                                                                                 FILED WITH THE
                                                                                 COURT SECURITY OFFICER

                                                                                 g~~~:~"
                                           -
                           UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF COLUMBIA



ALLA	 ALI BIN ALI AHMED,
et al.,


        Petitioners,

       v.	                                           Civil Action No.        05-1678 (GK)

BARACK	 H. OBAMA, et al.,

       Respondents.


                                 MEMORANDUM OPINION

       Petitioner     AlIa      Ali      Bin   Ali    Ahmed     ("Ali   Ahmed"     or    "the

Petitioner") has been detained since 2002, when he was a teenager,

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, denies

that    he has     ever engaged in such activi ties,                    and has     filed a

petition for a writ of habeas .corpus [Dkt. No.1].

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

.on the. Record [Dkt. Nos. 183 and 189].                 Upon consideration of the

Motions, the Oppositions, extensive oral argument, and the entire



                                         -

                                      -

record herein, Ali Ahmed's habeas corpus petition and Motion are

hereby granted.

I .     BACKGROUND

        A.     Procedural History

        Petitioner filed his habeas corpus petition on August 22, 2005

[Dkt.    No.   1J.    After    filing I     there was      extensive    preliminary

litigation       regarding ·the     Court's       jurisdiction     to     entertain

detainees' petitions,         the applicability of various statutes, and

the appropriate procedures to be used.

        After more than six years of litigation,              the most important

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

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

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

United states, are entitled to bring habeas petitions under Article

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

jurisdiction to hear such petitions.

        The Court did not define what conduct the Government would

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

justifiably detain individuals -- that question was left to the

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

President has the authority to detain these petitioners nor do we

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




                                     -
   -2­
the legality of the detention are

instance by the District Court. ") .
                                     -
       to be resolved in the first

                                              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, id. 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.").

        In an effort to provide the prompt hearings mandated by the

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

consolidate their cases before former Chief JUdge Thomas Hogan, for

purposes of streamlining procedures for,             and management of,         the

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

2008)    [Civ. No.   08-442, Dkt. No. l.].      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



                                     -

                                      - 3­
Dkt. No. 152.                               -

        Much pre-hearing activity has 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 Amended Factual Return on

October 10, 2008, and amended it again on December 11, 2008.                                 The

Petitioner responded with his Traverse on March 12, 2009.                               After a

period of           extensive     discovery,      both parties       fi led         substantial

briefs accompanied by extensive exhibits.

        On January 21,           2009    [Dkt. No. 129], the Court set April 14,

2009, as the date for the "merits hearing" on the Cross-Motions for

Judgment on the Record.                 The hearing was continued to April 16,

2009.     Less than a week before the original date for the hearing,

and     just    before      the    Easter       weekend,   the     Government          informed

Petitioner's          counsel     early in       the    day of     April       9,    2009,   and

informed        the     Court      later    that       afternoon    at        the    Pre-Trial

Conference,          that   it    would    be    turning    over    to        the   Petitioner

approximately 2000 pages of "newly available" material potentially

related to the hearing.                 Over the holiday weekend, the Government

refused        to    tell   Petitioner's         counsel   whether       the        last-minute

submission was either "inculpatory or exculpatory.                       II    Tr. at 15, 19,

21 (Apr. 16, 2009).

        The Government did not make clear at what point in time these



                                           -
   -4­
materials came into its possession.  -
           What is clear is that they

were packaged into a Factual Return and produced them in another

petitioner's case on April 3,          2009.      rd. at 18.        The Government

provided these materials to a second detainee's counsel on April 7,

2009.       rd.   at   19,   27.     Yet     nothing   was   made    available    to

Petitioner's counsel until April 10, 2009.              On April 13, 2009, the

Government submitted a subset of these documents to the Petitioner

and the Court, referring to it as a Supplement to the record (Dkt.

No. 205].

        On April 14, 2009, Petitioner moved to strike this Supplement

[Dkt. No. 207J.        The Government claimed that it had pointed out to

Petitioner's counsel information that related to Petitioner in the

form of a roughly 200-page Supplement that pared down the larger

filing     (the    "needle     (in   the     haystack] ,"    according     to    the

Government), and that logistical challenges related to compiling

factual returns made late production unavoidable in this case.                   Tr.

at 18-22 (Apr. 16, 2009).

        The Court granted the Motion to Strike on the grounds that

there was no way that Petitioner could have carefully examined even

the pared-down Supplement at the last minute while preparing for

this Merits Hearing,         nor could counsel have done any independent

investigation of what was in the materials even if he had been able

to read them all.        The Supplement was not admitted as part of the



                                     -     -5­
record.

II.    STANDARD OF REVIEW
                                       -

       The Government bears the burden of establishing that detention

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

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

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

152-2]; see also Basardh v. Obama, No. 05-889, slip op. at 10 n.12

(D.D.C. Apr. 17, 2009).

       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, 2009 WL 1068955, at

*8, *8 n.4 (D.D.C. Apr. 22, 2009).                The Government asserted, "[a]t

a minimum,             . the ability to detain as enemy combatants those

indi vidual s 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         ~egal   Justification For Detention

at 2 [Dkt. No. 103].

       since     the    change    in   administration,      the   Government    has

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

solely on the AUMF. Id. at *8 n.4.                Further, it no longer uses the

term "enemy combatant."            Its refined position is:

       "[t]he President has the authority to detain persons that
       the President determines planned, authorized, committed,
       or aided the terrorist attacks that occurred on September



                                       -

                                       -6­
         those attacks.
                                              -

         11, 2001, and persons who harbored those responsible for
                          The President also has the authority to
         detain persons who were part of, or sUbstantially
         supported, Taliban or al-Qaida forces or associated
         forces that are engaged in hostilities against the United
         States or its coalition partners, including any person
         who has committed a belligerent act, or has directly
         supported hostilities, in aid of such enemy armed
         forces."

Resp't's Revised Mem. Regarding the. Gov's Detention Authority
Relative to Detainees Held at Guantanamo Bay at 3 [Dkt. No.
174J .

III. ANALYSIS

         A.     Evidentiary Presumptions

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

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

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

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

provided       evidence       in   the   form   of     classified      intelligence          and

interview        reports       that      allegedly         justify     the       Petitioner's

detention.        The reports contain the statements of Petitioner, as

well as statements made by other detainees,                          that the Government

argues        demonstrate      the    Petitioner's          status    as     a    substantial

supporter of the Taliban and/or al-Qaida.

         The Government        requested that a            rebuttable       presumption of

authenticity        be    granted        to   all    the    exhibits       it     intends     to

introduce.        Given its representations that the specific documents

included in its case against Petitioner, as well as the documents



                                              -

                                              -7­
provided   to   Petitioner's

maintained in the
                                 -

                               counsel     in   discovery,

                      ordinary course of business,            the
                                                                  have    all   been

                                                                        Court will

presume, pursuant to Fed. R. Evid. 803(6), that its documents are

authentic. 1    As provided for in the Case Management Order,                   the

Government's exhibits will be granted a rebuttable presumption of

authenticity and will be deemed authentic in the absence of any

rebuttal evidence to the contrary.

     The   Government    has   also       requested    that       a      rebuttable

presumption of accuracy be granted to all the exhibits it intends

to introduce.    This request is denied for several reasons.

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

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

Given the extensive briefing and oral argument presented by counsel

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

submitted at the merits trial,        it is clear that the accuracy of

much of the factual material contained in those exhibits is hotly



          "[T)he 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
Evidence § 221 (6th ed.).   See also 5 Christopher B. Mueller and
Laird C. Kirkpatrick, Federal Evidence § 9.2 (3d ed.) ("rA] court
called upon to resolve a dispute should not (at least in the
absence of special circumstances) assume that a matter offered in
evidence is what it appears on its face to be, or what the offering
party claims it to be, but rather should require that party to
establish by formal proof of some sort the identity or nature of
the matter in question."


                                -
 - 8­
                                     -

contested for a host of different reasons ranging from the fact

that it contains second- and third-hand 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

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



     ;1   While the Supreme Court did suggest in Hamdi that a
rebuttable presumption "in favor of the Government's evidence"
might be permissible, 542 U.S. at 534, it did not mandate it. In
Boumediene, the Court clearly left it to the District Courts to



                                    -

craft appropriate procedures. Boumediene, 128 S.Ct. at 2272.


                                         - 9­
                                    -

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

these cases because of the exigencies of the circumstances.

     Finally, while parties always retain the right to challenge

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

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

" (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.

          B.        Mosaic Theory

     The Government advances six 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, "[t]he probity of any

single piece of evidence should be evaluated based on the evidence

as a whole,   1/   to determine whether, when considered "as a whole   11/




the evidence supporting these allegations comes together to create

a "mosaic" that shows the Petitioner to be justifiably detained.

Gov's Mot. For J. Upon the Administrative R. and Mem. in Supp. at

2 (internal citation omitted)       ("Gov's Mot."); see also Tr. at    46

(Apr. 16, 2009) (describing mosaic theory).      The Government argues,

in this case and others,        that "the evjdence meshes together to



                                    -

                                    -10­
Executive to detain him.
                                           -

demonstrate" that the Petitioner engaged in conduct that allows the

                                         Gov's Mot. at 24.

        The Court understands from the Government's declarations, and

from case law,3 that use of the mosaic 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,     and

certainly cannot govern the Court's ruling.

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

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




           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) .


                                                - 11­
bricks in place.                      -

                         Therefore, if the individual pieces of a mosaic

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

split apart, just as the brick wall will collapse.

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

intelligence reports and summaries in lieu of direct evidence is

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

no   witnesses      to    cross-examine       or    deposition      transcripts     to

consult. 4      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 bears the ultimate

burden    of    showing    by   a    preponderance       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 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.




                                     -

               No witnesses testified at the Merits Hearing.


                                        - 12­
       C.                            -

             The Government's Witnesses

       The Government's chief pieces of evidence are the statements

made by four witnesses, who are or have been detained at Guantanamo

Bay.   The Government is not relying on any incriminating statements

made by the Petitioner.         For the Government to prevail, it must do

so based largely on the strength of evidence provided by the third-

party witnesses.       The Court will first examine the reliability of

each of those four witnesses,              and then turn to the Government's

specific allegations.

             1.    ISN_­

       The   Government   relies     on     the   testimony of

                          ,    an individual whose credibility has been

cast into serious doubt -- and rejected -- by another Judge in this

District.     Gharani v. Bush, Civ. No. 05-429, classified slip op. at




(emphasis     in   original)         The    Court   agrees    with    Judge   Leon's

assessment.        Although    the    Government      tries   to     establish   the

                                statements and distinguish this case from



                                                                     Ali Ahmed.



                                      -
   -13­
                        Pe t. Ex . 56-

Second, his inculpatory testimony is merely that he "overheard"
                                                                                   at 1- 2 .



conversations

Afghanistan.

does    not
                    at

                   Gov. Ex. 26

               identify      who
                                    _FM
                           Guan~anamo




                                   made
                                          Bay



                                           these
                                                  about    Ali   Ahmed's    travels

                                                    40 (Jan. 5, 2005)) at 11.

                                                     statements     and     under
                                                                                           in

                                                                                           He

                                                                                         what

circumstances, or any details of the conversation.                    In addition to

coming   from      an    unreliable     witness,      the    inculpatory         statement

offered by the Government is based upon mUltiple levels of hearsay.



       Finally,

              , has made accusations against a number of detainees at

Guantanamo Bay.          Many of those accusations have been called into

question by the Government.             See, e.g., Factual Return at               ~32   n.4

                                                          that describes

credibility with          interrogators      as    "in question");         but    see id.



                                   In sum,      he has shown himself to be an

unreliable source whose statements have little evidentiary value,

and that assessment is confirmed by the double-hearsay and lack of

detail in his statement, as discussed supra.

              2.    ISN_­

       The Government also offers statements made by

                                                This detainee twice said that he



                                        -
- 14­
                                                                   The first



                                            Petitioner                      and

                                             Ex. 25 at ~2.P.       The second

                                                                   degree   of

reliability because it                                          Gov. Ex. 4 at

4.   In a third interrogation/the witness denied knowing "anyone./I

Pet.	 Ex. 83 IIIIIIIIICITF Report (Sept. 23/ 2003»         at 1. It is very

dif ficul t   to   assess   the   recantation     of     hi s    two   _

                    At best, it appears that the detainee was being

totally uncooperative.      See id. at 1.

      However / and most importantly                     statements / in and

of themselves, are equivocal and lacking in detail or description.




                                  -

                                   -15­
          This type of evidence, riddled as it is with equivocation and

     speculation, is similar to what the Court of Appeals found to be



     2008).




..   statements are not entitled to significant weight .

               3.   ISN.­




                responded that the




                                  -
 -16­
IIIIIIII FM 40
                                   -

saw when he was being smuggled from Zurmat to Banu."

                   (Nov. 8, 2002)) at 3.
                                                             Gov. Ex. 23

                                           Zurmat is in Afghanistan and

Banu is in Pakistan.




                                                             Gov. Ex. 24

                                           There is no explanation of
                                   coming from or how the witness knew
him.       The unnamed author of the intelligence report described

             as having trained at Al Farouq,      and then fleeing to

pakistan when the United states attacked.        rd. at 1.     The author
also characterizes the witness' reliability as




                     Gov. Ex. 3                      at 1-2.
       Peti tioner counters that             statements are unreliable.

He points first to the fact that the witness has been diagnosed by

military medical staff as having a "psychosis."           Pet.   Ex.   101

(Detainee Medical Profile Flowsheet).6       Given the fact that there


       6
          It is very troubling that Petitioner learned of the
witness' medical condition only through the diligent work of his


                                   -

                                   -17­
or treatment of this condition,
                                      -

are no details in these documents, such as duration,                     seriousness,

                                            the Court does not give them a

great deal of weight, although a witness' mental health always has

some relevance to his reliability.

     When,    in October of 2003, the witness                                       of

detainees    captured     at                        he     did   not    identify   the

Petitioner; rather, he claims that he did not know any of the men

                        until he arrived at Guantanamo 'Bay.?                Pet. Ex.

                   CITF Report    (Oct.     4,    2003))    at   1.




     Along with this background of mental health problems (limited

as that information is) and inconsistent identifications, there is

evidence    that _              underwent        torture,    which     may well have

affected     the     accuracy    of   the        information      he    supplied   to




counsel, and not as a result of the Government I s obligation to
provide him exculpatory information about the statements upon which
the Government relies in justifying detention. See CMO at § I.D.l.
Petitioner's counsel obtained this information when
counsel turned over the document to him.           It appears that
           counsel was able to retrieve the medical records only by
resorting to a FOIA request. Tr. at 106 (Apr. 16, 2009).

     7    The Court, inquired as to whether there i s ~
that the Petitioner was included among the detainees ..............
liliiii Tr. at 114 (Apr. 16, 2009). The Government had no evidence
establishing that he was or was not part of the




                                      -

                                      -18­
    interrogators.     1IIIIIIII          -

                                   spent time at Bagram and the Dark Prison,

    and alleges that he has been tortured.             Pet. Ex. 86 (Declaration of

                                  ) at ~~8i 12-14.

          The witness has also recanted his story that another detainee

    took the trip with him from Zurmat to Banu.                 Pet. Ex. 88     IIIIIIII
    CITF Report    (July   25,    2003))    at    2.    He   claims     that    he    made

    inculpatory statements against that detainee                              because he

    feared further torture.       Pet. Ex. 88 at ~14.        The Government claims

    that the "residual fear" of torture had been overcome by June of

    2004, when he identified Petitioner                                   Gov. Ex. 3;

    Tr. at 152   (Apr. 16, 2009), since he had already, back                  inlllllllll
IIIIIIIIIbeen unafraid to tell his interrogators that he had given
    them bad information in the past, Pet. Ex. 87.

          Based on two of these interrogations

_          --   one where he was honest with authorities about being

    uncooperative and one where he again identified the Petitioner -­

    the   Government    asks     the   Court      to   assume    that    his     alleged

    mistreatment at several detention centers was effectively erased

    from his memory.       The Government has presented no evidence to

    dispute the allegations of torture at Bagram or the Dark Prison.

    See, e. g., Tim Golden, In D.. S. Report, Brutal Details of 2 Afghan

    Inmates'       Deaths,         N.Y.        Times,        May        20,          2005,

    http://www.nytimes.com/200S!OS!20/international/asia/



                                        -
 -19­
    20abuse.html#.

IIIIIIII claimed
                                   -

                     Nor has the Government presented any

                      to be unaffected by past mistreatment.
                                                                eV~dence   that

                                                                   Therefore,

    the Court cannot infer that past instances of torture did not

    impact the accuracy of later statements.

               4.    ISN.­
        The Government alleges that a statement made

                                            demonstrates       that Ali Ahmed

    received military training.     _           identified _            from a

photograph shown to him at Bagram.          The intelligence report says

that Al-Qahtani stated, "191       -liliiii received   military training in

Afghanistan near Kabul."        Gov. Ex. 1 (IIIIIIIISIR (June 17, 2002))

at 9.     The reliability of this identification is discussed in depth

infra, at Part III.D.2.

        D.     Government Allegations

        The Government rests its case on the totality of evidence

encompassing six maj or disputed factual           issues:     the Petitioner

fought       in Afghanistan,   trained in Afghanistan,       used the    kunya

_              traveled   in Afghanistan with    al-Qaida      and/or Taliban

members, stayed at                 with al-Qaida and/or Taliban members,




        For his part,      Petitioner claims to have gone to Pakistan

before the attacks on September 11 (and the Government no longer



                                   -
-20­
challenges that particular fact)

school at which to study the Koran.
                                     -
       in order to find a

                                                   He denies
                                                                     religious

                                                                ever going to

Afghanistan, training at an AI-Qaida camp, fighting against anyone,

or being a member of a terrorist group.             Traverse at 1-2, 25-27;

Gov. Ex.   8   (ISN 692 FM-40       (July 30, 2003))   at 2    (reporting that

Petitioner denied ever traveling to Afghanistan); Tr. at 38 (Apr.

17, 2009).     Ali Ahmed admits that he was staying at                           a

guesthouse     for   Yemenis   in    Faisalabad,   Pakistan,     where   he   was

arrested                             in March of 2002.        Gov. Ex. 43     (ISN




see also Pet. Ex. 11                                           at 3 ( "NOTE: in

the files of those captured with the source, he is mentioned but

not well-known by any of the others with him at the

     The Government's argument challenges a             number of facts in

Petitioner's story, attempts to demonstrate that his explanation




          For these allegations, the Court
          that the Government makes about the
                                        Such a finding is not a
substantive ruling on the alleged activities of these detainees,
all or some of whom have habeas petitions pending in this District
Court.


                                     -
-21­
                                             -
            and that Petitioner's lies

about certain facts cast doubt on his entire explanation of his

activities and whereabouts.

               1.        Participation in Battle

        The most serious charge leveled by the Government is that

Petitioner joined al-Qaida and/or the Taliban in battle against the

United States and/or coalition forces.                      If proven, this fact alone

would    almost          certainly      justify      Ali    Ahmed's      detention.        The

Government does not base the charge on a hearsay confession made by

Petitioner;         in    fact,    he    denies      involvement         in   any   terrorist

activity whatsoever.              Traverse at 25-27.              Nor does the Government

base this charge on direct allegations made by third parties.                              The

Government admits it has presented no evidence stating that Ali

Ahmed    has    participated            in   battle.       Pet.    Ex.   6    (Requests    for

Admission) at        ~41;   Resp't's Factual Response Statement at                    ~~28-29,

31 [Dkt. No. 198]; Tr. at 22 (Apr. 17, 2009).

       Rather, the Government asks that Ali Ahmed's participation in

battle be inferred from a web of statements made by witnesses who

were    commenting          on    Petitioner's       non-military         activity.       The

Government      urges       the    court     to   adopt      its    theory     that   because

witnesses it offers as credible claim that Petitioner had military

training, went to Afghanistan, and then traveled with and stayed in

the company of al-Qaida fighters, and because Ali Ahmed's denial of



                                             -

                                              -22­
such behavior is not credible,

Petitioner fought with al-Qaida.
                                         -
  it is more likely than not that

                                                  Tr. at 15-16 (Apr. 17, 2009).

         The Government's position on this charge rests on its mosaic

theory. The theory cannot support the charge.

      First, it is extremely significant that there is absolutely no

"direct"     evidence,     at     whatever    hearsay     level,     of    Ali   Ahmed's

participation in battle.              The Government has not pointed to any

statement in the record that directly accuses the Petitioner of

fighting.     Tr. at 22 (Apr. 17, 2009).             This weighs heavily with the

Court.

      Second, assuming for the moment that the patchwork of evidence

woven together by the Government is suggestive of the fact that Ali

Ahmed's version of the events is not accurate and that he did

travel with al-Qaida and/or Taliban fighters,                   it still falls far

short of establishing the more serious charge that he took up arms

in support of al-Qaida and/or the Taliban.                 Given the gaps in the

evidence,    the Government must do more than rely on evidence of

associations       to   support    the    inference     that   Ali     Ahmed actually

fought in battle.

      Even if the evidence is to be believed that Petitioner's story

is   false   and    that   he   was      in Afghanistan,       there      simply is nb

affirmative proof that he took up arms.                  The Court will not make

the leap that the Government does,                 that simply because he was in



                                         -
-23­
Afghanistan, he was there to fight.

     Similarly,
                                   -

                     assuming that the Government's evidence of Ali

Ahmed's time in Afghanistan is reliable,              it does not represent

strong enough evidence from which to infer that he participated in

the fighting.      Although                                           Petitioner

                    would contradict Petitioner's explanation of his

whereabouts at the relevant time,          it is not per se evidence of

wrongdoing.        Likewise,

                                                      several steps removed

from proof that he actually fought

     Even if one assumes, arguendo, that Ali Ahmed was indeed in
               9
Afghanistan,       Petitioner   argues   that   one    reason    he   may   have

traveled with certain people is because of the chaos in the area as

thousands attempted to flee a war-torn country.                 There is ample

evidence in the record that Afghanistan was in chaos during this

period, and that legions of people were trying to cross the border

into Pakistan in order to flee the violence.           Pet. Ex. 82

                           at 2   (describing thousands of refugees in

Khowst, Afghanistan) ; Pet. Ex. 105                                           at

~~A.4-5.   Given this reality,      it may indeed be the case that a


~               Government   often  accuses   the   Petitioner of
lIIIIIIIIIIIIIand therepy conceding the accuracy of certain facts,
when all counsel is doing is arguing in the alternative.       This



                                  -

legitimate, oft-used strategy does not concede or waive any issues.


                                    -24­
                                     -

young Arab man sought the company of those individuals with whom he

shared a common language, religion, and culture, and that he may

have gone on to stay with these same men upon arriving back a ~

I11III.    The bottom line is that even if Ali Ahmed lied about being

in Afghanistan, that fact is not a sufficient basis for leaping to

the conclusion that he fought with al-Qaida and/or the Taliban.

             2.     Training

        There is one direct piece of evidence in the record, allegedly

"corroborated" by other witness'            statements,

Ali Ahmed received military training in Afghanistan.

the source of the statement, which is reported as,
                                                                 _s
                                                          that indicates that



                                                                  "191 - _

received military training in Afghanistan near Kabul."               Gov. Ex. 1

at 9.     The Government argues that this evidence,              in combination

with other witnesses'          statements    that place    the   Petitioner in

Afghanistan and in the company of al-Qaida fighters, demonstrates

that Ali Ahmed did indeed receive military training.

        There are   significant questions about           the reliability and

accuracy                           statement.       The    nine-word    hearsay

allegation made byllllllllllllboes not describe the training with

any specificity.       For example,    there are no details about which

camp the training took place at, how long that training lasted, or

what the training consisted of.         The interview with                   was

conducted in English and Arabic without an interpreter.                rd. at 1.



                                    - -25­
                                       -

     A related infirmity of the statement is that             it does not

purport to be based on                        direct observations.   It is

simply a declarative statement that IIIIIIIItrained at some point,

without any information as to h01llllllllllllrnew that.           Even more

troubling is     the    fact   that,   in later interrogations,   when.

IIIIIIII was   asked to list the names of those he trained with, he

did not include the Petitioner.         Pet. Ex. 69          MFR (Apr. 25,

2003)) at 1-2.     Despite these glaring weaknesses

brief nine-word statement, the Government asks the Court to infer

                       nd the Petitioner trained at the same camp.     Tr.

at 66-67 (Apr. 16, 2009).




                                                              Whether true




     10
                                   the Court
                                       that
                                Id. at l .    Interestingly, the
Government never brought this comment to the Court's attention.


                                       -

                                       -26­
or not, it is pure speculation. l l

     The larger issue is that
                                   -
                initial identification

suffers from serious reliability problems.           First and foremost, the

detainee     made   the   inculpatory    statement    at   Bagram   Prison   in

Afghanistan,    about     which there    have been widespread,       credible

reports of torture and detainee abuse.         See, e.g., Golden, Bagram,

supra, at 19; Pet. Ex. 86 at      ~12.




     11
                       was  later interrogated on many other
occasions.  He never again mentioned Ali Ahmed, just as no other
detainee or other individual whose statements appear in the record
accused the Petitioner of training.

     12      The same report asserts that _   has never
[actually]     been tortured since being t~ustody in



                                  -

Pakistan."     Pet. Ex. 68 at 1.


                                    -27­
 of                       at 2-3.
                                     -

 technique," carries less weight in this case.           Gov, Ex. 14 (Decl.



         In addition,    it does not follow,     as the Government argues,

 that                   recanting with respect to another detainee was

 the extent of all his false allegations; simply because he admitted

 that he falsely implicated some people here does not mean that he

 was truthful at all other times.            Second,                      s   sole

 identification of the Petitioner named him as "191               -liliiii'   Gov.

 Ex.    1 at 9.   Petitioner denies that this is his actual name, or

 that     he   ever   used   the    kunya,    _"             He     argues    that

 identifications based on this name are problematic becausellllllis

 a fairly common nickname in Arab countries, somewhat equivalent to

 to the use of "Joe" or "Buddy" in this country.         Tr. at 83-84 (Apr.

 16, 2009); see also Pet. Ex. 55         (Classified Tr. of Feb. 26, 2009

 Status Conference) at 23      (Government represented that          liliiii is a
 very common name. If you run the            name~hrOUgh            [a search of

 the Government's records] you will get thousands, potentially tens

 of thousands of documents or hits.").

        The Government admits that there is confusion over who "191 ­

liliiii   refers to in this context.          Tr. at 14-15   (Apr. 17, 2009).

 The number 191 refers to the detainee number assigned at Bagram.

 The Government       "preliminarily" admitted that two detainees were

 given this same number -- both Ali Ahmed and



                                    -
-28­
                             Id.    -

                                    at   14;    see   Pet.

Memorandum for Commander (Nov. 5, 2007)) at 10 n.51. 13
                                                               Ex.   120    (IBN.

                                                                           To further

confuse matters,      1IIIIIIII actually       admits to having had military

training.       Pet. Ex. 120 at 10 n.51.       On this record, therefore, it

is completely unclear to whom the words                 "191   -liliiii     refer

Petitioner,                 or someone else.          The detainee number, of

course,   is central to the allegation of training as well as the

rest of the Government's case.

       Third,    the Government argues that the fact that

made   the   allegation    that _         received       training     in the     same

interrogation session where he made inculpatory statements about

himself is indicative of his honesty and reliability.                      The Court

finds this fact to be of limited significance.                 Any effort to peer

into the mind of a detainee at Bagram,                who admitted to fearing

torture at a facility known to engage in such abusive treatment,

simply does       not serve to rehabilitate a           witness      whose initial

credibility must be regarded as doubtful.

       Finally,                 reliability has been cast into doubt by

                                                   At     times,



     13    This admission was made on the second day of trial. On
the first day, the Government insisted that evidence showing that
1IIIIIIII was assigned number 191 at Bagram was the product of a
"typographical error" in the intelligence report. Tr. at 144 (Apr ..
16, 2009).


                                    -

                                     -29­
                                        -

tllllMemorandum for Commander (June 20,2008)) at 4.
                                                                   Pet. Ex. 114 (ISN

                                                                        By the time of

 his                             at Guantanamo Bay, long after he made the

 only     allegation    that    he   would       make    against      the   Petitioner,

 intelligence reports indicated that

                    Pet. Ex. 69

         These serious concerns                                 credibility are not

 compensated for by other pieces of the mosaic.



                        That is simply incorrect.               No statement of any

 other    witness     corroborates      that     Petitioner      received      military

 training    in    Afghanistan.         At   most,       the   statements     of   other

witnesses suggest that Petitioner was in Afghanistan at some point.

They do not address the training allegation.

        The Government argues that the surrounding details provided by

                                                    make the training allegation

more     likely.    However,     it matters little that all                 these other

witnesses     place    the     Petitioner      in    a   geographical       area   where

military training was a logistical possibility.                    Without more, the

Court     simply    cannot     credit    the     allegation      of    training    as   a

 justifiable basis for further detention.                  See Gharani, at 7-8.

             3.     Traveling

        A third major allegation, and important tile in the mosaic, is



                                     -
  - 30­
                                      -

that Ali Ahmed traveled around Afghanistan

                                      and did so in the company of a band of

                                 the battlefield.        This charge is related

to the fact that the Petitioner was

                and placed in Afghanistan during a portion of time when

he claims he was in Faisalabad.              1I11III the      Government alleges,

fled Afhganistan                                                       crossed into

Pakistan,                                                             where   he   was

arrested                                                        March of 2002.

        The Petitioner denies these charges, continues to assert that

he remained at                   ,   and never entered Afghanistan except

when he was detained at Bagram.              Gov. Ex. 42      (IBN 692 FM 40 (Dec.

12,     2003)    at   Ii   Traverse     at

Government's evidence that he was identified as
                                               26-29;   12.

                                                              .onHe



that the statements were made by unreliable witnesses, some of whom
                                                                       attacks     the

                                                                          the ground



had undergone torture in the past or feared the use of torture in

the future.       Traverse at 34-51.           Demonstrating that,       he argues,

reveals that the allegations of his travel to Afghanistan are not

true.

        Turning first to the point a b o u t _ t h e Government sought

to buttress its mosaic theory by presenting evidence thatlllllllll

                                 petitioner. _ "                      This name,    it

alleges,    is his    "kunya,"   a nickname of sorts.             The practice of



                                      ---31­
of
                                  -

taking on a kunya is common in Arab countries.

                                           "Names,
                                                            Gov. Ex. 7 (Decl.

                                                     Aliases,      Kunyas    and

Varients") at 1-2.      It is also a common practice among terrorists,

as it serves as a method for concealing their true identities from

enemy forces.     Id. at 6.

     Although the Government agreed that the mere use of a kunya is

not, in and of itself, sufficient evidence to justify detention,

Tr. at 128 (Apr. 16, 2009), it argues that use of the kunyalllllllll

is central to this case because it casts significant doubt on Ali

Ahmed's account of his activities, and also demonstrates that each

of the Government's wi tnesses provides credible              evidence.      The

latter point is based on the fact           that

                                                        Petitioner   1IIIIIIII
                                            See    supra,    at   Part    III.C.

Petitioner denied to an interrogator ever using the kunya.                  Gov.

Ex. 8 at 2.     The Government submits that the numerous independent

identifications    of   the   Petitioner as _          cannot     simply be a

coincidence, and that it must be true that Ali Ahmed in fact does

go by the namellllllll Gov's Mot. at 24, 28.

     The evidence the Government relies on to support its mosaic

theory is problematic in several key ways.             First,

identification has been cast in significant question,              due to the

fact that it was elicited at Bagram amidst actual torture or fear



                                  -
-32­
 of it.

 individual who he identified at Bagram.
                                           -

                 There are also serious questions about

                                                             _
                                                                       the particular

                                                                      appears to be a

 fairly common kunya, Pet. Ex. 55 at 23, and the obvious confusion

 over      the   record-keeping at         Bagram does       not    make

 identification of this Petitioner                 a~            as opposed   tollllllll
                                      a reliable one.




                                                                  See supra, a tPart .

 III. C.    There is no way to know whether the Government's informants

 were   staring at                          the same person,         or if    they were

 looking at           completely      different    people.       Without   more,     their

 identifications cannot carry the weight that the Government places

on them.

        There are also problems with the relationship of the kunya

evidence         to    the    overall    theory.       Again,      assuming   that     the

Government's information is true, the immediate implications of it

are not as damaging as the Government argues.                         If Ali Ahmed is

liliiii it       does suggest that he lied about at least some of his

story.       Also,      it suggests that he entered Afghanistan at some

point, and was later identified to have received military training.

As demonstrated              above,   however,    these   allegations      do not bear

independent scrutiny because of the gaps in the record, and thus



                                           -

                                            -33­
cannot be upheld in their own right.   -
            Accordingly,

for establishing Ali Ahmed's identity aslllllllcannot sustain the
                                                                      the predicate



Government's theory.

             4.

      Evidence was offered to establish that Ali Ahmed's undisputed

stay at a guesthouse in Faisalabad i called                           , supports, at

least in part, the conclusion that he is a substantial supporter of

al-Qaida and/or the Taliban, as well as a trainee and fighter for

one or both of those groups.            The validity of this argument rests

in   large   part     on    a     guilt-by-association       theory:     i.e.,     the

Government    argues       that   because    others    at   the   guesthouse      were

involved with terrorist groups, and the Petitioner stayed there for

a substantial period of time in their company, without having to

pay for food or rent, he too must have been a terrorist.                  Combining

these facts with the allegations that he trained and traveled with

terrorist    forces    in       Afghanistan,   the    Government      believes     the

conclusion    is    inescapable       that   Petitioner     is    a   member    and/or

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

     The Government is not contending that staying at a guesthouse

is per se evidence of terrorist activity in this case.                         Rather,

such evidence provides "one more piece of the mosaic," which, when

viewed as a whole,         depicts Ali Ahmed as a member of enemy forces

whose cover story simply has too many holes in it to be credited.



                                       -

                                        -34­
IIIIIIII
        The   Government    points     -

                                       out

              said the Petitioner traveled with
                                                 that _                 the   fighters    who



                                                                                      -- also

stayed at                       Gov. Ex.         5

Gov. Ex. 34                           (June 19, 2002))              Gov. Ex. 23 at 3-4.

        .men
                                                               i


These             admi tted to fighting on behalf of enemy forces, along

with another guest staying at the house,

_         Gov. Ex. 5 at 1 (reporting _                       admission of fighting)         i

Gov. Ex.      34 at 2   (reporting    liliiii         admission)    i    Gov. Ex. 30     II1II
               (June 24, 2003)) at 1 (reporting                                admission) .




information with all           the other evidence             it    has    presented,     the

Government argues that the logical inference is that Ali Ahmed was

also involved with these terrorist groups.                    Tr. at 80-82 (Apr. 17,

2009) .

        The evidence, as discussed above, is problematic.                       1IIIIIIII
who attested to horrendous incidents of torture, at one time gave

inculpatory statements about Petitioner, at another time recanted

those     statements,    and    yet   at     a       third   time       re-affirmed    them.

Further,                       identification of Petitioner is plagued by



                                      -
   -35­
equivocal    $tatement that
                                     -

the doubts discussed supra, at Part III.D.2.               Finally

                                                             Petitioner      liliiii
                                    simply is not the material of which a

reliable hearsay identification is made.             Once those pieces of the

mosaic have    been      removed because      of    their   unreliability,        the

Government is left with what is essentially a charge of guilt by

association.

     The    problem   with   this    charge    is   that    there    is   no    solid

evidence    that   Ali    Ahmed    engaged    in,   or    planned,     any     future

wrongdoing while                                                               There

is no evidence that he was arrested with any weapons or other

terrorist paraphernalia;          nothing of this kind was           found in his

locker.    Pet. Ex. 6 at "18-20.         Though others at the House,            II1II
                      , admitted their affiliation with al-Qaida, they

did not implicate Ali Ahmed in any terrorist activity.                 Pet. Ex. 36

                                     at 3; Pet. Ex. 45

                                                                     Ali Ahmed was

                                                                 There is ample

evidence in the record to indicate that guesthouses are common

features of the region, serving as way stations for impoverished

young men spending time away from home. 14               See, e.g.,    Pet. Ex. 7


     14   On the other hand,      there is also evidence that



                                    -

guesthouses served essentially as barracks for terrorist fighters


                                      - 36­
    (Decl. of                           -

                                       (Nov. 30, 2008)) at     ~5.

         As noted, no weapons were found or seized during the arrest of

    Petitioner.       Pet.    Ex.    6 at   ~~18-20.     It   is   likely,   based on

evidence in the record,              that at least a majority of the
                                             Ji
                                                                             IIIIIIII
_            guests were indeed students,IS living at a guesthouse that

was located close to a university.                     Pet. 's Mem.   Of Points and

Authorities in Support of Mot. For J. at 30-31 n.21-22; but see Tr.

at 74        (Apr.   16.,    2009)   (demonstrating that Government contests

remaining individuals were students).                   Further,     even though the

police arrested all of the                              men staying at the House,

they appear to have ignored             II1II     the man who operated the House.

If the                       was such a hotbed of terrorist activity, it is

incomprehensible that its operator was not, at a minimum, detained

for questioning.             The evidence does not demonstrate,           even as to

associational guilt, that Ali Ahmed's stay at                                provides

justification for his detention.



who had retreated from the front. Gov Mot. for J. on Record., Ex.
1 (Decl. of              , "Background Declaration - Guesthouses")
at 1.
        ISNeither party ca~identif exact num.ber of guests at
                                      the
            but parties agreed         is a reasonable number. Tr.
at 85 (Apr. 17, 2009).           individuals arrested there were
detained at Guantanamo Bay and subsequently released;           the
Government represented that this was         likely part   of the
Administrative Review Board process, and not because the Government
determined that the two were not lawfully subject to detention.
Tr. at 108 (Apr. 17, 2008).



                                            -

                                            -37­
                                   -

     Nor is the Government's case strengthened by the charge that

                                                                                       a

man whom the Government has, at times, alleged is a "sworn member

of al-Qaida," training-camp operator, travel facilitator', and major

figure in the planning of 1999 attack against the United States.

Factual Return at   ~28    n.2.; but see Tr. at 78-79                (Apr. 17, 2009)

(explaining that                       disputes charge that he is sworn

member of al-Qaida) .


     The    Government    presents    strands       of     evidence      to   tie   1111

                     It points out that one detainee claims that he

was the director of a guesthouse in Peshawar, as well as a "Yemeni"

guesthouse in Faisalabad.        Gov. Ex. 27 (ISN 707 FD 302 (Sept.                 til
2002)) at 1.   The reliability of this statement is established via

a weak inference that the witness knew

based on the    witness'    visit· to        a   different      guesthouse O f .

               Tr. at 77-78 (Apr. 17, 2009).               It also points to the



stayed at                 at some point,          Gov.    Ex.   44   _          FM-40




     The Government      seeks   to   weave       these    disparate strands of

evidence so as to suggest that

                 and thereby strengthen its claims of Petitioner's



                                  -
  -38­
associational guilt.
                              ...

                       The fabric -- or mosaic -- simply will not

hold; the connections are too weak and attenuated.

     As a final attempt at providing more tiles for its   l1li corner
of the mosaic, the Government submitted for the first time on the

initial day of the




                                                  Petitioner made an


oral motion to strike the evidence.   ~he   Court denied the motion,


but made it clear to parties that this decision would be subject to





                              ---
                               -39­
                                         -

reconsideration after it had had an opportunity to hear all the

evidence.

       The Court has elected to reconsider, and concludes that the

evidence shall not be admitted.            Having heard all of the testimony

now,   and in particular the testimony about the document and the

context of its retrieval,           the Court strikes the document on the

grounds that          its prejudicial value far outweighs any probative

value. 11   See Fed. R. Evid. 403.         (It should be noted that there is

absolutely       no    evidence   that   the     Petitioner   either   wrote   or

understood Russian, the language in which the document was written.

Cf. Gov. Ex. 43 at 1 (recounting Petitioner's statement that he had

to   communicate        with   Russian   guest                     using   "hand

signals") . )

            5•



       An additional tile in the Government's mosaic is the evidence




       11
                          nm nt had already presented evidence purp~

                                   that   _men
                               was a haven for terrorist activity, . . . . . .
                                                with admitted connections



                                         -

                          t ere.


                                         -40­
                             ...





justification for detention; rather, according to the Government,

it lends credence to other evidence that casts Ali Ahmed as more

than an innocent student captured in the wrong place at the wrong

time.




                            ...

                              -41­
-





-

-42­
                                                                        just the

four corners of the document, there is no indication that               1IIIIIIII
                                                  cannot be credited as a

piece of evidence that contributes in any way to a finding that it

is more likely than not that Ali Ahmed was legally detained under

the AUMF.

IV.   CONCLUSION

      For all   the foregoing reasons,        and for the reasons stated

during the Hearing held on April 16-17, 2009, the Court grants the

petition for a writ of habeas corpus.         The Government has failed to

prove, for all the reasons stated above, by a preponderance of the

evidence,   that   AlIa     Ali   Bin   Ali   Ahmed     was     "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."

      As to the claim of participating in fighting,             the Government

produced virtually     no   credible    evidence i    as   to   the     claim of

receiving   military   training,    the    conclusory      nine-word     hearsay

statement by                does not show that it is more likely than



                                  -
-43­
not     that   he   received        -

                               such training;

traveled around Afghanistan in 2001 and 2002 in
                                                    as   to   the    claim   that

                                                                    the company of
                                                                                    he



terrorist fighters fleeing the battlefield, even if the Government

had proven this charge,         which it did not,        such a fact would not

constitute substantial support; as to the evidence that he stayed

at                  , the Government has certainly proven that he stayed

there, but has utterly failed to present evidence that he was a

sUbstantial supporter of al-Qaida and/or the Taliban while he did

stay there; as to the Government's position about the significance

of locating Petitioner's alleged kunya on a list,                   the Court finds

this argument without any merit whatsoever.

        When taken all      together as     facts    which comprise a         mosaic

theory,    the evidence does not satisfy the Government's burden of

proof: i.e., the Government's picture does not establish that it is

more likely than not that Petitioner fought for the Taliban, that

he received military training, that he traveled in Afghanistan with

terrorists fleeing from the scene of war,                that his stay at       l1li
II1II   demonstrated he was a supporter of al-Qaida,




      Mindful of the limitations on the scope of the remedy in this

situation, see Kiyemba v. Obama, 555 F.3d at 1024 (D.C. Cir. 2009),

the Court further orders the Government to take all necessary and



                                    -

                                     -44­
                             -

appropriate diplomatic steps to facilitate Petitioner's release

forthwith, and to report back to the Court no later than June

as to the status of Petitioner's release.


                                         lsi
May _, 2009	                         Gladys Kessler
                                     United States District Judge


Copies to: Attorneys of Record via ECF




                            -
-45­
