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### COUR~S CURI1YOFFICEF. (.;SO:

### OATE:-<...L.s....I..L-:.;:\i5~_ (SV"­ ­ _ 811SRBT tV 118P8RrJ UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA

HUSSAIN SALEM MOHAMMAD ALMERFEDI,Petitioner,


### v. BARACK OBAMA, President ofthe United States, el

### al., Respondents, ) ) ) 

### j ) ) ) ) ) ) ) ) ) Civil Action No. 05-1645 (PLF)

CLASSIFIED OPrNION Petitioner Hussain Salem Mohammad Almerfedi has been inthe custody ofthe United States since 2002, and has been held at the Guantanamo Bay Naval Base in Cuba since 2003. He has filed a petition for a writ ofhabeas corpus, by which he challenges the legality of his detention and asks the Court to order him released. The government asserts that it has the authority to detain petitioner pursuant to the Authorization for the Use ofMilitary Force, Pub. 

### L. No. 107-40, lIS Stat. 224 (200I), because: (I) while staying at al Qaeda guesthouses inIran, petitioner acted as an al Qaeda facilitator helping foreign fighters infiltrate Afghanistan;
(3) petitioner actively associated with lama'at al-Tablighi, anIslamic missionary organization, at the same time this organization provided logistical support and operational coverage to terrorist organizations and foreign fighters fleeing Afghanistan. Petitioner denies that he had any
ill. 

## II. 1111 i_I

UNCLASSrFIED/lFOR PUBLIC RELEASEUNCLASSIFIEDIIFDR PUBLIC RELEASE SEEM?;,/N8P8RP4 association with al Qaeda or otherterrorist groups andmaintains that his association with Jama'at al-Tablighi was innocent. In orderto determine whetherpetitioner's detention is lawful, the Court has carefully considered the documents admitted in evidence, the extensive legal briefs submitted by the parties, and the arguments presentedby counsel at the three day Merits Hearing held on March 3, 4 and 5, 2010. At the beginning ofthe Merits Hearing, petitioner listened bytelephone tothe unclassified opening statements presented by his counsel and by government counsel. Thereafter, the proceedings were closed. Counsel presented no witnesses at the Merits Hearing, butreliedexclusively ondocumentary ev;dence and the inferences they askedthe Courtto draw from the evidence. Based on the evidence and the argumentspresented, the Courtfinds that the government has not met its burden to showby a preponderance ofthe evidence that ithas legal authority to detain the petitioner. Accordingly, theCourt will grant the petition for 

### habeas corpus. I. BACKGROUND 

### A. ProceduralHistory Petitioner filed his petition for a writof

### habeas corpus onAugust 16,2005. Shortly thereafter, this case was stayed pending resolution ofthe question whether this Court has jurisdiction over 

### habeas petitions filed by Guantanarno detainees. Afterextensive litigation regarding these 

### habeas petitions, the Supreme Court's 2008 decision inBoumediene v. Bush fmally made clear that this Court does havejurisdiction to consider 

### habeas petitions from detainees held at Guantanamo Bay, and advised thejudgesofthe Courtthat U[t]he detainees in**8!~1tJj:'';'** rrOP8ltif

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6££1&1 JI 

### Ita, 8MF 

### these cases are entitled to a prompt habeas corpus 

### hearing." Boumediene v. Bush, 553 U.S. 723, ---' 128 S. Ct. 2229, 2275 (2008). Following the Boudmediene decision, the undersigned and most ofthe otherjudges ofthis Court agreed to consolidate their Guantmamo Bay habeas 

### caseS before fonner ChiefJudge ThomasF. Hogan for coordination and management. Judge Hogan issued numerous invaluable decisions that established a procedural framework for these unique
cases. The individualjudges retained the cases for resolution ofthe merits ofthe habeas 

### petitions. Decisions ofthe Supreme Courtand the D.C. Circuit have made plain that the government bears the burden ofestablishing that a Guantmamo detainee's detention islawful, and it must do so by a preponderance ofthe evidence. See Boumediene v. Bush. 553 U.S. at _, 128 S. Ct. at 2229; Awad v. Obama, No. 09-5351, slip op. at 18 (D.C. 

### Cir. June 2,2010); AIBihani v. Obama, 590 F.3d 866, 878 (D.C. Cir. 2010); see also In re Guantanamo Bay Detainee Litig., Misc. No. 08-0442, CMO § 

### ILA, 2008 WL 4858241 (DD.C. Nov. 6, 2008). The petitionerneed notprove his innocence or that his detention is unlawful. See AI Mutairi v. United States, 644 F. Supp. 2d 78, 86 (D.D.C. 2009). Rather. the government must provethat it is more probable than not that he was part ofor substantially supported the Taliban or aI Qaeda Al Odah v. United States, No. 09·5331, slip op. at 10 (D.C. Cir. June 30, 2010) (preponderance ofthe evidence standard is constitutional in evaluating a habeas 

### petitionfrom Guantanamo Bay detainee). The Supreme Court's decision in Boumediene left open the scope ofthe government's detention authority. See Boumedienev. Bush, 553 U.S. at _, 129 S. Ct. at 2240.
6£ I Ii itSi

### 3m: 3

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BElial;; 1451 0ld1 In its wake,judges ofthis Court have issued numerous thoughtful opinions addressingthe scope ofthegovernment's legal detention authority. See, u" Gherebi v. Obam!!, 609F. Supp. 2d 43, 62-71 (D.D.C. 2009); Harnlily v. Obama, 616 F. Supp. 2d 63, 68-77 (D.D.C. 2009). The court of appeals recently resolved some ofthe different approaches taken by thejudges ofthis Courtin its decision in Al-Bihani v. Obarna, 590 F.3d 866 (D.C. Cir. 20I0). The court concluded that the government could lawfully detain "an individual who was part ofor supporting Talibanor al Qaeda forces, orassociated forces that are engaged in hostilities against the United States or its coalition partners," or "an individual [who] 'substantially support[s]' enemy forces." Id. at 872. This two-pronged definition

- both membership and substantial support- includes ''those who
are part ofal Qaedaorthe Taliban orthose who purposefully and materially support such forces in hostilities against U.S. Coalition partners." Id. The court ofappeals concluded that ''OOth prongs are valid criteria that are independently sufficient" tojustifY detention. 

## Is!. at 874.' The government filed an amended Factual Return in this case on October 29, 2008. Petitioner filed a Traverse on May 29, 2009. The parties engaged in discovery and motions practice both before and afterthe filing oftheTraverse. On August 5, 2009, over petitioner's objection, the Court granted the government's motion to stay the case onthe ground thatpetitioner had been approved for transfer from Guantanamo Bay. See Sealed Memorandum Opinion and Order, Ok!. No. 183 (Aug. 5,2009). The government was unable to secure

Becausethe Court concludes that the government has not shown by a preponderance ofthe evidence that petitioner had any association with or provided any support to al Qaeda, it need not address the question ofwhat level ofinvolvement and intent is necessary before someone is determined to be a part ofor to substantially support a terrorist organization. IlIl!lMlYIi fl818MI

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### petitioner's transfer by December 1,2009, however, and the Court then lifted the stay and set a schedule for briefing onthe merits and a Merits Hearing. The Court thereafter orderedthe government to providepetitioner with additional discovery. The government was unable to complete production ofthis discoveryby the date ofthe Merits Hearing, butpetitioner decided to 

### proceed with the Merits Hearing eventhough the discovery to which he was entitled had not been fully produced.Prior to the Merits Hearing, the Court issued an Order stating that it would admit hearsay evidence, as required by the court ofappeals' decision in AI-Bihani. See Almerfedi v. Obam!!. Civil Action No. 05-1645, 2010 U.S. Dis!. LEXIS 17706 at·2 (D.D.C. Mar. 1,2010). See also AI Odah v. United States, slip op. at II (hearsay evidence is admissible ifitis reliable). The Courtexplained that 

### itwould accord any evidence that had been created and maintained in the ordinary course ofbusiness a rebuttable presumption ofauthenticity. See Almerfediv, Obama. 2010 U.S. Dis!. LEXIS 17706 at ·2. Butthe Court denied the government's request to give such evidence a presumption ofaccuracy. It

### statedthat instead it would "considerthe accuracy, reliability, and credibility ofall ofthe evidence presented on a case-by-case basis 

### in the context ofthe evidence as a whole and the arguments presented by counsel during the merits hearing.
. .. The proponent ofany piece ofevidence must establish its accuracy, reliability, and credibility." See id. at ·3.
III. DISCUSSION The government argues that petitioner is detained lawfully because he was part of al Qaeda. More specifically, the government asserts that petitioner was an 

### aI Qaeda facilitator OBeMT;; HorOld I

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### 5UNClASSIFIEDflFOR PUBLIC RELEASE
81!l!RI!Til1I8P81i1l who frequented al Qaeda guesthouses in

## Ir~d helped fighters infiltrate Afghanistan from Iran to fight against coalitionforces. The government also asserts that petitioner's active association with Jama'at al-Tablighi

- anIslamic missionary organization that the government says provides logistical support and operational coverage to terrorist organizations

- furtherjustifies petitioner's lawful detention. The government urges the Court to view the legality ofpetitioner's detention by looking at thetotality ofthe evidence, which the Court has done. The Court has "evaluate[d) the
raw evidence" to determine whether it is "sufficientlyreliable and sufficiently probativeto demonstrate the truth ofthe asserted proposition with the requisite degree ofcertainty." Bensayah v.**Obam~** No. 08·5537, slip op. at 13 (D.C. Cir. June 28, 2010) (quotingParhat v. Gates, 532 FJd 834, 847 (D.C. Cir 2008». When individual pieces ofevidence are unreliable, however, the Courthas notpresumed their contents to be true in order to buttress the presumed accuracy ofother flawed evidence. See, U, AI-Adah; v. Obarna, Memorandum Opinion, Civil ActionNo. 05-0280,2009 U.S. Dist. LEXIS 75108 at °17-18 (D.D.C. Aug. 21,2009). 

### A. Petitioner's Version of Events Petitioner was bornin Yemen in 1977. See Joint Exhibit ("JE") 76, Declaration ofHussain Salem Mohammad Almerfedi ("Almerfedi Decl.'') 2. According to petitioner, he lived with hisparents in Aden, a city in southern Yemen, until September2001. See id. 2,8. Petitioner's family is poor. See id. 4. While in Yemen, petitionerheld a series ofoddjobs.**S~CItE** I j) hOPURiC

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### 6UNCLASSIFIEDIIFOR PUBLIC RELEASE**S~CRET** /I fl8YSDX Petitioner claims that he wanted to leave Yemen and travel to Europe in order to find freedom, tolerance, and opportunity and to make a better life for himself. See Almerfedi Dec!. 'll8; see also JE 9, FBI 302 ofMay 27, 2003 Interrogation ofPetitioner ("FBI 302") at I; JE 11, Criminal InvestigationTask Force Summary ofDecember.003 Interview ofPetitioner ("CIT Summary"). Petitioner explained that it would have been difficult for him to obtain a European visa while in Yemen. SeeAlmerfedi Decl. 'll9; FBI 302 at 2. Hisplan, as he explains it, was to travel from Yemen to Pakistan, a trip thatwasrelatively inexpensive and easyto make, andthen to associate himselfwith the Islamic missionary group Jarna'atal-Tablighi ("JT'), which he hoped would fund and facilitate a missionary trip for him to Europe. See Almerfedi Dec!. 'lll0; FBI 302 at 2; CIT Summary. According to petitioner, he flew from Sana'a, Yemen, to Karachi, Pakistan in early September 2001. See Almerfedi Decl. 'll9; FBI 302 at 2. He stayed in Karachi for approximately four daysbefore traveling to Lahore, Pakistan. SeeAlmerfedi Dec!. 'll16; FBI 302 at 2; CIT Summary. Upon arriving inLahore, petitioner went to the 

### JT headquarters, where he stayed for approximately two andone halfmonths. SeeAlmerfedi Dee!. 'll'll 18, 21; FBI 302at 2-3. Petitioner's plans for traveling to Europe withJT were derailed bythe September 1 1,2001 attacks onthe United States. SeeAlmerfedi Dec!. 

## 'll1 15,22. Petitioner states that while atthe JT headquarters in Lahore he associated with a See Almerfedi Decl. 'll18; FBI 302 at2-3; CIT Summary. Petitioner explains that he paid.to smuggle him to Greece via Iran and Turkey. SeeAlmerfedi Dec!. 'll22; FBI 302 at 3; CIT Summary. According to petitioner,.muggled s8Li&i;; "Oi OMe

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### 7UNCLASSIFIEDIIFDR PUBLIC RELEASE
Udal II 1161 Sid: petitioner over the border into Iran inNovember 2001. See Almerfedi Dec!. ""23,24; FBI 302 at 3. They traveled to Tehran and then on to Mashad, a city in Northeast Iran near the Afghanistanborder. SeeAlmerfedi Dec!. "25; FBI 302 at 3. Petitioner statesthat he remained in Mashad with.forabout onemonth, without taking any further steps towards continuing on hisjourney to Europe. See Almerfedi Dec!. "26; FBI 302 at 3. Petitioner further statesthat he and.eventuallytraveled backto Tehran in December 2001 or January2002 where petitioner
was immediately arrested by the Iranianpolice. See Almerfedi Dec!. " 27; FBI 302at 3-4; CIT Summary. Petitioner has been in custodyever since, held first by the Iranians, then for almost a year in Afghanistan, and finally, since 2003, by the United States. See Almerfedi Decl. ""32, 33.


### B. Al Qaeda Guesthouses inIran; PetitionerasAl Qaeda Facilitator As explained by the government, a network ofguesthouses exists in Iran and Afghanistan, among other countries, which are used by al Qaeda aspartofits terrorist mission.

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### nN6f6RN

The Court notes that all ofthe government's background infonnation regarding al Qaeda guesthouses and theirfunctions, includin the declaration of ofthe Defense Intelligence Agency, see JE4, relates to guesthouses in Afghanistan or Pakistan, and does not specifically describe ordiscuss guesthouses in Iran. Neither partyhas presented the Court with any evidence ofwhether 

### aI Qaeda guesthouses inIran
are like or unlike those in Afghanistan and Pakistan.'

2 The court ofappeals noted inAl-Bjhani that "evidence supporting the military's reasonable beliefof [visiting al Qaedaguesthouses inAfghanistan] withrespect to a non-citizen seized abroad during the ongoing war on terror would seem to overwhelmingly, 

### ifnot definitively,justify the government's detention ofsuch a non-citizen." Al-Bihani v. 

## abam!!, 590 F.3d at 873 n. 2. While proofthat an individual stayed at an al Qaeda affiliated guesthouse in Afghanistan orPakistan,in the context ofthe facts and circumstances offered in evidence, may suggest that that person is a part ofor substantially supports al Qaeda, the government 

### has not proven that the word "gueslhouse" is a tennofart such that its use would always imply an al Qaeda affiliation. This uncertainty about the use ofthe word "guesthollse" is all the greater given the signifIcantcomplicationscausedbyArabic translation. See JE 85, Declaration ofKaren C. Ryding, Ph.D., ConcerningArabic Interpretation Issues. In addition, the government has not offered any evidence to show that a guesthouse in Iran is run in the same manner or serves the samefunction asthe Afghani orPakistani guesthouses desribed by 81l@M.r: !l8F8ft!1

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SPlCI&l " 1461616I 

### TheCourt,however, need notresolve the difficult question whether proofthat petitioner frequented Iranian guesthouses by itselfwould be adequate tojustifY his detention, because, as explained below, it finds that the government has not shown by a preponderance of the evidence that petitionerever stayed in an Iranian guesthouse, let alone one run by or affiliated with 

### aI Qaeda. The government'sdirect evidence thatpetitioner stayed in 

### aI Qaeda-sponsored guesthouses in Iran and from there was 

### a facilitator for foreign fighters entering Afghanistan is comprised entirely ofstatements made by one other detainee at Guantanamo Bay
- al-Jadani (lSN 230), Much ofthe government's case, therefore, turns onwhether ISN 230 is a reliable
source and whether the intelligence documents before the Court are reliable representations ofhis statementsorhis knowledge. The parties have presented extensive evidence about the general reliability ofISN 230 and about the credibility ofreports created by his interrogator. Rather than 

### draw a general conclusion as to the credibility ofISN 230as a witness, the Court has examined in detail each,ofthe six reports relied upon by the government to determine whether the particular information contained in each should be credited. An additional wrinkle presents itselfin the Court's evaluation ofthe utility of these intelligence reports. When ISN 230 refers to the man the government identifies as petitioner, he typically refers to him 

### as "Hussain A1-Adeni." The government argues that the Court should treat this name as synonymous with petitioner. Deciding to do so is not a straightforward conclusion, however. Arabic names often include "nishas," a secondary name derived from a person's home region or city. See JE6, Declaration 0
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.- Names, Alisas, Kunyas and Variants at 2-3. Thus, for example, many people from Aden, petitioner's home city, might go by the name "AI-Adeni." Hussain is, ofcourse, petitioner's first name. At times ISN230 states that the AI Adeni to whom he refers is detained at Guantanamo. See 

### JE 20. Even though it ispossiblethatISN 230 was referring to petitioner when he described the actions of"HussainAl Adeni," the Court cannot be certain ofthis conclusion. Hussain is a very commonname, and "AI-Adeni" could refer to any manfrom the city ofAden. J There is no evidence that ISN 230 was ever shownphotographs ofpetitioner or that ISN 230 and petitionerkneweach other priorto their detention at Guantanamo. Norhas the government presented evidence that petitioner referred to himselfas "AI-Adeni" orthat anyone else did so. While the Court will not discount entirely the documents in which ISN 230 refers to AI-Adeni, it cannot without further corroboration be certain that they refer to petitioner. See Mishal v. United States, 644 F. Supp. 2d 78, 96 (D.D.C. 2009) (finding identification ofdetainee unreliable because source referred to detainee by a different name). I. The First Set ofIntelligence Reports The first document on which the government relies is a summary interrogation report ("SIR'') ofa interrogation ofISN 230. In that summary, ISN 230 is reported to have said that another detainee, Harnza AI-Gaetti (or AI-Qaiti), told him that in December 2001 AI-Gaetti and others weretraveling back and forth from Afghanistan to a guesthouse in Tehran. See IE 18 at 1. ISN 230also told his interrogator that, according to a group ofunnamed

, For example, a man named MarwanAI-Adeni is reported to have supervised one ofthe guesthouses 

### in Tehran. See JE 28 at 1. 31!eRlS I " 1461 om4

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tJlS£ItE I JI Hel Olli, detaineeswho arrived inGuantanamo in 2004, people staying ill the Tehran guesthouse were facilitators for al Qaeda fighters going into Konar, Afghanistan. See id. According to this group ofdetainees, both Tolfiq Nassar Ahmed AI-Bihani (ISN 893) and "Hussein ((AI-Adeni)), anAIQaida facilitator".were staying at the guesthouse. Id. The second document relied uponby the government is a summary of

# a"
_interrogationof[SN 230, which contains similar information. According to that summary,

the unnamed group ofdetainees who arrived 

### in Guantanamo in 2004 reportedly told ISN 230 that "those inresidence at the guesthouse [in Tehran) were facilitators for Mujahideen going into Konar, Af. Detainee (SA-893 ((AI-Bihani)) Tolfiq Nassar Ahmed) and Hussein ((AI-Adem)), an AI-Qaida facilitator, lived at the guesthouse in Tehran, 

### lr." JE 17 at 

### I. Thethird document relied upon by the government is an summary ofan interrogation of[SN 230. It also reports that ISN 230 said that "Harnza Al Gayetti and Abu Hassan tmveled to Iran together and founded two small guesthouses in Tehran. They had two people at the guesthouses who 

### are now here at Gtmo: ISN 893 and Hussain AI Adani, who is in



### _ JE 20 at 

### I.' The source for his information is not identified. 

### See id. Each ofthe three documentsjust discussed is a summary ofaninterview of ISN 230. These "summary interrogation reports" ("SIRs")are always

See 

### JE 47, Declaration of


# • Neitherpetitioner nOr the government has verified whether ornot petitionerwas, in fact, in Guantanamo at the time ofthis interrogation. SJ!eItBT)j Uep6ltff

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8!!t!kf!1' J) Tf81J8ltii (Sept. 19,2008) at7; JE 71, Declaration of 

### Dec!.") , 6. The

### final document in this group relied upon by the government is not an SIRbut an "intelligence information report" ("IIR"). AnIIR is a report written ifan intelligenceofficial determines that sufficient useful intelligence has been derived from human intelligence; it generally is to bedisseminated more widely in the intelligence communitythan SIRs and synthesizes informationfrom one or more SIRs. See JE 47 at 6-7. The IIRrelieduponby the government contains virtually the same informationthat is contained in the three SIR's,except that for the first time ISN 230purpor1edly provides dates for petitioner's allegedactivities, stating that Al Adeni lived at the Tehran guesthouse from late 2000 into early 200I. See JE 26. These dates do not appearin any ofthe SIRs produced for the earlier interrogations ofISN 230. 

### Infact, this is the only document presented to the Court that places petitioner 

### in Iran before the Fall of200I. Assuming that ISN 230 actually made the statement about these dates, it must have been during an interrogation for which the goverrunent has not produced a summary contemporaneously prepared bythe interrogator. The Court would have more confidence in the accuracy ofthe statements contained in this IIR ifithad access to all ofthe underlying documents from which it waS produced or if there was any evidence in the record 

### to corroborate them. 

### g.

# _ecl., 7.interviewed ISN 230 approximately I00 times). The Court finds these four intelligence documents inherently unreliable. The only
source identified for ISN 230's information about petitioneris an unnamed group ofdetainees who arrived in Ouantanamo in 2004. Not only does ISN 230 not identify who they are, but there**8~elt!i** II I40JlOkJ4 13

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SEEM" f/ r:f8f6Rft 

### isno information provided aboutthe source or sources ofthe group's information. It could 

### be based on personal knowledge, hearsay, multiplehearsay, orrumor. Although hearsay evidence is admissible inthese proceedings, the Court still must determine whether the hearsay statements
are accurate, reliable and credible. Information that came from an unnamed group ofdetainees, for which the original source cannot be pinpointed, amounts to no more thanjailhouse gossip, if that, and cannot serve as the basis for petitioner's detention. The Courtwill not credit any of these four documents. In any event, the government has not shown by a preponderance ofthe evidence that the petitioner was ever in Iran before the Fall of2001, so it is most unlikely that petitioner could have been in a guesthouse in Tehran in 2000 orearly 2001. While the governmentpoints outthat petitioner has not produced any evidencecorroborating his assertion that he didnot leave Yemen until early September 2001 and didnot arrive in Iran until November 2001, information which does seem obtainable, the government has not produced any evidence to the contraryother than the unreliable IIR that purports to place petitioner in Iran prior to November 2001.' And, 

### it must be remembered, theburden ofproofis on the government throughout these proceedings.

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SECd1 j) 14OFVItU 2. Two Additional Intelligence Docwnents The Court now turns to two additional intelligence documents relied on by the government and derived from later interrogations. In each ofthese documents, ISN 230 purports to be relaying infonnation that he learned directly from petitioner. To support the reliability of these documents, the government points out that from October 2003 through June 2004 ISN 230
was housed in the same cell block as was petitioner, and that in April andMay of2006 they shared the samerecreation yard.**S~** 

### IE73, Declaration of**~~** 3-5. The government argues that this proximity enabled ISN 230 10 speak directly with petitioner and that the Court therefore should credilthe information that ISN 230says he learned from petitioner. In addition, because the statements purportedly madeby petitioner to ISN 230 concern the same matters that were the subject ofthe hearsay statements inthe four docwnents discussed in Part III.B.I, the governmentattempts through these additional documents to bolster the reliability and trustworthiness ofthe others. In a September 22, 2006 summary ofinterrogation report, ISN 230 is reported to have said that he had the opportunity to speak with Hussain Al-Adeni, who told ISN 230 that he had been housed in a guesthouse in Tehran and thattherewere two guesthouses in Tehran, one of whichwas supervised by Harnza AI-Qaiti. SeeIE 19 at 

### 1. There is otherinformationabout this guesthouse reported in the SIR, butISN 230 doesnot suggestthat petitioner wasthe source for this additional infonnation.'

, The government points outthat by September 2006, whenthis SIR was prepared, ISN 230 knew the circumstances ofpetitioner's capture - hereported to the interrogatorthat Hussain AI-Adeni was captured inIran, that laterthat year he was returned to the Afghans, and 3r:lREj " 146'Ol\rq

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SECKEl;; nOI,OIti, IIR based on interrogationsofISN 230 reports that ISN 230 An told his interrogator that "accordingto detainees SA-893, Tolfiq Nassar Ahmed «AI-Bihani)), and YM-I015, Hussein Salem «Mohammed)), there were two guesthouses in Tehran
.... Harnza Al-Qaiti supervised the second guesthouse
... According to detainees SA-893 and YM·IOI5, AI-Qaiti received moneyfrom Bin Laden for the maintenance ofboth guesthouses
.... Sometimeduring 2002 and 2003, SA-893, Tolfiq Nassar Ahmed «AI-Bihani)), and YM-IO 15, Hussein Salem «Mohammed)), lived in the second guesthouse for lowerranking fighters." JE 28 at 

### 1. 7 This IlR also slates: "In approximately 2002, YM-IOI5 wascaptured in IR .. ' Later in 2002, YM-I015 wasreturned to the Afghans and the Afghans turned YM-l015
over to the Americans." Id. at 2. ISN 230 did not describepetitioner as a "facilitator" ineither ofthesereports. Although these documents do not suffer from the samehearsay problems as do the first four intelligence reports, there are other reasons to questiontheir accuracy and reliability. Only in the IIR is it slated that ISN 230 everreferred to petitioner by his given name, but inthisreporthe states thatpetitioner was in the Tehran guesthouse during 2002 and 2003. It was, however, virtually impossible for petitionerto have been in a Tehran guesthouse during those years. It is undisputed that the Iranian authorities arrestedhim ineither December

that the Afghans turned AI-Adem over to the Americans

- which corroborates the government's argument that references to Hussain AI-Adeni are references to the petitioner. See JE 19 at I. On the otherhand, ISN 230misreports the datethat petitioner arrived in Guantanarno as 2002, when in fact it was 2003. Seeid.
7 YM-IOI5 is petitioner. 3f:CREI II UbI ORJ4

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seeMlY:: ffSFSlHf 2001 orJanuary 2002 and that he 

### has been incustody ever since. Indeed, in a laterparagraph of the same IIR, ISN 230 is said to have reported that YM-I0 15 was captured in Iran in 2002 and then, "laterin 2002," he was returned to the Afghans and ultimately turned over to the Americans. Id. at 2. See also JE 34 at I (interrogationnotes ofpetitioner interview stating that petitioner was captured inTehran in January 2002); 

### JE 50 at 5 (intelligence summary statingthat detainee identified by government as petitioner was arrested in Tehran inDecember2001). While the Court will accept the government's suggestions that ISN 230 simply was mistaken when he mentioned calendar year 2003, or that his interrogator misreported what he said, or that the person who synthesized various SIR's summarized them inaccurately, this mistake raises additional questions about the credibilityofISN230 orthe reliability ofthe interrogator orother government personnel. Inany event,that leavesthe government to argue only that petitioner could have been in a Tehran guesthouse "fora portion of2002" Transcript ofMeritsHearing at 57 (Mar. 3,2010)

-- in other words, during the month ofJanuary 2002. This one-month window is a slender reed on which to base the argument that these two documents support petitioner's detention. The governmentessentially urges the Court to accept as true only the information in these interrogation documents that supports petitioner's detention, while discounting information that conflicts with its theory for detention. In addition, th IIRattributes the infonnationprovided by ISN 230 to statements allegedlyjointly orseparately made to him by petitioner and by SA-893, AI-Bihani. But AI-Bihani's own statements under oath are inconsistent with what ISN 230
SEeltM " fttnbib.

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SEEiai " i401 6idC reports that AI-Bihani and petitioner allegedly told him about their stay 

### in Iranian guesthouses in 2002 and perhaps 2003. Significant doubt exists as to whether ISN 893 was ever in a Tehran guesthouse, orcertainly that he was in one at the same time as petitioner. SeeJE 91, Declaration ofToffiq al Bihani 128 (stating that he wasarrested almost immediately after crossingthe border into Iran within the weeks or months after September 11, 2001); JE 92 at 2 (intelligencereport of FBI interrogation in which AI-Bihani denies being in 

### Iran prior to 2002). AI-Bihani's statements that he was in a Tehran guesthouse in 2000, JE 52, and in guesthouse after September 11,2001,JE 53, hardly support the government's theory that he and petitioner stayed together in
a Tehran guesthouse in 2002 or possibly 2003. The documentsjust discussed 

### are the government's only direct evidencethat petitioner stayed in al Qaeda guesthouses in Tehran in 2002. For the reasonsjust explained, however, they cannot be credited. The government has identified other evidence that it maintains corroborates ISN 230's statements. Specifically, it points out that petitioner admitted to being in Iran in late 2001
or early 2002. See Almerfedi Dec!. "25,27. It notes that ISN 893, Al-Bihani, stated that he
was in the same prisoner exchange between Iran and Afghanistan in mid-March 2002 

### as Hussain AI-Adeni, which the government argues would put AI-Bihani in Iran at the same time as petitioner. SeeJE 30 at I. ISN 893 also has admitted tomeeting with Hamza AI-Qaiti, which the government says provides some corroboration for ISN 230's statements that ISN 893 stayed in Al-Qaiti's guesthouses in Tehran with petitioner. See 

### JE 53 at 2. Furthermore, as the government correctly points out, petitioner's story that he stayed in Mashad, Iran for one month
SECKEl If hOFblG'

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SEEn 1 Ii hOI OM4 without making any additional effort to continue hisjourneyto Europe is, at the very least, perplexing. Mashad is much closer to the border with Afghanistan than it is

### to the border with Turkey. Onthe other hand, petitioner has consistently asserted that he was in the control of Muhammad Ali, he did not speak Farsi, and hehad little experience with foreign travel, much less with illegal border crossings. Unfortunately for the government -- which bearsthe burden of proofin these proceedings

-- these snippets ofcircumstantial or "corroborating" evidence add little to the government'sunreliable direct evidence that petitioner stayed in Tehranguesthouses in2002, or, indeed, at any time.
3. Was Petitioner an Al QaedaFacilitator? As for the government's contention that petitioner was an al Qaedafacilitator in Iranhelping fighters infiltrate Afghanistan, the government has provided no direct orpersuasive circumstantial evidence other than petitioner's alleged association with Iranian guesthouses and the description ofpetitioner as a "facilitator"inthe unreliable documents discussed in Part IJl.B.l. Ifpetitioner had been a "facilitator" for al Qaecta, other witnesses likely would have known about it and wouldhave beenable to testify about his work for al Qaeda. The governmenthas presentedno such evidence, no evidence ofpetitioner's motive, no evidence that he had any history ofanti-western or pro-al Qaeda beliefs, and no evidence that he associated with those who advocated such beliefs. Nor is there any evidence thatpetitioner, who is uneducated, is a sophisticated traveler ordocument forger

- skills that likely would be necessary for al Qaeda facilitators. Furthennore, it is implausible that al Qaeda would post petitioner to a

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### guesthouse in Tehran, because it is undisputed that he does not speakFarsi.' Mostimportantly, having failed to prove that petitioner stayed at al Qaeda guesthouses in Iran in 2000 and early 200I, the argument that he facilitated the movement offoreign fighters intoAfghanistan while residing in such guesthouses during that period falls ofits own weight. 9 

### A handful ofinterrogation reports, based upon at least one, and frequently numerouS levels ofhearsay, which may not even be referringto petitioner, which report implausible allegations alongside a few arguably incriminating ones, and which are not supported by significant additional corroborating evidence, do not showby a preponderance ofthe evidence that petitioner stayed ina Tehran guesthouse, much less that he was a facilitator for al Qaeda.

The government makes much ofthe fact thatpetitioner was carrying a significant amount ofcash when he was arrested inTehran, but he explained that he had saved the money for years inorder to fmance his immigration to Europe. Theparties dispute the amount ofcash that petitioner would have had at the time he was captured ifit were his own savings and not al Qaeda funds, but this dispute does not aid the Court in its resolution ofthis issue. 9 

### Thegovernment's argument that petitioner was an al Qaedafacilitator is even weaker with respect to its assertions that petitioner also stayed in al**Qa~in** 

### Iran in 2002 and (perhaps) 2003. Neither the September 22, 2006 SIR nor 

### the_ IIR describe petitioner as a facilitator during this period. SECktI Ii i40FOft.'l4

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### D. Petitioner'sAssociation with Jama 'at al-Tablighi The government argues that, in conjunction with its other evidence, evidence of petitioner's association with Jama'at al-Tablighi at the same time this organization was helping foreign fighters flee Afghanistan supportspetitioner's legal detention. The government does not argue that petitioner is lawfully detained "simplybecause he admitted to associating with JT." Respondent's Oppositionto Petitioner'sMotionfor Judgment onthe Record and Memorandum in Support at 23. Rather, it argues that the circumstances ofhis involvement with IT "are consistent with other evidence in this case establishing thatpetitioner was anal Qaedafacilitator who frequented al-Qaedaguesthouses inIran Id. See also Transcript of Merits Hearing at 12 (Mar. 5, 20I0). IT is a complex organization. The Islamic scholar, Dr. Qamar-ul Huda, explains that IToriginated inBritish Indiaas a response to aggressive conversion campaigns by Hindu fundamentalist and Christian religious groups. See 

### JE 78, Letter from Qamar-u1 Huda at 1. Its emergence was part ofa broader trend ofIslamic revivalism or the reaffmnation offaith and Muslim cultural identity. See id. IT hosts an annual meeting in Raiwind, Pakistan that attracts approximately one million people from 85 countries, the second largest gathering ofMuslims after the pilgrimage to Mecca. See id. at 3. The teachings ofJT emphasize internal change, not political doctrine. See id. at 2-3. The government's own intelligence documents describe IT as a "legitimate Islamic missionary group." _see also JE 32 at I (describing missionaryactivities of JT). The government argues, however, that although IT functions as a legitimate organization,

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:!litRE i j) HepOlt1t Islamic extremists worldwide, including al Qaeda, have infiltrated it and have used it as a cover for terrorist activities. The United States government has classified 

### JT as

# a_ Terrorist Support Entity, which means that the government believes it has "demonstrated intent and willingness to provide financial support to terrorist organizations willing to attack U.S. persons or interests, orprovide witting operational support to_ terrorist groups." JE47, at 25 (Sept. 19,2008). An intelligence report. Declaration 0 states that the "Tablighi Jamaat organization has been supporting Islamic terrorist groups in South and Southeast Asia under the cover ofconducting religious activities. The group is closely aligned with other Pakistani terrorist organizations and the AI-Qaida network." 

### JE 31 at 3. 12 The Court hasno reason to question any ofthese assertions. According to the government, the organizations or persons who have infiltrated JT
are terrorists and use the organizationas a cover to assist the movement offighters between Pakistan and Afghanistan. The government presented statements from three other detainees who admit that they were assisted by IT in some way during or after time spent fighting on behalfof 

### aI Qaeda in Afghanistan. ISN 702, who the government asserted trained at the al Qaeda training camp al Farouq, admitted that he stayed in JT's Center in Lahore, Pakistan for two to three months for free, much like petitioner did. See JE 62 at 2." ISN.toldthe FBI that after

12 The sources for this report arethe websites ofthree news organizations

- the PakTribune, the Asia Times, and the South Asia Analysis Group. See JE 31 at I.
13 ISN 702 later disavowed training ataI Farouq, but, like petitioner, he did not disavow staying at theJT Center in Lahore, Pakistan. See PE 7, Declaration ofRavil Mingazov 16 ("I was with the Muslims ofthe Tablisghi for approximately two months in early 2002. I was never a member oftheTablighi organization. I never heard orobserved anything that would lead me to believe that the Tablighi was involved in any way with militant orterrorist activity."). BI!CIdB "**[lOIFi~ntrf** 

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### spending approximately two months fighting for the Taliban in Afghanistan, he fled to Pakistan and stayed in a house in Lahore mn by ITmembers, which he described as "agroup that shelters and gives aid to Muslims inPakistan attempting to return to their own countries." See JE 61 at 3. An interrogation report ofISN 703 reports him telling his interrogator that JT 

### members assisted himand other TaJiban fighters fleeing Afghanistan by giving themPakistani clothes, instructing themto shave their heads, and driving themto Lahore and housing them there. See JE 33 at 2. ISN 839 also described the assistance that JTprovided himin leaving Afghanistan, and getting to Lahore, Pakistan; hetold his interrogator that JT

### members were in Mghanistan assisting foreigners with travel out ofthe country. See JE 32 at 2. The government argues that the details ofpetitioner's association with JT 

### are sufficiently suspicious to raise doubts abouthis story that he only approached the organization in order to secure a trip to Europe. Instead, it argues, petitioner's association with JTcorroborates the assertion that petitioner was an al Qaeda facilitator who provided the kind ofassistance to fighters fleeing Afghanistan described by ISN 703. See Transcript ofMerits Hearing at 12 (Mar. 5,2010). The government points outthat while still 

### in Yemen, petitioner claimed to be a member ofJT

### when he bribed a guard at the Pakistani embassy in order to receive a visa and when he purchased his airplane ticket at a travel agency in order to receive a discount. SeeJE 9 at 1-2. Furthennore, even though heis not religious and had no interest in participating in Jrs
Inthe time since the Merits Hearing in this case, Judge Kennedy granted ISN 702's petition for a writ of

### habeas corpus, and, in the accompanying Opinion, concluded that the government had not shown by a preponderance ofthe evidence that ISN 702 stayed at al Farouq or thathe fought on behalfofany terrorist organization. See AI-Harbi v. Obam!!, Civil Action No. 05·2479,2010 U.S. Dis!. LEXIS 59666 at ·46, 61-62 (D.D.C. May 13,2010). 8B8IlBT;';' Pf8F6Rff

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## "snorf religious activities, see Almerfedi Dec!. 

## 1 17, petitioner stayed at the JT Center in Lahore for approximatelytwo and onehalfmonths beginning in September 2001. See id. 21; see

## illso JE 9 at 1-2. The evidence that the government has presented strongly suggests that individual JT 

### members orthose who had infiltrated JT assisted foreign fighters traveling between Afghanistan and Pakistan, and served as a cover for terrorist groups, and that al QaedaorTaliban members have stayed at the JT 

### Center in Labore or in other JT

### facilities. The government 

### has not presentedevidence, however, that leads the Court to conclude that such assistance was official or otherwise known JT policy, oreven that a substantial number ofthose at the Center in Labore were associated with al Qaeda or assisting those associated with 

### aI Qaeda. JT 

### is by all accounts a massive organization, and any assistance provided by its members to al Qaeda orthe Taliban, may have been the work ofindividual members orfactions, not the organization as a whole. Thus, while it certainly appears more likely than not that some elements ofJT, including
some at the JT 

### Centerin Lahore, provide financial and other support to Islamic terrorist groups, this premise does not lead to the conclusion that petitioner did so. Petitioner has not provided a convincingexplanation for why he stayed 

### in the JT 

### Center for two and one halfmonths without pursuing his stated goal ofgoing to Europe, what he
was doing during that period oftime, or even why he did not seek out otherArabic speakers aside from Mohammad Ali. SeeAlmerfedi Decl. 18, 21. Nevertheless, the strange and unexplained circumstance ofthese two and one halfmonths does not lead to the conclusion that petitioner worked as an al Qaeda facilitator while at the JTCenter or thereafter at al Qaeda
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guesthouses. See Bensoyah v. Obama, No. 08-5537, slip op. at 17 (D.C. Cir. Jillle 28, 2010) (questions about a petitioner's whereabouts or explanations may illldermine his credibility but do not by themselves "tiell him to al Qaeda or suggestll he facilitated anyone's travel during that time''). While the government has cast suspicion onpetitioner's explanation and raised doubts about parts ofpetitioner's story - a story whichhe has told consistently since the time ofhis capture - the government simply has not shown by a preponderance ofthe evidence that petitioner hadany ties to al Qaedaor to the Taliban or that he ever stayed at an al Qaeda guesthouse inIran To the extent that evidence about petitioner's association with JT was offered to "corroborate the [government's] evidence that establishes petitioner's role as a facilitator for 

### a1 Qaeda in Iran," Respondents' Motion for Judgment on the Record and Memorandum in Support at 12, itfails utterly to do so. There is no evidentiary basis on which to conclude that petitioner's association with JT orhis stay in its Lahore Center, either standing alone or in conjilllction with other evidence presented by the government, are adequate tojustifypetitioner's detention. See Abdah v. Obama, Civil Action No. 04-1254, 2010 U.S. Dis!. LEXIS at '43-44 (D.D.C. May 26,2010) (refusing to draw inculpatory inference from detainee's association with 

# m·

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## nNOFOAN 

### IV. CONCLUSION For the reasons stated above, the Court concludes that the government has failed to meet its burden ofshowing by a preponderance ofthe evidence that petitioner's detention is lawful. The Court will grant the petition for a writ of

### habeas corpus. An Order consistent with this Opinion will issue this same day. 

# Qui. 

# -«- :J;:.A PAUL L. FRIEDMAN United States District Judge

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