UNCLASSIFIEDIIFOR PUBLIC RELEASE

SEeMlT

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Filed with Classified Inf~curity Officer FADHEL HUSSEIN SALEH HENTIF, et al., C1S0 ~ Date t"l{tjl Petitioners, v. Civil Action No. 06..1766 (HHK)

BARACK H. OBAMA, et aI, Respondents.

MEMORANDUM OPINION

Fadhel Hussein Saleh Hentif(ISN 259), a Yemeni citizen, was seized by Pakistani

authorities in late 2001 and has been held by the United States at the naval base detention facility

in Guantanamo Bay, Cuba since early 2002. Hentifhas filed a petition for a writ ofhabeas

corpus contending that he is unlawfully detained. Respondents in this case, President Barack H.

Obama and other high-level officials in the United States Government, argue that Hentifis

lawfully held and therefore should remain in U.S. custody. The parties filed cross-motions for

judgment on the record and appeared before the Court for a four-day hearing on the merits of

Hentifs petition. Upon consideration of the motions and the evidence presented at the merits

hearing, the Court concludes that respondents have demonstrated that Hentifs detention is

Jawful. Therefore, Hentifs petition shall be denied.

I. LEGAL STANDARDS

A. Scope of the Government's Detention Authority

The Authorization for Use of Military Force ("AUMF"), Pub. 1. No. 107-40,

(2001), authorizes the President to "use all necessary and appropriate force against those

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

8B8JU!T

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."

§ 2(a), 115 Stat. at 224. The U.S. Supreme

Court has held that the U.S. District Court for the District of Columbia has jurisdiction over

petitions for writs of habeas corpus brought by detainees held at Guantanamo Bay pursuant to the

AUMF. See Boumediene v. Bush,

, 792 (2008); Rasul v. Bush,

(2004). The Supreme Court has provided "scant guidance," however, as to whom

respondents may lawfully detain under the statute. AI-Bihani v. Obama,

, 870 (D.C.

Cir. 2010) (noting that the Supreme Court has "consciously le[ft] the contours ofthe substantive

and procedural law ofdetention open for lower courts to shape in a common law fashion" (citing

Hamdi v. Rumsfold,

,522 n.1 (2004) (plurality opinion); Boumediene, 553 U.S. at

796».

Although the D.C. Circuit "has yet to delineate the precise contours" ofthe proper legal

standard by which to evaluate the lawfulness ofthe detention of the individuals held at

Guantanamo Bay, Barhoumi v. Obama,

(D.C. Cir. 2010), it has held that any

individual who is "part of" Al Qaeda or the Taliban may be detained pursuant to the AUMF. Al-

Adahi v. Obama,

(D.C. Cir. 2010); see also Bensayah v. Obama,

(D.C. Cir. 2010); Awad v. Obama,

(D.C. Cir. 2010). The detennination

ofwhetber an individual is "part of' Al Qaeda "must be made on a case-by-case basis by using a

functional rather than formal approach and by focusing upon the actions of the individual in

relation to the organization." Bensayah,

. Accordingly, in this case, the Court

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

8138RB'f'

wilI assess whether respondents have shown that Hentif is functionally part of Al Qaeda or the

Taliban.

B. Burden of Proof

As stated in the Amended Case Management Order that governs this case, "[tJhe

government bears the burden of proving by a preponderance of the evidence that the petitioner's

detention is lawfuL" In re Guantanamo Bay Litig., Misc. No. 08-442, CMO § n.A (Nov. 6,

2008)~ see also Awad.

(upholding the preponderance ofthe evidence standard as

constitutional in the evaluation of habeas petitions from Guantanamo Bay detainees); AI-Bihani,

590 F.3d at 878 (same). I Accordingly, Hentif need not prove that he is unlawfully detained;

rather, respondents must produce "evidence which as a whole shows that the fact sought to be

proved," that Hentif was part of Al Qaeda or the Taliban, "is more probable than not." United

States v. Mathis, 216 F.3d J8,28 (D.C. Cir. 2000) (quoting United States v. Montague,

, 1255 & n.2 (D.C. Cir. 1994»; see also Almerfedi v. Ohama, - F.3d - ,

(D.C. Cir. June 10, 201l) ("The preponderance standard ... asks the court simply

to 'make a comparative judgment about the evidence' to detennine whether a proposition is more

likely true than not true based on the evidence in the record." (quoting Lindsay v. NTSB,

(D.C. Cir. 2005». If respondents meet this burden, the Court must deny Hentirs

petition. In considering whether respondents have met this burden, the Court will evaluate the

Although the D.C. Circuit has held that the preponderance of the evidence standard "is constitutionally sufficient," it has left open the question of "whether a lower standard might be adequate to satisfy the Constitution'S requirements for wartime detention." Almerfodi,

, at *3 n.4.

3 81iM'

UNCLASSIFIEDIIFOR PUBLIC RELEASE r I UNCLASSIFIEDIIFOR PUBLIC RELEASE

totality ofthe evidence. rather than viewing each piece ofevidence in isolation. See AI-Adahi,

; see also Salahi v. Obama,

(D.C. Cir. 2010).

C. Evidentiary Issues

The Court notes at the outset two issues regarding the evidence in this case.

First. as explained in an order entered in this case on July 7,2010 [#265J, the Court has

pennitted the admission ofhearsay evidence but considers at this merits stage the accuracy,

reliability, and credibility of all of the evidence presented to support the parties' arguments. The

D.C. Circuit has mandated this approach. See Al Bthan;, 590 F.3d at 879 ("[T]he question a

habeas court must ask when presented with hearsay is not whether it is admissible-it is always

admissible-but what probative weight to ascribe to whatever indicia ofreliability it exhibits.");

see also Odah v. United States,

, J4 (D.C. Cir. 2010) (holding that "[t]he law is

against" a detainee who argued that some types ofhearsay are not admissible in these

Guantanamo Bay cases); Awad,

(reaffinning the rule articulated in AI Bihani and

noting that a district court errs not by relying on hearsay, but by relying on "unreliable hearsay").

The Court' s assessment ofthe weight properly accorded to particular pieces ofevidence appears

throughout this opinion.

Second, the nature of the evidence before the Court is atypical ofevidence usua1ly

presented to federal courts. Respondents have offered a variety of types ofdocuments produced

and used by government intelligence agencies that are not the direct statements ofthe individuals

whose personal knowledge they reflect. The evidence in this case includes Form 40s ("FM40s"),

Summary Interrogation Reports ("SIRs"), Intelligence Information Reports ("IIRs"), Memoranda

for Records ("MFRs"), Field Documents

4 aUIIlI'

UNCLASSIFIEDIIFOR PUBLIC RELEASE I ' UNCLASSIFIEDIIFOR PUBLIC RELEASE

81!8.M!'

FM40s are records of investigation activities, here witness interviews, conducted by the Criminal

Investigation Task Force, a federal law enforcement agency. SIRs are summaries of

interrogations conducted under the auspices ofthe Department ofDefense. IIRs are Department

ofDefense documents for recording human intelligence, which may contain information derived

from an SIR. 2 MFRs are similar to SIRs. FD-302s are forms completed by FBI agents

summarizing interviews. party

called any live witnesses.

ll. ANALYSIS

Hentif, or ISN 259;~ was born in 1981 in the Al Jawf region of Yemen. At some point

after turning eighteen, he left home for the city of Sana' a, Yemen. At some later date, he left

Sana'a and traveled to Afghanistan. Late in 2001, he crossed the Afghan border into Pakistan

and was seized by Pakistani authorities, who ultimately transferred him to U.s. custody. The

parties dispute the timing and purpose of Hentif's travels and the nature ofms activities while in

Afghanistan. They have divided their factual disagreements into three broad issues, which the

Court will address in turn.

4 ISN stands for Internment Serial Number. Each detainee at Guantanamo Bay has been assigned such a number.

UNCLASSIFIEDflFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE

A. Issue One: Whether Hentifwas Reeruited to Join AI Qaeda or Taliban Forces in Afghanistan.

1. Respondents' arguments

Respondents contend that Hentit's purpose in leaving Yemen for Afghanistan was to

fight with Al Qaeda or Taliban forces.

about HentWs decision to go to

Afghanistan. First. they note that Hentif reported attending m05'Que in

Sana'a. See JE 94 (Decl. ofHentif(June 8, 2010)) ~ 10; JE 10 (FD-302 summarizing April 13,

2002 interrogation ofHentif) at 3; JE 13 (MFR nteJr:roll~atl()fl of

Hentif) at 2. He stated that, at this mosque, he took a course from a man named

JE 10 at 3. This information is incriminating, according to respondents, because another

Guantanamo Bay deblinee, said in an interrogation

him "that the struggle in [Afghanistan] was religiously supported and that one should fight if

possible." JE 28 (DR dated 2004 reporting information derived 1.

6 81!!eIt:I!!T

UNCLASSIFIEDIIFOR PUBLIC RELEASE • _ J.';'. • _ ._" _ _ _ _ UNCLASSIFIEDIIFOR PUBLIC RELEASE

Second, Hentif reported1y said during his interrogations at Guantanamo Bay that he met a

man llQ.lJL~""'" this mosque, and that a role in HentiPs decision to

go to Afghanistan. See JE 10 at 3; JE 13 at 2-3~ JE 14 (MFR

interrogation ofHentif) at 1 the first person to give [HentifJ the idea to go to

Afghanistan."). Respondents further assert that [Hentif] on the route of

travel and infonned him that he would need approximately 3000 Saudi Riyals (800 USD)," and

that this infonnation enabled Hentif to quickly depart Yemen for Afghanistan. JE 29 (IIR _

1,3 (reporting that Hentifmoved to Sana' a in July 2001); see also JE 13 at 3

(reporting that Hentifleft for Afghanistan in August 2001). Respondents also point to a

statement in an intelligence report derived from an interrogation of_that

perfonn jihad in Afghanistan." JE 28 at 1. Because,

respondents aver, likely the same person, Hentif too was likely

encouraged to travel for purposes ofjihad.

Next, respondents argue that the circumstances ofHentirs travel, in particular those

surrounding his travel companion, support the proposition that Hentif embarked on the trip to

become a fighter.' Hentif repeatedly told interrogators that he traveled to Afghanistan with

1 Respondents also argue that Hentif traveled from Yemen to Afghanistan via a common AI Qaeda / Taliban route-from Yemen to Karachi to a guesthouse in Quetta, and then to guesthouses in Kandahar and Kabul. As support, respondents point to other cases that involved similar routes. See, e.g., JE 7 (FD~302 summarizing interview o f _ a t 4-5 (reporting~tatements that he traveled from Sana'a, Yemen to Karachi, Pakistan to Taliban ~n Quetta, Kandahar, and Kabul and then to the front AI-Alwi v.

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

OIiiBfttj,

See, e.g., JE 10 at 3; JE 13 at 3; JE 14 at 2.

the two flew together from Yemen

14......1'>..........1 took Hentif to a guesthouse in Quetta, Pakistan. See JE

10 at 4. Based on Hentifs description of this house as "more like a compound," respondents ask

the Court to infer that it was a place oflodging for fighters. JE 124

lnte:rrOlgatton of Henti£) at 2; see also id at 3 (noting that the house was

"surrounded by 2 meter high walls of concrete").

2. Hentif's arguments

Hentif disputes respondents' interpretation of the evidence. He argues that the Court

should not rely

single suggestion in the record

Hentif asserts, is not sufficiently reliable to support a ...........0

contends that this error suggests that other statements in the report are similarly

inaccurate. He further asserts

8 81!@R:liiff

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

Next, Hentiftums to respondents' allegations about Abu Vasser. According to Henti£,

unless is no basis in the record to support the

proposition ·nl'.n.ll..l'IO'''orl Hentif to participate in j iliad in Afghanistan. And

Hentif asserts that respondents have not shown

person. The two have different names, according to H ...t'IT1~·

mwcatc~s that

(Dect. Defense Intelligence Agency, Background Declaration ­

Names, Aliases, Kunyas and Variants (Sept. 19,2008» at 2.9 In addition, "from

either Shabwa or Baihan Yemen," JE 13 at 4, urn,P1'P,I'II! from Ibb, Yemen, JE 20 (SIR

summarizing interrogation 1. Finally, Hentifnotes that

9 "Because Arabic and English have several letters representing sounds that do not correspond directly. several letters or letter combinations are used interchangeably to represent the same sound.... It is common to see intelligence reports referencing an individual with several different name spellings," JE 1 at 3. Accordingly, neither the parties nor the Court attach significance to spelling variations such as "Yasser" and "Yasir" or "Qahar" and "Kahar."

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

OIiMfil,

the nstltu1te in Ta'iz, Yemen, JE 28 at 1, whereas Hentifmet a mosque

in Sana' a, JE 13 at 2_3. 10 Thus, Hentif argues. the record does not support the conclusion that

the same person and. therefore. there is no basis on which to

rr"....1"nj·t..rt Hentiffor jihad.

Further. Hentif notes that he provided additional, innocent infonnation about his

interactions the interrogation summaries that respondents cite. Specifically,

ugg:est~~ that Hentif travel to Afghanistan to do

humanitarian work and that such work, not jihad, was the purpose ofhis travel. See IE 10 at 3;

JE 11 (FD-302 summarizing May 3,2003 interrogation ofHentif) at 1; IE 13 at 3; IE 14 at 111 see also IE 13

at 4.

Hentif also asserts that several details about his route to Afghanistan support his innocent

explanation of his travel. First, Hentif repeatedly told interrogators that he or his family paid for

his plane ticket, indicating that no recruiter funded his trip. II This contention is corroborated by

HI Respondents respond to each of these distinctions, arguing the name difference is minor~ements regarding where each man is from are locations at which~d Hentif met are sufficiently close that it is Jikely traveled between them.

11 See JE 10 at 3 (reporting that Hentif said he used money he inherited after his father's death to buy a car, and he sold the car to use the proceeds, other than a portion he gave to his brother, ''to fund his travels"); JE 13 at 2-3 (same. but reporting that Hentif gave the money from selling the car to his brother, who then returned some Ofthe!lt0ne fund Hentirs trip); to JE 14 at 2 ("[Hentif] received 3000 Saudi Riyal from his brother 0 fund his trip to Afghanistan."). Other A1 Qaeda recruits have said that their trave was ded~a operatives. See, e.g., JE 7 at 4 (reporting that_told his interrogator tha~ "provided the money for him to travel to Afghanistan").

10 1!l1ii8MT

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

BfilBlt8T

a declaration from Hentif' whom Hentif"grew up like a brother." JE 104

2. _ubmitted a declaration

confirming that Henrif sought permission in the summer of 200 1 "to travel to Afghanistan to

perform charitable work for the poor in that country ... to honor the memory of his father," Id

stated that he "gave [Hentif) some money for hisjoumey."

~ 6. 12

Additionally, Hentif notes that he also told interrogators that he obtained a visa and made flight

arrangements on his own. 13

Second. Hentif argues that~ only a coincidental travel companion, pointing

to evidence that he the airport in Y

See JE 10 at 3; JE 14 at In one interrogation, Hentif reportedly explained that he

did not traveling to Afghanistan, but he seemed likely to be

12 According to respondents, this declaration is not persuasive evidence of Hentifs activities because (1) it goes only to show what Hentiftold his family, not what actually occurred; and (2) such a close relative is a biased witness.

13 Hentif points out that his account ofmaking his own travel arrangements differs significantly from the stories of other Guantanamo Bay detainees whose travel was arranged by AI Qaeda recruiters. Compare JE 10 at 3 (reporting that Hentif said he "went to the Pakistani embassy in Sanaa and obtained a visa to travel to Afghanistan" and "'looked around for airline tickets from Sanaa but saw it was cheaper to fly out of Hadramout, Yemen"), and JE 13 at 3 ("[Hentif) was informed by a travel agent ... in Sanaa that he would need a visa to travel to

iM Pakistan. He was also informed that it would be cheaper to fly from the airport in Mikala, Hydramount, Yemen than from Sanaa. [Hentif] went to the Pakistani embassy and informed them that he wished to travel to [Afghanistan] to perform humanitarian duties; they tourist visa."), with JE 20 at 1 ("Before leaving Yemen_gave his passport to so~ould make arrangements for the visa. Yasir returned with the pas~ visa. ,an J~D-302 swnmarizing interrogation o~at 2 (reporting that _ _ e~t he gave his passport to an Al Qaeda recruiter~ another individual return it t o _ with a visa and a plane ticket from Sana'a to Karachi, Pakistan). Respondents argue in response that Hentifs decision to get a visa to enter Pakistan but not for Afghanistan demonstrates that he had assistance from a recruiter who assured him he could enter Afghanistan without difficulty.

11 ..liiiAIii.

UNCLASSIFIEDIIFOR PUBLIC RELEASE ~. ___________ ~~~ •• __ • T ______ - ••••• ­ UNCLASSIFIEDIIFOR PUBLIC RELEASE

Bt!Bil!'

a good travel partner because he "spoke some English." IE 29 at 4 (reporting that Hentif

explained he did not inquire about the purpose because "it was not poHte to

ask"). Hentif contends that further

evidence that~ontains errors and is unreliable.

Hentif also argues that respondents have not established

AI Qaeda. There is evidence in the record contradicting the proposition that of

the guesthouse where he and Hentifstayed in Quetta: one ofHentifs interrogation summaries

reports that Hentif said "neither [Hentit] knowledge of the house before they

were taken there; the taxi driver drove them to the house/clinic simply because they were Arabs."

JE 29 at 4. It is not even clear, Hendf argues, that there is anything incriminating about the house

in Quetta; while respondents draw inferences from the structure of the building, a wall around a

house does not demonstrate that fighters stay there. 14

12 SI!l€M!'f

UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE

DEIM'

3. Court's findings

account when considering whether Hentif was part of Al Qaeda or the Taliban.

The Court notes, however, that there is also evidence supporting the conclusion that

Hentif did not travel to Afghanistan as an Al Qaeda recruit. For instance. his preparation for his

trip-inquiring with a travel agent, obtaining a visa on his own, and purchasing a cheaper flight

from Hadramout-is inconsistent with the way Guantanamo Bay detainees who admit to being

recruited for jihad have described the circumstances oftheir travel to Afghanistan.

Next, the Court turns to the parties' dispute about the identity The Court

sees no basis to find that the same person. Hentif notes that

his place oforigin, and the location where he met Hentif all conflict

A mismatch as to one of these facts might not disprove the

13 8BeRET

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

alJegation that the two men were the same person. but the Court will not make such a finding

where all three are different.

FinaJly, the Court considers the evidence regarding Hentifs travel COIlnpalll)Orfi,

The evidence regarding is mixed. Interrogation summaries say that Hentif

the airport in Hadramout. They also say both

Hentif to the guesthouse in Quetta and not previously familiar with

the house. The Court has no satisfactory means of resolving these contradictions. There is,

however, one piece ofparticularly damning evidence regarding

consider this evidence in context and with the rest ofthe evidence in the record.

B. Issue Two: !IIo;t'.. 'v...... at an AI Qaeda Guesthouse in Kandahar Operated by

1. Respondents' arguments

Respondents see strong evidence of Hentif s affiliation with Al Qaeda in the fact that,

after entering Afghanistan, he went to a guesthouse in Kandahar run Hentif

admitted that he stayed at this guesthouse for approximately five days. See JE 10 at 4; JE II at 1;

JE 14 at 3 ACCOI·O.1rlg to respondents,

the statements ofother detainees support their assertion a member ofAI

Qaeda and that he ran an Al Qaeda guesthouse in Kandahar. See JE 8 (FD-302 summarizing

interrogation be an AI-

house."); JE 47 (IIR dated January 14,2002,

derived from information provided by a Libyan AI Qaeda member) at 1 (referring to an AI Qaeda

14 8B81tl!!iT

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEOIIFOR PUBLIC RELEASE

guesthouse in Kandahar "which was being operated by a Yemen national named

see also A I-A lwi v. Obama, Civ. No. 05-2223, classified slip op. at 4-5 (D.D.C. Jan. 9, 2009).

They argue that, because AI Qaeda is a secretive organization, the proper inference to be drawn

from Hentifs presence at this guesthouse is that he too was part of Al Qaeda. See JE 2 (Dec1. of

Defense Intelligence Agency, Background Declaration - Guesthouses (September

19, 2008» at 3 (explaining that guesthouses were used as transition points for fighters going to

training camps and noting that "[t]hese guesthouses were not available to the public, but rather

were restricted to individuals with specific definable connections to al-Qaida,,).'6

Further establishing that Hentif was affiliated with AI Qaeda, respondents argue, are the

16 Respondents also argue that the fact that the house had a surrounding wall,

suggesting that it was meant to be secure and closed off. further supports the inference that it was

an AI Qaeda See JE 54 (FD-302 summarizing inte~t 3 (reporting the guesthouse where he met ~g a "three [] meter brown and "a solid, green steel gate"); JE 14 at 3 (reporting that Hentif said the guesthouse had "a wall around the outside that blocked the view of the house from the street").

15 ilii_if

UNCLASSIFIEOIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

Finally. respondents set forth two additional allegations to support their position that

Hentifs stay at gue:sthou~;e demonstrates that he was part ofAl Qaeda. The first is

that the guesthouse served as a transit point for Hentif to attend an Al Qaeda tactical training

consistent with Hentifs admitted usage of the his Yemeni

citizenship. See JE 13 at 1 (reporting that Hentifsaid that a nickname he has

used since childhood); JE I at 12 (noting

16 ODiRET

UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE

81!l@M!T

interrogation ofHentif) at 1 (reporting that Hentif said he received training in Y

Respondents' second additional allegation is that Hentif was captured with a Casio watch

ofa type that many terrorists possessed. See JE 12 (MFR dated June 26, 2002) at 1 (listing

Hentif, by his ISN nwnber, as a person in possession ofa "silver version" of the "Casio F-91 W").

This model of watch "has been used in bombings that have been linked to AJ-Qaida and radical

Islamic terrorist groups with improvised explosive devices." Jd; see also JE 6 (Decl. o~

Defense Intelligence Agency, Background Declaration - Casio F·91 W Watch) at 1

Respondents, citing a recent opinion of the D.C. Circuit, argue that the Court must take Hentifs

possession of this watch into account in reaching its decision. See AI-Adahi,

17 OliiMT

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

BliiiNiT

(explaining with disapproval that the district court "threw out then telling facts" that the

petitioner had been seen wearing and was captured with a Casio watch).

2. Hentif's arguments

Hentif does not dispute that he stayed at a guesthouse in Kandahar run by

He does, however, dispute the implications of his stay there. First, he argues that respondents

have not shown that the house was used exclusively by persons connected to Al Qaeda. In

particular, he notes that although respondents rely on a declaration from an intelligence agency

employee to support that contention, see JE 2 at 3, detainees with first-hand knowledge of the

house's operation indicate that it was open to anyone. See JE 54 at 3 (reporting

~uel~tho!Use "was open to anyone that needed a place to stay"); JE 68 (FM 40

summarizing interrogation 2 (reporting that the

guesthouse, which respondents assert was guesthl[)USe, "was for everyone").

Moreover, Hentif notes, he has said that he did not know if connected to any

terrorist group and that he did not know or get to know the other occupants ofthe house. JE 11

at 1; Government Exhibit ("GE") 1 interrogation of

Hentif) at 1; JE 22 (SIR interrogation of Hentif) at 2 ("[HentifJ

reiterated that he was not well received at the Arab guesthouse in Kandahar. He felt like an

outsider and did not make any acquaintances aside from owner ofthe

guesthouse... merely a hospitable Arab man living in Kandahar who

opened his [] home to fellow Arabs passing through Kandahar. ").19

19 Respondents counter that Hentifhas been in~about his reception Once, he reportedly said that he and _ ' w e r e welcomed at the at. 18 BI!iElR:B'if

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

As to respondents' inculpatory interpretation of the fact

house~ food, prayer time, and conversation were offered." JE 14 at 3. "

19 8E€JR!:ET

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

Henrif also disputes

the significance that respondents attribute to it. First, he asserts that he never

Next, Hentif vigorously disputes the allegation that he attended training camps in

Afghanistan.

See JE 60 at 1

, 22 ("1 never registered for training of any kind and 1 never heard from anyone while 1was in

Afghanistan that my name appeared on any list for training."). He also argues that the lists

indicating re2listered for training do not refer to him. He notes that the name

lDJX:W"S in five places in the relevant set ofdocuments, see JE 37 at 1, 48-49, 56, 70,

85, but respondents only contend that two might refer to him, id. at 48-49, 70. He argues that

this fact shows a common name. Further, respondents connect these two

appearances of the Hentif only because the those instances is from

Yernen or Al Jawf, a region of Yernen. This, according to Hentif, is not a sufficient basis on

which to conclude that the those two instances, refers to him. Additionally,

20 BS€R£if

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

Hentif notes that in one instance the list refers means

that the person himself is See id at 48-49. The list also

indicates ved in Afghanistan in September 2000, id, the year before Hentif

contends he left Yemen. See JE 94 ~ 16 (stating that he traveled to Afghanistan in the summer of

2001); JE 13 at 3 (same); see also JE 104 ft 4-5 (stating that Hentif asked his family, including

his cousin permission to travel to Afghanistan in the summer of2001).23 In light of

these discrepancies, Hentif concludes, the training lists do not support the contention that he

attended a training camp.

3. Court's fmdings

There is no dispute that Hentif stayed at Iluel;thoiuse in Kandahar for

approximately five days. And Hentif concedes that affiliated with Al Qaeda,

although Hentif maintains that he was not aware of that affiliation or why other guests at the

guesthouse were there. Staying at an AI Qaeda-affiliated guesthouse is "powerful-indeed

'overwhelming'-evidence" that an individual was part ofAl Qaeda. AI-Adahi,

(quoting Al-Bihani, 590 F.3d at 873 n.2». Consequently, the Court will take this evidence into

account in considering respondents' case.

23 Respondents question Hentir s credibility as to this point. They argue that Hentirs timetable, in which he fllSt moved from AI Jawfto Sana'a in the summer of2001 but left for Afghanistan that same summer, is so compressed as to be likely untrue. Furthermore, they point to Hentirs assertion that he moved to Sana'a after receiving his inheritance from his deceased father upon turning 18, which, because he was born in 1981, would have occurred in 1999. Finally, they argue that~eclaration is not probative because, if_poke to Hentif on the phone about whether Hentif could go to Afghanistan, Hentif might have been hiding from his family that he had already left Sana'a.

21 !f!@MJ!'

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

J!eM!1

h ....h .... undermine the credibility of his explanation. Therefore, given that Hentif lodged

at an Al Qaeda guesthouse, the Court fInds that it is

Court is also mindful that the falsity ofHentif's exJ;llanalICID

its own evidentiary significance. See AI-Adahi,

("[F]alse

exculpatory statements are evidence--often strong evidence-ofguilt.").

unclear. the Court need

not order to take into account that it

22 Hii81liiT

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

81!@1t!'f

probative value that the Court will

consider.

Next, the Court finds that respondents have not shown that Hentif attended training

courses while in Afghanistan. The Court will not draw any inculpatory inferences from the fact

that the ~n1""'Q1'Q on lists that are apparently rosters for training courses. Hentif's

arguments as to this point are persuasive. In particular, although the roster refers to an individual

(or perhaps multiple individuals) is from Yemen and AI Jawf, nothing else

about the roster suggests that the to Henti£, and the date in 2000 strongly

suggests otherwise. Respondents have no other evidence showing that Hentif arrived in

Afghanistan before the summer of 200 1, whereas the declaration of Hentir s cousin

corroborates Hentirs statements that he departed for Afghanistan in 2001. Moreover. Hentifhas

consistently denied the allegation that he attended training camps.

There is no dispute, however, that Hentif possessed a Casio watch ofa model often used

by Al Qaeda operatives. The Court will take that fact into consideration when considering

respondents' evidence as a whole.

C. Issue Three: Hentif to Travel to Another Guesthouse in Kabul, Immediately Before Working for Two Individuals with Significant Ties to the Taliban and AI Qaeda•.

Hentif has said repeatedly that, while in Afghanistan, he lived with a man he knew from

and did volunteer work for the supervision of

Respondents contend that all three men had

connections to Al Qaeda andlor the Taliban.

23 IIi IiiI lilT

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

1.

a. Respondents' arguments

According to respondents, su~~es:ted that Hentif seek

also known a Yemeni living in Afghanistan. See JE 14 at 3 ("[Hentif]

stated that when he informed

information on an individual named working in Kabul, who was

also from Al Jouf, Yemen."). And, respondents argue, even not the source of

the idea that Hentif find the two men were nevertheless connected, because

that in Kabul. JE 10 at 4~ JE 15

_interrogation of Hentif) at 2.

Respondents note that Hentif told interrogators him to Kabul to the

house of a man named would be able to find

See JE 10 at 4; JE 15 at 2. Respondents argue that_house was a Taliban

guesthouse. As support for this contention, they point

24 Hentif explains in his declaration that these names mean~m the north and the east, respectively, and people called this man by both n~epending upon they lived in relation to his hometown in the northeast of Yemen. JE 94 ~ 7.

25 Respondents acknowledge that the interrogation summary in which the statement supporting their contention also that "[Hentif] later claimed the house in Kandahar he if he knew the whereabouts [Hentif] claims that he he was his Koran teacher [Hentif] also knew that working in Afghanistan." JE 14 at 3. Because "the interpreter was very clear changed his stat~ not a translation problem,"

s assert that Hentifs first statement, that_suggested he find_ true than the one that respondents categorize as a cover story, that Hentif embarking on his trip.

24 JI!e!lll!f

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

they note that Hentif described the house as follows:

This house was located in the Wwr Akbar Khan section ofKabul; [Hentit] could not identifY an£] exact location. It was a two level structure with a small yard and a high wall that blocked the view from the street. There was a driveway large enough for one car. There [were] approximately fifteen Arabs in the house at any given time; people came and went regularly. [Hentit] stated that there were only Arabs at the house and none ofthem had families.

JE 15 at 3. Respondents argue that this description supports the inference that the house was for

fighters, because: (1) another detainee said during an interrogation that he stayed at a Taliban

guesthouse in this same neighborhood, see JE 7 at 2; (2) the house had a high wall; (3) only

single men stayed there; and (4) the house was close to a battle being fought near Kabul.

[Hentif] to retrieve Hentif and take him to. Respondents find further support for this theory in the fact that AI Ansari was able to

after receiving a message

he was there."); JE 15 at 3. This fact is incriminating, respondents assert,

a fighter at Tora Bora. 26 They base this allegation on: (1) the statements

was "40 years of age, [and1 from Saudi

Arabia" fought with him in Tora Bora, see JE 8 at 4; (2) the appearance ofthe name

a list of"AI Qaeda members" who were to attend '''tactics course no. 2" in March

26 A cave complex at Tora Bora was the site ofa December 2001 battle in which the Taliban and Al Qaeda fought against the United States.

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

S159a15T

2001, see JE 34 (IIR at 1,3; and (3) the fact that the Department of Defense

obtained a note sent another individual congratulating him "on

the assassination o~d the Americans," see JE 33 (UR containing translated text of

letter) at 1, 3.

b. Hendf's arguments

Hentifmaintams that the explanation ofhow he went gue~stnoluse to

is not incriminating. He asserts that he went with the

intention of ... u"uUl!. whom he knew as a Koran teacher in Yemen. JE 10 at 3-4; JE

14 at 3; JE 15 at 2.27

toJdhim JE 10 at 4; JE 15 at 2. His travel to

Kabul, then, was for the purpose of finding

house-where, as at he was aware of no indication of any affiliation with a

terrorist group-was innocent. Cf JE 15 at 3 ("[HentifJ claims no one at _ h o u s e

was ever armed.").

As to ,....,,,.......,,.. , Hentif notes that his interrogation summaries give no

indication that AI Shamali was anything other than a Yemeni who Jived in Afghanistan with his

wife and child and taught the Koran at a mosque. JE 15 at 3 (reporting that Hentif said_

27 Hentirs declaration provides additional detail about how he had ~ _ JE 94 ~ 6 ("When I was about eleven years old, I met a family friend, _ _ He was older, an~ Koran to young boys in a nearby mosque. I attended his courses for about two years. _ d i d charitable work for the poor, and I looked up to him because of his knowledge and charity."). Respondents note, however, that during an interrogation, Hentif reportedly said that "when he was eighteen," rather than eleven, "[Hentif] and eight or nine other youth course," rather than courses over two years, "about the Koran given Yemen," JE 14 at 3, arguing that these stories are inconsistent.

26 8fJ@RfJl

UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE

O!!@M' with his wife and one year old son in a two level house" and referring to "the

U1n~·"'...n at located approximately 500 meters from the ... r.••" ...." ,

also JE 15 at 4

was not affiliated with any organization. He coordinated on

his own to teach Afghani children to recite the Koran.").

Further, Hentif contends that the differences in the descriptions of

whom respondents have incriminating information and the~hom Hentifknew belie

the contention that they are the same person. Specifically, the detainee who identified.

having fought at Tora Bora said a Saudi, JE 8 at 4, whereas the

Hentifknew was from Yemen, JE 30 at 2 (reporting that Hentif said

from" AI Zahar, Yemen"). The same detainee also said that 40,JE

8 at 4, but Hentif ....... ",'"'u.J"'... "in his early thirties," JE 30 at 2. Moreover, the men

had different names and different fiunily

circumstances; there is no mention ofthe Taliban-affiliated a wife or child in

Afghanistan, but Hentif reports that the knew lived in Afghanistan with, and left

the country accompanied by, his wife and child. See 1£ 15 at 3; JE 16 at 2. Further, thell respondents identify was at the battle of Tora Bora when Hentifwas making his

way from Afghanistan to Pakistan.

27 SI!@MlT

UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE

Finally, Hentif argues that the information he provided to interrogators about

only information in the record that is definitely connected to the person Hentif

knew-is not inculpatory. Despite respondents' contention that cormectU)DS to

suspicious, Hentif asserts that it is not surprising that Yemenis in

Afghanistan would form a network and be able to locate each other.

c. Court's findings

Respondents have demonstrated a person whom Hentif knew and sought

out in Afghanistan, is connected told interrogators, and does not now

Hentifto Kabul because he knew~ there. Although

not know precisely where_was, he knew

in Hentif and be able to locate And again, there is no dispute

affiliation with Al Qaeda. The explanation that Hentif has offered for the connection between

these men-that they knew each other only because they were all Yemenis living in

Afghanistan-is not supported by any evidence in the record.

The Court does not find, however, tha_house was an Al Qaeda guesthouse. It

is true tha~ recognized AJ Qaeda operative, sent Hentif from his guesthouse in

Kandahar to _guesthouse. And there is evidence that a guesthouse for fighters existed

in the neighborhood of Kabul where _ h o u s e was situated. But, while these facts make

respondents' contention possible, they are not sufficient to support the conclusion

operated an Al Qaeda guesthouse. 29

29 Respondents have not provided evide~ther than from Hentifs statements and several of their arguments about why~was likely to be an Al

28 [email protected]!l'

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDflFOR PUBLIC RELEASE

3eeilEi

Similarly. the Court finds insufficient support for respondents' assertion that t h e .

Hentifknew is the same man who attended training camps and fought at Tora

Bora. As Hentifpoints out, the descriptions ofthese two men-including their nationalities and

family statuses-are different. And there is no indication in the record that

Hentifknew was a fighter. Furthermore~ the similarities in the names ofthe two men are less

meaningful than might be the case under other Cl·trCUl1D.stan~;;es; not a unique name and

to a direction, not a location, so it could be the alias ofan individual ofany

nationality. Consequently, although the Court will consider the connection "",.1"'.v.......

does not find that the~hom Hentifknew was a fighter for Al

Qaeda or the Taliban.

2.

a. Respondents' arguments

Respondents argue Hentif said were affiliated

with the in fact associated with the Taliban.

Qaeda guesthouse have little merit. Specifically, respondents have not shown that the presence of a wall around the house distinguished it from any other house in Kabul. Similarly, that single men stayed in the house is not evidence of an affiliation with terrorists. See JE 80 (Ded. of Dr. Sheila Carapico) ~ 18 (explaining that "[t]he fact that a young Yemeni stays at ·guest houses' while in ... Afghanistan does not itself imply anything menacing or illicit" because "it is

, respondents' argument that was likely for fighters because sits general vicinity ofa battle is so broad as to be meaningless~ this argument would apply to almost any home in Kabul. 29 BI!8RiB'f

UNCLASSIFIEDflFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE

As t~spondents first point to infonnation obtained from a Guantanamo Bay

detainee about a Taliban training camp named for the Taliban COllntrumctler

JE 23 (IIR derived from interview

Another detainee said he went to a house in Kabul where an Afghan UQ,lJl1,",. .

u .... 'u....-u aU [J business" other than cooking. JE 25 (IIR summarizing FBI interrogation of

2. Respondents argue that this evidence demonstrates a

commander who managed recruits. moving them from a guesthouse in Kabul to battle. IfHentif

was working respondents contend, then he too must have been a member ofthe

Taliban.

Based on statements of other Guantanamo Bay detainees. respondents '-~"~"'J

an individual whose real name who used the

aliases. See JE 50 ( I I R _ e r i v e d fro~at 2 _

_ earned with Arabs in Kabul and Qandabar during the Taliban

regime._true name was been known by the a l i a s _

to the battle of Tora Bora"); JE 52 (FM 40 summarizing interrogation

1-2 (reporting that_who admitted to working for members of Al Qaeda and the Taliban,

a list of

membersofa

ran training courses and was connected JE 50 at 2. Again,

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

respondents argue that, because Hentif worked for this man, he must have been part ofthe

TaJiban.

To further bolster their contention that these two men are those whom Hentifknew,

respondents note that evidence in the record c o n n e c t _ The detainee

who told an interrogator a member of

a particular group also included

individuals who joined that group. JE 52 at 2. This detainee also said that he delivered money

from a man he identified as a member of Al Qaeda and the Taliban, JE 52 at 1-2.

53 (SIR summarizing interrogation o~at 1.

Relying on this information, respondents again

s consistent, respondents argue, with the previous events

they describe. such as Hentifs travel for the purpose ofjihad and his stays at A1 Qaeda

guesthouses. Furthermore, they note, there is no evidence in the record corroborating Hentifs

statements about his work for

b. Hentif's arguments

Hentifargues emphatically that encountered in

Afghanistan are not the same men about whom respondents have incriminating information.

First, Hentif points to the detailed information in his interrogation summaries about how he met

31 8tl@M!'P

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

e!eMY

these men and the innocent work he did for them. One particularly specific interrogation

summary indicates that Hentif said:

Koran teacher,~ew worked as a driver for the L - -•• ----.J wanted to work for a hUlnWliull"ia ,,1"<not..rl working directly with~n a

spoke some Arabic. [Hentif]' s daily duties were to ride up medical or food supplies and deliver them to different around Kabul. A Toyota cargo van was used for deliveries. He frequently worked in villages that ~agued by mines and had many land mine victims. Occasionally_

~ou)d hav~mpany him on supply runs that required the two to

go to the Afghani~pply depot and pick up supplies. The depot was

located in the Shar-e-now district ofKabuL Th~upply depot was [aJ

_he staffed facility that was surrounded by gates. no security guards.

_ does not know where the in the came from.

The first line supervisor for was an Afghani man named

did not speak

had distributed medical supplies

94,,23-24. 32

_He .11 This interrogation s~s an explanation for the Jack of corrobo~~ evidence that Hentifworked for the_"[Hentif] was not an official employee o~ signed no contract and was paid no sal~im_y people who could corroborate his employment with~_ and his supervisor,_ JE 16 at 1.

32 Respondents argue that Hentifs story is implausible. First, Hentifsaid he had

permission from his family to spend only three months in Afghanistan, yet he went without

prearranged plans. See JE 10 at 3. Second, information respondents acquired from the_

~eb site indicates that Hentifs a1leged employment did not comply with their policy. which, as respondents understand it, requires that volunteers live in the country in which they work. See Government Exhibit (<OGE") 2 at 1. Third. he had no medical or other training to prepare him for the position he says he held. Fourth, he was not able to name the villages to which he allegedly traveled as part of his work, even when shown a map of KabuL See JE 30 at

32 110•••

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

iBiMii' Second, Hentif points to differences between the physical descriptions o~d

in the intelligence reports on which respondents rely and those in Hentif's

interrogation summaries. These differences, Hentif argues, further demonstrate that the men

about whom respondents have information are not the same ones he knew. 33

JE 23 at 4. In contrast, Hentif said

JE 30 at 2. These descriptions are sufficiently

different, Hentif asserts, to undermine the proposition that they refer to the same man. Hentif

.s also notes that respondents represented in the case of another Guantanamo Bay detainee that

a common name, further calling into question the significance ofrespondents'

identification of is affiliated with terrorist groups. See JE 72 (Ali Ahmed v.

Obama, Civ. No. 05-1678, classified slip op. (May 4, 2009)) at 28 (noting that respondents told

the court that "[i]fyou run the "'llV'''''J';H [a search ofthe government's recordsJ you

will get thousands, potentially tens of thousands ofdocuments or hits,,).34

3; JE 16 at 1.

33 Respondents counter that each of the descriptions Hentif gave, described below, are vague. They argue this lack of specificity is evidence that he was using counterinterrogation techniques and renders the information he provided insignificant for purposes of determining whether his descriptions ofthese men conflict with those given by other detainees.

34 To demonstrate that in addition

provided to the Court a document found by

the Combatant Status Review Board determined

~ Syrian, was a member ofthe Taliban who ran a gu(~SU1l0Wre Status Review Board memo (Oct. 5,2004)) at 1.

33 I!U!l@Jlf!l'

UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE

Hentif also points to the descriptions the interrogation summaries

respondents cite. One detainee said

summarizing interrogation Of_ aliases, references a name of a tall tree and

tall as.tree." JE 52 at 2. Another detainee who

intelligence officer for the Taliban" said

107 (UR derived from interrogations

30 at 2; see also GE 1 at 2 (reporting that Hentif

but also the length of his beard, color of his eyes, age, and

language abilities-mean that the Hentif knew could not have been the same

man as the whom respondents have incriminating evidence.

no reference to Hentif, _or Third, Hentif notes that the documents to which respondents point containing the names

any other person who

had a role in Hentifs story. The coincidence of finding these two names together is not, Hentif

35 This man is a1mos~e one respondents identify; this detainee says "also known ~JE 107 at 3.

34 Stl@R£'

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

argues, sufficient to support the inference that he was connected to these two men with Taliban

ties.36

c. Court's rmdings

The Court will not draw inculpatory conclusions based on respondents' evidence

regarding these two men. First, respondents have not produced sufficient evidence to support

their claim that Hentif's story about distributing medical supplies is fabricated. Hentifprovided

to his interrogators a detailed explanation of his activities, describing the men for whom he

worked, the nature ofms assistance, the vehicle they used, and the locations to which they

traveled. Respondents have offered no alternative explanation of how Hentif spent his time in

Second, the Court will not infer from the names and alleged affiliations

and to the extent that Hentif delivered medical suppHes, he did so on behalf ofthe

Taliban. The descriptions """","11,-11 by Hentif do not match the

descriptions provided by other detainees of men named were

affiliated with the Taliban. Most notably, the respondents identifY is

consistently described as being very tall and as having several names and aliases, whereas Hentif

does not describe knew as being tall or having any other name. Furthermore,

36 Respondents rejoin that Hentifhad already left Afghanistan in 2002, when the group of which they were both allegedly members came together, according to the detainee who described it. JE 52 at 1-2. 35 &belmy

UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE

there is no indication in the record that either of the Taliban-affiliated men respondents identify

played any role in distributing medical supplies for that group.

In sum, the evidence in the record supports the contention that Hentif delivered medical

supplies while in Kabul. Because the Court finds that respondents have failed 10 support with

reliable evidence their theories about the identities evidence

as to whether Hentif did that work on behalfofthe Taliban or OOrullsts only of

conflicting reports ofHentifs statements as to that question. The Court will take this evidence

into account when considering the respondents' case as a whole.

3. Departure from Afghanistan

a. Respondents' arguments

Finally, respondents argue that the circumstances of Hentifs departure from Afghanistan

provide strong, albeit indirect, evidence that Hentiffought at, and subsequently fled from, the

battle ofTara Bora. Hentifs version ofevents, respondents contend, is not credible. Hentif

explains in his declaration that, after the United States invaded Afghanistan, he traveled

from Kabul to Logar, a province in Afghanistan, where they

stayed for a month in a house that_rented. JE 94 ~ 30. In November 2001, they

relocated to Jatalabad, where they stayed with a man named_

~ 31.37 After.

36 IIOMI.

UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE

his family left to cross the border, Hentif followed Afghan guides across the

mountains out ofAfghanistan. Id W34-36. Respondents question why Hentif did not leave Kabul more quickly after the September 11 attacks and why he fled in the direction of Logar

instead of to Kandahar and Quetta, the way he had entered the country. They also assert that

Hentifhas offered inconsistent accounts of what he did while in Logar province; he once said

that he and go to a small mosque near the house to pray and for

to teach the Koran to children," JE 10 at 4, while on another occasion he said that "[t]hey

shopped in the local market, prayed at home, and did not work," noting t h a t _ d i d not

teach the Koran to anyone except for [Hentif]," JE 16 at 2. Respondents further note that Hentif

did not describe to interrogators his activities while in Jalalabad or explain why he was so

delayed in leaving Afghanistan. Respondents argue that, for all these reasons, Hentifs story

should not be believed.

The more likely explanation for Hentirs movements, respondents assert, is that he was a

fighter. After the battle ofTora Bora, many Arab fighters fled to Pakistan. JE 42 (Decl. of

Defense Intelligence Agency - Tora Bora (Oct. 19,2009)) at 3. That battle

ended in mid-December 2001. JE 43 (Dec!. ofLt. U.S. Army (Apr. 28,

2010» at 5. Hentifwas seized at the border of Afghanistan and f"aklsUllll

Further. Hentif asserts he

traveled most of the way to the border with as explained above, respondents

contend was a fighter at the batt]e of Tora Bora. And Hentif told interrogators that his trip from

Jalalabad to the border was lengthy and required a guide, which respondents assert suggests that

he was coming not from JaJaJabad but from the Tora Bora mountains. See JE 10 at 5 ("[Hentif]

37 I!II!!@!!fle,

UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE

&EClftlT

16 at 3 ("[HentifJ and [another

Yemeni fleeing Afghanistan] were infonned ... that it would take one day to make the journey

into

b. Bentif's arguments

Hentif disputes respondents' contention that he was not forthcoming about his activities

while leaving Afghanistan. He asserts that he consistently explained to interrogators where he

went, how long he stayed there, and how he kept occupied while waiting to move on. See IE 10

at 4 (reporting that Hentif said he traveled his wife to Logar. where they

stayed for a month, "during which time they would go to a small mosque near the house to pray

and for to teach the Koran to children," and then they traveled to Jalalabad, where

... for about 20 days"); JE 16 at 2-3 (reporting that Hentif

described in some detail his departure from Kabul with , their one-month

stay in Logar, during which they "shopped in the local market, prayed at home, and did not

work:' and their move to the home Jalalabad, where they stayed for twenty

days). Hentif also notes that he provided explanations for not leaving Afghanistan as quickly as

possible. In Logar, "they were far from where the war was going on and felt that if it got close

they could just cross the border to Pakistan." JE 10 at 4.38 And in Jalalabad, "[t]he twenty day

wait was due to the fact that ~as waiting for the people who could guide [HentifJ

through the border." JE 16 at 3.

38 Hentif said in another interrogation that "[t]he purpose of staying in Logar was so _ o u l d figure out a way to leave Afghanistan without problems." JE 16 at 2. 38 81!l!.mT

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

c. Court's findings

The Court does not find that Hentifwas a fighter at Tora Bora. As explained above,

respondents have failed to show that the whom Hentif refers is the same

fought at Tora Bora The remaining evidence on which respondents rely to

discredit Hentifs account consists primarily ofHentifs statements that traveling from Jalalabad

to the Pakistani This

evidence is insufficient to show that Hentiffought at the battle ofTora Bora.

D. Condusion

The presentation ofthe evidence in this case and the Court's analysis of that evidence in

this memorandum opinion track three broad factual issues about which the parties disagree. In

arriving at the ultimate determination whether Hentifwas part ofAl Qaeda or the Taliban,

however, the Court considers the evidence as a whole. Doing so, the Court fmds that

respondents have carried their burden by a preponderance ofthe evidence.

Not all of respondents' arguments are supported by sufficient reliable evidence. For

example, as explained above, they have failed to prove that Hentif participated in Al Qaeda

training or fought at the battle ofTora Bora. But the following evidence shows that it is more

likely than not that Hentifwas a part of Al Qaeda or the Taliban.39

strong evidence that he was part of Al

39 As discussed in the individual sections of this memorandum opinion. there is further incriminating evidence in the record, but the Court will not exhaustively catalogue it here. The following evidence is sufficient to show that Hentifs detention is lawful.

39 illlQIUiT

UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE

Qaeda or the TaIiban. Further, it undercuts his proffered explanation for his presence in

Afghanistan--that he had gone to help poor Afghans and do something good in memory ofhis

deceased father.

tnOI:catmg that he too was likely connected to Al Qaeda.40

Third, Hentif admits to having stayed at a guesthouse in KaJt10anar

_ a wen-known AIQaeda operative.41 The D.C. Circuit has made clear that staying at an

Al Qaeda guesthouse is "overwhelming" evidence ofan affiliation with Al Qaeda. See Al-Adahi,

(quoting AI-Bihani, 590 F.3d at 873 n.2); see also Uthman. 637 F.3d at 406.

Although Hentif claims that he was not aware that his lodging was an Al Qaeda guesthouse, the

40 Additionally~so stayed at guesthouse with Hentif,

providing further evidence that Hentif's travel COrnp~lnlCm with Al Qaeda.

.....uu....."""

41 To get to Kandahar, Hentif followed a route used by Al Qaeda recruits. Although this fact alone is not significant, as there is no evidence that people who were unaffiliated with Al Qaeda did not use this route. "the fact that [Hentif] followed a common al Qaeda route nonetheless makes it somewhat more likely that he was an al Qaeda recruit." Uthman, 637 F.3d at 405-06.

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

OH@M'

Court is skeptical that the operators of an Al Qaeda guesthouse would allow an innocent visitor

to stay there for multiple nights.42

Finally, at the time of Hentif's ,..",...,h.'I"""

Further, the model ofHentif's Casio watch is one that has been used in bombings linked

to Al Qaeda and other terrorist groups. Although Casio watches of this model are not unique, the

fact that Hentifpossessed one is further support for respondents' contention that Hentifwas part

of Al Qaeda or the Taliban. Cj AI-Adahi,

(noting that evidence that a detainee

had a Casio watch on his person at the time ofhis capture was a "telling fact[J").

42 Further undermining Hentif's claim that he did not know that the house was an Al Qaeda guesthouse is the fact that Hentifadmits to having the AI Qaeda leader of the guesthouse, seeking his assistance in locating his instructions to do so.

41 81!eRET

UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNCLASSIFIEDIIFOR PUBLIC RELEASE

Taken together, this evidence shows that it is more likely than not that Hentifwas part of

Al Qaeda or the Taliban.43 Consequently, the Court concludes that Hentifs detention is lawful

pursuant to the AUMF.

III. CONCLUSION

For the foregoing reasons, Hentifs petition for a writ ofhabeas corpus shall be denied.

An appropriate order accompanies this memorandwn opinion.

~- ~~ Henry . e y, Jr. United Sta s District Judge

August 1, 2011

43 Hentif also argues that if the Court finds that he delivered medical supplies, he must be released from Guantanamo Bay because medical personnel are not detainable under the Geneva Conventions. See First Geneva Convention, art. 24 (providing that individuals "exclusively engaged in the administration of medical units and establishments" are not detainable). The Court disagrees. Although it is not clear that the Geneva Conventions apply to this proceeding, see AI-Bihani, 590 F .3d at 871-72, even assuming they do, Hentif does not meet the defInition for non-detainable medical personnel under the Geneva Conventions because he did not exclusively serve in a medical capacity while in Afghanistan. At most, he delivered medical supplies for a time while he was in Kabul. Accordingly, he was not "permanently and exclusively engaged as a medic," as would be required to qualify as non-detainable medical personnel under the Geneva Conventions. Cf Warafi v. Obama,

(D.C. Cir. 20 II). Article 25 of the Geneva Conventions, which applies to auxiliary medical personnel, bolsters this conclusion. Auxiliary medical personnel are protected by the Geneva Conventions only "if they are carrying out these [medical] duties at the time when they come into contact with the enemy or fall into his hands." See First Geneva Convention, art. 25. Although Hentif does not qualify as auxiliary personnel due to his lack ofmedical training, see

this Article confirms what common sense also dictates-that just because an individual delivers medical supplies for a period of time, he is not entitled to permanent immunity under the Geneva Conventions, especially when at the time of his capture he is not engaged in medical tasks. Hentif engaged in activities that made him functionally "part of' Al Qaeda or the Taliban prior to and following his delivery of medical supplies. Consequently, his detention is lawful.

42 liiilAiiT

UNCLASSIFIEDIIFOR PUBLIC RELEASE UNCLASSIFIEDIIFOR PUBLIC RELEASE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

FADHEL HUSSEIN SALEH HENTIF,

Petitioner, Civil Action 06-01766 (HHK) v. BARACK H. OBAMA, et al.,

Respondents.

JUDGMENT

Pursuant to Fed. R. Civ. P. 58 and for the reasons set forth in the accompanying

memorandum opinion filed with the Court Security Office this same day, it is this 1st day of

August 2011, hereby

ORDERED that the petition for a writ ofhabeas corpus of Fadhel Hussein Saleh Hentif

(ISN 259) is DENIED.

Henry H. Kennedy, Jr. United States District Judge

UNCLASSIFIEDIIFOR PUBLIC RELEASE