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                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA
                                                                     F'LEDWfTH H
                                                                     COURTSECURJ~r~~CER
                                                                    eso:
MOH.AMMBD AL-ADAHI, et al.,                                         DATE: ==1bImn:~o


     Petitioners,

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

BARACK H. OBAMA, et al.,

     RespondentlJ.


                           MEMORANDUM OPINION

     Petitioner Suleiman Awadh Bin Agil Al-Nahdi                   ("Al-Nahdi" 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


          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 Gove"rnment 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-­
Fahmi Salem Al-Assani and Zahir Omar Khamis Bin Hamdoun--have filed




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

on the Record          [Dkt.   Nos.    494 and 499].         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-Nahdi'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 pring habeas petitions under Article



Motions for Judgment on the Record. On October 7, 2009, Hamdoun's
petition was stayed for 120 days [Dkt. No. 476).      On January 7,
2010, a Merits Hearing was held on Al-Assani's petition and Motion,
which are addressed in a separate opinion.

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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.          ~      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, 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 in


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

hundred petitions filed by detainees.                See Order (July 1,          2008)

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

extensive briefing from Petitioners' counsel and the Government,

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

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

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

Dkt. No. 283.

        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 Factual Return for AI­

Nahdi 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


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(December 22, 2009).         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-ABsan!' s case was presented

to the Court on January 7, 2010.

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         §   ILA (Feb. 12, 2009)         [Dkt. No.

283-2]; see also AI-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, U[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."                    Reap'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


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is:

      [t]he President has the authority to detain persons that
      the President determines planned, authorized, committed,
      or aided the terrorist attacks that occurred on September
      11, 2001, and persons who harbored those responsible for
      those attacks. The President also has the authority to
      detain persons who were part of, or substantially
      supported, Taliban or al-Qaida forces or associated
      forces that are engaged in hostilities against the United
      States or its coalition partners, including any person
      who has committed a belligerent act, or has directly
      supported hostilities, in aid of such enemy armed forces.

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

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




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supporters of those groups."2         ~       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. IS, 2009)

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

great regard for the scholarship and analysis contained in both
decisions,             Judge Wal ton'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 v. Qbama, 590 F.3d at 870-75. 3                The Court of Appeals


     2    The Court agrees with Judge Bates' comment that the
determination of who was a npart of" 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).

     3    To the extent that Gherebi or Hamlily are inconsistent
with the analysis set forth in AI-Bihan1, the decision of the Court
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rejected 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."                              rd. 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."       IQ......   at     872   (internal   quotation

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

lmembership 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."                rd.     Finally,    the    Court

concluded      that    "both    prongs      are        valid       criteria    that     are

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


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       III. ANALYSIS




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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.     See 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


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to the security of the United States").                See also Al-Sihani, 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 taking up arms once again."                Hamdi, 542 U.S. at 518.




                However, the Hamdi Court made clear that, under

AUMF, the President possesses "[t]he authority to detain for the

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

of -war principles."     ~ 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.       ~    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) i but s e e ~ , _

                                        (concluding that "the AUMF does not

authorize     the    detention    of    individuals      beyond   that   which   is

necessary to prevent those individuals from rejoining the battle").




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     In   ~hort,   the question of whether Petitioner poses a threat is

not relevant under the AUMF to this Court's review of his continued

detention.




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     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      fonn   of    classified    intelligence         and

interview     reports     that      it    believes      justify     the       Petitioner's

detention.     The reports contain the statements of Petitioner, as

well as statements made by other detainees,                       that the Government

argues     demonstrate     the        Petitioner's       status     as    a     member    or

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

     The Government requested that a                    rebuttable presumption of


            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
6-7.    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
" [t] 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.

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      authenticity         be    granted    to    all      the    exhibits       it     intends    to

      introduce. s      Petitioner obj ected 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 its Order

      granting       Petitioner AI-Adahi'8          petition           for   a   writ    of   habeas

      corpus,        the     Court    ruled      that,      "[g] 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-Nahdi'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 Evidence § 221 (6th ed.).

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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.

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. 6

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

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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 Al-Bihani v. Obama, 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

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

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

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

the manner described above. Id.

        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, "[t]he

probity of any single piece of evidence should be evaluated based

6n 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


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

       Supp. at 6 (internal citation omitted)             [Dkt. No. 499].      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.l; 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, 1 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


            1     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
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     must be acknowledged that the mosaic theory is only as persuasive

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

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

     individual bricks which support it and the cement that keeps the

     bricks in place.          Therefore, if the individual pieces of a mosaic

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

     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.                Despite the fact that Petitioner

     testified via video-conference from Guantanamo Bay, and was cross-

     examined by the Government,B 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



          B    Petitioner's testimony was closed to the pUblic.
     However,   the Government was ordered to         conduct expedited
     classification reviews of the testimony transcript 60 that it could
     be released on the public docket. Order (December 16, 2009) [Dkt.
     No. 514). The Governmen~ complied, and the transcripts were made
     available to the public on January 29, 2010 [Dkt. No~ 543]. The
     Government also was ordered to videotape the testimony and maintain
     a redacted copy of the tape.

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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 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.

       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 for its own sake and/or to
help the Palestinian cause, and would not have gone if he had known
he was being recruited to join al-Qaida.               Pet.'s Mot. for J. on the
Record at 4 [Dkt. No. 494]         ( .. Pet. ' s Mot.") .

       This argument raises the important question of what level of
knowledge or intent is required under the relevant caselaw.                         Given

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how central this question is to Petitioner's defense,                         the Court

will address        the    legal      standard first,3        before   evaluating the

evidence offered by the Government to prove its allegations.

       Under the standard adopted in this Circuit, the President may

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. 2d

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 1-2,10.        Instead,    the knowledge or

intent that must be shown relates                     to Petitioner's decision to



          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, i f any, to which AI-Bihani
addressed   them.    Order    (Jan.  6,  2010)   [Dkt.  No.   531].
Unfortunately, the Court of Appeals had no occasion in the Al­
Bihani opinion to address the issues of knowledge and intent.

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become a part of or to substantially support al-Qaida and/or the

Taliban.       Thus, even a recently recruited, low-ranking Taliban 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 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.                         See 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


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                                         SE8M'f

of al-Qaida and/or the Taliban.

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

context, "[e] 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

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.,      ~,      2010 WL 58965, at *11.

       E.   Government Allegations

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

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

arguments    and evidence           about    the   existence        and   extent    of   (1)

Petitioner's decision to travel to Afghanistan with the aid of al­

Qaida facilitators,           and about the trip itself;              (2)    Petitioner's

stay at al-Qaida guesthouses;               (3) Petitioner's knowing attendance

at al-Qaida's Al Farouq training camp and SUbsequent travel to Tora

Bora   pursuant     to   a     military order         from    al-Qaida's       Al   Farouq


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leadership; (4) Petitioner's guarding of rear-echelon positions at

Tora	 Bora while under al-Qaida's command, and subsequent injury by

Coalition bombs while retreating with al-Qaida forces;          and   (5)

Petitioner's participation in hostilities against the United states

or its allies. 10

           1.	   Decision to Travel to Afghanistan with the Aid of
                 al-Oaida Facilitators and Travel to Afghanistan

                 a.   Decision to Travel to Afghanistan

     While the parties are mainly in agreement about how Petitioner

traveled to Afghanistan, as discussed further below, they dispute

why he chose to make the trip.       Al-Nahdi stated in an interrogation

that	 he decided to travel to Afghanistan to receive training "as

outlined in a fatwa he heard issued by Sheik Hammoud al-Oqalah."

JE 3	 at 2;   JE 1 at 3. 11    The Government argues that,    given the


      10    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 Issues in Dispute ,. 5 [Dkt. No.
516J.    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-Qaida 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.
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.

     11   Parties submitted two volumes of Joint Exhibits, which
comprise the vast maj ori ty of evidence presented during trial.
Unless otherwise indicated, citations to "JE" refer to the universe

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timing of Petitioner's decision, the fatwa he heard was more likely
than not a fatwa known to have been issued by al-Oqalah which

called on Muslim men to fight alongside the Taliban.                  JE 35 at 3.

That fatwa ·is alleged to have been circulating in Saudi Arabia,

where Petitioner undisputedly spent two months in 2001 in order to
see the   "holy places".       Gov's Stmt. of Material Facts Not in

Dispute ("Gov's Stmt. of Undisputed Facts")             ~   5.
     Petitioner responds that the Government has offered no direct

evidence that this fatwa was the one Al-Nahdi heard, rather than

one calling simply for military training.            He notes that he stated

in an interrogation that the fatwa called on him to train.                 JE 2 at
3. However, at the Merits Hearing the Government represented that

there was no evidence--and indeed there is no evidence in the

record--that a fatwa directing its listeners to merely train, and

not to both train and fight , was ever issued.                   Thus , given that

Petitioner named al-Oqalah as the author of the fatwa, and that a
fatwa from al-Oqalah directing listeners to fight with the Taliban
regime was circulating in Saudi Arabia at the time Petitioner
concedes he was in that country and heard a fatwa, the Court finds
that it is more likely than not that the fatwa heard by Petitioner
called on Muslims to fight, and not just to train.

     Petitioner   also     relies    on   other,      somewhat      contradictory


of Joint Exhibits.
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statements in the record to show that his motivation was simply to

train.       Al-Nahdi     stated      in    interrogations          that   he   went   to

Afghanistan to receive basic training to                  ~help     with the Palestine

issue" because, as explained in the fatwa, it was "the duty of all

Muslims to receive basic military training."                   JE 1 at 3; JE 2 at 3;

see also JE 39.           However,      at his Administrative Review Board

(~ARB" }   proceeding,     he      stated     that   he    went      ~to   defend   [his]

country," but also that there was "no direct reason" for his going

there.     JE 6 at 2-3.    Given that it was in Petitioner's interest to

deny wanting to fight with the Taliban,                    such contradictory and

vague statements do not adequately rebut the Government's evidence

on this point.      ~      Hamdi,      542 U.S.      at 534    (concluding that the

Constitution is not offended by a burden-shifting scheme in which,

once the government puts forth credible evidence, the onus shifts

to the petitioner to rebut that evidence).                         The Government also

persuasively argues        that       Petitioner's claimed motivation makes

little sense,     as it is undisputed that Al-Nahdi had undergone a

month of Kalashnikov and physical fitness training--the kind of

training he received in Afghanistan--with the Yemeni military when

he joined the provincial Military Police in the 1990s.                       Gov's Stmt.

of Undisputed Facts         ~    3.     But see Allam,        2010 WL 58965,        at *9

(finding both parties' narratives regarding petitioner's intent to

receive training     ~lacking").




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                 b.    Travel to Afghanistan

       The next issue - involves the details of Al-Nahdi' s trip to

Afghanistan.     The parties mainly dispute the extent to which

Petitioner knew that the well-worn route he traveied was associated

with al-Qaida, although there is also some dispute as to whether

the individuals who facilitated AI-Nahdi's travel were associated

with al-Qaida and/or the Taliban.
       It is undisputed that Al·Nahdi traveled to Afghanistan in 2001

with the assistance of                         a man he was put into contact

with by a preacher at Al·Nahdi's mosque,

paid for Al-Nahdi's bus trip from his home in Al-Mukalla, Yemen to

Sanna, Yemen.     In Sanna, Al-Nahdi met Petitioner                          and

another Yemeni man, both of whom would travel to Afghanistan with
him.    AI-Nahdi also met with _                  who made Al-Nahdi's travel

arrangements and paid for his airplane ticket to Karachi, Pakistan.

Gov's Stmt. of undisputed Facts         ,~     12·15.

       The Government contends thatllllllwas an al-Qaida recruiter,
pointing to evidence in the record that (1) these arrangements fit
a general pattern of recruiting in the region for al-Qaida and the
Taliban, and    (2)   _arranged for AI-Nahdi to meet up with a
known al-Qaida facilitator in Pakistan.                 Petitioner responds that

the Government has offered no direct evidence connecting either

                       to al-Qaida, and that in any event the analysis


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    should turn on Al-Nahdi's knowledge of any such connection.

         Once in Pakistan, Al-Nahdi,                              and the third Yemeni

    man followed    IIIIIIII instructions to wait for a contact person who
    would identify them through a "challenge and pass" system, i. e. the

    contact person would approach and say	                                    and wait for

    Al-Nahdi   to    respond                             M....     ~'I   16 -18 . 12   After

    satisfying the challenge and pass, the three men were taken to a

    guesthouse in Karachi run by a man whom the Government contends is
    a known al-Qaida facilitator­                                                )--and then


          1'2  Peti tionet disputes ~ 17 of the Government's Statement of

    Undisputed Facts, which describes the challenge and pass system

    used at the Karachi airport, as a mischaracterization of statements

    attributed to Al-Nahdi.     Pet.'s Response to the Gov's Stmt. of

    Undisputed Facts [Dkt. No. 511J.      However, no such argument was

    made at the Merits Hearing. Without any indication of how or why

    Petitioner's statements are being ,mischaracterized by the

    Government, and given that the Government has produced the original

    intelligence report containing the summary of Al-Nahdi' s statements

    regarding the challenge and pass system, JE 24 at 2-3, the Court

    will credit' 17 as accurate.

_        11 Petitioner argues that any admissions made b ~
        are unreliable because he was rendered to Jordan4~
 before arriving at Guantanamo. Pet.'s Response to Gov's Mot. for
 J. on the Record at 12 n.6. As this Court explained inMohammed v.

 Obama, No. 05-1347, 2009 WL 4884194, at *22-27 (D.D.C. Dec. 16,

.2009)	 (citing Schneckloth v, Bustamont~, 412 U.S. 218, 226 (1973)),
 courts apply a "totality of the circumstances n 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
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to a second guesthouse in Quetta, Pakistan.                From the guesthouse in

Quetta, the three men traveled by taxi to the Afghanistan border,

where    the   Government    alleges,      based     on    information     given    by

Petitioner                   that    they evaded a          border     checkpoint by

riding    on   motorcycles     and    reconnected         with   the    taxi   on   the

Afghanistan side of ' the border.          JE 14 in ISN 554's Merits Hearing

at 3.

        The clandestine nature of Petitioner's travel to Afghanistan,

as well as the unlikeliness,           in one of the poorest areas of the

world, of one stranger offering another a generous sum of money14

to travel abroad to receive military training,                    suggest not only

that Al-Nahdi was being recruited by al-Qaida, but also that he

suspected as much at 'the time.          However, the Court need not answer

whether the Government has met its burden to prove that Al-Nahdi

more likely than not knew at this point that he was associating

with al-Qaida since, as discussed below, there is little doubt that

Petitioner became aware of the al-Qaida connection after arriving

at the Al Farouq training camp.


be accepted as credible.

     l4.  In addi tion to having his airplane ticket to Pakistan
paid for, Petitioner admitted in an interrogation that Abelal Khalik
gave him the equivalent of $300-400 for his travels. JE 24 at 4.
Given that Yemen is one of the poorest countries in the world, this
would have been an extremely generous amount of money, exceeding
the annual income of an average Yemeni man.      ~ Decl. of Dr.
Sheila Carapico, Pet.'s Ex. 2 ~ 19.

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            2.    Guesthou8e Stay

     The Government produced evidence that AI-Nahdi stayed in three

guesthouses      during   the   period      in   question:   1)   Riyadh   the
Facilitator's guesthouse in Karachi, Pakistani 2) a guesthouse in

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

The parties do not dispute that AI-Nahdi stayed at the Karachi and
al-Nebras guesthouses,      although Petitioner's stay in Quetta is
disputed.     More significantly, Petitioner disputes whether any of
the three guesthouses 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.          See Decl. of Dr. Sheila Carapico,




                                                      Significantly, AI-Qaida


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safehouses were not open to the public, but were restricted to

individuals who either had connections to al-Qaida or had been

brought there by al-Qaida supporters.            JE 20 at 3.
       Upon arriving in Karachi, Pakistan, Al-Nahdi was taken, as

noted earlier,     to a guesthouse run by a man he identified as

            When shown a photograph of I S N . - another Guantanamo

Bay detainee known as                                        who is alleged to

have    assisted   al-Qaida    recruits      traveling       to   Afghanistan 1S - ­

Petitioner positively identified him as the man who ran the Karachi

guesthouse.    In addition, Petitioner stated in interrogations that

he stayed there for five to seven days without having to pay any

money, that he did not leave the house to go outside because he was

warned not to, and that the other guests were afraid to speak to

one another or to share their names because they had not yet been

given their "aliases".        JE 4 at 1; JE 24 at 3-4.
       The Government argues that Petitioner next traveled to Quetta
by bus, using the money that Abdal Kalik had given him in Yemen.
In Quetta, he stayed at what the Government contends was an "Afghan

safehouse".    JE 24 at 4; Gov's Stmt. of Undisputed Facts              ~   25.   The
Government relies on information given by Petitioner



     15   ISN 1547 admitted at his ARB to having facilitated travel
to Afgpanistan for those "trying to get into Afghanistan," and to
having had close connections to Usama bin Bin Laden. JE 10 at 2-3.

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                                      B88M'!'

whom AI-Nahdi admits was his companion at the time, that they were

escorted by a man named Omar to a guesthouse in Quetta, where they

rested 'for two hours before continuing their journey _ JE 14 in ISN

554 1 s Merits Hearing at 3.
        From Quetta,   it is undisputed that Petitioner crossed the

border into Kandahar, Afghanistan, where he stayed at the al-Nebras

guesthouse.      Petitioner stated that this guesthollse was run by a

man named                     Gov's Stmt. of Undisputed Facts ~1 26-27.

The parties do not dispute that AI-Nahdi'g passport was taken at

the guesthouse, or that petitioner was shown a film about jihad in

Bosnia and Chechnya there.          ~ ~~       29-30.

        The   Government     introduced        evidence        that    the   al-Nehras

guesthouse was where foreign fighters were sent before attending

training at al-Qaida's Al Farouq training camp,                  ~ ~     28, and that

passports were taken in order to establish greater control over

recruits,     JE 20.       The Government also points                 to Petitioner's
statements in interrogations that he did not leave the house during

his stay at al-Nebras, which lasted about a week, and that he was

taken from al-Nebras directly to Camp Al Farouq.                      JE 24 at 4; JE 1

at 2.     Finally. the Government relies on statements by Petitioner

              that' al-Nebras is also the safehouse where Petitioner

stayed for a night after leaving Al Farouq and before arriving in

Tora Bora.      JE 2 at 3; JE 21 in ISN 554's Merits Hearing.


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     Again,      the    evidence       indicates     that    Petitioner       was     being

carefully guided from place to place in a secretive manner.                           Given

the unusual manner in which guests were treated and behaved,                             it

appears   more    likely       than    not    that    the   Karachi     and    al-Nebras

guesthouses,      if     not     the       Quetta    guesthouse,       were        al-Qaida

safehouses.      See also M.eID, 2010 WL 58965, at *9.

     Merely      staying       at     an     al-Qaida    safehouse      is     typically

insufficient to satisfy the detention standard.                     See Ali Ahmed, 613

F. Supp. 2d at 65 (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" of a non-citizen'g

guesthouse       stay     alone       would     "overwhelmingly"            justify     the

government's detention).               However,      in this       case the fact       that

Petitioner willingly stayed in houses where he was advised not to

go outside, where he was afraid to share his real name with other

guests, where his passport was taken and held,                       and where he was

shown jihadist videos strengthens the inference that Al-Nahdi knew

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

he was intentionally taking steps to join al-Qaida's ranks.                             ~

Transcript of Oral RUling at 37-39, Anam v.                        Obama,    No.    04-1194

(D.D.C. Dec. 14, 2009); Razak Ali v. Obama, No.                       09-745,       2009 WL

4030864, at *3-4 (D.D.C. Nov. 19, 2009).




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                                                      sseRB'f
                   3.	     Attendance at Al Farouq and Subsequent Travel to
                           Tora Bora
             The Government's accusation that AI-Nahdi attended al-Qaida's

      Al Farouq training camp in 2001 is not disputed by Petitioner; he

      admitted     to    it    in his           testimony.         Transcript of      Merits Hr' 9

      Testimony of Suleiman Al-Nahdi at 17, Al-Adahi v. Ohama, No. 05-280

      (Jan. 5, 20l0)          ("Tr.         (Jan. 5, 2010) N}.         He also admitted in his

      testimony that he saw Usama Bin Laden at the camp and heard him

      speak about jihad.                rd. at 20.       However, Petitioner claims that he

      did not      know of             Al    Farouq's al-Qaida affiliation             during      the

      approximately twenty to thirty days he spent there, and that he

      would not have gone if he had known.                         Id. at 19.

             Petitioner also disputes the Government's allegation that he

      left    Al   Farouq          pursuant         to    a     military    order   from   al-Qaida

      leadership.        Instead. Petitioner argues he left the camp of his own

      accord and traveled with a group to Tora Bora in an effort to leave

      the country.        ~        at 21-23.

                              a.        Attendance at Al Farouq

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

      "primary Afghan              basic-tra.ining facility,               providing' ideological

      indoctrination and [weapons and other) training."                             Gov's Stmt. of

      undisputed Facts             ~    31.      Petitioner spent about twenty to thirty

      days at Al Farouq,                    receiving Kalashnikov and physical               fitness

      training from his trainer, Johaina.                          ~ at ,~ 33-38.          In a   II1II
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1IIIIIIII interrogation,    Al-Nahdi stated that he knew the camp was

run by    al-Qaida,    although    he    has     denied       this   in    subsequent

interrogations and pz:oceedings. 16          Compare JE 3 at 3, with JE 5, JE

2 at 3, JE 6 at 3.     Petitioner has consistently admitted to having

heard Usama Bin Laden speak at a mosque at Al Farouq approximately

two weeks before the September 11, 2001- attacks.                         He does not

dispute   that   Bin   Laden    gave     a     speech   on     jihad,      "providing

encouragement to the camp members during their training and for the

jihad."   Gov's Stmt. of Undisputed Facts            ,~ 42-45.

     Even if the evidence leading up to Al-Nahdi' s attendance at Al

Farouq is insufficient to establish that he knew he was associating

with al-Qaida, the Court finds that it is far more likely than not

that he fully understood it by the time he was at Al Farouq.                        It is

simply not credible that he would have attended the camp, which

provided ideologica,l indoctrination,             for twenty to thirty days

without   realizing with whom he _was              dealing.          The    fa.ct    that
 Petitioner heard Usama Bin Laden--who, as the Government points

out, was by this time notorious for his role in the October 12,
 2000 USS Cole bombing off the coast of Yemen--speak about jihad at



       l'  In interrogations, Al-Nahdi once denied having known
 anything about al-Qaida until after his arrest, and once denied
 having known anything about al-Qaida besides what he learned in a
 single newspaper article. JE 5, JE 2 at 3. Before the Combatant
 Sta.tus Review Tribunal, he simply stated that he "didn't know at
 first that (al Qaida] [] ran the camp," but ~found out afterwards."
 JE 6 at 3.

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                                            !l!f!H'f

Al Farouq resolves any remaining doubt, especially in light of the

particular manner in which AI-Nahdi was guided to the camp .17                            Cf.

Transcript of Oral RUling at                   48-50,       ADam v. Obama, No.      04-1194

(D.D.C. Dec. 14 1 200g)            (concluding petitioner had to have known Al

Farouq was an al-Qaida training camp) .

                     b.      Travel to Tara Bora

      The    Court        finds     that    it       is    more    likely    than not   that

Petitioner knew he was associating with al-Qaida by the time of his

stay and training at Al Farouq, and was thereby demonstrating his
support . for it.          The next disputed factual issue is whether a

preponderance of the evidence establishes his membership in or

substantial support of al-Qaida.                          While Petitioner' 5 guesthouse

stays and training at Al Farouq alone might well suffice to justify

detention,     the     Government makes                   even    stronger allegations .of

membership and substantial support.                         One of the Government/s key
allegations is that Al-Nahdi left Al Farouq to go to Tora Bora
pursuant     to   an       order       given         by    the    al-Qaida   leadership     in
anticipation of the United States' retaliation for the September
11,   2001   attacks.             As   noted above,              Petitioner disputes      this
characterization of the events                   l    arguing that he left the camp
simply because he wanted to leave Afghanistan.


     17   Petitioner1s vague and inconsistent statements about his
knowledge of al-Qaida' s connection to Al Farouq further confinn the
unreliability of his denials.
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                                          S!le!M1!'

        As its most direct piece of evidence supporting this claim,

the    Government       relies     on    Petitioner's       statement     in    his   ARB

proceeding that Al Farouq leaders "ordered us to move from one

place to another.        They told us to go to Tora Bora so that is where

we went."        JE 6   at 8-9.         Petitioner also stated that "[a] t the

time, you could not ask them why and where we were going. You

cannot refute them.         You had to do what they told you to do."                  ld.

at 9.

        Petitioner does not dispute that when he left he traveled with

a     group of    Al    Farouq camp members,            "staying    in a       series of

safehouses and a campsite until eventually reaching Tora Bora."

Gov's Stmt. of Undisputed Facts' 50.                    Instead, Petitioner argues

that there mi9ht have been mistranslations at the                   ARB   proceeding so

that a voluntary, mass evacuation from Al Farouq appears on the

record to have been the result of orders handed down by al-Qaida

leadership.        The quoted portion of the transcript from the                      ARB

proceeding, however, leaves little doubt that Petitioner meant he

"had to do"        what "the camp's leadership told him.                       Moreover,

Petitioner's self-serving argument rests on pure speculation, with
no facts to support it.

        Petitioner also argues that he had no choice but to remain in

the camp,     since those who left were often considered spies and
treated harshly.          Pet.'s Mot. at 11 n.5.              In the absence of any


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evidence at all that Petitioner attempted to leave Al Farouq at any

point or to disobey the order to leave, or even that he desired to

do so, this argument cannot be credited.              The Court also notes that

petitioners in other cases before this Court have successfully left
Al Farouq without repercussion.               See,    e.g"      AI-Adahi,   2009 WL
2584685, at *9; Transcript of Oral Ruling at 40-41, Anam, No. 04­

1194    (D.D.C. Dec. 14,     2009)     (finding not credible petitioner's
claim that he wanted to leave Al Farouq but could not) ;                ~,       2010

WL 58965, at *10 (same).

        Thus, the Court finds it more likely than not that Petitioner

left Al Farouq and traveled to Tora Bora pursuant to a specific
order from the camp's al-Qaida leadership.                     This alone would be
sufficient under both AI-Bihani, 590 F.3d at 870-74, and Gherebi,

609 F. Supp. 2d at 70-71, to conclude that AI-Nahdi functioned or

participated       within   or   under     the    command       structure   of    the

organization.       However, the Government additionally alleges that,
while at Tora Bora,         AI-Nahdi guarded a            rear-echelon position
pursuant to orders from senior           al-Qa~da    leaders.

             4.	   Guarding of Rea.r-Echelon Position at Tora Bora,
                   Injury While Retreating, and Capture

        Perhaps the most serious allegation against Petitioner is
that,    upon arriving      at Tora Bora,         he guarded a        rear-echelon




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position at Camp Thabit. l I   The principal evidence to support this

claim comes in the form of Petitioner's own statements at his ARB

proceeding that, for the ten to fourteen days he was at Tora Bora,



      18   At this point in the chronology, the Court has absolutely
no doubt that Al-Nahdi knew he was consorting with al-Qaida
members.   It is undisputed that he learned of the September II,
2001 attacks shortly after arriving at Tora Bora. When he arrived
at the base of the mountains, Usama Bin Laden and Ayman al-Zawahiri
spoke to AI-Nahdi's group--all of whom were armed with Kalashnikov
rifles--for an hour about jihad. Gov's Stmt. of Undisputed Facts
,~ 52-56.  Bin Laden al-Zawahiri also appear to have told the group
that they were at war with the United States . . JE 7 at 2. It is
simply not credible that Petitioner had no knowledge that he was
traveling with al-Qaida in the face of these undisputed facts.
      In direct testimony at his Merits Hearing, Al-Nahdi claimed
that any prior statements he made to United States authorities
admitting that he heard Bin Laden speak at Tora Bora were made as
a result of torture.     Tr. (Jan. 5, 2010) at 53.    This claim has
been raised only once before--at Petitioner's CSRT--and has not
been raised at any point in these jUdicial proceedings prior to the
Merits Hearing. JE 5 at 2. ~l-Nahdi alleges he was tortured by
Afghan forces in Kabul before being placed in United States
custody; he does not allege any torture while in United states
custody.
      This Court has recognized that credible allegations of torture
can destroy the reliability of certain evidence. See Mohammed v.
Obama, 2009 WL 4884194, at *48-70; Ali-Ahmed v. Obama, 613 F. Supp.
2d 51, sa (D.D.C. 2009).      However, as this Court explained in
Mohammed, ~(t]he use of coercion or torture to procure information
does not automatically render subsequent confessions of that
informat.ion inadmissible."     Mohammed, 2009 WL 4884194, at *23
 (citing United States v. Bayer, 331 U.S. 532, 540-41 (1947)).
Instead, any subsequent confessions must be shown to have been
tainted by the coercion or torture. Petitioner has offered no
evidence that his statements at the CSRT were tainted by his
torture in Pakistan.      Given the late hour at which Petitioner
asserts this claim, the detail in which Petitioner preViously
described Bin Laden's speech, an~ the fact that those details match
other detainees' accounts, his recent recantations of his prior
statements on this issue are found to be not credible. Cf.~,
2009 WL 58965, at *8.

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    he ntook turns with others standing guard" in front of a foxhole. 19

    At the Merits Hearing, Petitioner gave completely contradictory

    testimony and denied ever having been ordered to guard anything at

    Tora Bora.   Tr.    (Jan.    5,   2010) at   28.

         However,      the   detailed      account      given       by   Petitioner   when

    interrogated about the camp's operations, including the procedures

    followed by the camp's guards, lends credence to the allegation

    that he functioned as a guard within a command structure.                    JE 25 at

    4.   For example, he stated that guards were posted every night at
    approximately 4:00 p.m. until 12:00 local time the following day,

    that shifts rotated         ever~   couple of hours, and that passwords-­

    determined by camp leaders--were used to identify approaching

    personnel.      Significantly, if an approaching individual did not
    know the password, the guards were instructed to shoot that person

    in the leg if he ran.             ~    AI-Nahdi also explained the command
    structure of the camp in detail, which indicates his knowledge of,
    and also his role within, the military hierarchy.                      JE 25 at 2-4.
    In light of this evidence, the Court concludes it is more likely



         l' Petitioner has placed great weight on whether he said he
    was guarding a cave, a foxhole, a bunker, or a ditch.        While
    evidence in the record describing the camp would suggest that he
    was, in fact, guarding a bunker, JE 25 at 2, it is a distinction
    without meaning.   What matters is that AI-Nahdi was guarding an
    area which his superiors thought was of military value pursuant to
    an order from al-Qaida leadership; the precise nature of that area
    is irrelevant.

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     than not that Al-Nahdi executed orders to guard a                      rear-echelon

     position at Tora Bora.

           Nor   is    there     any   evidence       that   Petitioner    attempted   to

     dissociate       himself     from    this     group     before     being   captured.

     Petitioner does not dispute that he waited at Tora Bora for a guide

     for twenty-five days before attempting to cross the border.                    GoV's

     Stmt. of Undisputed Facts ~ 69.              He then left with a group which,

     after walking       for    five hours,       was bombed by Coalition forces.

     Petitioner was injured by shrapnel and shortly thereafter captured

     by Coalition forces.          rd. at    ,~   70-71.

           The     Government's          allegations,          if      credited,    would

     overwhelmingly establish Al-Nahdi's membership in al-Qaida under

     AI-Bihani and Gherebi, given his role within the command structure

     and his execution of orders to guard the rear-echelon position.

     See AI-Bihani, 590 F.3d at 870-75; Gherebi, 609 F. SuPP. 2d at 70­

     71.   In order to dispute the Government's characterization of his

     activities at Tora Bora, Petitioner points to evidence that many,

     including himself, were scared and only wanted to go home after the

     fighting began, but could not because, their passports and money had

     been taken.        JE 7 at 2.         Al-Nahdi argues that,          when placed in

     context, the evidence could reasonably lead to the conclusion that

     he was present at ToraBora, but was not an active participant in

     the hostilities.           Instead, according to Al-Nahdi,            he was simply


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                                    SBBM.,

trying to escape with his life when he was captured.

       However, since the Taliban and al-Qaida leadership had already

ordered a staggered retreat weeks before AI-Nahdi left his guard

post, it is more likely than not that AI-Nahdi left Tora Bora under

orders from al-Qaida, or at least without objection.                 Thus, while

it may be true that Petitioner was happy to leave Tora Bora when he

did, his attempt to cross back into Pakistan does not demonstrate

an effort to dissociate himself from al-Qaida.                  See AI-Gineo v,

Obama, 626 F. Supp. 2d 123, 129 (D.D.C. 2009)                {describin~   factors

that would indicate dissociation from al-Qaidal.               Moreoever, it is

undisputed that, in his only prior attempt to leave Tora Bora, Al­

Nahdi acted in proper ucommand mode": he asked his commander, Abul

Qudoz, if he could leave, and after being rebuked did not attempt

to do so.     Gov' s Stmt.     of undisputed Facts           1 66.   Given this

evidence, the Court concludes that it is more likely than not that

AI-Nahdi was a part of al-Qaida's forces at Tora Bora and did not

dissociate himself from al-Qaida before being captured.
IV,    CONCLUSION

       To summarize, the Government has met its burden to demonstrate
by a preponderance of the evidence that Petitioner heard a fatwa
that   called on    him   to   fight alongside         the Taliban,     that    he

subsequently traveled--at no cost to himself and while staying at

al-Qaida-associated   guesthouses~-to Afghanistan,             that he watched a


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                                        SilQAila'

     jihadist video at one such guesthouse, that he received military

     training at al-Qaida's Al Farouq camp, that he left Al Farouq after

     a few weeks under orders from al-Qaida leadership, that he traveled

     to Tora Bora and assumed a role guarding a rear-echelon position at

     Camp Thabit, again subject to the command of al-Qaida leadership,

     and that, after leaving Tora Bora, he was injured by Coalition

     bombs and captured.
             First, given the evidence establishing the clandestine manner

     in which much of his travel occurred, as well as the fact that

     Petitioner twice heard Usama Bin Laden speak about j ihad--once

     while     armed--and   attended     camps      that    provided   ideological

     indoctrination to attendees, the Government has established that,

     at a minimum, it is more likely than not that Petitioner knew he

     was associating with al-Qaida.        Second, the Government has carried

     its burden to prove Petitioner's membership in or substantial

     support of al-Qaida.       In the absence of an official membership
     card, the key inquiry in determining whether an individual is a

     part of the Taliban or al-Qaida is whether the individual functions
     or participates within or under the command structure of the
     organization.    Al-Bihani, 590 F. 3d at 872 -73 i Gherebi , 609 F. SUpp.
      2d at 68-69.    The Government has shown that it ie more likely than

      not that Petitioner both departed from Al Farouq and guaro.ed a

      rear-echelon position at Tora Bora pursuant to al-Qaida's orders.


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                                  SBEIlWi

Moreover, the fact that al-Qaida leaders permitted Petitioner to

train at Al Farouq and to be in the close presence of Usama Bin

Laden twice--once while armed--in addition to feeding, sheltering,

and protecting him "during the battle of Tora Bora, demonstrates

that they considered Al-Nahdi a loyal and trustworthy supporter.

~   ADam,   2010 WL 58965, at *13 .

    . For all the reasons discussed herein, the Court denies the

petition for a writ. of habeas corpus.



                                              lsi
February __ , 2010	                          Gladys Kessler
                                             United States District JUdge


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