UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA MOHAMMED EL GHARANI, ) ) ) ) Petitioner,



### v. GEORGE W. BUSH, 

### et

### at., Respondents. ) Civil Case No. 05-429 (RJL) ) ) ) )

# ,..., MEMORANDUM ORDER (January

# 1!L, 2009) Petitioner Mohammed el Gharani ("petitioner" or "el Gharani") is a detainee being held at the U.S. Naval Base at Guantanamo Bay, Cuba. He alleges that he is being unlawfully detained by Respondents President George W. Bush, Secretary ofDefense Robert M. Gates, l Army Brigade General Jay Hood, and Army Colonel Nelson J. Cannon (collectively "respondents" orthe "Government"). On December 17, 2008, the Court commenced habeas corpus hearings for petitioner el Gharani. That morning, counsel for both parties made unclassified opening statements in a public hearing. Petitioner el Gharani listened to the opening statements via a live telephone transmission to Guantanamo Bay, Cuba.

Pursuantto Federal Rule ofCivil Procedure 25( d), ifa public officernamed as a party to an action inhis official capacity ceases to hold office, the court will automatically substitute that officer's successor. Accordingly, the Court substitutes RobertM. Gates for Donald H. Rumsfeld.Thereafter, the Courtwent into a closed door session to hear each sidepresent opening statements that includedrelevant classified information. Upon completion of those statements, each side presented its evidence and arguments regarding various material issues offact in dispute betweenthe parties. Thatpresentation was completed in the early evening ofDecember 17, 2008, andpetitioner el Gharani decided thereafter not to testify on his ownbehalf. The next morning, the Courtreconvened to hearthe closing arguments ofthe parties. Atthe end ofthose arguments, the Court informedtheparties that it wouldhold a public hearing to announce its decision. A classifiedversion ofthis opinion setting forth in greater detail the Court'sreasoning will be distributedthrough the Court Security Office next week, togetherwith the finaljudgment. Before stating the Court'sruling, a briefstatement ofthe relevant factual and procedural history is appropriate. 

### BACKGROUND Petitioner el Gharani, a citizen ofChad and a native ofSaudi Arabia, left Saudi Arabia sometime in or around 2001. (Unclassified Factual Narrative ("Narrative"),**~** 1; Pet. Decl. at 5-6.) Petitioner alleges thathe traveledto Pakistan to study and improve his life, and remainedthere until his arrest in 2001. (Pet. Decl. at 1, 6.) Respondents, to the contrary, allege petitioner arrived in Afghanistan at some unspecified time in 2001, where, among other activities in support ofal Qaeda, he fought againstU.S. forces at Tora Bora. (Narrative,**~** 1.) Ultimately, the Government contends, Pakistani authorities pickedpetitioner up while he was fleeing from Afghanistan to Pakistan shortly afterthe 2battle ofToraBora. The Pakistani government turned him over to the United States in early 2002, (Narrative, 

### ,-r 15), and he was transferred to Guantanamo Bay, Cuba, where he has remained since his arrival. In the aftermath ofthe Supreme Court's decision inRasulv. Bush, 542 U.S. 466, 473 (2004) (holding that 28 U.S.C. § 2241 extended statutory habeasjurisdictionto Guantanamo), petitioner el Gharani filed his habeas corpus petition with the Court on March 2,2005. (Pet. for Writs ofHabeas Corpus [Dkt. #1].) As with the hundreds of other petitions filed around thattime, no action was taken by the Court on thatpetition until the Supreme Court finally ruled on June 12,2008 inBoumediene v. Bush, 128 S. Ct. 2229 (2008), that Guantanamo detainees are "entitledto the privilege ofhabeas corpus to challenge the legality oftheir detention." 

### Id. at 2262. In the month that followed the Boumediene decision, this Court met with counsel in el Gharani's case on two occasions to discuss issues unique to his case andprocedural issues attendant to the habeas process. On July 30, 2008, this Court ordered the respondents to file theirFactual Return for petitioner el Gharani by September 23,2008. (Briefing and Scheduling Order, July 30, 2008 [Dkt. #88].) On September 9,2008, respondents sought a thirty-day stay extension for the production ofthe Factual Return in this case. (Mot. for Partial Relief [Dkt. #114].) The Court granted respondents' motion

on September 23,2008 and set October 21,2008 as the new due date for the Factual Return. (Order, Sept. 23, 2008 [Dkt. #116].) Respondents complied with that order.

3On October 24, 2008, the Court met with counsel in chambers to discuss any issues raised afterreviewing the Factual Return. On October 31,2008, the Court issued its Case Management Order ("CMO") for the case. (CMO [Dkt. #135].) That order was essentially identical to the earlier CMO issued by the Court in Boumediene 

### v. Bush, No. 04-cv-1166, on August 27, 2008. OnNovember 6,2008, the Government filed an unclassified version ofits Factual Return. (Notice ofFiling ofUnclassifiedReturn [Dkt. #144].) Approximately three weeks later, on November 25,2008, petitioner's counsel filed a motion for leave to take discovery, making sixty-two separate requests for admissions and documents. (Notice of Filing ofMotion for Leave to Take Discovery [Dkt. #149].) The Courtheld a discovery hearing on December 1,2008 and granted some ofpetitioner's requests. On December 5, 2008, petitioner el Gharani filed his initial Traverse setting forth the factual basis for his opposition to the Government's return. (Notice ofFiling of Petitioner's Preliminary Traverse [Dkt. #168].) Seven days later, petitioner 

### el Gharani supplemented his Traverse. (Notice ofFiling ofPetitioners' Traverse Supplements [Dkt. #177].) That same day, the Court held a pre-hearing conference with counsel to identify the material issues offact in dispute between the parties and to discuss any legal or procedural issues that needed to be resolved before the habeas hearing commenced. On December 16, 2008, petitioner filed a second supplement to his Traverse. Based on a careful review ofthe Factual Return and the Traverse, and after a day and a halfofhearings onthe factual issues in dispute and the oral arguments ofthe 4parties, the following is the Court'sruling onpetitioner el Gharani'spetition. 

### LEGAL STANDARD Underthe CMO, the Governmentbears the burden ofproving, "by a preponderance ofthe evidence, the lawfulness ofthe petitioner's detention." (CMO,**~** II.A.) The Government argues that petitioner is lawfully detained because he is an "enemy combatant," who canbe held pursuant to the Authorization for Use ofMilitary Force and the President's powers as Commander in Chief.2 (Notice ofFiling of Statement ofthe Legal Bases for Lawful Detention as an Enemy Combatant [Dkt. #166].) The following definition of"enemy combatant," previously adoptedby this Court inthe Boumediene cases, governs the proceedings inthis case: An "enemy combatant" is an individual who was part ofor supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities againstthe United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid ofenemy armed forces. Boumediene v. Bush, 2008 WL 4722127, at *2 (D.D.C. Oct. 27, 2008). Accordingly, the question before this Court is whetherthe Governmenthas shown by a preponderance of

2 In response to the September 11thterrorist attacks, Congress passed ajoint resolution authorizing the Presidentto: [U]se all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, orharbored such organizations or persons, in order to prevent any future acts ofinternational terrorism against the United States by such nations, organizations orpersons. Authorization for Use ofMilitary Force, Pub. L. No. 107-40, §§ 1-2, 115 Stat. 224 (Sept. 18,2001). 5the evidence thatpetitioner el Gharani is being lawfully detained-i.

### e., that he is an "enemy combatant" underthe definition adopted by this Court. ANALYSIS The Government contends thatpetitioner el Gharani is an enemy combatantunder the definition adopted by this Court inBoumediene because he was "part ofor supporting Taliban or al Qaeda forces." Boumediene, 2008 WL 4722127, at *2. Inparticular, respondents contendthatpetitioner el Gharani: (1) stayed at an al Qaeda-affiliated guesthouse in Afghanistan; (2) received military training at an al Qaeda-affiliated military training camp, (Narrative,**~** 1); (3) served as a courier for several high-ranking al Qaeda members; (4) fought againstU.S. and allied forces atthe battle ofToraBora, (Narrative,**~** 1); and (5) was a member ofan al Qaedacell based in London. Petitioner strongly disagrees. He claims to have traveled to Pakistan from Saudi Arabia at the age of 14 to escape discrimination against Chadians inthat country, acquire computer andEnglish skills, and make a better life for himself. (Unclassified Opening at 10:22-25; Pet. Decl. at 1-2, 16-17.) He denies going to Afghanistan at all, let alone staying in an al Qaeda guesthouse and receiving military training at an al Qaeda-affiliated camp. (Pet. Decl. at 1.) He denies being atthe battle ofTora Bora and he denies ever being a member ofan al Qaeda cell based in London. (Pet. Decl. at 2, 16.) Unlike most ofthe other cases reviewed to date by this Court, the Government's evidence against el Gharani consists principally ofthe statements made by two other detainees while incarcerated at Guantanamo Bay. Indeed, these statements are either 6exclusively, orjointly, the only evidence offered by the Governmentto substantiate the majority oftheir allegations. In addition, unlike the other cases reviewed by this Court to date, the credibility and reliability ofthe detainees being relied upon by the Government has eitherbeen directly called into question by Governmentpersonnel or has been characterized by Government personnel as undetermined. Forthe following reasons, the Court concludes that the Government was unable to meet its burden ofestablishing by apreponderance ofthe evidence thatpetitioner el Gharani was apart ofor supporting al Qaeda or Taliban forces in the period preceding his arrestby Pakistani authorities in 200I because it was unable to either sufficiently establishthe reliability ofits detainee witnesses, orproduce sufficient other reliable evidence to corroborate them. Therefore, the Courtwill GRANT el Gharani's petition for a writ ofhabeas corpus. The Government's evidence is a mosaic ofallegations made up ofstatements by the petitioner, statements by several ofhis fellow detainees, and certain classified documents that allegedly establish in greater detail the most likely explanation for, and significance of, petitioner's conduct. Due to the unclassified nature ofthis proceeding, however, the Court is limited to the following description ofthe factual basis ofthe Government's case. First, with respect to the allegation that the petitionertraveledto Afghanistan and attended an al Qaeda-affiliated guesthouse, the Government relies exclusively onthe statements ofa particular Guantanamo detainee whose reliability had been characterized 7by the Government's own interrogators as undetermined. Unfortunately for the Government, his account ofpetitioner's attendance at particular guesthouses is plagued with internal inconsistencies. In the absence ofcorroborating evidence, and/or a more substantial basis to assess this detainee's reliability either in general or as to these particular allegations, the Court, applying Parhat

### v. Gates, 532 F.3d 834, 847 (D.C. Cir. 2008), can notrely on this detainee's statements as to this allegation. Similarly, withrespect to the allegation ofpetitioner's participation in the battle of Tora Bora, the Government relies exclusively on a different detainee to establish this fact. The credibility ofthis other detainee, however, has been seriously called into question by Governmentpersonnel who have specifically cautioned against relying on his statements without independent corroboration. The Government, however, did notproduce any such corroboration. Because participation in a battle against U.S. and allied forces would be such strong evidence ofenemy combatancy, it is particularly important that the Court satisfy itselfofthe reliability ofthis evidence. Thus, in the absence ofindependent corroboration from a reliable source, this Court can not rely on this detainee's statements to establish this allegation. With respect to the allegation that petitioner el Gharani attended an al Qaedaaffiliatedtraining camp, the Government, I suspect, believes they have providedjust such corroborating evidence. In support ofthat allegation, the Governmentpointed to statements ofboth ofthe detainees described above that allegedly place the petitioner at this particular military camp. Unfortunately, however, the detainees' stories, when 

### 8viewedtogether, are not factually compatible, each placing the petitioner at the camp at differentpoints in time, multiple months apart, during the year 2001. Again, because attendance atthis military training camp would be very strong evidence ofenemy combatancy, the Court needs either independent corroboration or a further basis to rely

on the accuracy ofthese two conflicting statements in orderto satisfy itselfofthe reliability oftheir allegation. Based on the internal inconsistencies in their accounts and the lack ofindependent corroboration, the Court is not able to do so, and, accordingly, will not accredit this allegation. Next, the Government contends thatpetitioner el Gharani was a courier for certain senior al Qaeda operatives. Once again, this allegation, ifproven, would be strong evidence ofenemy combatancy. Unfortunately for the Government, however, the classified information it relies upon - which did notinclude statements ofany other detainees

- was woefully deficientto establish this pointby a preponderance ofthe evidence. Besides having internal inconsistencies, the Government's evidence raises serious questions about whether certain alleged al Qaeda correspondence was even on the person ofthe petitioner as opposed to one ofeight other individuals who were turned

over to U.s. authorities at Kandahar atthe same time as petitioner. Accordingly, this allegation is also not established. Finally,3 with respectto the allegation that petitioner el Gharani was a member of

3The Government also contends thatthe petitioner was apoint ofcontact for known and suspected terrorists because his name and a Saudi Arabian phone number were found in the possession offour other detainees at the time oftheirtransfer into U.S. custody. In addition, his 9an al Qaeda cell based in London, once again the Government is relying exclusively on the statements ofthe detainee whose reliability is described above as being undetermined. Putting aside the obvious and unanswered questions as to how a Saudi minor from a very poor family could have even become a member ofa London-based cell, the Government simply advances no corroborating evidence for these statements it believes to be reliable from a fellow detainee, the basis ofwhose knowledge is

- atbest

- unknown. Again, because membership in an al Qaeda cell

- ifproven - would be strong evidence ofenemy combatancy under the Court's definition, the Government needed to advance some corroborating evidence to support such a bald and serious allegation from a source whose reliability is in question. Thus, notwithstanding the substantial and troubling uncertainties regarding petitioner's conduct and whereabouts prior to his detention by Pakistani forces, the Governmenthas failed to establish by apreponderance ofthe evidence thatpetitioner el Gharani was "part ofor supporting" al Qaeda or the Taliban prior to or after the initiation offorce by the U.S. in 2001. Simply stated, a mosaic oftiles bearing images this murky reveals nothing about the petitionerwith sufficient clarity, either individually or collectively, that can be relied upon by this Court. Accordingly, the Court must, and will,

name and the telephone number ofa family member in Saudi Arabia appeared among a list of prisoners found on a personal computer seized from the safehouse ofa particular senior al Qaeda operative. However, because the other detainees were inthe same prison as the petitioner in Pakistan, and he had allegedly provided his name and contact information for his family to the other prisoners through a prison guard so thathis family could knowwhere he was being held, petitioner's explanation is sufficiently plausible thatthe Governmentneeded to provide more evidence than it producedto meetthe minimum necessary thresholdto establishthis serious allegation. 10GRANT the detainee's petition for a writ ofhabeas corpus and order the respondents to take all necessary and appropriate diplomatic steps to facilitate his release forthwith. CONCLUSION For all the foregoing reasons, and for the reasons in the forthcoming classified version ofthis opinion, it is hereby ORDERED that petitioner Mohammed 

### el Gharani's petition for writ ofhabeas corpus is GRANTED. Itis further ORDERED that respondents are directed to take all necessary and appropriate diplomatic steps to facilitate the release ofpetitioner el Gharani forthwith. 

### SO ORDERED.

RICHARDJ. United States DistrictJudge

11