements, if any. Counsel's supposition that it "may have" affected his later testimony before the CSRT and ARB is insufficient to carry the point. 8 This case is starkly different from Anam for three reasons. First, unlike Anam, there is no evidence that Mr. Barhoumi suffered "harsh interrogation techniques" before arriving at Guantanamo. Anam, 696 F. Supp. 2d at 7. Second, during the March-April2003 interrogations, unlike the petitioner in Anam who confessed while being subject to interrogation, Mr. Barhoumi never confessed, remaining steadfast in his refusal to cooperate. The presence of the first coerced confession was key to the Anam court's finding that the later confession should be · disregarded because "the interrogators at Guantanano ... reviewed Petitioner's coerced confessions from Afghanistan and asked him to make identical confessions." Jd Third, the nature of the of the in Anam

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SIBCRE'fl/NO FORN 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. Barhourni, finding only that there is no evidence that it aflected his later statements to the CSRT and ARB. It provides no reason, therefore, to reopen this matter.

8. Delayed Release of llocumentation

Counsel for Mr. Barhoumi also seek sanctions against the government pursuant to Federal Rules of Civil Procedure 37(c)(l)(A) and (C) for its failure to produce these documents on a timely basis when his petition was pending. SeeR. 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. !d.

Government counsel argue that they fulfilled their obligations fu!Jy, 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 ofmaterials for

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exculpatory evidence relating to Mr. Barhoumi did not include review of materials assembled hy 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. ofTerry M. Henry, Assistant Branch Director, U.S. Dep't of Justice, 1,[ 5-9)). Only in the spring of2010, 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 (JSN 686) v. Ohama, No. 05-cv-21 99 (HHK), did government counsel discover the instant MFRs and other docwnents concerning his interrogation. ld at 7. They then sought authorization to disclose these classified documents to Mr. Barhoumi's lawyers in June 20 I 0 and, upon further searches and evaluation for classii1cation, disclosed a second tranche of documents in August 2010.

A Case Management Order was issued by the Court in all of the Guantanarno cases in 2008, and it was adopted in this case as amended on December 16, 2008. See Amended Case Management Order ("CMO"), fDkt. I 54]. The CMO ordered the government to disclose all "reasonably available evidence," defined to mean "evidence contained in any infimnation 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." !d. § I.D.l. The Court's careful definition recognized that the United States could have infom1ation aboutthe 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

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SI5€RIS1'/~Q fQAN 9 of these habeas cases were ordered released so that both parties would have equal knowledge.

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 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 ("['r]he Attorney General ... shall coordinate the Review .... "). Thus, the Court agrees with Mr. Barhoumi's counsel that a violation of the CMO occurred.

9 The CMO recognized that certain circumstances could arise in whjch the information to be disclosed to petitioner's counsel was classified and the government objected to disclosure. CMO § l.F. There is no such issue here. See Mousovi v. Obama, No. 05-1124, 2013 WL 97355, at *4-5 (D.D.C. Jan. 9, 2013) (discussing AI Odah v. United States, 559 F.3d 539 (D.C. Cir. 2009) and concluding that Top Secret material need not be disclosed to a petitioner's counsel even if relevant despite the fact that the Court could review it).

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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 Guantanamo 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)(l)(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 ofColumbia, 93 F.3d 801, 808 (D.C. Cir. 1996) (quoting Ins. Corp. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707 (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 t1le this proceeding was unsettled until Boumediene was decided in 2008, and the very discovery provision requiring this disclosure, § l.D.l, 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

10 Mr. Barhoumi, relying primarily on Ninth Circuit precedent, asks the Court to find that the government is not immune from an award of sanctions under Rule 37. SeeR. 60(b) Mot. Reply at 8. Government counsel respond that Mr. Barhourni's Ia~yers cannot collect money damages from the United States, which enjoys sovereign immunity. See, e.g., FDIC v. Meyer, 510 U.S. 471, 475 (1994) (absent a specific waiver, the United States government is protected from suit by the doctrine of sovereign immunity); see also Clark v. Library ofCongress, 750 F .2d 89, I 03 (D.C. Cir. 1984) (sovereign immunity bars suits for money damages against public officials sued in their official capacities absent a specific waiver). Because the Court concludes that sanctions arc not appropriate, the Court docs not reach Mr. Barhoumi's argument.

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81!ll!l:illiiiV:'fl9 F9atf materials within a month ofDOJ counsel becoming aware oftheir 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 "ai-Suri Diary"

On review, the D.C. Circuit stated that "the central issue in this case" is whether "the al-Suri diary is sufficiently reliable." Barhoumi, 609 F.3d at 424. "Applying the reliability requirement set torth by this court in Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008), we conclude that the district court did not clearly err in relying on the diary." ld The Supplement to Mr. Barhoumi's Rule 60(b) motion challenges directly the authorship ofthc ai-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 guesthousc, 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 ll, 2001, attacks, attested to Zubaydah's connection to K.haldan. "). 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

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record evidence that [Mr. Barhoumi] was in fact 'part of Zubaydah's associated force." /d. 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·(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 ai-Suri diary is nothing more than a combination of pages of a diary authored by a teenager n a m e d - · 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.

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ld ~ 9. 11 Mr. Barhoumi's argument is based on the govcmment's description ofthe author of

the diary in a pleading filed in Ali (JSN 685) v. Obama, No. 10-cv-1 020 (RJL), another

Al-Suri, is the same person as-, Guantanamo habeas case, a s · - aJ-Suri, a k a - Al-Suri." Mr. Barhoumi claims

t h a t - al-Suri, a teenager who allegedly kept a diary and included in it miscellaneous pages from the historical works of Sheik Abdullah Az..zam.

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 govcrrunent 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. Jd at 428. Whether written by a man named al Suri or a man n a m e d - , 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 tmnamed persons working for detainee Abdal Razak Ali (ISN 685), Mr. Barhowni's lawyers argue that a comparison between English translations ofthe al-Suri diary and Sheik Azzaro's writings demonstrate that the former

11 Mr. Barhoumi relies on the government's Amended Narrative Regarding Petitioner Abdal Razak Ali (ISN 685), which refers t o · - al-Suri, a k a - Al-Suri." Id ~ l 0.

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t515€RJS'i//t>fQ JPQIUl 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 12 chart that notes small similarities, such as: references to the name Abu Ubaida (or Ubaydah), 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 <~{the Merciful in the Jihad of the Afghan, respectively; references in the al-Suri diary that "Tali ban bodies do not decay" and their blood remains hot after death compared to references in The Signs ofthe Merc(ful 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.

12 Abu Ubaydah was a kunya admittedly used by Mr. Barhoumi; the evidence indicates that he kunya is used to conceal true identities. See generally Kunyas, Aliases and Variants" (Sept. 19, 2009) (exhibit to the Factual Return) at 2 (Redacted version available as Exhibit to Public Factual Return, [Dkt. 259-2] pages 39-51). "Because Arabic and English have several letters representing sounds that do not correspond directly, several letters or letter combinations are used to represent the same sound. For example, 'Noor' and 'Nur' are two variants of the same word. Additionally, 'AI,' 'Ul,' and 'Ur' are commonly interc~d 'Uddin."' Gov't Opp. Mot. Supp. R. 60(b) Mot. at 9 n.IO (citing~ecl).

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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 continuity of religious belief, not identical authorship. While it makes no finding, having insuflicient Islamic scholarship and no access to the original writings in their original languagc(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 - was staying at the guesthouse in Faisalabad when Mr. Barhoumi and Mr. Zubaydah were apprehended there; t h a t - was most knowledgeable about computers among

those at the guesthouse; and that IIIII. was attempting to upload a book he had written about the life ofSheik Azzam. Mot. Supp. R. 60(b) Mot.,, 12-16, 19. Mr. Barhoumi contends

that these facts demonstrate that the · - al-Suri, a k a - AI-Suri"-identified by the government in AIi v. Obama as author of the ai-Suri diary-is r e a l l y - · whose written references to Abu Ubaida (or Ubaydah) in the al-Suri diary did not refer to Mr. Barhoumi. 13 !d. ,, 10-12.

13 Establishing- as the diary's author supports Mr. Barhoumi's argument that he was not "part of' Zubaydah's forces because, according to Mr. Barhoumi,- had not seen Zubaydah prior to March 2002 and thus "could not possibly have been a 'close associate' of Zubaydah at the time ofthe March 28, 2002 raid." Mot. Supp. R. 60(b) Mot. ,119.

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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. Seen. 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 t e e n a g e r - must have been the author ofthe al-Suri diary. An FBI report, for example, reflects an interview o - a computer specialist. See Mot. Supp. R. 60(b) Mot., Ex. Cat 1 (June 13, 2002 FBI FD-302 Report) ('. . advised that he had helped/taught others to use and set up email accounts on the computer.") The computer specialist- at times used the k u n y a - and sustained gunshot wounds in the raid of the Faisalabad guesthouse, during which he was seized. !d . . -

photograph. . as·- the computer specialist identified a photograph

clearly other than himself, someone

from the Faisalabad safehouse." Id at 4 (referencing

In another FBI interview, the computer specialist-identified by the FBI as 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. also arrival at the safehouse, u s i n g - k u n y a , - /d. at 16-17. the computer specialist said that he had never s e e n - before but that greeted - a s he arrived." /d. Notably, the computer specialist also stated that

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email account at the Faisalabad safehouse for Id at 20. When Pakistani police raided the safehouse, its occupants fled to the roof. Id. was among those on the rooftop where he sa with Mr. Barhoumi (identified as Shafiq). Id. at 25. Thus, based on the evidence Mr. Barhoumi himselfhas submitted, his preferred a u t h o r , - reported others of approximately the same name

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. . the computer specialist

5 and a second. . at the Faisalabad safehouse. See Mot. Supp. R.

60(b) Mot., Ex. G (Mar. 3, 2006 ISN 703 Report of!nvestigative Activity) (referencing~

14 - the computer specialist, indicated that he purchased various supplies for Mr. Barhoumi/Shafiq to train on and build remote controls. Id at 21-24. Shafiq was training "Jubran" on electronics and was very secretive. ld. at 24, 28. Mr. Barhoumi's own Exhibit F, a report of an interview of ISN 696, indicates that "S [h]afiq, who had a deformed hand, was one of the trainers from the training camp at Faisalabad. Shafiq taught how to weld and fix electronic bombs." See Mot. Supp. R. 60(b) Mot., Ex. F (Aug. 8, 2002 Report of Investigative Activity of ISN 696). 15 Mr. Labed "stated. . had a computer in his room, and was very knowledgeable about computers. Mr. Labed stated one of the projects[] Illwas attempting was placing a book on the internet, which was written by Abdullah Azzam, so others could read it." See Mot. Supp. R. 60(b) Mot., Ex. G (Mar. 3, 2006 ISN 703 Report ofinvestigative Activity) at 3.

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and Noor Uthrnan Muhammad, known as Sarnir), and id, Ex. H 16 (Oct. 24, 2002 FBI FD-302 Report) Finally, the author of the al-Suri diary himself referred in the third person to . . as a computer specialist who had joined them recently:

BrotheriiiiAt-DinAI-((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)[.]

may or may not be- Mot. Supp. R. 60(b) Mot., Ex. I (al-Suri Diary at 6. This particular . .

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

16 Interviewed on October 22 and 23, 2 0 0 2 , - said that . . "was a 24 year old Syrian who spoke English and sounded educated. He would teach some of the brothers about using the computer. He t o l d - that he resided in Saudi Arabia. He t o l d - , while they were in Pakistani prison together, that he was going to receive $50,000 when he finished a book he was writing about Sheik Azzam, the man who was Osama Bin Ladin's mentor." Mot. Supp. R. 60(b) Mot., Ex. H (Oct. 24, 2002 FBI FD-302 Report) at 5-6.

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"The party seeking relief from judgment has an onerous standard to meet." lnt 'I

Bhd ofTeamsters, 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 knovm, would probably be changed. !d. Mr. Barhoumi argues that his new

evidence suggests a different author of the al-Suri diary, but he fails to support his are,rument 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 d i a r y , - 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 knovm as- whose name might

have b e e n - , had knowledge of computers, was interested in Sheik Azzam, and stayed at the Faisalabad guest house when it was raided. was 11"riting a book about Sheik Af..zarn or merely trying to upload a copy of one of Sheik Azzam 's books is unclear. See Mol. Supp. R. 60(b) Mot.~ 14 (arguing that Mr. Labed's statement . . . was attempting was placing [sic] a book on the intemet, which was written by Abdullah Azzarn, so others could read it," from the Mar. 3, 2006 ISN 703 Report oflnvestigative Activity at 3, shows . . . was ... writing a book about Sheik Abdullah Azzam"). But nothing in the record suggests that. . - was keeping a diary and, as explained above, nothing in the commonality of small

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phrases used in the diary and used by Sheik Azzam demonstrate that the diary is actually plagiarized from Sheik Azzaro'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 reaily 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 notshown 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.

DATE: June 5, 2013 --------~~~---------- ROSEMARYM. COLLYER United States District Judge

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