(opinion, pp.6-9)
The Government's evidence is a combination of certain statements of the petitioner that the Court finds credible and certain classified documents that help establish the most likely explanation for, and significance of, petitioner's conduct. Due to the unclassified nature of this proceeding, however, the Court is limited to the following explanation of the factual basis of the Government's case.
First, with respect to staying at particular al Qaeda affiliated guesthouses in Afghanistan, the Government was able to establish this allegation by a preponderance of the evidence by relying primarily on petitioner's own admissions. (See Unclassified Opening at 17 :24-18:9.) The Court finds these admissions to be credible and consistent not only with respect to his visits, but also with his overall trip to Afghanistan to participate in jihad on behalf of the Taliban against the Northern Alliance.
Next, with respect to the Government's allegations that petitioner attended two al Qaeda affiliated training camps (Le. al Farouq and Khalid bin Al Walid), the Court is posed with the novel dilemma of choosing between two diametrically opposed accounts by petitioner about receiving military training; the second of which being a wholesale recantation of the first. (GEx. 49 at 4 [Dkt. #83-4].) In particular, from January 2002 to June 2005, petitioner consistently acknowledged in numerous interrogation sessions that he had attended both of these al Qaeda affiliated training camps as a part of his preparation to join the 55th Arab Brigade. Indeed, on a number of occasions he described in significant detail the training regiment, method of instruction, and instructors at these camps. In June of 2006, however, he suddenly reversed course when he testified as part of his ARB hearing that he had never received military training at any time. (GEx. 49 at 4-5 [Dkt. #83-4].) Curiously, in an interrogation session after his ARB proceeding, he reversed course once again and acknowledged attending these military training camps. While it is tempting to resolve this dispute on behalf of the Government by accrediting, as a matter of common sense, Al Bihani's longstanding and consistent admission to attending those camps, the Court will refrain from doing so as unnecessary in light of the overwhelming and consistent testimony of the petitioner in support of the Government's
third allegation.
As stated previously, the Government's final, and most telling, allegation is that the petitioner, as a member of the SSth Arab Brigade fighting unit, "supported" the Taliban in its fight against the Northern Alliance both prior to and after the initiation of force by the U.S. in October 2001. In that regard, however, petitioner strongly contends that his service in the S Sth Arab Brigade was limited to serving as a cook and kitchen aid to its ISO-plus fighters. Although he acknowledges being assigned a rifle and ammunition, (Unclassified Opening at 18:13), Al Bihani contends that he never fired the rifle in a battle against the Northern Alliance, let alone the United States and its allied forces. Unfortunately petitioner misconstrues the concept of "support" inherent in the enemy combatant definition. It is not necessary, as this Court ruled previously in the Al Alwi case (Ghazy et al. v. Bush et aI., No. OS-2223, Dkt. # 107 at 8 (D.D.C., filed Nov. IS, 200S», that petitioner actually fire a weapon against the U.S. or coalition forces in order for him to be classified as an enemy combatant under the definition adopted by this Court. Petitioner has not only admitted to serving under an al Qaeda military commander, but his close ties to Taliban and al Qaeda affiliated forces as a member of the Arab Brigade unit, albeit in a non-front-line capacity, is more than enough. Indeed, it is particularly telling that when he finally retreated from the front lines, he did so only: (1) after the U.S. had commenced its bombing campaign against the Taliban; (2) in response to an order from his commander; (3) with Taliban forces, in Taliban trucks, and armed with his Taliban-issued Kalashnikov rifle; and (4) to a designated guesthouse where the unit went to regroup in preparation for its next mission. (GEx. 6 at 7-10.) Of course, it was at that location, that his unit commander ultimately decided to surrender to the Northern Alliance troops headed by General Dostum. (GEx. 6 at 10.) Simply stated, faithfully serving in an al Qaeda affiliated fighting unit that is directly supporting the Taliban by helping to prepare the meals of its entire fighting force is more than sufficient "support" to meet this Court's definition. After all, as Napoleon himself was fond of pointing out: "an army marches on its stomach."
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