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                           UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF COLUMBIA


                                             )
KHALID ABDULLAH MISHAL                       )
AL MUTAIRI, et ai.                           )
                                             )
       Petitioners,                          )

                                             )

       v.                                    )
             Civil. Action No. 02-828 (CKK)
                                             )

UNITED STATES, el al.,                       )
                                             )
       Respondents.                          )
                                             )

-------------                                )

                          CLASSIFIED MEMORANDUM OPINION
                                     (July 29, 2009)

       Petitioner Khalid Abdullah Mishal Al Mutairi ("AI Mutairi") has been detained by the

United States Government at the Guantanamo Bay Naval Base in Cuba since 2002. He has not

been charged criminally and no charges have been referred against him to a military commission.

The Government justifies his detention based on the authority granted to President Barack H.

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

224,224 (2001) ("AUMF"), which authorizes the use of force against certain terrorist nations,

organizations, and persons. Al Mutairi believes he is unlawfully detained and has filed a petition

for a writ of habeas corpus.

       This civil proceeding requires the Court to determine whether or not Al Mutairi's

detention is lawful. In connection with this inquiry, the Court has considered the factual

evidence in the record, the extensive legal briefing submitted by the parties, and the arguments

presented during a two-day Merits Hearing held on July 6-7, 2009. I Based on the foregoing, the


       I The parties did not present any live testimony at the Merits Hearing. The Court also
notes that the Government submitted an unredacted, classified document as Exhibit 58 at the
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Court finds that the Government has at best shown that some of Al Mutairi's conduct was

consistent with persons who may have become a part of al Qaida or an associated force of at

Qaida, but there is nothing in the record beyond speculation that Al Mutairi did, in fact, train

with or otherwise become a part of either or both of those organizations. While Al Mutairi's

described travels within Afghanistan lack credibility, the Government has not supplanted Al

Mutairi's version of his travels with sufficiently credible and reliable evidence to meet its burden

of persuasion by a preponderance of the evidence. Accordingly, the Court shall GRANT Al

Mutairi's petition for habeas corpus.

                                         I. BACKGROUND

       A.      Procedural History

       Petitioner filed his petition for habeas corpus on May 1,2002, making this case the oldest

of the pending Guantanamo Bay habeas cases. After several years of litigation, this case was

stayed pending resolution of whether the Court had jurisdiction to hear Al Mutairi's petition. On

June 12,2008, the United States Supreme Court issued its decision in Boumediene v. Bush,

clarifying that this Court had jurisdiction to consider the petition and advising this and the other

judges in this District that "[t]he detainees are entitled to [] prompt habeas corpus hearing[s]."

553 U.S. _,128 S. Ct. 2229,2275 (2008).

       Following the Boumediene decision, this and most of the other judges in this District

agreed to consolidate their Guantanamo Bay habeas cases before former Chief Judge Thomas F.

Hogan for issuance of an initial case management order that would expeditiously move these



Merits Hearing. The Government subsequently withdrew this exhibit and filed a substitute
document. See Gov't's Notice at 1 (July 27,2009). Accordingly, the Court has only considered
the Government's substitute document in reaching its decision on the merits in this case.

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cases toward resolution. Judge Hogan is~ued a Case Management Order on November 6, 2008,

which he amended on December 16, 2008, and which the Court adopted in this case on

December 22, 2008. The Court has relied on the Amended Case Management Order as the

backdrop for its subsequent Scheduling Orders in this case.2

       The Government filed an Amended Factual Return on September 18, 2008, and pursuant

to the schedule set by the Court, Al Mutairi filed a Traverse on March 30, 2009. The parties

engaged in extensive discovery and motions practice in the interim. Petitioner filed a Motion for

Additional Discovery on January 26,2009, which the Court granted-in-part and denied-in-part on

February 12,2009, after a hearing on February 11,2009. Petitioner filed a Motion to Produce a

Declassified Factual Return on January 9; 2009, which the Government produced on February 6,

2009. The Court also required the Government to provide Al Mutairi with certain discovery

from the Guantanamo Bay Joint Task Force database. Additionally, the parties filed six pre-

hearing motions, most of which sought rulings concerning the admissibility of particular

evidence. By Order dated June 16, 2009,the Court granted the parties' motions to rely on

hearsay evidence at Al Mutairi's Merits Hearing, but held their other evidentiary motions in

abeyance. 3

       To narrow the disputed issues presented at the Merits Hearing and to focus the parties on

the specific documents underpinning their respective arguments, the Court ordered the

Government to file a Statement of Facts on which they intended to rely at the Merits Hearing



       2 The Court extends its gratitude to Judge Hogan for his considerable investment of time

and energy to produce the Case Management Order.

       3 Al Mutairi also filed a Motion for Sanctions against the Government for failing to
timely disclose exculpatory evidence. The Court does not find that sanctions are warranted on
the present record.




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(which narrowed the allegations presented in the Amended Factual Return), and instructed both

parties to submit Witness and Exhibit Lists. The Court advised the parties that it would likely

exclude from consideration any evidenceiat the Merits Hearing that had not been identified in the

Witness and Exhibits Lists by June 2'9, 2009 (one week prior to the scheduled Merits Hearing).4

The parties timely submitted these materials and the Court held a two-day Merits Hearing on July

6-7,2009.

       B.      Evidentiary Approach

       As stated above, the Court granted the parties' motions to rely on hearsay evidence in this

proceeding. The plurality in Hamdi v. Rumsftld specifically acknowledged that "[h]earsay

... may need to be accepted as the most reliable available evidence from the Government." 542

U.S. 507,534 (2004). The Court finds that allowing the use of hearsay by both parties balances

the need to prevent the substantial diversion of military and intelligence resources during a time

of hostilities, while at the same providing Al Mutairi with a meaningful opportunity to contest

the basis of his detention. The Court is fully capable of considering whether a piece ofevidence

(whether hearsay or not) is reliable, and it shall make such determinations in the context of the

evidence and arguments presented during the Merits Hearing - including any arguments the

parties have made concerning the unreliability of hearsay evidence. Cj Parhat v. Gates, 532

F.3d 834, 849 (D.C. Cir. 2008) (explaining, in the context of the Detainee Treatment Act, that the

Court was "not suggest[ing] that hearsay evidence is never reliable - only that it must be

presented in the form, or with sufficient additional information, that permits [the finder of fact] to




       4 The Court noted two exceptions for (1) documents offered for rebuttal purposes, and (2)
exculpatory documents, as to which the Government has a continuing obligation to disclose.

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assess its reliability") (emphasis in original).

        For similar reasons, the Court shall deny the Government's motion to have its evidence

admitted with a presumption of accuracy and authenticity. Relying in part on the Supreme

Court's statement in Hamdi v. Rums/eld that "the Constitution would not be offended by a

presumption in favor of the Government's evidence, so long as that presumption remained a

rebuttable one and fair opportunity for rebuttal were provided," 542 U.S. at 534, the Government

argues that a presumption as to its evidence is both appropriate and necessary. The Court

disagrees. One of the central functions of the Court in this case is "to evaluate the raw evidence"

proffered by the Government and to determine whether it is "sufficiently reliable and sufficiently

probative to demonstrate the truth of the asserted proposition with the requisite degree of clarity."

Parhat, 532 F.3d at 847. Simply assuming the Government's evidence is accurate andauthentic

does not aid that inquiry. Cf Ahmed v. Obama, 613 F. Supp. 2d 51, 55 (D.D.C. 2009) (rejecting

a presumption of accuracy for the Government's evidence and holding that ''the accuracy of

much of the factual material contained in [the Government's] exhibits is hotly contested for a

host of different reasons ...").

        The Court also finds that there are significant reasons why the Government's proffered

evidence may not be accurate or authentic. Some ofthe evidence advanced by the Government

has been "buried under the rubble of war," Hamdi, 542 U.S. at 532, in circumstances that have

not allowed the Government to ascertain its chain of custody, nor in many instances even to

produce information about the origins of the evidence. Other evidence is based on so-called

"unfinished" intelligence, information that has not been subject to each of the five steps in the

intelligence cycle (planning, collection, processing, analysis and production, and dissemination).




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Based on the Government's own declarations, its raw intelligence has not been fully analyzed for

its "reliability, validity, and relevance" in the context ofother intelligence where ''judgments

about its collective meaning are made." Gov't's Ex. 1 at 5 (Decl. 0

Still other evidence is based on multiple layers of hearsay (which inherently raises questions

about reliability), or is based on reports of interrogations (often conducted through a translator)

where translation or transcription mistakes may occur. In this case, for example, the Government

believed for over three years that Al Mutairi manned an anti-aircraft weapon in Afghanistan

based on a typographical error in an interrogation report. See Al Mutairi Classified Traverse at

27-28 (explaining that the Government's initial Factual Return filed on December 17,2004,

identified Al Mutairi as having manned an anti-aircraft weapon because an interrogation report

mistakenly identified the individual as ISN 213 (AI Mutairi's identifier) instead ofISN.the

individual who was accused of manning the weapon». Accordingly, the Court shall not accord a

presumption of accuracy or authenticity to the Government's evidence, but shall consider the

accuracy or authenticity of the evidence in the context ofthe entire record and the arguments

raised by the parties.

        Finally, the Court shall use the same approach to consider Al Mutairi's pre-hearing

evidentiary motions that sought to exclude particular pieces of evidence prior to the Merits

Hearing based on their alleged lack of authenticity, reliability, or relevance. Rather than exclude

evidence from consideration ex ante by examining it in a vacuum, the Court concludes that the

better approach is to make such determinations after considering all of the evidence in the record

and hearing the parties' arguments related thereto. The Court believes this approach is

particularly useful where, as here, a document viewed in isolation may appear to be irrelevant,


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but when considered in the context of the other evidence in the record its importance may

become clear. Accordingly, the Court's consideration ofthe evidence proffered by the parties

shall encompass inquiries into authenticity, reliability, and relevance. Cf Parhat, 532 F.3d at

847 (describing the Court's inquiry into whether evidence is '''sufficiently reliable and

sufficiently probative to demonstrate the truth of the asserted proposition with the requisite

degree of certainty"') (quoting Concrete Pipe & Prods., Inc. v. Constr. Laborers Pension Trust,

508 U.S. 602, 622 (1993)).

       C.      Standard ofDetention

       As Judge Reggie B. Walton accurately observed in a thoughtful opinion considering the

Government's detention authority, "the·state of the law regarding the scope of the President's

authority to detain petitioners remains unsettled," Gherebi v. Obama, 609 F. Supp. 2d 43, 45

(D.D.C. 2009), even though habeas petitions by individuals such as Al Mutairi have been

pending for over seven years. Guidance in this area is limited because the Supreme Court

acknowledged but did not clarify the uncertain "permissible bounds" of the Government's

detention authority, see Hamdi, 542 U.S. at 552 n.l, and the D.C. Circuit has not had occasion to

address the issue. Fortunately, several judges in this District have considered the scope of the

Government's detention authority and have issued well-reasoned opinions on the subject. See,

e.g., Gherebi, 609 F. Supp. 2d at 43; Hamlily v. Obama, Civ. A. No. 05-1646,2009 U.S. Dist.

LEXIS 43249 at *1 (D.D.C. May 19,2009); Mattan v. Obama, Civ. A. No. 09-745,2009 U.S.

Dist. LEXIS 43286 at *1 (D.D.C. May 21,2009).

       Taking advantage of these prior decisions, the Court shall adopt the reasoning set forth in

Judge 10hn D. Bates's decision in Hamlily v. Obama, and shall partially adopt the Government's




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proposed definition of its detention authority. 5 The Court agrees that the President has the

authority to detain individuals who are "part of' the Taliban, al Qaeda, or associated enemy

forces, but rejects the Government's definition insofar as it asserts the authority to detain

individuals who only "substantially supported" enemy forces or who have "directly supported

hostilities" in aid of enemy forces. While evidence of such support is undoubtedly probative of

whether an individual is part ofan enemy force, it may not by itself provide the grounds for

detention. Accord Mattan, 2009 U.S. Dist. LEXIS 43286 at *13-*15. Accordingly, the Court

shall consider whether AI Mutairi is lawfully detained in the context of the following standard:

       The 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
       the 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 in aid of such enemy armed forces. 6




      The Government's proposed definition for its detention authority is found in the
       5
Memorandum that it submitted in this case on March 13, 2009. According to the Government,

       [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, 200 I, and persons who harbored those responsible for those
       attacks. The President also has the authority to detain persons who were part of,
       or substantial1y 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.

       6 AI Mutairi submitted a response to the Government's proposed detention standard
seeking to have the Court limit the types of organizations that may be considered an "associated
force" or "enemy armed force." See Pet'r's Resp. at 2-11. The Court declines to engage in a
hypothetical inquiry concerning the types of organizations that mayor may not fall within this
definition, but shall instead examine the facts of each case and shall further define these terms in
context if appropriate and necessary.




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       D.      Burden ofPersuasion

       Pursuant to the Amended Case Management Order that the Court adopted in this case on

December 22,2008, the Government bears the burden ofproving by a preponderance of the

evidence that Al Mutairi is lawfully detained. See In re Guantanamo Bay Detainee Litig., Misc.

No. 08-442, CMO § II.A (Nov. 6, 2008) ("[t]he government bears the burden of proving by a

preponderance of the evidence that the petitioner's detention is lawful") (citing Boumediene, 128

S. Ct. at 2271) ("[T]he extent of the showing required of the government in these cases is a

matter to be detennined."). Accordingly, Al Mutairi need not prove his innocence. The

Government must come forward with evidence demonstrating by a preponderance of the

evidence that he is lawfully detained, and if the Government fails to meet this burden, the Court

must grant his petition for habeas corpus.

                                        II. DISCUSSION

       The Government advances two theories justifying Al Mutairi's detention: (1) Al Mutairi

trained with and became a part of the al-Wafa al-Igatha al-Isiamia ("al Wafa") organization,

which the Government argues is an associated force of al Qaida; and (2) Al Mutairi trained with

and joined the forces of al Qaida. The Court's discussion of the evidence presented at the Merits

Hearing with respect to both theories shall proceed in four steps. First, the Court shall describe

Al Mutairi's version of events leading up to his detention. Second, the Court shall identify

several of the reasons why Al Mutairi's version of events is not credible. Third, the Court shall

describe the Government's evidence as it relates to Al Mutairi's alleged activities in Afghanistan.

Fourth, the Court shall explain why the Government has not demonstrated by a preponderance of

the evidence that Al Mutairi trained with and became part of al Wafa, or trained with and joined


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the forces of al Qaida.

        A.        Ai Mutairi's Version ofEvents

        Al Mutairi did not submit a declaration or affidavit describing his version of what

occurred during his travels in Afghanistan. Rather, his counsel relied on certain of his statements

in the record to piece together his version ofevents. Accordingly, the following description is

based on the evidence in the record that was presented by Al Mutairi's counsel at the Merits

Hearing as setting forth Al Mutairi's version of events.'

        Al Mutairi was born in Kuwait City, Kuwait, in 1975. Gov't's Ex. 10 at 1 (4/8/2002

Interrogation of Al Mutairi). Within days of the September 11,2001 attacks on the United States

by at Qaida terrorists, Al Mutairi made one-way travel arrangements to visit Afghanistan (he

characterizes the timing as a "coincidence"). Id. at 3. On September 21 or 22,2001, Al Mutairi

left Kuwait with $15,000 in United States currency on a flight to Mashad, Iran. Id. at 4. Al

Mutairi then took a taxi from Mashad to Taibat, Iran. Id




        Al Mutairi explained that he had originally met            in Kuwait in 1999, when he had

hired            as a carpenter to build a small room for him. Gov't Ex. 10 at 3. Al Mutairi told

            that he planned to build a mosque in Afghanistan at some point, and they stayed in touch

over the next few years. Id. In the spring of2001, Al Mutairi called            and told him that he

wanted to build the mosque they had previously discussed, and it was decided that              would



        7For this reason, the Court shall cite directly to the evidence in the record. Additionally,
the Court shall place dates in parenthesis throughout this section, which are the dates the Court
derives based on Al Mutairi's statements.

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build it on piece of land in the village 0           ~      'g
                                                             .        an, where          was living. Id.

The $15,000 that Al Mutairi carried with him was the amount he anticipated spending on having

the mosque built. Id. Al Mutairi explained that he "had not planned to remain long in

Afghanistan, just long enough to give                    the money he needed to get the project started ....

[H]e left the return date of the flight open because he did not know how long it would take to

conclude his business in Afghanistan." ld. at 4.

               Once Al Mutairi met              at the Afghanistan border, they took a taxi to Namruz and

stayed at Faheem's house for one night (September 22 or 23,2001). Id. at 4.                      told Al

Mutairi that building a mosque would cost only $9,000, so Al Mutairi was left with an

unexpected surplus of $6,000. Id.



_                  Gov't Ex. 13 at 4 (1/17/07 Interrogation of Al Mutairi).             then suggested that

he and Al Mutairi travel to Kabul to visit an al Wafa office where Al Mutairi could donate some

of his remaining funds for al Wafa's charitable projects. See Gov't Ex. 10 at 4.

               The next day (September 23 or 24,2001), Al Mutairi and               left for Kabul. Id. The

trip took two days to complete by taxi (which resulted in their arrival around September 25 or 26,

2001). Id. at 4. Upon arrival, they immediately made their way to the al Wafa Kabul office. Id.

After meeting with an al Wafa representative, Al Mutairi agreed to donate $1,000 to assist with

the building of a school. Id. After leaving this office,                 took Al Mutairi to a village about

an hour outside of Kabul, where Al Mutairi stayed at the home of one of                       friends whose

name Al Mutairi cannot remember. Id. at 5.




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                                                         Id. at 5;                       Al Mutairi

also gave $2,000 to            friend to purchase food and clothing for refugees. Gov't Ex. 10 at

5.

       After these four days, Al Mutairi attempted to go home by crossing the border into

Pakistan, but the border was sealed. !d. Al Mutairi then stayed at the home of              friend

for an additional three weeks (until around October 21,2001). Id. After hearing that there was

fighting in Kabul, he decided to leave with           friend for a village near Khowst. Id. At

some point before he left Kabul, Al Mutairi's bag was stolen, which contained most of his

remaining funds and his passport. Gov't's Ex. 10 at 5.

       Al Mutairi and           arrived at a village near Khowst and stayed at a house belonging

to a friend of           friend, whose name Al Mutairi does not remember. Id. After one month

(around November 21,2001), Al Mutairi paid a guide to take him across the border into

Pakistan, a journey that took approximately three days. Id. Al Mutairi was apprehended by

Pakistani guards and transferred into American custody shortly thereafter. Id. at 5-6.

       B.        The Implausibility ofAi Mutairi's Version ofEvents

       Having reviewed all of the evidence in the record and listened to counsel's arguments

during the Merits Hearing, the Court concludes that Al Mutairi's version of events is implausible

and, in some respects, directly contracted by other evidence in the record.

        The first problem with Al Mutairi's version ofevents is that his chronology creates a

"missing" month. During the Merits Hearing, the Court requested information concerning when

Al Mutairi was apprehended by a    _guard          and when he was transferred f r o m _

custody into United States custody. The Government produced aJ.l "intake form" that was


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completed when Al Mutairi was transferred into United States custody. See Gov't's Ex. 47 at 1

(1/3/02 Intake Form). The form indicates that Al Mutairi was apprehended approximately 10-12

days prior to January 3,2002, which would have been around December 23, 2001.




       Contrary to AI Mutairi's version of events, the evidence strongly suggests that he

remained in or around Kabul approximately one month longer than his version allows (thus

accounting for the ''missing'' month). In particular, among the information provided on the

intake form is Al Mutairi's earliest explanation of his travels in Afghanistan.



                      " See Gov't's Ex. 47 at 2. The same explanation is contained in the




                                                                             If Al Mutairi arrived

in Kabul on September 25 or 26 and stayed six weeks, he would have left Kabul in mid­

November (and not in October as he had stated). The Court takes judicial notice that Ramadan

started in mid-November 2001, which is consistent with Al Mutairi leaving Kabul in mid­

November.



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undermining Al Mutairi's version of events and his reasons for leaving Kabul, this timing is

significant. Kabul fell to the Northern Alliance forces in Afghanistan on November 13,2001,

and the fact that Al Mutairi stayed in that area until Kabul fell is probative of what Al Mutairi

may have been doing in that area.

       A second problem with Al Mutairi's story is that the evidence in the record reveals that

Al Mutairi gave_ifferent versions about what happened to his passport.




                                                                         In a third version, Al

Mutairi stated that "[h]e assumed    the~ave his passport or that they returned it to the
government O f . ' See Gov't's Ex. 13 at 4 (1/17/07 interrogation of Al Mutairi). As the

Court shall discuss in greater detail below, Al Mutairi's non-possession of his passport and

failure to account for how it was lost, is probative of what AI Mutairi may have been doing

during his travels in Afghanistan.

        Finally, the Court notes numerous other inconsistencies and conspicuously unexplained

events by Al Mutairi. First, neither counsel for Al Mutairi nor the Government has been able to

identify a village called Namruz in Afghanistan (although it is the name of a province in

Afghanistan), and Al Mutairi himself was not forthcoming as to its supposed location. See Gov't

Ex. 13 (1117/07 Interrogation of Al Mutairi) ("When asked how one could get [to Namruz], ISN



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 213 [AI Mutairi] replied that if you hailed a taxi and asked them to take you to Namr[uz], they

 would simply drive you there."). Second, ifAl Mutairi "had not planned to remain long in

Afghanistan, just long enough to give _         the money he needed to get the project started,"

Gov't Ex. 10 at 4, then it makes no sense that he would take a two-day journey to Kabul one day

 after arriving in the location where the mosque was to be built. Third, the notion that Al Mutairi

 would have to personally make the two-day journey to Kabul to make a $1,000 donation to al

 Wafa is implausible because Al Mutairi supposedly gav~ $2,000 as charity for refugees,

 and then gave another $2,000 to ~end (whose name he does not know) for other

 refugees. Thus, Al Mutairi was quite willing to make charitable donations through third-parties

 and not in person. Fourth, Al Mutairi has given inconsistent statements regarding when he gave

~e $9,000 for the construction of the mosque. Although he stated that he gave the

 $9,000 t o _ i n Namruz in a January 7, 2007 interrogation, see Gov't's Ex. 13 at 3,_



_         When asked by an interrogator why he would wait until Kabul to give_the

 money for the mosque to be built inNamruz, Al Mutairi could not answer the question. Pet'r's

 Ex. 2 (3/12/03 Interrogation of Al Mutairi). Fifth, Al Mutairi's memory conspicuously fades

 during the most relevant points of his story. Once reaching Kabul, Al Mutairi is ~able to

 identify the person in whose home he stayed for approximately one month, and he was unable to

 identify its location with any degree of specificity. See Gov't's Ex. 10 at 5. His statements about

 his location near Khowst are similarly vague, indicating only that he stayed at the home of a

 friend of _         friend, whose name he does not recall. Id. Based on these identified

 inconsistences, implausibilities, and in some respects, impossibilities, the Court does not credit


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Al Mutairi's version of events that occurred while he was in Afghanistan.

       Notwithstanding the Court's conclusions with respect to Al Mutairi's version of events,

the Court's inquiry is far from complete. Because Al Mutairi has no burden to prove his

innocence, the Court must now assess the Government's evidence to determine whether it has

demonstrated by a preponderance of the evidence that during the time for which Al Mutairi

cannot account, he trained with or became a part ofal Wafa (according to the Government, an

associated force of al Qaida), or al Qaida itself.

       C.       The Government's Evidence

       The Government offers six areas of evidence in support of Al Mutairi's detention: (1) the

timing and path of his travel; (2) the loss of his passport and his related inability to account for its

loss; (3) his contacts with al Wafa; (4

                            5)

_and (6) allegations of earlier experiences with extremist activity, The Court shall

separately address each of these areas of evidence.

                1.      Al Mutairi's Travel Path and Timing




                                                          As stated above, Al Mutairi admitted that

he traveled through Mashhad, Iran, as part of his journey to Afghanistan. See Gov't's Ex. 10 at

4.


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        The Government also introduced undisputed evidence that, as the Taliban regime fell,



Afghanistan-Pakistan border. See Gov't's Ex. 5 (8/29/08 Decl.    of_
Taliban and al Qaida fighters fled south en route to the Tora Bora mountains along the

                                                                                 As stated above,

the evidence in the record indicates that Al Mutairi waited until after Kabul fell to Northern

Alliance forces on November 13,2001, before fleeing South to a village near Khowst, along the

Afghanistan-Pakistan border. See Section LB, supra (discussing the chronology of Al Mutairi's

travels).

        While the path and timing of Al Mutairi's travels are not direct evidence that he became a

part ofal Wafa or al Qaida, the Court agrees with the Government that this evidence is consistent

with someone who may have joined either of those two organizations. Accordingly, the Court

finds that this evidence is probative and shall consider it in the context of the Government's other

record evidence.

               2.      Al Mutairi's Pass,port

        The Government introduced undisputed evidence that al Qaida followed a standard



Ex. 56A at 3 (Decl.   of_
operating procedure for those entering al Qaida and Taliban-associated guesthouses. See Gov't's

                                    According to these procedures, prior to attending a training

camp, trainees surrendered their passports, identification, money, or other travel documents. Id.

These items were often placed in a box and labeled with a number or kunya8 for the trainees. Id.

These procedures allowed administrators to exert control over trainees and prevent them from

easily leaving. Id As a consequence, "[m]any detainees were captured without passports or


        8 "Kunyas" are assumed names or pseudonyms that are part of traditional Arabic names,
but are also used by insurgents, radicals, and terrorists to conceal their true identities. See
Gov't's Ex. 8 at 2 (9/19/08 Decl. 0

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       As set forth above, Al Mutairi was apprehended without his passport, and he has offered

_ifferent versions of how it was lost. While the loss of his passport is not direct evidence

that Al Mutairi became a part of at Wafa or al Qaida, the Court agrees with the Government that

Al Mutairi' s non-possession of his passport and his inability to explain how it was lost are

consistent with someone who may have surrendered his passport in anticipation of attending

training at an at Qaida camp. Accordingly, the Court finds that this evidence is probative and

shall consider it in the context ofthe Government's other record evidence.

               3.      Al Mutairi's Contacts with al Wafa

       The parties introduced evidence that al Wafa operated simultaneously as both a charitable

organization and a front for al Qaida. See Gov't's Ex. 6 at I (8/29/08 Dec!. o~

Stipulations of Fact ~ 3 ("Al-Wafa engaged in some legitimate charitable activities"). The

Government also introduced undisputed evidence that the two individuals located at the al Wafa

Kabul office whom Al Mutairi acknowledged meeting or otherwise seeing had contacts with al

Qaida. Id. at 2. Nevertheless, the Government did not seriously advance the theory at the Merits

Hearing that Al Mutairi's $1,000 donation to al Wafa made Al Mutairi "part of' that

organization, nor did the Government introduce any evidence indicating that Al Mutairi believed

al Wafa was anything other than a charitable organization. 9 Instead, the Government argued that,



       9 The Govenunent did make an unsupported assertion that all of Al Mutairi' s money
ended up at "al Wafa-controlled locations," but never defined what could be considered an "al
Wafa-controlled location" and never presented actual evidence showin that an mone be ond
Al Mutairi's $1,000 donation was actuall received b a1 Wafa.




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with the assistance of his al Wafa contacts, Al Mutairi decided to enter an al Wafa training camp

located in              outside of Kabul.

       The Government's allegation is supported by one reference, in a portion of one sentence,

in one interrogation report of                                                                See

Gov't's Ex. 6 at 2 (describing_background);

                 tated that:

       he went to v i s i t _ and_who were attending the camp. [H]e further
       explained that this visit took place after September 11,2001 and before the U.S.
       air strikes began.

                     There are three problems with the Government's reliance on this allegation.




         10 During the Merits Hearing, the Government confirmed that_ by referencing
"airstrikes," was referring to October 7, 2001, the date the United States commenced its
operations Afghanistan. See Merits Hearing Transcript at 144 (Jul. 6, 2009).

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                                                This lack of contextual support is especially

problematic because the Government did not introduce any evidence corroborating Al Mutairi's

alleged attendance at this al Wafa camp.

          The second problem with this allegation is based on the way it is written in the

interrogation report. It is entirely unclear whether. identified Al Mutairi by his ISN

number, and if so, equally unclear how he would know it. In some instances, an interrogation

report will include the actual name used by the detainee to identify another individual, and then

include                                                      See, e.g., Gov't's Ex. 51 at 2 (11/26/04

Interrogation of• . While this procedure is certainly not required, it allows the Court to

consider how the individual was actually identified as part of its inquiry into the reliability of the

identification. For present purposes, the Court finds that there is insufficient information

included wid_llegation to properly assess whether.accurately and intentionally

identified Al Mutairi as one of the two people he visited at this camp.

          A third problem with this allegation is that some o~ statements in the

interrogation reports proffered by the Government lack credibility. For example, i n _

November 1, 2005 interrogation, he states that he "did not know i~had another role

other than providing the money for the [alleged al Wafa] camp." Gov't's Ex. 41 at 1 (11/1/05

Interrogation o f _ . In a November 26,2004 interrogation, however_explained how




Ex. 51 at 2 (11/26/04 Interrogation 0• • In another interrogation, .statements


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       For all of these reasons, the Court finds t h a t _ identification of Al Mutairi at an

alleged al Wafa training camp is neither reliable nor credible, and it shall not be considered

probative of any issue related to whether or not Al Mutairi is lawfully"detained. 12

       One final point about this allegation is warranted. At the Merits Hearing, the Court

requested an interrogation report that was referenced in the evidence but was not produced by the

Government until requested by the Court.



                                                                                          . This

information helps to explain why the Government referred to the alleged camp as "nascent"

throughout the hearing, but also underscores how speculative Al Mutairi's role at this camp


        11 Al Mutairi submitted a declaration b y . wherein he states, among other things,
that he did not know Al Mutairi or the other petitioners in this case prior to his detention at
Guantanamo Bay. See Pet'r Ex. 8 ~~ 5,13 (2/22/09 Decl. o f _ . The Court affords this
statement no weight because, as demonstrated by the Government at the Merits Hearing, his
statement is contradicted by the evidence in the record relating to at least one of the other
petitioners.

         12 To be clear, the Court is not holding t h a t .cannot be considered a reliable witness
relating to other matters; indeed, some of the information he provided in his interrogation reports
is sufficiently corroborated in the record to be considered reliable. Rather, the Court is finding in
this case t h a t . s allegation concerning Al Mutairi is not reliable or credible.

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 would have been, even had the Government produced evidence of his attendance (which the

 Court expressly concludes it has not produced).

                4.     Lists of "Captured Fighters".

        The Government introduced.ocuments into evidence purporting to list the names

 and contact information for captured al Qaida fighters. See Gov't's Exs. 19,20,22, 32, 33,.

II Two of the documents were published on the internet or in newspapers (and therefore were




        Although the appearance of Al Mutairi's name on these lists would appear to be highly

 probative, AI Mutairi submitted persuasive evidence concerning the origins of these lists that

 substantially reduces their probative value. Specifically, Al Mutairi's counsel argued at the

 Merits Hearing that these lists were originallyasse~bled by a _ g u a r d who collected the

 contact information of Al Mutairi and other individuals while they were incarcerated in a

_ p r i s o n to alert their families of their whereabouts. This argument is supported by

 multiple independent sources (including Al Mutairi) whose statements are not rebutted by the

 Government.

        For example, Al Mutairi submitted the declaration of                              who was a

 prisoner in Guantanamo Bay from 2001 to 2006. _explained that he and Al Mutairi gave

 their contact information to a_guard in 2001:


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       After my initial capture in late 2001, I was taken to a_prison i n - I
       was detained there for about three weeks with ... Al Mutairi. We did n~
       what w~happen to us, and we wanted our families to know where we
       were. A_officer came into our cells and told us that he would take our
       names and our families' phone numbers ... and publish them so that our families
       could learn where we were ... [AI Mutairi] [and] myself, and all of the other
       prisoners gave our names and families' contact information to the officer ....
       Later, I learned from people who were captured and joined us in prison that our
       contact information and photographs had been posted on the internet and appeared
       in the news in Kuwait as supposed lists of Al Qaeda fighters.

Pet'r's Ex. 6 ~ 4 (Feb. 2009 Dec!. O f . ,                               another Guantanamo

detainee, provided a similar explanation:

      At one stage there was a kind guard who did speak Arabic. He told me that I was
      ~urned              over to the US for a bounty that would be paid to the
      _             He was the one who took my name ... [and] telephone number for
      my relatives, and my photograph, and promised to put it on the internet so my
       family might find out what was happening to me.

Pet'r's Ex. 7 at 18 (12/2/08 Decl. of

       The information supplied by                           is further corroborated b y .

who described his receipt of a list of prisoners prior to his detention at Guantanamo Bay:

       One of the other people staying at the flat received a list of names, addresses, and
       telephone numbers of people who were detained in a _prison i n _
       .... I was the only Kuwaiti in the flat, and I recognized several of the names as
       being Kuwait names .... I decided to call their families and let them know what
       had happened to their family members.

Pet'r's Ex. 8 ~~ 4-5 (2/22/09 _Decl.). Although the Court has questioned some o f . s

statements above,.s description ofthe list he obtained is corroborated by

the father of one of the petitioners in this case, who explained that he received a phone call from

_advising him of his son's location:

       In late 2001, I received a call from a _ n Pakistan named
       as well as calls from several other people, who told me that [my son] had been


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       community in    _soof_
       arrested by the~uthorities and was in prison in_but that his name
       and home phone number were on a list that was being circulated among the Arab
                              that families of prisoners could be contacted.

Pet'r's Ex. 9 ~ 7 (2/22/09 Decl.

       Al Mutairi's testimony during an Administrative Review Board Proceeding in 2005

further corroborates this evidence. See Pet'r's Ex. 16 at 4 (5/10/05 Al Mutairi Testimony). Al

Mutairi testified that during his detention he gave his information to "a Pakistani soldier [who]

took ... the names of the Detainees," and also "gave [his] number to one of the detainees to

contact his family [so that] his family would contact the Kuwaiti authorities about his

detainment," Id. This testimony is not only plausible given the statements by other individuals

set forth above, but it is particularly credible given that Al Mutairi's name and family contact

information was discovered on a list held by another detainee - just as Al Mutairi described,.




       For its part, the Government does not dispute Al Mutairi's evidence concerning the

origins of these lists. Instea                                                         the Government

argues that the origin of the lists is irrelevant because regardless of the initial purpose, the

information was collected and maintained by individuals associated with al Qaida, thereby

making the lists al Qaida records, During the Merits Hearing, the Government offered the

following arguments encapsulating its position:

                                       's a leader ofal-Qaeda. He's welcome and free to


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       receive information from any number of sources, but once he takes that
       information and begins to use it [as] his own, he makes it an al-Qaeda record -. he
       or his associates make it an al-Qaeda record of a different sort.

       ***




       ***
       Petitioners aren't controlling what happens with this information. They might
       have given it to someone with some hope in mind, but we're not relying on the
       fact that Mr. Al Mutairi gave his phone number to somebod to rove that al­
       Qaeda kept a record of him as a fighter.




       The Court does not find the Government's arguments persuasive in the context of the

evidence in this case because Al Mutairi's name and contact information do not chang~

                                                              Instead, the same publicly available

information that originated from Al Mutairi himsel

_Two inferences are therefore possible. On the one hand, the appearance of Al Mutairi's

information on these lists may be taken to mean that an individual affiliated with al Qaida is

purposefully tracking him because Al Mutairi has connections to al Qaida. On the other hand,

the appearance of Ai Mutairi's name could be the result of an individual affiliated with al Qaida

havin~AI Mutairi's information along with other names from publicly available
sources, not knowing whether Al Mutairi had any al Qaida connections. On this record ­



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particularly where, as here, there is a lack of evidence supporting any connection between AI

Mutairi and al Qaida - there is simply no way for the Court to decide which is more likely to be

the case, 13 Accordingly, the Court does not view these lists as probative of whether Al Mutairi is

lawfully detained.




         13 To be clear, the Court is not holding that these lists are not probative in all cases. If a
detainee's name or other information appears on a private but not publicly-available list, or even
if there were sufficient information in the record to support links to al Qaida, these lists might
carry persuasive value.




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       The Government's evidence suffers from three deficiencies that significantly reduce its

probative value. The first deficiency is that                 lists do not indicate when they were

written, so there is no way to corroborate the Government's speculation that Al Mutairi

surrendered his passport




                   I Mutairi had already been taken into custody by Pakistani authorities, and it

therefore directly undennines the Government's theory that Al Mutairi surrendered his passport

to individuals associated with al Qaida




                                                                                   Although the

names appear similar, Al Mutairi's counsel explained that_means "brother" or


        IS During the Merits Hearing, the Government speculated that "written" might mean

"updated" or "saved last." The Government submitted no evidence to this effect, and Court has
no basis to credit this argument.

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"crusader," an argument that the Government did not dispute. Neither party provided any

evidence as to the meaning O f . and neither party was able to provide the Court with any

other evidence on this issue. On this record, the Court cannot determine one way or the other

whether the names are sufficiently similar to support the Government's argument that Al Mutairi

likely surrendered the passport himself, or whether they are different names such that someone

other than Al Mutairi could have surrendered the passport to individuals associated with al

Qaida. 16

        The third deficiency is the lack of corroborating evidence supporting these passport lists.

In addition to the fact that none of the lists contain any reference to the alleged camp attended by

Al Mutairi in               the Government did not provide evidence that any ofthe other

individuals named on the lists attended that training camp. The lack of corroborating

information further undermines the Government's theory that Al Mutairi surrendered his passport



        Based on the foregoing, the Court finds that these passport lists provide little probative

value in connection with the Court's inquiry into whether Al Mutairi is lawfully detained.

                6.     Other Allegations

        During the Merits Hearing, the Government raised two other allegations against Al

Mutairi, both of which the Court concludes are not credible.

        First, the Government argues that Al Mutairi fought with Osama bin Laden in



        16During the Merits Hearing, Al Mutairi's counsel advanced the theory that the person
who allegedly stole Al Mutairi's passport in Kabul likely gave it to other individuals who may
have been associated with al Qaida. This argument is based solely on speculation and is not
credited by the Court.

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Afghanistan in 1991 based on the following passage from his                      interrogation

report:




          The assertion that Al Mutairi was fighting with Osama bin Laden in Afghanistan in 1991

is not credible. First, there is no evidence in the record corroborating Al Mutairi's statement

about fighting in Afghanistan in 1991. Second, the Court takes judicial notice that Iraq invaded

Kuwait in 1990 and the Persian Gulf War continued into 1991, when Al Mutairi would have

been 16 years old. Al Mutairi's brother became a prisoner of war, and his father was an officer in

the Kuwaiti Ministry of the Interior. See Pet'r's Ex. 41[1[1-2. The Court does not view the

Government's argument as plausible that Al Mutairi would leave Kuwait (and his family) while

the country was under siege to travel to Afghanistan at 16 years old to fight against (preswnabIy)

forces associated with the Soviet Union. 17 Third, the passage on which the Government relies


          Al Mutairi's counsel argued at the Merits Hearing that Al Mutairi would have been a
          17

sophomore in High School in 1991, but relies on an interrogation report containing dates given
by Al Mutairi that are ambiguous on this point. See Gov't's Ex. 10 at 1-2. Al Mutairi's brother
also submitted a declaration explaining that Al Mutairi was in high school in 1991, but the Court
declines to credit his statement because it fails to clarifY the ambiguity that was created by Al
Mutairi's own statements in the interrogation report. See Pet'r's Ex. 41[2 (2/22/09 Decl. ofT. al

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clearly indicates that Al Mutairi was agltat          at e appears to have been goaded into

making these statements by the linguist in the interrogation room. The evidence in the record

suggests that it was not uncommon for Al Mutairi to react in this way while agitated, as he

subsequently claimed during another interrogation that he was Osama bin Laden:

       ISN 213 was uncooperative. He stated that he wished to be called Osama bin
       Laden ... ISN 213 stated he was an enemy of America because Americans had
       told him so. Americans had cursed his parents. Prior to the war, he'd had no
       problem with Americans. But due to the situation at Guantanamo Bay, Cuba, and
       his detention, America had made him their enemy ... He stated that with all this
       legal process being so useless, he might as well be Osama bin Ladin, since he was
       never going to be freed from US custody.

Gov't's Ex. 13 at 1. The Government does not rely on Al Mutairi's "admission" that he is

actually Osama bin Laden to support his detention, and the Court finds that its reliance on his

alleged fighting in Afghanistan in 1991 is similarly implausible and unsupported by the record.

       The second allegation made by the Government against AI Mutairi is that he attended a

meeting in Pakistan of Lashkar-e-Tayyiba ("leT"), a designated terrorist organization with ties to



List); Gov't's Ex. 5 at 2 (8/29/08 Decl'    Of"
al Qaida. See Gov't's Ex. 30 at 1 (4/8/08 Department of State Foreign Terrorist Organization

                                                         The Government's sole support for this

allegation is one interrogation report associated with someone named

       ~tated another detainee, whom he knows a s _ I S N 213, is a
       Kuwaiti with ties to leT. leT holds an annual meetmg m Punjab, Pakistan,
       which ~ttended. ~so had a point of contact at the LeT
       headq~ahore, Pakistan. (Note:                    is identified as Khalid
       Abdullah Mijsh'ad Thamir AI-Mutayri, ISN [213].).

Gov't's Ex. 11 at 1-2 (6/24/03 Interrogation o~ The Government's reliance on this

allegation is flawed for several reasons.


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          The most significant problem with this allegation is that the Government produced no

information about_or this allegation beyond the submission ofthis one interrogation

report. Thus, there is no evidence in the record explaining how _knew Al Mutairi's

identity. Also left unexplained is a description of when this meeting occurred, or when Al

Mutairi would have even traveled to Pakistan. Further, the Government did not declassify

_ n a m e so that Al Mutairi's counsel could ascertain whether AI Mutairi knew_or

otherwise had any information about him. This dearth of corroborating evidence supporting

~llegation is problematic because the Court must "have an opportunity to assess the

reliability of the record evidence" which is "not simply a theoretical exercise." Parhat, 532 FJd

at 848.

          A second problem concerns the allegation itself. In his statement, .dentifies

someone n a m e d _ ' a name that is then attributed to Al Mutairi. The Government

identified no other evidence in the record where Al Mutairi was known by the n a m e _

nor is there any explication as to how the Government decided _ a s Al Mutairi.

Although the Government identified various portions of the interrogation report during the

Merits Hearing that, according to the Government, demonstrate its reliability, the interrogator did

not confirm Al Mutairi's identity w i t h . - such as showing him a photograph of Al Mutairi.



reference to Al Mutairi

credible.
                          as"
Based on the wholesale lack of corroborating evidence in the record and the single obscure

                                         the Court does not vie~llegation as reliable or



          D.     Evidence Summary

          In summary, the Court has credited the Government's evidence that (1) Al Mutairi's path


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of travel into Afghanistan was consistent with the route used by al Wafa to smuggle individuals

into Afghanistan to engage injihad; (2) that Al Mutairi's travel from Kabul to a village near

Khowst was consistent (in time and place) with the route of Taliban and al Qaida fighters fleeing

toward the Tora Bora mountains along the Afghanistan-Pakistan border, and (3) Al Mutairi's

non-possession of his passport is consistent with an individual who has undergone al Qaida's

standard operating procedures that require trainees to surrender their passports prior to beginning

their training. The Court has also found minimally probative on this record the appearance of AI

Mutairi's name and reference to his passport

Taking this evidence as a whole, the Government has at best shown that some of Al Mutairi's

conduct is consistent with persons who may have become a part of al Wafa or al Qaida, but there

is nothing in the record beyond speculation that Al Mutairi did, in fact, train or otherwise become

a part of one or more of those organizations, where he would have done so, and with which

organization. While Al Mutairi's described peregrinations within Afghanistan lack credibility,

the Government has not filled in these blanks nor supplanted AI Mutairi' s version of his travels

and activities with sufficiently credible and reliable evidence to meet its burden by a

preponderance of the evidence. Accordingly, the Court shall grant Al Mutairi's petition for

habeas cOrpUS. 18




        18 Because the Court has found insufficient evidence in the record supporting the
Government's theory that Al Mutairi became a part of al Wafa, the Court does not reach Al
Mutairi's alternative argument that al Wafa is not an organization that, by definition, could
constitute an "associated force" pursuant to the standard of detention adopted by the Court.

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                                      III. CONCLUSION


       Because the Government has not met its burden by a preponderance of the evidence, the

Court shall GRANT Al Mutairi's petition for habeas corpus. The Court shall issue an Order

requiring the Government to take all necessary and appropriate steps to facilitate Al Mutairi's

release forthwith.

Date: July 29, 2009
                                                               /s/
                                             COLLEEN KOLLAR-KOTELLY
                                             United States District Judge




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