Jabbarov v. Bush ( 2010 )

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
ABD AL RAHMAN ABDU ABU AL )
GHAYTH SULAYMAN, )
)
Petitioner, )
)
v. ) Civil Action No. 05-2386 (RBW)
)
BARACK H. OBAMA, )
President of the United States, et aI., )
)
Respondents. )
-------------)
MEMORANDUM OPINION
Currently before the Court is the petition of Abd Al Rahman Abdu Abu Al Ghayth
Sulayman (ISN 223)1 for a writ of habeas corpus, arguing that he should be released from the
United States detention facility in Guantanamo Bay, Cuba, because his detention is not
authorized under the Authorization for the Use of Military Force (the "AUMF"), Pub. L. No.
107-40, § 2(a), 115 Stat. 224 (2001). Petition for a Writ of Habeas Corpus ~ 344. Not
surprisingly, the government opposes the petitioner's habeas petition on the grounds that he was
"part of' either the Taliban or al-Qaeda, thereby rendering him detainable under the AUMF.
Hearing Transcript ("Hr'g Tr.") at 11:4-5, May 3,2010. After carefully considering the evidence
presented by both parties and the arguments of counsel during the merits hearing that
commenced on May 3, 20 10, as well as the various documents that have been filed by the parties
I "ISN" is the acronym for "Internment Serial Number." AI-Harbi v. Obama, Civil Action No. 05-2479 (HHK),
2010 WL 2398883, at ·3 n.2 (D. D.C. May 13,2010). Each of the detainees currently housed in Guantanamo Bay
has been assigned an ISN. [d.
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in this matter and the exhibits attached to these filings,2 the Court concludes for the following
reasons that the petitioner's petition for a writ of habeas corpus must be denied.
I. Background
The following facts are not in dispute. The petitioner is a Yemeni national who grew up
and attended school in Taiz, Yemen. Pre-Trial Stmt. at 6. He completed high school at some
point in either 1999 or 2000. See Hr' g Tr. at 284:21-23 (argument by the government that the
petitioner graduated from high school in 1999); id. at 481 :3-9 (testimony by the petitioner that he
graduated from high school in the "sixth ... or seventh month" in 2000). While living in
Yemen, the petitioner "did not have a full-time occupation"; rather, he "assisted his father in his
father's carpentry business." Pre-Trial Stmt. at 6.
Although the exact date is contested, the petitioner was approached at a mosque in Taiz
by an individual named Abu Khulud, who suggested that the petitioner travel to Afghanistan
where he could own a home and possibly find a wife as well. Hr'g Tr. at 293: 15-20, 485: 16­
486:7. The petitioner and Khulud met again on at least one additional occasion, id. 294:3-8,
547: 1-4, and ultimately the petitioner agreed with Khulud' s suggestion that he travel to
Afghanistan, id. at 294:5-8, 546:3-5. Khulud then provided the petitioner with a passport, an
airplane ticket to Afghanistan, and $100.00. Id. at 297:1-3,546:11-21. At some point shortly
after his meetings with Khulud, the petitioner boarded a plane and traveled to Karachi, Pakistan.
Pre-Trial Stmt. at 7.
2 In addition to the evidence and arguments presented by the parties at the merits hearing, the Court considered the
following documents in reaching its decision: (1) the government's Factual Return; (2) the Respondents' Proposed
Factual Findings and Evidence on Which They Intend to Rely In Making Their Case-in-Chief for the Lawful
Detention of Petitioner Sulayman (ISN 223); (3) the petitioner's Traverse; and 4) the parties' Joint Pre-Trial
Statement (the "Pre-Trial Stm!.").
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Once he arrived in Karachi, the petitioner took a bus to Quetta, Pakistan, id., where he
visited the Daftur guesthouse for an hour, Hr'g Tr. at 335:1-6, 352:13-18. From there, the
petitioner left for Kandahar, Afghanistan, Pre-Trial Stmt. at 7, where he stayed at a guesthouse
that both the petitioner and the government have referred to as an "Arab house." Hr'g Tr. at
339:6-9,491: 17. After staying at this house for at least seven days, id. at 339:6-9, 491 :25-492:2,
the petitioner left Kandahar and made his way to Kabul, Afghanistan, at which point he stayed at
a guesthouse owned by a man named Hamza Al Qa'eity, Hr'g Tr. at 343:1-2, 494:15-23; Pre­
Trial Stmt. at 7. The petitioner stayed at Al Qa'eity's guesthouse for at least seven months, Hr'g
TI. at 350:6-7, 495: 18-19, without being required to pay for his housing, id. 549:25-550:3. He
was also provided food at the home without cost. Id. at 549:23-25.
While staying at the Al Qa'eity guesthouse, the petitioner visited a location
approximately twenty kilometers north of Kabul that he described as a "recreational place." Id.
at 499:13-23; cf. id. at 391:11-15. While in this area, the petitioner fired a "PK" machine gun
belonging to an individual named Farhan. Hr'g Tr. at 503:13-20 (the petitioner testified that he
saw a weapon called a "PK" that belonged to an "individual named Farhan," which the petitioner
fired once); cf. id. at 392: I0-16 (assertion by the government that the petitioner was "trained" on
a "PK machine gun" by a Pakistani named Farhan). After some time at this location, the
petitioner returned back to the Al Qa'eity home. Id. at 506:23-507:17.
The petitioner remained at the Al Qa'eity guesthouse until after the United States was
attacked on September II, 200 I, at which point the petitioner left the house and returned to the
area north of Kabul where he had been earlier. Pre-Trial Stmt. at 7; see also Hr'g Tr. 508:8-23.
After several days, the petitioner made his way towards Jalalabad, Afghanistan, and ultimately
into the mountains outside of Jalalabad. Hr'g Tr. at 407:24-408-2,509:11-510:23. Eventually,
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the petitioner entered Pakistan, and in approximately late December 200 1, he was taken into
custody by Pakistani authorities. Pre-Trial Stmt. at 7. Pakistani law enforcement eventually
transferred custody of the petitioner to the United States military, who then transferred the
petitioner to Guantanamo Bay in February 2002. Id.
Along with numerous other detainees, the petitioner filed the petition now before the
Court on December 21, 2005, seeking release from Guantanamo Bay on the grounds that, inter
alia, the United States government violated his due process rights under the United States
Constitution and the Geneva Conventions. See Petition for Writ of Habeas Corpus ~'l 378, 382,
386. Having "serious questions concerning whether this Court retain [ed] jurisdiction" as a result
of Congress's attempt to strip this Court ofjurisdiction in passing the Military Commissions Act
of 2006, Pub. L. No. 109-336, 120 Stat. 2600 (codified in part at 28 U.S.C. § 2241) (the "2006
MCA"), the Court stayed these cases until the question of jurisdiction was resolved on appellate
review. Order, Jabbarov v. Bush, Civil Action No. 05-2386 (RBW) at 1 (D.D.C. Jan. 31, 2007).
The Court later lifted the stay after the Supreme Court issued its opinion in Boumediene v. Bush,
553 U.S. 723, 128 S. Ct. 2229 (2008), in which the Supreme Court held that non-United States
citizens detained at Guantanamo Bay are constitutionally entitled to seek habeas relief and that
the 2006 MCA's jurisdiction-stripping provision was "an unconstitutional suspension of the
writ." Id. at 2274.
In light of the Boumediene decision, the members of this Court on July 1, 2008,
"resolved by Executive Session to designate" the Honorable Thomas F. Hogan of this Court "to
coordinate and manage proceedings in all cases involving petitioners presently detained in
Guantanamo Bay, Cuba." Order, In re Guantanamo Bay Detainee Litigation, Miscellaneous No.
08-442 (TFH) at 1 (D.D.C. July 2, 2008). After carefully considering the positions of the various
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parties in these cases, Judge Hogan issued a case management order on November 6, 2008,
which laid out the procedural and substantive contours for resolving these habeas petitions. 3
Pursuant to this order, the government then filed its Factual Return in this case on November 25,
2008, in which it produced the evidence that it seeks to rely upon in this proceeding to justify the
petitioner's detention. In tum, the petitioner responded to the evidence proffered by the
government in his Traverse, which he filed on July 23, 2009. As further requested by this
member of the Court in the June 12, 2009 supplement to the case management order, the
government filed its Proposed Factual Findings and Sources of Evidence on January 8, 2010.
With all discovery having been completed and the matter having been fully briefed, the Court
commenced a hearing on May 3, 2010, to consider the merits of the petitioner's petition for a
writ of habeas corpus.
II. Standard of Review
The ultimate question to be resolved in regards to the petitioner's habeas petition is
whether the government's detention of the petitioner is lawful under the AUMF. While the
Supreme Court in Boumediene held that individuals detained by the government at Guantanamo
Bay "were entitled to the privilege of habeas corpus to challenge the legality of their detention,"
Boumediene, 128 S. Ct. at 2262, it also concluded that "[t]he extent of the showing required of
the Government in these cases [was] a matter [left] to be determined" in future proceedings," id.
at 2271.
This member of the Court attempted to resolve this threshold legal question in Gherebi v.
Obama, 609 F. Supp. 2d 43 (D.D.C. 2009). After analyzing the international laws of war, this
member of the Court concluded that "the President may detain anyone who is a member of the
3 Judge Hogan subsequently amended his case management order on December 16, 2008, and this member of the
Court issued several amendments to the order on December 19,2008, February 19,2009, and June 12,2009.
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'armed forces' of an organization that he determines planned, authorized, committed, or aided"
the September 11, 2001 attacks, "any member of the' armed forces' of an organization harboring
the members of such an organization," id. at 67 (citation and internal quotation marks omitted),
and any civilian who "take[s] a direct part in the hostilities," id. at 69. The Court acknowledged
the difficulty in discerning membership in the "armed forces" of the enemy, as "the
organizations that the President is authorized to target under the AUMF do not . . . issue
membership cards or uniforms." Id. at 68 (citation and internal quotation marks omitted).
Nonetheless, the Court noted that one "distinguishing characteristic[] of an 'armed force' is the
notion that the group in question be organized ... under a command responsible ... for the
conduct of its subordinates." Id. (citation and intemal quotation marks omitted). Thus, for the
government to justify the detention of a detainee under the AUMF, the Court held that the
government must establish more than "mere sympathy" for an enemy organization on the part of
the detainee; rather, the government must prove that the detainee has "some sort of 'structured'
role in the 'hierarchy' of the enemy force," id. (internal quotation marks omitted), or that he
directly participated in the hostilities, id. at 68-69.
Gherebi was substantially rejected sub silento, however, by the District of Columbia
Circuit in AI-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010) ("Al-Bihani I"). In AI-Bihani I,
the petitioner relied on the international laws of war in arguing that his detention was unlawful
because he was essentially a "civilian contractor," and, pursuant to the laws of war, he could not
be detained because anyone not "belonging to an official state military is a civilian, and civilians
... must commit a direct hostile act, such as firing a weapon in combat, before they can be
lawfully detained." Id. at 871. The circuit rejected this argument, reasoning that "[t]here is no
indication" from Congress that it "intended the international laws of war to act as extra-textual
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limiting principles for the President's war powers under the AUMF." Id. Rather, the circuit
concluded that the appropriate sources for determining the scope of the President's authority
under the AUMF to detain an individual "are the sources courts always look to: the text of
relevant statutes and controlling domestic case law." Id. at 871-72.
Turning to those sources, the District of Columbia Circuit concluded that "[t]he statutes
authorizing the use of force and detention not only grant the government power to craft a
workable legal standard to identify individuals it can detain, but also cabin the application of
these definitions." Id. at 872. The circuit then turned to the 2006 MCA, as well as the Military
Commissions Act of2009, sec. 1802, §§ 948a(7), 948b(a), 948c, Pub. L. No. 111-84, tit. XVIII,
123 Stat. 2190, 2575-76 (the "2009 MCA"), both of which it found "illuminating in th[e] case
[before it] because the government's detention authority logically covers a category of persons
no narrower than is covered by its military commission authority." Id. As the circuit observed,
"[t]he 2006 MCA authorized the trial of an individual 'who engaged in hostilities or who has
purposefully and materially supported hostilities against the United States or its co-belligerents
who is not a lawfully enemy combatant (including a person who is part of the Taliban, al Qaeda,
or associated forces),'" id. (quoting 2006 MCA § 948(l)(A)(i)), while the 2009 MCA authorized
the trial of "unprivileged enemy combatants," which included those persons who "purposefully
and materially supported hostilities against the United States or its coalition partners," id.
(quoting 2009 MCA §§ 948a(7), 948b(a), 948(c)). Applying these definitions to the appellant in
that case, the circuit upheld the lower court's denial of the writ of habeas corpus, concluding that
the appellant, who admitted that he "accompan[ied] the brigade on the battlefield, carr[ied] a
brigade-issued weapon, cook[ed] for the unit, and retreat[ed] and surrender[ed] under brigade
orders," fell within the scope of individuals detainable under the AUMF as illuminated by the
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2006 and 2009 versions of the MCA. rd. at 872-73. Notably, the circuit also observed that even
if it were to assume that the petitioner was a "civilian contractor," his act of providing
"traditional food operations essential to a fighting force and the carrying of arms," was sufficient
to meet the "'purposefully and materially supported' language of both versions of the MCA" Id.
Subsequent decisions of the District of Columbia Circuit have also provided guidance on
the showing necessary for the government to justify detention under the AUMF. In Awad v.
Obama, - F.3d -, -, 2010 WL 2292400, at *10 (D.C. Cir. June 12, 2010), the circuit
rejected the appellant's argument that "there must be a specific factual finding that he was part of
the 'command structure' of al Qaeda," noting that "[n]owhere in the AUMF is there a mention of
command structure." While proof that "a detainee was part of the 'command structure' of al
Qaeda [would] satisfly] the requirement to show that he was 'part of' al Qaeda," the circuit
concluded that the government could also rely on other "ways ... to prove that a detainee is 'part
of' al Qaeda." rd. The circuit then issued its decision in Bensayah v. Obama, _ F.3d _ , _ ,
2010 WL 2640626, at *5 (D.C. Cir. June 28, 2010), it which that panel observed that it would be
"impossible to provide an exhaustive list of criteria for determining whether an individual is 'part
of' al Qaeda." Nonetheless, the panel in that case noted that whatever the outer bounds of the
government's detention authority might be, it is clear that "the purely independent conduct of a
freelancer is not enough." Id.
Thus, under the law of this circuit, the government may establish the lawfulness of the
petitioner's detention by showing that he "engaged in hostilities ... against the United States,"
that he "purposefully and materially supported hostilities against the United States or its coalition
partners," or that he "is part of the Taliban, al Qaeda, or associated forces." AI-Bihani, 590 F.3d
at 871. And, the determination of whether an individual is "part of' the Taliban, al Qaeda, or
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associated forces is one that "must be made on a case-by-case basis by using a functional rather
than a formal approach." Bensayah, _ FJd at _ ' 2010 WL 2640626, at *5. Moreover, the
government may seek to justify detention by making a showing that the detainee was part of the
"command structure" of either the Taliban, al Qaeda, or their associated forces, yet it is not
necessary for the government to make such a showing. 4 Awad, _ FJd at _ , 2010 WL
2292400, at *10. But, the government must do more than just prove that the detainee was an
"independent ... freelancer." Bensayah, _ FJd at _,2010 WL 2640626 at *5.
Finally, as for the burden of proof required to justify detention, the District of Columbia
Circuit has approved in several decisions the standard adopted from the case management order,
see, e.g., Awad, _ F.3d at _,2010 WL 2292400, at *9 (citing AI-Bihani I, 590 F.3d at 878)
("We have already explicitly held that a preponderance of the evidence standard is constitutional
in evaluating a habeas petition from a detainee held at Guantanamo Bay."), to wit, that the
government has the burden of persuading the Court that the petitioner is detainable under the
AUMF by a preponderance of the evidence. 5 Case Management Order, In re Guantanamo Bay
Detainee Litigation, Miscellaneous No. 08-442 (TFH) (D.D.C. November 6, 2008). This means
that the government must convince the Court "to believe that the existence of a fact is more
4 Given that the government can justify detention by showing that a detainee was part of the "command structure" of
enemy forces, this Court's decision in Gherebi can still be relied upon as a basis for ordering detention, provided
that it does not contlict with the precedent of the District of Columbia Circuit.
5 While the District of Columbia Circuit has held that the imposition of a preponderance of the evidence standard is
constitutionally permissible in these Guantanamo Bay detainee habeas cases, it has left open the question of whether
a lower standard of proof could constitutionally suffice as well. AI-Bihani I, 590 F.3d at 878 n.4. In AI·Adahi v.
Obama, _ F.3d _ , 2010 WL 2756551, at *2 (D.C. Cir. July 13, 2010), the circuit most recently expressed
skepticism about the proposition that the preponderance of the evidence standard is constitutionally required in these
habeas cases, noting that it was not "aware of [any] precedents in the eighteenth[-]century English courts [that]
adopted a preponderance standard," and that "[eJven in later statutory habeas cases in this country;' the government
generally did not have the burden of establishing lawful detention by a preponderance of the evidence. See id.
(observing that the standard of proof applied in various habeas proceedings ranged from "some evidence to support
the order" to "probable cause"). However, given that the government in this case has established the lawfulness of
the petitioner's detention by a preponderance of the evidence, the Court need not resolve the question left open by
the circuit.
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probable than its nonexistence." Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers
Pension Trust for S. Cal., 508 U.S. 602, 622 (1993). Accordingly, the government has the initial
burden of producing evidence in support of its claim for detention, and should the government
produce evidence sufficient to establish a prima facie case for detention, then the burden of
producing evidence to rebut the government's case shifts to the petitioner. See Hamdi v.
Rumsfeld, 542 U.S. 507, 534 (2004) (observing that "once the Government puts forth credible
evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to
the petitioner to rebut that evidence with more persuasive evidence that he falls outside the
criteria," and that such a "burden-shifting scheme" would not offend the Constitution). After
both parties have presented all of their evidence, the Court must weigh the evidence to determine
whether the government has met its burden of showing that its evidence "is ... more convincing
than the evidence ... offered in opposition to it." Greenwich Collieries v. DiT., Office of
Workers' Compo Programs, 990 F.2d 730, 736 (3d Cir. 1993). If the government is successful in
making this showing, then the Court must deny the habeas petition. But, where the petitioner's
evidence demonstrates that his version of the facts is more likely to be true, or where "the
evidence is evenly balanced," the Court must rule in favor of the petitioner. Dir., Office of
Workers' Compo Programs v. Greenwich Collieries, 512 U.S. 267,281 (1994).
III. Legal Analysis
The government contends that it has legal justification under the AUMF to detain the
petitioner because it has reliable evidence that (1) he attended an al-Qaida-affiliated training
camp, specifically the Tarnak Farms camp; (2) he was recruited by an al-Qaida or Taliban
operative who facilitated his travel to Afghanistan so that he could join the Taliban, al-Qaida, or
their associated forces; (3) he stayed at al-Qaida and Taliban-associated guesthouses during his
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travels to, and time in, Afghanistan; (4) he served as a Taliban guard or interrogator at the
Taliban's Sarpoza prison in Kandahar, Afghanistan; (5) he traveled to an area at or near the front
lines in Afghanistan; and (6) he was captured on or near the battlefield at Tora Bora. Pre-Trial
Stmt. at 23. In support of its case-in-chief, the government offers the following types of
documents: (I) field documents, or "FD-302s," which are prepared by Federal Bureau of
Investigation (the "FBI") agents to summarize an interview"; (2) "Form 40s," also known as
"FM-40s," which are used by the Department of Defense Criminal Investigation Task Force (the
"CITF") "to record investigation activity, such as witness interviews"; (3) "summary
interrogation reports," also known as "SIRs," which are
Government's Exhibits (the "Gov't's Exhibits"), Ex. 1 (Declaration of Intelligence Officer
(Sept. 19, 2008) (the Decl.")) at 7; (4)
"intelligence information reports," also known as "IIRs," which are "the main [Department of
Defense] vehicle for the [human intelligence] information used by [the Defense Intelligence
Agency] and military services," id. at 6; (5) "memorandum for record," also known as a "MFR,"
which for all intents and purposes "is the functional equivalent of the [SIR]," Gov't's Exhibits,
Ex. 25 (Declaration of Paul Rester (Dec. 2, 2009) ~ 6; and (6)
Gov't's Exhibits, Ex. 1 Decl.) at 7. Given that all
these documents contain hearsay in one form or another, the government has the burden of
presenting its hearsay "in a form, or with sufficient additional information, that permits the ...
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[C]ourt to assess its reliability." Parhat v. Gates, 532 F.3d 834, 849 (D.C. Cir. 2008). And with
regards to what might constitute "sufficient . . . information" to help the Court assess the
reliability of the government's evidence, this member of the Court issued three extensive
opinions on this subject. An overview, therefore, is essential for setting forth the analytical
framework for determining whether this Court should ascribe any probative weight to the
evidence proffered by the government.
To be sure, the use of hearsay evidence in habeas corpus proceedings is nothing
extraordinary, as 28 U.S.C. § 2246 (2006) explicitly contemplates the admission into the
evidentiary record of sworn out-of-court statements in considering an applicant's habeas
petition. 6 See id. (providing for the admission of deposition testimony or affidavits in a habeas
proceeding). What is unique about these Guantanamo Bay detainee habeas cases, however, is
the guidance from the Supreme Court that it may be necessary for this Court to relax the
prohibitions on hearsay to presumably accept unsworn out-of-court statements, such as those
statements contained in interrogation and intelligence reports that the government seeks to rely
upon in this case (and the many other Guantanamo Bay habeas cases that are before this Court).
See Hamdi, 542 U.S. at 533-34 (noting that "[h]earsay ... [might] need to be accepted as the
most reliable evidence from the [g]overnment in" these habeas corpus proceedings); Awad, _
F.3d at _ ' 2010 WL 2292400, at *2-*3, *8 (concluding that the district court did not commit
clear error in its factual findings when it relied upon, inter alia, an interrogation report);
Barhoumi v. Obama, _ F.3d _ , _ , 2010 WL 2553540, at *5 (D.C. Cir. June 11, 2010)
6 28 U.S.c. § 2246 states the following:
On application for a writ of habeas corpus, evidence may be taken orally or by deposition, or, in
the discretion of the judge, by affidavit. If affidavits are admitted any party shall have the right to
propound written interrogatories to the affiants, or to file answering affidavits.
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(finding no error by the district court in relying upon statements taken from a diary). As the
Supreme Court observed in Boumediene, the government has a "legitimate interest in protecting
sources and methods of intelligence gathering," and a district court, therefore, is expected to "use
its discretion to accommodate this interest to the greatest extent possible." Boumediene, 128 S.
Ct. at 2276. Having been tasked by the Supreme Court with developing procedures that will
allow it to "assess the sufficiency of the Government's evidence," id. at 2270, the members of
this Court turned to Judge Hogan to conduct "a nuanced inquiry to determine [the standards by
which] hearsay proffered by the government should be introduced into evidence," Bostan v.
Obama, 662 F. Supp. 2d 1,4 (D.D.C. 2009) (Walton, J.) ("Bostan I").
In his November 6,2008 case management order, Judge Hogan developed a two-pronged
analysis that would guide the members of this Court in determining whether to "admit and
consider hearsay evidence that is material and relevant to the legality of the petitioner's
detention." Case Management Order, In re Guantanamo Bay Detainee Litig., Miscellaneous
Action No. 08-442 (TFH), at 5 (D.D.C. Nov. 6, 2008). Specifically, Judge Hogan determined
that the government's hearsay evidence is admissible provided that (l) the evidence is reliable,
and (2) "that the provision of nonhearsay evidence would unduly burden the movant or interfere
with the government's efforts to protect national security." Id. The case management order also
provided that the individual judges on this Court could "alter the framework based on the
particular facts and circumstances of their individual cases." Id. at 2 n.l.
Building on Judge Hogan's framework, this member of the Court amended the case
management order on June 12, 2009, to establish a format for determining the admissibility of
the evidence relied upon by the government prior to any evidentiary hearing on the merits of
those habeas petitions pending before this member of the Court. Specifically, the Court ruled,
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over the government's objection, that it would consider questions of admissibility regarding the
government's evidence prior to any evidentiary hearings because the government's evidence, if
held to be inadmissible in part or in whole, may be insufficient to establish a prima facie case for
lawful detention under the AUMF. The Court's framework, therefore, directed the government
to identify the sources of evidence it intended to rely upon at any evidentiary hearing, to which
the individual petitioners would then have an opportunity to file their objections to any evidence
proffered, and the Court would resolve such objections before determining whether the
government's case was strong enough to require rebuttal evidence from individual petitioners.
This member of the Court then issued the first of three opinions which provided extensive
analysis on the standards it would employ for assessing the admissibility of the government's
hearsay evidence it would employ. The first decision issued by the Court was Bostan I, in which
this member of the Court held that the government must establish the admissibility of its hearsay
evidence by showing (I) that the evidence is admissible "under the Federal Rules of Evidence, as
modified by 28 U.S.c. § 2246," or (2) that "the proffered hearsay is reliable and ... that the
provision ofnon-hearsay evidence would unduly burden the government ... or interfere with the
government's ability to protect national security." Bostan I, 662 F. Supp. 2d at 8. The Court
also "elaborated" on the meaning of the "undue burden" requirement in the second prong of
Judge Hogan's standard, noting that "[w]here the government is unable to produce non-hearsay
evidence due to its own administrative or bureaucratic errors or lack of resources to amass such
evidence, it cannot rely upon the shortage of resources or its own mistakes as justification for the
use of hearsay." Id. at 4. The Court also concluded that "it is no excuse for the government's
lawyers to assert that there are too many habeas corpus petitions pending before the Court or too
few resources allocated to the Department of Justice to compel fidelity to the centuries-old
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proscription against the use of [unreliable] hearsay," id. at 4, that "the government will need to
demonstrate why the use of non-hearsay alternatives would be unduly burdensome to the
government . . . through the use of statements made under oath by persons with personal
knowledge of the matter about which their representations relate," and that "the undue burden
standard ... does not mean ... that hearsay proffered by the government must be admitted into
evidence because that is all the evidence that the government has available to it," id. at 5. The
Court also reiterated its commitment to the format set forth in its June 12, 2009 order for
considering the admissibility of the government's hearsay evidence, rejecting calls by the
government "to adopt a blanket presumption that the hearsay proffered by the government in
each of its cases before this member of the Court is admissible," as well as to "look at all of the
government's hearsay in context before determining the admissibility of individual pieces of
evidence." rd. at 8 (internal quotation marks omitted).
Soon after the issuance of Bostan r, the Court opined further on the admissibility of the
government's hearsay evidence in AI-Bihani v, Obama, 662 F. Supp. 2d 9 (D.D.C. 2009) ("AI­
Bihani II"). There, the Court explained that, generally speaking, each piece of evidence
proffered by the government has the potential to provide three levels of hearsay-the source's
original statement, the interpretation of those statements from the source's native language into
English, and the memorialization of those translated statements in a written report. rd. at 17.
The Court further noted that the government must show that each level of hearsay satisfies the
two-prong standard for admissibility set forth in Judge Hogan's case management order and
explicated in Bostan I. AI-Bihani II, 662 F. Supp. 2d at 16-17.
With regards to the first level of potential hearsay-the statements of the source-the
Court observed that "insofar as the petitioner's own statements are concerned, this is a non
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issue," as those statements are considered "party admissions" that are admissible under the
Federal Rules of Evidence. Id. at 17; see Fed. R. Evid. 801(d)(2) ("A statement is not hearsay if
... [t]he statement is offered against a party and is ... the party's own statement."). As for
statements made by other sources, the Court concluded that it will admit hearsay statements by
the government that are otherwise inadmissible under the Federal Rules of Evidence or Section
2246 if the government can demonstrate that "( 1) that the circumstances surrounding the creation
of the hearsay are such that the hearsay is inherently reliable[,] or (2) that the source of the
hearsay is generally reliable, thereby giving rise to a presumption of reliability as to any hearsay
statements provided by that source." AI-Bihani II, 662 F. Supp. 2d at 20. In order for the Court
to assess the reliability of a source, the Court explained that
it is not enough to demonstrate . . . that the statement in question is consistent
with other statements made by other declarants of unknown reliability. Rather,
the government must establish that the putatively corroborative evidence is both
admissible and establishes the factual matter that purportedly establishes the
source's reliability. In other words, for the government to show that a source of
hearsay is reliable, it must establish that the statements provided by that source
are, in general, factually accurate by a preponderance of the evidence, not just that
there is some other evidence in the government's possession that coincides with
the statement of the source in question. 7
7 The Court acknowledges the District of Columbia Circuit's rejection of the proposition that "two pieces of
evidence, each unreliable when viewed alone, cannot ever corroborate each other." Bensayah, _ .. F.3d at _ ,
20 10 WL 2640626, at *6 (citing United States v. Laws, 808 F.2d 92, 100-03 (D.C. Cir. [986)). In Laws, however,
one of the factors that the circuit considered in concluding that two affidavits, each independently unreliable
standing alone, could corroborate one another was the fact that the sources of those affidavits were not associated
with one another. Laws, 808 F.2d at 103. In regards to the Guantanamo Bay detainee habeas cases, the fact that the
sources of the interrogation and intelligence reports that the government seeks to rely upon are all detained in the
same location, thereby making it likely that the sources have associated with one another, continues to give the
Court concern about the "evidentiary bootstrapping" discussed in AI-Bihani II, Le., that two similar statements made
by two different people are ultimately derived from one unreliable source, thereby making both statements
unreliable. See AI-Bihani II, 662 F. Supp. 2d at 19 n.1 I.
Nonetheless, given the precedent of this circuit, the Court (should this issue even arise) will entertain the
government's utilization of two pieces of unreliable evidence to corroborate each other, provided that the
government can assuage the Court's concerns identified in AI-Bihani II.
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Id. To meet this standard, the Court cautioned that "it will not suffice for the government to
establish that a source of hearsay provided accurate information on one or two isolated
occasions." Id. Rather, the government is required to show, "absent unusual circumstances, ...
a pattern of accuracy in the source's statements." Id. By establishing this pattern of accuracy,
the Court would be satisfied that the source is "generally reliable, which, in turn, would suggest
that any specific statements made by the source of the statement would be generally reliable as
well." ld.
As to the second level of potential hearsay-the interpretation from the source's native
language to English-the Court explained that interpretations rendered by interpreters who are
either employed by the FBI, or obtained an International Language Roundtable ("ILR") score "of
3+ in a target language and 3 in English[,] are sufficiently reliable to permit the admission of
their interpretations into evidence." Id. at 22. For those interpreters not employed by the FBI or
who obtained an ILR score of 2+ in English, however, the Court concluded that they lack
sufficient credentials "to ensure that any complex statements rendered in English by such an
interpreter are reliable." Id. at 24. Accordingly, the Court concluded that it would not admit
"into evidence interpretations provided by interpreters with a 2+ score in English except with
respect to basic information provided by the detainee. "8 Id.
8 A point of clarification is necessary here. In AI-Bihani n, the Court wrote that interpretations by interpreters who
obtained an ILR score of 2+ are unreliable "with respect to any topics other than those arising in 'basic social
situations.'" At-Bihani, 674 F. Supp. 2d at 24 (emphasis added); see also id. at 24·25 (concluding that interpreters
with an English score of 2+ on the ILR scale can be found only to provide translations "of the sort that a person
with an ILR score of 2+ would reasonably be able to understand and articulate in English OJ'., 'basic social
situations[,] including introductions and casual conversations about current events, work, family, and
autobiographical information)" (emphasis added». Upon further review of the declaration relied upon in that
opinion, however, the Court now believes that its observations in AI-Bihani were overly narrow. In that declaration,
which has also been submitted by the government in the present case, Paul Rester, the Director of the Joint
Intelligence Group at the Joint Task Force Guantanamo, stated that an interpreter with an ILR score of2+ in English
can handle more than just "basic social situations"; in fact, these interpreters also "can get the gist of most
conversations on non-technical subjects (i.e., topics which require no specialized knowledge)," and that they can
render interpretations that requires no more than "handl[ing] elementary constructions" and utilizing a "speaking
(continued ... )
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Lastly, AI-Bihani II addressed the issue of assessing the reliability of the third level of
potential hearsay-the memorialization of a source's interpreted statements in an interrogation or
intelligence report. The Court expressed "serious concerns" regarding the reliability of
interrogation reports prepared by unknown interrogators under unknown circumstances, but in
response to the government's assertion in that case that it would be unduly burdensome for the
government to call in the various interrogators who authored the reports that the government
sought to rely upon, the Court ruled that the government must establish that
not only ... would [it] create an undue burden for the government to call the
various interrogators who drafted the reports as witnesses at the merits phase of
this proceeding, but also that it would create an undue burden for the government
to procure affidavits or declarations from these interrogators setting forth the
information that would otherwise be elicited on direct examination (e.g., the
process used to create the interrogation reports, the circumstances surrounding the
interrogation, and the substance of the petitioner's alleged statements (as
interpreted by the interpreter)).
Id. at 26. As an alternative of "last resort," the Court opined that the government could establish
the reliability of its interrogation reports "through the submission of a global affidavit describing
the process used by interrogators ... to reduce what was said and the observations made during
interrogations into their written reports." Id. As for statements made by sources other than the
petitioner, the Court concluded that, at least in the factual context of AI-Bihani II, it need not
"apply the undue burden prong with the same level of scrutiny" because those statements were
"less crucial to the government's case." Id. The Court cautioned, however, that even with
respect to statements made by other sources, it might "eventually conclude that the reports
regarding the interrogation of other detainees lack sufficient indicia of reliability to be admitted
(... continued)
vocabulary sufficient to respond simply with some circumlocutions." Gov't's Exhibits, Ex. 137 (Declaration of
Director Paul Rester (July 20, 2009» ~ 3. Thus, where the government seeks to rely upon hearsay that is translated
by an interpreter with an ILR score of2+ in English, the Court will not limit itself to crediting only those statements
that would arise in "basic social situations," so long as the interpreted statements that the government seeks to rely
upon fall within the competency of that interpreter.
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into evidence," which would mean that "the failure of the government to call the interrogators
who created the reports or at least submit sworn statements approximating their testimony would
preclude the Court's consideration of the substance of these reports." Id.
The last opinion in the Court's trilogy of decisions on the admissibility of hearsay is
Bostan v. Obama, 674 F. Supp. 2d 9 (D.D.C. 2009) ("Bostan II"). In that case, the Court refused
to accept the argument raised by the petitioner that intelligence reports were inadmissible per se
because "[r]aw intelligence is essentially unusable until analyzed by a trained source intelligence
analyst." Id. at 24. The Court concluded that the more prudent approach would be to "consider
the admissibility of the government's proffered intelligence reports on a case-by-case basis rather
than reject the reports out of hand," id. at 25, because the Court has the capability "to assess the
general reliability of the source providing the intelligence in question as well as the
circumstances surrounding that intelligence provided that the government supplements its
evidentiary submissions with the information needed to permit such a determination," id. at 24­
25.
The Court also addressed in Bostan II the admissibility of statements that are alleged by
the petitioner to be the product of coercion. The Court observed that "[i]n a typical case,"
coerced statements are inadmissible under the Due Process Clause of the Fifth Amendment "not
because such confessions are unlikely to be true[,] but because the methods used to extract them
offend an underlying principle in the enforcement of our criminal law: that ours is an
accusatorial and not an inquisitorial system," id. (quoting Rogers v. Richmond, 365 U.S. 534,
540-42 (1961 )), and "because declarations procured by torture are not premises from which a
civilized forum will infer guilt," id. (quoting Lyons v. Oklahoma, 322 U.S. 596, 605 (1944)).
However, the Court concluded that it could not refuse to consider coerced statements made by
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detainees on constitutional grounds because "[t]he detainees at Guantanamo Bay ... have no due
process rights." Id. at 29 (citing Kiyemba v. Obama, 555 F.3d 1022, 1026-27 (D.C. Cir. 2009».
But notwithstanding the lack of due process protections accorded those individuals detained at
Guantanamo Bay, the Court recognized that statements resulting from coercion may nonetheless
be disregarded due to the "likelihood that the [statements are] untrue." Id. at 30 (quoting United
States v. Karake, 443 F. Supp. 2d 8, 50-51 (D.D.C. 2006), in tum quoting Linkletter v. Walker,
381 U.S. 618, 638 (1965». Under this basis for exclusion, the Court concluded that the
admissibility of these statements would be determined on a case-by-case basis because "it is at
least conceivable that the government could establish either that a specific witness . . .
consistently produced accurate information even when subjected to coercive tactics, or that
certain techniques employed by the government, even if coercive, are generally successful in
producing reliable information." Id.
While this member of the Court thought it prudent to set forth guiding principles for
determining whether evidence should be admitted into the record before considering what weight
to ascribe to that evidence, the District of Columbia Circuit thought otherwise. In AI-Bihani I,
the circuit concluded that "the question a habeas court must ask when presented with hearsay is
not whether it is admissible-it is always admissible-but what probative weight to ascribe to
whatever indicia of reliability it exhibits.,,9 AI-Bihani I, 590 F.3d at 879 (emphasis added). But
9 It shOUld be noted here that the District of Columbia Circuit's recent decision in Awad could be construed to
suggest that this Court's procedure for determining the admissibility of the government's hearsay evidence before
proceeding to a merits hearing was correct. In that decision, the circuit concluded that "hearsay evidence is
admissible in this type of habeas proceeding if the hearsay is reliable." Awad, _ F.3d at __' 20 I0 WL 2292400,
at *5 (emphasis added). Unlike Al-Bihani, in which the circuit seemingly concluded that the admissibility of the
government's hearsay evidence is mandatory, see AI-Bihani I, 590 F.3d at 879 (concluding that the government's
hearsay evidence "is always admissible"), the language used by the circuit in Awad appears to suggest that the
admissibility of the government's hearsay evidence is conditional on whether the evidence is reliable, as this
member of the Court concluded in its June 12,2009 order amending the case management order.
(continued ... )
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notwithstanding the fact that the Court's energies are to be no longer directed at the question of
admissibility, the practical impact of AI-Bihani on the consideration the Court must give to
hearsay evidence brought before it is quite minimal. For evidence that normally would be
admissible in a habeas proceeding, i.e., evidence admissible under the Federal Rules of
Evidence, as modified by 28 U.S.c. § 2246, the Al-Bihani decision has little effect, as that
evidence was admissible even under the old standards set by this member of the Court. But with
regards to hearsay evidence to which the government would have needed to meet the
requirements set forth in Bostan I, Al-Bihani II, and Bostan II, the reality is that the principles
annunciated in these decisions, while no longer useful for determining evidentiary admissibility,
are still illuminating for the purpose of determining the probative value of each piece of hearsay
evidence that the government seeks to rely upon to justify a petitioner's detention. As the Court
noted in Bostan I,
[w]hether the assessment of a piece of hearsay's evidentiary worth is made at a
preliminary hearing on the admissibility of proffered evidence or at the close of
merits proceedings after being provisionally admitted into the record, the bottom
line is that hearsay of no evidentiary worth will not be considered when the Court
makes its factual findings.
Bostan I, 662 F. Supp. 2d at 7. Thus, as was made clear to the parties in the Merits Hearing
Procedures Order issued on February 16, 2010, the Court will continue to apply the principles set
forth in Bostan I, AI-Bihani II, and Bostan II in determining whether the government has
(... continued)
Notwithstanding the Awad court's seeming endorsement of this Court's approach for assessing the admissibility of
the government's hearsay evidence, the Court concludes for two reasons that the Awad court did not intend to
disturb the AI-Bihani panel's directive to this Court to admit all of the government's hearsay evidence into the
record. First, in support of its observations regarding the admissibility of hearsay evidence, the Awad panel cited
the AI-Bihani decision and, in the parenthetical following that citation, quoted the language from that decision that
the government's hearsay evidence "is always admissible." Awad, _ F.3d at _ , 2010 WL 2292400, at *5.
Second, it is well-settled that a three-judge panel of the District of Columbia Circuit is "without authority to overturn
a decision by a prior panel of [the circuit]." La. Pub. Servo Comm'n v. FERC, 522 F.3d 378, 390 (D.C. Cir. 2008).
For these reasons, the Court concludes that the circuit's ruling in AI-Bihani regarding the admissibility of the
government's hearsay evidence remains controlling precedent.
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provided the Court with sufficient indicia of reliability for each hearsay statement that it seeks to
rely upon. 10
The upshot from all of these decisions is that for each hearsay statement that the
government seeks to rely upon in this proceeding that is not otherwise admissible under the
Federal Rules of Evidence or 28 U.S.c. § 2246, it must establish the reliability of those
statements by making the following showing: (1) that with regards to the specific statements that
the government seeks to rely upon, those statements "were made under circumstances that render
them intrinsically reliable or were made by reliable sources"; (2) that "with respect to statements
crucial to the government's case, that it would be unduly burdensome to call the sources as
witnesses or provide declarations under oath in lieu of live testimony"; (3) "that the statements
purportedly made by these sources were interpreted by a reliable interpreter," e.g., "an interpreter
who works for the FBI or who has an ILR score of at least 3 in English," unless the statement
being interpreted is one "that a person with an ILR score of 2+ would reasonably be able to
understand and articulate in English"; and (4) "that the interpreted statements were recorded by
the interrogator in a manner that is reliable," and that in cases involving statements crucial to the
government's case, such a showing be made by the interrogator's live testimony, the submission
of "a declaration or affidavit approximating such testimony," or, "as a last resort, ... a global
affidavit describing the process used by interrogators," unless the government can show that it
10 In AI-Bihani II and Bostan II, this member of the Court left open the question whether Judge Hogan's two-prong
standard should be applied to determine whether otherwise inadmissible evidence proffered by the petitioner should
be admitted into the record, given that "the Supreme Court mentioned only the possibility of considering hearsay
proffered by the government in Hamdi and Boumediene." AI-Bihani II, 662 F. Supp. 2d at 16 n.6 (citing Hamdi,
542 U.S. at 533-34 (plurality opinion) and Boumediene, 128 S. Ct. at 2276); Bostan II, 674 F. Supp. 2d at 30 n.11.
And, in light of AI-Bihani I, the question becomes whether Judge Hogan's standard, as supplemented by this
member of the Court's decisions, should control in assessing the reliability of the petitioner's proffered hearsay
evidence. In light of the fact that the petitioner's otherwise inadmissible hearsay evidence does not materially
undercut the government's case for the petitioner's lawfUl detention under the AUMF, the Court will assume that
such evidence is admissible and continue to defer on the question left open in AI-Bihani II and Bostan II.
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would be an undue burden to comply with this requirement. AI-Bihani I, 662 F. Supp. 2d at 17­
26. If the government cannot meet at least one of these four requirements with respect to each
document that it seeks to rely upon in justifying the petitioner's detention, then the Court will not
ascribe any probative weight to that evidence absent compelling reasons to the contrary.
Applying these standards here, the Court has concerns that much of the hearsay proffered
by the government is unreliable. As to many of the intelligence reports that it relies upon-IIR 2
340 6308 02, IIR 2 340 6576 02, and IIR 6 034 0349 04, to name a few-there is nothing in the
record regarding the qualifications of the interpreters used in those interrogations to render a
reliable interpretation. There are other intelligence reports-for example, IIR 2 340 6576 02
and IIR 2 340 6308 02-in which the government has failed to provide foundational evidence
that those statements "were made under circumstances that render them intrinsically reliable or
were made by reliable sources." Bostan II, 674 F. Supp. 2d at 28 (citation omitted). But whether
there are compelling reasons for the Court to nonetheless find this evidence reliable is a question
that need not be resolved here because the government has made the requisite prima facie
showing of reliability with regards to two documents--{)ne labeled ISN 223 FD-302 and dated
April 17,2002 (the "April 17, 2002 FD-302"), and the other labeled ISN 223 FM-40 and dated
August 19, 2004 (the "August 19, 2004 FM-40")-and these two documents, when weighed
against the petitioner's testimony and the hearsay evidence relied upon by the petitioner, are
sufficient to convince the Court that the government is authorized to detain the petitioner under
the AUMF.
As discussed above, the Court must assess the reliability of these two government
proffered documents at three distinct levels. The first level is the source of the underlying
statements; in this case, the source of the statements contained in these two documents is the
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petitioner himself. Thus, these statements do not constitute hearsay under the Federal Rules of
Evidence, as "[t]he statement is [being] offered against a party and is ... the party's own
statement." Fed. R. Evid. 801(d)(2)(A). As to the second level of this analysis regarding these
two documents-the interpretation of the statement-the government has already established the
reliability of the April 17, 2002 FD-302, as the interpreter used in that interview was employed
by the FBI. See Al-Bihani, 662 F. Supp. 2d at 24 (concluding that "interpretations provided by
interpreters employed by the FBI ... are sufficiently reliable"). Furthermore, the government
has established the reliability of the interpreter used during the August 19, 2004 interview that
was memorialized in the FM-40, as the interpreter used in that session-named
obtained an ILR score of 3 in English. Gov't's Exhibits, Ex. 136 (Affidavit of
Director of Program Control of Linguist and Operational Technical Support Division) at 4. And
as for the last level of the Court's analysis-the interrogator's memorialization of the
statement-the government has provided affidavits from the respective interrogators utilized to
record the petitioner's interpreted statements in both documents. In each of those affidavits, the
interrogators discuss the manner in which they recorded the statements. With regards to the
April 17, 2002 FD·302, the government provides the declaration of FBI Special Agent _
_ who represented under oath that the report was "prepared ... in accordance with the
practices, policies[,] and procedures of the FBI,"" Gov't's Exhibits, Ex. 16 (Declaration of FBI
Special Agent (Nov. 18, 2009)) ~1 7(a), that the report "was prepared near the
II The government also provided the declaration of , a Supervisory Special Agent with the FBI,
who explained the procedures for drafting FD-302s in slightly more detail. He notes that for each interview session,
an agent records his notes "on a separate FD-302, with limited exceptions for extended interviews or a series of
related interviews, for which composite FD-302s ma~ed." Gov't's Exhibits, Ex. 17 (Declaration of FBI
Supervisory Special Agent (the _ _ Decl.")) ~ 5. He also represents to the Court that
"[a]gents must review draft or dictated FD·302s for accuracy[,] and initial them once the accuracy of the FD-302s
has been certified." !Q.,
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time of the interview, usually within five (5) days of the interview,"'2 id. ~ 7(c), and that the
report "represents an accurate summary of the interview [he] conducted," id. ~ 7(d). As for the
August 19, 2004 FM-40, the government provides the declaration of an FBI
Special Agent assigned to the CITF when he interviewed the petitioner. In that declaration,
Special Agent _ represents that the report was drafted within twenty-four hours of his
interview, Gov't's Exhibits, Ex. 13 (Declaration of Special Agent (Dec. 16,
2009))' 4, that he took "detailed notes during the course of [his] interview[]," that "[a]ll relevant
infonnation from [his] notes [were] included in the FM-40s that [he] drafted," and that he
"shared drafts of [his] reports with other agents who [also] attended the interview, id. , 5. He
also attests that the petitioner "had no specific medical or physical complaints," id. ~ 6, that he
"did not observe ... any physical or mental symptoms that would lead [him] to question the
voluntary nature of [the petitioner's] statements to [him]," id. ~ 16, and that _ "did not
witness any outward manifestation that the will of [the petitioner] had been overborne by either
[his] detention or the circumstances of [his] interview," id. '1 17. 13 Based on the foundational
12 As Special Agent _ notes in his declaration, "[t]he date of dictation, or the date the initial draft was
prepared by the agent, is provided in the lower left comer of the FD-302[, while t]he date of the final FD-302 is
provided in the upper right corner." Gov't's Exhibits, Ex. 17 _ DecJ.) ~ 5. A review of these dates on the
April 17, 2002 FD-302 confirm that this document was finalized on the same day as the interrogation. See Gov't's
Exhibits, Ex. 34 {lSN 223 FD-302 (Apr. 17,2002» at 1.
13 To be clear, the petitioner does assert that he was subjected to abuse, deceptive interrogation techniques, and poor
living conditions during his detention in Guantanamo Bay. See Hr'g Tr. at 313:7-1\ (assertion by the petitioner that
he was housed "in a dink little cell for ei ht ears, and sufferin as [one] would ima ine
5\6: 16-519: 15 (testimony by the petitioner regarding the abuse that he purportedly suffered upon his
~Pakistan). And, the petitioner suggests that in at least one document, which is l a b e l e d _
~ the statements attributed to him were not reliable because he was subjected to heavy abuse at the hands
~ors. Hr'g Tr. at 67:1-6, May 17,2010 (arguing that his testimony "denies" the statements reported in
~ and that the statements were made "when he was su.ect to this terrible treatment that he has testified
to"). But notwithstanding his contentions about the reliability of which the Court does not rely upon in
reaching its decision today-the petitioner does not argue that the abuse he was purportedly subjected to rendered
his other statements to interrogators unreliable; to the contrary, he argues that despite the government's purportedly
(continued ... )
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evidence described above, the Court finds that the government has sufficiently established the
reliability of these two documents.
Having conducted a thorough reliability assessment of these two documents, the Court
must now consider the statements made in these documents, the petitioner's testimony, and any
of the evidence proffered by the petitioner in deciding what facts to credit in this case, what
reasonable inferences can be drawn from those facts, and whether the government has
demonstrated that these facts and the inferences that can be reasonably drawn from them, taken
together, are sufficient to support a finding that the petitioner is detainable under the AUMF. As
discussed below, the Court does conclude that the government, by a preponderance of the
evidence, has established the following facts which, along with the reasonable inferences that
can be drawn from those facts, establishes the lawfulness of the petitioner's detention, namely,
(1) that a Taliban operative encouraged and facilitated the petitioner's travel to Afghanistan (via
Pakistan) by providing him with money, a passport, and an airplane ticket; (2) that the petitioner
either visited or stayed at several guesthouses affiliated with the Taliban; and (3) that the
petitioner traveled to, and remained in, an area near the front lines of armed conflict in
Afghanistan. '4 The Court's analysis with regard to each fact is set forth below.
(... continued)
(rfiiiilillilii:l" a
abusive treatment, he continually provided consistent and truthful answers to the interro ator's uestions. See id. at
354:9-13 Government's Exhibit 46 that the interrogato
• and the use of various interrogation methods,
"[b]ut [that] he maintained his original story" nonetheless); id. at 322:5-8 ("[T]he fact that he has repeated this story
over and over again is at least an indication that he's telling the truth, and not that he's trying to cover something
up."). Thus, even assuming that the petitioner was in fact subjected to physical abuse, difficult living conditions,
and coercive interview techniques, the Court need not consider the impact of that treatment on the reliability of his
statements as refiected in the April 17, 2002 FD-302 and August 19, 2004 FM-40 that the Court relies on in reaching
its decision.
14 Because the Court conclUdes that these facts are sufficient to justify the petitioner's detention under the AUMF,
the Court will not address whether the government has sufficiently proven that the petitioner was present at the
Tamak Farms camp, that the petitioner served as a Taliban guard or interrogator at the Sarpoza prison in Kandahar,
Afghanistan, or that he was present at Tora Bora in late 2001.
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1. The Petitioner's Recruitment by a Taliban Operative.
Based on the April 17, 2002 FD-302, the August 19, 2004 FM-40, and the petitioner's
testimony, the Court concludes that there is ample evidence in the record to support a finding
that the petitioner's travel to Afghanistan was facilitated by a Taliban operative. As noted above,
the parties have stipulated to the fact that the petitioner's travel in 2000 or 200 I to Afghanistan
was facilitated by Khulud, and that he provided the petitioner with a passport, an airline ticket,
and $100.00. Pre-Trial Stmt. at 7; see also Hr'g Tr. 488:23-24, 491 :3-13 (testimony by the
petitioner that Khulud provided him with a Yemeni passport, one-way airplane ticket, and
$100,000). Furthermore, Khulud's affiliation with the Taliban also does not appear to be at
dispute, as the petitioner has made several statements suggesting as much. See Gov't's Exhibits,
Ex. 34 (ISN 223 FD-302 (Apr. 17, 2002» at 1 (statement by the petitioner that "based solely on
[Khulud's] offer," he believed that Khulud "was associated with the Taliban"), Gov't's Exhibits,
Ex. 39 (ISN 223 FM-40 (Aug. 19,2004» at 1 (memorializing statement by the petitioner that "he
has his suspicions" that Khulud "was a Taliban recruiter"); Hr'g Tr. at 544:11~13 (testimony
from the petitioner that at the time of his recruitment, Khulud claimed the ability to "get [the
petitioner] a house from the Taliban[]"); id. at 327: 16-18 (acknowledgement by petitioner's
counsel that the petitioner was told that "the Taliban would supply these things").
Notwithstanding the fact that the petitioner was recruited (and ultimately persuaded) to
travel to Afghanistan by a Taliban operative, the petitioner contends that this fact is immaterial
because Khulud "did not tell [him] ... that he was expected to go ... fight with the Taliban or to
join the Taliban," Hr'g Tr. 327:20-24, nor did Khulud mention anything regarding "training on
weapons" or "fighting the United States or its allies," Hr'g Tr. at 487:21-25; see also Gov't's
Exhibits, Ex. 85 (ISN 223 SIR at 1 (statement by the petitioner that 'Jihad was
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never mentioned before or during his trip to Afghanistan" (internal quotation marks omitted».
Rather, the petitioner maintains that Khulud simply offered him the opportunity to find a job, a
wife, and a house, see Gov't's Exhibits, Ex. 46 (lSN 223 MFR at 2 (statement
by the petitioner that Khu1ud "recruited" him to "travel to [Afghanistan] to search for a wife and
job"); id., Ex. 39 (ISN 223 FM-40 (Aug. 19, 2004» at 1 (statement by the petitioner that Khulud
"offered to arrange a trip to Afghanistan for [the petitioner] so that he could find a wife and
home"); id.,
id., Ex. 35 (ISN 223 FD-302 (May 28, 2002» at 1 (statement by the petitioner that he heard from
Khulud "that he could get a house for free and a job"); id., Ex. 47 (ISN 223 M F R _
~ at 2 (assertion by the petitioner that he had been told by Khulud "that if he were an Arab
in [Afghanistan], he would be able to build a life"); id., Ex. 77 (lSN 223 FM-40 (Feb. 13,2004»
at 1 (statement by the petitioner that he traveled to Afghanistan "because there were no
opportunities for him in Yemen"); Petitioner's Exhibits (the "Pet'r's EXhibits"), Ex. 220 (lSN
223 SIR ) at 2 (statement by the petitioner that Khulud "encouraged him to go to
Afghanistan by telling him that the Taliban gives Arabs money and a house"), and that Khulud's
offer formed the sole motivation for the petitioner's travel to Afghanistan, see Gov't's Exhibits,
Ex. 46 (ISN 223 MFR at 2 (statement by the petitioner that his "decision to
travel to" Afghanistan was motivated solely by his desire to find a "bride, house, and job"); id.,
Ex. 35 (ISN 223 FD-302 (May 28, 2002» at 1 (statement by the petitioner that "one of [his]
goals while in Afghanistan was to find a wife"); Pet'r's Exhibits, Ex. 212 (Records of Combatant
Status Review Tribunal Hearing for ISN 223 (Oct. 12, 2004» at 3 (reflecting an affirmative
answer by the petitioner at his CSRT proceeding that his "original intent was to go to
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Afghanistan to find a wife," and that he asserted it was "incorrect" to say that he "went to
Afghanistan to join the Taliban"). The petitioner argues that given his consistent position on this
point, the Court should find his story credible and, therefore, accept his position that he traveled
to Afghanistan for entirely innocuous purposes and not with the intent to join the ranks of the
Taliban. Hr'g Tr. at 322:5-8.
To be sure, the Court acknowledges that the petitioner has taken a consistent position that
the motivating factor for his travel to Afghanistan was to find a job, a wife, and a home. But at
the same time, the petitioner also admitted to interrogators that "he never really looked" for "a
wife, job, or home in Afghanistan," and that in fact "he wasn't really that interested in trying to
find a job," even though "he didn't have any money." Gov't's Exhibits, Ex. 39 (ISN 223 FM-40
(Aug. 19, 2004» at 2 (emphasis added). If it is true that the petitioner would go through the
effort of traveling to another country for the purpose of finding a wife, job, or home, then it
would appear to the Court that the petitioner would have made at least a minimal effort towards
achieving his goals. But the record reflects no such effort, and the petitioner admits that no such
effort was made. The Court finds, therefore, that his stated purpose of traveling to Afghanistan
is not worthy of belief, no matter how many times he has repeated it. Consistent he may be,
credible he is not.
Now that the Court has discredited the petitioner's asserted motivation for traveling to
Afghanistan, it is still left with the question of what exactly was the petitioner's motive. The fact
that a Taliban operative facilitated the petitioner's travel to Afghanistan is not enough, standing
alone, to persuade the Court that it is more likely than not the petitioner intended to travel to
Afghanistan for the purpose of becoming a "part of' the Taliban. However, considering the fact
that the petitioner was recruited by a Taliban operative, coupled with all of the other evidence
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(which the Court will discuss below) that the petitioner stayed at guesthouses where other
Taliban fighters resided, and that he traveled to an area near the battle lines where other Taliban
fighters were located, the Court is convinced that the most reasonable inference to draw from the
evidence is that the petitioner's motive for traveling to Afghanistan was due, at least in part, to
his desire to be a "part of' the Taliban. The reasons underlying the Court's inference will be
elucidated in its discussion below.
2. The Petitioner's Presence at Taliban-Affiliated Guesthouses
The government and petitioner do not dispute that the petitioner visited or stayed at three
different guesthouses during his time in Pakistan and Afghanistan. As the record in this case
reflects, the petitioner admitted to visiting the Daftur guesthouse for an hour, Hr'g Tr. at 335:4-6,
352:13-18, before going to Kandahar to stay at an "Arab house," id. at 339:6-9, 491:17. After
staying at this second guesthouse for approximately a week, id. at 491 :25-492:2; see also id. at
339:6-9, he traveled to the Al Qa'eity guesthouse, where he stayed for seven months without
paying for room and board, id. at 495: 18-19; see also id. at 350:6-7. Thus, the dispute here is not
whether he visited or stayed at these three guesthouses, but whether the Court should conclude
that his actions are a reflection of someone who is a "part of' the Taliban.
In support of its case for detention, the government proffers the September 19, 2008
declaration of a
Gov't's Exhibits, Ex. 5 (Declaration of Senior Intelligence
Analyst (Sept. 19, 2008) (the _ Dec!."» at 1. _ asserts that
served as
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training camp facilitation hubs stations
for frontline fighters associated with al-Qaida and the Taliban." ld. In particular,_
provides background on the "Arab house"-as noted above, a guesthouse that the petitioner
admitted residing for at least one week-in which he notes that this venue was a _
and that the guesthouse "was used as
a transition point for individuals going to train at various training
camps." Id. at 3.
Not to be outdone of course, the petitioner provides his own declaration from ~
_ "a Professor of Political Science at the University of Richmond" who has "studied
Yemeni history and culture" for approximately thirty years. Pet'r's Exhibits, Ex. 298
(Declaration of (May 26, 2009) (the _ Decl."» ~ 2. She asserts that
"there is nothing inherently suspicious or sinister about ... stay[ing] in guesthouses" in Pakistan
or Afghanistan." Id. ~ 15. She also claims that some guesthouses provide "free room and
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board," and that while "[g]uests may sometime[s] perform household chores or errands" in
exchange for the accommodations, "such reciprocities are by no means required or expected."
rd. ~ 18(c). She also notes that at some guesthouses, individuals can stay there "from ...
overnight to weeks or even months." rd. ~ 19(d). Finally, she opines that "[e]ven if there were
criminals staying at the same guest houses as [the p]etitioner," this would not implicate the
petitioner in any wrongdoing because "[p]eople come and go .... [and t]hey might or might not
converse, socialize, exchange stories, or otherwise engage with one another, or with the [other]
patron[s] of the establ ishment." rd. ~ 19(d).
Although both parties have introduced their respective declarations to explain the
significance of the petitioner's presence at these guesthouses, the Court finds that who prevails is
not reduced to a battle of the experts. Rather, this appears to be a case of comparing apples and
oranges. descriptions of guesthouses are more geared towards the traditional
bed-down facility, or what she refers to as a "non-profit youth hostel or YMCA," Pet'r's
Exhibits, Ex. 298 _ Decl.) ~ 18(c),
And on the one hand, because there is surely a need for
hostel-like accommodations in a "fairly popular destination[]" for Yemenis, such as Afghanistan,
Pet'r's Exhibits, Ex. 298 _ Decl.) ~ IS,
there is no reason for the
Court to conclude that both types of guesthouses do not exist in Pakistan and Afghanistan. Thus,
the Court need not take issue with the representations made by the three declarants in assessing
the significance of one's presence at a guesthouse.
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The question becomes, however, whether the aforementioned guesthouses where the
petitioner stayed are comparable to the type described b~, or to those described by
the government's declarants. And the answer to that question is manifested in the petitioner's
statements, which convinces the Court that these guesthouses are of the variety described by.
_ and _ and, more significantly, that at least two of these guesthouses provided
living quarters for individuals who, on behalf of the Taliban, were engaged in hostilities against
the Northern Alliance. The petitioner told interrogators that during his stay at an "Arab house,"
he observed Afghan guards at the house, and that these guards "had weapons stored in a small
room of the house." Gov't's Exhibits, Ex. 34 (ISN 223 FD-302 (Apr. 17, 2002)) at 1. This
description of the Arab house is fairly consistent with the description provided b y _
who repesents that Arab fighters were housed at this location. Id., Ex. 5 _ Decl.) at 3. As
for the Al Qa'eity guesthouse, the petitioner told interrogators that he observed "[p]eople ...
coming and going ... and some of them had hand guns." Id., Ex. 34 (lSN 223 FD-302 (Apr. 17,
2002)) at 2. While the "coming and going" from a guesthouse with guns in tow is hardly
incriminating evidence by itself, the details provided by the petitioner during his August 19,
2004 interview with the CITF provides additional context to his observation. During that
interview, he told interrogators that "[t]he owner of the house, [Hamza] Al Qaeity ... , made
regular trips to the front lines to fight with the Taliban,"'s and that "a number of other guests at
IS The petitioner contradicted this statement during his testimony at the merits hearing, asserting that he "didn't see"
Al Qa'eity "go to the front line with the Taliban," nor did he see "[o]ther individuals at Hamz[aJ's house ... go up
to [the] front lines." Hr'g Tr. at 554:9-14. The petitioner, however, never refuted or retracted the statement he made
to interrogators on August 19,2004 that he did, in fact, observe occupants of the AI Qa'eity guesthouse, including
AI Qa'eity himself, traveling to the front lines of battle. Weighing the self-serving nature of the petitioner's
testimony against his damaging statements to CITF interrogators, the Court concludes that his testimony cannot be
credited. Cf. Wi lIiamson v. United States, 512 U.S. 594, 599 (1994) (explaining that the underlying common-sense
rationale behind admitting hearsay statements against interest is that "reasonable people, even reasonable people
who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true").
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the house would also travel to the front lines to fight with the Taliban."J6 Id., Ex. 39 (ISN 223
FM-40 (Aug. 19, 2004» at 1. Based on the petitioner's own admissions, the only reasonable
conclusion that the Court can reach is that the petitioner was not staying at "a non-profit hostel"
or YMCA, Pet'r's Exhibits, Ex. 298 _ Dec\.) ,r 18(c), but rather, he was staying at a
~ station[] for frontline fighters associated with al Qaeda or the Taliban," Gov't's Exhibits,
Ex. 5 _ Dec\.) at 1.
In reaching this conclusion, the Court finds compelling observatio_
Without
resorting to anything other than common sense, the Court finds it implausible that guesthouses
being operated for the benefit of Taliban fighters engaged in warfare are simultaneously
providing charitable lodging to strangers in need, as the petitioner suggests. See, e.g., Gov't's
Exhibits, Ex. 39 (ISN 223 FM-40 (Aug. 19, 2004» at 1 (statement by the petitioner that he could
stay at the Al Qa'eity guesthouse for free because, inter alia, "it [is] a Yemeni and Arab tradition
to offer food and shelter to others"). Such a finding would necessarily require the Court to
illogically infer that the Taliban had a practice of exposing its fighters to potentially deadly
covert operations by the Northern Alliance (a Taliban antagonist) or its affiliates; for instance,
the Northern Alliance's efforts to compromise the Tali ban 's political and military operatives
would surely be enhanced if it could infiltrate the AI Qa'eity guesthouse with one of its members
under the guise of an indigent wayfarer, thereby positioning that member to kill all of the
unsuspecting inhabitants with ease. The Court declines to accept that the enemy would be so
16 In that regard, the petitioner's reliance on a statement by ISN 1457 that the AI Qa'eity guesthouse "was run by a
Yemeni who opposed al-Qaida" is misplaced. Pet'r's Exhibits, Ex. 283 (I1R 6 0 3 4 0 0 5 9 0 5 _ at 9.
Even assuming the statement by ISN 1457 is true, it is hardly inconsistent with the petitioner's assertion that Al
Qa'eity fought regularly with the Taliban.
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willing to expose themselves to such danger. Thus, the Court concludes that the petitioner could
not have resided at the "Arab house" and Al Qa'eity guesthouse without having earned the trust
of the Taliban. Cf. Al-Adahi, _ F.3d at _,2010 WL 2756551, at *6 (observing that the
detainee's "move to an al-Qaida guesthouse, a staging area for recruits heading for a military
training camp, makes it more likely-indeed, very likely-that [he] was himself a recruit"). To
that end, the Court will simply not credit any evidence proffered by the petitioner that would
suggest otherwise. 17 See Pet'r's Exhibits, Ex. 304 (ISN 695 SI~ at ] (statement
by ISN 695 that Al Qa'eity "allowed the lower floor" of his guesthouse "to be used for charity");
id., Ex. 305 (lSN 695 SIR at 2 (statement by ISN 695 that, inter alia, Al Qa'eity
had a "practice of allowing ... foreign guests to stay at his home").
As for the petitioner's claims that he received free room and board for seven months,
even though he had "no responsibilities" at the guesthouse, Gov't's Exhibits, Ex. 34 (ISN 223
FD-302 (Apr. 17, 2002» at 2, and that all he did was sit around the guesthouse "read[ing] the
Qu'ran[,] .... eating, drinking[,] .... [and] sleeping," Hr'g Tr. 498:15-20, the Court finds his
account to be farfetched. It is nonsensical to think that the proprietor of a guesthouse who, along
with other inhabitants, was engaged in warfare with the Northern Alliance would allow a
complete stranger to freeload for such a lengthy period of time during active hostilities. Rather,
the more likely conclusion to be drawn from the petitioner's extended stay at the Al Qa'eity
guesthouse is that he provided Al Qa'eity (or the Taliban) with some form of assistance in
exchange for his seven months of room and board.
17 Along those same lines, the Court finds the petitioner's statement to interrogators that "he didn't know there
would be Taliban, or Taliban sympathizers, at the [AI Qa'eity] house until he actually arrived there" to be suspect,
Gov't's Exhibits, Ex. 39 (ISN 223 FM-40 (Aug. 19, 2004» at I, given the implausibility that the petitioner would
somehow end up at the doorstep of the AI Qa'eity guesthouse (and be admitted to that house no less) unless both he
and its inhabitants had some appreciation of who each were dealing with.
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One event that sheds light on exactly what form of assistance the petitioner provided to
Al Qa'eity was his visit to an area that he described as a "recreational place." Specifically,
according to the petitioner, he visited a "recreational place" during his stay at the Al Qa'eity
guesthouse that is purportedly "known as the safe place or the safe village." Id. 499: 13-502:6.
The petitioner further testified that this area was located "about 20[]kilometers away from
Kabul," id. at 502: 1-2, and that during his approximate one-week stay in the "recreational place"
before returning to the AI Qa'eity house, id. at 506:23-25, 507:15-17, an individual by the name
of Farhan aJlowed the petitioner to borrow his PK rifle and fire several rounds into a wall, id. at
503: 12-20. Thereafter, at some point , the petitioner
acknowledged that he returned back to the "recreational place" after followers of Northern
Alliance Commander Ahmad Shah Massoud began "killing Arabs [for] revenge," id. at 508:8­
23, and after "the [United States] began bombing operations in Afghanistan," Gov't's Exhibits,
Ex. 39 (lSN 223 FM-40 (Aug. 19, 2004)) at 2.
The Court will explore the significance of the petitioner's visit to this purported
"recreational place" in the next section. Suffice it to say, however, that based on his own
admissions, his visit to this area was hardly a frolic to an oasis of tranquility located in a country
which is an active theater of war. To the contrary, the evidence supports that this area was part
of the war zone, and the fact that the petitioner traveled there during his stay at the Al Qa'eity
guesthouse speaks volumes about the consideration the petitioner provided to AI Qa'eity (and the
Taliban) in exchange for his stay at the guesthouse.
3. The Petitioner's Presence Near the Battle Lines
The petitioner also told interrogators in 2002 and 2004 that he visited the "recreational
place" that he described in his testimony at the merits hearing. Specifically, he told FBI
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interrogators during his April 17, 2002 interview that he had visited an area "approximately 20
kilometers north of Kabul," and that he traveled to this area "[w]hen Arabs began being attacked
in the streets of Kabul" by followers of General Massoud. Gov't's Exhibits, Ex. 34 (ISN 223
FD-302 (Apr. 17,2002)) at 2. He later explained in his August 19,2004 interview with the CITF
that this location "was safer ... than back at the [AI Qa'eity] house." Id., Ex. 39 (ISN 223 FM­
40 (Aug. 19,2004)) at 2. These statements are consistent with the petitioner's testimony, which
as noted above he testified that the "recreational place" he visited was located "about
20[]kilometers away from Kabul," Hr' g Tr. at 502: 1-2, that he stayed at this location for
approximately a week before returning to the Al Qa'eity house, id. at 506:23-25,507:15-17, and
that he returned to the "recreational place" following attacks on Arabs by loyal followers of
General Massoud, id. at 508:8-23.
However, one serious discrepancy exists between the description that the petitioner
provided during his testimony and that which was provided to CITF interrogators on August 19,
2004. While he testified that the area he visited was nothing more than a "recreational place," or
"safe village," he also told CITF interrogators that this location was a "staging areal]
approximately 10-20 [kilometers] behind the front lines" for "fighters [to] make final
preparations prior to going into battle at the front." Gov't's Exhibits, Ex. 39 (ISN 223 FM-40
(Aug. 19,2004)) at 2. Thus, he admitted to CITF interrogators that he was in the presence of
other Taliban fighters in this area as they were preparing for battle. The reasons for the change
in the petitioner's story are not reflected in the record, and as the Court explained above, where
the record reflects one statement that is entirely self-serving, and another inculpatory statement
that likely would not have been uttered unless it was true, there is logical reason for the Court to
credit the latter statement. See supra n.14. And it will do so here. The Court therefore credits
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the petitioner's description of the area located "about 20[]kilometers away from Kabul," Hr'g Tr.
at 502: 1-2, as "a staging area" for fighters near the battle zone. Furthermore, by the petitioner's
own admissions he traveled to this "staging area" on two occasions: once while he was residing
at the Al Qa'eity house, and another time when he left the Al Qa'eity house after the attacks by
the followers of General Massoud following his assassination.
The Court finds that the petitioner's presence at the "staging area" is by itself highly
probative evidence of the petitioner's status as "part of' the Taliban. Similar to the Court's
reasoning regarding the petitioner's stay at Taliban-affiliated guesthouses, the Court simply
cannot fathom a situation whereby Taliban fighters would allow an individual to infiltrate their
posts near a battle zone unless that person was understood to be a "part of' the Taliban. Again,
by concluding otherwise, the Court would be accepting the proposition that the Taliban would
expose themselves, at minimum, to a covert attack by opposing forces which could potentially
have a dramatic impact on the Taliban's military effectiveness. And again, the Court refuses to
believe that the Taliban would act so imprudently in conducting its military operations.
But the evidence in the record does not simply place the petitioner at the "staging area"
on several occasions; rather, the record reflects admissions by the petitioner that he took
possession of a powerful weapon during each of his visits to the "staging area." As noted above,
the petitioner took possession of a PK rifle from an individual named Farhan during his first visit
to the "staging area." Id. at 503:12-20. And, during his April 17,2002 interview with the FBI,
he told interrogators that as he was leaving the "staging area" for the "mountains close to the
Pakistan border," he took possession of a Kalashnikov rifle from an individual named Asem,
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who kept a hand gun for himself.l 8 Gov't's Exhibits, Ex. 34 (ISN 223 FD-302 (Apr. 17,2002))
at 2. These facts suggest that the individuals at the "staging area" trusted the petitioner enough
to allow him to take possession of their firearms. 19 More importantly, these facts suggest that
these individuals trusted the petitioner because he was loyal to their cause.
The petitioner, however, attempts to frame these facts in an innocuous light. With
regards to his first visit to the "staging area," the petitioner claims that he "felt bored" and
needed to go to "a recreational place ... where there [is] ... a river or trees and stufflike this."
Hr'g Tr. 501 :22-25. As for his explanation as to why he took possession of Farhan's rifle, he
testified that he just "wanted to shoot [it] for pleasure," and posited that "it is considered a very
silly kind of weapon ... in Yemen." Id. at 504:2-9. As for his second visit to the area, he refers
to the statement reflected in the August 19, 2004 FM-40 that "he [never] had any intention of
actually engaging in combat" at the "staging area," and that he merely went to area because "it
was safer there than back at the [AI Qa'eity] house," Gov't's Exhibits, Ex. 39 (ISN 223 FM-40
(Aug. 19,2004) at I; see also Hr'g Tr. 416:21-25 (citing the August 19,2004 FM-40), and that
he merely took the AK-47 rifle because "there were wild animals" in the mountains of lalalabad,
IS Although this account differs slightly from the one he provided during his August 19,2004 interview with the
CITF, in which he told the interrogators that "just prior to departing for the [staging area], an unknown individual
gave [the petitioner] an AK-47 for 'self-protection,'" Gov't's Exhibits, Ex. 39 (ISN 223 FM-40 (Aug. 19,2004)) at
2 (emphasis added). the bottom line is that the petitioner admits that he was in possession of a powerful AK-47 rifle
while present at the staging area.
Additionally, the petitioner also told CITF interrogators that he "receive[ed] rudimentary training on the operation of
an 82mm mortar." Id. In an attempt to explain his prior statement, the petitioner proffered a statement that he made
at his CSRT hearing in which he said his "intention was not to get trained," and that he was "there ... wasting some
time[, and] (just moved the mortar left and right." Pet'r's Exhibits, Ex. 212 (Testimony of the Petitioner Before the
CSRT) at 4. Even accepting the petitioner's claims that he merely "moved the mortar left and right," the Court still
has difficulty believing that the fighters present at the "staging area" would have allowed the petitioner to even have
access to a powerful piece of weaponry unless they trusted him and, more importantly, considered him to be a "part
of' their membership.
19 Indeed, that trust is manifested in the fact that Asem, when deciding whether to give the petitioner the
Kalashnikov rifle or the hand gun, provided the petitioner with the far more dangerous and deadly weapon of the
two.
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and that he "took the weapon ... to protect [himselfJ until" they reached their destination in the
mountains, Hr'g Tr. 514:21-25.
The Court refuses to buy in on the petitioner's explanations. As noted above, it would be
beyond any sense of reason for the Court to conclude that the Taliban would allow a
noncombatant to be present in a "staging area" while other fighters preparing to head into battle.
But even assuming that the Taliban would inexplicably aJlow a complete stranger to infiltrate a
location near the battle lines, the Court finds it wholly implausible that a fighter in this area
would provide a person of unknown loyalty to his cause with a weapon (and, in one instance,
allow that individual to fire rounds in his presence).20 The petitioner's attempt to convince the
Court that no nefarious inferences should be drawn from his presence and actions at the "staging
area" is therefore hard to buy.21 See AI-Warafi v. Obama, _ F. Supp. 2d _ ' _ ' 2010 WL
1404001, at *8 (D.D.C. Mar. 24, 2010) (Lamberth, 1.) ("It is inconceivable that the Taliban
would allow an outsider to stay at their front line camp just to see what the fighting was like. An
outsider whose trustworthiness and loyalty are unknown poses a threat to a military camp.").
20 Along the same lines, the Court also concludes that it is more likely than not that the petitioner took possession of
these weapons from a Taliban (or Taliban-affiliated) fighter. Given the Court's deep skepticism of the notion that a
complete stranger would be permitted to knowingly possess a deadly weapon while being permitted to stay in a
fighting force's camp near the front lines, the logical result of that reasoning is that the two individuals who allowed
the petitioner to take possession of their weapons were more likely than not to have been a "part of' the Taliban
fighting force.
21 Even assuming that the petitioner did not engage in actual hostilities against the Northern Alliance, the United
States, or its allies, this fact would not render his detention unlawful. After all, as the District of Columbia Circuit
has observed, an individual's possession of a weapon while on the battlefield, regardless of whether he fired the
weapon, is highly probative evidence that he is a "part of' the Taliban. See Al-Bihani, 590 U.S. at 872- 73 (citing
admissions by the appellant that he had "accompan[ied] the brigade on the battlefield" and "carr[ied] a brigade­
issued weapon" as evidence that he was a "part of' a troop that was supporting the Taliban); id. at 869 (noting that
the appellant was found not to have "fired" his weapon "in combat"). Thus, whether the petitioner actually fought in
battle on behalf of the Taliban does little to mitigate the impact of the Court's finding that he was near the front line
on two occasions, each time having possessed a firearm.
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Thus, based on the evidence presented by the parties in this case, the Court concludes that
the government has proffered more than enough evidence to establish that the petitioner traveled
to an area near the front lines on at least two occasions, and that in both instances he took
possession of a firearm from an individual who was also likely "part of" the Taliban. And, for
the reasons explained above, the most reasonable inference that the Court can draw from these
facts is that there was a mutual understanding amongst all who were present at the "staging area"
that the petitioner was a one of them. The Court, therefore, concludes that these facts present
overwhelming, if not definitive, evidence that the petitioner was a "part of' the Taliban armed
forces. 22
22 The govemment also alleges that the petitioner's receipt of a Casio watch from an individual at the "staging area"
is further evidence of the petitioner's affiliation with the TaJiban. Specifically, t ~
" etitioner had in his ossession the Casio F·91 W" watch at the time of his capture~
Hr'g Tr. at 577:6-8. In support of its
, an Intelli ence Officer for the Defense
To be sure, the District of Columbia Circuit observed in one case that the possession of such a watch could be a
factor in determining whether a detainee is "part ot" the Taliban or al-Qaeda. See Al-Adahi, _ F.3d at _ , 2010
WL 2756551, at *7 (finding it significant that at the time of his capture, the detainee was "wearing a Casio model
favored by al-Qaida leaders," given that he was also someone "who had met with [Osama) bin Laden, had stayed in
an al-Qaida guesthouse, and had trained in an al-Qaida camp"). And here, the petitioner admitted that he was in
possession of a Casio watch at the time of his capture. Gov't's Exhibits, Ex. 39 (ISN 223 FM-40 (Aug. 19,2004» at
2, Hr'g Tr. 507:21-508:2. There is no evidence in the record, however, that the Casio watch in the petitioner's
possession at the time of his capture was the F-9IW model, as opposed to the hundreds of other models
manufactured b Casio for which the ovemment has provided no evidence that such models are used by terrorists
See generally Casio Worldwide, http://world.casio.com. Thus, the
Court would have to determine whether other record evidence-e.g., that the petitioner provided "absolutely
conflicting stories about how he came into possession of [the] watch," Hr'g Tr. at 579:25-580: I-is sufficient to
establish that it is more likely than not that the petitioner did, in fact, possess the F·91 W model at the time of his
capture. But given the ample amount of evidence in the record to support the petitioner's detention under the
AUMF, the Court need not reach a conclusion on this point.
Likewise, the Court finds it unnecessary here to consider the government's claims that the petitioner was captured in
Pakistan without a passport on his person.
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4. On Balance, the Government Has Met its Burden of Proof That the Petitioner's
Detention is Lawful Under the AUMF
In sum, the Court finds that the government has met its burden of proving that the
petitioner was recruited by a Taliban operative, that the petitioner visited or stayed at several
Taliban-affiliated guesthouses following his recruitment, and that the petitioner was present near
the front lines of hattie on two occasions, each time having taken possession of a deadly piece of
weaponry from a fighter stationed at that location. Furthermore, the Court must "reject[ the
petitioner's] attempt to put an innocuous gloss over these ... facts," Al Odah v. U.S., _ F.3d
_ , _ , 2010 WI. 2679752, at *7 (D.C. Cir. June 30, 2010), as the facts do not support the
petitioner's version of events, no matter now many times he repeats it. Rather, a thorough
assessment of the evidence presented by both parties leaves the Court with the unmistakable
impression that, more likely than not, the petitioner was recruited to be, and ultimately became, a
"part of' the Taliban forces. The petitioner is, therefore, lawfully detained under the AUMF.
IV. Conclusion
"Once the government has established by a preponderance of the evidence that [the
petitioner] was 'part of al Qaeda and Taliban forces, the requirements of the AUMF are satisfied
and the government has the authority to detain [the petitioner]." Id. at _ , 2010 WI. 2679752,
at *9. The government has provided more than sufficient evidence-most in the form of the
petitioner's own admissions-to satisfy its burden of establishing the lawfulness of the
petitioner's detention, and the evidence put forth by the petitioner in rebuttal fails to convince the
Court otherwise. Accordingly, the petitioner's petition for a writ of habeas corpus must be
denied.
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UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEOIIFOR PUBLIC RELEASE
SO ORDERED this 20th day of July, 2010. 23
RE EB. WALTON
Umted States District Judge
23 An order will accompany this memorandum opinion, denying the petitioner's petition for a writ of habeas corpus.
43
UNCLASSIFIEOIIFOR PUBLIC RELEASE