Al-Zarnouqi v. Bush

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UNITED STATES DISTRICT COURT FILED WITH THE
~;:~
FOR THE DISTRICT OF COLUMBIA
MASHOUR ABDULLAH MUQBEL
ALSABRI et al.,
Petitioners, Civil Action No.: 06-1767 (RMU)
v. Re Document No.: 1
BARACK OBAMA et al.,
Respondents.
MEMORANDUM OPINION
DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS
I. INTRODUCTION
This matter comes before the court on the petition for a writ of habeas corpus filed by
Mashour Abdullah Muqbel Alsabri (lSN 324) ("the petitioner"), a Yemeni national detained at
the United States Naval Station in Guantanamo Bay, Cuba ("GTMO"). The government
maintains that the petitioner was part of and provided material support to the Taliban, al-Qaida or
associated enemy forces and is therefore lawfully detained. The petitioner asserts that he was
neither part of nor supported those forces and that the court should therefore direct the
government to release him from custody immediately.
In November 2010, the court held a merits hearing addressing the legality ofthe
petitioner's detention. During the course of that hearing, which spanned four days, the parties
introduced dozens of exhibits concerning the petitioner's alleged role in the Taliban and al-
Qaida, including interrogation reports reflecting statements made by the petitioner and other
GTMO detainees, declarations of intelligence officials and translations of documents purportedly
seized from al-Qaida and Taliban facilities in Afghanistan.
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As discussed below, the government has established by a preponderance of the evidence
that the petitioner traveled from Yemen to Afghanistan in 2000 to fight with the Taliban, al-
Qaida or associated forces, stayed in Taliban and al-Qaida guesthouses, sought out and received
military-style training from the Taliban or al-Qaida, traveled to the battle lines in Afghanistan as
part ofthe Taliban or al-Qaida and remained part of those forces at the time of his capture in
early 2002. Thus, based on the totality of the evidence, the court is compelled to conclude that
the petitioner was part of the Taliban, al-Qaida or associated forces and is therefore lawfully
detained. Accordingly, the petition for a writ of habeas corpus must be denied.
II. BACKGROUND
A. Factual Overview
The petitioner is a thirty-four year old Yemeni national who was born in Mecca, Saudi
Arabia to Yemeni parents. GE 1 at 1~ GE 3 at 1. I He attended school in Saudi Arabia until
approximately the ninth grade, when he dropped out and began working odd jobs, including
driving a taxi. GE 1 at 2; GE 3 at 1; GE 10 at 1. During this period, the petitioner became
acquainted with a Yemeni man named GE 10 at l~ GE 43 at 1, a fonner
mujahaddin in Bosnia, PE 115 at 2, who would later introduce the petitioner to variousjihadists
and members of al-Qaida, see infra Part IV.B.l.a.
In late 1998, Saudi authorities arrested the petitioner for allegedly harboring an individual
wanted for passport forgery. GE 1 at 2~ GE 3 at 1~ GE 9 at 1. After a month-long stay in a Saudi
jail, the petitioner was deported to Yemen, his country of citizenship. GE 1 at 2~ GE 3 at 2. The
Citations to "GE _" refer to the exhibits introduced by the government during the merits
hearing, while citations to "PE __" refer to the exhibits introduced by the petitioner during the
merits hearing.
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petitioner was barred from returning to Saudi Arabia for a period of five years. GE 1 at 2; GE 2
at 2.
After arriving in Sana'a, Yemen from Saudi Arabia, the petitioner contacted and met with
_ GE 3 at 2-3; GE 10 at 1; GE 43 at 1. The petitioner spent a few days in Sana'a
before traveling to the city of Ta'iz, GE 3 at 2-3; GE 10 at 1, where he remained for several
weeks, living with extended family and working in the honey trade, GE 1 at 3; GE 3 at 3; GE 10
at 1. While in Ta'iz, the petitioner's uncle taught him how to use an AK-47 and a pistol. GE 3
at 5.
During this period in Ta'iz, the petitioner became acquainted with a twenty-five year old
Saudi man named GE 1 at 3; GE 10 at 2. • had received military
training from the Taliban and had fought with the Taliban in Afghanistan two years earlier. GE
1 at 3; GE 10 at 2. The petitioner and. discussed various topics, including the local honey
trade and the conflict in Afghanistan. GE 1 at 3; GE 10 at 2.
In the summer of 1999, the petitioner returned to Sana'a, purportedly in the hopes of
obtaining a visa to return to Saudi Arabia. GE 1 at 3; GE 3 at 3. While his visa application was
pending,_ arranged for the petitioner to stay at a boardinghouse operated by.
_ brother-in-law, ("the_boardinghouse"). GE 3 at 3-4; GE 43 at 1.
The petitioner shared the.oardinghouse with at least eight other men. GE 1 at 3-4; GE 3
at 3-5. At the time, th.boardinghouse served as the hub of a car theft ring whose aim was
to violently free a Yemeni terrorist from a Sana'a prison. GE 1 at 5; GE 2 at 2. Many of the
individuals who lived at or were associated with th.oardinghOUSe were veteranjihadists
and several would later travel to Afghanistan to fight with the Taliban and al-Qaida. See infra
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Part IV.B.1.a. One of these men would later be a suicide bomber during al-Qaida's October
2000 attack on the Us.s. Cole? See id.
Approximately two weeks after arriving at th.oardinghouse, the petitioner was
arrested by Yemeni authorities, along with other individuals associated with the boardinghouse,
on suspicion of involvement in the car theft conspiracy. GE 1 at 4; GE 3 at 5; GE 9 at 1. The
petitioner was released from prison in December 1999 and, after briefly visiting his uncle in
Ta'iz, returned to the.oardinghouse. GE I at 5-6; GE 9 at 2. The petitioner was re­
incarcerated for a few days by Yemeni authorities for allegedly providing a cell phone to one of
his imprisoned housemates from the.oardinghOuse. GE 1 at 5. During this period, the
petitioner socialized w i t ' - , who had also been recently released from prison, and
became acquainted with individuals whom the petitioner has admitted were members of al-
Qaida. See infra Part IV.B.l.a.
Around this time, the petitioner decided to leave Yemen and travel to Afghanistan. GE 1
at 6; GE 3 at 5. The petitioner has stated that his decision to go to Afghanistan was influenced
by a fatwa (religious decree) issued by nationally recognized religious scholars encouraging men
to travel to Afghanistan to assist the Taliban. GE 3 at 5. The petitioner also stated that he was
influenced by the former Taliban fighter he had met in Ta'iz, who
purportedly told the petitioner that he could find work and a better life in Afghanistan. GE 1 at
6; GE 3 at 5; GE 9 at 3. The petitioner did not tell anyone, including his family, that he was
planning to go to Afghanistan. GE 1 at 6.
On October 12,2000, al-Qaida operatives in a small boat laden with explosives attacked the
u.s.s.Cole, a Navy destroyer docked in the port of Aden in Yemen. PE 33 ("9/11 COMM'N
REpORT") at 190. The blast killed seventeen members of the ship's crew and wounded at least
forty other crewmembers. [d.
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In August 2000, following travel instructions provided to him b y . the petitioner flew
from Sana'a, Yemen through Bahrain to Karachi, Pakistan and then on to Quetta, Pakistan, a city
near the Afghan border. GE 1 at 6; GE 3 at 5; GE 6 at 2. In Quetta, the petitioner stayed for
three days at the Daftar al-Taliban, a Taliban-run facility which arranged for him and three other
men to be transported across the border to Kandahar, Afghanistan. GE 1 at 6; GE 3 at 6; GE 4 at
1; GE 6 at 2. The three men who crossed the border with the petitioner admitted that they were
traveling to Afghanistan to become martyrs. GE 10 at 2.
In Kandahar, the petitioner and his companions were taken to a guesthouse known as the
Haji Habash guesthouse, which was run by an individual n a m e d _ . GE 3 at 6; GE 4
at I; GE 6 at 2; GE 9 at 3. The petitioner stayed at this guesthouse for approximately two weeks.
GE 4 at 1; GE 9 at 3. From there, the petitioner traveled to Kabul, where he stayed for a few
days at a guesthouse operated by an individual named Hamza al-Ghamdi. GE 3 at 6; GE 4 at 2;
GE 9 at 4. The petitioner requested permission from al-Ghamdi to travel to the front lines, but
al-Ghamdi denied the request because the petitioner lacked weapons training. GE 9 at 4.
The petitioner then traveled on to lalalabad, where he allegedly stayed at the home of
, an individual whom. had advised the petitioner to contact once in
Afghanistan. GE 4 at 2; GE 9 at 4; GE 10 at 2. After several months, the petitioner returned to
the al-Ghamdi guesthouse in Kabul. GE 9 at 5-6. With al-Ghamdi's authorization, the petitioner
then traveled to the battle lines manned by Taliban fighters in combat with the Northern
Alliance. GE 4 at 2; GE 6 at 2; GE 9 at 6.
After leaving the Taliban battle lines, the petitioner allegedly returned t o _
house in Jalalabad. GE 4 at 3; GE 9 at 6. As coalition forces approached the city in late 2001,
the petitioner fled Jalalabad for Pakistan. GE 4 at 2; GE 6 at 3. The petitioner was arrested by
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Pakistani authorities in early 2002 and transferred to the custody of the United States military.
GE 6 at 3. He was subsequently transferred to GTMO, where he is currently detained. Pet. at 1.
B. Procedural History
The petitioner commenced this action in October 2006 by filing a petition for a writ of
habeas corpus. 3 See generally Pet. In December 2006, the court stayed the case while the
Circuit and the Supreme Court considered whether the federal district courts have jurisdiction
over habeas petitions filed by individuals detained at GTMO. See Mem. Order (Dec. 4, 2006) at
2. The Supreme Court resolved this question in Boumediene v. Bush, 128 S. Ct. 2229 (2008), in
which the Court held that individuals detained at GTMO were "entitled to the privilege of habeas
corpus to challenge the legality of their detention," id at 2262, and that the federal district courts
have jurisdiction over such challenges, id at 2274.
Although the Supreme Court did not specify what procedures the district courts were to
employ in resolving these habeas petitions, it did emphasize that the "detainees in these cases are
entitled to a prompt habeas corpus hearing." Id at 2275. Toward that end, this court and other
judges in this district agreed to consolidate their cases before Judge Hogan for the purpose of
adopting common procedures for the GTMO detainee litigation. On November 6, 2008, Judge
Hogan issued a Case Management Order ("CMO") to govern these proceedings, which he
amended on December 16,2008. See generally Am. CMO (Dec. 16,2008). This court adopted
the provisions of the amended CMO, subject to modifications set forth in an Omnibus Order
issued on April 23, 2009. See generally Omnibus Order (Apr. 23,2009).
Meanwhile, having filed its initial Factual Return for the petitioner in April 2007, the
government filed a motion to amend its Factual Return, which Judge Hogan granted in
3
The petitioner filed his petition together with another Yemeni detained at Guantanamo Bay,
Mohammad AI-Zamouqi (ISN 691). A merits hearing on AI-Zarnouqi's petition is scheduled to
begin May 2, 20 II.
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November 2008. See Order (Nov. 7,2008). Following an extensive period of discovery, the
court issued an order in February 2010 establishing dates to bring this litigation to completion.
Order (Feb. 16,2010).
On April 29, 2010, the government filed a second motion for leave to amend the factual
return, see generally Govt's 2d Mot. for Leave to Amend Factual Return, which the court
ultimately granted,4 see generally Mem. Order (June 9, 2010). The petitioner filed his traverse
on April 30, 2010, see generally Traverse, and on June 4,2010, the government filed its motion
for judgment on the record, see generally Govt's Mot. for J. on R. The petitioner filed his cross-
motion for judgment on the record on June 18,2010. See generally Petr's Cross-Mot. for J. on
R. In late August and early September 2010, the parties filed supplements to their cross-motions
for judgment on the record addressing recent Circuit rulings concerning the scope of the
government's detention authority. See generally Govt's Supplemental Mot. for 1. on R.; Petr's
Supplemental Mot. for 1. on R.
On September 16,2010, the court denied the parties' cross-motions for judgment on the
record and scheduled a merits hearing to begin November 8, 2010. Order (Sept. 16,2010). On
October 25,2010, two weeks before the merits hearing was scheduled to begin, the government
filed a motion to supplement the record with additional evidence. See generally Govt's Mot. to
Supplement Evidence. Following expedited briefing, the court denied the motion and ordered
the government to limit its presentation to evidence previously disclosed to the petitioner as part
of the factual return. See generally Mem. Op. (Nov. 4, 2010).
4
In granting the government's second motion for leave to amend the factual return, the court
offered the parties an opportunity to propose adjustments to the litigation schedule. See Mem.
Order (June 9, 2010) at 4. The parties elected to retain the deadlines previously imposed by the
court. Joint Status Report (June 16,2010).
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The merits hearing began on November 8,2010 and spanned four days. 5 At the outset of
the hearing, the court ruled on the government's motion to admit hearsay evidence with a
presumption of accuracy and authenticity. See generally Govt's Hearsay Mot. The court held
that although the government's evidence would, in appropriate circumstances, be afforded a
presumption of authenticity, it was not entitled to a presumption of accuracy. 6 See infra Part
lILA.
During the course of the merits hearing, the parties presented the court with extensive
argument and nearly two hundred exhibits. 7 At the conclusion of the hearing, the parties'
submitted proposed findings of fact and conclusions oflaw. With the record now complete, the
court turns to the applicable legal standards and the evidence and argument presented by the
parties.
III. EVIDENTIARY MATTERS
A. Admissibility and Reliability of Hearsay Evidence
As alluded to above, prior to the merits hearing, the government submitted a motion in
which it argued that the court should afford a presumption of accuracy and authenticity to its
hearsay evidence. See generally Govt's Hearsay Mot. That motion was granted in part and
The merits hearing occurred on November 8, 10, 15 and 16, 2010. Citations to the hearing
transcript shall be made by designating the date of the proceedings and, when appropriate,
whether the proceedings occurred in the morning or evening.
6
At the outset ofthe hearing, the court also ruled that the government would be permitted to rely
on certain exhibits that had been made part of the record as attachments to the government's
hearsay motion. Nov. 8 Unclassified Tr. at S.
The court greatly appreciates the efforts undertaken by counsel for both the government and the
petitioner to present information during the merits hearing in a clear, systematic and easily
digestible manner.
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denied in part at the outset of the merits hearing. Nov. 8 Unclassified Tr. at 3-4. The reasoning
underlying the court's ruling is set forth in greater detail below.
This court has previously held, in another GTMO habeas case, that although hearsay
evidence is always admissible in these habeas proceedings, the court must make individualized
determinations about the reliability and accuracy of that evidence and the weight it is to be
afforded. Hatim v. Obama, 677 F. Supp. 2d I, 10 (D.D.C. 2009). The court further stated that
based on the principles underlying Federal Rule of Evidence 803(6), which sets forth the hearsay
exception for reports of regularly conducted activity, the government's interrogation reports and
intelligence reports were entitled to a presumption of authenticity. Id The court declined,
however, to presume the accuracy of the government's exhibits, noting that there was ample
reason not to afford such a presumption to those exhibits, many of which contained two or three
levels of hearsay. Id
This Circuit has since issued a number of decisions consistent with this approach to
hearsay evidence. The Circuit has made clear that although "hearsay evidence is always
admissible in Guantanamo habeas proceedings, such evidence must be accorded weight only in
proportion to its reliability." Barhoumi v. Obama, 609 F.3d 416, 428 (D.C. Cir. 2010); accord
Al Bihani v. Obama, 590 F.3d 866, 879 (D.C. Cir. 2010) (observing 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").
Nothing in these Circuit decisions suggests that the court should presume the accuracy or
reliability of the government's exhibits; to the contrary, the Circuit has stated that before relying
on any piece of evidence, the district court must make a threshold determination that it is
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sufficiently reliable and probative. 8 Bensayah v. Obama, 610 F.3d 718, 725 (D.C. Cir. 2010)
(citing Parhat v. Gates, 532 F.3d 834,847 (D.C. Cir. 2008»; cf Ai Odah v. Obama, 611 F.3d 8,
14 (D.C. Cir. 2010) (holding that the district court did not err in relying on hearsay evidence
where "[t]he government offered reasons why its hearsay evidence had indicia of reliability, and
the court considered the reliability of the evidence in deciding the weight to give the hearsay
evidence").
Accordingly, at the outset of the merits hearing in this case, the court ruled that hearsay
evidence would be admissible and that the court would presume the authenticity but not the
accuracy of the government's intelligence reports and interrogation reports. 9 Nov. 8 Unclassified
Tr. at 3-4. The court further ruled that it would make individualized determinations regarding
the reliability of any hearsay evidence presented by the parties. Id.B. Assessment of the Evidence
As noted, before the court may consider whether the government has shown by a
preponderance of the evidence that the petitioner is lawfully detained, the court "must evaluate
the raw evidence, finding it to be sufficiently reliable and sufficiently probative to demonstrate
the truth of the asserted proposition with the requisite degree of certainty." Parhat, 532 F.3d at
847 (quoting Concrete Pipe & Prods., Inc. v. Constr. Laborers Pension Trust, 508 U.S. 602, 622
8
The approach to hearsay articulated by this court in Hatim is also consistent with positions taken
by other judges in this district since the Circuit's ruling in Ai Bihani. See. e.g., Aimerfedi v.
Obama, 2010 WL 691944, at *1 (D.D.C. Mar. 1,2010) (concluding that all of the government's
hearsay evidence was admissible and that any evidence created and maintained by the
government in the ordinary course of business was entitled to a rebuttable presumption of
authenticity but rejecting the government's argument that its evidence should be afforded a
presumption of accuracy); see aisoA/ Kandari v. Obama, 2010 WL 3927309, at *5-6 (D.D.C.
Sept. 15,2010) (declining to afford a presumption of authenticity or accuracy to the
government's evidence).
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During the merits hearing, the petitioner did not challenge the authenticity of any of the
intelligence reports or interrogation reports relied on by the government.
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(1993». Thus, before relying on any piece of evidence in these GTMO habeas proceedings, the
court must examine that evidence to "determine whether the evidence is in fact sufficiently
reliable to be used as a justification for detention." Khan v. Obama, 646 F. Supp. 2d 6, 12
(D.D.C. 2009); see also Naji al Warafi v. Obama, 704 F. Supp. 2d 32, 38 (D.D.C. 2010)
(observing that "[i]n Guantanamo habeas proceedings, the Court must assess the accuracy,
reliability, and credibility of each piece of evidence presented by the parties in the context of the
evidence as a whole" (internal quotation marks omitted».
The reliability of hearsay evidence may be established by the intrinsic characteristics of
the evidence, such as the nature and consistency of the details contained in the hearsay,
Barhoumi, 609 F.3d at 428-29, as well as through corroboration by other evidence in the record,
id at 429 (noting that "an intelligence report's reliability can be assessed by comparison to
'exogenous information'''); Bensayah, 610 F.3d at 725-26 (citing Parhat, 532 F.3d at 849). Two
pieces of evidence, "each unreliable when viewed alone," can corroborate each other and
mutually establish their reliability. Bensayah, 610 F.3d at 726 (citing United States v. Laws, 808
F.2d 92,100-03 (D.C. Cir. 1986».
In this case, the government has based its case principally on interrogation reports
reflecting statements allegedly made by the petitioner. See generally GE 1·6,8·10,24,27,36,
40-41,43. These statements, which the government relies on to establish the petitioner's actions
and intentions before his apprehension, plainly constitute hearsay. See FED. R. EVlD. SOl (c).
The court has carefully reviewed each report to ensure that the statements contained therein are
sufficiently reliable for use in assessing the lawfulness of the petitioner's detention.
At the outset, the court notes that the petitioner's statements to interrogators are recorded
in standard reporting forms, such as FD-302s, Summary Interrogation Reports ("SIRs") and
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Intelligence Infonnation Reports ("IIRs"). See generally, e.g., GE 1,2,24. These reports are
prepared by intelligence and law enforcement agents in the nonnal course of their duties to
memorialize intelligence gathered from various sources, including interviews of detainees. See
GE 30 (Decl. 0 Decl. 11,,))10 at 6-7. The
fact that these reports were prepared by government agents in the course of their nonnal
intelligence gathering duties provides a degree of support for their reliability.
Moreover, the court finds ample evidence in the content of these interrogation reports to
support their reliability. With few exceptions (on which the court does not rely), the statements
reflected in these interrogation reports concern infonnation about which the petitioner had
personal knowledge. Furthennore, these statements are replete with specific details, lending
further support to their reliability. The court has been presented with no evidence that any of the
statements were elicited through undue coercion. Moreover, although the details sometimes
differ, the accounts of the petitioner's actions in these different interrogation reports are
remarkably consistent. Indeed, as evidenced in the following sections, many of the statements
that the court relies on in its analysis are repeated by the petitioner in multiple interrogations and
corroborated by the statements of third-party detainees. See infra Part IV.B.l-5.
Although the petitioner challenges the accuracy of the translation and transcription of
certain statements that the reports attribute to him, nothing about these purported errors calls into
question the inherent reliability of the reports. See Al-Waraji, 704 F. Supp. 2d at 39 ("[T]hat the
[petitioner's] statements were translated does not render them unreliable or incredible.
10
Id The court considers his declaration, which is based on his personal knowledge and
experience, to be reliable.
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Petitioner's reservations about the accuracy of the translations of the statements goes to the
weight ... the Court should afford the statements, not their reliability."). Thus, although the
court must, in the course of its analysis, address the parties' disagreements regarding the
probative value of various portions ofthese interrogations reports, the court concludes that the
reports are sufficiently reliable to be considered in its assessment of the lawfulness of the
petitioner's detention.
The government also relies on other types of evidence, such as interrogation reports
containing statements made by third-party detainees, see, e.g., GE 7, 8, 12, 13, declarations of
intelligence officers and subject-matter experts, see, e.g., GE 14, 19, and intelligence reports
regarding materials captured from al-Qaida and Taliban forces, see, e.g., GE 25, 29. The
reliability of each of these exhibits is assessed individually in the course of the analysis. See
infra Part IV.B.1-5.
IV. ANALYSIS
A. The Scope of the Government's Detention Authority
The government's authority to detain individuals at GTMO derives from the
Authorization for the Use of Military Force ("AUMF"), which provides that
the President is authorized to use all necessary and appropriate force against
those nations, organizations, or persons he determines planned, authorized,
committed, or aided the terrorist attack that occurred on September 11,2001, or
harbored such organizations or persons, in order to prevent any future acts of
international terrorism against the United States by such nations, organizations,
or persons.
Pub. L. No. 107-40, 115 Stat. 224 (2001)
This Circuit has stated that the AUMF authorizes the government to detain two categories
of persons: (1) individuals "part of' forces associated with al-Qaida or the Taliban and (2)
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individuals who purposefully and materially support such forces in hostilities against the United
States. Al Bihani, 590 F.3d at 872. To justify its detention of an individual, the government
must prove by a preponderance of the evidence that the individual falls within one ofthese
categories of detainable persons. 11 See Awadv. Ohama, 608 F.3d 1, 10 (D.C. Cir. 2010) (stating
that "a preponderance of the evidence standard satisfies constitutional requirements in
considering a habeas petition from a detainee held pursuant to the AUMF"); accord Al Bihani,
590 F.3d at 878.
In this case, the government's principal contention is that the petitioner is lawfully
detained because he was "part of' the Taliban, al-Qaida or associated forces. 12 The Circuit has
observed that because al-Qaida's organizational structure is amorphous, "it is impossible to
provide an exhaustive list of criteria for determining whether an individual is 'part of al Qaeda."
Bensayah, 610 F.3d at 725. Accordingly, the district courts must determine whether an
individual is "part of' al-Qaida or associated forces on a "case-by-case basis" employing a
"functional rather than a formal approach and by focusing upon the actions of the individual in
relation to the organization." Id.
II
The Circuit has expressly left open the question of whether a lower evidentiary standard would
be constitutionally permissible. See AI-Adahi v. Obama, 613 F.3d 1102, 1103 (D.C. Cir. 2010).
12
Although the government also asserted during the merits hearing that the petitioner "purposefully
and materially supported" al-Qaida, the Taliban or associated forces, Nov. 8 Unclassified Tr. at 8,
it offered scant evidence or argument on this issue. At any rate, because the government
demonstrated that the petitioner was "part of' the Taliban, al-Qaida or associated forces, the
court need not address whether the government satisfied the second prong of the detention
standard. See AI-Bihani v. Obama, 590 F.3d 866, 874 (D.C. Cir. 2010) (observing that "both
prongs (of the detention standard] are valid criteria that are independently sufficient to satisfY the
standard").
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"That an individual operates within al Qaeda's fonnal command structure is surely
sufficient but is not necessary to show that he is 'part of the organization.")) Id.; see also Awad,
608 F.3d at 11 ("If the government can establish by a preponderance of the evidence that a
detainee was part of the 'command structure' of al Qaeda, this satisfies the requirement to show
that he was 'part of al Qaeda. But there are ways other than making a 'command structure'
showing to prove that a detainee is 'part of al Qaeda."). On the other hand, "the purely
independent conduct of a freelancer is not enough" to show that an individual is detainable as
"part of' of those enemy forces. Bensayah, 610 F.3d at 725; see also Salahi v. Ohama, 625 F.3d
745, 752 (D.C. Cir. 2010) (noting that "the government's failure to prove that an individual was
acting under orders from al-Qaida may be relevant to the question of whether the individual was
'part of' the organization when captured").
The government's "authority to detain an enemy combatant is not dependent on whether
an individual would pose a threat to the United States or its allies if released." Awad, 608 F.3d at
11. The government must prove, however, that the petitioner was "part of" the Taliban, al-
Qaida or associated forces at the time of his capture to demonstrate that his detention is lawful
under the first prong of the standard. See Salahi, 625 FJd at 751 (observing that "the relevant
inquiry is whether [the petitioner] was 'part of aI-Qaida when captured"); Gherebi v. Obama,
609 F. Supp. 2d 43, 71 (D.D.C. 2009).
In assessing whether the government has met its burden, the court may not view each
piece of evidence in isolation, but must consider the totality of the evidence. See Al-Adahi v.
Ohama, 613 F.3d 1102, 1105-06 (D.C. Cir. 2010). Even ifno individual piece of evidence
13
Prior to these Circuit decisions, many district court judges had held that an individual was a "part
of' al-Qaida or associated forces only ifhe operated within the organization's fonnal command
structure. See. e.g., Hatim v. Ohama, 677 F. Supp. 2d 1, 16 (D.D.C. 2010); Gherehi v. Ohama,
609 F. Supp. 2d 43, 69 (D.D.C. 2009); Ham/i/y v. Ohama, 616 F. Supp. 2d 63, 75 (D.D.C. 2009).
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would, by itself, justify the petitioner's detention, the evidence may, when considered as a whole
and in context, nonetheless demand the conclusion that the petitioner was more likely than not
"part of' the Taliban or al-Qaida or purposefully and materially supported such forces. Id.(concluding that the district court erred in "requir[ing] each piece of the government's evidence
to bear weight without regard to all (or indeed any) other evidence in the case"); cf Bourjaily v.
United States, 483 U.S. 171, 179-80 (1987) (observing that "individual pieces of evidence,
insufficient in themselves to prove a point, may in cumulation prove it" because the "sum of an
evidentiary presentation may well be greater than its constituent parts").
B. The Petitioner Is Lawfully Detained
During the course of the merits hearing, the parties presented evidence and argument on
the following five disputed material issues: 14
1. The government's allegation that the petitioner went to Afghanistan to
receive military-style training from and fight for al-Qaida, the Taliban or
other associated forces.
2. The government's allegation that the petitioner stayed at guesthouses in
Pakistan and Afghanistan associated with al-Qaida, the Taliban or other
associated forces.
3. The government's allegation that the petitioner attended a training camp
or training camps operated by or associated with al-Qaeda, the Taliban or
other associated forces.
4. The government's allegation that the petitioner traveled to the battle lines
in Afghanistan as part of al-Qaida, the Taliban or other associated forces.
5. The government's allegation that the petitioner was part of al-Qaida, the
Taliban or other associated forces at the time of his capture.
14
Over the government's objection, the petitioner requested that the court address a sixth contested
issue during the merits hearing: the government's assertion that its evidence is generally reliable.
Petr's Supplement to List of Contested Issues. Although the court granted the petitioner's
request, during the merits hearing, the petitioner incorporated the elements of his presentation on
this issue into his presentations on the five jointly identified issues and elected not to give a
separate presentation on his proposed sixth issue.
16
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Joint List of Contested Issues (Oct. 15,2010). The court considers these disputed issues in turn.
1. The Petitioner Traveled to Afghanistan to Fight for the Taliban,
al-Qaida or Associated Enemy Forces
During the merits hearing, the parties devoted substantial time and effort addressing the
first material disputed issue: whether the petitioner traveled to Afghanistan to fight for the
Taliban, al-Qaida or associated enemy forces. Nov. 8 Tr. at 32 - 154; Nov. 10 (a.m.) Tr. at 4­
100. Their attentiveness to this issue was well warranted. The Circuit has observed that
although an "intention to fight is inadequate by itself to make someone 'part of al Qaeda ... it is
nonetheless compelling evidence when ... it accompanies additional evidence of conduct
consistent with the effectuation of that intent." Awad, 608 F.3d at 9.
The government bases its contention that the petitioner traveled to Afghanistan to fight
boardinghouse; (2) the influence and assistance 0_
with the Taliban, al-Qaida or associated forces on: (1) the petitioner's association with t h e .
(including the
implausibility of the petitioner's account of how. convinced him to go to Afghanistan); (3) the
influence of the religious fatwa that the petitioner encountered in Yemen; and (4) the petitioner's
travel route and travel companions. The court considers these matters below.
a. The Petitioner's Association With th.oardinghOuSe
The government contends that the petitioner's association with individuals at t h e .
boardinghouse supports the inference that he went to Afghanistan to engage in jihad and, in fact,
shows that he was a "part of' al-Qaida, the Taliban or associated forces even before he left
Yemen for Afghanistan in the summer of 2000. Nov. 8 Tr. at 61-143. The petitioner responds
that his fleeting association with these individuals establishes nothing and does not support the
government's contention that he traveled to Afghanistan to fight for the Taliban, al-Qaida or
associated forces. Nov. 10 (a.m.) Tr. at 41-54.
17
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As noted in the factual overview, in the summer of 1999, the petitioner traveled from
Ta'iz to Sana'a and stayed at the _boardinghOuSe while purportedly attempting to obtain a
visa to return to Yemen. GE 1 at 3; GE 3 at 3. Approximately two weeks after his arrival,
Yemeni authorities arrested the petitioner and several other individuals associated with the
boardinghouse on suspicion of belonging to a car theft ring. GE I at 5; GE 2 at 2. According to
the petitioner, the car theft conspiracy centered on a plot to steal cars in order to purchase arms,
which they would then use to violently free an individual named who was held
in a Sana'a prison. GE I at 5; GE 9 at 3. ~ad been convicted of kidnapping and
murdering four western tourists as part of a plot to free an imprisoned sheikh associated with a
South Yemen Islarnist group. GE 1 at 5; GE 9 at 3. According to the petitioner, the conspirators
also considered using the stolen vehicles to kidnap tourists, whom they would use to negotiate
thereleaseo~ GE 1 at 5.
Many of the individuals associated with th.oardinghouse during this period were
experienced jihadists. According to Abdu Ali al Hajj Sharqawi, a veteran jihadist whom the
petitioner asserts is a reliable source,I5 see Petr's Proposed Findings of Fact ~ 16, _
_ the individual who introduced the petitioner to th.oardinghOuse, "was a
mujahaddin in Bosnia and ... was a well-known person." PE 115 at 1. Likewise, Sharqawi
states that Issam al-Maklahfi, the leader of the car theft ring, and Ahmed al Khadr al-Bidani,
another member of the conspiracy, were also veterans of Bosnian jihad. Id. at 2. Sharqawi also
IS
PE 8 at 8; PE 11 at 2.
Furthennore, Sharqawi's statements about the boardinghouse are based on his personal
knowledge. PE 115 at 1. There is no evidence at Sharqawi's statements were the result of
torture and, in fact, the petitioner himself relies on Sharqawi's interrogation report in support of
his case. Petr's Proposed Findings ofFact`` 13-22. Accordingly, Sharqawi's interrogation
report is sufficiently reliable for the court's consideration.
18
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states that Fawaz al-Rabia'i lived at the .0ardinghouSe and was an al-Qaida operative at
the time he was imprisoned by Yemeni authorities. PE 115 at 3; see also GE 8 at 1 (GTMO
intelligence report indicating that al-Rabia'i was a known al-Qaida associate).
The petitioner himself admits that housemates and
had received jihadist training in Afghanistan. GE 3 at 5. Another housemate
_ had, according to the petitioner, trained at the Khalden camp near Jalalabad, Afghanistan,
GE 3 at 4, ajihadist training camp affiliated with al-Qaida and the Taliban, GE 19 (Decl. of
6 at 7-8. Likewise, the petitioner admits that
an individual who resided at the boardinghouse during the petitioner's stay, had fought and
trained with the Taliban in Afghanistan. GE 1 at 4; GE 3 at 4; GE 43 at 2. _ would
later be one of the suicide bombers in the October 2000 attack on the Us.s. Cole. GE 2 at 3; GE
4 at 3; GE 5 at 2; GE 6 a 3; GE 9 at 5; GE 43 at 2.
During the period that the petitioner lived there, th.oardinghOUSe served as a hub
for the individuals involved in a car theft ring whose aim was to free~om prison.
GE 1 at 4-5; GE 9 at 3; see also PE 115 at 1 (interrogation report in which Sharqawi stated to
interrogators that residents of the boardinghouse were involved in a plot to steal cars and that this
group "wanted to get rid of the Yemeni Government because the Yemeni Government killed
Abu Hassain al Miktar, a famous mujahaddin"). The petitioner has acknowledged that.
_ the leader of the plot, a n d _ visited th-"oardinghouse while the
16 1, 3
1, 3 , • •• • ...
his personal knowledge and analysis, to be credible.
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petitioner was there. I? GE 1 at 4-5; GE 3 at 5; GE 9 at 2. The petitioner also admitted that
his roommate and closest friend at the boardinghouse, GE 3 at 4, served as a
driver in the car theft plot, GE 1 at 4-5; GE 9 at 1, and that bin Attash, his housemate and a
veteranjihadist, was arrested with the petitioner and formally charged in the conspiracy, GE 8 at
2. In total, the petitioner identified more than half a dozen individuals who resided at or visited
the_boardinghouse while he first lived there who were involved in the car theft plot
designed to f r e e _
The petitioner claims that he had no real association with these individuals, noting that he
stayed at th.boardinghouse for less than two weeks before he was arrested. Nov. 10
(a.m.) Tr. at 41. As described above, however, the petitioner revealed to interrogators detailed
knowledge about the biographies of these men, suggesting that his relationships with these
individuals were more than fleeting. See AI-Adahi, 613 F.3d at 1109 (observing that the
petitioner's detailed knowledge of personal information about a group of al-Qaida operatives,
including where they had fought and what languages they could speak, tended to show that the
petitioner had close relationships with these individuals and strengthened the probability that that
he was part of al-Qaida).
Moreover, it is the timing, rather than the duration, of the petitioner's initial stay at the
.oardinghouse that is particularly telling. The fact that a group of veteran jihadists
permitted the petitioner to live at th.boardinghouse while the location was used as a hub
for an active terrorist conspiracy suggests that they considered the petitioner an individual they
could trust. It is highly unlikely that these men would allow an individual into their living and
meeting space, even if only for two weeks, during such a sensitive period without some
17
The petitioner states that he believes t h a _ had been surveilled to t h t l
boardinghouse, which led to the arrest of the boardinghouse residents. GE 1 at; 9 at 1-2.
20
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assurance that the individual shared some allegiance with them and would not undermine their
p10t. 18 Although this evidence hardly establishes that the petitioner was "part of' al-Qaida at this
time, it does support the government's contention that the petitioner had associations with known
terrorists and had gained their confidence prior to his departure for Afghanistan.
The petitioner has also stated that when he first went to live at the.oardinghouse,
he had no idea that anyone associated with the boardinghouse was involved in any criminal
activity. GE I at 5; GE 2 at 2; GE 9 at 2. According to the petitioner, he first learned about the
details of the plot during his period of incarceration when _ , the head of the
conspiracy, was released from solitary confinement. 19 GE 9 at 2.
Even if the court were to credit the petitioner's version of events, it would not
dramatically alter the court's assessment of his associations with members of t h e .
boardinghouse conspiracy. It seems unlikely that a veteran jihadist like _ would have
revealed the details of the plot to the petitioner, while they were still in custody and the
information could plainly be used against them, unless he had reason to believe that the
petitioner would not reveal this information to Yemeni authorities. Moreover, rather than
distancing himself from the conspirators following his arrest, the petitioner continued to
associate with members of the terrorist conspiracy during his months of incarceration and
18
The petitio_that at his invitation, an acquaintance from Saudi Arabia,
stayed at th oardinghouse the night before Yemeni authorities raided the boardinghouse.
GE 3 at 4. Because the government has not supplied any evidence t h a t _ had any
terrorist or criminal involvement, the petitioner argues, the fact that he was permitted to stay at
th~oardinghouse undermines the government's theory that only trusted individuals were
pe~ to stay at the boardinghouse. It is, however, far from clear that~
terrorist affiliations; as discussed below, _ attended the wedding~. a
veteran Afghan mujahaddin, to the da~ family with known terrorist connections. GE 9
at 2-3. Furthermore, it is unclear that~ was "permitted" to stay at the boardinghouse, as
he stayed there only one night and there is no evidence that leaders of the car theft conspiracy
were aware of his presence.
19
The petitioner stated that~as held in solitary confinement for approximately twenty
days after their arrest. GE 9 at 2.
21
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became lasting friends with several members of the group. GE 1 at 5-6; GE 3 at 3-5; GE 9 at 1­
2. Thus, the evidence indicates that even if the petitioner was not considered an ally at the time
he first went to t h e . boardinghouse, he became one during his months in prison.2°
Indeed, even after he was released from prison in late 1999, the petitioner maintained his
associations with members ofth_boardinghouse. According to the petitioner, Yemeni
authorities released him from prison at the same time as two of his former housemates, _
_ and GE 9 at 2. The petitioner has admitted that upon his release,
he chose to return to the _boardinghouse with these men, both of whom were veteran
jihadists. 21 GE 1 at 5-6; GE 9 at 2. Shortly after their return to the.oardinghOUSe, the
petitioner a n d _ attended al-Ansari's wedding to a daughter of an individual named
GE 9 at 2. Another o ~ sons-in-law was 9/11 hijacker Khalid al-
Mihdhar. ld at 3.
20
The petitioner points out that Sharqawi stated to interrogators that th~boardinghouse "was
a place only for sleeping" and that the petitioner was not associated with the individuals who
resided there. PE 1:'5 Sharqawi did, however, acknowledge in the same interrogation that
t 1-2.
the individuals at th oardinghouse were involved in a car theft ring, that residents of the
house desired to overt row the Yemeni government because it had killed a famous Yemeni
mujahaddin and that numerous individuals who resided at or were associated with the
boardinghouse were veteran mujahaddin. rd. at 1-3. Moreover, Sharqawi's assertion that the
petitioner had no associations with these individuals is belied by the petitioner's own admissions
that he maintained his associations with individuals he had met in prison and through t h .
boardinghouse after he was released and even into Afghanistan.
21
The petitioner contends that his decision to return to th~boardinghouse following his
release from prison does not indicate any continuing rel~ip with members of the
boardinghouse, as the other members of the car theft ring were still imprisoned. This contention,
however, is undennined by the petitioner's own admissions that he returned to the boardinghouse
with other individuals who had been imprisoned based on their relationship with the
boardinghouse, GE 9 at 2, and that he maintained a close relationship with
whom the petitioner has acknowledged was a member of the car theft plot, GE 1 at 4-5; GE 9 at
1.
22
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Although the petitioner states in one interrogation that he only stayed at t h e .
boardinghouse for a week after his return from prison, GE 1 at 5_6,22 the fact that the petitioner
chose to return to the boardinghouse at all following his release from prison, at which point he
clearly knew about the car theft conspiracy, supports the notion that the petitioner's associations
with the individuals at the_boardinghouse were meaningful. The petitioner'S attendance at
_ wedding further indicates that the petitioner had become accepted in the jihadist
circle that he encountered at the~oardinghouse.
Following his release from prison, the petitioner also maintained a relationship with
one of the drivers in the car theft plot. GE I at 4-5; GE 9 at 1. The petitioner
attended _ court appearances and smuggled a cell phone t ~ in prison, an act
which resulted in the petitioner's brief re-imprisonment. GE 1 at 5. The fact that the petitioner
would take such a risk f o r _ undermines the petitioner's contention that his associations
with all the members of the car theft ring were fleeting and insignificant.
In fact, the petitioner's associations with individuals at th.oardinghouse survived
his journey to Afghanistan. For instance, one of the individuals the petitioner met at t h e "
boardinghouse was also known as GE 5 at 1.
According to the petitioner, after was released from prison, he went to the front
lines in Afghanistan to fight with the Taliban against the Northern Alliance. Id While staying at
an al-Qaida guesthouse in Kabul, see infra Part IV.B.2.c, the petitioner inquired as to the
whereabouts and was told that was at the frontlines and would
22
several.' week after his arrest," GE 3 at 5, indicating a longer affiliation with
and the oardinghouse following the petitioner's release from prison.
a"
According to another interrogation report, the petitioner stated that he "socialized
23
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come to visit him at a later time.2 3 GE 6 at 2-3. The incident demonstrates not only that the
petitioner had a continuing association with in Afghanistan, but also that the
petitioner was sufficiently integrated into the al-QaidaITaliban structure such that he was able to
send and receive messages through its military apparatus. 24
While in Afghanistan, the petitioner also maintained his relationship with
The petitioner had m e t _
after his release from prison while socializing a t _ home in Sana'a. GE 3 at 5. The
petitioner has acknowledged that _ was a member of al-Qaida, who trained at the al-
Farouq training camp and possibly the Abu Obeida training camp, both of which are al-Qaida
training camps in Afghanistan. GE 36 at 3; GE 41 at 2. The petitioner states t h a _
visited him while he was in Jalalabad and t h a t _ and were the only people
in Afghanistan who knew him by his real name rather than his kunya. GE 9 at 4-5. In fact, once
in Afghanistan, the petitioner l i s t e d _ as his reference on an application to attend a
terrorist training camp. GE 25 at 4; infra Part IV.B.3.b.
23
The purpose of this discussion is not to condemn the petitioner on the basis of his
associations. Indeed, the petitioner's relationships with individuals associated with
According to Salim Hamdan, a former driver for Usama bin Ladin, _
th.
later acted as a
bodyguard for bin Ladin. PE 27 at 7. 14.
24
The court does not, however, credit the government's contention t h a t _ an individual
who accompanied the petitioner o n . ' ey from Yemen to Afghanistan, see infra Part
m
IV.B.l.d, was an associate from the oardinghouse. The government bases this contention
on the f a c t _ name is included in one interrogation report in which the petitioner lists the
individuals associated with the~oardinghouse. GE 3 at 4. That report, however, includes
no information abou_other than his name, whereas it contains detailed information
regarding other individuals associated with the boardinghouse. See id. Furthermore_ _ _
not mentioned in any of the other interrogation reports in which the petitioner discusses t l i e "
boardinghouse. GE 1 at 3-5; GE 5 at 1-2; GE 9 at 2-3. In fact, another interrogation report
indicates that the petitioner stated that he "had no previous contact with .prior to meeting him
one week before they left for Afghanistan and the only thing he knew about him was that he was
from Ta~en." GE 9 at 3. Accordingly, the court concludes that_was not associated
with the _boardinghouse.
24
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boardinghouse, standing alone, likely would not demonstrate that the petitioner was "part of' al-
Qaida during his time in Yemen. The evidence does establish, however, that by the time the
petitioner chose to travel to Afghanistan, he had developed significant and lasting relationships
with veteranjihadists, who accepted him into their midst while they were involved in an active
terrorist conspiracy. Many of the individuals associated with the boardinghouse would go on to
become active al-Qaida associates and fight on the front lines in Afghanistan, and the petitioner
maintained his relationships with these individuals as well. The fact that the petitioner had
enduring relationships with knownjihadists prior to his decision to go to Afghanistan supports
the contention that he traveled to Afghanistan to train and fight with al-Qaida, the Taliban or
associated forces.
b. Influence and Assistance
The petitioner has stated that one of the principal influences on his decision to go to
Afghanistan was an individual he met in Ta'iz named GE9at3. The
government contends that. was a Taliban facilitator and that his influence on the petitioner's
decision to travel to Afghanistan supports its allegation that the petitioner went there to receive
training and fight for the Taliban and al-Qaida. Nov. 8 Tr. at 142, 150; Nov. 10 (a.m.) Tr. at 17­
20. The petitioner contends that there is no evidence that. was a Taliban facilitator and that
• merely encouraged the petitioner to travel to Afghanistan to seek out a better life. Nov. 10
(a.m.) Tr. at 57-62.
There is no dispute that. had a significant influence on the petitioner's decision to
travel to Afghanistan. The petitioner has stated that. "was the person who had the most
influence on [him] going to Afghanistan, although he admitted that he was also influenced by a
fatwa issued by the sheikhs in Yemen." GE 9 at 3. Nor is there any dispute that two years
25
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before they met,. had received military training in Afghanistan and had fought for the
Taliban. GE 1 at 3; GE 10 at 2.
There is, however, no evidence that at the time. encouraged the petitioner to go to
Afghanistan, he was acting as a Taliban recruiter or facilitator, at least in any formal capacity.
The govenunent has provided no evidence that. influenced any other individuals to travel to
Afghanistan or that he had any formal relationship with the Taliban or al-Qaida. See Bensayah,
610 FJd at 726 (concluding that the govenunent failed to establish that the petitioner was an a1­
Qaida facilitator in the absence of reliable evidence that the petitioner had links to al-Qaida or
facilitated the travel of al-Qaida members). Indeed, the petitioner has stated that when they first
met,. encouraged him to enter into the honey trading business in Ta'iz, GE 1 at 3; GE 3 at 3,
and the government has offered nothing to discredit that account. Furthermore, the petitioner
paid his own way to Afghanistan, GE 3 at 6, a fact inconsistent with Taliban recruitment.
Accordingly, the government has not established that. was a Taliban facilitator.
Nonetheless, the evidence does not support the petitioner's contention that" influence
was entirely benign. The petitioner has admitted that he and. discussed" military training
in Afghanistan and his experience fighting for the Taliban:
AI-Sabri met a Yemeni named age 25 in Taiz. •
had previously traveled to Afghanistan for military training and to fight for the
Taliban. AI-Sabri became interested in this discussion and inquired about
receiving military training.
GE 1 at 3. Whether, as the government suggests, the petitioner was expressing an interest in
obtaining military training or, as the petitioner has argued, expressing an interest in hearing about
the military training that. had received in Afghanistan, it is clear that. and the petitioner
discussed the military training available in Afghanistan and fighting with the Taliban. See id
26
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Indeed, the petitioner states that it was during this period in Ta'iz, when he met. that the
petitioner first began thinking about going to Afghanistan. 25 GE 9 at 3.
Moreover, the travel route that the petitioner took into Afghanistan, which was furnished
b y . GE 3 at 5-6; GE 9 at 3; GE 10 at 2, suggests that. was assisting the petitioner join with
Taliban and al-Qaida fighting forces in Afghanistan. As discussed below, the route that.
instructed the petitioner to take from Sana'a through Bahrain and eventually to Quetta, Pakistan,
is the same path used by foreign mujahaddin traveling to Afghanistan to engage in jihad. See
infra Part IV .B.l.d. Indeed,. specifically instructed the petitioner to visit the TaIiban offices
in Quetta, Pakistan, GE 3 at 6, which, as discussed below, facilitated the travel of fighters to al-
Qaida and Taliban guesthouses and camps in Afghanistan, see infra Part IV.B.2.a; see also GE 3
at 5 ('_told [the petitioner] that the Taliban would assist him in getting from Pakistan into
Afghanistan because he was Arabic.").
Finally, the petitioner's account of how. lured him to Afghanistan is not plausible.
According to the petitioner,. told him "that there was security and peace in Afghanistan," GE
9 at 3, and that "he should move to Afghanistan as work was easier to find there," GE 3 at 5.
The petitioner stated that. "convinced him to travel to Afghanistan for a better life and find a
wife." GE I at 6.
Vet before the petitioner left for Afghanistan, he had spent months with veteranjihadists
associated with the.oardinghouse, some of whom had trained and fought in Afghanistan.
See supra Part IV.B.I.a. The petitioner had also had conversations with. about his own
experiences fighting in Afghanistan just two years earlier. GE I at 3. Furthermore, as discussed
25
The petitioner's admission that he began thinking of going to Afghanistan soon after his
deportation to Yemen, see GE 6 at 1, casts doubt on his assertion that he went to Afghanistan
only as a last resort, after his efforts to obtain entry to other Arab countries failed, see Nov. 10
(a.m.) Tr. at 58-59.
27
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below, the petitioner admits that he encountered at least one fatwa that encouraged men to go to
Afghanistan to assist the Taliban. See infra Part IV.B.l.c. As the petitioner must have been
aware that there was ongoing conflict in Afghanistan, it is difficult to believe that he truly would
have believed that Afghanistan offered security and peace.
The petitioner's conduct once in Afghanistan also undermines his account of how.
convinced him to travel there. Although the petitioner contends that. lured him to
Afghanistan with promises of work opportunities, there is no evidence that the petitioner made
any effort to secure employment once he was in Afghanistan.26 See Sulayman v. Obama, 2010
WL 3069568, at *13-14 (D.D.C. July 20,2010) (declining to credit the petitioner's claim that he
traveled to Afghanistan to find a job, a wife and a home because he admitted to interrogators that
he "never really looked" for ajob or a wife and that "he wasn't really that interested in trying to
find a job"). Indeed, as the petitioner must have known, any efforts to secure employment would
have been complicated by the fact that he spoke only Arabic.2 7 GE 3 at 1.
Although the petitioner told interrogators that he had marriage prospects while in
Afghanistan, these accounts are contradictory and not credible. For instance, the petitioner stated
in one interrogation that the sister-in-law of an individual he met in Jalalabad,
had introduced him to a young Moroccan woman for the purposes of marriage but that the plans
26
To bolster his claim that he went to Afghanistan for benign purposes, the petitioner offers a
declaration from Professor Sheila Carapico, who states that the poverty and lack of opportunities
in Yemen in the late 1990s and early 2000s led many young Yemeni men to travel to Pakistan
and Afghanistan for economic reasons. See generally PE 30 (Decl. of Dr. Sheila Carapico,
("Carapico Decl."»; see a/so Nov. 10 (a.m.) Tr. at 59-60. There is, however, no evidence that
this petitioner made any efforts whatsoever to obtain employment while he was in Afghanistan,
suggesting that economic factors were not a major consideration underlying his decision to go to
Afghanistan.
27
Although the petitioner has offered evidence that Yemeni Arabic speakers might be able to find
work in Afghanistan teaching Quran, as the Yemeni dialect is closest to the classical language of
the Quran, Carapico Dec!. ~ 16(t), there is no evidence that the petitioner, who had limited formal
education, had any training in the Quran or was motivated by such opportunities.
28
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had fallen through due to the chaos following September 11. GE 3 at 6. In another interview,
the petitioner stated that the man with whom he lived in Jalalabad, had
arranged for the petitioner to marry his wife's sister who lived in Morocco. GE 9 at 4. In yet a
third interrogation, the petitioner stated that he was arranged to m a r r y _ sister. GE 6 at
3. The inconsistencies of these accounts cast doubt on the petitioner's claim that finding a wife
was one ofthe principal reasons he went to Afghanistan.
Finally, if the petitioner went to Afghanistan merely for the benign purposes that. had
purportedly discussed with him, it is difficult to understand why the petitioner chose not to
infonn anyone, including his family in Saudi Arabia or Yemen, of his decision to relocate. GE 1
at 6. The fact that the petitioner hid his plans from his family further undermines the contention
that. persuaded him to go to Afghanistan with promises of work, a wife and a better, more
secure life. The petitioner also admitted to interrogators that he assumed a kunya while he was in
Afghanistan, GE 10 at 2; see infra Part IV.B.3, and that only two or three individuals (all with
ties to al-Qaida or the Taliban) knew his real name, GE 9 at 4. That the petitioner concealed his
true identity in Afghanistan is also not consistent with his stated intention of traveling to
Afghanistan for benign reasons.
In sum, although the government has not established that. had any formal relationship
with the Taliban, the evidence, viewed as a whole, indicates that. discussed with the petitioner
his experiences training and fighting with the Taliban in Afghanistan and provided the petitioner
a route to Afghanistan designed to funnel him into Taliban and al-Qaida fighting forces. Thus,
the evidence concerning. bolsters the contention that the petitioner traveled to Afghanistan to
train and fight with the Taliban, al-Qaida or associated enemy forces.
29
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c. Influence of the Fatwa Issued by Religious Clerics
In addition to his discussions with. the petitioner has stated that he was influenced to
go to Afghanistan by a fatwa issued by two Saudi religious scholars, Hammoud al-Aqla and
Abdulla al-Jibreen. GE 3 at 2, 5; GE 9 at 3. According to the petitioner, the fatwa "was
encouraging men to go to Afghanistan to assist the Taliban." GE 3 at 5. The government
contends that the influence of the fatwa indicates that the petitioner went to Afghanistan to
engage in jihad. Nov. 8 Tr. at 148-52. The petitioner responds that there is no evidence that the
fatwa advocated taking up arms on behalf of the Taliban. Nov. 10 (a.m.) Tr. at 62-65.
Although the exact fatwa that influenced the petitioner is unknown, another fatwa
authored by al-Aqla in 2000 included the following language:
At this time, the Taliban Regime remains in a state of warfare against its
opposition, the Northern Alliance, so Jihad with it is ordained by the Shariah
because Jihad with the Taliban is against the Northern Alliance which is being
funded by the forces of Disbelief like America, Britain, and Russia and others
who are calling for a broad-based government in Afghanistan established upon a
Western legislative system. Since the situation is like this, then indeed it is
obligatory to assist the Taliban Regime and to make Jihad with it in order to
bring victory to Islam.
Govt's Mot. for 1. on the R. at 12-13; see also Nov. 8 Tr. at 152-53.
Indeed, one detainee described al-Aqla as "a well known religious leader [who] claimed
to have sent 11,000 Saudis to various training camps in Afghanistan, Pakistan, Chechnya and the
Philippines." GE 12 at 1. The detainee stated that in his fatwas, al-Aqla "preach[ed] ... that it
was the duty of all Muslim men to prepare themselves for jihad." Id Another detainee has
stated that al-Aqla "encouraged young men to travel to [Afghanistan] and fight against Massoud,
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who was killing a lot of Muslims. Al Aqla, who issued the fatwa, told his audience that if they
did not follow this fatwa they would go to hell." GE 13 at 1. 28
Likewise, at least one GTMO detainee has admitted that his decision to go to Afghanistan
and fight for the Taliban was influenced by a fatwa issued by al-Jibreen, the other author of the
fatwa that influenced the petitioner in this case. See GE 11 at 2. The detainee stated that
he listened to 2 Fatwas that were issued, one by Sheikh Mohammed al Imam and
another by Sheikh Bin Gibrin. The Fatwas were read at the Jamal Al Din
Mosque and were about going to Afghanistan to assist the Taliban against the
Northern Alliance. The Fatwas had vers[es] from the Koran and talked about the
Taliban and its victories. One of the Fatwas further explained how to travel to
Quetta and get to a large Taliban center where the Taliban would take people to
Afghanistan. [The detainee] decided, on his own, to go to Afghanistan and assist
the Taliban based on the Fatwas.
Id (emphasis added).29
In light ofal-Aqla's and al-Jibreen's documented history of issuing fatwas encouraging
men to travel to Afghanistan to fight with the Taliban, it is more likely than not that the fatwa
28
Government's Exhibit 12 is an interrogation report reflecting statements made by GTMO
detainee Mukhtar Yahya Naji al-Warafi, while Government's Exhibit 13 is an interrogation
report reflecting statements made by GTMO detainee Hamud Dakhil al-Jadani. See generally
GE 12; GE 13. Their descriptions of the fatwas issued by al-Aqla are based on their personal
knowledge, highly detailed and corroborated by one another. Furthermore, there is no evidence
that these statements were elicited through undue coercion. Although the petitioner has pointed
out that al-Jadani was offered inducements to cooperate with interrogators and that his statements
regarding the U.S.S. Cole bombing are not credible, Nov. 10 (a.m.) Tr. at 67-91 (indeed, the court
declines to rely on those statements), the court shall assess the reliability ofeach piece of
information provided by al-Jadani rather than making generalized conclusions about his
credibility, see Almerfedi v. Obama, 725 F. Supp. 2d 18, 23 (D.D.C. 2010) ("Rather than draw a
general conclusion as to the credibility of [al-Jadani], the Court has examined in detail each of
the six reports relied upon by the government to determine whether the particular information in
each should be credited."). In this case, the court concludes that his statements regarding the
fatwas issued by al-Aqla, like the statements ofal-Warafi, are sufficiently reliable for the court's
consideration.
29
Government's Exhibit 11 is an interrogation report reflecting statements made by detainee al­
Warafi. See generally GE 11. There is no evidence that his statements were elicited through
inducements or undue coercion. Moreover, the petitioner provides a detailed account of both the
circumstances under which he heard the fatwas as well as the actual content of the fatwas. See
GE 11 at 2. Accordingly, these statements are sufficiently reliable for the court's consideration.
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that influenced the petitioner to go to Afghanistan called for Muslim men to "assist the Taliban"
by taking up arms against the Northern Alliance. 3o Furthermore, given the petitioner's
documented awareness of the conflict in Afghanistan, it is not plausible that the petitioner could
have understood the fatwa's call to "assist the Taliban" as anything other than a call to take up
arms. This evidence therefore provides additional support for the government's contention that
the petitioner traveled to Afghanistan to engage in jihad.
d. The Petitioner's Travel Route and Travel Companions
The government asserts that the route the petitioner followed to Afghanistan is the same
route used by other foreign mujahaddin entering Afghanistan to fight with the Taliban. Nov. 10
(a.m.) Tr. at 12-29. The government also notes that the petitioner has admitted that his traveling
companions professed to him that they were going to Afghanistan to become martyrs. Id at 19.
These facts, the government argues, strongly indicate that the petitioner too traveled to
Afghanistan to engage in jihad. Id at 12-29. According to the petitioner, there is no evidence
that the route he followed is different from the route any Arab man of limited means would have
taken into Afghanistan. Id. at 65. Furthermore, the petitioner argues, the fact that he traveled to
Afghanistan with self-professedjihadists does not mean that he was ajihadist. Id. at 64-65.
The petitioner left Yemen for Afghanistan in the late summer or early fall of2000. GE 1
at 6. During the initial leg of his journey, he was joined by an individual named
whom he had met approximately one week before. GE 9 at 3. The petitioner and_flew
from Sana'a through the United Arab Emirates and on to Karachi, Pakistan before eventually
30
The petitioner contends that the fatwas cited by the government are distinguishable because they
were issued at different times or in a different form than the fatwa that influenced the petitioner.
Nov. 10 (a.m.) Tr. at 63-64. These differences, however, do not significantly undermine the
probative value of the fatwas cited by the government, which were written by the same clerics
about the same conflict during roughly the same time period. Furthermore, the petitioner has not
presented the court with evidence of any other fatwa issued around this period that called for
Muslim men to go to Afghanistan but did not advocate taking up arms.
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arriving in Quetta, Pakistan, a city near the Afghanistan border. GE 1 at 6; GE 3 at 6. Once in
Quetta, the two took a taxi to the Daftar al-Taliban, a Taliban-run office and guesthouse, as
instructed by. GE 1 at 6; GE 6 at 2. After spending two or three days at the Daftar al­
as_and_
Taliban, the petitioner left for the border along with_and two other men, whom he knew
GE 1 a6;GE3at5-6;GE 10at2. _ t o l d the petitioner that
he was going to Afghanistan for jihad, and all told the petitioner
that they wanted to be martyrs. GE 9 at 3; GE 10 at 2.
The four men were driven by taxi from the Daftar al-Taliban to the border town of Spin
Boldak. GE 1 at 6; GE 3 at 5-6; GE 4 at 1. When they reached the border, the men exited the
taxi and crossed the border on motorcycles. GE 3 at 6; GE 4 at 1. According to the petitioner,
motorcycles were not required to stop at the border. GE 4 at 1. After crossing the border, the
men were picked up by the same taxi and carried on to Kandahar, GE 3 at 6; GE 4 at 1, where, as
discussed below, they were taken to an a1-Qaida guesthouse, see infra Part IV.B.2.b.
The petitioner's travel route - flying from a Persian Gulf state through the United Arab
Emirates to Karachi and then to the Taliban offices in Quetta, Pakistan - was common among
jihadists traveling to Afghanistan to train and fight with the Taliban or al-Qaida. See, e.g., Ai
Odah v. United States, 648 F. Supp. 2d 1, 8-9 (D.D.C. 2009) (concluding that the petitioner's
travel route from Dubai to Karachi and then Quetta before crossing the border into Afghanistan
supported the inference that he traveled to Afghanistan to engage in jihad), aff'd, 611 FJd 8
(D.C. Cir. 2010). The petitioner contends that the government has not demonstrated that this
route differed from the route taken by any other individuals with limited means traveling to
Afghanistan. Nov. 10 (a.m.) Tr. at 64-65. Indeed, viewed in isolation, evidence that the
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petitioner utilized a travel route frequented by foreignjihadists may not be particularly probative
of the petitioner's intentions.
In this case, however, there are additional facts that color the court's assessment of the
significance of the petitioner's travel route. First of all, the elaborate arrangements made by the
Taliban office in Quetta to ferry the petitioner across the border without detection by border
patrol calls into question the legitimacy of the petitioner's motives. 31 The fact that the petitioner
traveled along this route with individuals whom he knew to be jihadists also casts doubt on his
motivations for going to Afghanistan. Finally, there is the fact, discussed below, that the end
point of the petitioner's travel route was an al-Qaida guesthouse in Kandahar, Afghanistan. See
infra Part IV.B.2.b.
Thus, the evidence that the petitioner followed travel routes frequented by the foreign
jihadists entering Afghanistan and traveled with individuals who admitted to the petitioner that
they intended to become martyrs provides additional support for the government's allegation that
the petitioner traveled to Afghanistan to fight with the Taliban or al-Qaida.
e. Conclusion
In summary, the evidence indicates that before the petitioner left for Afghanistan, he
developed significant and meaningful relationships with both veteran and future jihadists in
Yemen. The evidence also indicates that the petitioner was influenced to travel to Afghanistan
b y . a veteran Taliban fighter who told the petitioner about training and fighting with the
31
The petitioner has suggested that these border-crossing measures may have been motivated by
concerns about efficiency. Nov. 10 (p.m.) Tr. at 71-72; see also Petr's Proposed Findings of Fact
~ 131. Yet the petitioner stated that after he and his fellow companions were taken across the
border on motorcycles, they rejoined the taxi that had brought them to the border. GE 3 at 6; GE
4 at 1. Given that the taxi too crossed the border, it is unclear why logic or efficiency would
dictate leaving the taxi for the border crossing and then rejoining it after the crossing was
completed. Instead, the more reasonable inference is that the petitioner and his companions
exited the taxi at the border to escape detection by border patrol guards, who, according to the
petitioner, did not stop motorcycles crossing the border. GE 4 at 1.
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Taliban and who provided the petitioner a route to Afghanistan that funneled him into the al­
Qaida/Taliban military apparatus. Furthennore, the petitioner admits that he was influenced to
go to Afghanistan by a religious fatwa that likely called for him to go to Afghanistan to fight
with the Taliban. Finally, the petitioner traveled to Afghanistan along a route used by jihadists
and traveled with individuals who admitted that they were going to engage in jihad and become
martyrs. Based on this evidence, the court concludes that it is more likely than not that the
petitioner traveled to Afghanistan in order to fight with the Taliban, al-Qaida or associated
enemy forces.
2. The Petitioner Stayed at aJ-Qaida and Taliban Guesthouses
The government contends that the petitioner stayed at numerous al-Qaida and Taliban
guesthouses during his time in Afghanistan. Nov. 10 (p.m.) Tr. at 2-68. The government asserts
that this fact strongly supports its contention that the petitioner was "part of' Taliban or al-Qaida
forces. Id; Nov. 15 (a.m.) Tr. at 30-62. Although the petitioner does not dispute that he stayed
at guesthouses in Afghanistan, he denies that these guesthouses were necessarily affiliated with
al-Qaida or the Taliban and contends that the fact that he stayed at these guesthouses provides no
support for the government's allegation that he was part of al-Qaida or the Taliban. Nov. 10
(p.m.) Tr. at 69-74; Nov. 15 (a.m.) Tr. at 3-27
This Circuit has stated that evidence supporting a reasonable belief that an individual
attended al-Qaida training camps or stayed at al-Qaida guesthouses in Afghanistan is powerful
evidence that the detainee was "part of' the Taliban, al-Qaida or associated forces. Al-Bihani,
590 F.3d at 873 n.2 (observing that "evidence supporting the military's reasonable belief of
either of those two facts with respect to a non-citizen seized abroad during the ongoing war on
terror would seem to overwhelmingly, if not definitively, justify the government's detention of
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such a non-citizen"); see also AI-Adahi, 613 F.3d at 1108 (observing that the petitioner's
"voluntary decision to move to an al-Qaida guesthouse ... makes it more likely - indeed, very
likely - that [the petitioner] was himself a recruit."); Sulayman, 2010 WL 3069568, at *14-15
(observing that the petitioner's presence at Taliban-affiliated guesthouses supported the legality
of his detention).
The government contends that the petitioner stayed at the following al-Qaida or Taliban­
affiliated guesthouses prior to his capture: (1) the Daftar al-Taliban in Quetta in Quetta, Pakistan;
(2) the Haji Habash guesthouse in Kandahar, Afghanistan; (3) the al-Ghamdi guesthouse in
Kabul, Afghanistan; (4) the home 0 in lalalabad, Afghanistan; and (5)
guesthouses near the Taliban battle lines. The court considers the evidence supporting these
contentions below.
a. Daftar al-Taliban in Quetta, Pakistan
As previously noted, the launching point for the petitioner's journey into Afghanistan
was the Daftar al-Taliban in Quetta, Pakistan, which arranged for his entry into Afghanistan and
where the petitioner stayed for two to three days before his border crossing. See supra Part
IV.B.l.d. The petitioner acknowledged to interrogators that he understood that the Daftar al-
Taliban operated as a Taliban-run guesthouse, GE 1 at 6; GE 3 at 5-6, a characterization
consistent with the account of at least one other GTMO detainee, see, e.g., GE 13 at 2
(interrogation report in which the detainee describes a fatwa that "explained how to travel to
Quetta and get to a large Taliban center where the Taliban would take people to Afghanistan,,).32
Indeed, according to the petitioner, the three other individuals whose journey into Afghanistan
32
As previously noted, Government's Exhibit 13 is an interrogation report reflecting statements
made by GTMO detainee al-Jadani. See generally GE 13. AI-Jadani's description of the Taliban
office in Quetta, Pakistan corresponds closely with the petitioner's account, and this
corroboration supports the reliability of both accounts.
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was also facilitated by the Daftar al-Taliban admitted that they intended to become martyrs. GE
10 at 2.
The petitioner has suggested that the Daftar al-Taliban simply acted as a travel agency for
individuals seeking to enter Afghanistan. Nov. 10 (p.m.) Tr. at 70-71; Nov. 15 (a.m.) Tr. at 12­
13. His only support for this assertion, however, is the fact that most taxi drivers in Quetta knew
the location of the facility and that the Daftar al-Taliban sometimes charged a fee. Nov. 10
(p.m.) Tr. at 70-71; Nov. 15 (a.m.) Tr. at 13; see also GE 15 at 1. This evidence, however, is not
necessarily inconsistent with, and hardly overcomes the weight of, the evidence that the Daftar
al-Taliban served as a Taliban-run waystation for foreign fighters seeking entry to Afghanistan.
See GE 1 at 6; GE 3 at 5-6; GE 13 at 2. Thus, the court concludes that the Daftar al-Taliban
functioned as a Taliban guesthouse and facilitation hub and that the petitioner knew that these
were the functions of the Daftar al-Taliban at the time he stayed there.
b. Haji Habash Guesthouse in Kandahar, Afghanistan
guesthouse. GE 3 at 6; GE 6 at 2. As described in the declaration 0_
After arriving in Kandahar, the petitioner stayed for two weeks at the Haji Habash
the Arab House, also known as the Haji Habash House, functioned as a Taliban­
sponsored guesthouse for Arab mujahedeen in Kandahar. . .. [T]he Arab House
was used as a transition point and in-processing location for individuals going to
train at various training camps, including al-Farouq. Additionally, all personnel
staying at the Arab House were required to turn over their luggage, passports,
and any money they possessed.
_Decl.at3.
Although the petitioner likens the Haji Habash guesthouse to a youth hostel, Nov. 10
(p.m.) Tr. at 72-74, the petitioner's own statements belie this characterization. The petitioner
acknowledged to interrogators that the Haji Habash guesthouse was a Taliban guesthouse, GE 6
at 2, operated by an individual n a m e d _ id.; GE 2 at 3; GE 3 at 6. The petitioner also
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acknowledged that he k n e w _ was a member of al-Qaida. GE 2 at 3 ("When he was
asked about al-Qaida members he knows, al Sabri said that he only knew one al-Qa'ida member,
a man n a m e d _ .... He said he met him in Kandahar, at the al-Ansar guesthouse.").
Indeed, well-documented affiliation with al-Qaida has been noted by other
members of this court. See, e.g., Abdah v. Obama, 2010 WL 3270761, at *3 (D.D.C. Aug. 16,
2010) (describing ole as an al-Qaida facilitator); Abdah v. Obama, 709 F. Supp.
2d 25, 35-36 (D.D.C. 2010) (noting t h a t _ was a member of al-Qaida and that the Haji
Habash guesthouse he ran was affiliated with al-Qaida).
The petitioner also stated to interrogators that "[t]here were many people from different
nations at the [Haji Habash] guesthouse, and they were there waiting to go on training missions
at either Al Farouq or Abu Baida.',33 GE 6 at 2. The petitioner stated that when he arrived at the
Haji Habash guesthouse, he turned over his passport to Abu Khloud. GE 6 at 2; see als~
Decl. at 3 (noting that collecting passports gave training camp and guesthouse administrators
greater control over trainees and prevented them from easily leaving without approval). Another
detainee has stated that the Haj i Habash guesthouse was surrounded by
walls that were approximately four meters high and that the front entrance was guarded by a
Taliban guard armed with a Kalashnikov rifle who searched persons entering the house. 34 GE 13
at 2. These descriptions of the facility simply do not correspond with the type of guesthouses
33
Indeed, the petitioner acknowledged that during the two weeks he stayed at the Haji Habash
guesthouse, he was approached by an individual who tried to convince him to train at the al­
Farouq camp. GE 9 at 3.
34
The level of detail contained in al-Jadani's description of the Haji Habash guesthouse (he
describes the guesthouse's precise location, the surrounding buildings and the layout of the
facility, and gives a detailed physical description of the guard who provided security to the
guesthouse), see GE 13 at 2, coupled with the absence of any evidence of undue coercion,
persuades the court to rely on the detainee's account.
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that the petitioner's expert has stated are "most closely comparable to the old-fashioned Western
concept ofa non-profit youth hostel or YMCA." Carapico Decl. ~ 18(c).
The petitioner maintains that even if the Haji Habash guesthouse was affiliated with the
Taliban or aI-Qaida, not everyone who stayed there was necessarily affiliated with those forces.
Nov. 10 (p.m.) Tr. at 72-74; see also PE 32 ~ 6.0; PE 35 at 1; PE 115 at 2. The evidence,
however, does not support the notion that the petitioner was one of these unaffiliated wayward
travelers. For instance, the petitioner stated to interrogators that during the two weeks he stayed
at the Haji Habash guesthouse, he visited the Islamic Institute across the street daily. GE 3 at 6;
GE 4 at 1. According to other GTMO detainees, this Institute was headed by Abu Hafs al-
Mauritania, a senior al-Qaida leader who associated with high-ranking Taliban and al-Qaida
leaders. GE 7 at 1; GE 48 at 1_2.35 One detainee reported that "the mission of the Institute was
to issue religious fatwa[s], teach the Koran and the Hadith, and to indoctrinate the young
students about going to paradise if they give their lives for the Muslim cause." GE 48 at 1-2.
This account has been found credible by another judge in this district, who has remarked that
"the Institute was sponsored and led by key Al Qaeda figures" and that "students there were
taught Islamic doctrine in a manner twisted to serve the purposes of Al Qaeda" and that
"attendance at the Institute is certainly consistent with becoming a part of Al Qaeda." Abdah,
709 F. Supp. 2d at 44.
Government's Exhibit 7 is an interrogation report containing statements made by GTMO
detainee Ahmed Abdel Aziz. See generally GE 7. Aziz admitted to working for Abu Hafs al­
Mauritania at the Islamic Institute in Kandahar, id. at 1, and provided detailed information about
numerous suspected j ihadists, id. at 1-4. His account of ai-Mauritania's affiliation with the
Islamic Institute is corroborated by al-Jadani, who provides detailed information about Abu Hafs,
his family and the physical layout of the institute. GE 48 at 1-2. The court has been presented
with no evidence that these descriptions were elicited through undue coercion. The court
therefore considers both accounts sufficiently reliable for this analysis.
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At any rate, the government need not establish that every person who stayed at the Haji
Habash guesthouse (or any other guesthouse) was a member of al-Qaida. Rather, the
government's burden is to prove that it is more likely than not that the petitioner was "part of' al-
Qaida, and evidence that the petitioner knowingly stayed at a guesthouse affiliated with al-Qaida
or the Taliban, even if not dispositive, is undoubtedly probative in this regard. See Al-Bihani,
590 F.3d at 873 n.2; AI-Adahi, 613 F.3d at 1108.
Based on the overwhelming weight of the evidence, the court concludes that the Haji
Habash guesthouse was a Taliban or al-Qaida affiliated guesthouse. The court further concludes
that the petitioner knew the guesthouse was affiliated with the Taliban and al-Qaida at the time
he stayed there. This evidence strongly supports the government's assertion that the petitioner
was "part of' al-Qaida at the time.
c. Hamza aJ-Ghamdi's Guesthouse in KabuJ, Afghanistan
After spending two weeks at the Haji Habash guesthouse, the petitioner received
permission from _ to journey to lalalabad. GE 3 at 6. The petitioner traveled with
another guesthouse resident, a Moroccan n a m e d _ GE 3 at 6; GE 4 at 2; GE 9 at 4. En
route to lalalabad, the petitioner spent two nights at a guesthouse in Kabul operated by an
individual named Hamza al-Ghamdi. GE 3 at 6; GE 4 at 2; GE 9 at 4.
Other detainees have acknowledged that al-Ghamdi was a member of al-Qaida. One
detainee described al-Ghamdi as "one ofUsama bin Laden's main [lieutenants]." GE 20 at 2.
The detainee stated that al-Ghamdi "[was] one of the planners for al-Qaida special operations in
Afghanistan and maybe for other countries." Id. Another detainee stated that "AI-Ghamdi
decided what training a person received and where they went for training" and that "if anyone
wanted to go somewhere such as Kandahar ... or the front line, al-Ghamdi would arrange to get
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them there." GE 22 at 1. 36 Indeed, when asked by interrogators, the petitioner did not deny that
al-Ghamdi was a member ofal-Qaida. GE 24 at 1.
The petitioner told interrogators that during this stay at the al-Ghamdi guesthouse, he
asked al-Ghamdi for permission to go to the front lines. GE 9 at 4. According to the petitioner,
al-Ghamdi denied the request "since. he did not have any weapons training." Jd. This account is
consistent with that of another detainee, who stated that he too requested pennission from al-
Ghamdi to travel to the front, but that this request was denied because "AI-Ghamdi told him that
he needed refresher training." GE 22 at 2.
The petitioner spent two days at the al-Ghamdi guesthouse before traveling on to
Jalalabad. GE 4 at 2; GE 9 at 4. After several months, the petitioner "decided to return to Al
Ghamdi's Arab house in Kabul to try and get to the fighting at the front line." GE 9 at 5. During
this second stay, which lasted approximately one week, GE 24 at I, AI-Ghamdi granted the
petitioner's request and "finally authorized [the petitioner] to go to the 2nd line of defense near
Bagram," GE 9 at 6. The petitioner told interrogators that he "receive[ed] instructions from [al-
Ghamdi] on training sites and front lines." GE 24 at 1.
Before the petitioner departed the al-Ghamdi guesthouse for the front, he observed an
individual named visit the guesthouse. GE 9 at 5. _ was a
coordinator for the September 11 terrorist attacks. 9111 COMMISSION REpORT at 434. According
36
Government's Exhibit 20 is an interrogation report containing statements made by GTMO
detainee Ghaleb Nassar al-Bihani, who provides detailed information regarding al-Ghamdi's
history of affiliation with al-Qaida, as well as his role within the organization. GE 20 at 1-2.
There is no evidence that these statements were elicited through undue coercion. Moreover, al·
Bihani's account is consistent with the account provided by al-Jadani, who described al­
Ghamdi's role in facilitating the movement of fighters to and from the front lines. GE 22 at 1.
AI-Jadani's description of al-Ghamdi's responsibilities is corroborated by the petitioner, who also
acknowledges al-Ghamdi's authorization was necessary to get to the front lines. GE 9 at 6; GE
24 at 1.
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to the petitioner, _ would come to the house and greet people before going upstairs to the
private offices. GE 9 at 5-6.
In light of the above, there is overwhelming evidence that the al-Ghamdi guesthouse was
a Taliban or al-Qaida affiliated guesthouse. Furthermore, the petitioner plainly knew that the
guesthouse had these affiliations, as he understood that al-Ghamdi was a member of al-Qaida,
knew that al-Ghamdi associated with senior members of al-Qaida, asked al-Ghamdi twice for
permission to travel to the front and returned to the al-Ghamdi guesthouse for the express
purpose of reaching the front.
d. _ House in Jalalabad, Afghanistan
The petitioner stated to interrogators that after spending two days at the al-Ghamdi
guesthouse, he traveled to lalalabad w i t h _ , who had accompanied him on his journey
from the Haji Habash guesthouse to the al-Ghamdi guesthouse in Kabul. GE 4 at 2; GE 10 at 2.
In lalalabad, the petitioner contacted~ friend, GE 4 at 2; GE 10 at 2.
According to the petitioner,. a n d _ had fought together with the Taliban and remained
very close. GE 9 at 4; GE 10 at 2. The petitioner stated to interrogators that he lived withlll
_ for several months before returning to the al-Ghamdi guesthouse in an effort to get to the
front. GE 4 at 2; GE 9 at 4.; GE 10 at 2.
Although the government contends t h a _ house was "just another al-Qaeda and
Taliban guesthouse," Nov. 10 (p.m.) Tr. at 43-50, they have offered little to support that
assertion. The government has provided no evidence that other Taliban or al-Qaida fighters
stayed a t _ house during the time that the petitioner was there. See~ecl. at 1
(noting that most guesthouses "functioned as bed-down locations" for jihadist fighters). Nor is
there any evidence t h a t _ house served as a training camp facilitation hub, meeting
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place for al-Qaida leaders or waystation for fighters on their way to the frontlines. See id
(describing other functions served by al-Qaida guesthouses). Accordingly, the government has
not established t h a t _ house was a Taliban or al-Qaida guesthouse.
The significance of this finding, however, is tempered by two additional findings. First,
as discussed below, the evidence indicates that during at least part of the period that the
petitioner claims to have been living w i t h _ the petitioner was, in fact, receiving military
training at an al-Qaida training camp. See infra Part IV.B.3. Indeed, despite his demonstrated
ability to recall minute details about other aspects of his time in Yemen and Afghanistan,37 the
petitioner appears to have provided little information about the many months he allegedly spent
w i t h _ . See, e.g., GE 4 at 2 (the petitioner stated that he "did not work or receive any
training while living w i t h _
Furthermore, for whatever time he did spend at _ house, the petitioner remained
intimately associated with jihadist forces. ~as himself a former Taliban fighter, GE
10 at 2, whose principal activity was, according to the petitioner, disbursing funds that he
received from Saudi Arabia, GE 9 at 5; GE 41 at 2. Although the petitioner stated that these
funds were distributed to orphanages and the parents of children studying Quran, GE 6 at 2; GE
41 at 2, he stated that those funds may have gone to other sources as well, GE 41 at 2. Indeed,
while describing~istributionof funds during one interrogation, the petitioner
acknowledged, "I do not know i~is a member ofal Qa'ida." GE 41 at 2.
37
See, e.g., GE I at 2-3 (petitioner recalled the name of the two individuals who flew with him
from Saudi Arabia to Sana'a, the name of the hotel where he stayed in Sana'a and the amount of
money he paid the taxi to drive him to Ta'iz); GE 3 at 4-5 (petitioner recalled detailed
biographical information about numerous members of the Jamil boardinghouse); GE 9 at 4-5
(petitioner provided a detailed description ofthe physical layout of the al-Ghamdi guesthouse and
surrounding grounds, including its location, the placement of vehicles and guards, despite the fact
that he stayed there less than two weeks).
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Regardless of whether_ was a member of the Taliban or al-Qaida, there is
evidence t h a _ had ongoing relationships with jihadists. The petitioner recalled that on
one occasion while he was living there, ~as visited by four Tunisians who "were in
Jalalabad for Jihad." GE 6 at 2. One of these Tunisians was a small anns dealer named _
_ Id; GE 4 at 2. According to the petitioner, he purchased a pistol from al-Tunisi and
he,~d_'would travel to an area called Negim ai-Jihad located between eight
(8) and ten (10) kilometers from Jalalabad" where there was a public shooting range. GE 4 at 2­
3.
During this period, the petitioner was also visited by an associate from Sana'a,.
~ who was accompanied by an individual name GE 3 at 7; GE 9 at 5. •
_ whom the petitioner had met once in Sana'a through_ collected funds for the
jihad in Chechnya. GE 3 at 7; GE 9 at 5. As previously noted, the petitioner has acknowledged
t h a t _ was a member of al-Qaida. GE 36 at 3; GE 41 at 2. _ informed the
petitioner that his fonner housemate, al-Khamri, had been one of the suicide bombers during the
Cole attack. GE 4 at 3; GE 9 at 5.
Lastly, the court notes that after allegedly spending several months w i t h _ the
petitioner returned to al-Ghamdi's guesthouse in Kabul, at which time he received authorization
to travel to the front. GE 9 at 5-6. Had the petitioner truly dissociated himself from the Taliban
and al-Qaida during the months when he was allegedly living w i t h _ and failed to
address the lack of training that had previously prevented him from going to the front, it seems
unlikely that al-Ghamdi would have immediately welcomed him back to the guesthouse and
authorized him to go to the Taliban battle lines.
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Accordingly, even i~ house was not a formal al-Qaida or Taliban guesthouse,
the time the petitioner spent there does not constitute time when he was dissociated from al-
Qaida or the Taliban. To the contrary, it appears that during this time, he remained very much a
part of the al-Qaida and Taliban apparatus, continuing his interactions with establishedjihadists
before eventually returning to the al-Ghamdi guesthouse in an effort to get to the front.
e. ~uesthouse Near the Frontlines
As noted, the petitioner has stated that after spending several months in Jalalabad, he
returned to the al-Ghamdi guesthouse, at which time he received authorization to the Taliban
battle lines. GE 9 at 2. The details of the petitioner's accounts of his time at the front are not
entirely consistent. See GE 4 at 2; GE 6 at 2; GE 9 at 6. These accounts do, however, suggest
that after he returned to the al-Ghamdi guesthouse, he stayed in at least one other Taliban and al-
Qaida guesthouse near the front. See GE 6 at 2 ("[The petitioner] traveled to Kabul via taxi and
stayed at a guesthouse for seven (7) days. Afterwards, [the petitioner] ventured to another
guesthouse located near the thirdlines for ten (10) days."); GE 4 at 2 (interrogation report in
which the petitioner states that on his way to the front, he stayed at a guesthouse operated by an
individual n a m e d _ a Taliban fighter who had been in charge ofa defense fighting line
outside Bagram). Accordingly, the evidence indicates that even after his extended stay in
Jalalabad, the petitioner stayed at additional Taliban and al-Qaida affiliated guesthouses in his
effort to get to the frontline.
f. Conclusion
In sum, the evidence indicates that throughout his time in Afghanistan, the petitioner
stayed at multiple guesthouses that he knew were affiliated with al-Qaida and the Taliban. The
fact that one of the houses he stayed at may not have been a formal al-Qaida guesthouse hardly
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indicates that he had dissociated himself from the Taliban or al-Qaida. This evidence strongly
indicates that the petitioner was "part of' al-Qaida during this period.
3. The Petitioner Sought Out and Received Military-Style Training in Afghanistan
The government contends that the petitioner applied for and received military-style
training from the Taliban or al-Qaida during his time in Afghanistan. Nov. 15 (a.m.) Tr. at 63­
79; Nov. 15 (p.m.) Tr. at 3-20, 36-51. This evidence, the government contends, provides further
support for the government's allegation that the petitioner was "part of' the Taliban, al-Qaida or
associated enemy forces. Nov. 15 (a.m.) Tr. at 63-79; Nov. 15 (p.m.) Tr. at 3-20,36-51. The
petitioner responds that the government has not proven that he received any military training.
Nov. 15 (p.m.) Tr. at 20-35. The petitioner further contends that even ifhe did receive such
training, that fact would not establish that he was part of the Taliban or al-Qaida. Id
a. The Petitioner's Kunyas
The government has offered evidence that terrorists and insurgents commonly use
kunyas, which are assumed names or pseudonyms used to conceal the individual's true identity.
GE 1 ecl. I") at 2. 38 In Muslim culture, the kunya is traditionally an
honorific indicating that the person is either a mother or father and is constructed using the name
of the first-born son or eldest daughter ifthe person has no sons. Id. The kunya for a man is
"Abu," meaning "father of," plus the name of the first born. Id Terrorists, on the other hand,
use kunyas without regard to children's names or whether the individual has children. Id
Kunyas are often used by terrorists "as a security, denial and deception measure." Id
38
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In this case, the petitioner, who has no children, GE 27 at 1, has acknowledged that while
in Afghanistan, he used the kunya "Abu Abdullah." GE 9 at 4; see also GE 27 at 1 (noting that
the petitioner admitted using the kunya "Abu Abdullah" even before leaving for Afghanistan).
Furthermore, it is undisputed that the petitioner also used the kunya
during the time he was in Afghanistan. Nov. 15 (p.m.) Tr. 21-22, 34, 37.
b. The Petitioner's Application to Attend an al-Qaida Training Camp
In support of its contention that the petitioner received military training, the government
has submitted an FBI memorandum, dated March 27, 2002, which states that in December 2001,
coalition forces "recovered numerous documents from an 'Arab' office in Kandahar,
Afghanistan." GE 25 at 1. According to the memorandum, the documents recovered included
"applications for training at Al Qaeda camps." [d. The FBI memorandum then provides an
English-language translation of these applications. See generally id.
The FBI memorandum indicates that one of the individuals who applied to attend an aI-
Qaida training camp was GE 25 at 4. The applicant
indicates that he was born in 1977, hails from Mecca, Saudi Arabia, and has a ninth grade
education. [d. The applicant also indicates that he was referred to the camp by two individuals,
_ a n d _ . [d. As previously n o t e d _ is an individual whom the
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petitioner met in Sana'a through~dwhom the petitioner has acknowledged was a
member of al-Qaida. GE 3 at 5; GE 36 at 3; GE 41 at 2. The applicant also lists the names and
telephone numbers of two brothers,_ and_ GE 25 at 4. This information too is
consistent with biographical information provided by the petitioner. GE 1 at 1-3; GE 3 at 3. The
application concludes by asking for "Plans after training," to which this applicant responded,
"Jihad." GE 25 at 4.
It is clear that the who submitted this training
camp application is the petitioner. Each piece of biographical information contained in the
application, including the names of his brothers, his city of origin and his level of education,
corresponds with information that the petitioner has provided to interrogators. Indeed, the
petitioner does not dispute that he is the individual referred to in the application. Nov. 15 (p.m.)
Tr. at 21-22,34. Accordingly, the government has established that the petitioner submitted an
application to attend an al-Qaida training camp. 39
The petitioner offers two arguments to diminish the significance of this evidence. First,
he contends that even though the application states that the petitioner's intention was to engage
in "jihad" after the completion of his training, "jihad" does not necessarily mean armed conflict.
See Nov. 15 (p.m.) Tr. at 22-23; see also PE 95 ~ 18; PE 138 at 1. Although the court does not
doubt that the term "jihad" can encompass different meanings in different contexts, insofar as
this particular training camp application is concerned, the petitioner's argument is implausible.
As the FBI memorandum clearly indicates, each training camp application asked the applicant
39
The FBI memorandum specifies when and where the training camp applications were recovered
and who recovered the materials. GE 25 at I. Furthermore, the petitioner does not dispute that
the application 0 described in the FBI memorandum
reflects accurate, detailed biographical information regarding the petitioner. Id. at 4. Moreover,
the information contained in other applications translated in the FBI memorandum corresponds
with information recorded in other al-Qaida training documents. See infra Part IV.BJ.c.
Accordingly, the FBI memorandum is sufficiently reliable for the court's consideration.
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not only to provide background infonnation, but also specifically directed each applicant to
describe his "Previous military service." GE 25 at 1-4. Moreover, it is well established that al-
Qaida training camps were designed "to train and indoctrinate fighters and terrorists." 9/11
COMMISSION REpORT at 66. Accordingly, the court concludes that by indicating on his training
camp application that he intended to engage in 'Jihad" following his training, the petitioner was
expressing a desire to take up anns with al-Qaida or the Taliban.
The petitioner also contends that even ifhe filled out an application to attend an al-Qaida
training camp, it does not necessarily follow that he actually attended the camp. Nov. 15 (p.m.)
Tr. at 21-22. Noting that the date of the application corresponds with the time that he was at the
Haji Habash guesthouse, the petitioner claims that the application must have been completed
when he was approached at that guesthouse by a training camp recruiter. [d. Because the
petitioner ultimately declined the offer to attend the training camp, he argues, the application
submitted as part of this unsuccessful recruitment effort does not show that he attended an al-
Qaida training camp. [d.
The petitioner, however, has offered no evidence to substantiate his theory that the
training camp application was submitted as part of this recruitment effort. Furthennore, even if
the petitioner's training camp application does not conclusively prove that he received training
from al-Qaida, it certainly offers significant support for that allegation, particularly in light of the
detailed personal infonnation contained therein. Indeed, ifthe petitioner had no intention of
attending an al-Qaida training camp, it is not clear why he would provide such detailed
biographical infonnation about himself, including,the names and telephone numbers of his
brothers in Saudi Arabia and the name of his associate from th~oardinghouse,_
See GE 25 at 4. Accordingly, the fact that the petitioner filled out an application to attend an al­
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Qaida training camp strongly supports the government's allegation that he sought out military-
style training in Afghanistan.
c. Records of the Petitioner's Training
The government contends that the petitioner's receipt of military-style training is also
documented in a ninety-two page collection of documents, which, the government asserts, are
English-language translations of internal Taliban or al-Qaida records ("the AFGP Documents").
See generally GE 29. A corresponding DIA record, which the government submitted as a
supplemental exhibit,40 indicates that the AFGP Documents consist of English-language
translations of Arabic-language documents captured by coalition forces during Operation
Enduring Freedom. 41 GE 70 at 1. The record seems to reflect that these documents were
recovered from the "Director of AI-Qa'ida Security Training Office" and that they are similar to
other materials recovered from enemy forces. Id. at 2. The DIA, which prepared the translation,
notes that the AFGP Documents "contain[] [t]he names of the students admitted to the training in
the tactics of [a]rtillery, communication, infantry and their distribution. The training starting
times, programs, instructions about the subject matters are discussed too." Id. at 2.
The AFGP Documents contain multiple records concerning the petitioner. For example,
the exhibit contains several rosters of "arriving brothers," organized by their date of arrival. GE
29 at 48-53. One of these arriving brothers is
40
In its post-merits hearing submission, the petitioner complains that GE 70 was not admitted into
the record. The hearing transcript, however, plainly documents that the court pennitted the
introduction of this exhibit as rebuttal evidence over the objection of the petitioner's counsel.
Nov. 15 (p.m.) Tr. at 39-41.
4\
Operation Enduring Freedom is the military operation commenced b the United States and
coalition forces a ainst Taliban and al-Qaida forces in
of the operation is set forth in the
declaration of Lieutenant Colonel Jerry Brooks, a veteran Anny historian with twenty-three years
of active and reserve Anny service. See generally id.
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who, according to the roster, has a high school education, no profession and was referred by an
individual named Id at 52. The infonnation contained in this entry is consistent
with the infonnation recorded in the petitioner's training camp application, GE 25 at 4, and with
infonnation provided by the petitioner to interrogators, GE I at I; GE 3 at I. That the petitioner
is listed as an "arriving brother" on an al-Qaida roster captured with dozens of other documents
concerning al-Qaida trainees suggests that the petitioner sought out and received training from
al-Qaida or the Taliban.
The AFGP Documents also contain records reflecting the petitioner's attendance and
completion of various training courses. See generally GE 29. One such record is a training
roster issued by the "Office of Mujahadeen Affairs." Id at 34. The roster indicates t h a _
~ a s scheduled to attend "Communication Class #2" beginning in February 2001. ld
The AFGP Documents also include a memorandum issued by the "Ansar Allah Base" on August
24,200 I, listing a group of individuals, including who had "graduated from
Anti Air Missiles" and who would therefore "have priorit[y] in joining the Artillery Sessions"
which was to start shortly. ld. at 84. These internal al-Qaida records indicate that after applying
to attend an al-Qaida training camp, the petitioner did, in fact, receive such training.
The petitioner contends that the goyernment has not established the reliability of the
AFGP Documents. Nov. 15 (p.m.) Tr. at 23-24. The court disagrees. As previously noted, the
government has submitted an internal DIA record indicating that the exhibit represents a DIA
translation of training records captured during Operation Enduring freedom. GE 70 at 1-2.
Although the petitioner points out that the DIA record indicates that the ninety-two page exhibit
represents intelligence that has not been evaluated, the Circuit has made clear that "raw"
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intelligence is not inherently unreliable. Barhoumi, 609 F.3d at 429 (citing Parhat, 532 F.3d at
836).
The petitioner also notes that the DIA record does not specify when and where the AFGP
Documents were recovered. See GE 70 at 1. Yet the absence of this information, while
significant, does not necessarily undermine the reliability of the AFGP Documents, particularly
in light of the fact that the information contained in the document is corroborated by other
materials in the record. See Barhoumi, 609 F.3d at 429 (observing that "an intelligence report's
reliability can be assessed by comparison to 'exogenous information'" (quoting Parhat, 532 F.3d
at 848)). As previously noted, the petitioner's biographical information recorded in the AFGP
Documents' roster of "arriving brothers," GE 29 at 52, is consistent with that provided in the
petitioner's training camp application, GE 25 at 4. Likewise, the other rosters of "arriving
brothers" in the AFGP Documents contain information about trainees that also matches up with
information recorded in the training camp applications translated in the FBI memorandum.
Compare GE 29 at 48,52
The overlap in the information set forth in the AFGP Documents and
the FBI memorandum provides substantial evidence of their authenticity and reliability.
The information in the AFGP Documents (and the FBI memorandum) is also
corroborated by the petitioner's own statements. For instance, according to the petitioner, one of
the individuals who traveled with him from the Daftar al-Taliban to the Haji Habash guesthouse
was a twenty-three year old Yemeni man he knew as~E 1 at 6-7. The _
_ listed on the FBI memorandum is described as a twenty-three year old Yemeni man
with an occupation in computers referred bY~ho arrived in Afghanistan in
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September 2000, the same time as the petitioner. GE 25 at 2. listed
on the AFGP Documents training roster is described as a
corroborating details strongly suggest that the_ GE 29 at 48. These
who traveled with the petitioner is the
same man listed on the al-Qaida training roster and the training camp applications, and provide
further support for the reliability of the AFGP Documents and the FBI memorandum.
The petitioner also contends that there is no proof that the who was
scheduled to attend a communications class, GE 29 at 34, and the who had
completed a course in anti-aircraft missiles and was scheduled to begin artillery training, id at
84, refer to the petitioner. Nov. 15 (p.m.) Tr. at 24-28. The petitioner points out that the names
are both
common names that are used in the kunyas of many individuals listed in the AFGP Documents.
The petitioner, however, has not identified any instance in which an individual listed as
an "arriving brother" or training camp attendee in the AFGP Documents used the kunya _
_ Moreover, the petitioner does not dispute that the entry for
on the al-Qaida training roster found in the AFGP Documents refers to the petitioner. GE 29 at
52. Indeed, given the overlap between the information in that entry, the training camp
application, see GE 25 at 4, and the petitioner's statements to interrogators, see GE 1 at 1-3, the
evidence strongly indicates that the individual listed on the training roster is the petitioner.
Having established that at least one of the references t in the AFGP
42
The closest the petitioner comes to such evidence is an entry on an "arrivin brothers" list in
which one individual lists as a reference an individual named GE 29 at 55.
While this evidence supports the uncontroversial proposition t at t ere were 0 er mdividuals
using the kunyas similar to that of the petitioner, it provides little support for the proposition that
there were other individuals being processed for training at al-Qaida training camps around the
same period using that kunya.
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Documents refers to the petitioner, the court concludes that it is more likely than not that the
other references to that kunya contained in the same collection of materials also refer to the
petitioner, rather than some unidentified individual also using the same kunya.
d. Authorization to Travel to the Front
Finally, the fact that al-Ghamdi subsequently authorized the petitioner to go to the
Taliban battle lines also supports the government's contention that he received military-style
training from al-Qaida. As previously noted, the petitioner has stated that when he first stayed at
al-Ghamdi's guesthouse in Kabul, he requested permission to go to the front. GE 9 at 4. AI-
Ghamdi denied that request "since he did not have any weapons training." Id. This account is,
as previously noted, consistent with that of another detainee, who stated that al-Ghamdi similarly
denied his request to go to the front because he needed "refresher training." GE 22 at 2.
According to that detainee, al-Ghamdi sent him to the Malik training camp near Kabul. Id.
In this case, the petitioner stated that several months after al-Ghamdi denied his request,
he returned to the al-Ghamdi guesthouse and again requested permission to go to the front. GE 9
at 4. During this second visit, al-Ghamdi authorized the petitioner to go to the battle lines. Id.
The reasonable inference from the petitioner's own account is that between his first and second
stays at al-Ghamdi's guesthouse, he remedied the deficiency identified by al-Ghamdi by
obtaining weapons training.
The fact that the petitioner reached the Taliban battle lines also undermines the
petitioner's argument that not everyone who received training from al-Qaida or the Taliban went
on to become a member of those forces. See Nov. 15 (p.m.) Tr. at 31-35. The petitioner has
presented substantial evidence that not every individual who attended an al-Qaida training camp
would go on to become part of those forces. See, e.g., PE 19 at 2, 7; 9/11 COMMISSION REPORT
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at 67. In the petitioner's case, however, the petitioner, after receiving training, did not distance
himselffrom the Taliban or al-Qaida; to the contrary, he "decided to return to Al Ghamdi's Arab
house in Kabul to try and get to the fighting at the front line." GE 9 at 5.
e. Conclusion
Based on the evidence presented by the parties, it is more likely than not that the
petitioner applied for and received military-style training from the Taliban or al-Qaida during his
time in Afghanistan. This fact strongly indicates that the petitioner was "part of' al-Qaida, the
Taliban or associated enemy forces. See Al-Bihani, 590 F.3d at 873 n.2.
4. The Petitioner Traveled to Taliban Battle Lines
The government contends that the petitioner spent time at Taliban battle lines and that
this fact further demonstrates that he was "part of' al-Qaida, the Taliban or associated enemy
forces. Nov. 15 (p.m.) Tr. at 51-61; 71-74. Although the petitioner does not dispute that he went
to the front, he contends that he traveled there essentially as a tourist and that this evidence does
not demonstrate that he was affiliated with the Taliban or al-Qaida. Id. at 62-71.
The petitioner repeatedly admitted to interrogators that in or around May 2001, he
traveled to the Taliban battle lines. GE 3 at 6; GE 4 at 3; GE 9 at 5-6. In one interrogation, the
petitioner stated that after returning to al-Ghamdi's guesthouse "to try and get to the fighting at
the front line," GE 9 at 5, he received permission to "to go to the 2nd line of defense near
Bagram. [The petitioner] went there to support the Taliban who were positioned to fight
Masood's Northern Alliance troops," id. at 6. In another interrogation, the petitioner stated that
he "began traveling to Bagram to assist Taliban fighters in their efforts against the Northern
Alliance fighters." GE 4 at 3. The petitioner stated that he spent a week at the fighting line,
although he did not see any exchange of gunfire. [d. In yet another interrogation, the petitioner
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stated that during the time he was in lalalabad, he "traveled to the frontline near Kabul. [The
petitioner] acknowledged that there was fighting going on there." GE 3 at 6.
The petitioner's admissions establish not only that he went to the front, but that he went
there to support Taliban forces. GE 4 at 3; GE 9 at 5. Furthermore, the evidence that the
petitioner requested authorization to go to the front, GE 9 at 5-6, received instruction from al-
Ghamdi regarding battle lines, GE 24 at 1, followed al-Ghamdi's directives about when he could
and could not go to the front, GE 9 at 4-6, and exchanged communications with his compatriot
Abu Ghanem at the front, GE 6 at 2-3, strongly suggests that the petitioner was not acting as a
"freelancer," but was instead operating within the Taliban or al-Qaida command structure as
"part of" those forces, see Bensayah, 610 F.3d at 725; Awad, 608 F.3d at 11.
To blunt the significance of this evidence, the petitioner has suggested at various times
that he went to the Taliban battle lines out of curiosity, or to find his former acquaintance, Abu
Ghanem, or as a "Gucci jihadist" tourist. 43 These contentions are not plausible. As one judge in
this district has remarked, "[i]t 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 military camp." Al-Waraji, 704 F. Supp. 2d at 42;
see also Sulayman, 2010 WL 3069568, at *18 ("[T]he Court 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."). The court concurs with this assessment.
In fact, this petitioner admitted in two separate interrogations that he went to the front to assist
43
The petitioner has submitted a declaration from an expert in Islamic cultures, who states that in
the 1980s, foreign volunteers, known as "Guccijihadists," traveled to Afghanistan on "jihad
tours" to fulfill their religious obligation to engage in jihad. PE 42 at 4. Although the petitioner
suggests that he may have been such a tourist, there is no evidence that these ''jihad tours"
continued into the 1990s and 2000s, nor is there any evidence that "Guccijihadists" of the 1980s
stayed in Taliban guesthouses or received military training like the petitioner.
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Taliban fighters. GE 4 at 3; GE 9 at 5. The court therefore concludes that evidence that the
petitioner spent time at Taliban battle lines strongly indicates that he was "part of' the Taliban,
al-Qaida or associated enemy forces.
S. The Petitioner Remained "Part of' the Taliban, al-Qaida or Associated
Enemy Forces at the Time of His Capture
The government contends that the petitioner remained "part of' those forces at the time
he was apprehended. Nov. 15 (p.m.) Tr. at 74-86; Nov. 16 Ir. at 10-12. Indeed, the government
asserts that the petitioner was captured after fleeing the battle of Tora Bora, where he had fought
alongside the Taliban and al-Qaida against coalition forces. Id. The petitioner maintains that
there is no evidence that he was "part of' the Taliban, al-Qaida or associated forces at the time
he was captured and that the government's contention that the petitioner fought at Tora Bora is
based on pure speculation. Nov. 16 Tr. at 3-10.
As noted, it is not enough for the government to show simply that the petitioner was, at
one time, a member of the Taliban, al-Qaida of associated forces; to be lawfully detained, the
petitioner must have been "part of' those forces at the time of his capture. See Salahi, 625 F.3d
at 751; Gherebi, 609 F. Supp. 2d at 71. "A petitioner who may once have been part ofal-Qaida
or the Taliban can show that he was no longer part of such an entity at the time of capture by
showing that he took affinnative actions to abandon his membership." Khalifv. Obama,2010
WL 2382925, at *2 (D. D.C. May 28, 2010) (citing AI Ginco v. Obama, 626 F. Supp. 2d 123,
128-30 (D.D.C. 2009)).
The petitioner stated to interrogators that after spending time at the front in the summer
of2001, he returned t o _ house in Afghanistan. GE 3 at 6; GE 4 at 3; GE 9 at 6.
of 200 1_
According to the petitioner, around the time that coalition forces approached lalalabad in the fall
instructed the petitioner to travel with an Afghan guide to a village near the
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Pakistan border. GE 6 at 3; GE 9 at 6. The petitioner claims that he waited in that village for
almost a month f o r _ to arrive with the petitioner's passport. GE 6 at 3; GE 9 at 6. The
petitioner then traveled into Pakistan, where he was arrested by Pakistani authorities. GE 6 at 3;
GE 9 at 6.
The petitioner's account is not credible. Although the petitioner claims to have stayed in
the border village for nearly a full month, he asserted to interrogators that he could not recall the
44
name of the village. GE 3 at 6. This assertion is difficult to square with the petitioner's
demonstrated ability to recall specific details about names and locations. See infra Part IV.B.2.d.
Furthermore, it is difficult to believe that the petitioner would have waited a month in a hostile
war zone simply to retrieve his passport, given that he had entered the country surreptitiously in
the first place. See supra Part IV.B.I.d.
Nonetheless, the government has offered no persuasive evidence that the petitioner was,
in actuality, fleeing after fighting in the battle of Tora Bora. Although the government points out
that the timing of the petitioner's retreat to Pakistan is consistent with having fought in the battle
of Tora Bora, Nov. 15 (p.m.) Tr. at 85-86, it is undisputed that around that time, coalition forces
were advancing on Jalalabad. Accordingly, the timing of the petitioner's decision to flee to
Pakistan is equally consistent with an individual fleeing from oncoming conflict. The
government therefore has not established by a preponderance of the evidence that the petitioner
fought in the battle of Tora Bora.
It is, however, not necessary for the government to prove that the petitioner fought at
Tora Bora to demonstrate that he was "part of' al-Qaida or the Taliban at the time of his capture.
The government has already offered compelling evidence that the petitioner traveled to
Afghanistan specifically to fight with the Taliban or al-Qaida, pointing out that the petitioner had
44
This interrogation occurred in May 2002, less than six months after his capture. See GE 3 at 1.
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extensive and lasting associations with al-Qaida associates prior to his departure and traveled
with individuals who acknowledged that they were going to Afghanistan to become martyrs. See
supra Part IV.B.l. The government also demonstrated that the petitioner stayed at multiple
Taliban and al-Qaida guesthouses and received military-style training during his time in
Afghanistan. See supra Part IV.B.2-3. Furthermore, the petitioner repeatedly admitted that just
months before his capture, he had been at the Taliban battle lines where he had gone to assist
Taliban forces fighting against the Northern Alliance. See supra Part IV.B.4. Viewed as a
whole, the evidence plainly establishes that at least by the summer of 2001, the petitioner was
"part of' al-Qaida, the Taliban or associated enemy forces.
There is no evidence that the petitioner took any steps to dissociate himself from these
forces in the intervening months before his capture. See Ai Ginco, 626 F. Supp. 2d at 128-30.
Even if the petitioner did stay with _ during those months, that fact alone is hardly
inconsistent with remaining "part of' the Taliban or al-Qaida; as previously discussed, after
allegedly living wit~or several months on a prior occasion, the petitioner was
permitted to stay at the al-Ghamdi guesthouse again and received authorization to travel to the
front. See supra Part IV.B.2.d. The petitioner, whose descriptions of his time w i t h _ are
strikingly vague when compared to his accounts of other periods in Yemen and Afghanistan, has
provided no evidence that he established contacts with anyone in Afghanistan outside the
Talibanlal-Qaida network, that he took any steps to obtain employment or that he took any other
affirmative actions inconsistent with being "part of' al-Qaida.
In sum, the court concludes that the petitioner traveled to Afghanistan to fight with the
Taliban or al-Qaida, stayed at Taliban or al-Qaida guesthouses, received military training at al-
Qaida facility, traveled to the battle lines and was captured during the same armed conflict. Even
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if none of these findings would independently justify his detention, viewed as a whole, they
plainly establish that the petitioner was "part of" the Taliban, al-Qaida or associated enemy
during his time in Afghanistan. Moreover, there is no evidence that the petitioner dissociated
with these enemy forces at any point prior to his capture. The weight of the evidence therefore
supports the conclusion that the petitioner remained "part of' al-Qaida or the Taliban at the time
of his capture and that he is therefore lawfully detained.
V. CONCLUSION
The government has established by a preponderance of the evidence that the petitioner
was "part of' the Taliban, al·Qaida or associated enemy forces and is therefore lawfully
detained. The court therefore denies the petition for a writ of habeas corpus. An Order
consistent with this Memorandum Opinion is issued separately and contemporaneously this 3rd
day of February, 2011.
RICARDO M. URBINA
United States District Judge
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