Hentif v. Bush

UNCLASSIFIEDIIFOR PUBLIC RELEASE

SEeMlT

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Filed with Classified
Inf~curity Officer
FADHEL HUSSEIN SALEH
HENTIF, et al.,
C1S0 ~
Date t"l{tjl
Petitioners,
v. Civil Action No. 06..1766 (HHK)

BARACK H. OBAMA, et aI,
Respondents.

MEMORANDUM OPINION

Fadhel Hussein Saleh Hentif(ISN 259), a Yemeni citizen, was seized by Pakistani

authorities in late 2001 and has been held by the United States at the naval base detention facility

in Guantanamo Bay, Cuba since early 2002. Hentifhas filed a petition for a writ ofhabeas

corpus contending that he is unlawfully detained. Respondents in this case, President Barack H.

Obama and other high-level officials in the United States Government, argue that Hentifis

lawfully held and therefore should remain in U.S. custody. The parties filed cross-motions for

judgment on the record and appeared before the Court for a four-day hearing on the merits of

Hentifs petition. Upon consideration of the motions and the evidence presented at the merits

hearing, the Court concludes that respondents have demonstrated that Hentifs detention is

Jawful. Therefore, Hentifs petition shall be denied.

I. LEGAL STANDARDS

A. Scope of the Government's Detention Authority

The Authorization for Use of Military Force ("AUMF"), Pub. 1. No. 107-40,115 Stat.

224 (2001), authorizes the President to "use all necessary and appropriate force against those

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nations, organizations. or persons he determines planned, authorized, committed, or aided the

terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons,

in order to prevent any future acts of international terrorism against the United States by such

nations, organizations, or persons." Pub. L. 107-40. § 2(a), 115 Stat. at 224. The U.S. Supreme

Court has held that the U.S. District Court for the District of Columbia has jurisdiction over

petitions for writs of habeas corpus brought by detainees held at Guantanamo Bay pursuant to the

AUMF. See Boumediene v. Bush, 553 U.S. 723, 792 (2008); Rasul v. Bush, 542 U.S. 466,

483-84 (2004). The Supreme Court has provided "scant guidance," however, as to whom

respondents may lawfully detain under the statute. AI-Bihani v. Obama, 590 F.3d 866, 870 (D.C.

Cir. 2010) (noting that the Supreme Court has "consciously le[ft] the contours ofthe substantive

and procedural law ofdetention open for lower courts to shape in a common law fashion" (citing

Hamdi v. Rumsfold, 542 U.S. 507,522 n.1 (2004) (plurality opinion); Boumediene, 553 U.S. at

796».

Although the D.C. Circuit "has yet to delineate the precise contours" ofthe proper legal

standard by which to evaluate the lawfulness ofthe detention of the individuals held at

Guantanamo Bay, Barhoumi v. Obama, 609 F.3d 416, 424 (D.C. Cir. 2010), it has held that any

individual who is "part of" Al Qaeda or the Taliban may be detained pursuant to the AUMF. Al-

Adahi v. Obama, 613 F.3d 1102, 1103 (D.C. Cir. 2010); see also Bensayah v. Obama, 610 F.3d

718, 725 (D.C. Cir. 2010); Awad v. Obama, 608 F.3d 1, 11 (D.C. Cir. 2010). The detennination

ofwhetber an individual is "part of' Al Qaeda "must be made on a case-by-case basis by using a

functional rather than formal approach and by focusing upon the actions of the individual in

relation to the organization." Bensayah, 610 F.3d at 725. Accordingly, in this case, the Court

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wilI assess whether respondents have shown that Hentif is functionally part of Al Qaeda or the

Taliban.

B. Burden of Proof

As stated in the Amended Case Management Order that governs this case, "[tJhe

government bears the burden of proving by a preponderance of the evidence that the petitioner's

detention is lawfuL" In re Guantanamo Bay Litig., Misc. No. 08-442, CMO § n.A (Nov. 6,

2008)~ see also Awad. 608 F.3d at 10 (upholding the preponderance ofthe evidence standard as

constitutional in the evaluation of habeas petitions from Guantanamo Bay detainees); AI-Bihani,

590 F.3d at 878 (same). I Accordingly, Hentif need not prove that he is unlawfully detained;

rather, respondents must produce "evidence which as a whole shows that the fact sought to be

proved," that Hentif was part of Al Qaeda or the Taliban, "is more probable than not." United

States v. Mathis, 216 F.3d J8,28 (D.C. Cir. 2000) (quoting United States v. Montague, 40 F.3d

1251, 1255 & n.2 (D.C. Cir. 1994»; see also Almerfedi v. Ohama, - F.3d - , 2011 WL

2277607, at *3 (D.C. Cir. June 10, 201l) ("The preponderance standard ... asks the court simply

to 'make a comparative judgment about the evidence' to detennine whether a proposition is more

likely true than not true based on the evidence in the record." (quoting Lindsay v. NTSB, 47 F.3d

1209, 1213 (D.C. Cir. 2005». If respondents meet this burden, the Court must deny Hentirs

petition. In considering whether respondents have met this burden, the Court will evaluate the

Although the D.C. Circuit has held that the preponderance of the evidence
standard "is constitutionally sufficient," it has left open the question of "whether a lower standard
might be adequate to satisfy the Constitution'S requirements for wartime detention." Almerfodi,
2011 WL 2277607, at *3 n.4.

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totality ofthe evidence. rather than viewing each piece ofevidence in isolation. See AI-Adahi,

613 F.3d at 1105-06; see also Salahi v. Obama, 625 F.3d 745, 753 (D.C. Cir. 2010).

C. Evidentiary Issues

The Court notes at the outset two issues regarding the evidence in this case.

First. as explained in an order entered in this case on July 7,2010 [#265J, the Court has

pennitted the admission ofhearsay evidence but considers at this merits stage the accuracy,

reliability, and credibility of all of the evidence presented to support the parties' arguments. The

D.C. Circuit has mandated this approach. See Al Bthan;, 590 F.3d at 879 ("[T]he question a

habeas court must ask when presented with hearsay is not whether it is admissible-it is always

admissible-but what probative weight to ascribe to whatever indicia ofreliability it exhibits.");

see also Odah v. United States, 611 F.3d 8, J4 (D.C. Cir. 2010) (holding that "[t]he law is

against" a detainee who argued that some types ofhearsay are not admissible in these

Guantanamo Bay cases); Awad, 608 F.3d at 7 (reaffinning the rule articulated in AI Bihani and

noting that a district court errs not by relying on hearsay, but by relying on "unreliable hearsay").

The Court' s assessment ofthe weight properly accorded to particular pieces ofevidence appears

throughout this opinion.

Second, the nature of the evidence before the Court is atypical ofevidence usua1ly

presented to federal courts. Respondents have offered a variety of types ofdocuments produced

and used by government intelligence agencies that are not the direct statements ofthe individuals

whose personal knowledge they reflect. The evidence in this case includes Form 40s ("FM40s"),

Summary Interrogation Reports ("SIRs"), Intelligence Information Reports ("IIRs"), Memoranda

for Records ("MFRs"), Field Documents

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FM40s are records of investigation activities, here witness interviews, conducted by the Criminal

Investigation Task Force, a federal law enforcement agency. SIRs are summaries of

interrogations conducted under the auspices ofthe Department ofDefense. IIRs are Department

ofDefense documents for recording human intelligence, which may contain information derived

from an SIR. 2 MFRs are similar to SIRs. FD-302s are forms completed by FBI agents

summarizing interviews. party

called any live witnesses.

ll. ANALYSIS

Hentif, or ISN 259;~ was born in 1981 in the Al Jawf region of Yemen. At some point

after turning eighteen, he left home for the city of Sana' a, Yemen. At some later date, he left

Sana'a and traveled to Afghanistan. Late in 2001, he crossed the Afghan border into Pakistan

and was seized by Pakistani authorities, who ultimately transferred him to U.s. custody. The

parties dispute the timing and purpose of Hentif's travels and the nature ofms activities while in

Afghanistan. They have divided their factual disagreements into three broad issues, which the

Court will address in turn.

4 ISN stands for Internment Serial Number. Each detainee at Guantanamo Bay has
been assigned such a number.

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A. Issue One: Whether Hentifwas Reeruited to Join AI Qaeda or Taliban Forces in
Afghanistan.

1. Respondents' arguments

Respondents contend that Hentit's purpose in leaving Yemen for Afghanistan was to

fight with Al Qaeda or Taliban forces.

about HentWs decision to go to

Afghanistan. First. they note that Hentif reported attending m05'Que in

Sana'a. See JE 94 (Decl. ofHentif(June 8, 2010)) ~ 10; JE 10 (FD-302 summarizing April 13,

2002 interrogation ofHentif) at 3; JE 13 (MFR nteJr:roll~atl()fl of

Hentif) at 2. He stated that, at this mosque, he took a course from a man named

JE 10 at 3. This information is incriminating, according to respondents, because another

Guantanamo Bay deblinee, said in an interrogation

him "that the struggle in [Afghanistan] was religiously supported and that one should fight if

possible." JE 28 (DR dated 2004 reporting information derived 1.

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Second, Hentif reported1y said during his interrogations at Guantanamo Bay that he met a

man llQ.lJL~""'" this mosque, and that a role in HentiPs decision to

go to Afghanistan. See JE 10 at 3; JE 13 at 2-3~ JE 14 (MFR

interrogation ofHentif) at 1 the first person to give [HentifJ the idea to go to

Afghanistan."). Respondents further assert that [Hentif] on the route of

travel and infonned him that he would need approximately 3000 Saudi Riyals (800 USD)," and

that this infonnation enabled Hentif to quickly depart Yemen for Afghanistan. JE 29 (IIR _

1,3 (reporting that Hentifmoved to Sana' a in July 2001); see also JE 13 at 3

(reporting that Hentifleft for Afghanistan in August 2001). Respondents also point to a

statement in an intelligence report derived from an interrogation of_that

perfonn jihad in Afghanistan." JE 28 at 1. Because,

respondents aver, likely the same person, Hentif too was likely

encouraged to travel for purposes ofjihad.

Next, respondents argue that the circumstances ofHentirs travel, in particular those

surrounding his travel companion, support the proposition that Hentif embarked on the trip to

become a fighter.' Hentif repeatedly told interrogators that he traveled to Afghanistan with

1 Respondents also argue that Hentif traveled from Yemen to Afghanistan via a
common AI Qaeda / Taliban route-from Yemen to Karachi to a guesthouse in Quetta, and then
to guesthouses in Kandahar and Kabul. As support, respondents point to other cases that
involved similar routes. See, e.g., JE 7 (FD~302 summarizing interview o f _ a t 4-5
(reporting~tatements that he traveled from Sana'a, Yemen to Karachi, Pakistan to
Taliban ~n Quetta, Kandahar, and Kabul and then to the front AI-Alwi v.

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See, e.g., JE 10 at 3; JE 13 at 3; JE 14 at 2.

the two flew together from Yemen

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took Hentif to a guesthouse in Quetta, Pakistan. See JE

10 at 4. Based on Hentifs description of this house as "more like a compound," respondents ask

the Court to infer that it was a place oflodging for fighters. JE 124

lnte:rrOlgatton of Henti£) at 2; see also id at 3 (noting that the house was

"surrounded by 2 meter high walls of concrete").

2. Hentif's arguments

Hentif disputes respondents' interpretation of the evidence. He argues that the Court

should not rely

single suggestion in the record

Hentif asserts, is not sufficiently reliable to support a ...........0

contends that this error suggests that other statements in the report are similarly

inaccurate. He further asserts

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Next, Hentiftums to respondents' allegations about Abu Vasser. According to Henti£,

unless is no basis in the record to support the

proposition ·nl'.n.ll..l'IO'''orl Hentif to participate in j iliad in Afghanistan. And

Hentif asserts that respondents have not shown

person. The two have different names, according to H ...t'IT1~·

mwcatc~s that

(Dect. Defense Intelligence Agency, Background Declaration

Names, Aliases, Kunyas and Variants (Sept. 19,2008» at 2.9 In addition, "from

either Shabwa or Baihan Yemen," JE 13 at 4, urn,P1'P,I'II! from Ibb, Yemen, JE 20 (SIR

summarizing interrogation 1. Finally, Hentifnotes that

9 "Because Arabic and English have several letters representing sounds that do not
correspond directly. several letters or letter combinations are used interchangeably to represent
the same sound.... It is common to see intelligence reports referencing an individual with
several different name spellings," JE 1 at 3. Accordingly, neither the parties nor the Court attach
significance to spelling variations such as "Yasser" and "Yasir" or "Qahar" and "Kahar."

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the nstltu1te in Ta'iz, Yemen, JE 28 at 1, whereas Hentifmet a mosque

in Sana' a, JE 13 at 2_3. 10 Thus, Hentif argues. the record does not support the conclusion that

the same person and. therefore. there is no basis on which to

rr"....1"nj·t..rt Hentiffor jihad.

Further. Hentif notes that he provided additional, innocent infonnation about his

interactions the interrogation summaries that respondents cite. Specifically,

ugg:est~~ that Hentif travel to Afghanistan to do

humanitarian work and that such work, not jihad, was the purpose ofhis travel. See IE 10 at 3;

JE 11 (FD-302 summarizing May 3,2003 interrogation ofHentif) at 1; IE 13 at 3; IE 14 at 111
see also IE 13

at 4.

Hentif also asserts that several details about his route to Afghanistan support his innocent

explanation of his travel. First, Hentif repeatedly told interrogators that he or his family paid for

his plane ticket, indicating that no recruiter funded his trip. II This contention is corroborated by

HI Respondents respond to each of these distinctions, arguing the name difference is
minor~ements regarding where each man is from are locations at
which~d Hentif met are sufficiently close that it is Jikely
traveled between them.

11 See JE 10 at 3 (reporting that Hentif said he used money he inherited after his
father's death to buy a car, and he sold the car to use the proceeds, other than a portion he gave to
his brother, ''to fund his travels"); JE 13 at 2-3 (same. but reporting that Hentif gave the money
from selling the car to his brother, who then returned some Ofthe!lt0ne fund Hentirs trip);
to
JE 14 at 2 ("[Hentif] received 3000 Saudi Riyal from his brother 0 fund his trip to
Afghanistan."). Other A1 Qaeda recruits have said that their trave was ded~a
operatives. See, e.g., JE 7 at 4 (reporting that_told his interrogator tha~
"provided the money for him to travel to Afghanistan").

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a declaration from Hentif' whom Hentif"grew up like a brother." JE 104

2. _ubmitted a declaration

confirming that Henrif sought permission in the summer of 200 1 "to travel to Afghanistan to

perform charitable work for the poor in that country ... to honor the memory of his father," Id

stated that he "gave [Hentif) some money for hisjoumey." Id. ~ 6. 12

Additionally, Hentif notes that he also told interrogators that he obtained a visa and made flight

arrangements on his own. 13

Second. Hentif argues that~ only a coincidental travel companion, pointing

to evidence that he the airport in Y

See JE 10 at 3; JE 14 at In one interrogation, Hentif reportedly explained that he

did not traveling to Afghanistan, but he seemed likely to be

12 According to respondents, this declaration is not persuasive evidence of Hentifs
activities because (1) it goes only to show what Hentiftold his family, not what actually
occurred; and (2) such a close relative is a biased witness.

13 Hentif points out that his account ofmaking his own travel arrangements differs
significantly from the stories of other Guantanamo Bay detainees whose travel was arranged by
AI Qaeda recruiters. Compare JE 10 at 3 (reporting that Hentif said he "went to the Pakistani
embassy in Sanaa and obtained a visa to travel to Afghanistan" and "'looked around for airline
tickets from Sanaa but saw it was cheaper to fly out of Hadramout, Yemen"), and JE 13 at 3
("[Hentif) was informed by a travel agent ... in Sanaa that he would need a visa to travel to

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Pakistan. He was also informed that it would be cheaper to fly from the airport in Mikala,
Hydramount, Yemen than from Sanaa. [Hentif] went to the Pakistani embassy and informed
them that he wished to travel to [Afghanistan] to perform humanitarian duties; they
tourist visa."), with JE 20 at 1 ("Before leaving Yemen_gave his passport to
so~ould make arrangements for the visa. Yasir returned with the pas~ visa. ,an
J~D-302 swnmarizing interrogation o~at 2 (reporting that _ _ e~t
he gave his passport to an Al Qaeda recruiter~ another individual return it t o _
with a visa and a plane ticket from Sana'a to Karachi, Pakistan). Respondents argue in response
that Hentifs decision to get a visa to enter Pakistan but not for Afghanistan demonstrates that he
had assistance from a recruiter who assured him he could enter Afghanistan without difficulty.

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a good travel partner because he "spoke some English." IE 29 at 4 (reporting that Hentif

explained he did not inquire about the purpose because "it was not poHte to

ask"). Hentif contends that further

evidence that~ontains errors and is unreliable.

Hentif also argues that respondents have not established

AI Qaeda. There is evidence in the record contradicting the proposition that of

the guesthouse where he and Hentifstayed in Quetta: one ofHentifs interrogation summaries

reports that Hentif said "neither [Hentit] knowledge of the house before they

were taken there; the taxi driver drove them to the house/clinic simply because they were Arabs."

JE 29 at 4. It is not even clear, Hendf argues, that there is anything incriminating about the house

in Quetta; while respondents draw inferences from the structure of the building, a wall around a

house does not demonstrate that fighters stay there. 14

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3. Court's findings

account when considering whether Hentif was part of Al Qaeda or the Taliban.

The Court notes, however, that there is also evidence supporting the conclusion that

Hentif did not travel to Afghanistan as an Al Qaeda recruit. For instance. his preparation for his

trip-inquiring with a travel agent, obtaining a visa on his own, and purchasing a cheaper flight

from Hadramout-is inconsistent with the way Guantanamo Bay detainees who admit to being

recruited for jihad have described the circumstances oftheir travel to Afghanistan.

Next, the Court turns to the parties' dispute about the identity The Court

sees no basis to find that the same person. Hentif notes that

his place oforigin, and the location where he met Hentif all conflict

A mismatch as to one of these facts might not disprove the

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alJegation that the two men were the same person. but the Court will not make such a finding

where all three are different.

FinaJly, the Court considers the evidence regarding Hentifs travel COIlnpalll)Orfi,

The evidence regarding is mixed. Interrogation summaries say that Hentif

the airport in Hadramout. They also say both

Hentif to the guesthouse in Quetta and not previously familiar with

the house. The Court has no satisfactory means of resolving these contradictions. There is,

however, one piece ofparticularly damning evidence regarding

consider this evidence in context and with the rest ofthe evidence in the record.

B. Issue Two: !IIo;t'.. 'v...... at an AI Qaeda Guesthouse in Kandahar
Operated by

1. Respondents' arguments

Respondents see strong evidence of Hentif s affiliation with Al Qaeda in the fact that,

after entering Afghanistan, he went to a guesthouse in Kandahar run Hentif

admitted that he stayed at this guesthouse for approximately five days. See JE 10 at 4; JE II at 1;

JE 14 at 3 ACCOI·O.1rlg to respondents,

the statements ofother detainees support their assertion a member ofAI

Qaeda and that he ran an Al Qaeda guesthouse in Kandahar. See JE 8 (FD-302 summarizing

interrogation be an AI-

house."); JE 47 (IIR dated January 14,2002,

derived from information provided by a Libyan AI Qaeda member) at 1 (referring to an AI Qaeda

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guesthouse in Kandahar "which was being operated by a Yemen national named

see also A I-A lwi v. Obama, Civ. No. 05-2223, classified slip op. at 4-5 (D.D.C. Jan. 9, 2009).

They argue that, because AI Qaeda is a secretive organization, the proper inference to be drawn

from Hentifs presence at this guesthouse is that he too was part of Al Qaeda. See JE 2 (Dec1. of

Defense Intelligence Agency, Background Declaration - Guesthouses (September

19, 2008» at 3 (explaining that guesthouses were used as transition points for fighters going to

training camps and noting that "[t]hese guesthouses were not available to the public, but rather

were restricted to individuals with specific definable connections to al-Qaida,,).'6

Further establishing that Hentif was affiliated with AI Qaeda, respondents argue, are the

16 Respondents also argue that the fact that the house had a surrounding wall,

suggesting that it was meant to be secure and closed off. further supports the inference that it was

an AI Qaeda See JE 54 (FD-302 summarizing inte~t 3
(reporting the guesthouse where he met ~g a "three []
meter brown and "a solid, green steel gate"); JE 14 at 3 (reporting that Hentif
said the guesthouse had "a wall around the outside that blocked the view of the house from the
street").

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Finally. respondents set forth two additional allegations to support their position that

Hentifs stay at gue:sthou~;e demonstrates that he was part ofAl Qaeda. The first is

that the guesthouse served as a transit point for Hentif to attend an Al Qaeda tactical training

consistent with Hentifs admitted usage of the his Yemeni

citizenship. See JE 13 at 1 (reporting that Hentifsaid that a nickname he has

used since childhood); JE I at 12 (noting

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interrogation ofHentif) at 1 (reporting that Hentif said he received training in Y

Respondents' second additional allegation is that Hentif was captured with a Casio watch

ofa type that many terrorists possessed. See JE 12 (MFR dated June 26, 2002) at 1 (listing

Hentif, by his ISN nwnber, as a person in possession ofa "silver version" of the "Casio F-91 W").

This model of watch "has been used in bombings that have been linked to AJ-Qaida and radical

Islamic terrorist groups with improvised explosive devices." Jd; see also JE 6 (Decl. o~

Defense Intelligence Agency, Background Declaration - Casio F·91 W Watch) at 1

Respondents, citing a recent opinion of the D.C. Circuit, argue that the Court must take Hentifs

possession of this watch into account in reaching its decision. See AI-Adahi, 613 F.3d at 1109

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(explaining with disapproval that the district court "threw out then telling facts" that the

petitioner had been seen wearing and was captured with a Casio watch).

2. Hentif's arguments

Hentif does not dispute that he stayed at a guesthouse in Kandahar run by

He does, however, dispute the implications of his stay there. First, he argues that respondents

have not shown that the house was used exclusively by persons connected to Al Qaeda. In

particular, he notes that although respondents rely on a declaration from an intelligence agency

employee to support that contention, see JE 2 at 3, detainees with first-hand knowledge of the

house's operation indicate that it was open to anyone. See JE 54 at 3 (reporting

~uel~tho!Use "was open to anyone that needed a place to stay"); JE 68 (FM 40

summarizing interrogation 2 (reporting that the

guesthouse, which respondents assert was guesthl[)USe, "was for everyone").

Moreover, Hentif notes, he has said that he did not know if connected to any

terrorist group and that he did not know or get to know the other occupants ofthe house. JE 11

at 1; Government Exhibit ("GE") 1 interrogation of

Hentif) at 1; JE 22 (SIR interrogation of Hentif) at 2 ("[HentifJ

reiterated that he was not well received at the Arab guesthouse in Kandahar. He felt like an

outsider and did not make any acquaintances aside from owner ofthe

guesthouse... merely a hospitable Arab man living in Kandahar who

opened his [] home to fellow Arabs passing through Kandahar. ").19

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Respondents counter that Hentifhas been in~about his reception
Once, he reportedly said that he and _ ' w e r e welcomed at the
at.
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As to respondents' inculpatory interpretation of the fact

house~ food, prayer time, and conversation were offered." JE 14 at 3.
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Henrif also disputes

the significance that respondents attribute to it. First, he asserts that he never

Next, Hentif vigorously disputes the allegation that he attended training camps in

Afghanistan.

See JE 60 at 1

, 22 ("1 never registered for training of any kind and 1 never heard from anyone while 1was in

Afghanistan that my name appeared on any list for training."). He also argues that the lists

indicating re2listered for training do not refer to him. He notes that the name

lDJX:W"S in five places in the relevant set ofdocuments, see JE 37 at 1, 48-49, 56, 70,

85, but respondents only contend that two might refer to him, id. at 48-49, 70. He argues that

this fact shows a common name. Further, respondents connect these two

appearances of the Hentif only because the those instances is from

Yernen or Al Jawf, a region of Yernen. This, according to Hentif, is not a sufficient basis on

which to conclude that the those two instances, refers to him. Additionally,

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Hentif notes that in one instance the list refers means

that the person himself is See id at 48-49. The list also

indicates ved in Afghanistan in September 2000, id, the year before Hentif

contends he left Yemen. See JE 94 ~ 16 (stating that he traveled to Afghanistan in the summer of

2001); JE 13 at 3 (same); see also JE 104 ft 4-5 (stating that Hentif asked his family, including

his cousin permission to travel to Afghanistan in the summer of2001).23 In light of

these discrepancies, Hentif concludes, the training lists do not support the contention that he

attended a training camp.

3. Court's fmdings

There is no dispute that Hentif stayed at Iluel;thoiuse in Kandahar for

approximately five days. And Hentif concedes that affiliated with Al Qaeda,

although Hentif maintains that he was not aware of that affiliation or why other guests at the

guesthouse were there. Staying at an AI Qaeda-affiliated guesthouse is "powerful-indeed

'overwhelming'-evidence" that an individual was part ofAl Qaeda. AI-Adahi, 613 F.3d at 1108

(quoting Al-Bihani, 590 F.3d at 873 n.2». Consequently, the Court will take this evidence into

account in considering respondents' case.

23 Respondents question Hentir s credibility as to this point. They argue that
Hentirs timetable, in which he fllSt moved from AI Jawfto Sana'a in the summer of2001 but
left for Afghanistan that same summer, is so compressed as to be likely untrue. Furthermore,
they point to Hentirs assertion that he moved to Sana'a after receiving his inheritance from his
deceased father upon turning 18, which, because he was born in 1981, would have occurred in
1999. Finally, they argue that~eclaration is not probative because, if_poke to
Hentif on the phone about whether Hentif could go to Afghanistan, Hentif might have been
hiding from his family that he had already left Sana'a.

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h ....h .... undermine the credibility of his explanation. Therefore, given that Hentif lodged

at an Al Qaeda guesthouse, the Court fInds that it is

Court is also mindful that the falsity ofHentif's exJ;llanalICID

its own evidentiary significance. See AI-Adahi, 613 F.3d at 1107 ("[F]alse

exculpatory statements are evidence--often strong evidence-ofguilt.").

unclear. the Court need

not order to take into account that it

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probative value that the Court will

consider.

Next, the Court finds that respondents have not shown that Hentif attended training

courses while in Afghanistan. The Court will not draw any inculpatory inferences from the fact

that the ~n1""'Q1'Q on lists that are apparently rosters for training courses. Hentif's

arguments as to this point are persuasive. In particular, although the roster refers to an individual

(or perhaps multiple individuals) is from Yemen and AI Jawf, nothing else

about the roster suggests that the to Henti£, and the date in 2000 strongly

suggests otherwise. Respondents have no other evidence showing that Hentif arrived in

Afghanistan before the summer of 200 1, whereas the declaration of Hentir s cousin

corroborates Hentirs statements that he departed for Afghanistan in 2001. Moreover. Hentifhas

consistently denied the allegation that he attended training camps.

There is no dispute, however, that Hentif possessed a Casio watch ofa model often used

by Al Qaeda operatives. The Court will take that fact into consideration when considering

respondents' evidence as a whole.

C. Issue Three: Hentif to Travel to Another
Guesthouse in Kabul, Immediately Before Working for Two
Individuals with Significant Ties to the Taliban and AI Qaeda•.

Hentif has said repeatedly that, while in Afghanistan, he lived with a man he knew from

and did volunteer work for the supervision of

Respondents contend that all three men had

connections to Al Qaeda andlor the Taliban.

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a. Respondents' arguments

According to respondents, su~~es:ted that Hentif seek

also known a Yemeni living in Afghanistan. See JE 14 at 3 ("[Hentif]

stated that when he informed

information on an individual named working in Kabul, who was

also from Al Jouf, Yemen."). And, respondents argue, even not the source of

the idea that Hentif find the two men were nevertheless connected, because

that in Kabul. JE 10 at 4~ JE 15

_interrogation of Hentif) at 2.

Respondents note that Hentif told interrogators him to Kabul to the

house of a man named would be able to find

See JE 10 at 4; JE 15 at 2. Respondents argue that_house was a Taliban

guesthouse. As support for this contention, they point

24 Hentif explains in his declaration that these names mean~m the north and
the east, respectively, and people called this man by both n~epending upon
they lived in relation to his hometown in the northeast of Yemen. JE 94 ~ 7.

25 Respondents acknowledge that the interrogation summary in which the statement
supporting their contention also that "[Hentif] later claimed
the house in Kandahar he if he knew the whereabouts
[Hentif] claims that he he was his Koran teacher
[Hentif] also knew that working in Afghanistan." JE 14 at 3. Because "the
interpreter was very clear changed his stat~ not a translation problem,"
id. s assert that Hentifs first statement, that_suggested he find_
true than the one that respondents categorize as a cover story, that Hentif
embarking on his trip.

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they note that Hentif described the house as follows:

This house was located in the Wwr Akbar Khan section ofKabul; [Hentit] could not
identifY an£] exact location. It was a two level structure with a small yard and a high
wall that blocked the view from the street. There was a driveway large enough for
one car. There [were] approximately fifteen Arabs in the house at any given time;
people came and went regularly. [Hentit] stated that there were only Arabs at the
house and none ofthem had families.

JE 15 at 3. Respondents argue that this description supports the inference that the house was for

fighters, because: (1) another detainee said during an interrogation that he stayed at a Taliban

guesthouse in this same neighborhood, see JE 7 at 2; (2) the house had a high wall; (3) only

single men stayed there; and (4) the house was close to a battle being fought near Kabul.

[Hentif]
to retrieve Hentif and take him to.
Respondents find further support for this theory in the fact that AI Ansari was able to

after receiving a message

he was there."); JE 15 at 3. This fact is incriminating, respondents assert,

a fighter at Tora Bora. 26 They base this allegation on: (1) the statements

was "40 years of age, [and1 from Saudi

Arabia" fought with him in Tora Bora, see JE 8 at 4; (2) the appearance ofthe name

a list of"AI Qaeda members" who were to attend '''tactics course no. 2" in March

26 A cave complex at Tora Bora was the site ofa December 2001 battle in which the
Taliban and Al Qaeda fought against the United States.

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2001, see JE 34 (IIR at 1,3; and (3) the fact that the Department of Defense

obtained a note sent another individual congratulating him "on

the assassination o~d the Americans," see JE 33 (UR containing translated text of

letter) at 1, 3.

b. Hendf's arguments

Hentifmaintams that the explanation ofhow he went gue~stnoluse to

is not incriminating. He asserts that he went with the

intention of ... u"uUl!. whom he knew as a Koran teacher in Yemen. JE 10 at 3-4; JE

14 at 3; JE 15 at 2.27

toJdhim JE 10 at 4; JE 15 at 2. His travel to

Kabul, then, was for the purpose of finding

house-where, as at he was aware of no indication of any affiliation with a

terrorist group-was innocent. Cf JE 15 at 3 ("[HentifJ claims no one at _ h o u s e

was ever armed.").

As to ,....,,,.......,,.. , Hentif notes that his interrogation summaries give no

indication that AI Shamali was anything other than a Yemeni who Jived in Afghanistan with his

wife and child and taught the Koran at a mosque. JE 15 at 3 (reporting that Hentif said_

27 Hentirs declaration provides additional detail about how he had ~
_ JE 94 ~ 6 ("When I was about eleven years old, I met a family friend, _ _
He was older, an~ Koran to young boys in a nearby mosque. I attended his courses for
about two years. _ d i d charitable work for the poor, and I looked up to him because of
his knowledge and charity."). Respondents note, however, that during an interrogation, Hentif
reportedly said that "when he was eighteen," rather than eleven, "[Hentif] and eight or nine other
youth course," rather than courses over two years, "about the Koran given
Yemen," JE 14 at 3, arguing that these stories are inconsistent.

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with his wife and one year old son in a two level house" and referring to "the

U1n~·"'...n at located approximately 500 meters from the ... r.••" ...." ,

also JE 15 at 4

was not affiliated with any organization. He coordinated on

his own to teach Afghani children to recite the Koran.").

Further, Hentif contends that the differences in the descriptions of

whom respondents have incriminating information and the~hom Hentifknew belie

the contention that they are the same person. Specifically, the detainee who identified.

having fought at Tora Bora said a Saudi, JE 8 at 4, whereas the

Hentifknew was from Yemen, JE 30 at 2 (reporting that Hentif said

from" AI Zahar, Yemen"). The same detainee also said that 40,JE

8 at 4, but Hentif ....... ",'"'u.J"'... "in his early thirties," JE 30 at 2. Moreover, the men

had different names and different fiunily

circumstances; there is no mention ofthe Taliban-affiliated a wife or child in

Afghanistan, but Hentif reports that the knew lived in Afghanistan with, and left

the country accompanied by, his wife and child. See 1£ 15 at 3; JE 16 at 2. Further, thell
respondents identify was at the battle of Tora Bora when Hentifwas making his

way from Afghanistan to Pakistan.

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Finally, Hentif argues that the information he provided to interrogators about

only information in the record that is definitely connected to the person Hentif

knew-is not inculpatory. Despite respondents' contention that cormectU)DS to

suspicious, Hentif asserts that it is not surprising that Yemenis in

Afghanistan would form a network and be able to locate each other.

c. Court's findings

Respondents have demonstrated a person whom Hentif knew and sought

out in Afghanistan, is connected told interrogators, and does not now

Hentifto Kabul because he knew~ there. Although

not know precisely where_was, he knew

in Hentif and be able to locate And again, there is no dispute

affiliation with Al Qaeda. The explanation that Hentif has offered for the connection between

these men-that they knew each other only because they were all Yemenis living in

Afghanistan-is not supported by any evidence in the record.

The Court does not find, however, tha_house was an Al Qaeda guesthouse. It

is true tha~ recognized AJ Qaeda operative, sent Hentif from his guesthouse in

Kandahar to _guesthouse. And there is evidence that a guesthouse for fighters existed

in the neighborhood of Kabul where _ h o u s e was situated. But, while these facts make

respondents' contention possible, they are not sufficient to support the conclusion

operated an Al Qaeda guesthouse. 29

29 Respondents have not provided evide~ther than from Hentifs
statements and several of their arguments about why~was likely to be an Al

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Similarly. the Court finds insufficient support for respondents' assertion that t h e .

Hentifknew is the same man who attended training camps and fought at Tora

Bora. As Hentifpoints out, the descriptions ofthese two men-including their nationalities and

family statuses-are different. And there is no indication in the record that

Hentifknew was a fighter. Furthermore~ the similarities in the names ofthe two men are less

meaningful than might be the case under other Cl·trCUl1D.stan~;;es; not a unique name and

to a direction, not a location, so it could be the alias ofan individual ofany

nationality. Consequently, although the Court will consider the connection "",.1"'.v.......

does not find that the~hom Hentifknew was a fighter for Al

Qaeda or the Taliban.

a. Respondents' arguments

Respondents argue Hentif said were affiliated

with the in fact associated with the Taliban.

Qaeda guesthouse have little merit. Specifically, respondents have not shown that the presence
of a wall around the house distinguished it from any other house in Kabul. Similarly, that single
men stayed in the house is not evidence of an affiliation with terrorists. See JE 80 (Ded. of Dr.
Sheila Carapico) ~ 18 (explaining that "[t]he fact that a young Yemeni stays at ·guest houses'
while in ... Afghanistan does not itself imply anything menacing or illicit" because "it is

, respondents' argument that was likely for fighters because sits
general vicinity ofa battle is so broad as to be meaningless~ this argument would apply to almost
any home in Kabul.
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As t~spondents first point to infonnation obtained from a Guantanamo Bay

detainee about a Taliban training camp named for the Taliban COllntrumctler

JE 23 (IIR derived from interview

Another detainee said he went to a house in Kabul where an Afghan UQ,lJl1,",. .

u .... 'u....-u aU [J business" other than cooking. JE 25 (IIR summarizing FBI interrogation of

2. Respondents argue that this evidence demonstrates a

commander who managed recruits. moving them from a guesthouse in Kabul to battle. IfHentif

was working respondents contend, then he too must have been a member ofthe

Taliban.

Based on statements of other Guantanamo Bay detainees. respondents '-~"~"'J

an individual whose real name who used the

aliases. See JE 50 ( I I R _ e r i v e d fro~at 2 _

_ earned with Arabs in Kabul and Qandabar during the Taliban

regime._true name was been known by the a l i a s _

to the battle of Tora Bora"); JE 52 (FM 40 summarizing interrogation

1-2 (reporting that_who admitted to working for members of Al Qaeda and the Taliban,

a list of

membersofa

ran training courses and was connected JE 50 at 2. Again,

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respondents argue that, because Hentif worked for this man, he must have been part ofthe

TaJiban.

To further bolster their contention that these two men are those whom Hentifknew,

respondents note that evidence in the record c o n n e c t _ The detainee

who told an interrogator a member of

a particular group also included

individuals who joined that group. JE 52 at 2. This detainee also said that he delivered money

from a man he identified as a member of Al Qaeda and the Taliban, JE 52 at 1-2.

53 (SIR summarizing interrogation o~at 1.

Relying on this information, respondents again

s consistent, respondents argue, with the previous events

they describe. such as Hentifs travel for the purpose ofjihad and his stays at A1 Qaeda

guesthouses. Furthermore, they note, there is no evidence in the record corroborating Hentifs

statements about his work for

b. Hentif's arguments

Hentifargues emphatically that encountered in

Afghanistan are not the same men about whom respondents have incriminating information.

First, Hentif points to the detailed information in his interrogation summaries about how he met

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these men and the innocent work he did for them. One particularly specific interrogation

summary indicates that Hentif said:

Koran teacher,~ew
worked as a driver for the
L - -•• ----.J wanted to work for a hUlnWliull"ia
,,1"

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