Al-Adahi v. Bush ( 2010 )

UNCLASSIFIEDIIFOR PUBLIC RELEASE
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
UNCLASSIFIEDIIFOR PUBLIC RELEASE
.... _ - - - - - - - - - . _ - ­
UNCLASSIFIEDIIFOR PUBLIC RELEASE
SB€ftB'f
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.
-2­
UNCLASSIFIED/IFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
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
-3­
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
SSORB'I'
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
-4­
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEOIIFOR PUBLIC RELEASE
Si:CUT
(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
-5­
UNCLASSIFIEOIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
saeH'f
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
-6­
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
SBGRB'i'
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
-7­
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
SHeRB.,
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.
of Appeals controls.
-8­
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
sseRil'f
III. ANALYSIS
-9­
UNCLASSIFIEDIIFOR PUBLIC RELEASE
'--------------------------------------------------­ -
UNCLASSIFIEDIIFOR PUBLIC RELEASE
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
-10­
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
saaRB'i'
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").
-11­
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
seCR::B'f
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.
-12­
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
SI!ICRB'f
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.
-13­
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEOIIFOR PUBLIC RELEASE
BBe1UR'
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.).
-14­
UNCLASSIFIEOIIFOR PUBLIC RELEASE
1.- _
UNCLASSIFIEDIIFOR PUBLIC RELEASE
request is denied for several reasons.
First, there is absolutely no reason for this Court to presume
that the facts contained in the Government's 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.
-15­
UNCLASSIFIEDIIFOR PUBLIC RELEASE
-----------------,
UNCLASSIFIEDIIFOR PUBLIC RELEASE
SSCRiI'f
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
-16­
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
SB8RH'f
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
omitted) .
-17­
UNCLASSIFIEDIIFOR PUBLIC RELEASE
'------------------------------------------------­ -
UNCLASSIFIEDIlFOR PUBLIC RELEASE
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.
-18­
UNCLASSIFIEDIIFOR PUBLIC RELEASE
L- ~ _
UNCLASSIFIEDIIFOR PUBLIC RELEASE
9S0Ril'f
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
-19­
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
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.
-20­
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
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
-21­
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
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
-22­
UNCLASSIFIEDIIFOR PUBLIC RELEASE
---------------------------------..,
UNCLASSIFIEDIIFOR PUBLIC RELEASE
SHeRB!'
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
-23­
UNCLASSIFIEDIIFOR PUBLIC RELEASE
---_. - - - - - - - - ,
UNCLASSIFIEDIIFOR PUBLIC RELEASE
BBOH'!
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.
-24­
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
GB9aB!1'
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").
-25­
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
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
-26':'
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
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
-27­
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
BB@i1iI'I'
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.
-28­
UNCLASSIFIEDJlFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
BaBas'!
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
-29­
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEOIIFOR PUBLIC RELEASE
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.
-30­
UNCLASSIFIEOIIFOR PUBLIC RELEASE
UNCLASSIFIEOJlFOR PUBLIC RELEASE
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.
-31­
UNCLASSIFIEOIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
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).
-32­
UNCLASSIFIEDIIFOR PUBLIC RELEASE
-----------``~-
UNCLASSIFIEDIIFOR PUBLIC RELEASE
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
-33­
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
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.
-34­
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
!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.
-35­
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
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
-36­
UNCLASSIFIEOIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
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
-37­
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
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.
-38­
UNCLASSIFIEDIIFOR PUBLIC RELEASE
------------:---------------- -----------­
UNCLASSIFIEDIIFOR PUBLIC RELEASE
iBiM'i'
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.
-39­
UNCLASSIFIEDIIFQR PUBLIC RELEASE
----------------------------------- -------
UNCLASSIFIEDIIFOR PUBLIC RELEASE
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
-40­
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
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
-41­
UNCLASSIFIEDIIFOR PUBLIC RELEASE
UNCLASSIFIEDIIFOR PUBLIC RELEASE
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.
-42­
UNCLASSIFIEDIIFOR PUBLIC RELEASE
_______________________________________ ~ _.J
UNCLASSIFIEDIIFOR PUBLIC RELEASE
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
Copies to: Attorneys of Record via ECF
-43­
UNCLASSIFIEDIIFOR PUBLIC RELEASE