MEMORANDUM OPINION AND ORDER
ELLEN SEGAL HUVELLE, District Judge.
Petitioner Sabry Mohammad Ebrahim al-Qurashi, a citizen of Yemen, was arrested in Karachi, Pakistan by Pakistani authorities on February 7, 2002. Several weeks later, he was taken into U.S. custody, assigned internment serial number ("ISN") 570, and transferred first to Kandahar, Afghanistan and then to the naval base detention facility at Guantanamo Bay, Cuba ("Guantanamo"), where he has been held since May 2002. Al-Qurashi has filed a petition for a writ of habeas corpus, contending that he is unlawfully detained. Respondents, who include President Barack Obama and other high-level government officials, argue that al-Qurashi is lawfully detained.
Before the Court is al-Qurashi's motion to suppress on the grounds that these statements were involuntary and procured through coercion and torture. ("Pet's Mot.") As narrowed by prior rulings, the sole factual question before the Court at this time is whether petitioner was abused by the Pakistani authorities after his arrest in Karachi on February 7, 2002, but before his interrogation the next day by Special Agent [redacted] of the Federal Bureau of Investigation ("FBI") Joint Terrorism Task Force ("JTTF"), who was the first U.S. official to question petitioner. On January 19 and 20, February 25, and March 25, 2010, the Court heard argument on the motion, received documentary evidence, and heard live in-court testimony from Agent [redacted] (See generally Hr'g Tr., Jan. 19-20, 2010 ("Jan. Tr."); Hr'g Tr. Vol. 1, Feb. 25, 2010 ("Feb. AM Tr."); Hr'g Tr. Vol. 2, Feb. 25, 2010 ("Feb. PM Tr."); Hr'g Tr., Mar. 25, 2010 ("Mar. Tr.").) Having considered the entire record, the parties' briefs, and their oral arguments, and for the reasons discussed herein, the Court will deny petitioner's motion.
According to a declaration that al-Qurashi submitted with his traverse on November 17, 2009,
I. PETITIONER'S DETENTION IN PAKISTAN—FEBRUARY 7-[redacted] 2002
A. Arrest—February 7, 2002
Two of the men arrested with petitioner were Pakistani nationals who went by the names [redacted] (see [redacted]EC at 58-63), but they do not appear to have been transferred to American custody. The other fourteen arrestees were, like petitioner, later transferred to American custody and assigned ISN numbers. Public sources indicate that five of these men have been transferred to their home countries, while the other nine, listed below, remain in custody and have filed habeas petitions in this Court:
(See generally id. at 3-58.) See also The New York Times—The Guantanamo Docket, at http://projects.nytimes.com/ guantanamo (last visited Aug. 2, 2010).
B. Alleged Coercion of Petitioner by the Pakistani Authorities—February 7-8, 2002
Al-Qurashi alleges that the following events occurred after his arrest in the early morning hours of February 7, 2002, all of which are disputed by respondents:
After his arrest, the Pakistani authorities took petitioner and the sixteen other men to a "jail" in Karachi. (Pet. Decl. ¶ 17.) At some point, petitioner's wrists and ankles were bound with rope that "cut[.] into his skin." (PEX 2 ("2nd Bhargava Decl") ¶ 4(j) (relating allegations communicated by petitioner); see also PEX 2A ¶ 2 (petitioner's affirmation of truth of information in PEX 2 ¶¶ 2-4).) Pakistani interrogators told petitioner that he would be turned over to the Americans, who "would never believe that [he] had traveled to Pakistan and Afghanistan for peaceful purposes." (Pet. Decl. ¶ 18.) They also told him that he had to admit to one of three things: (1) being a member of al-Qaeda, (2) going to Afghanistan to fight for the Taliban, or (3) going to a military training camp. (Id.) Although petitioner "told them repeatedly that none of these things was true," they told him that "if [he] admitted to one of these three things, [he] would not be tortured and [he] would be handed over to [his] country." but if he did not admit to any of these things, "the Americans would torture [him] until he confessed." (Id.)
Petitioner "could hear people being tortured in surrounding cells," and "[o]n bathroom breaks, [he] witnessed other people being tortured when [he] was escorted through the hallways and glanced into other cells." (Pet. Decl. ¶ 19.) For example, he saw Anam (ISN 569) "pinned face-first against a wall, hanging by his hands" (id. ¶ 20), and also heard the screams of others "through the cell walls," including screams from someone whom he believed to be Bin Amer (ISN 564), who "looked like he had been beaten up" when petitioner saw him after Bin Amer's interrogation sessions. (Id. ¶ 21.)
Petitioner persisted in asserting his innocence. (See Pet. Decl. ¶ 23.) One of the interrogators then "threw an ashtray at [him], hitting [him] in the chest"; after this, one interrogator "restrained [him] from behind while another slammed [his] head into the table," and they also "repeatedly punched [him] in the stomach." (Id.) Petitioner refused to confess, so the interrogators "threw [him] on the floor and continued to beat [him]," with one of them "put[ting] his knee on [petitioner's] head and threaten[ing] to administer electroshocks or worse if [he] did not confess." (Id. ¶ 24,) Because petitioner still refused to confess, the interrogators "forced [him] to kneel facing a wall and told [him] not to move." (Id. ¶ 25.) At this point, all but one of the interrogators left the room, with the remaining interrogator forcing petitioner to stay kneeling "for a long time" and striking him with a cane if he moved. (Id.)
Next, "[t]wo new interrogators" told al-Qurashi that they had spoken to the Yemeni embassy and that he could return to Yemen if he spoke to the Americans. (Pet Decl. ¶ 28.) He was told that the Americans "did not care if people said they went to training camps," so long as they "did not join al-Qaeda." (Id.) The interrogators promised him he "would be freed if [he] confessed to going to" the al-Farouq training camp in Afghanistan, but that he "would be detained and tortured indefinitely if [he] did not." (Id. ¶¶ 28-29.) "Because [he] had endured so much abuse already" and "was afraid the Pakistanis and the Americans would continue to torture [him], [he] finally agreed to falsely confess to going to al Farouq." (Id. ¶ 29.) In order for petitioner to give the American interrogators "a convincing story" (id. ¶ 28), the Pakistani interrogators "showed [him] a thick stack of photographs" of al-Farouq and "gave [him] information about the camp, including the names of its leaders and the process of getting to the camp." (Id. ¶ 30.) They then "arranged for the Americans to interrogate [him]" (id.), which occurred on the afternoon of February 8, 2002.
C. Initial Statement to U.S. Officials
[redacted] and/or [redacted] of [redacted] (See [redacted] EC at 1, 3; Feb. AM Tr. at 22-23.) [redacted] (See [redacted] EC at 2; Resps.' Response to Court's Oral Order of Mar. 25, 2010 at 1 ¶ Feb. AM Tr; at 69.) [redacted] (Feb. AM Tr. at 21, 61; see generally [redacted] EC.) [redacted] (See Feb. AM Tr. at 109.) [redacted] (See [redacted] EC at 22-24; Feb. AM Tr. at 23-24; Feb. PM Tr. at 29; REX 62 ("[redacted] Decl."
(Id. at 23-24 (brackets added; parentheses in original).) [redacted] (Id. at 22-23.)
II. PETITIONER'S DETENTION IN AFGHANISTAN—[redacted]TO MAY [redacted] 2002
[redacted] ([redacted] Decl. ¶ 6.) Around [redacted] petitioner arrived at an American military base in Kandahar, Afghanistan. (See REX 30 (intake form) at 2.)
In March 2002, al-Qurashi was interrogated on at least three separate days. (See REX 21 ([redacted] report); PEX 64 [redacted] report); PEX 65 ([redacted] report).) Like the [redacted] EC, the reports from the first two of these interrogations state that petitioner admitted attending the al-Farouq camp. The third report focuses on petitioner's flight from Afghanistan and his stay at the Karachi safehouse, although it also states that petitioner "is barely functionally literate" and that in the interrogator's opinion, petitioner "is not part of a larger conspiracy." (PEX 65 ¶ 3.)
In addition, al-Qurashi now alleges that while he was in Kandahar, U.S. officials abused him by, inter alia, threatening him with dogs; stripping him naked [redacted] making him lie on his stomach, tying his legs and hands behind him, and then yanking him up by his hands, "nearly pulling [his] arms from their sockets"; stripping him naked and placing him outside in the cold; and placing a gun to his head and threatening to shoot him if he did not "confess to being an important part of al-Qaeda." (Pet. Decl. ¶¶ 31-33.)
III. PETITIONER'S DETENTION IN GUANTANAMO BAY—[redacted] TO PRESENT
Around May [redacted] 2002, al-Qurashi was transferred to Guantanamo and "inprocessed." (See REX 64 (Final Narrative Medical Summary) at 1.) [redacted] (Id. at 466.)
[redacted] al-Qurashi was interrogated on at least nine separate days by officials from various U.S. government entities. (See REX 81 (by military personnel [redacted] REX 7 (by military [redacted]; and by FBI, military [redacted]; [redacted] REX 8 (by FBI [redacted]; PEX 71 (by military personnel [redacted]; REX 79 (by FBI and military personnel [redacted].) The reports from these sessions consistently state that petitioner told his interrogators that he attended al-Farouq, notwithstanding other discrepancies in his reported statements.
On September 11, 2002, al-Qurashi recanted his earlier inculpatory statements and denied that he ever attended al-Farouq, reportedly stating that he originally incriminated himself because the "Pakistani authorities threatened him with torture unless he admitted to attending the training camp at Al Farouq" and that they "promised his release if he said he trained [there]." (PEX 66 (FD-302 of Sept. 13, 2002) at 1-2; see also REX 55 (identical intelligence report) at 2 ¶¶ 5-6).) But "now that the Department of Justice [was] interviewing him, he want[ed] to tell the truth. . . ." (PEX 66 at 1-2.)
A week later on September 20, 2002, al-Qurashi reaffirmed that his post-arrest inculpatory statements were false and were the product of coercion, and that "he learned details about the Al Farouq camp from Khalid Dossieri, a Saudi, who was staying at a guest house in Kabul. . . ." (REX 32 at 1.) In all subsequent interrogations, petitioner continued to disavow his initial statements about attending al-Farouq. (See REX 110 (statements [redacted]
On August 3, 2005, al-Qurashi testified at a hearing before the military Administrative Review Board ("ARB"). (See REX 15 (ARB hearing transcript); see also REX 42 (ARB hearing audio recording).) There, he stated that the Pakistani authorities got him to admit that he had attended al-Farouq because he was afraid they would torture him. (See id. at 5-6.)
IV. THE INSTANT LITIGATION
On December 13, 2005, a habeas petition was field in this Court on behalf of al-Qurashi
On September 9, 2009, al-Qurashi filed a sealed motion to compel respondents to produce, inter alia, evidence that he had been "tortured and otherwise mistreated by this Pakistani and American captors. . . ." (Pet.'s Sealed Mot. to Compel (Dkt. 356) at 1-2)
On November 25, 2009, al-Qurashi filed his traverse. That same day, respondents moved to stay the proceedings [redacted] On December 9, petitioner moved to suppress his statements prior to his recantation in September 2002 on the ground that they are the product of coercion and torture in Pakistan, Afghanistan, and Guantanamo. The motion to suppress also seeks to exclude other documentary evidence as insufficiently authenticated.
On December 10, 2009, the Court denied the government's motion for a stay. The Court, however, bifurcated the proceedings and limited the upcoming hearing to consideration solely of "the question of
On January 19 and 20, 2010, the Court heard argument on the instant motion to suppress. The hearing was continued until February 25 and March 25, so that the Court could hear testimony from Agent [redacted] and the parties could submit additional documentary evidence not previously included with their briefs. Throughout these proceedings, petitioner was offered the opportunity to participate via telephone and to testify via video conference. According to his counsel, petitioner elected not to testify or to listen to the proceedings. (See Jan. Tr. at 3; Mar. Tr. at 7.)
Having reviewed the voluminous documentary evidence introduced by the parties and the declarations and live testimony presented at the hearing, the Court will now proceed to set forth the governing legal standards and will then apply these standards to the facts as found by the Court.
I. LEGAL STANDARDS RELATING TO CLAIM OF COERCION
Some interrogations can be "so inherently coercive that [their] very existence is irreconcilable with the possession of mental freedom by a lone suspect against whom [the government's] full coercive force is brought to bear." Ashcraft v. Tennessee, 322 U.S. 143, 154, 64 S.Ct. 921, 88 L.Ed. 1192 (1944). When a criminal suspect is subjected to a coercive interrogation and then confesses or incriminates someone else, courts may properly exclude such inculpatory statements because of their "probable unreliability." Jackson v. Denno, 378 U.S. 368, 386, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), and the concomitant "`likelihood that the confession is untrue.'" United States v. Karake, 443 F.Supp.2d 8, 51 (D.D.C.2006) (quoting Linkletter v. Walker, 381 U.S. 618, 638, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965)); accord Mohammed v. Obama, 704 F.Supp.2d 1, 24-25 (D.D.C.2009) ("[A]s a practical matter, resort to coercive tactics by an interrogator renders the information less likely to be true."); see also Rogers v. Richmond, 365 U.S. 534, 541, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961) ("To be sure, confessions cruelly extorted may be and have been, to an unascertained extent, found to be untrustworthy."). For this and other reasons.
The same concerns for a statement's reliability are applicable here.
"The ultimate test" for determining whether a statement was coerced is "the test of voluntariness." Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961). This requires the Court to ask whether "the confession is the product of an essentially free and unconstrained choice by its maker," or whether "his will has been overborne and his capacity for self-determination [has been] critically impaired ...." Id. The answer to this question is determined by considering "the totality of all of the surrounding circumstances—both the characteristics of the accused and the details of the interrogation." Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); see, e.g., Mohammed, 704 F.Supp.2d at 25 (determining voluntariness of statements based on totality of circumstances); Esmail v. Obama, 709 F.Supp.2d 25, 28 n. 3 (D.D.C.2010) (same); Al Madhwani v. Obama, 696 F.Supp.2d 1, 7 (D.D.C.2010) (same). Thus, a court may consider the interrogated party's age, level of education, and intelligence, as well as physical mistreatment or credible threats thereof, psychological abuse, and the conditions of confinement. Schneckloth, 412 U.S. at 226, 93 S.Ct. 2041; Arizona v. Fulminante, 499 U.S. 279, 287, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); Karake, 443 F.Supp.2d at 51.
The case management order that governs this case provides that "[t]he government bears the burden of proving by a preponderance of the evidence that the petitioner's detention is lawful." CMO § II.A. Consistent with other decisions involving Guantanamo detainees, this Court will assume that the government must prove the voluntariness of petitioner's statements by a preponderance of the evidence.
II. FACTUAL FINDINGS
Although Al-Qurashi does not deny having told his American interrogators that he had attended the al-Farouq training camp, he argues that those statements were the product of coercion. Al-Qurashi contends that upon his arrest, he was "brutally beaten and threatened with worse" by the Pakistani authorities, and that "[u]nder the threat of continued torture and a false promise of relief if he confessed, [he] eventually agreed to tell the Americans that he was at al-Farouq." (Mem. in Supp. of Pet.'s Mot. ("Mem.") at 25-26.) He also alleges abuse by U.S. officials in Kandahar and Guantanamo. As a consequence, he argues, the Court should suppress his statements to U.S. interrogators in Karachi, Kandahar, and Guantanamo as involuntary. However, as explained herein, it is unnecessary to determine whether petitioner was in fact mistreated in Kandahar or Guantanamo. (See also Mar. Tr. at 4.)
Approximately 36 hours after his arrest in Karachi, al-Qurashi told Agent [redacted] that he had attended al-Farouq. If this statement is found to have been voluntary, the issue of the voluntariness of later statements that he attended al-Farouq would be rendered irrelevant. Conversely, if petitioner's statement to [redacted] was involuntary because the Pakistani authorities abused and threatened him, then any subsequently consistent statements made in Kandahar and Guantanamo could arguably be tainted by that initial torture, regardless of whether he was further mistreated in those other locations. See Karake, 443 F.Supp.2d at 86-87; Lyons, 322 U.S. at 603, 64 S.Ct. 1208 ("The effect of earlier abuse may be so clear as to forbid any other inference than that it dominated the mind of the accused to such an extent that the later confession is involuntary."). Under either scenario, the Court's focus is appropriately limited to petitioner's allegations of torture while in Pakistani custody just prior to his interrogation by Agent [redacted] on the afternoon [redacted] And, in determining the credibility of these allegations as to voluntariness, the Court must engage in "a fact-specific inquiry that depends almost entirely on an assessment
In performing this task, the Court has considered reams of documentary evidence, including interrogators' reports of statements by petitioner and other detainees who were arrested on the same day, declarations by government officials, declarations by other detainees offered in this and other habeas actions, and third-party accounts of Pakistani governmental agents' abuse of suspects in custody.
For the reasons discussed below, the Court is persuaded that Agent [redacted] testimony is to be credited and that this testimony, as elaborated upon herein, in conjunction with other evidence, sustains the government's burden of establishing voluntariness. The Court also finds, as Judge Kennedy did in Esmail, that petitioner's "descriptions of abuse, particularly the ones made to his attorneys shortly before the merits hearing, are exaggerated," see 709 F.Supp.2d at 31, and therefore, they cannot be credited. Finally, the Court finds that the statements of petitioner's fellow arrestees and the other evidence before the Court do not undercut the government's evidence of voluntariness. Thus, the Court must reject petitioner's claim that his [redacted] statements to Agent [redacted] were the involuntary product of torture by his Pakistani captors, and it will therefore deny petitioner's motion to suppress.
A. Agent [redacted] Testimony
1. Interview with petitioner
[redacted] (Feb. AM Tr. at 8-9.) [redacted] (id. at 36), [redacted] (Id. at 16; [redacted] Decl. ¶ 2.)
[redacted] (See Feb. AM Tr. at 18; Feb. PM Tr. at 3.) [redacted]—[redacted] (See Feb. AM Tr. at 75, 123-24, 129-30.) [redacted] (Id. at 75.) [redacted] (Id. at 75, 123.)
[redacted] (Feb. PM Tr. at 29.) [redacted] (Id. at 32.)
[redacted] (Feb. AM Tr. at 23, 76; see [redacted] EC at 41-45.) Agent [redacted] was present and took notes, [redacted] (Feb. AM Tr. at 23, 76; Feb. PM Tr. at 31.) [redacted] (See [redacted] EC at 41; Feb. PM Tr. at 29.)
[redacted] (Feb. AM Tr. at 44.) [redacted] (Id. at 52, 59-61.) [redacted] (Id. at 45-47, 55.) [redacted] (Id. at 54-56, 60.) [redacted]
[redacted] (Feb. AM Tr. at 77-78; see also id. at 96-97 [redacted] the translator [redacted] took notes. (See REX 124 [redacted] interview notes); REX 130 at 10-11 (translator's notes) [redacted]
[redacted] (Feb. AM Tr. at 33, 47-48; Feb. PM Tr. at 5.) [redacted] (Feb. AM Tr. at 47), [redacted] (Id. at 34.) [redacted] (Id. at 16, 69.) [redacted] (Id. at 8.)
2. [redacted] testimony is credible and reliable
Based on Agent [redacted] demeanor and the substance of his testimony, the Court finds him to be a credible and reliable witness who had the incentive and opportunity to observe whether al-Qurashi manifested any evidence of having been tortured in the [redacted]
First [redacted] was required to [redacted] Feb. AM Tr. at 34), [redacted] (Id. at 37.) [redacted] (Feb. AM Tr. at 37.) [redacted] (Id.) [redacted] (Id. at 37-38.) [redacted] (Id. at 38.) As [redacted] (Id.) [redacted] (Feb. PM Tr. at 7)[redacted] (Feb. AM Tr. at 38.)
Second, the record shows that [redacted] acted in conformity with his instructions to vigilantly report signs of mistreatment. Although most arrestees did not bare any visible signs of injuries "that warranted being noted in [his] notes" (Feb. PM Tr. at 7), there were two exceptions. [redacted] (Feb. AM Tr. at 93-94; see [redacted] EC at 9.) [redacted] EC at 35; Feb. AM Tr. at 94-95.)
Third, although [redacted] saw no visible signs of abuse on al-Qurashi, he had ample opportunity to observe petitioner and his demeanor. For about two hours, he and al-Qurashi sat only a few feet across from each other at a coffee table. During this time, [redacted] (See, e.g., Feb. AM Tr. at 44-45, 52, 55.) [redacted] (Id. at 45, 52, 59-60.) [redacted] (see id. at 60-61) [redacted] (See [redacted] EC at 22-24; REX 124 [redacted] interview notes) at 3-7.)
Fourth, [redacted] had a clear memory of his interview with al-Qurashi. He testified to very specific details about the compound, [redacted] the particular room in which he conducted interviews, down to its tile floor; what he wore during the interview; what petitioner wore and the path he took in walking to a seat next to the translator; [redacted] also had reason to remember petitioner in particular. He testified, [redacted] So [redacted] and the interview commenced with the assistance of the translator." (Id. at 53.) [redacted] (See Feb. PM Tr. at 28-29.) It is also reasonable to conclude that al-Qurashi's interview was memorable and distinct from that of [redacted] because unlike [redacted] petitioner did not speak English, so this was the first arrestee interview where [redacted] required an interpreter.
Finally, [redacted] medical training and related experiences also help to corroborate the reliability of his observations. From 1969 through 1973, [redacted] served in Vietnam with the U.S. Navy as a hospital corpsman. (See Feb. AM Tr. at 8, 10, 13.) His training included patient care, emergency care, and aviation medicine, as well as Survival, Evasion, Resistance, and Escape ("SERE") training, during which he was subjected to abusive interrogations, simulated drowning, and overnight stress positions. (See id. at 10-13.) While serving in Vietnam, [redacted] helped perform physicals, treated wounded soldiers, and treated local civilians during trips to their villages. (See id. at 13-14.) After his discharge, [redacted] became the evening manager of a 300-bed civilian hospital and saw injured people "[e]very day." (Id. at 14-15.) This history makes it particularly likely that [redacted] was able to accurately observe the physical and mental conditions of the arrestees whom he interviewed.
3. Petitioner's arguments for not crediting [redacted]
Although petitioner's counsel has candidly acknowledged that Agent [redacted] was "conducting his job in good faith" (Mar. Tr. at 53), he nonetheless argues that [redacted] testimony is not reliable because [redacted] could not have remembered how petitioner looked eight years ago, especially given the brevity of their encounter and the stressful conditions under which [redacted] and his colleagues were working. (See id. at 43, 53.) The Court disagrees. As noted, [redacted] has demonstrated a vivid memory of many details of the interrogation. Not only did he give a detailed account of its circumstances, but he explained that he specifically remembered his interview of petitioner due to the novelty of the situation and because of petitioner's defiant attitude— unique among the arrestees—in refusing to be interviewed [redacted] in the room.
Petitioner further argues that even if [redacted] testimony were reliable, it is not relevant because [redacted] acknowledged that he had no personal knowledge of petitioner's pre-interview, detention, that he did not inquire into petitioner's treatment in Pakistani custody, and that he did not conduct an examination looking for injuries. (See, e.g., Mar. Tr. at 44-45, 54.) Petitioner argues that based on these facts and the decision in Uthman v. Obama, 708 F.Supp.2d 9 (D.D.C.2010) (Kennedy, J.), where two detainees' statements were found to be involuntary despite a government interviewer's testimony that [redacted] observed no signs of torture.
Again, the Court disagrees. Based on the timeline established by al-Qurashi's recent claims, it could only have been a matter of hours between the end of petitioner's alleged abuse and the moment when he came to be sitting three feet from [redacted] (Pet. Decl. ¶¶ 27-30; see also 1st Bhargava Decl. ¶¶ 6(f)-(h) (Pakistanis purportedly tortured and then fed al-Farouq details to petitioner after he was kept in stress position "overnight").) First, there had to be a lapse of time between petitioner's arrest, transport, and processing by Pakistani and American officials (including Agent [redacted]) and any opportunity for abuse. Thereafter, according to petitioner, he was subjected to various forms of mistreatment that caused unspecified injuries to his throat (see 2nd Bhargava Decl. ¶ 4(k)), and which culminated in his captors inflicting repeated blows to his head, both before a bag was placed over it and afterward. (See Pet. Decl. ¶¶ 23, 26.) Common sense dictates that these beatings, as described by petitioner, would have left some form of marks upon the head, neck, or face, whether in the form of abrasions, bruises, swelling, or simply redness. (See Mar. Tr. at 49.) Petitioner also affirmed that he told his counsel that the rope that was used to bind his wrists "cut into his skin." (2nd Bhargava Decl. ¶ 4(j); PEX 2A (petitioner's affirmation).) Moreover, petitioner claims that he was forced to remain kneeling against a wall for a long time, and that he was then twice beaten to the point of being rendered unconscious. Ye[redacted] observed no injuries, nor did his EC record any, and petitioner did not exhibit any difficulty walking, talking, or thinking clearly.
In sum, contrary to petitioner's argument, [redacted] provides significant and credible evidence regarding the circumstances of petitioner's detention.
[redacted] testimony about petitioner's demeanor during the interview further suggests that al-Qurashi was speaking voluntarily. He refused to cooperate in front of Agent [redacted], which suggests that his will had not been overborne, cf. Culombe, 367 U.S. at 602, 81 S.Ct. 1860, as does his [redacted] EC at 23.) Even if petitioner's reluctance to be interviewed [redacted] was genuinely motivated by cultural
In addition, [redacted] testimony and handwritten interview notes establish that petitioner spoke with specificity about his travels in Afghanistan. This significantly undercuts petitioner's claim that he was simply repeating a false narrative that he had memorized shortly after being twice beaten into unconsciousness. Such brutal treatment would make it difficult to memorize a fictional account of one's travels so that it could be retold persuasively as the truth. Ye [redacted] testified that the interview's tone was "conversational" and "easygoing." (Feb. AM Tr. at 53.) The fluency of petitioner's answers is also reflected in [redacted] handwritten notes. These notes present a relatively linear narrative, suggesting that petitioner provided a coherent chronological account of his time in Afghanistan. (See REX 124 at 3-6.) Petitioner described how he got to al-Farouq, the training he received, the names of the people in charge at the camp, the size of the training groups, and where he traveled after he left.
Al-Qurashi's stated reason for leaving the camp also bolsters the veracity of the account he gave to Agent [redacted] (REX 124 at 4.) The U.S.S. Cole was bombed in Yemen on October 12, 2000, almost four weeks after petitioner's arrival in Pakistan. This is roughly consistent with the fact that petitioner told [redacted] he was at al-Farouq for "[one] month." (Id.) Despite the detail of petitioner's declarations and those of his counsel, none of these documents suggests that the Pakistanis specifically fed petitioner details about why he left the camp or that they tailored such a reason to the particular circumstances of his travels. (See REX 15 at 6 (testifying at ARB testimony that Pakistanis promised to give him "simple information" and citing only pictures and name of camp's leader); 1st Bhargava Decl. ¶ 6(h) (relating petitioner's allegation that he was told about "the process of traveling to and registering for the camp").) So even if petitioner did not cite the Cole by name, the specificity of his reference to its bombing and the camp attendees' fear of a retaliatory strike suggests that his statement about when he left al-Farouq was truthful.
B. Petitioner's Claims of Abuse Are Not Credible
1. Timeline inconsistencies
Petitioner himself has cast doubt on the credibility of his allegations because he appears to have changed his story in material respects between the time he spoke to his counsel in July and August 2009 and when he signed his declaration in November 2009, after key government evidence had been obtained.
As an initial matter, it is reasonable to conclude, as [redacted] testified, that after the [redacted] (See Feb. AM Tr. 25-26.) Thus, even assuming that petitioner was arrested at sometime before dawn on February 7, 2002, it would likely have been several hours before he had arrived at the facility where he was allegedly coerced. Accordingly, the Court focuses not on the 36-hour time period between his arrest and interrogation by Agent [redacted], but on a slightly shorter period of time beginning with his placement in a detention facility sometime during the late morning of February 7.
Within this approximately 30-hour period, petitioner's allegations of abuse fall into five discrete episodes. First, he was tied up in ropes and told to confess to being a member of al-Qaeda, fighting for the Taliban, or training a military camp, or else the Americans would torture him. (Pet. Decl. ¶ 18; 2nd Bhargava Decl. ¶ 4(j).) During this time, he could hear torture in the surrounding jail cells, and when he was given the opportunity to take bathroom breaks, he observed torture of
While it may not be impossible for these five episodes to have occurred over the 30-odd hours between al-Qurashi's detention by the Pakistanis and his interview by [redacted] petitioner has not always adhered to this timeline. Petitioner told counsel in July and August 2009 that the Pakistanis had detained him "for several days," and that he had endured "several days of beatings and false assurances" by the time he agreed to falsely incriminate himself. (1st Bhargava Decl. ¶¶ 6(b), 6(g).) Petitioner also stated that he had been forced to stay awake "overnight" while kneeling against a wall until "the next day." (Id. ¶¶ 6(e)-(f).) But on October 1, 2009, the government produced declassified evidence showing that petitioner's arrest and [redacted] interview occurred only one calendar day apart. (See REX 48 at 1.) Subsequently, on November 17, 2009, petitioner authored a declaration in which he replaced counsel's prior references to "several days" with less time-specific phrases (see, e.g., Pet. Decl. ¶ 29 (attributing confession to fact that he "had endured so much abuse already")), and stated that he was forced to kneel merely "for a long time." (Id. ¶ 25; see also 2nd Bhargava Decl. ¶ 4(i) ("for hours on end").) Thus, in a space of several months, petitioner had shied away from his "several days" timeline and revised the length of the kneeling episode. These inconsistencies further discredit petitioner's account.
2. Absence of definitive medical evidence
Al-Qurashi's credibility is also undermined by the fact that under either version of his timeline, the alleged beatings that led to him blacking out twice—and to his subsequent confession and education about al-Farouq—could only have occurred over the course of several hours on February 8, 2002, directly before he met Agent [redacted] Given the absence of any corroborating medical evidence, these allegations are, at best, exaggerated. Cf. Esmail, 709 F.Supp.2d at 34 ("The [petitioner's medical] records apparently contain no evidence of the repeated beatings to which [he] asserts he was subjected, calling into serious question the truthfulness of [his] most serious allegations of torture."). This is not to say that claims of torture must be accompanied by permanent bodily damage such as the "visible scars" in Karake. See 443 F.Supp.2d at 16-17, 56 (defendant was left with "visible scars" from alleged abuse with barbed wire and prolonged handcuffing of his wrists to his ankles). But where, as here, the torture alleged includes repeated blows to the head that led to vomiting of blood and repeated losses of consciousness, it is reasonable to expect that at least some physical effects would have been manifested on the day of the abuse, even if they did not leave more permanent evidence. But [redacted] observed nothing noteworthy.
3. Petitioner's stated reasons for recanting are not credible
The Court is also highly skeptical of al-Qurashi's stated reasons for recanting. He explained that he recanted in September 2002 because the interrogators told him "they were with the Department of Justice." and "[b]ecause they said they were about `justice.'" he believed that he "finally had a chance to tell the truth." (Pet. Decl. ¶ 38.) Yet, by even his own standards, he did not tell them the whole truth. Rather, he told them only that the Pakistanis had threatened to torture him, as opposed to actually torturing him. He professes that this was because he had been told the Pakistanis "still had access to Guantanamo," so he was "afraid that if [he] told [the Americans] what the Pakistanis did to [him], the Pakistanis would prevent [him] from going home." (Id. ¶ 39.) Instead of telling the DOJ officials "the truth of what the Pakistanis did to [him], [he] made up a story about learning information about al Farouq from someone [he] called Khalid Dossieri." (Id. (emphasis added); see REX 32 at 1.) By now suggesting that Dossieri was merely a fabricated story, however, petitioner contradicts his earlier sworn testimony to the ARB, where he maintained that Dossieri was a real person whom he met at a guesthouse in Kabul, and from whom he learned of al-Farouq's existence but nothing more.
Additionally, the government's evidence supports a more plausible inference that al-Qurashi changed his story in September 2002 not because of the presence of DOJ interrogators, but because he was unhappy with how Guantanamo interrogators were treating him. Once [redacted] at Guantanamo at the end of May 2002, he was interrogated regularly. Through May and June, he consistently told his interrogators that Abd al-Wahid (and others) had duped him into going to al-Farouq. (See REX 81 (May 28-30 and June 1-2, 2002); REX 7 (May 29, May 31, and June 2-4, 2002); [redacted] REX 8 (June 27, 2002); PEX 71 (June 27, 2002); see also PEX 64 (Mar. 2, 2002 report from Kandahar: al-Wahid "convinced him to go to Afghanistan to a camp for a month to do aidid, study the Koran, and teach the Koran").) Following petitioner's interrogation [redacted] a military interrogator wrote that al-Qurashi "stated he was a member of the Jamaat Tablighe" who "end[ed] up" at al-Farouq but did not complete the training program. (PEX 71 at ¶ 1(C).) Although petitioner
(REX 79 at 1 (emphases added).) "After much discussion" with the FBI and NCIS interrogators, petitioner "decided to answer questions as long as he was treated with what he termed respect," and stated, inter alia, that Abd al-Wahid "convinced him to travel to Afghanistan for business" but then "abandoned" him at al-Farouq. (Id.) A month later [redacted] interrogators advised al-Qurashi "of the importance of his continued cooperation." (PEX 66 at 1.) He responded that "he ha[d] experienced continued interviews and promises while being incarcerated," "questioned why he ha[d] been treated like a criminal [redacted] After answering some questions about his flight from Afghanistan to the Karachi safehouse, petitioner then "stated that all information about his travel to Afghanistan in previous interviews with U.S. authorities was coerced and fabricated." (Id.) From this, it is fair to infer that petitioner recanted his story because he was tired of the interviews and objected, perhaps with good reason, to his treatment at Guantanamo.
4. Petitioner's current claims of abuse are inconsistent with his prior post-recantation statements
It is also telling that al-Qurashi's description of what happened to him while in Pakistani custody changed dramatically between his 2005 ARB testimony and what appears to be his first meetings with counsel in the summer of 2009. Petitioner's November 2009 declaration makes detailed allegations about how the Pakistani authorities beat him into submission just before his interview with [redacted] (See supra Background, Section LB.) However, with one exception, none of his post-recantation interrogation statements alleges that he was beaten. See PEX 66 (Sept. 11, 2002: "threatened him with torture"); REX 55 (same); REX 32 (Sept. 20, 2002: "threatened with torture"); REX 110 (Oct. 3, 2002: "he was instructed to say he attended"); REX 113 (same); REX 111 ([redacted]: "forced him"); REX 19 ([redacted] "forced him"); REX 107 ([redacted]: "told him and others to say that they were at" al-Farouq so they could obtain expedited release from U.S. custody); REX 13 (Dec. 6, 2003: "he would probably be tortured by the Americans"); REX 116 (Nov. 3, 2004: "he had seen and heard several men get tortured by the Pakistanis," and he was "a weak minded person when he was held by the Pakistanis"). The Court recognizes that these reports are not testimony but are hearsay, in that
Al-Qurashi's August 3, 2005 sworn testimony before the ARB is similarly devoid of any claim that he was tortured.
Petitioner's consistent failure to allege physical mistreatment by his Pakistani captors—especially with the detail he now provides—raises a strong inference that his present allegations are, at best, "embellished... in an effort to create an advantage for himself in this litigation." Esmail, 709 F.Supp.2d at 35 (concluding that it was reasonable to draw adverse inference from "late addition" of "serious allegations" of abuse that were not made in an earlier declaration which also claimed abuse). For this reason, the Court concludes that petitioner's allegations regarding his treatment by the Pakistanis following the February 7, 2002 raid are not credible.
C. Petitioner's Other Evidence Does Not Undermine Respondents' Showing
1. Statements by petitioner's fellow arrestees
Statements by three of the men arrested with al-Qurashi indicate that they were not tortured by the Pakistanis. The attorney for Hamdoun (ISN 576) has declared that although Hamdoun said he was threatened with torture, he himself "was not tortured by the Pakistanis." (PEX 15 ¶ 8.)
Statements by other arrestees ostensibly corroborate al-Qurashi's allegations of physical abuse in Karachi. However, not only is it implausible that the Pakistani authorities would have brutally abused some arrestees and not others (i.e., Hamdoun, al-Hajj, and al-Zamel), but many of these other arrestees' statements are not reliable or relevant. For example, al-Qattaa (ISN 566) stated in a declaration submitted on al-Qurashi's behalf that
(PEX 14 at 2 (brackets in original).) This statement does not provide credible corroboration for petitioner's account of torture. First, it is inferable that the "marks" that al-Qattaa claims to have seen were inflicted after petitioner's interrogation by Agent [redacted] since al-Qattaa saw petitioner "several days" after they were imprisoned. Second, [redacted] almost three years after the raid, al-Qattaa was shown a photo of petitioner during an interrogation session and stated that "he did not recognize" petitioner, and that "he could not recall anytime he had met him in or out of the camp [i.e., Guantanamo]." (REX 129 at 1.)
Belmar (ISN 817) also submitted a declaration on petitioner's behalf. (See PEX W.) It states that during his interrogations by the Pakistanis, they "regularly beat [him] on [his] shins and feet with a stick that resembled a cricket bat" whenever they believed he was lying, and they told [him] that [he] would be sent to Jordan or Syria to be tortured" and "wanted [him] to admit that [he] was part of al Qaeda[,] which was not true." (Id. ¶ 5.) This statement is generally consistent with the claims he is now making in a civil suit filed in the United Kingdom (see PEX X ¶ 130), which itself may serve to create an inference of bias, thereby casting doubt on his credibility. But more importantly, even if Belmar's statement is true, it is of limited probative value with respect to petitioner's
Al-Qurashi also declared that he observed three of his fellow arrestees being tortured or bearing the marks of torture. Anam (ISN 569) was allegedly tortured by the Pakistanis, "pinned face-first against a wall, hanging by his hands." (Pet. Decl. ¶ 20.) In 2005, interrogators reported that Anam said that he had made false statements to his Pakistani interrogators "due to `torture."' (See REX 90; PEX 75.) If true, this would corroborate what petitioner saw and, in turn, petitioner's allegations. However, Anam's 2005 statement is undermined by his reported 2003 statement that although he heard of others being tortured while in Pakistani custody, he himself had never been tortured. (REX 91 at 2; REX 101 at 1.) While this 2003 statement was made prior to Anam's recantation, it remains noteworthy precisely because he was comfortable enough under the circumstances to attribute coercive tactics to the Pakistanis, and yet he disavowed that such methods had been used on him. Also, in Anam's habeas proceedings before Judge Hogan, the Court denied his request for discovery regarding abuse by foreign captors because, inter alia, he only presented evidence of abuse while in American custody and "provide[d] no documents or declarations that he suffered abuse while in the hands of Pakistani authorities." Order at 5 ¶ 4, Anam v. Obama, No. 04-CV-1194 (D.D.C. Sept. 9, 2009) (Dkt. 651). For these reasons, the Court finds that Anam's 2005 statement is not helpful to petitioner.
Al-Qurashi also claimed that al-Swidhi (ISN 578) was tortured to the point of being unable to walk, such that "[e]ven after [they] were transferred to Kandahar, [al-Swidhi's] foot was swollen and he still could not walk." (Pet. Decl. ¶ 22.) In 2004, al-Swidhi was reported as having recanted his statements about attending al-Farouq, claiming that he had been tortured into making false statements. (REX 97 at 1; REX 98 at 2; see also REX 96 at 1 ¶ 2 (describing "harsh" treatment and fear of being killed); REX 102 at 2 (same).) Although petitioner does not clarify whether al-Swidhi was purportedly beaten before or after his interview with [redacted], it is logical to infer that if the Pakistanis had been trying to coerce arrestees into giving false information to the Americans, they would engage in such coercion prior to [redacted] interviews. Ye[redacted] (See [redacted] EC at 28-30.) [redacted] (id. at 35), one would expect [redacted] to have noted a similar fact with respect to al-Swidhi.
Al-Qurashi also allegedly heard screams from someone he believed to be Bin Amer (ISN 564), who looked "beaten up" after his interrogations. (Pet. Decl. ¶ 21.) In 2006, interrogators reported that Bin Amer recanted his statements about training at a Libyan camp near Kabul, claiming that he had been tortured and/or threatened with torture by the Pakistanis. (See REX 93; REX 92; PEX 73.) If true, this
Finally, according to a government risk assessment document, al-Azani (ISN 575) recanted in 2004 by claiming "torture by his original captors." (REX 103 at 1 ¶ 3; see also REX 104.) Nothing else in the record of this case or the publicly accessible record of al-Azani's habeas proceedings either bolsters or undermines the reliability of this report, and thus, the Court is unable to accord the document any real weight.
2. Abusive practices of the Pakistani authorities
The Court acknowledges that there is evidence regarding the custodial abuse of suspects by Pakistani authorities and officials. (See PEX 32 at 3, 6 (U.S. Department of State Country Report on 2002 human rights practices); PEX 31 at 6-8 ¶ 5.1, 10 ¶ 5.3 (Amnesty International report describing torture of terrorism suspects by Pakistani security, military, and intelligence agents); PEX 18 ¶ 10 (ISN 257's allegation of abuse by Pakistani intelligence services in late 2001); PEX 19 ¶ 1 (same); PEX S ¶ 7 (ISN 839's allegation of abuse by Pakistani intelligence officer in late 2002); see also PEX 33 at 2 ¶ 162 (Pakistani criminal procedure code section generally prohibiting use at trial of custodial statements to police); PEX 34 at 1 ¶ 39 (Pakistani executive order prohibiting use of suspect's custodial confession against him unless made in magistrate's presence).) However, the Court cannot infer from the Pakistani authorities' general reputation that petitioner was necessarily abused on February 7 and 8, 2002. [redacted] From this, it can be inferred that the Pakistani authorities were aware that U.S. officials might interview the other suspects. Because of this expectation, because [redacted] likely saw the suspects upon their arrest [redacted] the Pakistanis would have a strong disincentive to beat suspects in a way that might be observed by the American interrogators. This disincentive is consistent with the fact that Hamdoun (ISN 576) disavowed being tortured by the Pakistanis (see PEX 15 ¶ 8) and that al-Hajj (ISN 1457) and al-Zamel (ISN 568) alleged only that they were abused in American custody and said nothing
Based on the totality of the circumstances surrounding al-Qurashi's [redacted] statements to Agent [redacted] the Court concludes that respondents have sustained their burden to show that these incriminating statements were made voluntarily and are therefore admissible. See United States v. Abu Ali, 395 F.Supp.2d 338, 378 (E.D.Va.2005) (declining to suppress statements in criminal prosecution). Accordingly, the Court will consider petitioner's statement to Agent [redacted] in Pakistan [redacted] and it will deny his motion to suppress.
For the foregoing reasons, it is hereby
(REX 15 at 5-6 (brackets and ellipses in original).)
First, both documents reference an applicant named "Abu Yaqub," and respondents contend that this person is petitioner. (See Resps.' SMF ¶ 10.) However, petitioner denies ever using the name "Abu Yaqub," although he concedes that he used the name "Yaqub" during his travels, without the honorific "Abu." (Pet. Decl. ¶ 45.) Second, the manual states that Abu Yaqub hails from "Al-Jazira (Al Hafr)" (REX 29 at 52), and the application states that he comes from al-Hadhar, Saudi Arabia (REX 133 at 3), but neither of these locations appears to correspond to petitioner's statements to interrogators that he has lived in al-Hodaida, Yemen (REX 124 at 1) and Hafr al-Batin, Saudi Arabia. (REX 80 at 3; see Jan. Tr. at 26 (clarifying location name).) Third, Abu Yaqub signed the application on "14/6/22" (see REX 133 at 2), and respondents argue that "14" actually refers to the Islamic calendar year 1421 (even though the "21" is not on the page), and that if read in this way, the date converts to late September 2000 in the Gregorian calendar, which is roughly when petitioner traveled to Afghanistan. (Mar. Tr. at 89-93.) Petitioner disputes this reading of the date on the document and offers an expert declaration to refute respondents' interpretation. (Id. at 81; see PEX 79 (Bigelow Decl.) ¶ 6).) Fourth, the application states that at the time he signed it, Abu Yaqub had already attended the al-Farouq, Khaldan, and "Drotna" (probably "Derunta," see REX 3) camps (see REX 133 at 6), but the government has never alleged that petitioner attended three training camps in Afghanistan before he arrived there in late September 2000. Fifth, the application contains a phone number (see id. at 3 ([redacted])) which, respondents argue, resembles one that petitioner allegedly provided during an interrogation at Guantanamo. (REX 80 [redacted] Decl.) at 1 ¶ 4; see id. at 3 (interrogator's notation: "TP: [redacted]").) Petitioner declares that he does not recognize the phone number in REX 133 and that it does not "describe" him. (Pet. Decl. ¶ 45 (reviewing different exhibit with same phone number).)
Ultimately, the Court need not determine the probative value of these documents in order to resolve the instant motion, given the Court's conclusion that the government has sustained its burden of proof regarding petitioner's statement to Agent [redacted]
Both physicians also reviewed medical records from petitioner's time in Guantanamo, as well as other documents filed in this case, and they are familiar with his allegations of mistreatment. (See [redacted] Decl. [redacted] Decl. [redacted]) They opined extensively on whether the Guantanamo medical records reflect symptoms or injuries attributable to petitioner's alleged mistreatment. Nonetheless, the Court finds that the medical records are inconclusive with respect to petitioner's specific allegations of mistreatment on February 7 and 8, 2002. (See, e.g., [redacted] Decl. [redacted] Decl. [redacted] (See also Jan. Tr. at 303-04.)
(REX 15 at 8 (ellipsis in original).)