Ali Ahmed v. Bush

Opinion

FILED WITH THE COURT SECURITY OFFICER

g~~~:~" - 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

-

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

- -2­ the legality of the detention are

instance by the District Court. ") . - 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

- 3­ 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

- -4­ 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

- -5­ record.

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.

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

-6­ those attacks. -

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

-7­ provided to Petitioner's

maintained in the -

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."

- - 8­ -

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

craft appropriate procedures. Boumediene, 128 S.Ct. at 2272.

- 9­ -

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

-10­ Executive to detain him. -

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

omitted) .

- 11­ 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.

No witnesses testified at the Merits Hearing.

- 12­ 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.

- -13­ 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

- - 14­ 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.

-15­ 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

- -16­ IIIIIIII FM 40 -

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

-17­ or treatment of this condition, -

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

-18­ 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/

- -19­ 20abuse.html#.

IIIIIIII claimed -

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

- -20­ challenges that particular fact)

school at which to study the Koran. - 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.

- -21­ - 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

-22­ such behavior is not credible,

Petitioner fought with al-Qaida. - 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

- -23­ Afghanistan, he was there to fight.

Similarly, -

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

legitimate, oft-used strategy does not concede or waive any issues.

-24­ -

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.

- -25­ -

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