Brother of notorious al Qaeda operative denied habeas petition

On Oct. 7, DC District Judge Reggie Walton’s decision denying Guantanamo detainee Toffiq Nasser Awad al Bihani’s petition for a writ of habeas corpus was released to the public. Al Bihani comes from a notorious family of al Qaeda operatives, with several of his brothers serving the terror network in a variety of roles. In January 2009, one of his brothers, who is also detained at Gitmo, lost his petition for a writ of habeas corpus as well. [See LWJ report, The Jihadi Brothers.]

There is no dispute that Toffiq utilized al Qaeda safe houses en route to Afghanistan, trained at al Qaeda’s notorious al Farouq camp over a period of several months in 2001, and stayed in other safe houses after leaving the training facility. Toffiq admitted as much to the court, but he tried to explain away these incriminating details. Judge Walton did not find Toffiq’s story credible.

Toffiq claimed that he was not dedicated to waging jihad, and that his drug problem is what led him to leave Saudi Arabia for the Taliban’s Afghanistan. Upon arriving in Afghanistan, Toffiq admittedly trained at al Farouq, but he claimed that he repeatedly feigned illness during the five months he was there in order to avoid the training regimen.

Judge Walton found that Toffiq’s “version of events” contained “numerous material inconsistencies that completely undermine his credibility.” Moreover, the judge determined, the “inherent incongruity” in Toffiq’s account “strongly suggests that he is providing ‘false exculpatory statements’ to conceal his association with al Qaeda.”

Judge Walton’s decision is the second in recent weeks to rely on the decision handed down by the DC Circuit Court in the matter of Mohammed Al Adahi v. Obama. [For a review of the other decision that relies on Al Adahi, see LWJ report, Judge finds that Kuwaiti Gitmo detainee was no charity worker.]

In the Al Adahi decision, a three-judge review panel issued a sharp rebuke to a district judge who had not given much weight to a Gitmo detainee’s “false exculpatory statements.” The circuit panel noted that such statements “are evidence-often strong evidence-of guilt.” Citing Al Adahi, Judge Walton found that Toffiq’s story was not credible and that Toffiq failed to demonstrate he had ever left al Qaeda’s ranks after admittedly joining them.

The Jihadi Brothers

In the spring of 2000, Toffiq’s older brother, Mansour al Bihani, encouraged him to fight the Russians in Chechnya. The court described Mansour as “an experienced fighter who fought against the Russians in Chechnya” and “had close relationships with senior Chechen fighters and other individuals who were engaged in training men to fight in Chechnya and in other countries.” Mansour arranged for Toffiq’s trip, giving Toffiq money and getting him a passport.

Mansour al Bihani was a notorious al Qaeda operative until he was killed in a US airstrike in Somalia in 2007. That same strike targeted Fazul Abdullah Mohammed, an al Qaeda leader who is wanted for his role in the 1998 embassy bombings in Kenya and Tanzania. [See LWJ report, U.S. Naval Task Force strikes at 1998 al Qaeda embassy bomber.]

According to an analysis published in the Jamestown Foundation’s Terrorism Monitor, Mansour and yet another al Bihani brother, Zakariya, were among the 23 prisoners who escaped from a Yemeni prison on Feb. 3, 2006. Also among the escapees were some of the terrorists responsible for attacking the USS Cole and the Limburg, a French oil tanker.

Mansour had a well-established al Qaeda pedigree prior to his demise. According to Jamestown, Mansour was a member of Ibn Khattab’s Arab brigade and fought against the Russians in Chechnya.

An Aug. 17, 2007 declassified memo prepared for Toffiq’s case at Gitmo describes Mansour as “a self-confessed al Qaeda member who was a member of the Osama bin Laden and Mujahedin facilitation network in Yemen.” Mansour “fought in jihad in Tajikistan and Bosnia for five years and trained operatives on the fabrication and use of explosives, including remotely detonated explosives and explosives belts, in Jalalabad, Afghanistan.”

The US intelligence officials who authored the declassified memo found that the training Mansour conducted was intended “to arrange for suicide operations against the United States Embassy and United States military bases in Yemen.”

All of this is relevant for understanding Toffiq’s background. Mansour not only arranged for Toffiq’s trip to Afghanistan, but also coordinated his lodgings and “jihad training logistics,” according to Judge Walton’s decision.

At one point, Toffiq claimed that he wanted to move on to Chechnya with his brother for more training. It is possible that Toffiq did intend to train and fight in Chechnya. Or, perhaps Toffiq was slated to return to Yemen, his ancestral home, to help carry out attacks as part of Mansour’s al Qaeda network.

Extensive training and anti-American threats

Although Toffiq tried to downplay the significance of his terrorist training in Afghanistan during the court proceedings, declassified memos prepared at Gitmo reveal that his training was extensive.

The al Farouq training camp was the crown jewel of al Qaeda’s pre-9/11 training infrastructure in Afghanistan, and Toffiq was trained on light arms there. He also received “training on the use of SA-7 and ZSU-23 anti-aircraft weapons in a bunker” near Kandahar, as well as “training on building improvised explosive devices, utilizing tank shells, mortars, and land mines.”

Toffiq argued that he failed to complete his training, but that same Aug. 17, 2007 memo notes that he “was identified as having gone to the front lines near Kabul, Afghanistan upon completion of his training.”

In 2002, Toffiq was detained along with 14 other al Qaeda operatives at a safe house in Iran. While it is not clear where he was headed next, he has apparently threatened to attack Americans if he is ever let free from Gitmo.

The 2007 memo notes that “he believes the United States is involved in a war against Islam, and that he will not cooperate with interrogators for at least 320 years.” Toffiq allegedly stated “that since he was already dead he might as well be sent to Iraq to fight against the Americans there.”

Toffiq also “stated that after being unjustly imprisoned all of this time by the Americans, once he is released he is going to go to Afghanistan, join the freedom fighters again, and kill Americans.”

Judge Walton ruled, however, that Toffiq’s detention is just. He will not, therefore, get the chance to “kill Americans” abroad.

Thomas Joscelyn is a Senior Fellow at the Foundation for Defense of Democracies and the Senior Editor for FDD's Long War Journal.

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