Al Odah v. USA ( 2010 )

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
FAVIZ MOHAMMED AHMED )
AL KANDARI, et al., )
)
Petitioners. )
)
v. ) Civil Action No. 02-828 (CKK)
)
UNITED STATES. etaT., )
)
Respondents. )
)
CLASSIFIED MEMORANDUM OPINION
(September 15, 2010)
Petitioner Fayiz Mohammed Ahmed Al Kandari ("AI Kandari") has been detained by the
United States Government at the Guantanamo Bay Naval Base in Cuba since 2002. According to
his own statements and admissions against interest. Al Kandari was in the mountains near Tora
Bora, during the height ofthe Battle of Tora Bora, armed with a Kalishnikov rifle. and in the
company of several members and high-level leaders of al Qaeda, the Taliban. or associated
enemy forces, who were actively engaged in fighting the United States and its Coalition allies.
Based on these admissions and other evidence in the record, the Government asserts that it has
the authority to detain Al Kandari pursuant to the Authorization for the Use of Military Force,
Pub. L. No. 107-40. § 2(a), 115 Stat. 224,224 (2001) ("AUMF"), which authorizes the use of
force against certain terrorist nations, organizations, and persons. Al Kandari believes he is
unlawfully detained and has filed a petition for a writ of habeas corpus.
This civil proceeding requires the Court to determine whether or not Al Kandari's
detention is lawful. In connection with this inquiry, the Court has considered the factual
evidence in the record, the extensive legal briefing submitted by the parties, and the arguments
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presented during a five-day Merits Hearing held on October 19-23,2009. The parties did not
present any live testimony at the Merits Hearing, but AI Kandari did listen telephonically to the
unclassified opening statements by his counsel and Government's counsel. Based on the
foregoing, the Court finds that the Government has met its burden to show by a preponderance of
the evidence that Al Kandari became part of al Qaeda, the Taliban, or associated enemy forces.
Accordingly, the Court shall DENY Al Kandari's petition for habeas corpus.
I. BACKGROUND
A. Procedural History
Al Kandari filed his petition for habeas corpus on May I, 2002, making this case the
oldest of the pending Guantanamo Bay habeas cases. I After several years of litigation, this case
was stayed pending resolution of whether the Court bad jurisdiction to hear Al Kandari's
petition. On June 12, 2008, the United States Supreme Court issued its decision in Boumediene
v. Bush, clarifying that this Court had jurisdiction to consider the petition and advising this and
the other judges in this District that "[tJhe detainees are entitled to [] prompt habeas corpus
hearing[s]." 553 U.S. 723, 128 S. Ct. 2229, 2275 (2008).
Following the Boumediene decision, this and most of the other judges in this District
agreed to consolidate their Guantanarno Bay habeas cases before former Chief Judge Thomas F.
Hogan for issuance of an initial case management order that would expeditiously move these
cases toward resolution. Judge Hogan issued a Case Management Order on November 6,2008,
which he amended on December 16, 2008, and which the Court adopted in this case on
I The Court has previously resolved the habeas petitions of the other remaining detainees
in this civil action. See Al Mutairi v. United States, 644 F. Supp. 2d 78 (D.D.C. 2009); Al Odah
v. United States, 648 F. Supp. 2d I (D.D.C. 2009); Al Rabiah v. United States, 658 F. Supp. 2d
11 (D.D.C. 2009). AI Kandari is therefore the last of the petitioners in this case with a pending
petition for habeas corpus before this Court.
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December 22, 2008. The Court has relied on the Amended Case Management Order ("CMO")
as the backdrop for its subsequent Scheduling Orders?
The Government filed an Amended Factual Return on September 15, 2008, and pursuant
to the schedule set by the Court, Al Kandari filed a Traverse on March 30,2009. The parties
engaged in extensive discovery and motions practice in the interim. AI Kandari filed a Motion
for Additional Discovery on January 26, 2009, which the Court granted-in-part and denied-in­
part on February 12, 2009, after a hearing on February 11, 2009. Al Kandari filed a Motion to
Produce a Declassified Factual Return on January 9, 2009, which the Government produced on
February 6, 2009. The Court also required the Government to provide Al Kandari with certain
discovery from the Guantanamo Bay Joint Task Force database. In addition, to narrow the
disputed issues presented at the Merits Hearing and to focus the parties on the specific
documents underpinning their respective arguments, the Court ordered the Government to file a
Statement of Facts on which they intended to rely at the Merits Hearing (which narrowed the
allegations presented in the Amended Factual Return), and instructed both parties to submit
Witness and Exhibit Lists. Finally, the parties filed seven pre-hearing motions, most of which
sought rulings concerning the admissibil ity of particular evidence. By order dated June 16, 2009,
the Court granted the parties' motions to rely on hearsay evidence at Al Kandari's Merits Hearing
and granted the Government's motion to amend its Statement of Facts and Exhibit List as to Al
Kandari, but held their other evidentiary motions in abeyance to be resolved in the context of AI
Kandari's Merits Hearing.
On September 9,2009, the Court issued a Merits Hearing Procedures Order, which
scheduled Al Kandari's Merits Hearing to begin on October 19, 2009, and to continue through
2The Court extends its gratitude to Judge Hogan for his considerable investment of time
and energy to produce the Case Management Order.
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October 23,2009, as needed. In addition, as the Court has done with respect to each of the prior
Merits Hearings in this case, the Court pennitted the parties to file motions for leave to amend
the parties' respective Witness and Exhibit Lists, Respondents' Statements of Facts, and/or the
underlying Factual Return and Traverse. Pursuant to the schedule proposed by the parties and
adopted by the Court, the parties exchanged their initial proposed amended exhibits by October
5,2009; exchanged any additional amended exhibits by October 9, 2009; and conferred regarding
their final Exhibit Lists and any objections to the same prior to their submission to the Court on
October 13,2009.3 This schedule, as suggested by the parties, was intended to ensure that both
sides had an opportunity to review the opposing side's proposed amended exhibits, to adjust their
own proposed amended exhibits in response, and to narrow any disputes as to the proposed
motions to amend. The Court advised the parties that it would likely exclude from consideration
any evidence at the Merits Hearing that had not been identified in the Witness and Exhibits Lists
by the October 13,2009 deadline. 4
The parties timely submitted these materials, and the Court held an on-the-record
unclassified telephone conference call with counsel for all parties on October 15,2009, and a
classified status hearing on October 16,2009, to discuss the parties' motions for leave to amend
and their respective objections to the other side's amended exhibits. Discussion principally
focused on Al Kandari's objections to Respondents' newly amended exhibits ("Amended
Exhibits"), and in particular, on his objection to the admission of certain of the Government's
Amended Exhibits on the basis that Petitioner's counsel would not have an opportunity to show
3 In addition, on October 6,2009, AI Kandari filed under seal an Emergency Motion for
Production of Documents and Rule 30(b)(6) Deposition, which the Court denied by Minute
Order dated October 8, 2009.
4The Court noted two exceptions for (l) documents offered for rebuttal purposes, and (2)
exculpatory documents, as to which the Government has a continuing obligation to disclose.
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or discuss those exhibits with his client, Ai Kandari, prior to the Merits Hearing. In an effort to
address this specific objection, Respondents - with the Court's firm encouragement - assisted
Petitioner's counsel in obtaining expedited declassification review of certain exhibits and in
arranging a secure telephone conversation between Petitioner's counsel and Al Kandari in
Guantanamo on Sunday, October 18,2009, to discuss the Amended Exhibits. s
At the close of the October 16,2009 hearing, the Court granted Al Kandari's motion for
leave to amend his Exhibit List and granted-in-part and held in abeyance-in-part Respondents'
motion for leave to amend the Statement of Material Facts and the Government's Exhibit List.
The Court made clear that it would not exclude Respondents' Amended Exhibits from
consideration ex ante because of the importance of ensuring that its ruling on Al Kandari's
habeas petition was made on the basis of all available evidence. The Court indicated instead that
it would permit the presentation of all evidence, including Respondents' Amended Exhibits,
during the course ofthe Merits Hearing and would reserve its final decision regarding the parties'
objections to particular pieces of evidence until after all evidence and the parties' positions
thereto had been considered. The Court notes that while the volume of Respondents' Amended
Exhibits was not insignificant, Respondents' request for leave to amend was timely filed in
compliance with the parties' own proposed schedule and both parties were aware that the number
of amended exhibits submitted with respect to Al Kandari - the last of the four habeas petitions
in this case - was likely to be substantial, given the parties' ongoing efforts to respond to the
Court's prior rulings in these habeas cases. Nonetheless, Al Kandari's concerns regarding the
timing of the Government's Amended Exhibits and its effect on his ability to respond to the
, Petitioner's counsel subsequently confirmed at the start of the Merits Hearing that he
had been able to speak with his client through the secure telephone connection on October 18,
2009.
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Amended Exhibits would be considered by the Court in determining the weight to be afforded to
any particular piece of evidence during the course of the Merits Hearing. 6 Al Kandari gave no
indication that he required additional time in light of this evidentiary approach to further
investigate the Amended Exhibits or to augment the record in order to present an adequate
defense as to those exhibits, nor did he request a postponement of the Merits Hearing.
Accordingly, the Merits Hearing began as scheduled on Monday, October 19,2009. As
the hearing progressed, Al Kandari's objections to the Amended Exhibits became increasingly
focused on the allegation that his defense was hampered by his counsel's inability to conduct a
further investigation into certain of those exhibits because of the timing of their submission by
the Government. On the morning of the fourth day of the Merits Hearing, Thursday, October 22,
2009, the Court halted the parties' presentation of evidence to address the issue. Observing that
most of the evidence relied upon by Respondents from the Amended Exhibits neither raised new
allegations against nor contained new information concerning Al Kandari, the Court cautioned
that Al Kandari must specify precisely how he would be prejudiced if the Court were to rely on
the Amended Exhibits in ruling on his habeas petition. The Court advised the parties that it
would provide Petitioner's counsel a final opportunity before the close of the Merits Hearing to
identify - with specificity - the particular actions counsel would have taken in order to
complete Al Kandari's defense with respect to the Amended Exhibits, if counsel had additional
time. To the extent Petitioner'S counsel was able to identify such actions with particularity, the
Court would order the record held open for the limited purpose of permitting counsel additional
6 Cf Al Harbi v. Obama, Civ. Act. No. 05-2479,2010 WL 2398883, at ·10 (D.D.C. May
13,2010) (permitting the late addition of evidence submitted by the Government "because of the
importance of ruling on the habeas petitions of Guantanamo Bay detainees based on all of the
available evidence," but indicating that the Court would consider ''the timing of the disclosure []
and its effect on [petitioner's] ability to respond to respondents' accusations in determining what
value to place on the document's contents").
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time to conduct the requested investigation with respect to the Amended Exhibits and any
exhibits submitted at the Court's request during the Merits Hearing. In the absence of any
particularized assertions of prejudice, however, the Court would conclude that Al Kandari had
completed his defense as to these exhibits; the Court would close the factual record at the end of
the Merits Hearing, as anticipated, and make its final decisions on both the exclusion of evidence
and the merits of Al Kandari's habeas petition on the present record.
Accordingly, immediately prior to closing arguments, Petitioner's counsel was presented
with an opportunity "to identify what [Petitioner] need[ed] to do to complete [his] defense as it
relates to ... these new exhibits." 10/22/09 (AM) Mrts. Hr'g Tr. at 14:3-5. This opportunity
was specifically limited to the Amended Exhibits as well as to any evidence newly presented at
the Court's request during the course of the Merits Hearing. See id at 57: 19-25,58: 12-19. The
Court made clear that it was not permitting Al Kandari the opportunity to advance new
objections to previously disclosed evidence or to reopen discovery as to all issues. See 10/22/09
(PM) Mrts. Hr'g Tr. at 60: I-II. At that time, Petitioner's counsel made seven specific requests
for further action with respect to the Respondents' Amended Exhibits only. Based on these
particularized representations, the Court agreed to leave the record open for Al Kandari to pursue
these specific actions. Although this course of action would inevitably delay final resolution of
Al Kandari's petition for habeas corpus, Petitioner's counsel confirmed that his client preferred
to obtain a continuance of the Merits Hearing rather than rest his defense and leave the Court to
make its final decisions on both the exclusion of evidence and the merits of Al Kandari's habeas
petition on the present record. See id at 66:5-19.
The record was therefore left open for the limited purpose ofperrnitting Petitioner's
counsel to pursue the specific actions identified on the record at the close ofthe Merits Hearing.
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The Court ordered Respondents to search and disclose certain information requested by
Petitioner regarding the Amended Exhibits by no later than November 24, 2009. To the extent
Respondents' searches uncovered responsive information that was inculpatory in nature, the
Court indicated that the Government would be permitted to seek leave to augment the record
with this additional material as well. Pursuant to the schedule suggested by the parties and
adopted by the Court, on February 26, 2010, the Government - but not AI Kandari - filed a
Motion to Augment the Record. Al Kandari opposes that Motion, which is now fully briefed and
pending before the Court. By contrast, Al Kandari did not seek to admit any additional evidence
into the record in response to the seven areas of concern related to the Respondents' Amended
Exhibits, despite having been permitted an additional four months to conduct further
investigations in order to complete his defense as to those exhibits. With the Court's leave,
however, AI Kandari filed a Petition for Writs of Habeas Corpus Ad Testificandum directed at
securing certain testimony relating to the Amended Exhibits as well as a supplemental brief in
support of his objections to certain of the Amended Exhibits. See Feb. 3, 2010 Order.' The
Government opposes AI Kandari's Petition for Writs of Habeas Corpus Ad Testificandum, which
is now fully briefed and pending before the Court. Both Respondents' Motion to Augment the
, AI Kandari's remaining requests for additional discovery were denied in the Court's
February 3,2010 Order. The Court found that the Government had complied with its discovery
obligations concerning statements made by two individuals, Abdulrabman AI Bathali (ISN
157245) and Mohammed Monsour Jabarah. In addition, the Court denied Al Kandari's request
to obtain testimon t writs of habeas co us ad testificandum relating to two exhibits,
ecause these exhibits had been
disclosed to A Kan ·'s counsel in e Amen e actua eturn, his request to obtain further
discovery with respect to such evidence was outside the bounds of the Court's order leaving the
record open only as to the Amended Exhibits. Ultimately, as the Court has not relied on either of
the two exhibits at issue, or on
any statements made by the two in iVl ua s at issue, Jabarah or Al Bathali, in reaching its
decision herein, Al Kandari is not prejudiced by the Court's decision denying his requests for
additional discovery in its February 3, 2010 Order.
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Record and AI Kandari's Petition for Writs of Habeas CorpusAd Testificandum are discussed in
further detail below. See discussion infra pp. 12-13.
B. Evidentiary Issues
1. Hearsay
As stated above, the Court granted the parties' motions to rely on hearsay evidence in this
proceeding. The plurality in Hamdi v. Rumsftld specifically acknowledged that "[h]earsay
... may need to be accepted as the most reliable available evidence from the Government." 542
U.S. 507, 534 (2004). The Court finds that allowing the use of hearsay by both parties balances
the need to prevent the substantial diversion of military and intelligence resources during a time
of hostilities, while at the same time providing Al Kandarl with a meaningful opportunity to
contest the basis of his detention. The Court is fully capable of considering whether a piece of
evidence (whether hearsay or not) is reliable, and it has made such determinations in the context
of the evidence and arguments presented during the Merits Hearing - including any arguments
the parties made concerning the unreliability of hearsay evidence. Cf Parhat v. Gates, 532 F.3d
834,849 (D.C. Cir. 2008) (explaining, in the context of the Detainee Treatment Act, that the
Court was "not suggest[ing] that hearsay evidence is never reliable - only that it must be
presented in the form, or with sufficient additional information, that permits [the finder of fact] to
assess its reliability") (emphasis in original). The D.C. Circuit recently approved this approach
to the admission of hearsay evidence, explaining that "the 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 of reliability it exhibits." AI-Bihani v. Obama,
590 F.3d 866, 879 (D.C. Cir. 2010); Awad v. Obama, 608 F.3d 1, 7 (D.C. Cir. 2010) (affinning
that "hearsay evidence is admissible in this type of habeas proceeding ifthe hearsay is reliable");
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Al Odah v. Obama, 611 F.3d 8, 14 (D.C. Cir. 2010) (same).8
2. Presumption of Accuracy and Authenticity
For similar reasons, the Court shall deny the Government's motion to have its evidence
admitted with a presumption of accuracy and authenticity. Relying in part on the Supreme
Court's statement in Hamdi v. Rumsfeld that "the Constitution would not be offended by a
presumption in favor of the Government's evidence, so long as that presumption remained a
rebuttable one and fair opportunity for rebuttal were provided," 542 U.S. at 534, the Government
argues that a presumption as to its evidence is both appropriate and necessary. The Court
disagrees. One of the central functions of the Court in this case is ''to evaluate the raw evidence"
proffered by the Government and to determine whether it is "sufficiently reliable and sufficiently
probative to demonstrate the truth of the asserted proposition with the requisite degree of clarity."
Parhat, 532 F.3d at 847. Simply assuming the Government's evidence is accurate and authentic
does not aid that inquiry. Cf Ahmedv. Obama, 613 F. Supp. 2d 51, 55 (D.D.C. 2009) (rejecting
a presumption of accuracy for the Government's evidence and holding that ''the accuracy of
much of the factual material contained in [the Government's] exhibits is hotly contested for a
host of different reasons ...").
The Court also finds that there are significant reasons why the Government's proffered
evidence may not be accurate or authentic. Some of the evidence advanced by the Government
has been "buried under the rubble of war:' Hamdi, 542 U.S. at 532, in circumstances that have
8 To the extent Al Kandari contends that the Court's approach to the admission of hearsay
deviates from the standard set forth in the CMO, the Court disagrees. Nonetheless, even
assuming Al Kandari is correct, "the CMO governing the Guantanamo habeas cases expressly
authorizes judges assigned to adjudicate habeas petitions to 'alter the framework [set out in the
CMO] based on the particular facts and circumstances of their individual cases.'" Barhoumi v.
Obama, 609 F.3d 416, 422 (D.C. Cir. 2010) (quoting CMO, 2008 WL 4858241, at *1 n.l)
(approving of district court's decision to depart, in its discretion, from the CMO's procedural
framework regarding the admissibility of hearsay).
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not allowed the Government to ascertain its chain of custody, nor in many instances even to
produce information about the origins of the evidence. Other evidence is based on so-called
"unfinished" intelligence, information that has not been subject to each of the five steps in the
intelligence cycle (planning, collection, processing, analysis and production, and dissemination).
Based on the Government's own declarations, its raw intelligence may not have been fully
analyzed for its "reliability, validity, and relevance" in the context of other intelligence where
"judgments about its collective meaning" are made. 9 Ex. 58 at 3-5 (09/19/08 Decl. of.
Ex. 59 at 1-2 (05/29/09 Decl. of explaining
that the five steps in the intelligence cycle are not "mechanical" and that the process "var[ies] by
collection specialty," but not disturbing the conclusion that "unfinished" intelligence has not
undergone the same rigorous integration and evaluation process that produces "finished"
intelligence).10 Still other evidence is based on multiple layers of hearsay (which inherently
raises questions about reliability), or is based on reports of interrogations (often conducted
through a translator) where translation or transcription mistakes may occur. Accordingly, the
Court shall not accord a presumption of accuracy or authenticity to the Government's evidence,
but shall consider the accuracy or authenticity of the evidence in the context of the entire record
and the arguments raised by the parties.
9 The intelligence reports utilized by the Department of Defense ("DOD"), which include
Intelligence Information Reports ("IIRs") and "Summary Intelligence Reports" ("SIRs"),.
are distinguishable from the law enforcement forms utilized by the
Federal Bureau of Investigation ("FBI"), which are referred to as Field Documents ("FD-302s")
and Form 40s ("FM-40s"). See discussion infra p. 41.
10 All citations to exhibits (cited as "Ex.") refer to the parties' joint exhibits submitted at
the Merits Hearing.
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3. AI Kandari's Pre-Hearing Motions to Exclude Evidence
The Court shall also use the same approach to consider Al Kandari's pre-hearing
evidentiary motions, as supplemented by his post-hearing briefing, that sought to exclude
particular pieces of evidence based on their alleged lack of authenticity, reliability, or relevance.
Rather than exclude evidence from consideration ex ante by examining it in a vacuum, the Court
concludes that the better approach is to make such determinations after considering all of the
evidence in the record and hearing the parties' arguments related thereto. Cf Al-Bihani, 590 FJd
at 880 ("Where the touchstone of a proceeding is 'meaningfulness,' empowering a district court
to review and assess all evidence from both sides is a logical process."). The Court believes this
approach is particularly useful where, as here, a document viewed in isolation may appear to be
irrelevant, but when considered in the context of the other evidence in the record its importance
may become clear. Accordingly, the Court's consideration of the evidence proffered by the
parties shall encompass inquiries into authenticity, reliability, and relevance. Cf Parhat, 532
F.3d at 847 (describing the Court's inquiry into whether evidence is "'sufficiently reliable and
sufficiently probative to demonstrate the truth of the asserted proposition with the requisite
degree of certainty"') (quoting Concrete Pipe & Prods., Inc. v. Constr. Laborers Pension Trust,
508 U.S. 602, 622 (1993».
4. Al Kandari's and the Government's Post-Hearing Motions
As explained above, the following post-hearing motions were filed by the parties and
remain pending before the Court: (1) Al Kandari's Petition for Writs of Habeas Corpus Ad
Testificandum; and (2) Respondents' Motion to Augment the Record. Upon consideration of the
parties' motions and responsive briefing, and their respective arguments as contained therein, the
Court shall deny both motions as moot because they relate to evidence that the Court has not
relied on in reaching its decision to deny Al Kandari's petition for habeas corpus. First, as set
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forth in Petitioner's motion, he requests the Court issue writs of habeas corpus ad testificandum
for the production of two individuals currently detained in United States' custody, Mohammed
Monsour Jabarah and AlKandari
seeks to secure testimony from the first individual, Jabarah, with respect to statements made by
him in Exhibit 76 (FD-302 and
As Al Kandari himself recognizes, however, his" petition need not be
granted if the Court excludes Exhibits 7 6 _ from consideration." Pet'r's Pet. for Writs of
Exhibit 76 or_
Habeas Corpus Ad Testificandum at 1. Accordingly, because the Court has not relied on either
in reaching its decision in this case, Al Kandari's Petition for Writs of
Habeas Corpus Ad Testificandum is denied as moot. Second, the Government seeks in its
motion to augment the record to include two additional pieces of evidence that relate to_
Again, however, the Court does not reach herein e i t h e r _ or the
Government's allegation Accordingly,
Respondents' Motion to Augment the Record is also denied as moot. The record before the
Court is therefore limited solely to evidence submitted by the parties prior to or during the Merits
Hearing in this case.
C. Standard ofDetention
The Government derives its authority to detain Al Kandari from the Authorization for
Use of Military Force ("AUMF"), Pub. L. 107-40, 115 Stat. 224 (2001).11 The D.C.Circuit has
J I The Government's proposed definition for its detention authority is found in the
Memorandum that it submitted in this case on March 13,2009. According to the Government,
[t]he President has the authority to detain persons that the President determines
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held that the President's authority to detain individuals under the AUMF includes, but is not
necessarily limited to, "those who are part of forces associated with al Qaeda or the Taliban or
those who purposefully and materially support such forces in hostilities against U.S. Coalition
partners." Al-Bihani, 590 F.3d at 872. Both prongs of this test, which are informally referred to
as the "part of' and the "support" prongs, are "valid criteria that are independently sufficient to
satisfy the standard" for lawful detention under the AUMF. Id. at 874.
In this case, the Government contends that it is lawfully authorized to detain Al Kandari
because he was part of al Qaeda, the Taliban, or associated enemy forces. See Jt. List of
Contested Issues, Docket No. [663]. Although the D.C. Circuit "has yet to delineate the precise
contours of the 'part of inquiry," Barhoumi, 609 F.3d at 424, this Court is not without guidance.
The Court of Appeals has emphasized that the focus of this inquiry is whether an individual is
"functionally part of' a1 Qaeda, the Taliban or affiliated forces. Bensayah v. Obama, 610 F.3d
718, 725 (D.C. Cir. 2010) (emphasis added). For example, while proof that "a detainee was part
of the 'command structure' ofal Qaeda [] satisfies the requirement to show that he was 'part of
al Qaeda," such a showing is not necessary. Awad, 608 F.3d at 11 (rejecting claim that "there
must be a specific factual finding that [the detainee] was part of the 'command structure' ofal
Qaeda"); Bensayah, 610 F.3d at 725 ("That an individual operates within a1 Qaeda's formal
command structure is surely sufficient but is not necessary to show he is 'part of the
organization."). Similarly, proof that an individual actually fought for or on behalf of aJ Qaeda or
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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the Taliban, while sufficient, is also not required to demonstrate that an individual is a "part of'
such enemy forces. See AI-Bihani, 590 F.3d at 872-73. Ultimately, the determination whether an
individual is a "part of' al Qaeda, the Taliban, or associated forces, "must be made on a case-by­
case basis by using a functional rather a fonnal approach and by focusing upon the actions of the
individual in relation to the organization." Bensayah, 610 F.3d at 725.
D. Burden ofPersuasion
Pursuant to the CMO that the Court adopted in this case on December 22, 2008, the
Government bears the burden of proving by a preponderance of the evidence that Al Kandari is
lawfully detained. See In re Guantanamo Bay Detainee Litig., Misc. No. 08-442, CMO § II.A
(Nov. 6, 2008) ("[t]he government bears the burden of proving by a preponderance of the
evidence that the petitioner's detention is lawful") (citing Boumediene, 128 S. Ct. at 2271)
("[nhe extent of the showing required of the government in these cases is a matter to be
determined."). The D.C. Circuit has affirmed that "a preponderance of evidence standard is
constitutional in evaluating a habeas petition from a detainee held at Guantanamo Bay, Cuba."
Awad, 608 F.3d at 10; see also Al Odah, 611 F.3d at 14 ("It is now well-settled law that a
preponderance of the evidence standard is constitutional in considering a habeas petition from an
individual detained pursuant to authority granted by the AUMF."). Accordingly, Al Kandari
need not prove his innocence nor testifY on his own behalf. The burden of proof has remained on
the Government at all times. The Court has drawn no inference based on Al Kandari's decision
not to testifY in this case. Accord Awad v. Obarna, 646 F. Supp. 2d 20, 24 (D.D.C. 2009), affd,
Awad, 608 F.3d 1. The Government must come forward with evidence demonstrating by a
preponderance of the evidence that Al Kandari is lawfully detained, and if the Government fails
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to meet this burden, the Court must grant AI Kandari's petition for habeas COrpUS. 12
II. DISCUSSION
The following facts are uncontroverted and/or uncontested. Al Kandari is a citizen of
Kuwait and was 26 years old at the time of his arrival in Guantanamo in 2002. Stip. of Fact , 13.
In or around August 2001, AI Kandari traveled to Kabul, Afghanistan. Id, 15. He was
subsequently captured while fleeing the mountains near Tora Bora shortly after the feast of
Ramadan, which the Court takes judicial notice occurred on or around December 16, 200 I. Ex.
139 at' 7 (03/06/09 Decl. of AI Kandari); Ex. 27 (11/20/03 AI Kandari I1R); Ex. 99 (Timeline of
Operation Enduring Freedom); 10/19/09 Mrts. Hr'g. Tr. at 47:24-48:1.
Al Kandari's activities within Afghanistan during this time, however, are in dispute. At
Kandari asserts that he engaged in charitable work while in Afghanistan and that he was
attempting to escape the fighting in that country when he was captured fleeing Tora Bora. The
Government contends that AI Kandari joined with and fought along side members of al Qaeda,
the Taliban, or associated forces, while in Afghanistan. For this reason, among others, the
Government argues that it is more likely than not that Al Kandari was part of al Qaeda, the
Taliban, or associated forces, and is therefore lawfully detained pursuant to the President's
authority under the AUMF.
The record in this case is voluminous. The Merits Hearing took place over five days, and
the parties have introduced approximately 230 exhibits into the record, consisting of AI
Kandari's own statements as well as the statements of numerous third-party sources and other
12 Cognizant that some of the individuals discussed in this Memorandum Opinion are
currently detained at Guantanamo Bay and may themselves have habeas petitions pending in the
United States District Court for the District of Columbia, the Court notes that its findings in this
case are necessarily made solely on the basis ofthe evidence now before it and the parties'
respective arguments thereto.
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documents. Ultimately, the Court finds that AI Kandari's own statements and admissions against
interest regarding his travel and activities in Afghanistan between August and mid-December of
2001 are sufficient to demonstrate that it is more likely than not that Al Kandari was part of
forces associated with al-Qaeda and/or the Taliban. The Court's discussion of the evidence in
the record shall proceed in two steps. First, relying solely on Al Kandari's own statements, both
in his declaration and in his statements to Government interrogators, the Court shall describe Al
Kandari's version of events leading up to his detention~ identify several of the reasons why Al
Kandari's exculpatory version of events is not credible; and explain why Al Kandari's own
statements and admissions against interest demonstrate that Al Kandari was more likely than not
part ofal-Qaeda, the Taliban, or associated forces. Having found that AI Kandari's own
statements and admissions against interest discussed at the first step are by themselves sufficient
for the Government to meet its burden in this case, the Court need not reach the other evidence
offered by the Government but shall nonetheless briefly discuss the remaining evidence in the
record at the second and final step.
A. Al Kandari's Own Statements
The record now before the Court consists of Al Kandari's statements made to
Government interrogators dwing the course of his detention as well as a declaration, sworn to
under penalty of perjury, submitted by Al Kandari in 2009 in support of his habeas petition. Al
Kandari urges the Court to exclude, or at minimum decline to consider, all of his statements
made to interrogators and rely solely on statements made in his declaration. He advances four
principal arguments in support of this assertion. Given the importance of the Government's
evidence regarding Al Kandari's statements to Government interrogators and the centrality of
such statements to the Government's case, the Court addresses each of these arguments at the
outset.
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First, Al Kandari asserts that the interrogation reports recording his statements should be
excluded as hearsay because he does not speak English and his interrogations were necessarily
conducted through interpreters. 13 While the use of an interpreter to relay AI Kandari's otherwise
admissible answers "does introduce a level of technical hearsay," this does not require the
exclusion of his interrogation answers from these habeas proceedings. AI-Bihani, 590 F.3d at
879 ("But that such evidence [is] hearsay does not automatically invalidate its admission.").14
The question for this Court is not whether Ai Kandari's statements to interrogators are
admissible, but what probative weight should be given to such statements. Id.
Second, Ai Kandari argues that the use of an interpreter to facilitate his interrogations
renders the Government's reports of his interrogation answers inherently unreliable as a category
of evidence. In support of this contention, Ai Kandari has introduced the Declaration of Karin C.
Ryding, Ph.D., Concerning Arabic Interpretation Issues, see Ex. 195, and a newspaper article
from April 7, 2004, containing an interview with who was identified as one
of the interpreters who facilitated_interrogation of Al Kandari (as reported in Exhibit
n Statements made by AI Kandari at his Administrative Review Board ("ARB")
Proceeding demonstrate that, at least at the time of those proceedings, he had a basic level of
proficiency in English. See generally Ex. 121 (AI Kandari ARB Statement). Although the
specific date of Petitioner's ARB Proceeding is unknown, as Exhibit 121 is itself undated and the
Government did not introduce any further evidence on this point, Petitioner's counsel indicated
during the Merits Hearing that Al Kandari's ARB Proceeding would likely have taken place no
earlier than 2005, a point the Government did not dispute. 10/23/09 Mrts. Hr'g Tr. at 44:8-16.
There is no other evidence in the record as to AI Kandari's ability to speak and understand
English prior to the date of his ARB Proceedings. Accordingly, although the Court finds that Al
Kandari had some proficiency in English by the time of his ARB Proceeding, which likely
occurred sometime after 2005, the Court cannot draw any specific conclusions as to Al Kandari's
ability to speak and understand English during the initial years of his detention when he made the
majority of the statements at issue.
14 It is of course settled that Al Kandari's "interrogation answers themselves [are] not
hearsay; they [are] instead party-opponent admissions that would [be] admi[ssible] in any U.S.
Court. That they were translated does not affect their status." Al-Bihani, 590 F.3d at 879
(internal citations omitted) .
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28), see Ex. 194. Neither Exhibit 194 nor Exhibit 195 discuss Al Kandari's statements or
identify any specific errors in the interrogation reports now in the record. Dr. Ryding opines that
"it cannot be presumed that Arabic interpretation in the interrogation of detainees, whether
perfonned by a native speaker of Arabic or an American with some command of [Modem
Standard Arabic], was fully accurate or reliable." Ex. 195 at' 32. reported
comments, at most, merely support the same conclusion reached by Dr. Ryding - namely, that
interrogation reports facilitated by an interpreter should not be presumed to be automatically
reliable or accurate. See Ex. 194. But the Court has not presumed that any evidence in these
proceedings, including the interrogation reports of Al Kandari's own statements, are either
accurate or reliable. Rather, it has reserved that determination to be made after considering all of
the evidence in the record and hearing the parties' arguments related thereto. To the extent Al
Kandari advances specific arguments that particular interpreter-related errors occurred, the Court
shall consider such evidence and arguments in evaluating the probative weight of those
statements. 15
Third, Al Kandari's counsel argued during the Merits Hearing that the reports of Al
Kandari's statements are not reliable because they "[are] not and do[] not even purport to be a
verbatim transcript of what the interpreter said that [AI Kandari] said," but rather are written in a
"swnmary fashion." 10/20/09 (AM) Mrts. Hr'g Tr. at 15:6-12. That intelligence reports include
summaries, rather than a verbatim transcript, of AI Kandari's statements does not render the
reports inherently unreliable. Cf Abdah v. Obama, _ F. Supp. 2d _, 2010 WL 1798989, at
15 Cf Al Harbi, 2010 WL 2398883, at *5 (considering specific interpreter error identified
by detainee, where detainee explained that the use of the word ''join'' by the interpreter poorly
conveyed his meaning in speaking with interrogators, as he would have used a Russian word with
a connotation suggesting that he physically went to a particular location, not that he had become
a part of a particular group).
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*11 n.l6 (D.D.C. Apr. 18,2010) (''that an SIR lacks certain details does not make the
information it does include inaccurate"). While it may be a reason not to presume the reports are
reliable or accurate, the Court has not granted the Government's evidence any such presumption
of accuracy or reliability in this case. Rather, consistent with the Court's evidentiary approach in
this matter, the Court shall consider the summary nature of the reports, and whether AI Kandari
has identified any specific statements that he claims are inaccurate as the result of their
presentation in summary form, in reaching its decision about how much probative weight, if any,
to afford a particular piece of evidence.
Fourth and finally, Al Kandari broadly asserts in his declaration that the interrogation
reports containing his answers to Government interrogators are plagued with inaccuracies, the
implication of which is that they cannot and should not be relied on. Al Kandari states in his
declaration that he has reviewed his interrogation answers and "see[s] many places where my
statements have been so badly distorted or taken out of context that they are not true." Ex. 139 at
~ 9 (03/06/09 Dec!. of Al Kandari). The Court emphasizes that Al Kandari has not argued in
these habeas proceedings that any of his statements were the product of abuse or coercion. While
Al Kandari makes a general claim in his declaration that he was subjected to abusive and
coercive interrogation tactics by the United States, he does not claim that he ever made any
statements that were the product of such alleged abuse and coercion. See Ex. 139 at ~ 8
(03/06/09 Decl. of Al Kandari). Similarly, while Al Kandari makes a general claim in his
declaration that his interrogators "tried to make me confess to things I did not do, and to say
things about other people I did not know," he does not claim that such alleged efforts were
successful- i.e., that he in fact made false statements as a result of these alleged interrogation
tactics. See id Indeed, neither Al Kandari in his declaration nor his counsel at the Merits
Hearing claimed that Al Kandari has ever made false or inaccurate statements because of the
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Government's alleged abuse and/or use of coercive interrogation tactics. Moreover, when
specifically asked by this Court during the Merits Hearing if Al Kandari was advancing a claim
of abuse in this case, Al Kandari's counsel explicitly acknowledged that AI Kandari's
generalized claims of abuse are "not relevant to what the Court has to decide." 10/21109 (PM)
Mrts. Hr'g Tr. at 13:10-12~ see also 10/22/09 (AM) Mrts. Hr'g Tr. at 87:2-3 ("Your Honor, we're
not claiming that Mr. AI Kandari made false statements as a result of coercive tactics."); id. at
93:22-94:8 ("The Court: ... But as I understand it, you're not claiming that he was coerced to
make false statements. Mr. MacLean: Your Honor, we don't have a basis to make that - ...
We're not making that claim, Your Honor."). Accordingly, there is no claim in this case that, as
a result of coercion, Al Kandari made statements to interrogators that he knew to be false, such
that his statements, although accurately reported, are unreliable. 16
AI Kandari instead argues that he never made certain inculpatory statements attributed to
him - i.e., that such statements are not accurately reported and are therefore unreliable. While
Petitioner's counsel speculated at the Merits Hearing that these alleged distortions and errors
referred to by Al Kandari may be the result of interpreter error, among other potential
possibilities, he conceded that Al Kandari himself has not proffered an explanation for these
16 Given the stipulation by Petitioner's counsel that Al Kandari's broad claims of abuse
are not relevant to this case, the Court need not detennine whether Al Kandari's claims of abuse
are reliable, accurate, and credible. Nonetheless, the Court notes that the only indication in the
record that such abuse in fact occurred is Al Kandari's own statement in his declaration, which
was submitted in support of his habeas petition, that he was subjected to abuse and coercive
interrogation tactics by the United States Government. See Ex. 139 at , 8 (03/06/09 Decl. of AI
Kandari). Counsel for Petitioner has not directed the Court to any other evidence in the record,
nor is the Court itself aware of any, that supports this claim by Al Kandari that he was abused by
the United States. Moreover, the Court notes that Al Kandari's allegations of abuse, which are
limited to a lone paragraph in his declaration, are entirely vague and conclusory in nature, lacking
any detail as to when and where such abuse allegedly occurred, the nature of the alleged abuse,
and/or who was responsible for the alleged abuse. See ld. Nor does Al Kandarl link the alleged
abuse to any of his statements as a product ofcoercion.
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alleged errors. See 10/22/09 (AM) Mrts. Hr'g Tr. at 91 :19-92: l. Save for a few limited
exceptions, see Ex. 139 at " 17, 28 (03/06/09 Dec!. of Al Kandari), AI Kandari has not disputed
the specific wording of any particular statement he is reported to have made nor has he identified
any particular phrases that he alleges are the result of interpreter error, see generally id Rather,
Al Kandari has in most instances simply offered a blanket denial that he made certain inculpatory
statements. See Ex. 139 at' 9 (03/06/09 Decl. of Al Kandari) ("As to these statements, I can
only say that they are not my words.").
After considering the evidence in the record and the parties' respective arguments thereto,
the Court finds that such blanket denials, where they have been made without further explanation
or support, are not credible. As compared to his inculpatory admissions against interest made to
Government interrogators, Al Kandari's statements in his declaration denying that he made
certain prior inculpatory statements lack sufficient indicia of reliability. The Court emphasizes
that with respect to those statements that Al Kandari now denies having made to Government
interrogators, there is no evidence in the record that AI Kandari ever recanted or denied making
such assertions to the Government interrogators during his interrogations. Rather, it is only in his
declaration, submitted several years after-the-fact, that Al Kandari denies having made these
statements. Al Kandari has a motive to deny prior statements that are inculpatory in nature. Cf
Awad v. Obama, 608 F.3d 1,8 (D.C. Cir. 2010) ("[I]t accords with common sense that he may
have had a motivation to lie about his own involvement in nefarious activity ...."). Moreover,
the Court notes that Al Kandari himself does not dispute the accuracy of many of his statements
as reported in the Government's interrogation reports - at least as to many of those statements
that are exculpatory in nature. As is discussed below, Al Kandari states in his declaration that he
traveled to Afghanistan for charitable purposes; engaged solely in charitable activities while
there; and was captured while attempting to flee to Pakistan to avoid the ongoing fighting in
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Afghanistan. These are the same basic assertions that he is consistently reported to have made to
Government interrogators (although, as is discussed below, many of the specific details of Al
Kandari's explanation vary between his different statements). As a practical matter, Al Kandari
asks this Court to accept the accuracy ofthese exculpatory statements to interrogators, at least to
the extent they are consistent with his declaration, while simultaneously asking the Court to
reject as inaccurate any and all inculpatory statements he made to interrogators during his
detention. The Court declines to do so. Nonetheless, insofar as AI Kandari offers specific
indications that particular statements he is reported to have made are inaccurate or unreliable, the
Court shall consider his evidence and arguments in evaluating the probative weight of those
specific statements.!'
As the above discussion reveals, a key inquiry in this case is the extent to which the Court
assesses Al Kandari's statements - in his declaration as well as in his statements to Government
interrogators - as credible, accurate, and reliable. In evaluating Al Kandari's statements, the
Court shall proceed as follows. First, the Court shall set forth Al Kandari's version of events.
As indicated above, AI Kandari has maintained both in his declaration and in his statements to
Government interrogators that he engaged in charitable work only while in Afghanistan and was
attempting to escape the fighting in that country when he was captured fleeing Tora Bora.
Second, the Court shaH identify several reasons why AI Kandari's exculpatory statements
explaining his reasons for traveling to and his activities within Afghanistan are not credible.
Third, the Court shall consider AI Kandari's inculpatory statements admitting that he was given a
17AI Kandari has made one additional argument in favor of his assertion that the Court
should not rely on the Government reports of his interrogation answers. Specifically, his counsel
argued in pre-hearing motions that because Al Kandari has submitted his own declaration in this
matter, there is no need to rely on Government interrogation reports. Such an argument is clearly
without merit and warrants little attention.
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Kalishnikov rifle and taught how to use it, and that he associated with members of al Qaeda, the
Taliban, or associated forces, while in Tora Bora, and shall explain why these statements are
credible and reliable. Ultimately, the Court fmds that Al Kandari's 0'Ml statements and
admissions against interest demonstrate that it is more likely than not that he was part of al
Qaeda, the Taliban, or associated enemy forces, and is therefore lawfully detained under the
President's authority pursuant to the AUMF.
.L Al Kandari's Version of Events
Al Kandari states that he traveled to Pakistan in June of2001 to visit Sheikh Mohammed
WaH Allah Arrahmani, whom he describes as a respected Pakistani scholar. Ex. 139 at' 3
(03/06/09 Decl. ofAl Kandari.); Ex. 7 (l 0/27/04 AI Kandari SIR). While in Pakistan, he studied
at Sheik Arrahmani's school. Ex. 139 at' 3 (03/06/09 Decl. of Al Kandari). After staying with
Sheik Arrahamani in Pakistan for approximately two months, Al Kandari decided to travel to
Afghanistan for the purposes of doing charitable work. Ex. 139 at' 3 (03/06/09 Decl. ofAl
Kandari). According to AI Kandari, this decision was consistent with his prior history of doing
charitable work, which includes traveling to other countries such as Pakistan and Bosnia to assist
with charitable projects. Ex. 139 at" 2, II (03/06/09 Decl. of Al Kandari); Ex. 28 (05/06/02 AI
Kandari FD-302 ); Ex. 6 (03/18/03 Al Kandari MFR); Ex. 74 (05/23/02 AI Kandari FD-302).
See also Ex. 140 (02/22/09 Dec!. ofM. Al Kandari).
AI Kandari left Pakistan in or around August of 2001 to head to Afghanistan. Ex. 139 at
, 3 (03/06/09 Decl. of Al Kandari)~ Ex. 27 (11120/03 Al Kandari IIR). He traveled first to
Kandahar before then proceeding on to Kabul. Ex. 139 at' 3 (03/06/09 Decl. ofAl Kandari);
Ex. 27 (11120/03 Al Kandari IlR). Upon his arrival in Kabul, Al Kandari went to the local office
of ai-Wafa al-Igatha al-Islamia ("al-Wafa"). Ex. 139 at' 4 (03/06/09 Decl. of AI Kandari); Stip.
of Fact 1 16; Ex. 27 (11/20/03 Al Kandari IIR); Ex. 7 (10/27/04 AI Kandari SIR). Although the
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parties introduced evidence
Ex. 25 (9/19/08 Decl. o~tip. of Fact ~ 3~
, Al Kandari states in his declaration that
he went to al-Wafa because it was "[o]ne ofthe principal charitable organizations in Afghanistan
at that time," and he "never had any reason to suspect" that al-Wafa was involved with al Qaeda,
Ex. 139 at ~ 4 (03/06/09 Decl. of Al Kandari).
At al-Wafa, Al Kandari inquired about opportunities for charitable work and was directed
by a member of the organization to a village located approximately 45 minutes to one hour
outside of Kabul. Ex. 139 at `` 4-5 (03/06/09 Decl. of Al Kandari); Ex. 7 (l 0/27/04 Al Kandari
SIR); Ex. 27 (11/20/03 Al Kandari llR). He traveled to this unnamed village, arriving sometime
in early September 2001. Ex. 139 at ~ 5 (03/06/09 Decl. of Al Kandari); Ex. 28 (05/06/02 Al
Kandari FD-302). While there, Al Kandari worked on a charity project digging a well for the
community. Ex. 139 at' 5 (03/06/09 Decl. of Al Kandari). He stayed in this village for
approximately one and a half months until Coalition forces began bombing Afghanistan, which
the Court takes judicial notice occurred on October 7, 2001. Ex. 139 at ~ 5 (03/06/09 Decl. ofAl
.Kandari); Ex. 7 (10/27/04 Al Kandari SIR); Ex. 28 (05/06/02 Al Kandari FD-302); Ex. 99
(Timeline of Operation Enduring Freedom).
At that time, Al Kandari realized that he should leave Afghanistan. Ex. 139 at ~ 6
(03/06/09 Decl. of Al Kandari). He left the village where he had been staying and returned to
Kabul. Ex. 139 at ~ 6 (03/06/09 Decl. of Al Kandari); Ex. 28 (05/06/02 AI Kandari FD-302). He
went back to the al-Wafa office there, but found that it was closed. Ex. 139 at ~ 6 (03/06/09
Decl. of Al Kandari); Ex. 28 (05/06/02 Al Kandari FD-302). A taxi cab driver suggested that he
go to Jalalabad and offered to take him there for a large sum of money. Ex. 139 at ~ 6 (03/06/09
Decl. of Al Kandari); Ex. 28 (05/06/02 Al Kandari FD-302). Upon arriving in JaJaIabad, Al
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Kandari met a Saudi named Abdul Rahman aI Kasimi, who permitted AI Kandari to stay at his
house for approximately two days. Ex. 139 at' 6 (03/06/09 Decl. of Al Kandari); Ex. 28
(05/06/02 Al Kandari FD-302). Al Kandari explains that fighting was breaking out everywhere,
and Arabs were being rounded up by police and militias to be handed over in exchange for
money. Ex. 139 at ~ 7 (03/06/09 Decl. ofAI Kandari). He joined with a small group of Arabs
who were trying to flee the fighting through the Tora Bora mountains. Ex. 139 at' 7 (03/06/09
Decl. of AI Kandari). The group walked for a few days in the mountains, but they were
eventually captured by Afghani villagers while staying the night at a village home owned by an
unidentified Afghani. Ex. 139 at , 7 (03/06/09 Decl. of AI Kandari); Ex. 27 (11/20/03 AI
Kandari I1R). AI Kandari was later transferred into American custody. Ex. 139 at ~ 7 (03/06/09
Decl. of AI Kandari); Ex. 27 (11/20/03 Al Kandari I1R).
2. Al Kandari's Version of Events is Not Plausible
Having reviewed all of the evidence in the record and listened to counsel's arguments
during the Merits Hearing, the Court concludes that AI Kandari's explanation for his time in
Afghanistan, as asserted in both his declaration and in his statements to Government
interrogators, is not plausible for three principal reasons. First, AI Kandari's version of events
suffers from several inconsistencies. Second, Al Kandari's explanation does not fully explain or
account for his time in Afghanistan. Third, AI Kandari's exculpatory statements are not credible
in several key aspects.
a. AI Kandari's version of events suffers from several
inconsistencies.
First, AI Kandari's version of events suffers from several inconsistencies that have not
been explained. Although AI Kandari has maintained the same general explanation for his time
in Afghanistan throughout his detention - that he traveled to Afghanistan for charitable
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purposes; engaged solely in charitable activities while there; and was captured while attempting
to flee to Pakistan to avoid the ongoing fighting in Afghanistan - the specific details provided
by AI Kandari regarding his activities have varied and have even conflicted at times. For
example, Al Kandari has offered conflicting statements as to the identify of the individual he
spoke with at the al-Wafa office in Kabul when he initially inquired about possible charitable
opportunities and was referred to the unnamed needy village. Al Kandari has variously asserted
that he spoke with: (a) an unidentified worker at the aI-Wafa office, but was unable to speak with
the Director, whom Al Kandari explained was not present at the office at that time of his visit,
Ex. 7 (l 0/27/04 Al Kandari SIR); (b) a man whom he believed at the time to be the Director of
the Kabul al-Wafa office and whom he later learned upon his arrival at Guantanamo Bay was
Abdallah AI Matrafi (ISN 005), Ex. 27 (11/20/03 Al Kandari IIR); see also Ex. 32 (1l/20/03 Al
Kandari IIR) (met w i t h _ at the al-Wafa office), a Saudi whom the Govenunent
identifies as Ex. 2 5 .
Decl.); Ex. 32 (11120/03 AI Kandari IIR);18 and (c) an unidentified man with a long beard who
was neither a Saudi nor a Kuwaiti and whose name he did not know, Ex. 28 (05/06/02 AI
Kandari FD-302). AI Kandari's declaration does not clarify these inconsistencies, indicating
only that he briefly met with an unidentified official at the Kabul al-Wafa office. Ex. 139 at ~ 5
(03/06/09 Decl. of AI Kandari).
In addition, Al Kandari has offered conflicting reasons for his initial decision to travel to
Pakistan and then to Afghanistan. During an interrogation in May of 2002, Al Kandari explained
18 In contrast to these statements admitting that he met with Al Matrafi at the al- Wafa
office in Kabul, the Court notes that AI Kandari has at other times denied that he met AI Matrafi
or otherwise knew of him prior to AI Kandari's detention at Guantanamo Bay. See Ex. 74
(05/23/02 Al Kandari FD-302) (stating that he was unfamiliar with AI Matrafi); Ex. 7 (l0/27/04
Al Kandari SIR) (stating that he met Al Matrafi for first time at Guantanamo Bay).
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that he went to Pakistan to look up a Sheik, whose name he could not recall, with whom Al
Kandari had been in communication; he stated that he stayed at the Sheik's apartment, which was
located near an unidentified Islamic school, for approximately two months before then traveling
to Afghanistan after learning that there had been a famine in that country. Ex. 28 (5/6/2002 AI
Kandari FD-302). In both an October 2004 interrogation and in his present declaration, however,
Al Kandari stated that he had actually been invited to Pakistan by Sheik Arrahmani, whom he
was able to identify by name, to study at the Sheik's madrassa. Ex. 7 (10/27/04 Al Kandari SIR);
Ex. 139 at' 3 (03/06/09 Decl. of Al Kandari). Al Kandari also initially advised interrogators that
he had first heard about al-Wafa from Sheik Arrahmani, but when later asked who had first told
him about al-Wafa, stated only that he "used to hear about it." Ex. 7 (10/27/04 AI Kandari SIR).
AI Kandari's declaration does not provide clarification, indicating simply that he went to
Afghanistan because he had decided that it was the best place for charitable work. Ex. 139 at ~ 3
(03/06/09 Decl. of AI Kandari). Similarly, AI Kandari has variously stated that he went to at·
Wafa to inquire where he could make a charitable donation of six to seven thousand dinars, Ex.
28 (05/06/02 Al Kandari FD-302), and that he went to al-Wafa to inquire where he could go to
build a well, Ex. 7 (10/24/04 AI Kandari SIR); see also Ex. 139 at ~ 5 (03/06/09 Decl. ofAl
Kandari) (assisted villagers with digging a well).
AI Kandari has also offered inconsistent statements regarding his travel path immediately
after the bombing campaign began in October of 200 I. He stated on one occasion that, upon
returning to Kabul and discovering the al-Wafa office closed, he initially decided to travel south
away from Kabul and then decided to reverse his travel path and head to lalalabad only after
traveling south for an unspecified period oftime. Ex. 27 (11/20/03 Al Kandari IIR). Al Kandari
has otherwise indicated, however, that he left Kabul directly for lalalabad, which the Court takes
judicial notice is east of Kabul. Ex. 74 (05/23/02 Al Kandari FD-302) (stating he located a taxi
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driver to drive him directly from Kabul to Jalalabad); see also Ex. 28 (05/06/02 Al Kandari FD­
302); Ex. 139 at , 6 (03/06/09 Dec!. of Al Kandari).
Finally, Al Kandari has provided conflicting statements as to whether he met with Anas
Al Kandari ("Anas"), while in Afghanistan. Al Kandari repeatedly admitted to Government
interrogators on multiple occasions that he met Anas during his visit to the Kabul office of al-
Wafa, Ex. 7 (10/27/04 Al Kandari SIR); Ex. 28 (05/06/02 Al Kandari FD-302); Ex. 32 (11/20/03
Al Kandari IIR); Ex. 43 (10/06/05 Al Kandari IIR); Ex. 122 (6/15/05 Al Kandari SIR), and that
Anas told Al Kandari during this meeting that he and an associate, Jassem Al Hajeri, had recently
received military training at the Libyan camp in Afghanistan, Ex. 28 (05/06/02 Al Kandari FD­
302); Ex 43 (10/06/05 Al Kandari IIR); Ex. 122 (6/15/05 Al Kandari SIR). However, in his
declaration submitted nearly eight years later as part of this litigation, Al Kandari denies these
admissions for the first time, stating that he "did not meet Anas Al Kandari in Afghanistan" and
that he has "no knowledge about anything [AnasJ did." Ex. 139 at' 17 (03/06/09 Decl. of Al
Kandari). The Court finds that Al Kandari's contradictory denial in his declaration, made
without further explanation, is not credible, and therefore serves to undennine the credibility of
his declaration. Al Kandari's prior admissions with respect to Anas are consistent across several
interrogations, and there is no indication in any of the interrogation reports that his admissions on
this point were viewed by the interrogators themselves as incredible or unreliable. It is also
significant that Al Kandari never recanted his admission that he met and spoke with Anas at aJ-
Wafa during any of the multiple interrogations in which he consistently admitted to having met
Anas in Afghanistan. 19 Moreover, given Anas' admission to Al Kandari that he received military
19 At least one Government interrogator, however, anticipated that Al Kandari might
attempt to deny certain statements he made regarding Anas at some later point. See Ex. 122
(6/15/05 Al Kandari SIR) (noting that Al Kandari identified Al Hajeri as Anas' associate,
although he had previously denied knowing any ofAnas' associates) ("Interrogator speculates
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training, and the Government's Wlcontroverted evidence that Anas was responsible for leading an
attack on United States Marines on Faylaka Island in Kuwait on October 8, 2002, during which
attack both he and were killed, Al
Kandari clearly has a motivation to deny any association with or knowledge of Anas or Anas'
associate AI Hajeri.
b. Al Kandari's version of events does not fully accoWlt for his time
in Afghanistan.
Second, Al Kandari's explanation of events does not fully accoWlt for his time in
Afghanistan. Al Kandari maintains that he remained in the unnamed village outside of Kabul
until Coalition forces began their bombing campaign on Sunday, October 7,2001, at which time
he states that he returned to Kabul. As the unnamed village in which Al Kandari stayed was
allegedly located only 45 minutes to one hour by car outside of Kabul, it is reasonable to infer
that his return trip from the unnamed village to Kabul would have taken no more than one day.20
Upon arriving in Kabul and finding the al-Wafa office closed, Al Kandari states that he paid a
that detainee will realize the mistake detainee made in reference to Anas and Jassem Al Hajeri.
Detainee will most likely claim interpreter error in an effort to correct any possible perception of
deceptive behavior.").
2Q While Al Kandari has generally indicated - both in his statements to Government
interrogators and in his declaration submitted in support of his habeas petition - that he returned
to Kabul shortly after the air strikes on Afghanistan began on October 7, 2001, the Court located
one instance in the record in which Al Kandari asserted that he did not return to Kabul until
approximately two days before its fall, which the Court takes judicial notice occurred on
November 14, 200 I. Ex. 27 (11120/03 Al Kandari llR); Ex. 99 (Timeline of Operation Enduring
Freedom). Neither the Government nor AI Kandari relied on this statement at the Merits
Hearing. Regardless, the statement, even if credited, does not alter the Court's finding above that
Al Kandari's version of events fails to fully account for his time in Afghanistan. AI Kandari
provides no explanation for his activities during the month between his departure from the
unnamed village shortly after the October 7, 200 I air strikes began and his alleged arrival in
Kabul on November 9, 2001, and an unexplained delay of one month in traveling to Kabul
contradicts Al Kandari' s claim that he realized soon after the bombing campaign began on
October 7, 2001, that he should leave Afghanistan as soon as possible.
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cab driver a large sum of money to drive him from Kabul to Jalalabad. The Court takes judicial
notice that lalalabad is located approximately 90-100 miles east of Kabul. See Ex. 94 (map of
Afghanistan with scale). Al Kandari has never suggested that the drive from Kabul to lalalabad
took an unusual or extended period of time; absent any indication to the contrary, it is reasonable
to infer that this trip would have taken no more than one or two days. Accordingly, Al Kandari's
own statements place him in Jalalabad by no later than October 14, 2001, approximately one
week after his departure from the unnamed village on or around October 7, 2001.21
Upon his arrival in Jalalabad, Al Kandari states that he stayed with al Kassimi in
Jalalabad for two days. He then joined a group of Arabs who were trying to flee through the
mountains ofTora Bora and traveled with them for a few days in the mountains before he was
ultimately captured by Aghan forces. Therefore, according to Al Kandari's own version of
events, he was captured no more than five days after his arrival in Jalalabad, which would place
his capture on or around October 19,2001. It is uncontroverted, however, that Al Kandari was
not actually captured by Afghani villagers and turned over to American forces until
approximately two months later, shortly after December 16,2001. Ex. 139 at ~ 7 (03/06/09 Decl.
of Al Kandari Decl.); Ex. 27 (11/20/03 Interrogation of Al Kandari); Ex. 99 (Timeline of
Operation Enduring Freedom). Al Kandari's own explanation for his activities in Afghanistan
therefore creates a "missing" two months of time for which Al Kandari cannot account.
Moreover, the fact that Al Kandari was unwilJing repeatedly to provide a full explanation
for his time and activities in Afghanistan is itself evidence that undennines the veracity of his
21 As noted previously, the Court located one instance in the record in which Al Kandari
stated that he initially traveJed south away from Kabul for an unspecified time before ultimately
deciding to reverse his travel path and head to lalalabad. Ex. 27 (11120/03 Al Kandari IIR).
Even if this statement were credited, it does not address or resolve the deficiencies in AI
Kandari's explanation, as outlined above.
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version of events. Al Kandari is by no means an unsophisticated individual, having studied
Shari'a law at college in Ra's al Khayman, United Arab Emirates. Stip. of Fact 114. His
interrogators repeatedly noted as much, observing him to be "very polite and well-educated" and
"smart with the attitude that the interrogation team cannot catch him." Ex. 6 (03/18/03 Al
Kandari MFR); Ex. 118 (08/05/03 Al Kandari MFR). The evidence in the record strongly
suggests that AI Kandari has affinnatively chosen not to provide any detailed information about
his time in Afghanistan. In late 2002, Al Kandari explicitly advised his interrogators that,
although he was willing to discuss certain issues, he would not talk about his activities in
Afghanistan. Ex. 48 (12/13/02 Al Kandari IIR); cj Ex. 43 (10/06/05 Al Kandari I1R) (assessing
Al Kandari as "deceptive" and concluding that he "is most likely withholding information"); Ex.
122 (6/15/02 Al Kandari SIR) (assessing AI Kandari as "deceptive" and noting that he "appears
to cooperate but offers infonnation of insignificant value"). Similarly, in his testimony during
his Administrative Review Board ("ARB") Proceeding, AI Kandari declined to explain his
activities in Afghanistan. See generally Ex. 121 (AI Kandari ARB Statement). In his declaration
submitted in support of his habeas petition, Al Kandari once again declined to provide any
specific details regarding his time in Afghanistan or to address any of the deficiencies identified
above. See generally Ex. 139 (03/06/09 Decl. ofAl Kandari). While recognizing that Al
Kandari has no burden to prove his innocence in these habeas proceedings, his repeated
unwillingness to provide details as to his time in Afghanistan is nonetheless inconsistent with,
and undermines the credibility of, his claim that he was an innocent charity worker who became
inadvertently trapped in Afghanistan in the wake of September 11, 2001.
c. Al Kandari's version ofevents is not credible in certain key
aspects.
Third, Al Kandari's explanation is not credible in certain aspects. Although Al Kandari
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maintains that he remained in the unidentified needy village for approximately one and a half
months, during which time he stayed in the village leader's house, Al Kandari has been
consistently unable to recall or otherwise identify the name of that village or anyone in it or
provide any other identifying information. Ex.7 (10/27/04 Al Kandari SIR); Ex. 27 (11/20/03 Al
Kandari UR); Ex. 139 at , 5 (03/06/09 Decl. of Al Kandari). Yet he is able to easily recall the
name of a restaurant near which he stayed for two days while in Kandahar on his way to Kabul in
August of 2001. See Ex. 27 (11/20/03 Al Kandari IIR) (explaining that he stayed at a hotel
located near the Ariana restaurant in Kandahar for two days); Ex. 28 (05/06/02 Al Kandari FD­
302) (same); Ex. 74 (05/23/02 Al Kandari FD-302) (same). Al Kandari explains in his
declaration that he "wrote down the name of the vilJage and the mayor and other people" in a
notebook, which he states is now in the possession of the United States Government. Ex. 139 at
, 5 (03/06/09 Decl. of A1 Kandari). The Government represented that it was unable to locate any
such notebook in its possession and also disputes Al Kandari's claim that he was detained with a
notebook. The evidence presented on this issue is conflicting. 22 However, even assuming that Al
22 During opening statements, Al Kandari's counsel indicated that the existence of this
notebook was confirmed by a statement in an interrogation report in which A1 Kandari is noted to
have been detained with a "telephone book." 10/19/09 Mrts. Hr'g. Tr. at 35:18-24. Although
counsel did not provide a specific citation at that time, it appears that counsel intended to
reference an FM40 made with respect to Al Kandari and dated March 10, 2004, a date which the
Court notes was well after his capture and subsequent transfer to United States' custody. This
document, while not introduced into evidence at the Merits Hearing, was attached as an exhibit
to the Government's Amended Factual Return and indicates, in part, that Al Kandari "was found
in possession of ... a telephone book." The Government in response introduced Exhibit 222, an
undated document which purports to relate to Al Kandari and lists ''none'' under the heading
"Pocket Litter." The Government contends this disproves Al Kandari's claim that he was
detained with a notebook. The Court fmds that this document is not sufficiently reliable to
establish that Al Kandari was detained without any possessions. The document is undated and
does not indicate the source of the statement that Al Kandari was detained with no pocket] itter
nor is there any indication as to the source of the document itself. The Government has not
offered any supporting information explaining how and when this document was compiled, who
was responsible for its creation, and the source of the information listed therein. The Court,
however, also finds that there is no support in the record, other than the speculation of
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Kandari maintained a notebook, as he asserts in his declaration, this fact does not negate the
implausibility of his continued inability to independently recall any information identifying: the
village in which he claims to have lived for approximately six weeks; the village leader, whose
house he asserts he stayed in during his one and a half months in the village; or any of the local
villagers, whom he alleges to have worked beside for the duration of his stay in the village.
In addition, Al Kandari's assertion that he visited al-Wafa solely for assistance in locating
a village where he could do charitable work, and that he "never had any reason to suspect" that
al-Wafa was associated with al Qaeda, is not credible on the present record. Al Kandari has
acknowledged that Suleiman Abu Ghaith was present at the al-Wafa office in Kabul during his
visit, and that he himself was aware of Abu Ghaith's presence at the al-Wafa office, although he
maintains that he did not see or speak with Abu Ghaith at that time. Ex. 32 (11/20/03 Al Kandari
IIR); cf Ex. 139 at' 27 (03/06/09 Decl. of AI Kandari) (stating that he did not see or speak with
Abu Ghaith in Afghanistan, but containing no denial of his statement that he was told Abu
Ghaith was also present at the aI-Wafa office in Kabul). Al Kandari has also admitted that Abu
Ghaith is associated with al Qaeda, describing him in multiple interrogations as Usama Bin
Ladin's spokesman, a fact that is uncontroverted on the present record. See Ex. 32 (11/20/03 Al
Kandari IIR); Ex. 38 (12/04/03 Al Kandari IIR); Ex. 74 (05/23/02 Al Kandari FD-302); cf Ex.
139 at' 27 (03/06/09 Dec!. of Al Kandari). Indeed, Al Kandari himselfhas characterized Abu
Ghaith as a dangerous individual with extremist views. Ex. 38 (12/04/03 Al Kandari IIR). That
Petitioner's counsel, that the telephone book referred to in the March 20, 2004 FM40 is the same
notebook discussed in Al Kandari's declaration. The Court is thus unable to fmd either that Al
Kandari was detained with a notebook in his possession listing the name of the village in which
he stayed, as Petitioner urges, or that AI Kandari was detained without any possessions, as the
Government urges. The Court draws no inferences for or against Al Kandari based on this
evidence, but finds only that it is implausible that Al Kandari cannot independently recall the
information at issue.
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Abu Ghaith was present at the al-Wafa office in Kabul, and that AI Kandari was aware of his
presence there, undennines the credibility of his claim that he "never had any reason to suspect"
81-Wafa supported or was associated with al Qaeda. 23
Similarly, AI Kandari's assertion that he, along with a group of other noncombatants,
"were trying to flee the fighting through the Tora Bora mountains" is not credible. While AI
Kandari refers generally to the "Tora Bora mountains," the Govenunent's uncontroverted record
evidence explains that "Tora Bora is the name of a cave complex, approximately 9.5 km wide
and 10 km long, embedded within a 100 mile stretch of the White Mountains of Eastem
Afghanistan." Ex. 34A at I (I 9/1 0/09 Decl. o~ This cave complex was used in the
1990's by Usama Bin Ladin as his headquarters, and he returned there in late 2001 after the fall
of the Taliban regime in Afghanistan to join the many Taliban and al Qaeda fighters who had
retreated to the complex to make their last stand against the United States and its allies. Id at 2.
Travel from Jalalabad to Tora Bora took approximately "10 to 15 hours over donkey trails
through difficult terrain." Id at 3. Its remote location, combined with the fact that the "Tora
Bora cave complex has historically been used by al-Qaida and its precursor organizations as a
fortified defensive position," makes it unlikely that Al Kandari simply wandered from lalalabad
into the mountains near and around Tora Bora. Id Similarly, in light of "Usama Bin Ladin's
widely known call for fighters to join him ... at Tora Bora" and his "robust operational security
23 The Court notes that AI Kandari also acknowledged to Government interrogators that
he saw, inter alia, Hamid Madhi al Azmi, a.k.a. Abu JamiJa, and his brother Saad Madi Saad
Moash al Azmi (ISN 571), ak.a. Abu Daoud, at the al-Wafa office. Ex. 32 (11120/03 Al Kandari
IIR). The Government has introduced uncontroverted evidence that both Abu Jamila and Abu
Daoud were members of, or substantially supported, al Qaeda. See Ex. 83 (8/31/04 ISN 157425
IIR); Ex. 133 (7/1 0/04 ISN 157425 IIR). Nonetheless, there is no indication on the present
record that AI Kandari was aware of the al Azmi brothers' association with al Qaeda at the time
he saw them at the al- Wafa office in Kabul. In the absence of such evidence, the Court declines
to draw any inferences from AI Kandari's admission that Abu JamiJa and his brother Abu Daoud
were also present at the al-Wafa office during his visit.
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procedures," it is unlikely that Al Kandari, as a noncombatant, would have gone to Tora Bora or
would have even been allowed into the area by aJ Qaeda or Taliban forces, ifhe had managed to
make it there. Id. at 4.1"
This is particularly so in this case, given the Court's findings below that, while in Tora
Bora, Al Kandari was given a Kalishnikov rifle and trained on how to use it by an individual who
was more likely than not associated with al Qaeda and/or the TaJiban, and that he also met and
associated with several members and high-level leaders of al Qaeda, the Taliban, or associated
enemy forces in Tora Bora, many of whom were actively engaged in fighting the United States
and its allies. Al Kandari's assertion that he, as a noncombatant with no connections to or prior
associations with al Qaeda or the Taliban, would have been permitted not only to wander through
Tora Bora, but to also meet and associate with members and high-level leaders of al Qaeda
and/or the Taliban while he was armed with a Kalishnikov rifle, is utterly implausible. Surely al
Qaeda and the Taliban would not allow an unknown and untrusted noncombatant to be located
near and closely associate with key leaders and their fighting forces in Tora Bora during the
height of the Battle ofTora Bora. Cf AI-Waraji v. Obama, _ F. Supp. 2d _,2010 WL
1404001, at *8 (D.D.C. Mar. 24, 2010) ("It is inconceivable that the Taliban would allow an
outsider to stay at their front line camp just to see what the fighting was like. An outsider whose
trustworthiness and loyalty are unknown poses a threat to a miliary camp."). Accordingly, these
24 Although counsel did not explicitly raise the argument at the Merits Hearing, the Court
notes that Al Kandari argued in his Traverse that he could only reach Pakistan by traveling
through the Tora Bora mountains, an assertion which the Court finds is not credible. While it
appears that Al Kandari no longer relies on this assertion, the Government nonetheless
introduced evidence at the Merits Hearing that the shortest and simplest route from lalalabad to
Pakistan was through the famed ~s, 45 miles from lalalabad. 10/19/09 Mrts. Hr'g Tr. at
49: 11-50:25; Ex. 34A (l 0119/09 ~ecl.). In contrast, as indicated above, the route
through the mountains ofTora Bora required a difficult climb into and then through bitterly cold
mountains where a~ Taliban fighters were making their stand against coalition forces.
and
Ex. 34A (l0I19/09_Decl.).
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findings, which are discussed in detail below, further undennine and discredit Al Kandari's claim
that he was simply a noncombatant attempting to flee the fighting through the mountains of Tora
Bora.
* * *
In summary, then, the Court finds that Al Kandari's explanation for his travel to and
activities within Afghanistan is not plausible for the reasons set forth above. While Al Kandari
does not bear the burden of proving his innocence, the Court's finding that his version of events
is not worthy of belief is itself of some probative value. Recent D.C. Circuit precedent counsels
that the provision by a detainee of an implausible explanation for his activities in Afghanistan is
a relevant consideration in these habeas proceedings given the "well-settled principle that false
exculpatory statements are evidence - often strong evidence - of guilt." Al-Adahi v. Obama,
_ FJd ---J 2010 WL 2756551, at *5 (D.C. Cir. July 13, 2010). The Government has also
introduced evidence that the particular explanation provided by Al Kandari in this case is
consistent with al Qaeda counter-interrogation tactics. See Ex. 50 (02/10/08 Decl. o f _
[d. at 2; see also Al-Adahi, 2010 WL 2756551 at *9 ("Put
bluntly, the instructions to detainees
_ Ex. 50 at 3 (02/10/08 Decl. o~ Evidence that Al Kandari provided an
implausible explanation for his reasons for traveling to and his activities within Afghanistan, and
that the explanation provided is consistent with al Qaeda counter-interrogation tactics, therefore
supports a reasonable inference that Al Kandari was not in Afghanistan solely to assist with, and
did not engage solely in, charitable work, as claimed. While this inference standing alone is
insufficient to find that Al Kandari became "part of' the forces of the Taliban or aI Qaeda, the
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Court fmds that this evidence is probative and shall be considered in the context of the other
record evidence.
~. Al Kandari's Admissions Aiainst Interest Regarding His Activities and
Association with Members of al Oaeda. the Taliban. or Associated Enemy
Forces. While in Tora Bora
The Court turns next to consider AI Kandari's statements and admissions against interest
made to Government interrogators regarding his activities and association with members of al
Qaeda, the Taliban, or associated enemy forces, while in Tora Bora. Although significant
portions ofAI Kandari's time in Afghanistan are not accounted for, Al Kandari was, by his own
admission, in the mountains near Tora Bora for at least some portion, if not the entirety, of the
Battle ofTora Bora. The Court takes judicial notice that the Battle ofTora Bora took place from
December 6, 2001, through December 17,2001, with the most intense strikes occurring in the
last week of fighting between December 10 and 17,2001. See Ex. 99 (Timeline for Operation
Enduring Freedom); Ex. 34A at 2 (l01I9/09~ecl.). Al Kandari was captured fleeing
Tora Bora shortly after December 16,2001, and asserted that he had been traveling through the
mountains of Tora Bora for a least a few days prior to his capture. Ex. 27 (11/20/03 Al Kandari
IIR); see also Ex. 28 (05106/02 Al Kandari FD-302) (stating that he was in Tora Bora during
Ramadan). Accordingly, AI Kandari's own admissions place him in or near Tora Bora during
the most intense portion of the Battle ofTora Bora. Ex. 99 (Timeline of Operation Enduring
Freedom) (Ramadan began on November 17,2001 and ended on December 16, 2001).
Significantly, AI Kandari has admitted that during this time he (a) was given a
Kalishnikov rifle and taught how to use it, and (b) met and associated with various members and
high-level leaders ofal Qaeda, the Taliban, or associated enemy forces. For the reasons set forth
below, the Court finds that Al Kandari's statements and admissions as to these two points are
both reliable and credible, and demonstrate that it is more likely than not that Al Kandari was
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part of forces associated with al Qaeda or the Taliban. In reaching this conclusion, the Court
proceeds in three steps. First, the Court shall discuss Al Kandari' s admission that he was armed
with a Kalishnikov rifle while in Tora Bora and explain both why this admission is reliable and
credible and why it is reasonable to infer that the individual who provided Al Kandari with the
weapon and training was more likely than not associated with al Qaeda and/or the Taliban.
Second, the Court shall discuss Al Kandari's admissions that he met and associated with several
individuals while in Tora Bora, describe the Government's evidence connecting these same
individuals with al Qaeda and/or the Taliban, and explain why both Al Kandari's admissions and
the Government's evidence on these issues are reliable and credible. Third and finally, the Court
shall explain why this evidence is sufficient by itself to satisfY the Government's burden of proof
in this case.
a. AI Kandari was given a weapon and taught how to use it.
Al Kandari admitted to Government interrogators that he was given a Kalishnikov rifle
and taught how to use it while he was in Tora Bora. Ex. 28 (05106/02 Al Kandari FD-302). The
statement, as reported in Exhibit 28, reads in relevant part as follows:
He stated that he heard that arabs were being killed in Jalalabad, that the road to
Peshawar was closed and that people were fleeing to the mountains. He went with
Al Qasim to a mountain village which overlooked Jalalabad. At first Al Kandari was
happy because he was told that there were five hundred arabs in the village, although
he saw only about twenty. In the village he saw a Kuwaiti, identified as Abu
Sulaiman, who advised him that he went to Afghanistan to get military training. Al
Kandari stated that this was during Ramadan. He stated that he was in fear and
claimed that he did not know how to use a weapon, but that he was given a
Kalishnikov and taught how to use it. He stated that he knew some ofthe arabs there,
including Mohammed Taha Mowala, Hamed Asulaiman and Abu Hafs. Bombing
was getting closer to them, it became very scary. He said that people were creating
routes to escape to JalaIabad.
Ex. 28 (05/06/02 AI Kandari FD-302) (emphasis added).
At the Merits Hearing, Al Kandari's counsel argued that this admission against interest is
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unreliable. In particular, counsel maintained that the statement is ambiguous and appears to
indicate that Abu Sulaiman, not Al Kandari, was given a gun and taught how to use it: "The 'he'
there is entirely ambiguous, but given the past tense, it would appear that this is Al Kandari
continuing to relate what this Abu Sulaiman told him about his military training." 10/20/09
(AM) Mrts. Hr'gTr. at 18:23-19:1. The Court is unpersuaded by this argument. As an initial
matter, this assertion is advanced solely by counsel. AI Kandari himself has never denied, in his
other statements to Government interrogators or in his declaration, that he was given a weapon
and taught how to use it while in Tora Bora. See Ex. 139 (03/06/09 Decl. of Al Kandari);
10/20/09 (AM) Mrts. Hr'g Tr. at 48:5-10 ("[AI Kandari] had this document and he has never
denied carrying the Kalishnikov. That is nowhere in his declaration."). Similarly, although
Exhibit 28 was attached to the Amended Factual Return in this case, Al Kandari himself has
never claimed that he advised interrogators that the Kalishnikov rifle was given to Abu
Sulaiman, and not to him. 2~
Moreover, contrary to his counsel's assertions, the statement by Al Kandari is not
ambiguous. Each sentence of the paragraph cited above reports what Al Kandari stated to the
Government interrogators, and the paragraph as a whole is written entirely in the past tense. The
phrase "he stated" is consistently used throughout the report to indicate that the information that
foHows is derived from oral declarations made by AI Kandari to the interrogators. The only fair
2~ The Court notes that Al Kandari was on notice that the Government read his statement
in Exhibit 28 as an admission that he, not Abu Sulaiman, was given a Kalishnikov rifle and was
taught how to use it. The Government introduced into evidence Exhibit 29, a summary review of
all information derived from FBI investigations of Al Kandari prior to April 6, 2005. See Ex. 29
(4/6/05 FBI Admin. Review). As set forth therein, the FBI reported Al Kandari to have stated
that he "saw a Kuwaiti man who advised that he had received military training in Afghanistan.
Al Kandari told this man that he was afraid and that he did not know how to use a weapon. Al
Kandari was given a Kalishnikov and taught how to use it at this time." Id
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reading of this paragraph is as follows:
In the village he [AI Kandari] saw a Kuwaiti, identified as Abu Sulaiman, who
advised him [AI Kandari] that he [Abu Sulaiman] went to Afghanistan to get military
training. AI Kandari stated that this [his meeting with Abu Sulaiman] was during
Ramadan. He [AI Kandari] stated that he [AI Kandari] was in fear and claimed that
he [AI Kandari] did not know how to use a weapon, but that he [AI Kandari] was
given a Kalishnikov and taught how to use it.
The argument advanced to the contrary by Petitioner's counsel is without merit.
The Court notes that Exhibit 28 is a FD-302. The Government has submitted a
declaration outlining the relevant standards and procedures that the FBI follows in producing FD­
302s. See Ex. 56 (Decl. As explained therein, FD-302s are used to
Petitioner's counsel nonetheless argued at the Merits Hearing that various inconsistencies
in Exhibit 28 demonstrate that the docwnent as a whole is unreliable. For example, counsel
noted that the docwnent is dated May 6, 2002, but contains information gathered from
interrogations on May 2 and 13,2002. As explained in the_Declaration, it is
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In this case,
the final date of the FD-302 is listed as "May 6, 2002," which is the same date as listed in the
lower left comer. See Ex. 28 (05106/02 Al Kandari FD-302). The Court agrees with Petitioner's
counsel that this date appears to be in error, as it would seem that a final draft of the FD-302
could not have been produced until after the infonnation from the second interrogation on May
13,2002, was incorporated therein. Nonetheless, the fact that the final date for the document
was not changed or updated after the second interrogation does not cast the reliability of the
entire document in doubt, particularly given that the FBI agent responsible for the FD-302 must
certify the substantive accuracy of the statements reported therein. Nor is the date of the FD-302
relevant to Al Kandari's specific admission that he was given a gun while in Tora Bora. The
Court is therefore hard-pressed to see how the date of the final report affects the reliability of Al
Kandari's own uncontroverted admission against interest.
Petitioner's counsel also noted that the document reports statements by Al Kandari that
(a) "he went to Afghanistan in June, 2001," and (b) "in August, 2001, ... he went to Qandahar,
Afghanistan...." Counsel argued that these statements are inherently contradictory and cast
doubt on the reliability of the statements in the document. The Court disagrees. A statement that
an individual went to Afghanistan in June of2001 does not necessarily conflict with a statement
that the same individual also went to Afghanistan in August of2001. Regardless, to the extent
these particular statements conflict, such a conflict at most affects the reliability of the statement
that A1 Kandari traveled to Afghanistan in June of2001, as the parties have stipulated that Al
Kandari traveled to Afghanistan in August of2001. Stip. of Fact '15. The Court, however, has
not relied on the statement that Al Kandari traveled to Afghanistan in June of2001 in reaching
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its fmdings in this case, and it remains unpersuaded that this alleged conflict is materia! to the
reliability of Al Kandari's uncontroverted admission against interest that he was in Tora Bora
during Ramadan and that he was given a Kalishnikov rifle and taught how to use it at that time.
Cf Abdah, 2010 WL 1798989 at *11 n.l6 (rejecting detainee's assertion that his statements in
intelligence reports are inaccurate, in part because "none of the minor discrepancies to which [the
detainee] points ... are sufficiently important to have bearing on the Court's determinations
regarding the main, relevant facts"). Accordingly, upon considering the evidence in the record
and the parties' arguments thereto, the Court finds that AI Kandari's uncontroverted admission
that he was armed with, and trained on the use of, a Kalishnikov rifle while in Tora Bora is both
credible and reliable. 26
Finally, while the evidence does not specifY from whom Al Kandari received the weapon
and training, the Court finds that it is more likely than not that he was given the Kalishnikov rifle
and taught how to use it by an individual who was associated with a! Qaeda or the Taliban. As is
explained in the next section below, Al Kandari admitted that he was with or in the vicinity of
26 The Court notes that the Government submitted at the Merits Hearing a second
statement by Al Kandari for the purpose of rebutting the assertion by Petitioner's counsel that the
statement in Exhibit 28 should either be read to indicate that Abu Sulaiman, n t 1 .
given a gun or found unreliable for the reasons described above.
evidence in the record
information indicating either the identity of those responsibl
or the circumstances in which these statements were made, and the Government has not provided
further evidence on this point. See id The Court, however, need not conclusively determine the
reliability of this statement on the present record, as the Government submitted_
solely for purposes of rebutting counsel's arguments relating to Exhibit 28, arguments which the
Court has already rejected for the reasons set forth above. _ is therefore unnecessary
to the Court's finding above that Al Kandari's admission in Exhibit 28 is reliable.
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several members and high-level leaders of at Qaeda, the TaJiban, or associated enemy forces,
while in Tora Bora, during the Battle ofTora Bora, at or around the same time he was given the
Kalishnikov rifle. It is reasonable to infer that any individual who was in this area during the
height of the Battle of Tora Bora, and who was both armed with a spare Kalishnikov rifle and
capable oftraining another person on its use, would have been a member of or associated with at
Qaeda or the Taliban. The converse - that a noncombatant, unknown to at Qaeda or the
Taliban, would have been permitted to wander through Tora Bora while providing arms and
training to other individuals - is simply implausible. Cf Sulayman v. Ohama, _ F. Supp. 2d
_,2010 WL 3069568, at * 19 n.20 (D.D.C. July 20,2010) ("Given the Court's deep skepticism
of the notion that a complete stranger would be permitted to knowingly possess a deadly weapon
while being pennitted to stay in a fighting force's camp near the front lines, the logical result of
that reasoning is that the two individuals who allowed petitioner to take possession oftheir
weapons were more likely than not to have been a 'part of the Taliban fighting force.").21
b. Al Kandari's association with members ofal Qaeda, the Taliban, or
associated enemy forces, while in Tora Bora.
The Court next discusses Al Kandari's statements and admissions against interest
regarding his associations with members of al Qaeda, the Taliban, or associated forces, while he
21 The Government also contends that Al Kandari was injured during the Battle ofTora
Bora. As support for this assertion, the Government relies largely on Al Kandari's own
statement, in which he states that he sustained an injury to his right leg while in the mountains of
Tora Bora. Ex. 28 (05/06/02 AI Kandari FD-302). Rather than indicate that this injury occurred
during battle, however, Al Kandari explains that the injury occurred while he was being led down
the mountain from Tora Bora shortly after his capture. Id. Al Kandari's medical records from
May of 2002, on which the Government also relies, indicate that Al Kandari has a sear on his
lateral right thigh and a history of a gun shot wound on his right lateral hip, but do not indicate
whether or not these injuries were of recent origin. Ex. 137 (0511102 Al Kandari Medical
Records). The only additional evidence in the record relied upon by the Govemment for this
point appears to be based on information relayed from an unidentified second-hand source and
does not bear sufficient indicia of reliability. Ex. 44 (3/26/04 ISN 760 DR).
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was in Tora Bora. Specifically, AI Kandari has acknowledged that he met and associated with
the following individuals during this time: (a) Ibn Sheik Al Libi; (b) Abdul Qadous; (c) Abu
Thabit; (d) Abu Harnza ai-Masri; and (e) Mohammed Taha Malu-Allah. The Government has in
tum introduced evidence, both from Al Kandari himself as well as from third-party sources, that
each of these individuals was more likely than not associated with al Qaeda and/or the Taliban.
For the reasons set forth below, the Court finds that both AJ Kandari's admissions regarding his
associations with these individuals and the Government's evidence associating each of these
individuals with at Qaeda and/or the TabJiban are reJiable and credible.
Ibn Sheik AI Libi. AI Kandari admitted the following in a statement to a Government
interrogator: that he knew Ibn Sheik Al Libi; that he had met with Al Libi in Tora Bora; and that
Al Libi was leading a group of fighters in Tora Bora at the time Al Kandari met with him. Ex. 38
(12/04/03 AJ Kandari IIR).28 While Al Kandari subsequently denied these admissions in his
28AI Kandari objected to the reliability of Exhibit 38, and certain other intelligence
reports, on the basis that the reports indicate AJ Kandari was detained with a Kuwaiti passport,
but none has ever been produced by the Government and the Government now takes the position
that AI Kandari did not have his passport on him at the time of his detention by American forces.
Al Kandari argued that if, as he contends, the statement in the reports is accurate and he was
detained with his passport, he is prejudiced by the Government's failure to produce it during
discovery. Alternatively, if the Government is correct that he was not detained with a passport,
the statement in the reports to the contrary is inaccurate and is evidence of the inherent
unreliability ofthese reports. The Court cannot determine which interpretation of the statement
- Petitioner's or the Government's - is most likely correct. As indicated previously, the
Government's evidence regarding AI Kandari's pocket litter at the time of his detention is not
sufficiently reliable. See supra p. 33 n. 22. In addition, while Government counsel speculated at
the Merits Hearing that the statements at issue, which are located in the source field of the
intelligence reports, are only "summary information provided by the detainee, that [is] his own
description of himself," 10/20/09 (AM) Mrts. Hr'g Tr. at 97:6-13, the evidence before the Court
does no~a contradict this assertion, see, e.g., Ex. 58 at 8 (09119/08
ar to either confirm or
Decl.o (noting only that "Intelligence reports include a source line
that gives a escription of the source and their assessed credibility by the reporting officer.").
Similarly, Al Kandari has offered no independent evidence in support of his position that he was
detained with his passport. Although the Court is ultimately unable to resolve this question on
the present record, this dispute does not affect the Court's decision in this case. There is no
indication that Respondents' failure to produce the passport was the result of bad faith,
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declaration, see Ex. 139 at ~ 28 (03/06/09 Decl. of Al Kandari), the Court does not credit this
denial. Al Kandari states in his declaration that: "It is alleged that I have admitted knowing 'Ibn
Sheikh al~Libi [and others]. I have never known any of these people. My interrogators told me
that I must have known them, but I have always said that I did not know them, although I had
heard of them while in detention at Guantanamo." Id. While this statement appears to imply that
Al Kandari's admissions on this point were the result of interpreter error, based on a possible
misunderstanding of his statement that he knew of Al Libi from his time in Guantanamo, the
Court notes that Al Kandari admitted not only that he knew AI Libi, but also that he met with
him in Tora Bora while AI Ubi was leading a group of fighters. Ex. 38 (12/04/03 Al Kandari
IIR). It is difficult to see how such admissions - that Al Kandari knew Al Ubi and had met
with him Tora Bora, where Al Ubi was leading a group of fighters - could have resulted from a
misinterpretation of Al Kandari's statement that he did not know Ai Ubi, but had only heard of
him. Moreover, Al Kandari clearly has a motive to deny his prior inculpatory admission to
Government interrogators that he knew Al Ubi and associated with him while in Tora Bora. The
Court therefore does not credit Al Kandari's blanket denial in his declaration. By contrast, the
Court finds that Al Kandari's admissions against interest regarding his association with Al Libi,
and Al Libi's status as a leader at Tora Bora, are both reliable and credible.
To corroborate Al Kandari's own admission that Al Libi was leading fighters on behalf of
al Qaeda, the Government has submitted additional evidence supporting a finding that Al Libi
Respondents have not relied on the absence of Al Kandari's passport as a fact supporting his
detention in this case, and the presence or absence of Al Kandari's passport on his person at the
time of his detention is not material to the Court's decision in this case. Moreover, even if this
particular statement in the source field of the intelligence reports is inaccurate, it does not render
the reports automatically Wlreliable and certainly does not cast doubt on the reliability of AI
Kandari's specific, substantive admissions that he associated with members of al Qaeda, the
Ialiban, or their associated forces, in Iora Bora.
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was a member of al Qaeda (or its associated forces) and that he was charged with leading fighters
during the Battle ofTora Bora. See, e.g., Ex. 1 at 436 (National Commission on Terrorist
Attacks Upon the United States, The 9/11 Commission Report (2004» (listing Al Libi as "head
ofjihadist training camp in Afghanistan")~ Ex. 72 (11/21/02 Muhammed Noor Othman
Muhammed (ISN 707) FD-302) (identifying Al Ubi as the individual in charge of the Khaldan
training camp, at which detainee worked from 1996 to 2000)~ Ex. 88 (9/6/03 Hamud Dakhil AI­
Jidani, a.k.a. Talut (ISN 230) MFR) (identifying Al Libi as former commander ofI2010 WL 3069568 at *18 ("[T]he
Court simply cannot fathom a situation whereby Taliban fighters would allow an individual to
infiltrate their posts near a battle zone unless that person was understood to be a 'part of the
Taliban."); AI-Adahi v. Obama, 698 F. Supp. 2d 48, 65 (D.D.C. 2010) (hereinafter, "AI-Assam"')
("the fact that Petitioner was clearly accepted by al-Qaida, at a minimum, as a substantial
supporter of the organization further supports the conclusion that it is more likely than not that
Petitioner knowingly was a part of or substantially supported al-Qaida").
Similarly, it is inconceivable that al Qaeda, the Taliban, or their associated enemy forces,
would willingly arm Al Kandari with a Kalishnikov rifle and take the time to train him on its
proper use, unless Al Kandari himself was part of these organizations. Cf Anam v. Obama, 696
F. Supp. 2d 1, 16 (D.D.C. 2010) ("AI-Qaida fed, sheltered, and protected [the detainee]. ... The
only logical explanation as to why al-Qaida did all of this for Petitioner is that they considered
him a member. Petitioner must have taken some affirmative action to earn that trust and
assistance from such a clandestine organization."). The Court emphasizes that the evidence here
does not indicate merely that AI Kandari possessed a weapon, but rather supports a reasonable
inference that he was given the Kalishnikov rifle while in Tora Bora during the Battle of Tora
Bora and was trained on its use by an individual who was more likely than not associated with al
Qaeda and/or the Taliban. It is these particular circumstances in which he was given the weapon
that support the Court's finding that it is more likely than not that AI Kandari was part of al
Qaeda, the Taliban, or their associated enemy forces. Cf Al Odah, 611 FJd at 15·16 (rejecting
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petitioner's "attempt to put an innocuous gloss" over fact that he carried an AK47 in Tora Bora,
given the particular circumstances in which he received and maintained the weapon).
While there is no direct evidence in the record that AI Kandari personally used this
weapon against the United States or its Coalition partners, such evidence is not required. Al
Bihani, 590 F.3d at 872-73 (proof that an individual actually fought for or on behalf of aI Qaeda
or the Taliban, while sufficient, is also not required to demonstrate that an individual is a "part
of' such enemy forces); cf Kha/ijh v. Obama, Civ. Act. No. 05-1189, 2010 WL 2382925, at *6
(D.D.C. May 28,2010) ("While ... the government has not shown that Khalifh ... personally
took up arms against U.S. or coalition forces, it is slicing the law too thin to require such
proof."). Nonetheless, given the evidence in this case, the Court notes that it is reasonable to
infer that AJ Kandari, like the other armed combatants around him, was actively engaged in
fighting the United States and its allies. Indeed, the alternative - that he himself was armed, in
Tora Bora, during the Battle ofTora Bora, in the company of armed aI Qaeda, Taliban and
associated fighters, but was simply an island unto himself with no involvement in the fighting
going on around him - is not credible. Abdah, 2010 WL 1798989, at *20 (fact that detainee
was with men who were invoJved in the Battle of Tora Bora supported finding that detainee was
more likely than not part of aI Qaeda forces at Tora Bora, even though there was no evidence
directly showing that this detainee himselfengaged in any fighting).
Importantly, by Al Kandari's own admission, he was aware that the individuals he chose
to associate with while in Tora Bora were members of and were associated with al Qaeda and/or
the Taliban. Though his motives for coming to Afghanistan and his activities prior to the Battle
ofTora Bora cannot be conclusively determined on the present record, at a minimum it is clear
that Al Kandari knew by the time of his stay in Tora Bora that it was more likely than not that he
was joining forces with and lending support to al Qaeda and/or the Taliban. This is all the
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Government need prove. A/-Assani, 698 F. Supp. 2d at 57 ("The fact that an individual may have
been initially motivated to travel abroad for innocent reasons, or that an individual's knowledge
or intent was less than clear at inception of his journey, does not defeat the Government's case.
Instead, it is sufficient for the Government to prove by a preponderance of the evidence that, at
some point before capture, it is more likely than not that Petitioner knew he was becoming or
intended to become a part of or substantial supporter of al-Qaida and/or the Taliban.").
Given the overwhelming weight of the evidence discussed above, Al Kandari's blanket
denials in his declaration that he "never supported al-Qaida or any group that promotes violence"
and that he was "not a part ofany fighting groups" nor ever "associated in any way with any
fighting groups in Tora Bora," are simply not credible. Ex. 139 (03/06/09 Decl. of Al Kandari),
~ 22, 25, 29. In almost every significant respect, AI Kandari has failed to provide plausible
explanations for his activities in Mghanistan and the choices he made as to his movements and
associations in Tora Bora. Accordingly, taken as a whole, the Court finds that this record makes
it more likely than not that AI Kandari became part of al Qaeda, the Taliban, or their associated
enemy forces, and is therefore lawfully detained pursuant to the President's authority under the
AUMF.
B. The Government's Other Evidence
During the course of the Merits Hearing, the Government presented certain other
evidence in support of its position that Al Kandari is lawfully detained pursuant to the
President's authority under the AUMF. For the reasons set forth above, the Court finds that this
additional evidence submitted by the Government is not necessary to its decision that it is more
likely than not that Al Kandari was part of al Qaeda, the Taliban, or associated enemy forces.
Nonetheless, the Court shall briefly address such evidence below.
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Nonetheless, as made dear by the Court's finding above,
the Government's evidence regarding is not necessary to the Court's
conclusion that Al Kandari is more likely than not part of al Qaeda, the Taliban, or associated
enemy forces. The Court therefore need not, and does not, assess the docwnent's reliability or
reach the question of what probative value, if any, this evidence is entitled to in the case at hand.
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2. The Remaining Evidence
The remaining evidence in the record consists largely of third-party witness statements,
newspaper reports, and other documentary evidence. For the reasons previously explained, this
evidence is also unnecessary to the Court's decision. Moreover, the Court finds that certain of
the Government's allegations, such as its assertion that Al Kandari participated injihad in Bosnia
in the middle to late 1990's, are not material to its determination above that Al Kandari is
lawfully detained as a result of his activities in Afghanistan in 200 I, and therefore need not be
reached. The remainder of the Government's evidence concerns aIJegations that the Court fmds
are unnecessary to its determination and which, for a variety of reasons, the Court does not reach.
This includes the Government's allegations that Al Kandari: made a previous trip (or multiple
previous trips) to Afghanistan prior to the undisputed August 2001 trip discussed above, during
which trips he stayed at guesthouses and attended training camps related to at Qaeda and/or the
Taliban; was a close associate of certain high-level leaders and members of al Qaeda and/or the
Taliban, including Usama Bin Laden, Adel bu Hamid. a.k.a. al Qannas, Suleiman Abu Ghaith,
and Abu Zubaydah; served as a religious leader and provided religious training to al Qaeda and
Taliban members; mentored and advised Anas Al Kandari and other members of the
six-person cell that eventually carried out the October 8, 2002 attack on Faylaka Island; and was
engaged in the creation and dissemination of propaganda on behalf of al Qaeda and/or the
TaJiban. The evidence submitted in support of these allegations, inter alia: is in equipoise; is
based on statements and other evidence that is far more attenuated, and requires far more
inferences, than the evidence on which the Court has relied in this case; and consists of
information obtained from unknown sources or known sources that the Government refuses to
identify, and for which the Government otherwise has not provided sufficient infonnation
regarding the circumstances in which the statements were made.
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III. CONCLUSION
Because the Government has met its burden by a preponderance of the evidence in this
case, the Court shall DENY Al Kandari's petition for habeas corpus.
Date: September i5, 2010
lsi
COLLEEN KOLLAR-KOTELLY
United States District Judge
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