upcoming event: Invitation to attend October 1-2 Seminar on Teaching National Security Law and participate in the National Security Law Teaching Census

July 29, 2010

* ABA Standing Committee on Law and National Security, Seminar on Teaching National Security Law (October 1 and 2, 2010, Washington, DC)

Note that John Rizzo and Harold Koh will be keynote speakers.

740 15th St. N.W., 9th Floor

Washington, D.C. 20005-1022

July 22, 2010

Dear Colleague:

The ABA Standing Committee on Law and National Security (SCOLNS) is one of the oldest and most active committees of the ABA whose members are dedicated to furthering the bar’s and public’s understanding and appreciation for the practice of law in the area of national security. To help reach our objective, the Committee is hosting a one day seminar on the pedagogy of teaching national security law — approaches and issues, a “Lawyer Jurga”. The Seminar will be held on Saturday, October 2, 2010 at the L’Enfant Plaza Hotel, 480 L’Enfant Plaza, SW, in Washington, DC. The hotel is next to the L’Enfant Metro (yellow/green lines).

The purpose of this seminar is to bring together the academic, practioners educational, and instructional communities from our nation’s law schools, educational legal centers, military and intelligence legal training institutions, military academies, and the National Defense University to discuss the methods, tools, and processes of teaching national security law. This will be the first gathering of all the different communities that has ever taken place. The seminar will build upon the dedicated work done by many of the pioneers in this field by bringing together the community of national security law teachers.

The seminar on October 2 will be held from 8:30 a.m. – 4:30 p.m. and will feature law, JAG, and service school panels, as well as an issues panel on detention and a keynote luncheon address delivered by Harold Koh, State Department Legal Advisor and former Yale Law School Dean. The opening dinner on Friday evening, October 1 will be held at the Army and Navy Club, 901 17th Street, NW on Farragut Square in Washington, DC, starting at 6:30 p.m. with a no-host bar, followed by dinner at 7:00 p.m. John Rizzo, former CIA Acting General Counsel and now Visiting Fellow at the Hoover Institution, will deliver keynote remarks. Called the most influential career lawyer in CIA history, John was responsible for all legal issues regarding the initiation and implementation of intelligence collection and covert action operations. His views on ‘cross-cutting issues’ will be of great interest to all.

Registration fee for Saturday, October 2 is $90.00 and will include breakfast, lunch, afternoon break and conference materials. Additionally, there will be a charge of $50.00 for the opening dinner on Friday evening, October 1. Please visit the Committee’s website – hmcmahon) by 5:00 p.m., Monday, September 26.

We have made arrangements for conference participants to stay at the L’Enfant Plaza Hotel – telephone – 202-484-1000 or 800-635-5065 Please register no later than September 6 to take advantage of the special ABA rate of $139 single/double. Please reference the ABA Standing Committee on Law and National Security Teaching National Security Law Conference when making your reservation to obtain this rate.

We very much welcome your participation in this event and hope you will be able to join us and look forward to sharing ideas, approaches and views. If you wish to complete our National Security Census, click here. We also encourage you to share this announcement with your friends and professional colleagues who might be interested in attending.


Harvey Rishikof, Chair James E. McPherson, Member

October 2 2010 registration form.doc

forthcoming scholarship

July 29, 2010

* Forthcoming Scholarship

"Post-Human Humanitarian Law: The Law of War in the Age of Robotic Warfare"

Indian Yearbook of International Law and Policy, Vol. 1, 2010

Email: kanwar

This Review Essay, to be published in the Indian Yearbook of International Law and Policy (2010) surveys the recent literature on the tensions between of autonomy and accountability in robotic warfare. Four books, taken together, suggest an original account of fundamental changes taking place in the field of IHL: P.W. Singer’s book Wired for War: the Robotics Revolution and Conflict in the 21st Century (2009), William H. Boothby’s Weapons and the Law of Armed Conflict (2009), Armin Krishnan’s Killer Robots: Legality and Ethicality of Autonomous Weapons (2009), and Ronald Arkin’s Governing Lethal Behavior in Autonomous Robots (2009). This Review Essay argues that from the point of view of IHL the concern is not the introduction of robots into the battlefield, but the gradual removal of humans. In this way the issue of weapon autonomy marks a paradigmatic shift from the so-called “humanization” of IHL to possible post-human concerns.

"None to Be Trusted: Israel’s Use of Cluster Munitions in the Second Lebanon War and the Case for the Convention on Cluster Munitions"

American University International Law Review, Vol. 25, No. 3, p. 423, 2010

EITAN BARAK, Hebrew University of Jerusalem
Email: eitanbarak

Israel’s extensive use of the Cluster Munitions in the 2006 Lebanon War provided a major impetus for drafting the 2008 Convention on Cluster Munitions (CCM). Israel, blamed for severe humanitarian post-conflict harm to civilians in South Lebanon, simultaneously faced an extensive diplomatic entanglement with the U.S. based on suspicions that Israel had violated U.S. legislation as well as a classified bilateral end-use agreement specifying the conditions of use of U.S.-made CMs. Relying on numerous sources, especially the recent declassified (June 2008) IDF’s Military Advocate General’s legal opinion into whether Israel’s CM use complied with International Humanitarian Law (IHL) and the 2008 Israel’s Inquiry Commission into the 2006 War final report, this Article lists seven intriguing lessons learned from that War regarding the legality of CM under IHL. These lessons also highlight the fundamental differences in the approaches taken by CCM supporters vis-á-vis the U.S. and other major CM stockpilers, which hold that restricting and regulating the use of CMs (through adopting a new Protocol to the Convention on Certain Conventional Weapons) is sufficient to avoid future harm to civilians from these weapons. Beyond the legality issue, this Article draws conclusions to the Protocol’s fragility and, importantly, to the CCM’s necessity

"Prosecuting Terrorism – Models for Confronting Organized Violence"

WAYNE MCCORMACK, University of Utah – S.J. Quinney College of Law
Email: mccormackw

This article reviews application of the two existing paradigms of law and crime to international terrorism. Terrorism is not an entity with which the model of war makes sense, and ordinary crime is not an adequate model for addressing the problem. Rather than contorting the traditions of either existing paradigm, it would be better to recognize the applicability of a third paradigm that has been applied successfully to piracy and slavery – the model of crimes erga omens under jus cogens which can be supported by military operations other than war (MOOTW). There is already the emerging supra-state body of international humanitarian law (IHL) to address offenses that are characterized by ongoing violence against civilians that is "widespread or systematic."

A valuable corollary is the US experience with racial terrorism and the so-called KKK statutes. The reason for supra-state intervention by international organizations into the affairs of a nation-state is the same as the reason for supra-state intervention by the U.S. federal government into the affairs of a U.S. state. It is the presence of an organization (whether recognized as the state or not) with sufficient resources to carry out violent actions against a civilian population without the state’s being willing or able to control it. This is the identical problem with terrorism today.

This realization feeds into the need for recognition of an international norm of counter-terrorism in which "widespread or systematic" attacks on civilians can be addressed by any nation with use of MOOTW. The model avoids most, but not all, of the confusion and problems that have surrounded the concept of "enemy combatant" in recent U.S. initiatives. Some of the problems not addressed are what to do with tortured miscreants such as KSM and how to address targeted killings – those are to be resolved by other analysis suggested at the end of this article.

"The Requirement of ‘Belonging’ Under International Humanitarian Law"

European Journal of International Law, Vol. 21, Issue 1, pp. 105-124, 2010

KATHERINE DEL MAR, affiliation not provided to SSRN

This article argues that the notion of ‘belonging to a Party’ to an international armed conflict under Article 4A(2) of the Third Geneva Convention is a necessarily low-threshold requirement. It is submitted that the requirement of ‘belonging’ demands no more than a de facto agreement between a state and an irregular armed group to the effect that the latter will fight on the state’s behalf against another state. The article critically examines how the ICTY Appeals Chamber in the Tadić case applied the requirement to ‘belong’ under Article 4A(2) not in order to classify persons, but rather to classify the conflict in the former Yugoslavia as ‘international’. The Appeals Chamber also considered that the same test should apply for the purpose of attributing state responsibility. It will be argued that there should be no underlying assumption that the same test applies for different purposes. Rather, it is to be expected that different tests developed for different purposes are different. This heterogeneous content of international law does not mean that international law is fragmented. Rather, an argument is made for the application of tests according to their respective purposes.

"A Critique of the Goldstone Report and its Treatment of International Humanitarian Law"

American Society of International Law Proceedings, Vol. 104
San Diego Legal Studies Paper No. 10-019

ABRAHAM BELL, University of San Diego School of Law, Bar Ilan University – Faculty of Law
Email: avibell

This essay was prepared for a panel discussion on The Goldstone Report and the Modern Law of War at the 2010 Annual Meeting of the American Society of International Law.

The essay briefly examines the controversial Goldstone Report’s treatment of four legal issues: (1) collective punishment; (2) terrorism; (3) distinction and proportionality and (4) human shielding and perfidy.

The essay finds that the Goldstone Report’s treatment of these issues does not comport with commonly accepted understandings of the meanings of the doctrine. Specifically, on collective punishment, the Report expands the term to cover legal acts of retorsion such as economic and political sanctions. On terrorism, the Report rejects recent treaties and Security Council Resolutions and creates legal duties to support terrorist organizations and respect their alleged rights of free association. The Report erases the intent and anticipation components of distinction and proportionality, and also appears to find all collateral damage disproportionate. And the Report functionally grants some parties immunity from the rules of human shielding and perfidy by finding such acts unworthy of investigation or notice.

In addition, the essay highlights several problems in the Report’s treatment of evidence, as well as its decision to apply its revolutionary new legal standards only to Israel.

"Two Ships in the Night or in the Same Boat Together? Why the European Court of Justice Made the Right Choice in the Kadi Case"

College of Europe EU Diplomacy Paper No. 3/2009

JORIS LARIK, European University Institute – Department of Law (LAW), Dresden University of Technology
Email: joris.larik

This paper investigates the approaches to the recent Kadi case taken by both the Court of First Instance and the Advocate General and asks whether the European Court of Justice made the right choice with regard to the case’s implications for the relationship between European and international law. It argues that the Court’s judgement of 3 September 2008 in Kadi is to be welcomed, also from an international perspective. It rightly rejected the approach presented by the Court of First Instance, which, albeit stressing the importance of the UN Charter, ultimately turned out to be a ‘false friend’ of international law. By largely following the Advocate General’s Opinion, the Court maintained the integrity and the superior human rights standard of the EU legal order. Without jeopardizing the compliance of the Member States with their UN Charter obligations right away, it sent a clear warning signal to the United Nations Security Council to exhaust its potential for reform of the targeted sanction regime to the fullest. The Court showed that in an interdependent world of multilevel governance, the different components cannot ‘pass by each other like ships in the night’. In the face of threats like global terrorism as well as undue curtailing of human rights, we are all in the same boat together after all.

"Burdens of Proof and Evidentiary Standards in U.N. Weapons Inspections"

ROB BEJESKY, affiliation not provided to SSRN
Email: rb_775

The article analyzes the role of evidentiary standards under international law and how perceptions of evidence on weapons of mass destruction (WMD) allegations led to the 2003 invasion of Iraq. The evidentiary record is built by using the five-year Senate Select Committee on Intelligence investigation of the pre-invasion intelligence information (concluded in June 2008), the Iraqi Survey Group physical inspection findings during occupation, other government studies, and verified media releases over the past six years. Findings are juxtaposed with the domestic level issue formation, the UN Security Council interactions, and the four months of UN inspection reports. The chronological case study builds a structure of evidentiary standards, explains why Security Council interactions were logistically effective but ultimately unavailing, and is applied to a two-level domestic/international interactive game framework that distinguishes between established evidence and media assertions. Diplomatic and inspector evidentiary perceptions are analyzed as they progressed and are applied to resolution language that should have been the legal frame of reference for breach. Evidentiary standards of proof for breach were required in Security Council resolutions, all UN processes, UN inspection obligations, under good faith diplomacy principles, and even the language of Congress’s October 2002 Authorization for Use of Military Force Against Iraq. However, preconditions were bypassed. Since the UN Security Council does not possess a formal and dispassionate evidentiary fact-finding institution and diplomatically-produced information can commingle with potentially irreconcilable prerogatives of sovereign authority, an augmenting pressure dynamic can arise to supplant objectivity and relegate impartial, sober, and dispassionate legal processes to the realm of politics.

"Neighbourhood Watch? The African Great Lakes Pact and Ius Ad Bellum"

Zeitschrift für Ausländisches öffentliches Recht und Völkerrecht, Vol. 69, pp. 931-959, 2009

MARCO ROSCINI, University of Westminster School of Law, King’s College London School of Law, Queen Mary University of London School of Law
Email: mroscini

This article focuses on the ius ad bellum provisions contained in the Protocol on Non-aggression and Mutual Defence which forms an integral part of the 2006 African Great Lakes Pact. The Protocol contains peculiar provisions that provide the opportunity to develop broader considerations on the alleged African unorthodox approach to the regulation of the use of armed force. The Protocol is not considered in isolation and is analysed taking into account other analogous African treaties, with the ultimate purpose of establishing whether or not its provisions are consistent with existing law. Section 2 deals with the prohibition of aggression and compares the definition contained in the Great Lakes Protocol with that adopted by the UN General Assembly in 1974. Section 3 analyses the right of individual and collective self-defence as contained in the Protocol and discusses its consistency with Article 51 of the UN Charter and customary international law. Finally, the last two sections investigate whether and under what conditions the Protocol provides for further exceptions to the prohibition of the use of force in addition to self-defence, in particular the ‘responsibility to protect’ populations by military means and the right of pro-democratic intervention.

DOJ National Security Division Office of Law & Policy: seeking fall and spring semester law student interns

July 29, 2010

* DOJ National Security Division Office of Law & Policy: seeking fall and spring semester law student interns



950 Pennsylvania Avenue, N.W.

Washington, D.C. 20530

ATTN: Intern Program Coordinator (Office of Law and Policy)

The National Security Division’s (NSD) Office of Law and Policy, United States Department

of Justice, seeks fall and spring interns for positions located in Washington, D.C.

The mission of the National Security Division is to coordinate the Department’s efforts in

carrying out its top priority of preventing and combating terrorism and protecting the national

security. The NSD provides legal and policy advice on national security matters, litigates

counterterrorism, counterespionage and foreign intelligence surveillance matters, represents

the Government before the Foreign Intelligence Surveillance Court and other federal trial and

appellate courts, and conducts oversight over Federal Bureau of Investigation national security

investigations and foreign intelligence collection.

The Office of Law and Policy is responsible for, among other things, resolving novel and

complex legal issues that arise from the work of the Division and other parts of the

Department, including the Federal Bureau of Investigation; providing advice and guidance to

Department leadership, the Intelligence Community, and other Executive Branch agencies on

matters of national security law and policy; overseeing the development of legislation,

guidelines, and other policies in the area of national security; and addressing national security

issues that arise in appellate cases. The Office works with a variety of other Department

components, including the Office of Legal Counsel and the Office of Legal Policy.

Projected No.

of Volunteers:




Washington, D.C.



Cover letter, resume with two references, transcript (official or

unofficial), and a writing sample (not to exceed ten pages). Please

submit these materials via email to

office.of.law.and.policy-internship@usdoj.gov. Paper or faxed

applications will not be considered.

Qualifications: Applicants must be able to obtain and maintain a security clearance.

Applicants must be enrolled in an accredited U.S. law school at the time

of application and throughout their internship. Strong research and

writing skills are required. By the time of the internship, all applicants

must have taken one or more of the following courses: Criminal Law,

Criminal Procedure, or Constitutional Law. Additional courses

addressing criminal law and litigation or national security or

intelligence law, would also be helpful.



Please send all applications to the email address

office.of.law.and.policy-internship@usdoj.gov by COB

on the date below to be accepted, approved, and on-time for the


Fall 2010: August 6, 2010

Spring 2010: September 17, 2010

Minimum Weeks


Fall Internship: September – December (Full time preferred, but a

minimum two full days per week required)

Spring Internship: January – May (Full time preferred, but a minimum

two full days per week required)

Salary: Internships are unpaid. If your school offers interns academic or work

study, we will work with you to meet school requirements whenever


Assignments: Intern projects include: researching legal questions, drafting

memoranda or other legal and policy analysis, factual research, and

assisting with presentations and supporting materials.

Web Site: http://www.usdoj.gov/nsd

The U.S. Department of Justice is an Equal Opportunity/Reasonable Accommodation Employer

NSD Office of Law and Policy Fall and Spring Internship Posting.pdf

Call for papers: Michigan State Journal of International Law Special Issue on the War on Terror

July 29, 2010

* Call for papers: Michigan State Journal of International Law’s War on Terror Issue (DEADLINE FOR SUBMISSION: AUGUST 20th)

From Mich. St. J. Int’l L:

The Michigan State Journal of International Law is soliciting national security themed articles for its Issue 19.1- slated for publication in November 2010. More specifically, the theme of Issue 19.1 will be: Is There a War on Terror? Subjects the Journal hopes to highlight include:

– Cyber-security and Cyber-warfare

– Counter-terrorism / The Modern “COIN” Strategy

– Torture

– Extraordinary rendition / Irregular Rendition

– The Privatization of War

– Guantanamo Bay / Detainee Imprisonment in the Continental U.S.

– The “Unlawful Enemy Combatant” Debate

– The Legal Context of Nation Building

The topics listed above are only suggestions; the Journal gladly welcomes articles that discuss other unique subjects within the War on Terror theme.

In your search for a publication outlet for your War on Terror article, the Michigan State Journal of International Law would like you to note that we reach over 200 academic and private subscribers in hard copy on virtually every continent and in every major law library in the United States. Moreover, the Journal’s articles are available on the two major legal research databases in the United States, Westlaw and Lexis-Nexis, and this ensures that its articles will be widely circulated and cited repeatedly in research articles worldwide.

The Journal will be accepting article submissions until August 20, 2010. We are flexible on article size; we will determine publication offers based solely on the work’s quality. Articles may be submitted via e-mail to msulawjil@gmail.com.

Should you have any questions related to this call for papers, please feel free to contact me personally at nowaksc1. On behalf of the Journal, we look forward to potentially working with you in the near future.

All the Best,

Scott Nowak
Managing Editor
Michigan State Journal of International Law

Call for papers: Lejeune Leadership Institute at Marine Corps University: Leadership Challenges and the Law of Armed Conflict

July 28, 2010

* Call for Papers: Lejeune Leadership Institute at Marine Corps University, Leadership Challenges and the Law of Armed Conflict

From: Major Carroll J. Connelley USMC

To: International Humanitarian Law Scholars


1. The Ethics Branch of the Lejeune Leadership Institute (LLI) at The Marine Corps University is putting together a collection of writings for a book tentatively titled “Aspects of Leadership: Ethics, Law and Spirituality” to be published in AY 2011-2012. In my position at LLI I will be co-editing the book and am soliciting writing submissions for the three legal chapters. The intent for the law section of this project is to have a collection of well researched writings that address issues facing judge advocates with respect to leadership challenges and the law of armed conflict on the battlefield. Understandably with such a broad dictate, the articles will cover a wide spectrum of issues. To provide some direction, the law section will include three chapters, each dealing with one of the three levels of conflict; tactical, operational and strategic. With that in mind, each offered writing should tackle an issue that focuses primarily within a particular level of conflict. The writing should be between 5000-8000 words (although shorter or longer quality pieces will be considered) and use proper citation. This will be the first in a series of books produced by the Lejeune Leadership Institute expected to come out every other year.

2. The initial offering from the Lejeune Leadership Institute will be similar to the “Blue Book” series produced by the International Law and Military Operations Division at the Naval War College. Our intent is to foster intellectual discussion on the pressing legal issues that are encountered by our Marines, judge advocates and Commanders. We expect to have one of the preeminent academic publishing organizations publish the efforts and very much would like the contributions to come from both the academic and active duty judge advocate communities.

3. The deadline for a one page proposal is 1 September 2010 from which we will select the most promising contributions. A response to the proposals will be provided by 15 September 2010. The draft will then be due 15 December 2010 with a final revised chapter due 30 March 2011. In addition, there will be a collective gathering of all contributors in early 2011 to share, discuss and critique the ongoing efforts. I can be contacted at my office – (703) 432-5489 or at carroll.connelley for additional inquires.

Writing request IHL.doc

call for papers – Stanford Law & Policy Review (DEADLINE: AUGUST 1st)

July 28, 2010

* Call for papers – Stanford Law & Policy Review symposium on "National Defense Policy" (NOTE DEADLINE: AUGUST 1st)

From SL&PR:

The Stanford Law & Policy Review is soliciting articles for an upcoming symposium on “National Defense Policy.” The Stanford Law & Policy Review is a well-respected academic journal at Stanford Law School that explores current issues at the nexus of law and public policy. For each issue we solicit articles from prominent practitioners, policy makers, professors, judges, lawyers, political leaders, regulators, economists, and other experts. Past contributors include President (then Governor) Bill Clinton, Senator John McCain, and Governor Jeb Bush.

The National Defense Policy Symposium will be focused on recent changes and trends affecting national security and the ways in which law and policy may need to adapt in order to respond to these changes. Topics that we would like to cover in the symposium include:

– Veteran Affairs

– New Realms of Warfare (e.g. cyber-warfare, threat finance, etc.)

– Law of War (e.g. targeted killing, detention, etc.)

– Nation Building

– Counter-Insurgency / Counter-Terrorism

– Privatization and War (e.g. the role of private companies in modern warfare)

– Energy, Environment, and Defense

Submissions for publication may cover these topics or any other subject that fits within the broad framework of national security law and policy.

We will accept article submissions until August 1, 2010. Articles should be between ten and forty double-spaced pages, not including notes and citations. Articles should be submitted via e-mail to slpr.defense.symposium.

Selected articles will be published in May 2011. Authors will be invited to present their articles at a conference on national security law and policy at Stanford University.

The Stanford Law & Policy Review looks forward to reviewing your work. Please feel free to contact us with any questions.

Best Regards,

Kent Keirsey

Articles Editor

Stanford Law & Policy Review



link added Almerfedi v. Obama (D.D.C. July 23, 2010)

July 26, 2010

I failed to include the link in my original post – very sorry. The Almerfedi opinion is posted here.

On Mon, Jul 26, 2010 at 11:18 AM, Robert Chesney <rchesney> wrote:

* Almerfedi v. Obama (D.D.C. July 23, 2010) (granting GTMO habeas petition)

In a 28-page opinion posted here, Judge Friedman has granted habeas relief to Hussain Salem Mohammad Almerfedi. This appears to be another decision involving a Yemeni detainee whom the Obama Administration already had approved for transfer from GTMO but had not yet released (presumably as a result of the policy decision not to carry out transfers to Yemen for the time being).

Redactions in the opinion make it impossible to identify the full range of arguments offered by the government in favor of his detention, but the unredacted portions emphasize claims that Almerfedi assisted al Qaeda while in Iran by helping foreign fighters enter Afghanistan, and also that Almerfedi was associated with Jama’at al Tbalighi (a proselytization organization which at times has been used as a front to provide support to various terrorist groups). Key points in the court’s analysis follow:

The Iranian Guesthouse

– Judge Friedman noted that the DC Circuit in al-Bihani had indicated that merely visiting an al Qaeda guesthouse might be sufficient evidence to justify a detention, but he distinguished Almerfedi’s situation by pointing out the ambiguity of the term “guesthouse” and by noting that a “guesthouse” might have different connotations or significance in Iran than in Afghanistan/Pakistan. (p. 9 n.2)

– Judge Friedman ultimately reserved decision on the significance of staying at an AQ guesthouse in Iran, however, on the ground that the evidence failed to prove that Almerfedi had in fact stayed at such a place. It appears the government’s case on this point rested on series of interrogation reports from another GTMO detainee, who referred not specifically to petitioner but rather to “Hussain al-Adeni” (i.e., Hussain from Aden). Judge Friedman noted that this might or might not refer to Hussain Almerfedi. But his more significant objection is that he finds the interrogation-derived statements to be unreliable:

“The Court finds these four intelligence documents inherently unreliable. The only source identified for ISN 230’s information about petitioner is an unnamed group of detainees who arrived in Guantanamo in 2004. Not only does ISN 230 not identify who they are, but there is no information provided about the source or sources of the group’s information. It could be based on personal knowledge, hearsay, multiple hearsay, or rumor. Although hearsay evidence is admissible in these proceedings, the Court still must determine whether the hearsay statements are accurate, reliable and credible. Information that came from an unnamed group of detainees, for which the original source cannot be pinpointed, amounts to no more than jailhouse gossip, if that, and cannot serve as the basis for petitioner’s detention.” (pp. 13-14)

– Judge Friedman rejected other interrogation-derived statements on the ground that they contained factual assertions that were in conflict with other known facts.

Acting as an AQ facilitator in Iran

– Judge Friedman rejected this claim as well:

“As for the government’s contention that petitioner was an al Qaeda facilitator in Iran helping fighters infiltrate Afghanistan, the government has provided no direct or persuasive circumstantial evidence other than petitioner’s alleged association with Iranian guesthouses and the description of petitioner as a "facilitator" in the unreliable documents discussed in Part IJl.B.l. If petitioner had been a "facilitator" for al Qaeda, other witnesses likely would have known about it and would have been able to testify about his work for al Qaeda. The government has presented no such evidence, no evidence of petitioner’s motive, no evidence that he had any history of anti-western or pro-al Qaeda beliefs, and no evidence that he associated with those who advocated such beliefs. Nor is there any evidence that petitioner, who is uneducated, is a sophisticated traveler or document forger -skills that likely would be necessary for al Qaeda facilitators. Furthermore, it is implausible that al Qaeda would post petitioner to a guesthouse in Tehran, because it is undisputed that he does not speak Farsi.’ Most importantly, having failed to prove that petitioner stayed at al Qaeda guesthouses in Iran in 2000 and early 200 I, the argument that he facilitated the movement of foreign fighters into Afghanistan while residing in such guesthouses during that period falls of its own weight.9

Involvement with Jama-at al-Tbalighi

– “while it certainly appears more likely than not that some elements of JT, including some at the JT Center in Lahore, provide financial and other support to Islamic terrorist groups, this premise does not lead to the conclusion that petitioner did so. Petitioner has not provided a convincing explanation for why he stayed in the JT Center for two and one half months without pursuing his stated goal of going to Europe, what he was doing during that period of time, or even why he did not seek out other Arabic speakers aside from Mohammad Ali. See Almerfedi Decl. ~ 18, 21. Nevertheless, the strange and unexplained circumstance of these two and one half months does not lead to the conclusion that petitioner worked as an al Qaeda facilitator while at the JT Center or thereafter at al Qaeda guesthouses. See Bensayah v. Obama, No. 08-5537, slip op. at 17 (D.C. Cir. June 28, 2010) (questions about a petitioner’s whereabouts or explanations may undermine his credibility but do not by themselves "tiell him to al Qaeda or suggestll he facilitated anyone’s travel during that time”). While the government has cast suspicion on petitioner’s explanation and raised doubts about parts of petitioner’s story -a story which he has told consistently since the time of his capture -the government simply has not shown by a preponderance of the evidence that petitioner had any ties to al Qaeda or to the Taliban” (pp. 26-27)