Member of top al Qaeda operative’s cell denied habeas petition

A former member of top al Qaeda operative Abu Zubaydah’s terrorist cell in Afghanistan and Pakistan was denied his petition for a writ of habeas corpus on Tuesday. An Algerian held at Guantanamo named Abdul Razak Ali (who also claims his name is Saeed Bakhouche) petitioned the court for release. But in a declassified written opinion, District Judge Leon denied Razak’s petition, finding that the Government “more than adequately established” that Razak was a “member of Abu Zubaydah’s force.”

Abu Zubaydah was initially detained on March 28, 2002 in an al Qaeda safe house in Faisalabad, Pakistan. Razak’s counsel did not deny that he was detained alongside Zubaydah, but claimed that he was not a member of Zubaydah’s terrorist cell and that Razak’s presence at Zubaydah’s safe house was not enough to justify Razak’s continued detention.

Judge Leon disagreed on both counts. Leon found the government introduced “credible accounts by fellow guesthouse dwellers who not only positively identified the petitioner by one of the various names he was using at the time — i.e., Abdul Razak – but who also credibly account for petitioner participating in one of Abu Zubaydah’s various training programs while he was staying in the guesthouse (i.e., taking a class in English).”

Razak denied that he traveled into Afghanistan with members of Zubaydah’s group to fight, but the evidence introduced by the government showed otherwise. Judge Leon noted that “one of his fellow detainees – who was also captured in the guesthouse – positively identified [Razak’s] photo by both of the names he was using at that time…and recalled [Razak] being in a particular location in Afghanistan prior to their arrival in Pakistan.”

A “contemporaneous diary” written by one of Zubaydah’s “close friends” also identified Razak “as a permanent member of Abu Zubaydah’s group” and “placed him in at least one of the same locations in which this eyewitness [Razak’s fellow detainee mentioned above] identified him.”

The government introduced other evidence demonstrating that Razak had indeed been inside Afghanistan. And Judge Leon noted that all of this evidence was consistent with Razak’s “own admission when he was first interrogated – that he had gone to Afghanistan to fight in the jihad against the U.S. and its Allied forces.”

In addition, Judge Leon ruled that, even absent all of the evidence tying Razak to Zubaydah’s group, his arrest in Zubaydah’s safe house was enough to justify his continued detention. The district court habeas proceedings have been uneven on this point, with some district judges even likening al Qaeda safe houses to “youth hostels.” Citing a previous detainee matter, however, Judge Leon ruled that Razak’s capture in Zubaydah’s safe house “alone is enough to warrant” his detention.

Judge Leon concluded that Zubaydah “would not tolerate an unknown and untrusted stranger to dwell in a modest, two-story guesthouse for two weeks with himself and ten or so of his senior leadership, while they are preparing for their next operation against U.S. and Allied forces.”

A top al Qaeda leader

Although it should be obvious that Abu Zubaydah was a top al Qaeda leader at the time of his capture in March 2002, Zubaydah’s al Qaeda role has been questioned in the press. On March 29, 2009, for instance, the Washington Post reported that Zubaydah “was not even an official member of” al Qaeda and downplayed his knowledge of al Qaeda’s operations. Similarly, on June 16, 2009, the Post reported — based in large part on Zubaydah’s own denials in a hearing at Guantanamo — that the CIA had “mistakenly” identified Zubaydah as a top al Qaeda leader.

While Zubaydah’s detention has been controversial because he was the first detainee subjected to the CIA’s so-called enhanced interrogation techniques, there is no real doubt about his role in Osama bin Laden’s terror empire.

Zubaydah was al Qaeda’s point man for the millennium bomb plots in Jordan and Los Angeles, according to court records and declassified intelligence reports. Zubaydah was also in charge of a foiled al Qaeda plot against the U.S. embassy in Paris, France, in 2001. The Khalden terrorist training camp, which Zubaydah ran, trained some of the September 11 hijackers. And Zubaydah had intimate knowledge of the 9/11 plot, including Khalid Sheikh Mohammed’s alias and role in masterminding the attack, when he was captured. Zubaydah was involved in al Qaeda’s post-9/11 plotting against the US Homeland too.

Zubaydah’s career as a senior al Qaeda leader is richly documented in dozens of sources. The DC District and Circuit courts have accepted Zubaydah’s al Qaeda role as a given.

Judge Leon writes [emphasis in original]: “At the outset it is worth noting that our Circuit Court has unequivocally recognized that Abu Zubaydah and his band of followers have well established ties to al Qaeda and the Taliban and thus constitute an ‘associate force’ under the [2001 Authorization for Use of Military Force enacted by Congress].”

Judge Leon also cited a previous ruling that concluded: “There appears to be no dispute that Abu Zubaydah was an al Qaeda operative and that Al Qaeda-related activities took place in his [Faisalabad] house.”

Zubaydah and his fighting group were planning future attacks on American forces in Afghanistan when they were detained at the Faisalabad safe house in March 2002. And Zubaydah’s cell counted Guantanamo detainee Abdul Razak as a “permanent member,” according to Judge Leon’s ruling.

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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