Al-Adahi v. Bush ( 2009 )

UNCLASSIFIEOIIFOR PUBLIC RELEASE.
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MOHAMMED AL-ADAHI, et al.,
Petitioners,
v. Civil Action No. 05-280 (GK)
BARACK H. OBAMA, et al.,
Respondents.
MEMORANDUM OPINION
Petitioner Mohammed Al-Adahi (UAl-Adahi" or Uthe 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. IJ.
The matter is before the Court on Cross-Motions for Judgment
on the Record [Dkt. Nos. 373 and 379J. 1 Upon consideration of the
1
Two of the five Petitioners, • and
did not file Motions ent
Two others, •
did file such a Motion, but their cases
were stayed during Al-Adahi' s Hearing. Order (June 25, 2009) [Dkt.
No. 430J.
UNCLASSIFIEOIlFOR PUBLIC RELEASE.
, UNCLASSIFIEDIIFOR PUBLIC RELEASE,
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Motions, the Oppositions, extensive oral argument and accompanying
exhibits, and the entire record herein, Al-Adahi's habeas corpus
petition and Motion are hereby granted.
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
I of the Constitution, and that the federal district courts have
jurisdiction to hear such petitions.
The Court did not define what conduct the Government would
have to prove, by a preponderance of the evidence, in order to
justifiably detain individuals -- that question was left to the
District Courts. Id. at 2240 ("We do not address whether the
President has the authority to detain these petitioners nor do we
hold that the writ must issue. These and other questions regarding
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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 [, J are
within the expertise and competence of the District Court· to
address in the first instance.").
In an effort to provide the prompt hearings mandated by the
Supreme Court, many of the jUdges in this District agreed to
consolidate their cases before former Chief Judge Thomas Hogan, for
purposes of streamlining procedures for, and management of, the
several hundred petitions filed by detainees. See Order (July 1,
2008) [Civ. No. 08 -442, Dkt. No. IJ. On November 6, 2008, after
extensive briefing from Petitioners' counsel and the Government,
Judge Hogan issued a Case Management Order ("OMO") 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
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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
Adahi on August 1, 2005, and· amended it on September 29, 2008. The
Petitioner responded by filing Traverses on July 3, 2008, July 7,
2008, and October 10, 2009. After a period of extensive discovery,
both parties filed substantial briefs accompanied by extensive
exhibits.
On April 10, 2009, the Court set June 22, 2009, 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 in
challenging their detention. Al-Adahi's case, including the
Petitioner's live direct and cross-examination on June 23, 2009,
was presented to the Court over a four-day period. On June 25,
Petitioners • instructed their counsel to not
proceed with litigating their Motions.
cases were then stayed until October 1, 2009. Order (June 25,
2009) .
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.
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507, 533-34
evidence.
(2004).
Order, Appendix A at
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It must do so by a preponderance of the
§ II.A (Feb. 12, 2009) [Dkt. No.
283-2] i see also Basardb v. Obama, 612 F. SUpp. 2d 30, 35 n.12
(D.D.C. 2009).
Initially, the Government took the position that Article II of
the Constitution and the AUMF granted the President the authority
to detain individuals. See Gherebi v. Obama, 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. u Resp't's
Statement of Legal Justification For Detention at 2 [Dkt. No. 205] .
Since the change in administration, 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. u Its refined position
is:
[t]he President has the authority to detain persons that
the President determines planned, authorized, committed,
or aided the terrorist attacks that occurred on September
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.
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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 "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.
In Hamlily v. Obama, 616 F. SUpp. 2d 63 (D.D.C. 2009), JUdge
John Bates of this Dis~rict 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. Id. at 74. The court went on to rule that the Government
does not have the authority to detain those who are merely
"substantial supporters" of those groups. Id. at 76. While the
Court has great regard for the scholarship and analysis contained
in both decisions, the Court concludes that Judge Walton's opinion
presented a clearer approach, and therefore will adopt his
reasoning and conclusion. 2
2 The Court agrees with Judge Bates' comment that the
determination of who was a "part of" the Taliban/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
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III. ANALYSIS
A. Evidentiary Presumptions
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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 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. 3
The Government requested that a rebuttable presumption of
authenticity be granted to all the exhibits it intends 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 at 76.
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 Resp. to Resp't's Mot. for J. and Supporting
Mem. at 4 ("Pet.' s Opp' nil) [Dkt. No. 402]. Parties briefed this
issue further in the weeks following the Merits Hearing [Dkt. Nos.
435, 441, and 442]. Assuming for the moment that the evidence can
be admitted consistent with the Geneva Conventions, the Court's
consideration of that evidence leads to the conclusion, as
discussed below, that AI-Adahi is not justifiably detained.
Therefore" it need not and does not reach the question of whether
the interrogation reports must be excluded.
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introduce. 4
Opp'n to the Government's
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Petitioner objected to this request. See Pets.' Joint
Memo. and Supplement Regarding
Presumptions, Hearsay and Reliability of Intelligence Information
at 3-10 ("Pets.' Presumptions Memo.") [Dkt. No. 400]; Pet. Mohammed
AI-Adahi's Brief in Support of Entry of Judgment at 3 ("Pet.' s
Mot.") [Dkt. No. 373]. Given 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. As provided for in the Case
Management Order, the Government's exhibits will be granted a
rebuttable presumption of authenticity and will be deemed authentic
in the absence of any rebuttal evidence to the contrary.
The Government has also requested that a rebuttable
presumption of accuracy be granted to all the exhibits it intends
to introduce. The Petitioner objected to this request as well.
See Pets.' Presumptions Memo. at 3-10. This request is denied for
several reasons.
First, there is absolutely no reason for this Court to presume
4 ordinarily, "the requirement of authentication requires
that the proponent, who is offering a writing into evidence as an
exhibit, produce evidence sufficient to support a finding that the
writing is what the proponent claims it to be." 2 K. Broun,
McCormick on Evidence § 221 (6th ed.).
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that the facts contained in the Government's exhibits are accurate.
Given the extensive briefing and oral argument presented by counsel
during the discovery phase of this case, as well the exhibits
submitted at the merits trial, it is clear that the accuracy of
much of the factual material contained in those exhibits is hotly
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. s
Denial of the Government's request for a rebuttable
5 While the Supreme Court did suggest in Hamdi that a
rebuttable presumption "in favor of the Government's evidence"
might be permissible, 542 U.S. at 534, it did not mandate it. In
Boumediene, the Court clearly left it to the District Courts to
craft appropriate procedures. Boumediene, 128 S.Ct. at 2272.
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presumption of accuracy does not mean, however, that the Government
must present direct testimony from every source, or that it must
offer a preliminary document-by-document foundation for
admissibility of each eXhibit. As the Supreme court noted in
Hamdi, 542 U.S. at 533-34, hearsay may be appropriately admitted in
these cases because of the exigencies of the circumstances.
Finally, while parties always retain the right to challenge
the admissibility of evidence, the Court will be guided by the
Federal Rules of Evidence, in particular Rule 402, providing that
" [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.
B. 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
on the evidence as a whole," to determine whether, when considered
"as a whole," the evidence supporting these allegations comes
together to support a conclusion that shows the Petitioner to be
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justifiably detained. -
Gov's Mot. For J. Upon the Administrative R.
and Mem. in SUPP. at 6 (internal citation omitted) ("Gov's Mot.")
[Dkt. No. 379]. 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. ct. 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,6 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
must be acknowledged that the mosaic theory is only as persuasive
6 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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together just as a
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as the tiles which compose it and the glue which binds them
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
split apart, just as the brick wall will collapse.
A final point must be kept in mind. One consequence of using
intelligence reports and summaries in lieu of direct evidence is
that certain questions simply cannot be answered, i.e., there are
no 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,7 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
7 Petitioner's testimony was closed to the pUblic.
However, the Government was ordered to conduct expedited
classification reviews of the testimony transcript so that it could
be released on the public docket. Order (June 19, 2009) [Dkt. No.
423] . The Government complied, and the transcripts were made
available to the public on June 26, 2009 [Dkt. No. 431]. The
Government also was ordered to videotape the testimony and maintain
a redacted copy of the tape. Order (June 19, 2009). On July 23,
2009, the Government provided notice that it did not comply with
this order, citing uoversight and miscommunication" as reasons that
the testimony was not videotaped. Notice Regarding the Court's
June 19, 2009 Order (July 23, 2009) [Dkt. No. 446]. The following
day, Petitioner filed a Motion for Sanctions [Dkt. No. 447J, which
is pending at this time.
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compelling
evidence.
logical -
inferences to be drawn from
Accordingly, that existing evidence must be weighed and
the existing
evaluated as to its strength, its reliability, and the degree to
which it is corroborated. In any event, th~ 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.
C. Government Allegations
In narrowing the issues for trial, parties focused on six
broad factual areas that were in dispute. The Court then heard
arguments on the existence and extent of (1) Petitioner's familial
ties, (2) his stay at al-Qaida and/or Taliban guesthouses, (3) his
military training at Al Farouq and service as an instructor there,
(4) his employment as a bodyguard for Usama Bin Laden, (5) his
other activities in Afghanistan (including his escape from the
country and later arrest), and, finally, (6) the overall
credibility of Petitioner's version of his travels from his home in
IIIIIIto Pakistan, Afghanistan, and his flight back to Pakistan.
1. Familial Ties and Travel to Afghanistan
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There is no question that-
the record fUlly
Government's allegation that Petitioner had close familial ties to
supports the
prominent members of the jihad community in Afghanistan. JE 28;8
b(1), beG)
JE 55; JE 18; JE 40; Tr. at 11, 17 (June 23, 2009).
Tr. at 11
(June 23, 2009). Although the Government alleges that Al-Adahi has
presented inconsistent and therefore unreliable reasons for this
Tr. at 22 (June 23, 2009); JE
13 (citing Amani's back problems and visit to husband as reasons
for trip); JE 15 at 1 (same); JE 33 at 2, 5 b(1)
b( 1)
The two reasons are hardly inconsistent with each
other.
b(1), b(6)
From her home in had entered into an arranged
marriage with b(1), beG) She and her
brother, Petitioner, then traveled to Kandahar to unite the
recently wedded couple and to attend a celebration of the
8 Parties submitted two volumes 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.
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marriage. 9 Tr. at 9 (June 24, 2009).
_
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appears to have been a prominent man in Kandahar. •
b(1), b(6)
b(1), b(6)
JE 28 at 3; Tr. at 15-16 (June 24, 2009) (Al-Adahi
"believe[d]" thatllllllllfought the Soviets, but was not told that
by IIIIIIII himself) . The Government alleges' that _ was
b(1), b(6)
involved at a high level in al-Qaida operations,
b(1), b(6)
see JE 18 at 4-5; JE 40 at 1
(alleged to be Bin Laden bodyguard); Gov. Mot. at 9 -1 0 • 10 Further,
is described as being "among the jihad personnel from _ " JE 55
at 4. It is not clear if this description is based on statements
f r o m . or Al-
Adahi "doubts" that _ was a Bin Laden bodyguard, but
acknowledges that he was "from mujahidin [sicl." Tr. at 21 (June
23, 2009).
The celebration attended by Petitioner Bin Laden's house
was for men only. The women celebrated at another venue. Tr. at
11 (June 24, 2009).
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The Government suggests that their travel pattern mimics that
of other al-Qaida-recruited j ihadists who were traveling into
Afghanistan to participate in battle against the united States.
Gov. Mot. at 11 (describing arrangements as Uhighly unusual" and
suggestive of "a degree of secrecy and operational tradecraft");
id. at 14-15. To buttress its argument, it points to the
The Government infers that these
arrangements indicate Al-Adahi's willingness to be recruited by al­
Qaida, as well as _ _ status as a member of that organization.
Gov. Mot. at 11, 13.
The inference that _ _ was affiliated with al-Qaida is
strongly supported by the circumstances of the wedding celebration
11 The exact details of this exchange are not totally clear,
but the overall narrative remains the same. See Tr. at 14-15 (June
23, 2009); JE 28 at 4; JE 33 at 3. --­
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that took place. It is undisputed that Usama Bin Laden, the
founder and leader of al-Qaida, hosted and attended •
wedding reception in Kandahar, Tr. at 11 (June 24, 2009); JE 51 at
2-3. At the celebration at Bin Laden's compound, as he was
escorted around the event by a friend of • Al-Adahi was
introduced briefly to Bin Laden. Tr. at 11 (June 24, 2009); Tr. at
17, 20-21 (June 23, 2009); JE 51 at 4.
A few days later, Al-Adahi met Bin Laden again and the two
chatted briefly about religious matters in Yemen. Tr. at 20-21
(June 23, 2009); JE 49 at 4. In his testimony, the Petitioner
insisted that such a meeting with Bin Laden was common for visitors
to Kandahar. Tr. at 24-25 (June 24, 2009); JE 49 at 5. The
Government interprets the access to Bin Laden, as well as the
relationship to _ a n d _ b r o t h e r , an alleged bodyguard
for Bin Laden, as part of the evidence that "Al-Adahi was part of
the inner circle of the enemy organization al-Qaida." Resp't's
Opp'n to Pet. (ISN 33) Mohammed Al-Adahi's Br. in Supp. of Entry of
J. at 3 ("Gov. Opp'n") [Dkt. No. 408].
The Government concedes that Al-Adahi's family situation is
not, in and of itself a basis for his detention. What the
Government argues is that the existence of these family connections
to Bin Laden strengthen other, more serious allegations, such as
Petitioner's training and service as a bodyguard. These
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connections, according to the Government, demonstrate that Al-Adahi
was an al-Qaida insider whose brother-in-law was facilitating his
rise up the ranks of the al-Qaida organization.
While it is true that Petitioner's familial ties to usama Bin
Laden may suggest that he had access to the leadership of al-Qaida,
such associations cannot prove that he was a member of al-Qaida's
"armed forces." Gherebi, 609 F. Supp. 2d at 70-71. Accordingly,
his relationship tollllilland attendance at the wedding must not
distract the Court from its appropriate focus--the nature of Al­
Adahi's own conduct, upon which this case must turn.
2. Guesthouse Stay
The Government claims that AI-Adahi stayed at al-Qaida and/or
Taliban guesthouses during his stay in Afghanistan in 2001. It
points specifically to his admission that he stayed at the al­
Nebras guesthouse for one night. Tr. at 23 (June 23, 2009); JE 27;
JE 52. In addition, the Government points to AI-Adahi's own
statements in arguing that _ home was a guesthouse that
sheltered mujahideen and men involved in AI-Wafa. Gov. Mot. at 12­
13; JE 28 at 3; JE 16 at 1; JE 19 at 2. AI-Wafa was a Specially
Designated Global Terrorist Entity that ostensibly operated as a
charity. Exec. Order No. 13,224, 66 Fed. Reg. 49,079 (Sept. 23,
2001); JE 6 at 1.
Petitioner counters that 1IIIIIIIIhome was not identified by
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the Government in its background declaration as being a guesthouse
operated by either al-Qaida or the Taliban. Cf. JE 5.
Significantly, there is credible evidence in the record
b(1), b(6)
demonstrating that Petitioner stayed in home, which
appears to have been a separate structure from any guesthouse that
JE 33 at 4.
Other than this admission about al-Nebras and the argument
about his brother-in-law's home, the Government points only to the
JE 39 at 3. The
b(1), b(6)
allegation was based on
The guesthouse evidence, like that of Al-Adahi' s family
12
The first page of the interro ation report ~
. . tion indicates that" was shown allllllllllll
JE 39 at 1. Al-Adahi is On ~ee of
ort " goes on to describe ~son""'ina
marked \\ [ISN 33] . rd. at 3. ; - . is not mentioned
/I
• h f h • • • - _ tI· ...
5, 6
I
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connections, is offered as a tile in the Government's mosaic. The
Government recognizes that in this case the guesthouse evidence is
not in itself sufficient to justify detention. The Court credits
Al-Adahi's repeated admissions of his one-night stay at al-Nebras,
but cannot rely on b(1), b(6) vague and uncorroborated statement
about his meeting with AI-Adahi at an unnamed Kandahar guesthouse
and his questionable _identification of AI-Adahi. 13
3. Al Farouq
The Government's central accusation -- that Al-Adahi attended
al-Qaida's Al Farouq training camp in or around August of 2001 -­
is not disputed by Petitioner; in fact, he admitted to it during
his t~stimony. Tr. at 23-24 (June 23, 2009) (admitting attendance
at Al Farouq for one week). The critical issues that divide
parties are the significance of Petitioner's brief attendance, and
whether or not AI-Adahi served as an instructor at Al Farouq.
a. Attendance at Al Farouq
b(1), b(6)
13 credibility has been called into question by this
Court and other courts in this District. See Ali Ahmed v. Obama,
OS-cv-1678, classified memo op. at 13-14 (D.D.C. May 4, 2009) [Dkt.
No. 211]. On May 22, 2009, the Government submitted a memorandum
and voluminous appendix of exhibits in an effort to rehabilitate
b(1), b(6) reliability as a witness. The Court reviewed the
Government's submission, and agrees t h a t _ c a n n o t be written
off as unreliable in all instances; however, his troublesome record
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Again, there is no dispute that AI-Adahi trained at Al Farouq
for somewhere between seven and ten days. Id.; JE 26 at 4 (ten
days); JE 52 at 2 (about seven days); JE 27 at 3 (seven days).
During several interrogations, 14 Al-Adahi gave detailed descriptions
of the training regimen and layout of the camp, identified other
detainees as trainers ( i n c l u d i n g _ , JE 26 at 5; JE 52 at 2,
14 Petitioner's counsel argues that all ex parte statements
made by Petitioner must be excluded from the record. Pet.'s Mot.
at 18 -20. They maintain that because Petitioner was represented by
counsel as of February 7, 2005, and all interrogations after that
date were not consented to by counsel, Constitutional and ethical
rules require that evidence from those interrogations be excluded.
Id.The Court concludes that the ex parte statements are
admissible for the following reasons. First, under Supreme Court
and Court of Appeals precedent, only defendants in the criminal
context can claim Sixth Amendment protections. Montejo v.
Louisiana, 129 S.Ct. 2079, 2085 (2009) (stating that Sixth
Amendment "guarantees a defendant the right to have counsel at all
'critical' stages of the criminal proceedings.O) (emphasis added);
United States v. Sutton, 801 F.2d 1346, 1365 (D.C. Cir. 1986)
(finding that right to counsel attaches "only after the initiation
of 'adversary judicial criminal proceedings, e.g., formal charge,
I
preliminary hearing, indictment, information, or arraignment.").
Petitioner is not involved in a criminal proceeding, and thus the
Sixth Amendment does not apply. Cf. Coleman v. Balkcom, 451 U.S.
949, 954 (1981) (Marshall, J., dissenting from denial of
certiorari) .
Second, Petitioner argues that the Government's conduct
amounts to a violation of ethical rules. The interrogators in this
case were not the attorneys representing the Government in habeas
litigation; rather; they were agents conducting an investigation.
There is no evidence that Government attorneys controlled or guided
interrogations of Al-Adahi. Consequently, there were no ethical
violations. See United States v. Lemonakis, 485 F.2d 941, 956
(D.C. Cir. 1973); Sutton, 801 F.2d at 1366.
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and admitted that he received training while there.
His motives for going to Al Farouq cannot be determined with
the same certainty. In his testimony, Al-Adahi claims that he
sought general weapons training and "Islamic education." Tr. at
23-24 (June 23, 2009). After having attended his sister's wedding
reception, and with time off from his job inilllllland having no
particular plans about what to do next, he portrayed himself as
being willing to explore the region and try something new. The
Government attempted to link AI-Adahi's attendance to his alleged
ideological conviction in jihad against the United States. However,
Al-Adahi resisted being portrayed as a supporter of war against
America, and repeatedly denied "support [ing] these acts [of
jihad]." Tr. at 19 (June 24, 2009); see id. at 17-21.
Al-Adahi claims that he pursued training at Al Farouq to
satisfy "curiosity" about jihad, and because he found himself in
Afghanistan with idle time. JE 26 at 5; cf. Tr. at 22-23 (June 23,
2009) (stating that he did not know about Al Farouq until he
arrived at al-Nebras, and attended camp to learn about Islam and
weapons). It is important to observe that Al-Adahi's understanding
of the term "j ihad" does not seem to equate to war against the
United States. See Tr. at 21 (June 23, 2009). For instance, in a
b(1 )
-22­
b(1 ) -
JE 26 at S;see JE 28 at 3 (where
Petitioner explains mujahideen to mean Uthose that fought against
the Russians and then later fought with the Taliban against
Massoud) .
Petitioner insists that he did not attend the camp to become
part of jihad, and that the circumstances of his departure support
this position. After seven to ten days at Al Farouq, the camp
leaders expelled AI-Adahi for failing to comply with the rules.
b(1 )
Tr. at 24 (June 23, 2009); JE 52 at 2.
b(1 )
JE 26 at 4 - 5 . In
Petitioner's view, any affiliation with or substantial support of
al-Qaida that could have been established based on his attendance
at Al Farouq was destroyed by this expulsion. Pet.'s Mot. at 44.
The Government counters that the circumstances of his
departure, in addition to his attendance, actually help justify
detention. AI-Adahi was ordered to leave, and returned to Kandahar
to stay with _ _ again. He did so despite the fact that,
according to AI-Adahi himself, individuals expelled from Al Farouq
for rules violations were generally considered spies, and severely
punished. JE 26 at 4; JE 52 at 2-3. Suspected spies, the
Government infers from another detainee's experiences, were treated
harshly. See Al Ginco v. Obama, No. OS-cv-1310, 2009 WL 1748011,
at *3 (D.D.C. June 22, 2009) (describing Government's concession
. -23­
that suspected spy was imprisoned and tortured by Taliban). In
this case, Al-Adahi was spared punishment because of his
relationship with his brother-in-lawllllllll See JE 52 at 2.
The Government argues that the clemency extended to Al-Adahi
demonstrates that he continued to be a member of the organization,
and was being protected by his powerful brother- in-law _ See
JE 52 at 2 (reporting that prior to expelling Petitioner, camp
leadership notified 1IIIIIIII Al-Adahi, it notes, was even
permitted to return to Kandahar and stay with _ who allegedly
housed al-Qaida fighters. This, the Government argues,
demonstrates that the organization had not turned its back on
Petitioner at all, much less in the brutal way that it had expelled
and tortured Ginco. However, even if AI-Adahi's expulsion was
b(1), b(6)
handled with uncommon leniency because of status, this
fact demonstrates at most that Al-Adahi was being protected by a
concerned family member; it most certainly is not affirmative
evidence that Al-Adahi embraced al-Qaida, accepted its philosophy,
and endorsed its terrorist activities.
For these reasons, under the analysis in Gherebi, Petitioner
cannot be deemed a member of the enemy's "armed forces. II See
Gherebi, 609 F. Supp. 2d at 68-69. Al-Adahi was expelled from Al
Farouq after seven to ten days at the campi as discussed below, the
Government has not established that he did anything to renew
-24­
connections with al-Qaida and/or the Taliban. He did not, by
virtue of less than two weeks' attendance at a training camp from
which he was expelled for breaking the rules, occupy "some sort of
'structured' role in the 'hierarchy' of the enemy force." rd.
Finally, Petitioner's demonstrated unwillingness to comply
with orders from individuals at Al Farouq shows that he did not
" , receive [] and execute[] orders' from the enemy's combat
apparatus." rd. at 69. AI-Adahi attended the camp briefly, and
was expelled for his refusal to take orders. Therefore,
Petitioner's admission that he trained at Al Farouq is not
sufficient to carry the Government's burden of showing that he was
a part, or substantial supporter, of enemy forces. Cf. Al Ginco,
2009 WL 1748011, at *4 (relationship with al-Qaida may be
"vitiated" by intervening events); id, at *5 ("To say the least,
"
five days at a guesthouse . . combined with eighteen days at a
training camp does not add up to a longstanding bond of
brotherhood.") .
b. Instructor at Al Farouq
The Government relies on a statement from one other detainee,
as well as several pieces of circumstantial evidence, to argue that
AI-Adahi not only attended Al Farouq, but also served as a trainer
at the camp.
As its most direct piece of evidence supporting this claim,
-25­
-SECRET­
b(1), b(2), b(6)
the Government points to a statement made by
b(1), b(2), b(6)
that he could identify ISN 33 by his
b(1 )
kunya, • because
b(1 ) 15
JE 29 at 1; JE 38 at 5. A
significant problem with this testimony is that there is no other
evidence placing Al-Adahi in Afghanistan prior to July of 2001.
Additionally, when he was later
ISN 33, _claimed the man's name was whose kunya
JE 101 at 2; cf. JE 104 at 2 (reporting that
detainee uninvolved in this case had a Saudi uncle
who clearly was not same man as Al-Adahi). The Government claims
this is simply a mis-identification. When coupled with the early­
2000 date given by _ in an earlier statement, the mis­
identification casts serious doubt on the accuracy of his
statements.
Petitioner insists that his only travel out oflllllllPccurred
in July of 2001, when he escorted his sister to Kandahar. In
lS In August of 2003, _provided a physical description
who he claimed was a "chief trainer." JE 102 at 1.
-26­
support of this position, -
he presents documents
JE 71, where he had worked for about 20 years
from IIIIIIII
before departing for Afghanistan, JE 13 at 1. The documents
purport to show that Al-Adahi requested six months of non-paid
16
leave on July 9, 2001. Id. at Attachment B. They also purport
to show that he was on the company's payroll in June of 2000 and
April of 2001, id. at Attachments C, E; that he was eligible for an
annual bonus for 2000, id. at Attachment D; and that he appeared on
a list of employees whose staff allowances were not subject to
retirement deduction in 2000, id. at Attachment F. Each document
was signed, and many were stamped. Id.Petitioner has represented that they are authentic documents,
based chiefly on the declaration of- an employee at the
National Organization for Defending Rights and Freedoms (UHOOD") .
.Pet. ' s Ex. (UPE") 2._ reports that he delivered counsel's
request for these documents to the via a
relative of Al-Adahi' s, and then emailed counsel the documents
contained in Joint Exhibit 71. PE 2 at 2.
The Government objects to the reliability of the documents.
It points out several mis-translations of key dates, including one
16 In what appears to be the only instance in the record
to_'
where Al-Adahi veered from his story that he intended to spend an
extended period of time in Afghanistan, he told interrogators in
2006 that Uhe was only to stay one day [in Afghanistan] and return
JE 25 at 2.
-27­
-
where the company cut ties with Al-Adahi because of his inclusion
on a February 2001 list of Guantanamo Bay detainees. JE 71 at
Attachment A. Because the facility was not detaining suspects in
the War on Terror at that point, the Government argues that the
accuracy of the documents cannot be relied upon.
The evidence is problematic for a
number of reasons. First the Petitioner, has not asked for and
does not start with a presumption of authenticity for the documents
he produces. Second, there are gaps in the chain of custody of
these documents. Third, it is unclear who entered the information
contained in them, and whether such information was entered
contemporaneously. Fourth, they contain factual and/or translation
errors--such as the statement about the February 2001 list of
Guantanamo Bay detainees--that raise serious doubts about their
accuracy. In short, they do not prove that Petitioner was not in
Afghanistan in early 2000 whenllllllsays he was.
Despite this conclusion, it is still difficult to credit
_ _ assertion that AI-Adahi was at Al Farouq in January or
February 2000. AI-Adahi's consistent statements to interrogators,
as well as his in-person testimony during this proceeding, all
place him in Afghanistan no earlier than July of 2001. The
Government has presented no evidence other than _ c o m m e n t to
contradict this timeline. Instead, it suggests that AI-Adahi is·
-28­
unreliable and manipulative at times, and therefore his statements
cannot be accepted as to the commencement of his time in
Afghanistan.
This argument is difficult to credit in full. The Government
relies heavily on Al-Adahi/s inculpatory admissions. It cannot
have it both ways, i.e" when he says something that supports the
Government's position he should be believed, but when he says
something that contradicts the Government's position he is a liar.
Finally, it is an assertion that is not backed up by facts: there
is no evidence in the record that Al-Adahi was involved in activity
related to al-Qaida and/or the Taliban before July of 2001.
Without more, the Court cannot rely on _ s t a t e m e n t . l ?
Further undermining the reliability ofillllllllcomments, the
record contains evidence that IIIIiI suffered from "serious
psychological issues." JE 29 at 1; Pet./s Mot. at 17-18. The
Government itself has expressed skepticism about the value of
_ statements, and noted his attempts to manipulate other
detainees into undermining intelligence efforts. PE 4. For all
these reasons, the Court concludes that his identification of Al-
I? It bears mentioning t h a t _ retracted his allegations
against Al-Adahi in two separate documents. JE 81; JE 82. The
recantations are somewhat generic, and inconsistent with each
other. Their main impact is not to prove one version o f ~
account right or wrong, but to suggest that his statements about
AI-Adahi are scattered, difficult to interpret, and not probative
of anything.
-29­
Adahi as a trainer is not reliable independent evidence that
Petitioner occupied that role.
The Government maintains that _ testimony is accurate
when it is considered in light of AI-Adahi's intimate knowledge of
Al Farouq's operations and recruits. In several intelligence
reports, b(1 )
JE 52 at 3; JE 26 at 5, b(1 ) JE
b(1 )
52 at 2, id. at 1-2,_
b( 1) id. at 3.
This knowledge, the Government argues, could only be possessed by
a person who was entrusted with a supervisory role in the camp.
The Government is not correct. AI-Adahi's detailed knowledge
of camp routine could well have been developed during his seven-to­
ten-day stay there. Similarly, the information that he provided
about other recruits could have come from conversations with them
about their prior travels and future plans. For instance, the fact
that he was familiar with the routines followed by the Africans may
prove only that AI-Adahi was observant; moreover, all of AI-Adahi' s
descriptions were of their training habits only, which he could
have observed from afar. Id. Though the Africans did not speak
Arabic, Petitioner had access to them at "the mosque, chow hall
area and sometimes at fitness training," where non-verbal
communication could have taken place. Id. . The Government' s
-30­
corroborative evidence on this point is highly speculative, and
does not confirm b(1), b(6) • ubious allegation.
For all these reasons, the Court finds that the Government has
not established that Al-Adahi was a trainer at Al Farouq.
4. Bodyguard for Usama Bin Laden
To establish its allegation that Al-Adahi was a bodyguard for
Bin Laden, the Government makes an argument similar to its
contention that Petitioner was an instructor at Al Farouq. It
offers what it calls "direct" evidence from another detainee that
Al-Adahi did security work for Bin Laden, and attempts to
substantiate that evidence by pointing to Al-Adahi's familiarity
with other Bin Laden bodyguards. The Government does not meet its
burden on this point.
The principal evidence to support this allegation comes in the
b(1), b(2), b(6)
form of
b(1), b(6)
JE 35 at 1-2.
-31­
rd. There is absolutely no
other mention in the record of Petitioner's involvement with a
Taliban prison, except for his denial of this accusation during his
testimony. Tr. at 31-32 (June 23, 2009).
Although the intelligence reports do not mention whether
b(1), b(2), b(6) accounts
are lengthy and detailed, which are two important indicia of
reliability. Nonetheless, the witness himself suffers from serious
credibility problems that undermine the reliability of his
statements. JE 57 at 1-4 (outlining psychological problems and
self-harm incidents) i JE 75 (independent assessment of medical
records); JE 76 at 3, 5 b(1), b(6) report of torture by Taliban,
and emotional problems brought on by father); JE. 91 (containing
-32­
'aLI.. &!
August 2005 admission bylllllllllthat he lied in past, and promise
that he will not lie again). What is equally worrisome is that
before ~made the above statements, interrogators had
expressed concern that he was being manipulated by another
detainee. JE 87 at 2; before being placed next to that detainee,
_ had never made any of the claims that he made to
interrogators, including the accusation against AI-Adahi. Id.
Further, the Government's corroborative evidence does little
to compensate for the deficiencies specified above. There is
Similarly, there is evidence that Al-Adahi had a Casio watch when
captured, JE 45 at 3, which the Government argues is a telling
piece of al-Qaida paraphernalia. Gov Mot. at 16-17.
The Government asks the Court to infer that because 1IIIIIIII
b(1 )
at some point during his
credible.
That confirmed detail, in turn, would strengthen the reliability of
b(1), b(6)
The inference simply does not
make sense--or in the words of a noted legal philosopher, "that dog
-33­
5
won't hunt. 1/18
A seemingly stronger argument is made by reference to AI­
Adahi's description of other Bin Laden bodyguards. In a 2008
interrogation, Petitioner provided biographical sketches of a
number of men who he claimed were Bin Laden bodyguards. JE 51. In
all, he provided similar information for 12 bodyguards. Id. at 4­
8. In the Government's view, this familiarity with Bin Laden's
protectors suggests that AI-Adahi knew these men well, and worked
closely with them. It argues that such a conclusion, if true,
would corroborate b(1), b(6) account.
The Government's position has some appeal. AI- Adahi does
provide factual details about the other bodyguards that, on the
surface, seem to indicate more than a passing familiarity with the
men. For instance, one man, • had "fat thighs
but was quick." Id. at 6. Another knew how to read, write, and
speak English. Id. at 5. These are the sort of personal details
that one does not usually learn about during a casual meeting;
rather, they suggest a closer relationship.
The Court ultimately cannot credit this evidence as sufficient
corroborative information to help carry the Government's burden.
Upon careful analysis, the biogra phical ske tches of the alleged
18 Needless to say, • are
hardly unique items, even in
-34­
- - --- . ............
bodyguards are not as significant as the Government portrays them
to be. First, it is not clear from the intelligence report which
parts of the sketches were provided by Petitioner and which were
conclusions inserted by intelligence officials. Second, in many
cases, AI-Adahi (if he was the source of all of the information)
knew no more than a man's hometown, general familial relationships,
and physical attributes. Given the length of his stay Withilllllll
and the fact that he met some of the men on more than one occasion,
he could have assembled this information, along with the more
idiosyncratic descriptions above, based on informal interactions
with them, especially since so many of them were from Taiz. It
need not be the case that the only reason AI-Adahi could have come
across this evidence was because he shared bodyguard duties with
them.
Because b(1), b(6) account of AI-Adahi's activities is
undermined severely by the witness's psychological problems and
checkered history of reliability, the account cannot stand on its
own to carry the Government's burden. The Government's use of
speculative evidence about b(1 ) does
little to shore up b(1), b(6) statements. Finally, Petitioner's
familiarity with other bodyguards does not, without more, compel
the conclusion that he knew the men as a result of his service as
a Bin Laden bodyguard.
-35­
5.
Following his brief
-
Post-Training Activities
period of training, the Government
contends that Petitioner engaged in activities that demonstrate a
continued commitment to al-Qaida. The Government marshals pieces
of circumstantial evidence to support its allegations that after
training, AI-Adahi fought for al-Qaida, stayed in the company of
al-Qaida fighters, and then was arrested on a bus while fleeing
from Afghanistan to Pakistan with al-Qaida soldiers.
First, the Government alleges that Al-Adahi participated in
battle as an al-Qaida fighter. The Government has no statements or
confessions to support its allegation that Al-Adahi fought; rather,
it builds its case by pointing to inconsistencies in AI-Adahi's
versions of the events that led up to his capture, as well as
inferential evidence that suggests terrorist conduct. In the
absence of any affirmative evidence of this allegation, the
Government argues that AI-Adahi's travel pattern during September
of 2001 closely tracked the location of several battles involving
al-Qaida forces. See Gov. Opp'n at 3-4. Cf. JE 4 (detailing
location of battles); PE 5.
The Government argues that AI-Adahi's "cover story"--that he
was fleeing Afghanistan as quickly as possible after bombing of the
region--rings hollow. It points to his general lack of credibility
in other areas, including his explanation of an injury that he
-36­
& &
suffered while fleeing, to cast doubt on his version of events.
Also, the Government notes Bin Laden's edict that men must stay in
Afghanistan and wage jihad as evidence of Petitioner's reason for
staying in the country and fighting. JE 55 at 4.
The Government pointed to several accounts Petitioner offered
about how he suffered an injury to his arm and leg before being
captured. However, each account included the same central detail
that he sustained the injury after falling from a motorcycle in
Kandahar. See JE 13 at 2; JE 33 at 6i JE 15 at 2; JE 14 at 1. One
version of the story blames the accident on driving too fast and
hitting a cart, JE 15 at 2i a second version i n v o l v e s _
b(1 )
JE 33 at 6; in a third
telling, Al-Adahi fell off of the vehicle while attempting to flee
Kandahar, JE 13 at 2. Yet another version has Petitioner slipping
off the motorcycle. JE 14 at 1. According to the Government's
reasoning, these slight variations, together with his "diplomatic"
expulsion from Al Farouq and arrest on a bus with Taliban fighters,
indicates that his motorcycle "cover story" conceals the truth that
he was injured in battle. Se~ Gov. Mot. at 20.
It is correct that some minor details in the motorcycle story
are not described identically in each interrogation, an~ this may
cast doubt on precisely how Al-Adahi was injured. Nonetheless, the
Government provides only speculation to resolve that doubt,
-37­
a is
contending that his travel pattern and association with Taliban
fighters mean that Petitioner took up arms. Such a serious
allegation cannot rest on mere conjecture, with no hard evidence to
support it. 19
Unable to prove the more serious allegation of actual
participation in combat, the Government cannot rely solely on what
is only associational evidence about Al-Adahi's stay at b(1), b(6)
and arrest in the company of individuals rumored to be part of the
Taliban. Such evidence is not sufficient to carry the Government's
burden.
First, the Government appears to pin its associational
evidence that Petitioner was captured while traveling in the
company of Taliban fighters on a statement made by Al-Adahi that
\\ [a] fter his capture, [he] heard that there were members of the
Taliban on the bus." JE 14 at 2 (emphasis added) .20 This second-
level hearsay suggests that Al-Adahi did not know the passengers'
identity before boarding, and that the information was passed on to
him by an unknown source. Second, it is not clear what type of
19 It must be emphasized that the Government had no evidence
from anyone who claimed to have seen or claimed to have even heard
that Al-Adahi was involved in combat activities.
20 During an earlier bus ride, from Kandahar to Khost, Al-
Adahi reported that he rode with "wounded Taliban soldiers." JE 14
at 3. He departed that bus at Khost and boarded a bus for Miram
Shah. He was captured during or after this bus ride.
-38­
bus--public or private--Petitioner boarded in fleeing Afghanistan;
moreover, there is no evidence that he sought to join or was
already part of a band of fighters fleeing the region. See JE 14
at 2 (describing bus trip and arrest on bus). Further, when he was
b(1 )
arrested on the bus by Pakistani authorities, 21
b(1 )
and was unarmed.
JE 98 at 1; JE 33 at 7. He appeared to be attempting to escape the
chaos of that time by any means that he COUld.
The Government's allegations regarding AI-Adahi's post-
training activities are significant because they provide context to
Petitioner's admission about training. In short, his conduct after
training at Al Farouq does not demonstrate that AI-Adahi took any
affirmative steps to align himself with al-Qaida. The record shows
that he returned to b(1), b(6) house for a few weeks, attempted to
flee Kandahar, injured himself and received treatment, and then
again made efforts to escape Afghanistan. The Government offered
21 In another recounting of his story, AI-Adahi boarded the
bus from Khost, and headed toward Miram Shah with Arabs and
Pakistanis (the same groups he said were on the bus in JE 98). JE
14 at 3. However, the arrest took place in a "large, modern city,
with a large market area;" Petitioner had walked there after
leaving the bus several hours earlier. Id. He stated that he had
his ass ort with him.
Th~s 1nconsis ency
underlying fact of his arrest
is not in dispute. Cf. JE 14
-39­
no substantive evidence that he continued on a course of
substantial support for al-Qaida. Instead, it appears that once
his break with the group was initiated by al-Qaida, Al-Adahi
accepted his expulsion and never attempted thereafter to become a
member or supporter of al-Qaida, or to further its activities in
any way.
IV. CONCLUSION
When all is said and done, this is the evidence we have in
this case. AI-Adahi probably had several relatives who served as
bodyguards for Usama Bin Laden and were deeply involved with and·
supportive of al-Qaida and its activities. One of those relatives
became his brother-in-law by virtue of marriage to his sister,
I11III AI-Adahi accompanied his sister to Afghanistan so that she
b(1), b(6)
could be with her husband and
_. The wedding celebration was held in Bin Laden's compound
and many of his associates attended. At that celebration,
Petitioner was introduced to Bin Laden, with whom he had a very
brief conversation. Several days later, the Petitioner had a five­
to-ten-minute conversation with Bin Laden.
Thereafter, Petitioner stayed at an al-Qaida guesthouse for
one night and attended the Al Farouq training camp for seven to ten
days. He was expelled from Al Farouq for failure to obey the
rules. This training represents the strongest basis that the
-40­
Government has for detaining Al-Adahi. However, under the AUMF and
the standards described in Gherebi, Petitioner's brief attendance
at Al Farouq and eventual expulsion simply do not bring him within
the ambit of the Executive's power to detain.
After his expulsion, Al-Adahi returned to the home of his
sister and brother-in-law for several weeks and then traveled to
other places in Afghanistan because he had no other obligations.
Like many thousands of people, he sought to flee Afghanistan when
it was bombed shortly after September 11, 2001.
There is no reliable evidence in the record that Petitioner
was a trainer at Al Farouq, that he ever fought for al-Qaida and/or
the Taliban, or that he affirmatively provided any actual support
to al-Qaida and/or the Taliban. There is no reliable evidence in
the record that Petitioner was a member of al-Qaida and/or the
Taliban. While it is tempting to be swayed by the fact that
Petitioner readily acknowledged having met Bin Laden on two
occasions and admitted that perhaps his relatives were bodyguards
and enthusiastic followers of Bin Laden, such evidence-­
sensational and compelling as it may appear--does not constitute
actual, reliable evidence that would justify the Government's
detention of this man. For these reasons, and the reasons set
forth above, the Court grants the petition for a writ of habeas
corpus.
-41­
ItIQ
Mindful of the limitations on the scope of the remedy in this
situation, see Kiyemba v. Obama, 555 F.3d 1022, 1024 (D.C. Cir.
2009), the Court further orders the Government to take all
necessary and appropriate diplomatic steps to facilitate
Petitioner'S release forthwith. Further, the Government is
directed to comply with any reporting requirements mandated by the
Supplemental Appropriations Act, Pub. L. No. 111-32, 123 stat. 1859
(2009), if applicable, to facilitate Petitioner's release, and to
report back to the Court no later than September 18, 2009, as to
the status of that release and what steps have been taken to secure
that release.
lsi
August _, 2009 Gladys Kessler
United States District Judge
Copies to: Attorneys of Record via ECF
-42­