                        UNCLASSIFIEDIIFOR PUBLIC RELEASE




                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLOMBIA


MOHAMMED AL-ADAHI, ~~,
                                                                     FllEDX;H
                                                                          E
                                                                     COURT S          OFFICER
                                                                     CSO'
                                                                     CATE:        .


     Petitioners,

     v.	                                     Civil Action No.         05-280 (GK)

BARACK	 H. OBAHA, at AL..,

     Respondents.


                             MEMORANDUM OPINION

     Petitioner     Fahmi     Salem     Al-Assani        ("AI-Assani"        or   "the

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.                           The

petitioner disagrees, and has, along with four other petitioners,

filed a petition for a writ of habeas corpus [Dkt. NO. 1).1


      1   To date, one of the five petitions has been decided on

the merits: Mohammed Al-Adahi's petition and Motion for Judgment

on the Record were granted by this Court on August 17, 2009 [Dkt.

No. 459].   The Government filed an appeal on September 21, 2009,

and the Petitioner cross-appealed other aspects of the Order on

October 5, 2009 [Dkt. Nos. 463, .473).      On December 22, 2009,

Muhammad Ali Abdullah Bawazir's petition was dismissed without

prejudice after he chose not to proceed with a merits hearing

scheduled   for  January 2010    [Dkt.  No.   526].    Two other

Petitioners-Suleiman Awadh Bin Aqil AI-Nahdi and Zahir Omar Khamis





                            UNCLASSIFIEDIIFOR PUBLIC RELEASE
                               UNCLASSIFIEDIIFOR PUBLIC RELEASE




                                          SBSRBW

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

on the Record          [Dkt.   Nos.    493 and 496].         On December 22,          2009,
Petitioners filed a            Supplemental Brief

                                                   and the Government responded

 (Dkt. Nos. 527 and 539].              Upon consideration of the Motions, the

Oppositions, extensive oral argument and accompanying exhibits, and

the entire record herein, Al-Assani's habeas corpus petition and

Motion are hereby denied.

I •     BACKGROUND

        A.     Procedural History

        Petitioner filed his habeas corpus petition on February 7,
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


Bin Hamdoun--have filed Motions for Judgment on the Record.   On
October 7, 2009, Hamdoun's petition was stayed for 120 days [Dkt.
No. 476]. On January 4-5, 2010, a merits hearing was held on Al­
Nahdi's petition and Motion, which are addressed in a separate
opinion.

                                           -2­




                               UNCLASSIFIEOIIFOR PUBLIC RELEASE
                       UNCLASSIFIEDIIFOR PUBLIC RELEASE




                                  iHi1ElY'i'

 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 in order to justifiably detain individuals- -that
question was left to the District Courts.           rd, 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 lay down specific procedures for the District
Courts to follow in these cases.

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

first, that the detainees are entitled to a prompt hearing, 128 S.

Ct. at 2275 (~The detainees in this case are entitled to a prompt

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

to shape the contours of those hearings, ~ at 2276 (finding that
balancing protection of the writ and the Government's interest in
military operations,   "and the other remaining questions [,]          are
within the expertise and competence of the District Court to
address in the first instance.    U ).




     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 in


                                   -3­




                       UNCLASSIFIEDIIFOR PUBLIC RELEASE
                          UNCLASSIFIEDIIFOR PUBLIC RELEASE




                                     SBeR:fl~


order to streamline procedures for, and management of, the several

hundred petitions filed by detainees.               ~        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. 283.
        Much pre-hearing activity haa taken place under this Court's

Case Management Order.          The Government has filed the exculpatory

evidence, automatic discovery, and additional discovery required

under the CMO.      The Government filed its Factual Return for Al­

Assani on August 1, 2005, and amended it on October 30, 2008.                      The

Petitioner responded by filing Traverses on July 2, 2008, July 9,

2008, and November 3, 2008.        After a period of extensive discovery,

both parties filed substantial briefs accompanied by extensive
eXhibits.

        On December 16, 2009, the Court set January 4, 2010, as the
date for the "Merits Hearing" on the Cross-Motions for Judgment on
the Record for all three Petitioners who planned to go forward to
challenge their      detention.        On December 22,           2009,     Petitioner
Bawazir's case was dismissed without prejudice after he instructed
his counsel to not proceed with litigating his Motion.                           Order


                                        -4­




                           UNCLASSIFIEDIIFOR PUBLIC RELEASE
                             UNCLASSIFIEDIIFOR PUBLIC RELEASE




                                        BSeU'i'


(December 22, 2009) [Dkt. No. 526].                 AI-Nahdi's case, including the


Petitioner's live direct and cross-examination on January 5, 2010,


was presented to the Court over a two-day period.                     AI-Assani' s case

was presented to the Court on January 7, 2010.

:U.    STANDARD OF REVI:EW

       The Government bears the burden of establishing that detention

is justified.         See ~oumediene, 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.

283-2] ; see also Al-Bihani v. Obama, 590 F.3d 866, 878 (D.C. Cir.

2010);~,


       Initially, the Government took the position that Article II of

the Constitution and the AUMF granted the President the authority

to detain individuals.           See Gherebi v. Obama, 609 F. Supp. 2d 43,

53 n.4 (D.D.C. 2009).           The 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. 205].

       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


                                         -5­




                             UNCLASSIFIEDIlFOR PUBLIC RELEASE
                         UNCLASSIFIEDIIFOR PUBLIC RELEASE




                                     saeu'!'
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 Govt.'s Detention Authority

Relative to Detainees Held at Guantanamo Bay at 3 (Dkt. No. 306].

       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
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.       However, in

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

Bates of this District Court concluded that, under the law of war,
the Government has the authority to detain individuals who were
"part of .        Taliban or al Qaida forces" or associated forces,
but not the authority to detain those who are merely "substantial




                                      -6­




                          UNCLASSIFIEDIIFOR PUBLIC RELEASE
                         UNCLASSIFIEOIIFOR PUBLIC RELEASE




                                    S:BeR:B'i'

supporters of those groups.,,2          Id. at 74,         76.   As JUdge Urbina

succinctly stated,     "the crux of the distinction between the two

approaches lies in whether the government has the authority to

detain individuals who substantially supported enemy forces and/or

directly supported hostilities against the United States.                      Judge

Walton has concluded that the government does have this authority,

       while Judge Bates has held that it does not."                        Hatim v.

Obama, No. 05-1429, 2009 WL 5191429, at *3 (D.D.C. Dec. 15, 2009)

(citations omitted).     This Court concluded that, "[w]hile [it] has

great regard for the scholarship and analysis contained in both
decisions,             Judge   Walton's          opinion    presented   a    clearer

approach," and adopted the reasoning and conClusion in Gherebi.

AI-Adahi v. Obama, No. 05-280, 2009 WL 2584685, at *3 (D.D.C. Aug.

21,2009).

     Recently,   the Court of Appeals considered the scope of the

President's detention authority under the AUMF and related statutes

in AI-Bihani, 590 F.3d at 870-75. 3          The Court of Appeals rejected


      ~   The Court agrees with JUdge Bates' comment that the
determination of who was a "part of n the Taliban and/or al-Qaida,
under JUdge Walton's approach, 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 63, 76 (D.D.C. 2009).

          To the extent that Ghereb~ or Hamlily are inconsistent
with the analysis set forth in Al-Bihani, the decision of the Court

                                     -7­




                         UNCLASSIFIEOIIFOR PUBLIC RELEASE
                          UNCLASSIFIEDIIFOR PUBLIC RELEASE




                                       BeeRS!'

Al-Bihani's argument "that the war powers granted by the AUMF and

other statutes are limited by the international laws of war," and

held that the sources courts must look to are "the text of relevant

statutes and controlling domestic caselaw."                      Id. at 871-72.

      The   Court    of Appeals      then examined the various                "relevant

statutes," including the AUMF, the 2006 Military Commissions Act,

Pub.L. No. 109-366, 120 Stat. 2600 (codified in part at 28 U.S.C.

§   2241 & note), and the 2009 Military Commissions Act, Pub.L. No.

111-84, tit. XVIII, 123 Stat. 2190, 2575-76.                      It concluded that a

lawfully detained person could be defined as "an individual who was

part of or supporting Taliban or al Qaeda forces,                       or associated

forces that are engaged in hostilities against the United States or

its    coalition      partners"       or     "an    individual         'substantially

support [ing]    enemy   forces."          Id.     at      872   (iriternal   quotation

omitted).     The Court made clear that this two-pronged definition

(membership and substantial support) included "those who are part

of forces associated with Al Qaeda or the Taliban or those who

purposefully and materially support such forces                       in hostilities

against     U.s. Coalition partners."                   I51:..   Finally,     the    Court

concluded     that    "both     prongs       are    valid        criteria     that    are

independently sufficient" to justify detention.                      Id. at 874.




of Appeals controls.

                                           -8­




                              UNCLASSIFIEDIIFOR PUBLIC RELEASE
                UNCLASSIFIEDIIFOR PUBLIC RELEASE




                           SHElM'!'

III. ANALYSIS




                            -9­




                UNCLASSIFIEDIIFOR PUBLIC RELEASE
                        UNCLASSIFIEDIIFOR PUBLIC RELEASE




                                   BEeRE;'




separate question of whether the petitioner poses a threat to the

united States' national security is one the district courts have
not found determinative, or even relevant, in ruling on the merits
of habeas petitions.     ~     Awad v. Obama, 646 F. Supp. 2d 20, 24

(D.D.C. 2009); Anam v.Obama, No. 04-1194, 2010 WL 58965, at *14

(D.D.C. Jan. 6, 2010)    (denying petition for habeas corpus despite

explicit finding that petitioner "does not currently pose a threat


                                     -10­




                        UNCLASSIFIEDIIFOR PUBLIC RELEASE
                             UNCLASSIFIEOIIFOR PUBLIC RELEASE




 to the security of the United States") .                 See also AI-Bihani, 590
 F.3d at 870-75       (not considering whether petitioner posed future

 threat in upholding district court's denial of the writ).

       Arguing that the threat posed by petitioner is relevant to
this Court's inquiry, Petitioner points to language in the Supreme

Court's decision in Hamdi that "[t]he purpose of detention is to

prevent captured individuals from returning to the field of battle
and   tak~ng   up arms once again."




                 However, the Hamdi Court made clear that, under the
AUMF, the President possesses "[t]he authority to detain for the

duration of the relevant conflict . . . based On longstanding law­

of-war principles."       rd. at 521.       Thus, the President is authorized

to    detain    Petitioner     for    the      duration     of   the   conflict   in
Afghanistan, even if Petitioner poses no threat of returning to the
field of battle.      See alsQ Transcript of Oral RUling at 12-13, Anam
v. Obama, No. 04-1194 (D.D.C. Dec. 14,2009); Awad v. Obama, 646 F.
Supp. 2d 20, 24 (D.D.C. 2009) ; but s e e ~ , _

                                        (concluding that "the AUMF does not
authorize      the   detention of       individuals       beyond   that   which is

                                  individuals from rejoining the battle" .




                                        -11­




                             UNCLASSIFIEOIIFOR PUBLIC RELEASE
                       UNCLASSIFIEDIIFOR PUBLIC RELEASE




     In short, the question of whether Petitioner poses a threat is
not relevant under the AUMF to this Court's review of his continued




                                  -12­




                       UNCLASSIFIEDIIFOR PUBLIC RELEASE
                                   UNCLASSIFIEDIIFOR PUBLIC RELEASE

I   I




             B.      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 staternentsmade by other detainees,                       that the Government

        argues    .demonstra~e     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


                   Petitioner argues that the Government's evidence should
        be excluded under the Geneva Conventions, because the evidence was
        collected in violation of various articles of the Third Geneva
        Convention. Pet.'s Response to Gov's Mot. for J. on the Record at
        3-5. The parties previously had briefed this issue in the weeks
        following Petitioner Al-Adahi' s Merits Hearing [Dkt. Nos. 435, 441,
        442, and 481).     The Court agrees with the Government that the
        evidence need not be excluded.         Section 5 of the Military
        Commissions Act of 2006 ("MCA"), Pub. L. 109-366, § 5, oct. 17,
        2006, 120 Stat. 2631 (codified at 28 U.S.C. § 2241 & note), which
        was not altered by the MCA of 2009, precludes Petitioner from
        relying on the Geneva Conventions "as a source of rights."        In
        addition, this Circuit held in AI-Bihani, 590 F.3d at 875, that
        " [tJ he AUMF, DTA, and MCA of 2006 and 2009 do not hinge the
        government's detention authority on                compliance with
        international law . .    " Petitioner therefore cannot rely on the
        Geneva Conventions to carve out an exclusionary rule for evidence.

                                                   -13­




                                       UNCLASSIFIEDIlFOR PUBLIC RELEASE
     --------------------------------------
                                UNCLASSIFIEDIIFOR PUBLIC RELEASE




                                           -!!IeH'!'

authenticity          be    granted   to     all       the    exhibits       it     intends    to

introduce. 5         Petitioner objected to this request. See Pets.' Joint

Opp'n     to     the       Government's       Memo.          and    Supplement       Regarding

Presumptions, Hearsay and Reliability of Intelligence Information

at 3-10 ("Pets.' Presumptions Memo.")                    [Dkt. No. 400].          In the Order

granting       Petitioner Al-Adahi' s           petition           for   a   writ    of   habeas

corpus,        the     Court    ruled       that,       "[gJ iven        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 discovery, have all been maintained in the

ordinary course of business,                the Court will presume, pursuant to

Fed. R. Evid. 803(6), that its documents are authentic."                              AI-Adahi

v. Obama, 2009 WL 2584685, at *3.                    As provided for in the CMO, 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.

        In Petitioner AI-Assani's case, the Government also requested

that a rebuttable presumption of accuracy be granted to all the

exhibits it intended to introduce.                   The Petitioner objected to this

request as well.             See Pets.'       Presumptions Memo. at 3-10.                     This


     5    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 Eyidence § 221 (6th ed.).

                                              -14­




                                 UNCLASSIFIEDIIFOR PUBLIC RELEASE
                                           --------------------------:---------,


                              UNCLASSIFIEDJlFOR PUBLIC RELEASE




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 exhibi ts are accurate.

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 verbatim account of what was said.

        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.        Those final judgments will be based on a long,                        non­

exclusive list of factors that any 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 testified to, levels of

hearsay, recantations, etc.'

        Denial    of    the     Government's          request      for   a    rebuttable

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


     ,    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
Eoumediene, the Court clearly left it to the District Courts to
craft appropriate procedures. Boumediene, 128 S. Ct. at 2272.

                                           -15­




                                UNCLASSIFIEDIIFOR PUBLIC RELEASE
------   ._-   -_   .... ­




                                             UNCLASSIFIEDIIFOR PUBLIC RELEASE




                                                        SHORB'i'

           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.                            See
          also AI-Bihani v. Qbama,               590   F.3d at 879-80.

                        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

          "[aJ 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.                  ~

                      C.         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,              H   the evidence supporting these allegations comes
         together to support a conclusion that shows the Petitioner to be


                                                        -16­




                                             UNCLASSIFIEDIIFOR PUBLIC RELEASE
                           UNCLASSIFIEDIIFOR PUBLIC RELEASE




                                      SBeRH'f

justifiably detained.       Govt.'s Mot. for J. Upon the R. and Mem. in

Supp. at 7 (internal citation omitted)              [Dkt. No. 496].      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. Hatim v. Obama, No. 05-1429, 2009 WL 5191429, at

*3 n.1 (D.D.C. Dec. 15, 2009); 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,7 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


             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) .

                                        -17­




                            UNCLASSIFIEDIIFOR PUBLIC RELEASE
I   I                                UNCLASSIFIEDIIFOR PUBLIC RELEASE
    I

    I

                                                saeRS'!
        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

        eventually split apart.          just as the brick wall will eventually

        collapse.
               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 deposition transcripts to consult and few if any witnesses are

        available for cross-examination.              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 existing evidence must be weighed and

        evaluated as to its strength, its reliability, and the degree to
        which it is corroborated.              In any event,        the Government always
        bears the ultimate burden of showing by a preponc;ierance of the
        evidence that 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


                                                  -18­




                                       UNCLASSIFIEDIIFOR PUBLIC RELEASE
                     _._-_ _ - - - - - - - - - - - - - - - - - - - - - - - - ,
                             ..




                                    UNCLASSIFIEDIIFOR PUBLIC RELEASE




                                               SilSR'!

      Petitioner may not be able to offer neat answers to every factual

      question posed by the Government does not relieve the Government of

      its obligation to satisfy its burden of proof.

           D.	   Legal Standard            Governing      Petitioner's        Knowledge    and
                 Intent

           Petitioner relies heavily on the argument that,                         assuming

      arguendo that he was recruited through an al-Qaida network to train

      in Afghanistan, the Government has not proved by a preponderance of

      the evidence that he knew that the facilitators, guesthouses, and

      training camp that he encountered along the way were associated

      with al-Qaida.    Instead, Petitioner argues, he decided to travel to

      Afghanistan to receive military training, which he considered a

      sort of rite of passage, for its own sake.                       Pet.'s Mot. for J. on

      the Record at 3 {Dkt. No. 493]              ("Pet.'s Mot.").

           This argument raises the important question of what level of

      knowledge or intent is required under the relevant caselaw.                         Given
      how central this question is to Petitioner's defense, the Court
      will address     the        legal standard first,8 before evaluating the

      evidence	 offered by the Government to prove its allegations.
           Under the standard adopted in this Circuit, the President may


           8    On January 6, 2010, at the end of the Merits Hearing, the
      parties were ordered to file supplemental briefs on the knowledge
      and intent issues and the degree, if any, to which Al-Bihani
      addressed them.      Order   (Jan.   6,  2010)   [Dkt.  No.   531].
      unfortunately, the Court of Appeals had no occasion in the Ai=.
      Bihani opinion to address the issues of knowledge and intent.
                                                 -19­




                                      UNCLASSIFIEDIIFOR PUBLIC RELEASE


L-	                                                                                               .

                                                       ------      -------------------------,


                                UNCLASSIFIEDIIFOR PUBLIC RELEASE




                                             saORB'!
     detain    persons   who   were     part    of,      or     substantially        supported,

     Taliban or al-Qaida forces or associated forces.                          Al-Bihani, 590

     F.3d     at   871-74.      Although        there         is    no    explicit     scienter

     requirement,     the District Court in              Hamlily concluded that this

     framework "does not encompass those individuals who unwittingly

     become part of the al Qaeda apparatus."                       Hamlily, 616 F. Supp. at

     75.    Instead, "some level of knowledge or intent is required," at

     least under the membership prong.                Id.

            First, given the tenor_ of some of Petitioner's arguments it

     bears emphasis that the Government is not required to prove that

     Petitioner had reason to know specifically that Coalition forces

     would enter the conflict in Afghanistan, or that Petitioner had the

     specific intent to fight against the United states or its allies.

     See, e.g., Pet.'s Mot. at 4.           Instead, the knowledge or intent that

     must be shown relates to Petitioner's decision to become a part of

     or to substantially support al-Qaida and/or the Taliban.                             Thus,

     even a    recently recruited,          low-ranking Taliban and/or al-Qaida

     member who had no reason to suspect the united States' entrance

     into   the    conflict    is   detainable,         so      long     as   the   decision    to

     "function[} or participate[] within or under the command structure

     of the organization" was made with some knowledge or intent, and so

     long as the individual was functioning or participating within the

     command structure at the time of capture.                     Gherebi, 609 F. Supp. 2d


                                               -20­




                                    UNCLASSIFIEDIIFOR PUBLIC RELEASE


L-                                                                                        ------­
                             UNCLASSIFIEDIIFOR PUBLIC RELEASE




                                        saeRB'I'
at 68-69.

        Second, the Government need not show that a petitioner knew or

intended from the moment his journey began that it would end in al­

Qaida and/or Taliban membership.              ~    Pet.' s Supp. Brief at 6 (Dkt.

No.    537].      It is both possible and probable that an individual

would obtain such knowledge or form such intent over the course of

a     journey,    as   training and indoctrination are undertaken and

political views are crystallized.                The fact that an individual may

have     been     initially motivated to           travel       abroad   for   innocent

reasons, or that an individual's knowledge or intent was less than

clear     at     the   inception of     his    journey,     does     not   defeat   the

Government's case.         Instead, it is sufficient for the Government to

prove by a preponderance of the evidence that, at some point before

capture, it is more likely than not that petitioner knew he was

becoming or intended to become a part of or substantial supporter
of al-Qaida and/or the Taliban.

        Finally, as this Circuit has explained, albeit in the criminal

context, \\ eel xcept in extraordinary circumstances, (] intent cannot

be proved by direct evidence," and "it is therefore not only

appropriate but also necessary for the [fact-finder]                       to look at

'all of the circumstances.'"             United States v. Haldeman, 559 F.2d
31, 115-16 (D.C. Cir.1976)i see also United states v. Rhodes, 886
F.2d 375 (D.C. Cir. 1989) (citation omitted).                     The Government need


                                          -21­




                               UNCLASSIFIEDIIFOR PUBLIC RELEASE
                           ----       ---------------------.

                               UNCLASSIFIEDIlFOR PUBLIC RELEASE




     not always have direct evidence of a petitioner's knowledge that an

     organization   is,   or   is    associated      with,        al-Qaida   and/or   the

     Taliban,   or of a petitioner's intent to become a part of or to

     substantially support such an organization.                    In such cases,    an

     inference of knowledge or intent may be drawn from indirect and

     circumstantial evidence.       See, e.g., Anam, 2010 WL 58965, at *11.

          B.    Government Allegations

          In narrowing the issues for trial, the parties focused on six

     broad factual areas that are in dispute.                     The Court then heard

     arguments and evidence on whether Petitioner (I) was recruited by

     an al-Qaida operative and traveled to Afghanistan to join al-Qaida

     forces; (2) stayed at al-Qaida guesthouses and knew the guesthouses

     were affiliated with al-Oaida;          (3) received military training at

     al-Qaida training camps and knew the camps were operated by al-

     Qaida; (4) served as a bodyguard for Usama Bin Laden; 5) knowingly

     served with an al-Qaida unit at Tora Bora and participated in

     hostilities against the United States or its alliesj9 and 6) was


          ,    In preparation for the Merits Hearing,         Petitioner
     identified as a factual issue in dispute " [w]hether Mr. al-Nahdi
     ever participated in hostilities against the United States or its
     allies."   Pet. ' s Stmt. of Main Il:jsues in Dispute 1 9 [Dkt. No.
     515]. However, the Court of Appeals' subsequent decision in Al­
     Bihani has made clear that the legal standard governing the
     President's detention authority under the AUMF is whether
     Petitioner was a member or substantial supporter of al-Oaida and/or
     the Taliban. Al-Bihani, 590 F.3d at 870-74. While participation
     in hostilities is certainly relevant to the legal inquiry into
     membership and/or substantial support, it is not controlling.

                                            -22­




                                UNCLASSIFIEDIIFOR PUBLIC RELEASE


L­
                                                                                            ~
                                                                                                _
                                                                                                    .
                         UNCLASSIFIEDIIFOR PUBLIC RELEASE




                                    SB€M1'P

captured on or near the battlefield at Tora Bora.                 Because issues

five and six are closely related, they will be considered together.

           1.	   Recruitment by al-Qaida Operative and Travel                     to
                 Afghanistan

     The Government seeks to show that it is more likely than not

that AI-Assani was being recruited by an al-Qaida operative when he

decided   to   travel   to Afghanistan,       and    that his      motivation     in

traveling there was to fight alongside al-Qaida and/or the Taliban.

It is undisputed that a man named                            approached Al-Assani

at the Taqwa Mosque, where AI-Assani worked as a chanter, in the

Mukalah region of Hadramout, Yemen.             Gov's Statement of Material

Facts Not in Dispute ("Gov's Stmt. of Undisputed Facts")                ~   1.   Al­

Assani andlllllllbecame friends, discussing religion, the problems

related to Palestine,      and the Russian invasion of Afghanistan.

lIIIIIIencouraged Petitioner to receive military training, which he

agreed to in August 2001.      IIIIIIfhen gave AI-Assani 3,000              riyal~

Thus, this issue has been incorporated into the broader discussion
in this section of whether Petitioner was a member or substantial
supporter of al-Qaida and/or the Taliban.

     10   The interrogation report from which this information was
gathered states that AI-Assani was given 3,000 Yemeni riyals,
which, according to representations made by the Government at the
Merits Hearing, would have equaled about $20 in 2001. JE 14 at 2.
However, the Government argued at the Merits Hearing that, because
individuals being recruited by al-Qaida are typically given much
more money than this, the Court should infer that the report is
mistaken. The Government asks the Court to conclude instead that
Al-Assani was given 3,000 Saudi riyals, which would have equaled
about $800 in 2001.  In essence, the Government asks the Court to

                                      -23­




                          UNCLASSIFIEDIIFOR PUBLIC RELEASE
                        UNCLASSIFIEDIIFOR PUBLIC RELEASE




for travel money,      took his passport to obtain the appropriate

visas, and advised him that he would be met at the Sanaa, Yemen bus

station and taken tolllllllllfriend,1IIIIIII               ~"     5-8.
      The Government alleges, relying principallY on statements made

by other Guantanamo Bay detainees, that _                      was "an al-Qaida

recruiter, travel facilitator, and commander in Osama Bin Laden's

55 th Arab Brigade."   Gov's Stmt. of Undisputed Facts , 2.              According

to intelligence reports,       Fahd Umr Abd AI-Majid (AI-Sharif)              (ISN

215) stated that he met a man named Salam in Kabul, Afghanistan in

2001 on the "front lines," and that Salam had received all training

available at al-Qaida' s Khaldan and Al Farouq camps.              JE 18.n     ISN

28   described a Salam Al   HadramP~     as having commanded Arab fighters

in the Kabul area.      JE 31 at 5.          ISN 44 also named a         Salam Al



assume the accuracy of that which it sets out to prove. The Court
rejects this assumption. It is the Government's job to introduce
evidence it believes to be probative of its allegation that Al­
Assani was being recruited to join al-Qaida, not to introduce
evidence and then ask the Court to discount it and substitute some
more favorable interpretation of it.
     11   Parties submitted one volume of Joint Exhibits, which
comprise the vast majority of evidence presented during trial.
Unless otherwise indicated, citations to "JE" refer to the universe
of Joint Exhibits.
     12   The Government explained at the Merits Hearing that
identifying an individual as "AI Hadramiu--as ISN 28 and ISN 44
did--signifies that the individual is from Hadramout, Yemen, which
is where Petitioner                                 new as Salam.
See also Decl. of                                    JE 3 at 3.
Petitioner did not 0
                                      -24­




                            UNCLASSIFIEDIIFOR PUBLIC RELEASE
                           UNCLASSIFIEDIIFOR PUBLIC RELEASE




                                      BB@!RB1f'

Hadrami as his      recrui~er.     JE 33 at 1.       He later stated that he met

Salam at the Said Center, a rest area that serviced the Taliban

front lines outside of Kabul, where Salam encouraged him to remain

in Afghanistan and fight with the Taliban.                   JE 34.
      Given this evidence, and considering Salam's role in arranging

Al-Assani's travel to Afghanistan, the Court finds it more likely

than not that the Salam who befriended Al-Assani was an al-Qaida

member active in recruiting young men to fight.

      Petitioner      argues,     however,        that   none    of   this     evidence

establishes that AI-Assani ever knew of Salam's connection to al-

Qaida. 13     The    Government     replies       that   the    unusual      generosity

exhibited by Salam in arranging Petitioner's travel must have led

AI-Assani to at least suspect that Salam was associated with al-

Qaida.      The Government's argument is unpersuasive.                  First, it is

conceded that the two men considered each other to be friends.
Second,      the    Government's     evidence        which      has   been     admitted.

establishes that Salam gave Al-Assani the equivalent of around $20
which, while not insignificant in a country as poverty-stricken as
Yemen, is not so staggering a sum that AI-Assani could have been


     13   AI-Assani also questions the reliability of JE 26 and JE
28, which the Government initially used to support the allegation
that Salam was an al-Qaida recruiter. Pet.'s Response to the Gov's
Mot. for J. on the Record at 8-9. Because the Court finds that the
Government has met its burden on this issue through the use of
other evidence, Petitioner's objections to JE 26 and JE 28 need not
be addressed.        .




                             UNCLASSIFIEDIIFOR PUBLIC RELEASE
                                UNCLASSIFIEDIIFOR PUBLIC RELEASE




                                             SBEIM'!

expected to infer Salam's connection to al-Qaida.                            Without more

persuasive evidence that AI-Assani knew or suspected Salam's al­

Qaida connection, the circumstances are not suspicious enough to

warrant the inference that he did.

      In addition,           the record supports Petitioner's claim that he

was   motivated        to     travel      to      Afghanistan      to    receive    military

training,      and     not    to    fight.         In   2001,   military      service    was

compulsory in Yemen, but Al Assani had been rejected

                                                                 He stated before the

Combatant Status Review Tribunal (RCSRT") that he felt training was

"important      in     coming      of   age. II       Because   he      could not    receive

military training in Yemen, he claims he was persuaded to go to

Afghanistan.         JE 35.     petitioner's other statements in the record,

including those made at his Administrative Review Board (RARB")

proceeding, are consistent with these statements.                           JE 36 at 4, JE

14 at    2~   JE 15.

        The Government responds that the evidence suggests that Al­

Assani intended to stay in Afghanistan for much longer than would

be necessary to receive training.




                                               -26­




                                   UNCLASSIFIEDIIFOR PUBLIC RELEASE
                      UNCLASSIFIEDIIFOR PUBLIC RELEASE




                                 SH@H'!'




     Thus, while the Government has proven that it is more likely

than not that Salam was an al-Qaida recruiter,            it has not shown

that Al-Assani knew of the connection when he left for Sanaa in

August 2001, or that AI-Assani' s initial motivation in traveling to

Afghanistan was to fight with al-Qaida and/or the Taliban.'

     The parties do not dispute the facts of Petitioner's travel to

Al Farouq, with one exception that will be discussed below.          At the

Sanaa bus station, Petitioner met two other men--one of whom was

Petitioner   ~-and           the    three     proceeded   together   to   an

apartment where   they stayed for several days.


                                   -27­




                       UNCLASSIFIEDIIFOR PUBLIC RELEASE
                              UNCLASSIFIEDIIFOR PUBLIC RELEASE




                                        IilJlQRIii'

    friend, brought Petitioner his passport and visa for Pakistan and

 provided all three men with plane tickets to Karachi, Pakistan.

 The three men were also given the name of a contact in Karachi.

 Gov's Stmt. of Undisputed Facts            ~~    9-13.
           At the Karachi airport, the three men were met by the contact,

liliiii and traveled with him and three other Yerneni men by taxi to
    a Karachi guesthouse.        This guesthouse was run by a man named

_             who is currently a detainee at Guantanamo Bay.                    I.sl..   ~~   14­

    20. The Government claims, based upon admissions made by Riyadh,

    that    he   is   "an   admitted    mujahadeen          [known     as      "Riyadh        the

    Facilitator"] who facilitated travel for al-Qaida members and was
    an associate of Usama Bin Laden. 1114             IQ... ~ 21.

           From Riyadh's guesthouse, the seven Yemeni men took a cab to

    the Karachi bus station, where they were met                    byllllll   a Pakistani



     ,U      Petitioner argues that any admissions made by
 _       are unrel iable because he was rendered to Jordan an
 ~e arriving at Guantanamo. Pet'.'s Response to Gov's stmt. of
 Material Facts Not in Dispute 1 21. As this Court explained in
 Mohammed v. Obama, No. 05-1347, 2009 WL 4884194, at *22-27 (D.D.C.
  Dec. 16, 2009) (citing Schneckloth v. Bustamante, 412 U.S. 218, 226
   (1973) ), courts apply a "totality of the circumstances" test,
  considering "the time that passes between confessions, the change
  in place of interrogations, and the change in identity of the
  interrogators" in determining whether prior coercion carries over
  into a second confession.      However, Petitioner has presented no
  information on the extent of torture suffered by Riyadh or its
  impact on his statements. Without such information, the Court is
  not prepared to reject the Government's evidence as unreliable.
  Cf. id. Therefore, the Government's evidence stands as unrebutted
  and must be accepted as credible.
                                          -28­




                               UNCLASSIFIEDJlFOR PUBLIC RELEASE
                            UNCLASSIFIEDIIFOR PUBLIC RELEASE




                                         BB@&iI'i'

man who took them by bus to Quetta, Pakistan.                            There,    the group

separated      and   AI-Assani,       along       with     his    two    original     travel

companions,      rested at a safehouse for a few hours.                           An .Afghani

youth they met there next took them to the Afghan border, where

they evaded a border checkpoint by traveling on motorcycles, only

to reconvene with the taxi on the Afghanistan side of the border.

rd. "     22-25.
        Once    in   Afghanistan,          they      traveled       to     the     al-Nebras

guesthouse, arriving after dark.                  At al-Nebras, AI-Assani and his

companions were required to turn in their bags, passports, money,

and all other fonns of identification, which were inventoried.                            The

men were told they were supposed to pick up these items when they

returned to al-Nebras after completing their training at Al Farouq.

After     a    few   days   at     al-Nebras,         a    bus     took    AI-Assani      and

approximately forty-five other men to Al Farouq.                          rd."      26-30.

        The Government alleges that the fact that Petitioner's travel

was so coordinated and closely controlled, that it was fully paid

for by virtual strangers,              and that           it was arranged in such a

secretive and evasive manner compels the inference that he likely

knew he was being recruited by al-Qaida.                         While the Court agrees

that    the manner     in which Petitioner traveled to Al                          Farouq is

suspicious, it need not decide whether the Government, as of this

point     in   the   evidence,       has    produced         sufficient       evidence       to


                                            -29­




                                 UNCLASSIFIEDIIFOR PUBLIC RELEASE
,..---------------                     -"


                              UNCLASSIFIEDIIFOR PUBLIC RELEASE




                                         saSH!'

     establish that it is more likely than not that AI-Assani knew he

     was associating with al-Qaida, since it is clear that he became
     aware of that connection after arriving at Al Farouq.
                2.    Guesthouse Stay

           The Government produced evidence that AI-Assani stayed in four

     guesthouses     during   the   period      in    question:       1)   Riyadh   the

     Facilitator's guesthouse in Karachi, Pakistani              2}   a guesthouse in

     Quetta, Pakistani 3) the al-Nebras guesthouse in Afghanistan; and

     4) a guesthouse in Kabul, Afghanistan.              Petitioner does not deny

     that he stayed at these guesthouses, but does dispute whether 'they

     were al-Qaida safehouses and, even if they were, whether he knew
     it.

           The Government argues that these guesthouses differed from
     those typically frequented by young Yemeni men traveling abroad,

     which resemble youth hostels.       ~ Decl. of Dr. Sheila Carapico, JE
     53 ~ 4 (describing typical guesthouse).




                              UNCLASSIFIEDIIFOR PUBLIC RELEASE
                           UNCLASSIFIEDIIFOR PUBLIC RELEASE




                                        SBeRS!




public,   but    were     restricted        to    individuals      who   either   had

connections to al-Qaida or had been brought there by al-Qaida

supporters.      JE   a at 3.
     Ample evidence has been produced in this case to support the
conclusion that the Karachi and al-Nebras guesthouses were al-Qaida

safehouses. 15    ~     Al-Nahdi v. Obama, No. 05-280 (Feb. 24, 2010).

There is far less evidence, however. to support the claim that Al-

Assani knew he was staying at al-Qaida guesthouses.

     There are relatively few statements by Al-Assani in the record

concerning    his     guesthouse       stays,     especially when compared         to

Petitioner Al-Nahdi's account.1&                 With respect to the Riyadh and

Quetta guesthouses. AI-Assani says little more than that he stayed


     15   The Government has provided little evidence about the
Quetta or Kabul guesthouses.
      16  On several occasions. the Government:, relies on statements
by Petitioner AI-Nahdi to demonstrate that AI-Assani was staying in
an al-Qaida safehouse and, more problematically, that he was aware
of it. As discussed above, Petitioner must have had some knowledge
or intent to become a part of al-Qaida and/or the Taliban for his
continued detention to be justified. See Hamlily, 616 F. Supp. 2d
at 75.   While the Court credits the Government's evidence with
respect to the issue of whether the guesthouses were al-Qaida
safehouses. admissions made by AI-Nahdi as to his personal
knowledge of the guesthouses' operations or experiences while
staying there cannot be considered evidence of Al-Assani' S state of
mind.
                                           -31­




                                UNCLASSIFIEDJlFOR PUBLIC RELEASE
                            UNCLASSIFIEDIIFOR PUBLIC RELEASE




                                        SS8Rl!I'P

at them.        With respect to his stay at al-Nebras, the guesthouse

notorious for housing recruits on their way to AI Farouq, Al-Assani

described how his possessions--including his passport--were taken

and inventoried.       He identified the man running the guesthouse as
a man named                  which matches other intelligence regarding
the al-Nebras guesthouse.          JE 14 at 3; JE 20 at 2.           He also stayed

there for two days without leaving the house,                       although it is

unclear whether he felt he was required to remain inside.                    In one

interrogation, he stated that there were no rules preventing him

from leaving the guesthouse, although on another occasion he said
he was not allowed to come and go from the house at will.                   JE 14 at

3 i JE 15.1'7    Finally, he stated that no training video or audiotapes
were seen or heard there.               JE   14     at 3.      While this evidence

provides some support for the inference that Al-Assani was aware of

the al-Nebras guesthouse's connection to al-Qaida,                     it does not
establish Al-Assani's knowledge by a preponderance.

      Merely      staying    at    an    al-Qaida       safehouse     is   typically
insufficient to satisfy the detention standard.                  See Ali Ahmed, 613


     17    Petitioner argued at the Merits Hearing that his
statements in JE 14 should be given more weight than those in JE
15, since the latter were tangential to the purpose of the
interview.and because other details in JE 15 indicate some
confusion over Al-Assani's alias. However, JE' 15 also describes a
test conducted by the interrogators of AI-Assani's veracity, which
he passed.   On balance, there is no reason to suspect that the
statements captured in this report--while not consistent with those
in JE 14--are less trustworthy.
                                          -32­




                             UNCLASSIFIEDIIFOR PUBLIC RELEASE
                                               "-   -"-~------------------



                                UNCLASSIFIEDIIFOR PUBLIC RELEASE




F. SUpp. 2d at 6S (finding guesthouse stay insufficient to justify

detention); but see AI-Bihani, 590 F.3d at 873 n.2 (suggesting in

dicta that the       ~military's            reasonable belief n of a non-citizen's

guesthouse        stay        alone        would     "overwhelmingly"        JUBtify      the

government's detention).              Still, the fact that Petitioner willingly

stayed in houses where he was either advised not to go                            outsid~.or

felt it better not ·to, and where his passport and other personal

belongings were taken and held, adds strength to the inference that

he knew he was           associating with al-Qaida,                  and,    in   turn,   the

inference that he was intentionally taking steps to join al-Qaida' S

ranks.    Cf. Razak Ali v. Obama, No. 09-745, 2009 WL 4030864, at *3­

4 (D.D.C. Nov. 19, 2009).

             3.     Attendance at Al Farouq

        AI-Assani does not deny that he spent approximately two weeks

at the Al Farouq training camp in order to receive training on the

Kalashnikov        rifle.             In     addition,     Petitioner        admitted      in

interrogations to having heard Usama Bin Laden speak about jihad at

Al Farouq before the September 11, 2001 attacks.                        JE 14 at 4; JE 20

at 2.    He stated that he knew who Usama Bin Laden was at the time,

as he had seen news reports about him in Yemen.                             Gov's stmt. of

undisputed Facts         ~~    38-40.       However, Petitioner claims that he was

not aware of Al Farouq's al-Qaida affiliation during his time spent

there.     That claim is patently not credible, and the Court rejects


                                                -33­




                                  UNCLASSIFIEDIIFOR PUBLIC RELEASE
                               UNCLASSIFIEDIIFOR PUBLIGRELEASE




                                          HaeM'!

it.

       According to Government experts,                 Al Farouq was al-Qaida' s

"primary Afghan basic-training                 facility,      providing        ideological

indoctrination and [weapons and other] training. n                    ~, 31.         It is

undisputed that Petitioner spent a little over two weeks at Al

Farouq, where he focused on the use and maintenance of small arms,

including Kalashnikov rifles, and physical fitness.                        ~,      35.   He

appears to have had some knowledge of the camp's hierarchy, as he

stated that he was trained by two men--one whose "code name n was

             and the other whose name waslllllllll-and identified the

commander of the camp as                              His statements indicate that

he was assigned to a "unit," in which he and other members were

subjected to a structured training regime beginning every morning

at 3:45 a.m. before being "released on their own."                         JE 14 at 4.

       Even if the evidence leading up to AI-Assani's attendance at

Al    Farouq    does     not     clearly     establish       that    he    knew    he    was

associating with al-Qaida, the Court finds that it is definitely

more likely than not that he became aware of that connection while

at    Al   Farouq.      It     is simply not credible that                he   would have

attended the camp,            which subjected its trainees to ideological

indoctrination for two full weeks, without realizing with whom he

was    deal ing .      That    Petitioner heard Usama Bin Laden--whom he

recognized--speak about jihad at Al Farouq resolves any remaining


                                            -34­




                                  UNCLASSIFIEDIIFOR PUBLIC RELEASE
                          UNCLASSIFIEDIIFOR PUBLIC RELEASE




                                     SlISMI'

doubt, especially in light of the way in which Al-Assani was led to

the camp.     ~   Transcript of Oral Ruling at 48-50, Allam v. Obama,
No. 04-1194 (D.D.C. Dec. 14, 2009)             (concluding petitioner had to

have known Al Farouq was an al-Qaida training camp) .

             4.   Boayguard for Usama Bin Laden

     Having established that it is more likely than not that

Petitioner knew he was associating with al-Qaida by this point, the

next issue in dispute is whether a preponderance of the evidence

establishes he was a part of or sUbstantially supported al-Qaida.
While Petitioner's guesthouse stays and training at Al Farouq alone

might suffice      to   justify detention,          the Government makes   far

stronger allegations of membership and substantial support.            One of

the Government's key allegations is that AI-Assani served as a
bodyguard for Usama Bin Laden after September 11, 2001.

     As its only piece of evidence supporting this important claim,
the Government points to an identification of Petitioner from a
photograph by

identified Al-Assani as one of fifty individuals who served as

Usama Bin Laden's bodyguards,            and said that he      saw Al-Assani
driving a Toyota pick-up truck with other bodyguards to Tora Bora.
JE 17.      These individuals were said to have weapons and to have
received "specialized" training.              Id.   The Government points out
that Al-Assani admitted to being driven in cars with approximately


                                       -35­




                            UNCLASSIFIEDIIFOR PUBLIC RELEASE
                            UNCLASSIFIEDIIFOR PUBLIC RELEASE




                                       BS8U't'

fifty other men to Tora Bora.            JE   1~   at 4; JE 21 at 2.

     It seems exceedingly unlikely that Usama Bin Laden would, in

the wake of the September 11, 2001 attacks, when he was probably

the most hunted man in the world, calIon an unknown,                          brand-new

recruit with two weeks of rifle training to serve as his bodyguard.

                                              at    *12-14.      Moreover,      certain

details of                   identification--such as the statement that

Bin Laden's bodyguards had "specialized training"--do not appear to

fit what is known about AI-Assani.                 Finally, as Petitioner points

out, there is some question as to·                             credibility.         First,

there is no indication of what personal knowledge he had of who was




concludes     that    the   Government's           evidence,     an    identification

contained    in a· single       paragraph and made             on     the   basis    of   a

photograph, does not make it more likely than not that Al-Assani

served as Usama Bin Laden's bodyguard.

             5.      Role at Tora Bora, Injury, and Capture

     The Government claims that Petitioner's conduct after leaving




                                         -36­




                              UNCLASSIFIEDIIFOR PUBLIC RELEASE
                              UNCLASSIFIEOIIFOR PUBLIC RELEASE




                                          QHeRS'!

Al Farouq and upon arriving at Tora Bora demonstrates that it is

more likely than not that he was a. part of or substantially

supported al-Qaida.          Petitioner stated in interrogations that he

and a group of fifty' other men, led by                                the commander

of Al Faroug, left Al Farouq by car in the middle of his training.

The group stopped for one night at the al-Nebras guesthouse in

Kandahar, and for a second night at a guesthouse in Kabul.                    OUtside

of Kabul,   they were taken to an area with little construction,

where AI-Assani stated he received additional training19 on the

Kalashnikov and on         ~long-distance walking"          for ten to fifteen days.

Gov's Strnt. of Undisputed Facts              ~   51-52; JE 14 at 4-5.

     AI-Assani was then driven to a forested area around Jalalabad,

where _informed the                gro~p of       the events of September 11, 2001.

Petitioner does not deny that, by this point,                        he knew that Al

Farouq was   "sponsored"            by Usama Bin Laden.              Gov'S   Stmt.   of

Undisputed Facts     411    53.     After one or two days,           the group drove


     19   In a sworn declaration submitted by Al-Assani' s counsel,
Brian Spahn, at the Merits Hearing, Mr. Spahn declared that AI­
Assani stated on January 4, 2010 that he did not receive any
additional training after Al Faroug.     JE 61.   While this Court
agreed to admit Mr. Spahn's sworn declaration,            over the
Government's objection, it did so with the understanding that it
would be evaluated for its reliability and credibility, just as any
other piece of evidence would be.       Given the lack of detail
supporting Petitioner's last-minute claim, especially when compared
to the detail supporting his previous account, the late hour at
which Petitioner chose to raise this claim, and the lack of
opportunity for the Government to test or respond to this evidence,
the Court will credit the account given in JE 14.
                                            -37­




                                  UNCLASSIFIEOIIFOR PUBLIC RELEASE
                           UNCLASSIFIEOIIFOR PUBLIC RELEASE




                                      888M'!

through Jalalabad to Tara Bora, where they were split into groups
of eight to ten people.        JE 14 at        5~


      Al-Assani stated in interrogations that his "group leader" or,

according to other accounts,           "commander," was Azuber I         although

Abdel Kadus    remaine~   in charge of the group as a whole.            Id. at 5;

JE   21   at   2.   AI-Assani      gave    a        detailed description of    the
commanders of different camps at Tora Bora, indicating his position

as an al-oaida foot solder.            JE 21 at 2-3.           He also reportedly

stated that when he arrived at Tora Bora, "positions were already

dug," and that "his   g~oup    was used to augment the groups already in

place in Tora Bora." 20      Id. at 2.

      Of significance is the account of another Guantanamo Bay
detainee,

stated in an interrogation that he was assigned t o _ u n i t ,

and, although he did not name AI-Assani as a member of his unit, he
claimed their role was "to fight against the Northern Alliance" on

the front line of Tara Bora.          According tolllllllll each position
on the front line consisted of about fifteen fighters.                 JE 10 at 3.



     20   Petitioner denied being "assigned to augment Taliban and
al Qaida forces already in defensive positions in Tora Bora,
Afghanistan" at his 2005 Administrative Review Board proceeding.
In response to that allegation, he said that his purpose in being
in Afghanistan "was not to be with the Taliban or the al Qaida."
JE 36 at 2.   Considering the Government's evidence as a whole,
however, it appears more likely than not that Petitioner knowingly
and intentionally did augment al-Qaida forces at Tora Bora.
                                       -38­




                            UNCLASSIFIEOIIFOR PUBLIC RELEASE
                           UNCLASSIFIEDIIFOR PUBLIC RELEASE




                                      SS@M"!'

      At some point, Azuber told Petitioner that a withdrawal of

 troops was taking place from the North.             From his location at Tora

 Bora, AI-Assani, who was armed with a Kalashnikov rifle,2l watched

 people moving below him on the mountains.              When the bombing began,

IIIIIIIImoved the group on foot to Pakistan.                  On the way, they met

 up with "other groups of soldiers," and _ h a d them split into

 two groups.    JE 14 at   5j   JE 20 at 2.       Al-Assani was injured after

 his group was bombed, he was escorted and turned over· to Afghani

 forces,   and eventually--after over a month of recuperation in a

 hospital--was turned over to        u.s.   custody.22

      Petitioner claims that the evidence fails to establish that he

 was a part of al-Qaida.          In the words ot Petitioner's counsel,

 "(b]y   the time Mr. Al-Assani learned that al-Farouq was run by al-

 Qaida, he had surrendered his passport and his money, and had no



      n    AI-Assani admitted before the Combatant Status Review
 Tribunal that he had a weapon in Tora Bora, but said he had no
 bullets. JE 35 at 3. However, Mr. Spahn declared that AI-Assani
 stated on January 4, 2010 that he was offered a weapon without
 bullets at Tara Bora, but declined. JE 61. For the reasons given
 above, the Court will credit Petitioner's prior statement at the
 ARB, and not those contained in Joint Bxhibit 61.
      22    The Court does not find credible Petitioner's statement
 that his leaving Tora Bora was an effort to dissociate himself from
 al-Qaida and/or the Taliban. ~ Pet.'s Mot. at 14. Al-Qaida had
 begun to retreat from Tora Bora weeks before, and Petitioner left
 when his commander, Azuber, told him to, following his instructions
 to split into two groups.    While it may be true that Petitioner
 wanted to flee out of fear for his life, he made no effort to
 abandon his position or leave the al-Qaida command structure.
                                        -39­




                              UNCLASSIFIEDIIFOR PUBLIC RELEASE
                       UNCLASSIFIEOIIFOR PUBLIC RELEASE




means of transporting himself out of Afghanistan.                Thus, when he

and his training class were taken to Tora Bora, he had no choice

but to go along.     He was not willingly accepting and executing

orders."     Pet.'s Response to Gov's Mot. for J. on Record at 16.

     While it might be true that Al-Assani had a practical motive

in deciding to remain with his group and to accept and execute

Azuber's orders, the legal inquiry remains whether he functioned or

participated within the command structure of the organization, not

why he did   BO.   In addition, there is some doubt as to whether
Petitioner was truly seeking to flee the country, as there is no
evidence that he attempted to retrieve his passport from al-Nebras

during his stay there after leaving Al Farouq.                 Indeed, there is

only one indication that Al-Assani ever wanted to retrieve his
belongings: in his 2005 ARB proceeding, he said that he wanted to
go back to get his passport, but never did.                 JE 36 at 4.   In any

event, while abandoning the group might have been dangerous and
difficult, there is no evidence that he made any attempt to do so
or that he had any choice in the matter.

     In sum, the Government's evidence supports the conclusion that
it is more likely than not that Al-Assani was both a member of al­
Qaida and executing    al~Qaida's     orders.      After realizing that Al
Farouq was sponsored by Usama Bin Laden. Petitioner continued to
travel under the leadership of camp commander Abdel Kadus.                   Cf.


                                    -40­




                         UNCLASSIFIEOliFOR PUBLIC RELEASE
                       UNCLASSIFIEDIIFOR PUBLIC RELEASE




                                  sasy'l'
~,    2010 WL 58965, at *11 (finding that voluntary association

with al-Qaida members after leaving Al Farouq supported denial of

habeas petition).   He was able to provide concrete details about

the "leaders" or "commanders" at Tora Bora.               He--as well as every

other individual in his group--was armed with a Kalashnikov rifle.

He followed Azuber's directions to join groups of varying sizes at

different points in his travel.         Finally, he was told in advance

that al-Qaida forces were retreating while he was armed.             It is not

credible that the al-Qaida leadership would inform Al-Assani of the

retreat in advance unless he was a part of the organization. 2 )          See,

~,    id., at *13 (finding it "telling" that al-Qaida behaved as

though the petitioner were a member) .

     In addition, the Court concludes that it is more likely than

not that Al-Assani was following orders when he traveled from place



     23   Petitioners claim that Hammamy v. Obama, 604 F. Supp. 2d
240 (D.D.C. 2009), stands for the proposition that a petitioner's
"mere presence" at Tora Bora is insufficient to support detention.
Pet.'s Mot. at 11. To the contrary, in Hammamy, the Court denied
the writ after having concluded that, in light of petitioner's
prior connection to terrorist organizations, the mere fact that his
identity papers were recovered at Tora Bora was SUfficient to
establish his presence there. Because the Court found that Hammamy
was present at Tora Bora, it. concluded that it was more probable
than not that he was part of or supporting Taliban or al-Qaida
forces.
     In any event, this case is a far cry from Hammamy. AI-Assani
has not only admitted to his presence at Tora Bora, but the
evidence establishes much more than "mere presence"; it gives a
detailed account of what Petitioner was doing, and with whom he was
associating, at the time.
                                    -41­




                         UNCLASSIFIEDIIFOR PUBLIC RELEASE
                                 UNCl:ASSIFIEDIIFOR PUBLIC RELEASE




                                              8118."

to place with Kadus and Azuber.                  Cf. id.       (finding that petitioner

participated        within        al-Qaida      command        structure      by    attending

training camp and following orders from instructors).                              That armed

al-Qaida leaders would merely "ask" that Petitioner accompany them,

arm him with a Kalashnikov rifle, or assign him to different groups

of armed men without any expectation of AI-Assani's compliance or

of his support in future hostilities is not credible.                          Cf. Mohammed

v. Obama, No.        05-1347, 2009 WL 4884194, at *11 (D.D.C. Dec. 16,

2009).        In~,         JUdge Hogan relied in part on the fact that al­

Qaida treated the petitioner "as reliable and as a member"                                  in

concluding that the Government had shown it more likely than not

that     he   was    a    member       of   al-oaida      at    the    time    of    capture.

See Transcript of Oral Ruling at 51,                     Allam v. Obama, No. 04-1194

(D.D.C. Dec.        14,    2009).       Similarly, al-Qaida provided AI-Assani

with training, permitted him to be in close prOXimity to Usama Bin

Laden, and housed,              ted,   and armed him throughout his journey to

Afghanistan, travel to Tora Bora, and retreat to Pakistan.                                 When

combined with            the    Government's      other     evidence,       the     fact   that

Petitioner was clearly accepted by al-Qaida,                          at a minimum, as a

substantial supporter of the organization further supports the

conclusion      that       it     is   more    likely     than       not   that     Petitioner

knowingly was a part of or substantially supported al-Oaida.




                                               -42­




                                   UNCLASSIFIEDJlFOR PUBLIC RELEASE
                           UNCLASSIFIEOIfFOR PUBLIC RELEASE




                                      BB8M'i'

IV.   CONCLUSION

      TO   summarize,     the     Government       has    met   its   burden    of

demonstrating that Petitioner was recruited by al-Qaida members                 in

Yemen, that he subsequently traveled--at no cost to himself, and

through al-Qaida-associated guesthouses--to Afghanistan,                  that he

received military training at al-Qaida's Al Farouq camp, that while

at the camp he became aware of its connection to al-Qaida and Usama

Bin Laden but did not dissociate himself from camp commanders or

al-Qaida, that he left Al Farouq and received further training tram

Al Farouq leaders, that he traveled to Tora Bora under the command

of                 and _              that he obeyed orders           intended to

organize his group into distinct units, and that, after leaving

Tora Bora under_command,                   he was injured by Coalition bombs
and captured.

      First, the Government has established that it is more likely

than not that Petitioner knew he was associating with al-Qa1da.

Petitioner's    travel was      conducted in a           tightly controlled and

clandestine manner, he trained for two weeks at Al Farouq, and he

admits that he knew the camp was sponsored by Usama Bin Laden

before arriving at Tora Bora.           Second, the Government has carried

its burden of proof with regard to Petitioner's membership in or

substantial     support    of   al-Qaida.         The    touchstone   inquiry   in

determining whether an individual is a part of the Taliban or al­


                                        -43­




                             UNCLASSIFIEOflFOR PUBLIC RELEASE
                          UNCLASSIFIEDIIFOR PUBLIC RELEASE




                                     8J!e!ftB!'

Qaida is Uwhether the individual functions or participates within

or under the command structure of theorganization--i.e"                    whether
he receives and executes orders or directions."                 Gherebi, 609 F.

Supp. 2d at 68-69.     The Government has shown that it is more likely

than    not   that   Petitioner    followed        orders    from   the   al-Qaida
leadership when he traveled to Tora Bora and, under the leadership

or command of _            followed orders to join certain units of

soldiers and travel with them until he was wounded by Coalition
bombing.

       For all the reasons discussed herein, the Court                denies the
petition for a writ of habeas corpus.



                                                   /s/
February __ I 2010                                Gladys Kessler
                                                  United States District Judge

Copies to: Attorneys of Record via ECF




                                     -44­




                          UNCLASSIFIEDIIFOR PUBLIC RELEASE
