Last week, U.S. District Judge Henry H. Kennedy, Jr. released a forceful 36-page opinion in the case of a Guantanamo detainee that would ordinarily be shocking. Sadly, such opinions are now so common that, except for one reporter and a few particularly alert bloggers, hardly anyone noticed.
In his opinion, issued in May but publicly released just last Thursday, the Judge found that a young man from Yemen, seized at the age of 17, has been imprisoned in the United States detention center in Cuba for the past eight years without cause. Although five different times since his arrest officials reviewing his case said Odaini should be released, Obama administration lawyers argued against his petition for habeas corpus, insisting that because the Yemeni student had spent one night at the guest house of a fellow student's family, and because he had a medical visa rather than a student visa (he said his father had gotten him a medical visa because it was cheaper), the U.S. government can lawfully continue to imprison him.
If that sounds bizarre, it's not, really. That's because the Obama administration interprets the Authorization for the Use of Military Force, or AUMF, passed by Congress in 2001, as providing the U.S. government the authority to detain indefinitely anyone, anywhere in the world who it suspects is affiliated with the Taliban, al Qaeda or associated forces. And if its position in the case of Mohamed Hassan Odaini is any guide, then it interprets that right very very broadly.
Odaini is one of many young men seized in the weeks and months after September 11, 2001 during raids on guesthouses in Pakistan. He has consistently claimed that he was a student at Salafia University who was invited for dinner at a fellow student's home and spent the night there. But that home was also a guest house, and some al Qaeda fighters stayed there. Although none ever named Odaini as being connected to their cause, the United States insisted it can infer based on his overnight stay that Odaini was an al Qaeda fighter.
The other men seized in the raid corroborated Odaini's story that he was a student with no ties to al Qaeda or terrorism. As Judge Kennedy notes in his opinion, U.S. government interrogators and officials, too, quickly came to believe Odaini's consistent claim. Indeed, five different times, government interrogators or task forces independently determined that Odaini should be released. Each time, that recommendation was ignored.
Then in January, President Obama suspended the transfer of any detainees to Yemen, Odaini's home country, after the attempted Christmas day bombing by a Yemeni national. At that point Odaini's lawyer, who had until then assumed his client would be released, as recommended, resumed his petition for habeas corpus to the federal court.
In ruling on that petition, Judge Kennedy said that the evidence presented to the court "overwhelmingly supports Odaini's contention that he is unlawfully detained." Reviewing the evidence in painstaking detail, including Odaini's and other detainees' statements, plus summaries of interrogation and intelligence reports produced by the government, the judge himself seems shocked that the government would be arguing the lawfulness of Odaini's detention based on the paucity of proof.
The government repeatedly "distort[s] the evidence," writes Judge Kennedy, concluding that the only way to believe the government's position is "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."
The judge concludes:
Respondents have kept a young man from Yemen in detention in Cuba from age eighteen to age twenty-six. They have prevented him from seeing his family and denied him the opportunity to complete his studies and embark on a career. The evidence before the Court shows that holding Odaini in custody at such great cost to him has done nothing to make the United States more secure. There is no evidence that Odaini has any connection to al Qaeda. Consequently, his detention is not authorized by the AUMF [Authorization of the Use of Military Force]. The Court therefore emphatically concludes that Odaini's motion must be granted.
In concluding that Odaini's detention "has done nothing to make the United States more secure," Judge Kennedy may as well have been talking not only about this one case, but about the much broader problems caused by the government's interpretation of the AUMF and international law. After all, indefinite detention at Guantanamo Bay and Bagram, the continued authorization of abusive interrogation techniques under Appendix M of the Army Field Manual, the prosecution of a handful of terror suspects by military commission, and the controversial drone attacks or "targeted killings" outside declared zones of conflict have all served to foment anger at the United States and been used to justify insurgent attacks. Meanwhile, none of those policies have been shown to have made the United States any more secure.
The administration appears not to be learning from past mistakes, however. Just as it refused to concede the case of Mohamed Odaini, it's insisting that it maintains the authority to continue to detain indefinitely without trial some 48 more Guantanamo detainees who it has said cannot be tried yet are too dangerous too release - based on evidence that it acknowledges would not hold up in court.
Even more troubling is the administration's continued detention of some 800 prisoners at the Bagram air base in Afghanistan, since the courts have ruled that those prisoners are not even entitled to habeas corpus review, as Odaini finally obtained here - eight years after his capture.
Last week, 15 former federal court judges urged Congress not to write a new detention law to authorize indefinite detention of suspected terrorists, because independent federal judges are best equipped to decide who's detainable under the law.
The case of Mohamed Odaini is yet another reason to listen to them.
Update: I was thrilled to see this editorial in the Washington Post this morning pointing out that Odaini's case puts the lie to the still widely-held assumption that Guantanamo remains populated with "the worst of the worst" and urging Odaini's repatriation. Unfortunately, as the Post notes, the Obama administration's ban on transferring any Gitmo detainees to Yemen means Odaini is likely to stay stuck in prison even longer, despite Judge Kennedy's scathing criticism and determination that his detention is unlawful.
How will Donald Trump’s first 100 days impact YOU? Subscribe, choose the community that you most identify with or want to learn more about and we’ll send you the news that matters most once a week throughout Trump’s first 100 days in office. Learn more