The DC Circuit Court overturned a District Court’s decision to grant Guantanamo detainee Uthman Abdul Rahim Mohammed Uthman’s petition for a writ of habeas corpus on Tuesday. In reversing the lower court’s ruling, a three-judge panel found that Uthman’s account of his trip from Yemen to Afghanistan “piles coincidence upon coincidence upon coincidence” and is ultimately unconvincing.
It “remains possible,” the judges found, “that Uthman was innocently going about his business and just happened to show up in a variety of extraordinary places — a kind of Forrest Gump in the war against al Qaeda.” But “the far more likely explanation is that he was part of al Qaeda.” Uthman’s “account at best strains credulity.”
The Circuit Court judges found that several facts, all of which were either “found by the District Court or are otherwise uncontested,” were incriminating.
The judges explain that Uthman’s trip began at the Furqan Institute, “a religious school in Yemen where al Qaeda had successfully recruited fighters.” Declassified documents produced at Guantanamo note that some of the terrorists involved in bombing the USS Cole attended Furqan.
Uthman then “traveled to Afghanistan along a route used by al Qaeda recruits” and later “lied to hide the fact that someone else paid for his travel to Afghanistan.” Uthman had good reasons to lie about the funding for his trip. The money, as well as the spiritual advice he received to join the jihad, came from the now-deceased Sheikh Muqbil al Wadi, a longtime al Qaeda recruiter in Yemen, who gave Uthman $1,000 for the trip.
After arriving in Afghanistan, Uthman “was seen at an al Qaeda guesthouse.”
He was then captured in December 2001 “in the vicinity of Tora Bora, an isolated, mountainous area where al Qaeda forces had gathered to fight the United States and its allies.”
Captured along with Uthman were two men who “were al Qaeda members and bodyguards for Osama bin Laden,” as well as a “Taliban fighter.” All three of these known jihadists “also attended the Furqan Institute.”
Finally, the court found that “Uthman’s explanation of why he went to Afghanistan and why he was traveling in a small group that included al Qaeda members and a Taliban fighter near Tora Bora during the battle there involves a host of unlikely coincidences.” In particular, Uthman claimed he went to Afghanistan to teach the Koran and yet “he does not remember the names of any of his students and cannot describe his school in Kabul.”
Whereas District Judge Henry H.Kennedy, Jr. did not find that this evidence justified Uthman’s detention, the DC Circuit Court did. A key difference between the two rulings is the use of the “command structure test,” which requires the government to show that a Guantanamo detainee received or executed orders from enemy forces.
That test has been shot down by the DC Circuit Court in previous rulings, but only after Judge Kennedy, Jr. ruled in Uthman’s favor. Dispensing with the test, the DC Circuit Court found that the evidence showed Uthman was more likely than not a part of al Qaeda — and not a Koran teacher who just happened to wander into al Qaeda’s company in late 2001.
Key allegations not pursued
In a footnote, the Circuit Court panel explains that the government also contends “Uthman attended an al Qaeda training camp, fought against the Northern Alliance, and himself became one of Osama bin Laden’s bodyguards.” While these allegations were made during the District Court proceeding, they were dropped during the government’s appeal.
District Judge Kennedy, Jr. dismissed these allegations, finding that they were sourced primarily to two detainees who were allegedly tortured. The two detainees in question are Abdu Ali al Hajj Sharqawi (ISN # 1457), aka “Riyadh the Facilitator” — a known, high-level al Qaeda operative who is detained at Guantanamo — and Sanad Yislam Ali Al Kazimi (ISN # 1453), who is also detained at Guantanamo.
Judge Kennedy, Jr. excluded Sharqawi’s incriminating descriptions of Uthman, finding that Sharqawi had been “tortured” during his detention in Jordan, at a CIA-run facility in Afghanistan, and at Bagram. The sole piece of evidence Judge Kennedy, Jr. relied upon in determining that Sharqawi had been tortured came from Sharqawi himself. Counsel for Uthman submitted a declaration written by Sharqawi’s attorney, who Sharqawi purportedly told about his time in Jordanian and US custody.
During the District Court hearings, the government countered by presenting as a witness the criminal investigator who had interviewed Sharqawi and al Kazimi at Bagram and Guantanamo. Kazimi had similarly identified Uthman as an al Qaeda operative and then, in a declaration filed by his attorney, claimed he was tortured.
The government argued, however, that the investigator, who worked for the Department of Defense’s Criminal Investigative Task Force (CITF), “did not mistreat” Sharqawi or Kazimi, or “observe any torture,” or even witness “any signs of abuse in the demeanor or physical state of either man.” Moreover, the investigator took Sharqawi’s and Kazimi’s testimony during “cordial,” non-coercive interview sessions.
Despite the prosecution’s arguments, however, Judge Kennedy, Jr. still excluded Sharqawi’s and Kazimi’s statements, reasoning that the government had failed to rebut the declarations made by the detainees’ lawyers. Judge Kennedy, Jr. ruled that the CITF investigator did not have knowledge of Sharqawi’s and Kazimi’s time in custody prior to arriving at Bagram and Guantanamo, and had only limited knowledge of their time in custody after being transferred to those facilities. Thus, Judge Kennedy, Jr. excluded Sharqawi’s and Kazimi’s statements because their lawyers’ declarations were supposedly unrebutted. Sharqawi’s and Kazimi’s friendly interrogations were considered “tainted” by their earlier alleged mistreatment.
The government decided not to pursue the matter further during appeal and so, while the government believes Uthman was a bodyguard for Osama bin Laden (just as two of the men he was captured with also were), that allegation and others were dropped.
The story of Sharqawi’s testimony took a surprising turn in February, however, when a District Judge in another habeas matter ruled that there was “no evidence that Sharqawi’s statements were the result of torture.” In that case, counsel for Mashour Abdullah Muqbel al Sabri sought to include Sharqawi’s statements — precisely the opposite of what Uthman’s counsel sought. Al Sabri’s lawyers thought that Sharqawi’s statements helped their case, and so they did not seek to exclude them as “tainted” evidence. [See LWJ report, Judge finds Gitmo detainee was no ‘Gucci jihadist’.]
The inconsistent handling of Sharqawi’s testimony highlights a fundamental problem in the habeas proceedings. Sources familiar with the government’s thinking in these proceedings tell The Long War Journal that prosecutors are often reluctant to delve into any topics involving the CIA’s formerly secret detention program. The Agency does not want its program dragged into court, where sensitive intelligence may be exposed, and regularly withholds information from the habeas proceedings. As a result, the government frequently does not fully rebut charges of “torture,” even in instances when prosecutors believe the allegations are completely false.
In Uthman’s case, there was enough evidence to justify his detention regardless of any torture allegations.
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