Case 1:06-cv-01669-UNA Document 83-1 Filed 09/24/12 Page 1 of 15 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FADI AL-MAQALEH, et al., Petitioners, v. ROBERT GATES, et al., Respondents. Civil Action No. 06-1669 (JDB) AMIN AL-BAKRI, et al., Petitioners, v. BARACK H. OBAMA, et al., Respondents. Civil Action No. 08-1307 (JDB) REDHA AL-NAJAR, et al., Petitioners, v. ROBERT GATES, et al., Respondents. Civil Action No. 08-2143 (JDB) DECLARATION OF RAMZI KASSEM Pursuant to 28 U.S.C. ? 1746, I certify that the following is true and correct to the best of my knowledge: 1. My name is Ramzi Kassem. I am an attorney admitted to practice law in the State of New York. Case 1:06-cv-01669-UNA Document 83-1 Filed 09/24/12 Page 2 of 15 2. I am lead counsel to Petitioner Amin al-Bakri in the above-captioned matter and submit this declaration in further support of Petitioners' memorandum of law and supplemental materials in opposition to Respondents' Motion to Dismiss Amended Petitions for Writs of Habeas Corpus, and in keeping with this Court's Minute Order of August 28, 2012, instructing undersigned counsel to file any additional materials by no later than September 25, 2012. 3. Attached hereto as Exhibit 1 is a letter dated September 19, 2012, issued on official letterhead by the Office of the President of the Islamic Republic of Afghanistan. The letter bears the seal of the President of the Islamic Republic of Afghanistan, Hamid Karzai, and is signed by Abdul Karim Khurram, Chief of Staff to the President. The letter confirms the Afghan government's position regarding this Court's possible exercise of jurisdiction over the above-captioned cases. Accordingly, it directly informs this Court's assessment of any "practical obstacles" related to the Bagram prison's location within the sovereign territory of Afghanistan. The original letter is on file with counsel. 4. Attached hereto as Exhibit 2 is the Declaration of Colonel Lawrence B. Wilkerson (Ret.), dated September 22, 2012. This Declaration supplements Petitioners' evidence of Respondents' use of Bagram for the purpose of evading judicial scrutiny of Petitioners' imprisonment. The original Declaration is on file with counsel. 5. Attached hereto as Exhibit 3 is the Declaration of Glenn Carle, dated September 24, 2012. This Declaration supplements Petitioners' evidence of Respondents' use of Bagram for the purpose of evading judicial scrutiny of Petitioners' imprisonment. The original Declaration is on file with counsel. 2 Case 1:06-cv-01669-UNA Document 83-1 Filed 09/24/12 Page 3 of 15 I declare under penalty of perjury that the foregoing is true and correct. New York, NY Executed on this 24th day of September, 2012 ____/s/_________________ RAMZI KASSEM 3 Case 1:06-cv-01669-UNA Document 83-1 Filed 09/24/12 Page 4 of 15 EXHIBIT 1 Letter from the Office of the President of the Islamic Republic of Afghanistan (dated September 19, 2012) Case ly I Page Ap, R-., '5f` II 5 jh ihgm AIBmy1-*'5Case 1:06-cv-01669-UNA Document 83-1 Filed 09/24/12 Page 6 of 15 EXHIBIT 2 Declaration of Colonel Lawrence B. Wilkerson (Ret.) (dated September 22, 2012) Case Document 83-1 Fnled 09/24/12 a 7.0f 15 I . ISO l?I' Z. o?ln? i.-if"; I . alVIHInkaf.- 3 II I--.. . IJ..--41 .Iing..I.-MYTIB II-2.3.3 .. I . N. QTFYI-F il- I . nm.- asc NA D0cu 83rzII- -..1-il#1Ir- --, IV-MAI airV:$c Tv 1 ..-- I-fljtif Iss- -- -I sir, -- I II-.) VFRAs`; Agiv?. . v_ I -?zI I IT, V, VV I Mi.- I. IH.-: Ixliith..us'ioi At. hy_Tuhi:} iu-, I V- A VV I.-- 4fIjJV7: ark`VlIV.- LMP ll I 1- 'Vje,-I-,j I - 4 - I .VQL'.wape..o-.p :1 -V-nf, .y sit" LV I 3, TJQII - . 358 Documc 5 r- I -1 Flled - ffl{VxIVI,f'gX?mwi-L '1'r7?Ig? I I V.(fr`htr" 'wtnil 1yjrJilaw..l?zfv zi;-vv in . 1 .r 4 157j?`I' I li I j--WA. initwilIVFY Ani- 1 nv, IV I ?-ZITIQ ?.Vgi lla In TR-..3. V-Adi oo . . QF - 1 Case 1.06-cv-01669-U NA Document 83-1 09/24/112 .V41jg.; ?o?o I I 2.1. rl li;. 11ip*212Ll`. A4 UV rl II as If?] .2 .1.. iriq. ;Lfi_.3vCase 1:06-cv-01669-UNA Document 83-1 Filed 09/24/12 Page 11 of 15 EXHIBIT 3 Declaration of Glenn Carle (dated September 24, 2012) A case 1:06-cv-01669-u NA Document 83-1 Fnled 09/24/12 page . . 4 - IQ . 1* o? Zn. nbias nl QI kg - y.hP-1-A-. lrFi: Vix IgIta'imi- tl -: nl lt i` -1.- I 0 #*j-$a--MPILAR - lei - .. - -1, xr..3 >>o:?S4 i Case 1:06-cv-01669-U NA Document 83-1 Filed Page 13 of 15 I Deputy National Intelligence Officer for Transnational Threats, on the National I Intelligence Council, where my office was responsible for strategic analysis bf terrorism, international organized crime, and narcotics issues. I served in this capacity from November 2003 to March 2007. 3. I have a Bachelor of Arts degree in Government from Harvard University and a Master of Arts degree in European Studies and International Economics from the Johns Hopkins School of Advanced International Studies. I have done additional graduate work in International Relations at the Institut d'Etudes Politiques de Paris (France) and have also studied at the Universit? de Grenoble (France). I am fluent in both French and Spanish. 4. I have been informed that the three named Petitioners in the above-captioned matter ("the Petitioners") are third-country nationals who are being held at the U.S. prison facilities at Bagram Airbase, Afghanistan ("Bagram"). 5. I am informed that each of the Petitioners was initially detained outside of Afghanistan, and rendered to Afghanistan for indefinite detention at Bagram in U.S. military custody. I am further informed that prior to arriving at Bagram, the Petitioners were held in one or more CIA "black sites," and that Petitioner Fadi al-Maqaleh was detained at Abu Ghraib prison in Iraq. 6. The information in this declaration is based upon: (1) my personal observations and experiences during my tenure with the CIA from 1985 through 2007, and (2) my understanding of the facts and circumstances alleged by the Petitioners in the above- captioned matters. 7. Although I had the highest level of access to classified information at the CIA during the years 1985-2007, up to and including Top Secret and Sensitive Compartmented Information the observations I make in this declaration are limited to unclassified information. 8. In the fall of 2002 I was involved in, and for a time served as the lead CIA officer responsible for, the interrogation of a specific "high-value" detainee in U.S. custody whom the United States subjected to renditions and imprisomnent in secret prison facilities. After sustained interrogation of this individual over several months, it became clear to me that his detention by the U.S. govermnent was not justified, and that his treatment was unacceptable according to numerous legal and ethical guidelines that shape U.S. treatment of detainees of any sort. Tragically, the United States continued to detain this individual for years, despite the fact that the CIA's pre-detention assessment of him did not correspond to the facts established in initial interrogations. The altered assessment of these facts led to the conclusion that he was not the top-level member of al- Qa'ida the CIA had at first believed. 9. From late 2003 through mid-to-late 2005, when I was Deputy National Intelligence Officer for Transnational Threats, I routinely attended the daily briefing held by the U.S. Director of Central Intelligence, George Tenet, which took place each afternoon at 5:00 Eastern Standard Time and was chaired by Mr. Tenet himself or, if he was traveling or 2 Case 1:06-cv-01669-U NA Document 83-1 Filed Page 14 of 15 GK I otherwise absent, by a senior deputy. I also attended these meetings under Director Porter Goss, until he ceased them sometime in mid-to--late 2005. if l0. These afternoon briefings comprised the most senior operational and substantive meetings in the U.S. intelligence commtmity on the conduct of the "Global War on Terror" ll. Discussions concerned, among other topics, updates about the work of the CIA to anticipate and counter emerging threats in the GWOT. In addition, from time to time, discussions concerned detainees in CIA and U.S. military custody at facilities outside the United States. Well before these discussions it had become apparent to me--as early as 2002 and most likely earlier to other CIA personnel who were focused on these issues- that numbers of the prisoners who had been detained as part of the GWOT were not motivated "enemy combatants" or members of al-Qa'ida, and that sometimes they had been detained through erroneous assessments, confused field circumstances, or outright manipulation of U.S. authorities by local individuals and entities who sought to eliminate rivals or enemies of their own. I realized from my conversations with colleagues in the CIA and other Executive branch agencies that some of the detainees were likely to be victims of poorly--interpreted or faulty intelligence and/or battlefield--vetting that made it especially difficult to determine whether they were terrorists, Taliban, or simply innocent civilians. I note, however, that I have sympathy for officers and colleagues who had to act immediately, often in combat situations, on always-imperfect information, and that, initially, it is wiser to err by taking measures certain to remove a potentially lethal threat from the field than not to act due to lack of certainty. However, it is also clear that decisions concerning individuals and threats should be revised as necessary as information, perceptions, and circumstances evolve. l2. By the fall of 2002, when I first became involved in any way with the issue of how and where the United States would hold detainees, I further understood that the choice of the United States to transfer detainees captured in third countries to Guantanamo and Bagram, along with the subsequent and continuing decision to keep those detainees there, was motivated in significant part by a desire to place detainees outside the jurisdiction of any legal particular United States courts. I3. Over my tenure at the CIA, as I observed how legal challenges to the detention of prisoners played out in the media and the courts, I came to understand that U.S. officials chose where to send and where to keep prisoners in the GWOT based in part on the expectation that attorneys the U.S. government would resist legal challenges to such detentions by arguing that federal court jurisdiction did not extend beyond the borders of the United States. 14. If the Petitioners were first taken to Bagram between 2003 and 2005, it is likely that the decision to transfer them from third countries to Bagram, along with the subsequent and ongoing decision to keep them there, were motivated in part by a desire to evade any judicial review of their detention, and also to avoid putting the detainees in a position where they could assert a right to counsel, in accordance with the Supreme Court's decision in Gideon v. Wainwright, or in a position where they would be afforded the 3 *-41 Case 1:06-cv-01669-U NA Document 83-1 Fnled 09/24/12 Page t.i 13:1 A I .-- - ?ii?)1i4 i-e 4v_Lew?"oa4YYgmTvhh{wit iv `4 . o\ - .-..TITT 7 - 1 [121.; -- -