Difficulty in justifying detention
from SCOTUSblog by Lyle Denniston

A federal judge’s lengthy but heavily censored opinion released on Friday demonstrated anew the difficulty that the Pentagon and U.S. intelligence agencies are having in trying to justify in court the continued holding of some of the prisoners at Guantanamo Bay, Cuba. A prisoner with family links to terrorist leader Osama Bin Laden, with personal encounters with Bin Laden, with at least a brief round of training in an Al-Qaeda military camp, with close knowledge of some of bin Laden’s bodyguards, and with other alleged links to Al-Qaeda soldiers — all of that was not enough, singly or together, to justify the detention of a Yemeni national, Mohammed Al-Adahi, Senior U.S. District Judge Gladys Kessler ruled.

Last Monday, the judge released a one-page order finding his detention unlawful, and ordering the government to take steps to arrange for his release, and to report back on Sept. 18 on what had been done to bring about release. On Friday, after clearance by a court intelligence-reviewing officer, her 42-page, redacted opinion explaining that ruling was made public. It can be downloaded here.

The Al-Adahi case is both typical and somewhat novel. It is like many other cases in which the government is relying on intelligence reports based on what people said or said they observed, rather than on hard, physical facts, evidence that is sometimes second-hand statements of what others had said or claimed they saw, coincidences that seem to add up to a “mosaic” that suggested involvement with terrorist “jihad” or enemy soldiers, and information from other detainees, as well as interviews with the detainee himself.

The case is somewhat unusual because the evidence offered against Al-Adahi goes considerably beyond the detail that government intelligence has produced in other detainee cases. Judge Kessler, in fact, described the evidence assembled against Al-Adahi as appearing to be “sensational and compelling.” In the end, however, she found it did not add up to enough to meet the legal standard she adopted for U.S. military detention of terrorist suspects.

While her definition of who may be detained is not novel (she borrowed it from another District judge), it does demand more proof of terrorist links than the standard used by some of Kessler’s other colleagues. She requires proof, for example, that a detainee have been a part of a terrorist “organized armed forces,” not just an individual who may have provided some support for Al-Qaeda or other terrorist organizations. In that sense, the Pentagon’s burden of justifying detention is higher.

Between the lines of the Kessler opinion, it was clear that government officials believed they had a very strong case for keeping Al-Adahi imprisoned. While the kind of evidence was typical, the scope and detail of it, they clearly assumed, would be more convincing.

But that was not how this judge found it. The end result was that information that showed enough linkages to satisfy the standards for an intelligence report, or series of reports, was found to be wanting as legal evidence to support further detention.

Here is the way Judge Kessler summed up: “When all is said and done, this is the evidence we have in this case. Al-Adahi probably had several relatives who served as bodyguards for Usama Bin Laden and were deeply involved with and supportive of al-Qaida and its activities. One of those relatives became his brother-in-law by virtue of marriage to his sister,…Al-Adahi accompanied his sister to Afghanistan so that she could be with her husband….The wedding celebration was held in Bin Laden’s compound and many of his associates attended.

“At that celebration, [Al-Adahi] was introduced to Bin Laden, with whom he had a very brief conversation. Several days later, [he] had a five-to-ten-minute conversation with Bin Laden. Thereafter, [he] stayed at an al-Qaida guesthouse for one nhight and attended the Al Farouq [Al-Qaeda] training camp for seven to ten days. He was expelled from Al Farouq for failure to obey the rules. This training represents the strongest basis that the government has for detaining Al-Adahi.”

But, the judge said at that point, those assertions “simply do not bring him within the ambit of the Executive’s power to detain.”

She then went on: “After his expulsion [from Al Farouq], Al-Adahi returned to the home of his sister and brother-in-law for several weeks and then traveled to other places in Afghanistan because he had no other obligations. Like many thousands of people, he sought to flee Afghanistan when it was bombed shortly after September 11, 2001.”

On the other side of the case, Kessler concluded, “There is no reliable evidence in the record that [he] was a trainer at Al Farouq, that he ever fought for al-Qaida and/or the Taliban, or that he affirmatively provided any actual support to al-Qaida and/or the Taliban. There is no reliable evidence in the record that [he] was a member of al-Qaida and/or the Taliban.”

Thus, she concluded, “while it is tempting to be swayed” by Al-Adahi’s admitted meetings with Bin Laden and his link by marriage to Bin Laden bodyguards who were “enthusiastic followers of Bin Laden,” that evidence does not constitute actual, reliable evidence that would justify the Government’s detention of this man.”

Kessler ordered government officials to use diplomatic measures to find a way to release him to another country. She indicated, as other judges have, that she could not order his outright release, because the D.C. Circuit Court — in a ruling facing an early challenge in the Supreme Court (Kiyemba v. Obama)– has denied that authority to federal judges handling Guantanamo cases.