al-Adahi Detainee Case Opinon by Judge Gladys Kessler Granting Habeas Relief

8/14/2019 al-Adahi Detainee Case Opinon by Judge Gladys Kessler Granting Habeas Relief

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UNCLASSIFIEOIIFOR PUBLIC RELEASE.

-NITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

MOHAMMED AL-ADAHI, e t a l . ,

Pet i t ioners ,v. Civil Action No. 05-280 (GK)

BARACK H. OBAMA, e t a l . ,Respondents.

MEMORANDUM OPINIONPet i t ioner Mohammed Al-Adahi (UAl-Adahi" or Uthe Peti t ioner")

has been detained since 2002 a t the United States Naval Base a tGuantanamo Bay Cuba. Respondents ("the Government") argue tha t hisdetention i s jus t i f i ed under the Authorization fo r the Use ofMili tary Force, Pub. L. No. 107-40 2 (a), 115 Sta t . 224, 224(2001) ("AUMF"), which grants the Executive the power to detainindividuals engaged in certain t e r ror i s t ac t iv i t i es . ThePeti t ioner disagrees , and has, along with four other pet i t ioners ,f i led a pet i t ion fo r a writ of habeas corpus [Dkt. No. IJ .

The matter i s before the Court on Cross-Motions fo r Judgmenton the Record [Dkt. Nos. 373 and 379J. 1 Upon consideration of the

1 Two of the five Peti t ioners , andentTwo others , did f i le such a Motion, but the i r caseswere stayed during Al-Adahi' s Hearing. Order (June 25, 2009) [Dkt.No. 430J .

UNCLASSIFIEOIlFOR PUBLIC RELEASE.

did not f i l e Motions

Case 1:05-cv-00280-GK Document 459 Filed 08/21/09 Page 1 of 42


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I

, UNCLASSIFIEDIIFOR PUBLIC RELEASE,-otions, the Oppositions, extensive oral argument and accompanyingexhibits , and the ent i re record herein, Al-Adahi's habeas corpuspeti t ion and Motion are hereby granted.I BACKGROUND

A. Procedural HistoryPeti t ioner f i led his habeas corpus pet i t ion on February 7,

2005. After f i l ing, there was extensive preliminary l i t igat ionregarding the Court 's jurisdict ion to entertain detainees 'pet i t ions, the applicabil i ty of various s ta tutes , and theappropriate procedures to be used.

After more than s ix years of l i t igat ion, the most importantlegal issue was resolved by the Supreme Court in Boumediene v.Bush, 553 U.S. , 128 S.Ct. 2229 (2008). The Court ruled thatdetainees a t Guantanamo Bay, none of whom are ci t izens of theUnited States , are ent i t led to bring habeas pet i t ions under Article

of the Const i tut ion, and that the federal d is t r i c t courts havejurisdict ion to hear such pet i t ions.

The Court did not define what conduct the Government wouldhave to prove, by a preponderance of the evidence, in order tojus t i f iably detain individuals -- that question was l e f t to theDistr ic t Courts. Id. a t 2240 ("We do not address whether thePresident has the authori ty to detain these pet i t ioners nor do wehold tha t the writ must issue. These and other questions regarding

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UNCLASSIFIEDIIFOR PUBLIC RELEASE.



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-he l egal i ty of the detention are to be resolved in the f i r s tinstance by the Dis t r ic t Court ."). Nor did the Supreme Court laydown specif ic procedures for the Dist r ic t Courts to follow in thesecases.

Boumediene was, however, definit ive on a t leas t two points:f i r s t , tha t the detainees are ent i t led to a prompt hearing, 128S.Ct. a t 2275 ("The detainees in this case are ent i t l ed to a prompthabeas corpus hear ing.") , and second, tha t the Dis t r ic t Courts areto shape the contours of those hearings, id . a t 2276 (finding thatbalancing protec t ion of the wri t and the Government's in teres t inmili tary operat ions , "and the other remaining questions [, J arewithin the exper t ise and competence of the Distr ic t Court toaddress in the f i r s t ins tance.") .

In an e f for t to provide the prompt hearings mandated by theSupreme Court, many of the jUdges in th i s Dis t r ic t agreed toconsolidate the i r cases before former Chief Judge Thomas Hogan, fo rpurposes of streamlining procedures for , and management of, theseveral hundred pet i t ions f i led by detainees. See Order (July 1,2008) [Civ. No. 08 -442, Dkt. No. IJ . On November 6, 2008, af terextensive br ief ing from Pet i t ioners ' counsel and the Government,Judge Hogan issued a Case Management Order ("OMO") to govern theproceedings. This Court adopted, in large par t , the provisions oftha t Order, while modifying it somewhat, as noted in Appendix A to

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Dkt. No. 283.Much pre-hearing act ivi ty has taken place under th is Court 's

Case Management Order. The Government has f i led the exculpatoryevidence, automatic discovery, and addit ional discovery requiredunder the CMO. The Government f i led i t s Factual Return fo r AIAdahi on August 1, 2005, and amended it on September 29, 2008. ThePet i t ioner responded by f i l ing Traverses on July 3, 2008, July 7,2008, and October 10, 2009. After a period of extensive discovery,both part ies f i led substantial briefs accompanied by extensiveexhibi ts .

On Apri l 10 , 2009, the Court se t June 22, 2009, as the datefor the "merits hearing" on the Cross-Motions for Judgment on theRecord for a l l three Peti t ioners who planned to go forward inchallenging the i r detention. Al-Adahi ' s case , inc luding thePet i t ioner ' s l ive di rec t and cross-examination on June 23, 2009,was presented to the Court over a four-day period. On June 25,Peti t ioners instructed the i r counsel to notproceed with l i t iga t ing the i r Motions.cases were then stayed unt i l October 1, 2009. Order (June 25,2009) .I I . STANDARD OF REVIEW

The Government bears the burden of establ ishing tha t detentionis jus t i f i ed . See Boumediene, 128 S.Ct. a t 2270; Hamdi, 542 U.S.

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-07, 533-34 (2004). I t must do so by a preponderance of theevidence. Order, Appendix A a t II.A (Feb. 12, 2009) [Dkt. No.283-2] i see also Basardb v. Obama, 612 F. SUpp. 2d 30, 35 n.12(D.D.C. 2009).

In i t i a l ly , the Government took the posi t ion tha t Artic le I I ofthe Consti tut ion and the AUMF granted the President the authori tyto detain individuals . See Gherebi v. Obama, 609 F. Supp. 2d 43,53 n.4 (D.D.C. 2009). The Government asser ted, "[a] t a minimum, .. . the ab i l i ty to deta in as enemy combatants those individuals whowere par t of, or supporting, forces engaged in hos t i l i t i e s against

uthe United Sta tes or i t s coal i t ion partners and a l l i e s . Resp' t 'sStatement of Legal Jus t i f icat ion For Detention a t 2 [Dkt. No. 205] .

Since the change in administration, the Government hasabandoned Art ic le I I as a source of detention author i ty, and re l iessolely on the AUMF. Gherebi, 609 F. Supp. 2d a t 53 n.4. Further,i t no longer uses the term "enemy combatant. u I t s ref ined posi t ionis :

[ t]he President has the authori ty to detain persons tha tthe President determines planned, authorized, committed,or aided the t e r ro r i s t at tacks tha t occurred on September11, 2001, and persons who harbored those responsible forthose at tacks . The President also has the author i ty todetain persons who were par t of, or substant ia l lysupported, Taliban o r al-Qaida forces or associatedforces tha t are engaged in hos t i l i t i e s against the UnitedStates or i t s coal i t ion partners , including any personwho has committed a bel l igerent act , or has di rec t lysupported hos t i l i t i e s , in aid of such enemy armed forces.

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Resp' t' s Revised Mem. Regarding the Gov's Detent ion Author i tyRela t ive to Deta inees Held a t Guantanamo Bay a t 3 [Dkt. No. 306].

In Gherebi, Judge Reggie B. Walton of t h i s D i s t r i c t Courtru led tha t th e Government has the au thor i ty to de ta in individualswho were pa r t o f, o r subs t an t i a l l y supported, al-Qaida and/or theTal iban , provided t ha t those terms "are in te rpre ted to encompassonly individuals who were members of the enemy o rg an iza t io n ' s armedforces , as t ha t term i s intended under the laws o f war, a t the t imeof t h e i r cap tu re ." Gherebi , 60 9 F. Supp. 2d a t 70-71.

In Hamlily v. Obama, 616 F. SUpp. 2d 63 (D.D.C. 2009), JUdgeJohn Bates o f t h i s D i s ~ r i c t Court concluded t ha t under the la w ofwar, the Government has the au thor i ty to de ta in i nd iv idua l s whowere "pa r t o f . . Tal iban o r a l Qaida forces ," or associa tedforces . Id . a t 74. The cour t went on to ru le t ha t th e Governmentdoes not have th e au thor i ty to deta in those who are merely"subs tan t ia l suppor ters" of those groups. Id . a t 76. While theCourt has g rea t regard for the scholarship and analys i s containedin both dec i s ions , the Court concludes tha t Judge Walton's opinionpresented a c lea re r approach, and therefo re wi l l adopt h isreasoning and conclus ion. 2

2 The Court agrees with Judge Bates ' comment t ha t thedeterminat ion of who was a "pa r t of" the Tal iban/a l -Qaida , underJudge Walton ' s approach, re s t s on a highly individual ized and casespec i f ic i nqu i ry ; a s a re su l t , the "concept [of subs tan t ia lsupport] may play a ro le under the funct ional t e s t used to

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-I I . ANALYSISA. Evidentiary PresumptionsAs a pre l iminary mat te r , some a t tent ion must be given to the

nature of the evidence t ha t has been presented in t h i s case, andhow the Court, as fac t - f inder , wi l l go about evaluat ing tha tevidence. In at tempting. to meet i t s burden, the Government hasprovided evidence in the form of c la s s i f i ed in te l l igence andinterview repor t s t h a t it bel ieves j u s t i fy the Pe t i t i one r ' sdetent ion . The repor t s conta in the statements of Pet i t ioner , aswel l as sta tements made by other deta inees , t h a t the Governmentargues demonstrate the Pe t i t i one r ' s s t a tus as a member o rsubs tan t i a l supporter of al-Qaida and/or the Taliban. 3

The Government requested t ha t a rebu t tab le presumption ofau then t i c i ty be granted to a l l the exh ib i t s it in tends to

determine who i s ' p a r t o f ' a covered organizat ion," and thedi f ference in the tw o approaches "should not be grea t . " Hamlily,616 F. Supp. 2d a t 76.

Pe t i t i one r argues tha t the Government's evidence shouldbe excluded under the Geneva Conventions, because the evidence wascol lected in viola t ion of various ar t i c l es of the Third GenevaConvention. Pe t . ' s Resp. to Resp ' t ' s Mot. fo r J . and SupportingMem. a t 4 ("Pe t . ' s Opp' ni l) [Dkt. No. 402] . Par t ies br ie fed t h i si ssue fu r ther in the weeks following the Meri ts Hearing [Dkt. Nos.435, 441, and 442]. Assuming fo r the moment t ha t the evidence canbe admitted consi s t en t with the Geneva Conventions, the Court ' sconsidera t ion of t ha t evidence leads to the conclusion, asdiscussed below, t h a t AI-Adahi is not j u s t i f i ab ly deta ined.Therefore" it need not and does not reach the quest ion of whetherthe in te r roga t ion repor t s must be excluded.

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-ntroduce. 4 Pe t i t i o n e r objected to t h i s reques t . See Pe t s . ' Jo in tOpp'n to the Government 's Memo. and Supplement RegardingPresumptions, Hearsay and Rel iab i l i ty of In t e l l i g en ce Informationa t 3-10 ( "Pe t s . ' Presumptions Memo.") [Dkt. No. 400]; Pet . MohammedAI-Adahi ' s Br i e f in Support of Entry of Judgment a t 3 ("Pet . ' sMot.") [Dkt. No. 373] . Given the Government 's represen ta t ions t h a tthe sp ec i f i c documents inc luded in i t s case a ga i n s t Pe t i t i o n e r , aswel l as the documents provided to P e t i t i o n e r ' s counsel indiscovery, have a l l been maintained in the ord ina ry course ofbusiness , the Court w i l l presume, pursuant to Fed. R. Evid. 803(6),tha t i t s documents a re authent ic . As provided fo r in the CaseManagement Order, the Government 's exh ib i t s w i l l be granted arebu t t ab le presumption of au then t ic i ty and w i l l be deemed au then t icin the absence of any rebu t ta l evidence to the cont rary .

The Government has a l so requested t h a t a rebut tablepresumption of accuracy be granted to a l l the exh ib i t s it intendsto in t roduce . The Pe t i t i o n e r objected to t h i s r eques t a s well .See Pe t s . ' Presumptions Memo. a t 3-10. This reques t i s denied fo rsevera l reasons .

F i r s t , t he re i s abso lu te ly no reason fo r t h i s Court to presume

4 ord inar i ly , " the requirement of au then t ica t ion r equ i r est h a t the proponent , who i s of fe r ing a wri t ing in to evidence as anexh ib i t , produce evidence su f f i c i en t to suppor t a f inding t h a t thewri t ing i s what the proponent claims it to be." 2 K. Broun,McCormick on Evidence 221 (6th ed . ) .

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-h a t the f ac t s conta ined in the Government 's ex h ib i t s a re accurate .Given the extensive br ie f ing and o ra l argument presen ted by counselduring the discovery phase of th i s case , as wel l the exh ib i t ssubmit ted a t t he mer i t s t r i a l , it is c l ea r t h a t the accuracy ofmuch of the f ac tu a l mate r i a l contained in those ex h ib i t s i s hot lycontes ted fo r a hos t o f d i f f e r en t reasons ranging from the fac ttha t it conta ins second- leve l hearsay to a l l ega t ions t h a t it wasobta ined by t o r t u re to the f ac t th a t no s ta tement purpor t s to be averbat im account of what was sa id .

Second, given the f ac t t h a t th i s i s a bench t r i a l , the Courtmust, in any event , make the f ina l judgment as to the r e l i ab i l i t yof these documents, the weight to be given to them, and t he i raccuracy. Those f i n a l judgments wi l l be based on a long, non-exclus ive list of fac to rs t h a t any fac t - f inder must cons ider , suchas : cons is tency o r incons is tency with othe r evidence, condi t ionsunder which the ex h ib i t and s ta tements conta ined in it wereobtained , accuracy of t rans la t ion and t ranscr ip t ion , personalknowledge of declaran t about the mat ters t e s t i f i e d t o , l eve l s ofhearsay , recan ta t ions , e tc . s

Denial of the Government 's reques t fo r a rebut table

5 While the Supreme Court d id suggest in Hamdi t h a t arebu t t ab le presumption " in favor of the Government's evidence"might be permiss ib le , 542 U.S. a t 534, it d id not mandate i t . InBoumediene, the Court c l ea r l y l e f t it to the D i s t r i c t Courts toc ra f t appropr ia t e procedures . Boumediene, 128 S.Ct . a t 2272.

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-resumption of accuracy does not mean, however, tha t the Governmentmust present di rec t testimony from every source, or that it mustoffer a preliminary document-by-document foundation foradmissibi l i ty of each eXhibit . As the Supreme court noted inHamdi, 542 U.S. a t 533-34, hearsay may be appropriately admitted inthese cases because of the exigencies of the circumstances.

Final ly , while part ies always retain the r ight to challengethe admissibil i ty of evidence, the Court wil l be guided by theFederal Rules of Evidence, in par t icu lar Rule 402, providing that" [a] 11 relevant evidence i s admissible." Once a l l evidence i sadmitted into the record, the Court wil l then, in i t s role as factfinder, evaluate it fo r credibi l i ty , re l i ab i l i ty , and accuracy inthe manner described above.

B. Mosaic TheoryThe Government advances several categories of allegations

which, in i t s view, demonstrate tha t the Peti t ioner was detainedlawfully. Above a l l , i t s theory i s tha t each of these allegations- - and even the individual pieces of evidence supporting theseal legat ions - - should not be examined in i so la t ion . Rather, "[t]heprobity of any single piece of evidence should be evaluated basedon the evidence as a whole," to determine whether, when considered"as a whole," the evidence supporting these allegations comestogether to support a conclusion that shows the Pet i t ioner to be

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-ust i f iably detained. Gov's Mot. For J . Upon the Administrative R.and Mem. in SUPP. a t 6 ( internal ci tat ion omitted) ("Gov's Mot.")[Dkt. No. 379]. While the Government avoids an expl ic i t adoptionof the mosaic theory, it is , as a pract ica l matter , arguing for i t sapplication to the evidence in this case. ct. Ali Ahmed v. Obama,61 3 F. Supp. 2d 51, 55-56 (D.D.C. 2009).

The Court understands from the Government's declarat ions, andfrom case law,6 tha t use of th i s approach i s a common and well-establ ished mode of analysis in the intel l igence community. Thismay well be t rue . Nonetheless, a t this point in th i s long, drawn-out l i t igat ion the Court 's obligation is to make f indings of factand conclusions of law which sa t i s fy appropriate and relevant legalstandards as to whether the Government has proven by apreponderance of the evidence tha t the Pet i t ioner i s jus t i f iab lydetained. The kind and amount of evidence which sa t i s f i es thein te l l igence community in reaching f inal conclusions about thevalue of information it obtains may be very di fferent from, andcer ta in ly cannot determine, this Court 's rul ing.

Even using the Government's theoret ical model of a mosaic, i tmust be acknowledged tha t the mosaic theory i s only as persuasive

6 See, e .g . , McGehee v. Casey, 718 F.2d 1137, 1149 (D.C.Cir. 1983) (recognizing tha t the "mosaic-like nature ofintel l igence gathering" requires taking a "broad view" in order tocontextualize information) ( in ternal ci ta t ions and quotationsomitted) . .-11



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-s the t i l e s which compose it and the glue which binds themtogether jus t as a brick wall is only as strong as theindividual bricks which support i t and the cement tha t keeps thebricks in place. Therefore, i f the individual pieces of a mosaicare inherently flawed or do not f i t together, then the mosaic wil lsp l i t apart , jus t as the brick wall will collapse.

A f inal point must be kept in mind. One consequence of usingin tel l igence reports and summaries in l ieu of di rec t evidence istha t certa in quest ions simply cannot be answered, i . e . , there areno deposi t ion t ranscr ip ts to consult and few i f any witnesses areavai lable for cross-examination. Despite the fact that Peti t ionertes t i f ied via video-conference from Guantanamo Bay, and was cross-examined by the Government,7 sizeable gaps may appear in the recordand may well remain unfi l led; each party will attempt to accountfor these deficiencies by posit ing what they think are the most

7 Pet i t ioner ' s testimony was closed to the pUblic.However, the Government was ordered to conduct expeditedclass i f ica t ion reviews of the testimony t ranscr ip t so tha t i t couldbe released on the publ ic docket. Order (June 19, 2009) [Dkt. No.423] . The Government complied, an d the t ranscr ip ts were madeavai lable to the public on June 26, 2009 [Dkt. No. 431]. TheGovernment also was ordered to videotape the testimony and maintaina redacted copy of the tape. Order (June 19, 2009). On July 23,2009, the Government provided notice that i t did not comply withth i s order, ci t ing uoversight and miscommunication" as reasons thatthe testimony was not videotaped. Notice Regarding the Court 'sJune 19, 2009 Order (July 23, 2009) [Dkt. No. 446]. The followingday, Pet i t ioner f i led a Motion for Sanctions [Dkt. No. 447J, whichis pending a t th is t ime.

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-ompelling logical inferences to be drawn from the exis t ingevidence. Accordingly, tha t exis t ing evidence must be weighed andevaluated as to i t s s t rength, i t s re l i ab i l i ty , and the degree towhich i t i s corroborated. In any event, t h Government alwaysbears the ultimate burden of showing by a preponderance of theevidence tha t Pet i t ioner ' s detention is lawful. Jus t as a criminaldefendant need not prove his innocence, a detainee need not provetha t he was acting innocently. In sum, the fact tha t thePet i t ioner may not be able to offer neat answers to every factualquest ion posed by the Government does not rel ieve the Government ofi t s obligat ion to sa t is fy i t s burden of proof.

C. Government AllegationsIn narrowing the issues for t r i a l , part ies focused on s ix

broad factual areas tha t were in dispute. The Court then heardarguments on the existence and extent of (1) Pet i t ioner ' s familialt ies , (2) h is stay a t al-Qaida and/or Taliban guesthouses, (3) hismili tary t ra in ing a t Al Farouq and service as an ins t ructor there,(4) his employment as a bodyguard for Usama Bin Laden, (5) hisother act i v i t i es in Afghanistan (including his escape from thecountry and l a te r arres t ) , and, f inal ly , (6) the overallcredibi l i ty of Pet i t ioner ' s version of his t ravels from his home inIIIIIIto Pakistan, Afghanistan, and his f l ight back to Pakistan.

1. Familial Ties and Travel to Afghanistan

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-here i s no quest ion t h a t the record fUl ly supports theGovernment 's a l l ega t ion t h a t Pe t i t i o n e r had c lose f ami l i a l t i e s toprominent members of the j ihad community in Afghanistan. JE 28;8

b(1), beG)JE 55; JE 18; JE 40; Tr. a t 11, 17 (June 23, 2009).

T r. a t 11(June 23, 2009). Although the Government a l l eg es t h a t Al-Adahi haspresented i n co n s i s t en t and therefore unre l iab le reasons fo r t h i s

Tr. a t 22 (June 23, 2009); JE13 (c i t ing Amani's back problems and v i s i t to husband as reasons

b(1)fo r t r i p ) ; JE 15 a t 1 (same); JE 33 a t 2, 5b( 1) The two reasons are hard ly incons is ten t with eachothe r .

in b(1), b(6)From h er home had entered in to an arrangedmarriage with b(1), beG) She and herbrother , Pe t i t i o n e r , then t raveled to Kandahar to uni te therecen t ly wedded couple and to at tend a ce l eb ra t io n of the

8 Par t i e s submit ted two volumes of J o i n t EXhibits , whichcomprise the v a s t major i ty of evidence presented during t r i a l .Unless otherwise i nd ica ted , c i t a t ions to "JE" r e fe r to the universeof Jo i n t Exhib i t s .

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-arriage. 9 Tr. a t 9 (June 24, 2009)._ appears to have been a prominent man in Kandahar.b(1), b(6)

b(1), b(6) JE 28 a t 3; Tr. a t 15-16 (June 24, 2009) (Al-Adahi"believe[d]" tha t l l l l l l l l fought the Soviets, but was not told thatby IIIIIIII himself) . The Government al leges ' tha t _ was

b(1), b(6)involved a t a high l eve l in al-Qaida operations,b(1), b(6) see JE 18 a t 4-5 ; JE 40 a t 1(alleged to be Bin Laden bodyguard); Gov. Mot. a t 9 -1 0 10 Further,

i s described as being "among the j ihad personnel from_" JE 55a t 4 . I t i s not c lear i f th is description i s based on statementsf rom . or Al-Adahi "doubts" t ha t _ was a Bin Laden bodyguard, butacknowledges tha t he was "from mujahidin [s ic l ." Tr. a t 21 (June23 , 2009).

The celebrat ion attended by Pet i t ioner Bin Laden's housewas for men only. The women celebrated a t another venue. Tr. a t11 (June 24 , 2009).

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The Government suggests that the i r t ravel pat tern mimics thatof other al-Qaida-recruited j ihadists who were t raveling intoAfghanistan to part ic ipa te in bat t le against the uni ted States.Gov. Mot. a t 11 (describing arrangements as Uhighly unusual" andsuggestive of "a degree of secrecy and operat ional t radecraft") ;id . a t 14-15. To but t ress i t s argument, i t points to the

The Government in fers tha t thesearrangements indicate Al-Adahi's willingness to be recrui ted by a lQaida, as well as__ s tatus as a member of tha t organization.Gov. Mot. a t 11, 13.

The inference tha t __ was af f i l i a t ed with al-Qaida isstrongly supported by the circumstances of the wedding celebrat ion

11 The exact deta i ls of this exchange are not to ta l ly clear,but the overal l narrat ive remains the same. See Tr. a t 14-15 (June23 , 2009); JE 28 a t 4; JE 33 a t 3. - - -16



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that took place. I t i s undisputed that Usama Bin Laden, thefounder and leader of al-Qaida, hosted and attended wedding reception in Kandahar, Tr. at 11 (June 24, 2009); JE 51 at2-3. At the celebrat ion at Bin Laden's compound, as he wasescorted around the event by a fr iend of Al-Adahi wasintroduced brief ly to Bin Laden. Tr. a t 11 (June 24, 2009); Tr. at17, 20-21 (June 23, 2009); JE 51 a t 4.

A few days l a t e r , Al-Adahi met Bin Laden again and the twochatted br ief ly about rel igious matters in Yemen. Tr. a t 20-21(June 23, 2009); JE 49 a t 4. In his testimony, the Peti t ionerinsisted that such a meeting with Bin Laden was common for vis i torsto Kandahar. Tr. a t 24-25 (June 24, 2009); JE 49 a t 5. TheGovernment in terpre ts the access to Bin Laden, as well as therelat ionship to _and_bro ther , an alleged bodyguardfor Bin Laden, as par t of the evidence that "Al-Adahi was part ofthe inner ci rcle of the enemy organization al-Qaida." Resp't 'sOpp'n to Pet. (ISN 33) Mohammed Al-Adahi's Br. in Supp. of Entry ofJ . at 3 ("Gov. Opp'n") [Dkt. No. 408].

The Government concedes that Al-Adahi's family si tuat ion isnot, in and of i t s e l f a basis for his detention. What theGovernment argues i s that the existence of these family connectionsto Bin Laden strengthen other, more serious allegations, such asPet i t ioner ' s t raining and service as a bodyguard. These

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connections, according to the Government, demonstrate tha t Al-Adahiwas an al-Qaida insider whose brother-in-law was fac i l i ta t ing hisr ise up the ranks of the al-Qaida organization.

While it i s t rue that Pet i t ioner 's familial t i es to usama BinLaden may suggest that he had access to the leadership of al-Qaida,such associat ions cannot prove tha t he was a member of al-Qaida's"armed forces." Gherebi, 609 F. Supp. 2d a t 70-71. Accordingly,h is relat ionship t o l l l l i l l a nd attendance a t the wedding must notdis t rac t the Court from i t s appropriate focus--the nature of AlAdahi's own conduct, upon which this case must turn.

2. Guesthouse StayThe Government claims that AI-Adahi stayed a t al-Qaida and/or

Taliban guesthouses during his s tay in Afghanistan in 2001. I tpoints speci f ica l ly to his admission that he stayed a t the alNebras guesthouse fo r one night. Tr. a t 23 (June 23, 2009); JE 27;JE 52 . In addit ion, the Government points to AI-Adahi 's ownstatements in arguing tha t _ home was a guesthouse thatshel tered mujahideen and men involved in AI-Wafa. Gov. Mot. a t 1213; JE 28 at 3; JE 16 a t 1; JE 19 a t 2. AI-Wafa was a Special lyDesignated Global Terror i s t Entity tha t ostensibly operated as acharity. Exec. Order No. 13,224, 66 Fed. Reg. 49,079 (Sept. 23,2001); JE 6 a t 1.

Pet i t ioner counters tha t 1IIIIIIIIhome was not ident i f ied by-18



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the Government in i t s background declara t ion as being a guesthouseoperated by e i the r al-Qaida or the Tal iban. Cf. JE 5.Signif icant ly , there i s credib le evidence in the recorddemonstrating t ha t Pe t i t ioner stayed in b(1), b(6) home, whichappears to have been a separate st ructure from any guesthouse that

JE 33 a t 4.Other than t h i s admission about al-Nebras and the argument

about h is brother- in- law 's home, the Government points only to the

JE 39 a t 3. Theb(1), b(6)al legat ion was based on

The guesthouse evidence, l ike tha t of Al-Adahi ' s family

12 The f i r s t page of the in te r ro a t ion report . t ion indicates tha t" was shown allllllllllllJE 39 a t 1 . Al-Adahi i s On ~ e ofo r t " goes on to describe ~ s o n " " " " ' i n amarked \\ [ISN 33] . /I rd. a t 3. ;-. i s not mentioned h f h - _ tI ..5, 6

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connections, is offered as a t i le in the Government's mosaic. TheGovernment recognizes that in th is case the guesthouse evidence isnot in i t se l f suff ic ient to jus t i fy detention. The Court creditsAl-Adahi's repeated admissions of his one-night stay a t al-Nebras,

b(1), b(6)but cannot rely on vague and uncorroborated statementabout his meeting with AI-Adahi at an unnamed Kandahar guesthouseand his questionable _identification of AI-Adahi. 13

3. Al FarouqThe Government's centra l accusation -- that Al-Adahi attended

al-Qaida's Al Farouq t raining camp in or around August of 2001 -is not disputed by Pet i t ioner; in fact , he admitted to i t duringhis t ~ s t i m o n y . Tr. a t 23-24 (June 23, 2009) (admitting attendancea t Al Farouq for one week). The cr i t ica l issues that dividepart ies are the signif icance of Peti t ioner 's br ief attendance, andwhether or not AI-Adahi served as an instructor a t Al Farouq.

a. Attendance a t Al Farouq

b(1), b(6)13 credibi l i ty has been called into question by thisCourt and other courts in th is Dist r ic t . See Ali Ahmed v. Obama,OS-cv-1678, classi f ied memo op. a t 13-14 (D.D.C. May 4, 2009) [Dkt.No. 211]. On May 22, 2009, the Government submitted a memorandumand voluminous appendix of exhibits in an effor t to rehabil i ta teb(1), b(6) re l iab i l i ty as a witness. The Court reviewed theGovernment's submission, and agrees that_cannot be writtenoff as unreliable in a l l instances; however, his troublesome record

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Again, there i s no dispute that AI-Adahi t rained a t Al Farouqfor somewhere between seven and ten days. Id . ; JE 26 a t 4 (tendays); JE 52 a t 2 (about seven days); JE 27 a t 3 (seven days).During several interrogat ions, 14 Al-Adahi gave detai led descriptionsof the t raining regimen and layout of the camp, ident i f ied otherdetainees as t ra iners (including_, JE 26 a t 5; JE 52 a t 2,

14 Pe t i t ione r ' s counsel argues tha t a l l ex par te statementsmade by Peti t ioner must be excluded from the record. Pet . ' s Mot.a t 18 -20. They maintain tha t because Pet i t ioner was represented bycounsel as of February 7, 2005, and a l l interrogat ions af te r thatdate were not consented to by counsel, Const i tu t ional and ethicalrules require tha t evidence from those interrogat ions be excluded.Id. The Court concludes tha t the ex par te statements areadmissible fo r the following reasons. Firs t , under Supreme Courtand Court of Appeals precedent, only defendants in the criminalcontext can claim Sixth Amendment protect ions. Montejo v.Louisiana, 129 S.Ct. 2079, 2085 (2009) (s tat ing tha t SixthAmendment "guarantees a defendant the r ight to have counsel a t a l l' c r i t i c a l ' s tages of the criminal proceedings.O) (emphasis added);United States v. Sutton, 801 F.2d 1346, 1365 (D.C. Cir. 1986)(finding tha t r igh t to counsel attaches "only af te r the in i t ia t ionof ' adversary jud ic ia l criminal proceedings, I e .g . , formal charge,preliminary hearing, indictment, information, or arraignment.") .Peti t ioner is not involved in a criminal proceeding, and thus theSixth Amendment does not apply. Cf. Coleman v. Balkcom, 451 U.S.949, 954 (1981) (Marshall, J., dissenting from denial ofcer t iorar i ) .Second, Peti t ioner argues tha t the Government's conductamounts to a violat ion of eth ical rules . The interrogators in thiscase were not the at torneys representing the Government in habeasl i t iga t ion; rather; they were agents conducting an investigation.There i s no evidence tha t Government attorneys control led or guidedinterrogat ions of Al-Adahi. Consequently, there were no eth icalviolat ions . See United States v. Lemonakis, 485 F.2d 941, 956(D.C. Cir. 1973); Sutton, 801 F.2d at 1366.

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-nd admit ted t h a t he received t r a in in g while t h e re .His motives fo r going to Al Farouq cannot be determined with

the same ce r t a i n t y . In h is tes t imony, Al-Adahi claims t h a t hesought genera l weapons t ra in ing and "Is lamic educa t ion . " Tr. a t23-24 (June 23, 2009) . Af t e r having at tended h is s i s t e r ' s weddingrecept ion, and with t ime o ff from h is job i n i l l l l l l a n d having nop a r t i cu l a r plans about what to do next , he por t r ayed himsel f asbeing wil l ing to explore the region and t ry something new. Th eGovernment at tempted to l ink AI-Adahi ' s at tendance to h is al legedideologica l convic t ion in j i had aga ins t the United Sta t e s . However,Al-Adahi re s i s t ed being por t rayed as a suppor te r o f war aga ins tAmerica, and repeatedly denied "support [ing] these ac t s [ofj i h ad ] . " Tr. a t 19 (June 24, 2009); see id . a t 17-21.

Al-Adahi cla ims tha t he pursued t ra in ing a t Al Farouq tosa t i s fy "cur ios i ty" about j ihad, and because he found himself inAfghanis tan with i d l e t ime. JE 26 a t 5; c f . T r. a t 22-23 (June 23,2009) ( s t a t i n g t h a t he d id not know about Al Farouq u n t i l hea r r ived a t al-Nebras , and at tended camp to learn about Islam andweapons). It i s impor tan t to observe tha t Al-Adahi ' s understandingof the term "j ihad" does not seem to equate to war aga ins t theUnited Sta t e s . See Tr. a t 21 (June 23, 2009). For ins tance , in ab(1 )

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-(1 ) JE 26 a t S;see JE 28 a t 3 (wherePet i t ioner explains mujahideen to mean Uthose tha t fought againstthe Russians and then l a t e r fought with the Taliban againstMassoud) .

Pet i t ioner ins i s t s tha t he did not attend the camp to becomepar t of j ihad, and tha t the circumstances of h is departure supportth is posi t ion. After seven to ten days a t Al Farouq, the campleaders expelled AI-Adahi for fai l ing to comply with the rules .

b(1 )Tr. a t 24 (June 23, 2009); JE 52 a t 2.b(1 ) JE 26 a t 4 - 5 . InPet i t ioner ' s view, any af f i l i a t ion with or subs tant ia l support ofal-Qaida tha t could have been establ ished based on h is attendancea t Al Farouq was destroyed by th i s expulsion. Pet . ' s Mot. a t 44 .

The Government counters tha t the circumstances of hisdeparture, in addi t ion to his attendance, actually help jus t i fydetention. AI-Adahi was ordered to leave, and returned to Kandaharto s tay with__ again. He did so despi te the fac t tha t ,according to AI-Adahi himself, individuals expelled from Al Farouqfor rules viola t ions were general ly considered spies , and severelypunished. JE 26 a t 4; JE 52 at 2-3. Suspected spies, theGovernment infers from another deta inee 's experiences, were treatedharshly. See Al Ginco v. Obama, No. OS-cv-1310, 2009 WL 1748011,a t *3 (D.D.C. June 22, 2009) (describing Government's concession

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tha t suspected spy was imprisoned and tortured by Taliban). Inthis case, Al-Adahi was spared punishment because of hisrelat ionship with his bro the r - in - lawl l l l l l l l See JE 52 a t 2.

The Government argues that the clemency extended to Al-Adahidemonstrates tha t he continued to be a member of the organizat ion,and was being protected by his powerful brother- in-law _ SeeJE 52 a t 2 (reporting that prior to expell ing Pet i t ioner, campleadership notif ied 1IIIIIIII Al-Adahi, i t notes, was evenpermit ted to re turn to Kandahar and stay with _ who allegedlyhoused al-Qaida f ighte rs . This, the Government argues,demonstrates tha t the organizat ion had not turned i t s back onPet i t ioner a t a l l , much less in the brutal way tha t i t had expelledand tortured Ginco. However, even i f AI-Adahi 's expulsion was

of b(1), b(6)handled with uncommon leniency because s ta tus , thisfact demonstrates a t most tha t Al-Adahi was being protected by aconcerned family member; i t most certa inly is not affirmativeevidence that Al-Adahi embraced al-Qaida, accepted i t s philosophy,and endorsed i t s t e r ror i s t act iv i t ies .

For these reasons, under the analysis in Gherebi, Peti t ionercannot be deemed a member of the enemy's "armed forces. II SeeGherebi, 609 F. Supp. 2d a t 68-69. Al-Adahi was expelled from AlFarouq af te r seven to ten days a t the campi as discussed below, theGovernment has not established that he did anything to renew

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connect ions with al-Qaida and/or the Tal iban . He d id not , byvi r tue of l e s s than tw o weeks' at tendance a t a t ra in ing camp fromwhich he was expel led fo r breaking the ru les , occupy "some sor t of' s t ruc tu red ' ro le in the ' h i e ra rchy ' of the enemy force ." rd .

Fina l ly , P e t i t i o n e r ' s demonstrated unwil l ingness to complywith orders from ind iv iduals a t Al Farouq shows t ha t he d id not" , receive [] and execute[ ] orders ' from the enemy's combatappara tus ." rd . a t 69. AI-Adahi at tended the camp b r i e f l y , andwas expel led fo r h is re fusa l to take orders . Therefore,Pe t i t i one r ' s admission t h a t he t ra ined a t Al Farouq i s notsu f f i c i en t t o ca r ry the Government 's burden of showing t h a t he wasa p a r t , o r su b s t an t i a l suppor ter , of enemy fo rces . Cf. Al Ginco,2009 WL 1748011, a t *4 ( re l a t ionsh ip with al-Qaida may be""v i t ia ted" by in tervening events ) ; id , a t *5 ("To say the l eas t ,f ive days a t a guesthouse . . combined with eighteen days a t at ra in ing camp does not add up to a longs tanding bond ofbrotherhood.") .

b. Instructor at Al FarouqThe Government r e l i e s on a s ta tement from one o th e r deta inee ,

as well as severa l p ieces of ci rcumstant ia l evidence, to argue tha tAI-Adahi not only at tended Al Farouq, bu t a lso served as a t r a ine ra t the camp.

As i t s most d i r e c t piece of evidence suppor t ing t h i s claim,

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who he claimed was a "chief t r a ine r . " JE 102 a t 1.

-SECRETb(1), b(2), b(6)the Government poin ts to a statement made by

b(1), b(2), b(6)tha t he could i den t i fy ISN 33 by h is

kunya, because b(1 )b(1 ) 15 JE 29 a t 1 ; JE 38 a t 5 . As i gn i f i can t problem with th i s tes t imony i s t ha t there i s no otherevidence plac ing Al-Adahi in Afghanis tan p r i o r to Ju ly of 2001.

Addi t ional ly , when he was l a t e rIS N 33, _claimed the man's name was whose kunya

JE 101 a t 2; c f . JE 104 a t 2 ( repor t ing tha tdeta inee uninvolved i n t h i s case had a Saudi unclewho c lear ly was not same man as Al-Adahi) . The Government claimsth i s i s s imply a mis - id en t i f i ca t i o n . When coupled with the ear ly2000 date given by _ in an e a r l i e r s ta tement , the misi den t i f i c a t ion cas t s ser ious doubt on the accuracy of hiss ta tements .

Pe t i t i one r i n s i s t s t ha t h is only t rave l out of l l l l l l lPccur redin July of 2001, when he escor ted h is s i s t e r to Kandahar. In

lS In August of 2003, _provided a physica l descr ip t ion

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-upport of th i s posi t ion, he presents documents from IIIIIIIIJE 71, where he had worked for about 20 years

before depart ing for Afghanistan, JE 13 at 1. The documentspurport to show tha t Al-Adahi requested s ix months of non-paidleave on July 9, 2001. Id. a t Attachment B. 16 They also purportto show that he was on the company's payrol l in June of 2000 andApril of 2001, id . a t Attachments C, E; that he was el igible for anannual bonus for 2000, id . a t Attachment D; and that he appeared ona l i s t of employees whose s ta f f allowances were not subject toret i rement deduction in 2000, id . a t Attachment F. Each documentwas signed, and many were stamped. Id.

Pet i t ioner has represented that they are authentic documents,based chief ly on the declara t ion of- an employee a t theNational Organization for Defending Rights and Freedoms (UHOOD") ..Pet. ' s Ex. (UPE") 2 . _ reports that he del ivered counsel ' srequest for these documents to the via arelat ive of Al-Adahi' s, and then emailed counsel the documentscontained in Joint Exhibit 71 . PE 2 a t 2.

The Government objects to the re l iab i l i ty of the documents.I t points out severa l mis- t ransla tions of key dates, including one

16 In what appears to be the only instance in the recordwhere Al-Adahi veered from his story that he intended to spend anextended period of time in Afghanistan, he told interrogators in2006 tha t Uhe was only to stay one day [in Afghanistan] and returnto_' JE 25 a t 2.-27



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-here the company cu t t i e s with Al-Adahi because of h is inc lusionon a February 2001 list of Guantanamo Bay de ta inees . JE 71 a tAttachment A. Because the f ac i l i ty was not de ta in ing suspec ts inthe War on Ter ror a t t h a t point , the Government argues tha t theaccuracy of the documents cannot be re l i ed upon.

The evidence i s problematic fo r anumber of reasons. F i r s t the Pet i t ioner , has not asked fo r anddoes not s t a r t with a presumption of au then t i c i ty fo r the documentshe produces. Second, there are gaps in the chain of custody ofthese documents. Third , it i s unclear who entered the informationcontained in them, and whether such informat ion was enteredcontemporaneously. Fourth, they contain fac tua l and/or t rans la t ionerro rs - -such as the s ta tement about the February 2001 l i s t ofGuantanamo Bay deta inees- - tha t ra i se ser ious doubts about t he i raccuracy. In sh o r t , they do not prove tha t Pe t i t i o n e r was not inAfghanistan in ear ly 2000 w h e n l l l l l l s a y s he was.

Despite th i s conclusion, it i s still d i f f i c u l t t o c red i t__ asse r t i o n t ha t AI-Adahi was a t Al Farouq in January orFebruary 2000. AI-Adahi 's cons i s t en t s ta tements to in te r rogato rs ,as well as h is in-person tes t imony during t h i s proceeding, a l lplace him in Afghanistan no ea r l i e r than Ju ly of 2001. TheGovernment has presented no evidence othe r than _comment tocon t rad ic t t h i s t imel ine . Instead, it suggests t ha t AI-Adahi i s

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unre l iab le and manipulat ive a t t imes, and therefore h is statements

cannot be accepted as to the commencement of h is t ime inAfghanistan.

This argument i s d i f f i c u l t to cred i t in fu l l . The Governmentr e l i es heavi ly on Al-Adahi /s inculpatory admissions. I t cannothave it both ways, i . e" when he says something t h a t supports theGovernment's posi t ion he should be bel ieved , but when he sayssomething t h a t co n t rad i c t s the Government 's posi t ion he i s a l i a r .Fina l ly , it i s an asser t ion tha t i s no t backed up by fac t s : therei s no evidence in the record tha t Al-Adahi was involved in ac t iv i tyre la ted to al-Qaida and/or the Taliban before July of 2001.Without more, the Court cannot re ly on _statement. l ?

Further undermining the r e l i a b i l i t y of i l l l l l l l l comments , therecord contains evidence t h a t IIIIiI suffered from "ser iouspsychologica l i ssues . " JE 29 a t 1; Pet . / s Mot. a t 17-18. TheGovernment i t s e l f has expressed skepticism about the value of_ s ta tements , and noted h is a t tempts to manipulate otherdetainees in to undermining in te l l igence ef fo r t s . PE 4. For a l lthese reasons, the Court concludes tha t h i s i den t i f i ca t ion of Al-

I? I t bears mentioning t ha t_ r e t r ac t ed h is a l lega t ionsaga ins t Al-Adahi in two separa te documents. JE 81; JE 82. Therecan ta t ions a re somewhat gener ic , and incons is ten t with eachothe r . Their main impact is not to prove one vers ion o f account r i g h t o r wrong, but to suggest tha t h is s ta tements aboutAI-Adahi are sca t t e red , d i f f i c u l t to i n t e rp re t , and not probat iveof anything.

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Adahi as a t r a ine r i s not re l iab le independent evidence tha tPeti t ioner occupied tha t role .

The Government maintains tha t _ testimony i s accuratewhen i t i s considered in l igh t of AI-Adahi's in t imate knowledge ofAl Farouq's operations and recru i ts . In several inte l l igence

b(1 )reports ,b(1 )JE 52 a t 3; JE 26 a t 5, JE

b(1 )52 at 2, id . a t 1-2 ,_b( 1) id . a t 3.This knowledge, the Government argues, could only be possessed bya person who was entrusted with a supervisory role in the camp.

The Government i s not correct. AI-Adahi 's deta i led knowledgeof camp routine could well have been developed during his seven-toten-day stay there . Similarly, the information tha t he providedabout other recru i t s could have come from conversations with themabout the i r pr io r t ravels and future plans. For instance, the facttha t he was famil iar with the routines followed by the Africans mayprove only tha t AI-Adahi was observant; moreover, a l l of AI-Adahi' sdescriptions were of the i r t ra ining habi ts only, which he couldhave observed from afar . Id. Though the Africans did not speakArabic, Pet i t ioner had access to them a t "the mosque, chow hal larea and sometimes a t f i tness t ra ining," where non-verbalcommunication could have taken place. Id . . The Government' s

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cor robora t ive evidence on th i s poin t i s high ly specula t ive , andconfi rm b(1), b(6)does not ubious a l lega t ion .

For a l l these reasons , the Court f inds t h a t the Government hasnot es tab l i shed t h a t Al-Adahi was a t r a i n e r a t Al Farouq.

4. Bodyguard fo r Usama Bin LadenTo es t ab l i sh i t s a l l eg a t io n th a t Al-Adahi was a bodyguard fo r

Bin Laden, the Government makes an argument s imi l a r t o i t scontent ion t h a t Pe t i t i o n e r was an ins t ruc to r a t Al Farouq. I to f fe r s what it ca l l s "di rec t" evidence from another de ta inee tha tAl-Adahi d id secur i ty work fo r Bin Laden, and at tempts tosu b s t an t i a t e t h a t evidence by poin t ing to Al-Adahi ' s f ami l i a r i t ywith othe r Bin Laden bodyguards. The Government does no t meet i t sburden on th i s p o in t .

The p r in c ip a l evidence to support t h i s a l l ega t ion comes in theb(1), b(2), b(6)form of

JE 35 a t 1-2.

b(1), b(6)

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rd . There i s absolutely noother mention in the record of Pe t i t i one r ' s involvement with aTaliban prison, except fo r h is denia l of th is accusat ion during h istestimony. Tr. a t 31-32 (June 23, 2009).

Although the in te l l igence repor ts do not mention whetherb(1), b(2), b(6) accountsare lengthy and deta i l ed , which are two important ind ic ia ofr e l i ab i l i t y . Nonetheless, the witness himself suf fe rs from seriouscred ib i l i ty problems t ha t undermine the r e l i ab i l i t y of h isstatements. JE 57 a t 1-4 (out l in ing psychologica l problems andself-harm incidents) i JE 75 (independent assessment of medical

b(1), b(6)records) ; JE 76 a t 3, 5 repor t of tor ture by Taliban,and emotional problems brought on by fa ther ) ; JE. 91 (containing

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'aLI .. &!August 2005 admission byl l l l l l l l l tha t he l ied in past , and promisethat he will not l i e again). What is equally worrisome is thatbefore ~ m a d e the above statements, interrogators hadexpressed concern that he was being manipulated by anotherdetainee. JE 87 a t 2; before being placed next to that detainee,_ had never made any of the claims tha t he made tointerrogators, including the accusation against AI-Adahi. Id .

Further, the Government's corroborative evidence does l i t t l eto compensate for the deficiencies specified above. There i s

Similarly, there i s evidence that Al-Adahi had a Casio watch whencaptured, JE 45 a t 3, which the Government argues i s a te l l ingpiece of al-Qaida paraphernalia. Gov Mot. a t 16-17.

The Government asks the Court to infer that because 1IIIIIIIIb(1 ) a t some point during his

credible.That confirmed detai l , in turn, would strengthen the re l iabi l i ty of

b(1), b(6) The inference simply does notmake sense--or in the words of a noted legal philosopher, "that dog

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5won' t hunt . 1/18

A seemingly s t ronger argument i s made by reference to AIAdahi ' s descr ip t ion of o t he r Bin Laden bodyguards. In a 2008in te r rogat ion , Pe t i t i o n e r provided biographica l sketches of anumber of men who he claimed were Bin Laden bodyguards. JE 51. Ina l l , he provided s imi l a r information fo r 12 bodyguards. Id . a t 48. In the Government 's view, t h i s fami l i a r i ty with Bin Laden'spro tec to rs sugges ts t h a t AI-Adahi knew these men wel l , and workedc lose ly with them. It argues t h a t such a conclus ion , i f t rue ,would cor roborate b(1), b(6) account.

The Government 's pos i t ion has some appeal . AI-Adahi doesprovide f ac tu a l d e t a i l s about the othe r bodyguards t h a t , on thesur face , seem to ind ica te more than a pass ing f ami l i a r i t y with themen. For i ns t ance , one man, had " f a t th ighsbu t was quick." Id . a t 6. Another knew how to read, wr i te , andspeak Engl ish . Id . a t 5. These are the s o r t of personal deta i l st h a t one does not usua l ly l ea rn about during a casual meeting;ra ther , they sugges t a c lo se r re la t ionsh ip .

Th e Court ul t imate ly cannot c red i t t h i s evidence as su f f i c i en tcor robora t iveUpon ca re fu l

informat ionan a ly s i s , the

to helpbiogra

carry thephical ske

Government 'stches of the

burden.al leged

18 Needless to say,hardly unique i tems, even

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. . . . . . . . . . . . - --- .

bodyguards are not as signif icant as the Government portrays themto be. Firs t , it i s not clear from the inte l l igence report whichparts of the sketches were provided by Peti t ioner and which wereconclusions inserted by in tel l igence off ic ia l s . Second, in manycases, AI-Adahi ( i f he was the source of a l l of the information)knew no more than a man's hometown, general famil ial relat ionships,and physical at t r ibutes . Given the length of his stay W ithi l ll l l lland the fact that he met some of the men on more than one occasion,he could have assembled th is information, along with the moreidiosyncratic descriptions above, based on informal interactionswith them, especially since so many of them were from Taiz. I tneed not be the case that the only reason AI-Adahi could have comeacross th is evidence was because he shared bodyguard duties withthem.

b(1), b(6)Because account of AI-Adahi's act iv i t ies i sundermined severely by the witness's psychological problems andcheckered history of re l iabi l i ty , the account cannot stand on i t sown to carry the Government's burden. The Government's use of

b(1 )speculative evidence about doesl i t t l e to shore up b(1), b(6) statements. Finally, Peti t ioner 'sfamiliari ty with other bodyguards does not, without more, compelthe conclusion that he knew the men as a resul t of his service asa Bin Laden bodyguard.

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-. Post-Training Activi t iesFollowing h i s b r i e f per iod of t r a in in g , the Government

contends t ha t Pe t i t i one r engaged in ac t i v i t i e s t ha t demonstrate acont inued commitment to al -Qaida. The Government marshals piecesof c i rcumstan t i a l evidence to suppor t i t s a l l eg a t io n s t ha t a f t e rt ra in ing , AI-Adahi fought fo r al-Qaida, s tayed in the company ofal -Qaida f i gh t e r s , and then was arres ted on a bus while f lee ingfrom Afghanistan to Pakis tan with al-Qaida so l d i e r s .

F i r s t , the Government a l l eges t ha t Al-Adahi p ar t i c ip a t ed inb a t t l e as an al-Qaida f i gh t e r . Th e Government has no s ta tements orconfess ions to suppor t i t s a l lega t ion tha t Al-Adahi fought ; ra ther ,it bui lds i t s case by point ing to i ncons i s t enc ies in AI-Adahi 'svers ions of th e events t h a t led up t o h i s cap ture , as wel l asi n f e ren t i a l evidence t ha t suggests t e r ro r i s t conduct . In theabsence of any aff i rmat ive evidence o f t h i s a l l eg a t io n , theGovernment argues t ha t AI-Adahi ' s t r av e l pat t e rn dur ing Septemberof 2001 c lose ly t racked the loca t ion of seve ra l b a t t l e s involvingal -Qaida forces . See Gov. Opp'n a t 3-4. Cf. JE 4 (de ta i l ingloca t ion of b a t t l e s ) ; PE 5.

The Government argues t ha t AI-Adahi ' s "cover s t o ry" - - t ha t hewas f l ee ing Afghanis tan as qu ick ly as poss ib le a f t e r bombing of thereg ion- - r ings hol low. It poin t s to h i s genera l lack of c red ib i l i t yin othe r a reas , inc luding h is explanat ion of an in ju ry th a t he

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& &suffered while f leeing, to cas t doubt on his version of events.Also, the Government notes Bin Laden's edic t tha t men must s tay inAfghanistan and wage j ihad as evidence of Pet i t ioner ' s reason forstaying in the country and f ight ing. JE 55 a t 4.

The Government pointed to several accounts Pet i t ioner offeredabout how he suffered an injury to his arm and leg before beingcaptured. However, each account included the same cent ra l deta i lthat he susta ined the injury a f te r fal l ing from a motorcycle inKandahar. See JE 13 a t 2; JE 33 a t 6i JE 15 a t 2; JE 14 a t 1. Oneversion of the s tory blames the accident on driving too fas t andhi t t ing a car t , JE 15 a t 2i a second version involves_b(1 ) JE 33 a t 6; in a thirdt e l l ing , Al-Adahi f e l l off of the vehicle while attempting to f leeKandahar, JE 13 a t 2. Yet another version has Pet i t ioner sl ippingoff the motorcycle. JE 14 a t 1. According to the Government'sreasoning, these s l igh t variat ions, together with his "diplomatic"expulsion from Al Farouq and ar res t on a bus with Taliban f ighters ,indicates tha t h is motorcycle "cover story" conceals the t ru th tha the was injured in ba t t l e . S e Gov. Mot. a t 20.

I t i s correct tha t some minor detai ls in the motorcycle s toryare not described ident ica l ly in each interrogat ion, a n th i s maycas t doubt on precise ly how Al-Adahi was injured. Nonetheless, theGovernment provides only speculat ion to resolve tha t doubt,

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bus - -publ ic o r p r i v a t e - - P e t i t i o n e r boarded in f l ee ing Afghanistan;moreover , t he re i s no evidence t ha t he sought to jo in or wasa l r eady p a r t of a band o f f igh te r s f l ee ing the r eg ion . See JE 14a t 2 (descr ib ing bus t r i p and a r r e s t on bus) . Fur ther , when he was

b(1 )a r r e s t e d on th e bus by Pakis tan i au th o r i t i e s , 21b(1 ) and was unarmed.JE 98 a t 1; JE 33 a t 7. He appeared to be at tempt ing to escape thechaos of t h a t t ime by any means t ha t he COUld.

The Government 's a l l ega t ions regard ing AI-Adahi ' s pos t -t r a i n i ng a c t i v i t i e s a re s ig n i f i can t because they provide contex t toP e t i t i o n e r ' s admiss ion about t r a in ing . In shor t , h is conduct a f t e rt r a i n i ng a t Al Farouq does no t demonstrate t h a t AI-Adahi took anya f f i r m a t ive s t e ps to a l i gn himse lf with al -Qaida. The record shows

b(1), b(6)t h a t he r e tu rned to house fo r a few weeks, a t tempted tof l ee Kandahar, i n ju red himse lf and received t rea tmen t , and thenagain made e f fo r t s to escape Afghanistan. The Government offered

21 In ano ther recount ing of hi s s to ry , AI-Adahi boarded thebus from Khost , and headed toward Miram Shah with Arabs andPakis tan i s ( the same groups he sa id were on the bus in JE 98) . JE14 a t 3 . However, the a r r e s t took p lace in a " la rge , modern c i ty ,with a l a rge market area ;" Pe t i t i o n e r had walked the re a f t e rl eav ing the bus se ve r a l hours e a r l i e r . Id . He s t a t ed t h a t he hadh is a ss o r t with him.

T h ~ s 1ncons is encyunder ly ing f ac t o f h is a r r e s ti s not in di spu te . Cf. JE 14

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Government has for detaining Al-Adahi. However, under the AUMF andthe standards described in Gherebi, Pet i t ioner ' s br ief attendancea t Al Farouq and eventual expulsion simply do not bring him withinthe ambit of the Executive 's power to detain.

After his expulsion, Al-Adahi returned to the home of hiss i s te r and brother- in-law for several weeks and then traveled toother places in Afghanistan because he had no other obligations.Like many thousands of people, he sought to f lee Afghanistan wheni t was bombed short ly af te r September 11, 2001.

There i s no re l iable evidence in the record that Peti t ionerwas a t ra iner a t Al Farouq, that he ever fought for al-Qaida and/orthe Taliban, or tha t he affirmatively provided any actual supportto al-Qaida and/or the Taliban. There i s no re l iable evidence inthe record tha t Pet i t ioner was a member of al-Qaida and/or theTaliban. While it i s tempting to be swayed by the fac t tha tPet i t ioner readi ly acknowledged having met Bin Laden on twooccasions an d admitted tha t perhaps his re la t ives were bodyguardsan d enthusiast ic followers of Bin Laden, such evidence-sensational and compelling as it may appear--does not constituteactual , re l iable evidence that would jus t i fy the Government'sdetent ion of th is man. For these reasons, and the reasons se tfor th above, the Court grants the pet i t ion for a writ of habeascorpus.

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ItIQMindful of the l imitat ions on the scope of the remedy in this

si tuat ion, see Kiyemba v. Obama, 555 F.3d 1022, 1024 (D.C. Cir.2009), the Court fur ther orders the Government to take a l lnecessary an d appropria te diplomatic steps to fac i l i ta tePet i t ioner 'S release forthwith. Further, the Government isdirected to comply with any report ing requirements mandated by theSupplemental Appropriations Act, Pub. L. No. 111-32, 123 s ta t . 1859(2009), i f applicable, to faci l i ta te Pet i t ioner ' s release, and toreport back to the Court no l a t e r than September 18, 2009, as tothe status of tha t release and what steps have been taken to securethat release.

ls iAugust _, 2009 Gladys KesslerUnited Sta tes Dist r ic t Judge

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al-Adahi Detainee Case Opinon by Judge Gladys Kessler Granting Habeas Relief