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                        UNITED STATBS DISTRICT COURT
                        POR THB DISTRICT OP COLUMBIA

PARRI SAEED BIN MOHAMMED,
et. al.,

     Petitioners,

     v.	                                            Civil Action No.        OS-~347        (GK)

BARACK	 H. OBAMA, et. al.,

     Respondents.


                               MEMORANDUM OPINION

     Petitioner        Farhi     Saeed         Bin         Mohammed       ( "Mohammed"           or

"Petitioner")       has been detained since 2002 at the United States

Naval Base at Guantanamo Bay, Cuba.                     Respondents ("the Government")

argue that his detention is justified under the Authorization for

the Use of Military Force,           Pub. L. No. 107-40               §   2(a), 115 Stat.

224, 224 (2001)       ("AUMF"), which grants the Executive the power to

detain     individuals       engaged    in        certain      terrorist       activities.

Petitioner disagrees, and has filed a petition for a writ of habeas

corpus [Dkt. No.1).

     The matter is before the Court on Cross-Motions for Judgment

on the     Record    [Dkt.    Nos.   215-17].              Upon consideration of               the

Motions, the Oppositions, extensive oral argument and accompanying

eXhibits, and the entire record herein, Mohammed's habeas corpus

petition and Motion are hereby granted.

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       Because of the length of this Opinion, the Court includes the

following Table of Contents:

I.	    Procedural History
                                                                   3

II.	   Standard of Review
                                                                   7

III.	 Analysis                                                                               10


       A.   Evidentiary Presumptions	                                                        10


       B.   Mosaic Theory	                                                                   13


       C.   Government Allegations	                                                          16


            1.	    Use of False Names and Documents                                          17


            2.	    Attendance at London Mosques                                              20


            3.	    Recruitment and Travel to Afghanistan                                     23


            4.	    Guesthouse Stay                                                           28


            5 .	   Training                                                                  40


                   a.	   The Government's Evidence                                           42


                   b.	   Petitioner's Attacks on the

                         Government's Evidence                                               47


                         i.	     Torture Allegations                                         48


                         ii.	 Legal Analysis                                                 57


                         iii.	 Reliability of Evidence

                               Procured Subsequent to Torture .... 61


                   d.	   Remaining Allegations Regarding

                         Training. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70


            6.	    participation in Battle
                                                  72

IV.	   Conclusion
                                                                           75



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I.   PROCEDURAL HISTORY

     Petitioner filed his habeas corpus petition on July 6, 2005.

After filing, there was extensive preliminary litigation regarding

the Court's jurisdiction to entertain detainees'             petitions,      the

applicability of various statutes, and the appropriate procedures

to be used.

     After more than six years of litigation, the most important

legal issue was resolved by the Supreme Court in Boumediene v.

Bush, 553 U.S.      , 128 S. Ct. 2229 (2008).         The Court ruled that

detainees at Guantanamo Bay,       none of whom are citizens of the

United States, are entitled to bring habeas petitions under Article

I of the Constitution, and that the federal district courts have

jurisdiction to hear such petitions.

     The Court did not define what conduct the Government would

have to prove,     by a preponderance of the evidence,           in order to

justifiably detain     individuals--that question          was   left   to   the

District Courts.      Id.   at 2240    ("We do not address whether the

President has the authority to detain these petitioners nor do we

hold that the writ must issue.     These and other questions regarding

the legality of the detention are to be resolved in the first

instance by the District Court.").            Nor did the Supreme Court set

forth specific procedures for the District Courts to follow in

these cases.

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        Boumediene was, however, definitive on at least two points:

first, that the detainees are entitled to a prompt hearing, id. at

2275 ("The detainees in these cases are entitled to a prompt habeas

corpus hearing."),    and,     second,    that the District Courts are to

shape the contours of those hearings,            id. at 2276   (finding that

balancing protection of the writ and the Government's interest in

military operations,       "and the other remaining questions [,]           are

wi thin the    expertise    and competence of        the District   Court    to

address in the first instance.").

        In an effort to provide the prompt hearings mandated by the

Supreme Court,    many of      the   judges    in this District agreed to

consolidate their cases before former Chief Judge Thomas Hogan, for

purposes of streamlining procedures for,            and management of,      the

several hundred petitions filed by detainees.             See Order (July 1,

2008)    [Civ. No. 08-442, Dkt. No.1].          On November 6, 2008, after

extensive briefing from Petitioners' counsel and the Government,

Judge Hogan issued a Case Management Order ("CMO")             to govern the

proceedings.    This Court adopted, in large part, the provisions of

that Order, while modifying it somewhat, as noted in Appendix A to

Dkt. No. 147.

        Much pre-hearing activity has taken place under this Court's

CMO.    The Government has filed the exculpatory evidence, automatic

discovery, and additional discovery required under the CMO.                 The


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Government filed its Factual Return for Mohammed on November 15,

2005 [Dkt. No. 10] and October 26, 2006, and amended it on November

26, 2008.    The Petitioner responded by filing his Traverse on March

17, 2009 [Dkt. No. 232].              After a period of extensive discovery,

both parties filed substantial briefs accompanied by voluminous

eXhibits.

      On July 14, 2009, the court set September 3, 2009, as the date

for the Merits Hearing on the Cross-Motions for Judgment on the

Record for Petitioner.           Mohammed          elected not       to    listen in via

telephone to the unclassified opening arguments, and also chose not

to testify via video-conference from Guantanamo Bay [Dkt. No. 230].

Parties     presented     their       arguments         during   a      two-day,   mostly

classified session.       At the close of the Hearing, the Court ordered

additional briefing on the issue of the admissibility of evidence

procured by torture, or procured from an individual who had been

tortured prior to providing the evidence upon which parties rely.

Minute Order     (Sept.    4,    2009).          On September 28,          2009,   parties

submitted briefs setting forth their positions on this issue [Dkt.

Nos. 247-48].

      Between the filing of Mohammed's habeas corpus petition and

the   Merits    Hearing,        the    Government         has    made     at   least   two

determinations    regarding           his     detention    status.        Petitioner   was

cleared for release by the Administrative Review Board ("ARB") in

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September      of    2007.     See    Pet.'s     Mot.    To     Lift   the   Stay   of


Proceedings, Order the Government to Provide Factual Return and Set


a Scheduling Conference at 2 n.1 [Dkt. No. 33].



                                                 See Sealed Notice of Status

[Dkt. No. 189].       In advance of that decision, parties filed a Joint

Motion to Stay Proceedings [Dkt. No. 175], which the Court granted

on May 13, 2009.        Another stay was entered at the request of the

Government      on    June   11,     2009.       See    Order     [Dkt.   No.    193].



                     all stays in the case were lifted on July 14, 2009,

over     the   Government's     objection,       thereby      allowing    the   Merits

Hearing to proceed.          See Order (July 14, 2009)           (setting dates for

Merits Hearing)       [Dkt. No. 205].

         There is one other procedural event that bears mention.                    ..




                                   Notice Pursuant to the Court's July 10,

2008 Order [Dkt. No. 56].




                                                                                    No.

212] ;                                                                       [Dkt. No.

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                                               by the Court of Appeals in Kiyemba v.

ID.ls.h, 561 F.3d 509               (D.C.   Cir.      2009),       reh'g and          reh'g en bane

denied,        No.    05-5487       (July 27,      2009).     See Order           (Sept.   29,      2008)

    [Dkt. No. 80].




_              [Dkt.    No.    202;     civ.    No.    08-442,           Dkt.   No.    1824].        That

motion is pending.

II.	       STANDARD OF REVIEW

           The Government bears the burden of establishing that detention

is justified.           See Boumediene, 128 S. Ct. at 2270; Hamdi, 542 U.S.

    507,    533-34     (2004).        It must do so by a                  preponderance of            the

evidence.            Order, Appendix A at § II.A (Feb. 12, 2009)                            [Dkt. No.

    ~47-2];    see also Basardb v.             Obama,        6~2    F.    Supp.    2d 30,      35    n.~2


    (D.D.C. 2009).

           Initially, the Government took the position that both Article

    II of     the    Constitution and the AUMF granted the                            President       the

authori ty to detain individuals.                           See Gherebi v.            Obama,     609 F.

Supp.        2d 43,     53    n.4    (D.D.C.     2009).            In December of          2008,      the



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Government asserted,        "[a]t a minimum,              . the ability to detain

as    enemy    combatants      those    individuals      who    were   part    of,    or

supporting, forces engaged in hostilities against the United States

or its coalition partners and allies."                Resp' t' s Statement of Legal

Justification For Detention at 2 [Dkt. No. 105].

       Since    the   change    in     Administrations,        the   Government      has

abandoned Article II as a source of detention authority, and relies

solely on the AUMF.         Gherebi, 609 F. Supp. 2d at 53 n.4.               Further,

it no longer uses the term "enemy combatant."                  Its refined position

is:

        [t]he President has the authority to detain persons that

       the President determines planned, authorized, committed,

       or aided the terrorist attacks that occurred on September

       11, 2001, and persons who harbored those responsible for

       those attacks.   The President also has the authority to

       detain persons who were part of, or substantially

       supported, Taliban or al-Qaida forces or associated

       forces that are engaged in hostilities against the United

       States or its coalition partners, including any person

       who has committed a belligerent act, or has directly

       supported hostilities, in aid of such enemy armed forces.


Resp' t' s    Revised Mem.      Regarding       the   Gov's    Detention Authority


Relative to Detainees Held at Guantanamo Bay at 3                    [Dkt. No. 153].


       In Gherebi,     Judge Reggie B.          Walton of this District Court

ruled that the Government has the authority to detain individuals

who were part of, or substantially supported, al-Qaida and/or the

Taliban, provided that those terms "are interpreted to encompass

only individuals who were members of the enemy organization's armed

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forces, as that term is intended under the laws of war, at the time

of their capture."         Gherebi, 609 F. SUpp. 2d at 70-71.            The opinion

discussed the criteria relevant to determining whether detention in

a specific case complies with the laws of war.                   Id. at 68-70; see

also infra at Section IV.

       In Hamlily v. Obama, 616 F. Supp. 2d 63 (D.D.C. 2009), JUdge

John Bates of this District Court concluded that, under the laws of

war,   the Government has the authority to detain individuals who

were "part of .             Taliban or al[-]Qaida forces," or associated

forces.      rd. at 74.     The court went on to rule that the Government

does   not    have   the     authority    to    detain   those    who    are   merely

"substantial supporters" of those groups.                 Id. at 76.      While the

Court has great regard for the scholarship and analysis contained

in both decisions, the Court concludes that Judge Walton's opinion

presented      a   clearer    approach,        and   therefore    will    adopt   his

reasoning and conclusion. 1




     1    The Court agrees with Judge Bates' comment that the
determination under Judge Walton's approach of who was a "part of"
al-Qaida and/or the Taliban, rests on a highly individualized and
case-specific inquiry; as a result, the "concept [of substantial
support] may play a role under the functional test used to
determine who is 'part of' a covered organization," and the
difference in the two approaches "should not be great." Hamlily,
616 F. Supp. 2d at 76.

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III. ANALYSIS

       A.      Evidentiary Presumptions

       As a preliminary matter, some attention must be given to the

nature of the evidence that has been presented in this case, and

how the        Court,      as   fact-finder,          will go about         evaluating that

evidence.        In attempting to meet its burden,                       the Government has

provided       evidence         in the       form   of    classified       intelligence         and

interview       reports         that    it    believes         justify     the       Petitioner's

detention.        The reports contain the statements of Petitioner, as

well as statements made by other detainees,                          that the Government

argues        demonstrate        the     Petitioner's          status     as     a    member     or

substantial supporter of al-Qaida and/or the Taliban.

       The Government requested that a rebuttable presumption of

authenticity          be    granted      to     all      the    exhibits       it     intends    to

introduce. 2          Gov's      Mem.     Regarding           Presumptions,          Hearsay    and

Reliability of Intelligence Information at 2                             ("Gov Presumptions

Mem.") [Dkt. No. 171].            Given the Government's representations that

the specific documents included in its case against Petitioner, as

well     as     the     documents        provided        to     Petitioner's          counsel    in



     2    Ordinarily, "the requirement of authentication requires
that the proponent, who is offering a writing into evidence as an
exhibit, produce evidence sufficient to support a finding that the
writing is what the proponent claims it to be."       2 K. Broun,
McCormick on Evid ence § 221 (6th ed.).

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discovery,    have all been maintained in the ordinary course of

business, id. at 4-5, the Court will presume, pursuant to Fed. R.

Evid. 803(6), that its documents are authentic.                   As provided for in

the   Case   Management        Order,        the   Government's   exhibits      will   be

granted a rebuttable presumption of authenticity and will be deemed

authentic in the absence of any rebuttal evidence to the contrary.

       The   Government          has        also   requested   that     a     rebuttable

presumption of accuracy be granted to all the exhibits it intends

to    introduce.         Id.   at      2.      Petitioner   takes     issue    with    the

reliability of the evidence offered by the Government.                        Pet. Farhi

Saeed Bin Mohammed's Mot. For J. On the Record at 11-21                         (~Pet.'s


Mot.")    [Dkt.    No.   217J.         The Government's request is denied for

several reasons.

       First, there is absolutely no reason for this Court to presume

that the facts contained in the Government's exhibits are accurate.

Given the extensive briefing and oral argument presented by counsel

during the discovery phase of this case, as well as the exhibits

submitted at the Merits Hearing, it is clear that the accuracy of

much of the factual material contained in those exhibits is hotly

contested for a host of different reasons ranging from the fact

that it contains second-level hearsay to allegations that it was

obtained by torture to the fact that no statement purports to be a

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     Second, given the fact that this is a bench trial, the Court

must, in any event, make the final jUdgment as to the reliability

of these documents,             the weight to be given to them,                   and their

accuracy.    ~      Parhat v. Gates, 532 F.3d 834, 848 (D.C. Cir. 2008)

(" [The   Court]    must        be able   to   assess     the   reliability of           the

evidence [for itself] ."}.3            Those final judgments will be based on

a long, non-exclusive list of factors that any neutral fact-finder

must consider,          such as: consistency or inconsistency with other

evidence,    conditions           under   which     the   exhibit      and       statements

contained     in    it     were    obtained,      accuracy      of   translation         and

transcription, personal knowledge of declarant about the matters
                                                                           4
testified to, levels of hearsay, recantations, etc.                             See Hamlily

v. Obama,    Civ. No.       05-763 at 4-7         (D.D.C. Aug.       21,       2009)   (order

discussing evidentiary burdens); but see Bostan v. Obama, civ. No.

05-883, 2009 WL 2516296, at *2 (D.D.C. Aug. 19, 2009).

     Denial        of     the     Government's      request      for       a     rebuttable



          That Parhat came before the Court of Appeals in a
different procedural posture does not undermine the principles it
set forth regarding the need for the courts to assess the
reliability of the Government's evidence. See Khan v. Obama, Civ.
No. 08-1101, 2009 WL 2524587, at *2 n.2 (D.D.C. Aug. 18, 2009).
     4    While the Supreme court did suggest in Hamdi that a
rebuttable presumption "in favor of the Government's evidence"
might be permissible, 542 U.S. at 534, it did not mandate it. In
Boumediene, the court clearly left it to the District Courts to
craft appropriate procedures. Boumediene, 128 S. ct. at 2272.


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presumption of accuracy does not mean, however, that the Government

must present direct testimony from every source, or that it must

offer        a    preliminary        document-by-document           foundation     for

admissibility of each exhibit.                 As     the Supreme court noted in

Hamdi, 542 U.S. at 533-34, hearsay may be appropriately admitted in

these cases because of the exigencies of the circumstances.

        Finally, while parties always retain the right to challenge

the admissibility of evidence,              the Court will be guided by the

Federal Rules of Evidence, in particular Rule 402, providing that

u [a] 11 relevant evidence is admissible."                  Once all evidence is

admitted into the record, the Court will then, in its role as fact-

finder, evaluate it for credibility, reliability, and accuracy in

the manner described above.

        B.       Mosaic Theory

        The Government        advances    several      categories    of   allegations

which, in its view, demonstrate that the Petitioner was detained

lawfully.        Above all, its theory is that each of these allegations­

-and even         the   individual    pieces     of    evidence   supporting     these

allegations--should not be examined in isolation.                     Rather,    u[t]he

probity of any single piece of evidence should be evaluated based

on the evidence as a whole" to determine whether, when considered

"as a        whole,"    the   evidence   supporting these allegations            comes

together to support a conclusion that shows the Petitioner to be

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justifiably detained.     Gov's Mot. For J. Upon the Administrative R.

and Mem. in Supp. at 6 (internal citation          omit~ed)   ("Gov's Mot.")

[Dkt. No. 215].     While the Government avoids an explicit adoption

of the mosaic theory, it is, as a practical matter, arguing for its

application to the evidence in this case.          Cf. Ali Ahmed v. Obama,

613 F. Supp. 2d 51, 55-56 (D.D.C. 2009).

     The court understands from the Government's declarations, and

from case law,s that use of this approach is a common and well-

established mode of analysis in the intelligence community.             This

may well be true.      Nonetheless, at this point in this long, drawn-

out litigation the Court's obligation is to make findings of fact

and conclusions of law which satisfy appropriate and relevant legal

standards   as    to    whether    the   Government     has   proven   by    a

preponderance of the evidence that the Petitioner is justifiably

detained.   The kind and amount of evidence which satisfies the

intelligence community in reaching final conclusions about the

value of information it obtains may be very different from,                 and

certainly cannot determine, this Court's ruling.

     Even using the Government's theoretical model of a mosaic, it



     S     See, e.g., McGehee v. Casey, 718 F.2d 1137,            1149 (D.C.
Cir.   1983)   (recognizing  that   the  "mosaic-like            nature of
intelligence gathering" requires taking a "broad view"           in order to
contextualize information)    (internal citations and             quotations
omitted) .

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must be acknowledged that the mosaic theory is only as persuasive

as   the tiles    which compose            it and the glue which binds                 them

together--just as a brick wall is only as strong as the individual

bricks which support it and the cement that keeps the bricks in

place.     Therefore,     if    the    individual       pieces    of     a    mosaic    are

inherently flawed or do not fit together,                  then the mosaic will

split apart, just as the brick wall will collapse. 6

      A final point must be kept in mind.               One consequence of using

intelligence reports and summaries in lieu of direct evidence is

that certain questions simply cannot be answered, i.e., there are

no witnesses to cross-examine or deposition transcripts to consult.

Sizeable   gaps    may    appear      in    the   record   and     may       well   remain

unfilled; each party will attempt to account for these deficiencies

by positing      what    they   think are         the   most     compelling         logical

inferences to be drawn from the existing evidence.                           Accordingly,

that evidence which does exist must be weighed and evaluated as to

its strength,     its    reliability,        and the degree         to which it          is

corroborated.      In any event        I    the Government        always       bears    the

ultimate burden of showing by a preponderance of the evidence that


     6    Lest there be any confusion on this point, the Court
wishes to make clear that it does examine "the evidence as a whole"
and does try to contextualize it, given the limited perspective
that the facts of any individual case offer. Having said that, the
individual tiles must still be strong enough to keep the entire
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Petitioner's detention is lawful.                               Just as a criminal defendant

need not prove his innocence, a detainee need not prove that he was

acting innocently.            In sum, the fact that the Petitioner may not be

able to offer air-tight answers to every factual question posed by

the Government does not relieve the Government of its obligation to

satisfy its burden of proof.

     c.        Government Allegations

     Before trial,            the substantive factual areas in dispute were

narrowed down to            (1)    Petitioner's use of an alias or false name

prior     to    and        after     his    detention              at   Guantanamo   Bay,   (2)

Petitioner's use of a false passport,                             (3) Petitioner's attendance

at two mosques in London,                  (4)      the role of terrorist networks in

recruiting Petitioner and facilitating his travel to Pakistan and

Afghanistan;         (5)    Petitioner's stay at an Algerian guesthouse in

Pakistan,      (6)    whether or not Petitioner trained at a                         terrorist

camp, and (7) whether or not Petitioner participated in battle.

     According to the Government,                               the record demonstrates that

Petitioner traveled,               trained,         and fought on behalf of al-Qaida

and/or the Tal iban , and his cover story to the contrary must be

rejected as too incredible to be true.

        Petitioner denies having any connection to terrorist groups.

He insists that he fled Algeria due to family problems and in



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search of      economic opportunities in Europe.                    See   JE 17 7    at   1

(reporting Petitioner's explanation of his background).                          He lived

in France and Italy as an undocumented alien for several years

before    traveling to          the United Kingdom in 2001.                Id.;     Pet.' s

Traverse in Support of Pet. for Habeas Corpus at 37 ("Traverse").

While in Europe,           Petitioner claims he attended mosques and met

people who suggested that he go to Afghanistan to find a particular

Swedish woman known to Rahim (a recruiter) who would be willing to

marry him so that he could obtain citizenship to stay in Europe.

JE 15 at 4; JE 17 at 2-3.             The Court will now examine the evidence

relating to each of the factual areas in dispute.

            1.        Use of False Names and Documents

     The Government claims that Mohammed had a history of using

false names and a false passport.                       It points to instances in the

record where Petitioner,             both during his time in Europe before

arriving in the United Kingdom and during his time in United States

custody in Pakistan and at Guantanamo Bay, reported that his name

was "Abdullah" or misrepresented where he was from.                            JE 15 at 5

(telling American interviewers that he was French); JE 53 at 10

(same);   JE     16   at    1    (reporting that           Petitioner   told    Pakistani


          Parties submitted a volume of Joint EXhibits, which
comprises the vast majority of evidence presented during trial.
Unless otherwise indicated, citations to "JE" refer to the universe
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authorities that he went by "Abdullah").                  Additionally, Petitioner

purchased a stolen passport while living in Italy.                         JE 15 at 2.

The name on the passport was Oliver Jean Christian Marie Joseph

Bayart.             Mohammed used the              name   Bayart,    in addition to

Abdullah,    when   being       interviewed         by    American    and     Pakistani

authorities.    JE 53 at 10; JE 16 at 1.             The record establishes that

Mohammed used this false name and passport when entering the United

Kingdom.     JE 15 at 3.     He also relied on this information when he

traveled from London to Pakistan in 2001.                   ~   at 4.

      Petitioner has little to say in refutation of these facts.

The dispute lies in the inferences that parties ask the court to

draw from the facts.         ~     Traverse at 35-36; 53-54.                Petitioner

insists that "Abdullah" is a kunya, an honorific name commonly used

among people in Middle Eastern cultures.                   Id. at 35-36.          He also

argues that the use of false names and documents was essential for

him to survive as an undocumented alien trying to find work and a

home in Europe.         See id.   at 37; see also Pet.'s Mot.                 at 18-19

(explaining Mohammed's intentions to elude immigration authorities

and   find   work   in    Europe).        When       considered      in    this    light,

Petitioner     argues    that    his   use     of    "Abdullah"      and    the    Bayart

passport were not related to any alleged terrorist activity.

      The Government maintains that the false names and passports

demonstrate     that     Petitioner      is    a     deceitful       person    who    was

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    accustomed to misrepresenting himself to authorities.              In addition,

    while there    is   nothing    inherently incriminating about             using a

    kunya,    the Government argues that these names are common among

    terrorists, who use them to hide their true identities.                ~   JE 11.

    Further, Petitioner's admission of adopting               ~Abdullah"   as a kunya

    corroborates other witnesses' identification of Petitioner by that

    name.    Gov's Mot. at 28-29.

            Given that in the years before the attacks of September 11,

    Petitioner had regularly used false names and passports in order to

    avoid detection while he attempted to live and work in Europe

    without legal status, it is doubtful that the fact that he engaged



,   in such conduct after September 11 proves anything regarding his

    support of al-Qaida.

    Petitioner went
                                  See.   e.g.,    JE 15 at 1-2     (explaining how

                         from Algeria to France to Italy while evading

    authorities and working odd jobs).                For this reason, Petitioner's

    conduct with respect to false names and documents is not alone

    sufficient    to    justify   his    detention.         However,   this   conduct

    certainly demonstrates his willingness and ability to lie to the

    authorities and evade compliance with the law when it suited his

    purposes.    For this reason, the Court will consider this evidence's

    significance in light of other allegations as the remaining points

    in the Government's case are analyzed.



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          2.      Attendance at London Mosques

     Like the evidence that Petitioner used a kunya at times and

that he submitted false names and passports to authorities, there

is little dispute about the fact that he attended certain mosques

in London after arriving there in 2001.                 The record shows that

Mohammed frequented the Baker Street Mosque, and also made visits

to the Finsbury Park Mosque,          during the several months that he

lived in the United Kingdom.                 See   JE   15    at   2-3    (reporting

Petitioner's admission that he attended Finsbury Park six to seven

times, and Baker Street frequently); see also JE 17 at 2 (same).

     The significance of this attendance,               from the Government's

perspective,   is that these particular mosques served as critical

posts within an al-Qaida recruiting network.             The Government argues

that the Baker Street and Finsbury Park Mosques were important

recruiting centers for young Muslims in the United Kingdom.                    JE 10

at 1; JE 48 at 6; JE 52 at 7 (New York State Office of Homeland

Security report referring to Finsbury Park Mosque as                 ~a   key jihadi

breeding ground"); JE 23 at 3 (describing third-party detainee's

comments that Finsbury Park was recruiting center for jihadists).

     In   2003,    according     to     a     Defense        Intelligence    Agency

declaration    about   the   Finsbury       Park   Mosque,      British     security

services raided the site and then shut it down after finding links

to terrorist activity.       JE 10 at 1; JE 48 at 6.               The declaration

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also states that several well-known terrorists with al-Qaida links

attended Finsbury       Park Mosque,      including attempted             shoe-bomber

Richard Reid, convicted September 11 planner Zacarias Mossaoui, and

participants in the July 2005 bombings in London. JE 10 at 1-2.                      A
radical cleric at the Finsbury Park Mosque, Abu Hamza aI-Masri (aka

Mustafa Kernel)     ("Hamza"), served as its imam.            British authorities

detained Hamza in 2004. JE 10 at 1; JE 48 at 6.

     According to the Government, Mohammed's involvement in this

world,   in     combination with his          illegal    entry     into    the   United

Kingdom and later activity in Afghanistan,                    is probative of his

being part of       or substantially supporting al-Qaida                   and/or the

Taliban.       Gov's Mot. at 10-11.

     The Government points to evidence that Mohammed frequented the

mosques.       See JE 15 at 2-3;      see also JE 17 at 2;                JE 46 at 5.

Petitioner,      according to an intelligence report summarizing his

statements, had become a more devout follower of Islam during his

years in Italy before 2001.        JE 15 at 2.          Although Mohammed denies

having any relationship with Hamza,               the record does           show that

Petitioner was familiar with the cleric and heard him speak on at

least one occasion.        JE 15 at 3         (reporting that Petitioner told

interviewers,      "Hamza talked about how he lost his arms fighting

[j] ihad") i    see also JE 44     at    3;    JE 33     at    3   (indicating     that

Mohammed claimed that he saw Hamza only once); JE 17 at 2 (same).


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      Perhaps most importantly, the Government argues, Petitioner's

attendance at these mosques provided entry to the terrorist network

that eventually helped him fly to Pakistan and enter Afghanistan.

Gov's Mot. at 10-11.       Through his affiliation with Finsbury Park

Mosque shortly after his arrival in London, Mohammed met and was

befriended by Abdul Rahim.           JE 15 at 4; JE 17 at 2.        As discussed

below, Rahim allegedly was a recruiter for al-Qaida, Gov's Mot. at

13,   and was unquestionably instrumental in arranging Mohammed's

travel to Pakistan and Afghanistan.              JE 17 at 3;    see also Pet.'s

Opp'n at 18 (suggesting Rahim gave Mohammed a "glimmer of hope" in

suggesting that he travel to Afghanistan) .

      Petitioner offers a different interpretation of these facts.

The mosques,    according to his account,             were   simply centers of

worship and community for him.               Traverse at 37-39.      He attended

Finsbury Park Mosque "about six to seven times total while he was

in London," JE 17 at 2, and then became a "frequent[]" visitor to

the Baker Street Mosque for the remaining few months he spent in

London,     JE 15 at 3.    Petitioner explained to interrogators that

Baker Street Mosque       served cheap food to attendees,              which was

important for a man of Mohammed's limited economic means.                JE 47 at

3 (reporting that Mohammed testified before the ARB that he "would

eat at [the Baker Street Mosque] because the food was cheap").                 He

maintains    that   he   did   not    seek    out   the   mosques   because   they

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supported radical political positions; rather, as a new arrival in

the country, he was directed to the Finsbury Park area, where he
found living accommodations and a mosque.                     Id. at 3; JE 37 at 2.
According to Government intelligence reports, he told interviewers
that he had no interest in the mosques' militant teachings, did not

watch extremist lectures and videos about jihad, and was generally

ignorant of the mosques' status in any terrorist network.                   JE 44 at

4; see also JE 46 at 2 (quoting Petitioner as telling the ARB,

" [t]here was no sign on the mosque that said extremist mosque").

     As with the evidence regarding false names and documents,

details about Mohammed's mosque attendance are not alone sufficient

to justify detention in this case.                   However, the evidence on this
point may indeed be probative of his ties to terrorist groups when

considered        in   conjunction   with      the     more   serious   charges,   as

discussed below, which represent the bulk of the Government's case

against Petitioner.         Only after analyzing the entire record can the

Court determine whether the inferences that the Government draws

from these facts are well-founded and make it more likely than not

that Petitioner was a member and/or substantial supporter of al-

Qaida and/or the Taliban.

             3.        Recruitment and Travel to Afghanistan

     Based on the record, it is clear that Rahim--the friend whom

Mohammed met through the Finsbury Park Mosque--conceived, planned,

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and funded Petitioner's trip to Afghanistan.                   JE IS at 4 (stating

that   Petitioner     said     Rahim directed him         to    meet   a    man named

Mohammed when he arrived in Pakistan); JE 17 at 2-3.                        The route

laid out for Mohammed took him first to Pakistan in June of 2001,

and ultimately across the border into Afghanistan to the city of

Jalalabad.      Peti tioner does        not    take   issue     with   these       facts;

instead, he insists that he undertook this travel in the hopes of

tracking down the Swedish woman who was willing to marry him so

that he could obtain citizenship and remain in Europe.                             Pet. ' s

Opp'n at 18-19.       Rahim had told him about the woman, about whom no

name or other details are ever provided in the record.                        Mohammed

had never met the woman and did not know her name.                           rd.       The

Government argues that this explanation is implausible,                           and is

designed to cast Petitioner's prior activity in a better light as

well as hide his actual terrorist ties that took him from London to

training camps in Afghanistan.             Gov's Mot. at 13; 30-34.

       Rahim, as the Government points out, exercised a high degree

of control over Petitioner's trip.                 Rahim initiated the idea of

Petitioner traveling to Afghanistan, then helped him acquire a visa

to enter Pakistan, and paid for his one-way ticket.                        JE IS at 4.

Petitioner used his fake Bayart passport to enter Pakistan, and

carried with him 250 British pounds.               rd.

       Rahim   told   Petitioner      to   seek     out   a    Moroccan     man     named

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Mohammed once he arrived in Islamabad, which he then did.                            Id.; JE

17 at 3.      While Petitioner later provided a physical description of

Mohammed to interrogators, he knew nothing more about his contact's

background.       JE 17 at 3.        Petitioner stayed in Islamabad for one

week   before     Mohammed       paid   for     Petitioner      to    take       a   taxi    to

Peshawar, a city closer to the eastern border of Afghanistan.                            Id.;

JE 15 at 4.      Petitioner paid Mohammed sixty British pounds for his

services.       The two then went to the house of a man named Abdul

Rahman.       Petitioner and Rahman drove Mohammad back to Islamabad,

and then set off for a village near the Afghanistan border.                                 Id.

At that village,        Petitioner and Rahman stayed with a friend of

Rahman's for a few days, and then Rahman arranged for their travel

into Afghanistan.

       Accounts    vary     in    minor    details,       but    it    is        clear    from

intelligence      reports     that      Rahman purchased         a    4x4    Mazda       truck

capable of negotiating mountainous terrain, and drove toward the

Afghanistan border.         JE 15 at 4; JE 17 at 3 (indicating the Rahman,

Petitioner, and Rahman's driver headed into the mountains).                              Once

the    road    become   unnavigable        by    truck,    Rahman      and        Petitioner

proceeded on foot.          The two crossed the border into Afghanistan

without showing passports or visas to anyone.                         Id.        Once inside

Afghanistan,      Petitioner and          Rahman    took   a    taxi        to    Ja1alabad.

Petitioner told interrogators that "[Petitioner] could not explain


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why Rahman was willing to do this."                  JE 17 at 3.   In Jalalabad, the

two travelers headed to the Arab quarter of the city, where they

ended their journey at the Algerian guesthouse, run by a man named

Abdul Hafiz.       Ml..:..: JE 15 at 4.              Petitioner paid Rahman fifty

British pounds, and Rahman returned to Pakistan.                     JE 15 at 4.

        Petitioner's self-proclaimed ignorance of who was helping him,

and why they were, at each stage of his travel, in combination with

his handlers' obvious familiarity with shepherding individuals from

Pakistan to Afghanistan, establishes that Petitioner's travel was

indeed facilitated at each turn by someone with access to a network

of contacts in the region.

        The   Government   attempts      to     demonstrate        that    this   was   a

terrorist network, and does so in part by presenting evidence that

the route Mohammed took to the Jalalabad guesthouse was one well-

trodden by other al-Qaida recruits from London.                    ~      Gov's Mot. at

14-17     (describing   details   of     other detainees'           recruitment· and

travel).8      Based on this evidence, the Government argues that the


          For instance, Abdenour Sameur (ISN 659), who at one point
admitted to training at Al Farouq, followed a very similar path to
Afghanistan. JE 23 at 2 (detailing layout and personnel at camp);
but see JE 24 at 3 (denying that he was ever at Al Farouq).
Sameur, like Petitioner, is an Algerian who moved from Italy to
London. Once there, he too attended Finsbury Park Mosque. A man
whom he also met through that mosque, Towfiq, recruited him to
travel to Afghanistan.    Towfiq sent Sameur to Islamabad first,
where he was instructed to meet with a man named Mohammed.
Mohammed also took Sameur to the Algerian guesthouse in Jalalabad,

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most sensible inference to draw is that Petitioner was being moved

along a terrorist pipeline that led naturally from his recruitment

at radical London mosques to his participation in training and

battle.   It is simply unbelievable, in the Government's view, that

he was being    shepherded from person to person and             country to

country in search of an unnamed and unknown Swedish bride whose

name he did not even know.    Nor is there any evidence in the record

that Petitioner had ever been to Sweden or knew a word of Swedish.

Mohammed admitted to interrogators that Rahman knew nothing about

the woman, JE 15 at 4, suggesting that his handlers were not simply

friendly locals who were eager to help Mohammed in pursuing a wife.

     Petitioner, again, does not deny either the particular route

that the Government describes, or that Rahim facilitated his travel

from London    to   Pakistan and then to Afghanistan.            Rather,   he

explains his travel to Afghanistan as part of his desperate attempt

to meet this unnamed Swedish woman and arrange a marriage that

would allow him to claim European citizenship.             Mohammed explains

that ever since leaving Algeria, he had to struggle to find work


which was run by Abu Jaffar.    From there, Sameur went on to Al
Farouq. JE 23 at 2;see also JE 38 (travel of Ahmed Bin Saleh (ISN
290)); Gov's Mot. at 14, 16 (detailing similar stories of Binyam
Ahmed Mohammed (ISN 1458) and Sulimane Hadj Abderrahmane (IBN
323)).   According to records of the statements that sayab Mutij
Badiz Ahman (IBN 288) ("Bayab") made to interrogators, Abu Jaffar
was in charge of this Algerian guesthouse, and Hafiz was his second
in command. JE 31 at 2.

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and avoid immigration authorities in Europe.                      He traveled to the

united Kingdom looking for employment, and met a man who gave him

hope--however distant--that there was a way for him to remain in

Europe and avoid being forced back into a                     "dire"      personal and

economic situation in Algeria.                Pet.'s Opp'n at 17-19.

        The    Court    cannot,      and   does   not,   credit     the       Petitioner's

reasons       for wanting        to go to Afghanistan.            They are patently

fantastic.          While   it     is not his burden to demonstrate why he

traveled to Afghanistan, when he does offer an explanation that is

so unbelievable, and the Government provides credible support for

its   interpretation of            Petitioner's motivation,          the       Court must

choose between the two.               See Hamdi, 542 U.S. at 534 ("[O]nce the

Government puts forth credible evidence that the habeas petitioner

meets the . . .         criteria [for detention], the onus . . . shift[s]

to the petitioner to rebut that evidence with more persuasive

evidence that he falls outside the criteria.").                     In this instance,

the Court fully credits the Government's argument that Petitioner

was recruited and traveled via a terrorist pipeline.

               4.      Guesthouse Stay

        Petitioner admits that after being led into Afghanistan by
                                                                          9
Rahman, he stayed at Hafiz' guesthouse in Jalalabad.                            See, e.g.,


            Source documents provide different spellings of Hafiz'
name.     However, based on context and the overwhelming phonetic

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JE   68    at   1.   The   Government argues        that   this    guesthouse    was

associated with al-Qaida, and was run by Hafiz in conjunction with

Abu Jaffar al-Jazeeri         ("Jaffar")        to facilitate     the transfer of

recruits to training camps in the region.                  Gov's Mot. at 17-19.

Petitioner counters that the record does not clearly demonstrate

that he stayed at any guesthouse associated with al-Qaida, and that

there is no reliable evidence that he used the guesthouse as a way

station for a        trip to al-Qaida and/or Taliban training camps.

Traverse at 43-44.

       The record establishes that Rahman guided Mohammed to Hafiz'

guesthouse in Jalalabad.         JE 17 at 3; JE 15 at 4;           see also JE 21

at 1 (interrogation report of Mourad Benchelalli (ISN 161) stating

that he saw Petitioner at guesthouse in August of 2001 before going

off to train and then returning to house).             According to statements

that      Petitioner   himself    gave     the    Government,      Hafiz   ran   the

"Algerian guesthouse" in that city.              JE 15 at 4.      Mohammed did not

pay for food during his stay at the guesthouse, but did pay Hafiz

twenty British pounds upon departing.              JE 17 at 3.     Mohammed stayed

at the house twice, initially for two weeks and then for another

three weeks after traveling within Afghanistan for about one month.



similarity of each version of the name, the court finds that the
documents are all referring to a man who operated a house where
Petitioner stayed while in Jalalabad.

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JE 15 at 5. 10

      The Government argues that the Hafiz house at which Petitioner

admittedly stayed is in fact the same guesthouse that Jaffar ran to

support al-Qaida recruitment efforts, and it supports its case by

pointing to the statements of other detainees familiar with the

Jalalabad facility.

      For instance, Sameur reported to interrogators that he stayed

at a guesthouse for Algerians in Jalalabad.                      JE 23 at 2.     He

claimed that "Abu Jafair" was in charge there, and that Hafiz "was

responsible for holding everyone's personal items."                  Id.; see also

JE   41   at    5    (reporting   that   during   interrogation of       ISN   371,

detainee stated that Hafiz and Jaffar were at guesthouse during

time of his training).        Sayab, an Algerian, also told interrogators

that he stayed at the Algerian guesthouse in Jalalabad.                   JE 13 at

3;   JE 31 at       2.   He identified Hafiz as "second in command when

[Jaffar] was gone."         JE 31 at 2;      see also JE 13 at 3 ("Second in

command of the safehouse was Abdul Hafiz.").                      In Sayab's 2005

account,       there were    "7   sometimes eight people          in the Algerian

guesthouse in Jalalabad" when he was there.                      JE 31 at 2.    The

accounts are detailed,            and were recorded as part of Government


     10   See also JE 17 at 3-4 (stating that Petitioner stayed at
guesthouse twice, but not specifying length of stays); but see JE
68 at 1 (declaration from Petitioner claiming he was at Hafiz'
house for "about a month," but making no mention of second visit).

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intelligence reports that were created in the regular course of

business.      The Court credits them as reliable.

      Having pointed to evidence that demonstrates Hafiz' house was

the same      facility as    the guesthouse that Jaffar operated,               the

Government argues that Jaffar's house "provided lodging to j ihadist

recruits who were headed to various al-Qaida associated training

camps ."11    Gov's Mot. at 17.

      The Government points out, first,           that Suliman Abdul Rahman

(ISN 323)     ("Suliman") told interrogators that Jaffar acted as "the

primary point of contact for all Algerians sent to [Afghanistan]"

as part of an al-Qaida and/or Taliban network. 12                   JE   35   at 2.

Second,      Suliman provided detailed descriptions            of   Jaffar,     and

discussed Jaffar's participation in an al-Qaida pipeline that ran

from London mosques to training camps in Afghanistan.                Id.      "Field

comments" in Suliman's intelligence report state that Jaffar "was

able to have Algerians and other non-Afghanis transported by the

Taliban to his safehouses,          and trained at al Qaida camps."              rd.

Suliman told interrogators          that Jaffar arranged for him to be

admitted to



     11   As discussed below, the Government also links Jaffar to
fighting in the Tora Bora region.

     12   Nei ther party argues that this detainee is the same
Rahman who led Petitioner across the border into Afghanistan.

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also JE 7 at 2        (reporting significance of Al Farouq).                   Third,

Sameur, a detainee who attended Finsbury Park Mosque and traveled

to the guesthouse,        said that funds raised at the mosque went to

Jaffar to     run   the    guesthouse.       JE 40       at    7-8.   He   also    told

interrogators that occupants of the guesthouse were "encouraged to

attend training in one of the camps," but not "pressured" to do so.

Id. at 8.

      In yet another account, a detainee whom the Government report

identifies only as ISN 558 stated that he knew Jaffar as the "emir

of the Algerians in Afghanistan," a man who was "responsible for

getting trainees      to    the Khalden Training Camp."                JE 42      at 3.

Although the Government admits that Khalden was "operationally and

organizationally independent of al-Qaida," Gov's Mot. at 18 n.18,




Id.   (citing Defense Intelligence Agency Background Declaration ­

Terrorist Training Camps (JE 7 at 8».

      There   is    additional    evidence        that   men    who   stayed at     the

Algerian Guesthouse went on to train.              See JE 21 at 1; PE 2 at 2-3.

In the case of Nizar Sassi (ISN 325), he left the Algerian house in

Jalalabad for the Algerian house in Kabul.                      There he met a man

named "Abou ((Djafar»" who informed the group that training in one

camp had finished and that they would have to await the opening of

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a new camp or go to another training location. Djafar coordinated

Nizar's trip to Al Farouq.          PE 2 at 2-3.

           Finally,   Binyam     Mohamed      is   reported    to   have    given

interrogators information that suggests the Algerian guesthouse was

involved in terrorist activities.              While detained at Guantanamo

Bay, he stated that Jaffar informed guesthouse occupants that Bin

Laden had called for the closing of all but two of the training

camps.     As a result, Binyam Mohamed and other recruits dismantled

the   camp    at   which   they were    training,     loaded   weapons     into   a

vehicle, and drove them to "the Algerian guesthouse in Jalalabad

where they were stored in a concrete safe located in the back of

the guesthouse compound."         JE 36 at 6;3      Another detainee, Sameur,

also linked the house to weapons, claiming that he was "assigned a

Kalishnikov [sic) while there."            JE 24 at 3;    but see JE 13 at 3

(reporting that Sayab told interrogators "there were no weapons at

the safehouse") .

      Petitioner challenges the Government's claim that Hafiz and

Jaffar operated the same facility in Jalalabad, and also challenges

the related suggestion that his stay with Hafiz suggests terrorist

activity on his part.          He also takes issue with the use of any

statements made by Binyam Mohamed.



      13
             See infra at note 15.

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       Petitioner   claims        that   only    he   and    Hafiz   stayed   in   the

Jalalabad house.      JE 68 at 1.           There is no mention in his 2009

declaration of other guests at the house; in fact, for much of the

month that he stayed there,              according to Mohammed,        he was there

alone because "Hafi [z] was often away."              ~      In Petitioner's other

accounts of his time at the guesthouse, Jaffar is never mentioned.

See JE 15 at 5; JE 17 at 2-3.                He argues that other detainees'

accounts of the guesthouse do not mention Petitioner's presence

there,   except for Benchalalli.             See JE 21 at 1.          That account,

Mohammed contends, simply cannot be credited because Benchelalli

was    there   in August     of     2001,   at   a    time   when    petitioner was

allegedly off at training.          Further, Mohammed points to evidence in

the record that suggests that it was not uncommon for guests at

Hafiz' house to encounter few, if any, other people there.                    PE 2 at

2.    This intelligence report describes the guesthouse as a "villa,"

suggesting that it is at least theoretically possible that the

facility was made up of several different buildings and therefore

it was possible for one guest to not have any interaction with

other guests.     Id.; see also JE 21 at 1 (describing "safehouse" as

"large structure that was very divided") .

       Petitioner's account of his stay at the guesthouse and his

argument that he had no interaction with others in the guesthouse

suffer from a number of weaknesses.              First, his declaration claims


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that he stayed alone with Hafiz for a month, was joined there by a

man named "Muthaina," went to Kabul with him, and then returned to

Jalalabad for one month after the events of September 11.                        JE 68 at

1-2.    He makes no mention of the guesthouse during his second stay

in     Jalalabad.         However,      in       earlier       statements        made    to

interrogators,        Mohammed admitted to            staying at         the   guesthouse

twice, both before and after his trips to Kabul.                           JE 15 at 4-5

(returning       to   Algerian guesthouse            after    little     over month in

Kabul); JE 17 at 3-4          (same).        The declaration does not explain

whether he       returned    to   the   guesthouse,          as     he   claimed he     did

earlier.     In sum, Petitioner has given inconsistent statements.

       Second,    in his earlier account of his travels,                       Petitioner

admitted that he saw others at Hafiz' house.                        He reportedly told

interrogators that "NOuradin .                 ., an Algerian" was "one of the

occupants of the Algerian guesthouse."                  JE 15 at 5.         According to

an interrogation in October of 2002, Nouradin arrived at the house

during Mohammed's second stay there.                   JE 17 at 4.         Mohammed must

have been there         with at    least one additional person as                   well,

because    he    stated    that   he    also     lived       with    Muthaina,    another

Algerian man.         JE 15 at 5; JE 17 at 3 ("Farhi met and lived with

Mothana .             at Abdel Hafeez' house.,,);14 JE 68 at 2                 (declaring


     14   Based on context and the overwhelming phonetic similarity
of each version of Muthaina, the Court finds that the same person

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that   Muthaina     came       to   Hafiz'    house).     These   admissions    are

inconsistent with his claim that he lived alone at Hafiz' house,

and therefore bolster the Government's evidence that he was part of

the general population of men staying at the Algerian guesthouse.

       Despite Petitioner's speculation about the existence of more

than one Algerian guesthouse in Jalalabad,                  the evidence in the

record shows that he stayed at the same facility that at various

points accommodated groups of men who then went                    on   to   train.

Critically,      there    is    evidence that     Petitioner's    claim that he

stayed there alone is not accurate--others identified him as one of

the group there,         and Mohammed admitted to meeting others while

staying there.

       In sum,    the court finds            that the Government has provided

credible evidence that Mohammed arrived at the Jalalabad guesthouse

as part of a recruiting network, and stayed with other individuals

who went on to       train with al-Qaida.          15   Petitioner attempts      to

discredit the Government's argument by claiming that all of his

travel was undertaken to meet the unnamed, unknown Swedish woman



is being referred to.

     15   The Government has provided sufficient evidence on this
point even without the contested statements made by Binyam Mohamed.
Because his testimony is not necessary to prove the factual
allegations regarding guesthouses, the Court will not address
Petitioner's objections to his testimony in this section.

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whom he would marry in order to obtain citizenship.                        Pet.'s Opp'n

at 18-19.    Mohammed insists that this motivation was behind each

step of his journey, from his conversations with Rahim in London to

his   willingness        to    follow   strangers       into Afghanistan          when   he

arrived in Islamabad.             JE at 17.        The Court has already rejected

this explanation in toto.

      He maintains that his first transporter in Pakistan knew about

this Swedish woman, but reports that his second (Rahman) did not.

Further,    he    admi t s     that   when he got       to   Haf i z '   house,    he was

"embarrassed"      to tell his host about the Swedish bride,                       and so

waited two weeks to do so.                JE 15 at 4-5.          When he did,       Hafiz

allegedly told Mohammed that "she had just left Jalalabad,"                          id.;

according to       what       Hafiz   reportedly told Petitioner,             the woman

"travels a       lot."        JE 17 at 3.         AS the Government persuasively

argues, this portion of "the Swedish woman" story is as incredible

as the portion discussed earlier.

      Mohammed further explains that he followed the advice of a man

he had just met          (Rahim)      to fly from London--where he wanted to

ultimately settle--to Pakistan in pursuit of an unnamed Swedish

woman who mayor may not have then agreed to marry him so that he

could obtain citizenship.               He accepted the new friend's money in

order to do so.          Along the way, he forged his passport, relied on

strangers'       assistance,       crossed illegally into Afghanistan,                   and

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found himself in a city where he allegedly knew only one other

person (Hafiz).     He would then have us believe that he hesitated

for two weeks in telling that one person the reason that he was in

the city,   even though the Swedish woman had been held out              to

interrogators and the Court as "the sole reason for his trip" and

the reason for his "glimmer of hope that he could finally obtain

those priceless residency papers."       16     JE 17 at 3; Pet.'s Opp'n at

18; see also JE 47 at 4.

     Mohammed's stated reason for going to Afghanistan is entirely

implausible.     Further,   he provides inconsistent accounts of his

stay at the Jalalabad guesthouse.              These findings undermine his

attempts to defeat credible evidence put forth by the Government

that Mohammed lived among al-Qaida supporters while there.              The

Government has established that it is more likely than not that he

traveled there as part of a recruiting pipeline.             Therefore, the

Court credi ts    the Government's     evidence regarding      Petitioner's


     16   Though this argument is not fully articulated by
Petitioner, the Court does not credit the position that Mohammed
was simply being strung along by sophisticated recruiters who
preyed on his naive wish to meet a bride.    First, Mohammed never
alleges that Rahim and his network were doing such a thing; instead
he sticks to the story that he was waiting for the Swedish woman,
even after being detained for allegedly supporting al-Qaida and/or
the Taliban. See, e,g., JE 17 at 3 (deciding to wait in Jalalabad
for Swedish woman to return from travels).     Second, Rahman, his
second transporter, did not know about the Swedish bride. JE IS at
4. This suggests that it was not a concerted effort by recruiters
to hide the truth from Petitioner.

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earlier    conduct,    specifically mosque        attendance    and    travel    to

Afghanistan with Rahim's assistance.

        This Court has already ruled that guesthouse stay may not, in

and of itself, provide an independent basis for detention.                ~     Ali

Ahmed, 613 F. Supp. 2d at 64-65 (finding that stay at a guesthouse,

even among al-Qaida members, not sufficient to justify detention) ;

classified op. at 35-39.       However,        that is not the issue in this

case.    Here, the Government has demonstrated that Petitioner stayed

at a guesthouse with links to al-Qaida.               It has also shown that he

traveled to that       location with the assistance of a              network of

individuals tied to al-Qaida,         and that he was brought to this

particular guesthouse by those men.            Further, while his attendance

at the two London mosques may not,             in and of itself, demonstrate

membership in or substantial support of al-Qaida and/or the Taliban

at the time it took place, his subsequent conduct (both using the

recruiters and and relying on their travel guides),                   when viewed

along with his attendance at the mosques, does demonstrate that it

is more likely than not that the time he spent at those mosques was

the beginning of his journey toward affiliation with al-Qaida.

        In sum, Petitioner's story about seeking a Swedish bride in

Afghanistan does not meet his rebuttal burden.                As the Court has

noted earlier,    "once the Government puts forth credible evidence

that    the   habeas   petitioner   meets       the              criteria       [for


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detention], the onus . . . shift[s] to the petitioner to rebut that

evidence with more persuasive evidence that he falls outside the

criteria."        See Hamdi, 542 U.S. at 534.      Petitioner has failed to

provide persuasive evidence regarding his stay at the Algerian

Guesthouse and the Government has met its burden by far more than

a preponderance of the evidence.              This finding does not end the

inquiry.

             5.      Training

      The   Government     argues   that   Petitioner     left    the   Jalalabad

guesthouse to train at an al-Qaida camp,                and then returned to

Jalalabad before fleeing the country for Pakistan                after September

11.   Gov's Mot. at 19-24.          Its chief support for this argument

consists     of     the   statements     of    Binyam    Mohamed,       who   told

interrogators at Guantanamo Bay in October and November of 2004

that Petitioner attended a training camp with him.                JE 27 at 1; JE

36 at 5; JE 34 at 2.




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     Petitioner contends that Binyam Mohamed's statements--the only

other evidence placing Petitioner in a training camp--cannot be

relied upon, because he suffered intense and sustained physical and

psychological abuse while in American custody from 2002 to 2004.

Petitioner   argues   that   while    Binyam   Mohamed     was   detained   at

locations in Pakistan, Morocco, and Afghanistan, he was tortured


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and forced to admit to a host of allegations, most of which he has

since denied.       When he arrived at Guantanamo Bay, Binyam Mohamed

implicated Petitioner in training activities.                      Pet.'s Opp'n at 11­

13.    However, after being released from Guantanamo Bay, he signed

a sworn declaration claiming that he never met Petitioner until

they were both detained at Guantanamo Bay, thereby disavowing the

statements    he        made     at   Guantanamo           Bay   about   training    with

Petitioner.       In that sworn declaration Binyam Mohamed stated that

he was    forced to make untrue statements about many detainees,

including Petitioner.            JE 60 at "         2-6.     Binyam Mohamed stated he

made these statements because of "torture or coercion," id. at , 8,

that he was "fed a large amount of information" while in detention,

and that he resorted to making up some stories.                      rd. at , 5-6.     The

Government    does       not    challenge     Petitioner's         evidence   of    Binyam

Mohamed's abuse.

                    a.         The Government's Evidence

       The inculpatory statements that Binyam Mohamed made against

Petitioner    are        contained      in     intelligence         reports   based     on

interrogations at Guantanamo Bay in October and November of 2004.

See JE 27 (October 29, 2004, interrogation at Guantanamo Bay); JE

36    (November    5,    2004,     interrogation at Guantanamo Bay) i               JE 34

(same).   The Government argues that Special Agent

who had interviewed Binyam Mohamed as early as July 21,                        2004, at

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Bagram Air Base, developed a relationship with him that was non-

abusive,   and,   in fact,    cordial and cooperative.        Gov's Opp' n at

16-18.     It suggests that over time the two built a rapport that

allowed the detainee to voluntarily provide accurate information.

See JE 55 at ,     4   (stating that Special Agent . . . . . . . . created 18

interview reports based on many meetings with Binyam Mohamed).            The

Government stresses that it relies on these voluntary confessions

given at Guantanamo Bay, and not any statements procured by earlier

alleged mistreatment, in establishing its case against Petitioner.

Gov's Opp'n at 15-16.

     In support of its claim that Binyam Mohamed's statements at

Guantanamo Bay were not coerced, the Government offers a signed and

sworn declaration from Special Agent . . . . . . . . stating that the

witness demonstrated a "polite and cooperative demeanor" at Bagram,

JE 55 at , 4; see also id. at ,           17 (describing Binyam Mohamed as

"kind, polite, and relaxed"), and was "kind, polite, and relaxed

throughout [their] meetings at Guantanamo," id. at 26.              He states

that the witness did not raise any allegation of torture during

these meetings.        Id. at ,   26.

     The intelligence reports that the Government directly relies

on to place Petitioner at a             training camp are     consistent with

Special Agent                     characterization of the interrogations.

On October 29, 2004, Binyam Mohamed was interrogated at Guantanamo


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Bay, just after he arrived there from being held in United States

custody in Afghanistan.       The report begins by describing various

courtesies extended to the detainee, such as using a traditional

Muslim greeting and offering him coffee.           JE 27 at 1. 18   There was

a brief exchange about Binyam Mohamed's health,              and "[s] ubject

detainee commented that he was doing well."                     The meeting

lasted for over two hours,         was   conducted in English,       and was




     After this prologue, the report indicates that Binyam Mohamed

was shown a total of 27 photographs of various individuals, and

identified 12 of them.       Id. at 2-4.       He identified Petitioner by

his kunya,   "Abdullah," claiming that Petitioner "trained at the

Algerian Camp with [him] and . .          eventually traveled to Kandahar

with to [sic]   [him]."     rd. at 2.     Special Agent _            notes at

the end of his report that the subject was "very cooperative and



      18   The report redacts the name of the interrogator.
However, the Court infers for the following reasons that Special
Agent _        conducted the interview and wrote the report. First
the interrogator's employer in the report matches Special Agent
         's. Com re JE 27 at 1 to JE 55 at , 1. Second, Special
Agent           testified in his declaration that he interviewed
Binyam Mohamed on the date indicated on the report. JE 55 at , 4
n.2. Finally, Special Agenct _         stated that he memorialized
his interviews in intelligence reports after conducting them, JE 55
at 1 4, and the language in the report resembles closely that
language used in the declaration.

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polite," and that he answered questions without betraying "signs of

deception or resistance techniques."             Further, Binyam Mohamed "at

many times" spoke freely without being questioned or prompted, and

the information that he provided was deemed to be consistent with
earlier information that he provided,             though it does not state

where Binyam Mohamed provided the earlier information.               Id. at 4.

     On November 5,   2004,    Binyam Mohamed again claimed that he

trained with Petitioner.      There are two reports in the record from

that date.   ~   JE 34 (Summary Interrogation Report ("SIR"»; JE 36

(Intelligence Information Report ("IIR"».             Special Agent   IIIIIIII
stated that he interviewed the witness on that date, JE 55 at , 4

n.2, although neither report reveals the name of its author, nor of

the interrogator.   It may well be that Special Agent _                     wrote

the report contained in JE 34,          because its content matches his

declaration's description of their November 5, 2004, meeting. 19

     In JE 34, Binyam Mohamed claimed that while at training, he

was in a group with Abdullah and two other men.                 JE    34    at 2.

According to   the report,     Binyam Mohamed "did not believe that

Abdullah had any purpose"       in undertaking the         training;       he did


     19   Further, JE 34 is a SIR.      The intelligence community
creates these reports after the interrogation, and they contain all
the details of the session. JE 1 at 7. Special Agentlllllllll's
practice was to write reports directly after his interrogations of
subjects. JE 55 at ~ 4. It appears the he wrote JE 34 consistent
with these practices.

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comment on the motivations of the two other trainees.                      Id. at 4.

During    this   session,     Mohamed    was    "cooperative,"       but    appeared

"apprehensive" at having not seen his lawyer.                 Id. at 1.

        The second report based on the November 5, 2004, interview is

contained in JE 36.      Binyam Mohamed provided extensive information

about his path to Afghanistan.            He stated that "another Algerian

from Italy, Abdullah [,] who was approximately 40-45 years old, came

with two other Moroccans to the camp only three to four days before

it closed."      JE 36 at 5.      A field comment indicates that Binyam

Mohamed had identified Abdullah as Petitioner.                Binyam Mohamed said

that Adbullah and two others            (the same men described in another

intelligence report, JE 34 at 2)              traveled back to Kandahar after

the close of the camp,         along with a man named Elyas.                Id.   He

expanded on this account of the camp's closing, stating that Bin

Laden had ordered it to be shut down.              As a result, trainees tore

down the camp, packed up its weapons, and hauled them back to the

Algerian Guesthouse         in Jalalabad,       where    they were    stored in a

concrete safe      in the yard.         The    four men in Binyam Mohamed's

training group were then instructed that they would be sent on to

Al Farouq.       Id. at 6-7.     In a closing field comment, the report

notes     that    "the   detainee       answered        all   questions      without

hesitation."      Id. at 7.

        The Government maintains that these accounts are detailed and

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consistent,       and should be credited as accurate descriptions of

Petitioner's training activity.            The information is corroborated by

that gathered from other Guantanamo Bay and Bagram sessions with

Binyam Mohamed where he provided detailed and consistent accounts

of his activity in London and Afghanistan, although Petitioner was

not   specifically        discussed.   See   JE   25;   JE    26.      Further,   the

Government argues that Binyam Mohamed was treated well at Bagram

and Guantanamo Bay, where he developed a rapport with Special Agent

_           and    provided     reliable     intelligence       to    investigators,

including information that comprises the most serious allegations

against Petitioner.          Bolstering the Government's              claims, Binyam

Mohamed admitted after his             release    from detention that he did

indeed receive training while in Afghanistan.                 GE 7 at 9; JE 65 at

Daily Mail 10.       This admission, according to the Government, makes

it plausible that he could have seen other individuals, including

Petitioner, while at the camp.

                    b.	     Petitioner's     Attacks     on     the     Government's
                            Evidence

        The Government's claims of reliability are undermined by the

sworn declaration of Binyam Mohamed that he was brutalized for

years     while     in    United   States     custody    overseas        at   foreign

facilities.       He was then transferred to Guantanamo Bay, where he

was further detained by the United States and where Government


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personnel quickly resumed their interrogation of him, although no

coercive measures were used.        These later interrogations yielded

the information that the Government relies on to support several

allegations in this case,      the most significant of which is that

Petitioner trained with al-Qaida.

                       i.    Torture Allegations

        Petitioner provides sworn declarations from Binyam Mohamed

that indicate he was forced to make untrue confessions while being

abused after United States authorities detained him overseas.              JE

65 at 1 (declaring under penalty of perjury on June 9, 2009, that

the attached accounts of his torture "are factually accurate and

accurately describe his treatment"); JE 60 at , 8 (declaring that

he made false statements about himself and others because of the

"torture or coercion [he] was undergoing").

        In addition,   Binyam Mohamed detailed his          mistreatment   in

meetings with his attorney,       Clive Stafford Smith,        in August of

2005.    Smith recorded his     client's words      in a    memorandum that

presents Binyam Mohamed's story chronologically, starting with his

detention in Pakistan,      following his      rendition    to Morocco for

eighteen months, his transfer to the "Dark Prison"20 in Kabul, his

imprisonment at Bagram, and then his arrival at Guantanamo Bay.




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See JE 65 at Mem. 1, 2, 4, 16, 19-20.        The narrative is at its most

detailed in this memorandum,       but has been repeated a        number of

times,   in whole or in part, by Binyam Mohamed sUbsequent to his

release from united States custody. See JE 65 at Daily Mail; JE 61

(collecting articles).     The remainder of this section presents the

harrowing story that Binyam Mohamed has told about his abuse, as

recounted in either Smith's memorandum or the diary he created for

his lawyer in 2005, and repeated since his release from Guantanamo

Bay.

       He was initially detained while attempting to leave Karachi,

Pakistan on April 10, 2002.       He was planning to return to London,

where he had lived recently.        JE 65 at Mem. 2.        According to his

account, the Pakistani authorities held him in prison, and gave the

FBI access to him while there.        Four FBI interrogators conducted

daily interviews between April 20 and 27, 2002.             ~     Just weeks

after his capture, his torture began.

       The FBI questioned him about his activities, and, unsatisfied

with his answers,   threatened to transfer him to other countries

where he would experience harsher treatment.           Then, the FBI agents

would leave the room and Pakistanis entered.           They beat him with a

leather strap, and staged a mock execution where a guard pointed a

semi-automatic    weapon   at   Binyam     Mohamed's    chest   for   several

minutes, and stood over him motionless.          The guard relented, left


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the    room,    and    FBI   personnel     re-entered      the   room    for    further

questioning.         Id. at 2-3

       Binyam Mohamed told his lawyer that on July 19, 2002, he was

flown from Karachi to Islamabad.                 He was kept in a cell for the

weekend.       On July 21, he was taken to a military airport and turned

over to United States authorities.                  Soldiers dressed in black and

wearing masks stripped him, conducted a full-body search, and put

him aboard a plane.          He was shackled, blindfolded, and made to wear

earphones.       Id. at 4.       The plane arrived in Morocco the next day,

at a place that he believed to be near the city of Rabat.

       At this point in Smith's memorandum, he transcribes undated

entries from a "very rough preliminary edition of Binyam's diary of

his torture."         Id. at 4.    According to that diary, Binyam Mohamed

was told that the United States wanted a story from him, and that

he had been linked to important figures in al-Qaida,                           including

Khalid Sheikh Mohammed, Abu Zubaydah, Ibn Sheikh Al Libi, and Jose

Padilla.       Id.    At the prison, which is described in great detail,

he was confronted by several individuals,                  each of whom played a

role in eliciting information from him.                   Id. at 5-6.         He claims

that    the Americans        wanted testimony from him            to    use    in court

proceedings.         Id. at 6.

       In the first week at the prison, he was questioned repeatedly,

warned that he would experience torture if he did not cooperate,

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and told that the British government knew of his situation and

sanctioned his detention.         Id. at 7-8.     Throughout the narrative,

Binyam Mohamed conveys dates, physical descriptions of guards and

interrogators, details about his surroundings,                and details about

his treatment.

     On August 6, his captors began to beat him.              With hands cuf fed

behind his back, he was punched in the stomach many times, kicked

in the thighs, and left on the floor, where he vomited and urinated

on himself.     Id. at 9.     His entry for August 7 begins by stating,

" [t]here was to be no more first[-]class treatment.               No bathroom.

No food for a while.              I was taken for interrogation."

The guards beat him, then demonstrated sympathy, and then resumed

beatings.     Id. at 10.     While being beaten, he was fed information

about himself and told to verify it.               If he denied it,      he was

beaten; he would then confirm the information, and be ordered to

provide more details about it.             When he failed to provide more

information, he was again beaten.            After a week without any abuse,

he was moved to a room in another location, and introduced to a man

named \\Marwan."     Id.

     Marwan told Binyam Mohamed to \\give [him] the whole story over

again," and when the witness faltered in repeating information,

watched as three "goons" stepped in to beat him while he was tied

to a wall.     Id.   He was left hanging from the wall for an hour.


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The men returned and resumed beating Binyam Mohamed; they kicked

his feet out from under him so that his arms were wrenched upward

behind him.    They beat him throughout the night, and left him on

the floor the next day.      ~     at 10-11.    He heard the screams of

others outside his cell, and thought that they were either being

raped or electrocuted; he was kept awake at night by these sounds.

Id. at 11.

     According to the diary,       his Moroccan captors made it clear

that they were working with the United States.             Id. at 11 (stating

that Moroccans sided with "pissed off" Americans,               and would do

"whatever    [the United States]    wants").    Binyam Mohamed was told

that he was suspected of being a "big man" in al-Qaida.                Binyam

Mohamed stated that he was willing at this point to say Whatever

his captors wanted him to, which pleased Marwan.              Put off by his

satisfaction, Binyam Mohamed mocked Marwan for being Moroccan and

not having intelligence as the British do.          rd. at 11-12.

     After this exchange, Marwan had Binyam Mohamed tied to a wall.

Three men stripped him of his clothes with "some kind of doctor's

scalpel."     The witness claims he feared rape,           electrocution, or

castration.    rd. at 12.   His captors cut one side of his chest with

the scalpel, and then the other.      One of the men then "took [Binyam

Mohamed's]    penis in his hand and began to make cuts"             with the

scalpel as Marwan looked on.       Id. at 13.   They cut "allover [his]


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private parts" while Binyam Mohamed screamed.                He estimates that

they cut him 20-30 times over two hours;            "[t]here was blood all

over."    Id.   He was given a cream from some doctors.           This precise

conduct continued about once per month for the 18 months that he

was in Morocco.       ~   at 12-13; 16 (describing "routine" cuttings

and use of liquids to burn him).          He reports that a guard told him

that the purpose of the scalpel treatment was to "degrade" him, so

that when he left, he'd "have these scars and [he'd] never forget.

So [he'd] always fear doing anything but what the US wants."               Id.

at 13.

        The captors   coached Binyam Mohamed on what            to say during

interrogations, according to the diary.            He was told that if he

simply repeated in court the information being fed to him, then the

torture would cease.       Binyam Mohamed agreed to repeat what he was

told.    Id. at 14.   He was told to say, among other things, that he

met Bin Laden five or six times, that he advised him on places to

attack, and that he had conferred with Bin Laden's deputies.              Id.;

but see JE 65 at Daily Mail 14 (claiming that he told interrogators

he met Bin Laden thirty times).          He was given names of people that

he allegedly knew,     and told to confess to being "an [a]l[-]Qaida

operations man."      JE 65 at Mem. 14.

        He was moved again in September or October of 2002 to a new

location in Morocco.       His new quarters are described in his diary

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in extreme detail, including a listing of the color of his sheets,

the type of toothpaste he was given, and the brand of soap he was

supplied.                  For days on end,             he remained handcuffed with

earphones on,        and loud music was blasted into his ears.                           This
tactic, as well as others, interrupted his sleep for the whole time

he was in Morocco.                rd.    at 14-15.       This treatment,           in Binyam

Mohamed's    account,           was     the beginning of        a     campaign of mental

torture designed to break him.                     He claims that his captors put

mind-altering substances in his food,                       forced him to listen to

sounds from adult films, drugged him, and paraded naked and semi-

naked woman around his cell.                   rd. at 15.

      He    wrote        that    the     mental    torture      led    to    an    "emotional

breakdowns."        rd.    Throughout this period, he was subject to two or

three interrogations per month.                    These sessions are described as

being "more like trainings, training [him on] what to say."                             rd. at

16.   He was deprived of all access to the outdoors.                              He met only

interrogators and guards while in the Moroccan prison.

      On January 21             or 22,     2004,      Binyam Mohamed and two other

prisoners were put on a plane with United States soldiers dressed

similarly     to     those       who     had    transferred      him    to    Morocco     from

Pakistan.          rd.     at    16-17.         Again    they       stripped      him   before

transporting him.           Binyam Mohamed recalls that one female soldier

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scars on his penis.       Id. at 17.

       The diary reports that Binyam Mohamed was taken to the "Prison

of Darkness" in Kabul.         He describes the location of his cell, its

proximity to the shower room, and its size ("2m by 2.5m").                       Before

being locked in that cell, his head was banged against a wall a few

times "until    [he]   could feel blood."               Id.     He was given a thin

blanket,   and a    bucket to use as a               toilet.      Binyam Mohamed was

chained to the floor and then locked in complete darkness.                       He was

"hung up" for two days,21 deprived of sleep, and fed only once over

that period.    Id. at 17-18 (stating that his "wrists and hands had

gone numb").       "After a while I felt pretty much dead," he wrote.

Id. at 18.

       Guards bombarded his cell with loud music ("Slim Shady and Dr.

Dre" for 10 days) and scary sounds.                  He was fed inedible food and

weighed every other day.         Guards made noises to prevent prisoners

from   sleeping.       There    were    infrequent            showers   and   even   less

frequent changes of clothes.            Id.      He told a British newspaper in

2009 that he was shackled often, once for eight days on end in a

position that prevented him from standing or sitting.                          JE 65 at

Daily Mail 5.       While undergoing this treatment,                    it appears that

Binyam Mohamed attempted to be forthright with CIA interrogators


     21   This term is not explained.                 It may refer to the "hanging
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and renounce the story he had been coached to adopt.            This resulted

in his "being chained to the rails for a fortnight."            JE 65 at Mem.

at 18.     He stated that he tried to tell the truth because "the CIA

interrogators looked understanding."             ~    at 18.

        He and another prisoner were interrogated regularly.           Binyam

Mohamed says the sessions drove other detainees crazy.               He heard

these detainees "knocking their heads against the walls and the

doors, screaming their heads off."             Id.   Binyam Mohamed maintains

that he was fed information about individuals in pictures.            When he

tried to be compliant and provide made-up information about the

pictured men, his interrogator was initially happy, but then "did

[his] homework" and threatened to torture him further if he lied

again.      They simply wanted him to repeat what they told him to

say.     This included an admission of his involvement in a dirty bomb

plot.     Id. at 19.

         At first,   his cell was dark for all but one hour per day.

Gradually, he was allowed more light, until it was dark for half of

the day.     Similarly, showers were not allowed initially, but later

prisoners were permitted weekly bathing.              Binyam Mohamed at first

received food once every 36 hours.               After some weeks,   that was

increased to twice per 36 hours, and by May of 2004, he received

tea and bread for breakfast.      Eventually, he was given five minutes

per week to spend outside.       Id. at 18-19.


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        In   May,   Binyam     Mohamed         and    other    prisoners       boarded   a

helicopter destined for Bagram Air Base.                        While there,        he was

permitted to see       the     ICRC for the           first    time.     Id.   at   19-20.

According to Binyarn Mohamed, the ICRC could not publish his story,

because they had an agreement with the United States to                              "keep

everything on the hush hush."                Id. at 20.    At Bagram, Special Agent

_            made him write out his narrative.                    Part of this story

repeated the lies that he was fed by his captors while in Morocco,

including the story about his involvement with the alleged "dirty

bomber," Jose Padilla.            Id.

        In October of 2008,        the Government dropped allegations that

Binyarn Mohamed was involved in any bomb plot.                    See Peter Finn, Key

Allegations Against Terror Suspect Withdrawn, Wash. Post, October

15,      2008,      available           at     http://www.washingtonpost.com/wp­

dyn/content/article/2008/10/14/AR2008l01403146.html?hpid=topnews.

                         ii.       Legal Analysis

        The United Nations Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment (Article 15), Dec. 10,

1984,    1465 U.N.T.S.       85    ("Convention"          or   "CAT"),   requires     that

governments which are party to it "ensure that any statement which

is established to have been made as a result of torture shall not

be invoked as evidence in any proceedings, except against a person



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accused of torture as evidence that the statement was made."22            rd.

The Government has represented that it "recognizes torture to be

abhorrent   and   unlawful,   and     unequivocally     adheres   to   humane

standards for all detainees . .          . Consistent with these policies

and with the treaty obligations imposed by the Convention on the

United States as a State Party, the [G]overnment does not and will

not rely upon statements it concludes were procured through torture

in the Guantanamo habeas litigation."           Resp't's Br. in Resp. To the

Ct.'s Order of Sept. 4, 2009, at 1-2 [Dkt. No. 248] .23

     The Government does not challenge or deny the accuracy of

Binyam Mohamed's story of brutal treatment.          Rather, it argues that

the Court should not adopt any automatic per se rule requiring

exclusion of the statements he made at Guantanamo Bay because they

were not "tainted" by any mistreatment by Special Agent           IIIIIIII,
     22   Under the Convention Against Torture,     "torture" is
defined as "any act by which severe pain or suffering, whether
physical or emotional, is intentionally inflicted on a person for
such purposes as obtaining from him or a third person information
or a confession . . . when such pain or suffering is inflicted by
or at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity."
CAT, art. 1 (1) .

     23   On September 4, 2009, the Court directed parties to
submit additional briefing regarding the admissibility of evidence
procured by torture. Specifically, parties were asked to address
federal and international law concerning: 1) the admissibility of
evidence procured by torture; and 2) the admissibility of evidence
procured from an individual who had been tortured prior to
providing the e vide nce upon w hich an y p arty relies. .

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or anyone else at that detention center.                       The Government candidly

"acknowledges      that     there       is a     dearth of precedent             directly on

point," and suggests using existing case law in the criminal area

as a useful, albeit not perfect, analogy.                        .Id.... at 3.     The Court

agrees .24

        In the criminal context, confessions or testimony procured by

torture are excluded under the Due Process Clause because such

admissions would run contrary to "fundamental principles of liberty

and justice which lie at the base of all our civil and political

institutions."       Brown v. Mississippi,               297 U.S. 278,       286    (1936)   .25


Also,    as a    practical matter,             resort    to coercive tactics by an

interrogator       renders    the       information       less    likely     to    be   true.

Linkletter v.       Walker,       381     U.S.    618,   638     (1965).         Courts must

therefore       determine    if     the    confession      or     testimony       was   given

voluntarily.

        The use of coercion or torture to procure information does not

automatically render subsequent confessions of that                              information


     24   Petitioner claims that "U. S. federal law and treaties and
norms of international law have outlawed torture and applied . . .
a categorical rule of inadmissibility of evidence obtained directly
or indirectly through torture."      Pet.' s Mem. of Law Regarding
Admissibility of Evidence Tainted by Torture, at 1 [Dkt. No. 247].
However, none of his citations support such a broad statement.

     25   As the Supreme Court eloquently stated, "[t]he rack and
torture chamber may not be substituted for the witness stand."
Brown, 297 U.S. at 285-86.


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inadmissible.    United States v. Bayer, 331 U.S. 532, 540-41 (1947).

The effects of the initial coercion may be found to have dissipated

to the point where the subsequent confessions can be considered

voluntary.     M....: Oregon v. Elstad, 470 U.S. 298. 311-12 (198S)
(discussing Lyons v. Oklahoma, 322 U.S. 596, 603                       (1944)); United

States v.    Karake,    443     F.   Supp.      2d 8,      86    (D.D.C.    2006).    The

Government bears the burden of showing that the confessions are

voluntary.     Karake, 443 F. Supp. 2d at 49-50.

     To determine       if    the effects of         the earlier coercion have

dissipated--that       is,     to    determine       the        voluntariness    of   the

subsequent      confessions--courts             apply       a     "totality     of    the

circumstances" test.         rd. at 87.       The Supreme Court has ruled that

"the time that passes between confessions, the change in place of

interrogations, and the change in identity of the interrogators all

bear on whether that coercion has carried over into the second

confession."      Elstad,      470 U.S.      at 310.        Further,       courts should

examine, inter alia, the age, education, intelligence, and mental

health of the witness; whether he has received advice regarding his

Constitutional rights; the length of detention; the "repeated and

prolonged nature of the questioning"; and the                        "use of physical

punishment such as the deprivation of food or sleep."                        Schneckloth

v.	 Bustamonte, 412 U.S. 218, 226 (1973).

     This multi-factor inquiry aims to uncover whether there has

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been a "break in the stream of events                          . sufficient to insulate

the statement from the effect of all that went before."                                Clewis v.

State of Texas,      386 U.S.     707,      710          (1967).     The test has already

been applied in the context of Guantanamo Bay litigation.                                  See Al

Rabiah v. United States, civ. NO. 02-828, classified op. at 51-52

(D.D.C. September 17, 2009)            (finding that Government did not meet

burden of showing dissipation of coercion).                              The Supreme Court's

framework for deciding whether subsequent confessions are voluntary

is   to   "determine []    the    factual           circumstances            surrounding       the

confession, assess[] the psychological impact on the accused," and

then issue a      legal conclusion.                Schneckloth,            412 U. S.      at 226.

                          iii. Reliability   of    Evidence                             Procured
                               Subsequent to Torture

      Under the      framework contemplated by Schneckloth,                            id.,    the

Court must assess the reliability of the facts surrounding the

alleged    mistreatment.          In   this          case,         the    account    in    Binyam

Mohamed's diary bears several indicia of reliability.                               First, it is

extraordinarily detailed.          The diary, written in the witness' own

words,    provides      approximate       dates           at   multiple       points      in   the

narrative, describes the physical features and conduct of guards

and interrogators, and is consistent throughout several accounts.

Second,    the   fact    that    Binyam Mohamed has                      vigorously and very

pUblicly pursued his claims in British courts subsequent to his


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release from Guantanamo Bay suggests that the horrific accounts of

his torture were not simply stories created solely to exculpate

himself.      ~   David Stringer,     EX-Gitmo       Detainees Sue UK to Make

Evidence Public, The Associated Press, October 27, 2009, available
at http://hosted.ap.org/dynamic/stories/E/EU_BRITAIN_GUANTANAMO

?SITE=FLTAM&SECTION=HOME&TEMPLATE=DEFAULT.                 His   persistence     in

telling his story demonstrates his willingness to test the truth of

his version of events in both the courts of law as well as the

court of public opinion.

        The record does not indicate whether the evidence procured

under torture includes information related to Petitioner.                    Binyam

Mohamed insists that it does not, as he did not know Petitioner

until he arrived at Guantanamo Bay in 2004.                JE 60.    Indeed, the

record of earlier interrogations of Binyam Mohamed does not include

any   mention     of   Petitioner.     See      JE   73.   Significantly,        the

Government neither confirms nor denies his account of his abuse

while    in   United    States   custody;       instead,   it    focuses    on   the

allegedly voluntary statements provided to Special Agent                   IIIIIIII
in the wake of Binyam Mohamed's mistreatment.               Gov's Opp'n at 15­

17.

        Special Agent _           began his questioning of Binyam Mohamed

at Bagram in July of 2004,           just over two months after he was

transferred from the Dark Prison.            Following a September transfer

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to Guantanamo Bay, the questioning continued.                    When considering the

amount of time which has elapsed between the coerced confession and

the sUbsequent one,          courts have never insisted that a                       specific

amount of time must pass before the taint of earlier mistreatment

has dissipated.         See,   e.g.,      Lyons,      322 U.S.    at 603-04           (twelve

hours); United States v. Shi, 525 F.3d 709,                      727    (9th Cir. 2008)

(one day).    Indeed, as a legal matter,               it has been held that the

effects of earlier coercion could last for nearly one year.                            See Ai

Rabiah,    classified op.       at   52    (finding that          without       Government

evidence     to   the    contrary,        effects      of   torture          could    poison

confession made nine months later).

     A totality of the circumstances inquiry, therefore, cannot be

reduced    simply       to   mechanical         computations           of     time.       See

Schneckloth, 412 U.S. at 226 ("The significant fact about all of

these decisions is that none of them turned on the presence or

absence of a single controlling criterion; each reflected a careful

scrutiny of all the surrounding circumstances.").                           Where one court

has found days to be sufficient to represent a dissipation in the

effects of torture, another may require substantially more time.

This court concludes that the temporal break in this case was not

long enough--given the length of the abuse, its severity, and the

fact that it was targeted to overwhelm the Petitioner mentally as

well as physically--to "insulate the statement from the effect of

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all that went before."        Clewis, 386 U.S. at 710.

      First,   Binyam Mohamed's         lengthy and brutal          experience   in

detention weighs heavily with the Court.             For example, this is not

a   case   where   a   person was    repeatedly questioned by a              police

officer,    in his own country,         by his own fellow-citizens,           at a

police station,        over several days without sleep and with only

minimal amounts of food and water.             See Ashcraft v. State of Tenn.,

322 U.S. 143, 153-54       (1944); Reck v. Pate, 367 U.S. 433,               440-41

(1961)     (murder     suspect   held     incommunicado       for    eight    days,

questioned extensively for four,               and interrogated while sick).

While neither the Ashcraft nor Reck scenarios are to be approved,

they can hardly compare with the facts alleged here.

      The difference,      of course,     is that Binyam Mohamed's trauma

lasted for two long years.       During that time, he was physically and

psychologically tortured.         His genitals were mutilated.               He was

deprived of sleep and food.         He was summarily transported from one

foreign prison to another.          Captors held him in stress positions

for days at a time.        He was forced to listen to piercingly loud

music and the screams of other prisoners while locked in a pitch-

black cell.    All the while, he was forced to inculpate himself and

others in various plots to imperil Americans.             The Government does

not dispute this evidence.



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     Thus, the physical abuse in this case more closely resembles

the conduct in Brown v. Mississippi, where suspects in a criminal

investigation were brutally beaten, whipped, and exposed to mock

executions in the days before making a coerced confession and being

thrust into the courtroom for a one-day show trial.             See 297 U.S.

at 281-85.

     Second, the psychological effects of this lengthy and inhumane

treatment also persuade     the   Court      that Binyam Mohamed's      later

statements made at Guantanamo Bay must be excluded because they are

tainted by his prior experiences.         There is a substantial body of

scientific   literature   describing      the   effects   of   physical   and

psychological torture on prisoners. 26

     Torture and "enhanced interrogation techniques" employed by

the Government during the War on Terror have been shown to be

"geared toward creating anxiety or fear in the detainee while at

the same time removing any form of control from the person to

create a state of total helplessness."          Metin Ba.<;;oglu, M. D., PhD.,



     26   See, e . g., Charles A. Morgan III et al., Accuracy of
Eyewitness Memory for Persons Encountered During Exposure to Highly
Intense Stress, 27 Int'l Journal of Law and psychology 265 (2004);
Morgan et a1., Hormone Profiles in Humans Experiencing Military
Survival Training, 47 Biological Psychiatry 891 (2000); Morgan et
al., Consistency of Memory for Combat-Related Traumatic Events in
Veterans of Operation Desert Storm, 154 Am. Journal of Psychiatry
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et al., Torture vs Other Cruel, Inhuman, and Degrading Treatment:

Is   the   Distinction Real or Apparent?                 64     Archives    of     Gen.

Psychiatry 277, 283 (2007).         Indeed, rates of Post-Traumatic Stress

Disorder ("PTSD")     in torture survivors far exceed the rate among

the general population.          Physicians for Human Rights,               Leave No

Marks:     Enhanced   Interrogation        Techniques          and   the    Risk     of

Criminality,     43-44;     43     n.337         (Aug.   2007),      available       at

http://wwww.physiciansforhumanrights.org/library/documents/report

s/leave-no-marks .pdf (collecting journal articles that report rates

for torture victims higher than 3.6% rate of PTSD among general

population) .

      According to a new study about to be published in a peer-

reviewed journal, "prolonged and extreme stress has a deleterious

effect on frontal      lobe      function,"       Shane O'Mara,      Torturing the

Brain: On the Folk Psychology and Folk Neurobiology Motivating

"Enhanced and Coercive Interrogation Techniques"                           Trends in

Cognitive Sciences _      (forthcoming) (manuscript at 2), available at

http://download.cell.com/trends/cognitive-sciences/pdf/PIIS1364

661309001995.pdf (published Sept. 24, 2009)              ,27




      27  Trends  in cognitive Sciences     is   a  peer-reviewed
professional journal published in the United Kingdom by Elsevier.
The article cited is written by an Associate Professor in the
School of Psychology at Trinity college Dublin, in Ireland.

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        A common consequence of coercive interrogation techniques is

"confabulation,"      or        the    "pathological      production     of     false

memories."                 As    the     author    explains,   "[s]tress       causes

heightened excitability or arousal in the brain and body.

Experiencing stress causes release of stress hormones (cortisol and

catecholamines .                 [which] provoke and control the 'fight or

flight'    response              that,    if overly prolonged,     can result in

compromised cognitive neurobiological function                 (and even tissue

loss)    in   [the prefrontal cortex and hippocampus]."                  Id.   at 1.

Because of these physiological reactions, the brain areas function

improperly, and "both memory and executive functions                    (intention,

planning[,] and regulation of behavio[]r) can be impaired."                       rd.

The study specifically addresses                 the   "folk psychology that       is

demonstrably      incorrect" 28          underlying     adoption   of      enhanced

interrogation techniques.             rd. at 1.

        The author concludes that "[i]t is likely to be difficult or

perhaps impossible to determine during interrogation whether the

information that a suspect reveals is true: information presented


     28    The author concludes that there is no scientific evidence
supporting    the  neuropsychobiological    model   underlying   the
Government's adoption of coercive interrogation techniques. .ML.. at
1.     Quite the contrary--the article concludes that "these
techniques are unlikely to do anything other than the opposite of
that intended by coercive or 'enhanced' interrogation," i.e., to
provide reliable, truthful, and accurate information.     Id.


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by   the   captor   to   elicit     responses         during    interrogation might

inadvertently become part of the                  [subject's]       memory,   especially

because    [subjects]    are under extreme stress and are required to

tell and retell the same events that might have happened over a

period of years."        Id. at 2.

      In this case,       even though the identity of                   the   individual

interrogators changed (from nameless Pakistanis, to Moroccans, to

Americans,   and to Special Agent _ ,                          there is no question

that throughout his ordeal Binyam Mohamed was being held at the

behest of the United States.                Captors changed the sites of his

detention,    and    frequently      changed          his    location     within    each

detention facility.        He was shuttled from country to country, and

interrogated and beaten without having access to counsel until

arriving at Guantanamo Bay, after being re-interrogated by Special

Agent _ .                See   JE   72      (declaration       of    Binyam    Mohamed's

attorney, Clive Stafford Smith, stating that he did not meet with

client until May of 2005).

      From Binyam Mohamed's perspective,                    there was no legitimate

reason to think that transfer to Guantanamo Bay foretold more

humane treatment; it was, after all, the third time that he had

been forced onto a plane and shuttled to a foreign country where he

would be held under United States authority.                    Further, throughout


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his detention,          a constant barrage of physical and psychological

abuse was employed in order to manipulate him and program him into

telling investigators what they wanted to hear.                          It is more than

plausible 29 that,          in an effort to please Special Agent _

(consistent with how captors taught him how to behave), he re-told

such a story,           adding details,           such as Petitioner's presence at

training, which he thought would be helpful and, above all, would

bring an end to his nightmare. 30

        In Bagram, he wrote that he trained with three Algerians.                         JE

73 at 1902.          When he arrived at Guantanamo Bay and, according to

his subsequent statements, met Petitioner for the first time, he

then reported that one of those unnamed Algerians was in fact

Petitioner.          JE 27 at 2; JE 36 at 5.              Given the factors discussed

above, the court cannot credit this confession as voluntary.                              The

earlier abuse had indeed "dominated the mind" of Binyam Mohamed to

such a        degree      that   his    later     statements      to   interrogators      are

unreliable.          Lyons, 322 U.S. at 603; see also Leave No Marks at 117

("The        ultimate     effect       of    [employing    methods     of    psychological

control]        is   to    convince         the   victim   that    the      perpetrator    is

omnipotent, that resistance is futile, and that his life depends on


        29
                See O'Mara, supra at page 66.

        30
                See Al Rabiah, classified op. at 50.


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absolute compliance.").

     In reaching this conclusion,        the Court does not doubt the

abilities or experience of Special Agent        1IIIIIIII,   nor his account

of his humane treatment of the witness.             Rather,    based on the

factors discussed above, the Court finds that Binyam Mohamed's will

was overborne by his      lengthy prior torture,        and therefore his

confessions to Special Agent     1IIIIIIII      do not represent reliable

evidence to detain Petitioner.

               d.     Remaining Allegations Regarding Training

     Without Binyam Mohamed's statements implicating Petitioner in


training, the Government's evidence supporting this allegation is


severely weakened.





                                             After three nights there,    he


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                                  SHeU.,


insists that he returned to Kabul.         rd.        According to Petitioner,

                                                                              and

perhaps   reflects   a   misunderstanding        by    interrogators   that    he

                                                                 He notes also

that the training allegations that Binyam Mohamed made involved

different locations than Bagram.        Traverse at 45-46.




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      Based on this record, the Court cannot credit the one sentence

upon which the Government's claim                          now rests.     As
described above, we do not know who reported the comments regarding

the                  and therefore it is impossible to assess that

person's reliability.    Additionally, the comment is not specific,

and refers to




sustained on this record.

           6.   Participation in Battle

      The Government asserts that Petitioner participated in battle.

This allegation rests only on highly speculative evidence.              There

is no eye-witness account of Petitioner engaging in battle.

      The Government derives its evidence almost entirely from the

comments contained on one page of an intelligence report from 2005.
In that report, based on an interrogation of Petitioner, the author



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remarks that "detainee admitted to                        authorities in the

past that he fought on the front lines but is now recanting all of

this with the American interrogators."              JE 33 at 4.      He also

identified another detainee,          ISN 197, by his kunya,    "Abdul Haq."

According to the report, "this is interesting because ISN 197 was

only known by this alias while fighting" at Tora Bora.               Id.    The

Government marshals additional evidence about Petitioner's travel

pattern and his al-Qaida associations in order to buttress its

argument.

        The Court finds that the Government has not shown that it is

more    likely    than   not   that    Petitioner   fought.    The   reported

statement about Petitioner's admission to                     authorities is

not reliable,       as it represents multiple levels of hearsay:            the

Court    cannot     ascertain who     the              authorities   are    who

allegedly received this information from Petitioner, nor to which

United     States     official   the     information    was   then   sent    or

transmitted.

        As for the identification of Abdul Haq, Petitioner provides

declarations from ISN 197 and his brother, in which the two claim

that ISN 197 only adopted the kunya Abdul Haq after arriving at

Guantanamo Bay.       JE 66; JE 67.      If true, this would contradict the

intelligence report's assertion that ISN 197 only used that kunya


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at Tora Bora.        The Government supports this assertion by pointing

to an intelligence report where a detainee identifies ISN 197 as

Abdul Haq, the name by the detainee knew ISN 197 "while he was in

Afghanistan."        JE 39 at 1.          Even if the Government's evidence is

credited     so    as     to    resolve    this         dispute   in        its   favor,     that

establishes that ISN 197 and his brother lied about using the kunya

only at Guantanamo Bay.             It would not establish that ISN 197never

used the kunya at Guantanamo Bay.                   In short, there is no reliable

evidence that ISN 197 used the name Abdul Haq only at Tora Bora, as

the comments in JE 33 insist, and so Petitioner's identification of

ISN 197 is not probative of whether or not Petitioner fought at

Tora Bora.

     The Government's reliance on comments                         in one intelligence

report     cannot        sustain    this     allegation.               No    witness       places

Petitioner in battle,              and no other evidence corroborates                        that

Petitioner        made    the    comments      attributed         to    Petitioner.           The

Government's evidence regarding Petitioner's travel pattern, his

associations, and his alleged encounter of Bin Laden while passing

by a funeral in Kabul, JE 15 at 5, does not meet its burden to show

that it was more likely than not the Petitioner participated in

battle.




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IV.	    CONCLUSION

        The Government has consistently urged the Court not to examine

in isolation individual pieces of evidence presented in the habeas

cases emanating from Guantanamo Bay, but rather to evaluate them

"based on the evidence as a               whole"      in determining whether the

allegations,       when      viewed    together,      support    a    conclusion    that

Petitioner has been justifiably detained.

        After considering the evidence as a whole, the Court rejects

the Government's conclusion.              While the mosaic approach can be a

useful tool, the evidence must also be carefully analyzed--major­

issue-in-dispute by major-issue-in-dispute--since the whole cannot

stand if its supporting components cannot survive scrutiny.

        The    facts    of    this    case      demonstrate     the   need    for   this

analytical approach.           Here, the Government has clearly proven, by

far more than a preponderance of the evidence,                        that Petitioner

traveled extensively in Europe, both before and after September II,

2001,     by    using     false      names,      passports,     and   other    official

documents.      It has also proven, by far more than a preponderance of

the evidence,          that while in London Petitioner attended mosques

which were       well    known    to have radical,            fundamentalist    clerics

advocating jihad.            At one of the mosques he met a recruiter who

then paid for and arranged his trip to Afghanistan along routes


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well-traveled by those wishing to fight with al-Qaida and/or the

Taliban against the United States and its allies.                            Finally, the

Government has also proved, by far more than a preponderance of the

evidence, that once Petitioner arrived in Afghanistan he stayed at

a guesthouse with direct ties to al-Qaida and its training camps.

      But the Government's evidence fails to prove anything more.

The   Government    has     failed     to    provide           reliable     evidence   that

Petitioner received any training in weaponry or fighting, or that

he engaged in actual fighting of any kind on behalf of al-Qaida

and/or the Taliban.

      The question then becomes whether, under Gherebi and Hamlily,

the Government's evidence meets the standard for detention.

      Analyzing     those     two    cases,             the     court     concludes    that

Petitioner's      conduct    does      not        meet        the   legal   standard    for

detention.     In determining whether Petitioner was                          a   member or

substantial supporter of al-Qaida and/or the Taliban, or associated

forces, the Court must consider whether he was a "member[] of the

enemy organization's armed forces, as that term is intended under

the laws of war."           Gherebi,        609    F.    Supp.      2d at 70-71.       Both

substantial supporters and members of al-Qaida and/or the Taliban

must have occupied a role within "the military command structure of

an enemy organization." Id. at 70.                 A key indicator of such a role



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is receiving and executing orders from the enemy force's "combat

apparatus."    Id. at 69.   In determining who is "part of" al-Qaida

and/or the Taliban,   "[t]he key inquiry, then, is not necessarily

whether one self-identifies as a member of the organization . . .

but whether the individual functions or participates within or

under the command structure of the organization--i.e., whether he

receives and executes orders or directions."       Hamlily, 616 F. Supp.

2d at 75. 31

     In this case,    there is no evidence to show that it is more

likely than not that Petitioner received and executed orders from

the command structure of al-Qaida or that he was part of the enemy

force's "combat apparatus."    Petitioner had simply not yet reached

that point in his     journey to become a part of al-Qaida.          The

Government has provided credible and reliable evidence that he

attended radical mosques in London, that he met a man named Rahim


     31    Nor is actual fighting on a battlefield required.      See
Gherebi, 609 F. Supp. 2d at 69 ("[T]he armed forces of the enemy
consist of more than those individuals who would qualify as
'combatants'    in an international armed conflict.")         (citing
International Committee of the Red Cross ("ICRC") commentary on
Third Geneva Convention). "Thus, an al-Qa[i]da member tasked with
housing, feeding, or transporting al-Qa [i] da fighters could be
detained as part of the enemy armed forces notwithstanding his lack
of involvement in the actual fighting itself . . . . " rd.; see also
id. at 68 (reasoning that "[s] ympathizers, propagandists, and
financiers    who  have   no   involvement   with   th [e]  'command
structure[] '" are not part of armed forces, and therefore can only
be detained if they engaged directly in hostilities) .

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who coordinated and funded his travel to Pakistan,                      that he was

shepherded from Pakistan to Afghanistan by Rahim's contacts via an

established corridor for transporting al-Qaida recruits, and that

he stayed at a guesthouse that linked these recruits with training

camps.

     While these facts demonstrate that Petitioner was exposed to

radical, anti-American rhetoric at mosques in London, and that he

traveled     to    Afghanistan      with    the    assistance     of   an    al-Qaida­

affiliated network,         there    is no evidence        that    Petitioner took

orders from that network or from any "combat apparatus."                      Training

may have been encouraged by guesthouse operators, but there is no

evidence that it was required or ordered.                JE 40 at 8.         In short,

at the point in his journey where the Government's evidence fails,

Petitioner had not yet acquired a role within the "military command

structure"        of   al-Qaida   and/or     the    Taliban,    nor    acquired      any

membership in these enemy forces.                 One who merely follows a path,

however    well-trodden,      from    London       to Afghanistan      and    ends    up

staying in an al-Qaida-affiliated guesthouse,                   cannot be said to

occupy a \\ \ structured' role in the \ hierarchy' of the enemy force."

Gherebi, 609 F. Supp. 2d at 68.

     Admittedly, there is a preponderance of evidence indicating

that Petitioner was prepared to join al-Qaida and/or the Taliban,


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and that he set out for Afghanistan with the intention of doing so.

But Mohammed did not actually join or substantially support enemy

forces    simply by virtue of his attendance at the two mosques,

recruitment, travel, and guesthouse stay.

       Sliti v. Bush, 592 F. Supp. 2d 46 (D.D.C. 2008), upon which

the Government relies, is therefore distinguishable.                        In that case,

the    petition      for   habeas    corpus     was       denied   because    petitioner

"traveled to Afghanistan as an [al-Qaida]                    recruit and trained at

the    local   military      training       camp      proximate      to     the   Tunisian

guesthouse in Jalalabad."             ~     at 51 (emphasis added).               The case

does     not   support       the     proposition          that     mosque    attendance,

recruitment, travel, and guesthouse stay alone are sufficient bases

for detention.

       Whether or not one believes that Petitioner was a                          potential

danger to the security of this country,                      or whether or not one

speculates that Petitioner would have attended a training camp and

then fought with al-Qaida and/or the Taliban if the opportunity

presented itself, is not relevant.                   The legal issue to be decided

is whether--based on the actual evidence presented--that evidence

satisfies      the    standard      set   forth      in    Gherebi    and    Hamlily    for

determining whether Petitioner, at the time of his capture, was a

member or substantial supporter of the terrorist organizations


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fighting against the United States and its allies.           At the point at

which he was detained,        those requirements had not yet been met,

even though they might well have been satisfied at some future

time.     In short,     Petitioner may well have started down the path

toward becoming a        member or substantial       supporter of   al-Qaida

and/or the Taliban, but on this record he had not yet achieved that

status.

        Mindful of the limitations on the scope of the remedy in this

situation, see Kiyemba, 555 F.3d at 1024, the Court further orders

the Government to take all necessary and appropriate diplomatic

steps to facilitate Petitioner's release forthwith.            Further, the

Government is directed to comply with any reporting requirements

mandated by the Department of Homeland Security Appropriations Act,

2010, Pub. L. No. 111-83, 123 Stat. 2142 (2009), if applicable, to

facilitate Petitioner's release, and to report back to the Court no

later than December ~ 2009, as to the status of that release and

what steps have been taken to secure that release.



November   L[,   2009
                                                                       Judge


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                      UNITED STATES DISTRICT COURT

                      FOR THE DISTRICT OP COLUMBIA


PARRI SAEED BIN MOHAMMED,
et. a1.,

     Petitioners,

     v.	                                       Civil Action No. 05-1347 (GK)

BARACK	 H. OBAMA, at. al.,

     Respondents.


                                     ORDER

     For     the   reasons    set   forth           in   this   Court's    Classified

Memorandum Opinion of November/~, 2009, it is hereby

     ORDERED, that Petitioner Farhi Saeed Bin Mohammed's petition

for a writ of habeas corpus is granted; and it is further

     ORDERED,      that    the   Government              take   all   necessary    and

appropriate diplomatic steps to facilitate Petitioner's release

forthwith.    Further, the Government is directed to comply with any

reporting    requirements     mandated by the              Department     of   Homeland

Security Appropriations Act, 2010, Pub. L. No. 111-83, 123 Stat.

2142 (2009), if applicable, to facilitate Petitioner's release, and

to report back to the Court no later than December/~, 2009, as to

the status of that release and what steps have been taken to secure

that release.


November/~, 2009

Copies to: Attorneys of Record via ECF
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