August 31, 2009
Judge Rules Al Odah Detainable
Judge Kollar-Kotelly (D.D.C.) ruled last week that the government met its burden of proving that Fawzi Khalid Abdullah Fahad Al Odah is lawfully detained under the standard proffered by the Obama administration as modifiedby the D.C. District. The court just released Judge Kollar-Kotelly's unclassified memorandum opinion today.
The case is perhaps most notable as the oldest of the pending Guantanamo habeas cases. Al Odah filed his habeas petition on May 1, 2002, over six years before the Supreme Court ruled in Boumediene v. Bush that the privilege of habeas extended to detainees at Guantanamo Bay.
Consistent with the plurality's ruling in Hamdi v. Rumsfeld, Judge Kollar-Kotelly granted the parties' motion to rely on hearsay evidence, but denied the government's motion "to have its evidence admitted with a presumption of accuracy and authenticity." And consistent with Judge Bates's ruling earlier this year, she partially adopted the government's definition of its detention authority, ruling out that portion of its proffered definition that would have allowed it to detain individuals who only "substantially supported" enemy forces or have "directly supported hostilities" in aid of enemy forces.
From the Conclusion:
Upon consideration of the entire record, the Government has submitted evidence showing that some individuals traveled to Afghanistan using the same route as Al Odah and that they were traveling to Al Farouq; that AK-47 training was an early part of the Al Farouq training program; that Al Farouq was evacuated shortly after September 11, 2001, when trainees were sent north toward Kabul, Jalalabad, or the Tora Bora mountains; and that the individual who transported Al Odah from the Afghnistan-Pakistan border to a camp outside of Kandahar was likely a trainer at Al Farouq. Through Al Odah's admissions, the Government has also submitted evidence that Al Odah was brought to a camp outside of Kandahar (where Al Farouq was located) on or around September 10, 2001; that he received on day of training on an AK-47; that he was shortly thereafter evacuated and directed to travel north to Logar (a province just south of Kabul); and that he eventually traveled to Jalabad and the Tora Bora mountains. In contrast, Al Odah has identified evidence in the record suggesting that the description Al Odah provided to an interrogator of the camp that he visited did not match the physical description of Al Farouq. After weighing all of the evidence in the record, the Court finds that the camp to which Al Odah was transported by [redacted] was more likely than not Al Farouq. When this evidence is considered in the context of Al Odah's travel north at the direction of [redacted], and Al Odah's subsequent activities described above, the Court finds that it is more likely than not that Al Odah became part of the forces of the Taliban and al Qaeda.
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