unclassified / for public release
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CLASSIFIED MEMORANDUM OPINION
(September 17, 2009)
Petitioner Fouad Mahmoud Al Rabiah ("AI Rabiah") has been detained by the United
States Government at the Guantanamo Bay Naval Base in Cuba since 2002. The evidentiary record on which the Government seeks to justify his indefinite detention is surprisingly bare. The Government has withdrawn its reliance on most of the evidence and allegations that were once asserted against Al Rabiah, and now relies almost exclusively on Al Rabiah's "confessions" to certain conduct. Not only did Al Rabiah's interrogators repeatedly conclude that these same confessions were not believable -which Al Rabiah's counsel attributes to abuse and coercion, some of which is supported by the record -but it is also undisputed that AI Rabiah confessed to information that his interrogators obtained from either alleged eyewitnesses who are not credible and as to whom the Government has now largely withdrawn any reliance, or from sources that never even existed. Far from providing the Court with credible and reliable evidence as the basis for Al Rabiah's continued detention, the Government asks the Court to simply accept the same confessions that the Government's own interrogators did not credit, and to ignore the assessment
Based on this record (or more accurately, in spite of it), the Government asserts that it has the authority to detain Al Rabiah pursuant to the Authorization for the Use of Military Force, Pub. L. No.1 07-40, § 2(a), 115 Stat. 224, 224 (2001) ("AUMF"), which authorizes the use of force against certain terrorist nations, organizations, and persons. Al Rabiah believes he is unlawfully detained and has filed a petition for a writ of habeas corpus.
In connection with its inquiry into whether Al Rabiah is lawfully detained, the Court has considered the factual evidence in the record, the extensive legal briefings submitted by the parties, and the arguments presented during a four-day Merits Hearing held on August 26-28, 2009, and August 31, 2009, during which the parties proffered evidence based on the written record and did not present any live testimony. Based on the foregoing, the Court concludes that Al Rabiah's uncorroborated confessions are not credible or reliable, and that the Government has failed to provide the Court with sufficiently credible and reliable evidence to meet its burden of persuasion. If there exists a basis for Al Rabiah's indefinite detention, it most certainly has not been presented to this Court. Al Rabiah's petition for habeas corpus is GRANTED.
BACKGROUND
A. Procedural History
Al Rabiah filed his petition for habeas corpus on May 1, 2002, making this case the oldest of the pending Guantanamo Bay habeas cases. After several years of litigation, this case was stayed pending resolution of whether the Court had jurisdiction to hear Al Rabiah's petition. On June 12,2008, the United States Supreme Court issued its decision in Boumediene v, Bush, clarifYing that this Court had jurisdiction to consider the petition and advising this and the other judges in this District that "[t]he detainees are entitled to [] prompt habeas corpus hearing[s]." 553 U.S._, ]28 S. Ct. 2229, 2275 (2008).
Following the Boumediene decision, this and most of the other judges in this District agreed to consolidate their Guantanamo Bay habeas cases before fonner Chief Judge Thomas F. Hogan for issuance of an initial case management order that would expeditiously move these cases toward resolution. Judge Hogan issued a Case Management Order on November 6,2008, which he amended on December 16, 2008, and which the Court adopted in this case on December 22, 2008. The Court has relied on the Amended Case Management Order as the backdrop for its subsequent Scheduling Orders in this case.