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### eso: tlSL DATE:

........-{;fH-"f4>'!!/-­ l!IJ!1CIt'l!lT UNITED STATBS DISTRICT COURT POR THB DISTRICT OP COLUMBIA PARRI SAEED BIN MOHAMMED, et. al., Petitioners,


### v. Civil Action No.**OS-~347** 

### (GK) BARACKH. OBAMA, et. al., Respondents.
MEMORANDUM OPINION Petitioner Farhi Saeed Bin Mohammed ("Mohammed" or "Petitioner") has been detained since 2002 at the United States NavalBase at GuantanamoBay, Cuba. Respondents ("theGovernment") argue that his detention is justifiedunder 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. Petitionerdisagrees, andhas filed a petitionfor a writ of habeas corpus [Dkt. No.1). The matter is before the Court on Cross-Motions for Judgment
on the Record [Dkt. Nos. 215-17]. Upon consideration of the Motions, the Oppositions, extensive oral argument and accompanying eXhibits, and the entire record herein, Mohammed's habeas corpus petition and Motion are hereby granted. BSeU'i'

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### Because of the lengthof this Opinion, the Court includes the following Table of Contents: I. Procedural History 3 II. 

### Standard of Review 7 III.Analysis 10 A. Evidentiary Presumptions 10 B. Mosaic Theory 13 C. Government Allegations 16 1. Use of False Names and Documents 17 2. Attendance at London Mosques 20 3. Recruitment and Travel to Afghanistan 23 4. Guesthouse Stay 28 5
. Training 40
a. The Government's Evidence 42 b. Petitioner's Attacks on the Government's Evidence 47 i. Torture Allegations 48 ii. Legal Analysis 57 iii.Reliability of Evidence Procured Subsequent to Torture
....61 d. Remaining Allegations Regarding Training.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .70 6. participation in Battle 72 IV. Conclusion 75

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### I. PROCEDURAL HISTORY Petitioner filed his habeas corpus petition on July 6, 2005. After filing, there was extensivepreliminary litigationregarding 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 UnitedStates, are entitledtobringhabeaspetitionsunderArticle I of the Constitution, and that the federal district courts have jurisdiction to hear suchpetitions. 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 holdthat the writmust issue. These andotherquestions regarding the legality of the detention are to be resolved in the first instance by the District Court."). Nor did the Supreme Court set forth specific procedures for the District Courts to follow in these cases. SBelU!I'f -3­

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Boumediene was, however, definitive on at least two points: first, that the detainees are entitled to a prompt hearing, id. at 2275 ("The detainees inthese cases are entitledto 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 theircasesbefore former ChiefJudgeThomas Hogan, for purposes of streamlining procedures for, and management of, the several hundred petitions filed by detainees. See Order (July 1, 2008) [Civ. No. 08-442, Dkt. No.1]. On November 6, 2008, after extensive briefing from Petitioners' counsel and the Government, Judge Hogan issued a Case Management Order ("CMO") to govern the proceedings. This Court adopted, in large part, the provisions of that Order, while modifying it somewhat, as noted inAppendixA to Dkt. No. 147. Much pre-hearing activity has taken place under this Court's CMO. The Government has filed the exculpatory evidence, automatic discovery, and additional discovery required under the CMO. The

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## s:seH'!' Government filed its Factual Return for Mohammed on November 15, 2005 [Dkt. No. 10] andOctober 26, 2006, andamended it onNovember 26, 2008. The Petitionerrespondedby filing his Traverse onMarch 17, 2009 [Dkt. No. 232]. After a period of extensive discovery, both parties filed substantial briefs accompanied by voluminous eXhibits. OnJuly 14, 2009, the court set September 3, 2009, as the date for the Merits Hearing on the Cross-Motions for Judgment on the Record for Petitioner. Mohammed elected not to listen in via telephone totheunclassifiedopeningarguments, and alsochosenot totestifyviavideo-conference fromGuantanamoBay [Dkt. No. 230]. Parties presented their arguments during a two-day, mostly classified session. At the close of theHearing, the Court ordered additional briefing on the issue of the admissibility of evidence procured by torture, or procured from an individual who had been tortured prior to providing the evidence upon which parties rely. Minute Order (Sept. 4, 2009). On September 28, 2009, parties submittedbriefs setting forth theirpositions on this issue [Dkt. Nos. 247-48]. Between the filing of Mohammed's habeas corpus petition and the Merits Hearing, the Government has made at least two determinations regarding his detention status. Petitioner was cleared for release by the Administrative Review Board ("ARB") in SHea'! -5­

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### 2008 Order [Dkt. No. 56].

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### September of 2007. See Pet.'s Mot. To Lift the Stay of Proceedings, Orderthe Government toProvide FactualReturnandSet
a Scheduling Conference at 2 n.1 [Dkt. No. 33].

See Sealed Notice of Status [Dkt. No. 189]. Inadvanceof that decision, parties filed a Joint Motion to Stay Proceedings [Dkt. No. 175], which the Court granted
on May 13, 2009. Another stay was entered at the request of the Government on June 11, 2009. See Order [Dkt. No. 193].

all stays inthe case were liftedonJuly 14, 2009,
over the Government's objection, thereby allowing the Merits Hearing to proceed. See Order (July 14, 2009) (setting dates for Merits Hearing) [Dkt. No. 205]. There is one other procedural event that bears mention.
..

Notice Pursuant to the Court's July 10,

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SHeD'!

by the Court of Appeals in Kiyemba v. 

### ID.ls.h, 561 F.3d 509 (D.C. Cir. 2009), reh'g and reh'g en bane denied, No. 05-5487 (July 27, 2009). See Order (Sept. 29, 2008) [Dkt. No. 80].

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

motion is pending. II. STANDARD OF REVIEW TheGovernmentbears theburdenof establishingthatdetention 

### is justified. See Boumediene, 128 S. Ct. at 2270; Hamdi, 542 U.S. 507, 533-34 (2004). It must do so by a preponderance of the evidence. Order, Appendix A at § II.A (Feb. 12, 2009) [Dkt. No.**~47-2];** see also Basardb v. Obama,**6~2** F. Supp. 2d 30, 35**n.~2** (D.D.C. 2009). Initially, the Government took the position that bothArticle 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). In December of 2008, the

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Government asserted, "[a]t a minimum,

. the ability to detain
as enemy combatants those individuals who were part of, or supporting, forces engagedinhostilitiesagainst the UnitedStates
or its coalitionpartners andallies." Resp't's StatementofLegal Justification For Detention at 2 [Dkt. No. 105]. Since the change in Administrations, the Government has abandonedArticle II as a sourceof detentionauthority, andrelies solelyon the AUMF. Gherebi, 609 F. Supp. 2d at 53 n.4. Further, itno longeruses the term "enemycombatant." Its refinedposition is: [t]he President has the authority todetainpersons that the Presidentdeterminesplanned, authorized, committed, oraidedthe terroristattacks thatoccurredonSeptember 11, 2001, andpersons whoharbored 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 thatareengagedinhostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supportedhostilities, inaidof suchenemyarmed forces. Resp't's Revised Mem. Regarding the Gov's Detention Authority Relative to Detainees Held at Guantanamo Bay at 3 [Dkt. No. 153]. In Gherebi, Judge Reggie B. Walton of this District Court ruled that the Government has the authority to detain individuals who were part of, or substantially supported, al-Qaida and/or the Taliban, provided that those terms "are interpreted to encompass onlyindividualswhoweremembers of the enemyorganization's armed SECRE'i' -8­

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SB8RB'f' forces, as that term is intendedunder the laws of war, at the time of their capture." Gherebi, 609 F. SUpp. 2d at 70-71. The opinion discussedthe criteriarelevanttodeterminingwhetherdetentionin
a specific case complies with the laws of war. Id. at 68-70; see also infra at Section IV. In Hamlily v. Obama, 616 F. Supp. 2d 63 (D.D.C. 2009), JUdge JohnBates of this District Court concludedthat, under the laws of war, the Government has the authority to detain individuals who
were "part of
. Taliban or al[-]Qaida forces," or associated forces. rd. at 74. The court went on to rule that the Government does not have the authority to detain those who are merely "substantial supporters" of those groups. Id. at 76. While the Court has great regard for the scholarship and analysis contained inbothdecisions, the Court concludes that Judge Walton's opinion presented a clearer approach, and therefore will adopt his reasoning and conclusion.1

1 The Court agrees with Judge Bates' comment that the determination under Judge Walton's approach of who was a "part of" al-Qaida and/or the Taliban, rests on a highly individualized and case-specific inquiry; as a result, the "concept [of substantial support] may play a role under the functional test used to determine who is 'part of' a covered organization," and the difference in the two approaches "should not be great." Hamlily, 616 F. Supp. 2d at 76. SEC!t!!:'! -9­

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III. ANALYSIS 

### A. Evidentiary Presumptions As a preliminary matter, some attention must be given to the nature of the evidence that has been presented in this case, and how the Court, as fact-finder, will go about evaluating that evidence. In attempting to meet its burden, the Government has provided evidence in the form of classified intelligence and interview reports that it believes justify the Petitioner's detention. The reports contain the statements of Petitioner, as well as statements made by other detainees, that the Government argues demonstrate the Petitioner's status as a member or substantial supporter of al-Qaida and/or the Taliban. The Government requested that a rebuttable presumption of authenticity be granted to all the exhibits it intends to introduce.2 

### Gov's Mem. Regarding Presumptions, Hearsay and Reliability of Intelligence Information at 2 ("Gov Presumptions Mem.") [Dkt. No. 171]. Giventhe Government's representations that the specific documents included in its case against Petitioner, as well as the documents provided to Petitioner's counsel in

2 

### Ordinarily, "the requirement of authentication requires that the proponent, who is offering a writing into evidence as an exhibit, produce evidence sufficient to support a finding that the writing McCormick is on what

Evidthe enceproponent claims § 

### 221 (6th ed.). it to be." 2 K. Broun, 

### SBCRB!'

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### SBeaT discovery, have all been maintained in the ordinary course of business, id. at 4-5, the Court will presume, pursuant to Fed. R. Evid. 803(6), that its documents are authentic. As providedfor in the Case Management Order, the Government's exhibits will be granteda rebuttablepresumptionof authenticityandwillbedeemed authentic in the absence of any rebuttal evidence to the contrary. The Government has also requested that a rebuttable presumption of accuracy be granted to all the exhibits it intends to introduce. Id. at 2. Petitioner takes issue with the reliabilityof the evidence offeredby the Government. Pet. Farhi Saeed Bin Mohammed's Mot. For J. On the Record at 11-21**(~Pet.'s** Mot.") [Dkt. No. 217J. The Government's request is denied for several reasons. First, there is absolutelynoreasonfor this Court topresume thatthe facts containedintheGovernment's exhibits are accurate. Giventhe extensivebriefingandoralargumentpresentedbycounsel during the discovery phase of this case, as well as the exhibits submitted at the Merits Hearing, it is clear that the accuracy of much of the factual material contained in those exhibits is hotly contested for a host of different reasons ranging from the fact that it contains second-level hearsay to allegations that it was obtainedby torture to the fact that no statement purports to be a verbatim account of what was said.
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8ECltEY 

### Second, given the fact that this is a bench trial, the Court must, in any event, make the final jUdgment as to the reliability of these documents, the weight to be given to them, and their accuracy. Parhat v. Gates, 532 F.3d 834, 848 (D.C. Cir. 2008) ("[The Court] must be able to assess the reliability of the evidence [for itself]."}.3 Those final judgments will be based on
a long, non-exclusive list of factors that anyneutral 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.4 

### See Hamlily
v. Obama, Civ. No. 05-763 at 4-7 (D.D.C. Aug. 21, 2009) (order discussing evidentiaryburdens); but see Bostanv. Obama, civ. No. 05-883, 2009 WL 2516296, at *2 (D.D.C. Aug. 19, 2009). Denial of the Government's request for a rebuttable

That Parhat came before the Court of Appeals in a different procedural posture does not undermine the principles it set forth regarding the need for the courts to assess the reliabilityof the Government's evidence. See Khan v. Obama, Civ. No. 08-1101, 2009 WL 2524587, at *2 n.2 (D.D.C. Aug. 18, 2009).

4 

### While the Supreme court did suggest in Hamdi that a rebuttable presumption "in favor of the Government's evidence" might be permissible, 542 

### U.S. at 534, it did not mandate it. In Boumediene, the court clearly left it to the District Courts to craft appropriate procedures. Boumediene, 128 S. ct. at 2272.
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presumptionof accuracydoes notmean, however, that theGovernment 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, hearsaymaybeappropriatelyadmittedin these cases because of the exigencies of the circumstances. Finally, while parties always retain the right to challenge the admissibility of evidence, the Court will be guided by the Federal Rules of Evidence, in particular Rule 402, providing that
u[a]11 relevant evidence is admissible." Once all evidence is admittedinto the record, the Court will then, in its role as factfinder, 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 theoryis that eachof these allegations­ -and even the individual pieces of evidence supporting these allegations--should not be examined in isolation. Rather, u[t]he probity of any single piece of evidence should be evaluated based
on the evidence as a whole" to determine whether, when considered "as a whole," the evidence supporting these allegations comes together to support a conclusion that shows the Petitioner to be SEeR!:'f'

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justifiablydetained. Gov's Mot. For J. Upon theAdministrativeR. and Mem. in Supp. at 6 (internal citation**omit~ed)** ("Gov's Mot.") [Dkt. No. 215]. While the Government avoids an explicit adoption of themosaic theory, it is, as a practicalmatter, arguing for its application to the evidence in this case. Cf. Ali Ahmed v. Obama, 613 F. Supp. 2d 51, 55-56 (D.D.C. 2009). The court understands from the Government's declarations, and from case law,s that use of this approach is a common and wellestablished mode of analysis in the intelligence community. This may well be true. Nonetheless, at this point in this long, drawnout litigation the Court's obligation is to make findings of fact andconclusions of lawwhich satisfyappropriate andrelevant 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. Evenusing the Government's theoretical model of a mosaic, it

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

### must be acknowledged that the mosaic theory is only as persuasive
as the tiles which compose it and the glue which binds them together--just as a brick wall is only as strong as the individual bricks which support it and the cement that keeps the bricks in place. Therefore, if the individual pieces of a mosaic are inherently flawed or do not fit together, then the mosaic will split apart, just as the brick wall will collapse. 6 

### Afinal point must be kept inmind. 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
nowitnesses tocross-examineordepositiontranscripts toconsult. Sizeable gaps may appear in the record and may well remain unfilled; eachpartywill attempt toaccount for these deficiencies by positing what they think are the most compelling logical inferences to be drawn from the existing evidence. Accordingly, that evidence which does existmust be weighed and evaluatedas to its strength, its reliability, and the degree to which it is corroborated. In any event the Government always bears the I 

### ultimate burden of showingby a preponderance of the evidence that

6 

### Lest there be any confusion on this point, the Court wishes tomake clear that itdoes examine "the evidence as a whole" and does try to contextualize it, given the limited perspective that the facts of any individual case offer. Having saidthat, the individual tiles must still be strong enough to keep the entire mosaic from falling apart.
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SJ!@IU!l'!' Petitioner's detention is lawful. Just as a criminal defendant neednotprove his innocence, a detainee neednot prove that he was acting innocently. In sum, the fact that the Petitionermaynotbe able to offer air-tight answers to every factual questionposedby theGovernment does notrelieve theGovernment of its obligationto satisfy its burden of proof. 

## c. Government Allegations Before trial, the substantive factual areas in dispute were narrowed down to (1) Petitioner's use of an alias or false name prior to and after his detention at Guantanamo Bay, (2) Petitioner's use of a false passport, (3) Petitioner's attendance at two mosques in London, (4) the role of terrorist networks in recruiting Petitioner and facilitating his travel to Pakistan and Afghanistan; (5) Petitioner's stay at an Algerian guesthouse in Pakistan, (6) whether or not Petitioner trained at a terrorist camp, and (7) whether or not Petitioner participated in battle. According to the Government, the record demonstrates that Petitioner traveled, trained, and fought on behalf of al-Qaida and/or the Taliban, and his cover story to the contrary must be rejected as too incredible to be true. Petitioner denies having any connection to terrorist groups. He insists that he fled Algeria due to family problems and in

SII@R;I!I'!'

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8B8Ri!1'f:' search of economic opportunities in Europe. See JE 177 at 1 (reporting Petitioner's explanation of his background). He lived in France and Italy as an undocumented alien for several years before traveling to the United Kingdom in 2001. Id.; Pet.'

### s Traverse in Support of Pet. for Habeas Corpus at 37 ("Traverse"). While in Europe, Petitioner claims he attended mosques and met peoplewho suggested that he go toAfghanistanto find a particular Swedishwoman known to Rahim (a recruiter) who wouldbe willing to marry him so that he could obtain citizenship to stay in Europe. JE 15 at 4; JE 17 at 2-3. The Court will now examine the evidence relating to each of the factual areas in dispute. 

### 1. Use of False Names and Documents The Government claims that Mohammed had a history of using false names and a false passport. It points to instances in the record where Petitioner, both during his time in Europe before arrivingintheUnitedKingdomandduringhis time inUnitedStates custody in Pakistan and at Guantanamo Bay, reported that his name
was "Abdullah" or misrepresented where he was from. JE 15 at 5 (telling American interviewers that he was French); JE 53 at 10 (same); JE 16 at 1 (reporting that Petitioner told Pakistani
Parties submitted a volume of Joint EXhibits, which comprises the vast majority of evidence presented during trial. Unless otherwise indicated, citations to "JE" refer totheuniverse of Joint Exhibits.
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### SHeRE!' authorities that he went by "Abdullah"). Additionally, Petitioner purchased a stolen passport while living in Italy. JE 15 at 2. The name on the passport was Oliver Jean Christian Marie Joseph Bayart. Mohammed used the name Bayart, in addition to Abdullah, when being interviewed by American and Pakistani authorities. JE 53 

### at 10; JE 16 at 1. The recordestablishes that Mohammedusedthis false name andpassportwhenenteringtheUnited Kingdom. JE 15 at 3. He also relied on this information when he traveled from London to Pakistan in 2001. at 4. Petitioner has little to say in refutation of these facts. The dispute lies in the inferences that parties ask the court to draw from the facts. Traverse at 35-36; 53-54. 

### Petitioner insists that "Abdullah" isa kunya, anhonorificname commonlyused among people in Middle Eastern cultures. Id. at 35-36. 

### He also argues that the use of false names and documents was essential for him to survive as an undocumented alien trying to find work and a home in Europe. See id. at 37; see also Pet.'s Mot. at 18-19 (explainingMohammed's intentions toelude immigration authorities and find work in Europe). When considered 

### in this light, Petitioner argues that his use of "Abdullah" and the Bayart passport were not related to any alleged terrorist activity. The Government maintains that the false names and passports demonstrate that Petitioner is a deceitful person who was L!!IBeu!'



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### SEeDY accustomedtomisrepresentinghimself toauthorities. Inaddition, while there is nothing inherently incriminating about using a kunya, the Government argues that these names are common among terrorists, who use them to hide their true identities. JE 11. Further, Petitioner's admission of adopting**~Abdullah"** as a kunya corroborates otherwitnesses' identification of Petitionerby that
name. Gov's Mot. at 28-29. Given that in the years before the attacks of September 11, Petitionerhadregularlyusedfalse namesandpassports inorderto avoid detection while he attempted to live and work in Europe without legal status, it is doubtful that the fact that he engaged in such conduct after September 11 proves anything regarding his 

# , support of al-Qaida. See. e.g., JE 15 at 1-2 (explaining how Petitioner went from Algeria to France to Italy while evading authorities and working odd jobs). For this reason, Petitioner's conduct with respect to false names and documents is not alone sufficient to justify his detention. However, this conduct certainly demonstrates his willingness and ability to lie to the authorities and evade compliance with the law when it suited his purposes. For this reason, the Courtwill considerthis evidence's significance in light of other allegations as the remainingpoints in the Government's case are analyzed.

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### 2. Attendance at London Mosques Like the evidence that Petitioner used a kunya at times and that he submitted false names and passports to authorities, there is little dispute about the fact that he attended certainmosques in London after arriving there in 2001. The record shows that Mohammed frequented the Baker Street Mosque, and also made visits to the Finsbury Park Mosque, during the several months that he lived in the United Kingdom. See JE 15 at 2-3 (reporting Petitioner's admission thathe attended Finsbury Park six to seven times, and Baker Street frequently); see also JE 17 at 2 (same). The significance of this attendance, from the Government's perspective, is that these particular mosques served as critical postswithinanal-Qaidarecruitingnetwork. The Government argues that the Baker Street and Finsbury Park Mosques were important recruiting centers for youngMuslims in the United Kingdom. JE 10 at 1; JE 48 at 6; JE 52 at 7 (New York State Office of Homeland Securityreport referring to Finsbury Park Mosque as**~a** keyjihadi breeding ground"); JE 23 at 3 (describing third-party detainee's comments that Finsbury Park was recruiting center for jihadists). In 2003, according to a Defense Intelligence Agency declaration about the Finsbury Park Mosque, British security services raided the site and then shut itdown after finding links to terrorist activity. JE 10 at 1; JE 48 at 6. The declaration SBORB'%"

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SZCKZY also states that several well-known terrorists with al-Qaida links attended Finsbury Park Mosque, including attempted shoe-bomber RichardReid, convictedSeptember 11plannerZacariasMossaoui, and participants in the July 2005 bombings in London. JE 10 at 1-2. 

### A radical cleric at the Finsbury ParkMosque, AbuHamza aI-Masri (aka Mustafa Kernel) ("Hamza"), served as its imam. Britishauthorities detained Hamza in 2004. JE 10 at 1; JE 48 at 6. According to the Government, Mohammed's involvement in this world, in combination with his illegal entry into the United Kingdom and later activity in Afghanistan, is probative of his being part of or substantially supporting al-Qaida and/or the Taliban. Gov's Mot. at 10-11. TheGovernmentpoints toevidence thatMohammed frequentedthe mosques. See JE 15 at 2-3; see also JE 17 at 2; JE 46 at 5. Petitioner, according to an intelligence report summarizing his statements, had become a more devout follower of Islam during his years in Italybefore 2001. JE 15 at 2. AlthoughMohammed denies having any relationship with Hamza, the record does show that Petitioner was familiar with the cleric and heard him speak on at least one occasion. JE 15 at 3 (reporting that Petitioner told interviewers, "Hamza talked about how he lost his arms fighting [j]ihad") i see also JE 44 at 3; JE 33 at 3 (indicating that Mohammed claimed that he saw Hamza only once); JE 17 at 2 (same).

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Perhaps most importantly, the Government argues, Petitioner's attendance at thesemosquesprovidedentrytothe terroristnetwork that eventually helped him fly to Pakistan and enter Afghanistan. Gov's Mot. at 10-11. Through his affiliation with Finsbury Park Mosque shortly after his arrival in London, Mohammed met and was befriended by Abdul Rahim. JE 15 at 4; JE 17 at 2. As discussed below, Rahim allegedly was a recruiter for al-Qaida, Gov's Mot. at 13, and was unquestionably instrumental in arranging Mohammed's travel to Pakistan and Afghanistan. JE 17 at 3; see also Pet.'s Opp'n at 18 (suggesting Rahim gave Mohammed a "glimmer of hope" in suggesting that he travel to Afghanistan)
. Petitioner offers a different interpretation of these facts. The mosques, according to his account, were simply centers of worship and community for him. Traverse at 37-39. He attended Finsbury Park Mosque "about six to seven times total while he was in London," JE 17 at 2, and then became a "frequent[]" visitor to the Baker Street Mosque for the remaining few months he spent in London, JE 15 at 3. Petitioner explained to interrogators that Baker Street Mosque served cheap food to attendees, which was important for a man of Mohammed's limitedeconomicmeans. JE 47 at 3 (reporting that Mohammed testifiedbefore the ARB that he "would eat at [the Baker StreetMosque] because the food was cheap"). He maintains that he did not seek out the mosques because they SS€u'!'

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8B8MIf' 

### supportedradicalpoliticalpositions; rather, as a newarrival in the country, he was directed to the Finsbury Park area, where he found living accommodations and a mosque. Id. at 3; JE 37 at 2. According toGovernment intelligence reports, he told interviewers thathehadno interest inthemosques' militant teachings, didnot watchextremist lectures andvideos aboutjihad, andwas generally ignorant of themosques' status inanyterrorist network. JE44 at 4; see also JE 46 at 2 (quoting Petitioner as telling the ARB, "[t]here was no sign on the mosque that said extremist mosque"). As with the evidence regarding false names and documents, detailsaboutMohammed'smosqueattendancearenotalone sufficient tojustifydetention in this case. However, the evidence on this pointmay indeedbe probative of his ties to terrorist groups when considered in conjunction with the more serious charges, as discussedbelow, whichrepresent the bulkof the Government's case againstPetitioner. Onlyafteranalyzingthe entirerecordcanthe Court determine whether the inferences that the Government draws from these facts are well-foundedandmake itmore likelythannot that Petitioner was a member and/or substantial supporter of alQaida and/or the Taliban. 3. Recruitment and Travel to Afghanistan 

### Based on the record, it is clear that Rahim--the friend whom Mohammedmet through the FinsburyParkMosque--conceived, planned, 8!1e!U!I'!'

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SBeRB'!' and funded Petitioner's trip to Afghanistan. JE IS at 4 (stating that Petitioner said Rahim directed him to meet a man named Mohammed when he arrived in Pakistan); JE 17 at 2-3. The route laid out for Mohammed took him first to Pakistan in June of 2001, and ultimately across the border into Afghanistan to the city of Jalalabad. Petitioner does not take issue with these facts; instead, he insists that he undertook this travel in the hopes of tracking down the Swedish woman who was willing to marry him so that he could obtain citizenship and remain in Europe. Pet.' s Opp'nat 18-19. Rahim had told him about the woman, about whom no
name or other details are ever provided in the record. Mohammed had never met the woman and did not know her name. rd. The Government argues that this explanation is implausible, and is designed to cast Petitioner's prior activity in a better light as well as hide his actual terrorist ties that took him from Londonto training camps in Afghanistan. Gov's Mot. at 13; 30-34. Rahim, as the Government points out, exercised a high degree of control over Petitioner's trip. Rahim initiated the idea of PetitionertravelingtoAfghanistan, thenhelpedhimacquire a visa to enter Pakistan, and paid for his one-way ticket. JE IS at 4. Petitioner used his fake Bayart passport to enter Pakistan, and carried with him 250 Britishpounds. rd. Rahim told Petitioner to seek out a Moroccan man named 8B@R:I!'f

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SHORB'f 

### Mohammed once he arrived in Islamabad, which he then did. Id.; JE 17 at 3. While Petitionerlaterprovideda physical descriptionof Mohammed tointerrogators, heknewnothingmoreabouthis contact's background. JE 17 at 3. 

### Petitioner stayed in Islamabad for one week before Mohammed paid for Petitioner to take a taxi to Peshawar, a citycloserto theeasternborderofAfghanistan. Id.; JE 15 at 4. PetitionerpaidMohammed sixtyBritishpounds for his services. The two then went to the house of a man named Abdul Rahman. Petitioner and Rahman drove Mohammad back to Islamabad, and then set off for a village near the Afghanistan border. Id. At that village, Petitioner and Rahman stayed with a friend of Rahman's for a few days, and thenRahman arranged for their travel into Afghanistan. Accounts vary in minor details, but it is clear from intelligence reports that Rahman purchased a 4x4 Mazda truck capable of negotiating mountainous terrain, and drove toward the Afghanistanborder. JE 15 at 4; JE 17 at 3 (indicating the Rahman, Petitioner, and Rahman's driver headed into the mountains). Once the road become unnavigable by truck, Rahman and Petitioner proceeded on foot. The two crossed the border into Afghanistan without showing passports or visas to anyone. Id. Once inside Afghanistan, Petitioner and Rahman took a taxi to Ja1alabad. Petitioner told interrogators that "[Petitioner] couldnot explain

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SHeR!' why Rahman was willing to do this." JE 17 at 3. InJalalabad, the two travelers headed to the Arab quarter of the city, where they ended their journey at theAlgerian guesthouse, runby a man named Abdul Hafiz. 

### Ml..:..: JE 15 at 4. Petitioner paid Rahman fifty Britishpounds, and Rahman returned to Pakistan. JE 15 at 4. Petitioner's self-proclaimedignoranceofwhowas helpinghim, andwhy theywere, at each stage of his travel, incombinationwith hishandlers' obvious familiaritywithshepherdingindividualsfrom Pakistan to Afghanistan, establishes that Petitioner's travel was indeedfacilitated at each turnby someone with access to a network of contacts in the region. The Government attempts to demonstrate that this was a terrorist network, and does so inpart bypresenting evidence that the route Mohammed took to the Jalalabad guesthouse was one welltroddenby other al-Qaida recruits from London. Gov's Mot. at 14-17 (describing details of other detainees' recruitment·and travel).8 Based on this evidence, the Government argues that the
For instance, AbdenourSameur (ISN 659), who atonepoint admitted to training atAl Farouq, followed a very similarpath to Afghanistan. JE 23 at 2 (detailing layout andpersonnel at camp); but see JE 24 at 3 (denying that he was ever at Al Farouq). Sameur, like Petitioner, is an Algerian who moved from Italy to London. Once there, he too attended Finsbury Park Mosque. Aman whom he also met through that mosque, Towfiq, recruited him to travel to Afghanistan. Towfiq sent Sameur to Islamabad first, where he was instructed to meet with a man named Mohammed. Mohammed also took Sameur to theAlgerianguesthouse inJalalabad, SliI€R:I!J!'

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most sensible inference to draw is that Petitioner was beingmoved along a terrorist pipeline that lednaturally from his recruitment at radical London mosques to his participation in training and battle. It is simplyunbelievable, in the Government's view, that he was being shepherded from person to person and country to country in search of an unnamed and unknown Swedish bride whose
name he didnot evenknow. Nor is there anyevidence in the record that Petitioner had everbeen to Sweden orknew a word of Swedish. Mohammed admitted to interrogators that Rahman knew nothing about the woman, JE 15 at 4, suggestingthat his handlers were not simply friendly localswhowere eagertohelpMohammed inpursuinga wife. Petitioner, again, does not deny either the particular route thattheGovernment describes, orthatRahim facilitatedhis travel from London to Pakistan and then to Afghanistan. Rather, he explains his travel toAfghanistanaspart ofhis desperate attempt to meet this unnamed Swedish woman and arrange a marriage that would allow him to claim European citizenship. Mohammed explains that ever since leaving Algeria, he had to struggle to find work
which was run by Abu Jaffar. From there, Sameur went on to Al Farouq. JE 23 at 2;see also JE 38 (travel of AhmedBin Saleh (ISN 290)); Gov's Mot. at 14, 16 (detailing similar stories of Binyam Ahmed Mohammed (ISN 1458) and Sulimane Hadj Abderrahmane (IBN 323)). According to records of the statements that sayab Mutij Badiz Ahman 

### (IBN 288) ("Bayab") made to interrogators, Abu Jaffar was incharge of this Algerianguesthouse, andHafiz was his second in command. JE 31 at 2. SH8RR'i' -27­

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### and avoid immigration authorities in Europe. He traveled to the united Kingdom looking for employment, and met a man who gave him hope--however distant--that there was a way for him to remain in Europe and avoid being forced back into a "dire" personal and economic situation in Algeria. Pet.'s Opp'n at 17-19. The Court cannot, and does not, credit the Petitioner's
reasons for wanting to go to Afghanistan. They are patently fantastic. While it is not his burden to demonstrate why he traveled toAfghanistan, whenhe does offer anexplanation that is
so unbelievable, and the Government provides credible support for its interpretation of Petitioner's motivation, the Court must choose between the two. See Hamdi, 542 U.S. at 534 ("[O]nce the Government puts forth credible evidence that the habeas petitioner meets the
... criteria [for detention], the onus ... shift[s] to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria."). In this instance, the Court fully credits the Government's argument that Petitioner
was recruited and traveled via a terrorist pipeline. 4. Guesthouse Stay 

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

### See, e.g., Source documents provide different spellings of Hafiz' name. However, based on context and the overwhelming phonetic SB8RB'i'

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JE 68 at 1. The Government argues that this guesthouse was associated with al-Qaida, and was runby Hafiz in conjunctionwith Abu Jaffar al-Jazeeri ("Jaffar") to facilitate the transfer of recruits to training camps in the region. Gov's Mot. at 17-19. Petitioner counters that the record does not clearly demonstrate thathe stayedat anyguesthouse associatedwithal-Qaida, and that there is no reliable evidence that he used the guesthouse as a way station for a trip to al-Qaida and/or Taliban training camps. Traverse at 43-44. The record establishes that Rahman guided Mohammed to Hafiz' guesthouse in Jalalabad. JE 17 at 3; JE 15 at 4; see also JE 21 at 1 (interrogation report of Mourad Benchelalli (ISN 161) stating that he sawPetitioneratguesthouse inAugustof 2001 beforegoing off totrainand thenreturning tohouse). According to statements that Petitioner himself gave the Government, Hafiz ran the "Algerian guesthouse" in that city. JE 15 at 4. Mohammed did not pay for food during his stay at the guesthouse, but did pay Hafiz twentyBritishpounds upondeparting. JE 17 at 3. Mohammed stayed at the house twice, initially for two weeks and then for another threeweeks aftertravelingwithinAfghanistanfor about onemonth.
similarity of each version of the name, the court finds that the documents are all referring to a man who operated a house where Petitioner stayed while in Jalalabad. &Ji1QU'i

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JE 15 at 5. 10 The Government argues that theHafizhouse atwhichPetitioner admittedly stayed is in fact the same guesthouse that Jaffarranto support al-Qaida recruitment efforts, and it supports its case by pointing to the statements of other detainees familiar with the Jalalabad facility. For instance, Sameur reportedto interrogators that he stayed at a guesthouse for Algerians in Jalalabad. JE 23 at 2. He claimedthat "Abu Jafair" was incharge there, and that Hafiz "was responsible for holdingeveryone's personal items." Id.; see also JE 41 at 5 (reporting that during interrogation of ISN 371, detainee stated that Hafiz and Jaffar were at guesthouse during timeofhis training). Sayab, anAlgerian, also told interrogators that he stayed at the Algerian guesthouse in Jalalabad. JE 13 at 3; JE 31 at 2. He identified Hafiz as "second in command when [Jaffar] was gone." JE 31 at 2; see also JE 13 at 3 ("Second in command of the safehouse was Abdul Hafiz."). In Sayab's 2005 account, there were "7 sometimes eight people in the Algerian guesthouse in Jalalabad" when he was there. JE 31 at 2. The accounts are detailed, and were recorded as part of Government

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

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intelligence reports that were created in the regular course of business. The Court credits them as reliable. Havingpointedto evidence that demonstrates Hafiz' house was the same facility as the guesthouse that Jaffar operated, the Government argues thatJaffar'shouse "providedlodgingto jihadist recruits who were headed to various al-Qaida associated training camps."11 Gov's Mot. at 17. The Government points out, first, that Suliman Abdul Rahman (ISN 323) ("Suliman") told interrogators that Jaffar acted as "the primarypoint of contact for all Algerians sent to [Afghanistan]"
as part of an al-Qaida and/or Taliban network.12 JE 35 at 2. Second, Suliman provided detailed descriptions of Jaffar, and discussed Jaffar's participation in an al-Qaida pipeline that ran from Londonmosques to training camps inAfghanistan. Id. "Field comments" in Suliman's intelligence report state that Jaffar "was able to have Algerians and other non-Afghanis transported by the Taliban to his safehouses, and trained at al Qaida camps." rd. Suliman told interrogators that Jaffar arranged for him to be admittedto

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

12 Neither party argues that this detainee is the same Rahman who led Petitioner across the border into Afghanistan. 

## sseH'!

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SElCR!I'f also JE 7 at 2 (reporting significance of Al Farouq). Third, Sameur, a detainee who attended Finsbury Park Mosque and traveled to the guesthouse, said that funds raised at the mosque went to Jaffar to run the guesthouse. JE 40 at 7-8. He also told interrogators that occupants of the guesthouse were "encouragedto attend training inone of the camps," but not "pressured" to do so. Id. at 8. Inyet another account, a detainee whom the Government report identifies only as ISN 558 stated that he knew Jaffar as the "emir of the Algerians in Afghanistan," a man who was "responsible for getting trainees to the Khalden Training Camp." JE 42 at 3. Although the Government admits that Khalden was "operationallyand organizationally independent of al-Qaida," Gov's Mot. at 18 n.18,

Id. (citing Defense Intelligence Agency Background Declaration

­ Terrorist Training Camps (JE 

### 7 at 8». There is additional evidence that men who stayed at the AlgerianGuesthouse went on to train. See JE 21 at 1; PE 2 at 2-3. Inthe case of Nizar Sassi (ISN 325), he left the Algerianhouse in Jalalabad for the Algerian house in Kabul. There he met a man named "Abou ((Djafar»" who informed the group that training inone camphad finished and that they would have to await the opening of SHeHIf

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a new camp or go to another training location. Djafar coordinated Nizar's trip to Al Farouq. PE 2 at 2-3. Finally, Binyam Mohamed is reported to have given interrogators informationthat suggeststheAlgerianguesthousewas involved in terrorist activities. While detained at Guantanamo Bay, he stated that Jaffar informed guesthouse occupants that Bin Laden had called for the closing of all but two of the training camps. As a result, Binyam Mohamed and other recruits dismantled the camp at which they were training, loaded weapons into a vehicle, and drove them to "the Algerian guesthouse in Jalalabad where they were stored in a concrete safe located in the back of the guesthouse compound." JE 36 at 6;3 Another detainee, Sameur, also linked the house to weapons, claiming that he was "assigneda Kalishnikov [sic) while there." JE 24 at 3; but see JE 13 at 3 (reporting that Sayab told interrogators "there were no weapons at the safehouse")
. Petitioner challenges the Government's claim that Hafiz and Jaffaroperatedthe same facility inJalalabad, andalsochallenges the related suggestion that his staywithHafiz suggests terrorist activity on his part. He also takes issue with the use of any statements made by Binyam Mohamed.

13 See infra at note 15. SHeRE'!

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Petitioner claims that only he and Hafiz stayed in the Jalalabad house. JE 68 at 1. There is no mention in his 2009 declaration of other guests at the house; in fact, for much of the month that he stayed there, according to Mohammed, he was there alonebecause "Hafi[z] was oftenaway." In Petitioner's other accounts of his time at the guesthouse, Jaffar 

### is never mentioned. See JE 15 at 5; JE 17 at 2-3. He argues that other detainees' accounts of the guesthouse do not mention Petitioner's presence there, except for Benchalalli. See JE 21 at 1. That account, Mohammed contends, simply cannot be credited because Benchelalli
was there in August of 2001, at a time when petitioner was allegedlyoff at training. Further, Mohammedpoints toevidence in the record that suggests that it was not uncommon for guests at Hafiz' house to encounter few, if any, otherpeople there. PE 2 at 2. This intelligence report describes theguesthouse as a "villa," suggesting that it 

### is at least theoretically possible that the facility was made up of several different buildings and therefore it was possible for one guest to not have any interaction with other guests. Id.; see also JE 21 at 1 (describing "safehouse" as "large structure that was very divided")
. Petitioner's account of his stay at the guesthouse and his argument that he had no interaction with others in the guesthouse suffer from a number of weaknesses. First, his declaration claims

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SECK!!:'!' 

### that he stayed alone with Hafiz for a month, was joined there by a
man named "Muthaina," went to Kabul withhim, and then returned to Jalalabad for one monthafterthe events of September 11. JE 68 at 1-2. He 

### makes no mention of the guesthouse during his second stay in Jalalabad. However, in earlier statements made to interrogators, Mohammed admitted to staying at the guesthouse twice, both before and after his trips to Kabul. JE 15 at 4-5 (returning to Algerian guesthouse after little over month in Kabul); JE 17 at 3-4 (same). The declaration does not explain whether he returned to the guesthouse, as he claimed he did earlier. In sum, Petitioner has given inconsistent statements. Second, in his earlier account of his travels, Petitioner admitted that he saw others at Hafiz' house. He reportedly told interrogators that "NOuradin
. ., an Algerian" was "one of the occupants of the Algerian guesthouse." JE 15 at 5. According to
an interrogation inOctober of 2002, Nouradin arrived at the house during Mohammed's second stay there. JE 17 at 4. Mohammed must have been there with at least one additional person as well, because he stated that he also lived with Muthaina, another Algerian man. JE 15 at 5; JE 17 at 3 ("Farhi met and lived with Mothana
. at Abdel Hafeez' house.,,);14 JE 68 at 2 (declaring
Basedoncontextandtheoverwhelmingphonetic similarity of each version of Muthaina, the Court finds that the same person SBCRB'f

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that Muthaina came to Hafiz' house). These admissions are inconsistent with his claim that he lived alone at Hafiz' house, andthereforebolstertheGovernment's evidence thathe waspartof the general population of men staying at the Algerian guesthouse. Despite Petitioner's speculation about the existence of more than one Algerian guesthouse in Jalalabad, the evidence in the record shows that he stayed at the same facility that at various points accommodated groups of men who then went on to train. Critically, there is evidence that Petitioner's claim that he stayedthere alone isnot accurate--others identifiedhimas oneof the group there, and Mohammed admitted to meeting others while staying there. In sum, the court finds that the Government has provided credibleevidence thatMohammedarrivedattheJalalabadguesthouse
as part of a recruiting network, and stayed with other individuals who went on to train with al-Qaida. 15 Petitioner attempts to discredit the Government's argument by claiming that all of his travel was undertaken to meet the unnamed, unknown Swedish woman

is being referred to.

15 The Government has provided sufficient evidence on this pointevenwithout thecontestedstatementsmadebyBinyamMohamed. Because his testimony is not necessary to prove the factual allegations regarding guesthouses, the Court will not address Petitioner's objections to his testimony in this section. 888H"

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SJ!leRfl'!' whom he would marry in order to obtain citizenship. Pet.'s Opp'n at 18-19. Mohammed insists that this motivation was behind each stepofhisjourney, fromhis conversations withRahim inLondon to his willingness to follow strangers into Afghanistan when he arrived in Islamabad. JE at 17. The Court has already rejected this explanation in toto. He maintains thathis first transporterinPakistanknewabout this Swedish woman, but reports that his second (Rahman) did not. Further, he admit s that when he got to Hafi z ' house, he was "embarrassed" to tell his host about the Swedish bride, and so waited two weeks to do so. JE 15 at 4-5. When he did, Hafiz allegedly told Mohammed that "she had just left Jalalabad," id.; according to what Hafiz reportedly told Petitioner, the woman "travels a lot." JE 17 at 3. AS the Government persuasively argues, this portion of "the Swedish woman" story is as incredible
as the portion discussed earlier. Mohammed further explains that he followed the advice of a man he had just met (Rahim) to fly from London--where he wanted to ultimately settle--to Pakistan in pursuit of an unnamed Swedish
woman who mayor may not have then agreed to marry him so that he could obtain citizenship. He accepted the new friend's money in order to do so. Along the way, he forged his passport, relied on strangers' assistance, crossed illegally into Afghanistan, and 8i!1CRB!'

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found himself in a city where he allegedly knew only one other person (Hafiz). He would then have us believe that he hesitated for two weeks in telling that one person the reason that he was in the city, even though the Swedish woman had been held out to interrogators and the Court as "the sole reason for his trip" and the reason for his "glimmer of hope that he could finally obtain those priceless residency papers." 16 JE 17 at 3; Pet.'s Opp'n at 18; see also JE 47 at 4. Mohammed's statedreason for going toAfghanistan is entirely implausible. Further, he provides inconsistent accounts of his stay at the Jalalabad guesthouse. These findings undermine his attempts to defeat credible evidence put forth by the Government that Mohammed lived among al-Qaida supporters while there. The Government has established that it is more likely than not that he traveled there as part of a recruiting pipeline. Therefore, the Court credits the Government's evidence regarding Petitioner's

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

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SBeRB'!' earlier conduct, specifically mosque attendance and travel to Afghanistan with Rahim's assistance. This Court has already ruled that guesthouse stay may not, in andof itself, provide an independentbasis for detention. Ali Ahmed, 613 F. Supp. 2d at 64-65 (findingthat stay at a guesthouse,
even among al-Qaida members, not sufficient tojustify detention); classified op. at 35-39. However, that is not the issue in this
case. Here, the Governmenthasdemonstratedthat Petitionerstayed at a guesthouse with links to al-Qaida. It has also shown that he traveled to that location with the assistance of a network of individuals tied to al-Qaida, and that he was brought to this particular guesthouse by those men. Further, while his attendance at the two London mosques may not, in and of itself, demonstrate membership inor substantial supportof al-Qaidaand/or theTaliban at the time it took place, his subsequent conduct (both using the recruiters and and relying on their travel guides), when viewed along with his attendance at the mosques, does demonstrate that it ismore likely than not that the time he spent at those mosques was the beginning of his journey toward affiliation with al-Qaida. In sum, Petitioner's story about seeking a Swedish bride in Afghanistan does not meet his rebuttal burden. As the Court has noted earlier, "once the Government puts forth credible evidence that the habeas petitioner meets the criteria [for

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### detention], the onus ... shift[s] to the petitioner torebut that evidence with more persuasive evidence that he falls outside the criteria." See Hamdi, 542 U.S. at 534. Petitioner has failed to provide persuasive evidence regarding his stay at the Algerian Guesthouse and the Government has met its burden by far more than
a preponderance of the evidence. This finding does not end the inquiry. 5. Training 

### The Government argues that Petitioner left the Jalalabad guesthouse to train at an al-Qaida camp, and then returned to Jalalabadbefore fleeing the country for Pakistan after September 11. 

### Gov's Mot. at 19-24. Its chief support for this argument consists of the statements of Binyam Mohamed, who told interrogators at Guantanamo Bay in October and November of 2004 that Petitioner attendeda training camp with him. JE 27 at 1; JE 36 at 5; JE 34 at 2.

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8ElCH!'

PetitionercontendsthatBinyamMohamed's statements--theonly other evidence placing Petitioner in a training camp--cannot be reliedupon, becausehe sufferedintense and sustainedphysicaland psychological abuse while in American custody from 2002 to 2004. Petitioner argues that while Binyam Mohamed was detained at locations in Pakistan, Morocco, and Afghanistan, he was tortured

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and forced to admit to a host of allegations, most of whichhe has since denied. When he arrived at Guantanamo Bay, Binyam Mohamed implicated Petitioner in training activities. Pet.'s Opp'n at 11­ 13. However, after being released from Guantanamo Bay, he signed
a sworn declaration claiming that he never met Petitioner until they were both detained at Guantanamo Bay, thereby disavowing the statements he made at Guantanamo Bay about training with Petitioner. In that sworn declaration Binyam Mohamed stated that he was forced to make untrue statements about many detainees, including Petitioner. JE 60 at " 2-6. BinyamMohamed statedhe made these statements because of "tortureorcoercion," id. at , 8, thathewas "feda large amount of information" while indetention, and that he resorted tomaking up some stories. rd. at , 5-6. The Government does not challenge Petitioner's evidence of Binyam Mohamed's abuse.


### a. The Government's Evidence The inculpatory statements that Binyam Mohamed made against Petitioner are contained in intelligence reports based on interrogations at Guantanamo Bay in October and November of 2004. See JE 27 (October 29, 2004, interrogation at Guantanamo Bay); JE 36 (November 5, 2004, interrogation at Guantanamo Bay)i JE 34 (same). TheGovernment argues that SpecialAgent who had interviewed Binyam Mohamed as early as July 21, 2004, at SBE!RiI'iP

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Bagram Air Base, developed a relationship with him that was nonabusive, and, in fact, cordial and cooperative. Gov's Opp'n at 16-18. It suggests that over time the two built a rapport that allowed the detainee to voluntarily provide accurate information. See JE 55 at , 4 (stating that Special Agent
........ created 18 interviewreports basedonmanymeetings withBinyamMohamed). The Government stresses that it relies on these voluntary confessions givenatGuantanamoBay, andnotany statementsprocuredbyearlier allegedmistreatment, inestablishing its case against Petitioner. Gov's Opp'n at 15-16. In support of its claim that Binyam Mohamed's statements at Guantanamo Baywere not coerced, theGovernment offers a signedand
sworn declaration from Special Agent
........ stating that the witnessdemonstrateda "politeandcooperativedemeanor" atBagram, JE 55 at , 4; see also id. at , 17 (describing Binyam Mohamed as "kind, polite, and relaxed"), and was "kind, polite, and relaxed throughout [their] meetings at Guantanamo," id. at 26. He states that the witness did not raise any allegation of torture during these meetings. Id. at , 26. The intelligence reports that the Government directly relies
on to place Petitioner at a training camp are consistent with characterization of the interrogations. Special Agent On October 29, 2004, BinyamMohamed was interrogated at Guantanamo

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### Bay, just after he arrived there from being held in United States custody in Afghanistan. The report begins by describing various courtesies extended to the detainee, such as using a traditional Muslim greeting and offering him coffee. JE 27 at 1. 18 

### There was
a brief exchange about Binyam Mohamed's health, and "[s]ubject detainee commented that he was doing well." The meeting lasted for over two hours, was conducted in English, and was

After thisprologue, the report indicates that BinyamMohamed
was shown a total of 27 photographs of various individuals, and identified 12 of them. Id. at 2-4. He identified Petitioner by his kunya, "Abdullah," claiming that Petitioner "trained at the Algerian Camp with [him] and
. . eventually traveled to Kandahar with to [sic] [him]." rd. at 2. Special Agent
_ notes at the end of his report that the subject was "very cooperative and

18 

### The report redacts the name of the interrogator. However, the Court infers for the following reasons that Special Agent
_ conductedthe interviewandwrote the report. First the interrogator's employer in the report matches Special Agent Agent 's. Com re JE 27 at 1 to JE 55 at , 1. Second, Special testified in his declaration that he interviewed Binyam Mohamed on the date indicated on the report. JE 55 at , 4 n.2. Finally, Special Agenct
_ stated that he memorialized hisinterviews inintelligencereports afterconductingthem, JE 55 at 

### 1 4, and the language in the report resembles closely that language used in the declaration. 8B8U'!l'



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polite," and that he answeredquestions withoutbetraying "signsof deception or resistance techniques." Further, Binyam Mohamed "at many times" spoke freely without being questioned orprompted, and 

### the information that heprovidedwas deemed tobe consistent with earlier information that he provided, though it does not state where Binyam Mohamed provided the earlier information. Id. at 4. On November 5, 2004, Binyam Mohamed again claimed that he trained with Petitioner. There are two reports in the record from that date. JE 34 (Summary InterrogationReport ("SIR"»; JE 36 (Intelligence InformationReport ("IIR"». Special Agent

# IIIIIIII stated that he interviewed the witness on that date, JE 55 at , 4 n.2, althoughneitherreport reveals thename of its author, norof the interrogator. Itmaywellbe that SpecialAgent
_ wrote the report contained in JE 34, because its content matches his declaration's description of their November 5, 2004, meeting.19 In JE 34, Binyam Mohamed claimed that while at training, he
was in a group with Abdullah and two other men. JE 34 at 2. According to the report, Binyam Mohamed "did not believe that Abdullah had any purpose" in undertaking the training; he did

19 Further, JE 34 

### is a SIR. The intelligence community createsthese reports afterthe interrogation, andtheycontainall the details of the session. JE 1 at 7. Special Agentlllllllll's practice was to write reports directly after his interrogations of subjects. JE 55 at 4. It appears the he wrote JE 34 consistent with these practices. !!!le!ltB'!' -45­

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8B€RB'!' comment on the motivations of the two other trainees. Id. at 4. During this session, Mohamed was "cooperative," but appeared "apprehensive" at having not seen his lawyer. Id. at 1. The second report based on the November 5, 2004, interview is contained in JE 36. BinyamMohamedprovided extensive information about his path to Afghanistan. He stated that "another Algerian from Italy, Abdullah[,] whowas approximately 40-45years old, came withtwootherMoroccans tothe camp only three to four daysbefore it closed." JE 36 at 5. A field comment indicates that Binyam MohamedhadidentifiedAbdullahas Petitioner. BinyamMohamed said that Adbullah and two others (the same men described in another intelligence report, JE 34 at 2) traveled back to Kandahar after the close of the camp, along with a man named Elyas. Id. He expanded on this account of the camp's closing, stating that Bin Laden had ordered it to be shut down. As a result, trainees tore down the camp, packed up its weapons, and hauled them back to the Algerian Guesthouse in Jalalabad, where they were stored in a concrete safe in the yard. The four men in Binyam Mohamed's training group were then instructed that they would be sent on to Al Farouq. Id. at 6-7. In a closing field comment, the report notes that "the detainee answered all questions without hesitation." Id. at 7. The Government maintains that these accounts are detailedand S!!JCH'!

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consistent, and should be credited as accurate descriptions of Petitioner's trainingactivity. The informationis corroboratedby that gathered from other Guantanamo Bay and Bagram sessions with Binyam Mohamed where he provided detailed and consistent accounts of his activity inLondon andAfghanistan, although Petitionerwas not specifically discussed. See JE 25; JE 26. Further, the Government argues that Binyam Mohamed was treated well at Bagram andGuantanamoBay, wherehe developeda rapport with SpecialAgent

_ and provided reliable intelligence to investigators, including information that comprises the most serious allegations against Petitioner. Bolstering the Government's claims, Binyam Mohamed admitted after his release from detention that he did indeedreceive trainingwhile inAfghanistan. GE 7 at 9; JE 65 at DailyMail 10. This admission, according to the Government, makes it plausible that he could have seen other individuals, including Petitioner, while at the camp. 

### b. Petitioner's Attacks on the Government's Evidence The Government's claims of reliability are undermined by the
sworn declaration of Binyam Mohamed that he was brutalized for years while in United States custody overseas at foreign facilities. He was then transferred to Guantanamo Bay, where he
was further detained by the United States and where Government
Sl!leH'!

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8!1!ftB'l" personnel quickly resumed their interrogation of him, although no coercive measures were used. These later interrogations yielded the information that the Government relies on to support several allegations in this case, the most significant of which is that Petitioner trained with al-Qaida. 

### i. Torture Allegations Petitioner provides sworn declarations from Binyam Mohamed that indicate he was forced tomake untrue confessions while being abused after United States authorities detained him overseas. JE 65 at 1 (declaring under penalty of perjury on June 9, 2009, that the attached accounts of his torture "are factually accurate and accurately describe his treatment"); JE 60 at , 8 (declaring that he made false statements about himself and others because of the "torture or coercion [he] was undergoing"). In addition, Binyam Mohamed detailed his mistreatment in meetings with his attorney, Clive Stafford Smith, in August of 2005. Smith recorded his client's words in a memorandum that presents BinyamMohamed's storychronologically, startingwithhis detention in Pakistan, following his rendition to Morocco for eighteen months, his transfer to the "Dark Prison"20 in Kabul, his imprisonment at Bagram, and then his arrival at Guantanamo Bay.

BBSRBIf

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See JE 65 at Mem. 1, 2, 4, 16, 19-20. The narrative is at its most detailed in this memorandum, but has been repeated a number of times, in whole or in part, by Binyam Mohamed sUbsequent to his release from united States custody. See JE 65 at DailyMail; JE 61 (collecting articles). The remainder of this sectionpresents the harrowing story that Binyam Mohamed has told about his abuse, as recounted ineither Smith's memorandum or the diary he created for his lawyer in 2005, and repeated since his release from Guantanamo Bay. He was initially detained while attempting to leave Karachi, Pakistan on April 10, 2002. He was planning to return to London, where he had lived recently. JE 65 at Mem. 2. According to his account, the Pakistani authoritiesheldhim inprison, andgave the FBI access to him while there. Four FBI interrogators conducted daily interviews between April 20 and 27, 2002. Just weeks after his capture, his torture began. The FBI questionedhim about his activities, and, unsatisfied with his answers, threatened to transfer him to other countries where he would experience harsher treatment. Then, the FBI agents would leave the room and Pakistanis entered. They beat himwith a leather strap, and staged a mock executionwhere a guardpointeda semi-automatic weapon at Binyam Mohamed's chest for several minutes, and stood over him motionless. The guard relented, left

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BS8M11f the room, and FBI personnel re-entered the room for further questioning. Id. at 2-3 Binyam Mohamed told his lawyer that on July 19, 2002, he was flown from Karachi to Islamabad. He was kept in a cell for the weekend. On July 21, he was taken to a military airport and turned
over to United States authorities. Soldiers dressed in black and wearing masks stripped him, conducted a full-body search, and put himaboarda plane. He was shackled, blindfolded, andmade to wear earphones. Id. at 4. The plane arrived in Morocco the next day, at a place that he believed to be near the city of Rabat. At this point in Smith's memorandum, he transcribes undated entries from a "veryroughpreliminaryeditionof Binyam's diaryof his torture." Id. at 4. According to that diary, Binyam Mohamed
was told that the United States wanted a story from him, and that he had been linked to important figures in al-Qaida, including Khalid SheikhMohammed, Abu Zubaydah, Ibn SheikhAl Libi, andJose Padilla. Id. At the prison, which is described in great detail, he was confronted by several individuals, each of whom played a role in eliciting information from him. Id. at 5-6. He claims that the Americans wanted testimony from him to use in court proceedings. Id. at 6. Inthe first week at theprison, he was questionedrepeatedly, warned that he would experience torture if he did not cooperate, BBeRB'!'

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S!!ICRB'! and told that the British government knew of his situation and sanctioned his detention. Id. at 7-8. Throughout the narrative, Binyam Mohamed conveys dates, physical descriptions of guards and interrogators, details about his surroundings, and details about his treatment. OnAugust 6, his captorsbegan tobeathim. Withhands cuffed behind his back, he was punched in the stomach many times, kicked inthe thighs, and left onthe floor, where he vomited andurinated
on himself. Id. at 9. His entry for August 7 begins by stating, "[t]here was to be no more first[-]class treatment. No bathroom. No food for a while. I was taken for interrogation." The guards beat him, then demonstrated sympathy, and then resumed beatings. Id. at 10. While being beaten, he was fed information about himself and told to verify it. If he denied it, he was beaten; he would then confirm the information, and be ordered to provide more details about it. When he failed to provide more information, he was again beaten. After a week without any abuse, he was moved to a room in another location, and introduced to a man named \\Marwan." Id. Marwan toldBinyamMohamedto \\give [him] the whole storyover again," and when the witness faltered in repeating information, watched as three "goons" stepped in to beat him while he was tied to a wall. Id. He was left hanging from the wall for an hour.

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The men returned and resumed beating Binyam Mohamed; they kicked his feet out from under him so that his arms were wrenched upward behind him. They beat him throughout the night, and left him on the floor the next day. at 10-11. He heard the screams of others outside his cell, and thought that they were either being raped or electrocuted; he was kept awake at night by these sounds. Id. at 11. According to the diary, his Moroccan captors made it clear that they were working with the United States. Id. at 11 (stating that Moroccans sided with "pissed off" Americans, and would do "whatever [the United States] wants"). Binyam Mohamed was told that he was suspected of being a "big man" in al-Qaida. Binyam Mohamed stated that he was willing at this point to say Whatever his captors wanted him to, which pleased Marwan. Put off by his satisfaction, Binyam Mohamed mocked Marwan for being Moroccan and not having intelligence as the British do. rd. at 11-12. After this exchange, MarwanhadBinyamMohamed tied toa wall. Three men stripped him of his clothes with "some kind of doctor's scalpel." The witness claims he feared rape, electrocution, or castration. rd. at 12. His captors cut one side of his chest with the scalpel, and thenthe other. One of the men then "took [Binyam Mohamed's] penis in his hand and began to make cuts" with the scalpel as Marwan looked on. Id. at 13. They cut "allover [his]

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SS8e'!' private parts" while Binyam Mohamed screamed. He estimates that they cut him 20-30 times over two hours; "[t]here was blood all over." Id. He was given a cream from some doctors. This precise conduct continued about once per month for the 18 months that he
was in Morocco. at 12-13; 16 (describing "routine" cuttings and use of liquids to burnhim). He reports that a guard toldhim that the purpose of the scalpel treatment was to "degrade" him, so that when he left, he'd "have these scars and [he'd] never forget. So [he'd] always fear doing anything but what the US wants." Id. at 13. The captors coached Binyam Mohamed on what to say during interrogations, according to the diary. He was told that if he simplyrepeated incourt the informationbeing fed tohim, then the torture would cease. Binyam Mohamed agreed to repeat what he was told. Id. at 14. He was told to say, among other things, that he met Bin Laden five or six times, that he advised him on places to attack, and that he had conferredwith BinLaden's deputies. Id.; but see JE 65 at DailyMail 14 (claiming that he told interrogators he met Bin Laden thirty times). He was given names of people that he allegedly knew, and told to confess to being "an [a]l[-]Qaida operations man." JE 65 at Mem. 14. He was moved again in September or October of 2002 to a new location in Morocco. His new quarters are described in his diary 8B8R:li1'!'

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### inextreme detail, including a listingof the color of his sheets, the type of toothpaste he was given, and the brand of soap he was supplied. For days on end, he remained handcuffed with earphones on, and loud music was blasted into his ears. This tactic, as well as others, interruptedhis sleep for the whole time he was in Morocco. rd. at 14-15. This treatment, in Binyam Mohamed's account, was the beginning of a campaign of mental torture designed to break him. He claims that his captors put mind-altering substances in his food, forced him to listen to sounds from adult films, drugged him, and paraded naked and seminaked woman around his cell. rd. at 15. He wrote that the mental torture led to an "emotional breakdowns." rd. Throughout thisperiod, hewas subject to two or three interrogations per month. These sessions are described as being "more like trainings, training [himon] what to say." rd. at 16. He was deprived of all access to the outdoors. He met only interrogators and guards while in the Moroccan prison. On January 21 

### or 22, 2004, 

### Binyam Mohamed and two other prisoners were put on a plane with United States soldiers dressed similarly to those who had transferred him to Morocco from Pakistan. rd. at 16-17. Again they stripped him before transporting him. Binyam Mohamed recalls that one female soldier
was assigned to take pictures of him. She expressedhorror at the
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8BElIU!l'l'
scars on his penis. Id. at 17. The diary reports thatBinyamMohamedwas taken to the "Prison of Darkness" in Kabul. He describes the location of his cell, its proximity to the shower room, and its size ("2m by 2.5m"). Before being locked in that cell, his headwas bangedagainst a wall a few times "until [he] could feel blood." Id. He was given a thin blanket, and a bucket to use as a toilet. Binyam Mohamed was chained to the floor and then locked in complete darkness. He was "hungup" for two days,21 deprivedof sleep, and fed only once over that period. Id. at 17-18 (stating that his "wrists and hands had gone numb"). "After a while I felt pretty much dead," he wrote. Id. at 18. Guards bombardedhis cellwith loudmusic ("SlimShadyandDr. Dre" for 10 days) and scary sounds. He was fed inedible food and weighed every other day. Guards made noises to prevent prisoners from sleeping. There were infrequent showers and even less frequent changes of clothes. Id. He told a British newspaper in 2009 that he was shackled often, once for eight days on end in a position that prevented him from standing or sitting. JE 65 at Daily Mail 5. While undergoing this treatment, it appears that Binyam Mohamed attempted to be forthright with CIA interrogators
21 This term is not explained. Itmay refer to the "hanging from the wall" described earlier.
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SB8Rf!1'f and renounce the storyhehadbeencoached to adopt. This resulted inhis "being chained to the rails for a fortnight." JE 65 at Mem. at 18. He stated that he tried to tell the truth because "the CIA interrogators looked understanding." at 18. He and another prisoner were interrogated regularly. Binyam Mohamed says the sessions drove other detainees crazy. He heard these detainees "knocking their heads against the walls and the doors, screaming their heads off." Id. Binyam Mohamed maintains that he was fed informationabout individuals inpictures. Whenhe tried to be compliant and provide made-up information about the pictured men, his interrogator was initially happy, but then "did

[his] homework" and threatened to torture him further if he lied again. They simply wanted him to repeat what they told him to say. This included anadmissionof his involvement in a dirtybomb plot. Id. at 19. At first, his cell was dark for all but one hour per day. Gradually, he was allowedmore light, until it was dark forhalf of the day. Similarly, showers were not allowed initially, but later prisoners were permitted weekly bathing. Binyam Mohamed at first received food once every 36 hours. After some weeks, that was increased to twice per 36 hours, and by May of 2004, he received teaandbread forbreakfast. Eventually, he was given five minutes per week to spend outside. Id. at 18-19.
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In May, Binyam Mohamed and other prisoners boarded a helicopter destined for Bagram Air Base. While there, he was permitted to see the ICRC for the first time. Id. at 19-20. According to BinyarnMohamed, the ICRC could not publishhis story, because they had an agreement with the United States to "keep everythingon the hushhush." Id. at 20. At Bagram, SpecialAgent

_ made him write out his narrative. Part of this story repeated the lies that he was fed by his captors while inMorocco, including the story about his involvement with the alleged "dirty bomber," Jose Padilla. Id. In October of 2008, the Government dropped allegations that BinyarnMohamed was involved in anybombplot. See Peter Finn, Key Allegations Against Terror Suspect Withdrawn, Wash. Post, October 15, 2008, available at http://www.washingtonpost.com/wpdyn/content/article/2008/10/14/AR2008l01403146.html?hpid=topnews. ii. Legal Analysis TheUnitedNations ConventionAgainstTorture andOtherCruel, InhumanorDegradingTreatmentorPunishment (Article 15), Dec. 10, 1984, 1465 U.N.T.S. 85 ("Convention" or "CAT"), requires that governments which are party to it "ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person


## 8HeRa.

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8!1!M!'f accused of torture as evidence that the statement was made."22 rd. The Government has represented that it "recognizes torture to be abhorrent and unlawful, and unequivocally adheres to humane standards for all detainees
.. . Consistent with these policies and with the treaty obligations imposed by the Convention on the United States as a State Party, the [G]overnment does not and will notrelyupon statements itconcludeswereprocuredthroughtorture inthe Guantanamohabeas litigation." Resp't's Br. inResp. To the Ct.'s Order of Sept. 4, 2009, at 1-2 [Dkt. No. 248] .23 The Government does not challenge or deny the accuracy of BinyamMohamed's storyofbrutal treatment. Rather, it argues that the Court should not adopt any automatic per se rule requiring exclusionof the statements he made at Guantanamo Baybecause they
were not "tainted" by any mistreatment by Special Agent

# IIIIIIII,

22 Under the Convention Against Torture, "torture" is defined as "any act by which severe pain or suffering, whether physical or emotional, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession
. . . when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." CAT, art. 1(1)
. 23 On September 4, 2009, the Court directed parties to submit additional briefing regarding the admissibilityof evidence procured by torture. Specifically, parties were asked to address federal and international law concerning: 1) the admissibility of evidence procuredby torture; and 

### 2) the admissibility of evidence procured providing from the ean videindividual nce upon w who hich an had y p been arty relies. tortured prior

. to
81!!!M1'f

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a.8MT
or anyone else at that detention center. The Government candidly "acknowledges that there is a dearth of precedent directly on point," and suggests using existing case law in the criminal area
as a useful, albeit not perfect, analogy. 

### .Id.... at 3. The Court agrees.24 In the criminal context, confessions or testimony procuredby torture are excluded under the Due Process Clause because such admissions wouldruncontraryto "fundamentalprinciples of liberty and justice which lie at the base of all our civil and political institutions." Brown v. Mississippi, 297 U.S. 278, 286 (1936) .25 Also, as a practical matter, resort to coercive tactics by an interrogator renders the information less likely to be true. Linkletter v. Walker, 381 U.S. 618, 638 (1965). Courts must therefore determine if the confession or testimony was given voluntarily. The use of coercionor torture toprocure informationdoes not automatically render subsequent confessions of that information

24 Petitionerclaimsthat "U.S. federal lawandtreaties and norms of international law have outlawed torture and applied
. . . a categorical rule of inadmissibilityof evidence obtaineddirectly or indirectly through torture." Pet.'s Mem. of Law Regarding Admissibility of Evidence Tainted byTorture, at 1 [Dkt. No. 247]. However, none of his citations support such a broad statement.

25 As the Supreme Court eloquently stated, "[t]he rack and torture chamber may not be substituted for the witness stand." Brown, 297 U.S. at 285-86.
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8!1eMl'!' inadmissible. United Statesv. Bayer, 331U.S. 532, 540-41 (1947). Theeffects of the initial coercionmaybe found to have dissipated to the point where the subsequent confessions can be considered voluntary. 

### M....: Oregon v. Elstad, 470 U.S. 298. 311-12 (198S) (discussing Lyons v. Oklahoma, 322 U.S. 596, 603 (1944)); United States v. Karake, 443 F. Supp. 2d 8, 86 (D.D.C. 2006). The Government bears the burden of showing that the confessions are voluntary. Karake, 443 F. Supp. 2d at 49-50. To determine if the effects of the earlier coercion have dissipated--that is, to determine the voluntariness of the subsequent confessions--courts apply a "totality of the circumstances" test. rd. at 87. The Supreme Court has ruled that "the time that passes between confessions, the change in place of interrogations, andthe changeinidentityof the interrogatorsall bear on whether that coercion has carried over into the second confession." Elstad, 470 U.S. at 310. Further, courts should examine, inter alia, the age, education, intelligence, and mental healthof the witness; whetherhehas receivedadvice regardinghis Constitutional rights; the length of detention; the "repeated and prolonged nature of the questioning"; and the "use of physical punishment such as the deprivation of food or sleep." Schneckloth
v.Bustamonte, 412 U.S. 218, 226 (1973). This multi-factor inquiry aims to uncover whether there has 8J!1eIU!l'!

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!!!IC!IIt!!lT been a "break in the streamof events
. sufficient to insulate the statement from the effect of all that went before." Clewis v. State of Texas, 386 U.S. 707, 710 (1967). The test has already been applied in the context of Guantanamo Bay litigation. See Al Rabiah v. United States, civ. NO. 02-828, classified op. at 51-52 (D.D.C. September 17, 2009) (finding that Government did not meet burden of showing dissipation of coercion). The Supreme Court's framework fordecidingwhethersubsequentconfessionsarevoluntary is to "determine[] the factual circumstances surrounding the confession, assess[] the psychological impact on the accused," and then issue a legal conclusion. Schneckloth, 412 U.S. at 226. iii. Reliability of Evidence Procured Subsequent to Torture Under the framework contemplated by Schneckloth, id., the Court must assess the reliability of the facts surrounding the alleged mistreatment. In this case, the account in Binyam Mohamed's diarybears several indiciaof reliability. First, itis extraordinarily detailed. The diary, written in the witness' own words, provides approximate dates at multiple points in the narrative, describes the physical features and conduct of guards and interrogators, and is consistent throughout several accounts. Second, the fact that Binyam Mohamed has vigorously and very pUblicly pursued his claims in British courts subsequent to his
BileaM'

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BB8RB'f release from GuantanamoBay suggests that the horrific accounts of his torture were not simply stories created solely to exculpate himself. David Stringer, EX-Gitmo Detainees Sue UK to Make 

### Evidence Public, TheAssociatedPress, October 27, 2009, available at http://hosted.ap.org/dynamic/stories/E/EU_BRITAIN_GUANTANAMO ?SITE=FLTAM&SECTION=HOME&TEMPLATE=DEFAULT. His persistence in tellinghis storydemonstrateshiswillingness to test the truthof his version of events in both the courts of law as well as the court of public opinion. The record does not indicate whether the evidence procured under torture includes information related to Petitioner. Binyam Mohamed insists that it does not, as he did not know Petitioner until he arrived at Guantanamo Bay in 2004. JE 60. Indeed, the recordof earlierinterrogationsofBinyamMohameddoes not include any mention of Petitioner. See JE 73. Significantly, the Government neither confirms nor denies his account of his abuse while in United States custody; instead, it focuses on the allegedly voluntary statements provided to Special Agent

# IIIIIIII in the wake of Binyam Mohamed's mistreatment. Gov's Opp'n at 15­ 17. SpecialAgent
_ beganhisquestioningofBinyamMohamed at Bagram in July of 2004, just over two months after he was transferred from the Dark Prison. Following a September transfer 8S€RB'i'

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8B€Ril'f toGuantanamoBay, thequestioning continued. When consideringthe amountof timewhichhas elapsedbetweenthe coercedconfessionand the sUbsequent one, courts have never insisted that a specific amount of time must pass before the taint of earlier mistreatment has dissipated. See, e.g., Lyons, 322 U.S. at 603-04 (twelve hours); United States v. Shi, 525 F.3d 709, 727 (9th Cir. 2008) (one day). Indeed, as a legal matter, it has been held that the effectsof earlier coercioncouldlast for nearlyone year. SeeAi Rabiah, classified op. at 52 (finding that without Government evidence to the contrary, effects of torture could poison confession made nine months later). 

### Atotality of the circumstances inquiry, therefore, cannot be reduced simply to mechanical computations of time. See Schneckloth, 412 U.S. at 226 ("The significant fact about all of these decisions is that none of them turned on the presence or absence of a singlecontrollingcriterion; eachreflecteda careful scrutiny of all the surrounding circumstances."). Where one court has found days to be sufficient to represent a dissipation in the effects of torture, another may require substantially more time. This court concludes that the temporal break in this case was not long enough--given the length of the abuse, its severity, and the fact that it was targeted to overwhelm the Petitioner mentally as well as physically--to "insulate the statement from the effect of 8!U!!lU!J'!'

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### all that went before." Clewis, 386 U.S. at 710. First, Binyam Mohamed's lengthy and brutal experience in detention weighs heavilywith the Court. For example, this is not
a case where a person was repeatedly questioned by a police officer, in his own country, by his own fellow-citizens, at a police station, over several days without sleep and with only minimal amounts of food andwater. SeeAshcraft v. Stateof Tenn., 322 U.S. 143, 153-54 (1944); Reck v. Pate, 367 U.S. 433, 440-41 (1961) (murder suspect held incommunicado for eight days, questioned extensively for four, and interrogated while sick). While neither the Ashcraft nor Reck scenarios are to be approved, they can hardly compare with the facts alleged here. The difference, of course, is that Binyam Mohamed's trauma lastedfor two longyears. Duringthat time, he was physicallyand psychologically tortured. His genitals were mutilated. He was deprived of sleep and food. He was summarily transported from one foreign prison to another. Captors held him 

### in stress positions for days at a time. He was forced to listen to piercingly loud music and the screams of other prisoners while locked in a pitchblack cell. All the while, he was forced to inculpate himself and others invarious plots to imperilAmericans. The Government does not dispute this evidence.

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SBCKB'!' Thus, the physical abuse in this case more closely resembles the conduct in Brown v. Mississippi, where suspects in a criminal investigation were brutally beaten, whipped, and exposed to mock executions in the daysbeforemaking a coercedconfessionandbeing thrust into the courtroom for a one-day show trial. See 297 U.S. at 281-85. Second, thepsychological effectsof this lengthyandinhumane treatment also persuade the Court that Binyam Mohamed's later statementsmade at GuantanamoBaymustbeexcludedbecause theyare tainted by his prior experiences. There is a substantial body of scientific literature describing the effects of physical and psychological torture on prisoners.26 Torture and "enhanced interrogation techniques" employed by the Government during the War on Terror have been shown to be "geared toward creating anxiety or fear in the detainee while at the same time removing any form of control from the person to create a state of total helplessness." Metin Ba.<;;oglu, M.D., PhD.,

26 See, e .g., Charles A. Morgan III et al., Accuracy of EyewitnessMemory for PersonsEncounteredDuringExposure toHighly Intense Stress, 27 Int'l Journal of Law and psychology 265 (2004); Morgan et a1., Hormone Profiles in Humans Experiencing Military Survival Training, 47 Biological Psychiatry 891 (2000); Morgan et al., Consistency of Memory for Combat-Related Traumatic Events in Veterans of Operation Desert Storm, 154 Am. Journal of Psychiatry 173 (1997).
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### et al., Torture vs Other Cruel, Inhuman, and Degrading Treatment: Is the Distinction Real or Apparent? 64 Archives of Gen. Psychiatry277, 283 (2007). Indeed, rates of Post-TraumaticStress Disorder ("PTSD") in torture survivors far exceed the rate among the general population. Physicians for Human Rights, Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality, 43-44; 43 n.337 (Aug. 2007), available at http://wwww.physiciansforhumanrights.org/library/documents/report s/leave-no-marks.pdf (collectingjournalarticlesthatreportrates for torture victims higher than 3.6% rate of PTSD among general population)
. According to a new study about to be published in a peerreviewed journal, "prolonged and extreme stress has a deleterious effect on frontal lobe function," Shane O'Mara, Torturing the Brain: On the Folk Psychology and Folk Neurobiology Motivating "Enhanced and Coercive Interrogation Techniques" Trends in Cognitive Sciences
_ (forthcoming) (manuscript at 2), availableat http://download.cell.com/trends/cognitive-sciences/pdf/PIIS1364 661309001995.pdf (published Sept. 24, 2009) ,27

27 

### Trends in cognitive Sciences is a peer-reviewed professional journal published in the United Kingdom by Elsevier. The article cited is written by an Associate Professor in the School of Psychology at Trinity college Dublin, in Ireland. 8B@ItB'!'

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A common consequence of coercive interrogation techniques is "confabulation," or the "pathological production of false memories." As the author explains, "[s]tress causes heightened excitability or arousal in the brain and body. Experiencingstress causesreleaseof stresshormones (cortisoland catecholamines
. [which] provoke and control the 'fight or flight' response that, if overly prolonged, can result in compromised cognitive neurobiological function (and even tissue loss) in [the prefrontal cortex and hippocampus]." Id. at 1. Because of these physiological reactions, the brain areas function improperly, and "both memory and executive functions (intention, planning[,] and regulation of behavio[]r) can be impaired." rd. The study specifically addresses the "folk psychology that is demonstrably incorrect"28 underlying adoption of enhanced interrogation techniques. rd. at 1. The author concludes that "[i]t is likely to be difficult or perhaps impossible to determine during interrogation whether the information that a suspect reveals is true: information presented

28 The authorconcludes that there isno scientificevidence supporting the neuropsychobiological model underlying the Government's adoptionof coerciveinterrogationtechniques. 

### .ML..at 1. Quite the contrary--the article concludes that "these techniques are unlikely to do anything other than the opposite of that intended by coercive or 'enhanced' interrogation," i.e., to provide reliable, truthful, and accurate information. Id.

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### by the captor to elicit responses during interrogation might inadvertently become part of the [subject's] memory, especially because [subjects] are under extreme stress and are required to tell and retell the same events that might have happened over a period of years." Id. at 2. In this case, even though the identity of the individual interrogators changed (from nameless Pakistanis, to Moroccans, to Americans, and to Special Agent _, there is no question that throughout his ordeal Binyam Mohamed was being held at the behest of the United States. Captors changed the sites of his detention, and frequently changed his location within each detention facility. He was shuttled from country to country, and interrogated and beaten without having access to counsel until arriving at Guantanamo Bay, afterbeingre-interrogatedby Special Agent _. See JE 72 (declaration of Binyam Mohamed's attorney, Clive Stafford Smith, stating that he did not meet with client until May of 2005). From Binyam Mohamed's perspective, there was no legitimate
reason to think that transfer to Guantanamo Bay foretold more humane treatment; it was, after all, the third time that he had beenforced ontoa planeand shuttledtoa foreign countrywherehe would be held under United States authority. Further, throughout
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his detention, a constant barrage of physical and psychological abuse was employed in order to manipulate him andprogramhim into telling investigators what they wanted to hear. It is more than plausible29 that, in an effort to please Special Agent
_ (consistent with how captors taught him how to behave), he re-told such a story, adding details, such as Petitioner's presence at training, which he thought would be helpful and, above all, would bring an end to his nightmare.30 InBagram, he wrote that he trainedwith three Algerians. JE 73 at 1902. When he arrived at Guantanamo Bay and, according to his subsequent statements, met Petitioner for the first time, he then reported that one of those unnamed Algerians was in fact Petitioner. JE 27 at 2; JE 36 at 5. Given the factors discussed above, the court cannot credit this confession as voluntary. The earlier abuse had indeed "dominated the mind" of BinyamMohamed to such a degree that his later statements to interrogators are unreliable. Lyons, 322 U.S. at 603; see alsoLeave No Marks at 117 ("The ultimate effect of [employing methods of psychological control] is to convince the victim that the perpetrator is omnipotent, that resistance is futile, andthat his lifedepends on

29 See O'Mara, supra at page 66.
30 See Al Rabiah, classified op. at 50. !!:CltBY

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absolute compliance."). In reaching this conclusion, the Court does not doubt the abilities or experience of Special Agent

# 1IIIIIIII, nor his account of his humane treatment of the witness. Rather, based on the factors discussedabove, the Court finds thatBinyamMohamed's will
was overborne by his lengthy prior torture, and therefore his confessions to Special Agent

# 1IIIIIIII do not represent reliable evidence to detain Petitioner. d. Remaining Allegations Regarding Training Without BinyamMohamed's statements implicating Petitioner in training, the Government's evidence supporting this allegation is severely weakened.

After three nights there, he
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### insists that he returned to Kabul. rd. According to Petitioner, and perhaps reflects a misunderstanding by interrogators that he He notes also that the training allegations that Binyam Mohamed made involved different locations than Bagram. Traverse at 45-46.

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### Basedonthis record, theCourtcannot credit the one sentence upon which the Government's claim now rests. As describedabove, we donotknowwho reportedthecommentsregarding the and therefore it is impossible to assess that person's reliability. Additionally, the comment is not specific, and refers to

sustained on this record. 6. Participation in Battle 

### TheGovernmentassertsthatPetitionerparticipatedinbattle. This allegation rests only on highly speculative evidence. There is no eye-witness account of Petitioner engaging in battle. The Government derives its evidence almost entirely from the commentscontainedononepageofanintelligencereport from 2005. Inthatreport, basedonaninterrogationof Petitioner, theauthor

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### remarks that "detainee admitted to authorities in the past that he fought on the front lines but is now recanting all of this with the American interrogators." JE 33 at 4. He also identified another detainee, ISN 197, by his kunya, "Abdul Haq." According to the report, "this is interesting because ISN 197 was only known by this alias while fighting" at Tora Bora. Id. The Government marshals additional evidence about Petitioner's travel pattern and his al-Qaida associations in order to buttress its argument. The Court finds that the Government has not shown that it is
more likely than not that Petitioner fought. The reported authorities is statement about Petitioner's admissionto not reliable, as it represents multiple levels of hearsay: the authorities are who Court cannot ascertain who the allegedly received this information from Petitioner, nor to which United States official the information was then sent or transmitted. As for the identification of Abdul Haq, Petitioner provides declarations from ISN 197 and his brother, in which the two claim that ISN 197 only adopted the kunya Abdul Haq after arriving at Guantanamo Bay. JE 66; JE 67. If true, this would contradict the intelligence report's assertion that ISN 197 only used that kunya


### SBeRiB.

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### at Tora Bora. The Government supports this assertion by pointing to an intelligence report where a detainee identifies ISN 197 as Abdul Haq, the name by the detainee knew ISN 197 "while he was in Afghanistan." JE 39 at 1. Even if the Government's evidence is credited so as to resolve this dispute in its favor, that establishes that ISN 197 andhisbrotherliedabout using thekunya only at Guantanamo Bay. It would not establish that ISN 197never used the kunya at Guantanamo Bay. In short, there is no reliable evidence that ISN 197used the nameAbdul Haq onlyat ToraBora, as the comments inJE 33 insist, and soPetitioner's identificationof ISN 197 is not probative of whether or not Petitioner fought at Tora Bora. The Government's reliance on comments in one intelligence report cannot sustain this allegation. No witness places Petitioner in battle, and no other evidence corroborates that Petitioner made the comments attributed to Petitioner. The Government's evidence regarding Petitioner's travel pattern, his associations, and his alleged encounter of BinLadenwhile passing bya funeral in Kabul, JE 15 at 5, does not meet its burdento show that it was more likely than not the Petitioner participated in battle.

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### IV. CONCLUSION TheGovernment has consistentlyurgedthe Court not toexamine in isolation individual pieces of evidencepresented in the habeas
cases emanating from Guantanamo Bay, but rather to evaluate them "based on the evidence as a whole" in determining whether the allegations, when viewed together, support a conclusion that Petitioner has been justifiablydetained. After considering the evidence as a whole, the Court rejects the Government's conclusion. While the mosaic approach can be a useful tool, the evidence must also be carefully analyzed--majorissue-in-disputebymajor-issue-in-dispute--since the whole cannot stand if 

### its supporting components cannot survive scrutiny. The facts of this case demonstrate the need for this analytical approach. Here, the Government has clearly proven, by far more than a preponderance of the evidence, that Petitioner traveledextensivelyinEurope, bothbeforeandafterSeptemberII, 2001, by using false names, passports, and other official documents. Ithas alsoproven, by far more thana preponderance of the evidence, that while in London Petitioner attended mosques which were well known to have radical, fundamentalist clerics advocating jihad. At one of the mosques he met a recruiter who then paid for and arranged his trip to Afghanistan along routes SHey'!

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well-traveled by those wishing to fight with al-Qaida and/or the Taliban against the United States and its allies. Finally, the Government has alsoproved, by farmore thana preponderance of the evidence, that once Petitioner arrived inAfghanistanhe stayedat
a guesthouse with direct ties to al-Qaida and its training camps. But the Government's evidence fails to prove anything more. The Government has failed to provide reliable evidence that Petitioner received any training in weaponry or fighting, or that he engaged in actual fighting of any kind on behalf of al-Qaida and/or the Taliban. The question then becomes whether, under Gherebi andHamlily, the Government's evidence meets the standard for detention. Analyzing those two cases, the court concludes that Petitioner's conduct does not meet the legal standard for detention. In determining whether Petitioner was a member or substantial supporterofal-Qaidaand/ortheTaliban, orassociated forces, the Court must consider whether he was a "member[] of the enemy organization's armed forces, as that term is intended under the laws of war." Gherebi, 609 F. Supp. 2d at 70-71. Both substantial supporters and members of al-Qaida and/or the Taliban musthave occupieda rolewithin "themilitarycommand structureof
an enemy organization." Id. at 70. Akey indicator of such a role

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is receiving and executing orders from the enemy force's "combat apparatus." Id. at 69. In determining who is "part of" al-Qaida and/or the Taliban, "[t]he key inquiry, then, is not necessarily whether one self-identifies as a member of the organization
. . . but whether the individual functions or participates within or under the command structure of the organization--i.e., whether he receives andexecutes orders ordirections." Hamlily, 616 F. Supp. 2d at 75. 31 In this case, there is no evidence to show that it is more likely than not that Petitioner received and executed orders from the command structure of al-Qaida or that he was part of the enemy force's "combat apparatus." Petitionerhad simply not yet reached that point in his journey to become a part of al-Qaida. The Government has provided credible and reliable evidence that he attended radical mosques in London, that he met a man named Rahim

31 Nor is actual fighting on a battlefield required. See Gherebi, 609 F. Supp. 2d at 69 ("[T]he armed forces of the enemy consist of more than those individuals who would qualify as 'combatants' in an international armed conflict.") (citing International Committee of the Red Cross ("ICRC") commentary on ThirdGeneva Convention). "Thus, an al-Qa[i]damember taskedwith housing, feeding, or transporting al-Qa[i]da fighters could be detainedaspart of the enemyarmedforces notwithstandinghis lack of involvement in the actual fighting itself
.... " rd.; see also id. at 68 (reasoning that "[s]ympathizers, propagandists, and financiers who have no involvement with th[e] 'command structure[]'" are not part of armed forces, and therefore canonly be detained if they engaged directly in hostilities)
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who coordinated and funded his travel to Pakistan, that he was shepherded from Pakistan toAfghanistanbyRahim's contacts via an established corridor for transporting al-Qaida recruits, and that he stayed at a guesthouse that linked these recruits with training camps. While these facts demonstrate that Petitioner was exposed to radical, anti-American rhetoric at mosques in London, and that he traveled to Afghanistan with the assistance of an al-Qaidaaffiliated network, there is no evidence that Petitioner took orders from that network or from any "combat apparatus." Training may have been encouraged by guesthouse operators, but there is no evidence that it was required or ordered. JE 40 at 8. In short, at the point inhis journeywhere the Government's evidence fails, Petitionerhadnotyet acquireda rolewithinthe "militarycommand structure" of al-Qaida and/or the Taliban, nor acquired any membership in these enemy forces. One who merely follows a path, however well-trodden, from London to Afghanistan and ends up staying in an al-Qaida-affiliated guesthouse, cannot be said to occupya \\\structured' role inthe \hierarchy' of the enemy force." Gherebi, 609 F. Supp. 2d at 68. Admittedly, there is a preponderance of evidence indicating that Petitioner was prepared to join al-Qaida and/or the Taliban, 

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## s:meREI
andthat he set out for Afghanistanwith the intentionof doing so. But Mohammed did not actuallyjoin or substantially support enemy forces simply by virtue of his attendance at the two mosques, recruitment, travel, and guesthouse stay. Sliti v. Bush, 592 F. Supp. 2d 46 (D.D.C. 2008), upon which theGovernment relies, isthereforedistinguishable. Inthat case, the petition for habeas corpus was denied because petitioner "traveled to Afghanistan as an [al-Qaida] recruit and trained at the local military training camp proximate to the Tunisian guesthouse in Jalalabad." at 51 (emphasis added). The case does not support the proposition that mosque attendance, recruitment, travel, andguesthouse stayalone are sufficientbases for detention. Whether or not one believes that Petitioner was a potential danger to the security of this country, or whether or not one speculates that Petitionerwouldhave attended a training camp and then fought with al-Qaida and/or the Taliban if the opportunity presented itself, is not relevant. The legal issue to be decided is whether--based on the actual evidence presented--that evidence satisfies the standard set forth in Gherebi and Hamlily for determining whether Petitioner, at the time of his capture, was a member or substantial supporter of the terrorist organizations
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fighting against the United States and its allies. At the point at which he was detained, those requirements had not yet been met,
even though they might well have been satisfied at some future time. In short, Petitioner may well have started down the path toward becoming a member or substantial supporter of al-Qaida and/or the Taliban, but on this recordhe hadnot yet achievedthat status. Mindful of the limitations on the scope of the remedy in this situation, see Kiyemba, 555 F.3d at 1024, the Court further orders the Government to take all necessary and appropriate diplomatic steps to facilitate Petitioner's release forthwith. Further, the Government is directed to comply with any reporting requirements mandatedbytheDepartmentof HomelandSecurityAppropriationsAct, 2010, Pub. L. No. 111-83, 123 Stat. 2142 (2009), if applicable, to facilitate Petitioner'srelease, and toreportback to the Courtno later than December 2009, as to the status of that release and what steps have been taken to secure that release.

November

# L[, 2009 Judge Copies to: Attorneys of Record via ECF

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OP COLUMBIA PARRI SAEED BIN MOHAMMED, et. a1., Petitioners,

v. Civil Action No. 05-1347 (GK) BARACKH. OBAMA, at. al., Respondents.
ORDER For the reasons set forth in this Court's Classified Memorandum Opinion of

### November/~, 2009, it is hereby ORDERED, that Petitioner Farhi Saeed Bin Mohammed's petition for a writ of habeas corpus is granted; and it is further ORDERED, that the Government take all necessary and appropriate diplomatic steps to facilitate Petitioner's release forthwith. Further, the Government is directed to comply with any reporting requirements mandated by the Department of Homeland Security Appropriations Act, 2010, Pub. L. No. 111-83, 123 Stat. 2142 (2009), ifapplicable, to facilitate Petitioner'srelease, and to report back to the Court no later than

### December/~, 2009, as to the status of that release andwhat steps have beentaken to secure that release.

### November/~, 2009 Copies to: Attorneys of Record via ECF IilJiQRJi'i'

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