UNCLASSIFIEDIIFOR PUBLIC RELEASE 

8f!}CRE~INOPORN

UNITED STATES DISTRICT COURT
 

FOR THE DISTRICT OF COLUMBIA
 

)
 

FAVIZ MOHAMMED AHMED )
 

AL KANDARI, et al., )
 

)
 

Petitioners. )
 

)
 

v.	 ) Civil Action No. 02-828 (CKK) 

) 

UNITED STATES. etaT., ) 

) 

Respondents.	 )
 

)
 

CLASSIFIED MEMORANDUM OPINION 

(September 15, 2010) 

Petitioner Fayiz Mohammed Ahmed Al Kandari ("AI Kandari") has been detained by the 

United States Government at the Guantanamo Bay Naval Base in Cuba since 2002. According to 

his own statements and admissions against interest. Al Kandari was in the mountains near Tora 

Bora, during the height ofthe Battle ofTora Bora, armed with a Kalishnikov rifle. and in the 

company of several members and high-level leaders of al Qaeda, the Taliban. or associated 

enemy forces, who were actively engaged in fighting the United States and its Coalition allies. 

Based on these admissions and other evidence in the record, the Government asserts that it has 

the authority to detain Al Kandari pursuant to the Authorization for the Use of Military Force, 

Pub. L. No. 107-40. § 2(a), 115 Stat. 224,224 (2001) ("AUMF"), which authorizes the use of 

force against certain terrorist nations, organizations, and persons. Al Kandari believes he is 

unlawfully detained and has filed a petition for a writ of habeas corpus. 

This civil proceeding requires the Court to determine whether or not Al Kandari's 

detention is lawful. In connection with this inquiry, the Court has considered the factual 

evidence in the record, the extensive legal briefing submitted by the parties, and the arguments 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SRCRE'f'/INOPORf\\ 

presented during a five-day Merits Hearing held on October 19-23,2009. The parties did not 

present any live testimony at the Merits Hearing, but AI Kandari did listen telephonically to the 

unclassified opening statements by his counsel and Government's counsel. Based on the 

foregoing, the Court finds that the Government has met its burden to show by a preponderance of 

the evidence that Al Kandari became part of al Qaeda, the Taliban, or associated enemy forces. 

Accordingly, the Court shall DENY Al Kandari's petition for habeas corpus. 

I. BACKGROUND 

A. Procedural History 

Al Kandari filed his petition for habeas corpus on May I, 2002, making this case the 

oldest ofthe pending Guantanamo Bay habeas cases. I After several years oflitigation, this case 

was stayed pending resolution ofwhether the Court bad jurisdiction to hear Al Kandari's 

petition. On June 12, 2008, the United States Supreme Court issued its decision in Boumediene 

v. Bush, clarifying that this Court had jurisdiction to consider the petition and advising this and 

the other judges in this District that "[tJhe detainees are entitled to [] prompt habeas corpus 

hearing[s]." 553 U.S. 723, 128 S. Ct. 2229, 2275 (2008). 

Following the Boumediene decision, this and most ofthe other judges in this District 

agreed to consolidate their Guantanarno Bay habeas cases before former Chief Judge Thomas F. 

Hogan for issuance of an initial case management order that would expeditiously move these 

cases toward resolution. Judge Hogan issued a Case Management Order on November 6,2008, 

which he amended on December 16, 2008, and which the Court adopted in this case on 

I The Court has previously resolved the habeas petitions ofthe other remaining detainees 

in this civil action. See Al Mutairi v. United States, 644 F. Supp. 2d 78 (D.D.C. 2009); Al Odah 

v. United States, 648 F. Supp. 2d I (D.D.C. 2009); Al Rabiah v. United States, 658 F. Supp. 2d 

11 (D.D.C. 2009). AI Kandari is therefore the last ofthe petitioners in this case with a pending 

petition for habeas corpus before this Court. 

·2­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

December 22, 2008. The Court has relied on the Amended Case Management Order ("CMO") 

as the backdrop for its subsequent Scheduling Orders? 

The Government filed an Amended Factual Return on September 15, 2008, and pursuant 

to the schedule set by the Court, Al Kandari filed a Traverse on March 30,2009. The parties 

engaged in extensive discovery and motions practice in the interim. AI Kandari filed a Motion 

for Additional Discovery on January 26, 2009, which the Court granted-in-part and denied-inpart on February 12, 2009, after a hearing on February 11, 2009. Al Kandari filed a Motion to 

Produce a Declassified Factual Return on January 9, 2009, which the Government produced on 

February 6, 2009. The Court also required the Government to provide Al Kandari with certain 

discovery from the Guantanamo Bay Joint Task Force database. In addition, to narrow the 

disputed issues presented at the Merits Hearing and to focus the parties on the specific 

documents underpinning their respective arguments, the Court ordered the Government to file a 

Statement of Facts on which they intended to rely at the Merits Hearing (which narrowed the 

allegations presented in the Amended Factual Return), and instructed both parties to submit 

Witness and Exhibit Lists. Finally, the parties filed seven pre-hearing motions, most of which 

sought rulings concerning the admissibility ofparticular evidence. By order dated June 16, 2009, 

the Court granted the parties' motions to rely on hearsay evidence at Al Kandari's Merits Hearing 

and granted the Government's motion to amend its Statement of Facts and Exhibit List as to Al 

Kandari, but held their other evidentiary motions in abeyance to be resolved in the context ofAI 

Kandari's Merits Hearing. 

On September 9,2009, the Court issued a Merits Hearing Procedures Order, which 

scheduled Al Kandari's Merits Hearing to begin on October 19, 2009, and to continue through 

2 The Court extends its gratitude to Judge Hogan for his considerable investment oftime 

and energy to produce the Case Management Order. 

-3­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SE€RE'f'HNOfilORN 

October 23,2009, as needed. In addition, as the Court has done with respect to each ofthe prior 

Merits Hearings in this case, the Court pennitted the parties to file motions for leave to amend 

the parties' respective Witness and Exhibit Lists, Respondents' Statements of Facts, and/or the 

underlying Factual Return and Traverse. Pursuant to the schedule proposed by the parties and 

adopted by the Court, the parties exchanged their initial proposed amended exhibits by October 

5,2009; exchanged any additional amended exhibits by October 9, 2009; and conferred regarding 

their final Exhibit Lists and any objections to the same prior to their submission to the Court on 

October 13,2009.3 This schedule, as suggested by the parties, was intended to ensure that both 

sides had an opportunity to review the opposing side's proposed amended exhibits, to adjust their 

own proposed amended exhibits in response, and to narrow any disputes as to the proposed 

motions to amend. The Court advised the parties that it would likely exclude from consideration 

any evidence at the Merits Hearing that had not been identified in the Witness and Exhibits Lists 

by the October 13,2009 deadline.4 

The parties timely submitted these materials, and the Court held an on-the-record 

unclassified telephone conference call with counsel for all parties on October 15,2009, and a 

classified status hearing on October 16,2009, to discuss the parties' motions for leave to amend 

and their respective objections to the other side's amended exhibits. Discussion principally 

focused on Al Kandari's objections to Respondents' newly amended exhibits ("Amended 

Exhibits"), and in particular, on his objection to the admission of certain of the Government's 

Amended Exhibits on the basis that Petitioner's counsel would not have an opportunity to show 

3 In addition, on October 6,2009, AI Kandari filed under seal an Emergency Motion for 

Production of Documents and Rule 30(b)(6) Deposition, which the Court denied by Minute 

Order dated October 8, 2009. 

4 The Court noted two exceptions for (l) documents offered for rebuttal purposes, and (2) 

exculpatory documents, as to which the Government has a continuing obligation to disclose. 

-4­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

S~CR:E:'tWNOfi'ORN

or discuss those exhibits with his client, Ai Kandari, prior to the Merits Hearing. In an effort to 

address this specific objection, Respondents - with the Court's firm encouragement - assisted 

Petitioner's counsel in obtaining expedited declassification review of certain exhibits and in 

arranging a secure telephone conversation between Petitioner's counsel and Al Kandari in 

Guantanamo on Sunday, October 18,2009, to discuss the Amended Exhibits.s 

At the close ofthe October 16,2009 hearing, the Court granted Al Kandari's motion for 

leave to amend his Exhibit List and granted-in-part and held in abeyance-in-part Respondents' 

motion for leave to amend the Statement ofMaterial Facts and the Government's Exhibit List. 

The Court made clear that it would not exclude Respondents' Amended Exhibits from 

consideration ex ante because ofthe importance of ensuring that its ruling on Al Kandari's 

habeas petition was made on the basis ofall available evidence. The Court indicated instead that 

it would permit the presentation of all evidence, including Respondents' Amended Exhibits, 

during the course ofthe Merits Hearing and would reserve its final decision regarding the parties' 

objections to particular pieces of evidence until after all evidence and the parties' positions 

thereto had been considered. The Court notes that while the volume of Respondents' Amended 

Exhibits was not insignificant, Respondents' request for leave to amend was timely filed in 

compliance with the parties' own proposed schedule and both parties were aware that the number 

of amended exhibits submitted with respect to Al Kandari - the last ofthe four habeas petitions 

in this case - was likely to be substantial, given the parties' ongoing efforts to respond to the 

Court's prior rulings in these habeas cases. Nonetheless, Al Kandari's concerns regarding the 

timing ofthe Government's Amended Exhibits and its effect on his ability to respond to the 

, Petitioner's counsel subsequently confirmed at the start ofthe Merits Hearing that he 

had been able to speak with his client through the secure telephone connection on October 18, 

2009. 

-5­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

Amended Exhibits would be considered by the Court in determining the weight to be afforded to 

any particular piece of evidence during the course of the Merits Hearing.6 Al Kandari gave no 

indication that he required additional time in light of this evidentiary approach to further 

investigate the Amended Exhibits or to augment the record in order to present an adequate 

defense as to those exhibits, nor did he request a postponement ofthe Merits Hearing. 

Accordingly, the Merits Hearing began as scheduled on Monday, October 19,2009. As 

the hearing progressed, Al Kandari's objections to the Amended Exhibits became increasingly 

focused on the allegation that his defense was hampered by his counsel's inability to conduct a 

further investigation into certain of those exhibits because of the timing of their submission by 

the Government. On the morning of the fourth day of the Merits Hearing, Thursday, October 22, 

2009, the Court halted the parties' presentation of evidence to address the issue. Observing that 

most ofthe evidence relied upon by Respondents from the Amended Exhibits neither raised new 

allegations against nor contained new information concerning Al Kandari, the Court cautioned 

that Al Kandari must specify precisely how he would be prejudiced if the Court were to rely on 

the Amended Exhibits in ruling on his habeas petition. The Court advised the parties that it 

would provide Petitioner's counsel a final opportunity before the close ofthe Merits Hearing to 

identify - with specificity - the particular actions counsel would have taken in order to 

complete Al Kandari's defense with respect to the Amended Exhibits, if counsel had additional 

time. To the extent Petitioner'S counsel was able to identify such actions with particularity, the 

Court would order the record held open for the limited purpose of permitting counsel additional 

6 Cf Al Harbi v. Obama, Civ. Act. No. 05-2479,2010 WL 2398883, at ·10 (D.D.C. May 

13,2010) (permitting the late addition of evidence submitted by the Government "because of the 

importance of ruling on the habeas petitions of Guantanamo Bay detainees based on all ofthe 

available evidence," but indicating that the Court would consider ''the timing of the disclosure [] 

and its effect on [petitioner's] ability to respond to respondents' accusations in determining what 

value to place on the document's contents"). 

-6­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

S£Cft:H;'WfN6P6RN 

time to conduct the requested investigation with respect to the Amended Exhibits and any 

exhibits submitted at the Court's request during the Merits Hearing. In the absence of any 

particularized assertions of prejudice, however, the Court would conclude that Al Kandari had 

completed his defense as to these exhibits; the Court would close the factual record at the end of 

the Merits Hearing, as anticipated, and make its final decisions on both the exclusion of evidence 

and the merits of Al Kandari's habeas petition on the present record. 

Accordingly, immediately prior to closing arguments, Petitioner's counsel was presented 

with an opportunity "to identify what [Petitioner] need[ed] to do to complete [his] defense as it 

relates to ... these new exhibits." 10/22/09 (AM) Mrts. Hr'g Tr. at 14:3-5. This opportunity 

was specifically limited to the Amended Exhibits as well as to any evidence newly presented at 

the Court's request during the course of the Merits Hearing. See id at 57: 19-25,58: 12-19. The 

Court made clear that it was not permitting Al Kandari the opportunity to advance new 

objections to previously disclosed evidence or to reopen discovery as to all issues. See 10/22/09 

(PM) Mrts. Hr'g Tr. at 60: I-II. At that time, Petitioner's counsel made seven specific requests 

for further action with respect to the Respondents' Amended Exhibits only. Based on these 

particularized representations, the Court agreed to leave the record open for Al Kandari to pursue 

these specific actions. Although this course ofaction would inevitably delay final resolution of 

Al Kandari's petition for habeas corpus, Petitioner's counsel confirmed that his client preferred 

to obtain a continuance of the Merits Hearing rather than rest his defense and leave the Court to 

make its final decisions on both the exclusion of evidence and the merits of Al Kandari's habeas 

petition on the present record. See id at 66:5-19. 

The record was therefore left open for the limited purpose ofperrnitting Petitioner's 

counsel to pursue the specific actions identified on the record at the close ofthe Merits Hearing. 

-7­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEOIIFOR PUBLIC RELEASE 

SE€MIf/lN8'8Ml 

The Court ordered Respondents to search and disclose certain information requested by 

Petitioner regarding the Amended Exhibits by no later than November 24, 2009. To the extent 

Respondents' searches uncovered responsive information that was inculpatory in nature, the 

Court indicated that the Government would be permitted to seek leave to augment the record 

with this additional material as well. Pursuant to the schedule suggested by the parties and 

adopted by the Court, on February 26, 2010, the Government - but not AI Kandari - filed a 

Motion to Augment the Record. Al Kandari opposes that Motion, which is now fully briefed and 

pending before the Court. By contrast, Al Kandari did not seek to admit any additional evidence 

into the record in response to the seven areas of concern related to the Respondents' Amended 

Exhibits, despite having been permitted an additional four months to conduct further 

investigations in order to complete his defense as to those exhibits. With the Court's leave, 

however, AI Kandari filed a Petition for Writs of Habeas Corpus Ad Testificandum directed at 

securing certain testimony relating to the Amended Exhibits as well as a supplemental brief in 

support of his objections to certain of the Amended Exhibits. See Feb. 3, 2010 Order.' The 

Government opposes AI Kandari's Petition for Writs ofHabeas Corpus Ad Testificandum, which 

is now fully briefed and pending before the Court. Both Respondents' Motion to Augment the 

, AI Kandari's remaining requests for additional discovery were denied in the Court's 

February 3,2010 Order. The Court found that the Government had complied with its discovery 

obligations concerning statements made by two individuals, Abdulrabman AI Bathali (ISN 

157245) and Mohammed Monsour Jabarah. In addition, the Court denied Al Kandari's request 

ecause these exhibits had been 

to obtain testimon t writs of habeas co us ad testificandum relating to two exhibits, 

disclosed to A Kan ·'s counsel in e Amen e actua eturn, his request to obtain further 

discovery with respect to such evidence was outside the bounds ofthe Court's order leaving the 

record open only as to the Amended Exhibits. Ultimately, as the Court has not relied on either of 

the two exhibits at issue, or on 

any statements made by the two in iVl ua s at issue, Jabarah or Al Bathali, in reaching its 

decision herein, Al Kandari is not prejudiced by the Court's decision denying his requests for 

additional discovery in its February 3, 2010 Order. 

-8­

UNCLASSIFIEOIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

8)i]81lt"tlfl'N8Ji8Bf'l 

Record and AI Kandari's Petition for Writs ofHabeas CorpusAd Testificandum are discussed in 

further detail below. See discussion infra pp. 12-13. 

B. Evidentiary Issues 

1. Hearsay 

As stated above, the Court granted the parties' motions to rely on hearsay evidence in this 

proceeding. The plurality in Hamdi v. Rumsftld specifically acknowledged that "[h]earsay 

... may need to be accepted as the most reliable available evidence from the Government." 542 

U.S. 507, 534 (2004). The Court finds that allowing the use ofhearsay by both parties balances 

the need to prevent the substantial diversion of military and intelligence resources during a time 

ofhostilities, while at the same time providing Al Kandarl with a meaningful opportunity to 

contest the basis of his detention. The Court is fully capable of considering whether a piece of 

evidence (whether hearsay or not) is reliable, and it has made such determinations in the context 

ofthe evidence and arguments presented during the Merits Hearing - including any arguments 

the parties made concerning the unreliability of hearsay evidence. Cf Parhat v. Gates, 532 F.3d 

834,849 (D.C. Cir. 2008) (explaining, in the context ofthe Detainee Treatment Act, that the 

Court was "not suggest[ing] that hearsay evidence is never reliable - only that it must be 

presented in the form, or with sufficient additional information, that permits [the finder of fact] to 

assess its reliability") (emphasis in original). The D.C. Circuit recently approved this approach 

to the admission of hearsay evidence, explaining that "the question a habeas court must ask when 

presented with hearsay is not whether it is admissible - it is always admissible - but what 

probative weight to ascribe to whatever indicia ofreliability it exhibits." AI-Bihani v. Obama, 

590 F.3d 866, 879 (D.C. Cir. 2010); Awad v. Obama, 608 F.3d 1, 7 (D.C. Cir. 2010) (affinning 

that "hearsay evidence is admissible in this type ofhabeas proceeding ifthe hearsay is reliable"); 

-9­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

Al Odah v. Obama, 611 F.3d 8, 14 (D.C. Cir. 2010) (same).8 

2. Presumption of Accuracy and Authenticity 

For similar reasons, the Court shall deny the Government's motion to have its evidence 

admitted with a presumption of accuracy and authenticity. Relying in part on the Supreme 

Court's statement in Hamdi v. Rumsfeld that "the Constitution would not be offended by a 

presumption in favor of the Government's evidence, so long as that presumption remained a 

rebuttable one and fair opportunity for rebuttal were provided," 542 U.S. at 534, the Government 

argues that a presumption as to its evidence is both appropriate and necessary. The Court 

disagrees. One ofthe central functions ofthe Court in this case is ''to evaluate the raw evidence" 

proffered by the Government and to determine whether it is "sufficiently reliable and sufficiently 

probative to demonstrate the truth ofthe asserted proposition with the requisite degree ofclarity." 

Parhat, 532 F.3d at 847. Simply assuming the Government's evidence is accurate and authentic 

does not aid that inquiry. Cf Ahmedv. Obama, 613 F. Supp. 2d 51, 55 (D.D.C. 2009) (rejecting 

a presumption of accuracy for the Government's evidence and holding that ''the accuracy of 

much of the factual material contained in [the Government's] exhibits is hotly contested for a 

host ofdifferent reasons ..."). 

The Court also finds that there are significant reasons why the Government's proffered 

evidence may not be accurate or authentic. Some of the evidence advanced by the Government 

has been "buried under the rubble of war:' Hamdi, 542 U.S. at 532, in circumstances that have 

8 To the extent Al Kandari contends that the Court's approach to the admission of hearsay 

deviates from the standard set forth in the CMO, the Court disagrees. Nonetheless, even 

assuming Al Kandari is correct, "the CMO governing the Guantanamo habeas cases expressly 

authorizes judges assigned to adjudicate habeas petitions to 'alter the framework [set out in the 

CMO] based on the particular facts and circumstances of their individual cases.'" Barhoumi v. 

Obama, 609 F.3d 416, 422 (D.C. Cir. 2010) (quoting CMO, 2008 WL 4858241, at *1 n.l) 

(approving of district court's decision to depart, in its discretion, from the CMO's procedural 

framework regarding the admissibility of hearsay). 

-10­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SEen'fi/fl(6'6ftf( 

not allowed the Government to ascertain its chain of custody, nor in many instances even to 

produce information about the origins of the evidence. Other evidence is based on so-called 

"unfinished" intelligence, information that has not been subject to each of the five steps in the 

intelligence cycle (planning, collection, processing, analysis and production, and dissemination). 

Based on the Government's own declarations, its raw intelligence may not have been fully 

analyzed for its "reliability, validity, and relevance" in the context of other intelligence where 

"judgments about its collective meaning" are made.9 Ex. 58 at 3-5 (09/19/08 Decl. of. 

Ex. 59 at 1-2 (05/29/09 Decl. of explaining 

that the five steps in the intelligence cycle are not "mechanical" and that the process "var[ies] by 

collection specialty," but not disturbing the conclusion that "unfinished" intelligence has not 

undergone the same rigorous integration and evaluation process that produces "finished" 

intelligence).10 Still other evidence is based on multiple layers of hearsay (which inherently 

raises questions about reliability), or is based on reports of interrogations (often conducted 

through a translator) where translation or transcription mistakes may occur. Accordingly, the 

Court shall not accord a presumption ofaccuracy or authenticity to the Government's evidence, 

but shall consider the accuracy or authenticity ofthe evidence in the context ofthe entire record 

and the arguments raised by the parties. 

9 The intelligence reports utilized by the Department of Defense ("DOD"), which include 

Intelligence Information Reports ("IIRs") and "Summary Intelligence Reports" ("SIRs"),. 

are distinguishable from the law enforcement forms utilized by the 

Federal Bureau of Investigation ("FBI"), which are referred to as Field Documents ("FD-302s") 

and Form 40s ("FM-40s"). See discussion infra p. 41. 

10 All citations to exhibits (cited as "Ex.") refer to the parties' joint exhibits submitted at 

the Merits Hearing. 

-11­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SI!1@DI!l'i'/IP18F8Alf 

3. AI Kandari's Pre-Hearing Motions to Exclude Evidence 

The Court shall also use the same approach to consider Al Kandari's pre-hearing 

evidentiary motions, as supplemented by his post-hearing briefing, that sought to exclude 

particular pieces of evidence based on their alleged lack ofauthenticity, reliability, or relevance. 

Rather than exclude evidence from consideration ex ante by examining it in a vacuum, the Court 

concludes that the better approach is to make such determinations after considering all of the 

evidence in the record and hearing the parties' arguments related thereto. Cf Al-Bihani, 590 FJd 

at 880 ("Where the touchstone of a proceeding is 'meaningfulness,' empowering a district court 

to review and assess all evidence from both sides is a logical process."). The Court believes this 

approach is particularly useful where, as here, a document viewed in isolation may appear to be 

irrelevant, but when considered in the context ofthe other evidence in the record its importance 

may become clear. Accordingly, the Court's consideration ofthe evidence proffered by the 

parties shall encompass inquiries into authenticity, reliability, and relevance. Cf Parhat, 532 

F.3d at 847 (describing the Court's inquiry into whether evidence is "'sufficiently reliable and 

sufficiently probative to demonstrate the truth ofthe asserted proposition with the requisite 

degree ofcertainty"') (quoting Concrete Pipe & Prods., Inc. v. Constr. Laborers Pension Trust, 

508 U.S. 602, 622 (1993». 

4. Al Kandari's and the Government's Post-Hearing Motions 

As explained above, the following post-hearing motions were filed by the parties and 

remain pending before the Court: (1) Al Kandari's Petition for Writs ofHabeas Corpus Ad 

Testificandum; and (2) Respondents' Motion to Augment the Record. Upon consideration ofthe 

parties' motions and responsive briefing, and their respective arguments as contained therein, the 

Court shall deny both motions as moot because they relate to evidence that the Court has not 

relied on in reaching its decision to deny Al Kandari's petition for habeas corpus. First, as set 

-12­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

~ECRtrt¥;,rtft)pt)ftftf

forth in Petitioner's motion, he requests the Court issue writs of habeas corpus ad testificandum 

for the production oftwo individuals currently detained in United States' custody, Mohammed 

Monsour Jabarah and AlKandari 

seeks to secure testimony from the first individual, Jabarah, with respect to statements made by 

him in Exhibit 76 (FD-302 and 

As Al Kandari himself recognizes, however, his" petition need not be 

granted if the Court excludes Exhibits 76_from consideration." Pet'r's Pet. for Writs of 

Habeas Corpus Ad Testificandum at 1. Accordingly, because the Court has not relied on either 

Exhibit 76 or_in reaching its decision in this case, Al Kandari's Petition for Writs of 

Habeas Corpus Ad Testificandum is denied as moot. Second, the Government seeks in its 

motion to augment the record to include two additional pieces of evidence that relate to_ 

Again, however, the Court does not reach herein either_or the 

Government's allegation Accordingly, 

Respondents' Motion to Augment the Record is also denied as moot. The record before the 

Court is therefore limited solely to evidence submitted by the parties prior to or during the Merits 

Hearing in this case. 

C. Standard ofDetention 

The Government derives its authority to detain Al Kandari from the Authorization for 

Use ofMilitary Force ("AUMF"), Pub. L. 107-40, 115 Stat. 224 (2001).11 The D.C.Circuit has 

JI The Government's proposed definition for its detention authority is found in the 

Memorandum that it submitted in this case on March 13,2009. According to the Government, 

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

-13­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SECRt1TfINOF6RN 

held that the President's authority to detain individuals under the AUMF includes, but is not 

necessarily limited to, "those who are part of forces associated with al Qaeda or the Taliban or 

those who purposefully and materially support such forces in hostilities against U.S. Coalition 

partners." Al-Bihani, 590 F.3d at 872. Both prongs of this test, which are informally referred to 

as the "part of' and the "support" prongs, are "valid criteria that are independently sufficient to 

satisfy the standard" for lawful detention under the AUMF. Id. at 874. 

In this case, the Government contends that it is lawfully authorized to detain Al Kandari 

because he was part of al Qaeda, the Taliban, or associated enemy forces. See Jt. List of 

Contested Issues, Docket No. [663]. Although the D.C. Circuit "has yet to delineate the precise 

contours ofthe 'part of inquiry," Barhoumi, 609 F.3d at 424, this Court is not without guidance. 

The Court of Appeals has emphasized that the focus of this inquiry is whether an individual is 

"functionally part of' a1 Qaeda, the Taliban or affiliated forces. Bensayah v. Obama, 610 F.3d 

718, 725 (D.C. Cir. 2010) (emphasis added). For example, while proof that "a detainee was part 

ofthe 'command structure' ofal Qaeda [] satisfies the requirement to show that he was 'part of 

al Qaeda," such a showing is not necessary. Awad, 608 F.3d at 11 (rejecting claim that "there 

must be a specific factual finding that [the detainee] was part of the 'command structure' ofal 

Qaeda"); Bensayah, 610 F.3d at 725 ("That an individual operates within a1 Qaeda's formal 

command structure is surely sufficient but is not necessary to show he is 'part of the 

organization."). Similarly, proofthat an individual actually fought for or on behalfof aJ Qaeda or 

planned, authorized, committed, or aided the terrorist attacks that occurred on 

September 11, 2001, and persons who harbored those responsible for those attacks. 

The President also has the authority to detain persons who were part of, or 

substantially supported, Taliban or al-Qaida forces or associated forces that are 

engaged in hostilities againstthe United States or its coalition partners, including any 

person who has committed a belligerent act, or has directly supported hostilities, in 

aid ofsuch enemy armed forces. 

-14­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SECREf/fNOFORN 

the Taliban, while sufficient, is also not required to demonstrate that an individual is a "part of' 

such enemy forces. See AI-Bihani, 590 F.3d at 872-73. Ultimately, the determination whether an 

individual is a "part of' al Qaeda, the Taliban, or associated forces, "must be made on a case-bycase basis by using a functional rather a fonnal approach and by focusing upon the actions ofthe 

individual in relation to the organization." Bensayah, 610 F.3d at 725. 

D. Burden ofPersuasion 

Pursuant to the CMO that the Court adopted in this case on December 22, 2008, the 

Government bears the burden ofproving by a preponderance ofthe evidence that Al Kandari is 

lawfully detained. See In re Guantanamo Bay Detainee Litig., Misc. No. 08-442, CMO § II.A 

(Nov. 6, 2008) ("[t]he government bears the burden of proving by a preponderance ofthe 

evidence that the petitioner's detention is lawful") (citing Boumediene, 128 S. Ct. at 2271) 

("[nhe extent ofthe showing required ofthe government in these cases is a matter to be 

determined."). The D.C. Circuit has affirmed that "a preponderance of evidence standard is 

constitutional in evaluating a habeas petition from a detainee held at Guantanamo Bay, Cuba." 

Awad, 608 F.3d at 10; see also Al Odah, 611 F.3d at 14 ("It is now well-settled law that a 

preponderance ofthe evidence standard is constitutional in considering a habeas petition from an 

individual detained pursuant to authority granted by the AUMF."). Accordingly, Al Kandari 

need not prove his innocence nor testifY on his own behalf. The burden of proofhas remained on 

the Government at all times. The Court has drawn no inference based on Al Kandari's decision 

not to testifY in this case. AccordAwad v. Obarna, 646 F. Supp. 2d 20, 24 (D.D.C. 2009), affd, 

Awad, 608 F.3d 1. The Government must come forward with evidence demonstrating by a 

preponderance ofthe evidence that Al Kandari is lawfully detained, and ifthe Government fails 

-15­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

S£CRE'fh'~'OPORN

to meet this burden, the Court must grant AI Kandari's petition for habeas COrpUS. 12 

II. DISCUSSION 

The following facts are uncontroverted and/or uncontested. Al Kandari is a citizen of 

Kuwait and was 26 years old at the time ofhis arrival in Guantanamo in 2002. Stip. ofFact , 13. 

In or around August 2001, AI Kandari traveled to Kabul, Afghanistan. Id, 15. He was 

subsequently captured while fleeing the mountains near Tora Bora shortly after the feast of 

Ramadan, which the Court takes judicial notice occurred on or around December 16, 200 I. Ex. 

139 at' 7 (03/06/09 Decl. of AI Kandari); Ex. 27 (11/20/03 AI Kandari I1R); Ex. 99 (Timeline of 

Operation Enduring Freedom); 10/19/09 Mrts. Hr'g. Tr. at 47:24-48:1. 

Al Kandari's activities within Afghanistan during this time, however, are in dispute. At 

Kandari asserts that he engaged in charitable work while in Afghanistan and that he was 

attempting to escape the fighting in that country when he was captured fleeing Tora Bora. The 

Government contends that AI Kandari joined with and fought along side members of al Qaeda, 

the Taliban, or associated forces, while in Afghanistan. For this reason, among others, the 

Government argues that it is more likely than not that Al Kandari was part of al Qaeda, the 

Taliban, or associated forces, and is therefore lawfully detained pursuant to the President's 

authority under the AUMF. 

The record in this case is voluminous. The Merits Hearing took place over five days, and 

the parties have introduced approximately 230 exhibits into the record, consisting of AI 

Kandari's own statements as well as the statements of numerous third-party sources and other 

12 Cognizant that some of the individuals discussed in this Memorandum Opinion are 

currently detained at Guantanamo Bay and may themselves have habeas petitions pending in the 

United States District Court for the District of Columbia, the Court notes that its findings in this 

case are necessarily made solely on the basis ofthe evidence now before it and the parties' 

respective arguments thereto. 

-16­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SECH'f/fN6F'61tN 

documents. Ultimately, the Court finds that AI Kandari's own statements and admissions against 

interest regarding his travel and activities in Afghanistan between August and mid-December of 

2001 are sufficient to demonstrate that it is more likely than not that Al Kandari was part of 

forces associated with al-Qaeda and/or the Taliban. The Court's discussion of the evidence in 

the record shall proceed in two steps. First, relying solely on Al Kandari's own statements, both 

in his declaration and in his statements to Government interrogators, the Court shall describe Al 

Kandari's version of events leading up to his detention~ identify several of the reasons why Al 

Kandari's exculpatory version of events is not credible; and explain why Al Kandari's own 

statements and admissions against interest demonstrate that Al Kandari was more likely than not 

part ofal-Qaeda, the Taliban, or associated forces. Having found that AI Kandari's own 

statements and admissions against interest discussed at the first step are by themselves sufficient 

for the Government to meet its burden in this case, the Court need not reach the other evidence 

offered by the Government but shall nonetheless briefly discuss the remaining evidence in the 

record at the second and final step. 

A. Al Kandari's Own Statements 

The record now before the Court consists of Al Kandari's statements made to 

Government interrogators dwing the course of his detention as well as a declaration, sworn to 

under penalty of perjury, submitted by Al Kandari in 2009 in support of his habeas petition. Al 

Kandari urges the Court to exclude, or at minimum decline to consider, all of his statements 

made to interrogators and rely solely on statements made in his declaration. He advances four 

principal arguments in support of this assertion. Given the importance of the Government's 

evidence regarding Al Kandari's statements to Government interrogators and the centrality of 

such statements to the Government's case, the Court addresses each of these arguments at the 

outset. 

-17­


UNCLASSIFIEDIIFOR PUBLIC RELEASE
 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

~~C:ItET;mOPOltf(

First, Al Kandari asserts that the interrogation reports recording his statements should be 

excluded as hearsay because he does not speak English and his interrogations were necessarily 

conducted through interpreters. 13 While the use of an interpreter to relay AI Kandari's otherwise 

admissible answers "does introduce a level of technical hearsay," this does not require the 

exclusion of his interrogation answers from these habeas proceedings. AI-Bihani, 590 F.3d at 

879 ("But that such evidence [is] hearsay does not automatically invalidate its admission.").14 

The question for this Court is not whether Ai Kandari's statements to interrogators are 

admissible, but what probative weight should be given to such statements. Id. 

Second, Ai Kandari argues that the use of an interpreter to facilitate his interrogations 

renders the Government's reports ofhis interrogation answers inherently unreliable as a category 

of evidence. In support ofthis contention, Ai Kandari has introduced the Declaration of Karin C. 

Ryding, Ph.D., Concerning Arabic Interpretation Issues, see Ex. 195, and a newspaper article 

from April 7, 2004, containing an interview with who was identified as one 

ofthe interpreters who facilitated_interrogation ofAl Kandari (as reported in Exhibit 

n Statements made by AI Kandari at his Administrative Review Board ("ARB") 

Proceeding demonstrate that, at least at the time ofthose proceedings, he had a basic level of 

proficiency in English. See generally Ex. 121 (AI Kandari ARB Statement). Although the 

specific date of Petitioner's ARB Proceeding is unknown, as Exhibit 121 is itself undated and the 

Government did not introduce any further evidence on this point, Petitioner's counsel indicated 

during the Merits Hearing that Al Kandari's ARB Proceeding would likely have taken place no 

earlier than 2005, a point the Government did not dispute. 10/23/09 Mrts. Hr'g Tr. at 44:8-16. 

There is no other evidence in the record as to AI Kandari's ability to speak and understand 

English prior to the date of his ARB Proceedings. Accordingly, although the Court finds that Al 

Kandari had some proficiency in English by the time of his ARB Proceeding, which likely 

occurred sometime after 2005, the Court cannot draw any specific conclusions as to Al Kandari's 

ability to speak and understand English during the initial years of his detention when he made the 

majority of the statements at issue. 

14 It is of course settled that Al Kandari's "interrogation answers themselves [are] not 

hearsay; they [are] instead party-opponent admissions that would [be] admi[ssible] in any U.S. 

Court. That they were translated does not affect their status." Al-Bihani, 590 F.3d at 879 

(internal citations omitted) . 

-18­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
- - -- --- ....__ ... -_. -.---_.- --_ .._----- .. _-- - -- --_. . 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

S~Cti'f/INOJil6RN

28), see Ex. 194. Neither Exhibit 194 nor Exhibit 195 discuss Al Kandari's statements or 

identify any specific errors in the interrogation reports now in the record. Dr. Ryding opines that 

"it cannot be presumed that Arabic interpretation in the interrogation ofdetainees, whether 

perfonned by a native speaker of Arabic or an American with some command of [Modem 

Standard Arabic], was fully accurate or reliable." Ex. 195 at' 32. reported 

comments, at most, merely support the same conclusion reached by Dr. Ryding - namely, that 

interrogation reports facilitated by an interpreter should not be presumed to be automatically 

reliable or accurate. See Ex. 194. But the Court has not presumed that any evidence in these 

proceedings, including the interrogation reports ofAl Kandari's own statements, are either 

accurate or reliable. Rather, it has reserved that determination to be made after considering all of 

the evidence in the record and hearing the parties' arguments related thereto. To the extent Al 

Kandari advances specific arguments that particular interpreter-related errors occurred, the Court 

shall consider such evidence and arguments in evaluating the probative weight of those 

statements. 15 

Third, Al Kandari's counsel argued during the Merits Hearing that the reports ofAl 

Kandari's statements are not reliable because they "[are] not and do[] not even purport to be a 

verbatim transcript of what the interpreter said that [AI Kandari] said," but rather are written in a 

"swnmary fashion." 10/20/09 (AM) Mrts. Hr'g Tr. at 15:6-12. That intelligence reports include 

summaries, rather than a verbatim transcript, of AI Kandari's statements does not render the 

reports inherently unreliable. Cf Abdah v. Obama, _ F. Supp. 2d _, 2010 WL 1798989, at 

15 Cf Al Harbi, 2010 WL 2398883, at *5 (considering specific interpreter error identified 

by detainee, where detainee explained that the use of the word ''join'' by the interpreter poorly 

conveyed his meaning in speaking with interrogators, as he would have used a Russian word with 

a connotation suggesting that he physically went to a particular location, not that he had become 

a part ofa particular group). 

-19­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

*11 n.l6 (D.D.C. Apr. 18,2010) (''that an SIR lacks certain details does not make the 

information it does include inaccurate"). While it may be a reason not to presume the reports are 

reliable or accurate, the Court has not granted the Government's evidence any such presumption 

of accuracy or reliability in this case. Rather, consistent with the Court's evidentiary approach in 

this matter, the Court shall consider the summary nature ofthe reports, and whether AI Kandari 

has identified any specific statements that he claims are inaccurate as the result of their 

presentation in summary form, in reaching its decision about how much probative weight, if any, 

to afford a particular piece ofevidence. 

Fourth and finally, Al Kandari broadly asserts in his declaration that the interrogation 

reports containing his answers to Government interrogators are plagued with inaccuracies, the 

implication of which is that they cannot and should not be relied on. Al Kandari states in his 

declaration that he has reviewed his interrogation answers and "see[s] many places where my 

statements have been so badly distorted or taken out of context that they are not true." Ex. 139 at 

9 (03/06/09 Dec!. of Al Kandari). The Court emphasizes that Al Kandari has not argued in 

these habeas proceedings that any ofhis statements were the product of abuse or coercion. While 

Al Kandari makes a general claim in his declaration that he was subjected to abusive and 

coercive interrogation tactics by the United States, he does not claim that he ever made any 

statements that were the product of such alleged abuse and coercion. See Ex. 139 at 8 

(03/06/09 Decl. of Al Kandari). Similarly, while Al Kandari makes a general claim in his 

declaration that his interrogators "tried to make me confess to things I did not do, and to say 

things about other people I did not know," he does not claim that such alleged efforts were 

successful- i.e., that he in fact made false statements as a result of these alleged interrogation 

tactics. See id Indeed, neither Al Kandari in his declaration nor his counsel at the Merits 

Hearing claimed that Al Kandari has ever made false or inaccurate statements because ofthe 

-20­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SECRE'tYINOFORN 

Government's alleged abuse and/or use of coercive interrogation tactics. Moreover, when 

specifically asked by this Court during the Merits Hearing if Al Kandari was advancing a claim 

of abuse in this case, Al Kandari's counsel explicitly acknowledged that AI Kandari's 

generalized claims of abuse are "not relevant to what the Court has to decide." 10/21109 (PM) 

Mrts. Hr'g Tr. at 13:10-12~ see also 10/22/09 (AM) Mrts. Hr'g Tr. at 87:2-3 ("Your Honor, we're 

not claiming that Mr. AI Kandari made false statements as a result of coercive tactics."); id. at 

93:22-94:8 ("The Court: ... But as I understand it, you're not claiming that he was coerced to 

make false statements. Mr. MacLean: Your Honor, we don't have a basis to make that - ... 

We're not making that claim, Your Honor."). Accordingly, there is no claim in this case that, as 

a result of coercion, Al Kandari made statements to interrogators that he knew to be false, such 

that his statements, although accurately reported, are unreliable. 16 

AI Kandari instead argues that he never made certain inculpatory statements attributed to 

him - i.e., that such statements are not accurately reported and are therefore unreliable. While 

Petitioner's counsel speculated at the Merits Hearing that these alleged distortions and errors 

referred to by Al Kandari may be the result ofinterpreter error, among other potential 

possibilities, he conceded that Al Kandari himself has not proffered an explanation for these 

16 Given the stipulation by Petitioner's counsel that Al Kandari's broad claims of abuse 

are not relevant to this case, the Court need not detennine whether Al Kandari's claims ofabuse 

are reliable, accurate, and credible. Nonetheless, the Court notes that the only indication in the 

record that such abuse in fact occurred is Al Kandari's own statement in his declaration, which 

was submitted in support ofhis habeas petition, that he was subjected to abuse and coercive 

interrogation tactics by the United States Government. See Ex. 139 at , 8 (03/06/09 Decl. ofAI 

Kandari). Counsel for Petitioner has not directed the Court to any other evidence in the record, 

nor is the Court itself aware of any, that supports this claim by Al Kandari that he was abused by 

the United States. Moreover, the Court notes that Al Kandari's allegations of abuse, which are 

limited to a lone paragraph in his declaration, are entirely vague and conclusory in nature, lacking 

any detail as to when and where such abuse allegedly occurred, the nature of the alleged abuse, 

and/or who was responsible for the alleged abuse. See ld. Nor does Al Kandarl link the alleged 

abuse to any of his statements as a product ofcoercion. 

-21­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SEeM't1;'l'ff6F6ftP, 

alleged errors. See 10/22/09 (AM) Mrts. Hr'g Tr. at 91 :19-92: l. Save for a few limited 

exceptions, see Ex. 139 at " 17, 28 (03/06/09 Dec!. of Al Kandari), AI Kandari has not disputed 

the specific wording ofany particular statement he is reported to have made nor has he identified 

any particular phrases that he alleges are the result ofinterpreter error, see generally id Rather, 

Al Kandari has in most instances simply offered a blanket denial that he made certain inculpatory 

statements. See Ex. 139 at' 9 (03/06/09 Decl. of Al Kandari) ("As to these statements, I can 

only say that they are not my words."). 

After considering the evidence in the record and the parties' respective arguments thereto, 

the Court finds that such blanket denials, where they have been made without further explanation 

or support, are not credible. As compared to his inculpatory admissions against interest made to 

Government interrogators, Al Kandari's statements in his declaration denying that he made 

certain prior inculpatory statements lack sufficient indicia ofreliability. The Court emphasizes 

that with respect to those statements that Al Kandari now denies having made to Government 

interrogators, there is no evidence in the record that AI Kandari ever recanted or denied making 

such assertions to the Government interrogators during his interrogations. Rather, it is only in his 

declaration, submitted several years after-the-fact, that Al Kandari denies having made these 

statements. Al Kandari has a motive to deny prior statements that are inculpatory in nature. Cf 

Awad v. Obama, 608 F.3d 1,8 (D.C. Cir. 2010) ("[I]t accords with common sense that he may 

have had a motivation to lie about his own involvement in nefarious activity ...."). Moreover, 

the Court notes that Al Kandari himself does not dispute the accuracy of many of his statements 

as reported in the Government's interrogation reports - at least as to many ofthose statements 

that are exculpatory in nature. As is discussed below, Al Kandari states in his declaration that he 

traveled to Afghanistan for charitable purposes; engaged solely in charitable activities while 

there; and was captured while attempting to flee to Pakistan to avoid the ongoing fighting in 

-22­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SECRE"iINOIi'OItN 

Afghanistan. These are the same basic assertions that he is consistently reported to have made to 

Government interrogators (although, as is discussed below, many ofthe specific details ofAl 

Kandari's explanation vary between his different statements). As a practical matter, Al Kandari 

asks this Court to accept the accuracy ofthese exculpatory statements to interrogators, at least to 

the extent they are consistent with his declaration, while simultaneously asking the Court to 

reject as inaccurate any and all inculpatory statements he made to interrogators during his 

detention. The Court declines to do so. Nonetheless, insofar as AI Kandari offers specific 

indications that particular statements he is reported to have made are inaccurate or unreliable, the 

Court shall consider his evidence and arguments in evaluating the probative weight ofthose 

specific statements.!' 

As the above discussion reveals, a key inquiry in this case is the extent to which the Court 

assesses Al Kandari's statements - in his declaration as well as in his statements to Government 

interrogators - as credible, accurate, and reliable. In evaluating Al Kandari's statements, the 

Court shall proceed as follows. First, the Court shall set forth Al Kandari's version of events. 

As indicated above, AI Kandari has maintained both in his declaration and in his statements to 

Government interrogators that he engaged in charitable work only while in Afghanistan and was 

attempting to escape the fighting in that country when he was captured fleeing Tora Bora. 

Second, the Court shaH identify several reasons why AI Kandari's exculpatory statements 

explaining his reasons for traveling to and his activities within Afghanistan are not credible. 

Third, the Court shall consider AI Kandari's inculpatory statements admitting that he was given a 

17 AI Kandari has made one additional argument in favor ofhis assertion that the Court 

should not rely on the Government reports ofhis interrogation answers. Specifically, his counsel 

argued in pre-hearing motions that because Al Kandari has submitted his own declaration in this 

matter, there is no need to rely on Government interrogation reports. Such an argument is clearly 

without merit and warrants little attention. 

-23­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SECHt'/fNOPORN 

Kalishnikov rifle and taught how to use it, and that he associated with members ofal Qaeda, the 

Taliban, or associated forces, while in Tora Bora, and shall explain why these statements are 

credible and reliable. Ultimately, the Court fmds that Al Kandari's 0'Ml statements and 

admissions against interest demonstrate that it is more likely than not that he was part ofal 

Qaeda, the Taliban, or associated enemy forces, and is therefore lawfully detained under the 

President's authority pursuant to the AUMF. 

.L Al Kandari's Version of Events 

Al Kandari states that he traveled to Pakistan in June of2001 to visit Sheikh Mohammed 

WaH Allah Arrahmani, whom he describes as a respected Pakistani scholar. Ex. 139 at' 3 

(03/06/09 Decl. ofAl Kandari.); Ex. 7 (l 0/27/04 AI Kandari SIR). While in Pakistan, he studied 

at Sheik Arrahmani's school. Ex. 139 at' 3 (03/06/09 Decl. of Al Kandari). After staying with 

Sheik Arrahamani in Pakistan for approximately two months, Al Kandari decided to travel to 

Afghanistan for the purposes ofdoing charitable work. Ex. 139 at' 3 (03/06/09 Decl. ofAl 

Kandari). According to AI Kandari, this decision was consistent with his prior history of doing 

charitable work, which includes traveling to other countries such as Pakistan and Bosnia to assist 

with charitable projects. Ex. 139 at" 2, II (03/06/09 Decl. of Al Kandari); Ex. 28 (05/06/02 AI 

Kandari FD-302 ); Ex. 6 (03/18/03 Al Kandari MFR); Ex. 74 (05/23/02 AI Kandari FD-302). 

See also Ex. 140 (02/22/09 Dec!. ofM. Al Kandari). 

AI Kandari left Pakistan in or around August of 2001 to head to Afghanistan. Ex. 139 at 

, 3 (03/06/09 Decl. of Al Kandari)~ Ex. 27 (11120/03 Al Kandari IIR). He traveled first to 

Kandahar before then proceeding on to Kabul. Ex. 139 at' 3 (03/06/09 Decl. ofAl Kandari); 

Ex. 27 (11120/03 Al Kandari IlR). Upon his arrival in Kabul, Al Kandari went to the local office 

of ai-Wafa al-Igatha al-Islamia ("al-Wafa"). Ex. 139 at' 4 (03/06/09 Decl. of AI Kandari); Stip. 

of Fact 1 16; Ex. 27 (11/20/03 Al Kandari IIR); Ex. 7 (10/27/04 AI Kandari SIR). Although the 

-24­


UNCLASSIFIEDIIFOR PUBLIC RELEASE
 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

parties introduced evidence 

Ex. 25 (9/19/08 Decl. o~tip. of Fact 3~

, Al Kandari states in his declaration that 

he went to al-Wafa because it was "[o]ne ofthe principal charitable organizations in Afghanistan 

at that time," and he "never had any reason to suspect" that al-Wafa was involved with al Qaeda, 

Ex. 139 at 4 (03/06/09 Decl. ofAl Kandari). 

At al-Wafa, Al Kandari inquired about opportunities for charitable work and was directed 

by a member ofthe organization to a village located approximately 45 minutes to one hour 

outside of Kabul. Ex. 139 at ~~ 4-5 (03/06/09 Decl. ofAl Kandari); Ex. 7 (l 0/27/04 Al Kandari 

SIR); Ex. 27 (11/20/03 Al Kandari llR). He traveled to this unnamed village, arriving sometime 

in early September 2001. Ex. 139 at 5 (03/06/09 Decl. of Al Kandari); Ex. 28 (05/06/02 Al 

Kandari FD-302). While there, Al Kandari worked on a charity project digging a well for the 

community. Ex. 139 at' 5 (03/06/09 Decl. of Al Kandari). He stayed in this village for 

approximately one and a half months until Coalition forces began bombing Afghanistan, which 

the Court takes judicial notice occurred on October 7, 2001. Ex. 139 at 5 (03/06/09 Decl. ofAl 

.Kandari); Ex. 7 (10/27/04 Al Kandari SIR); Ex. 28 (05/06/02 Al Kandari FD-302); Ex. 99 

(Timeline of Operation Enduring Freedom). 

At that time, Al Kandari realized that he should leave Afghanistan. Ex. 139 at 6 

(03/06/09 Decl. ofAl Kandari). He left the village where he had been staying and returned to 

Kabul. Ex. 139 at 6 (03/06/09 Decl. of Al Kandari); Ex. 28 (05/06/02 AI Kandari FD-302). He 

went back to the al-Wafa office there, but found that it was closed. Ex. 139 at 6 (03/06/09 

Decl. ofAl Kandari); Ex. 28 (05/06/02 Al Kandari FD-302). A taxi cab driver suggested that he 

go to Jalalabad and offered to take him there for a large sum of money. Ex. 139 at 6 (03/06/09 

Decl. of Al Kandari); Ex. 28 (05/06/02 Al Kandari FD-302). Upon arriving in JaJaIabad, Al 

-25­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SECRt3't'>'1N6f16RN 

Kandari met a Saudi named Abdul Rahman aI Kasimi, who permitted AI Kandari to stay at his 

house for approximately two days. Ex. 139 at' 6 (03/06/09 Decl. of Al Kandari); Ex. 28 

(05/06/02 Al Kandari FD-302). Al Kandari explains that fighting was breaking out everywhere, 

and Arabs were being rounded up by police and militias to be handed over in exchange for 

money. Ex. 139 at 7 (03/06/09 Decl. ofAI Kandari). He joined with a small group ofArabs 

who were trying to flee the fighting through the Tora Bora mountains. Ex. 139 at' 7 (03/06/09 

Decl. of AI Kandari). The group walked for a few days in the mountains, but they were 

eventually captured by Afghani villagers while staying the night at a village home owned by an 

unidentified Afghani. Ex. 139 at , 7 (03/06/09 Decl. ofAI Kandari); Ex. 27 (11/20/03 AI 

Kandari I1R). AI Kandari was later transferred into American custody. Ex. 139 at 7 (03/06/09 

Decl. ofAI Kandari); Ex. 27 (11/20/03 Al Kandari I1R). 

2.	 Al Kandari's Version ofEvents is Not Plausible 

Having reviewed all of the evidence in the record and listened to counsel's arguments 

during the Merits Hearing, the Court concludes that AI Kandari's explanation for his time in 

Afghanistan, as asserted in both his declaration and in his statements to Government 

interrogators, is not plausible for three principal reasons. First, AI Kandari's version of events 

suffers from several inconsistencies. Second, Al Kandari's explanation does not fully explain or 

account for his time in Afghanistan. Third, AI Kandari's exculpatory statements are not credible 

in several key aspects. 

a.	 AI Kandari's version of events suffers from several 

inconsistencies. 

First, AI Kandari's version of events suffers from several inconsistencies that have not 

been explained. Although AI Kandari has maintained the same general explanation for his time 

in Afghanistan throughout his detention - that he traveled to Afghanistan for charitable 

-26­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SI!!CItE'f'ItNOFORN 

purposes; engaged solely in charitable activities while there; and was captured while attempting 

to flee to Pakistan to avoid the ongoing fighting in Afghanistan - the specific details provided 

by AI Kandari regarding his activities have varied and have even conflicted at times. For 

example, Al Kandari has offered conflicting statements as to the identify ofthe individual he 

spoke with at the al-Wafa office in Kabul when he initially inquired about possible charitable 

opportunities and was referred to the unnamed needy village. Al Kandari has variously asserted 

that he spoke with: (a) an unidentified worker at the aI-Wafa office, but was unable to speak with 

the Director, whom Al Kandari explained was not present at the office at that time ofhis visit, 

Ex. 7 (l 0/27/04 Al Kandari SIR); (b) a man whom he believed at the time to be the Director of 

the Kabul al-Wafa office and whom he later learned upon his arrival at Guantanamo Bay was 

Abdallah AI Matrafi (ISN 005), Ex. 27 (11/20/03 Al Kandari IIR); see also Ex. 32 (1l/20/03 Al 

Kandari IIR) (met with_at the al-Wafa office), a Saudi whom the Govenunent 

identifies as Ex. 25. 

Decl.); Ex. 32 (11120/03 AI Kandari IIR);18 and (c) an unidentified man with a long beard who 

was neither a Saudi nor a Kuwaiti and whose name he did not know, Ex. 28 (05/06/02 AI 

Kandari FD-302). AI Kandari's declaration does not clarify these inconsistencies, indicating 

only that he briefly met with an unidentified official at the Kabul al-Wafa office. Ex. 139 at 5 

(03/06/09 Decl. of AI Kandari). 

In addition, Al Kandari has offered conflicting reasons for his initial decision to travel to 

Pakistan and then to Afghanistan. During an interrogation in May of 2002, Al Kandari explained 

18 In contrast to these statements admitting that he met with Al Matrafi at the al-Wafa 

office in Kabul, the Court notes that AI Kandari has at other times denied that he met AI Matrafi 

or otherwise knew of him prior to AI Kandari's detention at Guantanamo Bay. See Ex. 74 

(05/23/02 Al Kandari FD-302) (stating that he was unfamiliar with AI Matrafi); Ex. 7 (l0/27/04 

Al Kandari SIR) (stating that he met Al Matrafi for first time at Guantanamo Bay). 

-27­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDffFOR PUBLIC RELEASE 

SECRE'f'JYN8Ii'ORN 

that he went to Pakistan to look up a Sheik, whose name he could not recall, with whom Al 

Kandari had been in communication; he stated that he stayed at the Sheik's apartment, which was 

located near an unidentified Islamic school, for approximately two months before then traveling 

to Afghanistan after learning that there had been a famine in that country. Ex. 28 (5/6/2002 AI 

Kandari FD-302). In both an October 2004 interrogation and in his present declaration, however, 

Al Kandari stated that he had actually been invited to Pakistan by Sheik Arrahmani, whom he 

was able to identify by name, to study at the Sheik's madrassa. Ex. 7 (10/27/04 Al Kandari SIR); 

Ex. 139 at' 3 (03/06/09 Decl. of Al Kandari). Al Kandari also initially advised interrogators that 

he had first heard about al-Wafa from Sheik Arrahmani, but when later asked who had first told 

him about al-Wafa, stated only that he "used to hear about it." Ex. 7 (10/27/04 AI Kandari SIR). 

AI Kandari's declaration does not provide clarification, indicating simply that he went to 

Afghanistan because he had decided that it was the best place for charitable work. Ex. 139 at 3 

(03/06/09 Decl. of AI Kandari). Similarly, AI Kandari has variously stated that he went to at· 

Wafa to inquire where he could make a charitable donation ofsix to seven thousand dinars, Ex. 

28 (05/06/02 Al Kandari FD-302), and that he went to al-Wafa to inquire where he could go to 

build a well, Ex. 7 (10/24/04 AI Kandari SIR); see also Ex. 139 at 5 (03/06/09 Decl. ofAl 

Kandari) (assisted villagers with digging a well). 

AI Kandari has also offered inconsistent statements regarding his travel path immediately 

after the bombing campaign began in October of 200I. He stated on one occasion that, upon 

returning to Kabul and discovering the al-Wafa office closed, he initially decided to travel south 

away from Kabul and then decided to reverse his travel path and head to lalalabad only after 

traveling south for an unspecified period oftime. Ex. 27 (11/20/03 Al Kandari IIR). Al Kandari 

has otherwise indicated, however, that he left Kabul directly for lalalabad, which the Court takes 

judicial notice is east of Kabul. Ex. 74 (05/23/02 Al Kandari FD-302) (stating he located a taxi 

-28­

UNCLASSIFIEDffFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SECMllHN8F8RN 

driver to drive him directly from Kabul to Jalalabad); see also Ex. 28 (05/06/02 Al Kandari FD302); Ex. 139 at , 6 (03/06/09 Dec!. ofAl Kandari). 

Finally, Al Kandari has provided conflicting statements as to whether he met with Anas 

Al Kandari ("Anas"), while in Afghanistan. Al Kandari repeatedly admitted to Government 

interrogators on multiple occasions that he met Anas during his visit to the Kabul office ofalWafa, Ex. 7 (10/27/04 Al Kandari SIR); Ex. 28 (05/06/02 Al Kandari FD-302); Ex. 32 (11/20/03 

Al Kandari IIR); Ex. 43 (10/06/05 Al Kandari IIR); Ex. 122 (6/15/05 Al Kandari SIR), and that 

Anas told Al Kandari during this meeting that he and an associate, Jassem Al Hajeri, had recently 

received military training at the Libyan camp in Afghanistan, Ex. 28 (05/06/02 Al Kandari FD302); Ex 43 (10/06/05 Al Kandari IIR); Ex. 122 (6/15/05 Al Kandari SIR). However, in his 

declaration submitted nearly eight years later as part ofthis litigation, Al Kandari denies these 

admissions for the first time, stating that he "did not meet Anas Al Kandari in Afghanistan" and 

that he has "no knowledge about anything [AnasJdid." Ex. 139 at' 17 (03/06/09 Decl. ofAl 

Kandari). The Court finds that Al Kandari's contradictory denial in his declaration, made 

without further explanation, is not credible, and therefore serves to undennine the credibility of 

his declaration. Al Kandari's prior admissions with respect to Anas are consistent across several 

interrogations, and there is no indication in any of the interrogation reports that his admissions on 

this point were viewed by the interrogators themselves as incredible or unreliable. It is also 

significant that Al Kandari never recanted his admission that he met and spoke with Anas at aJWafa during any ofthe multiple interrogations in which he consistently admitted to having met 

Anas in Afghanistan. 19 Moreover, given Anas' admission to Al Kandari that he received military 

19 At least one Government interrogator, however, anticipated that Al Kandari might 

attempt to deny certain statements he made regarding Anas at some later point. See Ex. 122 

(6/15/05 Al Kandari SIR) (noting that Al Kandari identified Al Hajeri as Anas' associate, 

although he had previously denied knowing any ofAnas' associates) ("Interrogator speculates 

-29­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SEeItETttNOPOItN 

training, and the Government's Wlcontroverted evidence that Anas was responsible for leading an 

attack on United States Marines on Faylaka Island in Kuwait on October 8, 2002, during which 

attack both he and were killed, Al 

Kandari clearly has a motivation to deny any association with or knowledge of Anas or Anas' 

associate AI Hajeri. 

b.	 Al Kandari's version of events does not fully accoWlt for his time 

in Afghanistan. 

Second, Al Kandari's explanation ofevents does not fully accoWlt for his time in 

Afghanistan. Al Kandari maintains that he remained in the unnamed village outside of Kabul 

until Coalition forces began their bombing campaign on Sunday, October 7,2001, at which time 

he states that he returned to Kabul. As the unnamed village in which Al Kandari stayed was 

allegedly located only 45 minutes to one hour by car outside of Kabul, it is reasonable to infer 

that his return trip from the unnamed village to Kabul would have taken no more than one day.20 

Upon arriving in Kabul and finding the al-Wafa office closed, Al Kandari states that he paid a 

that detainee will realize the mistake detainee made in reference to Anas and Jassem Al Hajeri. 

Detainee will most likely claim interpreter error in an effort to correct any possible perception of 

deceptive behavior."). 

2Q While Al Kandari has generally indicated - both in his statements to Government 

interrogators and in his declaration submitted in support ofhis habeas petition - that he returned 

to Kabul shortly after the air strikes on Afghanistan began on October 7, 2001, the Court located 

one instance in the record in which Al Kandari asserted that he did not return to Kabul until 

approximately two days before its fall, which the Court takes judicial notice occurred on 

November 14, 200I. Ex. 27 (11120/03 Al Kandari llR); Ex. 99 (Timeline of Operation Enduring 

Freedom). Neither the Government nor AI Kandari relied on this statement at the Merits 

Hearing. Regardless, the statement, even ifcredited, does not alter the Court's finding above that 

Al Kandari's version of events fails to fully account for his time in Afghanistan. AI Kandari 

provides no explanation for his activities during the month between his departure from the 

unnamed village shortly after the October 7, 200 I air strikes began and his alleged arrival in 

Kabul on November 9, 2001, and an unexplained delay of one month in traveling to Kabul 

contradicts Al Kandari' s claim that he realized soon after the bombing campaign began on 

October 7, 2001, that he should leave Afghanistan as soon as possible. 

-30­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SECItE't'IINOPORN 

cab driver a large sum of money to drive him from Kabul to Jalalabad. The Court takes judicial 

notice that lalalabad is located approximately 90-100 miles east of Kabul. See Ex. 94 (map of 

Afghanistan with scale). Al Kandari has never suggested that the drive from Kabul to lalalabad 

took an unusual or extended period of time; absent any indication to the contrary, it is reasonable 

to infer that this trip would have taken no more than one or two days. Accordingly, Al Kandari's 

own statements place him in Jalalabad by no later than October 14, 2001, approximately one 

week after his departure from the unnamed village on or around October 7, 2001.21 

Upon his arrival in Jalalabad, Al Kandari states that he stayed with al Kassimi in 

Jalalabad for two days. He then joined a group ofArabs who were trying to flee through the 

mountains ofTora Bora and traveled with them for a few days in the mountains before he was 

ultimately captured by Aghan forces. Therefore, according to Al Kandari's own version of 

events, he was captured no more than five days after his arrival in Jalalabad, which would place 

his capture on or around October 19,2001. It is uncontroverted, however, that Al Kandari was 

not actually captured by Afghani villagers and turned over to American forces until 

approximately two months later, shortly after December 16,2001. Ex. 139 at 7 (03/06/09 Decl. 

of Al Kandari Decl.); Ex. 27 (11/20/03 Interrogation of Al Kandari); Ex. 99 (Timeline of 

Operation Enduring Freedom). Al Kandari's own explanation for his activities in Afghanistan 

therefore creates a "missing" two months of time for which Al Kandari cannot account. 

Moreover, the fact that Al Kandari was unwilJing repeatedly to provide a full explanation 

for his time and activities in Afghanistan is itself evidence that undennines the veracity ofhis 

21 As noted previously, the Court located one instance in the record in which Al Kandari 

stated that he initially traveJed south away from Kabul for an unspecified time before ultimately 

deciding to reverse his travel path and head to lalalabad. Ex. 27 (11120/03 Al Kandari IIR). 

Even ifthis statement were credited, it does not address or resolve the deficiencies in AI 

Kandari's explanation, as outlined above. 

-31­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
_ .. _.----_ .... · - -- - _. - - - - -. 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SECH'f¥/U6F6RN 

version of events. Al Kandari is by no means an unsophisticated individual, having studied 

Shari'a law at college in Ra's al Khayman, United Arab Emirates. Stip. of Fact 114. His 

interrogators repeatedly noted as much, observing him to be "very polite and well-educated" and 

"smart with the attitude that the interrogation team cannot catch him." Ex. 6 (03/18/03 Al 

Kandari MFR); Ex. 118 (08/05/03 Al Kandari MFR). The evidence in the record strongly 

suggests that AI Kandari has affinnatively chosen not to provide any detailed information about 

his time in Afghanistan. In late 2002, Al Kandari explicitly advised his interrogators that, 

although he was willing to discuss certain issues, he would not talk about his activities in 

Afghanistan. Ex. 48 (12/13/02 Al Kandari IIR); cj Ex. 43 (10/06/05 Al Kandari I1R) (assessing 

Al Kandari as "deceptive" and concluding that he "is most likely withholding information"); Ex. 

122 (6/15/02 Al Kandari SIR) (assessing AI Kandari as "deceptive" and noting that he "appears 

to cooperate but offers infonnation ofinsignificant value"). Similarly, in his testimony during 

his Administrative Review Board ("ARB") Proceeding, AI Kandari declined to explain his 

activities in Afghanistan. See generally Ex. 121 (AI Kandari ARB Statement). In his declaration 

submitted in support ofhis habeas petition, Al Kandari once again declined to provide any 

specific details regarding his time in Afghanistan or to address any ofthe deficiencies identified 

above. See generally Ex. 139 (03/06/09 Decl. ofAl Kandari). While recognizing that Al 

Kandari has no burden to prove his innocence in these habeas proceedings, his repeated 

unwillingness to provide details as to his time in Afghanistan is nonetheless inconsistent with, 

and undermines the credibility of, his claim that he was an innocent charity worker who became 

inadvertently trapped in Afghanistan in the wake ofSeptember 11, 2001. 

c.	 Al Kandari's version ofevents is not credible in certain key 

aspects. 

Third, Al Kandari's explanation is not credible in certain aspects. Although Al Kandari 

-32­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SECRE'flINOFORN 

maintains that he remained in the unidentified needy village for approximately one and a half 

months, during which time he stayed in the village leader's house, Al Kandari has been 

consistently unable to recall or otherwise identify the name ofthat village or anyone in it or 

provide any other identifying information. Ex.7 (10/27/04 Al Kandari SIR); Ex. 27 (11/20/03 Al 

Kandari UR); Ex. 139 at , 5 (03/06/09 Decl. of Al Kandari). Yet he is able to easily recall the 

name of a restaurant near which he stayed for two days while in Kandahar on his way to Kabul in 

August of2001. See Ex. 27 (11/20/03 Al Kandari IIR) (explaining that he stayed at a hotel 

located near the Ariana restaurant in Kandahar for two days); Ex. 28 (05/06/02 Al Kandari FD302) (same); Ex. 74 (05/23/02 Al Kandari FD-302) (same). Al Kandari explains in his 

declaration that he "wrote down the name ofthe vilJage and the mayor and other people" in a 

notebook, which he states is now in the possession ofthe United States Government. Ex. 139 at 

, 5 (03/06/09 Decl. ofA1 Kandari). The Government represented that it was unable to locate any 

such notebook in its possession and also disputes Al Kandari's claim that he was detained with a 

notebook. The evidence presented on this issue is conflicting.22 However, even assuming that Al 

22 During opening statements, Al Kandari's counsel indicated that the existence ofthis 

notebook was confirmed by a statement in an interrogation report in which A1 Kandari is noted to 

have been detained with a "telephone book." 10/19/09 Mrts. Hr'g. Tr. at 35:18-24. Although 

counsel did not provide a specific citation at that time, it appears that counsel intended to 

reference an FM40 made with respect to Al Kandari and dated March 10, 2004, a date which the 

Court notes was well after his capture and subsequent transfer to United States' custody. This 

document, while not introduced into evidence at the Merits Hearing, was attached as an exhibit 

to the Government's Amended Factual Return and indicates, in part, that Al Kandari "was found 

in possession of... a telephone book." The Government in response introduced Exhibit 222, an 

undated document which purports to relate to Al Kandari and lists ''none'' under the heading 

"Pocket Litter." The Government contends this disproves Al Kandari's claim that he was 

detained with a notebook. The Court fmds that this document is not sufficiently reliable to 

establish that Al Kandari was detained without any possessions. The document is undated and 

does not indicate the source of the statement that Al Kandari was detained with no pocket]itter 

nor is there any indication as to the source of the document itself. The Government has not 

offered any supporting information explaining how and when this document was compiled, who 

was responsible for its creation, and the source ofthe information listed therein. The Court, 

however, also finds that there is no support in the record, other than the speculation of 

-33­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEOflFOR PUBLIC RELEASE 

SECRE'ffJNOFOI@f 

Kandari maintained a notebook, as he asserts in his declaration, this fact does not negate the 

implausibility of his continued inability to independently recall any information identifying: the 

village in which he claims to have lived for approximately six weeks; the village leader, whose 

house he asserts he stayed in during his one and a half months in the village; or any ofthe local 

villagers, whom he alleges to have worked beside for the duration ofhis stay in the village. 

In addition, Al Kandari's assertion that he visited al-Wafa solely for assistance in locating 

a village where he could do charitable work, and that he "never had any reason to suspect" that 

al-Wafa was associated with al Qaeda, is not credible on the present record. Al Kandari has 

acknowledged that Suleiman Abu Ghaith was present at the al-Wafa office in Kabul during his 

visit, and that he himself was aware ofAbu Ghaith's presence at the al-Wafa office, although he 

maintains that he did not see or speak with Abu Ghaith at that time. Ex. 32 (11/20/03 Al Kandari 

IIR); cf Ex. 139 at' 27 (03/06/09 Decl. ofAI Kandari) (stating that he did not see or speak with 

Abu Ghaith in Afghanistan, but containing no denial ofhis statement that he was told Abu 

Ghaith was also present at the aI-Wafa office in Kabul). Al Kandari has also admitted that Abu 

Ghaith is associated with al Qaeda, describing him in multiple interrogations as Usama Bin 

Ladin's spokesman, a fact that is uncontroverted on the present record. See Ex. 32 (11/20/03 Al 

Kandari IIR); Ex. 38 (12/04/03 Al Kandari IIR); Ex. 74 (05/23/02 Al Kandari FD-302); cf Ex. 

139 at' 27 (03/06/09 Dec!. ofAl Kandari). Indeed, Al Kandari himselfhas characterized Abu 

Ghaith as a dangerous individual with extremist views. Ex. 38 (12/04/03 Al Kandari IIR). That 

Petitioner's counsel, that the telephone book referred to in the March 20, 2004 FM40 is the same 

notebook discussed in Al Kandari's declaration. The Court is thus unable to fmd either that Al 

Kandari was detained with a notebook in his possession listing the name ofthe village in which 

he stayed, as Petitioner urges, or that AI Kandari was detained without any possessions, as the 

Government urges. The Court draws no inferences for or against Al Kandari based on this 

evidence, but finds only that it is implausible that Al Kandari cannot independently recall the 

information at issue. 

-34­

UNCLASSIFIEOflFOR PUBLIC RELEASE 
UNCLASSIFIEDffFOR PUBLIC RELEASE 

Abu Ghaith was present at the al-Wafa office in Kabul, and that AI Kandari was aware of his 

presence there, undennines the credibility of his claim that he "never had any reason to suspect" 

81-Wafa supported or was associated with al Qaeda.23 

Similarly, AI Kandari's assertion that he, along with a group ofother noncombatants, 

"were trying to flee the fighting through the Tora Bora mountains" is not credible. While AI 

Kandari refers generally to the "Tora Bora mountains," the Govenunent's uncontroverted record 

evidence explains that "Tora Bora is the name of a cave complex, approximately 9.5 km wide 

and 10 km long, embedded within a 100 mile stretch of the White Mountains ofEastem 

Afghanistan." Ex. 34A at I (I 9/1 0/09 Decl. o~This cave complex was used in the 

1990's by Usama Bin Ladin as his headquarters, and he returned there in late 2001 after the fall 

of the Taliban regime in Afghanistan to join the many Taliban and al Qaeda fighters who had 

retreated to the complex to make their last stand against the United States and its allies. Id at 2. 

Travel from Jalalabad to Tora Bora took approximately "10 to 15 hours over donkey trails 

through difficult terrain." Id at 3. Its remote location, combined with the fact that the "Tora 

Bora cave complex has historically been used by al-Qaida and its precursor organizations as a 

fortified defensive position," makes it unlikely that Al Kandari simply wandered from lalalabad 

into the mountains near and around Tora Bora. Id Similarly, in light of "Usama Bin Ladin's 

widely known call for fighters to join him ... at Tora Bora" and his "robust operational security 

23 The Court notes that AI Kandari also acknowledged to Government interrogators that 

he saw, inter alia, Hamid Madhi al Azmi, a.k.a. Abu JamiJa, and his brother Saad Madi Saad 

Moash al Azmi (ISN 571), ak.a. Abu Daoud, at the al-Wafa office. Ex. 32 (11120/03 Al Kandari 

IIR). The Government has introduced uncontroverted evidence that both Abu Jamila and Abu 

Daoud were members of, or substantially supported, al Qaeda. See Ex. 83 (8/31/04 ISN 157425 

IIR); Ex. 133 (7/1 0/04 ISN 157425 IIR). Nonetheless, there is no indication on the present 

record that AI Kandari was aware ofthe al Azmi brothers' association with al Qaeda at the time 

he saw them at the al-Wafa office in Kabul. In the absence of such evidence, the Court declines 

to draw any inferences from AI Kandari's admission that Abu JamiJa and his brother Abu Daoud 

were also present at the al-Wafa office during his visit. 

-35­

UNCLASSIFIEDffFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

procedures," it is unlikely that Al Kandari, as a noncombatant, would have gone to Tora Bora or 

would have even been allowed into the area by aJ Qaeda or Taliban forces, ifhe had managed to 

make it there. Id. at 4.1" 

This is particularly so in this case, given the Court's findings below that, while in Tora 

Bora, Al Kandari was given a Kalishnikov rifle and trained on how to use it by an individual who 

was more likely than not associated with al Qaeda and/or the TaJiban, and that he also met and 

associated with several members and high-level leaders of al Qaeda, the Taliban, or associated 

enemy forces in Tora Bora, many ofwhom were actively engaged in fighting the United States 

and its allies. Al Kandari's assertion that he, as a noncombatant with no connections to or prior 

associations with al Qaeda or the Taliban, would have been permitted not only to wander through 

Tora Bora, but to also meet and associate with members and high-level leaders of al Qaeda 

and/or the Taliban while he was armed with a Kalishnikov rifle, is utterly implausible. Surely al 

Qaeda and the Taliban would not allow an unknown and untrusted noncombatant to be located 

near and closely associate with key leaders and their fighting forces in Tora Bora during the 

height of the Battle ofTora Bora. Cf AI-Waraji v. Obama, _ F. Supp. 2d _,2010 WL 

1404001, at *8 (D.D.C. Mar. 24, 2010) ("It is inconceivable that the Taliban would allow an 

outsider to stay at their front line camp just to see what the fighting was like. An outsider whose 

trustworthiness and loyalty are unknown poses a threat to a miliary camp."). Accordingly, these 

24 Although counsel did not explicitly raise the argument at the Merits Hearing, the Court 

notes that Al Kandari argued in his Traverse that he could only reach Pakistan by traveling 

through the Tora Bora mountains, an assertion which the Court finds is not credible. While it 

appears that Al Kandari no longer relies on this assertion, the Government nonetheless 

introduced evidence at the Merits Hearing that the shortest and simplest route from lalalabad to 

Pakistan was through the famed ~s, 45 miles from lalalabad. 10/19/09 Mrts. Hr'g Tr. at 

49: 11-50:25; Ex. 34A (l 0119/09 ~ecl.). In contrast, as indicated above, the route 

through the mountains ofTora Bora required a difficult climb into and then through bitterly cold 

mountains where a~and Taliban fighters were making their stand against coalition forces. 

Ex. 34A (l0I19/09_Decl.). 

-36­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
LlNCLASSIFIEDIIFOR PUBLIC RELEASE 

S~eti'f,."'6F'6RN

findings, which are discussed in detail below, further undennine and discredit Al Kandari's claim 

that he was simply a noncombatant attempting to flee the fighting through the mountains of Tora 

Bora. 

* * * 

In summary, then, the Court finds that Al Kandari's explanation for his travel to and 

activities within Afghanistan is not plausible for the reasons set forth above. While Al Kandari 

does not bear the burden ofproving his innocence, the Court's finding that his version ofevents 

is not worthy ofbeliefis itself ofsome probative value. Recent D.C. Circuit precedent counsels 

that the provision by a detainee ofan implausible explanation for his activities in Afghanistan is 

a relevant consideration in these habeas proceedings given the "well-settled principle that false 

exculpatory statements are evidence - often strong evidence - ofguilt." Al-Adahi v. Obama, 

_ FJd ---J 2010 WL 2756551, at *5 (D.C. Cir. July 13, 2010). The Government has also 

introduced evidence that the particular explanation provided by Al Kandari in this case is 

consistent with al Qaeda counter-interrogation tactics. See Ex. 50 (02/10/08 Decl. of_ 

[d. at 2; see also Al-Adahi, 2010 WL 2756551 at *9 ("Put 

bluntly, the instructions to detainees 

_ Ex. 50 at 3 (02/10/08 Decl. o~ Evidence that Al Kandari provided an 

implausible explanation for his reasons for traveling to and his activities within Afghanistan, and 

that the explanation provided is consistent with al Qaeda counter-interrogation tactics, therefore 

supports a reasonable inference that Al Kandari was not in Afghanistan solely to assist with, and 

did not engage solely in, charitable work, as claimed. While this inference standing alone is 

insufficient to find that Al Kandari became "part of' the forces ofthe Taliban or aI Qaeda, the 

-37­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEOIIFOR PUBLIC RELEASE 

St3CRE'fi1N61i'6RN 

Court fmds that this evidence is probative and shall be considered in the context of the other 

record evidence. 

~. Al Kandari's Admissions Aiainst Interest Regarding His Activities and 

Association with Members of al Oaeda. the Taliban. or Associated Enemy 

Forces. While in Tora Bora 

The Court turns next to consider AI Kandari's statements and admissions against interest 

made to Government interrogators regarding his activities and association with members ofal 

Qaeda, the Taliban, or associated enemy forces, while in Tora Bora. Although significant 

portions ofAI Kandari's time in Afghanistan are not accounted for, Al Kandari was, by his own 

admission, in the mountains near Tora Bora for at least some portion, if not the entirety, ofthe 

Battle ofTora Bora. The Court takes judicial notice that the Battle ofTora Bora took place from 

December 6, 2001, through December 17,2001, with the most intense strikes occurring in the 

last week of fighting between December 10 and 17,2001. See Ex. 99 (Timeline for Operation 

Enduring Freedom); Ex. 34A at 2 (l01I9/09~ecl.). Al Kandari was captured fleeing 

Tora Bora shortly after December 16,2001, and asserted that he had been traveling through the 

mountains ofTora Bora for a least a few days prior to his capture. Ex. 27 (11/20/03 Al Kandari 

IIR); see also Ex. 28 (05106/02 Al Kandari FD-302) (stating that he was in Tora Bora during 

Ramadan). Accordingly, AI Kandari's own admissions place him in or near Tora Bora during 

the most intense portion ofthe Battle ofTora Bora. Ex. 99 (Timeline ofOperation Enduring 

Freedom) (Ramadan began on November 17,2001 and ended on December 16, 2001). 

Significantly, AI Kandari has admitted that during this time he (a) was given a 

Kalishnikov rifle and taught how to use it, and (b) met and associated with various members and 

high-level leaders ofal Qaeda, the Taliban, or associated enemy forces. For the reasons set forth 

below, the Court finds that Al Kandari's statements and admissions as to these two points are 

both reliable and credible, and demonstrate that it is more likely than not that Al Kandari was 

-38­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
- - .----- ----_ .. _.-­ -- - .., .. - --­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SE€ItE'tY}N6¥6ftN 

part of forces associated with al Qaeda or the Taliban. In reaching this conclusion, the Court 

proceeds in three steps. First, the Court shall discuss Al Kandari's admission that he was armed 

with a Kalishnikov rifle while in Tora Bora and explain both why this admission is reliable and 

credible and why it is reasonable to infer that the individual who provided Al Kandari with the 

weapon and training was more likely than not associated with al Qaeda and/or the Taliban. 

Second, the Court shall discuss Al Kandari's admissions that he met and associated with several 

individuals while in Tora Bora, describe the Government's evidence connecting these same 

individuals with al Qaeda and/or the Taliban, and explain why both Al Kandari's admissions and 

the Government's evidence on these issues are reliable and credible. Third and finally, the Court 

shall explain why this evidence is sufficient by itself to satisfY the Government's burden of proof 

in this case. 

a. AI Kandari was given a weapon and taught how to use it. 

Al Kandari admitted to Government interrogators that he was given a Kalishnikov rifle 

and taught how to use it while he was in Tora Bora. Ex. 28 (05106/02 Al Kandari FD-302). The 

statement, as reported in Exhibit 28, reads in relevant part as follows: 

He stated that he heard that arabs were being killed in Jalalabad, that the road to 

Peshawar was closed and that people were fleeing to the mountains. He went with 

Al Qasim to a mountain village which overlooked Jalalabad. At first Al Kandari was 

happy because he was told that there were five hundred arabs in the village, although 

he saw only about twenty. In the village he saw a Kuwaiti, identified as Abu 

Sulaiman, who advised him that he went to Afghanistan to get military training. Al 

Kandari stated that this was during Ramadan. He stated that he was in fear and 

claimed that he did not know how to use a weapon, but that he was given a 

Kalishnikov and taught how to use it. He stated that he knew some ofthe arabs there, 

including Mohammed Taha Mowala, Hamed Asulaiman and Abu Hafs. Bombing 

was getting closer to them, it became very scary. He said that people were creating 

routes to escape to JalaIabad. 

Ex. 28 (05/06/02 AI Kandari FD-302) (emphasis added). 

At the Merits Hearing, Al Kandari's counsel argued that this admission against interest is 

-39­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SI!}CM'f/fN8P8RN 

unreliable. In particular, counsel maintained that the statement is ambiguous and appears to 

indicate that Abu Sulaiman, not Al Kandari, was given a gun and taught how to use it: "The 'he' 

there is entirely ambiguous, but given the past tense, it would appear that this is Al Kandari 

continuing to relate what this Abu Sulaiman told him about his military training." 10/20/09 

(AM) Mrts. Hr'gTr. at 18:23-19:1. The Court is unpersuaded by this argument. As an initial 

matter, this assertion is advanced solely by counsel. AI Kandari himself has never denied, in his 

other statements to Government interrogators or in his declaration, that he was given a weapon 

and taught how to use it while in Tora Bora. See Ex. 139 (03/06/09 Decl. of Al Kandari); 

10/20/09 (AM) Mrts. Hr'g Tr. at 48:5-10 ("[AI Kandari] had this document and he has never 

denied carrying the Kalishnikov. That is nowhere in his declaration."). Similarly, although 

Exhibit 28 was attached to the Amended Factual Return in this case, Al Kandari himselfhas 

never claimed that he advised interrogators that the Kalishnikov rifle was given to Abu 

Sulaiman, and not to him.2~

Moreover, contrary to his counsel's assertions, the statement by Al Kandari is not 

ambiguous. Each sentence of the paragraph cited above reports what Al Kandari stated to the 

Government interrogators, and the paragraph as a whole is written entirely in the past tense. The 

phrase "he stated" is consistently used throughout the report to indicate that the information that 

foHows is derived from oral declarations made by AI Kandari to the interrogators. The only fair 

2~ The Court notes that Al Kandari was on notice that the Government read his statement 

in Exhibit 28 as an admission that he, not Abu Sulaiman, was given a Kalishnikov rifle and was 

taught how to use it. The Government introduced into evidence Exhibit 29, a summary review of 

all information derived from FBI investigations of Al Kandari prior to April 6, 2005. See Ex. 29 

(4/6/05 FBI Admin. Review). As set forth therein, the FBI reported Al Kandari to have stated 

that he "saw a Kuwaiti man who advised that he had received military training in Afghanistan. 

Al Kandari told this man that he was afraid and that he did not know how to use a weapon. Al 

Kandari was given a Kalishnikov and taught how to use it at this time." Id 

-40­


UNCLASSIFIEDIIFOR PUBLIC RELEASE
 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

reading of this paragraph is as follows: 

In the village he [AI Kandari] saw a Kuwaiti, identified as Abu Sulaiman, who 

advised him [AI Kandari] that he [Abu Sulaiman] went to Afghanistan to get military 

training. AI Kandari stated that this [his meeting with Abu Sulaiman] was during 

Ramadan. He [AI Kandari] stated that he [AI Kandari] was in fear and claimed that 

he [AI Kandari] did not know how to use a weapon, but that he [AI Kandari] was 

given a Kalishnikov and taught how to use it. 

The argument advanced to the contrary by Petitioner's counsel is without merit. 

The Court notes that Exhibit 28 is a FD-302. The Government has submitted a 

declaration outlining the relevant standards and procedures that the FBI follows in producing FD302s. See Ex. 56 (Decl. As explained therein, FD-302s are used to 

Petitioner's counsel nonetheless argued at the Merits Hearing that various inconsistencies 

in Exhibit 28 demonstrate that the docwnent as a whole is unreliable. For example, counsel 

noted that the docwnent is dated May 6, 2002, but contains information gathered from 

interrogations on May 2 and 13,2002. As explained in the_Declaration, it is 

-41­


UNCLASSIFIEDIIFOR PUBLIC RELEASE
 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SECRF:;'fYINOFORN 

In this case, 

the final date ofthe FD-302 is listed as "May 6, 2002," which is the same date as listed in the 

lower left comer. See Ex. 28 (05106/02 Al Kandari FD-302). The Court agrees with Petitioner's 

counsel that this date appears to be in error, as it would seem that a final draft ofthe FD-302 

could not have been produced until after the infonnation from the second interrogation on May 

13,2002, was incorporated therein. Nonetheless, the fact that the final date for the document 

was not changed or updated after the second interrogation does not cast the reliability ofthe 

entire document in doubt, particularly given that the FBI agent responsible for the FD-302 must 

certify the substantive accuracy ofthe statements reported therein. Nor is the date ofthe FD-302 

relevant to Al Kandari's specific admission that he was given a gun while in Tora Bora. The 

Court is therefore hard-pressed to see how the date ofthe final report affects the reliability ofAl 

Kandari's own uncontroverted admission against interest. 

Petitioner's counsel also noted that the document reports statements by Al Kandari that 

(a) "he went to Afghanistan in June, 2001," and (b) "in August, 2001, ... he went to Qandahar, 

Afghanistan...." Counsel argued that these statements are inherently contradictory and cast 

doubt on the reliability of the statements in the document. The Court disagrees. A statement that 

an individual went to Afghanistan in June of2001 does not necessarily conflict with a statement 

that the same individual also went to Afghanistan in August of2001. Regardless, to the extent 

these particular statements conflict, such a conflict at most affects the reliability ofthe statement 

that A1 Kandari traveled to Afghanistan in June of2001, as the parties have stipulated that Al 

Kandari traveled to Afghanistan in August of2001. Stip. ofFact '15. The Court, however, has 

not relied on the statement that Al Kandari traveled to Afghanistan in June of2001 in reaching 

-42­


UNCLASSIFIEDIIFOR PUBLIC RELEASE
 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SECMlYINOFORN 

its fmdings in this case, and it remains unpersuaded that this alleged conflict is materia! to the 

reliability of Al Kandari's uncontroverted admission against interest that he was in Tora Bora 

during Ramadan and that he was given a Kalishnikov rifle and taught how to use it at that time. 

Cf Abdah, 2010 WL 1798989 at *11 n.l6 (rejecting detainee's assertion that his statements in 

intelligence reports are inaccurate, in part because "none ofthe minor discrepancies to which [the 

detainee] points ... are sufficiently important to have bearing on the Court's determinations 

regarding the main, relevant facts"). Accordingly, upon considering the evidence in the record 

and the parties' arguments thereto, the Court finds that AI Kandari's uncontroverted admission 

that he was armed with, and trained on the use of, a Kalishnikov rifle while in Tora Bora is both 

credible and reliable.26 

Finally, while the evidence does not specifY from whom Al Kandari received the weapon 

and training, the Court finds that it is more likely than not that he was given the Kalishnikov rifle 

and taught how to use it by an individual who was associated with a! Qaeda or the Taliban. As is 

explained in the next section below, Al Kandari admitted that he was with or in the vicinity of 

26 The Court notes that the Government submitted at the Merits Hearing a second 

statement by Al Kandari for the purpose ofrebutting the assertion by Petitioner's counsel that the 

statement in Exhibit 28 should either be read to indicate that Abu Sulaiman, n t 1 . 

given a gun or found unreliable for the reasons described above. 

evidence in the record 

information indicating either the identity ofthose responsibl 

or the circumstances in which these statements were made, and the Government has not provided 

further evidence on this point. See id The Court, however, need not conclusively determine the 

reliability ofthis statement on the present record, as the Government submitted_ 

solely for purposes ofrebutting counsel's arguments relating to Exhibit 28, arguments which the 

Court has already rejected for the reasons set forth above. _ is therefore unnecessary 

to the Court's finding above that Al Kandari's admission in Exhibit 28 is reliable. 

-43­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
- _.. - --- _.. --­ ----_._--- _ .. 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

several members and high-level leaders of at Qaeda, the TaJiban, or associated enemy forces, 

while in Tora Bora, during the Battle ofTora Bora, at or around the same time he was given the 

Kalishnikov rifle. It is reasonable to infer that any individual who was in this area during the 

height ofthe Battle of Tora Bora, and who was both armed with a spare Kalishnikov rifle and 

capable oftraining another person on its use, would have been a member of or associated with at 

Qaeda or the Taliban. The converse - that a noncombatant, unknown to at Qaeda or the 

Taliban, would have been permitted to wander through Tora Bora while providing arms and 

training to other individuals - is simply implausible. Cf Sulayman v. Ohama, _ F. Supp. 2d 

_,2010 WL 3069568, at *19 n.20 (D.D.C. July 20,2010) ("Given the Court's deep skepticism 

ofthe notion that a complete stranger would be permitted to knowingly possess a deadly weapon 

while being pennitted to stay in a fighting force's camp near the front lines, the logical result of 

that reasoning is that the two individuals who allowed petitioner to take possession oftheir 

weapons were more likely than not to have been a 'part of the Taliban fighting force.").21 

b.	 Al Kandari's association with members ofal Qaeda, the Taliban, or 

associated enemy forces, while in Tora Bora. 

The Court next discusses Al Kandari's statements and admissions against interest 

regarding his associations with members ofal Qaeda, the Taliban, or associated forces, while he 

21 The Government also contends that Al Kandari was injured during the Battle ofTora 

Bora. As support for this assertion, the Government relies largely on Al Kandari's own 

statement, in which he states that he sustained an injury to his right leg while in the mountains of 

Tora Bora. Ex. 28 (05/06/02 AI Kandari FD-302). Rather than indicate that this injury occurred 

during battle, however, Al Kandari explains that the injury occurred while he was being led down 

the mountain from Tora Bora shortly after his capture. Id. Al Kandari's medical records from 

May of 2002, on which the Government also relies, indicate that Al Kandari has a sear on his 

lateral right thigh and a history ofa gun shot wound on his right lateral hip, but do not indicate 

whether or not these injuries were ofrecent origin. Ex. 137 (0511102 Al Kandari Medical 

Records). The only additional evidence in the record relied upon by the Govemment for this 

point appears to be based on information relayed from an unidentified second-hand source and 

does not bear sufficient indicia ofreliability. Ex. 44 (3/26/04 ISN 760 DR). 

-44­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SECH'f/JN8F'8RN 

was in Tora Bora. Specifically, AI Kandari has acknowledged that he met and associated with 

the following individuals during this time: (a) Ibn Sheik Al Libi; (b) Abdul Qadous; (c) Abu 

Thabit; (d) Abu Harnza ai-Masri; and (e) Mohammed Taha Malu-Allah. The Government has in 

tum introduced evidence, both from Al Kandari himself as well as from third-party sources, that 

each of these individuals was more likely than not associated with al Qaeda and/or the Taliban. 

For the reasons set forth below, the Court finds that both AJ Kandari's admissions regarding his 

associations with these individuals and the Government's evidence associating each ofthese 

individuals with at Qaeda and/or the TabJiban are reJiable and credible. 

Ibn Sheik AI Libi. AI Kandari admitted the following in a statement to a Government 

interrogator: that he knew Ibn Sheik Al Libi; that he had met with Al Libi in Tora Bora; and that 

Al Libi was leading a group of fighters in Tora Bora at the time Al Kandari met with him. Ex. 38 

(12/04/03 AJ Kandari IIR).28 While Al Kandari subsequently denied these admissions in his 

28AI Kandari objected to the reliability of Exhibit 38, and certain other intelligence 

reports, on the basis that the reports indicate AJ Kandari was detained with a Kuwaiti passport, 

but none has ever been produced by the Government and the Government now takes the position 

that AI Kandari did not have his passport on him at the time ofhis detention by American forces. 

Al Kandari argued that if, as he contends, the statement in the reports is accurate and he was 

detained with his passport, he is prejudiced by the Government's failure to produce it during 

discovery. Alternatively, if the Government is correct that he was not detained with a passport, 

the statement in the reports to the contrary is inaccurate and is evidence of the inherent 

unreliability ofthese reports. The Court cannot determine which interpretation ofthe statement 

- Petitioner's or the Government's - is most likely correct. As indicated previously, the 

Government's evidence regarding AI Kandari's pocket litter at the time of his detention is not 

sufficiently reliable. See supra p. 33 n. 22. In addition, while Government counsel speculated at 

the Merits Hearing that the statements at issue, which are located in the source field ofthe 

intelligence reports, are only "summary information provided by the detainee, that [is] his own 

description ofhimself," 10/20/09 (AM) Mrts. Hr'g Tr. at 97:6-13, the evidence before the Court 

does no~a ar to either confirm or contradict this assertion, see, e.g., Ex. 58 at 8 (09119/08 

Decl.o (noting only that "Intelligence reports include a source line 

that gives a escription of the source and their assessed credibility by the reporting officer."). 

Similarly, Al Kandari has offered no independent evidence in support ofhis position that he was 

detained with his passport. Although the Court is ultimately unable to resolve this question on 

the present record, this dispute does not affect the Court's decision in this case. There is no 

indication that Respondents' failure to produce the passport was the result of bad faith, 

-45­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

declaration, see Ex. 139 at 28 (03/06/09 Decl. ofAl Kandari), the Court does not credit this 

denial. Al Kandari states in his declaration that: "It is alleged that I have admitted knowing 'Ibn 

Sheikh al~Libi [and others]. I have never known any ofthese people. My interrogators told me 

that I must have known them, but I have always said that I did not know them, although I had 

heard ofthem while in detention at Guantanamo." Id. While this statement appears to imply that 

Al Kandari's admissions on this point were the result ofinterpreter error, based on a possible 

misunderstanding ofhis statement that he knew ofAl Libi from his time in Guantanamo, the 

Court notes that Al Kandari admitted not only that he knew AI Libi, but also that he met with 

him in Tora Bora while AI Ubi was leading a group of fighters. Ex. 38 (12/04/03 Al Kandari 

IIR). It is difficult to see how such admissions - that Al Kandari knew Al Ubi and had met 

with him Tora Bora, where Al Ubi was leading a group offighters - could have resulted from a 

misinterpretation of Al Kandari's statement that he did not know Ai Ubi, but had only heard of 

him. Moreover, Al Kandari clearly has a motive to deny his prior inculpatory admission to 

Government interrogators that he knew Al Ubi and associated with him while in Tora Bora. The 

Court therefore does not credit Al Kandari's blanket denial in his declaration. By contrast, the 

Court finds that Al Kandari's admissions against interest regarding his association with Al Libi, 

and Al Libi's status as a leader at Tora Bora, are both reliable and credible. 

To corroborate Al Kandari's own admission that Al Libi was leading fighters on behalf of 

al Qaeda, the Government has submitted additional evidence supporting a finding that Al Libi 

Respondents have not relied on the absence ofAl Kandari's passport as a fact supporting his 

detention in this case, and the presence or absence ofAl Kandari's passport on his person at the 

time ofhis detention is not material to the Court's decision in this case. Moreover, even ifthis 

particular statement in the source field ofthe intelligence reports is inaccurate, it does not render 

the reports automatically Wlreliable and certainly does not cast doubt on the reliability of AI 

Kandari's specific, substantive admissions that he associated with members of al Qaeda, the 

Ialiban, or their associated forces, in Iora Bora. 

-46­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SECRE'tYtN6Ji'ORN 

was a member of al Qaeda (or its associated forces) and that he was charged with leading fighters 

during the Battle ofTora Bora. See, e.g., Ex. 1 at 436 (National Commission on Terrorist 

Attacks Upon the United States, The 9/11 Commission Report (2004» (listing Al Libi as "head 

ofjihadist training camp in Afghanistan")~ Ex. 72 (11/21/02 Muhammed Noor Othman 

Muhammed (ISN 707) FD-302) (identifying Al Ubi as the individual in charge ofthe Khaldan 

training camp, at which detainee worked from 1996 to 2000)~ Ex. 88 (9/6/03 Hamud Dakhil AIJidani, a.k.a. Talut (ISN 230) MFR) (identifying Al Libi as former commander ofI<haldan 

training camp and a leader at Tora Bora). The Court finds this evidence is sufficiently reliable to 

corroborate Al Kandari's own admission against interest concerning Al Ubi's association with at 

Qaeda, evidence which is uncontroverted on the present record. In particular, with respect to the 

detainee statements, the Government has identified the sources of both statements, and the 

documents each indicate therein that the detainees' statements regarding Al Libi are based on 

personal knowledge. 

Abdul Oadous. Al Kandari also admitted to Government interrogators that he met with 

Abdul Qadous during his time in Tora Bora. Ex. 38 (12104/03 Al Kandari IIR). By Al Kandari's 

own admission, Qadous, like Al Libi, was leading a group of fighters at the time Al Kandari met 

him in Tora Bora. Id. AI Kandari further advised that he had heard Qadous had previously been 

in charge ofthe Al Farouq training camp, at Qaeda's primary Afghan basic training facility. Id 

Although Al Kandari later denied in his declaration that he made these admissions or that he 

knew Qadous, the Court does not credit such denials. See Ex. 139 at 28 (03/6/09 Decl. ofAI 

Kandari) ("It is alleged that I have admitted knowing ... Abdul Qadous [and others]. I have 

never known any of these people. My interrogators told me that I must have known them, but I 

have always said that I did not know them, although I had heard of them while in detention at 

Guantanamo."). Significantly, as with Al Libi, Al Kandari admitted not only to knowing 

-47­


UNCLASSIFIEDIIFOR PUBLIC RELEASE
 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SECti'tYINOPORN 

Qadous, but to also having met with him in Tora Bora, where Qadous was leading a group of 

fighters at the time oftheir meeting. Ex. 38 (12/04/03 AI Kandari IIR). For the same reasons 

discussed above, the Court finds that it is similarly unlikely that this admission resulted from 

interpreter error, as Al Kandari implies in his declaration, and therefore discredits Al Kandari's 

later denial ofthis statement, particularly in light ofAl Kandari's motive to deny any association 

with Qadous. Rather, the Court finds that Al Kandari's admission against interest that he met 

with Qadous in Tora Bora, and that Qadous was leading a group of fighters at the time oftheir 

meeting, is both reliable and credible. 

To corroborate Al Kandari's own statements identifying Qadous as an individual 

associated with al Qaeda (or its associated forces), the Govemment has submitted certain 

statements by Abdul Latif Nasir, a.k.a. Taha (ISN 244). In these statements, ISN 244, a selfadmitted participant in the Battle ofTora Bora, identifies Qadous as a leader offighters at Tora 

Bora and the fonner head ofthe Al Farouq training camp. See Ex. 52 (07/01/03, Abdul Latif 

Nasir (ISN 244) IIR); Ex. 135 (05/11/02 Abdul LatifNasir (ISN 244) FD-302); Ex. 136 

(03/10/04 Abdul Latif, Nasir (ISN 244) FD-302); see a/so Ex. 14 at 2 (09/19/08 Dec. o. 

The Court finds 

that ISN 244's statements, which consist of admissions against interest based on personal 

knowledge, have sufficient indicia ofreliability to corroborate Al Kandari's statements as to 

Qadous' association with al Qaeda. This is particularly so given that the evidence in the record 

demonstrating Qadous' association with aJ Qaeda is uncontroverted. 

Abu Thabit. During an interrogation on May 23, 2002, Al Kandari admitted to having 

met with an individual named Abu Thabit while in the mountains of Tora Bora. Ex. 74 

(05/23/02 Al Kandari FD-302). Al Kandari further stated that Abu Thabit, whom he identified as 

a Saudi, was in Tora Bora to help the injured, id, which supports a reasonable inference that Abu 

-48­


LlNCLASSIFIEDIIFOR PUBLIC RELEASE
 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

8I!1eM!.."nepeItH 

Thabit was part of, supported, or otherwise associated with al Qaeda andlor the Taliban during 

the Battle of Iora Bora. The Court notes that Al Kandari has never denied or recanted this 

particular admission regarding Abu Thabit. Considering the context in which Al Kandari's 

admission against interest was made, and that these statements are uncontroverted, the Court 

finds the statements are both reliable and credible. 

This finding is further supported by two additional statements made by Al Kandari to 

Government interrogators, which statements the Government has submitted to corroborate Al 

Kandari's admission that he met with Abu Thabit in Tora Bora and that Abu Thabit was, at the 

time, assisting andlor supporting aJ Qaeda, the Taliban, or associated enemy forces. First, the 

Government has submitted an intelligence report containing a statement by Al Kandari 

confinning that he knew Abu Thabit. Ex. 38 (12/04/03 Al Kandari IIR). While this statement 

does not contain any specific information as to the circumstances in which Al Kandari knew Abu 

Thabit, the statement nonetheless corroborates Al Kandari's admission in Exhibit 74 to the extent 

it confirms that he knew Abu Thabit. 

-49­


UNCLASSIFIEDIIFOR PUBLIC RELEASE
 
UNCLASSIFIEOIIFOR PUBLIC RELEASE 

S£CRE'f//NOFORN 

Al Kandari objects to the Court's reliance on this latter exhibit,_on the basis 

that the document remains classified and counsel has been unable to either show the document to 

Al Kandari or to advise Al Kandari about the specific statements contained therein. _ 

While the Court understands Petitioner's frustration with the 

Government's refusal the Court finds that Al 

Kandari is not prejudiced by the Court's reliance on_for the sole purpose of 

corroborating statements Al Kandari has mad statements which Al 

Kandari has been pennitted to see and discuss with his attorneys. In this instance, Al Kandari 

has had a full opportunity to review and respond to, and to have his counsel investigate, the 

substantive allegations upon which the Court relies and for which _ is corroborative 

evidence 

These are not new allegations that Al 

Kandari has not previously seen, as they are also repeated in other documents to which Al 

Kandari has had access. The Court therefore shall not exclude from consideration_ 

insofar as the exhibit is relied upon only to corroborate other statements previously disclosed to 

Al Kandari concerning Abu Thabit.29 The Court notes, however, that_ is not necessary 

29 In addition to Petitioner's general objection to_based on counsel's inability 

to show or discuss the document with Al Kandari himself, Al Kandari has attempted to raise a 

new and slightly more refined objection to the Court's reliance o~in his post-hearing 

supplemental briefing submitted with respect to the Government's Amended Exhibits. 

-50­

UNCLASSIFIEOIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SSCftBTlINOFORN 

to its finding above regarding the reliability of Al Kandari's admission as to his association with 

Abu Thabit while in Tora Bora, and the Court would reach this same decision even ifit were to 

wholly exclude_ from consideration. 

Abu Hamza al~Masri. In an interrogation in May of 2002, AI Kandari admitted that he 

met with an individual named Abu Harnza ai-Masri while in Tora Bora. Ex. 74 (05/23/02 Al 

Kandari FD-302). AI Kandari indicated in this statement that ai-Masri had been injured and that 

Al Kandari had been told by Mohammed Taha Malu-Allah, a.k.a. Abu Sulaiman, (see discussion 

itifra pp. 53-55), that aI-Masri was a member of al Qaeda. Id AI Kandari has never denied his 

association with aI-Masri in any of his other statements. 

To corroborate these admissions, the Government has introduced two additional 

Specifically, AI Kandari argued for the first time in his post-hearing briefing that he is 

particularly prejudiced by the Government's reliance on, and counsel's inability to discuss with 

or show to him, statements that he made while detained in Afghanistan, given AI Kandari's 

broad claim that he was subject to "especially brutal" abuse while in Bagram and Kandahar. 

See Ex. 139 at' 8 (03/06/09 Decl. of Al Kandari). The Court finds that this objection is without 

merit for three reasons. First, this particular objection to_is untimely. Al Kandari did 

not raise this specific objection in any ofhis pre-hearing motions objecting to_ He 

instead waited until his post-hearing supplemental briefing to raise this objection. The posthearing briefing, however, was explicitly limited by the Court's February 3, 2010 Order to a 

discussion ofthe Government's Amended Exhibits only, which exhibits do not includ~

• Petitioner's attempt to raise this objection to_in parenthetical citations in his posthearing briefing is thus inappropriate. Second, this argument directly conflicts with Petitioner's 

counsel's repeated representations to the Court during the Merits Hearing that AI Kandari's 

general claims of abuse are not relevant to the Court's decision in this case. See discussion supra 

pp. 20-21. While Al Kandari,s counsel attempts to argue in his post-hearing supplemental 

briefing that this representation to the Court was limited solely to those statements that Al 

Kandari himself has been able to see and discuss with his counsel, and was therefore not 

intended to apply to the statements in_this post-hoc characterization ofhis argument 

is without merit. Counsel made no such distinction at the Merits Hearing, and the relevant 

statements by counsel explicitly disclaimed any allegation that AI Kandari's statements made to 

Government interrogators were the product ofabuse. See discussion supra pp. 20-21. Third and 

most importantly, the Court reiterates that although AI Kandari has generally alleged that he was 

abused while in United States' custody, and that such alleged abuse was particularly "brutal" 

while he was detained in Afghanistan, he has never claimed that he made false statements to 

Government interrogators as a result ofthis alleged abuse, and there is no evidence in the record 

to support such a claim. 

-51­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SECRfi'FHN9F9RN 

statements from Al Kandari. First, the Government has directed the Court to a statement by AJ 

Kandari confinning that he knew an Egyptian named Harnza. Ex. 38 (12/04/03 Al Kandari IIR). 

According to the Governmenfs undisputed evidence, "AI-Masri" means "The Egyptian." Ex. 13 

(09/19/08 Decl. of App. A (Common Country and Tribal Names). AI 

Kandari has not disputed that the Abu Hamza ai-Masri referenced in Exhibit 74 is the same 

Harnza, the Egyptian, referenced in Exhibit 38, and the Court finds that this is a reasonable· 

inference. Although Al Kandari's statement in Exhibit 38 that he knew ai-Masri does not specify 

how Al Kandari knew aI-Masri or indicate that he met with ai-Masri in Tora Bora, it does 

partially corroborate Al Kandari's admission in Exhibit 74 insofar as it confinns that Al Kandari 

knew al-Masri. 

Second, the Government has submitted a statement 

While Al Kandari again objects to the Court's reliance on this latter exhibit,_ the 

Court finds for the reasons explained above that Al Kandari is not prejudiced by the Court's 

reliance on _.for the sole purpose of corroborating statements Al Kandari has mad. 

statements which he has been pennitted to see and discuss with his 

attorneys. Al Kandari has had a full opportunity to review and respond to, and to have his 

counsel investigate, the substantive allegations upon which the Court relies and for which 

-52­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SECM'f/1N6F6Rf4' 

_ is corroborative evidence. Accordingly, the Court shall not exclude from 

consideration this exhibit_ insofar as it is relied upon only to corroborate other 

statements previously disclosed to AI Kandari The Court notes, however, 

that_ is not necessary to its finding above regarding the reliability of AI Kandari's 

admission as to his association_ while in Tora Bora, and the Court would reach this 

same decision even if it were to wholly excIude_ from consideration. 

Mohammed Taha Malu-Allab. a.k.a. Abu Sulaiman. AI Kandari also admitted on 

numerous occasions that he met with a Kuwaiti named Mohammed Taha Malu-Allah, a.k.a. Abu 

Sulaiman, while in the mountains ofTora Bora. In an interrogation in early May of 2002, Al 

Kandari admitted that he saw Abu Sulaiman, a Kuwaiti, in the mountains near Jalalabad. Ex. 28 

(05/06/02 AI Kandari FD-302).30 At that time, Abu Sulaiman admitted to AI Kandari that he had 

traveled to Afghanistan to receive military training. Id. In an interrogation later that same 

month, Al Kandari again confinned that he had met Abu Sulaiman in the mountains near 

Jalalabad and that Abu Sulaiman was from Kuwait. Ex. 74 (05/23/02 Al Kandari FD-302). Al 

Kandari also advised that Abu Sulaiman had told him that Hamza al-Masri, another individual 

whom AI Kandari had met while in Tora Bora, was a member ofal Qaeda Id. In addition to 

these statements made in May of 2002, the Government has introduced yet another statement by 

Al Kandari confirming once again that he knew Abu Sulaiman, that Abu Sulaiman was a 

30 As reported in Exhibit 28, Al Kandari advised interrogators that he saw a Kuwaiti 

named saw Abu Sulaiman in a village in the mountains near Jalalabad and that he knew some of 

the Arabs in the mountains, including Mohammed Taha Malu-Allah; it is unclear if he indicated 

that both names referred to the same person. See Ex. 28 (05/06/02 Al Kandari FD-302). This 

may be a result ofthe fact that Exhibit 28 contains Al Kandari's statements from two separate 

interrogations that occurred in early May of2002. Regardless, Al Kandari subsequently 

confinned that Mohammed Taha Malu-Allah uses the kunya Abu Sulaiman and that the names 

refer to the same person, a fact that is uncontroverted on the present record. See Ex. 32 (11120/03 

Al Kandari fiR); Ex. 38 (12/04/03 Al Kandari I1R); Ex. 74 (05/23/02 AI Kandari FD-302). 

-53­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SECItt:'fI/N6f'16RN 

Kuwaiti, and that AI Kandari had last seen Abu Sulaiman in the Tora Bora mountains near 

Jalalabad prior to A1 Kandari's capture. Ex. 32 (11120/03 Al Kandari fiR). In this last 

interrogation, Al Kandari also explained that he knew Abu Sulaiman from Kuwait, having visited 

his home in Kuwait following Abu Sulaiman's return from Chechnya. Id. 31 

In contrast to these admissions, the Court has located one instance in the record in which 

Al Kandari advised Government interrogators that the last time he had seen Abu Sulaiman was in 

Kuwait sometime between 1997 and 1999. Ex. 38 (12/04/03 Al Kandari IIR). While this 

statement confirms that Al Kandari knew Abu Sulaiman and had visited with Abu Sulaiman at 

his home in Kuwait, it contradicts Al Kandari's previous admissions insofar it states that he last 

saw Abu Sulaiman in Kuwait and not in Tora Bora. Id Upon considering the totality of the 

evidence in the record and the parties' arguments thereto, the Court finds that this latter statement 

contradicting Al Kandari's admissions against interest is not credible. Rather, as between the 

conflicting statements, the Court finds that Al Kandari's repeated admissions that he met with 

Abu Sulaiman in Torn Bora are the more credible assertions. Al Kandari's admissions against 

interest that he met with Abu Sulaiman in Tora Bora are consistent across several interrogations 

For 

the previou~ed reasons, the Court finds that A1 Kandari is not prejudiced by the Court's 

reliance on solely to corroborate his admissions 

_ admissions which he has been permitted to see and discuss with his attorneys. A1 

Kandari therefore has had a full opportunity to review and respond to, and to have his counsel 

investigate, the substantive allegations upon which the Court relies and for which_ is 

corroborative evidence. The Court notes, however, that_ is unnecessary to the Court's 

decision on this point, as it serves only to corroborate Al Kandari's repeated admissions 

and the Court 

would reach the same findings even ifit were to wholly exclude this exhibit from consideration. 

-54­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
• • • 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

and, W1Iike his later exculpatory statement, are not motivated by self-interest. Similarly, the 

Court finds that Al Kandari's admission that Abu Sulaiman confided that he traveled to 

Mghanistan to receive military training is also reliable. Given this admission, combined with the 

fact that Abu Sulaiman subsequently made his way to Tora Bora during the Battle ofTora Bora 

and was able to recognize and identify ai-Masri as a member ofal Qaeda, the Court finds it more 

likely than not that Abu Sulaiman was a member of, or supported, al Qaeda, the Taliban, or 

associated enemy forces. 32 

The above discussion supports the following three findings based on AI Kandari's own 

statements and admissions against interest. First, Al Kandari was in Tora Bora during the most 

intense portion, ifnot the entirety, ofthe Battle ofTora Bora. Second, during that time, he was 

given a Kalishnikov rifle and provided training on how to use it, more likely than not by an 

individual who was a member of or otherwise associated with al Qaeda and/or the Taliban. 

Third, during this time, Al Kandari also met and associated with several members and high-level 

leaders associated with al Qaeda and/or the Taliban, many of whom were actively engaged in or 

32 AI Kandari has also admitted to having seen or met with two additional individuals 

while in the Tora Bora mountains: (a) Harned Asulaiman, a.k.a. Abu Hafs, see Ex. 28 (05/06/02 

AI Kandari FD-302); Ex. 74 (05/23/02 AI Kandari FD-302); and (b) Laith aI-Libi, Ex. 38 

(12/04/03 AI Kandari IIR). There is insufficient evidence in the record, however, to support a 

finding that either of these individuals were members of, or otherwise associated with, al Qaeda 

and/or the Taliban. The Government did not direct the Court to any evidence in the record 

providing information as to Asulaiman's identity. Although the Govemment did produce one 

exhibit indicating that Laith al-Libi is a member of al Qaeda and/or the Taliban, see Ex. 123 

(9/28/05 ISN 768 IIR), the Court finds that the exhibit does not have sufficient internal indicia of 

reliability and no external evidence corroborating either the information in the document or the 

reliability of its source has been provided by the Government. In addition, while Exhibit 38 itself 

includes a "field comment" that "Laith al Libi is [sic] has been associated with Libyan Fighting 

Group (LIFG) member Abu AI-Layth «Al-Qasimi))," the document does nQt provide any 

indication ofthe source ofthis assertion and the Court is therefore unable to assess its reliability. 

See Ex. 38 (12/04/03 Al Kandari IIR). 

-55­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SECRETHNOFORN 

were otherwise supporting those who were fighting the United States and its allies, including: (a) 

Ibn Sheik Al Libi; (b) Abdul Qadous; (c) Abu Thabit; (d) Abu Harnza ai-Masri; and (e) 

Mohammed Taha Malu-Allah. In summary, then, Al Kandari was, by his own admission, in 

Tora Bora during the height of the Battle ofTora Bora, carrying a Kalishnikov rifle, and 

associating with several members and high-level leaders of al Qaeda, the Taliban, or associated 

enemy forces, many of whom were actively engaged in, or were otherwise supporting those who 

were, fighting the United States and its allies.33 

Taken in their totality and considered in context with the Court's determination above 

that AI Kandari's explanation for his activities in Afghanistan is implausible, these findings 

demonstrate that it is more likely than not that Al Kandari was part of al Qaeda, the Taliban, or 

associated enemy forces. Far from constituting mere evidence of "guilt by association," as AI 

Kandari's counsel argued at the Merits Hearing, evidence that Al Kandari was given a weapon, 

more likely than not by a member of the enemy forces fighting at Tora Bora, and permitted to 

associate with high-level leaders of al Qaeda, the Taliban, or their associated forces in Tora Bora, 

while these same individuals were actively engaged in fighting the United States and its 

Coalition partners, demonstrates that Al Kandari was known to and trusted by al Qaeda and/or 

the Taliban (and associated forces). As the Court previously observed, it defies common sense 

that al Qaeda, the Taliban, or their associated enemy forces, would permit an unknown and 

untested noncombatant, armed with a Kalishnikov rifle, to wander through Tora Bora and to 

33 In addition to Al Kandari's own statements and admissions against interest, the Court 

notes that the Government presented certain other evidence with respect to Al Kandari's alleged 

activities while in Tora Bora, which the Court does not reach for purposes of this decision. This 

evidence includes third-party witness statements that, inter alia, relay infonnation gained from 

unidentified second-hand sources, describe individuals who are named only by their kunyas, or 

otherwise require far more inferences, and are far more attenuated, than the evidence on which 

the Court has relied in this case. 

-56­

UNCLASSIFJEDIIFOR PUBLIC RELEASE 
._.••• 00 . - ._.0.0._. __ ..._.. ------- - - -­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SECRET/INOFORN 

interact with its fighters and their leaders, all the while the Battle of Tora Bora raged on around 

them. To the contrary, that al Qaeda, the Taliban, and its associated enemy forces, permitted AI 

Kandari to associate with and be near their members while they were actively engaged in fighting 

Coalition forces makes it more likely than not that he himself was also part ofthe forces 

associated with al Qaeda and/or the Taliban. Cf Sulayman, 2010 WL 3069568 at *18 ("[T]he 

Court simply cannot fathom a situation whereby Taliban fighters would allow an individual to 

infiltrate their posts near a battle zone unless that person was understood to be a 'part of the 

Taliban."); AI-Adahi v. Obama, 698 F. Supp. 2d 48, 65 (D.D.C. 2010) (hereinafter, "AI-Assam"') 

("the fact that Petitioner was clearly accepted by al-Qaida, at a minimum, as a substantial 

supporter of the organization further supports the conclusion that it is more likely than not that 

Petitioner knowingly was a part of or substantially supported al-Qaida"). 

Similarly, it is inconceivable that al Qaeda, the Taliban, or their associated enemy forces, 

would willingly arm Al Kandari with a Kalishnikov rifle and take the time to train him on its 

proper use, unless Al Kandari himself was part ofthese organizations. Cf Anam v. Obama, 696 

F. Supp. 2d 1, 16 (D.D.C. 2010) ("AI-Qaida fed, sheltered, and protected [the detainee]. ... The 

only logical explanation as to why al-Qaida did all of this for Petitioner is that they considered 

him a member. Petitioner must have taken some affirmative action to earn that trust and 

assistance from such a clandestine organization."). The Court emphasizes that the evidence here 

does not indicate merely that AI Kandari possessed a weapon, but rather supports a reasonable 

inference that he was given the Kalishnikov rifle while in Tora Bora during the Battle of Tora 

Bora and was trained on its use by an individual who was more likely than not associated with al 

Qaeda and/or the Taliban. It is these particular circumstances in which he was given the weapon 

that support the Court's finding that it is more likely than not that AI Kandari was part of al 

Qaeda, the Taliban, or their associated enemy forces. Cf Al Odah, 611 FJd at 15·16 (rejecting 

·57­


UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

S£C~'f/fl\(6P6RN

petitioner's "attempt to put an innocuous gloss" over fact that he carried an AK47 in Tora Bora, 

given the particular circumstances in which he received and maintained the weapon). 

While there is no direct evidence in the record that AI Kandari personally used this 

weapon against the United States or its Coalition partners, such evidence is not required. Al 

Bihani, 590 F.3d at 872-73 (proof that an individual actually fought for or on behalf of aI Qaeda 

or the Taliban, while sufficient, is also not required to demonstrate that an individual is a "part 

of' such enemy forces); cf Kha/ijh v. Obama, Civ. Act. No. 05-1189, 2010 WL 2382925, at *6 

(D.D.C. May 28,2010) ("While ... the government has not shown that Khalifh ... personally 

took up arms against U.S. or coalition forces, it is slicing the law too thin to require such 

proof."). Nonetheless, given the evidence in this case, the Court notes that it is reasonable to 

infer that AJ Kandari, like the other armed combatants around him, was actively engaged in 

fighting the United States and its allies. Indeed, the alternative - that he himself was armed, in 

Tora Bora, during the Battle ofTora Bora, in the company of armed aI Qaeda, Taliban and 

associated fighters, but was simply an island unto himself with no involvement in the fighting 

going on around him - is not credible. Abdah, 2010 WL 1798989, at *20 (fact that detainee 

was with men who were invoJved in the Battle ofTora Bora supported finding that detainee was 

more likely than not part of aI Qaeda forces at Tora Bora, even though there was no evidence 

directly showing that this detainee himselfengaged in any fighting). 

Importantly, by Al Kandari's own admission, he was aware that the individuals he chose 

to associate with while in Tora Bora were members ofand were associated with al Qaeda and/or 

the Taliban. Though his motives for coming to Afghanistan and his activities prior to the Battle 

ofTora Bora cannot be conclusively determined on the present record, at a minimum it is clear 

that Al Kandari knew by the time ofhis stay in Tora Bora that it was more likely than not that he 

was joining forces with and lending support to al Qaeda and/or the Taliban. This is all the 

-58­


UNCLASSIFIEDIIFOR PUBLIC RELEASE 
-----_..-.- .. , .-_.-- .---- - -- ---­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SECRE~h'NOFORN

Government need prove. A/-Assani, 698 F. Supp. 2d at 57 ("The fact that an individual may have 

been initially motivated to travel abroad for innocent reasons, or that an individual's knowledge 

or intent was less than clear at inception ofhis journey, does not defeat the Government's case. 

Instead, it is sufficient for the Government to prove by a preponderance of the evidence that, at 

some point before capture, it is more likely than not that Petitioner knew he was becoming or 

intended to become a part ofor substantial supporter ofal-Qaida and/or the Taliban."). 

Given the overwhelming weight of the evidence discussed above, Al Kandari's blanket 

denials in his declaration that he "never supported al-Qaida or any group that promotes violence" 

and that he was "not a part ofany fighting groups" nor ever "associated in any way with any 

fighting groups in Tora Bora," are simply not credible. Ex. 139 (03/06/09 Decl. ofAl Kandari), 

22, 25, 29. In almost every significant respect, AI Kandari has failed to provide plausible 

explanations for his activities in Mghanistan and the choices he made as to his movements and 

associations in Tora Bora. Accordingly, taken as a whole, the Court finds that this record makes 

it more likely than not that AI Kandari became part ofal Qaeda, the Taliban, or their associated 

enemy forces, and is therefore lawfully detained pursuant to the President's authority under the 

AUMF. 

B. The Government's Other Evidence 

During the course of the Merits Hearing, the Government presented certain other 

evidence in support ofits position that Al Kandari is lawfully detained pursuant to the 

President's authority under the AUMF. For the reasons set forth above, the Court finds that this 

additional evidence submitted by the Government is not necessary to its decision that it is more 

likely than not that Al Kandari was part of al Qaeda, the Taliban, or associated enemy forces. 

Nonetheless, the Court shall briefly address such evidence below. 

·59­

UNCLASSIFIEDIIFOR PUBLIC RELEASE 
----_... _­ ---

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SECRET//NOFORN
 

-60­


UNCLASSIFIEDIIFOR PUBLIC RELEASE 
-.-- -- -- .. -. ---- - _.. "-- -- - --- -.. 

UNCLASSIFIEDIfFOR PUBLIC RELEASE 

SECRE'f/~OFORN

-61­

UNCLASSIFIEDIfFOR PUBLIC RELEASE 
........ -.------ ---- ---_..- .
 

UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SECU'fiINOFORN 

Nonetheless, as made dear by the Court's finding above, 

the Government's evidence regarding is not necessary to the Court's 

conclusion that Al Kandari is more likely than not part of al Qaeda, the Taliban, or associated 

enemy forces. The Court therefore need not, and does not, assess the docwnent's reliability or 

reach the question of what probative value, if any, this evidence is entitled to in the case at hand. 

-62­


UNCLASSIFIEDIIFOR PUBLIC RELEASE 
UNCLASSIFIEOIIFOR PUBLIC RELEASE 

S:ECRE~/INOPORN

2. The Remaining Evidence 

The remaining evidence in the record consists largely ofthird-party witness statements, 

newspaper reports, and other documentary evidence. For the reasons previously explained, this 

evidence is also unnecessary to the Court's decision. Moreover, the Court finds that certain of 

the Government's allegations, such as its assertion that Al Kandari participated injihad in Bosnia 

in the middle to late 1990's, are not material to its determination above that Al Kandari is 

lawfully detained as a result of his activities in Afghanistan in 200 I, and therefore need not be 

reached. The remainder ofthe Government's evidence concerns aIJegations that the Court fmds 

are unnecessary to its determination and which, for a variety of reasons, the Court does not reach. 

This includes the Government's allegations that Al Kandari: made a previous trip (or multiple 

previous trips) to Afghanistan prior to the undisputed August 2001 trip discussed above, during 

which trips he stayed at guesthouses and attended training camps related to at Qaeda and/or the 

Taliban; was a close associate of certain high-level leaders and members of al Qaeda and/or the 

Taliban, including Usama Bin Laden, Adel bu Hamid. a.k.a. al Qannas, Suleiman Abu Ghaith, 

and Abu Zubaydah; served as a religious leader and provided religious training to al Qaeda and 

Taliban members; mentored and advised Anas Al Kandari and other members ofthe 

six-person cell that eventually carried out the October 8, 2002 attack on Faylaka Island; and was 

engaged in the creation and dissemination of propaganda on behalf of al Qaeda and/or the 

TaJiban. The evidence submitted in support of these allegations, inter alia: is in equipoise; is 

based on statements and other evidence that is far more attenuated, and requires far more 

inferences, than the evidence on which the Court has relied in this case; and consists of 

information obtained from unknown sources or known sources that the Government refuses to 

identify, and for which the Government otherwise has not provided sufficient infonnation 

regarding the circumstances in which the statements were made. 

-63­

UNCLASSIFIEOIIFOR PUBLIC RELEASE 
UNCLASSIFIEDIIFOR PUBLIC RELEASE 

SE€H~YfNOFORN

III. CONCLUSION 

Because the Government has met its burden by a preponderance ofthe evidence in this 

case, the Court shall DENY Al Kandari's petition for habeas corpus. 

Date: September i5, 2010 

lsi 

COLLEEN KOLLAR-KOTELLY 

United States District Judge 

-64­

UNCLASSIFIEDIIFOR PUBLIC RELEASE