Al Qaeda facilitator properly detained, DC Circuit Court finds


Hussein-Salem-Mohammed.jpg

Hussain Salem Mohammad Almerfedi.

Yesterday, a three-judge DC Circuit Court panel overturned the decision of a district court that had granted a Guantanamo detainee's petition for a writ of habeas corpus. Although Joint Task Force Guantanamo (JTF-GTMO) had identified the detainee, Hussain Salem Mohammad Almerfedi (internment serial number 1015), as an al Qaeda facilitator who operated in an Osama bin Laden-funded safehouse in Iran, a district court ruled that there was not enough evidence to justify Almerfedi's detention. The circuit court disagreed with the lower court's ruling and granted the government's appeal in an opinion written by Judge Laurence H. Silberman.

Limited evidence weighed

In granting the government's appeal, the DC Circuit Court relied primarily on Almerfedi's own admissions. Almerfedi "acknowledges that he stayed for two and a half months" at a Jama'at Tablighi (JT) facility in Pakistan. Citing the government's evidence, Judge Silberman described the JT as "an Islamic missionary organization that is a Terrorist Support Entity 'closely aligned' with al Qaeda."

While this evidence is not in Almerfedi's favor, the circuit court found it was not enough to justify Almerfedi's detention in and of itself because there are "surely some persons associated" with JT "who are not affiliated with al Qaeda."

But the circuit court went on to analyze Almerfedi's JT connection in light of his suspicious travel to Iran, where he stayed in both Mashhad and Tehran (both known al Qaeda transit nodes), as well as his admission that he had a large sum of money ($2,000) in his possession at the time of his detention. The circuit court found that these "three facts, when considered together...are adequate to carry the government's burden." Moreover, Almerfedi could not offer a credible explanation for his travels or cash, and the circuit court agreed with the district court that Almerfedi's story was both "perplexing" and "not...convincing."

The government also introduced statements made by another Guantanamo detainee, Humoud al Jadani (internment serial number 230), who told US personnel that Almerfedi stayed at an al Qaeda guesthouse in Iran. The district court had dismissed Jadani's comments as unreliable, finding they were "jail house gossip." Two of the judges on the circuit court panel disagreed, although they did not rely on Jadani's statements in making their decision.

In a leaked threat assessment authored by Joint Task Force Guantanamo (JTF-GTMO), Jadani is identified as "a member of al Qaeda with an extensive history of militant jihad." Jadani received terrorist training in Chechnya and at al Qaeda's al Farouq camp in pre-9/11 Afghanistan.

Jadani "was an admitted leader of armed fighters in Tora Bora during hostilities against US forces," according to the JTF-GTMO threat assessment. In 2007, Jadani was repatriated to Saudi Arabia despite being identified as a "high" threat.

Before being transferred, Jadani told US officials that Almerfedi admitted to him that Almerfedi stayed in an al Qaeda guesthouse in Iran. At some point, Jadani mixed up the dates, saying that Almerfedi had stayed in the guesthouse in 2002 or 2003. But Almerfedi had already been captured in 2001, and therefore could not have been in the guesthouse at that time. Almerfedi's counsel seized upon this inconsistency.

The circuit court found this mixup to be "inconsequential," however, because Jadani got much of the rest of Almerfedi's "unique" story right. In addition, the circuit court cited two interrogation reports, one of which contained the correct dating. The other contained both an incorrect and a correct date for Almerfedi's stay in Tehran. The circuit court noted that the government introduced a classified declaration showing that Jadani's "reliability has been established."

Jadani also told US officials that several other Gitmo detainees placed Almerfedi at the Tehran guesthouse.

Key intelligence not entered as evidence

The government's case against Almerfedi was comparatively weak. However, the government decided to withhold key intelligence from the proceeding, just as it has done in past habeas proceedings. Jadani was not the only al Qaeda detainee in US custody to provide intelligence on Almerfedi.

According to a leaked JTF-GTMO threat assessment written for Almerfedi's case and dated April 28, 2008, top al Qaeda facilitator Abu Zubaydah identified Almerfedi as "someone he met" at an al Qaeda guesthouse in Kandahar, Afghanistan.

Zubaydah was one of three detainees subjected to waterboarding, as well as other "enhanced interrogation" techniques, during his time in the CIA's custody. Because the interrogations of Zubaydah and other top al Qaeda operatives were coercive and controversial, the government has not relied on the intelligence garnered from them.

Zubaydah told US officials that Almerfedi sought "money to get married in early 2001." Zubaydah "gave him approximately $2000 US and never saw him again."

Interestingly, Almerfedi conceded that he had about $2,000 in his possession when he was captured in Iran in late 2001. JTF-GTMO analysts' notes in the leaked threat assessment say this money is "possibly" the cash Almerfedi received from Zubaydah and it is "highly improbable" Zubaydah would provide Almerfedi with the money "unless [Almerfedi] was a mujadhid."

During the habeas proceeding, Almerfedi claimed he had never traveled to Afghanistan to participate in hostilities and that he had traveled to Iran with the hope of moving on to Europe. Zubaydah's admissions were one of the reasons JTF-GTMO did not believe that story. Instead, US analysts found that Almerfedi likely fled to Iran in late 2001 after the US-led campaign against the Taliban's Afghanistan had begun.

There is another more curious admission in the evidence presented before the court. The April 2008 threat assessment notes that another Guantanamo detainee, Toffiq Nasser Awad al Bihani (interment serial number 893), told US authorities that he and Almerfedi lived in one of al Qaeda's guesthouses in Iran. Al Bihani has already lost his own habeas petition. [See LWJ report, Brother of notorious al Qaeda operative denied habeas petition.]

It is not clear why al Bihani's admission was excluded from the government's evidence. This omission is made even more glaring given that Jadani, whose statements were included as evidence, said that Almerfedi had stayed with al Bihani in the guesthouse.

Still another Guantanamo detainee, Abdurahman Khadr (internment serial number 990), told US authorities that he stayed with Almerfedi in an al Qaeda guesthouse in Afghanistan. (Khadr identified Almerfedi by one of his aliases, and JTF-GTMO analysts deduced that Khadr was referring to Almerfedi.)

Therefore, four detainees (Jadani, Zubaydah, Al Bihani, and Khadr) in US custody have said that Almerfedi stayed in al Qaeda guesthouses in Iran and Afghanistan. But the court was only presented with the statements from one of them.

The government excluded other evidence as well. For instance, the leaked threat assessment cites reporting from the Egyptian government that ties an al Qaeda operative using the same alias as Almerfedi to a notorious al Qaeda operative. Almerfedi reportedly gave this operative a "flawless" forged passport.

Controversial approval for transfer

In a footnote, Judge Silberman observed that the "district court noted that Almerfedi had been approved for transfer from Guantanamo Bay." Citing a previous habeas decision, however, Silberman found that "whether a detainee has been cleared for release is irrelevant to whether a petitioner may be detained lawfully."

Almerfedi was not "cleared for release," a term implying that the US government has cleared a detainee of any wrongdoing and intends to outright release him. Instead, Almerfedi was "approved for transfer," which means that the US government has determined it can transfer Almerfedi as long as the receiving country puts in place certain security precautions.

And the decision to approve Almerfedi for transfer was not without controversy.

Attached to the recently leaked April 2008 JTF-GTMO threat assessment for Almerfedi is another memo, dated Jan. 14, 2009, with a subject line that reads: "Response to the Designated Civilian Official (DCO) Decision to Transfer Guantanamo Detainee...". JTF-GTMO objected to an administrative review board's decision to transfer Almerdedi, arguing that he is a "HIGH risk, as he is likely to pose a threat to the US, its interests, and allies." JTF-GTMO stressed that Almerfedi "is a probable recidivist candidate."

A facilitator in Osama bin Laden's guesthouses in Iran

The ARB based its decision to transfer Almerfedi on its understanding that Almerfedi was detained in Iran for being there illegally and not for being an al Qaeda member. The ARB also cited the lack of intelligence connecting Almerfedi directly to al Qaeda's fighting inside Afghanistan.

But JTF-GTMO pointed out that, upon his transfer to Afghan custody in late 2001, the Iranian Ministry of Intelligence and Security (MOIS) identified Almerfedi "as a member of al Qaeda." More importantly, JTF-GTMO concluded that Almerfedi was an al Qaeda facilitator in Iran who was responsible for funneling fighters into Afghanistan.

Jadani identified Almerfedi "as an al Qaeda facilitator in Tehran who assisted the transit of extremists to Afghanistan." Jadani explained that the Tehran guesthouse was operated by an al Qaeda operative named Hamza al Qaiti who "received money from" Osama bin Laden "for the maintenance of the house."

The circuit court found that the government presented "undisputed evidence about the existence of Bin Laden-funded 'guesthouses' in Tehran and the use of hotels in Mashhad as waystations for fighters traveling to or fleeing from Afghanistan."

During a review of declassified and leaked documents from Guantanamo, The Long War Journal found that al Qaeda regularly uses guesthouses in Tehran and Mashhad.

Although Almerfedi was arrested by Iranian policemen, the leaked threat assessment contains reporting about Iran's support for al Qaeda operatives at these facilities. Jadani told US officials that, according to Almerfedi, "Iranian intelligence agents visited the safehouse and photographed the al Qaeda and Taliban members to prepare falsified passports for them."

Jadani also said that top al Qaeda theologian Abu Hafs al Mauritania, as well as Hamza al Qaiti and another al Qaeda operative, "traveled to Iran together and founded two small guesthouses in Tehran." Almerfedi stayed at one of these guesthouses.

Although the Iranians turned Almerfedi over to Afghan forces, they did not turn over any of these other high-level al Qaeda operatives. Abu Hafs al Mauritania was one of the many al Qaeda leaders placed under a loose form of "house arrest."

At Guantanamo, US authorities thought Almerfedi could supply "high" value intelligence, but he has refused to be candid about his al Qaeda role, using "counter-interrogation techniques" to avoid giving up incriminating information. The leaked JTF-GTMO threat assessment lists "Iranian intelligence personnel support to al Qaeda and other extremist elements" as one of the areas to explore in Almerfedi's interrogations. But Almerfedi decided to stay silent on the relationship, leaving authorities to gain intelligence from other detainees, like Jadani.

According to JTF-GTMO, Almerfedi has been an especially problematic detainee. He has instigated numerous incidents behind the wire. During one such incident he allegedly prayed, "God help us overcome those infidels, God help the ones [hunger] striking. God may curse those oppressors."



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