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

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