Hatim v. Bush

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SAEED MOHAMMED SALEH HATIM et al.,

Petitioners, Civil Action No.: 05·1429 (RMU)

v. Re Document No.: BARACK OBAMA eT aI.,

Respondents.

MEMORANDUM OPINION

GRANTING PETITIONER HATIM'S PETITION FOR WRIT OF HABEAS CORPUS

I. INTRODUCTION

The petitioner, Saeed Mohammed Saleh Hatim ("petitioner Hatim" or "the petitioner"), has been detained at the Guantanamo Bay Naval Base in Cuba (uGTMO") for over seven years based on the government's suspicion, heretofore untested in any domestic court, t~at he acted as part of the al-Qaida apparatus in Afghanistan. More than three years after his capture and transfer to GTMO, the petitioner filed a petition for writ of habeas corpus challenging the legality of his detention and asking the court to order him released forthwith to his home in Yemen. Since filing his petition, he has remained behind bars for over four years while this court, the Circuit and the Supreme Court have grappled with various novel issues raised by the GTMO detainee li tigation. Not all of the questions rai sed in this wave of litigation have been answered yet; but the Supreme Court in Boumediene v. Bush, 128 S. Ct. 2229 (2008), clearly ruled that the court has jurisdiction to consider the detainees' habeas petitions. prompting the court to begin to rule on the merits of the petitions. Thus. nearly eight years after his capture, the

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court conducted a hearing on the petitioner's claim of unlawful detention on August 17 and 18, 2009, and the matter is now ripe for resolution.

The government contends that the petitioner "trained with, lived with, operated under the command of, and worked for al-Qaida and Taliban forces and their affiliates." Govt's Mot. for J. on the R. at 1. More specifically, the government alleges that the petitioner (1) trained at an al-Qaida terrorist camp, id. at 27-29; (2) stayed at al-Qaida and Taliban-affiliated safehouses and'

(3) operated under the command of al-Qaida and the TaJiban at the battlefront against the Northern Alliance, id. at 30-31; (4)

~d (5) was identified by a witness as having fought in the battle of Tora Bora against the United States and its coalition partners, id. at 32-34.

The government's allegations rest almost entirely upon admissions made by the petitioner himself - admissions that the petitioner contends he made only because he had previously been tortured while in U.S. custody. Significantly, the government does not contest the petitioner's claims of torture; rather, it argues that the court should credit the petitioner's statements notwithstanding those claims. The government's justification for detention also rests heavily on a third-party identification by a GTMO detainee whose reliability has been seriously called into question by the court as well as by GTMO intelligence officers.

Upon consideration of the record, the parties' extensive submissions and the arguments presented during the merits hearing, the court concludes that the government has failed to persuade the court that the petitioner's detention is lawful. Accordingly, the court grants the petition for writ of habeas corpus.

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II. FACTUAL & PROCEDURAL BACKGROUND

The petitioner, a 33-year-old citizen of Yemen, was captured in Pakistan in or about November 2001. Govt's Mot. for J. on the R. at 4.

and has been held at GTMO since June 2002, see Traverse at 8. He filed his habeas petition on July 20,2005. See generally Habeas Pet. Be~use related cases awaited resolution by the Circuit on appeal at that time, see generally Khalid v. Bush, 355 F. Supp. 2d 311 (D.D.C. 2005); In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443 (D.D.C. 2005), the court granted the government's motion to stay the proceedings, see Mem. Order (Aug. 22,2005). Insofar as they pertain to .this ease, the related cases were resolved by the Supreme Court's decision in Boumediene, 128 S. Ct. 2229, in which the Court held that, pursuant to the Suspension Clause of the Constitution, the GTMO detainees were "entitled to the privilege of habeas corpus to challenge the legality of their detention," id. at 2262, and that the federal district courts have jurisdiction to hear such challenges, id. at 2274.

Although the Court did not specify what procedures the district courts were to employ in resolving these cases, it did emphasize that the "detainees in these cases are entitled to a prompt habeas corpus hearing." Jd. at 2275. Toward that end, this court and other judges in this district agreed to consolidate their cases before then-Chief Judge Hogan for the purpose of adopting common procedures for the GTMO detainee litigation. On November 6,2008, Judge Hogan issued a Case Management Order ("CMO") to govem these proceedings, which he amended on December 16, 2008. See generally Am. CMO (Dec. 16,2008). This court adopted the provisions oflhe amended CMO, subject to modifications set forth in the Supplemental Order of November 10, 2008 and the Omnibus Order of April 23, 2009. See generally Supplemental Order (Nov. 10,2008); Omnibus Order (Apr. 23, 2009).

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Meanwhile, having filed its initial Factual Return in 2005, the government filed a motion to amend its Factual Return, which Judge Hogan granted on November 7,2008. See Order (Nov. 7,2008). The petitioner filed his Traverse on May 26,2009. See Traverse. Throughout this period, the parties engaged in extensive discovery. The court then held a merits hearing on August 17 and 18, 2009. The parties filed proposed findings oHact and conclusions oflaw shortly thereafter. See Petr's Proposed Findings of Fact & Conclusions of Law; Govt's Proposed Findings of Fact & Conclusions of Law.

Ill. ANALYSIS

Before addressing the merits of the petitioner's habeas claim. it is useful for this court to address two preliminary issues: (l) the Jegal standard that governs the court's detennination of whether the petitioner's detention is lawful; and (2) the admissibility of, and weight to be afforded to, hearsay evidence.

A. Standard of Detention

The CMO issued by Judge Hogan and adopted in relevant part by the court establishes that "the government bears the burden of proving by a preponderance of the evidence that the petitioner's detention is lawful." CMO § ILA (citing Boumediene, 128 S. Ct. at 227t). Until earlier this year, the analysis of whether a petitioner's detention was lawful centered on whether a detainee was an "enemy combatant." On March 13,2009, however, the govenunent abandoned its previous reliance on the phrase "enemy combatant" and refonnulated its position. regarding the scope of its detention authority. See Govt's Mem. (Mar. 13,2009). The governmeJ1t now offers the following definition for the scope of its detention authority:

The President has the authority to detain persons that the President detennines planned, authorized, committed, or aided the terrorist attacks that occurred on

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September J 1, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of. or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy anned forces.

ld. at 2.

The government has explained that "[eJvidence relevant to a detennination that an individual joined with or became part of al-Qaida or Taliban forces might range from fonnal membership, such as through an oath of loyalty, to more functional evidence, such as training with al-Qaida (as reflected in some cases by staying at al-Qaida or Taliban safe houses that are regularly used to house military recruits) or taking positions with enemy forces." Id. at 6-7.'

Judges Walton and Bates have each issued lengthy, detailed and well-reasoned opinions regarding the scope of the govemment's detention authority. See generally Gherebi 'V. Obama, 609 F. Supp. 2d 43 (D.D.C. 2009); Hamlily v. Obama, 616 F. Supp. 2d 63 (D.D.C. 2009). As explained in more detail below, th,; crux of the distinction between the two approaches lies in whether the government has the authority to detain individuals who substantially supported enemy forces and/or directly supported hostilities against the United States. Judge Walton has concluded that the govenunent does have this authority. Gherebi, 609 F. Supp. 2d at 68-70, while Judge Bates has held that it does not, Hamlily, 616 F. Supp. 2d at 76.

The government asks that "[t]he probity of any single piece of evidence ... be evaluated based on the evidence as a whole." Govt's Mol. for J. on the R. at 20. Thus, although the govemment does not ex.plicitly endorse the "mosaic theory," which posits that each piece of intelligence should be viewed as a "tile" forming a "mosaic" of information about an individual, the government "is, as a practical matter, arguing for its application to the evidence in this case." AI- Adahi 1'. Ohoma, 2009 WL 2584685, at *4 (D.D.C. Aug. 21, 2009).

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Judge Walton "agree[d] with the government that the [Authorization for Use of Military Force ("AUMF")2] functions as an independent basis in domestic law for the President's asserted detention authority," Gherebi, 609 F. Supp. 2d at 54, and adopted the basic framework proposed by the government, including the "substantial support" provision, id at 68-70. He specified, however, that "the government's 'substantial support' standard ... mean[s] individuals who were members of the' armed forces' of an enemy organization at the time of their initial detention. It is not meant to encompass individuals outside the military command structure of an enemy organization." Jd. at 70.

Judge Bates, in contrast, rejected altogether the concept of "substantial support" as an independent basis for detention. Ham/ily, 616 F. Supp. 2d at 76. He also concluded that "directly support[ing] hostilities" 1S not a proper basis for detention. Jd. at 17. In short, Judge Bates found "no authority in domestic law or the law of war ... to justify the concept of 'support' as a valid ground for detention." Jd at 69. Judge Bates agreed with Judge Walton and the goverrunent, however, in holding that the government has the authority to detain those who "planned, authorized, committed, or aided" the September] ],2001 attacks and "persons who harbored those responsible for those attacks," as well as individuals "who were part of ... [enemy forces], including any person who has committed a belligerent act ... in aid of' enemy forces. ld at 78.

Judge Bates noted that the process of determining which individuals were "part of' enemy forces is necessarily more functional than formal. Id. at 75. Quoting Judge Walton, he observed that "[t]he key inquiry ... is not necessarily whether one sclf·identifies as a member of

The AUMF authorizes the President to "use 01.1 necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that oCCUlTed on September 11,200 I. or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." 115 Stat. 224.

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the organization ... but whether the individual functions or participates within or under the command structure of the organization - i.e., whether he receives and executes orders or directions.") Jd at 75 (citing Gherebi, 609 F. Supp. 2d at 68-69). And, as the govenunent conceded at oral argument in Judge Bates's case, the government's deLention authority "does not encompass those individuals who unwittingly become part of the aJ Qaeda apparatus - some level of knowledge or intent is required." Hamlily, 616 F. Supp. 2d at 75.

Several other judges have adopted Judge Bates's approach, narrowing the scope of the govenunent's detention authority by excluding the authority to detain those who only "substantially supported" enemy forces or "directly supported hostilities" in aid of enemy forces. See, e.g., A/-RaMah v. United Slales, 2009 WL 3083077, at +4 (D.D.C. Sept. 17,2009) (Kollar-Kotelly, .T.); Awad v. Obama, 2009 WL 2568212, at +2 (D.D.C. Aug. 12,2009) (Robertson, J.); Mattan V. Obama, 618 F. Supp. 2d 24, 26 (D.D.C. 2009) (Lamberth, c.J.).

The petitioner does not object to the frameworks endorsed by either Judge Walton or Judge Bates. He accurately summarizes their approaches by observing that

the Government's detention authority, as defined by it and subject to the explanations and qualifications of Judges Walton, Bates, and Lamberth, extends only to individuals in the following categories: ]) Persons who planned, authorized, committed, or aided the terrorist attacks that occun'ed on September 11, 2001; 2) Persons who harbored those responsible for the September 11 attacks;

It bears noting that Judge Walton's approach, like that of Judge Bates, requires that an individual be part of the command slructure of an enemy organization in order for the government to properly detain him or her. The key difference'between the two approaches is that Judge Walton has held that an individual "substantially SUpp011s" an enemy organization only if he 01' she acts within "the military command structure of an enemy organization," Gherebi v. Obama, 609 F. Supp. 2d 43, 70 (D.D.C. 2009), whereas Judge Bates has held-that an individual who acts within the command structure is "part of' an enemy organi7..ation - as opposed to just "substantially supp0l1ing" it - and that one who merely "substantially supports" an enemy organization is not properly detained, HamJiiy v. Obama, 616 F. Supp. 2d 63,69 CD.D.C. 2009). As Judge Bates noted, "as applied in specific cases, the difference [between the two approaches] should not be great." Judge Bates also observed that despite his "rejection of 'substantial support' as an independent basis for detention, the concept may playa role under the functional test used to determine who is a •part of a covered organization." Jd. at 76.

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3) Persons who committed belligerent acts or engaged in hostil.ities against the United States or its coalition partners; and 4) Persons who were part of Taliban or al Qaeda forces (or associated forces) that are engaged in hostilities against the United States or its coalition partners, such that the persons received and executed orders within the command structure of such an enemy.force.

Petr's Cross-Mot. for J. on the R. at 13. The petitioner maintains that he falls into none of these categories and, therefore, that his detention is unjustified. See generally id.

As Judge Bates explained in Hamlily, the government has been unable to justify the "substantial support" prong based on the law of war because the law of war permits the detention only of individuals who were "part of' one of the organizations targeted in the AUMF. Hamlily, 616 F. Supp. 2d at 76. As a result, the government seeks to justify the detention of those who "substantially supported" enemy forces by importing principles of domestic criminal law. Id. But as Judge Bates aptly recognized, the President's detention authority only extends to the limits of the AUMF and the law of war, without regard to principles of domestic criminal law. See id. Accordingly, the coun adopts the framework formulated by Judge Bates and endorsed by Chief Judge Lambel1h, Judge Kollar-Kotelly and Judge Robertson and holds as follows: the

President has the authority to detain persons who it proves by a preponderance of the evidence I

planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, and persons who it proves by a preponderance ofth~ evidence h~bored those responsible for those attacks, as well as persons who it proves by a preponderance of the evidence were part ofTaliban or aJ-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners ("the enemy anned forces"), including any person who has committed a belligerent act in aid of those forces. The President does not have the authority to detain persons solely based on a detennination that they substantially supported the enemy armed forces or directly Suppolted hostilities in aid of those forces.

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The government does not contend that petitioner Hatim planned. authorized, committed, aided or harbored those responsible for the September 11,2001 attacks. See generally Govt's Mot. for J. on the R. Therefore, the petitioner's detention is justified only if the goverrunent proves by a preponderance of the evidence that the petitioner served as part of the enemy aoned forces, such as by committing a belligerent act in aid of those forces. The government may not meet its burden solely by demonstrating that the petitioner substantially supported the enemy armed forces or direct! y supported hostilities in aid of those forces.

B. AdmissibiHt)' of and Weight Afforded to Hearsay Evidence

Section II.C of the CMO addresses the admissibility and weight of hearsay evidence. It establishes that

[o]n motion of either the .petitioner or the government, the Merits Judge may admit and consider hearsay evidence that is material and relevant to the legality of the petitioner's detention if the movant establishes that the hearsay evidence is reliable and that the provision of nonhearsay evidence would unduly burden the movant or interfere with the government's efforts to protect national security. See Hamdi, 542 U.S. at 533·34 (noting that, in enemy·combatant proceedings, "(h]earsay ... may need to be accepted as the most reliable available evidence") . . .. If the Merits Judge admits hearsay evidence, the party opposing admission will have the opportunity to challenge the credibility of; and weight to be accorded, such evidence.

CMO § II.C.

The CMO also provides that

[t]he Merits Judge may accord a rebuttable presumption of accuracy and authenticity to any evidence the government presents as justification for the petitioner's detention if the government establishes that the presumption is necessary to alleviate an undue burden presented by the particular habeas corpus proceeding.

CMO § n.B; see also Hamdi v. Rumsfeld, 542 U.S. 507, 534 (2004) (noting that Uenemycombatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict .. , [For example,] the Constitution would not

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be offended by a presumption in favor of the Government's evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided").

At the merits hearing, the govenunent offered hearsay evidence contained in interrogation reports ("FD-302s,,)4 and intelligence reports S (including DOD Intelligence Investigations Reports The government asks that the court deem all of the hearsay evidence sufficiently reliable to be admitted "unless sufficient credible evidence at the merits hearing establishes that [a particular piece of) information is unreliable." Govt's Mot. to Admit Hearsay Evidence with a Presumption of Accuracy and Authenticity ("Govl's Hearsay MoL") at 1. Further, the govenunent asks that its hearsay evidence be deemed accurate and authentic unless the accuracy and authenticity of specific pieces of evidence are rebutted with sufficient credible evidence at the merits hearing. See generally id.

The government first asserts that the interrogation reports and intelligence reports are regularly prepared and relied on for national security operations. Id. at 5·6. Therefore, the evidentiary principles underlying Federal Rule of Evidence 803, which allows for the admissibility of certain business records and official reportS, compel cidmitting the reports at issue here. ld. at 7-9.

The government defines FD-302s as non-verbatim records of witness statements [that] constitute a 'summary of a witness's or subject's oral interview, based on the interviewer's understanding of the information provided by the witness' . . .. FBI FD-302s are prepared according to FBI requirements tllat ensure the accuracy of the records, including requirements that agents verify that the FD·302 accurately reflects the witness' statement and the criteria for using reliable interpreters(. and w]henever the FBI requires interpreters or translators, they must meet Fl3I standards. Govt's Mot. for J. on the R. at 3.

The govel1l1nent defines intelligence reports as "compilations of important infonnation regularly prepared by professionals and routinely relied upon by the Government for wartime inteHigence . . .. Intelligence Investigations Repol1s ('URs') are the main intelligence report used by the Defense Intelligence Agency ('DlA') and mililaly services fOT human intelligence infonnation." ld. at 2.

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The government next argues that the court should admit hearsay evidence and afford it a presumption of accuracy and authenticity to avoid placing an undue burden on the government during a time of mi litary conflict. Jd. at 11-14. Because nearly all of the evidence in this case is hearsay, the case would not survive and the nation's security would be placed at risk ifhearsay evidence were not admitted and government agents had to be called into court to testify as to the statements that detainees made dw-ing interrogations. Jd.

Admitting hearsay evidence with a presumption of accuracy and authenticity would also be consistent with Hamdi, which stated that "[h]earsay ... may need to be accepted as the most reliable available evidence from the Government," 542 U.S. at 533-34, as well as the Detainee Treatment Act, which provided for a rebuttable presumption in favor of the goverrunenfs evidence, and Boumediene, which stressed that GTMO habeas procedures should be adapted to alleviate any undue burden on the government. Govt's Hearsay Mot. at 11-14. In addition, the govenunent points out that hearsay is allowed in other- proceedings affecting individuals' liberty interests"such as pretrial detention hearings, sentencings and statutory habea.o; cases. ld. at 14-15.

The petitioner opposes the government's motion, arguing that the government has made only generic claims about the general reliability of intelligence reports and inter:ogation reports, rather than identifying what pieces of hearsay evidence it seeks to introduce and why those specific pieces of evidence are reliable. Petr's Opp'n to Govt's Hearsay Mot. at 2-4. Because the CMO requires a showing of reliability before hearsay evidence can be admitted, the petitioner urges the court to "examin[e] the proffered evidence On an item-by-item basis." ld at 3-4. In addition, the petitioner complains that the government has failed to address whether

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UNCLASSfFIEO/lFOR PUBLIC RELEASE nonhearsay evidence exists that could supp0l1 the assertions contained in the hearsay statements, or to show that providing nonhearsay evidence would be unduly burdensome. Jd. at 4.

Addressing the specific evidence at issue in this case, the petitioner complains that the interrogation summaries on which the government relies lack sufficient indicia of reliability. Petr's Cross-Mot. for .1. on the R. at 2-6. The documents are unsworn and do not purport to be verbatim recitations of what the petitioner and other detainees actually said. Jd at 2. Instead, the reports are summaries bfthe English translations ofthe detainees' statements, which were originally made in Arabic. Id

Further, the petitioner contends that there is ample reason to doubt the accuracy of the translations. Id. at 2-3. The major general who was commander of the joint task force responsible for the GTMO interrogations (now retired) has himself opined that "the military linguists [at GTMO] were worthless." ld at 3 & Ex. 4. And translating Arabic poses unique challenges, given that there are multiple dialects that are in some cases dissimilar to each other and to Modem Standard Arabic, the version most commonly taught to non-nati ve speakers. ld. at 3. There is an audio recording of only one interrogation - an interrogation that took place in a proceeding before the Combatant Status Review Tribunal ("CSRT") - and the petitioner offers an expeJ1's declaration asserting that the English translation of his statements at that hearing contain numerous erro~s. 6 Jd. & Ex. 3. Based on that example, and in light of the fact that the government has offered no evidence concerning the credentials of the translators used in the

The government counters that "it is clear from the audio of the CSRT hearing that Petitioner and the interpreter at that hearing were able to communicate effectively. . . . Moreover, Petitioner has not identified any material inaccuracies in statements that the Government relies upon from the CSRT hearing." Govt's Reply in Support of Mot. for J. on the R. at 3 n.l. In any event, the government argues, "the Court has no basis to conclude that [the petitioner's expert's] interpretation of what Petitioner said during the CSRT hearing is more accurate than that of the interpreter who was actually at tile CSRT hearing and who was actually able to communicate effectively with Petitioner." Id. at 3-4 n.l.

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8~8M'f interrogations, the petitioner urges the court not to rely on the summaries of his int.errogations. ld.

The petitioner also observes that th~ documents ·relied on by the government lack credibility because they are raw intelligence, not "final evaluated intelligence." ld. at 4. Recalling that the Circuit in Parhaf directed district courts to hold that the government has met its burden only ifthey find that the government's evidence is "sufficiently reliable and sufficiently probative to demonstrate the buth of the asserted proposition with the requisite degree of certainty," the petitioner urges the court to conclude that the government's intelligence reports are not reliable. ld. at 5.

At the merits hearing, the court admitted the hearsay evidence being offered by the government, but noted that it would make individualized determinations about the reliability and accuracy of that evidence and the weight to be afforded to it. Unclassified Hr'g Yr. at 6-7. Based on the principles underlying Federal Rule of Evidence 803(6), the court presumes that the interrogation reports and intelligence reports are authentic. See Ahmed v. Obama, 613 F. Supp. 2d 51,54 (D.D.C. 2009). As for the government's request for a presumption of accuracy, the court notes Judge Kessler's observation that there is ample reason not to afford ~he government's evidence this presumption, "ranging from th.e fact that it contains second- and third-hand hearsay to allegations that it was obtained by torture to the fact that no statement purports to be a verbatim account of what was said." Jd at 55. Moreover, the court concludes that the government has failed to establish that a presumption of accuracy is necessary to alleviate an undue burden. Finally, as Judge Kessler pointed out, "given the fact that this is a bench trial, the Court must, in any event, make the final judgmentas to the reliability of these documents, the

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weight to be given to them, and their accuracy." Id Accordingly, the court will not presume

that the hearsay evidence offered in this case is accurate.

C. The Court Grants Petitioner Hatim's Petition for Writ of Habeas Corpus

1. The Government's Justification for Detention

The government asserts that the President has the authority to detain the pe~itioner under

the AUMF, as informed by the law of war, because the petitioner is a member of al-Qaida and

the Taliban and committed bel.ligerent acts in furtherance of those organizations' mission, See

generally Govt's Mot. for 1. 011 the R. More specifically, the govermnent asserts that the

petitioner (1) trained at al.Farouq, an al-Qaida terrorist canlp, id at 27-29; (2) stayed at al-Qaida

and Tali ban guesthouses, id at 29-30

(3) operated under the command of al-

Qaida and the Taliban at the battlefront against the Northern Alliance, id. at 30-31; ( 4 _

and (5) was identified by a witness - GTMO detainee.

as having fought in the battle of Tora Bora against the United States and

its coalition partners, id. at 32-34. The government's case rests on intelligence reports and

reports of interviews with both the petitioner and _

The petitioner vigorously disputes the government's allegations. See generally Petr's

Cross-Mot. for J. on the R. He claims that he was in Afghanistan when the United States

initiated hostilities there in Fall 2001 and concedes that he fled to Pakistan out of fear for his

personal safety, but maintains that there is no basis for his detention because there is no evidence

that he was connected to the September 11,2001 attacks, was part of al-Qaida or the Taliban or

engaged in hostilities against the United States or its coalition partners. Jd. at 13-30.

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The petitioner claims that after he was captured in Pakistan, he was held for six months at a military base in Kandahar, Afghanistan, where he was severely mistreated, including being beaten repeatedly, being kicked in the knees and having duct tape used to hold blindfolds on his head. Id at 32. To this day, he cannot raise his left arm without feeling pain. Id. The petitioner also alleges that he was threatened with rape ifhe did not confess to being a member of the Taliban or al-Qaida. Id. As a result, he claims that the inculpatory statements that he made in Kandahar were made only because of these threats. Id. He further alleges that after being transferred to GTMO in 2002, he repeated those inculpatory statements in 2004 because he feared that he would be punished ifhe changed his story. Id. at 32-33.

The govenunent does not refute the petitioner's allegation of coercion or the widespread allegations of torture of other detainees prior 10 their arrival at GTMO. See Govt's Mot. for J. on the R. at 39-42. The government points out, however, that

Jd. at 40. In fact, al-Qaida and Taliban operatives were

.1 Id. In any event, the government argues, because it does not rely 011 any statement that the petitioner made prior to his arrival at GTMO, his "allegations of coercion at the hands of American forces at Kandahar" fail to cast doubt on the government's evidence, nearly all of which was obtained well after the alleged coercion. Id. aI41-42.

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2. Examining the Alleged Facts

a. Al'legation that the Petitioner Attended the AI-Farouq Training Camp

The government' 5 primary assertion in support of its detention of the petitioner concerns the petitioner's alleged attendance at the a1-Farouq training camp. See Govt's Mot. for J. on the R. al4-10.

/d. at 4, collected donations from friends and members ofbis mosque and left Yemen for Afghanistan in 2001 to obtain training at al-Farouq. Jd. at 6-7. He felt the religious call to wage jihad and was considering travelin~ to Chechnya after training at al-Farouq to fight the Russians with other Muslims. Jd. at 5-7. The petitioner also planned to send word to his friends back in Yemen if the training at a1-Farouq was worthwhile. Jd at 5.

During his testimony before the Combatant Status Review Tribunal ("CSRT") on January ]6,2005, the petitioner told the CSRT that as'a foreigner, he made an effort to make connections with the Taliban while in Afghanistan because the Taliban was the governing authority there. See Govt's Hr'g Ex. 9 at 2. The govenunent's interrogation summaries also reflect that the

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SBOM'f petitioner told interrogators that after leaving Yemen, he arrived at the Haji Habash guesthouse in Kandahar, Afghanistan in 2001. See Govt's Mot. for 1. on the R. at 7-8. The government notes that Haji Habash and other guesthouses stations for al-Qaida and Taliban fighters, and that Haji Habash in particular was used as a

for trainees heading to _ and other camps. See id. at 7. _ _ Seeid.

According to the government's interrogation summaries, the petitioner admitted that he took a bus to al-Farouq in Spring 200\. See id. at 8. He told government interrogators that he did not realize that al-Farouq was an al-Qaida camp until he left the camp. See id. at 9 n.5. He described a typical day at al-Farouq as waking up before daylight, praying, memorizing the Koran, exercising, eating breakfast and then receiving weapons training. See id. at. 9. Consistent with this allegation, the petitioner told the CSRT that he trained at al-Farouq in mid·2001 to learn more about weapons, and that he obtained training on an AK-47, a rocket-propelled grenade, a pistol and other weapons. See id. During the weapons training, the instructors carried the weapons and the students maintained notebooks. See id. After three to four weeks at al-Farouq, the petitioner returned to the Haji Habash guesthouse for two days, then went to Kabul, Afghanistan. See id.

Responding to the government's allegations, the petitioner asserts as a preliminary matter that he was never at al-Farouq. See Petr's Cross~Mot. for). on the R. at 21. FurtheImore, the petitioner asserts that if the court accepted the government's summaries of his interrogations as true and accurate, these statements would still fail as justification for his detention. See id at 21-23. More specifically, the petitioner points out that the statement that he went to al-Farouq "to

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be trained to fight the Russians" in Chechnya would support the position that he was not there to support al-Qaida or the Taliban, nor did he even realize that al-Farouq was an al-Qaida camp until he left the camp. See id at 22.

In addition, the petitioner claims that his statements do not give rise to an inference that he operated under al-Qaida's "direction and control" at al-Farouq. See id He testified that "nobody is going to tell you what to do" at al-Farouq. See id. He felt he was free to walk out at any time, and indeed, he left the camp 011 his own volition when he became dissatisfied with it after three to four weeks. See id

Finally, the petitioner claims that he fw1her distanced himself from al-Qaida's and the Taliban's command structure long before he was captured in Pakistan. See id. Therefore, even if the petitioner was acting under the enemy anned forces' "direction and control" while at al· Farouq, the government has failed to demonstrate that he was still doing so at the time of his capture, as it is required to do. See id. at 22-23,

The petitioner's admission, made during several interrogations and at his CSRT proceeding, is the only evidence that he attended al-Farouq and arguably constitutes the government's strongest pW'ported basis for his detention. The petitioner has offered specific, unrefuted evidence, however, that he was tortured at Kandahar and that he told his interrogators that he had attended al-Farouq only to avoid further punishment. See Traverse, Ex. 1 ("Petr's DecL") ~ 29. The petitioner also· maintains that he told the CSRT that he had trained at al-Farouq only because he would be punished ifhe gave the tribunal a different account than what he had previously told interrogators. See id.

As Judge Kessler has observed in another GTMO habeas case involving a third-party witness who claimed to have been tortured, when - as here - the government presents no

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= SECft'E'f a evidence to dispute the detainee's allegations of torture and fails to demonstrate that the detainee was unaffected by his past mistreatment, the court should not infer that the prior instances of coercion or torture did not impact the accuracy of the detainee's subsequent statements. See Ahmed v. Obama, 613 F. Supp. 2d 51,58 (D.D.C. 2009) (granting the petitioner's habeas petition). Put differently, petitioner Hatim's unrefuted allegations of torture undermine the reliability of the statements made subs~quellt to his detention at Kandahar. Thus, the government faces a steep uphill climb in attempting to persuade the court that the petitioner's detention is justified based on the allegation that he trained at a\-Farouq, given that the sole evidence offered in support of that allegation is tainted by torture.

Several other problems with the government's evidence make it even more difficult to justify the petitioner's detention on this basis. First, even assuming, arguendo, that the petitioner was telling the truth when he confessed to having attended al-Farouq, the evidence that the petitioner's attendance constituted deliberate involvement with al-Qaida is undennined by the fact that he allegedly stated during his interrogation on hat he did not realize that al-Farouq was an al-Qaida camp until close to the end of his time there. Govt's Hr'g Ex. 12 at 2. In addition, during an inten'ogation o~ the petitioner allegedly stated that toward the end of his time at al-Farouq, he heard that Usama bin Laden might be visiting. Govt's Hr'g Ex. 37 at 1. "[T]his was a 'red flag' for [the petitioner] to leave the camp." Jd.; see also Hamlily, 616 F. Supp. 2d at 75 (holding that the government's detention authority "does not encompass those individuals who unwittingly become part of the al Qaeda apparatus'').

Second, even assuming, arguendo, that the petitioner was telling the truth when he confessed to having attended al-Farouq and that the petitioner knew that by attending al-Farouq he was becoming part of the al-Qaida apparatus, there is scant evidence that while at al-Farouq

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88@IU!i'f the petitioner actually participated in al-Qaida's command structure by receiving and executing orders or directions. See Hamlily, 616 F. Supp. 2d at 75 (citing Gherebi, 609 F. Supp. 2d at 68-. 69). The peti~ioner described a "typical day" at the camp and stated that he received classroom instruction in the cleaning and assembly of weapons, but at no point did the petitioner admit to taking up arms on behalf of al-Qaida or otherwise indicate that he ever followed a single order. issued by anyone at al-Farouq. See Govt's Hr' g Exs. 12, 17 (describing the training program at al·Farouq). Nor did any third-party witness indicate that the petitioner was even seen at aJ-Farouq, much less that he was seen following orders on al-Qaida's behalf.. This deficiency in the govemment's evidence further undermines its case for detention. Cf Al-Adahi Y. Obama, 2009 WL 2584685, at *9 (D.D.C. Aug. 21, 2009) (granting the petitioner's habeas petition after concluding that the petitioner "did not, by virtue of less than two weeks' attendance at a training camp from which he was expelled for breaking the rules, occupy 'some sort of structured' role in the 'hierarchy' of the enemy force"); Al Ginco v. Obama, 626 F. Supp. 2d 1'23, 129 (D.D.C. 2009) (granting the petitioner'S habeas petition, observing that "to say the least, five days at a guesthouse in Kabul combined with eighteen days at a training camp does not add up to a longstanding bond of brotherhood," and concluding that "the government has demonstrated, at most, that [the petitioner] was trusted enough to be inducted into at Qaeda's military training program .... [I]t is highly unlikely thaI by that point in time al Qaeda (or the Taliban) had any trust or confidence in him").

Finally, even if the COU11 credits the government's evidence that the petitioner was telling the truth when he confessed to having attended al-Farouq, and that the petitioner knew that by attending al-Farouq he was becoming part of the al-Qaida apparatus, and that the petitioner received and executed orders or directions on behalf of aJ-Qaida, the court may only conclude

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that the petitioner's detention is justified if the government proves that the petitioner was a

member of al-Qaida not only when he was at al-Farouq. but also at the time of his capture. See

Gherebi, 609 F. Supp. 2d at 71. ,The court finds no basis for that determination. The petitioner

told his interrogators repeatedly that he left a~-Farouq early because he was unhappy there. The

October 22, 2002 interrogation report states that the petitioner "did not want to stay in AL-

FAROUK any more. [He] added tha: life at AL-FAROUK was not what he expected and he

became disillusioned." Govt's Hr'g Ex. 13 at 1. And during an interrogation,

the petitioner stated that he

left the camp early because it wasn't what he expected. To get out early, [he] faked having a fever, telling the people at the camp he was ill and needed to seek medical care. He wanted to leave earlier, but couldn't think of a good excuse. When asked why he left, [he] stated the experience and training wasn't what he expected. The trainers were always yelling at him, the food was terrible, and he was forced to sleep on the ground. [The petitioner] stated overall it was just 'a very bad experience.'

Govt's Hr'g Ex. 17 at 1.

Evidence'that the petitioner left al-Farouq early is consistent with the petitioner's claim

that he separated himself from the enemy armed forces' command structure prior to his capture,

further undennining the govermnent's already weak case for detention. See AI Ginco, 626 F.

Supp. 2d at 130 (noting that intervening events could terminate an individual's relationship with

al-Qaida).

Based on all of the foregoing reasons, the cou11 concludes that the government has failed

to justify the petitioner's detention based on the allegation that the petitioner trained at al-Farouq.

b. Allegation that the Petitioner Fought Against the Northern Alliance at Said Central Station

The goverrunent asselts that the petitioner admitted to spending approximately three

weeks, along with about fifteen other Arabs, under the command of Abu al-Bara fighting against

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·SECR:ET-the Northern Alliance at a place called "Said Central Station." See Govt's Mot. for J. on the R. at 29-30. Said Central Station was located 011 the rear lines near Bagram, Afghanistan. See id. at 30. The petitioner allegedly stated that he was not allowed on the front lines because he was a newcomer who had not yet been evaluated, but that he would occasionally check out an AK-47 for protection and drive to the front lines to deliver food to the fighters. See id. The petitioner allegedly told the CSRT that he spent t1m~e weeks in Kabul and that he occasionally "hopped in the car that was carrying the food" to the front lines. Jd. (citing Govt's Hr' g Ex. 9 at 5). "Then [hel came back with the car at the end of the day."s Jd.

The petitioner responds that during his interrogations and CSRT testimony I he described Said Central Station as a "rest and recreation area" and stated that he spent his time there playing soccer and riding horses. See Petr's Cross-Mot. for J. on the R. at 15-16,23-24. His brief visits to the front lines were not conducted at anyone's command; rather, he went there out of curiosity, "to see what it was like'" ld. at 23. As with his description of al-Farouq, the petitioner testified that at Said Central Station, "people came and went as they pleased," which, according to the petitioner, refutes the government's argument that the petitioner was acting within enemy armed forces' command structure while there. ld.

The court rejects the government's asseltion that the petitioner's own statements prove that while at Said Central Station, he "function[ed] or participat[ed] within or under the command structure of [al-Qaida] - i.e., ... receive[dl and execute[dJ orders or directions." Hamlily, 616 F. SUPP. 2d at 75 (citing Gherebi, 609 F. Supp. 2d at 68-69). As a preliminary matter, contrary to the government's portrayal of the petitioner's statements, the petitioner did

The go~ernment also notes that detainee_ identified a photograph of the petitioner as Said Muhammed.Saleh Hatim from Ibb, Yemen. Govt's Mot. for J. on the R. at IS (citing ISN .SIR (Jan. 4, 2006)). _ t o l d his interrogators that the petitioner worked with heavy weapons on the front lines at Bagram. For the reasons discussed in Part IIl.C.S infra, however, the court does not credit this allegation.

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SeCfl£'fnot admit to fighting against the Northern Alliance. Indeed, upon a close ,examination of the petitioner's statements, the court concludes that the petitioner admitted to no conduct that the court could reasonably COl1stlue as serving within al-Qaida's command structure. Although the petitioner seemed to recognize that al-Bara was in charge of the individuals positioned at Said Central Station, and seemed to be aware of other individuals who occupied positions of power within the al-Qaida apparatus, there is little indication that the petitioner himself served on behalf of al-Qaida during his stay at Said Central Station or at any other time. At most, the petitioner's statements support the allegation that he was surrounded by enemy armed forces at Said Central Station and that he occasionally rode in a car that delivered food to combatants on the front lines. But even if the court were to make that determination by a preponderance of the evidence, it would be insufficient to prove that the petitioner was "part or' al-Qaida. See. e.g., Hamlily, 616 F. Supp. 2d at 76 (holding that even substantially supporting the enemy armed forces, without .more, would be insufficient to justify a petitioner's detention). Accordingly, the court concludes that the government's allegations concerning the petitioner's purported conduct at Said Central Station do not constitute a lawful basis for his detention,

c. ABe ation that the Petitioner Sta ed at al-Qaida Guesthouses in Kabul

According to the govemment's intelTogatioll summaries, the petitioner told his interrogators that he stayed at several al-Qaida-affiliated guesthouses while in Kandahar and Kabul. See Govt's Mot. for J. on the R. at 29-30. The 'first guesthouse, at which the petitioner stayed for approximately forty days in Kandahar before and after attending al-Farouq, was known as the Haji Habash house. See id at 29. According to government intelligence,_

Govt's Hr'g Ex. 6 at 3. After leaving Kandahar for Kabul, the petitioner allegedly stayed at a guesthouse known

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as Ghulam Bacha. See Govt's Mot. for J. on the R. at 30. Another individual named Abdul Zahir told interrogators that Ghulam Bacha was owned and operated by al-Qaida and was a safehouse for a1-Qaida members from Yemen, Saudi Arabia, Iraq and Libya. See id. The petitioner also allegedly stayed at a third guesthouse, Imown as Carte Birwan. See id Carte Birwan was protected by two anned guards, and individuals entering the house had to leave their weapons with the anned guards. ld Finally, from in or around June 2001 until he fled Afghanistan in November 200 1, the petitioner allegedly stayed at a guesthouse run by Hamza at-Gatee (a.k.a. Abu Hamza), whom anotber detainee (Humud Dakhil Said al-Jadani, ISN 230) identified as having influence with al-Qaida and the Taliban and attending a high-level meeting of al-Qaida and Taliban members. See id. At that guesthouse, the petitioner gave aI-Gatee his passport and was not required to pay for his food. See id at 28. The petitioner also stated that he was paid between 5,000 and 10,000 rupees "for his efforts," and on one occasion the petitioner opined that the money had come from al-Gatee directly. See Govt's Response to Petr's Cross-Mot. for J. on the R. at 24.

The petitioner counters tbat although the government attempts to characterize the guesthouses at which the petitioner stayed as "banacks" for al-Qaida and the Taliban, no evidence in the record supports that conclusion or shows that the petitioner acted "under the command structure of al-Qaida and Taliban forces" while staying at the guesthouses. See Petr's Cross-Mot. for J. on the R. at 24. The petitioner notes that Judge Kessler has already rejected the goverrunent's theory that staying at a guesthouse is evidence of affiliation with or support for the enemy anned forces. See id. To the contrary, Judge Kessler noted that there is "ample evidence that these kinds of guesthouses are common features in the region and that many young men who are traveling or studying who do not have much money stay at these guesthouses and also stay at

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those guesthouses associated with either their own nationality ... or ... with their own particular

religion." Id (citing Ahmed v. Obama, Civil Action No. 05·1678 (May 19,2009)). The

petitioner has submitted expert witness statements to corroborate Judge Kessler's determination

that guesthouses are roughly akin to youth hostels, except that guests sometimes perform chores

in lieu of paying for room and board. Sec Petr's Cross-Mot. for J. on the R. at 24-25. In short,

the petitioner claims that the fact that he stayed at guesthouses caIUlot justify his detention on a

"guilt by association" theory. See id. at 25.

As for the money that the petitioner was allegedly paid "for his efforts" while st~ying at

the guesthouse run by al-Gatee, the petitioner declares only that he would find money on his bed

from time to time, and surmises that the money came from another individual at the house who I. took pity on the petitioner because he had very little money of his own. See Petr's Decl. 1 18.

The petitioner notes that anonymous charity is common in his culture. See id.

The court agrees with the petitioner that the government's evidence concerning his stays

at guesthouses is insufficient to meet the government's burden. The record is unerly devoid of

evidence that the petitioner was aware of any affiliation that the guesthouses at which he stayed

may have had with al-Qaida or the Taliban. Even crediting the govenunent's assertion that al-

Gatee, an individual who allegedly occupied a position of power within the al-Qaida hierarchy,

paid the petitioner money "for his efforts," the government has offered no evidence as to what

those "efforts" were. In othel' words, the government has failed to demonstrate that the petitioner

acted on behalf of, or occupied a position within the command structure of, the enemy anned

forces during his stays at the guesthouses. The petitioner, on the other hand, has offered

unrefuted evidence that while in Kabul, he "didn't do much other than shop, go to the pool and

park, play soccer, walk around, and read." Petr's Hr' g Ex. 15 at 2. As a result, the evidence

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concerning the petitioner's stays at guesthouses fails to bolster the government's argument in

favor of detention. The court's conclusion on this point is reinforced by the evidence offered by

the petitioner that guesthouses in the region served as a common way station for individuals

passing through or,living temporarily in the region. See Traverse, Ex. 2.

The government advances a related allegation,Il..- _

1'-- ------------- 1"-- -------------- t _ 1 .... --------------- 1 _ 1 ~---------:1 l _ [----------- -.;1 , -----------) 1 ......1 Therefore, the court rejects this allegation as a basis for the

petitioner's detention.

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".,

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--------------------~~---------_._ .•.. _._ ...

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•sEeM" . c. Allcgation that the Petitioner Fought in the Battlc of Tora Bora

The gove~ent alleges that during an interrogation in January 2006, detainee_ was shown a photograph of the petitioner and identified the petitioner as Said Muhainmad Saleh Hatim from Ibb, Yemen, See Govt's Mot. for J. on the R. at 15. _ told his interrogators that the petitioner was at the fronl lines in Bagram, worked with heavy weapons on the front Jines and traveled to Tora Bora from the front lines. See id. _ identification is corroborated, the government claims, by the fact that the petitioner was captured near Tora Bora while fleeing Afghanistan. See id. at 15-16. The petitioner told interrogators that he, accompanied by Hamza aI-Galee's cook.. fled Kabul when the bombing began in the immediate wake of the September 1),200] attacks

See id at 15. When the petitioner arrived in Pakistan, he went to a police station to arrange his paperwork to return to Yemen and was arrested. See id at 15-16.

The petitioner correctly points out that in order t6 determine whether the government has met its burden of persuading the court that the petitio11er fought at the battle ofTora Bora, the court must first assess how much weight to afford t o _ s identification of the petitioner. See Petr's Cross-Mot. for J. on the R. at 17. The government maintains that_provided interrogators with accurale, reliable infomlation concerning other GTMO detainees. Govt's Hr'g

The government did not produce the alleged "last will and teslament."

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UNCIJ\SSIFIEDIIFOR PUBLIC RELEASE severe psychological problems while detained at GTMO. As early as May 2002, a GTMO interrogator opined, "I do not recommend _ f o r further exploitation due in part to mental and emotional problems [and] limited knowledgeability." ld., Ex. 8. Subsequent to the May 2002 disclaimer concerning _reJiability,_received a year of "intensive psychiatric care," after which he attempted to hang himself in his cell in February 2003. See Petr's Cross-Mot. for .T. on the R. at 17 & Ex. 9 at 3. The GTMO hospital record stated that _ h a d "vague auditory hallucinations" and that his symptoms were consistent with a "depressive disorder, psychosis, post traumatic stress, and a severe personality disorder." Id. In March 2 0 0 3 , _ again tried to commit suicide, saying that he had received "command hallucinations" to do so. See Petr's Cross-Mot. for J. on the R. at 17-18 & Ex. 9 at 12. At that time, doctors at the GTMO hospital opined that _psychosis was worsening. See id.

In June 2007, the Office of Administrative Review of the Detention of Enemy Combatants ("OARDEC") warned that because~rst-hand knowledge had come into serious question since 2005,. all information provided by _ s h o u l d be adequately verified through independent sources. See Petr's Cross-Mot. for J. on the R. at 18. The court notes that _ m a d e the statement about the petitioner during an interrogation in January 2006, a date that faBs squarely within the period during which OARDEC recommended not crediting _statements unless they were corroborated by otber, more reliable sources. In addition, the petitioner points out that the personal representative of another GTMO detainee determined that none of the detainees that_had identified as having trained at al-FarouqlO were even in Afghanistan during the time that_said they attended the camp. See id.

I~ This group did \lot include the petitioner.

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A1; a result o~'s psychiatric record, Judges Leon and Kessler both observed that ~redibility had been seriously called into question. See El Gharani \/. Bush, 593 F. Supp. 2d 144, ]48 (D.D.C. 2009); Ahmed, 613 F. Supp. 2d at 56. Judge Kessler concluded that _ w a s "an unreliable source whose statements have little evidentiary value." Ahmed,613 F. Supp. 2d at 57. This court firmly agrees. It refuses to credit what is arguably the government's most serious allegation in this case based solely on one statement, made years after the events in question, by an individual whose grasp on reality appears to have been -tenuous at best.

Further, the court disagrees with the government's contention that other evidence substantially corroborates_statement concerning the petitioner. The fact that the petitioner was captured in Pakistan makes it no more likely that he fought at the battle ofTora Bora; many individuals, both combatants and non-combatants, fled Afghanistan for Pakistan when the bombing in Kabul began. Likewise, the fact that the petitioner was captured without a passport and the government's allegation that was found in his pocket when he was capture fail to substantially corroborate the allegation that the petitioner fought at Tora Bora. In light ofthe bombings taking place in Afghanistan in 2001, it is understandable that an individual might have fled to Pakistan and carried he was engaged in illicit activities or not. Accordingly, these pieces of evidence fail to make it more likely that the petitioner fought in the battle of Tora Bora.

In sum, the court rejects each of the rationales that the government asserts to justify the petitioner's detention. And the govemment's justification for detention fares no better when the court views all ofthe evidence as a whole. For as other judges in this court have observed, "the

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- SEeftlffmosaic theory is only as persuasive as the tiles which compose it and the glue which binds them together .... Therefore, if the individual pieces of a mosaic are inherently flawed ... , then the mosaic will split apart." Al-Adahi, 2009 WL 2584685, at ·5. In this case, the government has offered the court an inherently flawed justification for detention, a justification that rests primarily on tainted statements made by the petitioner and profoundly unreliable statements made b y _ A s a result, the COUll, viewing the evidence as a whole, hoids that the government has failed to prove by a preponderance of the evidence that the petitioner served as part of the enemy armed forces.

IV. CONCLUSION

For the foregoing reasons, the court holds that the government has failed to carry its burden of persuading the court that pelitioner Hatim's detention is lawful. Accordingly, the court grants petitioner Hatim' s petition for writ of habeas corpus. An Order consistent with this Memorandum Opinion is issued separately and contemporaneously this 15th'day of December, 2009.

RICARDO M. URBINA United States District Judge

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