Hentif v. Bush

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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 UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE 8B8JU!T 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 UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE 8138RB'f' 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. 3 81iM' UNCLASSIFIEDIIFOR PUBLIC RELEASE r I UNCLASSIFIEDIIFOR PUBLIC RELEASE 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 4 aUIIlI' UNCLASSIFIEDIIFOR PUBLIC RELEASE I ' UNCLASSIFIEDIIFOR PUBLIC RELEASE 81!8.M!' 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. UNCLASSIFIEDflFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE 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. 6 81!!eIt:I!!T UNCLASSIFIEDIIFOR PUBLIC RELEASE • _ J.';'. • _ ._" _ _ _ _ UNCLASSIFIEDIIFOR PUBLIC RELEASE 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. UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE OIiiBfttj, See, e.g., JE 10 at 3; JE 13 at 3; JE 14 at 2. the two flew together from Yemen 14......1'>..........1 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 8 81!@R:liiff UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE 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." UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE OIiMfil, 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"). 10 1!l1ii8MT UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE BfilBlt8T 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 iM 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. 11 ..liiiAIii. UNCLASSIFIEDIIFOR PUBLIC RELEASE ~. ___________ ~~~ •• __ • T ______ - ••••• ­ UNCLASSIFIEDIIFOR PUBLIC RELEASE Bt!Bil!' 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 12 SI!l€M!'f UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE DEIM' 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 13 8BeRET UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE 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 14 8B81tl!!iT UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEOIIFOR PUBLIC RELEASE 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"). 15 ilii_if UNCLASSIFIEOIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE 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 16 ODiRET UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE 81!l@M!T 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 17 OliiMT UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE BliiiNiT (explaining with disapproval that the district court "threw out then telling facts" that the petitioner had been seen wearing and was captured with a Casio watch). 2. Hentif's arguments Hentif does not dispute that he stayed at a guesthouse in Kandahar run by He does, however, dispute the implications of his stay there. First, he argues that respondents have not shown that the house was used exclusively by persons connected to Al Qaeda. In particular, he notes that although respondents rely on a declaration from an intelligence agency employee to support that contention, see JE 2 at 3, detainees with first-hand knowledge of the house's operation indicate that it was open to anyone. See JE 54 at 3 (reporting ~uel~tho!Use "was open to anyone that needed a place to stay"); JE 68 (FM 40 summarizing interrogation 2 (reporting that the guesthouse, which respondents assert was guesthl[)USe, "was for everyone"). Moreover, Hentif notes, he has said that he did not know if connected to any terrorist group and that he did not know or get to know the other occupants ofthe house. JE 11 at 1; Government Exhibit ("GE") 1 interrogation of Hentif) at 1; JE 22 (SIR interrogation of Hentif) at 2 ("[HentifJ reiterated that he was not well received at the Arab guesthouse in Kandahar. He felt like an outsider and did not make any acquaintances aside from owner ofthe guesthouse... merely a hospitable Arab man living in Kandahar who opened his [] home to fellow Arabs passing through Kandahar. ").19 19 Respondents counter that Hentifhas been in~about his reception Once, he reportedly said that he and _ ' w e r e welcomed at the at. 18 BI!iElR:B'if UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE As to respondents' inculpatory interpretation of the fact house~ food, prayer time, and conversation were offered." JE 14 at 3. " 19 8E€JR!:ET UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE 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, 20 BS€R£if UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE 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. 21 !f!@MJ!' UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE J!eM!1 h ....h .... undermine the credibility of his explanation. Therefore, given that Hentif lodged at an Al Qaeda guesthouse, the Court fInds that it is Court is also mindful that the falsity ofHentif's exJ;llanalICID its own evidentiary significance. See AI-Adahi, 613 F.3d at 1107 ("[F]alse exculpatory statements are evidence--often strong evidence-ofguilt."). unclear. the Court need not order to take into account that it 22 Hii81liiT UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE 81!@1t!'f 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. 23 IIi IiiI lilT UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE 1. a. Respondents' arguments According to respondents, su~~es:ted that Hentif seek also known a Yemeni living in Afghanistan. See JE 14 at 3 ("[Hentif] stated that when he informed information on an individual named working in Kabul, who was also from Al Jouf, Yemen."). And, respondents argue, even not the source of the idea that Hentif find the two men were nevertheless connected, because that in Kabul. JE 10 at 4~ JE 15 _interrogation of Hentif) at 2. Respondents note that Hentif told interrogators him to Kabul to the house of a man named would be able to find See JE 10 at 4; JE 15 at 2. Respondents argue that_house was a Taliban guesthouse. As support for this contention, they point 24 Hentif explains in his declaration that these names mean~m the north and the east, respectively, and people called this man by both n~epending upon they lived in relation to his hometown in the northeast of Yemen. JE 94 ~ 7. 25 Respondents acknowledge that the interrogation summary in which the statement supporting their contention also that "[Hentif] later claimed the house in Kandahar he if he knew the whereabouts [Hentif] claims that he he was his Koran teacher [Hentif] also knew that working in Afghanistan." JE 14 at 3. Because "the interpreter was very clear changed his stat~ not a translation problem," id. s assert that Hentifs first statement, that_suggested he find_ true than the one that respondents categorize as a cover story, that Hentif embarking on his trip. 24 JI!e!lll!f UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE 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. UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE S159a15T 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. 26 8fJ@RfJl UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE O!!@M' 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. 27 SI!@MlT UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE Finally, Hentif argues that the information he provided to interrogators about only information in the record that is definitely connected to the person Hentif knew-is not inculpatory. Despite respondents' contention that cormectU)DS to suspicious, Hentif asserts that it is not surprising that Yemenis in Afghanistan would form a network and be able to locate each other. c. Court's findings Respondents have demonstrated a person whom Hentif knew and sought out in Afghanistan, is connected told interrogators, and does not now Hentifto Kabul because he knew~ there. Although not know precisely where_was, he knew in Hentif and be able to locate And again, there is no dispute affiliation with Al Qaeda. The explanation that Hentif has offered for the connection between these men-that they knew each other only because they were all Yemenis living in Afghanistan-is not supported by any evidence in the record. The Court does not find, however, tha_house was an Al Qaeda guesthouse. It is true tha~ recognized AJ Qaeda operative, sent Hentif from his guesthouse in Kandahar to _guesthouse. And there is evidence that a guesthouse for fighters existed in the neighborhood of Kabul where _ h o u s e was situated. But, while these facts make respondents' contention possible, they are not sufficient to support the conclusion operated an Al Qaeda guesthouse. 29 29 Respondents have not provided evide~ther than from Hentifs statements and several of their arguments about why~was likely to be an Al 28 8t!@.U!l' UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDflFOR PUBLIC RELEASE 3eeilEi Similarly. the Court finds insufficient support for respondents' assertion that t h e . Hentifknew is the same man who attended training camps and fought at Tora Bora. As Hentifpoints out, the descriptions ofthese two men-including their nationalities and family statuses-are different. And there is no indication in the record that Hentifknew was a fighter. Furthermore~ the similarities in the names ofthe two men are less meaningful than might be the case under other Cl·trCUl1D.stan~;;es; not a unique name and to a direction, not a location, so it could be the alias ofan individual ofany nationality. Consequently, although the Court will consider the connection "",.1"'.v....... does not find that the~hom Hentifknew was a fighter for Al Qaeda or the Taliban. 2. a. Respondents' arguments Respondents argue Hentif said were affiliated with the in fact associated with the Taliban. Qaeda guesthouse have little merit. Specifically, respondents have not shown that the presence of a wall around the house distinguished it from any other house in Kabul. Similarly, that single men stayed in the house is not evidence of an affiliation with terrorists. See JE 80 (Ded. of Dr. Sheila Carapico) ~ 18 (explaining that "[t]he fact that a young Yemeni stays at ·guest houses' while in ... Afghanistan does not itself imply anything menacing or illicit" because "it is , respondents' argument that was likely for fighters because sits general vicinity ofa battle is so broad as to be meaningless~ this argument would apply to almost any home in Kabul. 29 BI!8RiB'f UNCLASSIFIEDflFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE 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, UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE 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 31 8tl@M!'P UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE e!eMY 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"