Judge finds Gitmo detainee was no 'Gucci jihadist'


In an opinion released to the public on Feb. 18, DC District Judge Ricardo Urbina denied Guantanamo detainee Mashour Abdullah Muqbel al Sabri's petition for a writ of habeas corpus. Al Sabri's counsel had argued that he was a "Gucci jihadist" who had traveled to the front lines of combat in the Taliban's Afghanistan merely to fulfill his curiosity and religious obligation without actually fighting.

Judge Urbina disagreed, finding that al Sabri's journey to jihad took him from a boardinghouse in Yemen where one of the USS Cole bombers lived, to a guesthouse in Afghanistan where one of the 9/11 plotters greeted guests.

The court found that al Sabri "traveled from Yemen to Afghanistan in 2000" to fight alongside the Taliban and al Qaeda, "stayed in Taliban and al Qaeda guesthouses," "sought out and received military-style training from the Taliban or al Qaeda," and "traveled to the battle lines in Afghanistan as part of the Taliban or al Qaeda and remained part of those forces at the time of his capture in early 2002."

The US government presented overwhelming evidence against al Sabri (whose internment serial number at Guantanamo is 324), including documents recovered in Afghanistan. One such document was al Sabri's application for an al Qaeda training camp. After completing his training, his application notes, al Sabri planned on waging "jihad."

The government also introduced into evidence a 92-page collection of documents recovered from the "Director of Al Qaeda Security Training Office." Those documents contain the "names of the students admitted to" various training programs. Al Sabri is mentioned more than once in the documents, which list him as a graduate of an anti-aircraft missiles class.

The recovered al Qaeda documents constitute just one layer of the evidence considered by the court. Judge Urbina also cited al Sabri's own admissions, as well as the testimony of al Sabri's fellow Guantanamo detainees. Significantly, Judge Urbina's use of statements made by Guantanamo detainees while in custody contradicts, in important ways, prior habeas decisions handed down by DC district judges, including one of Judge Urbina's own rulings.

The "boardinghouse"

In 1998, al Sabri was arrested in Saudi Arabia for harboring a wanted individual. He spent a month in jail and then was deported to his native Yemen. He was banned from Saudi Arabia for five years.

In the summer of 1999, al Sabri traveled to Sana'a, where he stayed at a boardinghouse for jihadists. Two weeks later, al Sabri and several others "associated with the boardinghouse" were arrested on the suspicion that they "belonged to a car theft ring."

The court notes that "the car theft conspiracy centered on a plot to steal cars in order to purchase arms, which they would then use to violently free an individual" who "had been convicted of kidnapping and murdering four western tourists." The boardinghouse's residents also considered kidnapping Westerners to exchange for the convict.

Interestingly, in assessing the importance of al Sabri's stay at the boardinghouse, Judge Urbina relies heavily on interrogation reports derived from the questioning of Abdu Ali al Hajj Sharqawi (ISN # 1457), aka "Riyadh the Facilitator" -- a known, high-level al Qaeda operative who is detained at Guantanamo.

In a previous habeas matter, District Judge Henry Kennedy, Jr. excluded Sharqawi's incriminating descriptions of another Guantanamo detainee, Uthman Abdul Rahim Mohammed Uthman. In the Uthman case, Judge Kennedy, Jr. ruled that Sharqawi had been "tortured" during his detention in Jordan, at a CIA-run facility in Afghanistan, and at Bagram. The sole piece of evidence Judge Kennedy, Jr. relied upon in determining that Sharqawi had been tortured came from Sharqawi himself. Counsel for Uthman submitted a declaration written by Sharqawi's attorney, who Sharqawi purportedly told about his time in Jordanian and US custody.

In the Uthman case, the government countered by presenting as a witness the criminal investigator who had interviewed Sharqawi and another Guantanamo detainee, Sanad Yislam Ali Al Kazimi (ISN # 1453), at Bagram and Guantanamo. Kazimi had similarly identified Uthman as an al Qaeda operative and, in a declaration filed by his attorney, claimed he was tortured. The government argued, however, that the investigator, who worked for the Department of Defense's Criminal Investigative Task Force (CITF), "did not mistreat" Sharqawi or Kazimi, or "observe any torture," or even witness "any signs of abuse in the demeanor or physical state of either man." Moreover, the investigator took Sharqawi's and Kazimi's testimony during "cordial," non-coercive interview sessions.

Despite the prosecution's arguments, however, Judge Kennedy, Jr. still excluded Sharqawi's and Kazimi's statements in the Uthman case, reasoning that the government had failed to rebut the declarations made by the detainees' lawyers. Kennedy ruled that the CITF investigator did not have knowledge of Sharqawi's and Kazimi's time in custody prior to arriving at Bagram and Guantanamo, and had only limited knowledge of their time in custody after being transferred to those facilities. Thus, Judge Kennedy, Jr. excluded Sharqawi's and Kazimi's statements because their lawyers' declarations were unrebutted. Sharqawi's and Kazimi's friendly interrogations were considered "tainted" by their earlier alleged mistreatment.

The situation in al Sabri's habeas proceeding could not be any more different. Uthman's counsel had sought to exclude Sharqawi's damning statements, and succeeded in that aim. Al Sabri's lawyers, on the other hand, sought to include Sharqawi's statements, reckoning that their inclusion would help al Sabri's case.

And the court admitted Sharqawi's statements to interrogators in this instance. Judge Urbina found that "Sharqawi has cooperated with investigators." The judge continued:

There is no evidence that Sharqawi's statements were the result of torture and, in fact, the petitioner himself relies on Sharqawi's interrogation report in support of his case. ...Accordingly, Sharqawi's interrogation report is sufficiently reliable for the court's consideration.

Sharqawi, who has "personal knowledge" of the boardinghouse, told investigators that it was used by veterans of the jihad in Bosnia. Sharqawi also described the car theft plot and said that the boardinghouse's inhabitants wanted to overthrow the Yemeni government because it had slain a famous jihadist.

Al Sabri himself admitted that two of his housemates "had received jihadist training in Afghanistan," and another housemate had "trained at the Khalden camp near Jalalabad, Afghanistan...a jihadist training camp affiliated with al Qaeda and the Taliban."

Still another of al Sabri's housemates in Yemen was Hassan al Khamari, one of two suicide bombers who attacked the USS Cole on Oct. 12, 2000.

Al Sabri tried to convince the court that he barely knew the individuals staying at the boardinghouse, but Judge Urbina found that his detailed knowledge of his housemates' biographies and continued association with them belied his claim. Judge Urbina also noted that the boardinghouse's residents would not have welcomed al Sabri into their residence while they plotted an "active terrorist conspiracy" unless they trusted him.

Decision to join the jihad in Afghanistan

After being released from prison in Yemen in late 1999, al Sabri decided to join the jihad in Afghanistan. He later explained that two influences had convinced him to do so: a fatwa signed by two prominent Saudi sheikhs, and his conversations with a former Taliban fighter.

From the 1990s through the Sept. 11, 2001 terrorist attacks, Saudi clerics repeatedly issued fatwas saying it was the duty of Muslims to travel to Afghanistan for jihad. Al Sabri explained to authorities that one of these fatwas, issued by Hammoud al Aqla and Abdulla al Jibreen, "was encouraging men to go to Afghanistan to assist the Taliban."

Al Sabri and his attorneys tried to dissemble his characterization of the sheikhs' fatwa, however, saying that it didn't necessarily implore Muslim men to engage in violence. Judge Urbina found otherwise, citing a string of fatwas that clearly called for violent jihad.

The court also cited the statements of two other Guantanamo detainees, Mukhtar Yahya Naji al Warafi (ISN # 117) and Hamud Dakhil al Jadani (ISN #230), both of whom admitted during interrogations that al Aqla's fatwas convinced them to join the jihad. Al Warafi described al Aqla as "a well known religious leader [who] claimed to have sent 11,000 Saudis to various training camps in Afghanistan, Pakistan, Chechnya and the Philippines." Al Jadani told interrogators that al Aqla "encouraged young men to travel to [Afghanistan] and fight against Massoud, who was killing a lot of Muslims." According to one interrogation report, al Jadani explained that "Al Aqla...told his audience that if they did not follow this fatwa they would go to hell."

Judge Urbina refrained from calling the Taliban fighter whom al Sabri met in Yemen a jihadist "recruiter," but it certainly appears that is the role he played. It is "clear," the court found, that the Taliban's man and al Sabri "discussed the military training available in Afghanistan and fighting with the Taliban." The Taliban fighter also "furnished" the travel route al Sabri used to get to Afghanistan and this "is the same path used by foreign mujahaddin traveling to Afghanistan to engage in jihad." This same Taliban contact told al Sabri to go to the Taliban's office in Quetta, Pakistan, which "facilitated the travel of fighters to al Qaeda and Taliban guesthouses and camps in Afghanistan."

The court rejected al Sabri's contention that the Taliban's fixer "lured" him to Afghanistan with promises of a wife and a better life, including a job. Al Sabri claimed, absurdly, that he was told Afghanistan was a secure and peaceful place for him to prosper. The court noted that he never made any attempt to find a job or start a new, jihad-free life. (The court did not note that al Sabri's cover story is a common one employed by Guantanamo detainees.)

Arrival in Pakistan and Afghanistan

Al Sabri arrived in Pakistan in the summer of 2000. Once there, he immediately headed for the Daftar al Taliban, "a Taliban-run office and guesthouse" in Quetta.

A few days later al Sabri headed for the border with three men who, according to al Sabri, said they intended to be martyrs. When the four jihadists arrived at the border, they exited the taxi cab in which they had been traveling and proceeded on motorcycles. Al Sabri explained that taxis were stopped at the border crossing, whereas motorcycles were not.

Once they arrived in Afghanistan, the four "were picked up by the same taxi and carried on to Kandahar," where they "were taken to an al Qaeda guesthouse."

Al Qaeda and Taliban guesthouses are not "youth hostels"

Judge Urbina's discussion of al Qaeda and Taliban guesthouses in Al Sabri v. Obama is a major reversal from an opinion he had issued earlier. In late 2009, Judge Urbina had granted the habeas petition of Guantanamo detainee Saeed Hatim. In the Hatim ruling, Judge Urbina approvingly cited District Judge Gladys Kessler's view that "guesthouses are common features in the region and that many young men who are traveling or studying who do not have much money stay at these guesthouses and also stay at those guesthouses associated with either their own nationality ... or ... with their own particular religion."

Judge Kessler's view was supposedly buttressed by an "expert" who determined that these guesthouses "are roughly akin to youth hostels, except that guests sometimes perform chores in lieu of paying for room and board."

In denying al Sabri's habeas petition, however, Judge Urbina rejected this "expert" view of jihadist guesthouses. In this more recent ruling, Judge Urbina found that the descriptions offered by al Sabri and Hamud Dakhil al Jadani (one of the other Guantanamo detainees cited above) were not at all consistent with the expert's view that these guesthouses are "most closely comparable to the old-fashioned Western concept of a non-profit youth hostel or YMCA."

Far from being "youth hostels," the guesthouses where al Sabri stayed were in fact used to house jihadi fighters traveling to the front lines and terror training camps. In reality, al Qaeda and Taliban guesthouses are secure facilities that only jihadists with the appropriate credentials may enter.

Coincidentally, Judge Urbina's decision to grant Saeed Hatim's habeas petition was vacated last week by the DC Circuit Court.

Al Sabri stayed at several guesthouses during his time in Afghanistan. One of them was the Haji Habash guesthouse in Kandahar. (Saeed Hatim also stayed at this guesthouse.) Across the street from Haji Habash was the Islamic Institute. Judge Urbina cited the interrogation report from yet another Guantanamo detainee, Ahmed Abdel Aziz (ISN #757), who explained that the Institute was run by Abu Hafs al Mauritania, a top al Qaeda theologian. Aziz admittedly worked for Abu Hafs. Aziz's description of the Institute was corroborated by al Jadani who stated that "the mission of the Institute was to issue religious fatwa[s], teach the Koran and the Hadith, and to indoctrinate the young students about going to paradise if they give their lives for the Muslim cause."

Al Sabri told US interrogators that he visited Abu Hafs' Islamic Institute daily during a two-week stay Haji Habash.

Another of the guesthouses where al Sabri stayed was Hamza al Ghamdi's facility in Kabul. Al Ghamdi is a known al Qaeda member, and Judge Urbina again relied on reports generated from the interrogations of Guantanamo detainees to gain a window into the activities at al Ghamdi's guesthouse.

Judge Urbina found that Guantanamo detainee Ghaleb Nassar al Bihani (ISN # 128) provided "detailed information regarding al Ghamdi's history of affiliation with al Qaeda, as well as his role within the organization." Al Bihani described al Ghamdi as "one of Osama bin Laden's main [lieutenants]" and said that al Ghamdi "[was] one of the planners for al Qaeda special operations in Afghanistan and maybe for other countries." [Al Bihani previously lost his own habeas petition; see LWJ report, The Jihadi Brothers.]

Al Sabri admittedly asked al Ghamdi to fight alongside the Taliban, but was initially denied. Al Ghamdi told al Sabri that he needed more training. After several months away, during which time al Sabri received such additional training, al Sabri returned to the guesthouse in Kabul. This time, al Ghamdi approved his request to fight.

Before leaving the al Ghamdi guesthouse this second time, al Sabri "observed" an important al Qaeda operative, whose name is blacked out in the court's ruling. Judge Urbina says this individual "was a coordinator for the September 11 terrorist attacks" and references page 434 of the 9/11 Commission's final report.

That page lists several 9/11 conspirators, but only one is listed as a "coordinator" for 9/11: top al Qaeda operative Ramzi Binalshibh. According to al Sabri, the individual he saw (presumably Binalshibh) "would come to the house and greet people before going upstairs to the private offices."

The Taliban and al Qaeda

As al Sabri's career demonstrates, there was extensive overlap between the operations of the Taliban and al Qaeda long before Sept. 11, 2001. Al Sabri consorted with various Taliban and al Qaeda personalities at each step of his way to jihad, beginning in Yemen and ending in Afghanistan.

And al Sabri's ties to al Qaeda may have been even more important than Judge Urbina's decision lets on. There are some noteworthy allegations in the US government's declassified files produced at Guantanamo that were not addressed by the court. According to the government's sources, including Guantanamo detainees, al Sabri worked for Osama bin Laden. He allegedly oversaw the transport of supplies to the front lines and transferred cash for the terror master.

Al Sabri also allegedly swore bayat (an oath of loyalty) to bin Laden and worked for a time at the Kandahar airport, a known bin Laden stronghold. Furthermore, the government's sources said that al Sabri had accompanied bin Laden to Tora Bora.

It is not clear why these allegations were not addressed by the court.

Finally, Judge Urbina found that the government could not prove that al Sabri had fought at Tora Bora prior to his capture. But his retreat from Afghanistan was certainly consistent with having fought there.

In the end, Judge Urbina concluded, all of the other evidence was more than sufficient to justify al Sabri's continued detention.




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READER COMMENTS: "Judge finds Gitmo detainee was no 'Gucci jihadist'"

Posted by JB SoCal, USA at February 23, 2011 11:20 AM ET:

Thank you, author Thomas Joscelyn, for a well-written, informative piece. It's interesting to realize Judge Urbani's thought processes as the case evolves, and the intense research that went into his decision.

I plan to go back and search out more of your writing, Mr. Joscelyn, and appreciate the fact that your article here is short on personal opinion and long on documented history. Please continue keeping us informed.