FILED WITH THE
COURT SECURITY OFFICER
g~~~:~"
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ALLA ALI BIN ALI AHMED,
et al.,
Petitioners,
v. Civil Action No. 05-1678 (GK)
BARACK H. OBAMA, et al.,
Respondents.
MEMORANDUM OPINION
Petitioner AlIa Ali Bin Ali Ahmed ("Ali Ahmed" or "the
Petitioner") has been detained since 2002, when he was a teenager,
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. The Petitioner disagrees, denies
that he has ever engaged in such activi ties, 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. 183 and 189]. Upon consideration of the
Motions, the Oppositions, extensive oral argument, and the entire
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record herein, Ali Ahmed's habeas corpus petition and Motion are
hereby granted.
I . BACKGROUND
A. Procedural History
Petitioner filed his habeas corpus petition on August 22, 2005
[Dkt. No. 1J. After filing I 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
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the legality of the detention are
instance by the District Court. ") .
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to be resolved in the first
Nor did the Supreme Court lay
down specific procedures for the district courts to follow in these
cases.
Boumediene was, however, definitive on at least two points:
first, that the detainees are entitled to a prompt hearing, 128
S.Ct. at 2275 ("The detainees in this case 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
within 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. l.]. 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
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Dkt. No. 152. -
Much pre-hearing activity has taken place under this Court's
Case Management Order. The Government has filed the exculpatory
evidence, automatic discovery, and additional discovery required
under the CMO. The Government filed its Amended Factual Return on
October 10, 2008, and amended it again on December 11, 2008. The
Petitioner responded with his Traverse on March 12, 2009. After a
period of extensive discovery, both parties fi led substantial
briefs accompanied by extensive exhibits.
On January 21, 2009 [Dkt. No. 129], the Court set April 14,
2009, as the date for the "merits hearing" on the Cross-Motions for
Judgment on the Record. The hearing was continued to April 16,
2009. Less than a week before the original date for the hearing,
and just before the Easter weekend, the Government informed
Petitioner's counsel early in the day of April 9, 2009, and
informed the Court later that afternoon at the Pre-Trial
Conference, that it would be turning over to the Petitioner
approximately 2000 pages of "newly available" material potentially
related to the hearing. Over the holiday weekend, the Government
refused to tell Petitioner's counsel whether the last-minute
submission was either "inculpatory or exculpatory. II Tr. at 15, 19,
21 (Apr. 16, 2009).
The Government did not make clear at what point in time these
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materials came into its possession. -
What is clear is that they
were packaged into a Factual Return and produced them in another
petitioner's case on April 3, 2009. rd. at 18. The Government
provided these materials to a second detainee's counsel on April 7,
2009. rd. at 19, 27. Yet nothing was made available to
Petitioner's counsel until April 10, 2009. On April 13, 2009, the
Government submitted a subset of these documents to the Petitioner
and the Court, referring to it as a Supplement to the record (Dkt.
No. 205].
On April 14, 2009, Petitioner moved to strike this Supplement
[Dkt. No. 207J. The Government claimed that it had pointed out to
Petitioner's counsel information that related to Petitioner in the
form of a roughly 200-page Supplement that pared down the larger
filing (the "needle (in the haystack] ," according to the
Government), and that logistical challenges related to compiling
factual returns made late production unavoidable in this case. Tr.
at 18-22 (Apr. 16, 2009).
The Court granted the Motion to Strike on the grounds that
there was no way that Petitioner could have carefully examined even
the pared-down Supplement at the last minute while preparing for
this Merits Hearing, nor could counsel have done any independent
investigation of what was in the materials even if he had been able
to read them all. The Supplement was not admitted as part of the
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record.
II. STANDARD OF REVIEW
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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.
152-2]; see also Basardh v. Obama, No. 05-889, slip op. at 10 n.12
(D.D.C. Apr. 17, 2009).
Initially, the Government took the position that Article II of
the Constitution and the AUMF granted the President the authority
to detain individuals. See Gherebi v. Obama, 2009 WL 1068955, at
*8, *8 n.4 (D.D.C. Apr. 22, 2009). The Government asserted, "[a]t
a minimum, . the ability to detain as enemy combatants those
indi vidual s 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 ~egal Justification For Detention
at 2 [Dkt. No. 103].
since the change in administration, the Government has
abandoned Article II as a source of detention authority, and relies
solely on the AUMF. Id. at *8 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
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those attacks.
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11, 2001, and persons who harbored those responsible for
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.
174J .
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 allegedly 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 substantial
supporter of the Taliban and/or al-Qaida.
The Government requested that a rebuttable presumption of
authenticity be granted to all the exhibits it intends to
introduce. Given its representations that the specific documents
included in its case against Petitioner, as well as the documents
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provided to Petitioner's
maintained in the
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counsel in discovery,
ordinary course of business, the
have all been
Court will
presume, pursuant to Fed. R. Evid. 803(6), that its documents are
authentic. 1 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. This 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 the exhibits
submitted at the merits trial, it is clear that the accuracy of
much of the factual material contained in those exhibits is hotly
"[T)he 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
Evidence § 221 (6th ed.). See also 5 Christopher B. Mueller and
Laird C. Kirkpatrick, Federal Evidence § 9.2 (3d ed.) ("rA] court
called upon to resolve a dispute should not (at least in the
absence of special circumstances) assume that a matter offered in
evidence is what it appears on its face to be, or what the offering
party claims it to be, but rather should require that party to
establish by formal proof of some sort the identity or nature of
the matter in question."
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contested for a host of different reasons ranging from the fact
that it contains second- and third-hand 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.
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. Those final judgments will be based on a long, non
exclusive list of factors that any 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 testified to, levels of
hearsay, recantations, etc.'
Denial of the Government's request for a rebuttable
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
;1 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
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craft appropriate procedures. Boumediene, 128 S.Ct. at 2272.
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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
" (aJ 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 six 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, "[t]he probity of any
single piece of evidence should be evaluated based on the evidence
as a whole, 1/ to determine whether, when considered "as a whole 11/
the evidence supporting these allegations comes together to create
a "mosaic" that shows the Petitioner to be justifiably detained.
Gov's Mot. For J. Upon the Administrative R. and Mem. in Supp. at
2 (internal citation omitted) ("Gov's Mot."); see also Tr. at 46
(Apr. 16, 2009) (describing mosaic theory). The Government argues,
in this case and others, that "the evjdence meshes together to
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Executive to detain him.
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demonstrate" that the Petitioner engaged in conduct that allows the
Gov's Mot. at 24.
The Court understands from the Government's declarations, and
from case law,3 that use of the mosaic 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, and
certainly cannot govern the Court's ruling.
Even using the Government's theoretical model of a mosaic, it
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
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
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omitted) .
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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.
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. 4 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 existing evidence must be weighed and evaluated
as to its strength, its reliability, and the degree to which it is
corroborated. In any event, the Government bears the ultimate
burden of showing by a preponderance of the evidence that
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 neat answers to every factual question posed by the
Government does not relieve the Government of its obligation to
satisfy its burden of proof.
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No witnesses testified at the Merits Hearing.
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C. -
The Government's Witnesses
The Government's chief pieces of evidence are the statements
made by four witnesses, who are or have been detained at Guantanamo
Bay. The Government is not relying on any incriminating statements
made by the Petitioner. For the Government to prevail, it must do
so based largely on the strength of evidence provided by the third-
party witnesses. The Court will first examine the reliability of
each of those four witnesses, and then turn to the Government's
specific allegations.
1. ISN_
The Government relies on the testimony of
, an individual whose credibility has been
cast into serious doubt -- and rejected -- by another Judge in this
District. Gharani v. Bush, Civ. No. 05-429, classified slip op. at
(emphasis in original) The Court agrees with Judge Leon's
assessment. Although the Government tries to establish the
statements and distinguish this case from
Ali Ahmed.
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Pe t. Ex . 56-
Second, his inculpatory testimony is merely that he "overheard"
at 1- 2 .
conversations
Afghanistan.
does not
at
Gov. Ex. 26
identify who
_FM
Guan~anamo
made
Bay
these
about Ali Ahmed's travels
40 (Jan. 5, 2005)) at 11.
statements and under
in
He
what
circumstances, or any details of the conversation. In addition to
coming from an unreliable witness, the inculpatory statement
offered by the Government is based upon mUltiple levels of hearsay.
Finally,
, has made accusations against a number of detainees at
Guantanamo Bay. Many of those accusations have been called into
question by the Government. See, e.g., Factual Return at ~32 n.4
that describes
credibility with interrogators as "in question"); but see id.
In sum, he has shown himself to be an
unreliable source whose statements have little evidentiary value,
and that assessment is confirmed by the double-hearsay and lack of
detail in his statement, as discussed supra.
2. ISN_
The Government also offers statements made by
This detainee twice said that he
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The first
Petitioner and
Ex. 25 at ~2.P. The second
degree of
reliability because it Gov. Ex. 4 at
4. In a third interrogation/the witness denied knowing "anyone./I
Pet. Ex. 83 IIIIIIIIICITF Report (Sept. 23/ 2003» at 1. It is very
dif ficul t to assess the recantation of hi s two _
At best, it appears that the detainee was being
totally uncooperative. See id. at 1.
However / and most importantly statements / in and
of themselves, are equivocal and lacking in detail or description.
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This type of evidence, riddled as it is with equivocation and
speculation, is similar to what the Court of Appeals found to be
2008).
.. statements are not entitled to significant weight .
3. ISN.
responded that the
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IIIIIIII FM 40
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saw when he was being smuggled from Zurmat to Banu."
(Nov. 8, 2002)) at 3.
Gov. Ex. 23
Zurmat is in Afghanistan and
Banu is in Pakistan.
Gov. Ex. 24
There is no explanation of
coming from or how the witness knew
him. The unnamed author of the intelligence report described
as having trained at Al Farouq, and then fleeing to
pakistan when the United states attacked. rd. at 1. The author
also characterizes the witness' reliability as
Gov. Ex. 3 at 1-2.
Peti tioner counters that statements are unreliable.
He points first to the fact that the witness has been diagnosed by
military medical staff as having a "psychosis." Pet. Ex. 101
(Detainee Medical Profile Flowsheet).6 Given the fact that there
6
It is very troubling that Petitioner learned of the
witness' medical condition only through the diligent work of his
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or treatment of this condition,
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are no details in these documents, such as duration, seriousness,
the Court does not give them a
great deal of weight, although a witness' mental health always has
some relevance to his reliability.
When, in October of 2003, the witness of
detainees captured at he did not identify the
Petitioner; rather, he claims that he did not know any of the men
until he arrived at Guantanamo 'Bay.? Pet. Ex.
CITF Report (Oct. 4, 2003)) at 1.
Along with this background of mental health problems (limited
as that information is) and inconsistent identifications, there is
evidence that _ underwent torture, which may well have
affected the accuracy of the information he supplied to
counsel, and not as a result of the Government I s obligation to
provide him exculpatory information about the statements upon which
the Government relies in justifying detention. See CMO at § I.D.l.
Petitioner's counsel obtained this information when
counsel turned over the document to him. It appears that
counsel was able to retrieve the medical records only by
resorting to a FOIA request. Tr. at 106 (Apr. 16, 2009).
7 The Court, inquired as to whether there i s ~
that the Petitioner was included among the detainees ..............
liliiii Tr. at 114 (Apr. 16, 2009). The Government had no evidence
establishing that he was or was not part of the
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interrogators. 1IIIIIIII -
spent time at Bagram and the Dark Prison,
and alleges that he has been tortured. Pet. Ex. 86 (Declaration of
) at ~~8i 12-14.
The witness has also recanted his story that another detainee
took the trip with him from Zurmat to Banu. Pet. Ex. 88 IIIIIIII
CITF Report (July 25, 2003)) at 2. He claims that he made
inculpatory statements against that detainee because he
feared further torture. Pet. Ex. 88 at ~14. The Government claims
that the "residual fear" of torture had been overcome by June of
2004, when he identified Petitioner Gov. Ex. 3;
Tr. at 152 (Apr. 16, 2009), since he had already, back inlllllllll
IIIIIIIIIbeen unafraid to tell his interrogators that he had given
them bad information in the past, Pet. Ex. 87.
Based on two of these interrogations
_ -- one where he was honest with authorities about being
uncooperative and one where he again identified the Petitioner -
the Government asks the Court to assume that his alleged
mistreatment at several detention centers was effectively erased
from his memory. The Government has presented no evidence to
dispute the allegations of torture at Bagram or the Dark Prison.
See, e. g., Tim Golden, In D.. S. Report, Brutal Details of 2 Afghan
Inmates' Deaths, N.Y. Times, May 20, 2005,
http://www.nytimes.com/200S!OS!20/international/asia/
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20abuse.html#.
IIIIIIII claimed
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Nor has the Government presented any
to be unaffected by past mistreatment.
eV~dence that
Therefore,
the Court cannot infer that past instances of torture did not
impact the accuracy of later statements.
4. ISN.
The Government alleges that a statement made
demonstrates that Ali Ahmed
received military training. _ identified _ from a
photograph shown to him at Bagram. The intelligence report says
that Al-Qahtani stated, "191 -liliiii received military training in
Afghanistan near Kabul." Gov. Ex. 1 (IIIIIIIISIR (June 17, 2002))
at 9. The reliability of this identification is discussed in depth
infra, at Part III.D.2.
D. Government Allegations
The Government rests its case on the totality of evidence
encompassing six maj or disputed factual issues: the Petitioner
fought in Afghanistan, trained in Afghanistan, used the kunya
_ traveled in Afghanistan with al-Qaida and/or Taliban
members, stayed at with al-Qaida and/or Taliban members,
For his part, Petitioner claims to have gone to Pakistan
before the attacks on September 11 (and the Government no longer
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challenges that particular fact)
school at which to study the Koran.
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in order to find a
He denies
religious
ever going to
Afghanistan, training at an AI-Qaida camp, fighting against anyone,
or being a member of a terrorist group. Traverse at 1-2, 25-27;
Gov. Ex. 8 (ISN 692 FM-40 (July 30, 2003)) at 2 (reporting that
Petitioner denied ever traveling to Afghanistan); Tr. at 38 (Apr.
17, 2009). Ali Ahmed admits that he was staying at a
guesthouse for Yemenis in Faisalabad, Pakistan, where he was
arrested in March of 2002. Gov. Ex. 43 (ISN
see also Pet. Ex. 11 at 3 ( "NOTE: in
the files of those captured with the source, he is mentioned but
not well-known by any of the others with him at the
The Government's argument challenges a number of facts in
Petitioner's story, attempts to demonstrate that his explanation
For these allegations, the Court
that the Government makes about the
Such a finding is not a
substantive ruling on the alleged activities of these detainees,
all or some of whom have habeas petitions pending in this District
Court.
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and that Petitioner's lies
about certain facts cast doubt on his entire explanation of his
activities and whereabouts.
1. Participation in Battle
The most serious charge leveled by the Government is that
Petitioner joined al-Qaida and/or the Taliban in battle against the
United States and/or coalition forces. If proven, this fact alone
would almost certainly justify Ali Ahmed's detention. The
Government does not base the charge on a hearsay confession made by
Petitioner; in fact, he denies involvement in any terrorist
activity whatsoever. Traverse at 25-27. Nor does the Government
base this charge on direct allegations made by third parties. The
Government admits it has presented no evidence stating that Ali
Ahmed has participated in battle. Pet. Ex. 6 (Requests for
Admission) at ~41; Resp't's Factual Response Statement at ~~28-29,
31 [Dkt. No. 198]; Tr. at 22 (Apr. 17, 2009).
Rather, the Government asks that Ali Ahmed's participation in
battle be inferred from a web of statements made by witnesses who
were commenting on Petitioner's non-military activity. The
Government urges the court to adopt its theory that because
witnesses it offers as credible claim that Petitioner had military
training, went to Afghanistan, and then traveled with and stayed in
the company of al-Qaida fighters, and because Ali Ahmed's denial of
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such behavior is not credible,
Petitioner fought with al-Qaida.
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it is more likely than not that
Tr. at 15-16 (Apr. 17, 2009).
The Government's position on this charge rests on its mosaic
theory. The theory cannot support the charge.
First, it is extremely significant that there is absolutely no
"direct" evidence, at whatever hearsay level, of Ali Ahmed's
participation in battle. The Government has not pointed to any
statement in the record that directly accuses the Petitioner of
fighting. Tr. at 22 (Apr. 17, 2009). This weighs heavily with the
Court.
Second, assuming for the moment that the patchwork of evidence
woven together by the Government is suggestive of the fact that Ali
Ahmed's version of the events is not accurate and that he did
travel with al-Qaida and/or Taliban fighters, it still falls far
short of establishing the more serious charge that he took up arms
in support of al-Qaida and/or the Taliban. Given the gaps in the
evidence, the Government must do more than rely on evidence of
associations to support the inference that Ali Ahmed actually
fought in battle.
Even if the evidence is to be believed that Petitioner's story
is false and that he was in Afghanistan, there simply is nb
affirmative proof that he took up arms. The Court will not make
the leap that the Government does, that simply because he was in
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Afghanistan, he was there to fight.
Similarly,
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assuming that the Government's evidence of Ali
Ahmed's time in Afghanistan is reliable, it does not represent
strong enough evidence from which to infer that he participated in
the fighting. Although Petitioner
would contradict Petitioner's explanation of his
whereabouts at the relevant time, it is not per se evidence of
wrongdoing. Likewise,
several steps removed
from proof that he actually fought
Even if one assumes, arguendo, that Ali Ahmed was indeed in
9
Afghanistan, Petitioner argues that one reason he may have
traveled with certain people is because of the chaos in the area as
thousands attempted to flee a war-torn country. There is ample
evidence in the record that Afghanistan was in chaos during this
period, and that legions of people were trying to cross the border
into Pakistan in order to flee the violence. Pet. Ex. 82
at 2 (describing thousands of refugees in
Khowst, Afghanistan) ; Pet. Ex. 105 at
~~A.4-5. Given this reality, it may indeed be the case that a
~ Government often accuses the Petitioner of
lIIIIIIIIIIIIIand therepy conceding the accuracy of certain facts,
when all counsel is doing is arguing in the alternative. This
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legitimate, oft-used strategy does not concede or waive any issues.
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young Arab man sought the company of those individuals with whom he
shared a common language, religion, and culture, and that he may
have gone on to stay with these same men upon arriving back a ~
I11III. The bottom line is that even if Ali Ahmed lied about being
in Afghanistan, that fact is not a sufficient basis for leaping to
the conclusion that he fought with al-Qaida and/or the Taliban.
2. Training
There is one direct piece of evidence in the record, allegedly
"corroborated" by other witness' statements,
Ali Ahmed received military training in Afghanistan.
the source of the statement, which is reported as,
_s
that indicates that
"191 - _
received military training in Afghanistan near Kabul." Gov. Ex. 1
at 9. The Government argues that this evidence, in combination
with other witnesses' statements that place the Petitioner in
Afghanistan and in the company of al-Qaida fighters, demonstrates
that Ali Ahmed did indeed receive military training.
There are significant questions about the reliability and
accuracy statement. The nine-word hearsay
allegation made byllllllllllllboes not describe the training with
any specificity. For example, there are no details about which
camp the training took place at, how long that training lasted, or
what the training consisted of. The interview with was
conducted in English and Arabic without an interpreter. rd. at 1.
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A related infirmity of the statement is that it does not
purport to be based on direct observations. It is
simply a declarative statement that IIIIIIIItrained at some point,
without any information as to h01llllllllllllrnew that. Even more
troubling is the fact that, in later interrogations, when.
IIIIIIII was asked to list the names of those he trained with, he
did not include the Petitioner. Pet. Ex. 69 MFR (Apr. 25,
2003)) at 1-2. Despite these glaring weaknesses
brief nine-word statement, the Government asks the Court to infer
nd the Petitioner trained at the same camp. Tr.
at 66-67 (Apr. 16, 2009).
Whether true
10
the Court
that
Id. at l . Interestingly, the
Government never brought this comment to the Court's attention.
-
-26
or not, it is pure speculation. l l
The larger issue is that
-
initial identification
suffers from serious reliability problems. First and foremost, the
detainee made the inculpatory statement at Bagram Prison in
Afghanistan, about which there have been widespread, credible
reports of torture and detainee abuse. See, e.g., Golden, Bagram,
supra, at 19; Pet. Ex. 86 at ~12.
11
was later interrogated on many other
occasions. He never again mentioned Ali Ahmed, just as no other
detainee or other individual whose statements appear in the record
accused the Petitioner of training.
12 The same report asserts that _ has never
[actually] been tortured since being t~ustody in
-
Pakistan." Pet. Ex. 68 at 1.
-27
of at 2-3.
-
technique," carries less weight in this case. Gov, Ex. 14 (Decl.
In addition, it does not follow, as the Government argues,
that recanting with respect to another detainee was
the extent of all his false allegations; simply because he admitted
that he falsely implicated some people here does not mean that he
was truthful at all other times. Second, s sole
identification of the Petitioner named him as "191 -liliiii' Gov.
Ex. 1 at 9. Petitioner denies that this is his actual name, or
that he ever used the kunya, _" He argues that
identifications based on this name are problematic becausellllllis
a fairly common nickname in Arab countries, somewhat equivalent to
to the use of "Joe" or "Buddy" in this country. Tr. at 83-84 (Apr.
16, 2009); see also Pet. Ex. 55 (Classified Tr. of Feb. 26, 2009
Status Conference) at 23 (Government represented that liliiii is a
very common name. If you run the name~hrOUgh [a search of
the Government's records] you will get thousands, potentially tens
of thousands of documents or hits.").
The Government admits that there is confusion over who "191
liliiii refers to in this context. Tr. at 14-15 (Apr. 17, 2009).
The number 191 refers to the detainee number assigned at Bagram.
The Government "preliminarily" admitted that two detainees were
given this same number -- both Ali Ahmed and
-
-28
Id. -
at 14; see Pet.
Memorandum for Commander (Nov. 5, 2007)) at 10 n.51. 13
Ex. 120 (IBN.
To further
confuse matters, 1IIIIIIII actually admits to having had military
training. Pet. Ex. 120 at 10 n.51. On this record, therefore, it
is completely unclear to whom the words "191 -liliiii refer
Petitioner, or someone else. The detainee number, of
course, is central to the allegation of training as well as the
rest of the Government's case.
Third, the Government argues that the fact that
made the allegation that _ received training in the same
interrogation session where he made inculpatory statements about
himself is indicative of his honesty and reliability. The Court
finds this fact to be of limited significance. Any effort to peer
into the mind of a detainee at Bagram, who admitted to fearing
torture at a facility known to engage in such abusive treatment,
simply does not serve to rehabilitate a witness whose initial
credibility must be regarded as doubtful.
Finally, reliability has been cast into doubt by
At times,
13 This admission was made on the second day of trial. On
the first day, the Government insisted that evidence showing that
1IIIIIIII was assigned number 191 at Bagram was the product of a
"typographical error" in the intelligence report. Tr. at 144 (Apr ..
16, 2009).
-
-29
-
tllllMemorandum for Commander (June 20,2008)) at 4.
Pet. Ex. 114 (ISN
By the time of
his at Guantanamo Bay, long after he made the
only allegation that he would make against the Petitioner,
intelligence reports indicated that
Pet. Ex. 69
These serious concerns credibility are not
compensated for by other pieces of the mosaic.
That is simply incorrect. No statement of any
other witness corroborates that Petitioner received military
training in Afghanistan. At most, the statements of other
witnesses suggest that Petitioner was in Afghanistan at some point.
They do not address the training allegation.
The Government argues that the surrounding details provided by
make the training allegation
more likely. However, it matters little that all these other
witnesses place the Petitioner in a geographical area where
military training was a logistical possibility. Without more, the
Court simply cannot credit the allegation of training as a
justifiable basis for further detention. See Gharani, at 7-8.
3. Traveling
A third major allegation, and important tile in the mosaic, is
-
- 30
-
that Ali Ahmed traveled around Afghanistan
and did so in the company of a band of
the battlefield. This charge is related
to the fact that the Petitioner was
and placed in Afghanistan during a portion of time when
he claims he was in Faisalabad. 1I11III the Government alleges,
fled Afhganistan crossed into
Pakistan, where he was
arrested March of 2002.
The Petitioner denies these charges, continues to assert that
he remained at , and never entered Afghanistan except
when he was detained at Bagram. Gov. Ex. 42 (IBN 692 FM 40 (Dec.
12, 2003) at Ii Traverse at
Government's evidence that he was identified as
26-29; 12.
.onHe
that the statements were made by unreliable witnesses, some of whom
attacks the
the ground
had undergone torture in the past or feared the use of torture in
the future. Traverse at 34-51. Demonstrating that, he argues,
reveals that the allegations of his travel to Afghanistan are not
true.
Turning first to the point a b o u t _ t h e Government sought
to buttress its mosaic theory by presenting evidence thatlllllllll
petitioner. _ " This name, it
alleges, is his "kunya," a nickname of sorts. The practice of
---31
of
-
taking on a kunya is common in Arab countries.
"Names,
Gov. Ex. 7 (Decl.
Aliases, Kunyas and
Varients") at 1-2. It is also a common practice among terrorists,
as it serves as a method for concealing their true identities from
enemy forces. Id. at 6.
Although the Government agreed that the mere use of a kunya is
not, in and of itself, sufficient evidence to justify detention,
Tr. at 128 (Apr. 16, 2009), it argues that use of the kunyalllllllll
is central to this case because it casts significant doubt on Ali
Ahmed's account of his activities, and also demonstrates that each
of the Government's wi tnesses provides credible evidence. The
latter point is based on the fact that
Petitioner 1IIIIIIII
See supra, at Part III.C.
Petitioner denied to an interrogator ever using the kunya. Gov.
Ex. 8 at 2. The Government submits that the numerous independent
identifications of the Petitioner as _ cannot simply be a
coincidence, and that it must be true that Ali Ahmed in fact does
go by the namellllllll Gov's Mot. at 24, 28.
The evidence the Government relies on to support its mosaic
theory is problematic in several key ways. First,
identification has been cast in significant question, due to the
fact that it was elicited at Bagram amidst actual torture or fear
-
-32
of it.
individual who he identified at Bagram.
-
There are also serious questions about
_
the particular
appears to be a
fairly common kunya, Pet. Ex. 55 at 23, and the obvious confusion
over the record-keeping at Bagram does not make
identification of this Petitioner a~ as opposed tollllllll
a reliable one.
See supra, a tPart .
III. C. There is no way to know whether the Government's informants
were staring at the same person, or if they were
looking at completely different people. Without more, their
identifications cannot carry the weight that the Government places
on them.
There are also problems with the relationship of the kunya
evidence to the overall theory. Again, assuming that the
Government's information is true, the immediate implications of it
are not as damaging as the Government argues. If Ali Ahmed is
liliiii it does suggest that he lied about at least some of his
story. Also, it suggests that he entered Afghanistan at some
point, and was later identified to have received military training.
As demonstrated above, however, these allegations do not bear
independent scrutiny because of the gaps in the record, and thus
-
-33
cannot be upheld in their own right. -
Accordingly,
for establishing Ali Ahmed's identity aslllllllcannot sustain the
the predicate
Government's theory.
4.
Evidence was offered to establish that Ali Ahmed's undisputed
stay at a guesthouse in Faisalabad i called , supports, at
least in part, the conclusion that he is a substantial supporter of
al-Qaida and/or the Taliban, as well as a trainee and fighter for
one or both of those groups. The validity of this argument rests
in large part on a guilt-by-association theory: i.e., the
Government argues that because others at the guesthouse were
involved with terrorist groups, and the Petitioner stayed there for
a substantial period of time in their company, without having to
pay for food or rent, he too must have been a terrorist. Combining
these facts with the allegations that he trained and traveled with
terrorist forces in Afghanistan, the Government believes the
conclusion is inescapable that Petitioner is a member and/or
substantial supporter of al-Qaida and/or the Taliban.
The Government is not contending that staying at a guesthouse
is per se evidence of terrorist activity in this case. Rather,
such evidence provides "one more piece of the mosaic," which, when
viewed as a whole, depicts Ali Ahmed as a member of enemy forces
whose cover story simply has too many holes in it to be credited.
-
-34
IIIIIIII
The Government points -
out
said the Petitioner traveled with
that _ the fighters who
-- also
stayed at Gov. Ex. 5
Gov. Ex. 34 (June 19, 2002)) Gov. Ex. 23 at 3-4.
.men
i
These admi tted to fighting on behalf of enemy forces, along
with another guest staying at the house,
_ Gov. Ex. 5 at 1 (reporting _ admission of fighting) i
Gov. Ex. 34 at 2 (reporting liliiii admission) i Gov. Ex. 30 II1II
(June 24, 2003)) at 1 (reporting admission) .
information with all the other evidence it has presented, the
Government argues that the logical inference is that Ali Ahmed was
also involved with these terrorist groups. Tr. at 80-82 (Apr. 17,
2009) .
The evidence, as discussed above, is problematic. 1IIIIIIII
who attested to horrendous incidents of torture, at one time gave
inculpatory statements about Petitioner, at another time recanted
those statements, and yet at a third time re-affirmed them.
Further, identification of Petitioner is plagued by
-
-35
equivocal $tatement that
-
the doubts discussed supra, at Part III.D.2. Finally
Petitioner liliiii
simply is not the material of which a
reliable hearsay identification is made. Once those pieces of the
mosaic have been removed because of their unreliability, the
Government is left with what is essentially a charge of guilt by
association.
The problem with this charge is that there is no solid
evidence that Ali Ahmed engaged in, or planned, any future
wrongdoing while There
is no evidence that he was arrested with any weapons or other
terrorist paraphernalia; nothing of this kind was found in his
locker. Pet. Ex. 6 at "18-20. Though others at the House, II1II
, admitted their affiliation with al-Qaida, they
did not implicate Ali Ahmed in any terrorist activity. Pet. Ex. 36
at 3; Pet. Ex. 45
Ali Ahmed was
There is ample
evidence in the record to indicate that guesthouses are common
features of the region, serving as way stations for impoverished
young men spending time away from home. 14 See, e.g., Pet. Ex. 7
14 On the other hand, there is also evidence that
-
guesthouses served essentially as barracks for terrorist fighters
- 36
(Decl. of -
(Nov. 30, 2008)) at ~5.
As noted, no weapons were found or seized during the arrest of
Petitioner. Pet. Ex. 6 at ~~18-20. It is likely, based on
evidence in the record, that at least a majority of the
Ji
IIIIIIII
_ guests were indeed students,IS living at a guesthouse that
was located close to a university. Pet. 's Mem. Of Points and
Authorities in Support of Mot. For J. at 30-31 n.21-22; but see Tr.
at 74 (Apr. 16., 2009) (demonstrating that Government contests
remaining individuals were students). Further, even though the
police arrested all of the men staying at the House,
they appear to have ignored II1II the man who operated the House.
If the was such a hotbed of terrorist activity, it is
incomprehensible that its operator was not, at a minimum, detained
for questioning. The evidence does not demonstrate, even as to
associational guilt, that Ali Ahmed's stay at provides
justification for his detention.
who had retreated from the front. Gov Mot. for J. on Record., Ex.
1 (Decl. of , "Background Declaration - Guesthouses")
at 1.
ISNeither party ca~identif exact num.ber of guests at
the
but parties agreed is a reasonable number. Tr.
at 85 (Apr. 17, 2009). individuals arrested there were
detained at Guantanamo Bay and subsequently released; the
Government represented that this was likely part of the
Administrative Review Board process, and not because the Government
determined that the two were not lawfully subject to detention.
Tr. at 108 (Apr. 17, 2008).
-
-37
-
Nor is the Government's case strengthened by the charge that
a
man whom the Government has, at times, alleged is a "sworn member
of al-Qaida," training-camp operator, travel facilitator', and major
figure in the planning of 1999 attack against the United States.
Factual Return at ~28 n.2.; but see Tr. at 78-79 (Apr. 17, 2009)
(explaining that disputes charge that he is sworn
member of al-Qaida) .
The Government presents strands of evidence to tie 1111
It points out that one detainee claims that he
was the director of a guesthouse in Peshawar, as well as a "Yemeni"
guesthouse in Faisalabad. Gov. Ex. 27 (ISN 707 FD 302 (Sept. til
2002)) at 1. The reliability of this statement is established via
a weak inference that the witness knew
based on the witness' visit· to a different guesthouse O f .
Tr. at 77-78 (Apr. 17, 2009). It also points to the
stayed at at some point, Gov. Ex. 44 _ FM-40
The Government seeks to weave these disparate strands of
evidence so as to suggest that
and thereby strengthen its claims of Petitioner's
-
-38
associational guilt.
...
The fabric -- or mosaic -- simply will not
hold; the connections are too weak and attenuated.
As a final attempt at providing more tiles for its l1li corner
of the mosaic, the Government submitted for the first time on the
initial day of the
Petitioner made an
oral motion to strike the evidence. ~he Court denied the motion,
but made it clear to parties that this decision would be subject to
---
-39
-
reconsideration after it had had an opportunity to hear all the
evidence.
The Court has elected to reconsider, and concludes that the
evidence shall not be admitted. Having heard all of the testimony
now, and in particular the testimony about the document and the
context of its retrieval, the Court strikes the document on the
grounds that its prejudicial value far outweighs any probative
value. 11 See Fed. R. Evid. 403. (It should be noted that there is
absolutely no evidence that the Petitioner either wrote or
understood Russian, the language in which the document was written.
Cf. Gov. Ex. 43 at 1 (recounting Petitioner's statement that he had
to communicate with Russian guest using "hand
signals") . )
5•
An additional tile in the Government's mosaic is the evidence
11
nm nt had already presented evidence purp~
that _men
was a haven for terrorist activity, . . . . . .
with admitted connections
-
t ere.
-40
...
justification for detention; rather, according to the Government,
it lends credence to other evidence that casts Ali Ahmed as more
than an innocent student captured in the wrong place at the wrong
time.
...
-41
-
-
-42
just the
four corners of the document, there is no indication that 1IIIIIIII
cannot be credited as a
piece of evidence that contributes in any way to a finding that it
is more likely than not that Ali Ahmed was legally detained under
the AUMF.
IV. CONCLUSION
For all the foregoing reasons, and for the reasons stated
during the Hearing held on April 16-17, 2009, the Court grants the
petition for a writ of habeas corpus. The Government has failed to
prove, for all the reasons stated above, by a preponderance of the
evidence, that AlIa Ali Bin Ali Ahmed was "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."
As to the claim of participating in fighting, the Government
produced virtually no credible evidence i as to the claim of
receiving military training, the conclusory nine-word hearsay
statement by does not show that it is more likely than
-
-43
not that he received -
such training;
traveled around Afghanistan in 2001 and 2002 in
as to the claim that
the company of
he
terrorist fighters fleeing the battlefield, even if the Government
had proven this charge, which it did not, such a fact would not
constitute substantial support; as to the evidence that he stayed
at , the Government has certainly proven that he stayed
there, but has utterly failed to present evidence that he was a
sUbstantial supporter of al-Qaida and/or the Taliban while he did
stay there; as to the Government's position about the significance
of locating Petitioner's alleged kunya on a list, the Court finds
this argument without any merit whatsoever.
When taken all together as facts which comprise a mosaic
theory, the evidence does not satisfy the Government's burden of
proof: i.e., the Government's picture does not establish that it is
more likely than not that Petitioner fought for the Taliban, that
he received military training, that he traveled in Afghanistan with
terrorists fleeing from the scene of war, that his stay at l1li
II1II demonstrated he was a supporter of al-Qaida,
Mindful of the limitations on the scope of the remedy in this
situation, see Kiyemba v. Obama, 555 F.3d at 1024 (D.C. Cir. 2009),
the Court further orders the Government to take all necessary and
-
-44
-
appropriate diplomatic steps to facilitate Petitioner's release
forthwith, and to report back to the Court no later than June
as to the status of Petitioner's release.
lsi
May _, 2009 Gladys Kessler
United States District Judge
Copies to: Attorneys of Record via ECF
-
-45