[Ppnews] Judge rules 1 Night at Guest House Not Grounds for Indefinite Guantanamo Detention

[Political Prisoner News]

<http://emptywheel.firedoglake.com/2010/06/11/judge-one-night-at-same-guest-house-as-abu-zubaydah-not-grounds-for-indefinite-detention/>Judge: 
One Night at a Zubaydah-Related Guest House Not 
Grounds for Indefinite Detention

By: 
<http://emptywheel.firedoglake.com/author/emptywheel/>emptywheel 
Friday June 11, 2010 6:24 am
http://emptywheel.firedoglake.com/2010/06/11/judge-one-night-at-same-guest-house-as-abu-zubaydah-not-grounds-for-indefinite-detention/

As McClatchy 
<http://www.mcclatchydc.com/2010/06/10/95693/federal-judge-calls-guantanamo.html>reported 
yesterday, Judge Henry Kennedy granted a the 
habeas petition of a Yemeni man, Mohamed Hassan 
Odaini, several weeks ago. That brings the total 
number of men held at Gitmo who have won habeas petitions to 36.

Kennedy’s 
<http://static1.firedoglake.com/28/files/2010/06/100526-Odaini.pdf>ruling 
reveals not just his exasperation with the 
government’s arguments, but also the absurd 
lengths to which the government is going to try 
to keep some of these men at Gitmo. While much of 
the ruling remains classified, the government is 
effectively trying to argue that Odaini must 
remain at Gitmo because he spent one night at a 
guest house with alleged ties to Abu Zubaydah 
(that night happened to be the night the US 
raided the house and captured its inhabitants), 
and that one night is all the proof they need to 
argue that the of evidence showing he’s just a 
student must be a cover story to hide an affiliation with al Qaeda.

As Kennedy lays out in detail, 12 other Gitmo 
detainees discussed the safe house in ways that 
were consistent with Odaini’s own story, and 
eight of them specifically identified him as a 
student who had been at the house for just a day 
or so before the raid. At least six 
times–starting back in 2002–different people 
associated with his detention declared him to be 
appropriate for release. That includes a June 
2009 notice from the Gitmo Task Force that he 
could be transferred (which is not necessarily 
release, mind you). Yet between a stay and the 
moratorium on the release of Yemeni detainees put 
in place after the Christmas bombing attempt, Odaini remains in custody.

But, the government still argues that Odaini’s 
detention is legal–based partly on the fact that 
he was at that guest house when they raided it.

Pursuant to an order the Court issued in advance 
of the merits hearing in this case, the parties 
identified the issues in dispute and structured 
their presentations to address each issue in turn 
during the hearing. Accordingly, respondents 
first argued that Odaini’s stay in Issa House 
supports the conclusion that he is lawfully 
detained and second that his version of events is 
so implausible as to further support denial of 
the writ of habeas corpus. Both arguments fail.

Respondents insist that Odaini’ s presence at 
lssa House demonstrates that he is part of the Al 
Qaeda-affiliated network of a man named Abu 
Zubaydah. They vehemently argue that the fact 
that the occupants of Issa House allowed Odaini 
to come inside demonstrates that he was, like them, part of this network.

Much of the discussion surrounding the 
government’s argument is redacted. But it’s clear 
that at least part of it–apparently, the 
government’s theory of guest houses–is based on 
dubious expertise. Following one passage that is redacted, Kennedy wrote,

Based on this statement, respondents argue that 
the Court should find that Odaini is part of Al 
Qaeda and therefore lawfully detained. The Court 
will not do so. It is standard practice to tell 
jurors evaluating expert testimony that if”they 
[find] that the opinion is not based on 
sufficient education or experience, 
 the reasons 
supporting the opinion are not sound, or 
 the 
opinion is outweighed by other evidence, [they 
may] completely or partially disregard the opinion.”

Which raises the question of whether the 
redactions serve to hide classified 
information–or the government’s own dubious 
claims about the culture of guest houses (one of 
the few other unredacted passages in this section 
refute the claims made in the redacted section 
about the security of guest houses).

The government also appears to have projected 
interrogators’ own questions onto detainees as 
knowledge. This passage, for example, seems to be 
a response to government claims that Odaini must 
have known Abu Zubaydah because along the course 
of his interrogation he came to recognize a photo 
and the name of Abu Zubaydah because he had been 
shown it so frequently by previous interrogators.

Odaini also denied ever having seen Abu Zubaydah. 
JE 7 at 1 (“(Odaini] was shown a photograph of 
Abu Zubaida. [Odaini] advised that he recognized 
the photograph because previous Interviewers 
showed it to him. [Odaini] stated that he heard 
of the name Abu Zubaida from previous American Interviewers.”).

Ultimately, Kennedy argues that the presence of 
potentially bad people at the safe house does not 
mean that Odaini himself is bad.

Kennedy then goes onto refute the government’s 
arguments that some minor inconsistencies in 
Odaini’s story (such as that his father got him a 
cheaper medical visa to Pakistan rather than a 
student visa) means he must be lying to cover up 
the fact that he’s an al Qaeda sympathizer. One 
way Kennedy does so is to point out that the 
government, which seized on a very small 
inconsistency in what one of eight safe house 
inhabitants said about Odaini, yet–as Kennedy 
notes–can’t even keep their own records accurately.

The Court notes here for the purpose of 
emphasizing that the documents that serve as 
evidence in this case contain errors, whether of 
translation or reporting, that two of the 
interrogation reports in the record indicates 
that Odaini was born in April rather than September.

But what really appears to piss off Kennedy is 
the government’s insistence that any 
inconsistency is proof that Odaini is telling a 
cover story to hide an affiliation with al 
Qaeda–in spite of the fact that they have zero 
evidence that he has ties to al Qaeda.

Respondents argue that this visa and Odaini’s 
statements about it demonstrate that he is a 
liar. It is only possible-and barely possible-to 
reach this conclusion if one begins with the view 
that Odaini is a part of Al Qaeda and searches 
for a way to believe that allegation regardless 
of its inconsistency with an objective view of 
the evidence. Odaini has said repeatedly that his 
father arranged for his passport and visa, so 
anything questionable about those documents 
cannot be imputed to Odaini, who was a 
seventeen-year-old high school student at the time they were obtained.

Kennedy finally has to remind the government that 
the absence of evidence about al Qaeda does not 
constitute evidence of a cover-up to hide an al Qaeda affiliation.

Respondents also argue that Odaini’s assertion 
that he was a student is a cover story the 
occupants of lssa House had agreed to use. Only 
by refusing to deviate from a predetermined 
conclusion could this explanation ofconsistent 
statements from so many men over so many years 
seem at all reasonable. This theory ignores the 
fact that several occupants of the house did not 
claim to be students but nevertheless said that 
Odaini was a student. See 1£ 18 at2;JE 53at3; JE 
46 at 9, 15. Furthermore, to find that Odaini’s 
version of events is a cover story in the 
complete absence of information suggesting that 
he was anything other than a student would render 
meaningless the principle of law that places the 
burden of proof on respondents rather than Odaini.

Remember how we got into the Iraq War based on 
false claims that Iraq must have WMD because 
every explanation they offered (such as that the 
mobile trailers were used for helium balloons and 
that the aluminum tubes were used for rockets) 
must be a cover story? The government is still 
making the same crappy argument about cover stories.

Update: Andy Worthington corrected me on one 
really crucial point in this post: Odaini wasn’t 
at the guest house with Abu Zubaydah; he was just 
at a guest house the government claims was 
associated with Abu Zubaydah! Here’s 
<http://www.andyworthington.co.uk/2010/06/02/why-is-a-yemeni-student-in-guantanamo-cleared-on-three-occasions-still-imprisoned/>Andy’s 
post for more details. I’ve updated this post accordingly.




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