COLLEEN KOLLAR-KOTELLY, District Judge.
Petitioner Fayiz Mohammed Ahmed Al Kandari ("Al Kandari") has been detained by the United States Government at the Guantanamo Bay Naval Base in Cuba since 2002. According to his own statements and admissions against interest, Al Kandari was in the mountains near Tora Bora, during the height of the Battle of Tora Bora, armed with a Kalishnikov rifle, and in the company of several members and high-level leaders of al Qaeda, the Taliban, or associated enemy forces, who were actively engaged in fighting the United States and its Coalition allies. Based on these admissions and other evidence in the record, the Government asserts that it has the authority to detain Al Kandari pursuant to the Authorization for the Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224 (2001) ("AUMF"), which authorizes the use of force against certain terrorist nations, organizations, and persons. Al Kandari believes he is unlawfully detained and has filed a petition for a writ of habeas corpus.
This civil proceeding requires the Court to determine whether or not Al Kandari's detention is lawful. In connection with this inquiry, the Court has considered the factual evidence in the record, the extensive legal briefing submitted by the parties, and the arguments presented during a five-day Merits Hearing held on October 19-23, 2009. The parties did not present any live testimony at the Merits Hearing, but Al Kandari did listen telephonically to the unclassified opening statements by his counsel and Government's counsel. Based on the foregoing, the Court finds that the Government has met its burden to show by a preponderance of the evidence that Al Kandari became part of al Qaeda, the Taliban, or associated enemy forces. Accordingly, the Court shall DENY Al Kandari's petition for habeas corpus.
Al Kandari filed his petition for habeas corpus on May 1, 2002, making this case the oldest of the pending Guantanamo Bay habeas cases.
Following the Boumediene decision, this and most of the other judges in this District agreed to consolidate their Guantanamo Bay habeas cases before former Chief Judge Thomas F. Hogan for issuance of an initial case management order that would expeditiously move these cases toward resolution. Judge Hogan issued a Case Management Order on November 6, 2008, which he amended on December 16, 2008, and which the Court adopted in this case on December 22, 2008. The Court has relied on the Amended Case Management Order ("CMO") as the backdrop for its subsequent Scheduling Orders.
The Government filed an Amended Factual Return on September 15, 2008, and pursuant to the schedule set by the Court, Al Kandari filed a Traverse on March 30, 2009. The parties engaged in extensive discovery and motions practice in the interim. Al Kandari filed a Motion for Additional Discovery on January 26, 2009, which the Court granted-in-part and denied-in-part on February 12, 2009, after a hearing on February 11, 2009. Al Kandari filed a Motion to Produce a Declassified Factual Return on January 9, 2009, which the Government produced on February 6, 2009. The Court also required the Government to provide Al Kandari with certain discovery from the Guantanamo Bay Joint Task Force database. In addition, to narrow the disputed issues presented at the Merits Hearing and to focus the parties on the specific documents underpinning their respective arguments, the Court ordered the Government to file a Statement of Facts on which they intended to rely at the Merits Hearing (which narrowed the allegations presented in the Amended Factual Return), and instructed both parties to submit Witness and Exhibit Lists. Finally, the parties filed seven pre-hearing motions, most of which sought rulings concerning the admissibility of particular evidence. By order dated June 16, 2009, the Court granted the parties' motions to rely on hearsay evidence at Al Kandari's Merits Hearing and granted the Government's motion to amend its Statement of Facts and Exhibit List as to Al Kandari, but held their other evidentiary motions in abeyance to be resolved in the context of Al Kandari's Merits Hearing.
On September 9, 2009, the Court issued a Merits Hearing Procedures Order, which scheduled Al Kandari's Merits Hearing to begin on October 19, 2009, and to continue through October 23, 2009, as needed. In addition, as the Court has done with respect to each of the prior Merits Hearings in this case, the Court permitted the parties to file motions for leave to amend the parties' respective Witness and Exhibit Lists, Respondents' Statements of Facts, and/or the underlying Factual Return and Traverse. Pursuant to the schedule proposed by the parties and adopted by the Court, the parties exchanged their initial proposed amended exhibits by October 5, 2009; exchanged any additional amended exhibits by October 9, 2009; and conferred regarding their final Exhibit Lists and any objections to the same prior to their submission to the Court on October 13, 2009.
The parties timely submitted these materials, and the Court held an on-the-record unclassified telephone conference call with counsel for all parties on October 15, 2009, and a classified status hearing on October 16, 2009, to discuss the parties' motions for leave to amend and their respective objections to the other side's amended exhibits. Discussion principally focused on Al Kandari's objections to Respondents' newly amended exhibits ("Amended Exhibits"), and in particular, on his objection to the admission of certain of the Government's Amended Exhibits on the basis that Petitioner's counsel would not have an opportunity to show or discuss those exhibits with his client, Al Kandari, prior to the Merits Hearing. In an effort to address this specific objection, Respondents—with the Court's firm encouragement—assisted Petitioner's counsel in obtaining expedited declassification review of certain exhibits and in arranging a secure telephone conversation between Petitioner's counsel and Al Kandari in Guantanamo on Sunday, October 18, 2009, to discuss the Amended Exhibits.
At the close of the October 16, 2009 hearing, the Court granted Al Kandari's motion for leave to amend his Exhibit List and granted-in-part and held in abeyance-in-part Respondents' motion for leave to amend the Statement of Material Facts and the Government's Exhibit List. The Court made clear that it would not exclude Respondents' Amended Exhibits from consideration ex ante because of the importance of ensuring that its ruling on Al Kandari's habeas petition was made on the basis of all available evidence. The Court indicated instead that it would permit the presentation of all evidence, including Respondents' Amended Exhibits, during the course of the Merits Hearing and would reserve its final decision regarding the parties' objections to particular pieces of evidence until after all evidence and the parties' positions thereto had been considered. The Court notes that while the volume of Respondents' Amended Exhibits was not insignificant, Respondents' request for leave to amend was timely filed in compliance with the parties' own proposed schedule and both parties were aware that the number of amended exhibits submitted with respect to Al Kandari— the last of the four habeas petitions in this case—was likely to be substantial, given the parties' ongoing efforts to respond to the Court's prior rulings in these habeas cases. Nonetheless, Al Kandari's concerns regarding the timing of the Government's Amended Exhibits and its effect on his ability to respond to the Amended Exhibits would be considered by the Court in determining the weight to be afforded to any particular piece of evidence during the course of the Merits Hearing.
Accordingly, the Merits Hearing began as scheduled on Monday, October 19, 2009. As the hearing progressed, Al Kandari's objections to the Amended Exhibits became increasingly focused on the allegation that his defense was hampered by his counsel's inability to conduct a further investigation into certain of those exhibits because of the timing of their submission by the Government. On the morning of the fourth day of the Merits Hearing, Thursday, October 22, 2009, the Court halted the parties' presentation of evidence to address the issue. Observing that most of the evidence relied upon by Respondents from the Amended Exhibits neither raised new allegations against nor contained new information concerning Al Kandari, the Court cautioned that Al Kandari must specify precisely how he would be prejudiced if the Court were to rely on the Amended Exhibits in ruling on his habeas petition. The Court advised the parties that it would provide Petitioner's counsel a final opportunity before the close of the Merits Hearing to identify—with specificity—the particular actions counsel would have taken in order to complete Al Kandari's defense with respect to the Amended Exhibits, if counsel had additional time. To the extent Petitioner's counsel was able to identify such actions with particularity, the Court would order the record held open for the limited purpose of permitting counsel additional time to conduct the requested investigation with respect to the Amended Exhibits and any exhibits submitted at the Court's request during the Merits Hearing. In the absence of any particularized assertions of prejudice, however, the Court would conclude that Al Kandari had completed his defense as to these exhibits; the Court would close the factual record at the end of the Merits Hearing, as anticipated, and make its final decisions on both the exclusion of evidence and the merits of Al Kandari's habeas petition on the present record.
Accordingly, immediately prior to closing arguments, Petitioner's counsel was presented with an opportunity "to identify what [Petitioner] need[ed] to do to complete [his] defense as it relates to ... these new exhibits." 10/22/09 (AM) Mrts. Hr'g Tr. at 14:3-5. This opportunity was specifically limited to the Amended Exhibits as well as to any evidence newly presented at the Court's request during the course of the Merits Hearing. See id. at 57:19-25, 58:12-19. The Court made clear that it was not permitting Al Kandari the opportunity to advance new objections to previously disclosed evidence or to reopen discovery as to all issues. See 10/22/09 (PM) Mrts. Hr'g Tr. at 60:1-11. At that time, Petitioner's counsel made seven specific requests for further action with respect to the Respondents' Amended Exhibits only. Based on these particularized representations, the Court agreed to leave the record open for Al Kandari to pursue these specific actions. Although this course of action would inevitably delay final resolution of Al Kandari's petition for habeas corpus, Petitioner's counsel confirmed that his client preferred to obtain a continuance of the Merits Hearing rather than rest his defense and leave the Court
The record was therefore left open for the limited purpose of permitting Petitioner's counsel to pursue the specific actions identified on the record at the close of the Merits Hearing. The Court ordered Respondents to search and disclose certain information requested by Petitioner regarding the Amended Exhibits by no later than November 24, 2009. To the extent Respondents' searches uncovered responsive information that was inculpatory in nature, the Court indicated that the Government would be permitted to seek leave to augment the record with this additional material as well. Pursuant to the schedule suggested by the parties and adopted by the Court, on February 26, 2010, the Government—but not Al Kandari—filed a Motion to Augment the Record. Al Kandari opposes that Motion, which is now fully briefed and pending before the Court. By contrast, Al Kandari did not seek to admit any additional evidence into the record in response to the seven areas of concern related to the Respondents' Amended Exhibits, despite having been permitted an additional four months to conduct further investigations in order to complete his defense as to those exhibits. With the Court's leave, however, Al Kandari filed a Petition for Writs of Habeas Corpus Ad Testificandum directed at securing certain testimony relating to the Amended Exhibits as well as a supplemental brief in support of his objections to certain of the Amended Exhibits. See Feb. 3, 2010 Order.
As stated above, the Court granted the parties' motions to rely on hearsay evidence in this proceeding. The plurality in Hamdi v. Rumsfeld specifically acknowledged that "[h]earsay ... may need to be accepted as the most reliable available evidence from the Government." 542 U.S. 507, 534, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004). The Court finds that allowing the use of hearsay by both parties balances the need to prevent the substantial diversion of military and intelligence resources during a time of hostilities, while at the same time providing Al Kandari with a meaningful opportunity to contest the basis of his detention. The Court is fully capable of considering whether a piece of evidence (whether hearsay or not)
For similar reasons, the Court shall deny the Government's motion to have its evidence admitted with a presumption of accuracy and authenticity. Relying in part on the Supreme Court's statement in Hamdi v. Rumsfeld that "the Constitution would not be offended by a presumption in favor of the Government's evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided," 542 U.S. at 534, 124 S.Ct. 2633, the Government argues that a presumption as to its evidence is both appropriate and necessary. The Court disagrees. One of the central functions of the Court in this case is "to evaluate the raw evidence" proffered by the Government and to determine whether it is "sufficiently reliable and sufficiently probative to demonstrate the truth of the asserted proposition with the requisite degree of clarity." Parhat, 532 F.3d at 847. Simply assuming the Government's evidence is accurate and authentic does not aid that inquiry. Cf. Ahmed v. Obama, 613 F.Supp.2d 51, 55 (D.D.C.2009) (rejecting a presumption of accuracy for the Government's evidence and holding that "the accuracy of much of the factual material contained in [the Government's] exhibits is hotly contested for a host of different reasons ...").
The Court also finds that there are significant reasons why the Government's proffered evidence may not be accurate or authentic. Some of the evidence advanced by the Government has been "buried under the rubble of war," Hamdi, 542 U.S. at 532, 124 S.Ct. 2633, in circumstances that have not allowed the Government to ascertain its chain of custody, nor in many instances even to produce information about the origins of the evidence. Other evidence is based on so-called "unfinished" intelligence, information that has not been subject to each of the five steps in the intelligence cycle (planning, collection, processing,
The Court shall also use the same approach to consider Al Kandari's pre-hearing evidentiary motions, as supplemented by his post-hearing briefing, that sought to exclude particular pieces of evidence based on their alleged lack of authenticity, reliability, or relevance. Rather than exclude evidence from consideration ex ante by examining it in a vacuum, the Court concludes that the better approach is to make such determinations after considering all of the evidence in the record and hearing the parties' arguments related thereto. Cf. Al-Bihani, 590 F.3d at 880 ("Where the touchstone of a proceeding is `meaningfulness,' empowering a district court to review and assess all evidence from both sides is a logical process."). The Court believes this approach is particularly useful where, as here, a document viewed in isolation may appear to be irrelevant, but when considered in the context of the other evidence in the record its importance may become clear. Accordingly, the Court's consideration of the evidence proffered by the parties shall encompass inquiries into authenticity, reliability, and relevance. Cf. Parhat, 532 F.3d at 847 (describing the Court's inquiry into whether evidence is "`sufficiently reliable and sufficiently probative to demonstrate the truth of the asserted proposition with the requisite degree of certainty'") (quoting Concrete Pipe & Prods., Inc. v. Constr. Laborers Pension Trust, 508 U.S. 602, 622, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993)).
As explained above, the following post-hearing motions were filed by the parties and remain pending before the Court: (1) Al Kandari's Petition for Writs of Habeas Corpus Ad Testificandum; and (2) Respondents' Motion to Augment the Record. Upon consideration of the parties' motions and responsive briefing, and their respective
The Government derives its authority to detain Al Kandari from the Authorization for Use of Military Force ("AUMF"), Pub. L. 107-40, 115 Stat. 224 (2001).
In this case, the Government contends that it is lawfully authorized to detain Al Kandari because he was part of al Qaeda, the Taliban, or associated enemy forces. See Jt. List of Contested Issues, Docket No. [663]. Although the D.C. Circuit "has yet to delineate the precise contours of the `part of inquiry," Barhoumi, 609 F.3d at 424, this Court is not without guidance. The Court of Appeals has emphasized that the focus of this inquiry is whether an individual is "functionally part of" al Qaeda, the Taliban or affiliated forces. Bensayah v. Obama, 610 F.3d 718, 725 (D.C.Cir.2010) (emphasis added). For example, while proof that "a detainee was part of the `command structure' of al Qaeda
Pursuant to the CMO that the Court adopted in this case on December 22, 2008, the Government bears the burden of proving by a preponderance of the evidence that Al Kandari is lawfully detained. See In re Guantanamo Bay Detainee Litig., Misc. No. 08-442, CMO § II.A, 2008 WL 4858241 (Nov. 6, 2008) ("[t]he government bears the burden of proving by a preponderance of the evidence that the petitioner's detention is lawful") (citing Boumediene, 128 S.Ct. at 2271) ("[T]he extent of the showing required of the government in these cases is a matter to be determined."). The D.C. Circuit has affirmed that "a preponderance of evidence standard is constitutional in evaluating a habeas petition from a detainee held at Guantanamo Bay, Cuba." Awad, 608 F.3d at 10; see also Al Odah, 611 F.3d at 14 ("It is now well-settled law that a preponderance of the evidence standard is constitutional in considering a habeas petition from an individual detained pursuant to authority granted by the AUMF."). Accordingly, Al Kandari need not prove his innocence nor testify on his own behalf. The burden of proof has remained on the Government at all times. The Court has drawn no inference based on Al Kandari's decision not to testify in this case. Accord Awad v. Obama, 646 F.Supp.2d 20, 24 (D.D.C.2009), aff'd, Awad, 608 F.3d 1. The Government must come forward with evidence demonstrating by a preponderance of the evidence that Al Kandari is lawfully detained, and if the Government fails to meet this burden, the Court must grant Al Kandari's petition for habeas corpus.
The following facts are uncontroverted and/or uncontested. Al Kandari is a citizen of Kuwait and was 26 years old at the time of his arrival in Guantanamo in 2002. Stip. of Fact ¶ 13. In or around August 2001, Al Kandari traveled to Kabul, Afghanistan. Id. ¶ 15. He was subsequently captured while fleeing the mountains near Tora Bora shortly after the feast of Ramadan, which the Court takes judicial notice occurred on or around December 16, 2001. Ex. 139 at ¶ 7 (03/06/09 Decl. of Al Kandari); Ex. 27 (11/20/03 Al Kandari IIR); Ex. 99 (Timeline of Operation Enduring Freedom); 10/19/09 Mrts. Hr'g. Tr. at 47:24-48:1.
The record in this case is voluminous. The Merits Hearing took place over five days, and the parties have introduced approximately 230 exhibits into the record, consisting of Al Kandari's own statements as well as the statements of numerous third-party sources and other documents. Ultimately, the Court finds that Al Kandari's own statements and admissions against interest regarding his travel and activities in Afghanistan between August and mid-December of 2001 are sufficient to demonstrate that it is more likely than not that Al Kandari was part of forces associated with al-Qaeda and/or the Taliban. The Court's discussion of the evidence in the record shall proceed in two steps. First, relying solely on Al Kandari's own statements, both in his declaration and in his statements to Government interrogators, the Court shall describe Al Kandari's version of events leading up to his detention; identify several of the reasons why Al Kandari's exculpatory version of events is not credible; and explain why Al Kandari's own statements and admissions against interest demonstrate that Al Kandari was more likely than not part of al-Qaeda, the Taliban, or associated forces. Having found that Al Kandari's own statements and admissions against interest discussed at the first step are by themselves sufficient for the Government to meet its burden in this case, the Court need not reach the other evidence offered by the Government but shall nonetheless briefly discuss the remaining evidence in the record at the second and final step.
The record now before the Court consists of Al Kandari's statements made to Government interrogators during the course of his detention as well as a declaration, sworn to under penalty of perjury, submitted by Al Kandari in 2009 in support of his habeas petition. Al Kandari urges the Court to exclude, or at minimum decline to consider, all of his statements made to interrogators and rely solely on statements made in his declaration. He advances four principal arguments in support of this assertion. Given the importance of the Government's evidence regarding Al Kandari's statements to Government interrogators and the centrality of such statements to the Government's case, the Court addresses each of these arguments at the outset.
First, Al Kandari asserts that the interrogation reports recording his statements should be excluded as hearsay because he does not speak English and his interrogations were necessarily conducted through interpreters.
Second, Al Kandari argues that the use of an interpreter to facilitate his interrogations renders the Government's reports of his interrogation answers inherently unreliable as a category of evidence. In support of this contention, Al Kandari has introduced the Declaration of Karin C. Ryding, Ph.D., Concerning Arabic Interpretation Issues, see Ex. 195, and a newspaper article from April 7, 2004, containing an interview with [Redacted] who was identified as one of the interpreters who facilitated [Redacted] interrogation of Al Kandari (as reported in Exhibit 28), see Ex. 194. Neither Exhibit 194 nor Exhibit 195 discuss Al Kandari's statements or identify any specific errors in the interrogation reports now in the record. Dr. Ryding opines that "it cannot be presumed that Arabic interpretation in the interrogation of detainees, whether performed by a native speaker of Arabic or an American with some command of [Modern Standard Arabic], was fully accurate or reliable." Ex. 195 at ¶ 32. [Redacted] reported comments, at most, merely support the same conclusion reached by Dr. Ryding—namely, that interrogation reports facilitated by an interpreter should not be presumed to be automatically reliable or accurate. See Ex. 194. But the Court has not presumed that any evidence in these proceedings, including the interrogation reports of Al Kandari's own statements, are either accurate or reliable. Rather, it has reserved that determination to be made after considering all of the evidence in the record and hearing the parties' arguments related thereto. To the extent Al Kandari advances specific arguments that particular interpreter-related errors occurred, the Court shall consider such evidence and arguments in evaluating the probative weight of those statements.
Third, Al Kandari's counsel argued during the Merits Hearing that the reports of Al Kandari's statements are not reliable because they "[are] not and do[] not even purport to be a verbatim transcript of
Fourth and finally, Al Kandari broadly asserts in his declaration that the interrogation reports containing his answers to Government interrogators are plagued with inaccuracies, the implication of which is that they cannot and should not be relied on. Al Kandari states in his declaration that he has reviewed his interrogation answers and "see[s] many places where my statements have been so badly distorted or taken out of context that they are not true." Ex. 139 at ¶ 9 (03/06/09 Decl. of Al Kandari). The Court emphasizes that Al Kandari has not argued in these habeas proceedings that any of his statements were the product of abuse or coercion. While Al Kandari makes a general claim in his declaration that he was subjected to abusive and coercive interrogation tactics by the United States, he does not claim that he ever made any statements that were the product of such alleged abuse and coercion. See Ex. 139 at ¶ 8 (03/06/09 Decl. of Al Kandari). Similarly, while Al Kandari makes a general claim in his declaration that his interrogators "tried to make me confess to things I did not do, and to say things about other people I did not know," he does not claim that such alleged efforts were successful— i.e., that he in fact made false statements as a result of these alleged interrogation tactics. See id. Indeed, neither Al Kandari in his declaration nor his counsel at the Merits Hearing claimed that Al Kandari has ever made false or inaccurate statements because of the Government's alleged abuse and/or use of coercive interrogation tactics. Moreover, when specifically asked by this Court during the Merits Hearing if Al Kandari was advancing a claim of abuse in this case, Al Kandari's counsel explicitly acknowledged that Al Kandari's generalized claims of abuse are "not relevant to what the Court has to decide." 10/21/09 (PM) Mrts. Hr'g Tr. at 13:10-12; see also 10/22/09 (AM) Mrts. Hr'g Tr. at 87:2-3 ("Your Honor, we're not claiming that Mr. Al Kandari made false statements as a result of coercive tactics."); id. at 93:22-94:8 ("The Court: ... But as I understand it, you're not claiming that he was coerced to make false statements. Mr. MacLean: Your Honor, we don't have a basis to make that— ... We're not making that claim, Your Honor."). Accordingly, there is no claim in this case that, as a result of coercion, Al Kandari made statements to interrogators that he knew to be false, such that his statements, although accurately reported, are unreliable.
After considering the evidence in the record and the parties' respective arguments thereto, the Court finds that such blanket denials, where they have been made without further explanation or support, are not credible. As compared to his inculpatory admissions against interest made to Government interrogators, Al Kandari's statements in his declaration denying that he made certain prior inculpatory statements lack sufficient indicia of reliability. The Court emphasizes that with respect to those statements that Al Kandari now denies having made to Government interrogators, there is no evidence in the record that Al Kandari ever recanted or denied making such assertions to the Government interrogators during his interrogations. Rather, it is only in his declaration, submitted several years after-the-fact, that Al Kandari denies having made these statements. Al Kandari has a motive to deny prior statements that are inculpatory in nature. Cf. Awad v. Obama, 608 F.3d 1, 8 (D.C.Cir.2010) ("[I]t accords with common sense that he may have had a motivation to lie about his own involvement in nefarious activity. ..."). Moreover, the Court notes that Al Kandari himself does not dispute the accuracy of many of his statements as reported in the Government's interrogation reports—at least as to many of those statements that are exculpatory in nature. As is discussed below, Al Kandari states in his declaration that he traveled to Afghanistan for charitable purposes; engaged solely in charitable activities while there; and was captured while attempting to flee to Pakistan to avoid the ongoing fighting in Afghanistan. These are the same basic assertions that he is consistently reported to have made to Government interrogators (although, as is discussed below, many of the specific details of Al Kandari's explanation vary between
As the above discussion reveals, a key inquiry in this case is the extent to which the Court assesses Al Kandari's statements—in his declaration as well as in his statements to Government interrogators— as credible, accurate, and reliable. In evaluating Al Kandari's statements, the Court shall proceed as follows. First, the Court shall set forth Al Kandari's version of events. As indicated above, Al Kandari has maintained both in his declaration and in his statements to Government interrogators that he engaged in charitable work only while in Afghanistan and was attempting to escape the fighting in that country when he was captured fleeing Tora Bora. Second, the Court shall identify several reasons why Al Kandari's exculpatory statements explaining his reasons for traveling to and his activities within Afghanistan are not credible. Third, the Court shall consider Al Kandari's inculpatory statements admitting that he was given a Kalishnikov rifle and taught how to use it, and that he associated with members of al Qaeda, the Taliban, or associated forces, while in Tora Bora, and shall explain why these statements are credible and reliable. Ultimately, the Court finds that Al Kandari's own statements and admissions against interest demonstrate that it is more likely than not that he was part of al Qaeda, the Taliban, or associated enemy forces, and is therefore lawfully detained under the President's authority pursuant to the AUMF.
Al Kandari states that he traveled to Pakistan in June of 2001 to visit Sheikh Mohammed Wali Allah Arrahmani, whom he describes as a respected Pakistani scholar. Ex. 139 at ¶ 3 (03/06/09 Decl. of Al Kandari.); Ex. 7 (10/27/04 Al Kandari SIR). While in Pakistan, he studied at Sheik Arrahmani's school. Ex. 139 at ¶ 3 (03/06/09 Decl. of Al Kandari). After staying with Sheik Arrahamani in Pakistan for approximately two months, Al Kandari decided to travel to Afghanistan for the purposes of doing charitable work. Ex. 139 at ¶ 3 (03/06/09 Decl. of Al Kandari). According to Al Kandari, this decision was consistent with his prior history of doing charitable work, which includes traveling to other countries such as Pakistan and Bosnia to assist with charitable projects. Ex. 139 at ¶¶ 2, 11 (03/06/09 Decl. of Al Kandari); Ex. 28 (05/06/02 Al Kandari FD-302); Ex. 6 (03/18/03 Al Kandari MFR); Ex. 74 (05/23/02 Al Kandari FD-302). See also Ex. 140 (02/22/09 Decl. of M. Al Kandari).
Al Kandari left Pakistan in or around August of 2001 to head to Afghanistan. Ex. 139 at ¶ 3 (03/06/09 Decl. of Al Kandari);
At al-Wafa, Al Kandari inquired about opportunities for charitable work and was directed by a member of the organization to a village located approximately 45 minutes to one hour outside of Kabul. Ex. 139 at ¶¶ 4-5 (03/06/09 Decl. of Al Kandari); Ex. 7 (10/27/04 Al Kandari SIR); Ex. 27 (11/20/03 Al Kandari IIR). He traveled to this unnamed village, arriving sometime in early September 2001. Ex. 139 at ¶ 5 (03/06/09 Decl. of Al Kandari); Ex. 28 (05/06/02 Al Kandari FD-302). While there, Al Kandari worked on a charity project digging a well for the community. Ex. 139 at ¶ 5 (03/06/09 Decl. of Al Kandari). He stayed in this village for approximately one and a half months until Coalition forces began bombing Afghanistan, which the Court takes judicial notice occurred on October 7, 2001. Ex. 139 at ¶ 5 (03/06/09 Decl. of Al Kandari); Ex. 7 (10/27/04 Al Kandari SIR); Ex. 28 (05/06/02 Al Kandari FD-302); Ex. 99 (Timeline of Operation Enduring Freedom).
At that time, Al Kandari realized that he should leave Afghanistan. Ex. 139 at ¶ 6 (03/06/09 Decl. of Al Kandari). He left the village where he had been staying and returned to Kabul. Ex. 139 at ¶ 6 (03/06/09 Decl. of Al Kandari); Ex. 28 (05/06/02 Al Kandari FD-302). He went back to the al-Wafa office there, but found that it was closed. Ex. 139 at ¶ 6 (03/06/09 Decl. of Al Kandari); Ex. 28 (05/06/02 Al Kandari FD-302). A taxi cab driver suggested that he go to Jalalabad and offered to take him there for a large sum of money. Ex. 139 at ¶ 6 (03/06/09 Decl. of Al Kandari); Ex. 28 (05/06/02 Al Kandari FD-302). Upon arriving in Jalalabad, Al Kandari met a Saudi named Abdul Rahman al Kasimi, who permitted Al Kandari to stay at his house for approximately two days. Ex. 139 at ¶ 6 (03/06/09 Decl. of Al Kandari); Ex. 28 (05/06/02 Al Kandari FD-302). Al Kandari explains that fighting was breaking out everywhere, and Arabs were being rounded up by police and militias to be handed over in exchange for money. Ex. 139 at ¶ 7 (03/06/09 Decl. of Al Kandari). He joined with a small group of Arabs who were trying to flee the fighting through the Tora Bora mountains. Ex. 139 at ¶ 7 (03/06/09 Decl. of Al Kandari). The group walked for a few days in the mountains, but they were eventually captured by Afghani villagers while staying the night at a village home owned by an unidentified Afghani. Ex. 139 at ¶ 7 (03/06/09 Decl. of Al Kandari); Ex. 27 (11/20/03 Al Kandari IIR). Al Kandari was later transferred into American custody. Ex. 139 at ¶ 7 (03/06/09 Decl. of Al Kandari); Ex. 27 (11/20/03 Al Kandari IIR).
Having reviewed all of the evidence in the record and listened to counsel's arguments during the Merits Hearing, the
First, Al Kandari's version of events suffers from several inconsistencies that have not been explained. Although Al Kandari has maintained the same general explanation for his time in Afghanistan throughout his detention—that he traveled to Afghanistan for charitable purposes; engaged solely in charitable activities while there; and was captured while attempting to flee to Pakistan to avoid the ongoing fighting in Afghanistan—the specific details provided by Al Kandari regarding his activities have varied and have even conflicted at times. For example, Al Kandari has offered conflicting statements as to the identify of the individual he spoke with at the al-Wafa office in Kabul when he initially inquired about possible charitable opportunities and was referred to the unnamed needy village. Al Kandari has variously asserted that he spoke with: (a) an unidentified worker at the al-Wafa office, but was unable to speak with the Director, whom Al Kandari explained was not present at the office at that time of his visit, Ex. 7 (10/27/04 Al Kandari SIR); (b) a man whom he believed at the time to be the Director of the Kabul al-Wafa office and whom he later learned upon his arrival at Guantanamo Bay was Abdallah Al Matrafi (ISN 005), Ex. 27 (11/20/03 Al Kandari IIR); see also Ex. 32 (11/20/03 Al Kandari IIR) (met with [Redacted] at the al-Wafa office), a Saudi whom the Government identifies as [Redacted] Ex. 25 [Redacted] Decl.); Ex. 32 (11/20/03 Al Kandari IIR);
In addition, Al Kandari has offered conflicting reasons for his initial decision to travel to Pakistan and then to Afghanistan. During an interrogation in May of 2002, Al Kandari explained that he went to Pakistan to look up a Sheik, whose name he could not recall, with whom Al Kandari had been in communication; he stated that he stayed at the Sheik's apartment, which was located near an unidentified Islamic school, for approximately two months before then traveling to Afghanistan after learning that there had been a famine in that country. Ex. 28 (5/6/2002 Al Kandari FD-302). In both an October 2004 interrogation and in his present declaration, however, Al Kandari stated that he had actually been invited to Pakistan by Sheik Arrahmani, whom he was able to identify by name, to study at the Sheik's madrassa. Ex. 7 (10/27/04 Al Kandari SIR); Ex. 139 at ¶ 3 (03/06/09 Decl. of Al Kandari). Al Kandari also initially advised interrogators that he had first heard about al-Wafa from
Al Kandari has also offered inconsistent statements regarding his travel path immediately after the bombing campaign began in October of 2001. He stated on one occasion that, upon returning to Kabul and discovering the al-Wafa office closed, he initially decided to travel south away from Kabul and then decided to reverse his travel path and head to Jalalabad only after traveling south for an unspecified period of time. Ex. 27 (11/20/03 Al Kandari IIR). Al Kandari has otherwise indicated, however, that he left Kabul directly for Jalalabad, which the Court takes judicial notice is east of Kabul. Ex. 74 (05/23/02 Al Kandari FD-302) (stating he located a taxi driver to drive him directly from Kabul to Jalalabad); see also Ex. 28 (05/06/02 Al Kandari FD-302); Ex. 139 at ¶ 6 (03/06/09 Decl. of Al Kandari).
Finally, Al Kandari has provided conflicting statements as to whether he met with Anas Al Kandari ("Anas"), while in Afghanistan. Al Kandari repeatedly admitted to Government interrogators on multiple occasions that he met Anas during his visit to the Kabul office of al-Wafa, Ex. 7 (10/27/04 Al Kandari SIR); Ex. 28 (05/06/02 Al Kandari FD-302); Ex. 32 (11/20/03 Al Kandari IIR); Ex. 43 (10/06/05 Al Kandari IIR); Ex. 122 (6/15/05 Al Kandari SIR), and that Anas told Al Kandari during this meeting that he and an associate, Jassem Al Hajeri, had recently received military training at the Libyan camp in Afghanistan, Ex. 28 (05/06/02 Al Kandari FD-302); Ex 43 (10/06/05 Al Kandari IIR); Ex. 122 (6/15/05 Al Kandari SIR). However, in his declaration submitted nearly eight years later as part of this litigation, Al Kandari denies these admissions for the first time, stating that he "did not meet Anas Al Kandari in Afghanistan" and that he has "no knowledge about anything [Anas] did." Ex. 139 at ¶ 17 (03/06/09 Decl. of Al Kandari). The Court finds that Al Kandari's contradictory denial in his declaration, made without further explanation, is not credible, and therefore serves to undermine the credibility of his declaration. Al Kandari's prior admissions with respect to Anas are consistent across several interrogations, and there is no indication in any of the interrogation reports that his admissions on this point were viewed by the interrogators themselves as incredible or unreliable. It is also significant that Al Kandari never recanted his admission that he met and spoke with Anas at al-Wafa during any of the multiple interrogations in which he consistently admitted to having met Anas in Afghanistan.
Second, Al Kandari's explanation of events does not fully account for his time in Afghanistan. Al Kandari maintains that he remained in the unnamed village outside of Kabul until Coalition forces began their bombing campaign on Sunday, October 7, 2001, at which time he states that he returned to Kabul. As the unnamed village in which Al Kandari stayed was allegedly located only 45 minutes to one hour by car outside of Kabul, it is reasonable to infer that his return trip from the unnamed village to Kabul would have taken no more than one day.
Upon his arrival in Jalalabad, Al Kandari states that he stayed with al Kassimi in Jalalabad for two days. He then joined a group of Arabs who were trying to flee through the mountains of Tora Bora and traveled with them for a few days in the mountains before he was ultimately captured
Moreover, the fact that Al Kandari was unwilling repeatedly to provide a full explanation for his time and activities in Afghanistan is itself evidence that undermines the veracity of his version of events. Al Kandari is by no means an unsophisticated individual, having studied Shari'a law at college in Ra's al Khayman, United Arab Emirates. Stip. of Fact ¶ 14. His interrogators repeatedly noted as much, observing him to be "very polite and well-educated" and "smart with the attitude that the interrogation team cannot catch him." Ex. 6 (03/18/03 Al Kandari MFR); Ex. 118 (08/05/03 Al Kandari MFR). The evidence in the record strongly suggests that Al Kandari has affirmatively chosen not to provide any detailed information about his time in Afghanistan. In late 2002, Al Kandari explicitly advised his interrogators that, although he was willing to discuss certain issues, he would not talk about his activities in Afghanistan. Ex. 48 (12/13/02 Al Kandari IIR); cf. Ex. 43 (10/06/05 Al Kandari IIR) (assessing Al Kandari as "deceptive" and concluding that he "is most likely withholding information"); Ex. 122 (6/15/02 Al Kandari SIR) (assessing Al Kandari as "deceptive" and noting that he "appears to cooperate but offers information of insignificant value"). Similarly, in his testimony during his Administrative Review Board ("ARB") Proceeding, Al Kandari declined to explain his activities in Afghanistan. See generally Ex. 121 (Al Kandari ARB Statement). In his declaration submitted in support of his habeas petition, Al Kandari once again declined to provide any specific details regarding his time in Afghanistan or to address any of the deficiencies identified above. See generally Ex. 139 (03/06/09 Decl. of Al Kandari). While recognizing that Al Kandari has no burden to prove his innocence in these habeas proceedings, his repeated unwillingness to provide details as to his time in Afghanistan is nonetheless inconsistent with, and undermines the credibility of, his claim that he was an innocent charity worker who became inadvertently trapped in Afghanistan in the wake of September 11, 2001.
Third, Al Kandari's explanation is not credible in certain aspects. Although Al Kandari maintains that he remained in the unidentified needy village for approximately one and a half months, during which time he stayed in the village leader's house, Al Kandari has been consistently unable to recall or otherwise identify the name of that village or anyone in it or provide any other identifying information. Ex. 7 (10/27/04 Al Kandari SIR); Ex. 27 (11/20/03 Al Kandari IIR); Ex. 139 at ¶ 5 (03/06/09 Decl. of Al Kandari). Yet he is able to easily recall the name of a restaurant near which he stayed for two days while in Kandahar on his way to Kabul in August of 2001. See Ex. 27 (11/20/03 Al Kandari IIR) (explaining that he stayed at a hotel located near the Ariana restaurant in Kandahar for two days); Ex. 28 (05/06/02 Al Kandari FD-302) (same); Ex.
In addition, Al Kandari's assertion that he visited al-Wafa solely for assistance in locating a village where he could do charitable work, and that he "never had any reason to suspect" that al-Wafa was associated with al Qaeda, is not credible on the present record. Al Kandari has acknowledged that Suleiman Abu Ghaith was present at the al-Wafa office in Kabul during his visit, and that he himself was aware of Abu Ghaith's presence at the al-Wafa office, although he maintains that he did not see or speak with Abu Ghaith at that time. Ex. 32 (11/20/03 Al Kandari IIR); cf. Ex. 139 at ¶ 27 (03/06/09 Decl. of Al Kandari) (stating that he did not see or speak with Abu Ghaith in Afghanistan, but containing no denial of his statement that he was told Abu Ghaith was also present at the al-Wafa office in Kabul). Al Kandari has also admitted that Abu Ghaith is associated with al Qaeda, describing him in multiple interrogations as Usama Bin Ladin's spokesman, a fact that is uncontroverted on the present record. See Ex. 32
Similarly, Al Kandari's assertion that he, along with a group of other noncombatants, "were trying to flee the fighting through the Tora Bora mountains" is not credible. While Al Kandari refers generally to the "Tora Bora mountains," the Government's uncontroverted record evidence explains that "Tora Bora is the name of a cave complex, approximately 9.5 km wide and 10 km long, embedded within a 100 mile stretch of the White Mountains of Eastern Afghanistan." Ex. 34A at 1 (19/10/09 Decl. of [Redacted] This cave complex was used in the 1990's by Usama Bin Ladin as his headquarters, and he returned there in late 2001 after the fall of the Taliban regime in Afghanistan to join the many Taliban and al Qaeda fighters who had retreated to the complex to make their last stand against the United States and its allies. Id. at 2. Travel from Jalalabad to Tora Bora took approximately "10 to 15 hours over donkey trails through difficult terrain." Id. at 3. Its remote location, combined with the fact that the "Tora Bora cave complex has historically been used by al-Qaida and its precursor organizations as a fortified defensive position," makes it unlikely that Al Kandari simply wandered from Jalalabad into the mountains near and around Tora Bora. Id. Similarly, in light of "Usama Bin Ladin's widely known call for fighters to join him ... at Tora Bora" and his "robust operational security procedures," it is unlikely that Al Kandari, as a noncombatant, would have gone to Tora Bora or would have even been allowed into the area by al Qaeda or Taliban forces, if he had managed to make it there. Id. at 4.
This is particularly so in this case, given the Court's findings below that, while in Tora Bora, Al Kandari was given a Kalishnikov
In summary, then, the Court finds that Al Kandari's explanation for his travel to and activities within Afghanistan is not plausible for the reasons set forth above. While Al Kandari does not bear the burden of proving his innocence, the Court's finding that his version of events is not worthy of belief is itself of some probative value. Recent D.C. Circuit precedent counsels that the provision by a detainee of an implausible explanation for his activities in Afghanistan is a relevant consideration in these habeas proceedings given the "well-settled principle that false exculpatory statements are evidence—often strong evidence—of guilt." Al-Adahi v. Obama, 613 F.3d 1102, 1107 (D.C.Cir.2010). The Government has also introduced evidence that the particular explanation provided by Al Kandari in this case is consistent with al Qaeda counter-interrogation tactics. See Ex. 50 (02/10/08 Decl. of [Redacted] Id. at 2; see also Al-Adahi, 613 F.3d at 1111 ("Put bluntly, the instructions to detainees [Redacted] Ex. 50 at 3 (02/10/08 Decl. of [Redacted] Evidence that Al Kandari provided an implausible explanation for his reasons for traveling to and his activities within Afghanistan, and that the explanation provided is consistent with al Qaeda counter-interrogation tactics, therefore supports a reasonable inference that Al Kandari was not in Afghanistan solely to assist with, and did not engage solely in, charitable work, as claimed. While this inference standing alone is insufficient to find that Al Kandari became "part of the forces of the Taliban or al Qaeda, the Court finds that this evidence is probative and shall be considered in the context of the other record evidence.
The Court turns next to consider Al Kandari's statements and admissions against interest made to Government interrogators regarding his activities and association with members of al Qaeda, the Taliban, or associated enemy forces, while in Tora Bora. Although significant portions of Al Kandari's time in Afghanistan are not accounted for, Al Kandari was, by his
Significantly, Al Kandari has admitted that during this time he (a) was given a Kalishnikov rifle and taught how to use it, and (b) met and associated with various members and high-level leaders of al Qaeda, the Taliban, or associated enemy forces. For the reasons set forth below, the Court finds that Al Kandari's statements and admissions as to these two points are both reliable and credible, and demonstrate that it is more likely than not that Al Kandari was part of forces associated with al Qaeda or the Taliban. In reaching this conclusion, the Court proceeds in three steps. First, the Court shall discuss Al Kandari's admission that he was armed with a Kalishnikov rifle while in Tora Bora and explain both why this admission is reliable and credible and why it is reasonable to infer that the individual who provided Al Kandari with the weapon and training was more likely than not associated with al Qaeda and/or the Taliban. Second, the Court shall discuss Al Kandari's admissions that he met and associated with several individuals while in Tora Bora, describe the Government's evidence connecting these same individuals with al Qaeda and/or the Taliban, and explain why both Al Kandari's admissions and the Government's evidence on these issues are reliable and credible. Third and finally, the Court shall explain why this evidence is sufficient by itself to satisfy the Government's burden of proof in this case.
Al Kandari admitted to Government interrogators that he was given a Kalishnikov rifle and taught how to use it while he was in Tora Bora. Ex. 28 (05/06/02 Al Kandari FD-302). The statement, as reported in Exhibit 28, reads in relevant part as follows:
At the Merits Hearing, Al Kandari's counsel argued that this admission against interest is unreliable. In particular, counsel maintained that the statement is ambiguous and appears to indicate that Abu Sulaiman, not Al Kandari, was given a gun and taught how to use it: "The `he' there is entirely ambiguous, but given the past tense, it would appear that this is Al Kandari continuing to relate what this Abu Sulaiman told him about his military training." 10/20/09 (AM) Mrts. Hr'g Tr. at 18:23-19:1. The Court is unpersuaded by this argument. As an initial matter, this assertion is advanced solely by counsel. Al Kandari himself has never denied, in his other statements to Government interrogators or in his declaration, that he was given a weapon and taught how to use it while in Tora Bora. See Ex. 139 (03/06/09 Decl. of Al Kandari); 10/20/09 (AM) Mrts. Hr'g Tr. at 48:5-10 ("[Al Kandari] had this document and he has never denied carrying the Kalishnikov. That is nowhere in his declaration."). Similarly, although Exhibit 28 was attached to the Amended Factual Return in this case, Al Kandari himself has never claimed that he advised interrogators that the Kalishnikov rifle was given to Abu Sulaiman, and not to him.
Moreover, contrary to his counsel's assertions, the statement by Al Kandari is not ambiguous. Each sentence of the paragraph cited above reports what Al Kandari stated to the Government interrogators, and the paragraph as a whole is written entirely in the past tense. The phrase "he stated" is consistently used throughout the report to indicate that the information that follows is derived from oral declarations made by Al Kandari to the interrogators. The only fair reading of this paragraph is as follows:
The argument advanced to the contrary by Petitioner's counsel is without merit.
The Court notes that Exhibit 28 is a FD-302. The Government has submitted a declaration outlining the relevant standards and procedures that the FBI follows in producing FD-302s. See Ex. 56 (Decl. [Redacted] As explained therein, FD-302s are used to [Redacted]
Petitioner's counsel nonetheless argued at the Merits Hearing that various inconsistencies in Exhibit 28 demonstrate that the document as a whole is unreliable. For example, counsel noted that the document is dated May 6, 2002, but contains information gathered from interrogations on May 2 and 13, 2002. As explained in
Petitioner's counsel also noted that the document reports statements by Al Kandari that (a) "he went to Afghanistan in June, 2001," and (b) "in August, 2001, ... he went to Qandahar, Afghanistan...." Counsel argued that these statements are inherently contradictory and cast doubt on the reliability of the statements in the document. The Court disagrees. A statement that an individual went to Afghanistan in June of 2001 does not necessarily conflict with a statement that the same individual also went to Afghanistan in August of 2001. Regardless, to the extent these particular statements conflict, such a conflict at most affects the reliability of the statement that Al Kandari traveled to Afghanistan in June of 2001, as the parties have stipulated that Al Kandari traveled to Afghanistan in August of 2001. Stip. of Fact ¶ 15. The Court, however, has not relied on the statement that Al Kandari traveled to Afghanistan in June of 2001 in reaching its findings in this case, and it remains unpersuaded that this alleged conflict is material to the reliability of Al Kandari's uncontroverted admission against interest that he was in Tora Bora during Ramadan and that he was given a Kalishnikov rifle and taught how to use it at that time. Cf. Abdah, 709 F.Supp.2d at 37 n. 16 (rejecting detainee's assertion that his statements in intelligence reports are inaccurate, in part because "none of the minor discrepancies to which [the detainee] points ... are sufficiently important to have bearing on the Court's determinations regarding the main, relevant facts"). Accordingly, upon considering the evidence in the record and the parties' arguments thereto, the Court finds that Al Kandari's uncontroverted admission that he was armed with, and trained on the use of, a Kalishnikov rifle while in Tora Bora is both credible and reliable.
The Court next discusses Al Kandari's statements and admissions against interest regarding his associations with members of al Qaeda, the Taliban, or associated forces, while he was in Tora Bora. Specifically, Al Kandari has acknowledged that he met and associated with the following individuals during this time: (a) Ibn Sheik Al Libi; (b) Abdul Qadous; (c) Abu Thabit; (d) Abu Hamza al-Masri; and (e) Mohammed Taha Malu-Allah. The Government has in turn introduced evidence, both from Al Kandari himself as well as from third-party sources, that each of these individuals was more likely than not associated with al Qaeda and/or the Taliban. For the reasons set forth below, the Court finds that both Al Kandari's admissions regarding his associations with these individuals and the Government's evidence associating each of these individuals with al Qaeda and/or the Taliban are reliable and credible.
To corroborate Al Kandari's own admission that Al Libi was leading fighters on behalf of al Qaeda, the Government has submitted additional evidence supporting a finding that Al Libi was a member of al Qaeda (or its associated forces) and that he was charged with leading fighters during the Battle of Tora Bora. See, e.g., Ex. 1 at 436 (National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission Report (2004)) (listing Al Libi as "head of jihadist training camp in Afghanistan"); Ex. 72 (11/21/02 Muhammed Noor Othman Muhammed (ISN 707) FD-302) (identifying Al Libi as the individual in charge of the Khaldan training camp, at which detainee worked from 1996 to 2000); Ex. 88 (9/6/03 Hamud Dakhil Al-Jidani, a.k.a. Talut (ISN 230) MFR) (identifying Al Libi as former commander of Khaldan training camp and a leader at Tora Bora). The Court finds this evidence is sufficiently reliable to corroborate Al Kandari's own admission against interest concerning Al Libi's association with al Qaeda, evidence which is uncontroverted on the present record. In particular, with respect to the detainee statements, the Government has identified the sources of both statements, and the documents each indicate therein that the detainees' statements regarding Al Libi are based on personal knowledge.
To corroborate Al Kandari's own statements identifying Qadous as an individual associated with al Qaeda (or its associated forces), the Government has submitted certain statements by Abdul Latif Nasir, a.k.a. Taha (ISN 244). In these statements, ISN 244, a self-admitted participant in the Battle of Tora Bora, identifies Qadous as a leader of fighters at Tora Bora and the former head of the Al Farouq training camp. See Ex. 52 (07/01/03, Abdul Latif Nasir (ISN 244) IIR); Ex. 135 (05/11/02 Abdul Latif Nasir (ISN 244) FD-302); Ex. 136 (03/10/04 Abdul Latif, Nasir (ISN 244) FD-302); see also Ex. 14 at 2 (09/19/08 Dec. of [Redacted] The Court
This finding is further supported by two additional statements made by Al Kandari to Government interrogators, which statements the Government has submitted to corroborate Al Kandari's admission that he met with Abu Thabit in Tora Bora and that Abu Thabit was, at the time, assisting and/or supporting al Qaeda, the Taliban, or associated enemy forces. First, the Government has submitted an intelligence report containing a statement by Al Kandari confirming that he knew Abu Thabit. Ex. 38 (12/04/03 Al Kandari IIR). While this statement does not contain any specific information as to the circumstances in which Al Kandari knew Abu Thabit, the statement nonetheless corroborates Al Kandari's admission in Exhibit 74 to the extent it confirms that he knew Abu Thabit.
[Redacted]
Al Kandari objects to the Court's reliance on this latter exhibit, [Redacted] on the basis that the document remains classified and counsel has been unable to either show the document to Al Kandari or to advise Al Kandari about the specific statements contained therein. [Redacted] While the Court understands Petitioner's frustration with the Government's refusal [Redacted] the Court finds that Al Kandari is not prejudiced by the Court's reliance on [Redacted] for the sole purpose of corroborating statements Al Kandari has made [Redacted] statements which Al Kandari has been permitted to see and discuss with his attorneys. In this instance, Al Kandari has had a full opportunity to review and respond to, and to have his counsel investigate, the substantive allegations upon which the Court relies and for which [Redacted] is corroborative evidence [Redacted] These are new allegations that Al Kandari has not previously seen, as they are also repeated in other documents to which Al Kandari has had access. The Court therefore shall not exclude from consideration [Redacted] insofar as the exhibit is relied upon only to corroborate other statements previously disclosed to Al Kandari concerning Abu Thabit.
To corroborate these admissions, the Government has introduced two additional statements from Al Kandari. First, the Government has directed the Court to a statement by Al Kandari confirming that he knew an Egyptian named Hamza. Ex. 38 (12/04/03 Al Kandari IIR). According to the Government's undisputed evidence, "Al-Masri" means "The Egyptian." Ex. 13 (09/19/08 Decl. of [Redacted] App. A (Common Country and Tribal Names). Al Kandari has not disputed that the Abu Hamza al-Masri referenced in Exhibit 74 is the same Hamza, the Egyptian, referenced in Exhibit 38, and the Court finds that this is a reasonable inference. Although Al Kandari's statement in Exhibit 38 that he knew al-Masri does not specify how Al Kandari knew al-Masri or indicate that he met with al-Masri in Tora Bora, it does partially corroborate Al Kandari's admission in Exhibit 74 insofar as it confirms that Al Kandari knew al-Masri.
Second, the Government has submitted a statement [Redacted] While Al Kandari again objects to the Court's reliance on this latter exhibit, [Redacted] the Court finds for the reasons explained above that Al Kandari is not prejudiced by the Court's reliance on [Redacted] for the sole purpose of corroborating statements Al
In contrast to these admissions, the Court has located one instance in the record in which Al Kandari advised Government interrogators that the last time he
The above discussion supports the following three findings based on Al Kandari's own statements and admissions against interest. First, Al Kandari was in Tora Bora during the most intense portion, if not the entirety, of the Battle of Tora Bora. Second, during that time, he was given a Kalishnikov rifle and provided training on how to use it, more likely than not by an individual who was a member of or otherwise associated with al Qaeda and/or the Taliban. Third, during this time, Al Kandari also met and associated with several members and high-level leaders associated with al Qaeda and/or the Taliban, many of whom were actively engaged in or were otherwise supporting those who were fighting the United States and its allies, including: (a) Ibn Sheik Al Libi; (b) Abdul Qadous; (c) Abu Thabit; (d) Abu Hamza al-Masri; and (e) Mohammed Taha Malu-Allah. In summary, then, Al Kandari was, by his own admission, in Tora Bora during the height of the Battle of Tora Bora, carrying a Kalishnikov rifle, and associating with several members and high-level leaders of al Qaeda, the Taliban, or associated enemy
Taken in their totality and considered in context with the Court's determination above that Al Kandari's explanation for his activities in Afghanistan is implausible, these findings demonstrate that it is more likely than not that Al Kandari was part of al Qaeda, the Taliban, or associated enemy forces. Far from constituting mere evidence of "guilt by association," as Al Kandari's counsel argued at the Merits Hearing, evidence that Al Kandari was given a weapon, more likely than not by a member of the enemy forces fighting at Tora Bora, and permitted to associate with high-level leaders of al Qaeda, the Taliban, or their associated forces in Tora Bora, while these same individuals were actively engaged in fighting the United States and its Coalition partners, demonstrates that Al Kandari was known to and trusted by al Qaeda and/or the Taliban (and associated forces). As the Court previously observed, it defies common sense that al Qaeda, the Taliban, or their associated enemy forces, would permit an unknown and untested noncombatant, armed with a Kalishnikov rifle, to wander through Tora Bora and to interact with its lighters and their leaders, all the while the Battle of Tora Bora raged on around them. To the contrary, that al Qaeda, the Taliban, and its associated enemy forces, permitted Al Kandari to associate with and be near their members while they were actively engaged in fighting Coalition forces makes it more likely than not that he himself was also part of the forces associated with al Qaeda and/or the Taliban. Cf. Sulayman, 729 F.Supp.2d at 50, 2010 WL 3069568 at *18 ("[T]he Court simply cannot fathom a situation whereby Taliban fighters would allow an individual to infiltrate their posts near a battle zone unless that person was understood to be a `part of the Taliban."); Al-Adahi v. Obama, 698 F.Supp.2d 48, 65 (D.D.C.2010) (hereinafter, "Al-Assani") ("the fact that Petitioner was clearly accepted by al-Qaida, at a minimum, as a substantial supporter of the organization further supports the conclusion that it is more likely than not that Petitioner knowingly was a part of or substantially supported al-Qaida").
Similarly, it is inconceivable that al Qaeda, the Taliban, or their associated enemy forces, would willingly arm Al Kandari with a Kalishnikov rifle and take the time to train him on its proper use, unless Al Kandari himself was part of these organizations. Cf. Anam v. Obama, 696 F.Supp.2d 1, 16 (D.D.C.2010) ("Al-Qaida fed, sheltered, and protected [the detainee].... The only logical explanation as to why al-Qaida did all of this for Petitioner is that they considered him a member. Petitioner must have taken some affirmative action to earn that trust and assistance from such a clandestine organization."). The Court emphasizes that the evidence here does not indicate merely that Al Kandari possessed a weapon, but rather supports a reasonable inference that he was given the Kalishnikov rifle while in Tora Bora during the Battle of Tora Bora and was trained on its use by an individual who was more likely than not associated with al
While there is no direct evidence in the record that Al Kandari personally used this weapon against the United States or its Coalition partners, such evidence is not required. Al Bihani, 590 F.3d at 872-73 (proof that an individual actually fought for or on behalf of al Qaeda or the Taliban, while sufficient, is also not required to demonstrate that an individual is a "part of such enemy forces); cf. Khalifh v. Obama, Civ. Act. No. 05-1189, 2010 WL 2382925, at *6 (D.D.C. May 28, 2010) ("While ... the government has not shown that Khalifh ... personally took up arms against U.S. or coalition forces, it is slicing the law too thin to require such proof."). Nonetheless, given the evidence in this case, the Court notes that it is reasonable to infer that Al Kandari, like the other armed combatants around him, was actively engaged in fighting the United States and its allies. Indeed, the alternative— that he himself was armed, in Tora Bora, during the Battle of Tora Bora, in the company of armed al Qaeda, Taliban and associated fighters, but was simply an island unto himself with no involvement in the fighting going on around him—is not credible. Abdah, 709 F.Supp.2d at 47-48, 2010 WL 1798989, at *20 (fact that detainee was with men who were involved in the Battle of Tora Bora supported finding that detainee was more likely than not part of al Qaeda forces at Tora Bora, even though there was no evidence directly showing that this detainee himself engaged in any fighting).
Importantly, by Al Kandari's own admission, he was aware that the individuals he chose to associate with while in Tora Bora were members of and were associated with al Qaeda and/or the Taliban. Though his motives for coming to Afghanistan and his activities prior to the Battle of Tora Bora cannot be conclusively determined on the present record, at a minimum it is clear that Al Kandari knew by the time of his stay in Tora Bora that it was more likely than not that he was joining forces with and lending support to al Qaeda and/or the Taliban. This is all the Government need prove. Al-Assani, 698 F.Supp.2d at 57 ("The fact that an individual may have been initially motivated to travel abroad for innocent reasons, or that an individual's knowledge or intent was less than clear at inception of his journey, does not defeat the Government's case. Instead, it is sufficient for the Government to prove by a preponderance of the evidence that, at some point before capture, it is more likely than not that Petitioner knew he was becoming or intended to become a part of or substantial supporter of al-Qaida and/or the Taliban.").
Given the overwhelming weight of the evidence discussed above, Al Kandari's blanket denials in his declaration that he "never supported al-Qaida or any group that promotes violence" and that he was "not a part of any fighting groups" nor ever "associated in any way with any fighting groups in Tora Bora," are simply not credible. Ex. 139 (03/06/09 Decl. of Al Kandari), ¶¶ 22, 25, 29. In almost every significant respect, Al Kandari has failed to provide plausible explanations for his activities in Afghanistan and the choices he made as to his movements and associations in Tora Bora. Accordingly, taken as a whole, the Court finds that this record
During the course of the Merits Hearing, the Government presented certain other evidence in support of its position that Al Kandari is lawfully detained pursuant to the President's authority under the AUMF. For the reasons set forth above, the Court finds that this additional evidence submitted by the Government is not necessary to its decision that it is more likely than not that Al Kandari was part of al Qaeda, the Taliban, or associated enemy forces. Nonetheless, the Court shall briefly address such evidence below.
[Redacted] Nonetheless, as made clear by the Court's finding above, the Government's evidence regarding [Redacted] is not necessary to the Court's conclusion that Al Kandari is more likely than not part of al Qaeda, the Taliban, or associated enemy forces. The Court therefore need not, and does not, assess the document's reliability or reach the question of what probative value, if any, this evidence is entitled to in the case at hand.
The remaining evidence in the record consists largely of third-party witness statements, newspaper reports, and other documentary evidence. For the reasons previously explained, this evidence is also unnecessary to the Court's decision. Moreover, the Court finds that certain of the Government's allegations, such as its assertion that Al Kandari participated in jihad in Bosnia in the middle to late 1990's, are not material to its determination above that Al Kandari is lawfully detained as a result of his activities in Afghanistan in 2001, and therefore need not be reached. The remainder of the Government's evidence concerns allegations that the Court finds are unnecessary to its determination and which, for a variety of reasons, the Court does not reach. This includes the Government's allegations that Al Kandari: made a previous trip (or multiple previous trips) to Afghanistan prior to the undisputed August 2001 trip discussed above, during which trips he stayed at guesthouses and attended training camps related to al Qaeda and/or the Taliban; was a close associate of certain high-level leaders and members of al Qaeda and/or the Taliban, including Usama Bin Laden, Adel bu Hamid, a.k.a. al Qannas, Suleiman Abu Ghaith, and Abu Zubaydah; served as a religious leader and provided religious training to al Qaeda and Taliban members; mentored and advised Anas Al Kandari and other members of the six-person cell that eventually carried out the October 8, 2002 attack on Faylaka Island; and was engaged in the creation and dissemination of propaganda on behalf of al Qaeda and/or the Taliban. The evidence submitted in support of these allegations, inter alia: is in equipoise; is based on statements and other evidence that is far more attenuated, and requires far more inferences, than the evidence on which the Court has relied in this case; and consists of information obtained from unknown sources or known sources that the Government refuses to identify, and for which the Government otherwise has not provided sufficient information regarding the circumstances in which the statements were made.
Because the Government has met its burden by a preponderance of the evidence in this case, the Court shall DENY Al Kandari's petition for habeas corpus.
