Al-Adahi v. Obama , 692 F. Supp. 2d 85 ( 2010 )

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLOMBIA
MOHAMMED AL-ADAHI, ``,
FllEDX;H
E
COURT S OFFICER
CSO'
CATE: .
Petitioners,
v. Civil Action No. 05-280 (GK)
BARACK H. OBAHA, at AL..,
Respondents.
MEMORANDUM OPINION
Petitioner Fahmi Salem Al-Assani ("AI-Assani" or "the
petitioner") has been detained since 2002 at the United states
Naval Base at Guantanamo Bay, Cuba. Respondents ("the Government")
argue that his detention is justified under the Authorization for
the Use of Military Force, Pub. L. No. 107-40 § 2(a), 115 Stat.
224, 224 (2001) ("AUMF") , which grants the Executive the power to
detain individuals engaged in certain terrorist activities. The
petitioner disagrees, and has, along with four other petitioners,
filed a petition for a writ of habeas corpus [Dkt. NO. 1).1
1 To date, one of the five petitions has been decided on
the merits: Mohammed Al-Adahi's petition and Motion for Judgment
on the Record were granted by this Court on August 17, 2009 [Dkt.
No. 459]. The Government filed an appeal on September 21, 2009,
and the Petitioner cross-appealed other aspects of the Order on
October 5, 2009 [Dkt. Nos. 463, .473). On December 22, 2009,
Muhammad Ali Abdullah Bawazir's petition was dismissed without
prejudice after he chose not to proceed with a merits hearing
scheduled for January 2010 [Dkt. No. 526]. Two other
Petitioners-Suleiman Awadh Bin Aqil AI-Nahdi and Zahir Omar Khamis
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The matter is before the Court on Cross-Motions for Judgment
on the Record [Dkt. Nos. 493 and 496]. On December 22, 2009,
Petitioners filed a Supplemental Brief
and the Government responded
(Dkt. Nos. 527 and 539]. Upon consideration of the Motions, the
Oppositions, extensive oral argument and accompanying exhibits, and
the entire record herein, Al-Assani's habeas corpus petition and
Motion are hereby denied.
I • BACKGROUND
A. Procedural History
Petitioner filed his habeas corpus petition on February 7,
2005. After filing, there was extensive preliminary litigation
regarding the Court's jurisdiction to entertain detainees'
petitions, the applicability of various statutes, and the
appropriate procedures to be used.
After more than six years of litigation, the most important
legal issue was resolved by the Supreme Court in Boumediene v,
Bush, 553 U.S. , 128 S. Ct. 2229 (2008). The Court ruled that
detainees at Guantanamo Bay, none of whom are citizens of the
United States, are entitled to bring habeas petitions under Article
Bin Hamdoun--have filed Motions for Judgment on the Record. On
October 7, 2009, Hamdoun's petition was stayed for 120 days [Dkt.
No. 476]. On January 4-5, 2010, a merits hearing was held on Al­
Nahdi's petition and Motion, which are addressed in a separate
opinion.
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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. rd, at 2240 (~We do not
address whether the President has the authority to detain these
petitioners nor do we hold that the writ must issue. These and
other questions regarding the legality of the detention are to be
resolved in the first instance by the District Court."). Nor did
the Supreme Court lay down specific procedures for the District
Courts to follow in these cases.
Boumediene was, however, definitive on at least two points:
first, that the detainees are entitled to a prompt hearing, 128 S.
Ct. at 2275 (~The detainees in this case are entitled to a prompt
habeas corpus hearing."), and, second, that the District Courts are
to shape the contours of those hearings, ~ at 2276 (finding that
balancing protection of the writ and the Government's interest in
military operations, "and the other remaining questions [,] are
within the expertise and competence of the District Court to
address in the first instance. U ).
In an effort to provide the prompt hearings mandated by the
Supreme Court, many of the judges in this District agreed to
consolidate their cases before former Chief JUdge Thomas Hogan in
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order to streamline procedures for, and management of, the several
hundred petitions filed by detainees. ~ Order (July 1, 2008)
[Civ. No. 08-442, Dkt. No.1). On November 6, 2008, after
extensive briefing from Petitioners' counsel and the Government,
Judge Hogan issued a Case Management Order ("CMO") to govern the
proceedings. This Court adopted, in large part, the provisions of
that Order, while modifying it somewhat, as noted in Appendix A to
Dkt. No. 283.
Much pre-hearing activity haa taken place under this Court's
Case Management Order. The Government has filed the exculpatory
evidence, automatic discovery, and additional discovery required
under the CMO. The Government filed its Factual Return for Al­
Assani on August 1, 2005, and amended it on October 30, 2008. The
Petitioner responded by filing Traverses on July 2, 2008, July 9,
2008, and November 3, 2008. After a period of extensive discovery,
both parties filed substantial briefs accompanied by extensive
eXhibits.
On December 16, 2009, the Court set January 4, 2010, as the
date for the "Merits Hearing" on the Cross-Motions for Judgment on
the Record for all three Petitioners who planned to go forward to
challenge their detention. On December 22, 2009, Petitioner
Bawazir's case was dismissed without prejudice after he instructed
his counsel to not proceed with litigating his Motion. Order
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(December 22, 2009) [Dkt. No. 526]. AI-Nahdi's case, including the
Petitioner's live direct and cross-examination on January 5, 2010,
was presented to the Court over a two-day period. AI-Assani' s case
was presented to the Court on January 7, 2010.
:U. STANDARD OF REVI:EW
The Government bears the burden of establishing that detention
is justified. See ~oumediene, 128 S. Ct. at 2270; Hamdi, 542,U.S.
507, 533-34 (2004). It must do so by a preponderance of the
evidence. Order, Appendix A at § II.A (Feb. 12, 2009) [Dkt. No.
283-2] ; see also Al-Bihani v. Obama, 590 F.3d 866, 878 (D.C. Cir.
2010);~,
Initially, the Government took the position that Article II of
the Constitution and the AUMF granted the President the authority
to detain individuals. See Gherebi v. Obama, 609 F. Supp. 2d 43,
53 n.4 (D.D.C. 2009). The Government asserted, "[a]t a minimum, .
. . the ability to detain as enemy combatants those individuals who
were part of, or supporting, forces engaged in hostilities against
the United States or its coalition partners and allies." Resp't's
Statement of Legal Justification For Detention at 2 [Dkt. No. 205].
Since the change in administrations, the Government has
abandoned Article II as a Source of detention authority, and relies
solely On the AUMF. Gherebi, 609 F. Supp. 2d at 53 n.4. Further,
it no longer uses the term "enemy combatant." Its refined position
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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 Govt.'s Detention Authority
Relative to Detainees Held at Guantanamo Bay at 3 (Dkt. No. 306].
In. Gherebi, JUdge Reggie B. Walton of this District Court
ruled that the Government has the authority to detain individuals
who were part of, or substantially supported, al-Qaida and/or the
Taliban, provided that. those terms ~are interpreted to encompass
only individuals who were members of the enemy organization's armed
forces, as that term is intended under the laws of war, at the time
of their capture." Gherebi, 609 F. Supp. 2d at 70-71. However, in
Hamlily v. Obama, 616 F. Supp. 2d 63 (D.D.C. 2009) , Judge John
Bates of this District Court concluded that, under the law of war,
the Government has the authority to detain individuals who were
"part of . Taliban or al Qaida forces" or associated forces,
but not the authority to detain those who are merely "substantial
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supporters of those groups.,,2 Id. at 74, 76. As JUdge Urbina
succinctly stated, "the crux of the distinction between the two
approaches lies in whether the government has the authority to
detain individuals who substantially supported enemy forces and/or
directly supported hostilities against the United States. Judge
Walton has concluded that the government does have this authority,
while Judge Bates has held that it does not." Hatim v.
Obama, No. 05-1429, 2009 WL 5191429, at *3 (D.D.C. Dec. 15, 2009)
(citations omitted). This Court concluded that, "[w]hile [it] has
great regard for the scholarship and analysis contained in both
decisions, Judge Walton's opinion presented a clearer
approach," and adopted the reasoning and conClusion in Gherebi.
AI-Adahi v. Obama, No. 05-280, 2009 WL 2584685, at *3 (D.D.C. Aug.
21,2009).
Recently, the Court of Appeals considered the scope of the
President's detention authority under the AUMF and related statutes
in AI-Bihani, 590 F.3d at 870-75. 3 The Court of Appeals rejected
~ The Court agrees with JUdge Bates' comment that the
determination of who was a "part of n the Taliban and/or al-Qaida,
under JUdge Walton's approach, rests on a highly individualized and
case-specific inquiry; as a result, the "concept [of substantial
support] may play a role under the functional test used to
determine who is 'part of' a covered organization," and the
difference in the two approaches "should not be great." Hamlily,
616 F. Supp. 2d 63, 76 (D.D.C. 2009).
To the extent that Ghereb~ or Hamlily are inconsistent
with the analysis set forth in Al-Bihani, the decision of the Court
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Al-Bihani's argument "that the war powers granted by the AUMF and
other statutes are limited by the international laws of war," and
held that the sources courts must look to are "the text of relevant
statutes and controlling domestic caselaw." Id. at 871-72.
The Court of Appeals then examined the various "relevant
statutes," including the AUMF, the 2006 Military Commissions Act,
Pub.L. No. 109-366, 120 Stat. 2600 (codified in part at 28 U.S.C.
§ 2241 & note), and the 2009 Military Commissions Act, Pub.L. No.
111-84, tit. XVIII, 123 Stat. 2190, 2575-76. It concluded that a
lawfully detained person could be defined as "an individual who was
part of or supporting Taliban or al Qaeda forces, or associated
forces that are engaged in hostilities against the United States or
its coalition partners" or "an individual 'substantially
support [ing] enemy forces." Id. at 872 (iriternal quotation
omitted). The Court made clear that this two-pronged definition
(membership and substantial support) included "those who are part
of forces associated with Al Qaeda or the Taliban or those who
purposefully and materially support such forces in hostilities
against U.s. Coalition partners." I51:.. Finally, the Court
concluded that "both prongs are valid criteria that are
independently sufficient" to justify detention. Id. at 874.
of Appeals controls.
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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. ~ 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 AI-Bihani, 590
F.3d at 870-75 (not considering whether petitioner posed future
threat in upholding district court's denial of the writ).
Arguing that the threat posed by petitioner is relevant to
this Court's inquiry, Petitioner points to language in the Supreme
Court's decision in Hamdi that "[t]he purpose of detention is to
prevent captured individuals from returning to the field of battle
and tak~ng up arms once again."
However, the Hamdi Court made clear that, under the
AUMF, the President possesses "[t]he authority to detain for the
duration of the relevant conflict . . . based On longstanding law­
of-war principles." rd. at 521. Thus, the President is authorized
to detain Petitioner for the duration of the conflict in
Afghanistan, even if Petitioner poses no threat of returning to the
field of battle. See alsQ Transcript of Oral RUling at 12-13, Anam
v. Obama, No. 04-1194 (D.D.C. Dec. 14,2009); Awad v. Obama, 646 F.
Supp. 2d 20, 24 (D.D.C. 2009) ; but s e e ~ , _
(concluding that "the AUMF does not
authorize the detention of individuals beyond that which is
individuals from rejoining the battle" .
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In short, the question of whether Petitioner poses a threat is
not relevant under the AUMF to this Court's review of his continued
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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 form of classified intelligence and
interview reports that it believes justify the Petitioner's
detention. The reports contain the statements of Petitioner, as
well as staternentsmade by other detainees, that the Government
argues .demonstra~e the .Petitioner's status as a member or
substantial supporter of al-Qaida and/or the Taliban.'
The Government requested that a rebuttable presumption of
Petitioner argues that the Government's evidence should
be excluded under the Geneva Conventions, because the evidence was
collected in violation of various articles of the Third Geneva
Convention. Pet.'s Response to Gov's Mot. for J. on the Record at
3-5. The parties previously had briefed this issue in the weeks
following Petitioner Al-Adahi' s Merits Hearing [Dkt. Nos. 435, 441,
442, and 481). The Court agrees with the Government that the
evidence need not be excluded. Section 5 of the Military
Commissions Act of 2006 ("MCA"), Pub. L. 109-366, § 5, oct. 17,
2006, 120 Stat. 2631 (codified at 28 U.S.C. § 2241 & note), which
was not altered by the MCA of 2009, precludes Petitioner from
relying on the Geneva Conventions "as a source of rights." In
addition, this Circuit held in AI-Bihani, 590 F.3d at 875, that
" [tJ he AUMF, DTA, and MCA of 2006 and 2009 do not hinge the
government's detention authority on compliance with
international law . . " Petitioner therefore cannot rely on the
Geneva Conventions to carve out an exclusionary rule for evidence.
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authenticity be granted to all the exhibits it intends to
introduce. 5 Petitioner objected to this request. See Pets.' Joint
Opp'n to the Government's Memo. and Supplement Regarding
Presumptions, Hearsay and Reliability of Intelligence Information
at 3-10 ("Pets.' Presumptions Memo.") [Dkt. No. 400]. In the Order
granting Petitioner Al-Adahi' s petition for a writ of habeas
corpus, the Court ruled that, "[gJ iven the Government' s
representations that the specific documents included in its case
against petitioner, as well as the documents provided to
Petitioner's counsel in discovery, have all been maintained in the
ordinary course of business, the Court will presume, pursuant to
Fed. R. Evid. 803(6), that its documents are authentic." AI-Adahi
v. Obama, 2009 WL 2584685, at *3. As provided for in the CMO, the
Government's exhibits will be granted a rebuttable presumption of
authenticity and will be deemed authentic in the absence of any
rebuttal evidence to the contrary.
In Petitioner AI-Assani's case, the Government also requested
that a rebuttable presumption of accuracy be granted to all the
exhibits it intended to introduce. The Petitioner objected to this
request as well. See Pets.' Presumptions Memo. at 3-10. This
5 Ordinarily, "the requirement of authentication requires
that the proponent, who is offering a writing into evidence as an
exhibit, produce evidence sufficient to support a finding that the
writing is what the proponent claims it to be." 2 K. Broun,
McCormick on Eyidence § 221 (6th ed.).
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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 exhibi ts are accurate.
The accuracy of much of the factual material contained in those
exhibits is hotly contested for a host of different reasons,
ranging from the fact that it contains second-level hearsay, to
allegations that it was obtained by torture, to the fact that no
statement purports to be a verbatim account of what was said.
Second, given the fact that this is a bench trial, the Court
must, in any event, make the final judgment as to the reliability
of these documents, the weight to be given to them, and their
accuracy. Those final judgments will be based on a long, non­
exclusive list of factors that any fact-finder must consider, such
as: consistency or inconsistency with other evidence, conditions
under which the exhibit and statements contained in it were
obtained, accuracy of translation and transcription, personal
knowledge of declarant about the matters testified to, levels of
hearsay, recantations, etc.'
Denial of the Government's request for a rebuttable
presumption of accuracy does not mean, however, that the Government
, While the supreme Court did suggest in Hamdi that a
rebuttable presumption "in favor of the Government's evidence"
might be permissible, 542 U.S. at 534, it did not mandate it. In
Eoumediene, the Court clearly left it to the District Courts to
craft appropriate procedures. Boumediene, 128 S. Ct. at 2272.
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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 AI-Bihani v. Qbama, 590 F.3d at 879-80.
Finally, while parties always retain the right to challenge
the admissibility of evidence, the Court will be guided by the
Federal Rules of Evidence, in particular Rule 402, providing that
"[aJ 11 relevant evidence is admissible." Once all evidence is
admitted into the record, the Court will then, in its role as fact­
finder, evaluate it for credibility, reliability, and accuracy in
the manner described above. ~
C. Mosaic Theory
The Government advances several categories· of allegations
which, in its view, demonstrate that the Petitioner was detained
laWfully. Above all, its theory is that each of these allegations
- - and even the individual pieces of evidence supporting these
allegations - - should not be examined in isolation. Rather, U [t] he
probity of any single piece of evidence should be evaluated based
on the evidence as a whole," to determine Whether, when considered
"as a whole, H the evidence supporting these allegations comes
together to support a conclusion that shows the Petitioner to be
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justifiably detained. Govt.'s Mot. for J. Upon the R. and Mem. in
Supp. at 7 (internal citation omitted) [Dkt. No. 496]. While the
Government avoids an explicit adoption of the mosaic theory, it is,
as a practical matter, arguing for its application to the evidence
in this case. Cf. Hatim v. Obama, No. 05-1429, 2009 WL 5191429, at
*3 n.1 (D.D.C. Dec. 15, 2009); Ali Ahmed v. Obama, 613 F. Supp. 2d
51, 55-56 (D.D.C. 2009).
The Court understands from the Government's declarations, and
from case law,7 that use of this approach is a common and well­
established.mode of analysis in the intelligence community. This
may well be true. Nonetheless, at this point in this long, drawn-
out litigation the Court's obligation is to make findings of fact
and conclusions of law which satisfy appropriate and relevant legal
standards as to whether the Government has proven by a
preponderance of the evidence that the Petitioner is justifiably
detained. The kind and amount of evidence which satisfies the
intelligence community in reaching final conclusions about the
value of information it obtains may be very different from, and
certainly cannot determine, this Court's ruling.
Even using the Government's theoretical model of a mosaic, it
See, e.g., McGehee v. Casey, 718 F.2d 1137, 1149 (D.C.
Cir. 1983) (recognizing that the "mosaic-like nature of
intelligence gathering" requires taking a "broad view" in order to
. contextualize information) (internal citations and quotations
omitted) .
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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. Sizeable gaps may appear in the
record and may well remain unfilled; each party will attempt to
account for these deficiencies by positing what they think are the
most compelling logical inferences to be drawn from the existing
evidence. Accordingly, that existing evidence must be weighed and
evaluated as to its strength, its reliability, and the degree to
which it is corroborated. In any event, the Government always
bears the ultimate burden of showing by a preponc;ierance of the
evidence that Petitioner's detention is lawful. Just as a criminal
defendant need not prove his innocence, a detainee need not prove
that he was acting innocently. In sum, the fact that the
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Petitioner may not be able to offer neat answers to every factual
question posed by the Government does not relieve the Government of
its obligation to satisfy its burden of proof.
D. Legal Standard Governing Petitioner's Knowledge and
Intent
Petitioner relies heavily on the argument that, assuming
arguendo that he was recruited through an al-Qaida network to train
in Afghanistan, the Government has not proved by a preponderance of
the evidence that he knew that the facilitators, guesthouses, and
training camp that he encountered along the way were associated
with al-Qaida. Instead, Petitioner argues, he decided to travel to
Afghanistan to receive military training, which he considered a
sort of rite of passage, for its own sake. Pet.'s Mot. for J. on
the Record at 3 {Dkt. No. 493] ("Pet.'s Mot.").
This argument raises the important question of what level of
knowledge or intent is required under the relevant caselaw. Given
how central this question is to Petitioner's defense, the Court
will address the legal standard first,8 before evaluating the
evidence offered by the Government to prove its allegations.
Under the standard adopted in this Circuit, the President may
8 On January 6, 2010, at the end of the Merits Hearing, the
parties were ordered to file supplemental briefs on the knowledge
and intent issues and the degree, if any, to which Al-Bihani
addressed them. Order (Jan. 6, 2010) [Dkt. No. 531].
unfortunately, the Court of Appeals had no occasion in the Ai=.
Bihani opinion to address the issues of knowledge and intent.
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detain persons who were part of, or substantially supported,
Taliban or al-Qaida forces or associated forces. Al-Bihani, 590
F.3d at 871-74. Although there is no explicit scienter
requirement, the District Court in Hamlily concluded that this
framework "does not encompass those individuals who unwittingly
become part of the al Qaeda apparatus." Hamlily, 616 F. Supp. at
75. Instead, "some level of knowledge or intent is required," at
least under the membership prong. Id.
First, given the tenor_ of some of Petitioner's arguments it
bears emphasis that the Government is not required to prove that
Petitioner had reason to know specifically that Coalition forces
would enter the conflict in Afghanistan, or that Petitioner had the
specific intent to fight against the United states or its allies.
See, e.g., Pet.'s Mot. at 4. Instead, the knowledge or intent that
must be shown relates to Petitioner's decision to become a part of
or to substantially support al-Qaida and/or the Taliban. Thus,
even a recently recruited, low-ranking Taliban and/or al-Qaida
member who had no reason to suspect the united States' entrance
into the conflict is detainable, so long as the decision to
"function[} or participate[] within or under the command structure
of the organization" was made with some knowledge or intent, and so
long as the individual was functioning or participating within the
command structure at the time of capture. Gherebi, 609 F. Supp. 2d
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at 68-69.
Second, the Government need not show that a petitioner knew or
intended from the moment his journey began that it would end in al­
Qaida and/or Taliban membership. ~ Pet.' s Supp. Brief at 6 (Dkt.
No. 537]. It is both possible and probable that an individual
would obtain such knowledge or form such intent over the course of
a journey, as training and indoctrination are undertaken and
political views are crystallized. The fact that an individual may
have been initially motivated to travel abroad for innocent
reasons, or that an individual's knowledge or intent was less than
clear at the inception of his journey, does not defeat the
Government's case. Instead, it is sufficient for the Government to
prove by a preponderance of the evidence that, at some point before
capture, it is more likely than not that petitioner knew he was
becoming or intended to become a part of or substantial supporter
of al-Qaida and/or the Taliban.
Finally, as this Circuit has explained, albeit in the criminal
context, \\ eel xcept in extraordinary circumstances, (] intent cannot
be proved by direct evidence," and "it is therefore not only
appropriate but also necessary for the [fact-finder] to look at
'all of the circumstances.'" United States v. Haldeman, 559 F.2d
31, 115-16 (D.C. Cir.1976)i see also United states v. Rhodes, 886
F.2d 375 (D.C. Cir. 1989) (citation omitted). The Government need
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not always have direct evidence of a petitioner's knowledge that an
organization is, or is associated with, al-Qaida and/or the
Taliban, or of a petitioner's intent to become a part of or to
substantially support such an organization. In such cases, an
inference of knowledge or intent may be drawn from indirect and
circumstantial evidence. See, e.g., Anam, 2010 WL 58965, at *11.
B. Government Allegations
In narrowing the issues for trial, the parties focused on six
broad factual areas that are in dispute. The Court then heard
arguments and evidence on whether Petitioner (I) was recruited by
an al-Qaida operative and traveled to Afghanistan to join al-Qaida
forces; (2) stayed at al-Qaida guesthouses and knew the guesthouses
were affiliated with al-Oaida; (3) received military training at
al-Qaida training camps and knew the camps were operated by al-
Qaida; (4) served as a bodyguard for Usama Bin Laden; 5) knowingly
served with an al-Qaida unit at Tora Bora and participated in
hostilities against the United States or its alliesj9 and 6) was
, In preparation for the Merits Hearing, Petitioner
identified as a factual issue in dispute " [w]hether Mr. al-Nahdi
ever participated in hostilities against the United States or its
allies." Pet. ' s Stmt. of Main Il:jsues in Dispute 1 9 [Dkt. No.
515]. However, the Court of Appeals' subsequent decision in Al­
Bihani has made clear that the legal standard governing the
President's detention authority under the AUMF is whether
Petitioner was a member or substantial supporter of al-Oaida and/or
the Taliban. Al-Bihani, 590 F.3d at 870-74. While participation
in hostilities is certainly relevant to the legal inquiry into
membership and/or substantial support, it is not controlling.
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captured on or near the battlefield at Tora Bora. Because issues
five and six are closely related, they will be considered together.
1. Recruitment by al-Qaida Operative and Travel to
Afghanistan
The Government seeks to show that it is more likely than not
that AI-Assani was being recruited by an al-Qaida operative when he
decided to travel to Afghanistan, and that his motivation in
traveling there was to fight alongside al-Qaida and/or the Taliban.
It is undisputed that a man named approached Al-Assani
at the Taqwa Mosque, where AI-Assani worked as a chanter, in the
Mukalah region of Hadramout, Yemen. Gov's Statement of Material
Facts Not in Dispute ("Gov's Stmt. of Undisputed Facts") ~ 1. Al­
Assani andlllllllbecame friends, discussing religion, the problems
related to Palestine, and the Russian invasion of Afghanistan.
lIIIIIIencouraged Petitioner to receive military training, which he
agreed to in August 2001. IIIIIIfhen gave AI-Assani 3,000 riyal~
Thus, this issue has been incorporated into the broader discussion
in this section of whether Petitioner was a member or substantial
supporter of al-Qaida and/or the Taliban.
10 The interrogation report from which this information was
gathered states that AI-Assani was given 3,000 Yemeni riyals,
which, according to representations made by the Government at the
Merits Hearing, would have equaled about $20 in 2001. JE 14 at 2.
However, the Government argued at the Merits Hearing that, because
individuals being recruited by al-Qaida are typically given much
more money than this, the Court should infer that the report is
mistaken. The Government asks the Court to conclude instead that
Al-Assani was given 3,000 Saudi riyals, which would have equaled
about $800 in 2001. In essence, the Government asks the Court to
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for travel money, took his passport to obtain the appropriate
visas, and advised him that he would be met at the Sanaa, Yemen bus
station and taken tolllllllllfriend,1IIIIIII ~" 5-8.
The Government alleges, relying principallY on statements made
by other Guantanamo Bay detainees, that _ was "an al-Qaida
recruiter, travel facilitator, and commander in Osama Bin Laden's
55 th Arab Brigade." Gov's Stmt. of Undisputed Facts , 2. According
to intelligence reports, Fahd Umr Abd AI-Majid (AI-Sharif) (ISN
215) stated that he met a man named Salam in Kabul, Afghanistan in
2001 on the "front lines," and that Salam had received all training
available at al-Qaida' s Khaldan and Al Farouq camps. JE 18.n ISN
28 described a Salam Al HadramP~ as having commanded Arab fighters
in the Kabul area. JE 31 at 5. ISN 44 also named a Salam Al
assume the accuracy of that which it sets out to prove. The Court
rejects this assumption. It is the Government's job to introduce
evidence it believes to be probative of its allegation that Al­
Assani was being recruited to join al-Qaida, not to introduce
evidence and then ask the Court to discount it and substitute some
more favorable interpretation of it.
11 Parties submitted one volume of Joint Exhibits, which
comprise the vast majority of evidence presented during trial.
Unless otherwise indicated, citations to "JE" refer to the universe
of Joint Exhibits.
12 The Government explained at the Merits Hearing that
identifying an individual as "AI Hadramiu--as ISN 28 and ISN 44
did--signifies that the individual is from Hadramout, Yemen, which
is where Petitioner new as Salam.
See also Decl. of JE 3 at 3.
Petitioner did not 0
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Hadrami as his recrui~er. JE 33 at 1. He later stated that he met
Salam at the Said Center, a rest area that serviced the Taliban
front lines outside of Kabul, where Salam encouraged him to remain
in Afghanistan and fight with the Taliban. JE 34.
Given this evidence, and considering Salam's role in arranging
Al-Assani's travel to Afghanistan, the Court finds it more likely
than not that the Salam who befriended Al-Assani was an al-Qaida
member active in recruiting young men to fight.
Petitioner argues, however, that none of this evidence
establishes that AI-Assani ever knew of Salam's connection to al-
Qaida. 13 The Government replies that the unusual generosity
exhibited by Salam in arranging Petitioner's travel must have led
AI-Assani to at least suspect that Salam was associated with al-
Qaida. The Government's argument is unpersuasive. First, it is
conceded that the two men considered each other to be friends.
Second, the Government's evidence which has been admitted.
establishes that Salam gave Al-Assani the equivalent of around $20
which, while not insignificant in a country as poverty-stricken as
Yemen, is not so staggering a sum that AI-Assani could have been
13 AI-Assani also questions the reliability of JE 26 and JE
28, which the Government initially used to support the allegation
that Salam was an al-Qaida recruiter. Pet.'s Response to the Gov's
Mot. for J. on the Record at 8-9. Because the Court finds that the
Government has met its burden on this issue through the use of
other evidence, Petitioner's objections to JE 26 and JE 28 need not
be addressed. .
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expected to infer Salam's connection to al-Qaida. Without more
persuasive evidence that AI-Assani knew or suspected Salam's al­
Qaida connection, the circumstances are not suspicious enough to
warrant the inference that he did.
In addition, the record supports Petitioner's claim that he
was motivated to travel to Afghanistan to receive military
training, and not to fight. In 2001, military service was
compulsory in Yemen, but Al Assani had been rejected
He stated before the
Combatant Status Review Tribunal (RCSRT") that he felt training was
"important in coming of age. II Because he could not receive
military training in Yemen, he claims he was persuaded to go to
Afghanistan. JE 35. petitioner's other statements in the record,
including those made at his Administrative Review Board (RARB")
proceeding, are consistent with these statements. JE 36 at 4, JE
14 at 2~ JE 15.
The Government responds that the evidence suggests that Al­
Assani intended to stay in Afghanistan for much longer than would
be necessary to receive training.
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Thus, while the Government has proven that it is more likely
than not that Salam was an al-Qaida recruiter, it has not shown
that Al-Assani knew of the connection when he left for Sanaa in
August 2001, or that AI-Assani' s initial motivation in traveling to
Afghanistan was to fight with al-Qaida and/or the Taliban.'
The parties do not dispute the facts of Petitioner's travel to
Al Farouq, with one exception that will be discussed below. At the
Sanaa bus station, Petitioner met two other men--one of whom was
Petitioner ~-and the three proceeded together to an
apartment where they stayed for several days.
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friend, brought Petitioner his passport and visa for Pakistan and
provided all three men with plane tickets to Karachi, Pakistan.
The three men were also given the name of a contact in Karachi.
Gov's Stmt. of Undisputed Facts `` 9-13.
At the Karachi airport, the three men were met by the contact,
liliiii and traveled with him and three other Yerneni men by taxi to
a Karachi guesthouse. This guesthouse was run by a man named
_ who is currently a detainee at Guantanamo Bay. I.sl.. `` 14­
20. The Government claims, based upon admissions made by Riyadh,
that he is "an admitted mujahadeen [known as "Riyadh the
Facilitator"] who facilitated travel for al-Qaida members and was
an associate of Usama Bin Laden. 1114 IQ... ~ 21.
From Riyadh's guesthouse, the seven Yemeni men took a cab to
the Karachi bus station, where they were met byllllll a Pakistani
,U Petitioner argues that any admissions made by
_ are unrel iable because he was rendered to Jordan an
~e arriving at Guantanamo. Pet'.'s Response to Gov's stmt. of
Material Facts Not in Dispute 1 21. As this Court explained in
Mohammed v. Obama, No. 05-1347, 2009 WL 4884194, at *22-27 (D.D.C.
Dec. 16, 2009) (citing Schneckloth v. Bustamante, 412 U.S. 218, 226
(1973) ), courts apply a "totality of the circumstances" test,
considering "the time that passes between confessions, the change
in place of interrogations, and the change in identity of the
interrogators" in determining whether prior coercion carries over
into a second confession. However, Petitioner has presented no
information on the extent of torture suffered by Riyadh or its
impact on his statements. Without such information, the Court is
not prepared to reject the Government's evidence as unreliable.
Cf. id. Therefore, the Government's evidence stands as unrebutted
and must be accepted as credible.
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man who took them by bus to Quetta, Pakistan. There, the group
separated and AI-Assani, along with his two original travel
companions, rested at a safehouse for a few hours. An .Afghani
youth they met there next took them to the Afghan border, where
they evaded a border checkpoint by traveling on motorcycles, only
to reconvene with the taxi on the Afghanistan side of the border.
rd. " 22-25.
Once in Afghanistan, they traveled to the al-Nebras
guesthouse, arriving after dark. At al-Nebras, AI-Assani and his
companions were required to turn in their bags, passports, money,
and all other fonns of identification, which were inventoried. The
men were told they were supposed to pick up these items when they
returned to al-Nebras after completing their training at Al Farouq.
After a few days at al-Nebras, a bus took AI-Assani and
approximately forty-five other men to Al Farouq. rd." 26-30.
The Government alleges that the fact that Petitioner's travel
was so coordinated and closely controlled, that it was fully paid
for by virtual strangers, and that it was arranged in such a
secretive and evasive manner compels the inference that he likely
knew he was being recruited by al-Qaida. While the Court agrees
that the manner in which Petitioner traveled to Al Farouq is
suspicious, it need not decide whether the Government, as of this
point in the evidence, has produced sufficient evidence to
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establish that it is more likely than not that AI-Assani knew he
was associating with al-Qaida, since it is clear that he became
aware of that connection after arriving at Al Farouq.
2. Guesthouse Stay
The Government produced evidence that AI-Assani stayed in four
guesthouses during the period in question: 1) Riyadh the
Facilitator's guesthouse in Karachi, Pakistani 2} a guesthouse in
Quetta, Pakistani 3) the al-Nebras guesthouse in Afghanistan; and
4) a guesthouse in Kabul, Afghanistan. Petitioner does not deny
that he stayed at these guesthouses, but does dispute whether 'they
were al-Qaida safehouses and, even if they were, whether he knew
it.
The Government argues that these guesthouses differed from
those typically frequented by young Yemeni men traveling abroad,
which resemble youth hostels. ~ Decl. of Dr. Sheila Carapico, JE
53 ~ 4 (describing typical guesthouse).
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public, but were restricted to individuals who either had
connections to al-Qaida or had been brought there by al-Qaida
supporters. JE a at 3.
Ample evidence has been produced in this case to support the
conclusion that the Karachi and al-Nebras guesthouses were al-Qaida
safehouses. 15 ~ Al-Nahdi v. Obama, No. 05-280 (Feb. 24, 2010).
There is far less evidence, however. to support the claim that Al-
Assani knew he was staying at al-Qaida guesthouses.
There are relatively few statements by Al-Assani in the record
concerning his guesthouse stays, especially when compared to
Petitioner Al-Nahdi's account.1& With respect to the Riyadh and
Quetta guesthouses. AI-Assani says little more than that he stayed
15 The Government has provided little evidence about the
Quetta or Kabul guesthouses.
16 On several occasions. the Government:, relies on statements
by Petitioner AI-Nahdi to demonstrate that AI-Assani was staying in
an al-Qaida safehouse and, more problematically, that he was aware
of it. As discussed above, Petitioner must have had some knowledge
or intent to become a part of al-Qaida and/or the Taliban for his
continued detention to be justified. See Hamlily, 616 F. Supp. 2d
at 75. While the Court credits the Government's evidence with
respect to the issue of whether the guesthouses were al-Qaida
safehouses. admissions made by AI-Nahdi as to his personal
knowledge of the guesthouses' operations or experiences while
staying there cannot be considered evidence of Al-Assani' S state of
mind.
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at them. With respect to his stay at al-Nebras, the guesthouse
notorious for housing recruits on their way to AI Farouq, Al-Assani
described how his possessions--including his passport--were taken
and inventoried. He identified the man running the guesthouse as
a man named which matches other intelligence regarding
the al-Nebras guesthouse. JE 14 at 3; JE 20 at 2. He also stayed
there for two days without leaving the house, although it is
unclear whether he felt he was required to remain inside. In one
interrogation, he stated that there were no rules preventing him
from leaving the guesthouse, although on another occasion he said
he was not allowed to come and go from the house at will. JE 14 at
3 i JE 15.1'7 Finally, he stated that no training video or audiotapes
were seen or heard there. JE 14 at 3. While this evidence
provides some support for the inference that Al-Assani was aware of
the al-Nebras guesthouse's connection to al-Qaida, it does not
establish Al-Assani's knowledge by a preponderance.
Merely staying at an al-Qaida safehouse is typically
insufficient to satisfy the detention standard. See Ali Ahmed, 613
17 Petitioner argued at the Merits Hearing that his
statements in JE 14 should be given more weight than those in JE
15, since the latter were tangential to the purpose of the
interview.and because other details in JE 15 indicate some
confusion over Al-Assani's alias. However, JE' 15 also describes a
test conducted by the interrogators of AI-Assani's veracity, which
he passed. On balance, there is no reason to suspect that the
statements captured in this report--while not consistent with those
in JE 14--are less trustworthy.
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F. SUpp. 2d at 6S (finding guesthouse stay insufficient to justify
detention); but see AI-Bihani, 590 F.3d at 873 n.2 (suggesting in
dicta that the ~military's reasonable belief n of a non-citizen's
guesthouse stay alone would "overwhelmingly" JUBtify the
government's detention). Still, the fact that Petitioner willingly
stayed in houses where he was either advised not to go outsid~.or
felt it better not ·to, and where his passport and other personal
belongings were taken and held, adds strength to the inference that
he knew he was associating with al-Qaida, and, in turn, the
inference that he was intentionally taking steps to join al-Qaida' S
ranks. Cf. Razak Ali v. Obama, No. 09-745, 2009 WL 4030864, at *3­
4 (D.D.C. Nov. 19, 2009).
3. Attendance at Al Farouq
AI-Assani does not deny that he spent approximately two weeks
at the Al Farouq training camp in order to receive training on the
Kalashnikov rifle. In addition, Petitioner admitted in
interrogations to having heard Usama Bin Laden speak about jihad at
Al Farouq before the September 11, 2001 attacks. JE 14 at 4; JE 20
at 2. He stated that he knew who Usama Bin Laden was at the time,
as he had seen news reports about him in Yemen. Gov's stmt. of
undisputed Facts `` 38-40. However, Petitioner claims that he was
not aware of Al Farouq's al-Qaida affiliation during his time spent
there. That claim is patently not credible, and the Court rejects
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it.
According to Government experts, Al Farouq was al-Qaida' s
"primary Afghan basic-training facility, providing ideological
indoctrination and [weapons and other] training. n ~, 31. It is
undisputed that Petitioner spent a little over two weeks at Al
Farouq, where he focused on the use and maintenance of small arms,
including Kalashnikov rifles, and physical fitness. ~, 35. He
appears to have had some knowledge of the camp's hierarchy, as he
stated that he was trained by two men--one whose "code name n was
and the other whose name waslllllllll-and identified the
commander of the camp as His statements indicate that
he was assigned to a "unit," in which he and other members were
subjected to a structured training regime beginning every morning
at 3:45 a.m. before being "released on their own." JE 14 at 4.
Even if the evidence leading up to AI-Assani's attendance at
Al Farouq does not clearly establish that he knew he was
associating with al-Qaida, the Court finds that it is definitely
more likely than not that he became aware of that connection while
at Al Farouq. It is simply not credible that he would have
attended the camp, which subjected its trainees to ideological
indoctrination for two full weeks, without realizing with whom he
was deal ing . That Petitioner heard Usama Bin Laden--whom he
recognized--speak about jihad at Al Farouq resolves any remaining
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doubt, especially in light of the way in which Al-Assani was led to
the camp. ~ Transcript of Oral Ruling at 48-50, Allam v. Obama,
No. 04-1194 (D.D.C. Dec. 14, 2009) (concluding petitioner had to
have known Al Farouq was an al-Qaida training camp) .
4. Boayguard for Usama Bin Laden
Having established that it is more likely than not that
Petitioner knew he was associating with al-Qaida by this point, the
next issue in dispute is whether a preponderance of the evidence
establishes he was a part of or sUbstantially supported al-Qaida.
While Petitioner's guesthouse stays and training at Al Farouq alone
might suffice to justify detention, the Government makes far
stronger allegations of membership and substantial support. One of
the Government's key allegations is that AI-Assani served as a
bodyguard for Usama Bin Laden after September 11, 2001.
As its only piece of evidence supporting this important claim,
the Government points to an identification of Petitioner from a
photograph by
identified Al-Assani as one of fifty individuals who served as
Usama Bin Laden's bodyguards, and said that he saw Al-Assani
driving a Toyota pick-up truck with other bodyguards to Tora Bora.
JE 17. These individuals were said to have weapons and to have
received "specialized" training. Id. The Government points out
that Al-Assani admitted to being driven in cars with approximately
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fifty other men to Tora Bora. JE 1~ at 4; JE 21 at 2.
It seems exceedingly unlikely that Usama Bin Laden would, in
the wake of the September 11, 2001 attacks, when he was probably
the most hunted man in the world, calIon an unknown, brand-new
recruit with two weeks of rifle training to serve as his bodyguard.
at *12-14. Moreover, certain
details of identification--such as the statement that
Bin Laden's bodyguards had "specialized training"--do not appear to
fit what is known about AI-Assani. Finally, as Petitioner points
out, there is some question as to· credibility. First,
there is no indication of what personal knowledge he had of who was
concludes that the Government's evidence, an identification
contained in a· single paragraph and made on the basis of a
photograph, does not make it more likely than not that Al-Assani
served as Usama Bin Laden's bodyguard.
5. Role at Tora Bora, Injury, and Capture
The Government claims that Petitioner's conduct after leaving
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Al Farouq and upon arriving at Tora Bora demonstrates that it is
more likely than not that he was a. part of or substantially
supported al-Qaida. Petitioner stated in interrogations that he
and a group of fifty' other men, led by the commander
of Al Faroug, left Al Farouq by car in the middle of his training.
The group stopped for one night at the al-Nebras guesthouse in
Kandahar, and for a second night at a guesthouse in Kabul. OUtside
of Kabul, they were taken to an area with little construction,
where AI-Assani stated he received additional training19 on the
Kalashnikov and on ~long-distance walking" for ten to fifteen days.
Gov's Strnt. of Undisputed Facts ~ 51-52; JE 14 at 4-5.
AI-Assani was then driven to a forested area around Jalalabad,
where _informed the gro~p of the events of September 11, 2001.
Petitioner does not deny that, by this point, he knew that Al
Farouq was "sponsored" by Usama Bin Laden. Gov'S Stmt. of
Undisputed Facts 411 53. After one or two days, the group drove
19 In a sworn declaration submitted by Al-Assani' s counsel,
Brian Spahn, at the Merits Hearing, Mr. Spahn declared that AI­
Assani stated on January 4, 2010 that he did not receive any
additional training after Al Faroug. JE 61. While this Court
agreed to admit Mr. Spahn's sworn declaration, over the
Government's objection, it did so with the understanding that it
would be evaluated for its reliability and credibility, just as any
other piece of evidence would be. Given the lack of detail
supporting Petitioner's last-minute claim, especially when compared
to the detail supporting his previous account, the late hour at
which Petitioner chose to raise this claim, and the lack of
opportunity for the Government to test or respond to this evidence,
the Court will credit the account given in JE 14.
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through Jalalabad to Tara Bora, where they were split into groups
of eight to ten people. JE 14 at 5~
Al-Assani stated in interrogations that his "group leader" or,
according to other accounts, "commander," was Azuber I although
Abdel Kadus remaine~ in charge of the group as a whole. Id. at 5;
JE 21 at 2. AI-Assani gave a detailed description of the
commanders of different camps at Tora Bora, indicating his position
as an al-oaida foot solder. JE 21 at 2-3. He also reportedly
stated that when he arrived at Tora Bora, "positions were already
dug," and that "his g~oup was used to augment the groups already in
place in Tora Bora." 20 Id. at 2.
Of significance is the account of another Guantanamo Bay
detainee,
stated in an interrogation that he was assigned t o _ u n i t ,
and, although he did not name AI-Assani as a member of his unit, he
claimed their role was "to fight against the Northern Alliance" on
the front line of Tara Bora. According tolllllllll each position
on the front line consisted of about fifteen fighters. JE 10 at 3.
20 Petitioner denied being "assigned to augment Taliban and
al Qaida forces already in defensive positions in Tora Bora,
Afghanistan" at his 2005 Administrative Review Board proceeding.
In response to that allegation, he said that his purpose in being
in Afghanistan "was not to be with the Taliban or the al Qaida."
JE 36 at 2. Considering the Government's evidence as a whole,
however, it appears more likely than not that Petitioner knowingly
and intentionally did augment al-Qaida forces at Tora Bora.
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At some point, Azuber told Petitioner that a withdrawal of
troops was taking place from the North. From his location at Tora
Bora, AI-Assani, who was armed with a Kalashnikov rifle,2l watched
people moving below him on the mountains. When the bombing began,
IIIIIIIImoved the group on foot to Pakistan. On the way, they met
up with "other groups of soldiers," and _ h a d them split into
two groups. JE 14 at 5j JE 20 at 2. Al-Assani was injured after
his group was bombed, he was escorted and turned over· to Afghani
forces, and eventually--after over a month of recuperation in a
hospital--was turned over to u.s. custody.22
Petitioner claims that the evidence fails to establish that he
was a part of al-Qaida. In the words ot Petitioner's counsel,
"(b]y the time Mr. Al-Assani learned that al-Farouq was run by al-
Qaida, he had surrendered his passport and his money, and had no
n AI-Assani admitted before the Combatant Status Review
Tribunal that he had a weapon in Tora Bora, but said he had no
bullets. JE 35 at 3. However, Mr. Spahn declared that AI-Assani
stated on January 4, 2010 that he was offered a weapon without
bullets at Tara Bora, but declined. JE 61. For the reasons given
above, the Court will credit Petitioner's prior statement at the
ARB, and not those contained in Joint Bxhibit 61.
22 The Court does not find credible Petitioner's statement
that his leaving Tora Bora was an effort to dissociate himself from
al-Qaida and/or the Taliban. ~ Pet.'s Mot. at 14. Al-Qaida had
begun to retreat from Tora Bora weeks before, and Petitioner left
when his commander, Azuber, told him to, following his instructions
to split into two groups. While it may be true that Petitioner
wanted to flee out of fear for his life, he made no effort to
abandon his position or leave the al-Qaida command structure.
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means of transporting himself out of Afghanistan. Thus, when he
and his training class were taken to Tora Bora, he had no choice
but to go along. He was not willingly accepting and executing
orders." Pet.'s Response to Gov's Mot. for J. on Record at 16.
While it might be true that Al-Assani had a practical motive
in deciding to remain with his group and to accept and execute
Azuber's orders, the legal inquiry remains whether he functioned or
participated within the command structure of the organization, not
why he did BO. In addition, there is some doubt as to whether
Petitioner was truly seeking to flee the country, as there is no
evidence that he attempted to retrieve his passport from al-Nebras
during his stay there after leaving Al Farouq. Indeed, there is
only one indication that Al-Assani ever wanted to retrieve his
belongings: in his 2005 ARB proceeding, he said that he wanted to
go back to get his passport, but never did. JE 36 at 4. In any
event, while abandoning the group might have been dangerous and
difficult, there is no evidence that he made any attempt to do so
or that he had any choice in the matter.
In sum, the Government's evidence supports the conclusion that
it is more likely than not that Al-Assani was both a member of al­
Qaida and executing al~Qaida's orders. After realizing that Al
Farouq was sponsored by Usama Bin Laden. Petitioner continued to
travel under the leadership of camp commander Abdel Kadus. Cf.
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~, 2010 WL 58965, at *11 (finding that voluntary association
with al-Qaida members after leaving Al Farouq supported denial of
habeas petition). He was able to provide concrete details about
the "leaders" or "commanders" at Tora Bora. He--as well as every
other individual in his group--was armed with a Kalashnikov rifle.
He followed Azuber's directions to join groups of varying sizes at
different points in his travel. Finally, he was told in advance
that al-Qaida forces were retreating while he was armed. It is not
credible that the al-Qaida leadership would inform Al-Assani of the
retreat in advance unless he was a part of the organization. 2 ) See,
~, id., at *13 (finding it "telling" that al-Qaida behaved as
though the petitioner were a member) .
In addition, the Court concludes that it is more likely than
not that Al-Assani was following orders when he traveled from place
23 Petitioners claim that Hammamy v. Obama, 604 F. Supp. 2d
240 (D.D.C. 2009), stands for the proposition that a petitioner's
"mere presence" at Tora Bora is insufficient to support detention.
Pet.'s Mot. at 11. To the contrary, in Hammamy, the Court denied
the writ after having concluded that, in light of petitioner's
prior connection to terrorist organizations, the mere fact that his
identity papers were recovered at Tora Bora was SUfficient to
establish his presence there. Because the Court found that Hammamy
was present at Tora Bora, it. concluded that it was more probable
than not that he was part of or supporting Taliban or al-Qaida
forces.
In any event, this case is a far cry from Hammamy. AI-Assani
has not only admitted to his presence at Tora Bora, but the
evidence establishes much more than "mere presence"; it gives a
detailed account of what Petitioner was doing, and with whom he was
associating, at the time.
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to place with Kadus and Azuber. Cf. id. (finding that petitioner
participated within al-Qaida command structure by attending
training camp and following orders from instructors). That armed
al-Qaida leaders would merely "ask" that Petitioner accompany them,
arm him with a Kalashnikov rifle, or assign him to different groups
of armed men without any expectation of AI-Assani's compliance or
of his support in future hostilities is not credible. Cf. Mohammed
v. Obama, No. 05-1347, 2009 WL 4884194, at *11 (D.D.C. Dec. 16,
2009). In~, JUdge Hogan relied in part on the fact that al­
Qaida treated the petitioner "as reliable and as a member" in
concluding that the Government had shown it more likely than not
that he was a member of al-oaida at the time of capture.
See Transcript of Oral Ruling at 51, Allam v. Obama, No. 04-1194
(D.D.C. Dec. 14, 2009). Similarly, al-Qaida provided AI-Assani
with training, permitted him to be in close prOXimity to Usama Bin
Laden, and housed, ted, and armed him throughout his journey to
Afghanistan, travel to Tora Bora, and retreat to Pakistan. When
combined with the Government's other evidence, the fact that
Petitioner was clearly accepted by al-Qaida, at a minimum, as a
substantial supporter of the organization further supports the
conclusion that it is more likely than not that Petitioner
knowingly was a part of or substantially supported al-Oaida.
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IV. CONCLUSION
TO summarize, the Government has met its burden of
demonstrating that Petitioner was recruited by al-Qaida members in
Yemen, that he subsequently traveled--at no cost to himself, and
through al-Qaida-associated guesthouses--to Afghanistan, that he
received military training at al-Qaida's Al Farouq camp, that while
at the camp he became aware of its connection to al-Qaida and Usama
Bin Laden but did not dissociate himself from camp commanders or
al-Qaida, that he left Al Farouq and received further training tram
Al Farouq leaders, that he traveled to Tora Bora under the command
of and _ that he obeyed orders intended to
organize his group into distinct units, and that, after leaving
Tora Bora under_command, he was injured by Coalition bombs
and captured.
First, the Government has established that it is more likely
than not that Petitioner knew he was associating with al-Qa1da.
Petitioner's travel was conducted in a tightly controlled and
clandestine manner, he trained for two weeks at Al Farouq, and he
admits that he knew the camp was sponsored by Usama Bin Laden
before arriving at Tora Bora. Second, the Government has carried
its burden of proof with regard to Petitioner's membership in or
substantial support of al-Qaida. The touchstone inquiry in
determining whether an individual is a part of the Taliban or al­
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Qaida is Uwhether the individual functions or participates within
or under the command structure of theorganization--i.e" whether
he receives and executes orders or directions." Gherebi, 609 F.
Supp. 2d at 68-69. The Government has shown that it is more likely
than not that Petitioner followed orders from the al-Qaida
leadership when he traveled to Tora Bora and, under the leadership
or command of _ followed orders to join certain units of
soldiers and travel with them until he was wounded by Coalition
bombing.
For all the reasons discussed herein, the Court denies the
petition for a writ of habeas corpus.
/s/
February __ I 2010 Gladys Kessler
United States District Judge
Copies to: Attorneys of Record via ECF
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