Hentif v. Bush ( 2011 )

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Filed with Classified
Inf~curity Officer
FADHEL HUSSEIN SALEH
HENTIF, et al.,
C1S0 ~
Date t"l{tjl
Petitioners,
v. Civil Action No. 06..1766 (HHK)
BARACK H. OBAMA, et aI,
Respondents.
MEMORANDUM OPINION
Fadhel Hussein Saleh Hentif(ISN 259), a Yemeni citizen, was seized by Pakistani
authorities in late 2001 and has been held by the United States at the naval base detention facility
in Guantanamo Bay, Cuba since early 2002. Hentifhas filed a petition for a writ ofhabeas
corpus contending that he is unlawfully detained. Respondents in this case, President Barack H.
Obama and other high-level officials in the United States Government, argue that Hentifis
lawfully held and therefore should remain in U.S. custody. The parties filed cross-motions for
judgment on the record and appeared before the Court for a four-day hearing on the merits of
Hentifs petition. Upon consideration of the motions and the evidence presented at the merits
hearing, the Court concludes that respondents have demonstrated that Hentifs detention is
Jawful. Therefore, Hentifs petition shall be denied.
I. LEGAL STANDARDS
A. Scope of the Government's Detention Authority
The Authorization for Use of Military Force ("AUMF"), Pub. 1. No. 107-40,115 Stat.
224 (2001), authorizes the President to "use all necessary and appropriate force against those
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nations, organizations. or persons he determines planned, authorized, committed, or aided the
terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons,
in order to prevent any future acts of international terrorism against the United States by such
nations, organizations, or persons." Pub. L. 107-40. § 2(a), 115 Stat. at 224. The U.S. Supreme
Court has held that the U.S. District Court for the District of Columbia has jurisdiction over
petitions for writs of habeas corpus brought by detainees held at Guantanamo Bay pursuant to the
AUMF. See Boumediene v. Bush, 553 U.S. 723, 792 (2008); Rasul v. Bush, 542 U.S. 466,
483-84 (2004). The Supreme Court has provided "scant guidance," however, as to whom
respondents may lawfully detain under the statute. AI-Bihani v. Obama, 590 F.3d 866, 870 (D.C.
Cir. 2010) (noting that the Supreme Court has "consciously le[ft] the contours ofthe substantive
and procedural law ofdetention open for lower courts to shape in a common law fashion" (citing
Hamdi v. Rumsfold, 542 U.S. 507,522 n.1 (2004) (plurality opinion); Boumediene, 553 U.S. at796».
Although the D.C. Circuit "has yet to delineate the precise contours" ofthe proper legal
standard by which to evaluate the lawfulness ofthe detention of the individuals held at
Guantanamo Bay, Barhoumi v. Obama, 609 F.3d 416, 424 (D.C. Cir. 2010), it has held that any
individual who is "part of" Al Qaeda or the Taliban may be detained pursuant to the AUMF. Al-
Adahi v. Obama, 613 F.3d 1102, 1103 (D.C. Cir. 2010); see also Bensayah v. Obama, 610 F.3d
718, 725 (D.C. Cir. 2010); Awad v. Obama, 608 F.3d 1, 11 (D.C. Cir. 2010). The detennination
ofwhetber an individual is "part of' Al Qaeda "must be made on a case-by-case basis by using a
functional rather than formal approach and by focusing upon the actions of the individual in
relation to the organization." Bensayah, 610 F.3d at 725. Accordingly, in this case, the Court
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wilI assess whether respondents have shown that Hentif is functionally part of Al Qaeda or the
Taliban.
B. Burden of Proof
As stated in the Amended Case Management Order that governs this case, "[tJhe
government bears the burden of proving by a preponderance of the evidence that the petitioner's
detention is lawfuL" In re Guantanamo Bay Litig., Misc. No. 08-442, CMO § n.A (Nov. 6,
2008)~ see also Awad. 608 F.3d at 10 (upholding the preponderance ofthe evidence standard as
constitutional in the evaluation of habeas petitions from Guantanamo Bay detainees); AI-Bihani,
590 F.3d at 878 (same). I Accordingly, Hentif need not prove that he is unlawfully detained;
rather, respondents must produce "evidence which as a whole shows that the fact sought to be
proved," that Hentif was part of Al Qaeda or the Taliban, "is more probable than not." United
States v. Mathis, 216 F.3d J8,28 (D.C. Cir. 2000) (quoting United States v. Montague, 40 F.3d
1251, 1255 & n.2 (D.C. Cir. 1994»; see also Almerfedi v. Ohama, - F.3d - , 2011 WL
2277607, at *3 (D.C. Cir. June 10, 201l) ("The preponderance standard ... asks the court simply
to 'make a comparative judgment about the evidence' to detennine whether a proposition is more
likely true than not true based on the evidence in the record." (quoting Lindsay v. NTSB, 47 F.3d
1209, 1213 (D.C. Cir. 2005». If respondents meet this burden, the Court must deny Hentirs
petition. In considering whether respondents have met this burden, the Court will evaluate the
Although the D.C. Circuit has held that the preponderance of the evidence
standard "is constitutionally sufficient," it has left open the question of "whether a lower standard
might be adequate to satisfy the Constitution'S requirements for wartime detention." Almerfodi,
2011 WL 2277607, at *3 n.4.
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totality ofthe evidence. rather than viewing each piece ofevidence in isolation. See AI-Adahi,
613 F.3d at 1105-06; see also Salahi v. Obama, 625 F.3d 745, 753 (D.C. Cir. 2010).
C. Evidentiary Issues
The Court notes at the outset two issues regarding the evidence in this case.
First. as explained in an order entered in this case on July 7,2010 [#265J, the Court has
pennitted the admission ofhearsay evidence but considers at this merits stage the accuracy,
reliability, and credibility of all of the evidence presented to support the parties' arguments. The
D.C. Circuit has mandated this approach. See Al Bthan;, 590 F.3d at 879 ("[T]he question a
habeas court must ask when presented with hearsay is not whether it is admissible-it is always
admissible-but what probative weight to ascribe to whatever indicia ofreliability it exhibits.");
see also Odah v. United States, 611 F.3d 8, J4 (D.C. Cir. 2010) (holding that "[t]he law is
against" a detainee who argued that some types ofhearsay are not admissible in these
Guantanamo Bay cases); Awad, 608 F.3d at 7 (reaffinning the rule articulated in AI Bihani and
noting that a district court errs not by relying on hearsay, but by relying on "unreliable hearsay").
The Court' s assessment ofthe weight properly accorded to particular pieces ofevidence appears
throughout this opinion.
Second, the nature of the evidence before the Court is atypical ofevidence usua1ly
presented to federal courts. Respondents have offered a variety of types ofdocuments produced
and used by government intelligence agencies that are not the direct statements ofthe individuals
whose personal knowledge they reflect. The evidence in this case includes Form 40s ("FM40s"),
Summary Interrogation Reports ("SIRs"), Intelligence Information Reports ("IIRs"), Memoranda
for Records ("MFRs"), Field Documents
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FM40s are records of investigation activities, here witness interviews, conducted by the Criminal
Investigation Task Force, a federal law enforcement agency. SIRs are summaries of
interrogations conducted under the auspices ofthe Department ofDefense. IIRs are Department
ofDefense documents for recording human intelligence, which may contain information derived
from an SIR. 2 MFRs are similar to SIRs. FD-302s are forms completed by FBI agents
summarizing interviews. party
called any live witnesses.
ll. ANALYSIS
Hentif, or ISN 259;~ was born in 1981 in the Al Jawf region of Yemen. At some point
after turning eighteen, he left home for the city of Sana' a, Yemen. At some later date, he left
Sana'a and traveled to Afghanistan. Late in 2001, he crossed the Afghan border into Pakistan
and was seized by Pakistani authorities, who ultimately transferred him to U.s. custody. The
parties dispute the timing and purpose of Hentif's travels and the nature ofms activities while in
Afghanistan. They have divided their factual disagreements into three broad issues, which the
Court will address in turn.
4 ISN stands for Internment Serial Number. Each detainee at Guantanamo Bay has
been assigned such a number.
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A. Issue One: Whether Hentifwas Reeruited to Join AI Qaeda or Taliban Forces in
Afghanistan.
1. Respondents' arguments
Respondents contend that Hentit's purpose in leaving Yemen for Afghanistan was to
fight with Al Qaeda or Taliban forces.
about HentWs decision to go to
Afghanistan. First. they note that Hentif reported attending m05'Que in
Sana'a. See JE 94 (Decl. ofHentif(June 8, 2010)) ~ 10; JE 10 (FD-302 summarizing April 13,
2002 interrogation ofHentif) at 3; JE 13 (MFR nteJr:roll~atl()fl of
Hentif) at 2. He stated that, at this mosque, he took a course from a man named
JE 10 at 3. This information is incriminating, according to respondents, because another
Guantanamo Bay deblinee, said in an interrogation
him "that the struggle in [Afghanistan] was religiously supported and that one should fight if
possible." JE 28 (DR dated 2004 reporting information derived 1.
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Second, Hentif reported1y said during his interrogations at Guantanamo Bay that he met a
man llQ.lJL~"'" this mosque, and that a role in HentiPs decision to
go to Afghanistan. See JE 10 at 3; JE 13 at 2-3~ JE 14 (MFR
interrogation ofHentif) at 1 the first person to give [HentifJ the idea to go to
Afghanistan."). Respondents further assert that [Hentif] on the route of
travel and infonned him that he would need approximately 3000 Saudi Riyals (800 USD)," and
that this infonnation enabled Hentif to quickly depart Yemen for Afghanistan. JE 29 (IIR _
1,3 (reporting that Hentifmoved to Sana' a in July 2001); see also JE 13 at 3
(reporting that Hentifleft for Afghanistan in August 2001). Respondents also point to a
statement in an intelligence report derived from an interrogation of_that
perfonn jihad in Afghanistan." JE 28 at 1. Because,
respondents aver, likely the same person, Hentif too was likely
encouraged to travel for purposes ofjihad.
Next, respondents argue that the circumstances ofHentirs travel, in particular those
surrounding his travel companion, support the proposition that Hentif embarked on the trip to
become a fighter.' Hentif repeatedly told interrogators that he traveled to Afghanistan with
1 Respondents also argue that Hentif traveled from Yemen to Afghanistan via a
common AI Qaeda / Taliban route-from Yemen to Karachi to a guesthouse in Quetta, and then
to guesthouses in Kandahar and Kabul. As support, respondents point to other cases that
involved similar routes. See, e.g., JE 7 (FD~302 summarizing interview o f _ a t 4-5
(reporting~tatements that he traveled from Sana'a, Yemen to Karachi, Pakistan to
Taliban ~n Quetta, Kandahar, and Kabul and then to the front AI-Alwi v.
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See, e.g., JE 10 at 3; JE 13 at 3; JE 14 at 2.
the two flew together from Yemen
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took Hentif to a guesthouse in Quetta, Pakistan. See JE
10 at 4. Based on Hentifs description of this house as "more like a compound," respondents ask
the Court to infer that it was a place oflodging for fighters. JE 124
lnte:rrOlgatton of Henti£) at 2; see also id at 3 (noting that the house was
"surrounded by 2 meter high walls of concrete").
2. Hentif's arguments
Hentif disputes respondents' interpretation of the evidence. He argues that the Court
should not rely
single suggestion in the record
Hentif asserts, is not sufficiently reliable to support a ...........0
contends that this error suggests that other statements in the report are similarly
inaccurate. He further asserts
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Next, Hentiftums to respondents' allegations about Abu Vasser. According to Henti£,
unless is no basis in the record to support the
proposition ·nl'.n.ll..l'IO'''orl Hentif to participate in j iliad in Afghanistan. And
Hentif asserts that respondents have not shown
person. The two have different names, according to H ...t'IT1~·
mwcatc~s that
(Dect. Defense Intelligence Agency, Background Declaration ­
Names, Aliases, Kunyas and Variants (Sept. 19,2008» at 2.9 In addition, "from
either Shabwa or Baihan Yemen," JE 13 at 4, urn,P1'P,I'II! from Ibb, Yemen, JE 20 (SIR
summarizing interrogation 1. Finally, Hentifnotes that
9 "Because Arabic and English have several letters representing sounds that do not
correspond directly. several letters or letter combinations are used interchangeably to represent
the same sound.... It is common to see intelligence reports referencing an individual with
several different name spellings," JE 1 at 3. Accordingly, neither the parties nor the Court attach
significance to spelling variations such as "Yasser" and "Yasir" or "Qahar" and "Kahar."
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the nstltu1te in Ta'iz, Yemen, JE 28 at 1, whereas Hentifmet a mosque
in Sana' a, JE 13 at 2_3. 10 Thus, Hentif argues. the record does not support the conclusion that
the same person and. therefore. there is no basis on which to
rr"....1"nj·t..rt Hentiffor jihad.
Further. Hentif notes that he provided additional, innocent infonnation about his
interactions the interrogation summaries that respondents cite. Specifically,
ugg:est`` that Hentif travel to Afghanistan to do
humanitarian work and that such work, not jihad, was the purpose ofhis travel. See IE 10 at 3;
JE 11 (FD-302 summarizing May 3,2003 interrogation ofHentif) at 1; IE 13 at 3; IE 14 at 111
see also IE 13
at 4.
Hentif also asserts that several details about his route to Afghanistan support his innocent
explanation of his travel. First, Hentif repeatedly told interrogators that he or his family paid for
his plane ticket, indicating that no recruiter funded his trip. II This contention is corroborated by
HI Respondents respond to each of these distinctions, arguing the name difference is
minor~ements regarding where each man is from are locations at
which~d Hentif met are sufficiently close that it is Jikely
traveled between them.
11 See JE 10 at 3 (reporting that Hentif said he used money he inherited after his
father's death to buy a car, and he sold the car to use the proceeds, other than a portion he gave to
his brother, ''to fund his travels"); JE 13 at 2-3 (same. but reporting that Hentif gave the money
from selling the car to his brother, who then returned some Ofthe!lt0ne fund Hentirs trip);
to
JE 14 at 2 ("[Hentif] received 3000 Saudi Riyal from his brother 0 fund his trip to
Afghanistan."). Other A1 Qaeda recruits have said that their trave was ded~a
operatives. See, e.g., JE 7 at 4 (reporting that_told his interrogator tha~
"provided the money for him to travel to Afghanistan").
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a declaration from Hentif' whom Hentif"grew up like a brother." JE 104
2. _ubmitted a declaration
confirming that Henrif sought permission in the summer of 200 1 "to travel to Afghanistan to
perform charitable work for the poor in that country ... to honor the memory of his father," Id
stated that he "gave [Hentif) some money for hisjoumey." Id. ~ 6. 12
Additionally, Hentif notes that he also told interrogators that he obtained a visa and made flight
arrangements on his own. 13
Second. Hentif argues that~ only a coincidental travel companion, pointing
to evidence that he the airport in Y
See JE 10 at 3; JE 14 at In one interrogation, Hentif reportedly explained that he
did not traveling to Afghanistan, but he seemed likely to be
12 According to respondents, this declaration is not persuasive evidence of Hentifs
activities because (1) it goes only to show what Hentiftold his family, not what actually
occurred; and (2) such a close relative is a biased witness.
13 Hentif points out that his account ofmaking his own travel arrangements differs
significantly from the stories of other Guantanamo Bay detainees whose travel was arranged by
AI Qaeda recruiters. Compare JE 10 at 3 (reporting that Hentif said he "went to the Pakistani
embassy in Sanaa and obtained a visa to travel to Afghanistan" and "'looked around for airline
tickets from Sanaa but saw it was cheaper to fly out of Hadramout, Yemen"), and JE 13 at 3
("[Hentif) was informed by a travel agent ... in Sanaa that he would need a visa to travel to
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Pakistan. He was also informed that it would be cheaper to fly from the airport in Mikala,
Hydramount, Yemen than from Sanaa. [Hentif] went to the Pakistani embassy and informed
them that he wished to travel to [Afghanistan] to perform humanitarian duties; they
tourist visa."), with JE 20 at 1 ("Before leaving Yemen_gave his passport to
so~ould make arrangements for the visa. Yasir returned with the pas~ visa. ,an
J~D-302 swnmarizing interrogation o~at 2 (reporting that _ _ e~t
he gave his passport to an Al Qaeda recruiter~ another individual return it t o _
with a visa and a plane ticket from Sana'a to Karachi, Pakistan). Respondents argue in response
that Hentifs decision to get a visa to enter Pakistan but not for Afghanistan demonstrates that he
had assistance from a recruiter who assured him he could enter Afghanistan without difficulty.
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a good travel partner because he "spoke some English." IE 29 at 4 (reporting that Hentif
explained he did not inquire about the purpose because "it was not poHte to
ask"). Hentif contends that further
evidence that~ontains errors and is unreliable.
Hentif also argues that respondents have not established
AI Qaeda. There is evidence in the record contradicting the proposition that of
the guesthouse where he and Hentifstayed in Quetta: one ofHentifs interrogation summaries
reports that Hentif said "neither [Hentit] knowledge of the house before they
were taken there; the taxi driver drove them to the house/clinic simply because they were Arabs."
JE 29 at 4. It is not even clear, Hendf argues, that there is anything incriminating about the house
in Quetta; while respondents draw inferences from the structure of the building, a wall around a
house does not demonstrate that fighters stay there. 14
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3. Court's findings
account when considering whether Hentif was part of Al Qaeda or the Taliban.
The Court notes, however, that there is also evidence supporting the conclusion that
Hentif did not travel to Afghanistan as an Al Qaeda recruit. For instance. his preparation for his
trip-inquiring with a travel agent, obtaining a visa on his own, and purchasing a cheaper flight
from Hadramout-is inconsistent with the way Guantanamo Bay detainees who admit to being
recruited for jihad have described the circumstances oftheir travel to Afghanistan.
Next, the Court turns to the parties' dispute about the identity The Court
sees no basis to find that the same person. Hentif notes that
his place oforigin, and the location where he met Hentif all conflict
A mismatch as to one of these facts might not disprove the
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alJegation that the two men were the same person. but the Court will not make such a finding
where all three are different.
FinaJly, the Court considers the evidence regarding Hentifs travel COIlnpalll)Orfi,
The evidence regarding is mixed. Interrogation summaries say that Hentif
the airport in Hadramout. They also say both
Hentif to the guesthouse in Quetta and not previously familiar with
the house. The Court has no satisfactory means of resolving these contradictions. There is,
however, one piece ofparticularly damning evidence regarding
consider this evidence in context and with the rest ofthe evidence in the record.
B. Issue Two: !IIo;t'.. 'v...... at an AI Qaeda Guesthouse in Kandahar
Operated by
1. Respondents' arguments
Respondents see strong evidence of Hentif s affiliation with Al Qaeda in the fact that,
after entering Afghanistan, he went to a guesthouse in Kandahar run Hentif
admitted that he stayed at this guesthouse for approximately five days. See JE 10 at 4; JE II at 1;
JE 14 at 3 ACCOI·O.1rlg to respondents,
the statements ofother detainees support their assertion a member ofAI
Qaeda and that he ran an Al Qaeda guesthouse in Kandahar. See JE 8 (FD-302 summarizing
interrogation be an AI-
house."); JE 47 (IIR dated January 14,2002,
derived from information provided by a Libyan AI Qaeda member) at 1 (referring to an AI Qaeda
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guesthouse in Kandahar "which was being operated by a Yemen national named
see also A I-A lwi v. Obama, Civ. No. 05-2223, classified slip op. at 4-5 (D.D.C. Jan. 9, 2009).
They argue that, because AI Qaeda is a secretive organization, the proper inference to be drawn
from Hentifs presence at this guesthouse is that he too was part of Al Qaeda. See JE 2 (Dec1. of
Defense Intelligence Agency, Background Declaration - Guesthouses (September
19, 2008» at 3 (explaining that guesthouses were used as transition points for fighters going to
training camps and noting that "[t]hese guesthouses were not available to the public, but rather
were restricted to individuals with specific definable connections to al-Qaida,,).'6
Further establishing that Hentif was affiliated with AI Qaeda, respondents argue, are the
16 Respondents also argue that the fact that the house had a surrounding wall,
suggesting that it was meant to be secure and closed off. further supports the inference that it was
an AI Qaeda See JE 54 (FD-302 summarizing inte~t 3
(reporting the guesthouse where he met ~g a "three []
meter brown and "a solid, green steel gate"); JE 14 at 3 (reporting that Hentif
said the guesthouse had "a wall around the outside that blocked the view of the house from the
street").
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Finally. respondents set forth two additional allegations to support their position that
Hentifs stay at gue:sthou~;e demonstrates that he was part ofAl Qaeda. The first is
that the guesthouse served as a transit point for Hentif to attend an Al Qaeda tactical training
consistent with Hentifs admitted usage of the his Yemeni
citizenship. See JE 13 at 1 (reporting that Hentifsaid that a nickname he has
used since childhood); JE I at 12 (noting
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interrogation ofHentif) at 1 (reporting that Hentif said he received training in Y
Respondents' second additional allegation is that Hentif was captured with a Casio watch
ofa type that many terrorists possessed. See JE 12 (MFR dated June 26, 2002) at 1 (listing
Hentif, by his ISN nwnber, as a person in possession ofa "silver version" of the "Casio F-91 W").
This model of watch "has been used in bombings that have been linked to AJ-Qaida and radical
Islamic terrorist groups with improvised explosive devices." Jd; see also JE 6 (Decl. o~
Defense Intelligence Agency, Background Declaration - Casio F·91 W Watch) at 1
Respondents, citing a recent opinion of the D.C. Circuit, argue that the Court must take Hentifs
possession of this watch into account in reaching its decision. See AI-Adahi, 613 F.3d at 1109
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(explaining with disapproval that the district court "threw out then telling facts" that the
petitioner had been seen wearing and was captured with a Casio watch).
2. Hentif's arguments
Hentif does not dispute that he stayed at a guesthouse in Kandahar run by
He does, however, dispute the implications of his stay there. First, he argues that respondents
have not shown that the house was used exclusively by persons connected to Al Qaeda. In
particular, he notes that although respondents rely on a declaration from an intelligence agency
employee to support that contention, see JE 2 at 3, detainees with first-hand knowledge of the
house's operation indicate that it was open to anyone. See JE 54 at 3 (reporting
~uel~tho!Use "was open to anyone that needed a place to stay"); JE 68 (FM 40
summarizing interrogation 2 (reporting that the
guesthouse, which respondents assert was guesthl[)USe, "was for everyone").
Moreover, Hentif notes, he has said that he did not know if connected to any
terrorist group and that he did not know or get to know the other occupants ofthe house. JE 11
at 1; Government Exhibit ("GE") 1 interrogation of
Hentif) at 1; JE 22 (SIR interrogation of Hentif) at 2 ("[HentifJ
reiterated that he was not well received at the Arab guesthouse in Kandahar. He felt like an
outsider and did not make any acquaintances aside from owner ofthe
guesthouse... merely a hospitable Arab man living in Kandahar who
opened his [] home to fellow Arabs passing through Kandahar. ").19
19
Respondents counter that Hentifhas been in~about his reception
Once, he reportedly said that he and _ ' w e r e welcomed at the
at.
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As to respondents' inculpatory interpretation of the fact
house~ food, prayer time, and conversation were offered." JE 14 at 3.
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Henrif also disputes
the significance that respondents attribute to it. First, he asserts that he never
Next, Hentif vigorously disputes the allegation that he attended training camps in
Afghanistan.
See JE 60 at 1
, 22 ("1 never registered for training of any kind and 1 never heard from anyone while 1was in
Afghanistan that my name appeared on any list for training."). He also argues that the lists
indicating re2listered for training do not refer to him. He notes that the name
lDJX:W"S in five places in the relevant set ofdocuments, see JE 37 at 1, 48-49, 56, 70,
85, but respondents only contend that two might refer to him, id. at 48-49, 70. He argues that
this fact shows a common name. Further, respondents connect these two
appearances of the Hentif only because the those instances is from
Yernen or Al Jawf, a region of Yernen. This, according to Hentif, is not a sufficient basis on
which to conclude that the those two instances, refers to him. Additionally,
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Hentif notes that in one instance the list refers means
that the person himself is See id at 48-49. The list also
indicates ved in Afghanistan in September 2000, id, the year before Hentif
contends he left Yemen. See JE 94 ~ 16 (stating that he traveled to Afghanistan in the summer of
2001); JE 13 at 3 (same); see also JE 104 ft 4-5 (stating that Hentif asked his family, including
his cousin permission to travel to Afghanistan in the summer of2001).23 In light of
these discrepancies, Hentif concludes, the training lists do not support the contention that he
attended a training camp.
3. Court's fmdings
There is no dispute that Hentif stayed at Iluel;thoiuse in Kandahar for
approximately five days. And Hentif concedes that affiliated with Al Qaeda,
although Hentif maintains that he was not aware of that affiliation or why other guests at the
guesthouse were there. Staying at an AI Qaeda-affiliated guesthouse is "powerful-indeed
'overwhelming'-evidence" that an individual was part ofAl Qaeda. AI-Adahi, 613 F.3d at 1108(quoting Al-Bihani, 590 F.3d at 873 n.2». Consequently, the Court will take this evidence into
account in considering respondents' case.
23 Respondents question Hentir s credibility as to this point. They argue that
Hentirs timetable, in which he fllSt moved from AI Jawfto Sana'a in the summer of2001 but
left for Afghanistan that same summer, is so compressed as to be likely untrue. Furthermore,
they point to Hentirs assertion that he moved to Sana'a after receiving his inheritance from his
deceased father upon turning 18, which, because he was born in 1981, would have occurred in
1999. Finally, they argue that~eclaration is not probative because, if_poke to
Hentif on the phone about whether Hentif could go to Afghanistan, Hentif might have been
hiding from his family that he had already left Sana'a.
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h ....h .... undermine the credibility of his explanation. Therefore, given that Hentif lodged
at an Al Qaeda guesthouse, the Court fInds that it is
Court is also mindful that the falsity ofHentif's exJ;llanalICID
its own evidentiary significance. See AI-Adahi, 613 F.3d at 1107 ("[F]alse
exculpatory statements are evidence--often strong evidence-ofguilt.").
unclear. the Court need
not order to take into account that it
22
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probative value that the Court will
consider.
Next, the Court finds that respondents have not shown that Hentif attended training
courses while in Afghanistan. The Court will not draw any inculpatory inferences from the fact
that the ~n1"'Q1'Q on lists that are apparently rosters for training courses. Hentif's
arguments as to this point are persuasive. In particular, although the roster refers to an individual
(or perhaps multiple individuals) is from Yemen and AI Jawf, nothing else
about the roster suggests that the to Henti£, and the date in 2000 strongly
suggests otherwise. Respondents have no other evidence showing that Hentif arrived in
Afghanistan before the summer of 200 1, whereas the declaration of Hentir s cousin
corroborates Hentirs statements that he departed for Afghanistan in 2001. Moreover. Hentifhas
consistently denied the allegation that he attended training camps.
There is no dispute, however, that Hentif possessed a Casio watch ofa model often used
by Al Qaeda operatives. The Court will take that fact into consideration when considering
respondents' evidence as a whole.
C. Issue Three: Hentif to Travel to Another
Guesthouse in Kabul, Immediately Before Working for Two
Individuals with Significant Ties to the Taliban and AI Qaeda•.
Hentif has said repeatedly that, while in Afghanistan, he lived with a man he knew from
and did volunteer work for the supervision of
Respondents contend that all three men had
connections to Al Qaeda andlor the Taliban.
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1.
a. Respondents' arguments
According to respondents, su``es:ted that Hentif seek
also known a Yemeni living in Afghanistan. See JE 14 at 3 ("[Hentif]
stated that when he informed
information on an individual named working in Kabul, who was
also from Al Jouf, Yemen."). And, respondents argue, even not the source of
the idea that Hentif find the two men were nevertheless connected, because
that in Kabul. JE 10 at 4~ JE 15
_interrogation of Hentif) at 2.
Respondents note that Hentif told interrogators him to Kabul to the
house of a man named would be able to find
See JE 10 at 4; JE 15 at 2. Respondents argue that_house was a Taliban
guesthouse. As support for this contention, they point
24 Hentif explains in his declaration that these names mean~m the north and
the east, respectively, and people called this man by both n~epending upon
they lived in relation to his hometown in the northeast of Yemen. JE 94 ~ 7.
25 Respondents acknowledge that the interrogation summary in which the statement
supporting their contention also that "[Hentif] later claimed
the house in Kandahar he if he knew the whereabouts
[Hentif] claims that he he was his Koran teacher
[Hentif] also knew that working in Afghanistan." JE 14 at 3. Because "the
interpreter was very clear changed his stat~ not a translation problem,"
id. s assert that Hentifs first statement, that_suggested he find_
true than the one that respondents categorize as a cover story, that Hentif
embarking on his trip.
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they note that Hentif described the house as follows:
This house was located in the Wwr Akbar Khan section ofKabul; [Hentit] could not
identifY an£] exact location. It was a two level structure with a small yard and a high
wall that blocked the view from the street. There was a driveway large enough for
one car. There [were] approximately fifteen Arabs in the house at any given time;
people came and went regularly. [Hentit] stated that there were only Arabs at the
house and none ofthem had families.
JE 15 at 3. Respondents argue that this description supports the inference that the house was for
fighters, because: (1) another detainee said during an interrogation that he stayed at a Taliban
guesthouse in this same neighborhood, see JE 7 at 2; (2) the house had a high wall; (3) only
single men stayed there; and (4) the house was close to a battle being fought near Kabul.
[Hentif]
to retrieve Hentif and take him to.
Respondents find further support for this theory in the fact that AI Ansari was able to
after receiving a message
he was there."); JE 15 at 3. This fact is incriminating, respondents assert,
a fighter at Tora Bora. 26 They base this allegation on: (1) the statements
was "40 years of age, [and1 from Saudi
Arabia" fought with him in Tora Bora, see JE 8 at 4; (2) the appearance ofthe name
a list of"AI Qaeda members" who were to attend '''tactics course no. 2" in March
26 A cave complex at Tora Bora was the site ofa December 2001 battle in which the
Taliban and Al Qaeda fought against the United States.
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2001, see JE 34 (IIR at 1,3; and (3) the fact that the Department of Defense
obtained a note sent another individual congratulating him "on
the assassination o~d the Americans," see JE 33 (UR containing translated text of
letter) at 1, 3.
b. Hendf's arguments
Hentifmaintams that the explanation ofhow he went gue~stnoluse to
is not incriminating. He asserts that he went with the
intention of ... u"uUl!. whom he knew as a Koran teacher in Yemen. JE 10 at 3-4; JE
14 at 3; JE 15 at 2.27
toJdhim JE 10 at 4; JE 15 at 2. His travel to
Kabul, then, was for the purpose of finding
house-where, as at he was aware of no indication of any affiliation with a
terrorist group-was innocent. Cf JE 15 at 3 ("[HentifJ claims no one at _ h o u s e
was ever armed.").
As to ,....,,,.......,,.. , Hentif notes that his interrogation summaries give no
indication that AI Shamali was anything other than a Yemeni who Jived in Afghanistan with his
wife and child and taught the Koran at a mosque. JE 15 at 3 (reporting that Hentif said_
27 Hentirs declaration provides additional detail about how he had ~
_ JE 94 ~ 6 ("When I was about eleven years old, I met a family friend, _ _
He was older, an~ Koran to young boys in a nearby mosque. I attended his courses for
about two years. _ d i d charitable work for the poor, and I looked up to him because of
his knowledge and charity."). Respondents note, however, that during an interrogation, Hentif
reportedly said that "when he was eighteen," rather than eleven, "[Hentif] and eight or nine other
youth course," rather than courses over two years, "about the Koran given
Yemen," JE 14 at 3, arguing that these stories are inconsistent.
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with his wife and one year old son in a two level house" and referring to "the
U1n~·"'...n at located approximately 500 meters from the ... r.••" ...." ,
also JE 15 at 4
was not affiliated with any organization. He coordinated on
his own to teach Afghani children to recite the Koran.").
Further, Hentif contends that the differences in the descriptions of
whom respondents have incriminating information and the~hom Hentifknew belie
the contention that they are the same person. Specifically, the detainee who identified.
having fought at Tora Bora said a Saudi, JE 8 at 4, whereas the
Hentifknew was from Yemen, JE 30 at 2 (reporting that Hentif said
from" AI Zahar, Yemen"). The same detainee also said that 40,JE
8 at 4, but Hentif ....... ",'"'u.J"'... "in his early thirties," JE 30 at 2. Moreover, the men
had different names and different fiunily
circumstances; there is no mention ofthe Taliban-affiliated a wife or child in
Afghanistan, but Hentif reports that the knew lived in Afghanistan with, and left
the country accompanied by, his wife and child. See 1£ 15 at 3; JE 16 at 2. Further, thell
respondents identify was at the battle of Tora Bora when Hentifwas making his
way from Afghanistan to Pakistan.
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Finally, Hentif argues that the information he provided to interrogators about
only information in the record that is definitely connected to the person Hentif
knew-is not inculpatory. Despite respondents' contention that cormectU)DS to
suspicious, Hentif asserts that it is not surprising that Yemenis in
Afghanistan would form a network and be able to locate each other.
c. Court's findings
Respondents have demonstrated a person whom Hentif knew and sought
out in Afghanistan, is connected told interrogators, and does not now
Hentifto Kabul because he knew~ there. Although
not know precisely where_was, he knew
in Hentif and be able to locate And again, there is no dispute
affiliation with Al Qaeda. The explanation that Hentif has offered for the connection between
these men-that they knew each other only because they were all Yemenis living in
Afghanistan-is not supported by any evidence in the record.
The Court does not find, however, tha_house was an Al Qaeda guesthouse. It
is true tha~ recognized AJ Qaeda operative, sent Hentif from his guesthouse in
Kandahar to _guesthouse. And there is evidence that a guesthouse for fighters existed
in the neighborhood of Kabul where _ h o u s e was situated. But, while these facts make
respondents' contention possible, they are not sufficient to support the conclusion
operated an Al Qaeda guesthouse. 29
29 Respondents have not provided evide~ther than from Hentifs
statements and several of their arguments about why~was likely to be an Al
28
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Similarly. the Court finds insufficient support for respondents' assertion that t h e .
Hentifknew is the same man who attended training camps and fought at Tora
Bora. As Hentifpoints out, the descriptions ofthese two men-including their nationalities and
family statuses-are different. And there is no indication in the record that
Hentifknew was a fighter. Furthermore~ the similarities in the names ofthe two men are less
meaningful than might be the case under other Cl·trCUl1D.stan~;;es; not a unique name and
to a direction, not a location, so it could be the alias ofan individual ofany
nationality. Consequently, although the Court will consider the connection ",.1"'.v.......
does not find that the~hom Hentifknew was a fighter for Al
Qaeda or the Taliban.
2.
a. Respondents' arguments
Respondents argue Hentif said were affiliated
with the in fact associated with the Taliban.
Qaeda guesthouse have little merit. Specifically, respondents have not shown that the presence
of a wall around the house distinguished it from any other house in Kabul. Similarly, that single
men stayed in the house is not evidence of an affiliation with terrorists. See JE 80 (Ded. of Dr.
Sheila Carapico) ~ 18 (explaining that "[t]he fact that a young Yemeni stays at ·guest houses'
while in ... Afghanistan does not itself imply anything menacing or illicit" because "it is
, respondents' argument that was likely for fighters because sits
general vicinity ofa battle is so broad as to be meaningless~ this argument would apply to almost
any home in Kabul.
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As t~spondents first point to infonnation obtained from a Guantanamo Bay
detainee about a Taliban training camp named for the Taliban COllntrumctler
JE 23 (IIR derived from interview
Another detainee said he went to a house in Kabul where an Afghan UQ,lJl1,",. .
u .... 'u....-u aU [J business" other than cooking. JE 25 (IIR summarizing FBI interrogation of
2. Respondents argue that this evidence demonstrates a
commander who managed recruits. moving them from a guesthouse in Kabul to battle. IfHentif
was working respondents contend, then he too must have been a member ofthe
Taliban.
Based on statements of other Guantanamo Bay detainees. respondents '-~"~"'J
an individual whose real name who used the
aliases. See JE 50 ( I I R _ e r i v e d fro~at 2 _
_ earned with Arabs in Kabul and Qandabar during the Taliban
regime._true name was been known by the a l i a s _
to the battle of Tora Bora"); JE 52 (FM 40 summarizing interrogation
1-2 (reporting that_who admitted to working for members of Al Qaeda and the Taliban,
a list of
membersofa
ran training courses and was connected JE 50 at 2. Again,
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respondents argue that, because Hentif worked for this man, he must have been part ofthe
TaJiban.
To further bolster their contention that these two men are those whom Hentifknew,
respondents note that evidence in the record c o n n e c t _ The detainee
who told an interrogator a member of
a particular group also included
individuals who joined that group. JE 52 at 2. This detainee also said that he delivered money
from a man he identified as a member of Al Qaeda and the Taliban, JE 52 at 1-2.
53 (SIR summarizing interrogation o~at 1.
Relying on this information, respondents again
s consistent, respondents argue, with the previous events
they describe. such as Hentifs travel for the purpose ofjihad and his stays at A1 Qaeda
guesthouses. Furthermore, they note, there is no evidence in the record corroborating Hentifs
statements about his work for
b. Hentif's arguments
Hentifargues emphatically that encountered in
Afghanistan are not the same men about whom respondents have incriminating information.
First, Hentif points to the detailed information in his interrogation summaries about how he met
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these men and the innocent work he did for them. One particularly specific interrogation
summary indicates that Hentif said:
Koran teacher,~ew
worked as a driver for the
L - -•• ----.J wanted to work for a hUlnWliull"ia
,,1"Id. ~ 31.37 After.
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his family left to cross the border, Hentif followed Afghan guides across the
mountains out ofAfghanistan. Id W34-36. Respondents question why Hentif did not leave
Kabul more quickly after the September 11 attacks and why he fled in the direction of Logar
instead of to Kandahar and Quetta, the way he had entered the country. They also assert that
Hentifhas offered inconsistent accounts of what he did while in Logar province; he once said
that he and go to a small mosque near the house to pray and for
to teach the Koran to children," JE 10 at 4, while on another occasion he said that "[t]hey
shopped in the local market, prayed at home, and did not work," noting t h a t _ d i d not
teach the Koran to anyone except for [Hentif]," JE 16 at 2. Respondents further note that Hentif
did not describe to interrogators his activities while in Jalalabad or explain why he was so
delayed in leaving Afghanistan. Respondents argue that, for all these reasons, Hentifs story
should not be believed.
The more likely explanation for Hentirs movements, respondents assert, is that he was a
fighter. After the battle ofTora Bora, many Arab fighters fled to Pakistan. JE 42 (Decl. of
Defense Intelligence Agency - Tora Bora (Oct. 19,2009)) at 3. That battle
ended in mid-December 2001. JE 43 (Dec!. ofLt. U.S. Army (Apr. 28,
2010» at 5. Hentifwas seized at the border of Afghanistan and f"aklsUllll
Further. Hentif asserts he
traveled most of the way to the border with as explained above, respondents
contend was a fighter at the batt]e of Tora Bora. And Hentif told interrogators that his trip from
Jalalabad to the border was lengthy and required a guide, which respondents assert suggests that
he was coming not from JaJaJabad but from the Tora Bora mountains. See JE 10 at 5 ("[Hentif]
37
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16 at 3 ("[HentifJ and [another
Yemeni fleeing Afghanistan] were infonned ... that it would take one day to make the journey
into
b. Bentif's arguments
Hentif disputes respondents' contention that he was not forthcoming about his activities
while leaving Afghanistan. He asserts that he consistently explained to interrogators where he
went, how long he stayed there, and how he kept occupied while waiting to move on. See IE 10
at 4 (reporting that Hentif said he traveled his wife to Logar. where they
stayed for a month, "during which time they would go to a small mosque near the house to pray
and for to teach the Koran to children," and then they traveled to Jalalabad, where
... for about 20 days"); JE 16 at 2-3 (reporting that Hentif
described in some detail his departure from Kabul with , their one-month
stay in Logar, during which they "shopped in the local market, prayed at home, and did not
work:' and their move to the home Jalalabad, where they stayed for twenty
days). Hentif also notes that he provided explanations for not leaving Afghanistan as quickly as
possible. In Logar, "they were far from where the war was going on and felt that if it got close
they could just cross the border to Pakistan." JE 10 at 4.38 And in Jalalabad, "[t]he twenty day
wait was due to the fact that ~as waiting for the people who could guide [HentifJ
through the border." JE 16 at 3.
38 Hentif said in another interrogation that "[t]he purpose of staying in Logar was so
_ o u l d figure out a way to leave Afghanistan without problems." JE 16 at 2.
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c. Court's findings
The Court does not find that Hentifwas a fighter at Tora Bora. As explained above,
respondents have failed to show that the whom Hentif refers is the same
fought at Tora Bora The remaining evidence on which respondents rely to
discredit Hentifs account consists primarily ofHentifs statements that traveling from Jalalabad
to the Pakistani This
evidence is insufficient to show that Hentiffought at the battle ofTora Bora.
D. Condusion
The presentation ofthe evidence in this case and the Court's analysis of that evidence in
this memorandum opinion track three broad factual issues about which the parties disagree. In
arriving at the ultimate determination whether Hentifwas part ofAl Qaeda or the Taliban,
however, the Court considers the evidence as a whole. Doing so, the Court fmds that
respondents have carried their burden by a preponderance ofthe evidence.
Not all of respondents' arguments are supported by sufficient reliable evidence. For
example, as explained above, they have failed to prove that Hentif participated in Al Qaeda
training or fought at the battle ofTora Bora. But the following evidence shows that it is more
likely than not that Hentifwas a part of Al Qaeda or the Taliban.39
strong evidence that he was part of Al
39 As discussed in the individual sections of this memorandum opinion. there is
further incriminating evidence in the record, but the Court will not exhaustively catalogue it here.
The following evidence is sufficient to show that Hentifs detention is lawful.
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Qaeda or the TaIiban. Further, it undercuts his proffered explanation for his presence in
Afghanistan--that he had gone to help poor Afghans and do something good in memory ofhis
deceased father.
tnOI:catmg that he too was likely connected to Al Qaeda.40
Third, Hentif admits to having stayed at a guesthouse in KaJt10anar
_ a wen-known AIQaeda operative.41 The D.C. Circuit has made clear that staying at an
Al Qaeda guesthouse is "overwhelming" evidence ofan affiliation with Al Qaeda. See Al-Adahi,
613 F.3d at 1108 (quoting AI-Bihani, 590 F.3d at 873 n.2); see also Uthman. 637 F.3d at 406.
Although Hentif claims that he was not aware that his lodging was an Al Qaeda guesthouse, the
40 Additionally~so stayed at guesthouse with Hentif,
providing further evidence that Hentif's travel COrnp~lnlCm with Al Qaeda.
.....uu.....""
41 To get to Kandahar, Hentif followed a route used by Al Qaeda recruits. Although
this fact alone is not significant, as there is no evidence that people who were unaffiliated with Al
Qaeda did not use this route. "the fact that [Hentif] followed a common al Qaeda route
nonetheless makes it somewhat more likely that he was an al Qaeda recruit." Uthman, 637 F.3d
at 405-06.
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Court is skeptical that the operators of an Al Qaeda guesthouse would allow an innocent visitor
to stay there for multiple nights.42
Finally, at the time of Hentif's ,..",...,h.'I""
Further, the model ofHentif's Casio watch is one that has been used in bombings linked
to Al Qaeda and other terrorist groups. Although Casio watches of this model are not unique, the
fact that Hentifpossessed one is further support for respondents' contention that Hentifwas part
of Al Qaeda or the Taliban. Cj AI-Adahi, 613 F.3d at 1109 (noting that evidence that a detainee
had a Casio watch on his person at the time ofhis capture was a "telling fact[J").
42 Further undermining Hentif's claim that he did not know that the house was an Al
Qaeda guesthouse is the fact that Hentifadmits to having the AI
Qaeda leader of the guesthouse, seeking his assistance in locating
his instructions to do so.
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Taken together, this evidence shows that it is more likely than not that Hentifwas part of
Al Qaeda or the Taliban.43 Consequently, the Court concludes that Hentifs detention is lawful
pursuant to the AUMF.
III. CONCLUSION
For the foregoing reasons, Hentifs petition for a writ ofhabeas corpus shall be denied.
An appropriate order accompanies this memorandwn opinion.
~-
``
Henry . e y, Jr.
United Sta s District Judge
August 1, 2011
43 Hentif also argues that if the Court finds that he delivered medical supplies, he
must be released from Guantanamo Bay because medical personnel are not detainable under the
Geneva Conventions. See First Geneva Convention, art. 24 (providing that individuals
"exclusively engaged in the administration of medical units and establishments" are not
detainable). The Court disagrees. Although it is not clear that the Geneva Conventions apply to
this proceeding, see AI-Bihani, 590 F .3d at 871-72, even assuming they do, Hentif does not meet
the defInition for non-detainable medical personnel under the Geneva Conventions because he
did not exclusively serve in a medical capacity while in Afghanistan. At most, he delivered
medical supplies for a time while he was in Kabul. Accordingly, he was not "permanently and
exclusively engaged as a medic," as would be required to qualify as non-detainable medical
personnel under the Geneva Conventions. Cf Warafi v. Obama, 409 Fed. App'x 360, 361 (D.C.
Cir. 20 II). Article 25 of the Geneva Conventions, which applies to auxiliary medical personnel,
bolsters this conclusion. Auxiliary medical personnel are protected by the Geneva Conventions
only "if they are carrying out these [medical] duties at the time when they come into contact with
the enemy or fall into his hands." See First Geneva Convention, art. 25. Although Hentif does
not qualify as auxiliary personnel due to his lack ofmedical training, see id., this Article
confirms what common sense also dictates-that just because an individual delivers medical
supplies for a period of time, he is not entitled to permanent immunity under the Geneva
Conventions, especially when at the time of his capture he is not engaged in medical tasks.
Hentif engaged in activities that made him functionally "part of' Al Qaeda or the Taliban prior to
and following his delivery of medical supplies. Consequently, his detention is lawful.
42
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FADHEL HUSSEIN SALEH HENTIF,
Petitioner,
Civil Action 06-01766 (HHK)
v.
BARACK H. OBAMA, et al.,
Respondents.
JUDGMENT
Pursuant to Fed. R. Civ. P. 58 and for the reasons set forth in the accompanying
memorandum opinion filed with the Court Security Office this same day, it is this 1st day of
August 2011, hereby
ORDERED that the petition for a writ ofhabeas corpus of Fadhel Hussein Saleh Hentif
(ISN 259) is DENIED.
Henry H. Kennedy, Jr.
United States District Judge
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