Even in cases the U.S. wins, Guantanamo evidence is suspect
By Carol Rosenberg | Miami Herald | December 16, 2009
A federal judge ruled Wednesday that the United States is unlawfully imprisoning at Guantanamo a Yemeni once accused of training at an al Qaeda camp, just days after a different U.S. judge upheld the detention of another Guantanamo detainee who trained at the same camp.
But even in that order, the judge found the U.S. evidence was the result of coercion and abuse and should not be used “in any fashion, in any court.” The judge ruled that while the detention may have been legal, the government’s own records “do not give any evidence for his continued detention.”
Judge Ricardo Urbina’s ruling on Wednesday, still sealed at the U.S. District Court in Washington D.C., brought the so-called habeas corpus scorecard to 32 losses and nine victories for the Pentagon in its defense against challenges from detainees at Guantanamo Bay, Cuba.
Because the order was sealed, lawyers declined to explain Urbina’s order to free Saeed Hatim, 33, who had been held at Guantanamo since June 2002.
“We are reviewing the decision and considering options,” said Justice Department spokesman Dean Boyd.
Long-time Guantanamo defense attorney David Remes, who argued for release in August based on the Pentagon record, and called no witnesses, said the ruling “once more demonstrates the thinness of the government’s evidence against these men.”
Of the Guantanamo detainees, Remes said, “That’s why they’ve won four out of five cases that have been decided so far.”
Defense Department documents alleged that Hatim left his native Yemen before the Sept. 11, 2001, attacks, was inspired to join Muslims waging a jihad in Chechnya and trained at the al Farouq paramilitary camp in Afghanistan.
The ruling followed by two days Judge Thomas F. Hogan’s finding that another Yemeni, Musa’ab al Madhwani, 29, was lawfully detained as “part of a member of al Qaeda or related terrorist groups.”
Hogan ruled in favor of the Pentagon, but sounded reluctant to do so. He said Madhwani was no longer a threat to the United States and that some of the evidence against him came from triple hearsay and coerced confessions.
He said the government built its case on documents it discovered only at the last minute.
“As the law’s written I have no choice” but to uphold Madhwani’s continued detention, Hogan said. But Hogan quickly pointed out that that doesn’t mean he thinks Madhwani should continue to be detained. In fact, he said, the government’s records “do not give any basis for his continued detention.”
“I see nothing in the record that the petitioner poses any greater threat than the dozens of detainees . . . who have been transferred or cleared for transfer. In fact, his record is a lot less threatening,” he said in a ruling from the bench, according to a transcript of the hearing.
Hogan said he heard four days of testimony this fall, including Madhwani himself, who testified by a closed-circuit television feed in a closed-door hearing.
The judge admitted 260 exhibits to the record to conclude that the captive traveled to train and have “some association to alleged al Qaeda operatives.”
He called Madhwani a young, under-educated religiously vulnerable “hapless individual” but said the grounds for continued detention amount to this: “[He] voluntarily trained with al Qaeda for 25 days, and then traveled, associated and lived with members of al Qaeda for an entire year.”
Hogan also recited, for the record, what has become a familiar narrative of physical and mental abuse, solitary confinement and sensory deprivation in U.S. detention, notably at the Dark Prison in Afghanistan, adding that Justice Department attorneys did not refute the claims.
Madhwani was captured Sept. 11, 2002 in Pakistan, the judge said, noting his interrogations in Pakistan and Afghanistan “were coerced and should not be admitted — in any fashion in any court.”
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