Mohammed v. Bush

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FI!...ED WITH THE
COURT SE URITY OFFICER
eso: tlSL
l!IJ!1CIt'l!lT DATE: ........-{;fH-"f4>'!!/-­

UNITED STATBS DISTRICT COURT
POR THB DISTRICT OP COLUMBIA

PARRI SAEED BIN MOHAMMED,
et. al.,

Petitioners,

v. Civil Action No. OS-~347 (GK)

BARACK H. OBAMA, et. al.,

Respondents.

MEMORANDUM OPINION

Petitioner Farhi Saeed Bin Mohammed ( "Mohammed" or

"Petitioner") has been detained since 2002 at the United States

Naval Base at Guantanamo Bay, Cuba. Respondents ("the Government")

argue that his detention is justified under the Authorization for

the Use of Military Force, Pub. L. No. 107-40 § 2(a), 115 Stat.

224, 224 (2001) ("AUMF"), which grants the Executive the power to

detain individuals engaged in certain terrorist activities.

Petitioner disagrees, and has filed a petition for a writ of habeas

corpus [Dkt. No.1).

The matter is before the Court on Cross-Motions for Judgment

on the Record [Dkt. Nos. 215-17]. Upon consideration of the

Motions, the Oppositions, extensive oral argument and accompanying

eXhibits, and the entire record herein, Mohammed's habeas corpus

petition and Motion are hereby granted.

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Because of the length of this Opinion, the Court includes the

following Table of Contents:

I. Procedural History
3

II. Standard of Review
7

III. Analysis 10

A. Evidentiary Presumptions 10

B. Mosaic Theory 13

C. Government Allegations 16

1. Use of False Names and Documents 17

2. Attendance at London Mosques 20

3. Recruitment and Travel to Afghanistan 23

4. Guesthouse Stay 28

5 . Training 40

a. The Government's Evidence 42

b. Petitioner's Attacks on the

Government's Evidence 47

i. Torture Allegations 48

ii. Legal Analysis 57

iii. Reliability of Evidence

Procured Subsequent to Torture .... 61

d. Remaining Allegations Regarding

Training. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

6. participation in Battle
72

IV. Conclusion
75

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I. PROCEDURAL HISTORY

Petitioner filed his habeas corpus petition on July 6, 2005.

After filing, there was extensive preliminary litigation regarding

the Court's jurisdiction to entertain detainees' petitions, the

applicability of various statutes, and the appropriate procedures

to be used.

After more than six years of litigation, the most important

legal issue was resolved by the Supreme Court in Boumediene v.

Bush, 553 U.S. , 128 S. Ct. 2229 (2008). The Court ruled that

detainees at Guantanamo Bay, none of whom are citizens of the

United States, are entitled to bring habeas petitions under Article

I of the Constitution, and that the federal district courts have

jurisdiction to hear such petitions.

The Court did not define what conduct the Government would

have to prove, by a preponderance of the evidence, in order to

justifiably detain individuals--that question was left to the

District Courts. Id. at 2240 ("We do not address whether the

President has the authority to detain these petitioners nor do we

hold that the writ must issue. These and other questions regarding

the legality of the detention are to be resolved in the first

instance by the District Court."). Nor did the Supreme Court set

forth specific procedures for the District Courts to follow in

these cases.

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Boumediene was, however, definitive on at least two points:

first, that the detainees are entitled to a prompt hearing, id. at

2275 ("The detainees in these cases are entitled to a prompt habeas

corpus hearing."), and, second, that the District Courts are to

shape the contours of those hearings, id. at 2276 (finding that

balancing protection of the writ and the Government's interest in

military operations, "and the other remaining questions [,] are

wi thin the expertise and competence of the District Court to

address in the first instance.").

In an effort to provide the prompt hearings mandated by the

Supreme Court, many of the judges in this District agreed to

consolidate their cases before former Chief Judge Thomas Hogan, for

purposes of streamlining procedures for, and management of, the

several hundred petitions filed by detainees. See Order (July 1,

2008) [Civ. No. 08-442, Dkt. No.1]. On November 6, 2008, after

extensive briefing from Petitioners' counsel and the Government,

Judge Hogan issued a Case Management Order ("CMO") to govern the

proceedings. This Court adopted, in large part, the provisions of

that Order, while modifying it somewhat, as noted in Appendix A to

Dkt. No. 147.

Much pre-hearing activity has taken place under this Court's

CMO. The Government has filed the exculpatory evidence, automatic

discovery, and additional discovery required under the CMO. The

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Government filed its Factual Return for Mohammed on November 15,

2005 [Dkt. No. 10] and October 26, 2006, and amended it on November

26, 2008. The Petitioner responded by filing his Traverse on March

17, 2009 [Dkt. No. 232]. After a period of extensive discovery,

both parties filed substantial briefs accompanied by voluminous

eXhibits.

On July 14, 2009, the court set September 3, 2009, as the date

for the Merits Hearing on the Cross-Motions for Judgment on the

Record for Petitioner. Mohammed elected not to listen in via

telephone to the unclassified opening arguments, and also chose not

to testify via video-conference from Guantanamo Bay [Dkt. No. 230].

Parties presented their arguments during a two-day, mostly

classified session. At the close of the Hearing, the Court ordered

additional briefing on the issue of the admissibility of evidence

procured by torture, or procured from an individual who had been

tortured prior to providing the evidence upon which parties rely.

Minute Order (Sept. 4, 2009). On September 28, 2009, parties

submitted briefs setting forth their positions on this issue [Dkt.

Nos. 247-48].

Between the filing of Mohammed's habeas corpus petition and

the Merits Hearing, the Government has made at least two

determinations regarding his detention status. Petitioner was

cleared for release by the Administrative Review Board ("ARB") in

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September of 2007. See Pet.'s Mot. To Lift the Stay of

Proceedings, Order the Government to Provide Factual Return and Set

a Scheduling Conference at 2 n.1 [Dkt. No. 33].

See Sealed Notice of Status

[Dkt. No. 189]. In advance of that decision, parties filed a Joint

Motion to Stay Proceedings [Dkt. No. 175], which the Court granted

on May 13, 2009. Another stay was entered at the request of the

Government on June 11, 2009. See Order [Dkt. No. 193].

all stays in the case were lifted on July 14, 2009,

over the Government's objection, thereby allowing the Merits

Hearing to proceed. See Order (July 14, 2009) (setting dates for

Merits Hearing) [Dkt. No. 205].

There is one other procedural event that bears mention. ..

Notice Pursuant to the Court's July 10,

2008 Order [Dkt. No. 56].

No.

212] ; [Dkt. No.

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by the Court of Appeals in Kiyemba v.

ID.ls.h, 561 F.3d 509 (D.C. Cir. 2009), reh'g and reh'g en bane

denied, No. 05-5487 (July 27, 2009). See Order (Sept. 29, 2008)

[Dkt. No. 80].

_ [Dkt. No. 202; civ. No. 08-442, Dkt. No. 1824]. That

motion is pending.

II. STANDARD OF REVIEW

The Government bears the burden of establishing that detention

is justified. See Boumediene, 128 S. Ct. at 2270; Hamdi, 542 U.S.

507, 533-34 (2004). It must do so by a preponderance of the

evidence. Order, Appendix A at § II.A (Feb. 12, 2009) [Dkt. No.

~47-2]; see also Basardb v. Obama, 6~2 F. Supp. 2d 30, 35 n.~2

(D.D.C. 2009).

Initially, the Government took the position that both Article

II of the Constitution and the AUMF granted the President the

authori ty to detain individuals. See Gherebi v. Obama, 609 F.

Supp. 2d 43, 53 n.4 (D.D.C. 2009). In December of 2008, the

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Government asserted, "[a]t a minimum, . the ability to detain

as enemy combatants those individuals who were part of, or

supporting, forces engaged in hostilities against the United States

or its coalition partners and allies." Resp' t' s Statement of Legal

Justification For Detention at 2 [Dkt. No. 105].

Since the change in Administrations, the Government has

abandoned Article II as a source of detention authority, and relies

solely on the AUMF. Gherebi, 609 F. Supp. 2d at 53 n.4. Further,

it no longer uses the term "enemy combatant." Its refined position

is:

[t]he President has the authority to detain persons that

the President determines planned, authorized, committed,

or aided the terrorist attacks that occurred on September

11, 2001, and persons who harbored those responsible for

those attacks. The President also has the authority to

detain persons who were part of, or substantially

supported, Taliban or al-Qaida forces or associated

forces that are engaged in hostilities against the United

States or its coalition partners, including any person

who has committed a belligerent act, or has directly

supported hostilities, in aid of such enemy armed forces.

Resp' t' s Revised Mem. Regarding the Gov's Detention Authority

Relative to Detainees Held at Guantanamo Bay at 3 [Dkt. No. 153].

In Gherebi, Judge Reggie B. Walton of this District Court

ruled that the Government has the authority to detain individuals

who were part of, or substantially supported, al-Qaida and/or the

Taliban, provided that those terms "are interpreted to encompass

only individuals who were members of the enemy organization's armed

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forces, as that term is intended under the laws of war, at the time

of their capture." Gherebi, 609 F. SUpp. 2d at 70-71. The opinion

discussed the criteria relevant to determining whether detention in

a specific case complies with the laws of war. Id. at 68-70; see

also infra at Section IV.

In Hamlily v. Obama, 616 F. Supp. 2d 63 (D.D.C. 2009), JUdge

John Bates of this District Court concluded that, under the laws of

war, the Government has the authority to detain individuals who

were "part of . Taliban or al[-]Qaida forces," or associated

forces. rd. at 74. The court went on to rule that the Government

does not have the authority to detain those who are merely

"substantial supporters" of those groups. Id. at 76. While the

Court has great regard for the scholarship and analysis contained

in both decisions, the Court concludes that Judge Walton's opinion

presented a clearer approach, and therefore will adopt his

reasoning and conclusion. 1

1 The Court agrees with Judge Bates' comment that the
determination under Judge Walton's approach of who was a "part of"
al-Qaida and/or the Taliban, rests on a highly individualized and
case-specific inquiry; as a result, the "concept [of substantial
support] may play a role under the functional test used to
determine who is 'part of' a covered organization," and the
difference in the two approaches "should not be great." Hamlily,
616 F. Supp. 2d at 76.

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III. ANALYSIS

A. Evidentiary Presumptions

As a preliminary matter, some attention must be given to the

nature of the evidence that has been presented in this case, and

how the Court, as fact-finder, will go about evaluating that

evidence. In attempting to meet its burden, the Government has

provided evidence in the form of classified intelligence and

interview reports that it believes justify the Petitioner's

detention. The reports contain the statements of Petitioner, as

well as statements made by other detainees, that the Government

argues demonstrate the Petitioner's status as a member or

substantial supporter of al-Qaida and/or the Taliban.

The Government requested that a rebuttable presumption of

authenticity be granted to all the exhibits it intends to

introduce. 2 Gov's Mem. Regarding Presumptions, Hearsay and

Reliability of Intelligence Information at 2 ("Gov Presumptions

Mem.") [Dkt. No. 171]. Given the Government's representations that

the specific documents included in its case against Petitioner, as

well as the documents provided to Petitioner's counsel in

2 Ordinarily, "the requirement of authentication requires
that the proponent, who is offering a writing into evidence as an
exhibit, produce evidence sufficient to support a finding that the
writing is what the proponent claims it to be." 2 K. Broun,
McCormick on Evid ence § 221 (6th ed.).

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discovery, have all been maintained in the ordinary course of

business, id. at 4-5, the Court will presume, pursuant to Fed. R.

Evid. 803(6), that its documents are authentic. As provided for in

the Case Management Order, the Government's exhibits will be

granted a rebuttable presumption of authenticity and will be deemed

authentic in the absence of any rebuttal evidence to the contrary.

The Government has also requested that a rebuttable

presumption of accuracy be granted to all the exhibits it intends

to introduce. Id. at 2. Petitioner takes issue with the

reliability of the evidence offered by the Government. Pet. Farhi

Saeed Bin Mohammed's Mot. For J. On the Record at 11-21 (~Pet.'s

Mot.") [Dkt. No. 217J. The Government's request is denied for

several reasons.

First, there is absolutely no reason for this Court to presume

that the facts contained in the Government's exhibits are accurate.

Given the extensive briefing and oral argument presented by counsel

during the discovery phase of this case, as well as the exhibits

submitted at the Merits Hearing, it is clear that the accuracy of

much of the factual material contained in those exhibits is hotly

contested for a host of different reasons ranging from the fact

that it contains second-level hearsay to allegations that it was

obtained by torture to the fact that no statement purports to be a

verbatim account of what was said.

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Second, given the fact that this is a bench trial, the Court

must, in any event, make the final jUdgment as to the reliability

of these documents, the weight to be given to them, and their

accuracy. ~ Parhat v. Gates, 532 F.3d 834, 848 (D.C. Cir. 2008)

(" [The Court] must be able to assess the reliability of the

evidence [for itself] ."}.3 Those final judgments will be based on

a long, non-exclusive list of factors that any neutral fact-finder

must consider, such as: consistency or inconsistency with other

evidence, conditions under which the exhibit and statements

contained in it were obtained, accuracy of translation and

transcription, personal knowledge of declarant about the matters
4
testified to, levels of hearsay, recantations, etc. See Hamlily

v. Obama, Civ. No. 05-763 at 4-7 (D.D.C. Aug. 21, 2009) (order

discussing evidentiary burdens); but see Bostan v. Obama, civ. No.

05-883, 2009 WL 2516296, at *2 (D.D.C. Aug. 19, 2009).

Denial of the Government's request for a rebuttable

That Parhat came before the Court of Appeals in a
different procedural posture does not undermine the principles it
set forth regarding the need for the courts to assess the
reliability of the Government's evidence. See Khan v. Obama, Civ.
No. 08-1101, 2009 WL 2524587, at *2 n.2 (D.D.C. Aug. 18, 2009).
4 While the Supreme court did suggest in Hamdi that a
rebuttable presumption "in favor of the Government's evidence"
might be permissible, 542 U.S. at 534, it did not mandate it. In
Boumediene, the court clearly left it to the District Courts to
craft appropriate procedures. Boumediene, 128 S. ct. at 2272.

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presumption of accuracy does not mean, however, that the Government

must present direct testimony from every source, or that it must

offer a preliminary document-by-document foundation for

admissibility of each exhibit. As the Supreme court noted in

Hamdi, 542 U.S. at 533-34, hearsay may be appropriately admitted in

these cases because of the exigencies of the circumstances.

Finally, while parties always retain the right to challenge

the admissibility of evidence, the Court will be guided by the

Federal Rules of Evidence, in particular Rule 402, providing that

u [a] 11 relevant evidence is admissible." Once all evidence is

admitted into the record, the Court will then, in its role as fact-

finder, evaluate it for credibility, reliability, and accuracy in

the manner described above.

B. Mosaic Theory

The Government advances several categories of allegations

which, in its view, demonstrate that the Petitioner was detained

lawfully. Above all, its theory is that each of these allegations­

-and even the individual pieces of evidence supporting these

allegations--should not be examined in isolation. Rather, u[t]he

probity of any single piece of evidence should be evaluated based

on the evidence as a whole" to determine whether, when considered

"as a whole," the evidence supporting these allegations comes

together to support a conclusion that shows the Petitioner to be

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justifiably detained. Gov's Mot. For J. Upon the Administrative R.

and Mem. in Supp. at 6 (internal citation omit~ed) ("Gov's Mot.")

[Dkt. No. 215]. While the Government avoids an explicit adoption

of the mosaic theory, it is, as a practical matter, arguing for its

application to the evidence in this case. Cf. Ali Ahmed v. Obama,

613 F. Supp. 2d 51, 55-56 (D.D.C. 2009).

The court understands from the Government's declarations, and

from case law,s that use of this approach is a common and well-

established mode of analysis in the intelligence community. This

may well be true. Nonetheless, at this point in this long, drawn-

out litigation the Court's obligation is to make findings of fact

and conclusions of law which satisfy appropriate and relevant legal

standards as to whether the Government has proven by a

preponderance of the evidence that the Petitioner is justifiably

detained. The kind and amount of evidence which satisfies the

intelligence community in reaching final conclusions about the

value of information it obtains may be very different from, and

certainly cannot determine, this Court's ruling.

Even using the Government's theoretical model of a mosaic, it

S See, e.g., McGehee v. Casey, 718 F.2d 1137, 1149 (D.C.
Cir. 1983) (recognizing that the "mosaic-like nature of
intelligence gathering" requires taking a "broad view" in order to
contextualize information) (internal citations and quotations
omitted) .

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must be acknowledged that the mosaic theory is only as persuasive

as the tiles which compose it and the glue which binds them

together--just as a brick wall is only as strong as the individual

bricks which support it and the cement that keeps the bricks in

place. Therefore, if the individual pieces of a mosaic are

inherently flawed or do not fit together, then the mosaic will

split apart, just as the brick wall will collapse. 6

A final point must be kept in mind. One consequence of using

intelligence reports and summaries in lieu of direct evidence is

that certain questions simply cannot be answered, i.e., there are

no witnesses to cross-examine or deposition transcripts to consult.

Sizeable gaps may appear in the record and may well remain

unfilled; each party will attempt to account for these deficiencies

by positing what they think are the most compelling logical

inferences to be drawn from the existing evidence. Accordingly,

that evidence which does exist must be weighed and evaluated as to

its strength, its reliability, and the degree to which it is

corroborated. In any event I the Government always bears the

ultimate burden of showing by a preponderance of the evidence that

6 Lest there be any confusion on this point, the Court
wishes to make clear that it does examine "the evidence as a whole"
and does try to contextualize it, given the limited perspective
that the facts of any individual case offer. Having said that, the
individual tiles must still be strong enough to keep the entire
mosaic from falling apart.

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Petitioner's detention is lawful. Just as a criminal defendant

need not prove his innocence, a detainee need not prove that he was

acting innocently. In sum, the fact that the Petitioner may not be

able to offer air-tight answers to every factual question posed by

the Government does not relieve the Government of its obligation to

satisfy its burden of proof.

c. Government Allegations

Before trial, the substantive factual areas in dispute were

narrowed down to (1) Petitioner's use of an alias or false name

prior to and after his detention at Guantanamo Bay, (2)

Petitioner's use of a false passport, (3) Petitioner's attendance

at two mosques in London, (4) the role of terrorist networks in

recruiting Petitioner and facilitating his travel to Pakistan and

Afghanistan; (5) Petitioner's stay at an Algerian guesthouse in

Pakistan, (6) whether or not Petitioner trained at a terrorist

camp, and (7) whether or not Petitioner participated in battle.

According to the Government, the record demonstrates that

Petitioner traveled, trained, and fought on behalf of al-Qaida

and/or the Tal iban , and his cover story to the contrary must be

rejected as too incredible to be true.

Petitioner denies having any connection to terrorist groups.

He insists that he fled Algeria due to family problems and in

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search of economic opportunities in Europe. See JE 17 7 at 1

(reporting Petitioner's explanation of his background). He lived

in France and Italy as an undocumented alien for several years

before traveling to the United Kingdom in 2001. Id.; Pet.' s

Traverse in Support of Pet. for Habeas Corpus at 37 ("Traverse").

While in Europe, Petitioner claims he attended mosques and met

people who suggested that he go to Afghanistan to find a particular

Swedish woman known to Rahim (a recruiter) who would be willing to

marry him so that he could obtain citizenship to stay in Europe.

JE 15 at 4; JE 17 at 2-3. The Court will now examine the evidence

relating to each of the factual areas in dispute.

1. Use of False Names and Documents

The Government claims that Mohammed had a history of using

false names and a false passport. It points to instances in the

record where Petitioner, both during his time in Europe before

arriving in the United Kingdom and during his time in United States

custody in Pakistan and at Guantanamo Bay, reported that his name

was "Abdullah" or misrepresented where he was from. JE 15 at 5

(telling American interviewers that he was French); JE 53 at 10

(same); JE 16 at 1 (reporting that Petitioner told Pakistani

Parties submitted a volume of Joint EXhibits, which
comprises the vast majority of evidence presented during trial.
Unless otherwise indicated, citations to "JE" refer to the universe
of Joint Exhibits.

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authorities that he went by "Abdullah"). Additionally, Petitioner

purchased a stolen passport while living in Italy. JE 15 at 2.

The name on the passport was Oliver Jean Christian Marie Joseph

Bayart. Mohammed used the name Bayart, in addition to

Abdullah, when being interviewed by American and Pakistani

authorities. JE 53 at 10; JE 16 at 1. The record establishes that

Mohammed used this false name and passport when entering the United

Kingdom. JE 15 at 3. He also relied on this information when he

traveled from London to Pakistan in 2001. ~ at 4.

Petitioner has little to say in refutation of these facts.

The dispute lies in the inferences that parties ask the court to

draw from the facts. ~ Traverse at 35-36; 53-54. Petitioner

insists that "Abdullah" is a kunya, an honorific name commonly used

among people in Middle Eastern cultures. Id. at 35-36. He also

argues that the use of false names and documents was essential for

him to survive as an undocumented alien trying to find work and a

home in Europe. See id. at 37; see also Pet.'s Mot. at 18-19

(explaining Mohammed's intentions to elude immigration authorities

and find work in Europe). When considered in this light,

Petitioner argues that his use of "Abdullah" and the Bayart

passport were not related to any alleged terrorist activity.

The Government maintains that the false names and passports

demonstrate that Petitioner is a deceitful person who was

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accustomed to misrepresenting himself to authorities. In addition,

while there is nothing inherently incriminating about using a

kunya, the Government argues that these names are common among

terrorists, who use them to hide their true identities. ~ JE 11.

Further, Petitioner's admission of adopting ~Abdullah" as a kunya

corroborates other witnesses' identification of Petitioner by that

name. Gov's Mot. at 28-29.

Given that in the years before the attacks of September 11,

Petitioner had regularly used false names and passports in order to

avoid detection while he attempted to live and work in Europe

without legal status, it is doubtful that the fact that he engaged

, in such conduct after September 11 proves anything regarding his

support of al-Qaida.

Petitioner went
See. e.g., JE 15 at 1-2 (explaining how

from Algeria to France to Italy while evading

authorities and working odd jobs). For this reason, Petitioner's

conduct with respect to false names and documents is not alone

sufficient to justify his detention. However, this conduct

certainly demonstrates his willingness and ability to lie to the

authorities and evade compliance with the law when it suited his

purposes. For this reason, the Court will consider this evidence's

significance in light of other allegations as the remaining points

in the Government's case are analyzed.

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2. Attendance at London Mosques

Like the evidence that Petitioner used a kunya at times and

that he submitted false names and passports to authorities, there

is little dispute about the fact that he attended certain mosques

in London after arriving there in 2001. The record shows that

Mohammed frequented the Baker Street Mosque, and also made visits

to the Finsbury Park Mosque, during the several months that he

lived in the United Kingdom. See JE 15 at 2-3 (reporting

Petitioner's admission that he attended Finsbury Park six to seven

times, and Baker Street frequently); see also JE 17 at 2 (same).

The significance of this attendance, from the Government's

perspective, is that these particular mosques served as critical

posts within an al-Qaida recruiting network. The Government argues

that the Baker Street and Finsbury Park Mosques were important

recruiting centers for young Muslims in the United Kingdom. JE 10

at 1; JE 48 at 6; JE 52 at 7 (New York State Office of Homeland

Security report referring to Finsbury Park Mosque as ~a key jihadi

breeding ground"); JE 23 at 3 (describing third-party detainee's

comments that Finsbury Park was recruiting center for jihadists).

In 2003, according to a Defense Intelligence Agency

declaration about the Finsbury Park Mosque, British security

services raided the site and then shut it down after finding links

to terrorist activity. JE 10 at 1; JE 48 at 6. The declaration

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also states that several well-known terrorists with al-Qaida links

attended Finsbury Park Mosque, including attempted shoe-bomber

Richard Reid, convicted September 11 planner Zacarias Mossaoui, and

participants in the July 2005 bombings in London. JE 10 at 1-2. A
radical cleric at the Finsbury Park Mosque, Abu Hamza aI-Masri (aka

Mustafa Kernel) ("Hamza"), served as its imam. British authorities

detained Hamza in 2004. JE 10 at 1; JE 48 at 6.

According to the Government, Mohammed's involvement in this

world, in combination with his illegal entry into the United

Kingdom and later activity in Afghanistan, is probative of his

being part of or substantially supporting al-Qaida and/or the

Taliban. Gov's Mot. at 10-11.

The Government points to evidence that Mohammed frequented the

mosques. See JE 15 at 2-3; see also JE 17 at 2; JE 46 at 5.

Petitioner, according to an intelligence report summarizing his

statements, had become a more devout follower of Islam during his

years in Italy before 2001. JE 15 at 2. Although Mohammed denies

having any relationship with Hamza, the record does show that

Petitioner was familiar with the cleric and heard him speak on at

least one occasion. JE 15 at 3 (reporting that Petitioner told

interviewers, "Hamza talked about how he lost his arms fighting

[j] ihad") i see also JE 44 at 3; JE 33 at 3 (indicating that

Mohammed claimed that he saw Hamza only once); JE 17 at 2 (same).

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Perhaps most importantly, the Government argues, Petitioner's

attendance at these mosques provided entry to the terrorist network

that eventually helped him fly to Pakistan and enter Afghanistan.

Gov's Mot. at 10-11. Through his affiliation with Finsbury Park

Mosque shortly after his arrival in London, Mohammed met and was

befriended by Abdul Rahim. JE 15 at 4; JE 17 at 2. As discussed

below, Rahim allegedly was a recruiter for al-Qaida, Gov's Mot. at

13, and was unquestionably instrumental in arranging Mohammed's

travel to Pakistan and Afghanistan. JE 17 at 3; see also Pet.'s

Opp'n at 18 (suggesting Rahim gave Mohammed a "glimmer of hope" in

suggesting that he travel to Afghanistan) .

Petitioner offers a different interpretation of these facts.

The mosques, according to his account, were simply centers of

worship and community for him. Traverse at 37-39. He attended

Finsbury Park Mosque "about six to seven times total while he was

in London," JE 17 at 2, and then became a "frequent[]" visitor to

the Baker Street Mosque for the remaining few months he spent in

London, JE 15 at 3. Petitioner explained to interrogators that

Baker Street Mosque served cheap food to attendees, which was

important for a man of Mohammed's limited economic means. JE 47 at

3 (reporting that Mohammed testified before the ARB that he "would

eat at [the Baker Street Mosque] because the food was cheap"). He

maintains that he did not seek out the mosques because they

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supported radical political positions; rather, as a new arrival in

the country, he was directed to the Finsbury Park area, where he
found living accommodations and a mosque. Id. at 3; JE 37 at 2.
According to Government intelligence reports, he told interviewers
that he had no interest in the mosques' militant teachings, did not

watch extremist lectures and videos about jihad, and was generally

ignorant of the mosques' status in any terrorist network. JE 44 at

4; see also JE 46 at 2 (quoting Petitioner as telling the ARB,

" [t]here was no sign on the mosque that said extremist mosque").

As with the evidence regarding false names and documents,

details about Mohammed's mosque attendance are not alone sufficient

to justify detention in this case. However, the evidence on this
point may indeed be probative of his ties to terrorist groups when

considered in conjunction with the more serious charges, as

discussed below, which represent the bulk of the Government's case

against Petitioner. Only after analyzing the entire record can the

Court determine whether the inferences that the Government draws

from these facts are well-founded and make it more likely than not

that Petitioner was a member and/or substantial supporter of al-

Qaida and/or the Taliban.

3. Recruitment and Travel to Afghanistan

Based on the record, it is clear that Rahim--the friend whom

Mohammed met through the Finsbury Park Mosque--conceived, planned,

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and funded Petitioner's trip to Afghanistan. JE IS at 4 (stating

that Petitioner said Rahim directed him to meet a man named

Mohammed when he arrived in Pakistan); JE 17 at 2-3. The route

laid out for Mohammed took him first to Pakistan in June of 2001,

and ultimately across the border into Afghanistan to the city of

Jalalabad. Peti tioner does not take issue with these facts;

instead, he insists that he undertook this travel in the hopes of

tracking down the Swedish woman who was willing to marry him so

that he could obtain citizenship and remain in Europe. Pet. ' s

Opp'n at 18-19. Rahim had told him about the woman, about whom no

name or other details are ever provided in the record. Mohammed

had never met the woman and did not know her name. rd. The

Government argues that this explanation is implausible, and is

designed to cast Petitioner's prior activity in a better light as

well as hide his actual terrorist ties that took him from London to

training camps in Afghanistan. Gov's Mot. at 13; 30-34.

Rahim, as the Government points out, exercised a high degree

of control over Petitioner's trip. Rahim initiated the idea of

Petitioner traveling to Afghanistan, then helped him acquire a visa

to enter Pakistan, and paid for his one-way ticket. JE IS at 4.

Petitioner used his fake Bayart passport to enter Pakistan, and

carried with him 250 British pounds. rd.

Rahim told Petitioner to seek out a Moroccan man named

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Mohammed once he arrived in Islamabad, which he then did. Id.; JE

17 at 3. While Petitioner later provided a physical description of

Mohammed to interrogators, he knew nothing more about his contact's

background. JE 17 at 3. Petitioner stayed in Islamabad for one

week before Mohammed paid for Petitioner to take a taxi to

Peshawar, a city closer to the eastern border of Afghanistan. Id.;

JE 15 at 4. Petitioner paid Mohammed sixty British pounds for his

services. The two then went to the house of a man named Abdul

Rahman. Petitioner and Rahman drove Mohammad back to Islamabad,

and then set off for a village near the Afghanistan border. Id.

At that village, Petitioner and Rahman stayed with a friend of

Rahman's for a few days, and then Rahman arranged for their travel

into Afghanistan.

Accounts vary in minor details, but it is clear from

intelligence reports that Rahman purchased a 4x4 Mazda truck

capable of negotiating mountainous terrain, and drove toward the

Afghanistan border. JE 15 at 4; JE 17 at 3 (indicating the Rahman,

Petitioner, and Rahman's driver headed into the mountains). Once

the road become unnavigable by truck, Rahman and Petitioner

proceeded on foot. The two crossed the border into Afghanistan

without showing passports or visas to anyone. Id. Once inside

Afghanistan, Petitioner and Rahman took a taxi to Ja1alabad.

Petitioner told interrogators that "[Petitioner] could not explain

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why Rahman was willing to do this." JE 17 at 3. In Jalalabad, the

two travelers headed to the Arab quarter of the city, where they

ended their journey at the Algerian guesthouse, run by a man named

Abdul Hafiz. Ml..:..: JE 15 at 4. Petitioner paid Rahman fifty

British pounds, and Rahman returned to Pakistan. JE 15 at 4.

Petitioner's self-proclaimed ignorance of who was helping him,

and why they were, at each stage of his travel, in combination with

his handlers' obvious familiarity with shepherding individuals from

Pakistan to Afghanistan, establishes that Petitioner's travel was

indeed facilitated at each turn by someone with access to a network

of contacts in the region.

The Government attempts to demonstrate that this was a

terrorist network, and does so in part by presenting evidence that

the route Mohammed took to the Jalalabad guesthouse was one well-

trodden by other al-Qaida recruits from London. ~ Gov's Mot. at

14-17 (describing details of other detainees' recruitment· and

travel).8 Based on this evidence, the Government argues that the

For instance, Abdenour Sameur (ISN 659), who at one point
admitted to training at Al Farouq, followed a very similar path to
Afghanistan. JE 23 at 2 (detailing layout and personnel at camp);
but see JE 24 at 3 (denying that he was ever at Al Farouq).
Sameur, like Petitioner, is an Algerian who moved from Italy to
London. Once there, he too attended Finsbury Park Mosque. A man
whom he also met through that mosque, Towfiq, recruited him to
travel to Afghanistan. Towfiq sent Sameur to Islamabad first,
where he was instructed to meet with a man named Mohammed.
Mohammed also took Sameur to the Algerian guesthouse in Jalalabad,

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most sensible inference to draw is that Petitioner was being moved

along a terrorist pipeline that led naturally from his recruitment

at radical London mosques to his participation in training and

battle. It is simply unbelievable, in the Government's view, that

he was being shepherded from person to person and country to

country in search of an unnamed and unknown Swedish bride whose

name he did not even know. Nor is there any evidence in the record

that Petitioner had ever been to Sweden or knew a word of Swedish.

Mohammed admitted to interrogators that Rahman knew nothing about

the woman, JE 15 at 4, suggesting that his handlers were not simply

friendly locals who were eager to help Mohammed in pursuing a wife.

Petitioner, again, does not deny either the particular route

that the Government describes, or that Rahim facilitated his travel

from London to Pakistan and then to Afghanistan. Rather, he

explains his travel to Afghanistan as part of his desperate attempt

to meet this unnamed Swedish woman and arrange a marriage that

would allow him to claim European citizenship. Mohammed explains

that ever since leaving Algeria, he had to struggle to find work

which was run by Abu Jaffar. From there, Sameur went on to Al
Farouq. JE 23 at 2;see also JE 38 (travel of Ahmed Bin Saleh (ISN
290)); Gov's Mot. at 14, 16 (detailing similar stories of Binyam
Ahmed Mohammed (ISN 1458) and Sulimane Hadj Abderrahmane (IBN
323)). According to records of the statements that sayab Mutij
Badiz Ahman (IBN 288) ("Bayab") made to interrogators, Abu Jaffar
was in charge of this Algerian guesthouse, and Hafiz was his second
in command. JE 31 at 2.

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and avoid immigration authorities in Europe. He traveled to the

united Kingdom looking for employment, and met a man who gave him

hope--however distant--that there was a way for him to remain in

Europe and avoid being forced back into a "dire" personal and

economic situation in Algeria. Pet.'s Opp'n at 17-19.

The Court cannot, and does not, credit the Petitioner's

reasons for wanting to go to Afghanistan. They are patently

fantastic. While it is not his burden to demonstrate why he

traveled to Afghanistan, when he does offer an explanation that is

so unbelievable, and the Government provides credible support for

its interpretation of Petitioner's motivation, the Court must

choose between the two. See Hamdi, 542 U.S. at 534 ("[O]nce the

Government puts forth credible evidence that the habeas petitioner

meets the . . . criteria [for detention], the onus . . . shift[s]

to the petitioner to rebut that evidence with more persuasive

evidence that he falls outside the criteria."). In this instance,

the Court fully credits the Government's argument that Petitioner

was recruited and traveled via a terrorist pipeline.

4. Guesthouse Stay

Petitioner admits that after being led into Afghanistan by
9
Rahman, he stayed at Hafiz' guesthouse in Jalalabad. See, e.g.,

Source documents provide different spellings of Hafiz'
name. However, based on context and the overwhelming phonetic

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JE 68 at 1. The Government argues that this guesthouse was

associated with al-Qaida, and was run by Hafiz in conjunction with

Abu Jaffar al-Jazeeri ("Jaffar") to facilitate the transfer of

recruits to training camps in the region. Gov's Mot. at 17-19.

Petitioner counters that the record does not clearly demonstrate

that he stayed at any guesthouse associated with al-Qaida, and that

there is no reliable evidence that he used the guesthouse as a way

station for a trip to al-Qaida and/or Taliban training camps.

Traverse at 43-44.

The record establishes that Rahman guided Mohammed to Hafiz'

guesthouse in Jalalabad. JE 17 at 3; JE 15 at 4; see also JE 21

at 1 (interrogation report of Mourad Benchelalli (ISN 161) stating

that he saw Petitioner at guesthouse in August of 2001 before going

off to train and then returning to house). According to statements

that Petitioner himself gave the Government, Hafiz ran the

"Algerian guesthouse" in that city. JE 15 at 4. Mohammed did not

pay for food during his stay at the guesthouse, but did pay Hafiz

twenty British pounds upon departing. JE 17 at 3. Mohammed stayed

at the house twice, initially for two weeks and then for another

three weeks after traveling within Afghanistan for about one month.

similarity of each version of the name, the court finds that the
documents are all referring to a man who operated a house where
Petitioner stayed while in Jalalabad.

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JE 15 at 5. 10

The Government argues that the Hafiz house at which Petitioner

admittedly stayed is in fact the same guesthouse that Jaffar ran to

support al-Qaida recruitment efforts, and it supports its case by

pointing to the statements of other detainees familiar with the

Jalalabad facility.

For instance, Sameur reported to interrogators that he stayed

at a guesthouse for Algerians in Jalalabad. JE 23 at 2. He

claimed that "Abu Jafair" was in charge there, and that Hafiz "was

responsible for holding everyone's personal items." Id.; see also

JE 41 at 5 (reporting that during interrogation of ISN 371,

detainee stated that Hafiz and Jaffar were at guesthouse during

time of his training). Sayab, an Algerian, also told interrogators

that he stayed at the Algerian guesthouse in Jalalabad. JE 13 at

3; JE 31 at 2. He identified Hafiz as "second in command when

[Jaffar] was gone." JE 31 at 2; see also JE 13 at 3 ("Second in

command of the safehouse was Abdul Hafiz."). In Sayab's 2005

account, there were "7 sometimes eight people in the Algerian

guesthouse in Jalalabad" when he was there. JE 31 at 2. The

accounts are detailed, and were recorded as part of Government

10 See also JE 17 at 3-4 (stating that Petitioner stayed at
guesthouse twice, but not specifying length of stays); but see JE
68 at 1 (declaration from Petitioner claiming he was at Hafiz'
house for "about a month," but making no mention of second visit).

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intelligence reports that were created in the regular course of

business. The Court credits them as reliable.

Having pointed to evidence that demonstrates Hafiz' house was

the same facility as the guesthouse that Jaffar operated, the

Government argues that Jaffar's house "provided lodging to j ihadist

recruits who were headed to various al-Qaida associated training

camps ."11 Gov's Mot. at 17.

The Government points out, first, that Suliman Abdul Rahman

(ISN 323) ("Suliman") told interrogators that Jaffar acted as "the

primary point of contact for all Algerians sent to [Afghanistan]"

as part of an al-Qaida and/or Taliban network. 12 JE 35 at 2.

Second, Suliman provided detailed descriptions of Jaffar, and

discussed Jaffar's participation in an al-Qaida pipeline that ran

from London mosques to training camps in Afghanistan. Id. "Field

comments" in Suliman's intelligence report state that Jaffar "was

able to have Algerians and other non-Afghanis transported by the

Taliban to his safehouses, and trained at al Qaida camps." rd.

Suliman told interrogators that Jaffar arranged for him to be

admitted to

11 As discussed below, the Government also links Jaffar to
fighting in the Tora Bora region.

12 Nei ther party argues that this detainee is the same
Rahman who led Petitioner across the border into Afghanistan.

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also JE 7 at 2 (reporting significance of Al Farouq). Third,

Sameur, a detainee who attended Finsbury Park Mosque and traveled

to the guesthouse, said that funds raised at the mosque went to

Jaffar to run the guesthouse. JE 40 at 7-8. He also told

interrogators that occupants of the guesthouse were "encouraged to

attend training in one of the camps," but not "pressured" to do so.

Id. at 8.

In yet another account, a detainee whom the Government report

identifies only as ISN 558 stated that he knew Jaffar as the "emir

of the Algerians in Afghanistan," a man who was "responsible for

getting trainees to the Khalden Training Camp." JE 42 at 3.

Although the Government admits that Khalden was "operationally and

organizationally independent of al-Qaida," Gov's Mot. at 18 n.18,

Id. (citing Defense Intelligence Agency Background Declaration ­

Terrorist Training Camps (JE 7 at 8».

There is additional evidence that men who stayed at the

Algerian Guesthouse went on to train. See JE 21 at 1; PE 2 at 2-3.

In the case of Nizar Sassi (ISN 325), he left the Algerian house in

Jalalabad for the Algerian house in Kabul. There he met a man

named "Abou ((Djafar»" who informed the group that training in one

camp had finished and that they would have to await the opening of

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a new camp or go to another training location. Djafar coordinated

Nizar's trip to Al Farouq. PE 2 at 2-3.

Finally, Binyam Mohamed is reported to have given

interrogators information that suggests the Algerian guesthouse was

involved in terrorist activities. While detained at Guantanamo

Bay, he stated that Jaffar informed guesthouse occupants that Bin

Laden had called for the closing of all but two of the training

camps. As a result, Binyam Mohamed and other recruits dismantled

the camp at which they were training, loaded weapons into a

vehicle, and drove them to "the Algerian guesthouse in Jalalabad

where they were stored in a concrete safe located in the back of

the guesthouse compound." JE 36 at 6;3 Another detainee, Sameur,

also linked the house to weapons, claiming that he was "assigned a

Kalishnikov [sic) while there." JE 24 at 3; but see JE 13 at 3

(reporting that Sayab told interrogators "there were no weapons at

the safehouse") .

Petitioner challenges the Government's claim that Hafiz and

Jaffar operated the same facility in Jalalabad, and also challenges

the related suggestion that his stay with Hafiz suggests terrorist

activity on his part. He also takes issue with the use of any

statements made by Binyam Mohamed.

13
See infra at note 15.

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Petitioner claims that only he and Hafiz stayed in the

Jalalabad house. JE 68 at 1. There is no mention in his 2009

declaration of other guests at the house; in fact, for much of the

month that he stayed there, according to Mohammed, he was there

alone because "Hafi [z] was often away." ~ In Petitioner's other

accounts of his time at the guesthouse, Jaffar is never mentioned.

See JE 15 at 5; JE 17 at 2-3. He argues that other detainees'

accounts of the guesthouse do not mention Petitioner's presence

there, except for Benchalalli. See JE 21 at 1. That account,

Mohammed contends, simply cannot be credited because Benchelalli

was there in August of 2001, at a time when petitioner was

allegedly off at training. Further, Mohammed points to evidence in

the record that suggests that it was not uncommon for guests at

Hafiz' house to encounter few, if any, other people there. PE 2 at

2. This intelligence report describes the guesthouse as a "villa,"

suggesting that it is at least theoretically possible that the

facility was made up of several different buildings and therefore

it was possible for one guest to not have any interaction with

other guests. Id.; see also JE 21 at 1 (describing "safehouse" as

"large structure that was very divided") .

Petitioner's account of his stay at the guesthouse and his

argument that he had no interaction with others in the guesthouse

suffer from a number of weaknesses. First, his declaration claims

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that he stayed alone with Hafiz for a month, was joined there by a

man named "Muthaina," went to Kabul with him, and then returned to

Jalalabad for one month after the events of September 11. JE 68 at

1-2. He makes no mention of the guesthouse during his second stay

in Jalalabad. However, in earlier statements made to

interrogators, Mohammed admitted to staying at the guesthouse

twice, both before and after his trips to Kabul. JE 15 at 4-5

(returning to Algerian guesthouse after little over month in

Kabul); JE 17 at 3-4 (same). The declaration does not explain

whether he returned to the guesthouse, as he claimed he did

earlier. In sum, Petitioner has given inconsistent statements.

Second, in his earlier account of his travels, Petitioner

admitted that he saw others at Hafiz' house. He reportedly told

interrogators that "NOuradin . ., an Algerian" was "one of the

occupants of the Algerian guesthouse." JE 15 at 5. According to

an interrogation in October of 2002, Nouradin arrived at the house

during Mohammed's second stay there. JE 17 at 4. Mohammed must

have been there with at least one additional person as well,

because he stated that he also lived with Muthaina, another

Algerian man. JE 15 at 5; JE 17 at 3 ("Farhi met and lived with

Mothana . at Abdel Hafeez' house.,,);14 JE 68 at 2 (declaring

14 Based on context and the overwhelming phonetic similarity
of each version of Muthaina, the Court finds that the same person

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that Muthaina came to Hafiz' house). These admissions are

inconsistent with his claim that he lived alone at Hafiz' house,

and therefore bolster the Government's evidence that he was part of

the general population of men staying at the Algerian guesthouse.

Despite Petitioner's speculation about the existence of more

than one Algerian guesthouse in Jalalabad, the evidence in the

record shows that he stayed at the same facility that at various

points accommodated groups of men who then went on to train.

Critically, there is evidence that Petitioner's claim that he

stayed there alone is not accurate--others identified him as one of

the group there, and Mohammed admitted to meeting others while

staying there.

In sum, the court finds that the Government has provided

credible evidence that Mohammed arrived at the Jalalabad guesthouse

as part of a recruiting network, and stayed with other individuals

who went on to train with al-Qaida. 15 Petitioner attempts to

discredit the Government's argument by claiming that all of his

travel was undertaken to meet the unnamed, unknown Swedish woman

is being referred to.

15 The Government has provided sufficient evidence on this
point even without the contested statements made by Binyam Mohamed.
Because his testimony is not necessary to prove the factual
allegations regarding guesthouses, the Court will not address
Petitioner's objections to his testimony in this section.

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whom he would marry in order to obtain citizenship. Pet.'s Opp'n

at 18-19. Mohammed insists that this motivation was behind each

step of his journey, from his conversations with Rahim in London to

his willingness to follow strangers into Afghanistan when he

arrived in Islamabad. JE at 17. The Court has already rejected

this explanation in toto.

He maintains that his first transporter in Pakistan knew about

this Swedish woman, but reports that his second (Rahman) did not.

Further, he admi t s that when he got to Haf i z ' house, he was

"embarrassed" to tell his host about the Swedish bride, and so

waited two weeks to do so. JE 15 at 4-5. When he did, Hafiz

allegedly told Mohammed that "she had just left Jalalabad," id.;

according to what Hafiz reportedly told Petitioner, the woman

"travels a lot." JE 17 at 3. AS the Government persuasively

argues, this portion of "the Swedish woman" story is as incredible

as the portion discussed earlier.

Mohammed further explains that he followed the advice of a man

he had just met (Rahim) to fly from London--where he wanted to

ultimately settle--to Pakistan in pursuit of an unnamed Swedish

woman who mayor may not have then agreed to marry him so that he

could obtain citizenship. He accepted the new friend's money in

order to do so. Along the way, he forged his passport, relied on

strangers' assistance, crossed illegally into Afghanistan, and

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found himself in a city where he allegedly knew only one other

person (Hafiz). He would then have us believe that he hesitated

for two weeks in telling that one person the reason that he was in

the city, even though the Swedish woman had been held out to

interrogators and the Court as "the sole reason for his trip" and

the reason for his "glimmer of hope that he could finally obtain

those priceless residency papers." 16 JE 17 at 3; Pet.'s Opp'n at

18; see also JE 47 at 4.

Mohammed's stated reason for going to Afghanistan is entirely

implausible. Further, he provides inconsistent accounts of his

stay at the Jalalabad guesthouse. These findings undermine his

attempts to defeat credible evidence put forth by the Government

that Mohammed lived among al-Qaida supporters while there. The

Government has established that it is more likely than not that he

traveled there as part of a recruiting pipeline. Therefore, the

Court credi ts the Government's evidence regarding Petitioner's

16 Though this argument is not fully articulated by
Petitioner, the Court does not credit the position that Mohammed
was simply being strung along by sophisticated recruiters who
preyed on his naive wish to meet a bride. First, Mohammed never
alleges that Rahim and his network were doing such a thing; instead
he sticks to the story that he was waiting for the Swedish woman,
even after being detained for allegedly supporting al-Qaida and/or
the Taliban. See, e,g., JE 17 at 3 (deciding to wait in Jalalabad
for Swedish woman to return from travels). Second, Rahman, his
second transporter, did not know about the Swedish bride. JE IS at
4. This suggests that it was not a concerted effort by recruiters
to hide the truth from Petitioner.

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earlier conduct, specifically mosque attendance and travel to

Afghanistan with Rahim's assistance.

This Court has already ruled that guesthouse stay may not, in

and of itself, provide an independent basis for detention. ~ Ali

Ahmed, 613 F. Supp. 2d at 64-65 (finding that stay at a guesthouse,

even among al-Qaida members, not sufficient to justify detention) ;

classified op. at 35-39. However, that is not the issue in this

case. Here, the Government has demonstrated that Petitioner stayed

at a guesthouse with links to al-Qaida. It has also shown that he

traveled to that location with the assistance of a network of

individuals tied to al-Qaida, and that he was brought to this

particular guesthouse by those men. Further, while his attendance

at the two London mosques may not, in and of itself, demonstrate

membership in or substantial support of al-Qaida and/or the Taliban

at the time it took place, his subsequent conduct (both using the

recruiters and and relying on their travel guides), when viewed

along with his attendance at the mosques, does demonstrate that it

is more likely than not that the time he spent at those mosques was

the beginning of his journey toward affiliation with al-Qaida.

In sum, Petitioner's story about seeking a Swedish bride in

Afghanistan does not meet his rebuttal burden. As the Court has

noted earlier, "once the Government puts forth credible evidence

that the habeas petitioner meets the criteria [for

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detention], the onus . . . shift[s] to the petitioner to rebut that

evidence with more persuasive evidence that he falls outside the

criteria." See Hamdi, 542 U.S. at 534. Petitioner has failed to

provide persuasive evidence regarding his stay at the Algerian

Guesthouse and the Government has met its burden by far more than

a preponderance of the evidence. This finding does not end the

inquiry.

5. Training

The Government argues that Petitioner left the Jalalabad

guesthouse to train at an al-Qaida camp, and then returned to

Jalalabad before fleeing the country for Pakistan after September

11. Gov's Mot. at 19-24. Its chief support for this argument

consists of the statements of Binyam Mohamed, who told

interrogators at Guantanamo Bay in October and November of 2004

that Petitioner attended a training camp with him. JE 27 at 1; JE

36 at 5; JE 34 at 2.

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Petitioner contends that Binyam Mohamed's statements--the only

other evidence placing Petitioner in a training camp--cannot be

relied upon, because he suffered intense and sustained physical and

psychological abuse while in American custody from 2002 to 2004.

Petitioner argues that while Binyam Mohamed was detained at

locations in Pakistan, Morocco, and Afghanistan, he was tortured

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and forced to admit to a host of allegations, most of which he has

since denied. When he arrived at Guantanamo Bay, Binyam Mohamed

implicated Petitioner in training activities. Pet.'s Opp'n at 11­

13. However, after being released from Guantanamo Bay, he signed

a sworn declaration claiming that he never met Petitioner until

they were both detained at Guantanamo Bay, thereby disavowing the

statements he made at Guantanamo Bay about training with

Petitioner. In that sworn declaration Binyam Mohamed stated that

he was forced to make untrue statements about many detainees,

including Petitioner. JE 60 at " 2-6. Binyam Mohamed stated he

made these statements because of "torture or coercion," id. at , 8,

that he was "fed a large amount of information" while in detention,

and that he resorted to making up some stories. rd. at , 5-6. The

Government does not challenge Petitioner's evidence of Binyam

Mohamed's abuse.

a. The Government's Evidence

The inculpatory statements that Binyam Mohamed made against

Petitioner are contained in intelligence reports based on

interrogations at Guantanamo Bay in October and November of 2004.

See JE 27 (October 29, 2004, interrogation at Guantanamo Bay); JE

36 (November 5, 2004, interrogation at Guantanamo Bay) i JE 34

(same). The Government argues that Special Agent

who had interviewed Binyam Mohamed as early as July 21, 2004, at

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Bagram Air Base, developed a relationship with him that was non-

abusive, and, in fact, cordial and cooperative. Gov's Opp' n at

16-18. It suggests that over time the two built a rapport that

allowed the detainee to voluntarily provide accurate information.

See JE 55 at , 4 (stating that Special Agent . . . . . . . . created 18

interview reports based on many meetings with Binyam Mohamed). The

Government stresses that it relies on these voluntary confessions

given at Guantanamo Bay, and not any statements procured by earlier

alleged mistreatment, in establishing its case against Petitioner.

Gov's Opp'n at 15-16.

In support of its claim that Binyam Mohamed's statements at

Guantanamo Bay were not coerced, the Government offers a signed and

sworn declaration from Special Agent . . . . . . . . stating that the

witness demonstrated a "polite and cooperative demeanor" at Bagram,

JE 55 at , 4; see also id. at , 17 (describing Binyam Mohamed as

"kind, polite, and relaxed"), and was "kind, polite, and relaxed

throughout [their] meetings at Guantanamo," id. at 26. He states

that the witness did not raise any allegation of torture during

these meetings. Id. at , 26.

The intelligence reports that the Government directly relies

on to place Petitioner at a training camp are consistent with

Special Agent characterization of the interrogations.

On October 29, 2004, Binyam Mohamed was interrogated at Guantanamo

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Bay, just after he arrived there from being held in United States

custody in Afghanistan. The report begins by describing various

courtesies extended to the detainee, such as using a traditional

Muslim greeting and offering him coffee. JE 27 at 1. 18 There was

a brief exchange about Binyam Mohamed's health, and "[s] ubject

detainee commented that he was doing well." The meeting

lasted for over two hours, was conducted in English, and was

After this prologue, the report indicates that Binyam Mohamed

was shown a total of 27 photographs of various individuals, and

identified 12 of them. Id. at 2-4. He identified Petitioner by

his kunya, "Abdullah," claiming that Petitioner "trained at the

Algerian Camp with [him] and . . eventually traveled to Kandahar

with to [sic] [him]." rd. at 2. Special Agent _ notes at

the end of his report that the subject was "very cooperative and

18 The report redacts the name of the interrogator.
However, the Court infers for the following reasons that Special
Agent _ conducted the interview and wrote the report. First
the interrogator's employer in the report matches Special Agent
's. Com re JE 27 at 1 to JE 55 at , 1. Second, Special
Agent testified in his declaration that he interviewed
Binyam Mohamed on the date indicated on the report. JE 55 at , 4
n.2. Finally, Special Agenct _ stated that he memorialized
his interviews in intelligence reports after conducting them, JE 55
at 1 4, and the language in the report resembles closely that
language used in the declaration.

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polite," and that he answered questions without betraying "signs of

deception or resistance techniques." Further, Binyam Mohamed "at

many times" spoke freely without being questioned or prompted, and

the information that he provided was deemed to be consistent with
earlier information that he provided, though it does not state

where Binyam Mohamed provided the earlier information. Id. at 4.

On November 5, 2004, Binyam Mohamed again claimed that he

trained with Petitioner. There are two reports in the record from

that date. ~ JE 34 (Summary Interrogation Report ("SIR"»; JE 36

(Intelligence Information Report ("IIR"». Special Agent IIIIIIII
stated that he interviewed the witness on that date, JE 55 at , 4

n.2, although neither report reveals the name of its author, nor of

the interrogator. It may well be that Special Agent _ wrote

the report contained in JE 34, because its content matches his

declaration's description of their November 5, 2004, meeting. 19

In JE 34, Binyam Mohamed claimed that while at training, he

was in a group with Abdullah and two other men. JE 34 at 2.

According to the report, Binyam Mohamed "did not believe that

Abdullah had any purpose" in undertaking the training; he did

19 Further, JE 34 is a SIR. The intelligence community
creates these reports after the interrogation, and they contain all
the details of the session. JE 1 at 7. Special Agentlllllllll's
practice was to write reports directly after his interrogations of
subjects. JE 55 at ~ 4. It appears the he wrote JE 34 consistent
with these practices.

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comment on the motivations of the two other trainees. Id. at 4.

During this session, Mohamed was "cooperative," but appeared

"apprehensive" at having not seen his lawyer. Id. at 1.

The second report based on the November 5, 2004, interview is

contained in JE 36. Binyam Mohamed provided extensive information

about his path to Afghanistan. He stated that "another Algerian

from Italy, Abdullah [,] who was approximately 40-45 years old, came

with two other Moroccans to the camp only three to four days before

it closed." JE 36 at 5. A field comment indicates that Binyam

Mohamed had identified Abdullah as Petitioner. Binyam Mohamed said

that Adbullah and two others (the same men described in another

intelligence report, JE 34 at 2) traveled back to Kandahar after

the close of the camp, along with a man named Elyas. Id. He

expanded on this account of the camp's closing, stating that Bin

Laden had ordered it to be shut down. As a result, trainees tore

down the camp, packed up its weapons, and hauled them back to the

Algerian Guesthouse in Jalalabad, where they were stored in a

concrete safe in the yard. The four men in Binyam Mohamed's

training group were then instructed that they would be sent on to

Al Farouq. Id. at 6-7. In a closing field comment, the report

notes that "the detainee answered all questions without

hesitation." Id. at 7.

The Government maintains that these accounts are detailed and

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consistent, and should be credited as accurate descriptions of

Petitioner's training activity. The information is corroborated by

that gathered from other Guantanamo Bay and Bagram sessions with

Binyam Mohamed where he provided detailed and consistent accounts

of his activity in London and Afghanistan, although Petitioner was

not specifically discussed. See JE 25; JE 26. Further, the

Government argues that Binyam Mohamed was treated well at Bagram

and Guantanamo Bay, where he developed a rapport with Special Agent

_ and provided reliable intelligence to investigators,

including information that comprises the most serious allegations

against Petitioner. Bolstering the Government's claims, Binyam

Mohamed admitted after his release from detention that he did

indeed receive training while in Afghanistan. GE 7 at 9; JE 65 at

Daily Mail 10. This admission, according to the Government, makes

it plausible that he could have seen other individuals, including

Petitioner, while at the camp.

b. Petitioner's Attacks on the Government's
Evidence

The Government's claims of reliability are undermined by the

sworn declaration of Binyam Mohamed that he was brutalized for

years while in United States custody overseas at foreign

facilities. He was then transferred to Guantanamo Bay, where he

was further detained by the United States and where Government

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personnel quickly resumed their interrogation of him, although no

coercive measures were used. These later interrogations yielded

the information that the Government relies on to support several

allegations in this case, the most significant of which is that

Petitioner trained with al-Qaida.

i. Torture Allegations

Petitioner provides sworn declarations from Binyam Mohamed

that indicate he was forced to make untrue confessions while being

abused after United States authorities detained him overseas. JE

65 at 1 (declaring under penalty of perjury on June 9, 2009, that

the attached accounts of his torture "are factually accurate and

accurately describe his treatment"); JE 60 at , 8 (declaring that

he made false statements about himself and others because of the

"torture or coercion [he] was undergoing").

In addition, Binyam Mohamed detailed his mistreatment in

meetings with his attorney, Clive Stafford Smith, in August of

2005. Smith recorded his client's words in a memorandum that

presents Binyam Mohamed's story chronologically, starting with his

detention in Pakistan, following his rendition to Morocco for

eighteen months, his transfer to the "Dark Prison"20 in Kabul, his

imprisonment at Bagram, and then his arrival at Guantanamo Bay.

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See JE 65 at Mem. 1, 2, 4, 16, 19-20. The narrative is at its most

detailed in this memorandum, but has been repeated a number of

times, in whole or in part, by Binyam Mohamed sUbsequent to his

release from united States custody. See JE 65 at Daily Mail; JE 61

(collecting articles). The remainder of this section presents the

harrowing story that Binyam Mohamed has told about his abuse, as

recounted in either Smith's memorandum or the diary he created for

his lawyer in 2005, and repeated since his release from Guantanamo

Bay.

He was initially detained while attempting to leave Karachi,

Pakistan on April 10, 2002. He was planning to return to London,

where he had lived recently. JE 65 at Mem. 2. According to his

account, the Pakistani authorities held him in prison, and gave the

FBI access to him while there. Four FBI interrogators conducted

daily interviews between April 20 and 27, 2002. ~ Just weeks

after his capture, his torture began.

The FBI questioned him about his activities, and, unsatisfied

with his answers, threatened to transfer him to other countries

where he would experience harsher treatment. Then, the FBI agents

would leave the room and Pakistanis entered. They beat him with a

leather strap, and staged a mock execution where a guard pointed a

semi-automatic weapon at Binyam Mohamed's chest for several

minutes, and stood over him motionless. The guard relented, left

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the room, and FBI personnel re-entered the room for further

questioning. Id. at 2-3

Binyam Mohamed told his lawyer that on July 19, 2002, he was

flown from Karachi to Islamabad. He was kept in a cell for the

weekend. On July 21, he was taken to a military airport and turned

over to United States authorities. Soldiers dressed in black and

wearing masks stripped him, conducted a full-body search, and put

him aboard a plane. He was shackled, blindfolded, and made to wear

earphones. Id. at 4. The plane arrived in Morocco the next day,

at a place that he believed to be near the city of Rabat.

At this point in Smith's memorandum, he transcribes undated

entries from a "very rough preliminary edition of Binyam's diary of

his torture." Id. at 4. According to that diary, Binyam Mohamed

was told that the United States wanted a story from him, and that

he had been linked to important figures in al-Qaida, including

Khalid Sheikh Mohammed, Abu Zubaydah, Ibn Sheikh Al Libi, and Jose

Padilla. Id. At the prison, which is described in great detail,

he was confronted by several individuals, each of whom played a

role in eliciting information from him. Id. at 5-6. He claims

that the Americans wanted testimony from him to use in court

proceedings. Id. at 6.

In the first week at the prison, he was questioned repeatedly,

warned that he would experience torture if he did not cooperate,

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and told that the British government knew of his situation and

sanctioned his detention. Id. at 7-8. Throughout the narrative,

Binyam Mohamed conveys dates, physical descriptions of guards and

interrogators, details about his surroundings, and details about

his treatment.

On August 6, his captors began to beat him. With hands cuf fed

behind his back, he was punched in the stomach many times, kicked

in the thighs, and left on the floor, where he vomited and urinated

on himself. Id. at 9. His entry for August 7 begins by stating,

" [t]here was to be no more first[-]class treatment. No bathroom.

No food for a while. I was taken for interrogation."

The guards beat him, then demonstrated sympathy, and then resumed

beatings. Id. at 10. While being beaten, he was fed information

about himself and told to verify it. If he denied it, he was

beaten; he would then confirm the information, and be ordered to

provide more details about it. When he failed to provide more

information, he was again beaten. After a week without any abuse,

he was moved to a room in another location, and introduced to a man

named \\Marwan." Id.

Marwan told Binyam Mohamed to \\give [him] the whole story over

again," and when the witness faltered in repeating information,

watched as three "goons" stepped in to beat him while he was tied

to a wall. Id. He was left hanging from the wall for an hour.

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The men returned and resumed beating Binyam Mohamed; they kicked

his feet out from under him so that his arms were wrenched upward

behind him. They beat him throughout the night, and left him on

the floor the next day. ~ at 10-11. He heard the screams of

others outside his cell, and thought that they were either being

raped or electrocuted; he was kept awake at night by these sounds.

Id. at 11.

According to the diary, his Moroccan captors made it clear

that they were working with the United States. Id. at 11 (stating

that Moroccans sided with "pissed off" Americans, and would do

"whatever [the United States] wants"). Binyam Mohamed was told

that he was suspected of being a "big man" in al-Qaida. Binyam

Mohamed stated that he was willing at this point to say Whatever

his captors wanted him to, which pleased Marwan. Put off by his

satisfaction, Binyam Mohamed mocked Marwan for being Moroccan and

not having intelligence as the British do. rd. at 11-12.

After this exchange, Marwan had Binyam Mohamed tied to a wall.

Three men stripped him of his clothes with "some kind of doctor's

scalpel." The witness claims he feared rape, electrocution, or

castration. rd. at 12. His captors cut one side of his chest with

the scalpel, and then the other. One of the men then "took [Binyam

Mohamed's] penis in his hand and began to make cuts" with the

scalpel as Marwan looked on. Id. at 13. They cut "allover [his]

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private parts" while Binyam Mohamed screamed. He estimates that

they cut him 20-30 times over two hours; "[t]here was blood all

over." Id. He was given a cream from some doctors. This precise

conduct continued about once per month for the 18 months that he

was in Morocco. ~ at 12-13; 16 (describing "routine" cuttings

and use of liquids to burn him). He reports that a guard told him

that the purpose of the scalpel treatment was to "degrade" him, so

that when he left, he'd "have these scars and [he'd] never forget.

So [he'd] always fear doing anything but what the US wants." Id.

at 13.

The captors coached Binyam Mohamed on what to say during

interrogations, according to the diary. He was told that if he

simply repeated in court the information being fed to him, then the

torture would cease. Binyam Mohamed agreed to repeat what he was

told. Id. at 14. He was told to say, among other things, that he

met Bin Laden five or six times, that he advised him on places to

attack, and that he had conferred with Bin Laden's deputies. Id.;

but see JE 65 at Daily Mail 14 (claiming that he told interrogators

he met Bin Laden thirty times). He was given names of people that

he allegedly knew, and told to confess to being "an [a]l[-]Qaida

operations man." JE 65 at Mem. 14.

He was moved again in September or October of 2002 to a new

location in Morocco. His new quarters are described in his diary

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in extreme detail, including a listing of the color of his sheets,

the type of toothpaste he was given, and the brand of soap he was

supplied. For days on end, he remained handcuffed with

earphones on, and loud music was blasted into his ears. This
tactic, as well as others, interrupted his sleep for the whole time

he was in Morocco. rd. at 14-15. This treatment, in Binyam

Mohamed's account, was the beginning of a campaign of mental

torture designed to break him. He claims that his captors put

mind-altering substances in his food, forced him to listen to

sounds from adult films, drugged him, and paraded naked and semi-

naked woman around his cell. rd. at 15.

He wrote that the mental torture led to an "emotional

breakdowns." rd. Throughout this period, he was subject to two or

three interrogations per month. These sessions are described as

being "more like trainings, training [him on] what to say." rd. at

16. He was deprived of all access to the outdoors. He met only

interrogators and guards while in the Moroccan prison.

On January 21 or 22, 2004, Binyam Mohamed and two other

prisoners were put on a plane with United States soldiers dressed

similarly to those who had transferred him to Morocco from

Pakistan. rd. at 16-17. Again they stripped him before

transporting him. Binyam Mohamed recalls that one female soldier

was assigned to take pictures of him. She expressed horror at the

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scars on his penis. Id. at 17.

The diary reports that Binyam Mohamed was taken to the "Prison

of Darkness" in Kabul. He describes the location of his cell, its

proximity to the shower room, and its size ("2m by 2.5m"). Before

being locked in that cell, his head was banged against a wall a few

times "until [he] could feel blood." Id. He was given a thin

blanket, and a bucket to use as a toilet. Binyam Mohamed was

chained to the floor and then locked in complete darkness. He was

"hung up" for two days,21 deprived of sleep, and fed only once over

that period. Id. at 17-18 (stating that his "wrists and hands had

gone numb"). "After a while I felt pretty much dead," he wrote.

Id. at 18.

Guards bombarded his cell with loud music ("Slim Shady and Dr.

Dre" for 10 days) and scary sounds. He was fed inedible food and

weighed every other day. Guards made noises to prevent prisoners

from sleeping. There were infrequent showers and even less

frequent changes of clothes. Id. He told a British newspaper in

2009 that he was shackled often, once for eight days on end in a

position that prevented him from standing or sitting. JE 65 at

Daily Mail 5. While undergoing this treatment, it appears that

Binyam Mohamed attempted to be forthright with CIA interrogators

21 This term is not explained. It may refer to the "hanging
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and renounce the story he had been coached to adopt. This resulted

in his "being chained to the rails for a fortnight." JE 65 at Mem.

at 18. He stated that he tried to tell the truth because "the CIA

interrogators looked understanding." ~ at 18.

He and another prisoner were interrogated regularly. Binyam

Mohamed says the sessions drove other detainees crazy. He heard

these detainees "knocking their heads against the walls and the

doors, screaming their heads off." Id. Binyam Mohamed maintains

that he was fed information about individuals in pictures. When he

tried to be compliant and provide made-up information about the

pictured men, his interrogator was initially happy, but then "did

[his] homework" and threatened to torture him further if he lied

again. They simply wanted him to repeat what they told him to

say. This included an admission of his involvement in a dirty bomb

plot. Id. at 19.

At first, his cell was dark for all but one hour per day.

Gradually, he was allowed more light, until it was dark for half of

the day. Similarly, showers were not allowed initially, but later

prisoners were permitted weekly bathing. Binyam Mohamed at first

received food once every 36 hours. After some weeks, that was

increased to twice per 36 hours, and by May of 2004, he received

tea and bread for breakfast. Eventually, he was given five minutes

per week to spend outside. Id. at 18-19.

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In May, Binyam Mohamed and other prisoners boarded a

helicopter destined for Bagram Air Base. While there, he was

permitted to see the ICRC for the first time. Id. at 19-20.

According to Binyarn Mohamed, the ICRC could not publish his story,

because they had an agreement with the United States to "keep

everything on the hush hush." Id. at 20. At Bagram, Special Agent

_ made him write out his narrative. Part of this story

repeated the lies that he was fed by his captors while in Morocco,

including the story about his involvement with the alleged "dirty

bomber," Jose Padilla. Id.

In October of 2008, the Government dropped allegations that

Binyarn Mohamed was involved in any bomb plot. See Peter Finn, Key

Allegations Against Terror Suspect Withdrawn, Wash. Post, October

15, 2008, available at http://www.washingtonpost.com/wp­

dyn/content/article/2008/10/14/AR2008l01403146.html?hpid=topnews.

ii. Legal Analysis

The United Nations Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment (Article 15), Dec. 10,

1984, 1465 U.N.T.S. 85 ("Convention" or "CAT"), requires that

governments which are party to it "ensure that any statement which

is established to have been made as a result of torture shall not

be invoked as evidence in any proceedings, except against a person

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accused of torture as evidence that the statement was made."22 rd.

The Government has represented that it "recognizes torture to be

abhorrent and unlawful, and unequivocally adheres to humane

standards for all detainees . . . Consistent with these policies

and with the treaty obligations imposed by the Convention on the

United States as a State Party, the [G]overnment does not and will

not rely upon statements it concludes were procured through torture

in the Guantanamo habeas litigation." Resp't's Br. in Resp. To the

Ct.'s Order of Sept. 4, 2009, at 1-2 [Dkt. No. 248] .23

The Government does not challenge or deny the accuracy of

Binyam Mohamed's story of brutal treatment. Rather, it argues that

the Court should not adopt any automatic per se rule requiring

exclusion of the statements he made at Guantanamo Bay because they

were not "tainted" by any mistreatment by Special Agent IIIIIIII,
22 Under the Convention Against Torture, "torture" is
defined as "any act by which severe pain or suffering, whether
physical or emotional, is intentionally inflicted on a person for
such purposes as obtaining from him or a third person information
or a confession . . . when such pain or suffering is inflicted by
or at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity."
CAT, art. 1 (1) .

23 On September 4, 2009, the Court directed parties to
submit additional briefing regarding the admissibility of evidence
procured by torture. Specifically, parties were asked to address
federal and international law concerning: 1) the admissibility of
evidence procured by torture; and 2) the admissibility of evidence
procured from an individual who had been tortured prior to
providing the e vide nce upon w hich an y p arty relies. .

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or anyone else at that detention center. The Government candidly

"acknowledges that there is a dearth of precedent directly on

point," and suggests using existing case law in the criminal area

as a useful, albeit not perfect, analogy. .Id.... at 3. The Court

agrees .24

In the criminal context, confessions or testimony procured by

torture are excluded under the Due Process Clause because such

admissions would run contrary to "fundamental principles of liberty

and justice which lie at the base of all our civil and political

institutions." Brown v. Mississippi, 297 U.S. 278, 286 (1936) .25

Also, as a practical matter, resort to coercive tactics by an

interrogator renders the information less likely to be true.

Linkletter v. Walker, 381 U.S. 618, 638 (1965). Courts must

therefore determine if the confession or testimony was given

voluntarily.

The use of coercion or torture to procure information does not

automatically render subsequent confessions of that information

24 Petitioner claims that "U. S. federal law and treaties and
norms of international law have outlawed torture and applied . . .
a categorical rule of inadmissibility of evidence obtained directly
or indirectly through torture." Pet.' s Mem. of Law Regarding
Admissibility of Evidence Tainted by Torture, at 1 [Dkt. No. 247].
However, none of his citations support such a broad statement.

25 As the Supreme Court eloquently stated, "[t]he rack and
torture chamber may not be substituted for the witness stand."
Brown, 297 U.S. at 285-86.

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inadmissible. United States v. Bayer, 331 U.S. 532, 540-41 (1947).

The effects of the initial coercion may be found to have dissipated

to the point where the subsequent confessions can be considered

voluntary. M....: Oregon v. Elstad, 470 U.S. 298. 311-12 (198S)
(discussing Lyons v. Oklahoma, 322 U.S. 596, 603 (1944)); United

States v. Karake, 443 F. Supp. 2d 8, 86 (D.D.C. 2006). The

Government bears the burden of showing that the confessions are

voluntary. Karake, 443 F. Supp. 2d at 49-50.

To determine if the effects of the earlier coercion have

dissipated--that is, to determine the voluntariness of the

subsequent confessions--courts apply a "totality of the

circumstances" test. rd. at 87. The Supreme Court has ruled that

"the time that passes between confessions, the change in place of

interrogations, and the change in identity of the interrogators all

bear on whether that coercion has carried over into the second

confession." Elstad, 470 U.S. at 310. Further, courts should

examine, inter alia, the age, education, intelligence, and mental

health of the witness; whether he has received advice regarding his

Constitutional rights; the length of detention; the "repeated and

prolonged nature of the questioning"; and the "use of physical

punishment such as the deprivation of food or sleep." Schneckloth

v. Bustamonte, 412 U.S. 218, 226 (1973).

This multi-factor inquiry aims to uncover whether there has

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been a "break in the stream of events . sufficient to insulate

the statement from the effect of all that went before." Clewis v.

State of Texas, 386 U.S. 707, 710 (1967). The test has already

been applied in the context of Guantanamo Bay litigation. See Al

Rabiah v. United States, civ. NO. 02-828, classified op. at 51-52

(D.D.C. September 17, 2009) (finding that Government did not meet

burden of showing dissipation of coercion). The Supreme Court's

framework for deciding whether subsequent confessions are voluntary

is to "determine [] the factual circumstances surrounding the

confession, assess[] the psychological impact on the accused," and

then issue a legal conclusion. Schneckloth, 412 U. S. at 226.

iii. Reliability of Evidence Procured
Subsequent to Torture

Under the framework contemplated by Schneckloth, id., the

Court must assess the reliability of the facts surrounding the

alleged mistreatment. In this case, the account in Binyam

Mohamed's diary bears several indicia of reliability. First, it is

extraordinarily detailed. The diary, written in the witness' own

words, provides approximate dates at multiple points in the

narrative, describes the physical features and conduct of guards

and interrogators, and is consistent throughout several accounts.

Second, the fact that Binyam Mohamed has vigorously and very

pUblicly pursued his claims in British courts subsequent to his

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release from Guantanamo Bay suggests that the horrific accounts of

his torture were not simply stories created solely to exculpate

himself. ~ David Stringer, EX-Gitmo Detainees Sue UK to Make

Evidence Public, The Associated Press, October 27, 2009, available
at http://hosted.ap.org/dynamic/stories/E/EU_BRITAIN_GUANTANAMO

?SITE=FLTAM&SECTION=HOME&TEMPLATE=DEFAULT. His persistence in

telling his story demonstrates his willingness to test the truth of

his version of events in both the courts of law as well as the

court of public opinion.

The record does not indicate whether the evidence procured

under torture includes information related to Petitioner. Binyam

Mohamed insists that it does not, as he did not know Petitioner

until he arrived at Guantanamo Bay in 2004. JE 60. Indeed, the

record of earlier interrogations of Binyam Mohamed does not include

any mention of Petitioner. See JE 73. Significantly, the

Government neither confirms nor denies his account of his abuse

while in United States custody; instead, it focuses on the

allegedly voluntary statements provided to Special Agent IIIIIIII
in the wake of Binyam Mohamed's mistreatment. Gov's Opp'n at 15­

17.

Special Agent _ began his questioning of Binyam Mohamed

at Bagram in July of 2004, just over two months after he was

transferred from the Dark Prison. Following a September transfer

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to Guantanamo Bay, the questioning continued. When considering the

amount of time which has elapsed between the coerced confession and

the sUbsequent one, courts have never insisted that a specific

amount of time must pass before the taint of earlier mistreatment

has dissipated. See, e.g., Lyons, 322 U.S. at 603-04 (twelve

hours); United States v. Shi, 525 F.3d 709, 727 (9th Cir. 2008)

(one day). Indeed, as a legal matter, it has been held that the

effects of earlier coercion could last for nearly one year. See Ai

Rabiah, classified op. at 52 (finding that without Government

evidence to the contrary, effects of torture could poison

confession made nine months later).

A totality of the circumstances inquiry, therefore, cannot be

reduced simply to mechanical computations of time. See

Schneckloth, 412 U.S. at 226 ("The significant fact about all of

these decisions is that none of them turned on the presence or

absence of a single controlling criterion; each reflected a careful

scrutiny of all the surrounding circumstances."). Where one court

has found days to be sufficient to represent a dissipation in the

effects of torture, another may require substantially more time.

This court concludes that the temporal break in this case was not

long enough--given the length of the abuse, its severity, and the

fact that it was targeted to overwhelm the Petitioner mentally as

well as physically--to "insulate the statement from the effect of

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all that went before." Clewis, 386 U.S. at 710.

First, Binyam Mohamed's lengthy and brutal experience in

detention weighs heavily with the Court. For example, this is not

a case where a person was repeatedly questioned by a police

officer, in his own country, by his own fellow-citizens, at a

police station, over several days without sleep and with only

minimal amounts of food and water. See Ashcraft v. State of Tenn.,

322 U.S. 143, 153-54 (1944); Reck v. Pate, 367 U.S. 433, 440-41

(1961) (murder suspect held incommunicado for eight days,

questioned extensively for four, and interrogated while sick).

While neither the Ashcraft nor Reck scenarios are to be approved,

they can hardly compare with the facts alleged here.

The difference, of course, is that Binyam Mohamed's trauma

lasted for two long years. During that time, he was physically and

psychologically tortured. His genitals were mutilated. He was

deprived of sleep and food. He was summarily transported from one

foreign prison to another. Captors held him in stress positions

for days at a time. He was forced to listen to piercingly loud

music and the screams of other prisoners while locked in a pitch-

black cell. All the while, he was forced to inculpate himself and

others in various plots to imperil Americans. The Government does

not dispute this evidence.

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Thus, the physical abuse in this case more closely resembles

the conduct in Brown v. Mississippi, where suspects in a criminal

investigation were brutally beaten, whipped, and exposed to mock

executions in the days before making a coerced confession and being

thrust into the courtroom for a one-day show trial. See 297 U.S.

at 281-85.

Second, the psychological effects of this lengthy and inhumane

treatment also persuade the Court that Binyam Mohamed's later

statements made at Guantanamo Bay must be excluded because they are

tainted by his prior experiences. There is a substantial body of

scientific literature describing the effects of physical and

psychological torture on prisoners. 26

Torture and "enhanced interrogation techniques" employed by

the Government during the War on Terror have been shown to be

"geared toward creating anxiety or fear in the detainee while at

the same time removing any form of control from the person to

create a state of total helplessness." Metin Ba.<;;oglu, M. D., PhD.,

26 See, e . g., Charles A. Morgan III et al., Accuracy of
Eyewitness Memory for Persons Encountered During Exposure to Highly
Intense Stress, 27 Int'l Journal of Law and psychology 265 (2004);
Morgan et a1., Hormone Profiles in Humans Experiencing Military
Survival Training, 47 Biological Psychiatry 891 (2000); Morgan et
al., Consistency of Memory for Combat-Related Traumatic Events in
Veterans of Operation Desert Storm, 154 Am. Journal of Psychiatry
173 (1997).

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et al., Torture vs Other Cruel, Inhuman, and Degrading Treatment:

Is the Distinction Real or Apparent? 64 Archives of Gen.

Psychiatry 277, 283 (2007). Indeed, rates of Post-Traumatic Stress

Disorder ("PTSD") in torture survivors far exceed the rate among

the general population. Physicians for Human Rights, Leave No

Marks: Enhanced Interrogation Techniques and the Risk of

Criminality, 43-44; 43 n.337 (Aug. 2007), available at

http://wwww.physiciansforhumanrights.org/library/documents/report

s/leave-no-marks .pdf (collecting journal articles that report rates

for torture victims higher than 3.6% rate of PTSD among general

population) .

According to a new study about to be published in a peer-

reviewed journal, "prolonged and extreme stress has a deleterious

effect on frontal lobe function," Shane O'Mara, Torturing the

Brain: On the Folk Psychology and Folk Neurobiology Motivating

"Enhanced and Coercive Interrogation Techniques" Trends in

Cognitive Sciences _ (forthcoming) (manuscript at 2), available at

http://download.cell.com/trends/cognitive-sciences/pdf/PIIS1364

661309001995.pdf (published Sept. 24, 2009) ,27

27 Trends in cognitive Sciences is a peer-reviewed
professional journal published in the United Kingdom by Elsevier.
The article cited is written by an Associate Professor in the
School of Psychology at Trinity college Dublin, in Ireland.

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A common consequence of coercive interrogation techniques is

"confabulation," or the "pathological production of false

memories." As the author explains, "[s]tress causes

heightened excitability or arousal in the brain and body.

Experiencing stress causes release of stress hormones (cortisol and

catecholamines . [which] provoke and control the 'fight or

flight' response that, if overly prolonged, can result in

compromised cognitive neurobiological function (and even tissue

loss) in [the prefrontal cortex and hippocampus]." Id. at 1.

Because of these physiological reactions, the brain areas function

improperly, and "both memory and executive functions (intention,

planning[,] and regulation of behavio[]r) can be impaired." rd.

The study specifically addresses the "folk psychology that is

demonstrably incorrect" 28 underlying adoption of enhanced

interrogation techniques. rd. at 1.

The author concludes that "[i]t is likely to be difficult or

perhaps impossible to determine during interrogation whether the

information that a suspect reveals is true: information presented

28 The author concludes that there is no scientific evidence
supporting the neuropsychobiological model underlying the
Government's adoption of coercive interrogation techniques. .ML.. at
1. Quite the contrary--the article concludes that "these
techniques are unlikely to do anything other than the opposite of
that intended by coercive or 'enhanced' interrogation," i.e., to
provide reliable, truthful, and accurate information. Id.

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by the captor to elicit responses during interrogation might

inadvertently become part of the [subject's] memory, especially

because [subjects] are under extreme stress and are required to

tell and retell the same events that might have happened over a

period of years." Id. at 2.

In this case, even though the identity of the individual

interrogators changed (from nameless Pakistanis, to Moroccans, to

Americans, and to Special Agent _ , there is no question

that throughout his ordeal Binyam Mohamed was being held at the

behest of the United States. Captors changed the sites of his

detention, and frequently changed his location within each

detention facility. He was shuttled from country to country, and

interrogated and beaten without having access to counsel until

arriving at Guantanamo Bay, after being re-interrogated by Special

Agent _ . See JE 72 (declaration of Binyam Mohamed's

attorney, Clive Stafford Smith, stating that he did not meet with

client until May of 2005).

From Binyam Mohamed's perspective, there was no legitimate

reason to think that transfer to Guantanamo Bay foretold more

humane treatment; it was, after all, the third time that he had

been forced onto a plane and shuttled to a foreign country where he

would be held under United States authority. Further, throughout

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his detention, a constant barrage of physical and psychological

abuse was employed in order to manipulate him and program him into

telling investigators what they wanted to hear. It is more than

plausible 29 that, in an effort to please Special Agent _

(consistent with how captors taught him how to behave), he re-told

such a story, adding details, such as Petitioner's presence at

training, which he thought would be helpful and, above all, would

bring an end to his nightmare. 30

In Bagram, he wrote that he trained with three Algerians. JE

73 at 1902. When he arrived at Guantanamo Bay and, according to

his subsequent statements, met Petitioner for the first time, he

then reported that one of those unnamed Algerians was in fact

Petitioner. JE 27 at 2; JE 36 at 5. Given the factors discussed

above, the court cannot credit this confession as voluntary. The

earlier abuse had indeed "dominated the mind" of Binyam Mohamed to

such a degree that his later statements to interrogators are

unreliable. Lyons, 322 U.S. at 603; see also Leave No Marks at 117

("The ultimate effect of [employing methods of psychological

control] is to convince the victim that the perpetrator is

omnipotent, that resistance is futile, and that his life depends on

29
See O'Mara, supra at page 66.

30
See Al Rabiah, classified op. at 50.

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absolute compliance.").

In reaching this conclusion, the Court does not doubt the

abilities or experience of Special Agent 1IIIIIIII, nor his account

of his humane treatment of the witness. Rather, based on the

factors discussed above, the Court finds that Binyam Mohamed's will

was overborne by his lengthy prior torture, and therefore his

confessions to Special Agent 1IIIIIIII do not represent reliable

evidence to detain Petitioner.

d. Remaining Allegations Regarding Training

Without Binyam Mohamed's statements implicating Petitioner in

training, the Government's evidence supporting this allegation is

severely weakened.

After three nights there, he

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insists that he returned to Kabul. rd. According to Petitioner,

and

perhaps reflects a misunderstanding by interrogators that he

He notes also

that the training allegations that Binyam Mohamed made involved

different locations than Bagram. Traverse at 45-46.

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Based on this record, the Court cannot credit the one sentence

upon which the Government's claim now rests. As
described above, we do not know who reported the comments regarding

the and therefore it is impossible to assess that

person's reliability. Additionally, the comment is not specific,

and refers to

sustained on this record.

6. Participation in Battle

The Government asserts that Petitioner participated in battle.

This allegation rests only on highly speculative evidence. There

is no eye-witness account of Petitioner engaging in battle.

The Government derives its evidence almost entirely from the

comments contained on one page of an intelligence report from 2005.
In that report, based on an interrogation of Petitioner, the author

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remarks that "detainee admitted to authorities in the

past that he fought on the front lines but is now recanting all of

this with the American interrogators." JE 33 at 4. He also

identified another detainee, ISN 197, by his kunya, "Abdul Haq."

According to the report, "this is interesting because ISN 197 was

only known by this alias while fighting" at Tora Bora. Id. The

Government marshals additional evidence about Petitioner's travel

pattern and his al-Qaida associations in order to buttress its

argument.

The Court finds that the Government has not shown that it is

more likely than not that Petitioner fought. The reported

statement about Petitioner's admission to authorities is

not reliable, as it represents multiple levels of hearsay: the

Court cannot ascertain who the authorities are who

allegedly received this information from Petitioner, nor to which

United States official the information was then sent or

transmitted.

As for the identification of Abdul Haq, Petitioner provides

declarations from ISN 197 and his brother, in which the two claim

that ISN 197 only adopted the kunya Abdul Haq after arriving at

Guantanamo Bay. JE 66; JE 67. If true, this would contradict the

intelligence report's assertion that ISN 197 only used that kunya

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at Tora Bora. The Government supports this assertion by pointing

to an intelligence report where a detainee identifies ISN 197 as

Abdul Haq, the name by the detainee knew ISN 197 "while he was in

Afghanistan." JE 39 at 1. Even if the Government's evidence is

credited so as to resolve this dispute in its favor, that

establishes that ISN 197 and his brother lied about using the kunya

only at Guantanamo Bay. It would not establish that ISN 197never

used the kunya at Guantanamo Bay. In short, there is no reliable

evidence that ISN 197 used the name Abdul Haq only at Tora Bora, as

the comments in JE 33 insist, and so Petitioner's identification of

ISN 197 is not probative of whether or not Petitioner fought at

Tora Bora.

The Government's reliance on comments in one intelligence

report cannot sustain this allegation. No witness places

Petitioner in battle, and no other evidence corroborates that

Petitioner made the comments attributed to Petitioner. The

Government's evidence regarding Petitioner's travel pattern, his

associations, and his alleged encounter of Bin Laden while passing

by a funeral in Kabul, JE 15 at 5, does not meet its burden to show

that it was more likely than not the Petitioner participated in

battle.

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IV. CONCLUSION

The Government has consistently urged the Court not to examine

in isolation individual pieces of evidence presented in the habeas

cases emanating from Guantanamo Bay, but rather to evaluate them

"based on the evidence as a whole" in determining whether the

allegations, when viewed together, support a conclusion that

Petitioner has been justifiably detained.

After considering the evidence as a whole, the Court rejects

the Government's conclusion. While the mosaic approach can be a

useful tool, the evidence must also be carefully analyzed--major­

issue-in-dispute by major-issue-in-dispute--since the whole cannot

stand if its supporting components cannot survive scrutiny.

The facts of this case demonstrate the need for this

analytical approach. Here, the Government has clearly proven, by

far more than a preponderance of the evidence, that Petitioner

traveled extensively in Europe, both before and after September II,

2001, by using false names, passports, and other official

documents. It has also proven, by far more than a preponderance of

the evidence, that while in London Petitioner attended mosques

which were well known to have radical, fundamentalist clerics

advocating jihad. At one of the mosques he met a recruiter who

then paid for and arranged his trip to Afghanistan along routes

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well-traveled by those wishing to fight with al-Qaida and/or the

Taliban against the United States and its allies. Finally, the

Government has also proved, by far more than a preponderance of the

evidence, that once Petitioner arrived in Afghanistan he stayed at

a guesthouse with direct ties to al-Qaida and its training camps.

But the Government's evidence fails to prove anything more.

The Government has failed to provide reliable evidence that

Petitioner received any training in weaponry or fighting, or that

he engaged in actual fighting of any kind on behalf of al-Qaida

and/or the Taliban.

The question then becomes whether, under Gherebi and Hamlily,

the Government's evidence meets the standard for detention.

Analyzing those two cases, the court concludes that

Petitioner's conduct does not meet the legal standard for

detention. In determining whether Petitioner was a member or

substantial supporter of al-Qaida and/or the Taliban, or associated

forces, the Court must consider whether he was a "member[] of the

enemy organization's armed forces, as that term is intended under

the laws of war." Gherebi, 609 F. Supp. 2d at 70-71. Both

substantial supporters and members of al-Qaida and/or the Taliban

must have occupied a role within "the military command structure of

an enemy organization." Id. at 70. A key indicator of such a role

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is receiving and executing orders from the enemy force's "combat

apparatus." Id. at 69. In determining who is "part of" al-Qaida

and/or the Taliban, "[t]he key inquiry, then, is not necessarily

whether one self-identifies as a member of the organization . . .

but whether the individual functions or participates within or

under the command structure of the organization--i.e., whether he

receives and executes orders or directions." Hamlily, 616 F. Supp.

2d at 75. 31

In this case, there is no evidence to show that it is more

likely than not that Petitioner received and executed orders from

the command structure of al-Qaida or that he was part of the enemy

force's "combat apparatus." Petitioner had simply not yet reached

that point in his journey to become a part of al-Qaida. The

Government has provided credible and reliable evidence that he

attended radical mosques in London, that he met a man named Rahim

31 Nor is actual fighting on a battlefield required. See
Gherebi, 609 F. Supp. 2d at 69 ("[T]he armed forces of the enemy
consist of more than those individuals who would qualify as
'combatants' in an international armed conflict.") (citing
International Committee of the Red Cross ("ICRC") commentary on
Third Geneva Convention). "Thus, an al-Qa[i]da member tasked with
housing, feeding, or transporting al-Qa [i] da fighters could be
detained as part of the enemy armed forces notwithstanding his lack
of involvement in the actual fighting itself . . . . " rd.; see also
id. at 68 (reasoning that "[s] ympathizers, propagandists, and
financiers who have no involvement with th [e] 'command
structure[] '" are not part of armed forces, and therefore can only
be detained if they engaged directly in hostilities) .

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who coordinated and funded his travel to Pakistan, that he was

shepherded from Pakistan to Afghanistan by Rahim's contacts via an

established corridor for transporting al-Qaida recruits, and that

he stayed at a guesthouse that linked these recruits with training

camps.

While these facts demonstrate that Petitioner was exposed to

radical, anti-American rhetoric at mosques in London, and that he

traveled to Afghanistan with the assistance of an al-Qaida­

affiliated network, there is no evidence that Petitioner took

orders from that network or from any "combat apparatus." Training

may have been encouraged by guesthouse operators, but there is no

evidence that it was required or ordered. JE 40 at 8. In short,

at the point in his journey where the Government's evidence fails,

Petitioner had not yet acquired a role within the "military command

structure" of al-Qaida and/or the Taliban, nor acquired any

membership in these enemy forces. One who merely follows a path,

however well-trodden, from London to Afghanistan and ends up

staying in an al-Qaida-affiliated guesthouse, cannot be said to

occupy a \\ \ structured' role in the \ hierarchy' of the enemy force."

Gherebi, 609 F. Supp. 2d at 68.

Admittedly, there is a preponderance of evidence indicating

that Petitioner was prepared to join al-Qaida and/or the Taliban,

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and that he set out for Afghanistan with the intention of doing so.

But Mohammed did not actually join or substantially support enemy

forces simply by virtue of his attendance at the two mosques,

recruitment, travel, and guesthouse stay.

Sliti v. Bush, 592 F. Supp. 2d 46 (D.D.C. 2008), upon which

the Government relies, is therefore distinguishable. In that case,

the petition for habeas corpus was denied because petitioner

"traveled to Afghanistan as an [al-Qaida] recruit and trained at

the local military training camp proximate to the Tunisian

guesthouse in Jalalabad." ~ at 51 (emphasis added). The case

does not support the proposition that mosque attendance,

recruitment, travel, and guesthouse stay alone are sufficient bases

for detention.

Whether or not one believes that Petitioner was a potential

danger to the security of this country, or whether or not one

speculates that Petitioner would have attended a training camp and

then fought with al-Qaida and/or the Taliban if the opportunity

presented itself, is not relevant. The legal issue to be decided

is whether--based on the actual evidence presented--that evidence

satisfies the standard set forth in Gherebi and Hamlily for

determining whether Petitioner, at the time of his capture, was a

member or substantial supporter of the terrorist organizations

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fighting against the United States and its allies. At the point at

which he was detained, those requirements had not yet been met,

even though they might well have been satisfied at some future

time. In short, Petitioner may well have started down the path

toward becoming a member or substantial supporter of al-Qaida

and/or the Taliban, but on this record he had not yet achieved that

status.

Mindful of the limitations on the scope of the remedy in this

situation, see Kiyemba, 555 F.3d at 1024, the Court further orders

the Government to take all necessary and appropriate diplomatic

steps to facilitate Petitioner's release forthwith. Further, the

Government is directed to comply with any reporting requirements

mandated by the Department of Homeland Security Appropriations Act,

2010, Pub. L. No. 111-83, 123 Stat. 2142 (2009), if applicable, to

facilitate Petitioner's release, and to report back to the Court no

later than December ~ 2009, as to the status of that release and

what steps have been taken to secure that release.

November L[, 2009
Judge

Copies to: Attorneys of Record via ECF

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OP COLUMBIA

PARRI SAEED BIN MOHAMMED,
et. a1.,

Petitioners,

v. Civil Action No. 05-1347 (GK)

BARACK H. OBAMA, at. al.,

Respondents.

ORDER

For the reasons set forth in this Court's Classified

Memorandum Opinion of November/~, 2009, it is hereby

ORDERED, that Petitioner Farhi Saeed Bin Mohammed's petition

for a writ of habeas corpus is granted; and it is further

ORDERED, that the Government take all necessary and

appropriate diplomatic steps to facilitate Petitioner's release

forthwith. Further, the Government is directed to comply with any

reporting requirements mandated by the Department of Homeland

Security Appropriations Act, 2010, Pub. L. No. 111-83, 123 Stat.

2142 (2009), if applicable, to facilitate Petitioner's release, and

to report back to the Court no later than December/~, 2009, as to

the status of that release and what steps have been taken to secure

that release.

November/~, 2009

Copies to: Attorneys of Record via ECF
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