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### UNITED STATES DISTRICT COURT FORTHEDISTRICT OFCOLUMBIA ) FAVIZ MOHAMMED AHMED ) AL KANDARI, 

### et al., ) 

### ) Petitioners. ) ) 

### v. ) Civil ActionNo. 02-828 (CKK) ) UNITED STATES. 

### etaT., ) ) Respondents. ) ) 

### CLASSIFIED MEMORANDUM OPINION (September 15, 2010) PetitionerFayiz 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 inthe mountains nearTora Bora, during the height ofthe Battle ofToraBora, armed with a Kalishnikov rifle. and in the company ofseveral members and high-level leaders ofal Qaeda, the Taliban. orassociated enemy forces, who were actively engaged in fighting the United States and its Coalition allies. Based onthese admissions and otherevidence in the record, the Government asserts that ithas the authority to detain Al Kandari pursuant to the Authorization for the Use ofMilitary 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 ofhabeas corpus. This civil proceeding requires the Court to determine whether ornot Al Kandari's detention is lawful. In connection with this inquiry, the Court has considered the factual evidence inthe record, the extensive legal briefing submitted by the parties, and the arguments

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### SRCRE'f'/INOPORf\\ presented during a five-day Merits Hearing held on October 19-23,2009. Theparties did not present any live testimony at the Merits Hearing, but AI Kandari did listentelephonically to the unclassified opening statements by his counsel and Government's counsel. Based onthe foregoing, the Court finds thatthe Government has met its burden to showby a preponderance of the evidence that Al Kandari became part ofal Qaeda, the Taliban, or associated enemy forces. Accordingly, the Court shall DENY Al Kandari's petition for habeas corpus. I. BACKGROUND 

### A. ProceduralHistory Al Kandari filed his petitionfor habeas corpus onMay I, 2002, making this case the oldest ofthe pending Guantanamo Bay habeas cases. I After several years oflitigation, this case 

### was stayed pending resolution ofwhetherthe Court badjurisdiction to hear Al Kandari's petition. On June 12, 2008, the United States Supreme Court issued its decision in

### Boumediene

v. Bush, clarifyingthat this Court hadjurisdiction to considerthe petition and advising this and the otherjudges in this District that "[tJhe detainees are entitled to [] prompthabeas corpus hearing[s]." 553 U.S. 723, 128 S. Ct. 2229, 2275 (2008). Following the 

### Boumediene decision, this and most ofthe otherjudges 

### inthis District agreed to consolidate their Guantanarno Bay habeas cases before former ChiefJudge Thomas F. Hogan for issuance ofan initial case management orderthat would expeditiously move these

cases toward resolution. Judge Hoganissued a Case Management Order onNovember 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 otherremaining detainees inthis civil action. 

### SeeAlMutairi v. UnitedStates, 644 F. Supp. 2d 78 (D.D.C. 2009);

### Al Odah v. UnitedStates, 648 F. Supp. 2d I (D.D.C. 2009);

### AlRabiah v. UnitedStates, 658 F. Supp. 2d 11 (D.D.C. 2009). AI Kandari is therefore the last ofthepetitioners inthis casewith a pending 

### petition for habeas corpus before this Court. ·2­ UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR PUBLIC RELEASE

December 22, 2008. The Courthas relied onthe Amended Case Management Order ("CMO")

as the backdrop for its subsequent Scheduling Orders? The Government filed an Amended Factual Return on September 15, 2008, andpursuant to the schedule setbythe Court, Al Kandari filed a Traverse on March 30,2009. The parties engaged in extensive discovery and motions practice inthe interim. AI Kandari filed a Motion for Additional Discovery on January 26, 2009, which the Court granted-in-part and denied-inpartonFebruary 12, 2009, after a hearing onFebruary 11, 2009. Al Kandari filed a Motion to Produce a Declassified Factual Return onJanuary 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 BayJoint Task Force database. In addition, to narrowthe disputed issues presented at the Merits Hearing and to focus the parties onthe specific documents underpinningtheirrespective arguments, the Court ordered the Government to file a StatementofFacts on which they intendedto rely at the Merits Hearing (which narrowed the allegationspresented inthe Amended Factual Return), and instructed both parties to submit Witness and Exhibit Lists. Finally,the parties filed seven pre-hearing motions, most ofwhich sought rulings concerning the admissibility ofparticularevidence. By order dated June 16, 2009, the Court granted the parties' motions to rely onhearsay evidence at Al Kandari's Merits Hearing and granted the Government's motion to amend its Statement ofFacts 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 onOctober 19, 2009, and to continue through

2 The Court extends its gratitude to Judge Hogan for his considerable investment oftime and energyto produce the Case Management Order. 

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### 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 ofFacts, and/or the underlying Factual Return and Traverse. Pursuantto 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 priorto their submissionto the Court on October 13,2009.3 

### This schedule, as suggested bythe parties, was intended to ensurethat both sideshad an opportunity to reviewthe opposing side'sproposed 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 partiesthat 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 submittedthese 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 ofcertain ofthe Government's Amended Exhibits onthe 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 ofDocuments 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, asto whichthe Government has a continuing obligation to disclose. 

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or discuss those exhibits withhis client, Ai Kandari, prior to the Merits Hearing. In an effortto address this specific objection, Respondents

- withthe Court's firm encouragement
- assisted Petitioner'scounsel in obtaining expedited declassification review ofcertain 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 AmendedExhibits.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 StatementofMaterial Facts and the Government's Exhibit List. The Courtmade clearthatit would not exclude Respondents' AmendedExhibits from consideration 

### ex ante because ofthe importance ofensuring that its ruling on Al Kandari's habeas petition was made onthebasis ofall available evidence. The Court indicated instead that it would permitthe presentation ofall evidence, including Respondents' AmendedExhibits, duringthe course ofthe Merits Hearing and would reserve its final decision regarding the parties' objections to particularpieces ofevidence until after all evidence and the parties' positions thereto had been considered. The Court notes that while the volume ofRespondents' Amended Exhibits was not insignificant, Respondents' request for leave to amend was timely filed in compliance withthe parties' own proposed schedule and both parties were aware that the number ofamended exhibits submitted with respectto 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 priorrulings inthese 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 RELEASEUNCLASSIFIEDIIFOR PUBLIC RELEASE

Amended Exhibits would be consideredbythe Court in determining the weight to 

### be afforded to any particularpiece ofevidence during the course ofthe Merits Hearing. 6 Al Kandari gave no indication that he required additional time inlight ofthis evidentiary approach to further investigate the Amended Exhibits orto augment the record in orderto present an adequate defense as to those exhibits, nor did he request a postponement ofthe Merits Hearing. Accordingly, the Merits Hearingbegan as scheduled onMonday, October 19,2009. As the hearing progressed, Al Kandari's objectionsto 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 ofthose exhibits because ofthe timing oftheir submission by the Government. On the morning ofthe fourth day ofthe Merits Hearing, Thursday, October 22, 2009, the Courthalted the parties' presentation ofevidence 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 ifthe Court were to rely on the Amended Exhibits in ruling onhis habeas petition. The Court advised the parties that it would provide Petitioner's counsel a final opportunity before the close ofthe Merits Hearingto identify

- with specificity

- the particular actions counsel would have taken in orderto complete Al Kandari's defense with respect to the Amended Exhibits, ifcounsel had additional time. To the extent Petitioner'S counsel was able to identify such actions with particularity, the Court would order the record held openfor the limited purpose ofpermitting counsel additional

6 

### CfAlHarbi v. 

### Obama, Civ. Act. No. 05-2479,2010 WL 2398883, at ·10 (D.D.C. May 13,2010) (permittingthe late addition ofevidence submitted by the Government "because ofthe importance ofruling onthe habeas petitions ofGuantanamo Bay detainees based on all ofthe available evidence," but indicating that the Court would consider ''the timing ofthe disclosure [] and its effect on [petitioner's] ability to respond to respondents' accusations in determining what value to place onthe document'scontents"). 

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### time to conduct the requested investigation with respect to the Amended Exhibits and any exhibits submitted at the Court'srequest during the Merits Hearing. In the absence ofany particularized assertions ofprejudice, 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 onboth the exclusion ofevidence and the merits ofAl Kandari's habeaspetition on the present record. Accordingly, immediately prior to closing arguments, Petitioner's counsel was presented withan 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'gTr. at 14:3-5. This opportunity

was specifically limited to the Amended Exhibits as well as to any evidence newly presented at the Court'srequest during the course ofthe Merits Hearing. 

### See id at 57: 19-25,58: 12-19. The Courtmade clearthat it was not permittingAl Kandari the opportunityto advance new objections to previously disclosed evidence orto reopen discovery as to all issues. 

### See 10/22/09 (PM) Mrts. Hr'gTr. 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 thathis clientpreferred to obtain a continuance oftheMerits Hearing rather thanrest his defense and leave the Court to make its final decisions on both the exclusion ofevidence and the merits ofAl Kandari's habeas petition on the presentrecord. See 

### id at 66:5-19. Therecord 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.



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### SE€MIf/lN8'8Ml The Court ordered Respondents to search and disclose certain information requested by Petitioner regarding the AmendedExhibits by no later than November 24, 2009. To the extent Respondents' searches uncovered responsive information that was inculpatory in nature, the Court indicatedthat the Government would be permitted to seek leave to augment the record with this additional material as well. Pursuantto the schedule suggested by the parties and adopted by the Court, onFebruary 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. Bycontrast, Al 

### Kandari did not seekto admit any additional evidence into the record inresponse to the seven areas ofconcern related to the Respondents' Amended Exhibits, despite having been permitted an additional four months to conduct further investigations inorderto complete his defense as to those exhibits. With the Court's leave, however, AI Kandari filed a Petition for Writs ofHabeas Corpus Ad Testificandum directed at securing certaintestimony relating to the Amended Exhibits as well as a supplemental briefin supportofhis objections to certain ofthe 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 pendingbefore the Court. Both Respondents' Motion to Augment the

, AI Kandari'sremaining 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 statementsmade by two individuals, Abdulrabman AI Bathali (ISN 157245) and Mohammed MonsourJabarah. In addition, the Court denied Al Kandari'srequest

ecause these exhibits had been to obtain testimon t writs ofhabeas co us ad testificandum relating to two exhibits, disclosedto A Kan ·'s counsel in e Amen e actua eturn, his request to obtain further discovery 

### with respect to suchevidence was outside the bounds ofthe Court's order leaving the record open only as tothe Amended Exhibits. Ultimately, as the Court has not relied on either of the two exhibits at issue, oron any statements made by the two in iVl ua s at issue, Jabarah orAl Bathali, in reaching its decision herein, Al Kandari is not prejudiced by the Court'sdecision denying his requests for 

### additional discovery in its February 3, 2010 Order. -8­ UNCLASSIFIEOIIFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR PUBLIC RELEASE 8)i]81lt"tlfl'N8Ji8Bf'l Record and AI Kandari'sPetition for Writs ofHabeas CorpusAdTestificandum are discussed in further detail below. 

### See discussion 

### infra pp. 12-13. 

### B. EvidentiaryIssues 

### 1. Hearsay As stated above, the Court granted the parties' motions to rely on hearsay evidence inthis proceeding. The plurality in 

### Hamdi v. Rumsftldspecifically 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 Courtfinds that allowing theuse ofhearsay by both partiesbalances the need to preventthe substantial diversion ofmilitary and intelligence resources during a time ofhostilities, while at the same time providing Al Kandarl with a meaningful opportunity to contest the basis ofhis detention. The Court is fully capable ofconsidering whether a piece of evidence (whether hearsay ornot) is reliable, and ithasmade such determinations in the context ofthe evidence and arguments presented during the Merits Hearing

- including any arguments the parties made concerning the unreliability ofhearsay evidence. 

### Cf

### Parhat v. Gates, 532 F.3d 834,849 (D.C. Cir. 2008) (explaining, in the context ofthe Detainee Treatment Act, that the Courtwas 

### "not suggest[ing] that hearsay evidence is neverreliable

- only that it mustbe presented in the form, or with sufficient additional information, thatpermits [the finder offact] to

assess its reliability") (emphasis inoriginal). The D.C. Circuit recently approved this approach to the admission ofhearsay evidence, explainingthat "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 ifthehearsay is reliable");



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### Al Odah v. Obama, 611 F.3d 8, 14 (D.C. Cir. 2010) (same).8 2. Presumption ofAccuracy and Authenticity For similarreasons, the Court shall deny the Government's motion to have its evidence admitted with a presumption ofaccuracy and authenticity. Relying in parton the Supreme Court's statement in Hamdi v. Rumsfeldthat "the Constitution would not 

### be offended by a presumption in favor ofthe Government's evidence, so long as thatpresumption 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. CfAhmedv. Obama, 613 F. Supp. 2d 51, 55 (D.D.C. 2009) (rejecting

apresumption ofaccuracy for the Government's evidence and holding that ''the accuracy of much ofthe 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'sproffered evidence may not be accurate orauthentic. Some ofthe evidence advanced by the Government has been "buried underthe rubble ofwar:'Hamdi, 542 U.S. at 532, in circumstances that have

8 

### To the extent Al Kandari contends thatthe Court's approach to the admission ofhearsay deviates from the standard set forth inthe CMO, the Court disagrees. Nonetheless, even assuming Al Kandari is correct, "the CMO governing the Guantanamo habeas cases expressly authorizesjudges assigned to adjudicate habeas petitions to 'alterthe framework [set out in the CMO] based onthe particular facts and circumstancesoftheir individual cases.'" Barhoumiv. Obama, 609 F.3d 416, 422 (D.C. Cir. 2010) (quoting CMO, 2008 

### WL 4858241, at *1 n.l) (approving ofdistrict court's decision to depart, in its discretion, from the CMO'sprocedural framework regarding the admissibility ofhearsay). -10­ UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR PUBLIC RELEASE 

### SEen'fi/fl(6'6ftf( not allowed the Government to ascertain its chain ofcustody, nor in many instances even to produce information about the origins ofthe evidence. Other evidence is based on so-called "unfinished" intelligence, informationthat has not been subject to each ofthe five steps in the intelligence cycle (planning, collection, processing, analysis and production, and dissemination). Based onthe Government's own declarations, its raw intelligence may not have been fully analyzed for its "reliability, validity, and relevance" in the contextofother 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 conclusionthat "unfinished" intelligence has not undergone the same rigorous integration and evaluationprocess that produces "finished" intelligence).10 Still other evidence is based onmultiple layers ofhearsay (which inherently raises questions about reliability), oris based on reports ofinterrogations (often conducted through a translator) where translation ortranscription mistakes may occur. Accordingly, the Court shall not accord a presumption ofaccuracy orauthenticity 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 bythe Department ofDefense ("DOD"), which include Intelligence Information Reports ("IIRs") and "SummaryIntelligence Reports" ("SIRs"),.

are distinguishable from the law enforcement forms utilized by the Federal Bureau ofInvestigation ("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 RELEASEUNCLASSIFIEDIIFOR 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 considerAl Kandari's pre-hearing evidentiary motions, as supplemented by his post-hearingbriefing, that sought to exclude particularpieces ofevidence based on their alleged lack ofauthenticity, reliability, orrelevance. Rather than exclude evidence from consideration 

### ex ante by examiningit in a vacuum, the Court concludes thatthe better approach is to make such determinations after considering all ofthe evidence in the record and hearing the parties' arguments related thereto. 

### CfAl-Bihani, 590FJd at 880 ("Where the touchstone ofa 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 appearto be irrelevant, but when considered in the context ofthe other evidence in the record its importance maybecome clear. Accordingly, the Court's consideration ofthe evidenceproffered by the parties shall encompass inquiries into authenticity, reliability, and relevance. 

### CfParhat, 532 F.3d at 847 (describingthe Court's inquiry into whetherevidence 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. LaborersPension Trust, 508 U.S. 602, 622 (1993». 4. Al Kandari's and the Government's Post-Hearing Motions Asexplained 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 Augmentthe Record. Upon consideration ofthe parties' motions and responsive briefing, and theirrespective arguments as contained therein, the Court shall deny both motions 

### as moot because theyrelate to evidence that the Court has not 

### relied oninreaching its decisionto deny Al Kandari'spetition for habeas corpus. First, as 

### set -12­ UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR PUBLIC RELEASE**~ECRtrt¥;,rtft)pt)ftftf** 

### forth in Petitioner's motion, he requests the Court issue writs ofhabeas 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 himselfrecognizes, however, his"petition need not be granted ifthe Court excludes Exhibits 

### 76_ from consideration." Pet'r'sPet. 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 ofevidence that relate

# to_

Again, however, the Court does notreach herein either_ orthe Government's allegation Accordingly, Respondents' Motion to Augment the Record is also denied as moot. The record before the Court is therefore limited solelyto evidence submitted bythe parties prior to or during the Merits Hearing in this case. 

### C. Standardof Detention 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 TheD.C.Circuit has

JI 

### The Government's proposed definition for its detention authority is found inthe Memorandumthat it submittedinthis case onMarch 13,2009. According to the Government, [t]he President has the authority to detain persons that the President determines 

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### SECRt1TfINOF6RN held that the President's authority to detain individuals under the AUMF includes, butis not necessarily limited to, "those who are part offorces associated with al Qaeda orthe 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 ofthis test, which are informally referred to

as the "partof' and the "support" prongs, are "validcriteriathat are independently sufficientto 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 ofal Qaeda, theTaliban, orassociated enemy forces. 

### See 

### Jt. List of Contested Issues, DocketNo. [663]. Although the D.C. Circuit "has yet to delineate the precise contours ofthe 'partof inquiry,"

### Barhoumi, 609 F.3d at 424, this Court is not without guidance. The Court ofAppeals has emphasized thatthe focus ofthis inquiry is whether an individual is 

### "functionally part of'

### a1 Qaeda, theTaliban or affiliated forces. 

### Bensayah v. Obama, 610 F.3d 718, 725 (D.C. Cir. 2010) (emphasis added). Forexample, while proofthat "adetainee was part ofthe 'command structure' ofal Qaeda [] satisfies the requirement to showthat he was 'partof al Qaeda," such a showing is not necessary. 

### Awad, 608 F.3d at 11 (rejecting claim that "there mustbe a specific factual finding that [the detainee] was part ofthe 'command structure' ofal Qaeda"); 

### Bensayah, 610 F.3d at 725 ("Thatan individual operates within 

### a1 Qaeda's formal command structure is surely sufficient but is not necessary to showhe 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 engagedinhostilities againsttheUnitedStatesorits coalitionpartners,including any personwho has committed a belligerent act, orhas directly supported hostilities, in 

### aid ofsuch enemy 

### armed forces. -14­ UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR PUBLIC RELEASE 

### SECREf/fNOFORN the Taliban, while sufficient, is also not required to demonstrate that anindividual is a "partof' suchenemy forces. 

### SeeAI-Bihani, 590 F.3d at 872-73. Ultimately, the determination whether an individual is a "part of'

### al Qaeda, the Taliban, or associated forces, "mustbe made on a case-bycase basis by using a functional rather a fonnal approach and by focusing upon the actions ofthe individual in relationtothe organization." 

### Bensayah, 610 F.3d at 725. 

### D. Burden of Persuasion Pursuant to the CMO thatthe Court adopted inthis 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 BayDetainee Litig., Misc. No. 08-442, CMO 

### § II.A (Nov. 6, 2008) ("[t]he government bears the burden ofproving by a preponderance ofthe evidence that thepetitioner'sdetention is lawful") (citing

### Boumediene, 128 

### S. Ct. at 2271) ("[nheextent ofthe showingrequired ofthe government 

### inthese cases is a matter to be determined."). The D.C. Circuit has affirmed that "apreponderance ofevidence standard is constitutional in evaluating a habeas petition from a detainee held at Guantanamo Bay, Cuba." 

### Awad, 608 F.3d at 10; 

### see alsoAl Odah, 611 F.3d at 14 ("It is now well-settled lawthat 

### a preponderance ofthe evidence standard is constitutional in considering a habeas petition from an individual detained pursuantto authority granted by the AUMF."). Accordingly, Al Kandari need not prove his innocence nor testifY onhis own behalf. The burdenofproofhas remained on the Government at all times. The Court has drawn no inference based on Al Kandari's decision nottotestifY inthis case. 

### AccordAwadv. 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 RELEASEUNCLASSIFIEDIIFOR 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 oraround August 2001, AI Kandari traveled to Kabul, Afghanistan. 

### Id, 15. He was subsequently captured while fleeing the mountains near ToraBora shortly after the feast of Ramadan, which the Courttakesjudicial notice occurred onoraround December 16, 200I. Ex. 139 at'7 (03/06/09 Decl. ofAI 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 Kandarijoined with and fought along side members ofal Qaeda, the Taliban, or associated forces, while in Afghanistan. Forthis reason, among others, the Government argues that it is more likely than not that Al Kandari was part ofal Qaeda, the Taliban, or associated forces, and is therefore lawfully detained pursuant to the President's authority under theAUMF. The record in this case is voluminous. TheMeritsHearing took place overfive days, and the parties have introduced approximately 230 exhibits into the record, consisting ofAI Kandari's own statements as well as the statements ofnumerous third-party sources and other

12 Cognizant that some ofthe 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 ofColumbia, 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 RELEASEUNCLASSIFIEDIIFOR 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-Decemberof 2001 are sufficient to demonstrate that it is more likely than not that Al Kandari was 

### part of forces associated with al-Qaeda and/ortheTaliban. The Court's discussion ofthe evidence in the record shall proceed 

### in two steps. First, relying solely onAl Kandari's own statements, both in his declaration and inhis statements to Government interrogators, the Court shall describe Al Kandari's version ofevents leading up to his**detention~** identify several ofthe reasons why Al Kandari's exculpatory version ofevents 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 bythe Government but shall nonetheless briefly discuss the remaining evidence in the record at the second and final step. 

### A. AlKandari's Own Statements The record now before the Court consists ofAl Kandari's statements made to Government interrogators dwingthe course ofhis detention as well as a declaration, sworn to under penalty ofperjury, submitted by Al Kandari in 2009 in support ofhis habeas petition. Al Kandari urges the Courtto exclude, or at minimum decline to consider, all ofhis statements made to interrogators and rely solely on statements made in his declaration. He advances four principal arguments in supportofthis assertion. Given the importance ofthe Government's evidenceregarding Al Kandari's statements to Government interrogators and the centrality of such statements to the Government's case, the Court addresses each ofthese arguments at the 

### outset. -17­ UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR 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 ofan interpreterto relay AI Kandari's otherwise admissible answers "does introduce a level oftechnical hearsay," this does not require the exclusion ofhis 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 whatprobative weight should be given to such statements. 

### Id. Second, Ai Kandari argues that the use ofan interpreter to facilitate his interrogations renders the Government's reports ofhis interrogation answers inherently unreliable as a category ofevidence. In support ofthis contention, Ai Kandari has introduced the Declaration ofKarin C. Ryding, Ph.D., Concerning Arabic InterpretationIssues, 

### 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). Althoughthe specific date ofPetitioner's ARB Proceeding is unknown, as Exhibit 121 is itselfundated and the Government did not introduce any further evidence on this point, Petitioner'scounsel indicated during the Merits Hearing that Al Kandari's ARB Proceeding would likely have taken place no earlierthan 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 Englishpriorto the date ofhis ARB Proceedings. Accordingly, although the Court finds that Al Kandari had someproficiency in English by the time ofhis 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 ofhis detention when he made the majority ofthe statements at issue. 14 It is ofcourse 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. Thatthey 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 "itcannot be presumed that Arabic interpretation in the interrogation ofdetainees, whether perfonned by a native speaker ofArabic or an American with some command of[Modem Standard Arabic], was fully accurate or reliable." Ex. 195 at' 32. reported comments, at most, merely supportthe same conclusionreached byDr. Ryding

- namely, that interrogation reports facilitated byaninterpreter should not bepresumed to be automatically reliable or accurate. 

### See Ex. 194. Butthe Courthas not presumed that any evidence inthese proceedings, including the interrogation reports ofAl Kandari's own statements, are either accurate or reliable. Rather, ithas reserved that determination to be made after considering all of the evidence in the record and hearing the parties' arguments related thereto. To the extentAl Kandari advances specific arguments that particular interpreter-related errors occurred, the Court shall consider such evidence and arguments in evaluating the probative weight ofthose 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[] notevenpurportto be a verbatim transcript ofwhat the interpreter said that [AI Kandari] said,"but ratherare written ina "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 renderthe reports inherently unreliable. 

### Cf Abdah

### v. Obama,

_ F. Supp. 2d_, 2010 

### WL 1798989,at

15 

### CfAlHarbi, 2010 

### WL 2398883, at *5 (considering specific interpretererror identified by detainee, where detainee explained that the use ofthe 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 apart ofa particular group).
-19­ UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR 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 ofaccuracy or reliability in this case. Rather, consistent with the Court'sevidentiary approach in this matter, theCourt shall consider the summary nature ofthe reports, and whetherAI Kandari has identified any specific statements that he claims are inaccurate as the result oftheir presentation in summary form, in reaching its decision about how much probative weight, ifany, to afford a particular piece ofevidence. Fourth and finally, Al Kandari broadly asserts inhis declaration that the interrogation reports containing his answers to Government interrogators are plagued with inaccuracies, the implication ofwhich 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 ofcontext that they are not true." Ex. 139 at

9 (03/06/09 Dec!. ofAl Kandari). The Court emphasizes that Al Kandarihas not argued in these habeas proceedings that any ofhis statements were the product ofabuse 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 evermade any statements that were the product ofsuch alleged abuse and coercion. 

### See Ex. 139 at 8 (03/06/09 Decl. ofAl 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 otherpeople I did not know," he does 

### not claim that such alleged efforts were successful- i.e., that he infact made false statements as a result ofthese alleged interrogation tactics. 

### See id Indeed, neither Al Kandari in his declaration norhis counsel at the Merits Hearing claimed that Al Kandari has evermade false orinaccurate statements because ofthe -20­ UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR PUBLIC RELEASE 

### SECRE'tYINOFORN Government's alleged abuse and/or use ofcoercive interrogation tactics. Moreover, when specifically asked by this Courtduring the Merits Hearing ifAl Kandari was advancing a claim ofabuse in this case, Al Kandari's counsel explicitly acknowledged that AI Kandari's generalized claims ofabuse are "notrelevant to what the Court has to decide." 10/21109 (PM) Mrts. Hr'gTr. at**13:10-12~** 

### see also 10/22/09 (AM) Mrts. Hr'g Tr. at 87:2-3 ("YourHonor, we're not claimingthat Mr. AI Kandari made false statements as a result ofcoercive tactics."); 

### id. at 93:22-94:8 ("The Court:
... But as I understand 

### it, you're not claiming that he was coercedto make false statements. Mr. MacLean: Your Honor, we don't have a basis to make that

- ... We're not making that claim, YourHonor."). Accordingly, there is no claiminthis case that, 

### as

a result ofcoercion, Al Kandari made statements to interrogators thatheknewto be false, such that his statements, although accurately reported, are unreliable. 16 

### AI Kandari instead argues thathe nevermade 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 resultofinterpreter error, among otherpotential possibilities, he conceded that Al Kandari himselfhas not proffered anexplanation for these

16 Given the stipulationby Petitioner's counsel that Al Kandari's broad claims ofabuse are notrelevant to this case, the Court need not detennine whether Al Kandari's claims ofabuse arereliable, 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 Petitionerhas not directed the Courtto any other evidence in the record, nor is the Court itselfaware ofany, that supports this claim by Al Kandari that he was abused by the United States. Moreover, the Court notes that Al Kandari's allegations ofabuse, which 

### are limited to a loneparagraph in his declaration, are entirely vague and conclusory innature, lacking any detail as to when and where such abuse allegedly occurred, the nature ofthe alleged abuse, and/or who 

### was responsible for the alleged abuse. 

### See ld. Nor does Al Kandarl 

### link the alleged abuse

### to any 

### ofhis statements as a

### product ofcoercion. -21­ UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR PUBLIC RELEASE 

### SEeM't1;'l'ff6F6ftP, alleged errors. 

### See 10/22/09 (AM) Mrts. Hr'gTr. at 91 :19-92: 

### l. Save for a few limited exceptions, see Ex. 139 at " 17, 28 (03/06/09 Dec!. ofAl Kandari), AI Kandari has not disputed the specific wording ofany particular statement he is reported to have made norhas he identified any particularphrases that he alleges are the result ofinterpreter error, see generally id Rather, Al Kandari has inmost instances simplyoffered a blanket denial that he made certain inculpatory statements. See Ex. 139 at' 9 (03/06/09 Decl. ofAl Kandari) ("As to these statements, I can only say thatthey 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 beenmade 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 withrespect to those statements that Al Kandari now denies havingmade 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 inhis 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 Awadv. 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 himselfdoes not dispute the accuracy ofmany ofhis statements

as reported in the Government's interrogationreports
- at least as to many ofthose statements that are exculpatory in nature. As is discussed below, Al Kandari states in his declaration thathe traveled to Afghanistan for charitable purposes; engaged solely in charitable activities while there; and was captured while attemptingto flee to Pakistan to avoidthe ongoing fighting in -22­ UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR PUBLIC RELEASE 

### SECRE"iINOIi'OItN Afghanistan. These are the samebasic assertions that he is consistently reportedto 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 Courtto reject as inaccurate any and all inculpatory statementshe made to interrogators during his detention. The Courtdeclines to do so. Nonetheless, insofar as AI Kandari offers specific indications that particular statements he is reported to have made are inaccurate orunreliable, the Court shall considerhis evidence and arguments in evaluating theprobative weight ofthose specific statements.!' Asthe above discussionreveals, 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 ofevents. 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 ToraBora. 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 notcredible. 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 onthe 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 RELEASEUNCLASSIFIEDIIFOR 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 underthe President's authority pursuantto the AUMF
. 

### .L Al Kandari's Version ofEvents Al Kandari states that he traveled to Pakistan 

### in June of2001 to visit SheikhMohammed WaH Allah Arrahmani, whom he describes as a respected Pakistani scholar. Ex. 139 at'3 (03/06/09 Decl. ofAl Kandari.); Ex. 7 (l0/27/04 AI Kandari SIR). While in Pakistan, he studied at SheikArrahmani's school. Ex. 139 at'3 (03/06/09 Decl. ofAl Kandari). After staying with Sheik Arrahamani inPakistan 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 hispriorhistory ofdoing charitable work, which includes traveling to other countries such as Pakistan and Bosniato assist with charitable projects. Ex. 139 at"2, II (03/06/09 Decl. ofAl 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 of2001 to head to Afghanistan. Ex. 139 at , 3 (03/06/09 Decl. ofAl**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 ofai-Waf a al-Igatha al-Islamia ("al-Wafa"). Ex. 139 at'4 (03/06/09 Decl. ofAI Kandari); Stip. ofFact 

## 1 16; Ex. 27 (11/20/03 Al Kandari IIR); Ex. 7 (10/27/04 AI Kandari SIR). Althoughthe 

### -24­ UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR PUBLIC RELEASE parties introduced evidence Ex. 25 (9/19/08 Decl.

## o~tip. ofFact

## 3~

, Al Kandari states inhis declarationthat he went to al-Wafabecause it was "[o]ne ofthe principal charitable organizations in Afghanistan at that time," and he "neverhad any reasonto 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 ofKabul. Ex. 139 at**~~** 4-5 (03/06/09 Decl. ofAl Kandari); Ex. 7 (l0/27/04 Al Kandari SIR); Ex. 27 (11/20/03 Al Kandari llR). Hetraveled to this unnamed village, arriving sometime inearly September 2001. Ex. 139 at 5 (03/06/09 Decl. ofAl Kandari); Ex. 28 (05/06/02 Al Kandari FD-302). While there, Al Kandari worked on a charityproject digging a well for the community. Ex. 139 at'5 (03/06/09 Decl. ofAl Kandari). He stayed in this village for approximately one and a halfmonths until Coalition forces began bombing Afghanistan, which the Courttakesjudicial 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 ofOperation EnduringFreedom). Atthat time, Al Kandari realized thathe should leave Afghanistan. Ex. 139 at 6 (03/06/09 Decl. ofAl Kandari). He leftthe village where hehad been staying and returned to Kabul. Ex. 139 at 6 (03/06/09 Decl. ofAl 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 suggestedthat he go to Jalalabad and offered to take him there for a large sum ofmoney. Ex. 139 at 6 (03/06/09 

### Decl. ofAl Kandari); Ex. 

### 28 (05/06/02 

### Al Kandari FD-302). Upon 

### arriving in JaJaIabad, Al -25­ UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR PUBLIC RELEASE 

### SECRt3't'>'1N6f16RN Kandari met a Saudi named Abdul Rahman 

### aI Kasimi, who permitted AI Kandari to stay at his house for approximatelytwo days. Ex. 139 at' 6 (03/06/09 Decl. ofAl Kandari); Ex. 28 (05/06/02 Al Kandari FD-302). Al Kandari explainsthat fighting 

### was breaking outeverywhere, and Arabs were being rounded up by police and militias to be handed overin exchange for money. Ex. 139 at 7 (03/06/09 Decl. ofAI Kandari). Hejoined 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. ofAI Kandari). The group walked for a few days in the mountains, but theywere 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 latertransferred 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 ofthe evidence inthe record and listened to counsel's arguments during the Merits Hearing, the Court concludes that AI Kandari'sexplanation forhis time in Afghanistan, as asserted inboth his declaration and in his statements to Government interrogators, is not plausible for three principal reasons. First, AI Kandari's version ofevents 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 ofevents suffers from several inconsistencies. First, AI Kandari's version ofevents suffers from several inconsistencies that have not been explained. AlthoughAI Kandari has maintained the same general explanation for his time inAfghanistan throughout his detention

- that he traveled to Afghanistan for charitable 

### -26­ UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR PUBLIC RELEASE SI!!CItE'f'ItNOFORN purposes; engaged solely incharitable activities while there; and was captured while attempting to flee to Pakistan to avoid the ongoing fighting inAfghanistan

- the specific details provided by AI Kandari regardinghis activitieshave varied and have even conflicted at times. For example, Al Kandari has offered conflicting statements as to the identify oftheindividual he spoke with atthe al-Wafa office in Kabul when he initially inquired aboutpossible 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 notpresent at the office at that time ofhis visit, Ex. 7 (l0/27/04 Al Kandari SIR); (b) a man whomhe believed at the time to be the Director of the Kabul al-Wafa office and whom he laterlearned 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_ atthe 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 longbeard 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 clarifythese inconsistencies, indicating only thathebriefly met with an unidentified official atthe Kabul al-Wafa office. Ex. 139 at 5 (03/06/09 Decl. ofAI 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 of2002, Al Kandari explained

18 

### In contrast to these statements admittingthat he met with Al Matrafi at the 

### al-Wafa office in Kabul, the Court notes that AI Kandari has at othertimes denied that he met AI Matrafi or otherwise knew ofhim prior to AI Kandari'sdetention 

### 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 thathe metAl 

### Matrafi for first time at Guantanamo Bay). -27­ UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEDffFOR 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 atthe Sheik's apartment, which was located near an unidentified Islamic school,for approximately two months before thentraveling to Afghanistan after learningthat there had been a famine in that country. Ex. 28 (5/6/2002 AI Kandari FD-302). Inboth an October 2004 interrogation and in his present declaration, however, Al Kandari stated that hehad actually been invited to Pakistan by Sheik Arrahmani, whom he

was able to identify by name, to study atthe Sheik's madrassa. Ex. 7 (10/27/04 Al Kandari SIR); Ex. 139 at' 3 (03/06/09 Decl. ofAl 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 notprovide 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. ofAI Kandari). Similarly, AI Kandari has variously stated that he went to 

### at· Wafato 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 pathimmediately afterthe bombing campaign began in October of200I. 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 unspecifiedperiod oftime. Ex. 27 (11/20/03 Al Kandari IIR). Al Kandari has otherwise indicated, however, that he left Kabul directly for lalalabad, which the Courttakes 

### judicial notice is 

### east ofKabul. Ex. 74 (05/23/02 Al Kandari FD-302) (stating he located ataxi -28­ UNCLASSIFIEDffFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR 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 whetherhe met with Anas Al Kandari ("Anas"), while in Afghanistan. Al Kandari repeatedly admitted to Government interrogators on multiple occasionsthat he met Anas during his visitto 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 militarytraining 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 [Anas

## Jdid." 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 ofthe interrogation reports that his admissions on this point were viewed bythe interrogators themselves as incredible or unreliable. It

### is also significant that Al Kandari neverrecanted his admission that he met and spoke with Anas at 

### aJWafa during any ofthe multiple interrogations in which he consistentlyadmitted 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 attemptto deny certain statements he made regarding Anas at some laterpoint. 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 RELEASEUNCLASSIFIEDIIFOR 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 orknowledge ofAnas orAnas' associate AI Hajeri. b. Al Kandari's version ofevents does not fully accoWlt for his time inAfghanistan. 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 ofKabul 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 only45 minutes to one hour by caroutside ofKabul, itis reasonable to infer thathis 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 interpretererror in an effortto correct anypossible perception of deceptive behavior.").

2Q While Al Kandari has generally indicated

- both inhis 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 takesjudicial notice occurredon November 

### 14, 200I. Ex. 

### 27 (11120/03 Al Kandari llR); Ex. 99 (Timeline ofOperation Enduring Freedom). Neitherthe 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 ofevents 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 afterthe October7, 

### 200I air strikes began and his alleged arrival in Kabul on November 9, 

### 2001, and an unexplained delay ofone 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 RELEASEUNCLASSIFIEDIIFOR PUBLIC RELEASE 

### SECItE't'IINOPORN cab driver a large sum ofmoney to drive him from Kabul to Jalalabad. The Courttakesjudicial notice that lalalabad is located approximately 90-100 miles east ofKabul. See Ex. 94 (map of Afghanistan with scale). Al Kandari has never suggested that the drive from Kabul to lalalabad took an unusual orextendedperiod oftime; absent any indication to the contrary, 

### itis reasonable to infer that this trip would have taken no more than one ortwo days. Accordingly, Al Kandari's

own statementsplace 

### him in Jalalabad by no laterthan October 14, 2001, approximately one week afterhis departure from the unnamed village on oraround October 7, 2001.21 Upon his arrival in Jalalabad, Al Kandari states that he stayed with al Kassimi 

### in Jalalabad for two days. He thenjoineda group ofArabs who were trying to flee through the mountains ofToraBoraand 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 onor 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. ofAl Kandari Decl.); Ex. 27 (11/20/03 Interrogation ofAl Kandari); Ex. 99 (Timeline of Operation Enduring Freedom). Al Kandari's own explanation for his activities in Afghanistan therefore creates a "missing"two months oftime 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 itselfevidence that undennines the veracity ofhis

21 As noted previously, the Court located one instance in the record inwhich Al Kandari stated that he initiallytraveJed 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 orresolve the deficiencies in AI Kandari's explanation, as outlined above. -31­ UNCLASSIFIEDIIFOR PUBLIC RELEASE_ .. _.----_ .... · - --- _. - - - - - . UNCLASSIFIEDIIFOR PUBLIC RELEASE 

### SECH'f¥/U6F6RN version ofevents. Al Kandari is by no means an unsophisticated individual, having studied Shari'alawat college in Ra's al Khayman, United Arab Emirates. Stip. ofFact 114. His interrogators repeatedly noted as much, observing him to be "verypolite and well-educated" and "smart with the attitudethat 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 therecord 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 toexplain 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 Afghanistanorto address any ofthe deficiencies identified above. See generallyEx. 139 (03/06/09 Decl. ofAl Kandari). While recognizingthat 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 credibilityof, his claim that he 

### was an innocent charityworker 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. AlthoughAl Kandari

-32­ UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR PUBLIC RELEASE 

### SECRE'flINOFORN maintains thathe 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 oranyone init 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. ofAl Kandari). Yet he is able to easily recall the

name ofa restaurant near which he stayed for two days while in Kandahar onhis way to Kabul in August of2001. See Ex. 27 (11/20/03 Al Kandari IIR) (explaining that he stayed at a hotel located nearthe Arianarestaurant 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 otherpeople" in 

### a notebook, which he states is now in the possession ofthe United States Government. Ex. 139 at , 5 (03/06/09 Decl. of

### A1 Kandari). The Government represented that it was unable to locate any suchnotebook 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 aninterrogationreport in which 

### A1 Kandari is notedto have been detained with a "telephone book." 10/19/09Mrts. Hr'g. Tr. at 35:18-24. Although counsel did not provide a specific citation atthat time, it appears that counsel intended to reference an FM40 madewith respect to Al Kandari and dated March 10, 2004, a date which the Court notes was well afterhis capture and subsequenttransferto United States' custody. This document, while not introduced into evidence atthe Merits Hearing, was attached as an exhibit to the Government's Amended Factual Return and indicates, in part, that Al Kandari "wasfound inpossession of
... a telephone book." The Government inresponse introduced Exhibit 222,

### an undated document whichpurports to relate to Al Kandari and lists ''none'' underthe heading "PocketLitter." The Government contendsthis disproves Al Kandari's claim thathe was detained with a notebook. The Court fmds that this document is not sufficientlyreliable to establishthat Al Kandari was detained without anypossessions. Thedocument is undated and does not indicate the source ofthe statementthatAl Kandari was detained with no pocket]itter nor is there anyindication 

### as tothe source ofthe document itself. The Government has not offered any supporting information explaininghowand when this document was compiled, who was responsiblefor its creation, and the source ofthe information listed therein. The Court, however, also finds that there is no support 

### in the record, other thanthe speculationof -33­ UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEOflFOR PUBLIC RELEASE 

### SECRE'ffJNOFOI@f Kandari maintained a notebook, as he asserts in his declaration, this fact does not negate the implausibility ofhis 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 halfmonths 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 charitablework, and that he "neverhad 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 himselfwas aware ofAbu Ghaith's presence at the al-Wafa office, although he maintains that he did not see or speak withAbu Ghaith at that time. Ex. 32 (11/20/03 Al Kandari IIR); cfEx. 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 statementthat he was told Abu Ghaith was also present at the aI-Waf a office in Kabul). Al Kandari has also admitted that Abu Ghaith is associated with al Qaeda, describing him in multiple interrogations as UsamaBin 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); cfEx. 139 at'27 (03/06/09 Dec!. ofAl Kandari). Indeed, Al Kandari himselfhascharacterized Abu Ghaith as a dangerous individual with extremist views. Ex. 38 (12/04/03 Al Kandari IIR). That

Petitioner's counsel, thatthe telephone book referred to in the March 20, 2004 FM40 is the same notebook discussed in Al Kandari's declaration. TheCourt 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 Petitionerurges, orthat AI Kandari was detained without any possessions, as the Government urges. The Court draws no inferences for oragainst Al Kandari based onthis evidence, but finds only that it is implausible that Al Kandari cannot independentlyrecall the information at issue. 

### -34­ UNCLASSIFIEOflFOR PUBLIC RELEASEUNCLASSIFIEDffFOR PUBLIC RELEASE

Abu Ghaith was present at the al-Wafa office in Kabul, and thatAI Kandari was aware ofhis presence there, undennines the credibility ofhis claim that he "neverhad any reason to suspect" 81-Wafa supportedorwas associated with al Qaeda.23 Similarly, AI Kandari's assertion that he, along with a group ofother noncombatants, "were tryingto flee the fighting through the Tora Boramountains" is not credible. While AI Kandari refers generally to the "ToraBoramountains," the Govenunent's uncontroverted record evidence explains that "ToraBora is the name ofa cave complex, approximately 9.5 

### km wide and 10 

### km long, embedded within a 100 mile stretch ofthe White Mountains ofEastem Afghanistan." Ex. 34A at I (I 9/10/09 Decl.

## o~ This cave complex was used in the 1990'sby Usama Bin Ladin as his headquarters, and he returned there in late 2001 after the fall ofthe Taliban regime in Afghanistantojointhe 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 Jalalabadto ToraBora took approximately "10 to 15 hours overdonkey trails through difficult terrain." 

### Id at 3. Its remote location, combined with the fact that the "Tora Boracave 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"UsamaBin Ladin's widelyknown call for fighters tojoinhim
... at Tora Bora" and his "robust operational security

23 The Court notes that AI Kandari also acknowledged to Government interrogators that he saw, 

### interalia, Hamid Madhi al Azmi, a.k.a. Abu JamiJa, and his brother Saad Madi Saad Moash 

### al Azmi (ISN 571), ak.a. AbuDaoud, atthe al-Wafa office. 

### Ex. 32 (11120/03 Al Kandari 

### IIR). The Government has introduced uncontroverted evidence that both AbuJamilaand 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 onthe present record that AI Kandari was aware ofthe al Azmi brothers' association with al Qaedaat the time he sawthem at the al-Wafa office in Kabul. In the absence ofsuch evidence, the Court declines to draw any inferences from AI Kandari's admission that AbuJamiJa and his brother Abu Daoud were 

### also present at the al-Wafaoffice during his visit. -35­ UNCLASSIFIEDffFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR 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 

### Qaedaor 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/orthe TaJiban, and that he also met and associated with several members and high-level leaders ofal 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 anoncombatant with no connections to or prior associations with al Qaeda orthe Taliban, would have been permitted not only to wander through Tora Bora, but to also meet and associate with members and high-level leaders ofal Qaeda and/or the Taliban while he was armed with aKalishnikov 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 ofthe Battle ofToraBora. CfAI-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 outsiderto stay at their front line campjustto see what the fighting was like. An

### outsiderwhose trustworthiness and loyalty are unknown poses athreat 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 Boramountains, an assertion which the Court finds is not credible. While 

### it appears that Al Kandari no longerrelies 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'gTr. at 49: 11-50:25; Ex. 34A (l

### 0119/09**~ecl.).** 

### In contrast, as 

### indicated above, the route through the mountains ofToraBora required adifficult 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 RELEASELlNCLASSIFIEDIIFOR PUBLIC RELEASE**S~eti'f,."'6F'6RN** findings, which are discussed in detail below, further undennine anddiscredit Al Kandari's claim that he was simply a noncombatant attempting to flee the fighting through the mountains ofTora 

### Bora. * * * 

### In summary, then, the Court finds that Al Kandari's explanation for his travel to and activities within Afghanistan is notplausible for the reasons set forth above. While Al Kandari does not bearthe burden ofprovinghis innocence, the Court's finding that his version ofevents is not worthy ofbeliefis itselfofsome 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-settledprinciple that false exculpatory statements are evidence

- often strong evidence

- ofguilt." Al-Adahiv. Obama,

_ FJd ---J 2010 

### WL 2756551, at *5 (D.C. Cir. July 13, 2010). The Government has also introduced evidence that the particularexplanation provided byAl Kandari inthis case is consistent with al Qaedacounter-interrogation tactics. See Ex. 50 (02/10/08 Decl. 

### of_

[d. at 2; see alsoAl-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 Qaedacounter-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 

### insufficientto find thatAl Kandari became "partof'the forces ofthe 

### Taliban or

### aI Qaeda, 

### the -37­ UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEOIIFOR PUBLIC RELEASE 

### St3CRE'fi1N61i'6RN Court fmds thatthis evidence is probative and shall be considered in the context ofthe other record evidence.**~.** Al Kandari's Admissions AiainstInterest Regarding His Activities and Associationwith Members ofal Oaeda. the Taliban. orAssociated Enemy Forces. While in Tora Bora The Courtturns next to considerAI Kandari's statements and admissions against interest made to Government interrogators regarding his activities and association with members ofal Qaeda, the Taliban, orassociated 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 ToraBorafor at least some portion, ifnot the entirety, ofthe Battle ofToraBora. The Court takesjudicial notice that the Battle ofToraBoratook place from December 6, 2001, through December 17,2001, with the most intense strikes occurring 

### in the last week offighting 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 afterDecember 16,2001,and asserted thathe had been traveling through the mountains ofToraBorafor a least a few days priorto 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 Boraduring the most intense portion ofthe Battle ofToraBora. Ex. 99 (Timeline ofOperation Enduring Freedom) (Ramadan began onNovember 17,2001 and ended on December 16, 2001). Significantly, AI Kandari has admitted that duringthis 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. Forthe reasons set forth below, the Court finds thatAl Kandari's statements and admissions as to these two points are bothreliable andcredible, 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 offorces associated with al Qaeda orthe Taliban. Inreaching this conclusion, the Court proceeds in three steps. First, the Court shall discuss Al Kandari's admission that he wasarmed with a Kalishnikov rifle while in Tora Boraand explain both why this admission is reliable and credible and why it is reasonable to inferthat the individual who provided Al Kandari with the weapon and training was morelikelythan not associated with al Qaeda and/orthe Taliban. Second, the Court shall discuss Al Kandari's admissionsthathe metand associated with several individuals while in ToraBora, describe the Government's evidence connecting these same individuals with al Qaeda and/orthe Taliban, and explain why bothAl 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 itselfto satisfY the Government's burden ofproof in this case.
a. AI Kandari 

### was given a weapon and taught howto 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 ToraBora. Ex. 28 (05106/02 Al Kandari FD-302). The statement, as reported in Exhibit 28, reads inrelevantpart as follows: He stated that he heard that arabs were being killed in Jalalabad, that the road to Peshawar was closed and thatpeople were fleeing to the mountains. He went with AlQasimto a mountainvillagewhichoverlookedJalalabad. AtfirstAlKandariwas happybecausehewastoldthattherewerefive hundredarabsinthevillage, although he saw only about twenty. In the village he saw a Kuwaiti, identified as Abu Sulaiman, who advised him that hewent to Afghanistanto get militarytraining. Al Kandari stated that this was during Ramadan. 

### He stated that he was infear and claimed that he did not know how to use a weapon, but that he was given a Kalishnikovandtaughthowto use

### it. He statedthatheknew some ofthe arabs there, including Mohammed Taha Mowala, Hamed Asulaiman and Abu Hafs. Bombing was gettingcloserto them, it became very scary. He saidthatpeople were creating routes to escape to JalaIabad. Ex. 28 (05/06/02 AI Kandari FD-302) (emphasis added). Atthe Merits Hearing, Al Kandari's counsel argued that this admission against interest is 

### -39­ UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR PUBLIC RELEASE 

### SI!}CM'f/fN8P8RN unreliable. Inparticular, counsel maintained that the statement is ambiguous and appears to indicate that Abu Sulaiman, not Al Kandari, was given a gun and taught howto 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 himselfhas neverdenied, 

### in his other statements to Government interrogators or in his declaration, that he was given a weapon andtaught howto use it while 

### in Tora Bora. See Ex. 139 (03/06/09 Decl. ofAl 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

neverclaimed thathe advised interrogators that the Kalishnikov rifle was given to Abu Sulaiman, and notto him.**2~** Moreover, contraryto his counsel's assertions, the statement by Al Kandari is not ambiguous. Each sentence ofthe paragraph cited above reports what Al Kandari stated to the Government interrogators, andthe 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 onnotice that the Government read his statement in Exhibit 28 as an admission that he, not Abu Sulaiman, was given a Kalishnikovrifle and was taught how to use it. The Government introduced into evidence Exhibit 29, a summaryreview of all information derived from FBI investigations ofAl Kandari priorto April 6, 2005. See Ex. 29 (4/6/05 FBI Admin. Review). As setforth therein, the FBI reported Al Kandari to have stated that he "sawa Kuwaiti man who advised that he had received military training in Afghanistan. Al Kandari told this manthat he was afraid and that he did notknow howto use a weapon. Al Kandari was given a Kalishnikov and taught howto use it at this time." 

### Id 

### -40­ UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR PUBLIC RELEASE reading ofthis paragraph is as follows: In the village he [AI Kandari] saw a Kuwaiti, identified as Abu Sulaiman, who advised

### him [AI Kandari] thathe [AbuSulaiman] wentto Afghanistantogetmilitary training. AI Kandari stated that this [his meeting with Abu Sulaiman] was during Ramadan. He [AI Kandari] stated thathe [AI Kandari] was in fear and claimedthat he [AI Kandari] did not know howto 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 theFBI follows inproducing 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 RELEASEUNCLASSIFIEDIIFOR 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 couldnot havebeenproduced 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 orupdated 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 inToraBora. 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 documentreports statements by Al Kandari that (a) "he went to Afghanistan in June, 2001," and (b) "in August, 2001,
... he wentto Qandahar, Afghanistan
...." Counsel argued that these statements are inherently contradictory and cast doubt on the reliability ofthe 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 

### notrelied on the statement thatAl Kandari traveled to Afghanistan in June of2001 in reaching -42­ UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR PUBLIC RELEASE SECMlYINOFORN its fmdings in this case, and it remainsunpersuaded that this alleged conflict is materia! to the reliability ofAl Kandari's uncontroverted admission against interest that he was inToraBora during Ramadan and thathe was given a Kalishnikov rifle and taught how to use it at thattime. 

### CfAbdah, 2010 WL 1798989 at *11 n.l6 (rejecting detainee's assertion thathis statements in intelligence reports are inaccurate, in partbecause "noneofthe minor discrepancies to which [the detainee] points
... are sufficiently importantto have bearing onthe Court's determinations regarding the main, relevant facts"). Accordingly, upon considering the evidence in therecord and theparties' arguments thereto, the Court finds that AI Kandari's uncontroverted admission that he was armed with, and trained onthe use of, a Kalishnikovrifle while in Tora Borais both credible and reliable.26 Finally, while the evidencedoes not specifY from whom Al Kandari receivedthe weapon and training, the Court finds that it is more likelythan 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 orinthe 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 . givena gun or found unreliable for the reasons described above.

evidence in the record information indicatingeitherthe identity ofthose responsibl orthe circumstances in which these statements were made, andthe Government has not provided further evidence onthis point. 

### See id The Court, however, need not conclusivelydeterminethe reliability ofthis statement on the present record, as the Government submitted_ solely for purposes ofrebutting counsel's argumentsrelating to Exhibit 28, arguments which the Courthas already rejected for the reasons set forth above.

_ is therefore unnecessary tothe 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, orassociated enemyforces, while in Tora Bora, during the Battle ofToraBora, at or around the same time he was given the Kalishnikov rifle. Itis reasonable to inferthat any individual who was inthis area during the height ofthe Battle ofTora Bora, and who was both armed with a spare Kalishnikov rifle and capable oftraining another person on its use, would have been a member ofor associated with

### at Qaedaorthe Taliban. The converse - that a noncombatant, unknownto 

### at Qaedaorthe Taliban, would have been permitted to wander through Tora Bora while providing arms and training to other individuals

- is simply implausible. 

### CfSulayman 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 strangerwould bepermitted to knowingly possess a deadly weapon while being pennitted to stay in a fighting force's campnear the front lines, the logical result of that reasoning is that the two individuals who allowed petitionerto 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 ToraBora. The Court next discusses Al Kandari's statements and admissions against interest regarding his associations with members ofal Qaeda, the Taliban, orassociated forces, while he

21 The Government also contends that Al Kandari was injured during the Battle ofTora Bora. As support for this assertion, the Governmentrelies largely onAl Kandari's own statement, in which he states that he sustained an injury to his right leg while in the mountains of ToraBora. 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 Borashortly after his capture. 

### Id. Al Kandari'smedical records from May of2002, onwhich 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 ornot 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 RELEASEUNCLASSIFIEDIIFOR 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 TahaMalu-Allah. The Government has in tum introduced evidence, both from Al Kandari himselfas well as from third-party sources, that each ofthese individuals was more likelythan not associated with al Qaeda and/orthe Taliban. Forthe 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 Qaedaand/orthe TabJiban are reJiable and credible. 

### Ibn SheikAI Libi. AI Kandari admitted the following in a statement to a Government interrogator: that he knew Ibn Sheik Al Libi; that he had met withAl Libi in ToraBora; and that Al Libi was leading a group offighters in ToraBora at the time Al Kandari met withhim. Ex. 38 (12/04/03 AJ Kandari 

### IIR).28 While Al Kandari subsequently denied these admissions in his

28AI Kandari objected to the reliability ofExhibit 38, and certain otherintelligence reports, on the basisthat the reports indicateAJ Kandari 

### was detained with a Kuwaiti passport, but none has everbeenproduced bythe Government andthe Government nowtakes the position that AI Kandari did not havehis passporton 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'sfailure to produce it during discovery. Alternatively, ifthe Government is correct that he was not detained with a passport, the statement in the reports to the contrary is inaccurate and is evidence ofthe inherent unreliability ofthese reports. The Court cannot determine which interpretation ofthe statement

- Petitioner's orthe Government's

- is most likely correct. As indicated previously, the Government's evidence regarding AI Kandari's pocket litter at the time ofhis detention is not sufficientlyreliable. 

### See supra p. 33 n. 22. In addition, while Government counsel speculated at the Merits Hearingthat 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'gTr. at 97:6-13, the evidence before the Court does**no~a** arto eitherconfirm orcontradict this assertion, 

### see, e.g., Ex. 58 at 8 

### (09119/08 Decl.o (noting onlythat "Intelligence reports include a source line that gives a escription ofthe source and their assessed credibility by the reporting officer."). Similarly, Al Kandari has offeredno independent evidence in support ofhisposition 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 ofbad faith, -45­ UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR PUBLIC RELEASE
declaration,

### see Ex. 139 at 28 (03/06/09 Decl. ofAl Kandari), the Courtdoes notcredit this denial. Al Kandari states in his declaration that: "Itis alleged that I have admitted knowing 'Ibn Sheikh**al~Libi** [and others]. I have neverknown any ofthese people. My interrogatorstold me that I must have knownthem, but I have always said that I did not knowthem, although Ihad heard ofthem while in detention at Guantanamo." 

### Id. While this statement appears to imply that Al Kandari's admissions onthis point were the result ofinterpreter error, based on a possible misunderstanding ofhis statementthat heknew ofAl Libi from his time in Guantanamo, the Court notes that Al Kandari admitted not only that he knew AI Libi, but also thathe met with him in Tora Bora while AI Ubi was leading a group offighters. Ex. 38 (12/04/03 Al Kandari IIR). Itis 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 ofAl Kandari's statementthat he did not know Ai Ubi, buthad only heard of 

### him. Moreover, Al Kandari clearlyhas a motive to deny his prior inculpatory admission to Government interrogators that he knewAl Ubi and associated with him while in Tora Bora. The Court therefore does not credit Al Kandari's blanket denial inhis 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 ToraBora, are both reliable and credible. To corroborate Al Kandari's own admission that Al Libi was leading fighters on behalfof 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 orabsence ofAl Kandari'spassport onhis 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 intelligencereports is inaccurate, it does not render the reports automatically Wlreliable and certainly does not castdoubt onthe reliability ofAI Kandari's specific, substantive admissions that he associated with members ofal Qaeda, the 

### Ialiban, ortheir associated forces, in 

### IoraBora. -46­ UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR PUBLIC RELEASE 

### SECRE'tYtN6Ji'ORN
was amember ofal Qaeda (or its associated forces) and that he was charged with leading fighters during the Battle ofTora Bora. See, e.g., 

### Ex. 1at 436 (National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission Report (2004» (listing Al Libi as "head ofjihadisttraining camp in**Afghanistan")~** 

### Ex. 72 (11/21/02 MuhammedNoor 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 sufficientlyreliable to corroborate Al Kandari's ownadmission 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 ofboth 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 thathe met with Abdul Qadous during his time inToraBora. Ex. 38 (12104/03 Al Kandari IIR). By Al Kandari's
own admission, Qadous, like Al Libi, 

### was leading a group offighters at the time Al Kandari met him in ToraBora. 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 Ihave admitted knowing
...Abdul Qadous [and others]. I have

neverknown any ofthese people. My interrogators told me that I must have known them, but I have always said that Idid notknow them, although Ihad heard ofthem while in detention at Guantanamo."). 

### Significantly, as with Al Libi, Al 

### Kandari admitted not only to knowing -47­ UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR 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). Forthe same reasons discussed above, the Court finds that it is similarlyunlikely that this admission resulted from interpreter error, as Al Kandari implies in his declaration, and therefore discredits Al Kandari's laterdenial 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 offighters 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 LatifNasir, a.k.a. Taha (ISN 244). In these statements, ISN244, a selfadmitted participant inthe Battle ofToraBora, identifies Qadous as a leader offighters at Tora Boraand 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 ofadmissions 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 giventhatthe 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 metwith an individual named AbuThabit while inthe mountains ofTora 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 Boratohelp the

### injured, id, 

### which supports a reasonable inference that Abu 

### -48­ LlNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR PUBLIC RELEASE 

### 8I!1eM!.."nepeItH Thabit was part of, supported, orotherwise associated with al Qaeda andlor the Taliban during the Battle ofIoraBora. The Court notes that Al Kandari has never denied orrecanted this particularadmission regarding Abu Thabit. Consideringthe 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 AbuThabit was, at the time, assisting andlor supporting 

### aJ Qaeda, the Taliban, or associated enemy forces. First, the Governmenthas submitted an intelligence report containing a statement by Al Kandari confinning that he knewAbuThabit. 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 inExhibit74 to the extent it confirms that he knew Abu Thabit.

-49­ UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEOIIFOR PUBLIC RELEASE S£CRE'f//NOFORN

Al Kandari objects to the Court'sreliance on this latter exhibit,_ on the basis that the documentremains classified and counsel has been unable to either showthe document to Al Kandari orto 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 notprejudiced by the Court'sreliance

# 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 notpreviously seen, as they are also repeated in other documents to which Al Kandari has had access. The Court therefore shall not exclude from consideration_ insofaras the exhibit is relied upon onlyto corroborate other statementspreviously disclosed to Al Kandari concerning Abu Thabit.29 TheCourtnotes, however, 

### that_ is not necessary

29 

### In addition to Petitioner'sgeneral objection 

### to_ based on counsel's inability to show ordiscuss the document with Al Kandari himself, Al Kandari has attempted toraise a newand slightlymore refined objection to the Court'sreliance**o~** in his post-hearing supplemental briefing submitted with respect to the Government's Amended Exhibits. 

### -50­ UNCLASSIFIEOIIFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR PUBLIC RELEASE 

### SSCftBTlINOFORN to its finding above regarding the reliability ofAl Kandari's admission as to his association with Abu Thabit while in Tora Bora, and theCourt would reach this same decision even ifit were to wholly exclude_from consideration. 

### Abu Hamza**al~Masri.** In an interrogation in May of2002, 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 TahaMalu-Allah, a.k.a. Abu Sulaiman, (see discussion itifrapp. 53-55), that aI-Masri was a member ofal Qaeda. Id AI Kandari has never denied his association with aI-Masri inany ofhis other statements. To corroborate these admissions, the Government has introduced two additional Specifically, AI Kandari argued for the first timeinhis post-hearing briefing that he is particularly prejudiced by the Government's reliance on, and counsel's inability to discuss with orshow 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. ofAl Kandari). The Court finds that this objection is without merit for three reasons. First, this particularobjection

# 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 Orderto a discussion ofthe Government's Amended Exhibits only, which exhibits do not**includ~** • Petitioner's attempt to raise this objection

# to_
inparenthetical citations in his posthearing briefingis thus inappropriate. Second, this argument directly conflicts with Petitioner's counsel'srepeated representations to the Court during the Merits Hearing that AI Kandari's general claims ofabuse 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 statementsthat Al Kandari himselfhas been able to see and discuss with his counsel, and was therefore not intended to applyto the statements

# in_this post-hoc characterization ofhis argument is without merit. Counsel made no such distinction at the Merits Hearing, and therelevant statements by counsel explicitly disclaimed any allegation that AI Kandari's statements made to Government interrogators were the product ofabuse. See discussion suprapp. 20-21. Third and most importantly, the Courtreiterates 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 thathe made false statements to Government interrogators as a result ofthis alleged abuse, and there is no evidence in the record 

### to support such aclaim. -51­ UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR PUBLIC RELEASE 

### SECRfi'FHN9F9RN statements from Al Kandari. First, the Government has directed the Courtto a statementby

### AJ Kandari confinning thathe knewan Egyptian named Harnza. Ex. 38 (12/04/03 Al Kandari IIR). According to the Governmenfsundisputed evidence, "AI-Masri" means "TheEgyptian." 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 thathe knew ai-Masri does not specify how Al Kandari knewaI-Masri orindicate 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 onthis latter exhibit,_the Court finds for the reasons explained above that Al Kandari is not prejudiced bythe Court's relianceon_. for the sole purpose ofcorroborating statements Al Kandari has 

### mad. statements which he has been pennitted to see and discuss with his attorneys. Al Kandari has had a full opportunityto review and respond to, and to have his counsel investigate, the substantive allegations upon 

### which the Court relies and for which 

### -52­ UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR PUBLIC RELEASE 

### SECM'f/1N6F6Rf4'

_ is corroborative evidence. Accordingly, the Court shall not exclude from consideration this exhibit_insofar as 

### itis relied upon onlyto corroborate other The Court notes, however, statements previously disclosed to AI Kandari that_ is not necessary to its finding above regarding the reliability ofAI 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 TahaMalu-Allah, a.k.a. Abu Sulaiman, while in the mountains ofToraBora. In an interrogation in early May of2002, Al Kandari admitted that he sawAbu Sulaiman, a Kuwaiti, in the mountains nearJalalabad. Ex. 28 (05/06/02 AI Kandari FD-302).30 At that time, Abu Sulaiman admitted to AI Kandari that he had traveled to Afghanistanto receive militarytraining. 

### Id. In an interrogation later that same month, Al Kandari again confinned that he had met Abu Sulaiman in the mountainsnear Jalalabad and that Abu Sulaiman was from Kuwait. Ex. 74 (05/23/02 Al Kandari FD-302). Al Kandari also advised that Abu Sulaimanhad told him that Hamza al-Masri, another individual whom AI Kandari had met while in ToraBora, was a member ofal Qaeda 

### Id. In addition to these statements made in Mayof2002,the Government has introduced yet another statement by Al Kandari confirming once again that heknew Abu Sulaiman, that Abu Sulaiman was a

30 As reported inExhibit 28, Al Kandari advised interrogators that he sawa Kuwaiti named sawAbu Sulaiman in a village in the mountains nearJalalabad and that he knew some of the Arabs in the mountains, including Mohammed TahaMalu-Allah; it is unclearifhe 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 interrogationsthat occurred in early May of2002. Regardless, Al Kandari subsequently confinned that Mohammed Taha Malu-Allah uses the kunya Abu Sulaiman and that the names referto the sameperson, 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 RELEASEUNCLASSIFIEDIIFOR PUBLIC RELEASE 

### SECItt:'fI/N6f'16RN Kuwaiti, and that AI Kandari had last seen Abu Sulaiman in theTora Bora mountains near Jalalabad priorto A1 Kandari's capture. Ex. 32 (11120/03 Al Kandari fiR). In this last interrogation, Al Kandari also explained that he knewAbu Sulaiman from Kuwait, havingvisited his home in Kuwait following Abu Sulaiman'sreturn 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 sometimebetween 1997 and 1999. Ex. 38 (12/04/03 Al Kandari IIR). While this statement confirms that Al Kandari knew Abu Sulaiman and had visited withAbu Sulaiman at his home in Kuwait, it contradicts Al Kandari'sprevious admissions insofar it states that he last

saw Abu Sulaiman in Kuwait and not in Tora Bora. 

### Id Upon consideringthe totality ofthe 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 bythe 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 opportunityto 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 Courtnotes, 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 excludethis 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 militarytraining is also reliable. Given this admission, combined withthe fact that Abu Sulaiman subsequentlymade his way to Tora Boraduring the Battle ofToraBora 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 memberof, 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 intenseportion, ifnotthe entirety, ofthe Battle ofToraBora. Second, during thattime, he was given a Kalishnikov rifle and provided training on howto use it, more likely than notby an individual who 

### was a memberoforotherwise associated with al Qaeda and/orthe Taliban. Third, duringthis time, Al Kandari also met and associated with several members and high-level leaders associated with al Qaeda and/orthe Taliban, many ofwhom were actively engaged in or

32 AI Kandari has also admitted to having seen ormet with two additional individuals while in the Tora Boramountains: (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 eitherofthese individuals were members of, orotherwise associated with, al Qaeda and/or the Taliban. The Government did not direct the Courtto any evidence in the record providing information as to Asulaiman's identity. Although the Govemment didproduce one exhibit indicating that Laith al-Libi is a memberofal Qaeda and/orthe Taliban, 

### see Ex. 123 (9/28/05 ISN 768 IIR), the Court finds that the exhibit does not have sufficientinternal indicia of reliability and no external evidence corroborating eitherthe information inthe document orthe reliability ofits source has been provided bythe 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 RELEASEUNCLASSIFIEDIIFOR 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 ToraBoraduring the height ofthe Battle ofToraBora, carrying a Kalishnikov rifle, and associating with several members and high-level leaders ofal Qaeda, the Taliban, or associated enemy forces, many ofwhom 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 ofal 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 ofthe enemy forces fighting at Tora Bora, and permitted to associate with high-level leaders ofal Qaeda, the Taliban, or their associated forces inToraBora, while these same individuals were actively engaged in fighting the United States and its Coalitionpartners, demonstrates that Al Kandari was known to and trusted by 

### al Qaeda and/or the Taliban (and associated forces). As the Courtpreviously observed, it defies common sense that 

### al Qaeda, the Taliban, ortheir 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 otherevidence with respect to Al Kandari's alleged activities while inTora Bora, which the Court does notreach for purposes ofthis decision. This evidence includes third-party witness statements that, 

### interalia, relay infonnation gained from unidentified second-hand sources, describe individuals who are named onlybytheirkunyas, or otherwise require far more inferences, and are far more attenuated, than the evidence onwhich 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 ofToraBoraraged on around them. To the contrary, that al Qaeda, the Taliban, and its associated enemy forces, permitted AI Kandari to associate with and be neartheir members while they were actively engaged infighting Coalition forces makes it more likely thannotthat he himselfwas also part oftheforces associated with al Qaeda and/orthe Taliban. CfSulayman, 2010 

### WL 3069568 at

## *18 ("[T]he Court simply cannot fathom 

### a situation whereby Taliban fighters would allow an individual to infiltratetheirposts near a battle zone unless that personwas 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 ofthe organization further supports the conclusion that it is more likely than not that Petitionerknowingly was a part ofor substantially supported al-Qaida"). Similarly, it is inconceivable that al Qaeda, the Taliban, ortheir associated enemyforces, would willingly arm Al Kandari with a Kalishnikov rifle and take the time to trainhim onits properuse, unless Al Kandari himselfwas part ofthese organizations. Cf Anamv. Obama, 696 F. Supp. 2d 1, 16 (D.D.C. 2010) ("AI-Qaidafed, sheltered, and protected [the detainee].
... The only logical explanation as to why al-Qaida did all ofthis for Petitioneris that they considered him a member. Petitionermusthave taken some affirmative action to earn that trust and assistance from such a clandestine organization."). The Court emphasizes that the evidencehere doesnot indicate merely that 

### AI Kandari possessed a weapon, but rather supports a reasonable inferencethat he was given the Kalishnikovrifle while in ToraBoraduring the Battle ofTora Bora and was trained on its use by an individual who was more likely than not associated with al Qaedaand/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 waspart ofal 

### Qaeda, the Taliban, 

### ortheir associated enemy forces. CfAl Odah, 611 FJdat 15·16 (rejecting ·57­ UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR PUBLIC RELEASE**S£C~'f/fl\(6P6RN** petitioner's "attempt toput aninnocuous gloss" over fact that he carried an AK47 in Tora Bora, given the particular circumstances in whichhe 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 orits Coalition partners, such evidence is not required. 

### Al Bihani, 590 F.3d at 872-73 (proofthat an individual actually fought for oron behalfof

### aI Qaeda

orthe Taliban, while sufficient, is also not required to demonstrate that an individual is a "part of' such enemy forces); cfKha/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. orcoalition forces, it is slicing the lawtoo thin to require such proof."). Nonetheless, given the evidence in this case, the Court notes that it is reasonable to inferthat AJ Kandari, like the other armed combatants around him, was actively engaged in fighting the United States and its allies. Indeed, the alternative

- thathe himselfwas armed, in ToraBora, during the Battle ofToraBora, in the company ofarmed 

### aI Qaeda, Taliban and associated fighters, but was simply an island unto himselfwith 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 thatthis detaineehimselfengaged in any fighting). Importantly, by Al Kandari's own admission, he was aware that the individuals he chose to associate with while in Tora Borawere members ofand were associated with al Qaeda and/or the Taliban. Thoughhis motives for coming to Afghanistan and his activities priorto the Battle ofToraBoracannot be conclusively determined onthe present record, at a minimum it is clear that Al Kandari knew bythe time ofhis stay in Tora Borathat it was more likely than notthat he 

### wasjoining forces with and lending supportto al Qaedaand/orthe 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 beeninitially motivated to travel abroad for innocent reasons, orthat an individual's knowledge

or intent was less than clear at inception ofhisjourney, does not defeat the Government's case. Instead, it is sufficient for the Government to prove by apreponderance ofthe evidence that, at
some point before capture, it is more likely than not that Petitionerknew he was becoming or intended to become apart ofor substantial supporter ofal-Qaidaand/or the Taliban."). Given the overwhelming weight ofthe evidence discussed above, Al Kandari's blanket denials in his declaration that he "never supported al-Qaida or any group that promotes violence" and thathe was "not apart ofany fighting groups" norever "associated in any way with any fighting groups in ToraBora," 

### 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 Courtfinds that this record makes it more likely than not that AI 

### Kandari became part ofal Qaeda, the Taliban, ortheirassociated enemy forces, and is therefore lawfully detained pursuant to the President's authority underthe AUMF. B. The Government's OtherEvidence 

### During the course ofthe 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 Courtfinds thatthis additional evidence submitted by the Government is not necessary to its decision that it is more likely than not that Al 

### Kandari was part ofal Qaeda, the Taliban, orassociated enemy forces. Nonetheless, the Court shall briefly address such evidence below.

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Nonetheless, asmade dearby the Court's finding above, the Government's evidenceregarding is not necessary tothe Court's conclusion thatAl Kandari is more likely than not part ofal Qaeda, the Taliban, or associated enemy forces. The Court therefore need not, and does not, assess the docwnent's reliability or 

### reachthe question of

### whatprobative value, 

### ifany, this evidence is 

### entitled to in the case at

### hand. -62­ UNCLASSIFIEDIIFOR PUBLIC RELEASEUNCLASSIFIEOIIFOR PUBLIC RELEASE**S:ECRE~/INOPORN** 2. The Remaining Evidence Theremaining evidence inthe record consists largely ofthird-party witness statements, newspaperreports, and other documentary evidence. Forthe 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 ofhis activities in Afghanistan in 200I, and therefore need notbe reached. Theremainder ofthe Government's evidence concerns aIJegations that the Court fmds

are unnecessary to its determination and which, for a variety ofreasons, the Court does not reach. This includes the Government's allegations that Al Kandari: made a previous trip (ormultiple 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 ofcertain high-level leaders and members ofal Qaedaand/orthe Taliban, including Usama BinLaden, 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 othermembers ofthe six-person cell that eventually carried out the October 8, 2002 attack on Faylaka Island; and was engaged inthe creation and disseminationofpropaganda on behalfofal Qaedaand/orthe TaJiban. The evidence submitted in support ofthese allegations, interalia: 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 Courthas relied in this case; and consists of information obtained from unknown sources orknown sources that the Government refuses to identify, and for which the Government otherwise has notprovided sufficient infonnation regardingthe circumstances inwhichthe statements were made. 

### -63­ UNCLASSIFIEOIIFOR PUBLIC RELEASEUNCLASSIFIEDIIFOR PUBLIC RELEASE**SE€H~YfNOFORN** III. CONCLUSION Becausethe Government has met its burden by apreponderance ofthe evidence in this case,the Court shall DENYAl Kandari'spetitionfor habeas corpus. Date: September i5, 2010 

### lsi COLLEEN KOLLAR-KOTELLY United States District Judge



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