Full opinion text
CLASSIFIED MEMORANDUM OPINION COLLEEN KOLLAR-KOTELLY, District Judge. Petitioner Fouad Mahmoud Al Rabiah (“AI Rabiah”) has been detained by the United States Government at the Guantanamo Bay Naval Base in Cuba since 2002. The evidentiary record on which the Government seeks to justify his indefinite detention is surprisingly bare. The Government has withdrawn its reliance on most of the evidence and allegations that were once asserted against AI Rabiah, and now relies almost exclusively on AI Rabiah’s “confessions” to certain conduct. Not only did AI Rabiah’s interrogators repeatedly conclude that these same confessions were not believable — which AI Rabiah’s counsel attributes to abuse and coercion, some of which is supported by the record — but it is also undisputed that AI Rabiah confessed to information that his interrogators obtained from either alleged eyewitnesses who are not credible and as to whom the Government has now largely withdrawn any reliance, or from sources that never even existed. Far from providing the Court with credible and reliable evidence as the basis for AI Rabiah’s continued detention, the Government asks the Court to simply accept the same confessions that the Government’s own interrogators did not credit, and to ignore the assessment [redacted] Based on this record (or more accurately, in spite of it), the Government asserts that it has the authority to detain AI Rabiah pursuant to the Authorization for the Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224 (2001) (“AUMF”), which authorizes the use of force against certain terrorist nations, organizations, and persons. AI Rabiah believes he is unlawfully detained and has filed a petition for a writ of habeas corpus. In connection with its inquiry into whether AI Rabiah is lawfully detained, the Court has considered the factual evidence in the record, the extensive legal briefings submitted by the parties, and the arguments presented during a four-day Merits Hearing held on August 26-28, 2009, and August 31, 2009, during which the parties proffered evidence based on the written record and did not present any live testimony. Based on the foregoing, the Court concludes that AI Rabiah’s uncorroborated confessions are not credible or reliable, and that the Government has failed to provide the Court with sufficiently credible and reliable evidence to meet its burden of persuasion. If there exists a basis for AI Rabiah’s indefinite detention, it most certainly has not been presented to this Court. AI Rabiah’s petition for habeas corpus is GRANTED. I. BACKGROUND A. Procedural History AI Rabiah filed his petition for habeas corpus on May 1, 2002, making this case the oldest of the pending Guantanamo Bay habeas cases. After several years of litigation, this case was stayed pending resolution of whether the Court had jurisdiction to hear AI Rabiah’s petition. On June 12, 2008, the United States Supreme Court issued its decision in Boumediene v. Bush, clarifying that this Court had jurisdiction to consider the petition and advising this and the other judges in this District that “[t]he detainees are entitled to [] prompt habeas corpus hearing[s].” 553 U.S. —, 128 S.Ct. 2229, 2275, 171 L.Ed.2d 41 (2008). Following the Boumediene decision, this and most of the other judges in this District agreed to consolidate their Guantanamo Bay habeas cases before former Chief Judge Thomas F. Hogan for issuance of an initial case management order that would expeditiously move these cases toward resolution. Judge Hogan issued a Case Management Order on November 6, 2008, which he amended on December 16, 2008, and which the Court adopted in this case on December 22, 2008. The Court has relied on the Amended Case Management Order as the backdrop for its subsequent Scheduling Orders in this case. The Government filed an Amended Factual Return on September 5, 2008, and pursuant to the schedule set by the Court, A1 Rabiah filed a Traverse on March 30, 2009. The parties engaged in extensive discovery and motions practice in the interim. A1 Rabiah filed a Motion for Additional Discovery on January 26, 2009, which the Court granted-in-part and denied-in-part on February 12, 2009, after a hearing on February 11, 2009. A1 Rabiah filed a Motion to Produce a Declassified Factual Return on January 9, 2009, which the Government produced on February 6, 2009. The Court also required the Government to provide A1 Rabiah with certain discovery from the Guantanamo Bay Joint Task Force database, although the parties decided to narrow the Government’s search obligations in order to expedite the production of specific documents in which A1 Rabiah’s counsel were particularly interested. Additionally, the parties filed seven pre-hearing motions, most of which sought rulings concerning the admissibility of particular evidence. By Order dated June 16, 2009, the Court granted the parties’ motions to rely on hearsay evidence at A1 Rabiah’s Merits Hearing, but held their other evidentiary motions in abeyance. To narrow the disputed issues presented at the Merits Hearing and to focus the parties on the specific documents underpinning their respective arguments, the Court ordered the Government to file a Statement of Facts on which it intended to rely at the Merits Hearing (which narrowed the allegations presented in the Amended Factual Return), and instructed both parties to submit Witness and Exhibit Lists. The Court advised the parties that it would likely exclude from consideration any evidence at the Merits Hearing that had not been identified in the Witness and Exhibits Lists by August 20, 2009 (approximately one week prior to the scheduled Merits Hearing). The parties timely submitted these materials, although the Court allowed both parties to supplement their amended Exhibit Lists on August 21, 2009, in the absence of any prejudice and subject to the intended use of the additional documents at the Merits Hearing. B. Evidentiary Approach As stated above, the Court granted the parties’ motions to rely on hearsay evidence in this proceeding. The plurality in Hamdi v. Rumsfeld specifically acknowledged that “[h]earsay ... may need to be accepted as the most reliable available evidence from the Government.” 542 U.S. 507, 534, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004). The Court finds that allowing the use of hearsay by both parties balances the need to prevent the substantial diversion of military and intelligence resources during a time of hostilities, while at the same time providing A1 Rabiah with a meaningful opportunity to contest the basis of his detention. The Court is fully capable of considering whether a piece of evidence (whether hearsay or not) is reliable, and it shall make such determinations in the context of the evidence and arguments presented during the Merits Hearing — including any arguments the parties have made concerning the unreliability of hearsay evidence. Cf. Parhat v. Gates, 532 F.3d 834, 849 (D.C.Cir.2008) (explaining, in the context of the Detainee Treatment Act, that the Court was “not suggesting] that hearsay evidence is never reliable — only that it must be presented in the form, or with sufficient additional information, that permits [the finder of fact] to assess its reliability”) (emphasis in original). For similar reasons, the Court shall deny the Government’s motion to have its evidence admitted with a presumption of accuracy and authenticity. Relying in part on the Supreme Court’s statement in Hamdi v. Rumsfeld that “the Constitution would not be offended by a presumption in favor of the Government’s evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided,” 542 U.S. at 534, 124 S.Ct. 2633, the Government argues that a presumption as to its evidence is both appropriate and necessary. The Court disagrees. One of the central functions of the Court in this case is “to evaluate the raw evidence” proffered by the Government and to determine whether it is “sufficiently reliable and sufficiently probative to demonstrate the truth of the asserted proposition with the requisite degree of clarity.” Parhat, 532 F.3d at 847. Simply assuming the Government’s evidence is accurate and authentic does not aid that inquiry. Cf. Ahmed v. Obama, 613 F.Supp.2d 51, 55 (D.D.C.2009) (rejecting a presumption of accuracy for the Government’s evidence and holding that “the accuracy of much of the factual material contained in [the Government’s] exhibits is hotly contested for a host of different reasons ... ”). The Court also finds that there are significant reasons why the Government’s proffered evidence may not be accurate or authentic. Some of the evidence advanced by the Government has been “buried under the rubble of war,” Hamdi, 542 U.S. at 532, 124 S.Ct. 2633, in circumstances that have not allowed the Government to ascertain its chain of custody, nor in many instances even to produce information about the origins of the evidence. Other evidence is based on so-called “unfinished” intelligence, information that has not been subject to each of the five steps in the intelligence cycle (planning, collection, processing, analysis and production, and dissemination). Based on the Government’s own declarations, its raw intelligence may not have been fully analyzed for its “reliability, validity, and relevance” in the context of other intelligence where “judgments about its collective meaning” are made. Ex. 1 at 5 (9/19/08 Decl. of [redacted] Ex. 1-A at 1-2 (5/29/09 Del. of [redacted] (explaining that the Five steps in the intelligence cycle are not “mechanical” and that the process “varfies] by collection specialty,” but not disturbing the conclusion that “unfinished” intelligence has not undergone the same rigorous integration and evaluation process that produces “finished” intelligence). Still other evidence is based on multiple layers of hearsay (which inherently raises questions about reliability), or is based on reports of interrogations (often conducted through a translator) where translation or transcription mistakes may occur. In this case, for example, the record contains two reports written about the same interrogation, with one report stating that [redacted] Ex. 31 at 1 [redacted], and the other report indicating that [redacted] Ex. 44 at 1 ([redacted]). The Government did not address this discrepancy at the Merits Hearing and did not show that any attempt had been made to reconcile the reports. Accordingly, the Court shall not accord a presumption of accuracy or authenticity to the Government’s evidence, but shall consider the accuracy or authenticity of the evidence in the context of the entire record and the arguments raised by the parties. The Court shall use the same approach to consider A1 Rabiah’s pre-hearing evidentiary motions that sought to exclude particular pieces of evidence prior to the Merits Hearing based on their alleged lack of authenticity, reliability, or relevance, or sought to exclude A1 Rabiah’s statements based on alleged abuse and coercion. Rather than exclude evidence from consideration ex ante by examining it in a vacuum, the Court concludes that the better approach is to make such determinations after considering all of the evidence in the record and hearing the parties’ arguments related thereto. The Court believes this approach is particularly useful where, as here, a document viewed in isolation may appear to be irrelevant, but when considered in the context of the other evidence in the record its importance may become clear. The Court also believes this approach is appropriate for allegations involving abuse or coercion, where evaluation of the entire record will elucidate the relationship between the possible abuse or coercion and any statements relied on by the Government to justify A1 Rabiah’s detention. Accordingly, the Court’s consideration of the evidence proffered by the parties shall encompass inquiries into authenticity, reliability, relevance, and alleged abuse or coercion. Cf. Parhat, 532 F.3d at 847 (describing the Court’s inquiry into whether evidence is “ ‘sufficiently reliable and sufficiently probative to demonstrate the truth of the asserted proposition with the requisite degree of certainty’”) (quoting Concrete Pipe & Prods., Inc. v. Constr. Laborers Pension Trust, 508 U.S. 602, 622, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993)). C. Standard of Detention As Judge Reggie B. Walton accurately observed in a thoughtful opinion considering the Government’s detention authority, “the state of the law regarding the scope of the President’s authority to detain petitioners remains unsettled,” Gherebi v. Obama, 609 F.Supp.2d 43, 45 (D.D.C.2009), even though habeas petitions by individuals such as Al Rabiah have been pending for over seven years. Guidance in this area is limited because the Supreme Court acknowledged but did not clarify the uncertain “permissible bounds” of the Government’s detention authority, see Hamdi, 542 U.S. at 552 n. 1, 124 S.Ct. 2633, and the D.C. Circuit has not had occasion to address the issue. Fortunately, several judges in this District have considered the scope of the Government’s detention authority and have issued well-reasoned opinions on the subject. See, e.g., Gherebi 609 F.Supp.2d at 43; Hamlily v. Obama, 616 F.Supp.2d 63 (D.D.C.2009); Mattan v. Obama, 618 F.Supp.2d 24 (D.D.C.2009). Taking advantage of these prior decisions, the Court shall adopt the reasoning set forth in Judge John D. Bates’s decision in Hamlily v. Obama, and shall partially adopt the Government’s proposed definition of its detention authority. The Court agrees that the President has the authority to detain individuals who are “part of’ the Taliban, al Qaeda, or associated enemy forces, but rejects the Government’s definition insofar as it asserts the authority to detain individuals who only “substantially supported” enemy forces or who have “directly supported hostilities” in aid of enemy forces. While evidence of such support is undoubtedly probative of whether an individual is part of an enemy force, it may not by itself provide the grounds for detention. Accordingly, the Court shall consider whether Al Rabiah is lawfully detained in the context of the following standard: The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act in aid of such enemy armed forces. In the context of this definition, the “key inquiry” for determining whether an individual has become “part of’ one or more of these organizations is “whether the individual functions or participates within or under the command structure of the organization — ie., whether he receives and executes orders or directions.” Hamlily, 616 F.Supp.2d at 75. D. Burden of Persuasion Pursuant to the Amended Case Management Order that the Court adopted in this case on December 22, 2008, the Government bears the burden of proving by a preponderance of the evidence that Al Rabiah is lawfully detained. See In re Guantanamo Bay Detainee Litig., Misc. No. 08-442, CMO § II.A, 2008 WL 4858241 (Nov. 6, 2008) (“[t]he government bears the burden of proving by a preponderance of the evidence that the petitioner’s detention is lawful”) (citing Boumediene, 128 S.Ct. at 2271) (“[T]he extent of the showing required of the government in these cases is a matter to be determined.”). Accordingly, Al Rabiah need not prove his innocence nor testify on his own behalf. The Court has drawn no inference based on Al Rabiah’s decision not to testify in this case. Accord Awad v. Obama, 646 F.Supp.2d 20, 23-24 (D.D.C.2009). The Government must come forward with evidence demonstrating by a preponderance of the evidence that he is lawfully detained, and if the Government fails to meet this burden, the Court must grant Al Rabiah’s petition for habeas corpus. II. DISCUSSION A. Al Rabiah’s Reasons for Traveling to Afghanistan in October 2001 Al Rabiah’s background is not in dispute. He is a fifty year old father of four from Kuwait. Ex. 175 ¶ 2 (3/17/09 Deck of Al Rabiah). He graduated from AST University in Perth, Scotland, with an aviation maintenance degree in 1981. Id. ¶ 3. Shortly after his graduation, Al Rabiah joined Kuwait Airways as an aviation engineer, and worked there for twenty years until his detention in 2001. Id. ¶ 3. From 1986-1988, Al Rabiah took leave from Kuwait Airways to obtain a bachelor’s degree in professional aeronautics and a master’s degree in aviation management from Embry-Riddle Aeronautical University in Daytona Beach, Florida. Id. In addition to his career at Kuwait Airways, Al Rabiah helped create and became part owner of Summits Health Club in Kuwait, and he was hired to assist with the management of a second health club located on the premises of a charitable organization called the Isla Society. Id. ¶ 4. He has no military training except for two weeks of compulsory basic training with the Kuwait Army, after which he was medically discharged due to a knee injury. Id. ¶ 5. At the time of his detention, Al Rabiah was overweight (240 pounds) and suffered from various medical ailments such as high blood pressure and chronic pain in his neck and lower back. Id. ¶ 6. Al Rabiah has a history of traveling to impoverished and/or war-torn countries for charitable purposes. In 1994-95, Al Rabiah traveled to Bosnia as a volunteer for the Revival of Islamic Heritage Society. Id., Ex. C at 1 (9/7/94 Letter from al Anzi to al Zaban). In 1998, Al Rabiah traveled to Kosovo to work as a volunteer for the Kuwait Red Crescent. Id., Ex. C at 11 (2/25/02 Certificate). He also traveled on a mission to Bangladesh on behalf of the Patients Helping Fund in April 2000 to deliver kidney dialysis fluid to a facility in Dakka. Id., Ex. C at 13 (3/6/02 Certificate). There is also no dispute that AI Rabiah traveled to Afghanistan for approximately 10 days in July 2001. Id. ¶ 10 (3/17/09 Deck of Al Rabiah). As a routine practice, Al Rabiah formally requested leave from Kuwait Airlines when he undertook his charitable activities. According to Adel Al-Rashed, Al Rabiah’s supervisor at Kuwait Airlines, Al Rabiah had a “spotless attendance record” and “was never absent without leave.” Ex. 179 ¶ 3 (2/23/09 Deck of Adel AlRashed). Included in the record are letters associated with Al Rabiah’s mission to Bosnia, for which Al Rabiah sought and received leave. Id., Ex. B at 1 (9/7/94 Letter from Al Anzi to Al Zaban). One of the letters even sought an additional week of leave for Al Rabiah when he was unable to timely depart Bosnia “due to the siege imposed on it.” Id. Against this background, the parties dispute the reasons for Al Rabiah’s decision to travel to Afghanistan in October 2001 (Al Rabiah was on this trip when he was detained and subsequently transferred to Guantanamo Bay). According to Al Rabiah, he traveled to Afghanistan to complete a fact-finding mission related to Afghanistan’s refugee problems and the country’s non-existent medical infrastructure. Ex. 175 ¶¶ 10, 11. According to the Government, Al Rabiah was “not an aspiring aide worker caught up in the front lines of the United States war against al-Qaeda” but instead was someone who traveled to Afghanistan in October 2001 as a “devotee of Osama bin Laden who ran to bin Laden’s side after September 11th.” 8/26/09 Merits Hrg. Tr. at 28. The evidence in the record strongly supports Al Rabiah’s explanation. On September 29, 2001 (prior to his departure to Afghanistan), Al Rabiah completed a leave form requesting leave from Kuwait Airlines between October 6, 2001, to October 17, 2001. Ex. 179, Ex. at 1 (9/29/01 Leave Form). This request was approved by Mr. Al Rashed’s supervisor, Bader M. Al Khulaifi. Id. [redacted] Although Al Rabiah traveled to Afghanistan knowing that it was likely to become a dangerous place, he had traveled previously to other dangerous places — including Bosnia — for his charitable work. Ex. 179 & Ex. B (2/23/09 Decl. of Adel Al-Rashed). Al Rabiah was unable to leave Afghanistan as he had planned. On October 18, 2001, he wrote a letter to his family, explaining that for ten days he assisted with the delivery of supplies to refugees and that he was able to take video “reflecting the tragedy of the refugees,” but that he was unable to leave Afghanistan through Iran (the route he took to enter the country) because the borders had been closed. Ex. 177, Ex. C at 1 (10/18/01 Letter from Al Rabiah). After submitting his passport to Iranian officials at the border and waiting two days to exit the country, he was told that Iran would not receive him. Id. Accordingly, Al Rabiah wrote in his letter that he and an unspecified number of other persons decided “to drive four trucks to Pakistan making our way to Peshawar.” Id. Having apparently recognized that he had reached the end of his requested leave with Kuwait Airlines, Al Rabiah also requested that his letter be given to his brother Yahya, who also worked at Kuwait Airlines, “in order to inform [his] Personnel Affairs Manager accordingly.” Id. The evidence in the record establishes that Al Rabiah did, in fact, travel across Afghanistan toward Peshawar, ultimately getting captured (unarmed) by villagers outside of Jalalabad, Afghanistan (across the border from Peshawar, Pakistan) on approximately December 25, 2001. Ex. 75 at 1 (Feb.2002 Intake Form for Maher Al Quwari); Ex. 175 ¶ 32 (3/17/09 Deck of Al Rabiah) (stating that he and Al Quwari were captured together). After Al Rabiah was transferred to American custody in Afghanistan, he wrote a second letter to his family. Ex. 177, Ex. D at 1 (Undated Letter from Al Rabiah). He explained that he was in “good health and condition” and that “[t]he situation in the country turned upside down between one day and night and every Arab citizen has become a suspect.” Id. He further explained that he was “detained by the American troops and thanks to God they are good example [sic] of humanitarian behavior.” Id. Finally, he explained that he was “detained [ ] pending verification of [his] identity and personality” but that the “investigation and verification procedures may last for a long period due to the great number of the detained Arabs and other persons.” Id. At the Merits Hearing, the Government did not dispute that Al Rabiah sought two weeks of leave from Kuwait Airlines prior to leaving for Afghanistan or that he wrote these two letters, and did not argue that his request for leave and these letters were part of an elaborate plan to mask his true intentions in Afghanistan. Rather, the Government sought to demonstrate that Al Rabiah made previous trips to impoverished and war-torn countries for terrorism-related purposes and not charity. As support, the Government proffered evidence that the Kuwaiti Joint Relief Committee and the Revival of Islamic Heritage Society (two organizations for which Al Rabiah volunteered), have been designated by the United States as organizations that provide financial or other support to terrorist organizations. Ex. 1 at 25-26 (9/19/08 Deck [redacted] The Government argues that this evidence supports the inference that Al Rabiah had a history of supporting terrorism, and that he “acted in conformity” with this history when he traveled to Afghanistan in October 2001. 8/26/09 Merits Hrg. Tr. at 30-32. The Court finds no basis for the Government’s suggested inference because, as the Government conceded at the Merits Hearing, neither of these organizations was designated as a supporter of terrorism at the time Al Rabiah volunteered with them. Id. at 31 (“THE COURT: But you’ve indicated that [the organizations] were not considered [supporters of terrorism] at the time that he was associated or doing any work with them? THE GOVERNMENT: That is correct, Your Honor.”). Beyond this deficiency, there is also no evidence in the record that these organizations supported terrorism at the time Al Rabiah volunteered for them (regardless of their designations by the United States), or evidence that Al Rabiah had any role involving terrorism or knowledge that these organizations had links to terrorism. In short, there is no evidence in the record supporting the inference that Al Rabiah was involved with terrorist activities when he previously traveled to impoverished and war-torn locations. The other evidence proffered by the Government in support of its argument that Al Rabiah has a history of supporting terrorism is based on one sentence, from one interrogation report, of someone named [redacted] Ex. 77 at 1-3 [redacted] Id. at 2. [redacted] the Court does not credit this allegation because the Government provides no information about [redacted] beyond this one interrogation report, itself states that [redacted] Id. at 1. As a consequence of this lack of supporting information, there is no evidence identifying the source of [redacted] knowledge, or evidence that the Government ever determined that he was a reliable witness. This is particularly significant because [redacted] made other allegations during this interrogation in [redacted] concerning the conduct of other individuals in 2000 and 2001 (such as identifying where individuals attended training camps or organizations with whom others were affiliated) even though [redacted] The Government also fails to indicate whether [redacted] other allegations included in the interrogation report are credible. Based on the wholesale lack of evidence demonstrating that [redacted] a reliable witness and that his allegations are credible, the Court finds that this evidence is entitled to no weight and shall not be considered probative of whether Al Rabiah’s detention is lawful. See Parhat, 532 F.3d at 848 (explaining that the Court must “have an opportunity to assess the reliability of the record evidence” which is “not simply a theoretical exercise”). Based on the foregoing, the Court finds that Al Rabiah has proffered the following credible evidence: that he has a history of traveling to impoverished and war-torn locations for charitable purposes; that he has a history of requesting leave from Kuwait Airlines, his employer, prior to undertaking these trips; that he requested and received two weeks of leave in October 2001 to travel to Afghanistan; that he wrote a letter to his family at the end of his planned two week trip explaining that he was unable to exit the country as he had planned, but that he would attempt to leave Afghanistan through the Pakistani border to get to Peshawar; and that he requested that his brother notify personnel at Kuwait Airlines because his leave had expired. The Court finds that this evidence gives rise to a strong inference that Al Rabiah traveled to Afghanistan in October 2001 for charitable purposes. In contrast, the Government has argued that Al Rabiah traveled to Afghanistan in October 2001 in conformity with his previous connections with terrorist activity, but has failed to proffer reliable and credible evidence in support of that argument. Accordingly, the Court concludes by a preponderance of the evidence that Al Rabiah more likely than not traveled to Afghanistan in October 2001 for charitable purposes. B. Al Rabiah’s Activities in Afghanistan The Government’s case rests primarily on three allegations concerning Al Rabiah’s activities in Afghanistan. First, the Government asserts that Al Rabiah traveled to Afghanistan for approximately two weeks in July 2001 where he met Usama Bin Laden on four occasions and then returned to Kuwait until his trip in October 2001. Second, the Government asserts that Al Rabiah fought at Tora Bora and took a leadership position by distributing supplies and managing resource disputes. Third, the Government asserts that Al Rabiah is part of al Qaeda because he traveled through Afghanistan with members of al Qaeda, stayed at al Qaeda guesthouses, and surrendered his passport to al Qaeda members pursuant to its standard operating procedures. The Government relies on the first allegation — -that Al Rabiah met with Usama bin Laden — only to the extent that it supports the Government’s other allegations in this case, and not as itself a basis for Al Rabiah’s detention. 8/27/09 Merits Hrg. Tr. at 157-58 (clarifying that the Government’s evidence related to Al Rabiah’s association with bin Laden and his history of volunteering for organizations that have now been designated as supporters of terrorism were offered only to show Al Rabiah’s “propensities” and that he acted in conformity with those propensities when he traveled to Afghanistan in October 2001). The Court’s discussion of the Government’s allegations shall proceed in three steps. First, the Court shall address the alleged eyewitnesses, as to whom the Government has withdrawn substantially all reliance in this case, and explain why none of these witnesses have provided reliable or credible allegations against Al Rabiah. Second, the Court shall address Al Rabiah’s alleged confessions, on which the Government relies almost exclusively to support his detention, and explain why they too are neither reliable nor credible. Third, the Court shall briefly address the Government’s few remaining arguments based on the evidence in the record and explain why these arguments do not provide a basis for Al Rabiah’s indefinite detention. Ultimately, the Court concludes that the Government has not proffered sufficiently credible and reliable evidence to support its allegations concerning Al Rabiah’s activities in Afghanistan, and although Al Rabiah has not provided a full explanation for his activities either, the Government and not Al Rabiah bears the burden in this case. 1. Alleged Eyewitnesses i. [redacted] The first detainee at Guantanamo who made allegations against Al Rabiah was [redacted] Although his allegations are filled with inconsistencies and implausibilities, the Government continues to rely on him as an eyewitness to Al Rabiah’s activities at Tora Bora. There is no justification for the Government’s reliance on [redacted] in this case. [redacted] made his first set of allegations against Al Rabiah on [redacted] when he described a meeting that occurred in the Tora Bora mountains during the last week of October 2001. Ex. 41 at 3 [redacted]. [redacted] and was told that Al Rabiah was in charge of supplies at Tora Bora. Id. [redacted] also stated that [redacted] Ex. 195 at 2 [redacted] As these allegations reflect [redacted] was not speaking based on firsthand knowledge, and the reliability of the unnamed [redacted] is entirely unknown. Additionally, [redacted] interrogator immediately questioned his second allegation because [redacted] Id. at 1. In fact, it is undisputed that Al Rabiah’s oldest son would have been 11 years old in 2001, Ex. 175 ¶ 2 (3/17/09 Decl. of Al Rabiah), and the Government has never argued that Al Rabiah brought his son with him to Afghanistan. [redacted] provided a second set of allegations on [redacted] Ex. 42 [redacted] This time purporting to provide first-hand information about Al Rabiah’s activities in Afghanistan, [redacted] alleged that: [redacted] Id. at 1. The Government has not even attempted to defend most of the allegations quoted above. It is undisputed, for example, that A1 Rabiah never studied to be a pilot, Ex. 175 ¶ 3 (3/17/09 Decl. of A1 Rabiah), and the Government has never alleged that someone who was so slow that [redacted] could nonetheless [redacted] There is similarly no evidence in the record that A1 Rabiah had the training or background that would have allowed him to become a trusted leader of a fighting group, and the Government has never suggested otherwise. [redacted] provided a third and final set of allegations on [redacted] when he alleged that he met A1 Rabiah in [redacted] and provided new insights into A1 Rabiah’s activities: [redacted] Ex. 17 at 1-2 [redacted] allegation that A1 Rabiah [redacted] is inconsistent with his allegation that A1 Rabiah [redacted] Further, [redacted]’s allegation that he carried A1 Rabiah’s [redacted] is completely incredible because A1 Rabiah’s counsel cited evidence at the Merits Hearing that 120 rounds of ammunition for a Kalashnikov would have weighed approximately five pounds, Ex. 117 at 4 (1998 Jane’s Infantry Weapons Excerpt) (explaining that a 30-round magazine weighs approximately .6 kilograms, the equivalent of 1.3 pounds), and the Government did not argue otherwise. Based on these inconsistencies and impossibilities, the Court has little difficulty concluding that [redacted]’s allegations are not credible. In addition, A1 Rabiah’s counsel submitted into the record numerous exhibits that undermine [redacted]’s reliability based on, among other things, undisputed inconsistencies associated with his allegations against other detainees, instances where [redacted] and medical records suggesting that he [redacted]. 8/31/09 Merits Hrg. Tr. at 33-34 (listing exhibits). At a minimum, the Government would have had to corroborate [redacted]’s allegations with credible and reliable evidence, which it has not done. Accordingly, the Court shall find that [redacted]’s allegations are entitled to no weight and they shall not be considered probative of whether A1 Rabiah’s detention is lawful. ii. [redacted] The second detainee to make allegations against A1 Rabiah was [redacted] Over a series of interrogations, [redacted] alleged that A1 Rabiah attended a feast hosted by Usama bin Laden where A1 Rabiah presented bin Laden with a suitcase filled with money, that A1 Rabiah served in various fighting capacities in the Tora Bora mountains, and that A1 Rabiah funneled money to mujahadeen in Bosnia in 1995. The Government has now withdrawn its reliance on almost all of [redacted] allegations except for his claim against A1 Rabiah in Bosnia. The Government’s reliance on [redacted] this case even for this one allegation is unjustifiable. First, the only consistency with respect to [redacted] allegations is that they repeatedly change over time. With respect to [redacted] allegation that A1 Rabiah attended a feast with Usama Bin Laden, in one version [redacted] 30 at 3 [redacted] in another version [redacted] Ex. 33 at 2 [redacted] in another interrogation he explained that [redacted] Ex. 154 at 1 [redacted] and in yet another version he stated that, rather than presenting bin Laden with money, A1 Rabiah solicited others to give donations to bin Laden during the feast. Ex. 96 (2/22/06 Interrogation of [redacted] ). Moreover, in one version of [redacted] allegations [redacted] Ex. 24 at 2-3 [redacted] in another version [redacted] Ex. 36 at 2 [redacted] and in another version Al Rabiah arrived with “a Palestinian male by the name of [redacted] also called [redacted]’” Ex. 96 at 1 (2/22/06 Interrogation of [redacted]. The guest list for this feast also consistently changes over time, with the differences too numerous to identify. See, e.g., 8/27/09 Merits Hrg. Tr. at 72. In fact, [redacted] claimed in one interrogation that this alleged feast occurred in August 2001, when it is undisputed that Al Rabiah was not even in Afghanistan, [redacted] The Government did not attempt to defend these allegations at the Merits Hearing or explain these inconsistencies. Second, several of [redacted] allegations are demonstrably false. For example, [redacted] alleged that [redacted] It is undisputed, however, that Al Rabiah is “not a pilot, nor ha[s][he] ever trained as a pilot [and][has] never taught in a flight school,” Ex. 175 ¶ 3 (3/17/09 Decl. of Al Rabiah), and the Government has never alleged that Al Rabiah trained the 9-11 hijackers, [redacted] also alleged that [redacted] Ex. 146 at 2 [redacted] As described above, it is undisputed that Al Rabiah’s oldest son would have been 11 years old at the time and the Government has never alleged that Al Rabiah’s son accompanied him to Afghanistan. Ex. 175 ¶ 2 (3/17/09 Decl. of Al Rabiah). Third, there are multiple exhibits in the record demonstrating [redacted] unreliability as a witness. For example, in a [redacted] interrogation, [redacted] Ex. 146 at 2 [redacted] Al Rabiah’s counsel at the Merits Hearing demonstrated that [redacted] misidentified all [redacted] individuals about whom he provided information. 8/31 /09 Merits Hrg. Tr. at 39 (explaining that [redacted] provided the wrong nation of origin for all [redacted] individuals he identified [redacted]). As another example, [redacted] was asked during an [redacted] interrogation [redacted] Ex. 158 at 2 [redacted] and even when [redacted] He first stated that [redacted] and even when [redacted] Id. Yet, in a subsequent interrogation, [redacted] stated that [redacted] and he then provided additional information about [redacted] activities. Ex. 163 at 2 [redacted] The court also notes that as of, [redacted] Ex. 163 at 2 [redacted] and that he explained to interrogators that [redacted] Id. These facts raise, at a minimum, a serious question about [redacted] mental capacity to accurately make allegations against Al Rabiah, but the Government did not address them at the Merits Hearing. Based on the inconsistencies and impossibilities associated with [redacted] allegations — which the Government did not attempt to defend at the Merits Hearing— and [redacted] demonstrable lack of reliability as a witness, the Court finds no basis to credit his allegation about Al Rabiah in Bosnia. Given the foregoing, the Government would have had to provide the Court with, at a minimum, evidence establishing [redacted] basis of knowledge for this allegation or present credible corroborating evidence, which it has not done. Accordingly, [redacted] allegation shall not be considered probative of whether Al Rabiah’s detention is lawful. iii. [redacted] The third detainee who made allegations against Al Rabiah is [redacted] alleged that [redacted] Ex. 151 at 1 [redacted] Several months later, however, [redacted] explained that [redacted] was not Al Rabiah, [redacted] Ex. 152 at 1 [redacted] Accordingly, [redacted] allegations shall not be considered probative of whether Al Rabiah’s detention is lawful. iv. [redacted] The final detainee who provided an allegation against Al Rabiah is [redacted] Unlike the other detainees, it is undisputed that Al Rabiah had contact with [redacted] while he was in Afghanistan. Nevertheless, the Court finds that [redacted] allegation against Al Rabiah is unreliable and not credible. As described above, Al Rabiah was unable to exit Afghanistan and attempted to travel across the country to exit through the Pakistani border toward Peshawar. Ultimately, Al Rabiah attempted to reach Peshawar through the Tora Bora mountains, but was unable to do so given his health conditions and various ailments. According to Al Rabiah’s declaration, “Al Quwari assisted [him] in getting down from the Tora Bora mountains,” Ex. 175 ¶ 32 (3/17/09 Decl. of Al Rabiah), prior to getting detained with Al Quwari outside of Jalalabad, [redacted] provided a similar explanation during one of his interrogations when he stated that [redacted] Ex. 95 at 2 [redacted] [redacted] made one allegation against Al Rabiah during a [redacted] Interrogation, when he stated that [redacted] Ex. 95 at 2 [redacted] The Court does not credit this allegation for two reasons. First, the allegation is not that [redacted] saw Al Rabiah with a weapon, but rather, that Al Rabiah [redacted] suggesting that [redacted] was speculating or repeating hearsay and was not reporting information that he saw firsthand. The interrogation report provides no identification of the person who would have provided this information to [redacted] such that the Court could evaluate the person’s reliability. Second, and equally problematic, is that [redacted] made this allegation while he was undergoing a cell relocation program at Guantanamo called the “frequent flier program,” which prevented a detainee such [redacted] as from resting due to frequent cell movements. Ex. 147 at 1 [redacted] According to a report published by the Senate Armed Services Committee concerning the treatment of detainees in United States custody, sleep deprivation was not a technique that was authorized by the Army Field Manual. Ex. 191 at 132 (11/20/08 Senate Armed Services Committee Report). Although sleep deprivation became authorized at Guantanamo by the Secretary of Defense on April 16, 2003, the guidance issued by the Commander of USSOUTHCOM on June 2, 2003, prohibited the use of sleep deprivation for more than “four days in succession.” Ex. 189 at 10 (4/1/05 Army Regulation 15-6 Final Report). According to the evidence in the record, [redacted] was subject to the frequent flier program between [redacted] allegation against Al Rabiah was made after one week of sleep deprivation in this program, and he did not repeat this allegation either before or after the program. Under such circumstances, the Court cannot credit [redacted] uncorroborated and unreliable allegation against Al Rabiah, and the Court shall not consider it probative of whether Al Rabiah’s detention is lawful. For the reasons described above, the Court finds that none of the alleged eyewitnesses have provided credible allegations against Al Rabiah. Although the Government withdrew most of its reliance on these witnesses for purposes of the Merits Hearing, it is very significant that Al Rabiah’s interrogators apparently believed these allegations at the time they were made, and therefore sought to have Al Rabiah confess to them. As the evidence in the record reflects, Al Rabiah subsequently confided in interrogators [redacted] that he was being pressured to falsely confess to the allegations discussed above. Nevertheless, Al Rabiah’s interrogators ultimately extracted confessions from him, but they never believed his confessions based on the comments they included in their interrogation reports. These are the confessions that the Government now asks the Court to accept as evidence in this case, and that the Court shall now discuss in the section that follows. 2. Al Rabiah’s Confessions The Government rests its case on Al Rabiah’s confessions made after Al Rabiah’s interrogators [redacted] on [redacted] Ex. 29 at 1 [redacted] To understand why the Court does not view these confessions as credible or reliable, the Court shall describe Al Rabiah’s interrogations and his corresponding statements in three phases: (1) from [redacted] through [redacted] during which there were no allegations directed toward Al Rabiah and Al Rabiah provided no confessions; (2) from [redacted] until [redacted] during which [redacted] and [redacted] made their now-discredited allegations and Al Rabiah was told of the allegations against him, but Al Rabiah nevertheless made no confessions; and (3) from [redacted]) until the present, during which Al Rabiah confessed to the now-discredited allegations against him, as well as to other “evidence” that interrogators told him they possessed when, in fact, such evidence did not exist. i. [redacted] until [redacted] Al Rabiah arrived at Guantanamo Bay in [redacted] 8/28/09 Merits Hrg. Tr. at 36. From that date until [redacted] there is no evidence in the record that anyone directed any allegations toward Al Rabiah nor any indication that interrogators believed Al Rabiah had engaged in any conduct that made him lawfully detain-able. To the contrary, the evidence in the record during this period consists mainly of an assessment made by an intelligence analyst that Al Rabiah should not have been detained. [redacted] Id. This is the only analyst-level evaluation of Al Rabiah in the record of which the Court is aware. Although the Government sought to downplay the importance of this assessment at the Merits Hearing by arguing that it represented the opinion of only one analyst, 8/27/09 Merits Hrg. Tr. at 106, according to the Government’s own evidence, “[intelligence analysts undergo rigorous tradecraft training [and] use various methods and employ specific analytical tools to assist them in sorting and organizing [ ] various pieces of information.” Ex. 1 at 7-8 (9/19/08 Decl. of [redacted] Analysts are also “trained to recognize and mitigate biases, not only in the information presented to them, but their own cognitive biases as well.” Id. at 8. The Government offers no reason why, given the significant training and substantial abilities of its intelligence analysts, the Court should discount the conclusions of the intelligence analyst who reviewed the-circumstances of Al Rabiah’s detention. Accordingly, the Court finds that the opinion of this intelligence analyst is relevant and it shall be considered probative of whether Al Rabiah’s detention is lawful, ii. [redacted] through [redacted] The circumstances of Al Rabiah’s detention changed in [redacted] after [redacted] made his first allegation against Al Rabiah, [redacted] Ex. 23 [redacted]; Ex. 24 [redacted] A new lead interrogator was assigned to Al Rabiah on [redacted] named [redacted] whose express objective was to [redacted] Ex. 25 at 1 [redacted] For approximately the next [redacted] despite repeated interrogations by [redacted] and other interrogators, Al Rabiah denied [redacted] See, e.g., Ex. 27 at 3 [redacted] Ex. 11 at 1-3 (5/6/03 Interrogation of Al Rabiah) (expressing frustration to FBI agents that he was repeatedly asked, among other questions, whether he had ever seen Usama bin Laden, and remarking that his answer was “no” and would continue to remain “no”). At one point, Al Rabiah [redacted] Ex. 137 at 3 [redacted] After approximately [redacted] interrogations, Al Rabiah’s interrogators switched to a new three-pronged approach. First, Al Rabiah was introduced to a second set of interrogators who [redacted]. Ex. 137 at 1 [redacted] These interrogators explained to Al Rabiah that [redacted] Id. at 2. They also told Al Rabiah that [redacted] Id. Second, [redacted] and Al Rabiah’s [redacted] They told Al Rabiah that [redacted] Ex. 138 at 1-3 Id. The third aspect of this approach was that the interrogators explained to Al Rabiah [redacted] Ex. 137 at 2 [redacted] Id. This new approach did not result in any confessions. Al Rabiah repeatedly denied the allegations against him and [redacted] Ex. 138 at 3 [redacted] On [redacted] after Al Rabiah’s [redacted] interrogation at Guantanamo, and after again denying the allegations against him, the [redacted] Ex. 139 at 1 [redacted] (explaining that Al Rabiah was [redacted] Id. at 3. Although it is unclear what this [redacted] entailed, Al Rabiah met with the [redacted] Ex. 140 at 1 [redacted] He further explained that [redacted] Id. In response, [redacted] Id. at 2. Al Rabiah responded that he was grateful to [redacted] for trying to help him, but [redacted] Id. at 2. Following this exchange, [redacted] Id. at 3. Apparently following this recommendation, [redacted] began using more aggressive interrogation tactics, including [redacted] and [redacted]. As defined in the Army Field Manual, Ex. 101 (9/28/92 FM 34-52), the [redacted] is designed to exploit [redacted].. [redacted] Id. at 3-15-3-16. The [redacted] is used [redacted] id. at 3-16, specifically by [redacted] id. 3-17. Although allowed by the Army Field Manual, the report issued by the Senate Armed Services Committee explains that the [redacted] did not become authorized by the Secretary of Defense for use at Guantanamo until April 16, 2003. Ex. 191 at 132 (11/20/08 Senate Report). Once it became authorized, it could not be used on a detainee until “the SOUTHCOM Commander ma[de] a determination of ‘military necessity’ and notified] the Secretary in advance” of its use. Id. In this case, the Government was unable to produce any evidence that [redacted] obtained authorization to use the [redacted] technique with Al Rabiah despite requests by the Court at the Merits Hearing for such evidence. During [redacted] initial interrogation applying these new techniques, he informed Al Rabiah [redacted] Ex. 141 at 3 [redacted] Interrogators elevated Al Rabiah’s [redacted] (which is not explained in greater detail) and told him that they [redacted] Id. They then told Al Rabiah that [redacted] Id. at 3-4. [redacted] Id. at 3. The following day marked a turning point in Al Rabiah’s interrogations. Ex. 29 [redacted] After using a [redacted] (with no further details) featuring [redacted] and [redacted] for approximately [redacted] Id. at 1. [redacted] Id. at 2. [redacted] Id. at 1. From that point forward, Al Rabiah confessed to the allegations that interrogators described to him. iii. [redacted] the present Al Rabiah’s confessions all follow the same pattern: Interrogators first explain to Al Rabiah the “evidence” they have in their possession (and that, at the time, they likely believed to be true). Al Rabiah then requests time to pray (or to think more about the evidence) before making a “full” confession. Finally, after a period of time, Al Rabiah provides a full confession to the evidence through elaborate and incredible explanations that the interrogators themselves do not believe. This pattern began with his confession that he met with Usama bin Laden, continued with his confession that he undertook a leadership role in Tora Bora, and repeated itself multiple other times with respect to “evidence” that the Government has not even attempted to rely on as reliable or credible. The Court shall describe these confessions in turn. During the [redacted] interrogation where Al Rabiah [redacted] he admitted Ex. 29 at 1, 3 [redacted] Id. at 2-3. [redacted] Id. at 3. The result was the following confession, [redacted] [redacted] Ex. 29 at 3. [redacted] Id. at 4. On [redacted] Al Rabiah’s interrogations resumed, and Al Rabiah made a full confession that is entirely different than his initial confession. Ex. 31 at 1-9 [redacted] Most significantly, he confessed to [redacted] Id. at 3-4. [redacted] Id. at 6. According to Al Rabiah, [redacted] Id. at 7. [redacted] Id. at 8. [redacted] Id. [redacted] Id. [redacted] Ex. 44 at 4 [redacted] Notably, Al Rabiah’s full confession did not incorporate a description concerning a suitcase full of money that he allegedly gave Bin Laden. There is no evidence in the record that Al Rabiah’s interrogators informed Al Rabiah about this allegation until [redacted] approximately [redacted] after this full confession. Ex. 143 at 3 [redacted] At that point, interrogators “confronted” Al Rabiah with [redacted] Id. Al Rabiah did not know what to admit: [redacted] Ex. 143 at 3 [redacted]). [redacted] Ex. 150 at 1 [redacted]. Significantly, Al Rabiah’s interrogators began to question the truthfulness of his confessions almost immediately. On [redacted], Al Rabiah’s interrogators noted that, even though [redacted] Ex. 142 at 1, 5 [redacted]). Less than [redacted] later, interrogators noted that the story Al Rabiah provided to them had [redacted] Ex. 145 at 3 ([redacted]). Nevertheless, having obtained Al Rabiah’s confession about bin Laden, his interrogators turned their attention to the allegations originating from [redacted] and [redacted] concerning Tora Bora. Ex. 32 at 1-6 [redacted], [redacted] interrogators began “grilling” A1 Rabiah concerning [redacted] Id. at 5. A1 Rabiah initially denied [redacted] Id. Based on the information in this interrogation report, it is unclear whether A1 Rabiah’s denial of [redacted] In any event, interrogators told A1 Rabiah that [redacted] Id. Similar to A1 Rabiah’s confession concerning bin Laden, A1 Rabiah [redacted] Id. [redacted] Id. [redacted] Id. The interrogators agreed to end their interrogation after A1 Rabiah’s brief confession. Id. at 6. [redacted], A1 Rabiah was interrogated [redacted] during which he made a full confession regarding his activities at Tora Bora. Ex. 142 [redacted]). According to A1 Rabiah’s confession, [redacted] Id. at 3. [redacted] Id. [redacted] Id. [redacted] Id. [redacted] Id. He also [redacted] Id. Interrogators pressed for additional details concerning Tora Bora [redacted] Ex. 143 at 3 [redacted]). In this confession, A1 Rabiah [redacted]: [redacted] Id. at 3. At this point, A1 Rabiah’s interrogators became increasingly convinced that his confessions [redacted]. They concluded in one interrogation report [redacted] Ex. 34 at 1-6 [redacted]). The interrogators observed that [redacted] Id. One week later, A1 Rabiah’s interrogator concluded that A1 Rabiah [redacted] Ex. 37 at 3 [redacted]). After several additional interrogation sessions, A1 Rabiah’s interrogators concluded simply [redacted] Ex. 38 at 3 [redacted]). Incredibly, these are the confessions that the Government has asked the Court to accept as truthful in this case. The Court briefly describes two other confessions made by A1 Rabiah (even though the Government does not even attempt to rely on them as credible and reliable) because they follow the same pattern reflected in A1 Rabiah’s confessions described above. First, during a [redacted] interrogation where interrogators [redacted] and told him [redacted] Ex. 145 at 3 [redacted]) ([redacted]. A1 Rabiah [redacted] and [redacted], he provided interrogators with a full confession [redacted] Ex. 34 at 3-4 [redacted] In their interrogation report, interrogators noted that A1 Rabiah’s story was [redacted] Id. at 6 [redacted] Another example of this confession pattern occurred on [redacted] when interrogators questioned A1 Rabiah about [redacted] Ex. 38 at 2 [redacted]. Initially, A1 Rabiah denied [redacted] Id. [redacted], however, Al Rabiah not only confessed [redacted] Ex. 39 at 2 ([redacted]). The Government has not even attempted to explain how someone with no known connections to al Wafa and who had never even been to Afghanistan longer than a few weeks could ascend to such an honored position, and no credible explanation is contained in the record. In anticipation of his Merits Hearing in this case, Al Rabiah submitted two declarations explaining why he provided the confessions described above. He explains that, several months after arriving at Guantanamo, he was told by an interrogator that he had to confess to something or that he would not be sent back to Kuwait: a senior [redacted] interrogator came to me and said: ‘There is nothing against you. But there is no innocent person here. So, you should confess to something so you can be charged and sentenced and serve your sentence and then go back to your family and country, because you will not leave this place innocent. Ex. 176 ¶ 15 (3/17/09 Decl. of Al Rabiah). After his interrogators were changed (presumably referring to [redacted]), Al Rabiah explains that his confessions arose out of “scenarios offered ... by [his] interrogators ... which [he] believed to be the story they wanted [him] to tell and which [he] felt pressured to adopt.” Ex. 175 ¶ 13 (3/17/09 Deck of Al Rabiah). According to Al Rabiah, his interrogators told him these admissions were a way for the United States to “save face” and would allow him to be sent back to Kuwait: my interrogators told me they knew I had met with Usama bin Laden, that other detainees had said I met with Usama bin Laden, that there was nothing wrong with simply meeting Usama bin Laden, and that I should admit meeting with him so I could be sent home ... In about August 2004, shortly before my CSRT hearing [an administrative review of Al Rabiah’s detention], my interrogators told me the CSRT was just a show that would allow the United States to ‘save face.’ My interrogators told me no one leaves Guantanamo innocent, and told me I would be sent home to Kuwait if I ‘admitted’ some of the false things I had said in my interrogations. The interrogators also told me that I would never go home if I denied these things, because the United States government would never admit I had been wrongly held. Id. ¶¶ 13-14. Al Rabiah also explains that he made his confessions to reduce the abuse meted out by his interrogators “to obtain confessions that suited what [they] thought they knew or what they wanted [him] to say.” Ex. 176 ¶ 17. He maintained his confessions over time because “the interrogators would continue to abuse me anytime I attempted to repudiate any of these false allegations.” Ex. 175 ¶ 13. There is substantial evidence in the record supporting Al Rabiah’s claims. The record is replete with examples of Al Rabiah’s interrogators emphasizing a stark dichotomy — if he confessed to the allegations against him, his case would be turned back over to [redacted] so that he could return to Kuwait; if he did not confess, he would not return to Kuwait, and his life would become increasingly miserable. His interrogation on [redacted] is a representative example of what his interrogators told him: [redacted] Ex. 144 at 3 [redacted]). Similarly, during a [redacted] interrogation, Al Rabiah [redacted] Ex. 142 1-4 [redacted]). His interrogators told him that [redacted] Id. at 4. Interrogators decided to increase his [redacted] after this confession but wrote that, if he refused to admit to his activities in Tora Bora again, [redacted] Id. The record also supports A1 Rabiah’s claims that he was punished for recanting, [redacted] Ex. 149 at 2 [redacted]), [redacted] Id. [redacted] Id. at 2. The record contains evidence that A1 Rabiah’s interrogators became increasingly frustrated because his confessions contained numerous inconsistencies or implausibilities. As a result, A1 Rabiah’s interrogators began using abusive techniques that violated the Army Field Manual and the 1949 Geneva Convention Relative to the Treatment of Prisoners of War. The first of these techniques included threats of rendition to places where A1 Rabiah would either be tortured and/or would never be found. Ex. 101 at 1-8 (34-52 Army Field Manual) (prohibiting “[threatening or implying physical or mental torture to the subject” and “[threatening or implying that other rights guaranteed by the [the Geneva Conventions] will not be provided unless cooperation is forthcoming”). The first threat reflected in the record occurred on [redacted] when A1 Rabiah’s interrogators told him that, [redacted] [redacted] Ex. 149 at 2 [redacted]). On [redacted] his interrogators amplified this threat: [redacted] Ex. 71 at 2 [redacted]). His interrogators reinforced this threat on [redacted] by explaining that he would [redacted] Ex. 72 at 2 [redacted]). On [redacted], interrogators again threatened A1 Rabiah [redacted]: [redacted] Ex. 73 at 2 [redacted]). These threats were also reinforced by placing A1 Rabiah into the frequent flier program, an interrogation “technique” that, as already noted, violated the Army Field Manual and the 1949 Geneva Convention Relative to the Treatment of Prisoners of War. Ex. 101 at 1-8 (34-52 Army Field Manual) (prohibiting “abnormal sleep deprivation”); Ex. 191 at 132 (Senate Armed Services Report) (explaining that “sleep adjustment” is not an authorized technique “listed in the Army Field Manual”). Based on the documents submitted into the record, A1 Rabiah was moved between cells [redacted] Ex. 119, Ex. A (8/19/09 Decl. of [redacted] While on this program, A1 Rabiah’s interrogators continued to threaten him [redacted]: [redacted] Ex. 74 at 2 [redacted]). As explained in the Army Field Manual, these “prohibited techniques [are] not necessary to gain the cooperation of interrogation sources.” Ex. 101 at 1-8 (FM 34-52 Army Field Mauaul). In fact, the use of these methods is likely to “yield[ ] unreliable results, may damage subsequent collection efforts, and can induce the source to say what he thinks the interrogator wants to hear.” Id. (empha