Page Date: 3/21/05
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There is very little doubt anymore that John Tiffany is an unconventional lawyer that is not afraid of the US government.  The filing of this case is unconventional and extraordinary to say the least.

This is a special type of action which is used to prevent unlawful liberty restraints by state or federal officials.  It is often filed in death penalty cases, captivity abuses, and occasionally in illegal arrests.

There is one inescapable problem for Khalilzad.  Jack, Caraballo, and Bennett  are US Citizens and therefore have certain guaranteed rights.  One of those rights is the right to send and receive mail, even in Pulacharke.  And that, it seems, is what brought this to a head. 
 

In fact, the US State Department admits this in their "Assistance to US Citizens Arrested Abroad" Circular.  In spite of what the US State Department considers "one of [its] most essential tasks" abroad, the DOS has repeatedly refused to follow its own rules in this case.  They did not ensure due process, then called a press conference and announced it was a fair trial.  They did not provide food to the men at NDS, even though they observed them starving and losing up to thirty pounds each in two months.  They refused to send mail to their families and friends, allowing them roughly 25 words every two weeks, often refusing even any written message.  They failed to stop ongoing torture, and US Consul Sandra Ingram even ordered doctors to rewrite and redact medical reports indicating the extent of Jack's injuries.

But, Jack and his men were willing to ignore this all as just part of business.  Khalilzad didn't find himself on the lawsuit radar screen until just after this past Christmas.  The men spent two months preparing beadwork presents for their families for Christmas.  Caraballo had a beaded vest and necklace made for his 3-year old daughter.  Bennett had necklaces and beaded coffee cups made for his family.  Jack had necklaces and cups made for his wife and a cup for his 85 year-old father (A WWII US Marine Combat Veteran of Iwo Jima).  All of the men had cups and necklaces made for supporters, friends, attorneys, and relatives.  The US Consul took the packages, with the confidential family letters and cards, and told the men they mailed them home.  Forty days after Christmas they returned the ragged boxes, searched, torn and tattered, and unsent.  Jack went berserk.  The FBI had taken custody of the Christmas packages, and then ordered a complete ban on all mail out of Pulacharke (it should be noted that the Afghan government has placed NO RESTRICTIONS on incoming or outgoing mail or packages, thanks to the Northern Alliance).

What Other Federal Civil Actions Might Be Filed Against Them: 

A Bivens Action for Constitutional Violations Relating to Unlawful Search & Seizure, Theft, Complicity in Torture, Conspiracy to Conceal Torture and Human Rights Abuses, and a case based on the Alien Tort Claims Act could be coming next. 

There may be other problems for Khalilzad and Russel Brown (US Consul), and those are criminal problems if this case gets heard.  Some of those problems include violation of the following statutes: 1) by seizing property and refusing to return personal property, they definitely violated 18 USC ß654 Officer or employee of United States converting property of another; 2) by concealing and continuing to cover-up the illegal acts alleged in the habeas corpus, they definitely violated 18 USC ß4 Misprision of Felony; 3) by paying Bakhtyari and the others, or even by offering them trips to the United States, or giving them cars to find Jack and his men guilty and violate Afghan law, they violated 18 USC ß 201 (b)(1-2) Bribery of public officials and witnesses, and they probably violated 18 USC ß201 (c)(1)(b).

By removing military documents and terrorist evidence the FBI may have violated 18 USC ß1924 Unauthorized removal and retention of classified documents or material and also 18 USC ß2071 Concealment, removal, or mutilation generally. These various felonies carry sentences ranging from one year to ten years. 

Additionally, because the right to be free from official conduct in contravention of the Fourth Amendment, and all other rights guaranteed by the Bill of Rights, are federally protected interests, Khalilzad is scheduled to see himself in federal court next month for not delivering that stack of mail in the top graphic and sending it in a the loop from Task Force Saber/7 to the FBI to the US Consul and back again.  The habeas corpus case on this page, reprinted full text, lays out the case, but is also a great look at what happened from the day of their arrest until now.

For more info on additional cases against Khalilzad and the others, visit Jack's Docket to get the inside scoop.

Zalmay Khalilzad, et al
The Case Against Them:

Readers Note: The below case was filed against Khalilzad on March 17, 2005.  The actual filed motion may vary slightly from this online digital version.   Case # 05 CV 2947 in the US Federal Court at 500 Pearl Street, NY, NY, was assigned to the Honorable Judge Alvin Hellerstein, US District Judge.  Hellerstein is the judge currently hearing the ACLU case against the CIA and FBI and also is hearing cases involving Rendering and Rendition.  This does not seem like a coincidence.  Interestingly enough, Hellerstein has established a reputation for following the constitution and law, and ruling against the FBI.

Background Info:  Habeas Corpus cases are usually well known in death penalty cases in which a death row inmate files for relief prior to execution.  Habeas Corpus literally means "produce the body" or corpse.  However, they are the principle mode of removing liberty restraints and and challenging illegal custody, violations of liberty rights (such as Khalilzad's refusal to send mail, and other rights guaranteed to US. Citizens by the Bill of Rights.

Case # 05 CV 2947
Filed March 17, 2005
_____________

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

J. K. Idema, Brent Bennett,
Edward Caraballo, and,
Zorro Rasuli Banderas,

                                      Petitioners,

Vs.

Condoleezza Rice, Secretary of State,
Zalmay Khalilzad, Ambassador, and,
Robert S. Mueller, Director of the FBI,

                                      Respondents.

PETITION FOR WRIT OF
HABEAS CORPUS  28 U.S.C. ß2241

      NOW COMES, Petitioner, J. K. Idema, through counsel, and Petitioners Edward Caraballo, Brent Bennett, and Zorro Wahid Rasuli Banderas, through their next friend, J. K. Idema, acting in their behalf, and move this Honorable Court, pursuant to 28 U.S.C. ß2241, for an ORDER: 1) barring the United States government from intercepting, delaying, obstructing, or refusing mail between the petitioners and their attorneys, family, and friends; 2) ordering the Federal Bureau of Investigation to return exculpatory evidence and personal property confiscated and seized illegally from Petitioners without jurisdiction, 3) ordering the Respondents to cease all communication, intended to obstruct justice, with the government of Afghanistan related to the Petitioners’ criminal case in Afghanistan, 4) ordering the Respondents, and/or their agents, from conducting continuing illegal searches and seizures, 5) ordering the Respondents to acknowledge protected status and abide by the Geneva Conventions and other protections to which Petitioners are entitled to, 6) removing all restrictions on liberty which Respondents have imposed upon Petitioners through their agents, through the use of rendition, 7) ordering Respondents to cease and desist their privacy violations and release of personal, private, and privileged information to the public and to the press.  In support thereof, Petitioners show unto this Court the following:

Table of Contents

• Statement of Facts of the Underlying Case
• Overview of the Applicable Laws & Treaties
• Petitioners
• Other Parties Related to the Petitioners 
• Respondents
• Other Parties Related to the Respondents
• Issues Under Consideration - Overview 
• Statement of the Case
• Facts of the Case
• Memorandum of Law in Support of Issues Under Consideration
• Geneva Convention Status 
• Next Friend Status
• Exhaustion of Administrative Remedies
• Conclusion

      I.       Whether a Petition filed pursuant to 28 United States Code ß2241 is the proper procedural vehicle for the relief Petitioners request.

     II.    Whether the Southern District of New York is the proper jurisdiction due to the Petitioners’ current incarceration in the Islamic State of Afghanistan.

     III.   Whether Respondents are engaging in the illegal rendering of Petitioners to violate their constitutional rights and for the explicit purpose of denying Petitioners due process protections.

     IV.   Whether, as a result of Respondents’ actions, Petitioners have been, and are being, denied vital liberty interests; such as the right to be free from illegal search and seizure. And, whether Respondents have intentionally, maliciously, and knowingly violated Petitioners’ constitutional rights by: withholding exculpatory evidence, illegal confiscation and/or destruction of exculpatory evidence, engaging in denial of due process, obstruction of justice, and abuse of process.

     V.    Whether Respondents are engaging in the denial of fundamental liberty interests by denying, restricting, searching, and seizing personal correspondence, and attorney/client privileged correspondence, rights and due process to Petitioners.

     VI.   Whether Respondents’ decisions, actions, and intentionally false statements to a foreign court were arbitrary and did not comport with the Petitioners’ due process and constitutional rights. 

     VII.  Whether Respondents’ acts in obstructing mail, confiscating and copying mail, refusing to send mail, and refusing to respond to letters and requests by Petitioners  denies Petitioners due process and other protections of the U.S. Constitution, including subjecting Petitioners to cruel and unusual punishment.

READERS NOTE: The balance of the ß2241 filing continues below.  This case is an extraordinary use of habeas corpus law, and it is really the first time the actual facts according to Jack Idema and TASK FORCE SABER 7 have ever appeared in print.

Statement of Facts of the Underlying Case

John Edwards Tiffany, Esquire, is very much involved in cases involving National Security interests.  A native New Yorker, he lost friends in on 9/11.  Because Tiffany practices law in New York and New Jersey he is sure to be involved in any cases there as evidenced by his filing of the case on the right side of this page on March 17, 2005 as lead counsel.  This digital copy may vary slightly from the actual version filed, but that version is available on the US Federal Court PACER system in PDF format.

It is unclear as to whether or not John Tiffany will be the only lawyer representing Jack and the men of Task Force Saber/7 on this particular case, and more lawyers can be expected to appear because of the complexity of the case.  Some of those might include:

Clifford Barnard, Esq. Barnard specializes in criminal law, and habeas corpus actions (ß2255 type actions).  Barnard also handles federal criminal cases, and is admitted in jurisdictions all over the United States, although he is based in Colorado.  He has previously represented Jack before  the US Appeals Court, and is now representing Jack in the United States Supreme Court in his 1991 case against the FBI.  Barnard's experience is strong in the areas of complex legal briefs, trial preparation, and prisoner cases.

Wesley Robinson, J.D. director of National Legal Professional Associates, the NLPA based in Ohio and Florida.  Robinson specializes in appeals, federal criminal court, and civil rights cases.  He is a longtime friend and supporter of Jack and is said to be an expert in habeas corpus cases, both federal and state.

Two other lawyers that might be involved are; John Doe, Esquire #1, a former US Military Staff Judge Advocate General from the southeastern US.  This US Army Colonel specializes in UCMJ, federal court cases, international law, and Geneva Convention cases.  As explained on the Lawyers, Guns, and Money page, his identity is being closely guarded at this time, but it is known that he has extensive experience military law.

The other is John Doe, Esquire #2, another former United States Military Staff Judge Advocate General.  This US Army general officer specializes in UCMJ, federal court cases, international law, Geneva Convention cases, and war crimes.  His identity is also being closely guarded at this time.  With combat Special Operations, and a military law background, along with his experience sitting on Courts Martial boards and War Crimes Tribunals he may also end up on this case .

Massoud's Forces defeated the Taliban
with the help of
US Army
Special Forces


























































































































































Pulacharke Prison Commander Zorodin
has protected
TF Saber 7 men
at all costs.






















































































The Taliban's Judge

 1.               On July 5, 2004, Petitioners were arrested in Kabul, Afghanistan at the request of, and under the direct supervision of, the United States Department of Justice, more specifically, the Federal Bureau of Investigation (hereafter the “FBI”).  Although the FBI worked through Afghan proxies (NDS) to effect the arrest, FBI agents were covertly present for and in direct control of the arrest and supervised all activities and acts during the arrest and the subsequent search and seizure.  The FBI covertly orchestrated the torture, and was overtly in charge during the searches and seizures explained herein.  NDS is the National Directorate of Security, and is explained more fully below.

2.               During the proceeding months, FBI agents, and United States Embassy officials and agents, engaged in wide range of constitutional violations, many of which have and are continuing at this time.  Some of these constitutional violations include: 1) torture, mortal threats, and “aggressive” interrogations, 2) failure to administer Miranda rights, 3) illegal search and seizure of U.S. property, 4) unlawful imprisonment through the use of a proxy (i.e.: rendering), 5) obstruction of justice, 6) withholding and destruction of exculpatory evidence, 7) suborning perjury, 8) interference with attorney/client privileged communications, 9) illegal search, seizure, and obstruction of United States mail, 10) making intentionally false statements to a foreign court, 11) cruel and unusual punishment through threats, coercion, and intimidation of family and friends in the United States, and false arrest of family members.

3.                      All of these acts were the sole dominion of agents and supervisors of the FBI acting under the direct control and authority of the Director of the FBI, and officials of the United States Department of State (hereafter the “State Department” or the “DOS”) acting under the dominion and control of Respondents Condoleezza Rice[1] and Ambassador Zalmay Khalilzad.

4.                      Petitioners are currently incarcerated in Pulacharke Prison in Afghanistan, but although they are in the physical custody of the Islamic State of Afghanistan, Petitioners are in fact in the actual custody and control of the Respondents, and it is the Respondents who have directly engaged in the liberty deprivations contained herein.[2]

Overview of the Applicable Laws and Treaties

5.                      This Petition is based upon Respondents’ violations of the 1st, 4th, 5th, 6th, 8th, & 14th Amendments to the United States Constitution as more fully set forth below.

6.                      This Petition is also based upon violations of Article 14 of the International Covenant on Civil and Political Rights, the United Nations Universal Declaration of Human Rights, and the Geneva Conventions of August 12, 1949 relative to both Combatants and Non-Combatants in time of war and accompanying Protocols Relative to the Geneva Conventions.  The United States of America and the government of Afghanistan are both signatories to those three aforementioned agreements and/or conventions.  These violations by Respondents also give rise to additional claims by Petitioners for liberty restraints prohibited by the United States Constitution.

7.                      This Petition also includes allegations of torture, physical abuse, physical threats, psychological and emotional abuse, and intended starvation, denial of due process, illegal search and seizure, and denial of the right to counsel as more fully outlined below, and which violated the United States Constitutions, the Geneva Convention on Human Rights, the U.N. Declaration of Human Rights, and the other agreements mentioned herein, to which the Respondents are bound.

8.                      This Petition is also for violations of the Afghan Criminal Code for Courts, the Afghan Penal Code, and the Status of Forces Agreement between the United States and Afghanistan.  It should be noted that although no formal Status of Forces Agreement (SOFA) exists by that name, and the U.S. has denied the existence of a SOFA to international monitoring organizations, such as the Red Cross, an agreement does exist relative to U.S. combatants in Afghanistan, which includes U.S. citizens operating with resistance forces such as Commander Ahmad Shah Massoud’s United Front Military Forces (more popularly known as the “Northern Alliance” or “N.A.”).[3]  It is this agreement, signed in September, October, and updated in November 2001, in Khoja-Bahaudeen, and the Panshir, to which this Petition refers to as the “Letter of Agreement” awarding status to military, para-military, and civilian forces operating against the Taliban and al-Qaida terrorists.  That agreement will not be explained in detail because it remains a classified document under U.S. law.  However, because the violations of Afghan law are being orchestrated and directed by the Respondents, a right to habeas corpus relief attaches because it is Respondents who are effectuating these violations.

9.                      Violations of the Afghan Criminal Code are also included because President Karzai assured the United States his government would abide by those laws in order to obtain financial support from the U.S. and international community (i.e.: Italy).  Based on those assurances by President Karzai, which the United States relied upon, Afghanistan obtained financial support and U.S. tax dollars for reconstruction, security, and equipment.  As one minor example of this– U.S. taxpayers provided the handcuffs and training which were used to torture Petitioners, at the direction of Respondents.

Petitioners

10.                  J. K. Idema (“Jack Idema”), a North Carolina resident, is a former member of the U.S. Army Special Forces and is a Green Beret.  He has operated for the U.S. government, and trained foreign counter-terrorist forces, in Nicaragua against the Sandinistas, in El Salvador with the Ramon Bellosa Immediate Reaction Battalion against the FMLN terrorists, in East Germany and Europe against the Bader Meinhoff Gang, in Thailand with the Thai Special Warfare Command, in Haiti protecting the U.S. Mission against dissidents, in the Middle East against Hezbollah, Hamas, and Abu Nidal terrorists, in Lithuania against the OMON terrorists, and numerous other operational areas.  His Special Operations and Special Forces background includes more than two dozen Special Forces, Special Operations, police, counter-terrorist, and classified courses and schools.  He is an expert in counter-terrorism, intelligence asset development, and hostage-rescue, with more than 25 years experience in those areas.  He is currently employed by the Counter-Terrorist Group U.S. (Counterr Group) as a CT Operator in a direct action capacity against international terrorism, specifically al-Qaida and related terrorist groups and operates with the UFMF at the rank of Commander.

11.                  Brent Bennett (“Bennett”), a California resident, is a former member of the U.S. Army 82nd Airborne Division.  Bennett is an Airborne Forward Observer who specializes in Forward Air Control (FAC), and is a Forward Infantry Surveillance Team (FIST) operator.  His Special Operations cross-training in the U.S. Army Airborne includes combat medic, unit armorer, and Ranger tactics.  He is employed by the Counter-Terrorist Group U.S. (Counterr Group) as a CT (counter-terrorism) operator in a direct action capacity against al-Qaida and related terrorist groups at the rank of Captain.

12.                  Edward Caraballo (“Caraballo”), a New York resident, is a four-time Emmy Award winning investigative journalist, with a background spanning twenty-five years in news reporting and documentary production having worked for CNN, CBS, NBC, ABC, HBO, BBC, CBC, UPN, and others.  Caraballo is currently the Chief Executive Officer of Caraballo Video, Inc. and was with co-Petitioners in Afghanistan as an embedded journalist, after providing a written request for assistance to the U.S. Department of Defense and after having received their assistance with his travel authorization.

13.                  Zorro Rasuli Banderas (“Rasuli”), an Afghan national, is an interpreter for the Afghan Ministry of Defence employed by the 7th Corps Commander, Lieutenant General Atta Mohammed.  Rasuli is an experienced CT operator who was attached to and trained by French Military Special Operations during the 2001-2002 conflict.  Rasuli was later assigned to the Counter-Terrorist Group as an interpreter, liaison, and aide to Jack Idema, by the 7th Corps Commander, on loan at the rank of First Lieutenant.  He also holds a classified position that can be related to the Court in camera.

Other Parties Related to the Petitioners

14.                  Ezmerai Amin, an Afghan national, is a commissioned officer in the Afghan Ministry of Defence, currently holding the rank of Major and commander of the Communications Battalion of the 1st Base of the Panshir.  During the 2001-2002 conflict he was officially assigned to the Counter-Terrorist Group as a close protection officer for Jack Idema.  He is currently operating with Counterr Group at the rank of Major.

15.                  John Does 1 through 12, are all either commissioned field grade senior officers in the Afghanistan Ministry of Defence or Northern Alliance Security Services or are Special Forces qualified US citizens.  All are longtime members of the Counter-Terrorist Group and were assigned to the Counterr Group Task Force operating in Afghanistan, starting in 2001, by the Afghan Ministry of Interior, Ministry of Defence, and Secret Service (Amniat).  Their names are being withheld for security reasons because they continue to operate in a covert counter-terrorist role.  John Does 1-12 are all engaged in activities against al-Qaida and their related terrorist organizations.

16.                  The Counter-Terrorist Group U.S., also known as Counterr Group, is an organization based in the United States which engages in counter-terrorism activities in support of U.S. government initiatives.  Counterr Group conducts; training, organization, direct action, HUMINT,⁴ and advisory services to foreign and domestic government agencies.  Counterr Group has been in operation, in various forms, and in various countries, for approximately 27 years.  Counterr Group began deploying personnel to Afghanistan and other countries weeks after 9/11 as part of the effort to combat Osama bin Laden, al-Qaida, and other terrorist forces such as the Taliban.  Counterr Group’s foreign operating group and CONUS[4] personnel worked in conjunction with Commander Massoud’s Northern Alliance which were primarily responsible for the liberation of Afghanistan with U.S. Army Special Forces and Special Operations units.

Respondents

17.                  Condoleezza Rice is the United States Secretary of State and most senior official of the United States Department of State.  Her offices are in Washington, DC, and she exercises complete control over the actions of the DOS employees and officials outlined herein.

18.                  Zalmay Khalilzad is the United States Ambassador to Afghanistan.  Ambassador Khalilzad personally directed certain liberty restraints herein, such as the denial of mail between the Petitioners and their families, the denial of the right to attorney/client privileged communication, and the destruction of evidence and mail.  Furthermore, Khalilzad, through his agents, Sandra Ingram, and Russel Brown, concealed the torture of Petitioners, engaged in the denial of due process, and authorized the illegal searches and seizures of US mail and evidence from Petitioners.

19.                  Robert S. Mueller is the Director of the FBI, in Washington, DC.  Director Mueller has directly, and is directly, violating Petitioners’ constitutional rights through the intentional withholding of exculpatory evidence which Petitioners need to defend themselves in the Afghanistan Court of Appeals,[5] International Courts, and before a Geneva Convention Tribunal.  Further, Mueller is the person ultimately responsible for the rendering of Petitioners, and through that rendering, Petitioners’ cruel and unusual punishment, which includes; torture, aggressive interrogation, and seven assassination attempts on Petitioners by al-Qaida terrorists, as recently as February 18, 2005. 

Other Parties Related to the Respondents

20.                  The Islamic State of Afghanistan is a foreign sovereign nation which, upon the liberation of Afghanistan in 2001 and 2002, returned from exile and became the Interim Government of Afghanistan, it has, and is undergoing, transitional changes and is also known as the Transitional Government of Afghanistan; and now operates under the laws of the Republic of Afghanistan, originally adopted in 1976.  The Afghanistan government entities are hereafter collectively referred to as the “Afghan government.”

21.                  The Islamic Transitional Government of Afghanistan is the interim name of the current Afghan government.  Like the other names and former names, the Afghan government entities are hereafter collectively referred to as “the Afghan Government.”

22.                  The Afghanistan National Directorate of Security (hereafter “NDS”) is the Afghan Government’s security service, also known as “Amniat” (“Security” in the Dari language) and is also referred to as the National Security Directorate (NSD).  NDS is similar to a hybrid of the American CIA and FBI, although it was based on and formed by the KGB during the Soviet occupation of Afghanistan.  The NDS not only employs the KGB’s arcane tactics and brutal methods, but carries a version of the KGB logo signifying the oppression and total control of a plunging dagger.  The NDS is an official agency of the Afghan Government which works directly for the President of Afghanistan, although, in reality, it is now funded, advised, and overseen by the U.S. Department of Justice, the U.S. FBI, and in part, other agencies.

23.                  Hamid Karzai was the Interim President of Afghanistan, appointed by the Bonn Conference on December 5, 2001, and inaugurated on December 22, 2001.  On December 7, 2004, he became the formal president of Afghanistan.  Hamid Karzai (hereafter “Karzai” or “President Karzai”) is a citizen and resident of the United States,[6] in either Virginia or Maryland, and holds dual citizenship in Afghanistan.

24.                  Amrullah Saleh (hereafter “Amrullah”) is the chief of NDS, headquartered in Kabul.  He was appointed by Hamid Karzai to replace the former Northern Alliance Chief of NDS, Engineer Araf.  Amrullah is responsible for all NDS employees and the operation of the NDS prison and interrogation facilities.  Amrullah was formerly an interpreter for the U.S. government, and is believed to have been appointed at the direct request of the FBI, and is believed to be a U.S. citizen.

25.                  Abdul Baset Bakhtyari (hereafter “Bakhtyari”) is currently an official with the Afghan Government acting as a lower court judge in the National Directorate of Security in Kabul.  He is a citizen of Afghanistan and is a former Taliban official.  It is now known that Bakhtyari was a Taliban Judge during their terrorist reign and was well known for imposing a wide variety of barbaric sentences.  It is widely known that Bakhtyari solicits bribes from defendants in his court, and in fact, directly solicited bribes from Major Ezmerai, Lieutenant Rasuli, and two others involved in Respondents’ case.  Bakhtyari is currently an agent of the U.S. government acting under the direction of the FBI, and is believed to receive compensation from the United States government.

26.                  Mohammed Nahim Dawari (hereafter “Dawari”) is a citizen of Afghanistan, and is currently a prosecutor in the National Directorate of Security.  Dawari was also a former member of the Taliban.  Dawari is an agent of the U.S. government acting under the direction of the FBI.

27.                  Mohammad Sidiq (hereafter “Sidiq”) is a citizen of Afghanistan, and is currently a religious punishment judge in the Afghan Government.  Mawlawi[7] Mohammed Sidiq was a high-ranking member of the Taliban.  Sidiq is also a terrorist who has known ties to Gulbideen Hekmatyar (on the U.S. Wanted Terrorist List), meets with Hekmatyar frequently, and is in charge of recruiting members for the Hezb-i-Islami Party, a known terrorist organization with a bloody history.[8]  Prior to the Taliban takeover, Sidiq spent approximately ten years in an Afghan prison for subversive activities against the pre-Taliban government.  He was released by Mullah Omar (also on the U.S. most wanted terrorist list).  Both of Sidiq’s brothers, “Malikyar” and “Asarulhaq,” are also known terrorists working with Hekmatyar and Osama bin Laden.  These two brothers were high-ranking members of the Taliban and are currently members of the Taliban resistance.  Sidiq and his two brothers were all appointed to government positions in the new Afghan Government by President Karzai.

28.                  Mudafea is an investigator and interrogator for the NDS.  He is responsible for investigations and oversees torture and interrogation for Amrullah and Karzai.  Mudafea is an agent of the U.S. government who specifically acted under the direction of the FBI.

29.                  Ten Unnamed Agents of the Afghan Government and Respondents are unidentified by name.  Upon information and belief, at least four of these “Agents” are American citizens, possibly five, and are employed by the FBI.  The others are believed to be Afghan Nationals who either engaged in or aided the conduct outlined herein and conspired to conceal acts of terror against American and Afghan citizens.  These Ten Unnamed Agents personally engaged in the acts identified herein against Petitioners and carried out directives by the Respondents to violate the human rights and liberty interests of Petitioners.  They are referred to hereafter as either “NDS Agents” or “agents,” 1-10.

Issues Under Consideration

I.                   Whether a Petition filed pursuant to 28 United States Code ß 2241 is the
proper procedural vehicle for the relief Petitioners request.

II.                Whether the Southern District of New York is the proper jurisdiction due to
the Petitioners’ current incarceration in the Islamic State of Afghanistan.

III.             Whether Respondents are engaging in the illegal rendering of Petitioners to violate
their constitutional rights and for the explicit purpose of denying Petitioners due process protections and subjecting them to continued false imprisonment by Respondents’ proxies.

IV.            Whether, as a result of Respondents’ actions, Petitioners have been, and are being, denied vital liberty interests; such as the right to be free from illegal search and seizure.  And, whether Respondents have intentionally, maliciously, and knowingly violated Petitioners’ constitutional rights by: withholding exculpatory evidence, illegal confiscation and/or destruction of exculpatory evidence, engaging in denial of due process, obstruction of justice, and abuse of process.

V.               Whether Respondents are engaging in the denial of fundamental liberty interests by denying, restricting, searching, and seizing personal correspondence, and attorney/client privileged correspondence, with the intention of denying liberty rights and due process to Petitioners.

VI.            Whether Respondents’ decisions, actions, and intentionally false statements to a foreign court were arbitrary and did not comport with the Petitioners’ due process and constitutional rights.

VII.         Whether Respondents’ acts in obstructing mail, confiscating and copying mail, refusing to send mail, and refusing to respond to letters and requests by Petitioners is in fact an intended, arbitrary and capricious obstruction for the sole purpose of denying Petitioners due process and other protections of the U.S. Constitution, including subjecting Petitioners to cruel and unusual punishment.

Statement of the Case

As a matter of introduction, Petitioners respectfully submit that the events which transpired, and are ongoing, constitute of denial of the Petitioners’ Due Process rights, and 1st, 4th, 5th, 6th, 8th & 14th Amendments to the United States Constitution.  In short, understanding that a Habeas Corpus Petition is usually required to be pled against the warden of a prison, Petitioners submit that it is the Respondents, NOT the actual custodial supervisors that have imposed the liberty restraints alleged herein and denied constitutional protections to the Petitioners.  In fact, the prison warden, the chief of prisons, the Minister of Justice, and even the Afghan Appeals Court are not imposing any liberty restrictions upon Petitioners, and would release Petitioners immediately if it were not for the direct orders of the Respondents to retain Petitioners in custody. 

The courts have found that “[f]or purposes of petition for habeas corpus, the prisoner’s “custodian” is the individual making the decision to keep the petitioner in custody.” See: Procacci v. Sigler, D.C.D.C. 1973, 61 F.R.D. 5.  Another case which is similar to the situation in the instant case is Dunn v. U.S. Parole Com’n, C.A. 10 (Kan.) 1987, 818 F.2d 742, in which that court stated; for “purposes of challenge to parole decision, the Parole Commission could be considered, under the circumstances of the case, [as] prisoner’s “custodian.”  Thus, the district court had subject matter jurisdiction over prisoner’s habeas corpus petition challenging decision of the Commission, even though warden was not named in the petition; “the commission, rather than the warden, directly controlled whether petitioner remained in custody,” [emp. added], declining to follow Billiteri v. United States Bd. Of Parole, 541 F.2d 938 (2d Cir.).

In this case, like Dunn, supra, it is NOT the warden who is restricting liberties or release of Petitioners.  It is the Respondents.  Therefore, the named Respondents are the correct parties for this petition.  Three Respondents are named out of an abundance of caution, because the three Respondents are in effect, operating in concert and jointly making the decisions adverse to Petitioners’ liberty interests.

Facts of the Case

1.                 In 2004, the combatant Petitioners assisted in, participated in, or independently conducted military operations known as OPERATION RUBICON, OPERATION MONK, OPERATION ROADRUNNER, OPERATION ACME, and assisted U.S. and NATO Forces in OPERATION ENDURING FREEDOM.  Petitioners were part of TASK FORCE SABER and TASK FORCE 7 implemented by Counterr Group between September 12, 2001 and July 2004.  These two activities, hereafter referred to collectively as “Task Force Saber/7,” conducted military and humanitarian operations in support of the U.S. and Coalition War on Terror and ongoing efforts to continue the liberation of Afghanistan and permanently defeat the Taliban and al-Qaida terrorist forces waging a guerilla war and resurgence in Afghanistan.

2.                 Prior to 2004, TASK FORCE SABER personnel had participated in numerous other operations starting in October 2001.  These operations included combat advisor and combat medic operations in OPERATION ANACONDA in March 2002, and humanitarian assistance and rescue operations during the 2002 Nahrin earthquake disaster and other similar crises.  All of these activities were officially as part of, or attached to, the Northern Alliance Anti-Taliban Forces and the United Front.

3.                 During these operations Task Force Saber/7 personnel and several of the Petitioners were repeatedly commended for their actions by U.S. forces such as Task Force 180, high-ranking members of both the Northern Alliance and the Afghan government, including numerous cabinet level Ministers, National Security Council members, Vice-President Kareem Khalili, and even President Karzai himself.

4.                 During November and December 2003, Counterr Group developed intelligence identifying al-Qaida threats to U.S. citizens and American diplomats.  By February 2004 Counterr Group had identified two distinct terrorist cells.  Once again, Counterr Group delivered significant actionable intelligence on al-Qaida terrorists to the U.S. DOD, DIA, CIA, NSA, and FBI.  These exchanges and intel reports occurred on a regular basis between December 2003 and April 2004, prior to Task Force Saber/7 returning to Afghanistan.  This Human Intelligence (HUMINT) included; a) the location of Osama bin Laden, b) the location and satellite phone numbers of Ayman al-Zawahiri, c) information regarding al-Qaida operatives in both the United States and Afghanistan, including probable American targets, and d) classified information on al-Qaida and other associated terrorist groups.

5.                 In February and March 2004, the FBI, through their Washington, D.C. Headquarters and CT Watch Command (Counter-Terrorism Watch- a supposed clearing house for terrorist information), made concerted efforts to co-opt Counterr Group intelligence assets inside al-Qaida.  Co-opting an asset refers to one agency attempting to seize total control and operational direction over another organization’s human intelligence source.  Counterr Group resisted FBI efforts to co-opt their assets and refused to release their identities.  However, Counterr Group continued to pass actionable intelligence to the DOD, DIA, and NSA.  The FBI then sought to discredit Counterr Group’s assets and intelligence, and coerce Counterr Group officers and their families with a wide-range of threats.

6.                 Between April 2004 and July 2004, Petitioners interdicted and captured numerous terrorists in Afghanistan.  While some were turned over to U.S. military forces and Afghan Ministry of Defence forces, others were in custody and awaiting transfer to the U.S. military’s TASK FORCE 180 (JTF-180), the U.S. Defense Intelligence Agency, and other classified activities in Afghanistan.  Petitioners were working with and briefing the U.S. Department of Defense and the Afghan Ministry of Defense on a daily basis, sometimes an hourly basis.  Furthermore, Afghan government employees, such as Lieutenant Rasuli, were always operating with Task Force Saber/7 twenty-four hours a day, as were John Does 1-12.

7.                 Petitioners were also working on a regular basis with the International Security Assistance Force (ISAF), the Afghan Security Service (NDS), the National Police, the Corps Commanders of the Ministry of Defense (10 General Officers responsible for the corps commands throughout the country), commanders of the United Front Military Forces, various Ministries at the cabinet level, and even the Afghan Presidential Protective Detail was involved in the operation.  These relationships had been ongoing for almost three years, as had the exiled Afghan government’s relationship with Counterr Group prior to the liberation of Afghanistan. 

8.                 Counterr Group also continued their work with the Pentagon and DIA.  All of Counterr Group’s activities were done with the full knowledge and assistance of the Afghan MOD military forces, Afghan National Security Council, and coalition forces.

9.                 These captured terrorists were working with and/or for; Osama bin Laden, al-Qaida, Gulbideen Hekmatyar, Hezb-i-Islami, and the Taliban.  Specifically, these terrorists had participated in, supported, and/or personally conducted terrorist bomb attacks against foreign and domestic persons in Afghanistan.

10.             A prime target of these terrorists was U.S. military forces at Bagram Airbase north of Kabul in Afghanistan.  In fact, the American FBI later confirmed Task Force Saber/7’s intelligence reports that several of the terrorists were going to drive fuel trucks into Bagram and explode them into U.S. military barracks in a terrorist bomb attack similar to the bombing of the U.S. Marine Barracks in Beirut in 1983 in which 244 U.S. Marines were killed.  Using a rare incendiary explosive to detonate fuel tanks on the gas trucks entering Bagram daily, and taxis, the terrorists expected to kill more than 500 American soldiers, two ministers, and two ambassadors in at least five separate coordinated attacks.  These same terrorists had already made at least one attempt on the Defence Minister, and two failed attempts on the 3rd Corps commander, General Attiquallah Lodeen, a close friend and trusted ally of the United States and a candidate for Parliament.

11.             Furthermore, several of the captured terrorists were directly involved in the killing of Canadian Lance Corporal Jamie Murphy on January 27, 2004 in Kabul, the killing and wounding of election and aid workers in Nangahar and other provinces in Afghanistan, the attack of NATO ISAF forces in Kabul, and were currently planning and coordinating the assassinations of several of Karzai’s key political opponents in the Jamiat Party, including his Minister of Defense, Minister of Education, several Corps Commanders (former Northern Alliance Generals), and at least two Afghan Ambassadors (in Delhi and London) who supported the U.S. War on Terror.  The Minister of Education, Yunis Qanooni, was the lead opponent to Karzai in Afghanistan’s new election under the Bonn Agreement, and was a prime target of the terrorists, along with Marshall Fahim, the Minister of Defence, and General Rashid Dostum.

12.               All of the terrorists had been arrested by Task Force Saber/7 with either actual explosives, detonators, bomb parts, and/or bomb plans in their possession, as well as documents and correspondence proving their links and association with the Taliban, Hezb-i-Islami, and al-Qaida, including handwritten maps and diagrams of a past bomb attack on General Lodeen, a Shabnama[9] “night letter” calling for a jihad against Americans authored by none other than Mullah Omar himself, and in the case of a terrorist named Ghulamsaki a coded Red Cross letter from his brother (Mohammed Asef), an al-Qaida detainee in Cuba.  Additionally, one of the terrorist’s taxis tested positive for explosives by German ISAF bomb teams.  The physical evidence against the terrorists was irrefutable, conclusive, and backed-up by incriminating videotaped statements, undercover surveillance, informants, and extraordinary physical evidence.

13.             On July 5th, 2004, the individual Petitioners were arrested by forces under the control the FBI, and with the assistance of Karzai forces in opposition to the former Northern Alliance and the interim government’s Ministry of Defense.  This was, upon information and belief, orchestrated by Taliban and Hezb-i-Islami forces loyal to Mullah Omar and Gulbideen Hekmatyar, with the knowledge and approval of then Interim President Hamid Karzai.  Upon information and belief, the purpose of this was to prevent a high level Hezb-i-Islami terrorist (Sidiq) from being transferred to permanent U.S. military custody and exposing the depth and breadth of the high level plot.  In return, Karzai would receive full support and votes from Hekmatyar controlled areas such as the Konar Province (he later did).

14.             In spite of press reports to the contrary, Petitioners’ arrest was peaceful and without active employment of arms.  Each of the seven named Petitioners arrested were told they were not being arrested, and only that the “commander” (Idema) was being requested directly by President Karzai to meet “informally with the American FBI.”  Caraballo recorded the activities on tape. In fact, he specifically asked if anyone was being arrested and was told, “don’t even talk that way, of course not.  The FBI just wants to have a meeting with you” (Un-named Agent 1).  The Task Force Saber/7 combatants were told to leave their assault weapons by their commander, Idema, taking only pistols. 

15.             Upon arriving at NDS for “the meeting,” the combatant Petitioners were surrounded and forced to surrender,[10] then handcuffed in the courtyard, as were the non-combatants, and the journalist, Ed Caraballo.  Five other Task Force Saber/7 combatants, all commissioned officers in the Ministry of Defence, had avoided detainment, as did seven other personnel not present that day (John Does 1-12).

16.             Shortly after the arrest of Petitioners (“Petitioners” refers herein collectively to the individual Petitioners) they were subjected to varying degrees of torture and interrogation, apparently determined by rank.  Jack Idema was repeatedly beaten by, and in the presence of Amrullah at NDS Headquarters, as was Lieutenant Rasuli.  Upon information and belief, a palace official was personally aware of and authorizing, at a minimum, Idema’s initial torture at NDS Headquarters by Amrullah, with FBI agents in close proximity and directing the interrogation (Un-named Agents 2 & 3). 

17.             During the following days and nights Idema was tortured with boiling water, starvation, threats of death, and assault with various implements (such as wire cables and rubber whips), resulting in broken ribs, a separated sternum, torn rotator cuffs, hemorrhaged eyes, multiple concussions, lacerations, contusions, and bruises.  Although the U.S. Embassy later had medical reports indicating the extent of the torture, Sandra Ingram, Assistant U.S. Consul DOS Kabul, ordered the reports rewritten to tone down the extent of the injuries.  During the torture Idema was restrained by Taliban iron leg bars and American Handcuff Company restraints (Serial Number # 177709) supplied, upon information and belief, by the U.S. Department of Justice.  Further, it is alleged that FBI personnel were well aware of the ongoing torture and did nothing to intercede or stop it, and actually encouraged it.

18.             Major Ezmerai was beaten, threatened with death, and repeatedly electrocuted during interrogation.  Lieutenant Rasuli was repeatedly beaten until bleeding and semi-conscious.  Sahibi, a young non-combatant, was initially beaten just after the arrest until Idema interceded.  Another non-combatant, Ahmadi, was threatened with death, as were Bennett and Caraballo who were not originally tortured during the initial interrogation phase because NDS thought they were both journalists.

19.             Karzai, Amrullah, Dawari, Mudafea, the Ten Unnamed Agents, and others, both known and unknown, either knew about, authorized, and/or personally (such as Amrullah and Mudafea) conducted interrogations and violent torture on a repeated basis.  Based on conversations with FBI Agents (Un-named Agents 4 & 5), Respondent Robert Mueller was personally informed of this ongoing torture by the two un-named FBI agents.  Petitioners’ screams during the torture sessions could be heard throughout NDS Headquarters and into the streets of Kabul night after night.  Although two of the Respondents, Mueller and Khalilzad were aware of the ongoing torture, neither of these Respondents acted in any way to stop the torture of Petitioners during this time.  More than a month later the beatings of Idema stopped because it was feared the marks would be shown in Court, and to the press.

20.             Subsequent torture after the “interrogation phase” included beatings, 24 hour a day restraints, falaca,^[11] whipping, threats of execution, attempted rape, beatings with sticks^[12] even while Petitioners were using bathrooms or naked taking baths (time between baths could be anywhere between 20 and 30 days– Bennett was only allowed one bath a month, while Muslim al-Qaida and Taliban prisoners were allowed baths two or three times per week), threats with knives to cut off eyes, noses, and lips for refusal to pray and accept the Muslim religion (“convert” for the American Petitioners), and even the use of scorpions on strings as a form of torture.  This particular “torture art form” was referred to as “DaancÈ hamrai Gazhdoom” – Dance with the Scorpion.

21.             In most instances threats and torture were used to extract confessions or false information, or statements against co-defendants, was occasionally for enjoyment, and often later in the case of Idema, Bennett, and Caraballo, to coerce them into praying to Allah.  Much of this torture was conducted by “former” Taliban officials and/or “former” Taliban members employed by NDS and at the direct orders of Amrullah, Dawari, Mudafea, and/or other deputies and officials under President Karzai, including the Ten Unnamed Agents, and with the knowledge of Respondent Mueller.

22.             The general conditions at the NDS facility were exceptionally brutal.  Amrullah’s personal house of horrors, funded by U.S. tax dollars was at the beck and call of President Karzai and the FBI exclusively.  U.S. military and CIA forces were rarely, if ever, allowed entry, and then only on a highly restricted basis and to an extremely limited area– one room for meetings.  This was the FBI’s exclusive club and private Abu Ghraib.  Director Mueller, and his agents, used, and still use, the NDS Saderat facility to engage in the rendering of terror suspects and American citizens in order to employ illegal aggressive interrogation techniques—such as electrocution, stick beatings, boiling water, and illegal drug use.

23.             At the direction of Amrullah, and other Respondents, torture at NDS still continues on a daily basis.  Some prisoners are placed in special solitary cells to recover from signs of torture.  Some are brought milk and olive oil daily by the prosecutors to speed their recovery and heal bruises when outside or family inquiries are made as to their whereabouts.  One example of this is Haji Daoud Zalmia from Maidanshar, one of Petitioners’ cellmates who barely survived Amrullah’s bloody torture sessions.  Other prisoners, with gruesome cigarette burn scars or electrical burns are threatened with execution if they show their injuries to the Red Cross.  Major Ezmerai was threatened with death and the arrest of his family if he showed his electrical burns during Petitioners’ court appearances because there were dozens of reporters and cameramen present.  Others are threatened with execution if they show their injuries (cigarette burns, bruises, lacerations, electrical burns, etc.) to Red Cross visitors.  Recently, after the Red Cross was finally allowed monthly visits severely tortured prisoners would be transferred back to the secret NDS basement torture chamber in another building just prior to a Red Cross visit.[13]  Prisoners who die as the result of torture are secretly removed at night under cover of darkness by placing their bodies in the back of Amrullah’s Land Cruisers and taking them to an undisclosed location “for disposal.”

24.             Petitioners were eventually charged with various crimes under Afghan law, to include secretly entering the country illegally and with false Indian passports (Idema, Bennett, and Caraballo), running a private and/or illegal jail, and torture.  It should be noted that; a) the three Americans held valid U.S. passports, entered the country legally, have never had Indian passports, and were issued visas at the written request of the Department of Defense; b) they maintained a “safe house” for transfer of captured terrorists with full knowledge of Afghan and U.S. government officials; and, c) ironically, they were falsely accused of using the very same torture tactics that NDS had in fact used on Petitioners and continues to use on most persons in NDS custody.  In other words, NDS, acting on behalf of the FBI, used their own experience with torture and coercion tactics to draft their false accusations against Petitioners.

25.             During the first 12 weeks of NDS torture and custody, Petitioners were separated from all contact with other Petitioners, fed just enough rice and bread to survive, and interrogated and on a regular basis.  They were kept in 7’x 9’ cells where they lived with an average of six or more al-Qaida and/or Taliban terrorists in their cells.  They were forced to sit or lay on a concrete floor under 24 hour lights to ensure sleep deprivation as a form of punishment and torture, not interrogation.  The non-Muslim Petitioners were not allowed to have mattresses or visits.  In the case of Lieutenant Rasuli, because he was Idema’s interpreter, he was kept in leg chains and leg bars 24 hours a day, 7 days a week.

26.             U.S. Embassy Consular Officer Sandra Ingram[14] was keenly aware of this treatment, and had personal knowledge of the ongoing torture having eye witnessed Idema’s hemorrhaged eyes, facial lacerations, burns, and bruises.  However, in spite of that evidence, and Ingram’s observation that Petitioners were losing considerable weight weekly and exhibiting increasingly evident physical deterioration and injuries, Ingram took the public position that the Petitioners were “doing fine,” were “well-treated,” and were in “good shape,” even announcing this to their families and the press.

27.             Furthermore, although Caraballo notified Ingram that he was being threatened daily, including being “set on fire” in his sleep, Ingram did nothing.  Ingram refused to provide food to Petitioners in spite of a State Department circular[15] stating the US Consul would provide food and water to supplements.  Additionally, Caraballo implored Ingram to request NDS remove him from an al-Qaida cell to one with another American, and begged Ingram for medical attention for his injured feet.  Ingram waited for more than a week before sending a doctor, later forcing his family to pay for the visits.  Further, Ingram refused to provide even aspirin, forcing all Petitioners to hire a doctor to prescribe aspirin, even though their money had been confiscated by the NDS.

28.             Idema, as commander of the group, and in accordance with the Geneva Conventions of 1949, asserted Prisoner of War status for all seven individuals to Ingram on or about July 11, 2004.  Ingram not only refused to acknowledge Idema’s assertion, she refused to pass Petitioner’s request on to the appropriate authorities, and refused to provide Petitioners with a copy of the Geneva Conventions as required by law.  Idema also asserted Petitioners’ POW status and right to protection to NDS, the FBI, and various Karzai officials.  During a subsequent visit by Ingram, Idema put his request in writing and demanded she make an entry in her Embassy notebook (Ingram refused to sign a receipt for Idema’s POW protected status request).  Further, Ingram refused to forward this request to the Red Cross,[16] stating her DOS bosses “ordered” her not to.

29.             On or about this time, NDS, acting with agents of the FBI [Unnamed Agents 2 & 3], and possibly Ingram herself, removed Bennett’s and Idema’s dog tags, removed the Petitioners’ Geneva Convention Identity Cards, and removed Idema and Bennett’s U.S. passports.  The FBI also removed crucial exculpatory evidence from NDS headquarters; including approximately 50 rolls of 35mm film, 200 videotapes, and 500 documents, many of which were official documents which were evidence of actual innocence.  Although the FBI later returned some videotapes in August 2004, it was during the trial and much too late for the defense to adequately examine and use.  Furthermore, much of the evidence originally in NDS custody, and then taken by the FBI, was never returned and was missing.  Specifically, any documents or evidence linking the Petitioners to the U.S. government and Afghan government were destroyed, or, in the case of videos, erased.  As one example, a taped conversation between a high-ranking Pentagon civilian[17] official, Heather Anderson, was completely erased from the tapes.  Another example is the actual arrest tape, which showed covert FBI agents and contained the entire exchange between Un-named Agent 1, stating the FBI simply wanted a meeting, and that the Afghan government was NOT involved and had NO problems with the group.

30.             As of the final trial and conviction date of September 15, 2004, no understandable, or English version of the criminal charges against the American Petitioners, or any translated indictment, was ever given to Petitioners as required by Afghan and International Law, and as required under the Geneva Conventions.  Still, numerous hearings (closed-door sessions were held when bruises or abrasions were noticeable on a Petitioner’s face) and trials were held with no regard for international law.  All of the hearings and “trials” extensively violated the International Covenant on Civil and Political Rights (Article 14); the Geneva Conventions (Articles 71, 72, et seq.), the Afghan Interim Government Criminal Code (Violations of Articles 4(1), 5(4), 5(5), 5(6), 5(7), 15, 16, 18, 19, 20, 23(3), 31(1), 32(3), 38, 39(6), 43, 49, 50, 51, 52, 53, 55, and 58), and the Geneva Convention on Human Rights, all of which were legally adopted by the government of Afghanistan and to which Hamid Karzai and the Respondents were legally bound.  Furthermore, the arrest and prosecution of Petitioners violated the 2001 “Letter of Agreement.”

31.             The parties were bound by these prior agreements and although Respondents deny Petitioners’ right to POW status, the incarcerated Petitioners are POWs under the 1949 Geneva Conventions considering the facts of the case; A) Idema, Bennett, Rasuli, and Ezmerai[18] are Combatant Prisoners of War under the following circumstances and criteria; 1) each were employed by the Counter-Terrorist Group, 2) each carried their arms openly, 3) each was responsible and subordinate to a commander, 4) the team operated in Afghanistan between October 2001 and July 2004, and was part of the liberation forces during the start of hostilities, 5) each man wore a distinctive uniform and recognizable insignia, 6) each man operated according to the laws and customs of war and abided by the Geneva Conventions, 7) each man carried a Geneva Convention Identity Card with name, rank, duty position, identity number, and organization name.  B) Caraballo is a Non-Combatant Prisoner of War (War Correspondent) under the following circumstances and criteria; 1) Caraballo was formally attached to the unit, 2) Caraballo never carried arms or participated in military operations other than as an observer, 3) Caraballo carried a Geneva Convention Identity Card identifying him as an embedded journalist, 4) Caraballo carried U.S. Press Credentials, 5) Caraballo is a well known journalist having worked for CBS, NBC, ABC, CNN, HBO, BBC, UPN, and other network news programs, 6) Caraballo’s journalist standing is indisputable as Caraballo has been awarded FOUR Emmy Awards for his news reporting.  C) Sahibi and Ahmadi[19] were Non-Combatant Prisoners of War under the following circumstances and criteria; 1) they were non-combatants employed by the Counter-Terrorist Group, 2) they never wore a uniform or carried any weapon, 3) they never participated in or engaged in, or were present for, any military or counter-terrorist or other type of operation, 4) they were engaged solely as administrative/house staff at one of Counterr Group’s compounds in Afghanistan, 5) they were subordinate to the Task Force commander, 6) they carried Geneva Convention Non-Combatant Identity cards.

32.             Nor were Petitioners “mercenaries” or “vigilantes” by legal definition, Geneva Convention definition, or under any other definition, in that, in spite of the U.S. government and Afghan government disavowing them, they; a) were not, and have never been, paid by a foreign power or nation, b) never swore loyalty to any foreign power, c) were serving commissioned officers in the United Front Military Forces (the combatants) and/or Afghan Ministry of Defence (Afghan combatants including the John Doe Afghan combatants), and, d) Taliban Judge Abdul Baset Bakhtyari announced during the verdict in their criminal trial that Petitioners were part of and working for the “Resistance Forces.”  Respondents and Hamid Karzai have apparently now categorized Commander Massoud’s United Front Military Forces as illegal and/or unrecognized and in opposition to the Karzai government and the United States government in spite of the fact that the Northern Alliance was the primary ally of the United States during the 2001-2004 war.  These factors absolutely guarantee Geneva Convention POW STATUS.  Further, Respondents have also ignored the fact that Massoud’s Northern Alliance was part of the 2001 Bonn Conference, and were made part of the Interim government, which did not change until December 2004.

33.             Respondents refuse to acknowledge Petitioners’ POW status and the agreements and treaties entered into.  Further, the U.S. State Department attempted to avoid the situation by refusing to provide the American Petitioners with copies of the Combatant Geneva Convention, failing to file official protests to the torture outlined herein, withholding medical reports on the effects of the torture, and conspiring to conceal evidence of Petitioners’ torture, including directing a doctor to “modify” medical reports by rewriting them and watering down the extent of the injuries.  Additionally, the U.S. State Department directed Ingram, and upon information and belief, others, including FBI agents (Un-named Agents 6-7), to secretly meet with Bakhtyari for the purpose of orchestrating several of the events outlined in this Petition.  As one specific example, Ingram met with Bakhtyari on August 12, 2004 and, on behalf of her boss Ambassador Khalilzad, requested Bakhtyari find Petitioners guilty in their criminal trial and “impose the harshest sentence possible.”[20] 

34.             Upon information and belief, Ingram, and/or Richard Christensen[21] also requested Bakhtyari limit the introduction of evidence which Khalilzad perceived harmful to U.S. interests and policy and “bury [Petitioners] as deep as possible for as long as possible,” to avoid harm to U.S./Afghan relations (specifically, relations with the Pashtun population, which Karzai needed to win the election).  Upon information and belief, the Department of State and Department of Justice wanted to avoid the disclosure of information and evidence of al-Qaida plans for specific attacks in the U.S. and Afghan terrorist plans to kill U.S. allies and U.S. soldiers prior to the October 2004 election.  And, equally important was the State Departments’ wish to prevent the disclosures that a high-ranking member of the Karzai government was not only a terrorist who had spent ten years in prison for terror-related crimes (Sidiq), but was a chief deputy for Gulbideen Hekmatyar (on the U.S. Most Wanted Terrorist List), and was supervising terror attacks against U.S. citizens and Coalition Forces. 

35.             This intelligence and information had been developed by the Counter-Terrorist Group and was evidence of instability and threats the U.S. Department of Justice, Department of State, Karzai, and specifically the Respondents did not want disclosed prior to the Afghan and American elections.

36.             Violations of the various Geneva Conventions governing the Petitioners include, but are not limited to; a) denial of a fair trial (violations of Articles #3, 71, and 72), b) torture (violations of Articles #27, 32, 147), c) theft of personal property and looting (violations of Articles #53 and 97), d) confiscation of all identity documents issued by the U.S. government and removal of Geneva Convention Identity Cards (violations of Articles #53 and 97), e) inhumane living conditions (during NDS custody: violations of Articles #55, 76, 98, 116, 124, 125, 127), and f) various other acts such as violations of Articles #72, 106, 107, 110, 118, 144, and others.

37.             The most egregious trial violations of the Interim Criminal Code for Courts, and the other treaties and agreements included; a) refusing to appoint interpreters for Idema, Bennett, and Caraballo, b) refusing to appoint counsel for Bennett and competent counsel for the Afghan nationals/Petitioners, c) refusing to swear government witnesses under oath (only one witness testified under oath– Idema, who refused to testify unless sworn in), d) refusing to allow cross-examination of government witnesses, e) withholding and destroying exculpatory evidence (by Respondents), f) announcing a verdict before the trial even began, g) obtaining statements by torture and threats of execution, h) refusing to allow defense witnesses to be called or compelled to appear, and, i) refusing to allow the defense to read their defense statement (Caraballo’s counsel was threatened with arrest by Bakhtyari if he attempted to read past the first paragraph of the defense statement).  What is critically important here is that the deprivations of rights were brought about by the direct actions of Respondents.  It was at Respondents’ directive that these due process violations occurred.

38.             Upon information and belief, in exchange for their false and fabricated statements against Petitioners, the terrorists were released at the direct orders of Respondents, and evidence of their terrorist acts and terrorist group links, was either returned to them or destroyed by Amrullah or his agents acting on the orders of Karzai and others, both known and unknown, to conceal the terrorists’ acts, plans, and links.  These acts by Respondents had the collateral effect of knowingly supporting terrorism.

39.             On or about August 18, 2004, Sandra Ingram finally delivered a copy of a Geneva Convention to Petitioners, unfortunately it was the treaty relating to civilians and shipwrecked persons.  When Petitioners repeated to Ingram that they needed the Combatant Conventions and were again asserting their protected status, Ingram stated she had not been authorized to give Petitioners a copy of the proper convention (a violation of the Geneva Conventions in itself).  Ingram then told Petitioners that the U.S. Department of Justice had made a determination that Petitioners were not entitled to protection, or a fair trial, or even food supplements, and she was “ordered” not to give Petitioners a copy of the Combatant Geneva Conventions.  By this time several Petitioners had already lost considerable weight due to lack of food (Petitioners were required to buy their food at the NDS Prison and NDS had confiscated their money), and were deteriorating both physically and emotionally, especially in case of Caraballo, who had his medicine confiscated and destroyed.  She also refused to provide Idema with, or return, life-critical drugs issued to him by the United States government, because they were in U.S. government packaging.

40.             In August 2004 a car bomb killed American and foreign DYNCORP employees in Kabul.  The terrorist attack was the same modis operandi of the terrorists captured by Petitioners and released at the request of Respondents and/or the Afghan officials named previously.  One terrorist, Ghulamsaki, has a brother (Mohammad Asef, an al-Qaida operative) in detention at the Guantanamo Bay terrorist confinement facility (GITMO).  Ghulamsaki also has a brother-in-law who is Osama bin Laden’s Chief of Security (known as “Daoud”).  Ghulamsaki had been unsuccessfully sought by the FBI for months.  Petitioners captured Ghulamsaki, and the FBI later interrogated him with Idema acting as the primary interrogator.  Ghulamsaki described his group’s terrorist plans to attack Bagram Airbase and kill U.S. soldiers with explosive laden fuel trucks.  The FBI Field Agents determined and concluded that Ghulamsaki was in fact a terrorist working with others terrorists captured by Petitioners, to murder U.S. citizens.  After Respondents arranged the release of Ghulamsaki the DYNCORP bombing occurred.  Intelligence assets for Counterr Group learned shortly thereafter that Ghulamsaki and his brother-in-law had conducted the DYNCORP bombing in Kabul.  The FBI has since classified the FBI “302 Field Reports” relating to the interrogation and confession of Ghulamsaki taken by Idema and U.S. government agents.  This was the intentional withholding of exculpatory evidence which Petitioners required and had a right to.

41.             By September 15, 2004, the hearings were over and the trial was convened.[22]  The entire trial took less than three hours.  No evidence was, or has ever been, presented against Petitioners to this date.  No testimony,^[23] no physical evidence, no scientific evidence, no evidence of any kind, only statements by the “former” Taliban prosecutor, Dawari, who heavily relied on newspaper articles as his “physical” evidence.  Petitioners were not allowed to call witnesses, and one of the Petitioners’ attorneys was ordered to stop reading the defense statement after finishing the first paragraph of a 20+ page defense statement.  Caraballo’s attorney was threatened with arrest by Bakhtyari during a recess if he tried to continue his defense.  During attempts to provide testimony, play defense videotapes, and submit evidentiary documents, Petitioners’ attorneys were ordered to stop by Bakhtyari, Dawari, and as a result of directives by Fatah and unnamed agents of the Afghan government, and the FBI.[24]  Without allowing a closing statement, and without any counsel for Bennett^[25] and the foreign nationals on trial,^[26] the court then concluded the trial, left the room for approximately five minutes and returned to read a lengthy pre-written verdict finding all Petitioners guilty and sentencing the Afghans to one to five years, and the Americans from eight (Caraballo) to ten years (Idema and Bennett), with anyone who claimed POW combatant status receiving higher sentences.

42.             In spite of this, the US State Department, and Respondent Khalilzad, issued statements that the trial was fair, and had been conducted in accordance with Afghan law and international standards.  However, Respondents intentionally withheld their explicit knowledge that Bakhtyari and Dawari were former Taliban officials and the fact that they had orchestrated Petitioners’ convictions.

43.             On September 16, 2004, Petitioners were transferred to Pulacharke Prison due to intervention by the Northern Alliance and the Minister of Justice, who removed the seven men from NDS custody and into a Ministry of Justice controlled facility under their direct control and outside the physical custody of the FBI.  Since the Minister of Justice interceded all torture has ceased, and Ministry of Justice general officers have gone to extraordinary efforts to exceed Geneva Convention requirements regarding treatment.  Although Petitioners are still at grave risk– they were taken back into NDS custody in October and subjected to threats and abuse once more, but Northern Alliance Ministry of Justice personnel forcibly removed them from NDS custody again.

44.             Over the past six months, Iraqi, Pakistani, and Saudi al-Qaida terrorists have tried to assassinate the three American Petitioners and conspired to attack the Afghan Counter-Terrorist Group officers on at least seven different occasions.  Each time the terrorists were interdicted and stopped by Northern Alliance officers at Pulacharke Prison.  Although Petitioners are now being extremely well-treated by the Minister of Justice, they remain POWs and political prisoners^[27] held at the direction of Hamid Karzai specifically acting under the orders of Respondents without having been afforded even a scintilla of due process.

45.             In fact, the Ministry of Justice, an official branch of the Afghan government, recognizes these men as POWs, as evidenced by their current living quarters which result from Geneva Conventions protections requiring accommodations commensurate with rank as required by Articles 25, 44, 45, 76, and 89 of the Geneva Conventions.  As such, Jack and his TASK FORCE SABER 7 men have been placed in General Officer accommodations which are reserved for commander level officers in custody.

46.             On October 8th, 2004, Counterr Group intelligence assets were responsible for assisting security forces in seizing fuel trucks packed with explosives in Southern Afghanistan.  Those Counterr Group assets and the other unnamed Counter-Terrorist Group officers continue to remain covert by necessity for their protection.  Counterr Group personnel have also identified two other bombings prior to their detonation, one of which was in Jalalabad.  The terrorists responsible for all of these bombings remain at large, and under the protection of Sidiq and other parties named as officials of the Afghan government and agents of the FBI.

47.             Finally, in November 2004, the Second Court of the Afghan Supreme Court, also called the Court of Appeals, heard preliminary evidence in the criminal case against these Petitioners.  In spite of the fact that the Court of Appeals has been extremely considerate of Petitioners, and in spite of the fact that each of three judges privately expressed their belief that all of the Petitioners were innocent of all charges, they have been unable to administer due process and justice because of “pressure from the palace, the US Ambassador, and the American FBI.” 

48.             Although the court stated they were unable to immediately release the Petitioners because of palace orders coming from the FBI and State Department, the Appeals court did overturn the convictions of Petitioners and order a trial de novo.

49.             Furthermore, on or about November 24, just days before the second trial de novo began; the FBI seized all of the exculpatory evidence in the case again, and physically removed it from the Court of Appeals evidence room, without the knowledge of the Appeals Court judges.  This was an intentional interference with a judicial process and intended to prevent Petitioners from presenting a defense.  This evidence tampering was done with the complicity and assistance of the United States DOS and Respondents.

50.             Between November 20th and 30th 2004, Ezmerai, Ahmadi, Idema, and other confidential witnesses all testified in a closed hearing in the Appellate Division of the Supreme Court of Afghanistan.  They provided testimony about the charges, and their treatment at NDS prison during the summer of 2004.  Their statements were horrifying.  That sworn testimony revealed; that Major Ezmerai still had the NDS torture induced electrical burns on his body five months later, but even after nights of torture he refused to sign a statement against Idema or the others; that Ahmadi had been beaten and threatened into signing a statement against Jack Idema, but when beatings and threats failed, Ahmadi was given three blue Valium tablets (Diazepam 10mg each) in order to drug him into a condition whereby NDS agents (including Mudafea, and, upon information and belief, agents of the FBI) could stamp his thumbprint on a statement they wrote for him (Ahmadi is illiterate as is much of Afghanistan).  Ahmadi testified that the next morning he woke up and thought it was a dream until he looked down and was terrified to see the purple ink on his thumb which was used to sign his fabricated and false statement.[28]  Idema testified that NDS agents (Un-named Agents 6-9) tortured him repeatedly and tried to force him to sign a statement in Dari, which they would not allow him to read.  American agents were sending messages into the interrogation room, and, upon information and belief, they were FBI agents.  Idema was threatened with hanging and continued torture unless he signed the statement.  He never did.

51.             It was recently discovered that Bakhtyari has been and is involved in a wide range of illegal civil and criminal acts.  Although the FBI and Respondents directed the Court, and specifically Taliban Judge Bakhtyari not to allow Petitioners access to ANY court files or prosecution evidence, thereby denying all due process to Petitioners, the FBI had unlimited access to the files and evidence.  Further, during the course of the trial Bakhtyari actually sold Petitioners’ copyright protected photographs, and evidence file to journalists, even though Petitioners and their attorneys were NEVER allowed access to any of the court files, which contained statements, confiscated documents and photographs, many of which were of an exculpatory nature.  Although Respondents had ordered Bakhtyari not to allow the Petitioners access to the files, Bakhtyari and Dawari repeatedly allowed western journalists to access the files, often for a cash fee.

52.             On December 1, 2004, the Court of Appeals of the Islamic Transitional Government of Afghanistan conducted another closed hearing in the case.  A new trial de novo was granted, as was a bifurcated trial allowing the charges against the Afghans to be heard first, and then the issue of the Americans illegally entering the country on forged Indian passports.  By the end of the hearing, the Afghan Court of Appeals had declared all four Afghans innocent of all charges and three of Idema’s men were ordered released immediately by the Appeals Court after hearing evidence from Afghan government police officers and learning that the FBI was present during torture sessions and illegally seized Petitioners’ evidence in the case for the second time.

53.             Caraballo’s first lawyer, Michael Skibbie, was the first to publicly accuse the FBI of taking evidence during the initial series of hearings in July and August 2004.  The defense’s claims were later proven true when the FBI, under orders from the Afghan Ministry of Justice, returned hundreds of documents and videotapes in the middle of an August trial.  However, much of that evidence remained missing.

54.             The Court summoned members of the NDS to chambers and inquired about the evidence.  It was then disclosed that agents of the FBI had again removed all of the video, photographic, and audio evidence, including the team’s computers which the men would need to defend themselves, without notifying the Court.  This was the second time the FBI interfered in Petitioners’ defense by taking and destroying evidence in the case.

55.             The Appeal Court’s inquiry disclosed that the FBI had again taken the evidence just six days prior to the December 1st hearing.  Without the evidence the Petitioners were unable to mount an adequate defense.  This was an intentional interference with due process and obstruction of justice through the destruction of exculpatory evidence by the FBI which has no jurisdiction in the case.

56.             Ministry of Justice police official Mohammed Saboor testified that he witnessed members of President Karzai’s Protective Detail and Ministry of Defense personnel present at the arrests of terrorists and Idema coordinating with the Presidential Palace.  He also testified that Idema’s treatment of suspected persons, women, children, and prisoners was exemplary and in full conformance with Islamic law.  This was corroborated by video showing female Afghan National Police Detectives present during Idema’s searches and raids.

57.             Members of Idema’s team, including Major Ezmerai Amin, a commissioned officer in the Afghan Ministry of Defence were ordered released, as was Sohail Sahabi, a translator, and Sherzai Ahmadi, a house worker.  Lieutenant Rasuli, who is a Ministry of Defence employee, refused to be released without Idema and the rest of the team, requesting the judges allow him to stay in prison with the Jack Idema and the two other Americans until the trials were completed.  Rasuli told the judges, “In this group there is only one main point I have learned above all else, leave no man behind.  I request to stay.”  The judges granted his request.

58.             Reviewing videotape of the three Americans entering Kabul and being greeted by a contingent of high-ranking Afghan authorities, including the Commander of the Border Police, the Airport Manager, and even one of President Karzai’s brothers, the Court saw three US passports being handed to Afghan government officials, customs forms being filled out, and National Police officers loading the American’s bags, which consisted of approximately eight “Pelican Cases,” three communications cases, six military equipment cases, and four gear bags, on a special trolley and through customs, where they were cleared by the Chief of Customs.  The Court of Appeals ruled that the entry into Afghanistan had been legal and the charge was dismissed.  The Court agreed to hear the other charges in a separate hearing scheduled for a future date.

59.             On December 17, 2004, eight al-Qaida terrorists implemented an assassination plot and attack on the Petitioners at Pulacharke.  One of their motives was to collect a $250,000 reward Osama bin Laden had placed on Idema.  Bokan, the Iraqi leader of the Pulacharke al-Qaida group had previously tried to kill Marshall Mohammed Fahim, the Minister of Defence—one of the Ministers whose life Petitioners had saved.  Bokan, the Iraqi terrorist, had told the others that his only goal was to kill Idema and the other Petitioners and then they could attempt an escape.  Four Ministry of Justice officers were killed that day; two executed in front of Petitioners.  Four others were wounded, three severely.  Petitioners held off more than 100 terrorists, who had been freed by Bokan, with a barricade in level two of the prison block.  Former Northern Alliance commanders and bodyguards arrived after being covertly alerted by Idema and killed all but one[29] of the remaining terrorist conspirators.  The standoff lasted more than eight hours.  The terrorists came very close to killing Petitioners.

60.             Approximately 40 days later, the Appeals Court met again, and repeated that all Petitioners were “completely innocent,” but that they could not be released because of pressure and coercion by the U.S. Embassy and FBI.  Further, the Appeals Court cleared Petitioners of all torture charges after hearing covertly recorded statements of the alleged “victims” and seeing evidence linking the “victims” to terrorist leaders and terror plots.

61.             The Court also informed Petitioners that US officials, namely Russel Brown, US Consul, acting on behalf of Respondents, provided false information to the Court, by stating that official US government documents, including a letter from a US Ambassador and Defense AttachÈ were fake and forged.  The US Consul and FBI had removed copies of this letter from Petitioners’ legal mail in violation of law, and then secretly met with the Court prior to Petitioners’ hearing in order to obstruct justice through knowingly false statements and to cover-up U.S. government liability and complicity.  Because the U.S. Consul lied about the letter’s authenticity, the Petitioners were not released.  In essence, Petitioners remain in custody solely at the direction of Respondents.

62.             On February 16, 2005, al-Qaida terrorists attempted a seventh assassination attempt against Petitioners.  Seventeen Pakistani, Red Chinese, and Arab terrorists implemented another plan to kill Idema and the two other American POWs.[30]  The assassination attempt was interdicted by Northern Alliance officers again, and foiled just twelve hours before their attack on Petitioners.

63.             Finally, on February 22, 2005, this U.S. Consul continued his assault on Petitioners’ due process and liberty rights.  After Petitioners’ U.S. attorney became involved in the case in August 2004, the U.S. Consul, Russel Brown, agreed to allow mail between the Petitioners and their families and attorneys.  This mail was sent through the U.S. State Department.  Mail continued to flow without significant problems, until such time as Petitioners’ attorney informed the Ambassador that he would be filing a civil suit against President Karzai and U.S. government officials.

64.             However, after the U.S. Embassy received the letter threatening litigation and requesting the cessation of rendering and obstruction of justice by the United States, Respondents put a complete mail blackout in place, in that they refused to send letters from Petitioners and began the inspection, copying, and destruction of legal mail, evidentiary documents, and even personal mail between Petitioners and their families.

65.             Some of the legal mail confiscated and never sent by Respondents, was legal mail relating to ongoing civil cases in the United States.  As a result of Respondents’ actions Petitioners have been adversely affected in unrelated civil cases in the United States in violation of international treaties and Geneva Conventions.

66.             As an example, Petitioners were told they would be allowed to send Christmas presents to their families.  They spent one month preparing handmade gifts.  Caraballo had a beaded vest made for his 3-year old daughter, Idema had a necklace made for his wife and handmade cups made for his 85-year old ailing father, his attorneys, and friends.  Bennett had necklaces and cups made for his family.  Christmas cards and Christmas letters were prepared by all of the Petitioners.  Petitioners were assured that they would be allowed to have communication with their families for Christmas, birthdays, and holidays.  When the Embassy took the mail they assured Petitioners they would send it.  Instead, they destroyed items, illegally searched and copied the mail, and then held the mail for more than forty days before returning the mail unsent.

67.             In response, Petitioners filed a formal letter of complaint with the US Consul, Russel Brown.  Brown not only refused to provide a response, but he then stopped all mail and ordered the complete confiscation of legal mail.

68.             Worse, ALL of the attorney/client privileged legal mail given to the Embassy in 2004 ended up being posted on the internet on a blogging site (a Web Blog) before it was returned to Petitioners.  This included highly confidential legal documents regarding Petitioners’ defense strategy.  One month later, the Embassy returned the mail opened, rifled, and in some cases with pages missing.

69.             Petitioners sent another letter, this time to the U.S. Ambassador, outlining a violation of Constitutional rights, and federal law.  Khalilzad’s response was to order a complete ban on all mail, including mail sent from the families and friends of Petitioners through the U.S. State Department’s Dulles, Virginia foreign mail processing facility.  This was a complete reversal after four months of mail in this manner.  This was intentionally done to destroy Petitioners’ defense and emotional state.

70.             Furthermore, Russel Brown then advised Petitioners that all mail sent to them would be permanently confiscated, and neither delivered or returned.  Brown took the position that any mail now sent through the State Department to Petitioners would become the property of the United States government.

71.             Even worse, Brown then informed the Petitioners that Khalilzad had ordered the ban imposed retroactively, and all mail en-route from Petitioners’ attorneys would not only be read and copied, but permanently seized by the United States.

72.             Petitioners, especially Idema, whose ailing father was undergoing treatment for a terminal cancer condition, and was now incapacitated, was irate.  Caraballo, who was now completely detached from his young daughter, was sent into a spiraling clinical depression.  The United States government had arbitrarily and capriciously severed the Petitioners from all contact with their families, purely for vindictive and vicious motives.  During one argument over the mail, Russel Brown stated that as far as Khalilzad was concerned, it would be better for everyone if al-Qaida finally succeeded and murdered the Petitioners.

73.             Petitioners demanded written clarification of the status of mail and on February 22, 2005, Russel Brown finally provided Petitioners with a written response that was extraordinary in its Machiavellian approach and viciousness.  The letter claimed that Sandra Ingram was the one who originally allowed mail— this was completely untrue as Ingram never allowed mail.  Brown claimed that Ingram had made a mistake, and told Petitioners that no mail would be allowed through the U.S. Postal Service, in ANY fashion, neither to the Dulles facility, or the APO.  Brown stated the Petitioners would have to: 1) “use international mail.”  Afghanistan does not yet have a working mail system; the one piece of mail delivered to the Afghan post office was intercepted, searched by the Embassy, and ordered held.  Its whereabouts is unknown, but the cost of that single letter was around $8 for delivery in 30 days, and the package was about $25; 2) “use DHL.”  This would first be searched and copied by the Embassy, including legal mail, and would cost roughly $85 for a single letter—in other words, if each of the three American Petitioners sent one family member one letter a week it would cost $14,720.00 per year.  Christmas cards, would, of course, be extra; 3) “use Federal Express.”  The cost would be equally prohibitive as DHL, probably more, but Respondents are well aware that Federal Express has refused to send any letter of package addressed from Petitioners for fear of reprisals by the FBI which has completely coerced the Kabul Federal Express office into refusing any mail from Petitioners.  What happened to dozens of missing attorney/client privileged letters is unknown, but one thing is clear, Respondents are playing a shell game with guaranteed constitutional rights.

74.             What is exceptionally reprehensible about this is that, according to sources, Khalilzad made specific comments about Christmas, stating that because Petitioners were prisoners in a Muslim country (Khalilzad is also Muslim) Christmas mail insulted him and “his” country.  Khalilzad clearly feels that Afghanistan is his county, that American religious holidays are a threat to his religion, and that he has the specific right to determine United States Postmaster General policy for American citizens.

75.             Petitioners have survived the torture, the daily threats against their lives by al-Qaida, constant abuse, interference by the FBI outside their jurisdiction, false statements by the United States government, abuse of process, and even invasion of privacy and violation of the attorney/client privilege— they cannot survive the denial of a right born from the blood of our forefathers to communicate with their families.

76.             Petitioners remain in custody, as Prisoners of War, held solely because of Respondents.  NONE of these violations are imposed by Afghan prison authorities who are fully abiding by the provisions and protections of Geneva Conventions and have imposed NO liberty restrictions on incoming or outgoing mail, or other freedoms.  This patently egregious conduct is the exclusive dominion of Respondents who continue to hold Petitioners incommunicado through the illegal rendering of American citizens.

77.             Finally, in early March, US Consul Russel Brown, at the direction of Respondent Khalilzad, informed Petitioners that all drinking water would be terminated by the United States government, and that Petitioners would no longer be allowed access to potable drinking water.  This was in direct retaliation to letters of complaint to Khalilzad about the new ban on mail.  Without water, Petitioners will be forced to drink local water which contains microorganisms and bacteria fatal to American citizens and forces in Central West Asia.  Although ciprofloxacin can be administered to combat the severe dysentery, vomiting, and eventually death[31] that will occur as the result of the denial of drinking water, two problems make this solution untenable.  First, ciprofloxacin is not readily available, the US Embassy has already refused to supply drugs to Petitioners, and the FBI confiscated the medical and surgical kits Petitioners possessed to avoid any link to the United States government.[32]  Second, because Idema has operated in Afghanistan for more than three years, he has already used ciprofloxacin extensively and is not a suitable candidate for continued long-term use.  The same situation would apply to Bennett and Caraballo if they were to be forced into long-term use of ciprofloxacin.  Therefore, the denial of water is not only completely retaliatory and nefarious, but brutally vindictive and unwarranted.

78.             In one last perverse twist of justice, the U.S. State Department recently issued a document referring to Bakhtyari stating:

“Mr. Bakhtyari has recently earned a reputation for passing a judgment in the case of three Americans who faced charges of running their private prison in Kabul to try Taliban and al-Qaida suspects.  Despite opposition from certain religious circles he was able to pass a favorable judgment in the case of the three Americans.  He is one of the three judges recommended by the Afghan Chief Justice for the program.” [Emphasis Added] (State Department Biographical Info Section – International Visitor Program)

79.             This statement was related to a contingent of Afghan judges sent to the United States by Respondents.  Bakhtyari himself admitted that this “all expense paid trip” was a “gift” from the United States for finding Petitioners guilty and giving them a ten-year sentence.  While the Respondents are apparently proud of Bakhtyari’s actions, during the same February/March 2005 time period, the United Nations Independent Expert of the Commission on Human Rights on the Situation of Human Rights in Afghanistan, for the Office of the High Commissioner for Human Rights, issued a scathing indictment of Bakhtyari, charging him with a veritable laundry list of human rights violations and crimes, and calling his court not only illegal, but contrary to all international laws.

80.             However, Respondents still considered Bakhtyari to be a suitable candidate for his trip to the United States paid for by American taxpayers.  In the meantime, evidence surfaced (statements from NDS officers) that other judges were being similarly bribed to block the release of Petitioners in the Appeals Court, and that the DOS had provided cars and money to officials involved in the case, such as a Mercedes Benz to the Chief Prosecutor, who previously did not own a car.  In fact, all of the NDS officials involved in the case, who make an average of a few hundred dollars a month in salaries, were all of sudden promoted, flush with cash, and driving new cars.

81.             Finally, there was one last ironic twist in this outlandish case.  After all the work, money, and effort the State Department and Respondents expended to bolster Bakhtyari’s credibility and prestige and to reward him for his illegal actions, Bakhtyari was never able to culminate his travel plans and appear in the United States as Respondents’ “spokesman” on the new Afghan justice system.  As it turns out, Bakhtyari’s name is on the classified CIA and DIA suspected terrorist list, and was denied a visa, in spite of the best efforts of the DOS and FBI to remove his name and allow him entry in America.

Memorandum of Law in Support of
Issues Under Consideration

I.                   Whether a Petition filed pursuant to 28 United States Code ß 2241
is the proper procedural vehicle for the relief Petitioners request.

In Priser v. Rodriguez, 411 U.S. 475, 485 (1973), the United States Supreme Court recognized “that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody.” 

However, in the instant case, Petitioners submit that because of the arbitrary actions of Respondents, the false statements to the Afghan Court of Appeals, the bribery and manipulation of the Primary Court Taliban judge (Bakhtyari), the torture by agents of the FBI, the illegal search of Petitioners’ property, the illegal search and seizure of Petitioners’ computers, files, and documents, and the destruction of exculpatory evidence in the underlying Afghan criminal case, the complete denial of Petitioners’ right to send mail, and send and receive attorney/client privileged communications, and the interference by Respondents in due process and liberty rights of Petitioners through Respondents’ rendering of Petitioners, this case is properly before the court.

Based on the facts alleged, Petitioners submit that a petition for habeas corpus pursuant to 28 United States Code ß 2241 is the proper procedural vehicle for the relief Petitioners request in spite of the untraditional nature of rendering.  The Seventh Circuit has recognized that “habeas corpus can be used to get from a more to a less restrictive custody…” McCullom v. Miller, 695 F.2d 1044 (7th Cir. 1982), see also McCall-Bey v. Franzen, 777 F.2d 1178 (7th Cir. 1985).  In McCullom, a prisoner sought release from a disciplinary unit which denied his liberty beyond the confines of his sentence of imprisonment.  Similar to the mail restriction in the instant case, the prisoner received little notice or procedure before the prison administration decided to discipline him.  As a result, the court held that the prisoner did not receive the process he was due under the Fifth Amendment.  In the instant case, the Respondents arbitrarily decided to terminate outgoing mail from Petitioners to their family, friends, and attorneys when the Respondents learned that the Petitioners attorneys were planning and preparing to file suit against Respondents and members of the Karzai government.  In effect, Respondents have denied liberty rights beyond the sentence of Petitioners’ imprisonment.

          Similarly, Petitioners submit that they have been unable to exert their due process rights as a result of the Respondents’ arbitrary denial of mail privileges in spite of the fact that a DOS memorandum and circular specifically states that the State Department will handle mail for incarcerated American citizens abroad.  On this issue, Petitioners seek an order preventing the State Department from denying mail services to ANY incarcerated US Citizen in any country so long as that country does not restrict the mail.  As an example, in the instant case, the DOS refuses to send religious articles, Christmas presents, birthday presents, and items in anyway associated with religious or Christian holidays.  Specifically, Respondent Khalilzad is a Muslim, and has refused to allow Petitioners and their families to interact in religious holidays other than those based on the Muslim faith.  Further, Respondent Mueller has, in concert with the DOS Respondent, Rice, put a complete ban on all attorney/client privileged communication.  However, the actual warden of the prison, the Afghan Chief of Prisons, the Minister of Justice, and the Afghan government have not placed ANY restrictions on Petitioners’ mail.  Therefore, the liberty restraint is imposed by the Respondents, in violation of law.

          In Waletzki v. Keohane, 13 F.3d 1079 (7th Cir. 1994), the Seventh Circuit was faced with an appeal from a denial of habeas corpus relief pursuant to 28 U.S.C. ß 2241.  In that case, the Petitioner argued that the prison administration’s denial of his good time credits was arbitrary.  Id. at 1080.  Although it denied the prisoner’s claim on the merits, the court recognized that his claim was within the district court’s habeas corpus jurisdiction.  Id. at 1081. 

          In Waletzki, the court stated that “…habeas corpus is available to challenge the duration as well as the fact of custody.”  (Citing Preiser v. Rodriguez, 411 U.S. 475 (1973); Hanson v. Heckel, 791 F.2d 93 (7th Cir. 1986) (per curiam).  According to Waletzki, the Petitioners’ case falls under this court’s habeas corpus jurisdiction.  The instant case also follows Waletzki, supra, in that Petitioners would have been released from custody in December 2004 had it not been for the interference and obstruction of Respondents.

          In Joseph v. DeCastro, 805 F.Supp. 1242 (D. Virgin Islands 1992) a district court held that “[w]hile there is no definitive list of situations constituting ‘the core of habeas corpus’ we are satisfied that as here, where the root of the action is an attack on the petitioner’s detention, that is, his allegedly illegal confinement at a federal corrections institution, habeas is the appropriate means of redress…”  Id. at 1248.  In the instant case, the Petitioners have been rendered by Respondent Mueller, have been subjected to liberty deprivations and due process denials at the direction of all three Respondents, and have been subject to continued illegal search and seizure by Respondents, and therefore, are technically in federal custody.

Respondents are intentionally obstructing the new trial of Petitioners and delaying their release from prison for a variety of reasons, including, but not limited to, upon information and belief, Respondents desire to bring criminal charges against Petitioners in the U.S., see: Schofs v. Warden, FCI Lexington, D.C. Ky. 1981, 508 F.Supp. 78. 

In support of this, the FBI Counter-terrorist Task Force[33] has been aggressively interviewing, threatening, and conducting surveillance of family members, business associates, Special Forces personnel, and Petitioners’ friends in the United States.  The FBI has made it abundantly clear that they intend to pursue whatever criminal charges they can develop against Jack Idema.  Further, the FBI orchestrated and directed the arrest of Idema’s wife on a non-existent warrant in order to interrogate her on January 7, 2005.  Upon information and belief, the FBI, and Respondent Mueller, are taking the actions described herein for the sole purpose of delaying Petitioners’ release until such time as they can develop grounds to move Petitioners into official US custody.  To the FBI, this is of critical importance.  They seek to first, prevent Petitioners from speaking to the press, Congress, or the Senate, regarding the events in Afghanistan, and second, to coerce Petitioners into divulging their al-Qaida undercover operatives.  The FBI’s primary concern is to co-opt Petitioners’ agents inside al-Qaida.[34]  This was a prime focus of their interrogations of Petitioners in July-August 2004.  However, for the record, only one person knows the identities of the al-Qaida assets providing information to the Counter-Terrorist Group and the Department of Defense, and that is Jack Idema.  All other operators, in Counterr Group, the DIA, the DOD, and other intelligence activities know only the code names of the assets.  The FBI has long sought[35] clandestine assets inside al-Qaida with no success.  The FBI, specifically Respondent Mueller, saw this situation as opportunity to co-op the assets of the Counter-Terrorist Group which had spent three years developing and vetting them.  The fact is, that the highest levels of the FBI, at the direction of Mueller, had tried to “co-op" Idema’s assets for more than six months prior to Petitioner’s arrest.  These conversations are memorialized on tape and can be supplied to the court if a controversy surfaces.

          Respondents have made it abundantly clear, through their agents, that they will do everything within their power, including the violation of U.S. laws and rights, to prevent Petitioners from being released, even though the Afghan Court privately, even if “unofficially,” found them innocent of all charges on February 21, 2005.

Accordingly, the appropriate procedural vehicle is a petition for habeas corpus relief pursuant to 28 United States Code ß 2241.

II.                Whether the Southern District of New York is the proper jurisdiction due
to Petitioners’ current incarceration in the Islamic State of Afghanistan.

Petitioners submit that this jurisdiction is familiar with these types of cases, and the issues delineated herein, especially including rendering.  Further, Caraballo is a resident of New York, and Petitioners’ counsel is in New York.  The correspondence issue, relating to the denial of due process, right to counsel, illegal search and seizure, and cruel and unusual punishment stem from the denial of family[36] mail primarily to the State of New York.

The traditional role of habeas corpus is to move the person restraining the liberty of the petitioner to take some action or stop some restraint of liberty by that “custodian.”  In the instant case, the physical custodian of the Petitioners is taking NO action to restrain Petitioners or deny their liberty.  In fact, the physical custodians (the Afghans), have taken extraordinary measures to protect Petitioners, and to effect the release of Petitioners.  They have been obstructed by the Respondents.  Respondents, Rice and Khalilzad, have instructed and ordered their agents to deny all rights to Petitioners, avoid answering FOIA requests, complaint letters, and legal letters, to search and seize US Mail, deny water and medical care to Petitioners and to intentionally engage in obstruction of justice by providing knowingly false information to the Afghan Appeals Court and government.  The Afghan government has repeatedly stated that they wish to release Petitioners but Respondents have explicitly ordered Petitioners held in custody.

One district court noted that it was “required by consideration of fairness and basic convenience to assume jurisdiction over petition by defendant to vacate sentence, despite his absence from territory or jurisdiction of the court…”  See; U.S. v. Tully, D.C.N.J. 1981, 521 F. Supp. 331.  In fact, the courts have found that the “[p]hysical presence of a habeas corpus petitioner within a judicial district in not an absolute jurisdictional prerequisite, but rather a requirement which can give way to considerations of fairness and basic convenience.”  See; Kinnell v. Warner, D.C. Hawaii 1973, 356 F.Supp. 779.  The courts have also ruled that a federal court is “not required to dismiss a habeas corpus proceeding[s] simply because petitioner was not confined within its jurisdiction but was required to consider fairness and convenience to parties.”  See; Noe v. Garland, D.C. Md. 1975, 400 F. Supp. 691.

Under Section 2241, “so long as custodian can be reached by service or process, a court can issue a writ within its jurisdiction requiring that [a] prisoner be brought before court for a hearing on his claim, or requiring that he be released outright from custody, even if prisoner himself is confined outside court’s territorial jurisdiction.”  See; Braden v. 30th Judicial Circuit Court of Kentucky, Ky.1973, 93 S.Ct. 1123, 410 U.S. 484, 35 L.Ed.2d 443; see also; Fore v. U.S., D.C.Tenn. 1977, 436 F.Supp. 769.  “Jurisdiction is appropriate in habeas corpus acts as long as the custodian can be reached by service or process, even though the prisoner may be confined outside the court’s territorial jurisdiction,” see; King v. Lynaugh, W.D.Tex. 1990, 729 F.Supp. 57.

In another case, loosely related to the situation in the instant case, the court decided that for “purposes of challenge to parole decision [similar to the Petitioners’ situation in that a specific group— Rice, Khalilzad, and Mueller— have made a decision to impose the liberty restraints on Petitioners], the Parole Commission could be considered, under the circumstances of the case, prisoner’s “custodian,” and thus, the district court had subject matter jurisdiction over prisoner’s habeas corpus petition challenging decision of the Commission, even though warden was not named in the petition; the Commission, rather than the warden, directly controlled whether petitioner remained in custody;” [emphasis added], declining to follow Billiteri v. United States Bd. of Parole, 541 F.2d 938 (2d Cir.).  Dunn v. U.S. Parole Com’n, C.A. 10 (Kan.) 1987, 818 F.2d 742.

Most importantly, “[w]hile the language of [ß 2241] would indicate that writ of habeas corpus is appropriate only when petitioner is ‘in custody,’ this section does not attempt to mark the boundaries of ‘custody’ nor in any way other than by use of that word attempt to limit the situation in which the writ can be used.”  See; Hammond v. Lenfest, C.A.2 (Conn.) 1968, 398 F.2d, 705.  It is important to note, that “habeas corpus tests not only the fact, but the form of detention and the lawfulness of restrictions placed upon personal freedom.”  See; Bland v. Rodgers, D.C.D.C. 1971, 332 F.Supp. 989.

The district court in North Carolina ruled that “[t]o invoke federal writ of habeas corpus [a person] need not [even] be physically detained in jail or prison; it is only necessary to show that there are impediments significantly restraining his liberty to do those things free men are entitled to do.”  See; Walker v. State of N.C., D.C.D.C. 1966, 262 F.Supp. 102, affirmed 372 F.2d 129.

          Further, through the withholding of exculpatory evidence illegally seized from Petitioners, Respondents have in essence effected a false imprisonment.  For, if Respondents returned the videotapes, photographs, documents, computers, and evidence illegally seized from Petitioners, the Afghan Appeals Court would have the necessary evidence to conclude the trial de novo currently underway and publicly announce a not guilty verdict on all charges.  If fact, the Afghan Appeals Court has ordered Respondents to return all evidence taken from court’s custody, but the Afghan Court has also stated that they have no jurisdiction to force Respondents to return evidence and property now in U.S. custody and control, and secured on U.S. property.  Respondents’ illegal custody of Petitioners’ property is continuing their false imprisonment, because the evidence is of such a highly exculpatory nature that even the Respondents would be unable to continue Petitioners’ rendering at the hands of the Afghan government.  Therefore, only this court has the power to order Respondents to return property and evidence seized in violation of the Fourth Amendment and held in violation of law.

The law is not a straight jacket and in no area of law should this be more true than in the consideration of a habeas corpus petition.[37]  In summation, jurisdiction is not only highly appropriate, but also completely warranted.

III.             Whether Respondents are engaging in the illegal rendering of
Petitioners to violate their constitutional rights and for the explicit
purpose of denying Petitioners due process protections & subjecting
them to continued false imprisonment by Respondents’ proxies.

The rendition of a subject, or suspect, also referred to as “rendering” is the intentional transference of a suspect, particularly a terror suspect, from U.S. custody or territory, to foreign custody and/or territory.[38]  As an example, the subject is captured by U.S. Forces in Thailand, then flown to Pakistan where he is placed temporarily in the custody of the Pakistani ISI.[39]  The ISI allows the FBI (or CIA, or other intelligence activity) to place the subject in ISI custody, usually for a high fee, where the subject can be held without due process or interference, secretly without notification of the Red Cross or any other similar agency, and without restrictions on interrogation techniques, thereby allowing the FBI to administer aggressive interrogation techniques, including torture techniques not even allowed under the DOD’s aggressive interrogation policy and known as extreme interrogation.  Further, if the subject dies in custody, he can be left there and FBI agents are then insulated from repercussions resulting from the death.  Just as importantly, the FBI, impersonating[40] other federal agencies, or using deceptive intelligence gathering techniques, can keep the Bureau at arms length from the torture and interrogation should anything go wrong.  Once the intelligence is gleaned, if it ever is, the subject is transferred back into official US custody prior to formal charges.  Should the FBI be unsuccessful, they might leave the subject in foreign custody, or turn the subject over to the DCI.[41] 

While recent focus has been on rendition by the CIA and DOD, the fact is the FBI secretly engages in rendering as often, if not more so, than either of those agencies.    

The instant case is a prime example of FBI rendering.  The FBI,[42] and Respondent Mueller, placed the Petitioners in NDS custody for the sole purpose of rendering and circumventing the constitutional rights and due process protections of three American citizens.  While Petitioners have NO objection to protect the security of the United States through the rendering of foreign terrorists and enemy combatants captured during terror operations, Petitioners have great objections to the rendering of US Citizens born in the United States, especially former Special Operations personnel and journalists engaged in anti-terror operations solely because their operations conflict with FBI goals.  The rendering of these categories of personnel is completely at odds with the purpose of rendition, and is a complete violation of law by Respondents, who are sworn to uphold the Constitution.  The fact is that the United States government, specifically the FBI, has used the War on Terror not to fight terrorists, but as an excuse to oppress US citizens and suspend the Bill of Rights.

The rendering of Petitioners clearly violates their Sixth Amendment rights as guaranteed by the United States Constitution on two plains because; first, while Petitioners are confined on the orders of the United States, they are denied a speedy trial, and all rights to due process by the Respondents, see; Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L Ed 2d.  Secondly, Respondents have continually, intentionally, and maliciously, subjugated Petitioners’ due process rights in Afghanistan by repeatedly delaying the trial de novo granted by the Afghan Appeals Court.  Further, when the Court of Appeals announced the complete innocence of all charges against Petitioners, it was Respondents that blocked the final written verdict and release of Petitioners.

          Habeas corpus cases tend to cut across all branches of law, but they are particularly evident in cases involving abnormal deprivations of liberty, and this case illustrates why habeas corpus actions are indispensable where the rule of law has been abandoned.

IV.            Whether, as a result of Respondents’ actions, Petitioners have been,
and are being, denied vital liberty interests; such as the right to be
free from illegal search and seizure.  And, whether Respondents
have intentionally, maliciously, and knowingly violated Petitioners’ constitutional rights by: withholding exculpatory evidence, illegal confiscation and/or destruction of exculpatory evidence, engaging in denial of due process, obstruction of justice, and abuse of process.

The Fourth Amendment provides:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated….”

          In Bivens v. Six Unknown Fed. Narcotics Agents, the court decided a question that it had reserved in a previous case.  See: Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) discussing Bell v Hood, 327 U.S. 678 (1946).  That decision was that a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct.  The court held that the Fourth Amendment guarantees a citizen of the United States the absolute right to be free from unreasonable searches and seizures carried out by virtue of federal authority.  Most importantly, “where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.”  Bell v. Hood, 327 U.S., at 684 (footnote omitted); see also; Bemis Bros. Bag Co. v. United States, 289 U.S. 28, 36 (1933) (Cardozo, J.); The Western Maid, 257 U.S. 419, 433 (1922) (Holmes, J.).

          In the instant case, the FBI, at the direction of Respondent Mueller, and with the assistance and complicity of Respondent Khalilzad, entered and searched Petitioners’ house and compound without a valid search warrant and without probable cause.  Further, the Respondents, through the FBI, illegally seized legal property of Petitioners from their compound without a warrant and without probable cause.  Weeks later, the FBI again seized additional property which was evidence in Petitioners’ Afghan criminal case, and destroyed some property, kept most property, and returned some property.[43]  In late November 2004, the FBI again seized Petitioners’ property by removing it from the NDS evidence room without a valid warrant, without permission of the Afghan Appeals Court, and without legal grounds.  That property, consisting of extensive exculpatory evidence which Petitioners need to defend themselves[44] in the ongoing trial de novo, is currently in the hands of the Respondents, and believed to be in either the United States Embassy in Kabul, Bagram Airbase, or in Washington, DC.  As a result, regardless of the actual physical location, the property is in the custody and control of Respondents.[45]

          The courts have long held that evidence obtained through an unconstitutional search and seizure may not be used as basis for trial and prosecution of a defendant, Gambino v. United States, 275 U.S. 310 (1927).  If Respondents were to claim that they acted legally in concert with NDS agents who had valid authority, their assertions would be misplaced.  First, the Afghan Interim Criminal Code for Courts specifically prohibits this type of search and seizure, see; Articles 5 ß7, 23 ß3, 32 ß3, 38, and, 43.  Second, the court need not ever reach the issue of whether or not it was legal under Afghan law or whether the FBI had jurisdiction (they do not), the fact remains that it was illegal under federal law.  In Byars v. United States, 273 U.S. 28 (1927) the court was faced with a comparable situation.  The petitioner was convicted on the basis of evidence seized under a warrant issued, without probably cause under the Fourth Amendment, by a state court judge for a state law offense.  At the invitation of state law enforcement officers, a federal prohibition agent participated in the search.  The court explicitly refused to inquire whether the warrant was “good under the state law… since in no event could it constitute the basis for a federal search and seizure.”  Id., at 29 [emphasis added].

          And, the U.S. Supreme Court’s decision regarding electronic surveillance have made it clear beyond peradventure that the Fourth Amendment is not tied to the [Bivens, 403 U.S. 388, 394] niceties of local trespass laws [or local Afghan laws, as might be applicable in the instant case].  See also: Katz v. United States, 389 U.S. 347 (1967); Berger v. New York, 388 U.S. 41 (1967); Silverman v. United States, 365 U.S. 505, 511 (1961).  In light of those cases, any argument by Respondents that the Fourth Amendment serves only as a limitation on federal defenses to a state law claim, and not as an independent limitation upon the exercise of federal power, must be rejected.

          Further, the interests protected by Afghan law and those protected by the Fourth Amendment’s guarantee against unreasonable searches and seizures, may be inconsistent or even hostile.  Thus, a private person or NDS agent might legally ask permission, and be granted admission to a person’s house or office without recourse.  See: W. Prosser, The Law of Torts 18, pp. 109-110 (3d ed. 1964); F. Harper & F. James, The Law of Torts 1.11 (1956).  But, one who demands admission to the dwelling, or takes evidence under a claim of federal authority stands in a far different position. Cf. Amos v. United States, 255 U.S. 313, 317 (1921).  The mere invocation of federal power by a federal law enforcement official will normally render futile any attempt to resist an unlawful entry, which is exactly what happened in Kabul on July 5, 2004, and a claim of authority is likely to unlock the door to the NDS evidence room as well, which is also what happened in July and November 2004 when the NDS allowed the FBI to seize all the exculpatory evidence in the case because, and solely because, the FBI used their claim of authority to seize custody and control of the evidence.  See: Weeks v. United States, 232 U.S. 383, 386 (1914); Amos v. United States, supra.

Historically, damages may be obtained for injuries consequent upon a violation of the Fourth Amendment by federal officials, Bivens, supra, and have been regarded as the ordinary remedy for an invasion of personal interests in liberty.  See: Nixon v. Condon, 286 U.S. 73 (1932); Nixon v. Herndon, 273 U.S. 536, 540 (1927); Swafford v. Templeton, 185 U.S. 487 (1902); Wiley v. Sinkler, 179 U.S. 58 (1900); cf West v. Cabell, 153 U.S. 78 (1894); Lammon v. Feusier, 111 U.S. 17 (1884).  And, although money damages through a Bivens suit are certainly available as a consequence of these acts by Respondents, it is not a required remedy.  “It is… well settled that where legal rights have been invaded, and a federal stature provides for a general right to use for such invasion, federal court may use any remedy available to make good the wrong done.”  Bell v. Hood, 327 U.S., at 684 (footnote omitted) [emphasis added].

          The question here is merely whether Petitioners are entitled to redress their injuries through a particular remedial mechanism normally available in federal courts.  Cf. J. I. Case Co. v. Borak, 377 U.S. 426, 433 (1964); Jacobs v. United States, 290 U.S. 13, 16 (1933).  “The very essence of civil liberty certain consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.”  Marbury v. Madison, 1 Cranch 137, 163 (1803).

          The redress Petitioners request is simply that the evidence seized and now in the custody and control of Respondents be returned.  It should be noted that the evidence, now in Respondents’ possession and custody is on United States property, and therefore, cannot be returned to NDS, where Respondents could “arrange” another disappearing act, but must be returned to Petitioners who are U.S. citizens.  In summation, the exculpatory evidence, needed by Petitioners to prove their innocence[46] in an Afghan Court, and in the international community, must be returned to its rightful owners.

Although this particular situation is unusual (federal agents seizing personal property from U.S. citizens without due process in a foreign country), it is perhaps just one more of the consequential events that has arisen from America’s War On Terror and new assaults on the very fabric of the Constitution, for the federal judge who entertains a petition for habeas corpus must realize that the Great Writ is one of the primary means by which the law is adapted to a changing society.[47]

V.               Whether Respondents are engaging in the denial of fundamental liberty
interests by denying, restricting, searching, and seizing personal
correspondence, and attorney/client privileged correspondence, with
the intention of denying liberty rights and due process to Petitioners.

The facts of the case are extraordinary, to say the least.  But Respondents actions regarding mail are exceptionally egregious.  Respondents not only misinterpreted memo’s, letters, memorandum, and law, but took retaliatory actions against Petitioners as a result of Petitioners filing letters of complaint, and Petitioners attorneys threatening legal action.

Communication with one’s family is perhaps one of the most important and fundamental rights that a United States citizen possesses.  The effect of mail problems is well-documented in American society.  This lifeline, once violated, cannot be cured by financial reparations, or apologies, it is an essential element of developed societies.  In fact, the Department of State fully acknowledges the importance of mail to American citizens incarcerated abroad, by stating:

“One of the most essential tasks of the Department of State and US Embassies and consulates abroad is to provide assistance to U.S. citizens incarcerated abroad.”[48]

This is followed up by another DOS memorandum which states;

“Letters and packages from home constitute a real lifeline for many prisoners, and their replies in turn help reassure anxious family members.”[49] 

However, Respondents have shown complete disregard for their own rules.  As an example, on February 22, 2005, in an attempt to justify their illegal actions, Russel Brown wrote:

“As non-US Government personnel are not to use the diplomatic

pouch (nor the APO)…”

This is completely false.  Employees of ITT, ATT, Lockheed, and a variety of related companies all use the APO[50] in Afghanistan.  So do NGOs under a special dispensation.  This practice has been in place for more than three years.  Furthermore, Petitioners sent and received mail through the APO both prior and after their incarceration.  Additionally, Brown’s description of his “diplomatic pouch” is fabulist at best.  In reality it is not a “pouch” restricted to diplomatic correspondence.  The Dulles, Virginia mail drop is for anything, from magazines to barbecue grills.  It all arrives the same way into Afghanistan which has no formal mail system of its own.

  “This system was set up by my predecessor…”

Another patently false statement.  Russel Brown set that system up to calm Petitioner’s families and to prevent Petitioners from taking adverse action against the US Embassy.  When mail was being refused, in September 2004, Idema notified the US Government that he was going to invoke his Geneva Conventions rights under Article 91 (Combatant Convention) if Petitioners were denied the right to mail.  Brown then relented and agreed to allow mail between Petitioners and their family and friends.

Using the FAM to justify the illegal actions of the DOS, Brown violates one of the most fundamental rights, then misrepresents the legality of it, then misinterprets and misquotes a government “regulation.”[51]  Nowhere in the FAM does it state that mail cannot be sent through the Dulles, Virginia address. 

In fact, Brown stated that even DOS employees are not allowed to use that address for personal mail, yet Sandra Ingram, and other DOS personnel received dozens of personal magazines such as Cosmopolitan and Elle.  Even Playboy, Penthouse, and Hustler are sent through the DOS Dulles address by DOS employees, contractors, family, and friends, but Petitioners cannot even send or receive a letter to or from a dying father, a 3-year old daughter, or their parents.  Brown’s statements were, and have continually been, despicably false. 

Habeas corpus is not only the appropriate vehicle for relief, it is the perfect venue because “habeas corpus tests not only the fact, but the form of detention and the lawfulness of the restrictions placed upon personal freedom”  [emphasis added].  See: Bland v. Rodgers, D.C.D.C. 1971, 332 F.Supp. 989.

In fact, from the very moment that Respondents imposed a restriction on mail, the search and seizure of mail, or even the delay of mail, they did not open the door for habeas corpus—they kicked it down.  A district court in North Carolina ruled that “[t]o invoke federal writ of habeas corpus [a person] need not [even] be physically detained in jail or prison; it is only necessary to show that there are impediments significantly restraining his liberty to do those things free men are entitled to do.”  See: Walker v. State of N.C., D.C.D.C. 1966, 262 F.Supp. 102, affirmed 372 F.2d 129 [emphasis added].

Therefore, it does not even matter if Respondents, Brown, or anyone else states that Petitioners are in prison or in Afghanistan.  All that matters is proving that Respondents are the ones imposing the liberty restraints.  Petitioners assure this Court that the Pulacharke officials and Minister of Justice have placed NO restrictions on Petitioners’ mail. 

In fact, because of Respondents’ undue liberty restraints, the Afghan Ministry of Justice has even attempted to set up internet access for Petitioners but two problems prevented it; first, it would not work in the remote area of Pulacharke, and second, the DOS refused to allow it.[52]

Respondents’ actions are in violation of the First and Fourteenth Amendments and right to familial association.  It is well established that a parent has a “fundamental liberty interest” in “the companionship and society of his or her child” and that “interference with that liberty interest without due process of law is remediable...” Kelson v. City of Springfield, 767 F.2d 651, 654-55 (9th Cir. 1985) (citing Santosky v. Kramer, 455 U.S. 745, 753 (1982)).  “[T]his constitutional interest in familial companionship and society logically extends to protect children from unwarranted state interference with their relationships with their parents,” Smith v. City of Fontana, 818 F.2d 1411, 1418 (9th Cir. 1987) overruled on other grounds by Hodges v. De La Vina, 199 F.3d 1037 (9th Cir. 1999).  Moreover, “the First Amendment protects those relationships, including family relationships, that presuppose deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life.' ”  Board of Dir. v. Rotary Club, 481 U.S. 537, 545 (1987) (quoting Roberts v. United States Jaycees, 468 U.S. 609, 619-20 (1984)); see also: Conti v. City of Fremont, 919 F.2d 1385, 1388-89 (9th Cir. 1990).

The reckless, intentional, and deliberate acts and omissions of Respondents are a direct deprivation of Petitioners’ constitutionally protected rights under the First and Fourteenth Amendments to the association, companionship and society of one and other as mother and son in the case of Brent Bennett, father and daughter in the case of Ed Caraballo, and father and son, and husband and wife in the case of Jack Idema. 

Caraballo has now been denied all contact with his 3-year old daughter for more than three months.  Additionally, Respondents’ ban on packages,[53] such as the Christmas gifts Petitioners gave Russel Brown to mail and which were stopped by Respondent Khalilzad, not only violates the right to familial association, but raises a First Amendment issue relating to freedom of religion by and through the refusal to allow Petitioners to engage in a non-Muslim holiday tradition.

By restricting Petitioners’ mail both in, and out, Respondents are restricting free speech which encompasses the discussion of “all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period,” Thornhill v. Alabama, 310 U.S. 88, 102 (1940).[54]  Even if Respondents were to allow mail by DHL or Federal Express, the cost is so prohibitive that they are effectively denying the right to correspondence.[55]

 As to the issue of Attorney/Client privileged communication,[56]  That right is so fundamentally obvious that Petitioners need not waste the Court’s time by expounding on that subject.  But it should be noted that Russel Brown, who has apparently appointed himself to the United States Supreme Court, stated;

“…please understand and expect that ALL mail, including that which you consider to be attorney-client privilege, will be opened and examined BY CONSULAR PERSONNEL ONLY… This examination also includes CD-ROMs, so please understand that anything which is encrypted will be returned to you.”                                  [All emphasis in original]

Brown, acting on behalf of Respondents, explained that they were upset that an encrypted CD with legal documents, and evidence, was sent FROM Petitioners to their attorney, and upon information and belief, because it could not be copied by the FBI,[57] the Embassy refused to send it, nor have they ever returned it.  Upon information and belief, the CD was sent to Fort Meade, Maryland for decryption by the National Security Agency,[58] at the request of the FBI.  This brought that liberty restraint clearly into U.S. jurisdiction.

“While the language of [ß2241] would indicate that writ of habeas corpus is appropriate only when petitioner is ‘in custody,’ this section does not attempt to mark the boundaries of ‘custody’ nor in any way other than by use of that word attempt to limit the situation in which the writ can be used.” See: Hammond v. Lenfest, C.A.2 (Conn.) 1968, 398 F.2d, 705.

Additionally, by refusing to send mail to Petitioners’ attorneys, Respondents bring about a clear and actionable violation of the Sixth Amendment—the right to counsel.  The right to counsel under the Sixth Amendment attaches when adversary criminal proceedings are initiated against an individual “by way of formal charge, preliminary hearing, indictment, information, or arraignment.” United States v. Gouveia, 467 U.S. 180, 188 (1984).  Petitioners not only face continued hearings and trials in Afghanistan, but face prosecution in the United States by Respondents in order to prevent Petitioners from releasing information the FBI considers harmful to their public image, and to force Petitioners to permit the FBI to co-opt Idema’s intelligence assets inside al-Qaida.  Respondents have no legal right to interfere with the attorney/client relationship between counsel and Petitioners and prevent Petitioners’ access to counsel.[59]

The very foundation of the writ is to annihilate precisely these kinds of liberty restraints by government officials who feel they are above the law, and can toss the Bill of Rights into the dustbin of history.  No man, no one, can interfere with the attorney/client privilege; this is the very foundation of due process.

Hence, this Court has the right, and the obligation, to order the U.S. State Department to cease and desist with all mail interference, especially, attorney/client privileged mail, as well as Respondents’ flagitious interference and manipulation of Petitioners’ Afghan Judicial Appeal.

VI.            Whether Respondents’ decisions, actions, and intentionally false
statements to a foreign court were arbitrary and did not comport  
with Petitioners’ due process and constitutional rights.

In fact, the Department of State fully acknowledges the rights of American citizens incarcerated abroad, by stating:

“One of the most essential tasks of the Department of State and US Embassies and consulates abroad is to provide assistance to U.S. citizens incarcerated abroad.”

Yet on one hand they say this, and the other hand, they intentionally violate this mantra.  As an example this same DOS circular claims that;

“The State Department is committed to ensuring fair and humane treatment for American citizens imprisoned overseas.  We stand ready to assist incarcerated citizens and their families within the limits of our authority, in accordance with international law.  We can and do monitor conditions in foreign prisons and immediately protest allegations of abuse against American prisoners.  We work with prison officials to ensure treatment consistent with internally recognized standards of human rights and to ensure that Americans are afforded due process under local laws.”

Respondents did not just ignore this mission statement, they knowingly, and intentionally violated every word of it, and then went out of their way to induce a foreign government to violate their laws on behalf of the United States government.  That same DOS circular states;

“The State Department Consular services include: …providing a list of local attorneys to assist the prisoner obtain legal representation [Ingram did this after the trial was almost completed, only two on the list had a high school degree] … providing information about judicial procedures in the foreign country [Ingram refused to give Petitioners a copy of Afghan law, even though she had it in her briefcase] … arranging dietary supplements… to qualified prisoners [Ingram stated Petitioners were not qualified[60]— although she did sell vitamins for $35 a bottle after she solicited money from Petitioners’ families on her own volition[61]]… protesting mistreatment or abuse to the authorities [at one point, after Idema showed Ingram third degree burns and multiple bruises, Ingram walked out of the room, told the Taliban guards Idema complained, and then left him to be beaten again for two hours.  She also notified Taliban guards that Bennett and Idema requested an official complaint because they had not been allowed to bath in one month—that resulted in additional beatings].

Respondents have engaged in a policy of inaction and such inaction amounts to a failure to protect constitutional rights.  See: City of Canton v. Harris, 489 U.S. 378, 388 (1989); see also: Monell v. Dep’t of Soc. Servs., 436 U.S. 658, at 690-91 (1978).  Respondents’ custom and policy of inaction is the result of a “conscious,” (City of Canton, 489 U.S. at 389), and “deliberate” choice to follow a course of action . . . “made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.” Oviatt v. Pierce,954 F.2d at 1477 (9th Cir. 1992) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84 (1986) (plurality opinion)).

A deliberate indifference to a person's constitutional rights occurs when the need for more or different action, “is so obvious, and the adequacy [of the current procedure] so likely to result in the violation of constitutional rights, that the policymakers . . . can reasonably be said to have been deliberately indifferent to the need.”  (City of Canton, 489 U.S. at 390, and citing Davis v. Mason County, 927 F.2d 1473, 1482 (9th Cir.1991)).

Most recently, US officials, namely Russel Brown, US Consul, acting on behalf of Respondents, provided knowingly false information to the Afghan Court of Appeals, by stating that official US government documents, including a letter from a US Ambassador and Defense AttachÈ were fake and forged.  The US Consul and FBI had removed copies of this letter from Petitioners’ legal mail in violation of law, and then secretly met with the Court prior to Petitioners’ hearing in order to obstruct justice through knowingly false statements and to cover-up U.S. government liability and complicity.  Because the U.S. Consul lied about the letter’s authenticity, the Petitioners were not released.

Not only did this constitute a Fifth Amendment violation through the illegal search and seizure of legal mail, but raises Fourth and Sixth Amendment issues violation relating to unlawful search and seizure and right to counsel.  The Fourth Amendment provides the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated….” [emphasis added].  Russel Brown and Respondent Khalilzad have assumed the power to suggilate the United States Constitution and taken it upon themselves to determine the extent and reach of inalienable rights that have stood against oppressors for more than 200 years. 

The custody of attorney/client privileged documents, and the accompanying release of them, along with the misinformation supplied to the Afghan Court regarding their authenticity, was a clear and heinous abuse of process and obstruction of justice which resulted in the continued incarceration of Petitioners.  The Appeals Court of Afghanistan, stated, on the record, that:

“We have no trouble with you… Everyone in Afghanistan knows you
are innocent.  Only your government protests your release.”

(February 2, 2005 Statement of the Chief Religious Judge, Appeals Court of Afghanistan, Supreme Court of the Islamic State of Afghanistan [emphasis in original])

In essence, Petitioners remain in custody solely at the direction of Respondents.

VII.         Whether Respondents’ acts in obstructing mail, confiscating and
copying mail, refusing to send mail, and refusing to respond to letters
and requests by Petitioners is in fact an intended, arbitrary and
capricious obstruction for the sole purpose of denying Petitioners    
due process and other protections of the U.S. Constitution,
including subjecting Petitioners to cruel and unusual punishment.

One hundred years ago, Justice Brewer made a statement that categorizes only so well, this Court’s jurisdiction to specifically intercede in the issue of Petitioners’ communication and contact being barred by appointed public servants such as Russel Brown and Zalmay Khalilzad;

                   “I do not believe it within the power of congress to give

                   ministerial officers a final adjudication of the right to liberty…”

                   United States v. Williams, 194 U.S. 279, 295 (1904)

          Absent a court order specifically prohibiting communication and contact between Petitioners and their families, friends, and legal counsel, Respondents have no jurisdiction or legal grounds to deny Petitioners the right to send mail which all other US citizens enjoy in Afghanistan.[62]  Additionally, this blanket denial of mail, after months of allowing mail, was done for the sole purposes of petty retaliation and capricious denial of due process to arbitrarily prevent Petitioners from access to counsel to obstruct justice, obstruct Petitioners’ new trial in Afghanistan, and prevent filings such as this habeas corpus case.

          Collaterally, these acts by Respondents were intentionally designed to affect the emotional and mental state of Petitioners for the sole purpose of retaliation for Petitioners’ exercise of their due process rights, thereby creating an Eighth Amendment violation constituting cruel and unusual punishment.  Further, that this arbitrary and capricious punishment has just recently been increased to include the denial of water[63] to Petitioners thereby making an Eighth Amendment violation exceptionally clear, and actionable. 

          The Supreme Court has made the responsibility and power of a court in a habeas corpus action patently clear as far back as 1904, when one of the great justices of the time, Justice Brewer, stated, “…the courts may and must, when properly called upon by petition of habeas corpus, examine and determine the right of any individual restrained of his personal liberty, to be discharged from such restraint.” United States v. Williams, supra.  It is precisely those types of rulings that give this court the power to address the types of liberty restraints outlined in this action, which although unusual, cry for justice.

Additionally, Lieutenant General David Barno’s comments, and refusal to intercede in the al-Qaida assassination attempt on Petitioners in December 2004, was an Eighth Amendment violation constituting Failure to Protect from Harm.  Barno specifically ordered coalition forces not protect Petitioners and U.S. Embassy officials, acting on behalf of Respondent Khalilzad refused to provide assistance to Petitioners, and also refused to investigate or prosecute the surviving terrorists who had conspired and attempted to murder American citizens.  The psychological impact of these actions and inactions by Respondents also constitutes cruel and unusual punishment under the Eighth Amendment, and may also violate rights which arise under the due process clause of the Fourteenth Amendment (see: Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983)).

          These actions by Respondents, all circling Respondents’ desire to prevent and usurp Petitioners’ due process rights, are untenable, and cannot be allowed to stand.  As the Court stated in Morris v. U.S.; “Prisoners have the right to unfettered access to the courts, [ ] [t]o hold otherwise would offend the traditional notions of justice and fair play that underlie the due process clause.  Cf. Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1959).”  See: Morris v. U.S., D.C.Va. 1975, 399 F.Supp. 720.

Geneva Convention Status

Petitioners are at this time “Protected Persons” under the Geneva Conventions.  Their status is irrefutable, and has been accepted by the Central Information Bureaux after being transmitted by Red Cross attorneys.  The PROTOCOLS Additional To The Geneva Conventions of August 12, 1949, specifically Part I, Article 1, � 2 states, in part:

“Article 41 -

2.      In cases not covered by the Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.”  [Therefore, regardless of Combatant POW Status, Petitioners are guaranteed due process and legal protections of in accordance with the convention.]

Additionally, Section II of the PROTOCOLS Additional To The Geneva Conventions of August 12, 1949, Articles 43 and 44 state, in part:

“Article 43 - Armed Forces

1.      The armed forces of a Party to a conflict consist of all organized armed forces, group and units which are under a command responsible to the Part for the conduct of its subordinates, even if that party is represented by a government or an authority not recognized by an adverse party...”  [Note: This specifically applies to Jack Idema, Captain Bennett, Major Ezmerai, Lt. Rasuli Banderas, and others not originally captured because they were operating under the auspices of the United Front Military Forces]

“Article 44 - Combatants and prisoners of war         

1.       Any combatant, as defined in Article 43, who falls into the power of an adverse Party shall be a prisoner of war.”  [Emphasis added]

Geneva Convention Protocol I, Part III, ß II, Article 45, � 1 specifies that POW status is established by simply asserting the status upon capture or arrest in a conflict area.  At that point a person has POW status.[64]  After that, it is up to the high contracting party to either accept or deny status.  However, status continues until such time as a Geneva Military Tribunal meets and either awards permanent status, or rejects status.[65]

But, from the moment of assertion, a person "in custody" or "confinement" has automatic status the moment they assert that status, either verbally or in writing [emphasis added].  TASK FORCE SABER/7 personnel did that very quickly.  Within 24 hours Petitioners asserted their Geneva Convention Status, within 30 days they asserted status in writing, and 60 days later they filed a complete legal grounds brief with the Central Information Bureaux in Switzerland, and copied the Red Cross.[66]

The Geneva Convention Relative To The Treatment Of Prisoners Of War of August 12, 1949, Part I, Article 4, states:

A.  Prisoners of war, in the sense of the present Convention, are persons belonging to
one of the following categories, who have fallen into the power of the enemy:

1.      Members of the armed forces of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

2.      Members [This and #1 apply to Jack Idema, Brent Bennett, and the other Americans not originally captured/arrested by the Pro-Taliban forces] of other militias and members of other volunteer corps, including those of organized resistance movements, belong to a Party to the conflict and operation in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movement[67] fulfill the following conditions:

a.       that of being commanded by a person responsible for his subordinates;

b.      that of having a fixed distinctive sign recognizable at a distance;

c.       that of carrying arms openly;

d.      that of conducting their operations in accordance with the laws & customs of war.

3.   Members of regular armed forces who profess allegiance to a government or an authority not recognized by the detaining power [Major Amin, Lt. Banderas- UFMF (The Northern Alliance)].[68]

4.      Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents [Ed Caraballo], supply contractors... [ ] provided that they  have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

5.      [Refers to Aircrews]

6.      [Refers to inhabitants, who upon invasion, take up arms] 

Because Petitioners claimed protected status, they have protected status, and only a Geneva military tribunal can terminate that status.  Geneva Convention Protocol I, Part III, ß II, Article 45, � 1, which states;

“A person who takes part in hostilities and falls into the power of an adverse Party shall be presumed to be a prisoner of war, and therefore shall be protected by the Third Convention, if he claims the status of prisoner of war, or he appears to be entitled to such status, or if the Party on which he depends claims such status on his behalf by notification to the detaining Power or to the Protecting power.  Should any doubt arise as to whether any such person is entitled to the status of prisoner of war, he SHALL continue to have such status and, therefore, to be protected by the Third Convention and this Protocol until such time as his status has been determined by a competent tribunal.”  [Emphasis added]  

Additionally, on the right of Protected Person to mail; all of the interferences with Petitioners’ legal mail and case preparation are illegal under Article 113 (see: Part III, Status and Treatment of Protected Persons, Section IV, Chapter VIII) of the Geneva Conventions of August 12, 1949 and specifically under Article 115, which states, in part;

“In all cases where an internee is a party to proceedings in any court… the court [shall] be informed of his detention and shall, within legal limits, ensure that ALL necessary steps are taken to prevent him from being in any way prejudiced, by reason of his internment, as regards the preparation and conduct of his case or as regards the execution of any judgment of the court.”  [Emphasis added]

Finally, certain reporters have called TASK FORCE SABER/7 personnel "mercenaries."  It is clear that they are not, nor ever were mercenaries.  The Geneva Convention Protocols Article clearly define the meaning of “mercenaries” by stating:

1.      A mercenary is any person who:

a.      is specially recruited locally or abroad in order to fight in an armed conflict;

b.      does, in fact, take a direct part in the hostilities;

c.      is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensations substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;

d.      is neither a national of a Party to the conflict nor a resident of a territory controlled by a Party to the conflict.

e.      is not a member of the armed forces of a Party to the conflict; and

f.       has not been sent by a State which is not a Party to the Conflict on official duty as a member of its armed forces.

All TASK FORCE SABER/7 personnel are COMPLETELY excluded from this category on every issue, and any argument or characterization of them as mercenaries or bounty hunters is completely foreclosed by law.[69]  All TASK FORCE SABER/7 officers were officially assigned to the Northern Alliance[70] controlled Ministry of Defense.  Therefore, these types of hyperbolic press reports should not affect this Court’s opinions.

          Finally, as the result of their protected status, Petitioners are not just entitled to the unassailable Constitutional protections afforded to all American citizens, but are guaranteed further rights under the various Geneva Conventions outlined herein.  In summation, on all fronts, the Respondents lose.

Next Friend Status

“The practice of next friend applying for a writ is ancient and full accepted.”  United States ex rel. Bryant v. Houston, 273 F.915, 916 (2d Cir. 1921) (citing cases).

In the instant case, Jack Idema has filed the petition through counsel.  Bennett, Caraballo, and Rasuli, have filed as Petitioners through their next friend, Jack Idema, in much the same way, that a family member would retain counsel to bring a next friend application for writ on behalf the party whose liberty interests are being restrained.

Further, the courts have repeated found that a co-defendant would qualify as a next friend, and would not be an “intruder or uninvited meddler, styling themselves as a next friend,” and have permitted “next friend” petitions by co-defendants who were “clearly operating…. in the best interests” of the person on whose behalf the petition was filed.  Morris v. United States, 399 F. Supp. 720, 722 (E.D.Va. 1975).  The court’s concern, regarding “the relationship and interest of the would-be ‘next friend’ merely calls for a determination that the third-party petitioner is likely to safeguard and advance the interests of the person on whose behalf the petition is brought.  Weber v. Garza, 570 F.2d 511, 513-514 (5th Cir. 1978).

The courts have applied a virtually “per se” rule favoring next friend petitions by parents, spouses, siblings, and even sibling-in-laws, see: In re Ferrents, 8 F.Cas 1158 (S.D.N.Y. 1869) No. 4,746.  In fact, the courts have permitted fellow inmates (United States ex rel. Sero v. Preiser, 506 F.2d 1115, 1125 &n.8 (2d Cir. 1974)), co-defendants (Morris v. United States, supra), and even apparent strangers (Collins v. Traeger, 27 F.2d 842, 843 (9th Cir. 1928)), to proceed in a prisoner’s behalf, as long as they are pursuing the best interests of the prisoner (Morris v. United States, supra).

          Finally, as the courts have previously held, “[i]n situations in which the prisoner either authorizes the third-party to proceed in [their] behalf or gives no indication of opposing the suit, the courts have recognized a number of reasons why a third-party is better placed to proceed that the prisoner.”  See: United States ex rel. Bryant v. Houston, 273 F.915, 916 (2d Cir. 1921).  The court stated; “[there are] many… circumstances under which it may not be… feasible that the detained person file a habeas corpus petition on [their] own behalf.”  Including, as one court found—susceptibility to duress or other conditions, including the threat of inhumane prison conditions, or retaliation by officials…”  See also: Hacklin v. State, 102 Ariz. 218, 219, 427 P.2d 910, 911 (1967).

          In the instant case, these concerns are all valid, and Idema has already received the explicit permission to represent the three other Petitioners in the Afghan Court of Appeals, and has been representing all Petitioners since November 2004, including the three related parties that were freed by the Afghan Appeals Court on December 17, 2004.

The validity of a next friend filing and the bona fides of the third party’s interest in bringing the action are clearly established when a real party in interest has authorized the third party to proceed in their behalf, such as is the case here.[71]  Therefore, as co-petitioners, his next friend status is warranted and authorized.

Exhaustion of Administrative Remedies

The exhaustion of administrative remedies is not applicable here.  There are no administrative remedies available to Petitioners.  Even if there were, for eight months Respondents have refused to answer FOIA requests, letters, and even requests for medical care.  Further, as the result of FOIA requests and administrative complaint letters, Respondents terminated all mail privileges.  In other words, Respondents do not just ignore Petitioners’ complaints regarding deprivations of constitutional rights, Respondents retaliate with increased deprivations and further due process and other violations.

When Petitioners advised Respondent Khalilzad that they would file a suit regarding the right to mail, Respondent retaliated by terminating Petitioners’ drinking water.  The denial of the most basic necessity of life, water, is clear and convincing evidence that Respondents will retaliate each time Petitioners attempt any administrative action.  Lastly, no administrative remedy procedure exists in DOS cases such as this.  It is well settled that exhaustion of administrative remedies is not jurisdictional, and the courts have long recognized that the exhaustion requirement should be excused where the efforts would be futile or delayed so as to render the action moot.

Conclusion

These Petitioners will continue to suffer each and every day, under threat of continued assassination attempts by al-Qaida terrorists and denial of all due process until this Court grants the relief requested.  Petitioners have shown compelling and compassionate reason why this Court should immediately grant the Petitioners’ requests.  This is fully supported by the Court’s decision in Peyton;  “… a principle aim of the writ is to provide for swift judicial review of alleged unlawful restrains on [any] liberty,”  Peyton v. Rowe, 391 U.S. 54 (1968), ruling that “…the court shall… dispose of the matter as law and justice require,” [emphasis added] see also: 28 U.S.C ß2243.

Petitioners respectfully request this Honorable Court take into consideration the constant real threat of death which Petitioners are surviving under (there have already been four officers killed and four critically wounded as the result of al-Qaida attacks on Petitioners.  As the Supreme Court has previously pointed out regarding the priority of habeas corpus actions, “… our decision today affects all procedural hurdles to the achievement of swift and imperative justice,” Fay v. Noia, 372 U.S. 391, 435 (1963).

In closing, because of the length and scope of this ß2241, the comment of Theodore Sorenson (Decision Making in the White House, page 8, (1962) is an apt one;

“If some of my conclusions seem obvious I include them only

because of the dangers inherent in omitting what seems to be obvious.” 

As the Supreme Court so eloquently stated more than forty years ago; “For when society acts to deprive one of its members of his life, liberty, or property, it takes it’s most awesome steps.”  See: Coppedge v. United States, 369 U.S. 438, 449 (1962) [emphasis added].

          Respondents have defenestrated the United States Constitution and taken actions which are clearly in opposition to the very basis upon which this country is founded.  The purpose of the writ is to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints upon ones liberty.  Bland v. Rodgers, supra.  This habeas corpus action is not only warranted and appropriate, but necessary.

Prayer For Relief

WHEREFORE, Petitioners pray for an ORDER as set forth below:

1) barring the United States government from intercepting, delaying, obstructing, or refusing mail between the petitioners and their attorneys, family, and friends;

2) ordering the Department of Justice  and Federal Bureau of Investigation to return directly to Petitioners all property and exculpatory evidence confiscated and seized illegally from Petitioners and without jurisdiction;

3) ordering Respondents to cease all communication, intended to obstruct justice, with the government of Afghanistan related to the Petitioners’ criminal case in Afghanistan;

4) ordering Respondents, and/or their agents, from conducting continued illegal searches and seizures;

5) ordering Respondents to acknowledge protected status and abide by the Geneva Conventions and other protections to which Petitioners are entitled to;

6) removing all restrictions on liberty which Respondents have imposed upon Petitioners through their agents, through the use of rendition, and;

7) ordering Respondents to cease and desist their privacy violations and release of personal, private, and privileged information to the public and to the press. 

8) Petitioners Pray for additional Relief as set forth below;

a.        Granting Petitioners immediate POW status with all rights and privileges accorded, for those Petitioners still in custody by Respondents.

b.        Imposing sanctions against Respondents for repeated, intentional, and grave violations of the Geneva Conventions, international and U.S. laws and treaties.

c.        An award of attorney fees.

d.        Other such relief as just and proper.

                                This 17th Day of March 2005.

                                                                                      _________S/__________
                                                                                      John Edward Tiffany, Attorney
                                                                                      For Petitioners
                                                                                      PO Box 190
                                                                                      55 Washington Street
                                                                                      Bloomfield, NJ  07003
                                                                                      Ph:   973/566-9300
                                                                                      Fax: 973/566-0007

Verifications of Petitioners

Pulacharke Prison, Kabul, Islamic Republic of Afghanistan: ss.

1. I am a Petitioner in the ß2241 Case of Idema, et al., v. Rice, et al., SDNY,
2. I declare under the penalties of perjury as follows, but expressly not limited thereto:
3. The facts stated in Petitioners Application and Motion For a Writ of habeas Corpus under 28 U.S.C. ß2241, are personally known to me and, if called as a witness, I could testify competently thereto, except to those facts stated under information and belief, which I believe to be true.
4. Further Declarant sayeth not.

Executed under the penalties of perjury, in accordance with 17 U.S.C. ß1746 on this 7th Day of March 2005, in the Islamic State of Afghanistan.

_________S/___________
J. K. Idema, Declarant/Petitioner 

Pulacharke Prison, Kabul, Islamic Republic of Afghanistan: ss.

1. I am a Petitioner in the ß2241 Case of Idema, et al., v. Rice, et al., SDNY,
2. I declare under the penalties of perjury as follows, but expressly not limited thereto:
3. The facts stated in Petitioners Application and Motion For a Writ of habeas Corpus under 28 U.S.C. ß2241, are personally known to me and, if called as a witness, I could testify competently thereto, except to those facts stated under information and belief, which I believe to be true.
4. Further Declarant sayeth not.

Executed under the penalties of perjury, in accordance with 17 U.S.C. ß1746 on this 7th Day of March 2005, in the Islamic State of Afghanistan.

_________S/____________
Brent Bennett, Declarant/Petitioner

Pulacharke Prison, Kabul, Islamic Republic of Afghanistan: ss.

1. I am a Petitioner in the ß2241 Case of Idema, et al., v. Rice, et al., SDNY,
2. I declare under the penalties of perjury as follows, but expressly not limited thereto:
3. The facts stated in Petitioners Application and Motion For a Writ of habeas Corpus under 28 U.S.C. ß2241, are personally known to me and, if called as a witness, I could testify competently thereto, except to those facts stated under information and belief, which I believe to be true.
4. Further Declarant sayeth not.

Executed under the penalties of perjury, in accordance with 17 U.S.C. ß1746 on this 7th Day of March 2005, in the Islamic State of Afghanistan.

_________S/___________
Ed Caraballo, Declarant/Petitioner

Pulacharke Prison, Kabul, Islamic Republic of Afghanistan: ss.

1. I am a Petitioner in the ß2241 Case of Idema, et al., v. Rice, et al., SDNY,
2. I declare under the penalties of perjury as follows, but expressly not limited thereto:
3. The facts stated in Petitioners Application and Motion For a Writ of habeas Corpus under 28 U.S.C. ß2241, are personally known to me and, if called as a witness, I could testify competently thereto, except to those facts stated under information and belief, which I believe to be true.
4. Further Declarant sayeth not.

Executed under the penalties of perjury, in accordance with 17 U.S.C. ß1746 on this 7th Day of March 2005, in the Islamic State of Afghanistan.

_________S/___________
Zorro Rasuli Banderas, Declarant/Petitioner

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