Friday, June 11, 2010

Court Orders Yemeni Released from Guantanamo

The Federal District Court for the District of Columbia this week released Judge Kennedy's May 26 opinion granting Guantanamo detainee and Yemeni citizen Mohamed Mohamed Hassan Odaini's habeas corpus petition.  Odaini has been detained at Guantanamo Bay since June 2002, when he was 18 years old.  He was seized along with 15 others in a Pakistani police raid of the Issa House, a guesthouse believed to be connected to Abu Zubaydah.  Odaini, a student at Salafia University in Faisalabad at the time, visited the house at the invitation of another student, stayed for dinner, and decided to stay the night.  Pakistani police raided the house that night, detained Odaini, and transferred him to U.S. custody.

Judge Kennedy's opinion details just how Odaini was recommended or cleared for release at least three times since 2002, but never released, and then how he got caught in President Obama's 2010 ban against transferring detainees to Yemen.

What the opinion doesn't tell us is this: Why did the Obama administration pursue this case so vigorously this spring, rearguing official conclusions that the government lacked a reason to detain Odaini and adding an argument that Odaini must be lying about his association with al Qaeda?  The government didn't have to present these spurious substantive arguments on Odaini's habeas petition.  Instead it could have either repatriated him to Yemen, or argued that such a repatriation would violate foreign policy and national security interests and that it must hold him until it can find another home for him.  The foot-dragging recalls the government's treatment of the Uighurs.

Judge Kennedy's opinion details the repeated recommendations for release, starting with a determination that Odaini was not affiliated with al Qaeda soon after his arrival at Guantanamo.  That's when an interrogator's report stated that Odaini "appeared to be telling the truth," recommended Odaini "to be utilized to identify individuals at [Issa House], and "[p]ending [redacted], [Odaini] should be considered for repatriation."

Then in 2004 the Department of Defense Criminal Investigation Task Force wrote that "[t]here is no information that indicates [Odaini] has clear ties to mid or high level Taliban or that he is a member of Al Qaeda" and "in the absence of further information" recommended "release . . . under a conditional release agreement."

Also in 2004 the Department of Defense Joint Task Force Guantanamo concluded that "[t]here is no information to confirm Taliban or Al Qaeda on his part" and that Odaini "may be transferred to another country or released."

In February 2007 a Staff Judge Advocate for the Department of Defense, Office for the Administrative Review for the Detention of Enemy Combatants, wrote an e-mail to Odaini's attorney stating that "[t]hrough either the Administrative Review Board (ARB) process or the process DOD had in place prior to ARBs, your client has been approved to leave Guantanamo, subject to the process for making appropriate diplomatic arrangements for his departure.

And in June 2009 a government attorney sent an e-mail to Odaini's attorney indicating that "[a]s a result of [the Guantanamo Review Task Force review of Odaini's case], [Odaini] has been approved for transfer from Guantanamo Bay."

In response to this last e-mail, the court stayed the case, Odaini stayed at Guantanamo, and in January 2010 President Obama barred the transfer of any detainee to Yemen.

Despite Odaini's repeated clearances for release, the government continued to press a very weak substantive case against him.  Judge Kennedy's ruling shows just how weak.  He wrote in his ruling that the evidence "overwhelmingly supports Odaini's contention that he is unlawfully detained," and that the government went so far as to "distort the evidence" to paint Odaini as unreliable and as covering up his connections to al Qaeda.

SDS

http://lawprofessors.typepad.com/conlaw/2010/06/court-orders-yemeni-released-from-guantanamo.html

Executive Authority, Recent Cases, Separation of Powers, War Powers | Permalink

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