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                                 -

                     UNITED STATES DISTRICT COURT

                     FOR THE DISTRICT OF COLUMBIA



MOHAMMED AL-ADAHI, et al.,


     Petitioners,

     v.                                    Civil Action No.        05-280 (GK)

BARACK H. OBAMA, et al.,

     Respondents.


                           MEMORANDUM OPINION

     Petitioner Mohammed Al-Adahi (UAl-Adahi" or Uthe Petitioner")

has been detained since 2002 at the United States Naval Base at

Guantanamo Bay Cuba.     Respondents ("the Government") argue that his

detention is justified under the Authorization for the Use of

Military Force,     Pub. L. No. 107-40        §   2 (a),     115 Stat. 224,   224

(2001)    ("AUMF"), which grants the Executive the power to detain
individuals    engaged    in   certain      terrorist        activities.      The

Petitioner disagrees, and has, along with four other petitioners,

filed a petition for a writ of habeas corpus [Dkt. No. IJ.

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

on the Record [Dkt. Nos. 373 and 379J. 1          Upon consideration of the

     1
          Two of the five Petitioners, •                        and
                                  did not file Motions          ent
                Two others, •
                          did file such a Motion, but their cases
were stayed during Al-Adahi' s Hearing. Order (June 25, 2009) [Dkt.
No. 430J.



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                                      -

Motions, the Oppositions, extensive oral argument and accompanying

exhibits, and the entire record herein, Al-Adahi's habeas corpus

petition and Motion are hereby granted.

I •     BACKGROUND

        A.     Procedural History

        Petitioner filed his habeas corpus petition on February 7,
2005.        After filing,    there was extensive preliminary litigation

regarding       the    Court's     jurisdiction        to    entertain         detainees'

petitions,       the    applicability        of   various          statutes,    and   the

appropriate procedures to be used.
        After more than six years of litigation, the most important
legal issue was resolved by the Supreme Court in Boumediene v.
Bush, 553 U.S.          ,128 S.Ct. 2229 (2008).               The Court ruled that

detainees at Guantanamo Bay, none of whom are citizens of the
United States, are entitled to bring habeas petitions under Article
I of the Constitution, and that the federal district courts have
jurisdiction to hear such petitions.

        The Court did not define what conduct the Government would
have to prove, by a preponderance of the evidence, in order to
justifiably detain individuals -- that question was left to the
District Courts.         Id. at 2240         ("We do not address whether the
President has the authority to detain these petitioners nor do we
hold that the writ must issue.            These and other questions regarding

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                                 -

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

instance by the District Court.").          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 [, J 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. IJ.        On November 6, 2008, after

extensive briefing from Petitioners' counsel and the Government,

Judge Hogan issued a Case Management Order ("OMO") 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. 283.

      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 Factual Return for AI­

Adahi on August 1, 2005, and· amended it on September 29, 2008.        The

Petitioner responded by filing Traverses on July 3, 2008, July 7,

2008, and October 10, 2009.    After a period of extensive discovery,

both parties filed substantial briefs accompanied by extensive
exhibits.

      On April 10, 2009, the Court set June 22, 2009, as the date

for the "merits hearing" on the Cross-Motions for Judgment on the
Record for all three Petitioners who planned to go forward in

challenging their detention.      Al-Adahi's         case, including the

Petitioner's live direct and cross-examination on June 23, 2009,
was presented to the Court over a four-day period.             On June 25,

Petitioners •                         instructed their counsel to not
proceed with litigating their Motions.

cases were then stayed until October 1, 2009.              Order (June 25,
2009) .

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.


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507,   533-34

evidence.
                 (2004).

               Order, Appendix A at
                                    -

                            It must do so by a preponderance of the

                                          §   II.A (Feb. 12, 2009)     [Dkt. No.

283-2] i   see also Basardb v. Obama, 612 F. SUpp. 2d 30, 35 n.12

(D.D.C. 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, 609 F. Supp. 2d 43,

53 n.4 (D.D.C. 2009).      The Government asserted, "[a] t a minimum, .

. . the ability to detain as enemy combatants those individuals who

were part of, or supporting, forces engaged in hostilities against

the United States or its coalition partners and allies. u              Resp't's

Statement of Legal Justification For Detention at 2 [Dkt. No. 205] .

       Since    the   change   in   administration,        the   Government   has

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

solely on the AUMF. Gherebi, 609 F. Supp. 2d at 53 n.4.                Further,
it no longer uses the term "enemy combatant. u             Its refined position

is:

       [t]he President has the authority to detain persons that
       the President determines planned, authorized, committed,
       or aided the terrorist attacks that occurred on September
       11, 2001, and persons who harbored those responsible for
       those attacks. The President also has the authority to
       detain persons who were part of, or substantially
       supported, Taliban or al-Qaida forces or associated
       forces that are engaged in hostilities against the United
       States or its coalition partners, including any person
       who has committed a belligerent act, or has directly
       supported hostilities, in aid of such enemy armed forces.


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

Relative to Detainees Held at Guantanamo Bay at 3 [Dkt. No. 306].

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

ruled that the Government has the authority to detain individuals

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

Taliban, provided that those terms "are interpreted to encompass

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

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

of their capture."             Gherebi, 609 F. Supp. 2d at 70-71.

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

John Bates of this         Dis~rict      Court concluded that under the law of

war,   the Government has the authority to detain individuals who

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

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

does   not    have       the    authority     to    detain    those   who    are   merely

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

Court has great regard for the scholarship and analysis contained

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

presented      a   clearer        approach,        and   therefore    will   adopt    his

reasoning and conclusion. 2


     2    The Court agrees with Judge Bates' comment that the
determination of who was a "part of" the Taliban/al-Qaida, under
Judge Walton's approach, rests on a highly individualized and case­
specific inquiry; as a result, the "concept [of substantial
support] may play a role under the functional test used to

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III. ANALYSIS

     A.      Evidentiary Presumptions
                                          -

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

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

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

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

provided evidence          in    the      form   of    classified       intelligence and

interview    reports       that      it     believes        justify    the       Petitioner's

detention.     The reports contain the statements of Petitioner, as

well as statements made by other detainees,                       that the Government

argues    demonstrate       the        Petitioner's         status     as    a    member    or

substantial supporter of al-Qaida and/or the Taliban. 3

     The Government requested that a                        rebuttable presumption of

authenticity     be    granted         to    all      the    exhibits       it    intends   to


determine who is 'part of' a covered organization," and the
difference in the two approaches "should not be great." Hamlily,
616 F. Supp. 2d at 76.

          Petitioner argues that the Government's evidence should
be excluded under the Geneva Conventions, because the evidence was
collected in violation of various articles of the Third Geneva
Convention.  Pet.'s Resp. to Resp't's Mot. for J. and Supporting
Mem. at 4 ("Pet.' s Opp' nil) [Dkt. No. 402]. Parties briefed this
issue further in the weeks following the Merits Hearing [Dkt. Nos.
435, 441, and 442]. Assuming for the moment that the evidence can
be admitted consistent with the Geneva Conventions, the Court's
consideration of that evidence leads to the conclusion, as
discussed below, that AI-Adahi is not justifiably detained.
Therefore" it need not and does not reach the question of whether
the interrogation reports must be excluded.


                                             -7­




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introduce. 4

Opp'n     to    the    Government's
                                     -

                 Petitioner objected to this request. See Pets.' Joint

                                        Memo.        and   Supplement    Regarding

Presumptions, Hearsay and Reliability of Intelligence Information

at 3-10 ("Pets.' Presumptions Memo.") [Dkt. No. 400]; Pet. Mohammed

AI-Adahi's Brief in Support of Entry of Judgment at 3                      ("Pet.' s

Mot.") [Dkt. No. 373].       Given the Government's representations that

the specific documents included in its case against Petitioner, as

well    as     the    documents    provided     to    Petitioner's      counsel   in

discovery,      have all    been maintained in the ordinary course of

business, the Court will presume, pursuant to Fed. R. Evid. 803(6),

that its documents are authentic.               As provided for in the Case

Management Order,         the Government's exhibits will             be granted a

rebuttable presumption of authenticity and will be deemed authentic

in the absence of any rebuttal evidence to the contrary.

        The    Government    has    also      requested     that   a     rebuttable

presumption of accuracy be granted to all the exhibits it intends

to introduce.         The Petitioner objected to this request as well.

See Pets.' Presumptions Memo. at 3-10.                This request is denied for

several reasons.

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


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

                                        -8­
                                    -

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

contested for a host of different reasons ranging from the fact

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

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

verbatim account of what was said.

      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. s

        Denial    of    the    Government's    request     for   a     rebuttable


     5    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
                                  -

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

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

offer        a    preliminary    document-by-document   foundation   for

admissibility of each eXhibit.          As the Supreme court noted in

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

these cases because of the exigencies of the circumstances.

        Finally, while parties always retain the right to challenge

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

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

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

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

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

the manner described above.

        B.       Mosaic Theory

        The Government advances several categories of allegations
which, in its view, demonstrate that the Petitioner was detained

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

- - and even the individual pieces of evidence supporting these

allegations -- should not be examined in isolation.       Rather, "[t]he
probity of any single piece of evidence should be evaluated based

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

"as a whole,"         the evidence supporting these allegations comes
together to support a conclusion that shows the Petitioner to be


                                     -10­
justifiably detained.             -

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

and Mem. in SUPP. at 6 (internal citation omitted)         ("Gov's Mot.")

[Dkt. No. 379].     While the Government avoids an explicit adoption

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

application to the evidence in this case.       ct. Ali Ahmed v. Obama,
613 F. Supp. 2d 51, 55-56 (D.D.C. 2009).

     The Court understands from the Government's declarations, and
from case law,6 that use of this approach is a common and well-

established mode of analysis in the intelligence community.          This

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

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

and conclusions of law which satisfy appropriate and relevant legal

standards   as    to    whether   the   Government   has   proven   by   a

preponderance of the evidence that the Petitioner is justifiably

detained.   The kind and amount of evidence which satisfies the
intelligence community in reaching final conclusions about the
value of information it obtains may be very different from, and

certainly cannot determine, this Court's ruling.

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

must be acknowledged that the mosaic theory is only as persuasive


     6     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
together     just as   a
                             -

as the tiles which compose it and the glue which binds them
                           brick wall   is   only as   strong as   the

individual bricks which support it and the cement that keeps the

bricks in place.   Therefore, if the individual pieces of a mosaic
are inherently flawed or do not fit together, then the mosaic will

split apart, just as the brick wall will collapse.

     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 deposition transcripts to consult and few if any witnesses are

available for cross-examination.   Despite the fact that Petitioner

testified via video-conference from Guantanamo Bay, and was cross-
examined by the Government,7 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



       7   Petitioner's testimony was closed to the pUblic.
However,   the Government was ordered to conduct expedited
classification reviews of the testimony transcript so that it could
be released on the public docket. Order (June 19, 2009) [Dkt. No.
423] .   The Government complied, and the transcripts were made
available to the public on June 26, 2009 [Dkt. No. 431].        The
Government also was ordered to videotape the testimony and maintain
a redacted copy of the tape. Order (June 19, 2009). On July 23,
2009, the Government provided notice that it did not comply with
this order, citing uoversight and miscommunication" as reasons that
the testimony was not videotaped.     Notice Regarding the Court's
June 19, 2009 Order (July 23, 2009) [Dkt. No. 446]. The following
day, Petitioner filed a Motion for Sanctions [Dkt. No. 447J, which
is pending at this time.
                                -12­
                                                                             -   ----------------------




compelling

evidence.
                  logical            -

                             inferences    to be    drawn     from

             Accordingly, that existing evidence must be weighed and
                                                                      the        existing



evaluated as to its strength, its reliability, and the degree to

which it is corroborated.            In any event,      th~    Government always

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.

       C.    Government Allegations

       In narrowing the issues for trial, parties focused on six

broad factual areas that were in dispute.                  The Court then heard

arguments on the existence and extent of (1) Petitioner's familial
ties, (2) his stay at al-Qaida and/or Taliban guesthouses, (3) his

military training at Al Farouq and service as an instructor there,
 (4) his employment as a bodyguard for Usama Bin Laden,                           (5) his
other activities in Afghanistan (including his escape from the
country     and     later     arrest),    and,    finally,     (6)     the        overall
credibility of Petitioner's version of his travels from his home in

IIIIIIto Pakistan,          Afghanistan, and his flight back to Pakistan.

             1.      Familial Ties and Travel to Afghanistan


                                          -13­
         There    is    no question that-
        the   record fUlly

Government's allegation that Petitioner had close familial ties to
                                                                          supports          the



prominent members of the jihad community in Afghanistan.                               JE 28;8
                                                                               b(1), beG)
JE 55; JE 18; JE 40; Tr. at 11, 17 (June 23, 2009).



                                                                                  Tr. at 11

 (June 23, 2009).         Although the Government alleges that Al-Adahi has

presented inconsistent and therefore unreliable reasons for this




                                                     Tr. at 22 (June 23, 2009); JE

 13     (citing Amani's back problems and visit to husband as reasons

 for trip); JE 15 at 1              (same); JE 33 at 2,          5 b(1)
b( 1)
                       The two reasons are hardly inconsistent with each

other.
                                b(1), b(6)
         From her home in                            had entered into an arranged

marriage with b(1), beG)                                                        She and her

brother,      Petitioner,      then      traveled       to   Kandahar     to      unite     the

 recently        wedded    couple    and     to     attend   a   celebration           of   the




     8    Parties submitted two volumes of Joint EXhibits, which
comprise the vast majority of evidence presented during trial.
Unless otherwise indicated, citations to "JE" refer to the universe
of Joint Exhibits.

                                             -14­
marriage. 9 Tr. at 9 (June 24, 2009).
        _
                                      -

                  appears to have been a prominent man in Kandahar. •
b(1), b(6)

b(1), b(6)
                        JE 28 at 3; Tr. at 15-16 (June 24, 2009)            (Al-Adahi

 "believe[d]" thatllllllllfought the Soviets, but was not told that
by    IIIIIIII   himself) .        The Government alleges' that _                was
                                                               b(1), b(6)
involved at a high level in al-Qaida operations,
b(1), b(6)
                                                    see JE 18 at 4-5; JE 40 at 1

 (alleged to be Bin Laden bodyguard); Gov. Mot. at 9 -1 0 • 10              Further,



is described as being "among the jihad personnel from _ "                       JE 55

at 4.        It is not clear if this description is based on statements

f r o m . or                                                                     Al-
Adahi        "doubts"     that _         was    a    Bin   Laden   bodyguard,     but

acknowledges that he was "from mujahidin [sicl."                   Tr. at 21 (June
23, 2009).


          The celebration attended by Petitioner Bin Laden's house
was for men only. The women celebrated at another venue. Tr. at
11 (June 24, 2009).




                                         -15­
      The Government suggests that their travel pattern mimics that

of other al-Qaida-recruited j ihadists who were traveling into

Afghanistan to participate in battle against the united States.

Gov. Mot. at 11 (describing arrangements as Uhighly unusual" and

suggestive of "a degree of secrecy and operational tradecraft");

id.   at   14-15.   To buttress   its    argument,   it   points   to   the




                                     The Government infers that these

arrangements indicate Al-Adahi's willingness to be recruited by al­
Qaida, as well as _ _ status as a member of that organization.
Gov. Mot. at 11, 13.
      The inference that _ _ was affiliated with al-Qaida is

strongly supported by the circumstances of the wedding celebration


     11   The exact details of this exchange are not totally clear,
but the overall narrative remains the same. See Tr. at 14-15 (June
23, 2009); JE 28 at 4; JE 33 at 3.           --­
                                  -16­
                                             -    -   --------------------




that took place.      It is undisputed that Usama Bin Laden, the
founder and leader of al-Qaida,          hosted and attended •
wedding reception in Kandahar, Tr. at 11 (June 24, 2009); JE 51 at
2-3.    At the celebration at Bin Laden's compound,                as he was
escorted around the event by a friend of •                       Al-Adahi was
introduced briefly to Bin Laden.     Tr. at 11 (June 24, 2009); Tr. at
17, 20-21 (June 23, 2009); JE 51 at 4.
       A few days later, Al-Adahi met Bin Laden again and the two
chatted briefly about religious matters in Yemen.                Tr. at 20-21

(June 23, 2009); JE 49 at 4.        In his testimony, the Petitioner

insisted that such a meeting with Bin Laden was common for visitors
to Kandahar.     Tr. at 24-25 (June 24, 2009); JE 49 at 5.                  The
Government interprets the access to Bin Laden,                as well as the
relationship to _ a n d _ b r o t h e r , an alleged bodyguard
for Bin Laden, as part of the evidence that "Al-Adahi was part of
the inner circle of the enemy organization al-Qaida."                  Resp't's
Opp'n to Pet. (ISN 33) Mohammed Al-Adahi's Br. in Supp. of Entry of
J.   at 3 ("Gov. Opp'n")   [Dkt. No. 408].
       The Government concedes that Al-Adahi's family situation is
not,   in and of   itself a basis for his detention.                   What the
Government argues is that the existence of these family connections
to Bin Laden strengthen other, more serious allegations, such as
Petitioner's    training   and   service     as       a   bodyguard.      These


                                  -17­
connections, according to the Government, demonstrate that Al-Adahi

was an al-Qaida insider whose brother-in-law was facilitating his

rise up the ranks of the al-Qaida organization.

      While it is true that Petitioner's familial ties to usama Bin
Laden may suggest that he had access to the leadership of al-Qaida,

such associations cannot prove that he was a member of al-Qaida's

"armed forces."     Gherebi, 609 F. Supp. 2d at 70-71.    Accordingly,

his relationship tollllilland attendance at the wedding must not

distract the Court from its appropriate focus--the nature of Al­

Adahi's own conduct, upon which this case must turn.

           2.     Guesthouse Stay

      The Government claims that AI-Adahi stayed at al-Qaida and/or

Taliban guesthouses during his stay in Afghanistan in 2001.          It

points specifically to his admission that he stayed at the al­

Nebras guesthouse for one night.      Tr. at 23 (June 23, 2009); JE 27;
JE   52.   In addition,   the Government points to AI-Adahi's own
statements in arguing that _               home was a guesthouse that

sheltered mujahideen and men involved in AI-Wafa.      Gov. Mot. at 12­

13; JE 28 at 3; JE 16 at 1; JE 19 at 2.       AI-Wafa was a Specially
Designated Global Terrorist Entity that ostensibly operated as a
charity.   Exec. Order No. 13,224, 66 Fed. Reg. 49,079       (Sept. 23,

2001); JE 6 at 1.

      Petitioner counters that   1IIIIIIIIhome was   not identified by


                                    -18­
    the Government in its background declaration as being a guesthouse

    operated      by   either          al-Qaida             or     the    Taliban.                   Cf.     JE         5.

    Significantly,          there          is        credible        evidence              in        the     record
                                                                              b(1), b(6)
    demonstrating          that       Petitioner           stayed        in                          home,    which

    appears to have been a separate structure from any guesthouse that




                                                                                                    JE 33 at 4.

         Other than this admission about al-Nebras and the argument

    about his brother-in-law's home, the Government points only to the




                                                                                        JE 39 at 3.                The
                                                    b(1), b(6)
    allegation       was     based         on




         The     guesthouse            evidence,            like    that       of       Al-Adahi' s          family



         12	
                  The first page of the interro ation report ~
                  . . tion indicates that"          was shown allllllllllll
                        JE 39 at 1. Al-Adahi is           On ~ee of
               ort "           goes on to describe ~son""""'ina
                   marked \\ [ISN 33] .  rd. at 3. ; - . is not mentioned
                                                    /I

     •           h                f    h        •                                   •      •    -      _      tI· ...
5, 6
I




                                                         -19­
connections, is offered as a tile in the Government's mosaic.             The

Government recognizes that in this case the guesthouse evidence is
not in itself sufficient to justify detention.              The Court credits
Al-Adahi's repeated admissions of his one-night stay at al-Nebras,
but cannot rely on            b(1), b(6)   vague and uncorroborated statement
about his meeting with AI-Adahi at an unnamed Kandahar guesthouse

and his questionable _identification of AI-Adahi. 13
                 3.      Al Farouq

      The Government's central accusation -- that Al-Adahi attended
al-Qaida's Al Farouq training camp in or around August of 2001 -­
is not disputed by Petitioner; in fact, he admitted to it during
his   t~stimony.         Tr. at 23-24 (June 23, 2009) (admitting attendance
at Al Farouq for one week).                 The critical issues that divide
parties are the significance of Petitioner's brief attendance, and
whether or not AI-Adahi served as an instructor at Al Farouq.
                         a.    Attendance at Al Farouq


            b(1), b(6)
       13          credibility has been called into question by this
 Court and other courts in this District. See Ali Ahmed v. Obama,
 OS-cv-1678, classified memo op. at 13-14 (D.D.C. May 4, 2009) [Dkt.
No. 211]. On May 22, 2009, the Government submitted a memorandum
 and voluminous appendix of exhibits in an effort to rehabilitate
b(1), b(6)   reliability as a witness.     The Court reviewed the
Government's submission, and agrees t h a t _ c a n n o t be written
off as unreliable in all instances; however, his troublesome record




                                           -20­
     Again, there is no dispute that AI-Adahi trained at Al Farouq

for somewhere between seven and ten days.         Id.; JE 26 at 4 (ten

days); JE 52 at 2 (about seven days); JE 27 at 3 (seven days).
During several interrogations, 14 Al-Adahi gave detailed descriptions

of the training regimen and layout of the camp, identified other

detainees as trainers ( i n c l u d i n g _ , JE 26 at 5; JE 52 at 2,



      14   Petitioner's counsel argues that all ex parte statements
made by Petitioner must be excluded from the record. Pet.'s Mot.
at 18 -20. They maintain that because Petitioner was represented by
counsel as of February 7, 2005, and all interrogations after that
date were not consented to by counsel, Constitutional and ethical
rules require that evidence from those interrogations be excluded.
Id.
      The Court concludes that the ex parte statements are
admissible for the following reasons. First, under Supreme Court
and Court of Appeals precedent, only defendants in the criminal
context can claim Sixth Amendment protections.          Montejo v.
Louisiana, 129 S.Ct. 2079, 2085 (2009)        (stating that Sixth
Amendment "guarantees a defendant the right to have counsel at all
'critical' stages of the criminal proceedings.O) (emphasis added);
United States v. Sutton, 801 F.2d 1346, 1365 (D.C. Cir. 1986)
(finding that right to counsel attaches "only after the initiation
of 'adversary judicial criminal proceedings, e.g., formal charge,
                                              I

preliminary hearing, indictment, information, or arraignment.").
Petitioner is not involved in a criminal proceeding, and thus the
Sixth Amendment does not apply. Cf. Coleman v. Balkcom, 451 U.S.
949, 954 (1981)      (Marshall, J., dissenting from denial of
certiorari) .
      Second, Petitioner argues that the Government's conduct
amounts to a violation of ethical rules. The interrogators in this
case were not the attorneys representing the Government in habeas
litigation; rather; they were agents conducting an investigation.
There is no evidence that Government attorneys controlled or guided
interrogations of Al-Adahi. Consequently, there were no ethical
violations.   See United States v. Lemonakis, 485 F.2d 941, 956
(D.C. Cir. 1973); Sutton, 801 F.2d at 1366.

                                -21­
                                -

and admitted that he received training while there.

        His motives for going to Al Farouq cannot be determined with

the same certainty.       In his testimony,      Al-Adahi claims that he

sought general weapons training and "Islamic education."                Tr. at

23-24 (June 23, 2009).     After having attended his sister's wedding

reception, and with time off from his job inilllllland having no

particular plans about what to do next, he portrayed himself as

being willing to explore the region and try something new.                  The

Government attempted to link AI-Adahi's attendance to his alleged

ideological conviction in jihad against the United States. However,

Al-Adahi resisted being portrayed as a supporter of war against

America,    and   repeatedly   denied     "support [ing]     these   acts   [of

 jihad]."    Tr. at 19 (June 24, 2009); see id. at 17-21.

        Al-Adahi claims   that he pursued training at Al             Farouq to

 satisfy "curiosity" about jihad, and because he found himself in

Afghanistan with idle time. JE 26 at 5; cf. Tr. at 22-23 (June 23,

2009)    (stating that he did not know about Al             Farouq until he

arrived at al-Nebras, and attended camp to learn about Islam and

weapons).    It is important to observe that Al-Adahi's understanding

of the term "j ihad" does not seem to equate to war against the

United States.     See Tr. at 21 (June 23, 2009).          For instance, in a
b(1 )




                                   -22­
b(1 )                            -
      JE 26 at S;see JE 28 at 3 (where

 Petitioner explains mujahideen to mean Uthose that fought against

 the Russians     and then later fought       with      the   Taliban against

 Massoud) .

        Petitioner insists that he did not attend the camp to become

 part of jihad, and that the circumstances of his departure support
 this position.     After seven to ten days at Al Farouq, the camp

 leaders expelled AI-Adahi for failing to comply with the rules.
                                                b(1 )
 Tr. at 24 (June 23, 2009); JE 52 at 2.
b(1 )
                                                          JE 26 at 4 - 5 .    In

 Petitioner's view, any affiliation with or substantial support of
 al-Qaida that could have been established based on his attendance

 at Al Farouq was destroyed by this expulsion.             Pet.'s Mot. at 44.

        The   Government   counters    that   the    circumstances     of    his

 departure, in addition to his attendance, actually help justify
 detention.    AI-Adahi was ordered to leave, and returned to Kandahar
 to stay with _ _ again.              He did so despite the fact that,

 according to AI-Adahi himself, individuals expelled from Al Farouq

 for rules violations were generally considered spies, and severely
 punished.      JE 26 at 4;    JE 52 at 2-3.            Suspected spies,     the
 Government infers from another detainee's experiences, were treated

 harshly.     See Al Ginco v. Obama, No. OS-cv-1310, 2009 WL 1748011,

 at *3 (D.D.C. June 22, 2009)         (describing Government's concession


                                  . -23­
that suspected spy was imprisoned and tortured by Taliban).                             In

this     case,    Al-Adahi    was    spared    punishment          because        of   his

relationship with his brother-in-lawllllllll See JE 52 at 2.
       The Government argues that the clemency extended to Al-Adahi
demonstrates that he continued to be a member of the organization,

and was being protected by his powerful brother- in-law _                              See

JE 52 at 2 (reporting that prior to expelling Petitioner, camp

leadership       notified   1IIIIIIII     Al-Adahi,      it    notes,        was       even
permitted to return to Kandahar and stay with _                       who allegedly

housed     al-Qaida     fighters.         This,    the    Government              argues,

demonstrates that the organization had not turned its back on

Petitioner at all, much less in the brutal way that it had expelled
and tortured Ginco.          However, even if AI-Adahi's expulsion was
                                                      b(1), b(6)
handled with uncommon leniency because of                              status, this

fact demonstrates at most that Al-Adahi was being protected by a
concerned family member;            it most certainly is not affirmative
evidence that Al-Adahi embraced al-Qaida, accepted its philosophy,
and endorsed its terrorist activities.

       For these reasons, under the analysis in Gherebi, Petitioner
cannot be deemed a member of the enemy's "armed forces.                      II         See
Gherebi, 609 F. Supp. 2d at 68-69.             Al-Adahi was expelled from Al
Farouq after seven to ten days at the campi as discussed below, the

Government has not established that he did anything to renew


                                        -24­
connections with al-Qaida and/or the Taliban.                                     He did not,       by

virtue of less than two weeks' attendance at a training camp from

which he was expelled for breaking the rules, occupy "some sort of

'structured' role in the 'hierarchy' of the enemy force."                                     rd.

       Finally,     Petitioner's demonstrated unwillingness to comply

with orders from individuals at Al Farouq shows that he did not

" , receive []    and     execute[]       orders'              from       the     enemy's    combat

apparatus."       rd. at 69.           AI-Adahi attended the camp briefly, and

was    expelled     for     his       refusal        to        take       orders.      Therefore,

Petitioner's      admission        that       he     trained          at     Al   Farouq     is     not

sufficient to carry the Government's burden of showing that he was

a part, or substantial supporter, of enemy forces.                                  Cf. Al Ginco,

2009   WL    1748011,      at     *4     (relationship                with      al-Qaida     may     be

"vitiated" by intervening events); id, at *5 ("To say the least,
                                                                      "
five days at a guesthouse                 . . combined with eighteen days at a

training     camp    does       not     add     up        to     a    longstanding          bond     of

brotherhood.") .

                    b.      Instructor at Al Farouq

       The Government relies on a statement from one other detainee,

as well as several pieces of circumstantial evidence, to argue that

AI-Adahi not only attended Al Farouq, but also served as a trainer

at the camp.

       As its most direct piece of evidence supporting this claim,


                                              -25­
                                         -SECRET­
                                                                      b(1), b(2), b(6)
 the Government points to a statement made by
b(1), b(2), b(6)
                                         that he could identify ISN 33 by his
                                      b(1 )
 kunya, •                   because
b(1 )                                         15
                                                         JE 29 at    1;    JE    38      at   5.     A

 significant problem with this testimony is that there is no other

 evidence placing Al-Adahi in Afghanistan prior to July of 2001.




                     Additionally, when he was later

 ISN 33, _claimed the man's name was                                                  whose kunya

                        JE 101 at 2;               cf.    JE 104 at 2        (reporting that

 detainee uninvolved in this case had a Saudi uncle

 who clearly was not same man as Al-Adahi).                         The Government claims

 this is simply a mis-identification.                      When coupled with the early­

 2000      date     given   by _         in        an     earlier    statement,           the      mis­

 identification          casts     serious         doubt     on     the   accuracy            of    his

 statements.

          Petitioner insists that his only travel out oflllllllPccurred

 in July of 2001,           when he escorted his sister to Kandahar.                                 In


          lS       In August of 2003, _provided a physical description
                       who he claimed was a "chief trainer." JE 102 at 1.




                                              -26­
support    of   this     position,   -

                                     he    presents      documents

                         JE 71, where he had worked for about 20 years
                                                                       from   IIIIIIII

before departing for Afghanistan,            JE     13   at 1.     The documents

purport to show that Al-Adahi requested six months of non-paid
                                                          16
leave on July 9, 2001.         Id. at Attachment B.            They also purport

to show that he was on the company's payroll in June of 2000 and

April of 2001, id. at Attachments C, E; that he was eligible for an

annual bonus for 2000, id. at Attachment D; and that he appeared on

a list of employees whose staff allowances were not subject to

retirement deduction in 2000, id. at Attachment F.                   Each document

was signed, and many were stamped.            Id.

      Petitioner has represented that they are authentic documents,
based chiefly on the declaration of-                           an employee at the

National Organization for Defending Rights and Freedoms (UHOOD") .

.Pet. ' s Ex.   (UPE")   2._         reports that he delivered counsel's

request for these documents to the                                            via a
relative of Al-Adahi' s,       and then emailed counsel the documents
contained in Joint Exhibit 71.            PE 2 at 2.

      The Government objects to the reliability of the documents.

It points out several mis-translations of key dates, including one


     16   In what appears to be the only instance in the record



to_'
where Al-Adahi veered from his story that he intended to spend an
extended period of time in Afghanistan, he told interrogators in
2006 that Uhe was only to stay one day [in Afghanistan] and return
            JE 25 at 2.
                                      -27­
                                  -

where the company cut ties with Al-Adahi because of his inclusion

on a February 2001 list of Guantanamo Bay detainees.                     JE 71 at

Attachment A.     Because the facility was not detaining suspects in

the War on Terror at that point, the Government argues that the

accuracy of the documents cannot be relied upon.

     The                                      evidence is problematic for a

number of reasons.         First the Petitioner, has not asked for and

does not start with a presumption of authenticity for the documents

he produces.     Second,     there are gaps in the chain of custody of

these documents.        Third, it is unclear who entered the information

contained   in    them,    and   whether      such   information   was    entered

contemporaneously.        Fourth, they contain factual and/or translation

errors--such as     the statement about the February 2001 list of

Guantanamo Bay detainees--that raise serious doubts about their

accuracy.   In short, they do not prove that Petitioner was not in

Afghanistan in early 2000 whenllllllsays he was.

     Despite     this    conclusion,    it is still difficult        to credit

_ _ assertion that AI-Adahi was at Al Farouq in January or

February 2000.     AI-Adahi's consistent statements to interrogators,

as well as his in-person testimony during this proceeding,                    all

place him in Afghanistan no earlier than July of                   2001.      The

Government has presented no evidence other than _ c o m m e n t to

contradict this timeline.         Instead, it suggests that AI-Adahi is·


                                       -28­
unreliable and manipulative at times, and therefore his statements

cannot    be   accepted    as   to    the     commencement   of    his     time    in

Afghanistan.

     This argument is difficult to credit in full. The Government

relies heavily on Al-Adahi/s inculpatory admissions.                      It cannot

have it both ways, i.e"         when he says something that supports the

Government's position he should be believed,                 but when he says

something that contradicts the Government's position he is a liar.

Finally, it is an assertion that is not backed up by facts: there

is no evidence in the record that Al-Adahi was involved in activity

related   to   al-Qaida     and/or    the   Taliban   before      July of     2001.

Without more, the Court cannot rely on _ s t a t e m e n t . l ?

     Further undermining the reliability ofillllllllcomments, the

record    contains      evidence     that   IIIIiI   suffered     from     "serious

psychological issues."          JE 29 at 1; Pet./s Mot. at 17-18.                 The

Government     itself    has expressed skepticism about            the value of

_         statements,     and noted his attempts to manipulate other

detainees into undermining intelligence efforts.                  PE 4.     For all

these reasons, the Court concludes that his identification of Al-


     I?   It bears mentioning t h a t _ retracted his allegations
against Al-Adahi in two separate documents.   JE 81; JE 82.   The
recantations are somewhat generic, and inconsistent with each
other.  Their main impact is not to prove one version o f ~
account right or wrong, but to suggest that his statements about
AI-Adahi are scattered, difficult to interpret, and not probative
of anything.

                                       -29­
 Adahi as a           trainer is not reliable independent evidence that

 Petitioner occupied that role.
         The Government maintains that _                       testimony is accurate

 when it is considered in light of AI-Adahi's intimate knowledge of

 Al Farouq's operations and recruits.                       In several intelligence

  reports,   b(1 )


 JE 52 at 3; JE 26 at 5,          b(1 )                                               JE
             b(1 )
  52 at 2,                                                          id. at   1-2,_
b( 1)                                                                          id. at 3.

 This knowledge, the Government argues, could only be possessed by

  a person who was entrusted with a supervisory role in the camp.

         The Government is not correct.                AI-Adahi's detailed knowledge
  of camp routine could well have been developed during his seven-to­

  ten-day stay there.            Similarly, the information that he provided

  about other recruits could have come from conversations with them

  about their prior travels and future plans.                  For instance, the fact
  that he was familiar with the routines followed by the Africans may
  prove only that AI-Adahi was observant; moreover, all of AI-Adahi' s

  descriptions were of their training habits only, which he could

  have observed from afar.                Id.    Though the Africans did not speak

  Arabic, Petitioner had access to them at "the mosque, chow hall
  area    and        sometimes    at      fitness      training,"     where   non-verbal

  communication could have taken place.                      Id. .    The Government' s


                                                -30­
corroborative evidence on this point is highly speculative,                             and

does not confirm b(1), b(6)          • ubious   allegation.

      For all these reasons, the Court finds that the Government has

not established that Al-Adahi was a trainer at Al Farouq.

              4.       Bodyguard for Usama Bin Laden

      To establish its allegation that Al-Adahi was a bodyguard for

Bin   Laden,       the       Government    makes    an   argument       similar   to    its

contention that Petitioner was an instructor at Al Farouq.                               It

offers what it calls "direct" evidence from another detainee that

Al-Adahi      did     security      work    for    Bin   Laden,        and   attempts    to

substantiate that evidence by pointing to Al-Adahi's familiarity

with other Bin Laden bodyguards.                  The Government does not meet its

burden on this point.

      The principal evidence to support this allegation comes in the
          b(1), b(2), b(6)
form of




                                                          b(1), b(6)




                     JE 35 at 1-2.


                                            -31­
                                                    rd.     There is absolutely no

 other mention in the record of Petitioner's involvement with a

Taliban prison, except for his denial of this accusation during his

 testimony.        Tr. at 31-32 (June 23, 2009).

         Although    the   intelligence        reports do       not mention whether
b(1), b(2), b(6)                                                               accounts

 are     lengthy and detailed,         which are          two   important   indicia of

 reliability.       Nonetheless, the witness himself suffers from serious

 credibility        problems   that    undermine          the    reliability    of   his

 statements.       JE 57 at 1-4       (outlining psychological problems and

 self-harm incidents) i        JE 75     (independent assessment of medical

 records); JE 76 at 3, 5        b(1), b(6)          report of torture by Taliban,

 and emotional problems brought on by father); JE. 91                       (containing


                                             -32­
                                         'aLI.. &!

August 2005 admission bylllllllllthat he lied in past, and promise
that he will not lie again).               What is equally worrisome is that
before       ~made            the    above        statements,     interrogators       had
expressed      concern     that     he   was      being manipulated      by    another
detainee.      JE 87 at 2; before being placed next to that detainee,
_            had   never   made     any of        the    claims   that   he    made    to
interrogators, including the accusation against AI-Adahi. Id.
         Further, the Government's corroborative evidence does little
to compensate for the deficiencies specified above.                           There is




Similarly, there is evidence that Al-Adahi had a Casio watch when
captured, JE 45 at 3, which the Government argues is a telling
piece of al-Qaida paraphernalia.                  Gov Mot. at 16-17.
         The Government asks the Court to infer that because                  1IIIIIIII
b(1 )
                                                         at some point during his


                                                                              credible.
That confirmed detail, in turn, would strengthen the reliability of
b(1), b(6)
                                                      The inference simply does not
make sense--or in the words of a noted legal philosopher, "that dog


                                           -33­
                                   5

won't hunt.   1/18



       A seemingly stronger argument is made by reference to AI­

Adahi's description of other Bin Laden bodyguards.             In a      2008

interrogation,       Petitioner provided biographical      sketches   of    a

number of men who he claimed were Bin Laden bodyguards.         JE 51.     In

all, he provided similar information for 12 bodyguards.         Id. at     4­

8.     In the Government's view,        this familiarity with Bin Laden's

protectors suggests that AI-Adahi knew these men well, and worked

closely with them.        It argues that such a conclusion,      if true,

would corroborate b(1), b(6)       account.

       The Government's position has some appeal.           AI- Adahi does

provide factual details about the other bodyguards that, on the

surface, seem to indicate more than a passing familiarity with the

men.    For instance, one man, •                          had "fat thighs

but was quick."       Id. at 6.    Another knew how to read, write, and

speak English.       Id. at 5.    These are the sort of personal details

that one does not usually learn about during a            casual meeting;

rather, they suggest a closer relationship.

       The Court ultimately cannot credit this evidence as sufficient

corroborative information to help carry the Government's burden.

Upon careful analysis,         the biogra phical ske tches of the alleged



     18   Needless to say, •                                              are
hardly unique items, even in

                                        -34­
                                                                        -   - ---    . ............





bodyguards are not as significant as the Government portrays them
to be.    First, it is not clear from the intelligence report which
parts of the sketches were provided by Petitioner and which were

conclusions inserted by intelligence officials.                               Second, in many
cases, AI-Adahi (if he was the source of all of the information)
knew no more than a man's hometown, general familial relationships,
and physical attributes.                    Given the length of his stay Withilllllll
and the fact that he met some of the men on more than one occasion,
he could have assembled this information,                              along with the more
idiosyncratic descriptions above, based on informal interactions
with them, especially since so many of them were from Taiz.                                      It
need not be the case that the only reason AI-Adahi could have come

across this evidence was because he shared bodyguard duties with
them.
        Because   b(1), b(6)                account         of   AI-Adahi's     activities       is
undermined severely by the witness's psychological problems and

checkered history of reliability, the account cannot stand on its
own to carry the Government's burden.                              The Government's use of
speculative evidence about                   b(1 )                                           does
little to shore up             b(1), b(6)            statements.      Finally, Petitioner's
familiarity with other bodyguards does not, without more, compel
the conclusion that he knew the men as a result of his service as
a Bin Laden bodyguard.


                                                     -35­
           5.

     Following        his    brief
                                       -

                  Post-Training Activities

                                     period      of   training,     the   Government

contends that Petitioner engaged in activities that demonstrate a

continued commitment to al-Qaida.                The Government marshals pieces

of circumstantial evidence to support its allegations that after

training, AI-Adahi fought for al-Qaida, stayed in the company of

al-Qaida fighters,          and then was arrested on a bus while fleeing

from Afghanistan to Pakistan with al-Qaida soldiers.

     First,     the Government alleges that Al-Adahi participated in

battle as an al-Qaida fighter.            The Government has no statements or

confessions to support its allegation that Al-Adahi fought; rather,

it builds its case by pointing to inconsistencies in AI-Adahi's

versions of the events that led up to his capture,                        as well as

inferential     evidence      that     suggests    terrorist      conduct.      In the

absence   of    any    affirmative       evidence     of   this    allegation,      the

Government argues that AI-Adahi's travel pattern during September

of 2001 closely tracked the location of several battles involving

al-Qaida forces.            See Gov.    Opp'n at 3-4.       Cf.    JE 4      (detailing

location of battles); PE 5.

     The Government argues that AI-Adahi's "cover story"--that he

was fleeing Afghanistan as quickly as possible after bombing of the

region--rings hollow.          It points to his general lack of credibility

in other areas,        including his explanation of an injury that he


                                          -36­
                                  &           &

suffered while fleeing,     to cast doubt on his version of events.

Also, the Government notes Bin Laden's edict that men must stay in

Afghanistan and wage jihad as evidence of Petitioner's reason for

staying in the country and fighting.            JE 55 at 4.

        The Government pointed to several accounts Petitioner offered

about how he suffered an injury to his arm and leg before being

captured.     However, each account included the same central detail

 that he sustained the injury after falling from a motorcycle in

Kandahar.    See JE 13 at 2; JE 33 at 6i JE 15 at 2; JE 14 at 1.             One

version of the story blames the accident on driving too fast and

hitting a cart, JE 15 at 2i a second version i n v o l v e s _
b(1 )
                                                        JE 33 at 6; in a third

 telling, Al-Adahi fell off of the vehicle while attempting to flee

Kandahar, JE 13 at 2.     Yet another version has Petitioner slipping

off the motorcycle.       JE 14 at 1.         According to the Government's
 reasoning, these slight variations, together with his "diplomatic"

 expulsion from Al Farouq and arrest on a bus with Taliban fighters,

 indicates that his motorcycle "cover story" conceals the truth that

 he was injured in battle.       Se~   Gov. Mot. at 20.
        It is correct that some minor details in the motorcycle story

are not described identically in each interrogation,              an~    this may

cast doubt on precisely how Al-Adahi was injured.             Nonetheless, the

Government     provides   only   speculation       to   resolve   that    doubt,


                                       -37­
                                      a        is
contending that his travel pattern and association with Taliban

fighters mean that         Petitioner took up arms.              Such a        serious

allegation cannot rest on mere conjecture, with no hard evidence to
support it. 19

     Unable      to    prove    the   more     serious    allegation      of    actual

participation in combat, the Government cannot rely solely on what

is only associational evidence about Al-Adahi's stay at b(1),                   b(6)


and arrest in the company of individuals rumored to be part of the
Taliban.   Such evidence is not sufficient to carry the Government's

burden.

     First,      the    Government     appears      to   pin   its     associational

evidence that         Petitioner was      captured while       traveling in the

company of Taliban fighters on a statement made by Al-Adahi that

\\ [a] fter his capture,        [he] heard that there were members of the

Taliban on the bus."           JE 14 at 2 (emphasis added)       .20    This second-

level hearsay suggests that Al-Adahi did not know the passengers'

identity before boarding, and that the information was passed on to
him by an unknown source.             Second, it is not clear what type of



     19   It must be emphasized that the Government had no evidence
from anyone who claimed to have seen or claimed to have even heard
that Al-Adahi was involved in combat activities.
     20   During an earlier bus ride, from Kandahar to Khost, Al-
Adahi reported that he rode with "wounded Taliban soldiers." JE 14
at 3. He departed that bus at Khost and boarded a bus for Miram
Shah. He was captured during or after this bus ride.
                                        -38­
bus--public or private--Petitioner boarded in fleeing Afghanistan;

moreover,     there    is   no evidence   that he   sought    to      join or was

already part of a band of fighters fleeing the region.                  See JE 14

at 2 (describing bus trip and arrest on bus).          Further, when he was
                                                              b(1 )
arrested on      the   bus by Pakistani authorities,     21

b(1 )
                                                             and was unarmed.

JE 98 at 1; JE 33 at 7.        He appeared to be attempting to escape the

chaos of that time by any means that he COUld.

        The   Government's     allegations   regarding   AI-Adahi's         post-

training activities are significant because they provide context to

Petitioner's admission about training.         In short, his conduct after

training at Al Farouq does not demonstrate that AI-Adahi took any

affirmative steps to align himself with al-Qaida.             The record shows

that he returned to b(1), b(6)      house for a few weeks, attempted to

flee Kandahar,        injured himself and received treatment,            and then

again made efforts to escape Afghanistan.           The Government offered




     21   In another recounting of his story, AI-Adahi boarded the
bus from Khost, and headed toward Miram Shah with Arabs and
Pakistanis (the same groups he said were on the bus in JE 98). JE
14 at 3. However, the arrest took place in a "large, modern city,
with a large market area;" Petitioner had walked there after
leaving the bus several hours earlier. Id. He stated that he had
his ass ort with him.


          Th~s  1nconsis ency
underlying fact of his arrest
is not in dispute.  Cf. JE 14

                                      -39­
no    substantive      evidence    that       he      continued      on     a    course   of

substantial support for al-Qaida.                    Instead,    it appears that once

his   break with       the   group was       initiated by al-Qaida,                Al-Adahi

accepted his expulsion and never attempted thereafter to become a

member or supporter of al-Qaida, or to further its activities in

any way.

IV.     CONCLUSION

        When all is said and done,            this is the evidence we have in

this case.       AI-Adahi probably had several relatives who served as

bodyguards for Usama Bin Laden and were deeply involved with and·

supportive of al-Qaida and its activities.                      One of those relatives

became his brother-in-law by virtue of marriage to his sister,

I11III    AI-Adahi accompanied his sister to Afghanistan so that she
                                        b(1), b(6)
could be with her husband and

_.             The wedding celebration was held in Bin Laden's compound

and     many    of   his   associates     attended.             At   that       celebration,

Petitioner was introduced to Bin Laden, with whom he had a very

brief conversation.          Several days later, the Petitioner had a five­

to-ten-minute conversation with Bin Laden.

        Thereafter, Petitioner stayed at an al-Qaida guesthouse for

one night and attended the Al Farouq training camp for seven to ten

days.      He was expelled from Al Farouq for failure                           to obey the

rules.         This training represents the strongest basis that the


                                          -40­
Government has for detaining Al-Adahi.      However, under the AUMF and
the standards described in Gherebi, Petitioner's brief attendance

at Al Farouq and eventual expulsion simply do not bring him within

the ambit of the Executive's power to detain.

      After his expulsion, Al-Adahi returned to the home of his
sister and brother-in-law for several weeks and then traveled to
other places in Afghanistan because he had no other obligations.

Like many thousands of people, he sought to flee Afghanistan when

it was bombed shortly after September 11, 2001.

      There is no reliable evidence in the record that Petitioner
was a trainer at Al Farouq, that he ever fought for al-Qaida and/or

the Taliban, or that he affirmatively provided any actual support

to al-Qaida and/or the Taliban.       There is no reliable evidence in

the record that Petitioner was a member of al-Qaida and/or the
Taliban.     While it is tempting to be swayed by the fact that
Petitioner   readily acknowledged having met         Bin   Laden   on   two

occasions and admitted that perhaps his relatives were bodyguards

and   enthusiastic   followers   of   Bin   Laden,     such   evidence-­
sensational and compelling as it may appear--does not constitute
actual,    reliable evidence that would justify the Government's

detention of this man.     For these reasons, and the reasons set

forth above, the Court grants the petition for a writ of habeas

corpus.


                                  -41­
                                      ItIQ
     Mindful of the limitations on the scope of the remedy in this

situation, see Kiyemba v. Obama, 555 F.3d 1022, 1024 (D.C. Cir.

2009),   the    Court   further    orders   the   Government        to    take   all

necessary      and   appropriate     diplomatic     steps      to        facilitate

Petitioner'S     release   forthwith.        Further,   the    Government         is

directed to comply with any reporting requirements mandated by the
Supplemental Appropriations Act, Pub. L. No. 111-32, 123 stat. 1859

(2009), if applicable, to facilitate Petitioner's release, and to

report back to the Court no later than September 18, 2009, as to

the status of that release and what steps have been taken to secure
that release.

                                              lsi
August _, 2009	                              Gladys Kessler
                                             United States District Judge


Copies to: Attorneys of Record via ECF




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