UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Plaintiffs, DECLARATION OF JONATHAN HAFETZ v. 09 Civ. 8071 (BSJ) (FM) DEPARTMENT OF DEFENSE; CENTRAL INTELLIGENCE AGENCY; DEPARTMENT OF ECF Case STATE; DEPARTMENT OF JUSTICE, Defendants. DECLARATION OF JONATHAN HAFETZ I, Jonathan Hafetz, under penalty of perjury declare as follows: 1. I represent plaintiffs the American Civil Liberties Union and the American Civil Liberties Union Foundation in this action concerning a FOIA request that seeks from the Department of Defense (“DOD”) and other agencies records about, among other things, prisoners at Bagram Air Base (“Bagram”) in Afghanistan. 2. I submit this declaration in support of plaintiffs’ motion for partial summary judgment and in opposition to the DOD’s motion for partial summary judgment. The purpose of this declaration is to bring the Court’s attention to official government disclosures, as well as information in the public domain, concerning the citizenship, length of detention, and date, place, and circumstances of capture of detainees held at the Bagram and similarly-situated suspected terrorists and combatants in U.S. military custody at the U.S. Naval Base at Guantánamo Bay, Cuba (“Guantánamo”). 1 Publicly-Available Information about Detainees at Bagram Prison 3. On April 23, 2009, plaintiffs submitted a Freedom of Information Act (“FOIA”) request to DOD, the Central Intelligence Agency, the Department of Justice and the State Department seeking ten categories of records about Bagram, including records pertaining to detainees’ names, citizenships, length of detention, where they were captured, and the general circumstances of their capture. Attached hereto as Exhibit A is a true and correct copy of the FOIA request. 4. On January 15, 2010, in response to this litigation, the DOD released a document that lists the name and partial identification number (“SEQ” number) of every person who was detained at Bagram on September 22, 2009. All other information in the document is redacted. Attached hereto as Exhibit B is a true and correct copy of the document DOD released to plaintiffs on January 15, 2010. 5. In response to habeas corpus petitions filed in the District Court for the District of Columbia, the government has submitted publicly-available declarations by military officials regarding four people held at Bagram: Fadi al Maqaleh, Amin al Bakri, Redha Najar, and Haji Wazir. These declarations publicly confirm the name, citizenship, and/or location of capture of each detainee. To plaintiffs’ knowledge, these detainees remain imprisoned at Bagram. a. Attached hereto as Exhibit C is a true and correct copy of the Declaration of Colonel Charles A. Tennison ¶¶ 19-20, Maqaleh v. Gates, 604 F. Supp. 2d 205 (D.D.C. 2009) (No. 06 Civ. 1669) (stating that Bagram detainee Fadi al Maqaleh is a Yemeni citizen and that he was captured in Zabul, Afghanistan). b. Attached hereto as Exhibit D is a true and correct copy of the Declaration of Colonel Charles A. Tennison ¶ 19, Bakri v. Obama, 604 F. Supp. 2d 205 (D.D.C. 2009) (No. 08 Civ.1307 ) (stating that Bagram detainee Amin al Bakri is a Yemeni citizen). 2 c. Attached hereto as Exhibit E is a true and correct copy of the Declaration of Colonel Joe E. Etheridge ¶¶ 19-20, Najar v. Gates, 604 F. Supp. 2d 205 (D.D.C. 2009) (No. 08 Civ. 2143) (stating that Bagram detainee Redha al-Najar is a Tunisian citizen and that he was captured in Karachi, Pakistan). d. Attached hereto as Exhibit F is a true and correct copy of the Declaration of Colonel Charles A. Tennison ¶¶ 19-20 Wazir v. Gates, 604 F. Supp. 2d 205 (D.D.C. 2009) (No. 06 Civ. 1697) (stating that Bagram detainee Haji Wazir is an Afghan citizen and that he was captured in Karachi, Pakistan). 6. A Defense Department official recently stated publicly that approximately 30 detainees at Bagram are not citizens of Afghanstan. Attached hereto as Exhibit G is a true and correct copy of James Bays, Notes from Bagram Prison, Aljazeera.net, Nov. 16, 2009 (quoting Brigadier General Mark Martin, the Acting Commander of the Bagram detention facility stating that “about 30” of the detainees detained at Bagram were non-Afghans and that the rest of the approximately 700 detainees were Afghans). 7. DOD has publicly disclosed information through press releases and other means regarding the date, location, and circumstances in which individuals have been captured in Afghanistan. Some of these captured individuals are currently detained at Bagram, as evidenced by the presence of their names on Exhibit B, the list of Bagram detainees disclosed by the DOD. a. Attached hereto as Exhibit H is a true and correct copy of Press Release, Bagram Media Center, Combined Joint Task Force – 82, Detained Zabul Province Militant Identified (Apr. 30, 2008) (stating “Hajji Abdul Majid Khan was apprehended during [an] operation in Qalat Distriction [and] was detained March 3 during an operation targeting him”).1 1 Available at: http://www.cjtf82.com/press-releases-mainmenu-326/605-detained-zabul- province-militant-identified.html. 3 Mr. Khan’s name appears in Exhibit B, the list of Bagram detainees disclosed by the DOD, under “seq” number 3510. b. Attached hereto as Exhibit I is a true and correct copy of Press Release, Bagram Media Center, Combined Joint Task Force – 82, Key Militants Removed from Fight (Nov. 21, 2009) (describing the location, date and circumstances of capture of dozens of individuals captured or killed between August 20 and October 17, 2009).2 c. Attached hereto as Exhibit J is a true and correct copy of Press Release, Headquarters U.S. Forces Afghanistan, Combined Joint Task Force – 82, Afghan National Commando Forces Detain Insurgent Leader and Two Militants (Dec. 16, 2008) (stating “Afghan National Army Commandos, assisted by Coalition forces, detained an insurgent leader, Abdul Wahid, and two militants, Raz Gul and Haider, in Behsood district, Nangarhar province, Dec. 17. Afghan National Army Commandos conducted a raid, after receiving credible information, on a compound serving as a transit point for various Anti-Afghan Forces (AAF) facilitators moving throughout Nangarhar province. During the search of the compound, Afghan Commandos detained the three militants, Abdul Wahid, Raz Gul and Haider.”).3 Mr. Wahid’s name appears in Exhibit B, the list of Bagram detainees disclosed by the DOD, under “seq” number 3901. d. Attached hereto as Exhibit K is a true and correct copy of Press Release, Headquarters U.S. Forces Afghanistan, Combined Joint Task Force – 82, Afghan National Commandos, Coalition Forces Capture Two Taliban Commanders and One Militant (Dec. 16, 2008) (stating “Afghan National Commandos, assisted by Coalition forces, detained Taliban commanders Abdul Aziz and Abdul Rahman as well as one militant, Ishmail, during a security 2 Available at: http://www.cjtf82.com/regional-command-east-news-mainmenu-401/2074-key- militants-removed-from-fight.html. 3 Available at: http://www.cjtf82.com/press-releases-mainmenu-326/1495-afghan-national- commandos-coalition-forces-detain-an-insurgent-leader-and-two-militants.html. 4 patrol in Jalalabad City, Nangahar (Nangarhar) province, Dec. 15.”).4 Mr. Aziz and Mr. Rahman’s names appear in Exhibit B, the list of Bagram detainees disclosed by the DOD, under “seq” numbers 3899 and 3900. e. Attached hereto as Exhibit L is a true and correct copy of Press Release, Headquarters U.S. Forces Afghanistan, Combined Joint Task Force – 82, ANSF, Coalition Forces Detain Taliban Leader in Khowst Province (Nov. 17, 2008) (“Afghan National Security Forces and Coalition forces detained a Taliban leader [Laeek Shah] in Wurzi, Khowst province Nov. 9 . during a patrol without incident.”).5 Mr. Shah’s name appears in Exhibit B, the list of Bagram detainees disclosed by the DOD, under “seq” number 3848. f. Attached hereto as Exhibit M is a true and correct copy of Press Release, Bagram Media Center, Combined Joint Task Force – 82, NDS, Coalition Forces Capture a Taliban Commander, Three Others in Kandahar (Oct. 7, 2008) (stating “Members of the National Directorate of Security and Coalition forces captured a Taliban commander and three additional persons of interest in Kandahar, Oct. 5. Hafiz Abdul Khaliq, a known Taliban commander, and three militants were located through intelligence reports in known safehouses in Panjwayi District.”).6 Mr. Khaliq’s name appears in Exhibit B, the list of Bagram detainees disclosed by the DOD, under “seq” number 3629. g. Attached hereto as Exhibit N is a true and correct copy of Afghan Forces Inflict Losses, Detain Local Taliban Leader, Am. Forces Press Service, Mar. 5, 2008 (stating “Afghan and coalition forces positively identified a Taliban leader detained during a Feb. 25 4 Available at: http://www.cjtf82.com/press-releases-mainmenu-326/1494-afghan-national- commandos-coalition-forces-capture-two-taliban-commanders-and-one-militant.html. 5 Available at: http://www.cjtf82.com/press-releases-mainmenu-326/1402-ansf-coalition-forces- detain-taliban-leader-in-khowst-province.html. 6 Available at: http://www.cjtf82.com/press-releases-mainmenu-326/1331-nds-coalition-forces- capture-a-taliban-commander-three-others-in-kandahar-.html. 5 joint operation in Ghazni province as Mullah Shabir.”).7 Mr. Shabir’s name appears in Exhibit B, the list of Bagram detainees disclosed by the DOD, under “seq” number 3468. h. Attached hereto as Exhibit O is a true and correct copy of Detained Afghan Militants Identified as Haqanni Network Members, Asia World News, Apr. 25, 2008 (stating “Baitullah and Mahajir Ziarahman were apprehended during an operation in Sabari district targeting the Haqanni network and improvised explosive device (IED) cells, said a military statement issued from the US base in Bagram.”).8 Mahajir Ziarahman’s name appears in Exhibit B, the list of Bagram detainees disclosed by the DOD, under “seq” number 3580.