Abdah v. Bush ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MAHMOAD ABDAH, et aI.,
Petitioners,
v. Civil Action No. 04-1254 (HHK)
BARACK H. OBAMA, et ai,
Respondents.
MEMORANDUM OPINION
Uthman Abdul Rahim Mohammed Uthman (ISN 27), a Yemeni citizen, has been held by
the United States at the naval base detention facility in Guantanamo Bay, Cuba since January
2002. Uthman contends he is unlawfully detained and has accordingly filed a petition for a writ
of habeas corpus. Respondents in this case, President Barack H. Obama and other high-level
officials in the United States Government, argue that Uthman is lawfully detained and should
remain in U.S. custody. Both parties have filed cross-motions for judgment on the record and
appeared before this Court for hearings on those motions on January 27 and 28 and February 1,2,
and 3, 2010. Upon consideration of the motions and oral presentations of the parties as well as
the record of this case, the Court concludes that respondents have not demonstrated that the
detention of Petitioner Uthman is justified. Therefore, Uthman's petition shall be granted.
I. LEGAL STANDARDS
A. Scope of the Government's Detention Authority
The Authorization for Use of Military Force ("AUMF"), Pub. 1. No. 107-40, 115 Stat.
224 (2001), provides that the President may "use all necessary and appropriate force against
those nations, organizations, or persons he determines planned, authorized, committed, or aided
the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or
persons, in order to prevent any future acts of international terrorism against the United States by
such nations, organizations, or persons." Pub. L. 107-40, § 2(a), 115 Stat. at 224. Although the
U.S. Supreme Court has held that the District Court for the District of Columbia has jurisdiction
over petitions for writs of habeas corpus brought by detainees held at Guantanamo Bay pursuant
to the AUMF, see Boumediene v. Bush, 128 S. Ct. 2229, 2274 (2008); Rasul v. Bush, 542 U.S.
466,483-84 (2004), it has provided "scant guidance" as to whom respondents may lawfully
detain under the statute, AI-Bihani v. Obama, 590 F.3d 866,870 (D.C. Cir. 2010) (noting that the
Supreme Court has "consciously le[ft] the contours of the substantive and procedural law of
detention open for lower courts to shape in a common law fashion" (citing Hamdi v. Rumsfeld,
542 U.S. 507,522 n.l (2004) (plurality opinion of O'Connor, J.); Boumediene, 128 S. Ct. at
2276)).
In the absence of controlling law on this matter, the Court shall rely on the reasoning of
other Judges of this Court who have thoroughly and thoughtfully addressed the question of by
what standard to evaluate the lawfulness of the detention of the individuals held at Guantanamo
Bay. Accordingly, as Judge Bates ruled in Hamlily v. Obama, 616 F. Supp. 2d 63 (D.D.C. 2009),
the government may detain "those who are 'part of' the 'Taliban or al Qaida forces,'" id. at 69-
70,1 and as Judge Walton ruled in Gherebi v. Obama, 609 F. Supp. 2d 43 (D.D.C. 2009), "[t]he
key question is whether an individual 'receivers] and execute[s] orders' from the enemy force's
combat apparatus," id. at 69 (alterations in original).2
"It is not in dispute that Al Qaeda is the organization responsible for September
11," AI-Bihani, 590 F.3d at 873, and is therefore among the entities to which the AUMF refers.
There are, of course, unresolved questions about the scope of the government's
detention authority, but this case does not require the Court to address any of them.
2
B. Burden of Proof
As stated in the Amended Case Management Order that governs this case, "[t]he
government bears the burden of proving by a preponderance of the evidence that the petitioner's
detention is lawful." In re Guantanamo Bay Litig., Misc. No. 08-442, CMO § II.A (Nov. 6,
2008). Accordingly, Uthman need not prove that he is unlawfully detained; rather, respondents
must produce "evidence which as a whole shows that the fact sought to be proved," that Uthman
was part of Al Qaeda, "is more probable than not." United States v. Mathis, 216 F.3d 18,28
(D.C. Cir. 2000) (quoting United States v. Montague, 40 F.3d 1251, 1255 & n.2 (D.C. Cir.
1994»; see also AI-Bihani, 590 F.3d at 878 (rejecting Guantanamo Bay detainee's argument that
use ofthe preponderance of the evidence standard in his habeas case was unconstitutional). If
respondents fail to meet this burden, the Court must grant Uthman's petition and order his
release.
c. Evidentiary Issues
The Court notes at the outset two issues regarding the evidence in this case.
First, as explained in an order entered in this case on August 26,2009 [#606], the Court
has permitted the admission of hearsay evidence but considers at this merits stage the accuracy,
reliability, and credibility of all of the evidence presented to support the parties' arguments. This
approach is consistent with a directive from the D.C. Circuit. See AI-Bihani, 590 F.3d at 879
("[T]he 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."). The Court's assessment of the weight properly accorded to particular
pieces of evidence appears throughout this memorandum opinion.
Second, the nature of the evidence before the Court is atypical of evidence usually
3
presented in federal actions. Respondents have offered a variety of types of documents produced
and used by government intelligence agencies that are not the direct statements of the individuals
whose personal knowledge they reflect. The Court also heard from one live witness, an
investigator for a federal law enforcement agency called the Criminal Investigation Task Force
("CITF"), whose testimony is described below.
II. ANALYSIS
Uthman's activities between his schooling in Yemen and seizure preceding his detention
at Guantanamo Bay are in dispute and are the focus of this case. In sum, respondents argue that
Uthman traveled to Afghanistan to join Al Qaeda, and once there, he trained to be a fighter,
fought against forces seeking to overturn the Taliban's regime, and became a bodyguard for
U sarna bin Laden. Uthman contends that he went to Afghanistan to teach the Quran to children
and was not part of Al Qaeda.
At the Court's request, the parties identified five contested issues of fact before the merits
hearing commenced and structured their presentations to address each issue in tum during that
hearing. This opinion similarly addresses each issue in tum, and it then considers the reliable
evidence as a whole to explain the Court's conclusion that respondents have failed to
demonstrate by a preponderance of the evidence that Uthman was part of Al Qaeda.
A. Issue One: Whether Uthman Served as a Bodyguard For or Was Part of the
Security Detail of Usama Bin Laden
Respondents' primary argument in this case is that Uthman acted as a bodyguard for
Usama bin Laden. The evidence they present in support of this contention fails to convince the
Court that it is more likely than not that Uthman was a bodyguard.
1. Statements of Hajj (ISN 1457) and Kazimi (ISN 1453)
Respondents' most important pieces of evidence regarding this issue are intelligence
4
reports, referred to as FM40s, reporting statements of two other detainees currently held at
Guantanamo Bay. In light of the abusive circumstances of the detention of these men and serious
questions about the accuracy of their identifications of Uthman, the Court finds these statements
to be unreliable and will not consider them in evaluating whether the detention of Uthman is
lawful.
The statements are quite damning on their faces. Sharqwi Abdu Ali AI-Hajj, identified as
ISN 1457, is a member of Al Qaeda often called, among other aliases, Riyadh the Facilitator.
Respondents presented evidence, in an FM40, that Hajj identified a photograph ofUthman as
"Hudaifa al Adani," a name respondents contend Uthman used as an alias, and stated that
Uthman "became a bodyguard for [Usama bin Laden] a couple of months prior to the September
11,2001 attacks." Joint Exhibit ("JE") 29 at 4. 3 Hajj also stated that in traveling within
Afghanistan just after September 11, 2001, he encountered "Hudaifa al Adani," one of several
Usama bin Laden guards, at a particular location near a meeting Usama bin Laden attended. JE
70 at 5. 4
Sanad Yislam Ali Al Kazimi, ISN 1453, is also a member of Al Qaeda. An FM40
summarizing an interrogation of Kazimi indicates that he stated that a picture ofUthman "looks
like Hudaifa Al Yemeni" and stated that "he heard" Uthman became a bodyguard for Usama bin
Laden. JE 28 at 5.
i. Torture
The Court will not rely on the statements of Hajj or Kazimi because there is unrebutted
3 In several of the intelligence reports quoted in this opinion, the text appears in all
capital letters. For ease of reading, the Court reproduces all quoted text in lowercase regardless
of its appearance in the source.
4
The relevant FM40 is split into two parts: JE 29 is the first part and JE 70 is the
second.
5
evidence in the record that, at the time of the interrogations at which they made the statements,
both men had recently been tortured.
a. Evidence of torture
Uthman has submitted to the Court a declaration of Kristin B. Wilhelm, an attorney who
represents Hajj, summarizing Hajj's description to her of his treatment while in custody. The
declaration states that while held in Jordan, Hajj "was regularly beaten and threatened with
electrocution and molestation," and he eventually "manufactured facts" and confessed to his
interrogators' allegations "in order to make the torture stop." JE 142 at 2. After transfer to a
secret CIA-run prison in Kabul, Afghanistan, Hajj was reportedly "kept in complete darkness and
was subject to continuous loud music." Id. at 3.
Uthman has also submitted a declaration of Martha Rayner, a Professor at Fordham
University Law School who represents Kazimi, regarding Kazimi's description of his treatment
in detention. Rayner reports that while Kazimi was detained outside the United States, his
interrogators beat him; held him naked and shackled in a dark, cold cell; dropped him into cold
water while his hands and legs were bound; and sexually abused him. Kazimi told Rayner that
eventually "[h]e made up his mind to say' Yes' to anything the interrogators said to avoid further
torture." JE 145 ~ 13. According to Rayner's declaration, Kazimi was relocated to a prison run
by the CIA where he was always in darkness and where he was hooded, given injections, beaten,
hit with electric cables, suspended from above, made to be naked, and subjected to continuous
loud music. Kazimi reported trying to kill himself on three occasions. He told Rayner that he
realized "he could mitigate the torture by telling the interrogators what they wanted to hear." Id.
~ 34. Next, Kazimi was moved to a U.S. detention facility in Bagram, Afghanistan, where, he
told Rayner, he was isolated, shackled, "psychologically tortured and traumatized by guards'
6
desecration of the Koran" and interrogated "day and night, and very frequently." Id. ~ 37.
Kazimi told Rayner that he "tried very hard" to tell his interrogators at Bagram the same
information he had told his previous interrogators "so they would not hurt him." Id. ~ 42.
b. Failure to rebut
Respondents replied to these declarations by presenting as a witness a criminal
investigator for CITF, but the testimony of the investigator fails to effectively rebut the evidence
of abuse of Hajj and Kazimi. The investigator conducted interviews of Hajj and Kazimi in June
2004 at the Air Force Base in Bagram, Afghanistan at which both men were then held, as well as
later that year in Guantanamo Bay. The FM 40s that report each man's identification of a
photograph ofUthman as Hudaifa, an Usama bin Laden bodyguard, are the investigator's
summaries of the Bagram interviews. See JE 28 at 1; JE 29 at 1.5 The investigator's testimony
added to the record persuasive evidence that the investigator herself did not mistreat Hajj or
Kazimi and that the investigator did not observe any torture, or even any signs of abuse in the
demeanor or physical state of either man, while the investigator was with them. But the
investigator has no knowledge of the circumstances of either detainee's confinement before his
arrival at Bagram and quite limited knowledge of his treatment there. The investigator testified
to meeting with each man in an interrogation room on several days for approximately four hours
at a time. The investigator did not see Hajj or Kazimi other than during those four-hour sessions
and did not inquire of them. or anyone else, about their treatment in the various prisons in which
they were held.
Respondents also ask the Court to disregard Wilhelm and Raynor's declarations because
The FM40s resulting from the interviews of Hajj and Kazimi that the investigator
conducted at Guantanamo Bay after those men were transferred there are part of the record
before the Court, but they do not contain any infomlation about, or possibly about, Uthman.
7
they are not direct, sworn statements of the detainees themselves. 6 The Court shall not do so. As
noted above, the nature of these proceedings is unique, and the Court is forced to rely on
evidence that would normally not be accorded weight in the legal system. Respondents
themselves ask the Court to detain Uthman on the basis of hearsay. Without a reason to doubt
the veracity of the declarations. the Court cannot ignore them.
c. Legal analysis
Uthman asserts that the proximity in time between the torture Hajj and Kamizi described
and their interrogations by the CITF investigator, however cordial, renders their statements
unreliable. In general, "resort to coercive tactics by an interrogator renders the information less
likely to be true." Mohammedv. Obama, 2009 WL 4884194, at *23 (D.D.C. Dec. 16,2009)
(citing Linkletter v. Walker, 381 U.S. 618, 638 (1965)). To determine admissibility in analogous
situations criminal cases, courts assess the voluntariness of statements made after the application
of coercive techniques based on a totality of the circumstances test. ld. (citing United States v.
Karake, 443 F. Supp. 2d 8, 87 (D.D.C. 2006)); see also Schneckloth v. Bustamante, 412 U.S.
218,226 (1973) ("In determining whether a defendant's will was overborne in a particular case,
the Court has assessed the totality of all the surrounding circumstances. "). Judges of this Court
have adopted this test in the cases of other Guantanamo Bay detainees seeking release. See, e.g.,
Mohammed, 2009 WL 4884194, at *23; Anam v. Obama, - F. Supp. 2d -,2010 WL 58965, at
*4 (D.D.C. Jan. 6, 2010). The test calls for considering, inter alia, "the time that passes between
confessions, the change in place of interrogations, and the change in identity of the
6 In addition, respondents object to the unauthenticated statements regarding abuse
that appear in a third document containing evidence of torture, which Uthman presents as the
translation of a letter written by Hajj. See JE 144. Because there is other, unrebutted evidence of
torture in the record, the Court need not resolve the question of whether to take this exhibit into
consideration.
8
interrogators." Mohammed, 2009 WL 4884194, at *23 (quoting Oregon v. Elstad, 470 U.S. 298,
310 (1985)) (internal quotation mark omitted).
Respondents do not argue that the alleged torture of Hajj and Kazimi is sufficiently
attenuated from the interviews at which they gave the relevant statements to support a conclusion
that despite the coercion, the statements are nonetheless reliable. 7 The interviews on which the
relevant FM40s are based occurred in Bagram, where torture of Hajj was ongoing and where
Kazimi had arrived directly from the CIA prison, at which he was tortured, only about a month
earlier. See JE 145 ~ 36; JE 28 at 1. Therefore, the Court concludes that there has been no
"break in the stream of events ... sufficient to insulate the statement from the effect of all that
went before." Clewis v. Texas, 386 U.S. 707, 71 0 (1967). Accordingly, the Court will not treat
Hajj and Kazimi' s statements as true.
ii. Reliability of identification
Furthermore, there are serious questions as to whether Hajj and Kazimi's statements,
even if considered outside the context of the coercion that limits their value, constitute significant
evidence that Uthman was a part of Al Qaeda. Specifically, the assertions that "Hudaifa" was a
bodyguard for Usama bin Laden are only relevant if "Hudaifa" is an alias for Uthman.
According to the Defense Intelligence Agency, members of Al Qaeda use aliases, often
referred to as kunyas, to "conceal[] the individual's identity" and "as a security, denial and
deception measure." JE 2 at 2. Therefore, it would not be surprising that, were Uthman a former
7 Respondents do offer reasons the statements appear to be reliable. Specifically,
they refer to (1) the CITF investigator's testimony that the investigator believed Hajj and Kazimi
were truthful in response to questions and (2) Kazimi's statement in an interview with the
investigator at Guantanamo Bay in November 2004 that he was unfairly accused of more charges
than other detainees because he had been truthful with interrogators. GE 8 at 2. But these
indicia of reliability do not outweigh the reasons to infer, based on the coercive circumstances so
close in time to the interrogation, that they are unreliable.
9
bodyguard for Usama bin Laden, he had an alias by which Al Qaeda fighters knew him. But
respondents have not demonstrated a link between Uthman and the name "Hudaifa."g
They offer one piece of evidence to support the contention that Uthman used Hudaifa as
an alias, but the Court will not consider it. The D.C. Circuit has made clear that hearsay
evidence "must be presented in a form, or with sufficient additional information, that permits
[the factfinder] to assess its reliability." Farhat v. Gates, 532 F.3d 834,849 (D.C. Cir. 2008).
Here, the relevant document contains limited information about its source. Therefore, the Court
does not have "knowledge as to the circumstances under which the source obtained the
information." Boumediene v. Bush, 579 F. Supp. 2d 191,197 (D.D.C. 2008) (concluding that
"the information in the classified intelligence report[] relating to the credibility and reliability of
the source ... is not sufficient for the purposes for which a habeas court must now evaluate it"
where "the Court has no knowledge as to the circumstances under which the source obtained the
information" on which respondents rely); see also Anam, 2010 WL 58965, at *8 (declining to
rely on an intelligence report of which "[t]he source (or sources) ... is unknown" and another
that "lacks any indicia of reliability"). Because the Court cannot evaluate whether the
information in document is credible, it will not rely on it.
Moreover, it is not clear that the name by which Kazimi referred to the photograph of
Uthman was consistent with an identification ofUthman. Respondents produced a copy of the
photograph the CITF investigator showed to Kazimi during the investigator's interview with
him; on the back of that photo, Kazimi wrote a line of text in Arabic. GE 2. At some point after
g "Hudaifa al Adani," the name Hajj used when shown the photograph of Uthman,
means Hudaifa from Aden. JE 2 at 7. "Hudaifa Al Yemeni," the name in the FM40 ofKazimi's
interview, means Hudaifa from Yemen. Id. at 12. Because Uthman is from Aden, which is in
Yemen, these descriptors are appropriate to him, but they do not alone constitute an
identification. Many people, including many suspected or admitted Al Qaeda members about
whom there is evidence in the record currently before the Court, are from Aden, Yemen.
10
the interview, someone wrote a translation of that line in English just beneath it, which reads:
"He is Arab, and Looks Like Huthaifa AI-Anzi." Jd. Uthman obtained a declaration of a
professional translator who stated that the line of Arabic reads: "Shafai Adani looks like
Khuthaifa Al Anzi." PE 4 (Declaration of Masud Hasnain).9 Whatever the significance of the
inconsistencies in translations on Kazimi's intended meaning and the accuracy of the
investigator's recording ofKazimi's statements, both English versions of the text indicate that
Kazimi wrote "AI Anzi." Al Ansi, according to an undisputed definition from Wikipedia, "is an
ancient and prolific Arab tribe, originating in the Hadhramaut region of Yemen." PE 5. There is
no evidence in the record that Uthman has any connection to this tribe or has used an alias that
includes this reference. The Court therefore cannot conclude that Kazimi recognized Uthman
from the photograph or was talking about Uthman when he said Hudaifa Al Anzi was a
bodyguard for Usama bin Laden. 10
2. Other evidence
i. Statement of Bukhari (ISN 493)
Respondents offer as additional evidence that Uthman was a bodyguard for Usama bin
Laden another statement, this one recorded in an intelligence report resulting from an
interrogation of Abd Al Hakim Abd Al Karim Amin Bukhari, ISN 493. Bukhari stated that
Uthman "was a member of the Usama bin Laden ... security detail." JE 77 at 2.
9
Respondents have not rebutted this alternative translation.
10 Uthman places great weight on the statement in the FM40 of Kazimi's
interrogation that the photograph "looks like Hudaifa." JE 28 at 5. He reasons that the assertion
that an individual "looks like" a particular person falls short of being an identification. Although
this language certainly does not assist respondents in making their case, it is not clear to the
Court whether it compromises the identification. In any event, because the Court will not
consider the statement as weighing against Uthman's petition for the reasons explained above,
resolution of this issue is unnecessary.
11
The Court finds this evidence unpersuasive for two reasons. First, it is not clear that
Bukhari's statement is based on personal knowledge. Bukhari stated in testimony before the
Combatant Status Review Tribunal that he was only in Afghanistan for ten days after the
September 11 attacks and that before then, he had been in Saudi Arabia. JE 149 at 8. If this
information is correct, Bukhari could not have observed Uthman acting as a bodyguard in
Afghanistan before September 11. In reply to this logic, respondents point to a report containing
intelligence the Department of Defense received from Bukhari; Bukhari described a speech
Usama bin Laden gave in Kandahar, Afghanistan "approximately three months before 9/11." JE
150 at 1. Respondents infer that Bukhari' s presence at this speech means he and Uthman were in
Kandahar at the same time. Even accepting that inference as true, there is no evidence in the
record that the two men were at the same speech, in the same building, or ever even saw each
other in Kandahar. Without more information as to how Bukhari came to believe that Uthman
was part of Usarna bin Laden's security detail, the Court cannot evaluate the credibility of the
statement and therefore cannot rely on it. See Boumediene, 579 F. Supp. 2d at 197; Anam, 2010
WL 58965, at *8.
ii. Opportunity to become a bodyguard
Respondents have presented a variety of other statements to support the proposition that
Uthman had the necessary contacts to become a bodyguard for Usama bin Laden. These contacts
are relevant, respondents assert, because according to Hajj, "those who were bodyguards would
try to get people they knew, or people who were from their hometown, to be bodyguards," JE 29
at 4, so one of these men may have recommended Uthman.
This evidence, even if accepted as true, does not demonstrate that Uthman was a
bodyguard for Usama bin Laden. It might assist in corroborating or explaining other evidence of
12
such a fact were there indications in the record from reliable sources supporting the proposition.
But, as explained, there are not. The ability to become a bodyguard is simply not proof, even
under the preponderance of the evidence standard, that Uthman actually took the opportunity. In
sum, because respondents have not presented evidence on which the Court can rely to
demonstrate that, more likely than not, Uthman was a bodyguard for Usama bin Laden, the Court
cannot find that Uthman is lawfully detained on that basis.
B. Issue Two: Whether Uthman's Seizure Near the Site of the Battle of Tora Bora is
Incriminatory
By his own admission, Uthman was seized in late 2001 in the general vicinity ofTora
Bora. JE 10 at 3; JE 13 at 2-3. He was with a group of approximately thirty other men, a few of
whom he knew from Yemen. JE 10 at 3; JE 13 at 2.
Respondents argue that these circumstances-in particular, Uthman's location and the
identities of some of his fellow travelers-are evidence of his affiliation with Al Qaeda.
Respondents question why Uthman would choose to stay in Afghanistan after September 11,
2001 ifhe were not involved in Al Qaeda. They assert that Uthman's proximity at the time of his
capture to the site of an ongoing battle and a known location of U sarna bin Laden, a cave
complex called Tora Bora, strongly suggests he was coming from the complex. I I Additionally, at
least some of the men with whom Uthman traveled-in particular, the ones he knew-were
admitted, or at least alleged, Al Qaeda members, some of whom were likely coming from Tora
Bora. See JE 10 at 3; JE 13 at 2; JE 93 at 9; JE 29 at 4,5.
II After the September 11 attacks, Al Qaeda fighters went to Tora Bora, which is in
eastern Afghanistan, "to make a last stand in their fight against the United States and its allies."
JE 63 at 1-2. Tora Bora was the target of air strikes, the "most intense" of which occurred from
December 10 through 17, 2001. Id. at 2. As the battle went on, many fighters escaped the cave
complex. Id. at 3. Because the call for fighters to join Usama bin Laden at Tora Bora was
"widely known," "few, if any noncombatants would have been in the vicinity during this time."
Id. at 4.
13
Uthman rejoins first that respondents have presented no direct evidence that Uthman was
at Tora Bora. Second, he argues that insofar as respondents have identified circumstantial
evidence suggesting that he was present at the battle there, the inferences necessary to so
conclude assume the truth of the allegation that Uthman was a bodyguard for Usama bin Laden.
Third, despite reiterating that the burden is on respondents to prove their case rather than for
Uthman to prove anything, he argues that the information from other detainees is consistent with
Uthman's assertion that he was in Khost, Afghanistan, rather than Tora Bora, before being
seized. 12
On balance, the Court accepts respondents' evidence, which is largely based on and
consistent with Uthman's own admissions, as true and will consider it in evaluating whether the
evidence as a whole supports the continued detention ofUthman.
C. Issue Three: Whether Uthman Fought on the Front Lines and was Present at an AI
Qaeda/Taliban Guesthouse in Kabul, Afghanistan
Respondents argue in further support of their contention that Uthman was part of Al
Qaeda that (1) he fought with Al Qaeda members alongside the Taliban in Kabul, Afghanistan
against forces trying to overturn the Taliban regime in that country and (2) he stayed at an Al
Qaeda guesthouse in Kabul. As evidence of their first allegation, respondents point to a
statement by Kazimi during an interview with the CITF investigator at Bagram that Uthman "was
in Kabul on the front line." JE 28 at 5. An intelligence report also indicates-perhaps based on
the CITF investigator's interview-that Kazimi identified a picture ofUthman as "Hudayfah
[]AI-Adani[]," who Kazimi "believe[d] was fighting on the front lines." JE 43 at 3. Another
intelligence report indicates that a different detainee identified a photograph of Uthman as
12 According to Uthman, after September 11, he went to the village of the man who
was his translator while he was a tutor, located outside the city of Khost, to escape the bombing
of Kabul. JE 103 (Decl. of Uthman) , 12.
14
"Yasser AI-Madani (Yemeni)" and indicated that he was at the "Omar Seifposition," a location
on the front lines, in Kabul. JE 44 at 2. Regarding the second allegation, respondents note that
the intelligence of which Kazimi is the source indicates that Kazimi stated he "last saw"
Hudayfah at a guesthouse in Kabul in "early 2001." JE 43 at 3.
Uthman attacks each piece of evidence. As to Kazimi' s statements, Uthman argues they
are tainted by torture and therefore unreliable. He also argues that Kazimi does not explain how
he came to "believe[]" Uthman was on the front lines, JE 43 at 3, rendering the information
unreliable, and that Uthman asserts he was not in Kabul until March 2001, JE 10 at 2, which is
inconsistent with Kazimi' s having seen him there in "early" 2001, JE 43 at 3. As to the
statement of the other detainee, Uthman argues the use of the name "Yasser" as well as "al-
Madani," which refers to someone from Medina, Saudi Arabia, demonstrate that the
identification is inaccurate.
The Court agrees with Uthman as to most of this evidence. As explained above, the
Court cannot appropriately rely on the information of which Kazimi is the source, primarily
because Kazimi's statements are not sufficiently attenuated from torture, of which there are
unrebutted allegations in the record, by other interrogators. The other detainee's reference to
"Yasser ai-Madani" calls into serious question his identification ofUthman. Even assuming at
respondents' suggestion that "ai-Madani" is an erroneous transcription of "al-Adani,"
respondents have identified no indication anywhere in the record that Uthman used "Yasser" as
an alias. Because there is so little reason to believe Uthman was a fighter in Kabul, the Court
will not conclude it is more likely than not that this allegation is true.
D. Issue Four: Whether Uthman Attended an Al Qaeda Training Camp and Was
Present at an Al Qaeda Guesthouse in Kandahar, Afghanistan
Respondents also contend that Uthman took part in Al Qaeda-sponsored activities in
15
Kandahar, Afghanistan before going to Kabul, which, respondents reason, is consistent with and
reinforcing of the proposition that Uthman was a bodyguard for Usama bin Laden. Specifically,
they assert that he attended a training camp for Al Qaeda fighters and, as in Kabul, stayed at an
Al Qaeda guesthouse. Respondents base their training camp allegation largely on an intelligence
report that the contents of a "document issued by the Office of Mujahideen Affairs" that,
according to the report, "lists over 150 AI-Qaeda members scheduled for tactics, artillery,
security, snipers and anti-aircraft training." JE 51 at 2Y The name "Abu Huthayfah AI-'Adani"
appears in a list of individuals who were to attend a tactics class on March 24, 2001. 14 Id. at 7.
Uthman makes three arguments regarding the training roster. First, he argues that
respondents have not shown that Hudaifa is a kunya Uthman used. Second, even had they so
demonstrated, Uthman asserts that the inclusion of "Abu" in the name on the list distinguishes it
from the name by which Kazimi and Hajj referred to the photograph ofUthman. Abu means
"father of," so the name immediately following it is normally the name of a man's first-born
child, not his own name. JE 2 at 2. Uthman reasons that even if a man with no children uses
Abu in his kunya to conceal his identity, the name following Abu would not be the same name he
uses to identify himself in another kunya. Third, he points to references in the record of this case
to two other men who used the alias Abu Hudaifa. See JE 154 at 1; JE 23 at 2.
The Court concludes that this evidence, although not necessarily unreliable, is not
persuasive as to the contention respondents seek to support. As discussed above, there is no
reliable evidence linking Uthman to the name Hudaifa. Therefore, the appearance of that name
13 The list "was recovered by U.S. Coalition Forces from an AI-Qaeda house in
Kandahar." JE 51 at 3.
14 The document uses the Islamic Calendar, but the parties agree the relevant date
corresponds to this day on the Gregorian Calendar.
16
on the training list, especially without corroboration from any other source that Uthman might
have been at a training camp, does not make it more likely than not that Uthman attended the
tactics course. That Abu Hudaifa was an alias for other men, whether or not the particular men
identified were likely to have attended this particular training, further weakens the proposition
that the list itself can support respondents' allegation.
As to the guesthouse allegation, a summary of an interrogation of Richard Dean Belmar,
ISN 817, indicates that when shown a picture ofUthman, Belmar stated that he "may have been a
lower amir," or leader, "in the Kandahar guest house." 1E 36 at 2.15
Again, Uthman attacks all of respondents' evidence. Uthman discounts the recollection
of Belmar, who (1) was not Arab, (2) indicated by saying the photo "may have been" of an amir
that he was unsure of his statement, and (3) was not in Kandahar at the same time as Uthman.
See PE 7 at 3 (summarizing Belmar's statements before the Combatant Status Review Board in
November 2004, including an admission that he "traveled from the United Kingdom to
Kandahar, Afghanistan around July 2001 "); JE 10 at 2 (reporting that Uthman asserted he left
Yemen for Afghanistan in March 2001 and about a week after arriving in Kandahar went to
Kabul).
The allegation that Uthman was an amir at an Al Qaeda guesthouse is not as easily
dismissed as the training camp allegation. Because Belmar's statement is not a definitive
identification, it is not strong evidence ofUthman's presence at such a guesthouse. But it is not
so unreliable that the Court disregards it entirely.
15 To explain this allegation that Uthman was not just a guest at, but a lower leader
of, a guesthouse, respondents infer that Uthman likely traveled to Afghanistan before 2001, when
he asserts he arrived, JE 103 ~~ 6-8, such that he was able to train, fight in Kabul, rise to a
position of some prominence at a guesthouse, and serve as a bodyguard during that year.
17
E. Issue Five: Whether Uthman's Prior Associations, Travel Route to Afghanistan, and
Other Circumstances Further Support that He Was Part of Al Qaeda.
Respondents present a variety of additional evidence and arguments to support their case,
and Uthman responds to each point. For example, Uthman argues that giving weight to the
undisputed fact that he might have known some men who became involved in terrorism
constitutes inappropriately permitting respondents to prove guilt by association.
Respondents also attach significance to the fact that Uthman traveled from Yemen to
Afghanistan along a route-a flight from Yemen to Karachi, Pakistan; a stay at a hotel in
Karachi; a bus from Karachi to Quetta, Pakistan; a ride to Kandahar, Afghanistan-that Al
Qaeda members also took. See JE I 03 ~~ 6-7 (recounting Uthman's trip); GE 7 at I (citing to
interrogation reports of other alleged Al Qaeda members who described similar travel routes).
Uthman asserts that travel to Afghanistan, which did not have a functioning international airport
in 2001, required an indirect route, and proceeding on the same path as Al Qaeda members is not
evidence of participation in Al Qaeda.
Uthman has not disputed the factual accuracy of most of these contentions, instead
arguing that they are not sufficient to demonstrate that he is lawfully detained. 16 The Court
therefore accepts each of respondents' allegations as true and discusses their significance below.
16 Respondents also argue that Uthman now offers an implausible alternative
account of his activities in Afghanistan. The Court has considered the version of events Uthman
describes and notes that some aspects of the story he tells are less than entirely believable. In
particular, Uthman asserts he taught children in Afghanistan, but he does not know Pashtu, the
primary language spoken in that country. But Uthman offers two explanations of this
questionable detail: because the Arabic spoken in Yemen is "considered to be the closest to the
classical language of the Quran," "knowledge of Yemeni Arabic is a bona fide job skill in the
educational sector in ... Afghanistan," JE 114 ~ 16(f), and Uthman "depended on [a man who
served as a translator for him] for communication," JE 103 ~ 10. Overall, Uthman's account is
not so incredible as to lead the Court, in weighing all the evidence before it, to conclude the
respondents have met their ultimate burden of showing by a preponderance of the evidence that
Uthman was part of Al Qaeda.
18
G. Conclusion
In sum, the Court gives credence to evidence that Uthman (1) studied at a school at which
other men were recruited to fight for Al Qaeda; (2) received money for his trip to Afghanistan
from an individual who supported jihad; (3) traveled to Afghanistan along a route also taken by
Al Qaeda recruits; (4) was seen at two Al Qaeda guesthouses in Afghanistan; and (5) was with Al
Qaeda members in the vicinity ofTora Bora after the battle that occurred there.
Even taken together, these facts do not convince the Court by a preponderance of the
evidence that Uthman received and executed orders from Al Qaeda. Although this information is
consistent with the proposition that Uthman was a part of Al Qaeda, it is not proof of that
allegation. As explained, the record does not contain reliable evidence that Uthman was a
bodyguard for Usama bin Laden or fought for Al Qaeda. Certainly none of the facts respondents
have demonstrated are true are direct evidence of fighting or otherwise "receiv[ing] and
execut[ing] orders," Gherebi, 609 F. Supp. 2d at 69,17 and they also do not, even together, paint
an incriminating enough picture to demonstrate that the inferences respondents ask the Court to
17 The Court notes that the D.C. Circuit has suggested that evidence that a detainee
"visited Al Qaeda guesthouses ... would seem to overwhelmingly, if not definitively, justifY the
government's detention" of that individual. Al-Bihani, 590 F.3d at 873 n.2. But this statement is
dicta, and it appears in an opinion reviewing a case in which respondents presented significantly
stronger evidence supporting the detention of the individual in question than they have
here-including that the detainee had "accompanied and served a paramilitary group allied with
the Taliban ... which fought on the front lines against the Northern Alliance," id. at 869-and
noting explicitly that the Circuit Court did not rely on evidence regarding guesthouses in
affirming denial of the petition. id. at 873 n.2. Furthermore, respondents have not argued that
Uthman's detention is justified based solely on his having been seen at Al Qaeda guesthouses. In
addition, there is evidence in the record, albeit not specific to AI Qaeda guesthouses, that "[t]he
fact that a young Yemeni stays at . guest houses' while in ... Afghanistan does not itself imply
anything menacing or illicit" because it is common for such a man traveling abroad to seek
economical, safe accommodations. JE 114 (Dec\. of Dr. Sheila Carapico),-r 15. Moreover, there
is no evidence before the Court that Uthman did anything more incriminatory than appear at Al
Qaeda guesthouses. For these reasons, the Court sees no basis for detaining Uthman on the
minimally incriminating facts before it.
19
make are more likely accurate than not. Associations with Al Qaeda members, or institutions to
which Al Qaeda members have connections, are not alone enough to demonstrate that, more
likely than not, Uthman was part of Al Qaeda. See Ahmedv. Obama, 613 F. Supp. 2d 51, 63-64
(D.D.C. 2009) (granting the habeas petition of a Guantanamo Bay detainee where the evidence
that remained after excluding unreliable evidence amounted to "essentially a charge of guilt by
association").
Respondents have presented some evidence that, at first blush, is quite incriminating of
Uthman and supportive of the position that he is lawfully detained. Upon close examination of
that evidence, however, the Court tinds that there is reason not to credit some of it at all and
reason to conclude that what remains is not nearly as probative of respondents' position as they
assert. Therefore, the evidence against Uthman is not sufficient to carry respondents' burden.
III. CONCLUSION
For the foregoing reasons, Uthman's petition for a writ of habeas corpus shall be granted.
An appropriate order accompanies this memorandum opinion.
Henry H. Kennedy, Jr.
United States District Judge
20