UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MOHAMMEDOU aULD SALAHI

Petitioner, Civil Action No. OS-CV-0569 v. BARACK H. OBAMA, et al.,

Respondents.

MEMORANDUM ORDER

Mohammedou QuId Salahi (ISN 760), a Mauritanian

national, alleges that he is illegally detained at

Guantanamo Bay Naval Base and petitions this court for a

writ of habeas corpus to secure his release.

Salahi has been in custody, without being charged

with any crime, since November III 2001. He was first

taken into custody by on

suspicion that he had been involved in the failed

"Millennium Plot" to bomb the Los Angeles International

Airport. The United States

IIIIIIII transported him to Guantanamo Bay in August 2002,

Traverse Exhibit ("Tr. Exh.") BBB, ~ 50. He has been there

ever since. He filed this petition in 2005, but his case,

like all other habeas corpus petitions from Guantanamo Bay,

was put on hold until the Supreme Court decided that

Guantanamo detainees have a right to habeas proceedings and

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that this court has jurisdiction to hear them. Bournediene

v. Bush,

(2008). With Judge Hogan's omnibus

Case Management Order as a guide, I heard the merits of

Salahi's petition and of the government's response on

August 27 and 28, 2009, and on December 14 and 15, 2009.

Salahi appeared and testified by video feed from

Guantanamo. After the hearing, Salahi and the government

filed post-hearing briefs.

The government's case, essentially, is that

Salahi was so connected to al-Qaida for a decade beginning

in 1990 that he must have been "part of" al-Qaida at the

time of his capture. The allegations are that Salahi was a

recruiter for al-Qaida - that indeed he recruited two of

the men who became 9/11 hijackers and a third who became a

9/11 coordinator; that he actively supported his cousin,

who is or was one of Osarna Bin Laden's spiritual advisorsj

that he carried out orders to develop al-Qaida's

telecommunications capacity; and that he had connections

with an al-Qaida cell in Montreal.

Salahi concedes that he traveled to Afghanistan

in early 1990 to fight jihad against communists l and that

there he swore bayat to al-Qaida. He maintains, however,

that his association with al-Qaida ended after 1992, and

The Soviet Union had withdrawn from Afghanistan in 1989.

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that, even though he remained in contact thereafter with

people he knew to be al-Qaida members, he did nothing for

al-Qaida after that time. Tr. Exh. BBB.

The government's case relies heavily on

statements made by Salahi himself, but the reliability of

those statements - most of them now retracted by Salahi ­

is open to question.

I. Legal Standards

If the government has any authority to detain

Salahi without charging him with a crime, its source is the

Authorization for Use of Military Force,

Stat. 224 (2001).

"The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, 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." Authorization for Use of Military Force,

Stat. 224 (2001).

That purpose, the "prevent [ion of] any future acts of

international terrorism," has the Supreme Court's seal of

approval, see Boumediene,

("The law must

accord the Executive substantial authority to apprehend and

detain those who pose a real danger to our security.") ­

those who, as the government argued in Hamdi v. Rumsfeld,

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(2004), were "part of or supporting

forces hostile to the United States or coalition partners

. . and who engaged in an armed conflict against the United

States." (internal quotations omitted) .

A. UPart of" and Usubstantial support"

Following Hamdi and Boumediene, the President's

power to detain, and the development ot tests to determine

who was "part of" al-Qaida or the Taliban and what

constituted "substantial support" were left to the lower

courts.

In this case, until very recently, the government

has focused entirely on its assertion that Salahi was "part

of" al-Qaida,2 relying on evidence of Salahi's pre-capture

support of al-Qaida only to bolster that assertion. In an

eleventh hour brief, the government has invoked the

"purposeful[] and material[] support" standard that was

approved in AI-Bthan! v. Obama,

, 872 (D.C.

Cir. 2010), inviting the denial of Salahi's petition on

that basis as well - or in the alternative. Respondents'

Response to Petitioner's closing Brief, at 12-13. 3

The government also argued at first that Salahi was also detainable under the uaided in 9/11" prong of the AUMF, but it has now abandoned that theory, acknowledging that Salah! probably did not even know about the 9/11 attacks.

I have reconsidered my order striking that brief.

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The "purposeful[] and material[] support"

standard is a non-starter. As the following discussion

will make clear, Salahi may very well have been an al-Qaida

sympathizer, and the evidence does show that he provided

some support to al-Qaida, or to people he knew to be al-

Qaida. Such support was sporadic, however, and, at the

time of his capture, non-existent. In any event, what the

standard approved in AI-Bihani actually covers is "those

who purposefully and materially supported such forces in

hostilities against U.s. Coalition partners." 530 F.3d at

872 (emphasis added). The evidence in this record cannot

possibly be stretched far enough to fit that test. 4 I will

consider the evidence of Salahi's "support" to the extent

that it is relevant to proving that he was "part of" al-

Qaida, and I will give it such weight in that regard as I

consider appropriate.

The test now applied by most judges of this court

for determining who is or was "part of" al-Qaida was first

articulated by Judge Bates: "whether the individual

functions or participates within or under the command

The Al-Bihani panel extracted the test from the 2006 and 2009 Military Commission Acts, both of which made such ·purposeful[] and material[] support" triable offenses. The panel concluded that "the government's detention authority logically covers a category of persons no narrower than is covered by its military commission authority." 530 F.3d at 872. Where, as here, the government clearly has no triable criminal case of "purposeful and material support" against Salahi, the logic of that conclusion escapes me.

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structure of the organization - i.e., whether he receives

and executes orders or directions." Hamlily v. Obama,

(D.D.C. 2009); ~ Awad v. Obama,

(D.D.C. 2009) (appeal pending) .

A detainee may fit within or under al-Qaida's

"command structure" even if he never actually fights for

al-Qaida. Al-Bihani, 590 F.3d at 872. Detention is lawful

under the "part of" prong, if the detainee has received and

executed al-Qaida's orders, even if he has only been a cook

in an al-Qaida camp. Id., accord, Gherebi v. Obama,

(D.D.C. 2009). It has been

suggested that an al-Qaida sympathizer who is outside the

command structure must have ~take[n] a direct part in the

hostilities" to be detainable, Gherebi,

. AI-Bihani appears to have rejected that suggestion,

but neither Al-Bihani nor any other case provides a bright­

line test for determining who was and who was not "part of"

al-Qaida at the time of capture. The decision, in other

words, depends on the SUfficiency of the evidence.

B. Temporal issue and burden of proof

The question of when a detainee must have been a

"part of" al-Qaida to be detainable is at the center of

this case, because it is clear that Salahi was at one point

a sworn al-Qaida member.

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The government had the burden of proving the

lawfulness of the detention under the AUMF - i.e.,

detention without criminal charges or trial - by a

preponderance of the evidence. 5 In re Guantanamo Bay

Detainee Litig., Misc. No. 08-442, CMO § II (A)i Awad,

. The government also had to show that

Salahi's detention was lawful at the time of his capture.

See, Gherebi, 609 F. Supp. 2d. at 71; Respondents'

Supplemental Memorandum Regarding the Temporal Scope of the

Government's Detention Authority, at 2. The government was

not required to produce evidence of some affirmative "part

of al-Qaida" act by the petitioner that took place after

9/11. 6 A mechanical requirement of that kind would lead to

the illogical and dangerous result that a proven "sleeper

agent" who was actually sleeping on and after 9/11 could

not be detained. Gherebi,

.

It is undisputed that Salahi swore bayat and was

a member of al-Qaida in 1990, but the government had to

show that he was still (or again) within its command

structure when he was captured on November III 2001.

The Court of Appeals has rejected a constitutional challenge to the preponderance standard in these detainee habeas cases, Al-Bihani v. Ohama, 590 F.3d at 878 (citing Hamdi v. Rumsfeld,

(2004». 6 To the extent Salahi's arguments about temporal scope rest on principles of the international law of war, they must be rejected after Al-Bihani, 590 F.3d at 871.

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Salahi's admission that he once was part of al-Qaida but

that he severed his ties after 1992 raises burden-of-proof

questions: May the burden lawfully be shifted to Salahi to

prove his dis-association? If so, at what point does the

burden shift? Judge Leon did not address burdens of proof

when he found that a petitioner had "vitiated" his

relationship with al-Qaida. See, Al Ginco v. Obama,

(D.D.C. 2009). Nor did Judge Urbina,

when he granted the writ in part because there was evidence

that the detainee had severed his relationship with al­

Qaida by leaving al-Farouq training camp early. Hatim v.

Obama,

(D.D.C. Dec. 15, 2009).

In Al-Bihani, however, the Court of Appeals

clearly indicates that there is nothing unconstitutional

about shifting the burden to a detainee to rebut a credible

government showing "with more persuasive evidence," 590

F.3d at 878, citing Hamdi v. Rumsfeld,

(2004). Such a requirement, the Al-Bihani court says,

"mirrors a preponderance standard."

If that is the rule, one might reasonably ask,

how can Guantanamo detainees - locked up for years on a

remote island, cut off from the world, without resources,

with only such access to intelligence sources and witnesses

as the government deigns to give them - how can such people

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possibly carry the burden of rebuttal, even against weak

government cases? The answer, unfortunately for detainee

petitioners, is that they are indeed at a considerable

disadvantage, and that successful rebuttals of credible

government cases will be rare events. The Court of Appeals

has acknowledged this imbalance and approved it: "[PJlacing

a lower burden on the government defending a wartime

detention - where national security interests are at their

zenith and the rights of the alien petitioner at their

nadir - is . permissible." rd.

A habeas court must consider the government's

factual showing of probable cause and look to the

petitioner for rebuttal when that showing is both credible

and significant. It is only fair to the petitioner,

however - and, considering the government's built-in

advantage, not unfair to the government - to view the

government's showing with something like skepticism,

drawing only such inferences as are compelled by the

quality of the evidence.'

I have rejected the government's broadest assertion, that Salahi's concession of al-Qaida membership in the early 1990's shifted the burden of proof, requiring that he prove affirmative acts of dis­ association to show that he was not a member in 2001. It is true, as I observed at the close of the hearing, Hr. Tr. 644-45, 651, that Salahi has adduced no evidence that he Krejected H al-Qaida - that he acted affirmatively to sever his ties - but I have been persuaded, see Petitioner's Closing Sr. at 13-14, that he did not need to. The criminal law of withdrawal from a conspiracy has no place in this proceeding, and in any case, the al-Qaida that Salahi joined in 1991

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C. Coerced statements and hearsay

There is ample evidence in this record that

Salahi was subjected to extensive and severe mistreatment

at Guantanamo from mid-June 2003 to September 2003, Tr.

Exh. C, D, I, P, BB - HH, JJ, LL, 00, PP, QQ, RR, SS, BBB;

AFR Exh. 93; Hr. Tr. 411-436. Salahi's position is that

every incriminating statement he made while in custody must

therefore be disregarded. s Salahi made most, if not all, of

the statements that the government seeks to use against him

during the mistreatment or during the 2 years following it.

The government acknowledges that Salahi's abusive

treatment could diminish the reliability of some of his

statements. But abuse and coercive interrogation methods

do not throw a blanket over every statement, no matter when

given, or to whom, or under what circumstances.

Allegations of mistreatment certainly taint petitioner's

statements, raising questions about their reliability.

See, ~, Mohammed v. Obama,

, * 24-27

was very different from the al-Qaida that turned against the United States in the latter part of the 1990s. 8 Dr. Vincent James Iacopino, M.D., Ph.D, reviewed Salahi's medical records and gave his opinion that Salahi's allegations are consistent with the physical and psychological evidence documented in his medical records and that the mistreatment "likely compromised the accuracy of the information he has provided to interro9ators.~ Hearing Transcript ("Hr. Tr. h ) 255, 292-293, 298-301; Tr. Exhs. F, S5. Dr. Iacopino was earnest and well-meaning, but he can hardly be described as independent. I found his testimony to be biased and unpersuasive, particularly as the subject of his testimony was not the subject of his professional training.

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(D.D.C. Dec. ~6, 2009); Al Rabiah v. United States,

, *21 (D.D.C. Sept. 17, 2009) (citing U.S. v.

Karake,

(D.D.C. 2006)). But at

some point - after the passage of time and intervening

events, and considering the circumstances - the taint of

abuse and coercion may be attenuated enough for a witness's

statements to be considered reliable - there must certainly

be a "clean break" between the mistreatment and any such

statement. Karake, 433 F. Supp. 2d at 87; accord, Anam v.

Obama,

(D.D.C. January 6, 20~O). Here,

it is the government's burden to demonstrate that a

particular statement was not the product of coercion, and

that it has other indicia of reliability. Anam,

.

The government submits that the only statements

of Salahi's on which it relies were made after a clean

break, and after the passage of enough time to attenuate

any taint, and that they are corroborated by documentary

evidence and the statements of other persons (some of them

detainees). Salahi attacks corroborating statements as

unreliable hearsay, or subject to the same coercive tactics

described above, or both. My approach here, as in Awad,

has been to formally "receive n all the evidence offered by

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either side, and to give it the weight I believe it

deserves. See Awad,

.

II. The Evidence

A. Timeline

Date Activities 1988 Began studying at the University of Duisberg in Germany. (Tr. Exh. BBB) 1990 Travelled to Afghanistan, trained for six weeks at al-Farouq, swore bayat to al-Qaida, and was given the kunya "Abu Musab." (Tr. Exh. BBB) Returned

Returned to Afghanistan with 3 friends (including Karim Mehdi Feb-92 Ely Taleb al-Qadr), met with al Bahrani, and went to fight in battle at Gardez as member of al-Qaida. Met Christopher Paul in Afghanistan. Mar-92 Returned to Germany to complete his studies, after the communist government, led by Mohammed Najibullah and supported by the Soviet Union, fell. Wife 'oined him in German. Mar-93 Christopher Paul may have visited Mehdi in Germany for three weeks, Salahi may have seen him during this time. Aug-93 Returned to Mauritania to visit family. Went to an Al-Qaida safehouse in Mauritania with Abu Hafs, may have seen a Libyan al­ Qaida member, al-Lidi, there. May· 95 * Graduated from University of Duisburg with degree in electrical engineerin . ~

May-95 * Began working at • as a process engineer (in Reutlingen, Germany) .

Dec-95 Hosted Abu Hijar al-Iraqi in Germany, may have received information about an al-Qaida telecommunications pro'ect in Sudan. Jan-96 Hosted Abu Hijar aI-Iraqi again in Germany, may have discussed the ~ ~al-Qaida pro'ect in Sudan. May-96 * Began working on obtaining an unlimited visa and work permit to stay in Germany; simultaneously began trying to get landed immigrant status in Canada (at Hosni Mohsen's suggestion). Dec-96 * Sto ped working at •

Jan-97 * Began working as a consultant in Esson, Germany.

Jan-97 Sent a fax to Christopher Paul, requesting information about where to send would-be jihadists. (AFR Exh. 70) Dec-97 Transferred $4,000 for Abu Hafs.

Dec-97 Created a jihad website, but there is no proof that it advocated violence, and Salahi claims it did not. Jan-98 * Drove Paul to the airport, after Paul visited Mehdi for several weeks.

9 Asterisk indicates that the month of the event is estimated.

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* Obtained landed immi rant status in Canada.

Jun-98 Visited Hosni Mohsen in Canada.

Sep-98 Transferred $4,000 for Abu Hafs.

Dec-sa * Received phone call from Abu Hafs, which was allegedly made from

Jan-99 bin Laden's satellite hone.

Oct-99 * Ganczarski returned to Germany from Afghanistan and may have

delivered a message to Salahi about a project for improving

internet access in Pakistan and Afghanistan. Salahi may have

received passports from him. Salahi claims that he received

pass orts from Abu Hafs only.

Oct-99 Met with al-Shibh and two other men, allegedly encouraged them to

go to Afghanistan instead of Chechnya and to get Pakistan visas.

Nov-99 Housed al-Shibh and two other men for one night, and drove them to

the train station in the morning.

Nov-99 • Stopped working at Ce Ian.

Nov-99 Moved from Germany to Canada; lived w i t ~ e nat

the Al Sunna Mosque, where he was an imam. Registered for and

began taking classes at Polytechni e de Montreal; _ "bad

friends" visited the a artment -- (head of al-Qaida

cell in Montreal) and (financier for al-Qaida) (AFR

Exh. l4); had connections with

Ressam, who was arrested in the Millennium Bomb plot.

Oec-99 * In Canada, Laabidi asked him to transfer money, but Salahi did

not do so. Observed al-Qaida members giving Mohsen bags of

"equipment for the brothers" before his trip to Chechnya. Called

Christo her Paul twice.

Dec-99 Ahmed Ressam was arrested in connection with the Millennium Plot.

Dec-99 Salahi was questioned regarding the Millennium plot, moved into the mosque. Sent Moshen a Tunisian passport. Jan-OO Family called to inform him that his mother was sick. Decided to return to Mauritania. Jan-OO Flew from Canada to Senegal, where brothers met him to take him to Mauritania; he and brothers were seized by authorities, iIIIIIIIIII and were questioned about the Millennium plot. An American came and took pictures; then, someone he presumed was American flew him to Mauritania, where he was questioned further by Mauritanian authorities about the Millennium lot. ---J F - " . . . . c . . : . = : ; ; . . : : ; ; = ~ : . . . . . . L . . : : : . . . : - . . : : . . . : . .

~~~F~e~b_-~O~O~~I~nterrogatedby re Millennium plot. 2/l4/2000 * released him, concluding there was no basis to believe he was involved in the Millennium plot.

Apr-OO Returned to Germany, but was arrested upon arrival because of unem loyment fraud issue May-OO Was released. and returned to Mauritania. authorities took away his assport and put him under "house arrest." Began working at • in Mauritania. Jan-Ol Gave one 0 f the---':;fc;;r=-a":'u':":d~u::';l;:'e:::"::n'::t=p:":a:;"s=-s-p-o-r7t-s--;h-e--r-e-c-e-1.:-.v-e--;d---:f:-r-o-m-=-Ab-=---u--=H"::"a-f=s--t-o--I his wife, whom he was divorcin . Apr-Ol still in contact with Ganczarski, through emails and phone calls. Ma -Ol Still in contact with Karim Mehdi, through emails and hone calls. Jun-Ol Gave male pass ort to • , who claimed to be its owner. Jul-Ol Stopped working at. ; began working at • in Nouakchott Se -01 Authorities seized com uter at BITS.

9/29/2001 Arrested in Mauritania; authorities told him arrest because Salahi was allegedly involved

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10/12/2001 While he was detained, agents performed a search at his house, f +-s_e_i_z_i_ng'--t_ap~es and docume=n:.:t.::.s~. --------------------""""1 .... ..... - Released by authorities. ;---+: took him into custody.

B. Initial Relationship with al-Qaida

Salahi admits that he trained at the al-Farouq

training camp in Afghanistan in late 1990 and early 1991;

that he swore bayat in 1991, see Hr. Tr., 370-71;10 and that

he returned to Afghanistan in early 1992 to fight in the

battle at Gardez as a member of an al-Qaida mortar battery.

See, AFR at 8 (ISN 760 FD-302) i Hr. Tr. at 372-374.

In Salahi's sUbmission, this is where his

connection to al-Qaida ends. He testified that he was

"part of H al-Qaida only to join the struggle against the

communists, and that, after his final trip to Afghanistan

in 1992, he severed ties with al-Qaida and provided no

further support to the organization. 11 Tr. Exh. BBB, ~, 99,

101; Hr. Tr. at 378. In a statement made in December 2004,

about a year after his coercive interrogation and after he

10 Thegovernment asserts that Salahi swore the oath to Osama bin Laden, and did so at the same time as Noumane Ould Ahmed Ould Boullahy, who went on to become one of bin Laden's bodyguards. AFR at 7. There is no evidence that Salahi maintained, or that he ever had, any relationship with Boullahy. Salahi maintains that he swore bayac to Iz Eldin aI-Bahraini, or to the organization as a whole. Tr. Exh. BBB, , 99, 105; Hr. Tr. at 498-500. II Salahi admits to attempting to travel to Bosnia-Herzegovina through Slovenia in December 1992 to join the jihad there, but ultimately returned to Germany because travel was too difficult. AFR Exh. 22; Hr. Tr. at 378. But, he claims he did not do so at the request of al-Qaida. Hr. Tr. at 379.

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had disavowed earlier incriminating statements, he recalled

telling Abu Hafs that he wanted "work a little bit." AFR

Exh. 5. The inference the government seeks to draw from

this snippet is that Salahi wanted to continue working for

al-Qaida, cf. Hr. Tr. 453-4, but the words are few enough,

and ambiguous enough, that the inference must be declined.

B. Recruiting

Not only did Salahi not sever his ties with al­

Qaida after 1992, the government maintains, but he

"actively recruited" for al-Qaida from 1991 to at least

1999. The evidence for that proposition includes: (1)

statements by Salahi that, in 1999, he provided lodging and

advice to three men who were later involved in the 9/11

attacks; (2) a January 1997 fax from Salahi to a known al­

Qaida operative, Christopher Paul, asking where to send al­

Qaida recruits; (3) general statements of Salahi, made

while in custody, that he was a recruiter; and (4)

statements of another alleged terrorist ­

- implicating Salahi as an al-Qaida recruiter.

The most damaging allegation against Salahi is

that, in October 1999, he encouraged Ramzi bin al-Shibh,

Marwan al-Shehhi, and Ziad Jarrah to join al-Qaida. Bin

al-Shibh has been identified as the primary contact for the

organizers of the 9/11 hijackers, and al-Shehhi and Jarrah

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became two of the hijackers. Under coercive interrogation,

Salahi confessed to facilitating travel for "several of the

9/11 hijackers to Chechnya," justifying his assistance as

"just" jihad. AFR Exh. 45 (August 2, 2003). Salahi's

testimony now is that he did nothing more than give bin al­

Shibh and his friends lodging for one night. Tr. Exh. BBB,

~~ 111-118.

The government's proffered corroboration for

Salahi's 2003 statements about recruitment consists of

statements by

Karim Mehdi. AFR Exh . . . . 56, 59. Those

statements, if credited, would establish that Salahi met

with bin al-Shibh and two other men in October 1999; that

he encouraged them to travel to Afghanistan for training ­

rather than Chechnya as they had intended; that he housed

them for at least one night that he gave

them instructions for traveling to Afghanistan and contacts

for their arrival; and that he drove them to the train

station the next morning. Tr. Exh. BBB, " 111-118.;'"

AFR Exh. 56

(Statement of Karim Mehdi) .12

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Seeking to undermine this evidence about the 9/11

hijackers, Salahi emphasizes that his contact with these

men occurred two years before the actual attacks. He also

points to in which he

said that the two men accompanying bin al-Shibh were not

al-Shehhi and Jarrah, and that he did not convince bin al­

Shibh to travel to Afghanistan instead of Chechnya. AFR

Exh. 37. Salahi also argues that the statements of . . .

1IIIIIIII Mehdi are too unreliable to serve as

corroboration,

that Mehdi's statements were coerced by mistreatment, AFR

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Exh. 53-62 (sleep deprivation); that Mehdi was fed

information by his interrogators/ AFR Exh. 64, 65, 66; and

that Mehdi has admitted to lying/ AFR 59, 61, 64. In

addition/ some of Mehdi's information is inconsistent with

the statements of Salahi Mehdi said that

they met more often than twice/ including a meeting that

took place at Salahi/s house at a time when Salahi was in

custody. Upon learning that fact, Mehdi withdrew his

statement about the meeting. Mehdi's statements indicate

only that Salahi knew bin al-Shibh and Jarrah were going to

Afghanistan for training/ not that Salahi encouraged them

to do so. AFR Exh. 56.

The application

of appropriate jUdicial skepticism to this jumble of

evidence yields the following finding: The government has

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credibly shown, and Salahi has not rebutted the showing,

that Salahi provided lodging for three

men for one night at his home in Germany, that one of them

was Ramzi bin al-Shibh, and that there was discussion of

jihad and Afghanistan.

The government's other key piece of evidence

about Salahi's alleged recruitment for al-Qaida is a

January 26, 1997 fax from Salahi, using his kunya "Abu

Musab," to Christopher Paul, a.k.a. Abdul Melik, to ask for

help to find "a true Group and Place" for "some Brothers

want to make Djihad." APR Exh. 70. The fax bears Salahi's

kunya, Salahi's handwriting and home telephone number, and

was faxed from a store near Salahi's home. Hr. Tr. at 187­

88, 628. Salahi admitted to sending the fax to this

acknowledged "man of great respect in Al-Qaida", AFR Exh.

75, as a way to "facilitate getting the brothers to fight,"

AFR Exh. 74, but later disavowed those statements, and said

that he had never seen the fax until interrogators

questioned him about it. I find that the fax appears to be

authentic and speaks for itself, and that the filigree the

government seeks to add (facilitating getting the brothers

to fight, APR Exh. 74; standing with Mehdi during a

telephone conversation, Hr. Tr. at 631; the uncorroborated

statement that the person about whom Salahi wrote the fax,

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Moussa, went on to fight in Afghanistan, AFR Exh. 75) is

unnecessary to understand its meaning: that Salahi

continued to be in touch with people he knew to be al-Qaida

members, and that he was willing to refer would-be

jihadists to them when the opportunity arose.

The remaining evidence that Salahi was an active

recruiter is less significant. Salahi made several

incriminating statements after coercive interrogation that

he was a recruiter and spread propaganda about al-Qaida,

but in none of those statements did he say he was tasked to

do so, nor did he provide detail about any specific

recruiting missions he was given. AFR Exhs. 27, ~ 9; 29, ,

62; 96. Finally, the government suggests that a general

They were not specific to al­

Qaida, nor do they suggest that Salahi was tasked with an

order to recruit al-Qaida members.

The government has not credibly shown Salahi to

have been a "recruiter." What its evidence shows is that

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Salahi remained in contact with people he knew to be al-

Qaida members at least until November 1999, and that he was

willing to make a referral to a known al-Qaida member in

1997.

C. Assistance with al-oaida telecommunications projects

The government asserts that Salahi accepted

assignments to work on a number of al-Qaida

telecommunications projects. 13 This narrative has two

parts: that Salahi's cousin and brother-in-law - Abu Hafs

aI-Mauritanian - tasked him (a) with establishing an

international shortwave broadcasting station in Sudan and

(b) with establishing greater Internet connectivity between

Pakistan and Afghanistan. AFR Exh. 32. 14 Abu Hafs is

believed to be one of bin Laden's spiritual advisors and a

high-ranking leader of al-Qaida. An undated interrogation

report has it that Salahi said that he received orders from

Abu Hafs, AFR Exh. 22, and "would have done almost anything

that was asked of him." AFR Exh. 24. Salahi has not

13 The government, relying on the conclusions of Salahi's FBI interrogators, also asserts that Salahi has "advanced knowledge of what would be required to complete these tasks,u AFR Exh. 16, and expertise in al-Qaida internet communications, encryption and cyber-attacks, AFR Exhs. 34, 39, 42. These conclusions, which are too specUlative to credit, do not bespeak that Salahi was "part of u al-Qaida. 14 Salahi also told interrogators that Abu Hafs asked him to assist in counterfeiting US currency, but that he did not do it because he was attempting to obtain Canadian citizenship. AFR Exhs. 33, 28.

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retracted his admission that he knew Abu Hafs to be an al-

Qaida member. IS Hr. Tr. at 514.

The first part of this story, developed entirely

from Salahi's statements and completely uncorroborated, is

that Abu Hats gave orders about telecommunications projects

to Salahi through Abu Hijar aI-Iraqi in 1995 and 1996. AFR

22, Hr. Tr. 458-459. Salahi now admits only that he hosted

Abu Hijar aI-Iraqi in Germany in 1995 and 1996 and that Abu

Hijar spoke to him about the telecommunications equipment

he (Abu Hijar) planned to purchase for Sudan. Hr. Tr. 459,

551-52, 628.

The second part of the telecommunications story

relates to an alleged 1999 assignment to assist with

Internet connectivity between Pakistan and Afghanistan and

is more troubling. Under interrogation. Salahi named

Christian Ganczarski as the person who gave him this

assignment. Ganczarski was returning to Germany from

Afghanistan. He gave Salahi passports to assist him in

completing the task. 16 Salahi was aware of the equipment

The government makes much of the fact that Salahi may have gone with Abu Hafs to an al-Qaida safehouse in Mauritania in 1993. presumably because the government believes this fact proves Salahi was aware of his cousin's al-Qaida membership. Hr. Tr. 514-5. Salahi disagrees with the government's characterization of the location as a usafehouse. n but because Salahi concedes his cousin's membership, I find no reason to belabor the analysis of a single trip to a house nearly eight years before 9/11. 16 Nobody has attempted to explain how the passports would help with the Internet connectivity project.

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Ganczarski had purchased to work on the project, AFR Exhs.

22, ~ 15; 85, ~ 7-A; 98; Tr. Exh. T; Hr. Tr. at 554, 636,

and his computer contained a radio antenna sketch that the

government unsuccessfully attempts to link to Ganczarski

and this project, AFR Exh. 90.

Salahi now disavows any knowledge of whether

Garczarski went to Afghanistan to set up a radio

telecommunications system for al-Qaida, and denies that

Ganczarski delivered any messages to him about al-Qaida

projects. Tr. Exh. BBB, , 124; Hr. Tr. 553. He does

acknowledge that around November 1999, Abu Hafs - not

Ganczarski - sent him a message encouraging him to return

to Afghanistan, and sent him two passports and money for

the trip. Hr. Tr. 553. One of the passports had been

issued to an unknown male; the other was the passport of

Abu Hafs' wife, who was Salahi's wife's sister. Salahi

explains that he declined to travel to Afghanistan because

he planned to travel to Canada, but he admits that he kept

both passports until January 2001, when, he says, he gave

the female passport to his then-wife, who he was divorcing.

Salahi kept the male passport until June 2001, when its

owner, • came to claim it. AFR Exhs. 49

(September 17, 2003), 32. The passport story that Salahi

tells now makes more sense than the one he told his

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interrogators, but Salahi's admission that he received and

held passports issued to other people raises unanswered

questions about the lawfulness of his activities and the

nature of his relationship with Abu Hafs.

The record also contains computer records seized

in late September 2001 from II1II a Mauritanian technology

equipment retailer and internet service provider and

Salahi's employer from May 2000 to July 2001. The l1li records reflect transactions with a company called l1li

for the purchase and shipment of radio

equipment. On their face, the invoices reflect ordinary

course of business transactions, but, when interrogated in

September 2005, Salahi did not deny that the radio

equipment was used by al-Qaida, AFR Exh. 16. Salahi now

retracts any of his statements that might suggest that l1li provided equipment to al-Qaida. Tr. Exh. BBB, , 125. The

invoices appear to be characteristic of what is understood

to be II1II business, and they do not connect Salahi to the

transactions in any apparent way. Tr. Exh. ODD.

Also collected from the l1li computer were emails

and documents describing plans for various cyber-attacks.

AFR Exhs. 133, 135, 139. Two of the emails appear to be

list-serve emails, sent to a large number of recipients,

describing steps an individual should take if he wanted to

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engage in an attack, AFR Exhs. 135, 139. The third

document is not an email but a separate document - also

with specific instructions on implementing an attack. AFR

135. The documents are not evidence that Salahi engaged in

the cyber-attacks (materially supported al-Qaida in

hostilities), but they do show that he had access to the

information. They corroborate statements of Salahi to the

effect that he knew about and had some involvement in

planning for denial of service computer attacks, AFR Exh.

39 (October 20, 2004) - attacks that, so far as we know,

never materialized. Salahi also admitted to attempting to

start his web forum for this type of information, but said

that he did not do so because Ganczarski discouraged the

plan. Id; AFR Exh. 81.

These l1li documents have very little weight.

The cyber-attack documents do appear to establish Salahi's

knowledge of and interest in planned computer attacks, but

they do not show Salahi's active engagement, Tr. Exh. BBB,

,~ 122, 123. Nevertheless, Salahi's credibility is

undermined by his insistence that his computer was accessed

by several other l1li employees. Hr. Tr. 475. That

testimony, indeed, suggests that l1li was populated by many

al-Qaida sympathizers, something which, if that were true,

would surely have been understood by Salahi.

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D. Money Transfers

Salahi acknowledges that he transferred money for

Abu Hafs twice - about $4,000 in December 1997 and another

$4,000 in December 1998. Hr. Tr. 631. Here again, the

government relies on nothing but Salahi's uncorroborated,

coerced statements to conclude that the money transfers

were done on behalf of and in support of al-Qaida. AFR Exh.

29 (describing al-Qaida's process for wiring money through

innocent middlemen). Salahi insists now that he was only

helping Abu Hafs to send money to his family in Mauritania.

Tr. Exh. BBB, , 121. Two money transfers in modest amounts

a year apart would not even amount to material support (if

support were the issue here, which it is not). What they

do show - as the recruiting and telecommunications support

narratives did - is that Salahi had an ongoing and

relatively close relationship with Abu Hafs, something like

that described in Gherebi, a non-al-Qaida member providing

housing to his al-Qaida member son, Gherebi v. Obama,

.

Salahi admitted that he was asked to transfer

money for Laabidi, the financier of al-Qaida's Montreal

cell,17 in 1999. He did not admit, nor has it been shown,

17 Under interrogation. salahi called Laabidi a terrorist who supported use of suicide bombers. AFR Exh. 48 (September 16, 2003), but he recanted all of his incriminating statements about Laabidi when he

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that he complied with the request. AFR Exhs. 48 (September

16, 2003) i 47 (Sept 11, 2003).

F. Connections with Montreal al-Qaida cell

Salahi lived in Canada for two months, from late

November 1999 to January 2000. The government claims that,

in that period, he developed strong ties to an al-Qaida

cell in Montreal. Salahi concedes that he lived with II1II liliiii but he has retracted statements made under

interrogation that IIIIIIII friends who visited their

shared apartment - - were

"very bad," AFR Exhs. 5, 14, that Hannachi was the leader

of the al-Qaida cell in Montreal, and that Laabidi was the

cell's financier. AFR Exh. 29.

Another Montreal resident, Ahmed Ressam, was

arrested and charged with preparing to carry out the so-

called Millennium plot. One document, pocket litter seized

from Mohsen upon his arrest, includes both Salahi's name

and Ressam's phone number. AFR Exh. 20. That document

does link Mohsen, Salahi and Ressam together, but how, and

for what, remain unexplained. Salahi almost immediately

retracted his statements that implicated him in the

Millennium plot. AFR Exh. 5, Tr. Exh. Y. The government

discovered that he would be required Tr. Exh. BBB, 1 130.

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does not allege that Salahi participated in the Millennium

plot. 18

Other bits of evidence adduced to show that

Salahi was involved with the Montreal cell include: (1)

the undisputed fact that Salahi acted for a time as an imam

at the Alsunnah mosque, which gave him the opportunity to

"inject propaganda and recruit for jihad"; (2) Salahi's

uncorroborated statement that he accompanied several al-

Qaida members who were transporting bags of "equipment for

the brothers" to _ before _ traveled to Turkey

and Chechnya as a courier for 1IIIIIIII ~ AFR Exhs. 88 at

" IL, 1 AH; IBN 760 FD-302 7-18-05 at 6j and (3) Salahi's

uncorroborated statement that he allowed Laabidi to use his

bank account to launder money and that he witnessed Laabidi

giving cash to Hannachi. See AFR Exhs. 33, 88 at , lW.

Salahi now retracts those statements.

The Montreal evidence might well be enough to

support a criminal charge of providing material support to

al-Qaida, if Salahi were criminally charged, and if the

evidence were admissible in a criminal proceeding. It does

not prove that he "purposeful[] and material[] supported

such forces in hostilities," however, nor does it add any

18 Ressam agreed to cooperate and testify against others involved in the Millennium plot. Ressam provided statements that the government has used in defending detentions in other habeas petitions before this Court, but he conspicuously fails to implicate Salahi. Hr. Tr. 202.

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thing of significance to the proof that Salahi was "part

of" al-Qaida.

G. Relationships with known al-Oaida members

The government suggests that Salahi's

relationships with the various al-Qaida members referenced

throughout this case, however brief those relationships,

prove that he is "part of" al-Qaida. Associations alone

are not enough, of course, to make detention lawful, ~

Al-Adahi v. Obama,

, at * 16 (D.D.C. Aug.

21, 2009), but, depending on their nature and duration,

they could lend support to a finding of al-Qaida

membership.

The government's most damaging evidence with

respect to Salahi's associations is his admitted contacts

with his cousin and brother-in-law, Abu Hafs. Those

contacts include: visiting an al-Qaida safehouse in

Mauritania in 1993; telephone and II1II contact right up to

2001;19 money transfers; and one request from Abu Hafs for

Salahi to travel to Afghanistan, along with the passports

for the journey. None of these events or incidents has

been shown to have happened within the command structure of

al-Qaida.

19 The government alleges that Abu Hafs called Salahi in December ~998 or January 1999, from the satellite phone of Osama bin Laden. Hr. Tr. 632.

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Salahi's relationships with Karim Mehdi, who was

convicted on terror charges in France, and with Christian

Ganczarski, another convicted terrorist, are clearly of

interest - Salahi was in contact with the two men until at

least May 2001 and April 2001, respectively. Hr. Tr. at

502, AFR Exhs. 119, 123. But, the I11III offered by the

government as evidence of the relationships are not

themselves incriminating; if anything, they suggest that

the men were not in continuous contact. For example, at

l1li AFR Exh. 123. Rather, they tend to support Salahi's

submission that he was attempting to find the appropriate

balance - avoiding close relationships with al-Qaida

members, but also trying to avoid making himself an enemy.

Salahi's limited relationships with Christopher

Paul, who pled guilty in the United States to conspiracy to

use a weapon of mass destruction and received a 20-year

sentence; Abu Hijar aI-Iraqi, Hr. Tr. 459, 551-52, 628;

Hannachi and Laabidi, important figures in al-Qaida's

Montreal cell; and al-Libi, a Libyan al-Qaida member, Hr.

Tr. at 517, 524-5, are too brief and shallow to serve as an

independent basis for detention.

III:. Conclusion

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The government had to adduce evidence - which is

different from intelligence - showing that it was more

likely than not that Salahi was Upart of" al-Qaida. To do

so, it had to show that the support Salahi undoubtedly did

provide from time to time was provided within al-Qaida's

command structure. The government has not done so. The

government has shown that Salahi was an al-Qaida

sympathizer - perhaps a "fellow traveler"; that he was in

touch with al-Qaida members; and that from time to time,

before his capture, he provided sporadic support to members

of al-Qaida.

The government's problem is that its proof that

Salahi gave material support to terrorists is so

attenuated, or so tainted by coercion and mistreatment, or

so classified, that it cannot support a successful criminal

prosecution. Nevertheless, the government wants to hold

Salahi indefinitely, because of its concern that he might

renew his oath to al-Qaida and become a terrorist upon his

release. That concern may indeed be well-founded. Salahi

fought with al-Qaida in Afghanistan (twenty years ago) ,

associated with at least a half-dozen known al-Qaida

members and terrorists, and somehow found and lived among

or with al-Qaida cell members in Montreal. But a habeas

court may not permit a man to be held indefinitely upon

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suspicion, or because of the government's prediction that

he may do unlawful acts in the future - any more than a

habeas court may rely upon its prediction that a man will

not be dangerous in the future and order his release if he

was lawfully detained in the first place. The question,

upon which the government had the burden of proof, was

whether, at the time of his capture, Salahi was a "part of"

al-Qaida. On the record before me, I cannot find that he

was.

The petition for writ of habeas corpus is

granted. Salahi must be released from custody. It is SO

ORDERED.

______Isl _

JAMES ROBERSTON United States District Judge

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