Al Qaeda fighter properly detained at Gitmo, court finds

The DC Circuit Court recently affirmed a district court’s decision to deny Guantanamo detainee Yasein Khasem Mohammad Esmail’s petition for a writ of habeas corpus.

The circuit court found that Esmail, who left his native Yemen for Afghanistan in 1999, “admits to having received weapons training at al Farouq,” a notorious al Qaeda training camp, “for at least one month.” Esmail had claimed that he didn’t know the camp was run by al Qaeda until after he trained there, but the courts found this excuse to be “incredible.”

Esmail also “admits to having studied at the al Qaeda affiliated Institute for Islamic/Arabic Studies.” Other Guantanamo detainees have described the institute’s ties to al Qaeda during interrogations, and the courts have relied upon their descriptions during multiple habeas proceedings. [See LWJ report, Judge finds Gitmo detainee was no ‘Gucci jihadist’.]

One detainee, Hamud Dakhil al Jadani (ISN #230), explained that the “Islamic Institute was financed directly by Osama bin Laden.” Al Jadani explained further that the “mission of the Institute was to issue religious fatwa[s], teach the Koran and the Hadith, and to indoctrinate the young students about going to paradise if they give their lives for the Muslim cause.” Another Guantanamo detainee, Ahmed Abdel Aziz (ISN #757), explained that the Institute was run by Abu Hafs al Mauritania, “the Sharia group committee leader of Al Qaeda.”

Esmail offered an elaborate tale to explain how he was detained in late 2001. He denied that he fought at Tora Bora, claiming that he was in Kandahar when the Sept. 11 attacks happened and simply wanted to return to Yemen. According to his own account, Esmail did not “retrace the route he had taken from Yemen to Afghanistan in 1999,” but instead “headed north to Kabul, where he claims he planned to meet and marry a Pakistani friend’s sister.”

Esmail said that he was then kidnapped “from the street” in Kabul and “taken to Tora Bora, where his kidnappers picked up two other men.” Then, the supposed kidnappers “took the three of them to Jalalabad and sold them into Afghan custody.”

The courts did not find Esmail’s kidnapping tale even remotely plausible, with the district court finding it was “not logical.” The courts noted that Esmail conceded the two men he was captured with had both “participated in the fighting” and one of them “had been injured.”

The more logical explanation is that Esmail himself had fought at Tora Bora before the Northern Alliance took him into custody. Following on earlier rulings by the circuit court, the panel of judges surmised that Esmail’s transparently phony cover story was evidence of his guilt.

Esmail’s lawyers argued that the district court had erred in relying upon Esmail’s admissions to interrogators in Afghanistan and Guantanamo because they were involuntary and uncorroborated. But the circuit court ruled that the “record contains sufficient facts–affected neither by the alleged coercion nor by the lack of corroboration–to support the district court’s conclusion that Esmail was ‘part of’ al Qaeda at the time of his capture.” As with other habeas cases, then, the courts weighed only part of the evidence against Esmail, finding that it was enough to justify his continued detention and additional evidence was unnecessary.

Declassified memos produced at Guantanamo outline some of the other evidence and allegations amassed by US military officials.

An Aug. 14, 2007 memo notes that Esmail told interrogators “he met an individual at a mosque who supported al Qaeda and the jihad against America.” After speaking with this recruiter, Esmail “decided to go to Afghanistan to train and to go fight in Chechnya.” In Kabul, Kandahar and Jalalabad, Esmail stayed in jihadist guesthouses. According to one of the government’s sources, the guesthouse in Kabul “was one of Osama bin Laden’s private safe houses.”

Esmail also admitted that he saw bin Laden on three occasions, one time at each of the three guesthouses he stayed in. On the final occasion, Esmail said he saw bin Laden before leaving for Tora Bora.

Esmail allegedly received extensive training on mines, and was also an accomplished fighter on the front lines. One source identified Esmail as “the Emir of the Bagram front in July 2001 and as being proficient with mines.” Another identified Esmail “as having fought with the Taliban on the front lines in Bagram.” Esmail also admitted at one point that he “knew two senior al Qaeda members and openly affiliated himself with al Qaeda.”

Captured documents linked Esmail to al Qaeda as well. One report, written by a “Battlefront Supervisor,” stated that Esmail “has put [forth] great effort at the frontline.” And Esmail’s name was included on “a list of captured Mujahedin found on a computer hard drive connected with a senior al Qaeda operative.”

In the end, the court was faced with two possibilities. Either Esmail was not a “part of” al Qaeda or associated forces and yet trained at al Farouq, studied at an al Qaeda institute known for training martyrs, and made his way to Tora Bora at the same time that al Qaeda and Taliban forces battled the American-led coalition there in late 2001. Or, Esmail did all of these things because he had in fact become “part of” America’s terrorist enemies.

Only one of these two options is logical. And so the DC Circuit Court concluded that Esmail’s detention was justified.

Thomas Joscelyn is a Senior Fellow at the Foundation for Defense of Democracies and the Senior Editor for FDD's Long War Journal.

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