Three weeks ago, I wrote a bitter commentary about the repeated failures of the U.S. government to release an innocent Yemeni prisoner in Guantánamo — a student, Mohammed Hassan Odaini, now aged 26, but just 18 when he was seized — even though he was cleared for release by a military review board under President Bush in 2006, and, to the best of my knowledge, had also been cleared for release last year by President Obama’s Guantánamo Review Task Force.
I wrote my bitter commentary just after Odaini was cleared for release for a third time, by a District Court judge who granted his habeas corpus petition, and I railed against the callous indifference of the president, who appeared content to let an innocent man rot in Guantánamo, having capitulated to pressure from critics in Congress and the media, when, in January, he announced a moratorium on all further releases of Yemeni prisoners for an unspecified amount of time.
The moratorium, illogically, was put in place because a Nigerian man, Umar Farouk Abdulmutallab, who had failed to set off a bomb in his underwear on a flight to the United States on Christmas Day, had reportedly been recruited in Yemen. No one — least of all the President — cared that this act of political expediency appeared to justify the kind of paranoia that thereby insinuated that all Yemenis were terrorists. Similarly, no one cared that a Saudi, released from Guantánamo, who had allegedly played a part in Abdulmutallab’s recruitment, had been released by President Bush, despite the advice of the intelligence services, just as no one cared that innocent men held for eight years had no connection with a recently established al-Qaeda offshoot in their homeland, and that it was ludicrous and unjust to attempt to insist that no Yemenis should be freed from Guantánamo — even one cleared on three occasions, like Mohammed Hassan Odaini — in case they might ever do something bad in the future.
The mainstream media generally pays far too little attention to the District Court’s rulings on the Guantánamo prisoners’ habeas corpus petitions, even though they have led to 36 victories for the prisoners, out of 50 cases to date, and even though, as I explained in a recent article, they represent “the single most important collection of documents analyzing the failures of the Bush administration’s “war on terror” detention policies — and Obama’s refusal, or inability to thoroughly repudiate them.”
Judge Kennedy thoroughly demolishes the government’s case
Despite this general lack of interest, the judge’s ruling in Odaini’s case was so clear that more media outlets than usual paid attention. In a 36-page unclassified opinion (PDF), made public on June 10, Judge Henry H. Kennedy Jr. dismissed the government’s pitiful allegations against Odaini, noting that “From the first time he was interrogated in American captivity to the declaration he created for use in this litigation, Odaini has told the same story” — that his father “wanted [him] to pursue religious studies in Pakistan after his graduation from high school in 2001” at the age of 17, that he provided him “with a passport, a visa for travel to Pakistan, a plane ticket to Lahore, Pakistan via Karachi, Pakistan and money to take with him on his journey,” and that Odaini enrolled in Salafia University in Faisalabad in November 2001.
Odaini has also maintained throughout his detention that he was seized in a house raid on March 28, 2002, after visiting a guesthouse (the Issa guesthouse) occupied by a number of his fellow students, where he had dinner, and “after spending the evening talking to other Yemeni Salafia University students who lived there about religion as well as ‘their past and where they lived in Yemen,’ he decided to spend the night.”
To confirm that Odaini was a student seized by mistake, Judge Kennedy drew not only on his own account, but also on the accounts of a number of the 15 other men seized with him, who, as the Washington Post explained last week, “independently and consistently identified Mr. Odaini as a student who came to the house for that one night.”
In addition, Judge Kennedy also drew on what he described as “several indications in the record that respondents themselves [i.e. the government] have repeatedly concluded that Odaini is not part of al-Qaeda.” Although it was known that Odaini “was told shortly after being taken into custody … that he would be released within two weeks,” it was not until Judge Kennedy’s unclassified opinion was made public that it was revealed that Odaini had also been told “upon arrival at Guantánamo Bay that he would be released within two weeks,” or that another recommendation for his release had been made in 2004.
With access to the government’s own documents, Judge Kennedy was able to demonstrate that:
In June 2002, just after Odaini’s arrival at Guantánamo Bay, based on the assessment that Odaini “appeared to be telling the truth,” an interrogator’s report indicated: “Recommend [Odaini] be utilized to identify individuals at house in Faisalabad [redacted]. Pending [redacted], [Odaini] should be considered for repatriation.”
No indication has ever been provided of how long anyone thought it appropriate to hold an innocent man to exploit him for any information he might be able to provide about his fellow prisoners (or, indeed, why anyone should regard such activities as legitimate), but two years later this exploitation had apparently been concluded. As Judge Kennedy noted:
In April 2004, nearly two years after Odaini’s arrival at Guantánamo Bay, an employee of the Criminal Investigative Task Force (“CITF”) of the Department of Defense reviewed five interrogations of Odaini and wrote that “[t]here is no information that indicates [he] has clear ties to mid or high level Taliban or that he is a member of al-Qaeda.”… The employee reported that “CITF believes that further investigation is unlikely to produce new information relevant to his case” and, “in the absence of further information,” he “recommend[ed] the release of [Odaini] under a conditional release agreement.”
Following this report, a memorandum issued by the Joint Task Force Guantánamo in June 2004 “summarize[d] information collected about Odaini, [and] indicate[d] that ‘[t]here is no information to confirm Taliban or al-Qaeda ties on his part,’ and conclude[d] that Odaini ‘may be transferred to another country or released.”
For some reason, Judge Kennedy was not informed (as one of Odaini’s lawyers explained in 2007), that he “was first recommended for release in June 2005, although his transfer was not approved by a military review board until the spring of 2006,” and that “On June 26, 2006, Gordon England, the deputy secretary of defense, signed off on his transfer.” However, he did discover that, in February 2007, “a Staff Judge Advocate for the Department of Defense, Office for the Administrative Review for the Detention of Enemy Combatants, sent an email to Odaini’s counsel,” which declared that he had “been approved to leave Guantánamo, subject to the process for making appropriate diplomatic arrangements for his departure.”
Judge Kennedy also confirmed what I had previously been unable to ascertain with any certainty; namely, that, “In June 2009, an attorney representing respondents in this case sent an email to Odaini’s counsel indicating that “[t]he Guantánamo Review Task Force has completed its review of [Odaini’s] case” and “[a]s a result of that review, [Odaini] has been approved for transfer from Guantánamo Bay.”
He added that, “In November 2009, the Ambassador of the Republic of Yemen to the United States signed a declaration indicating that “[t]he government of Yemen is willing to accept” Odaini, as well as other Yemenis held at Guantánamo Bay, ”back to their home country of Yemen.” However, after six Yemenis were released in December (including two other men seized in the house with Odaini), the saga of the failed plane bomber overwhelmed all common sense and decency, and President Obama declared his moratorium on any further Yemeni releases on January 8.
Undeterred by any of this, Judge Kennedy concluded his ruling by stating, in very forceful terms:
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 [the Authorization of the Use of Military Force, passed by Congress the week after the 9/11 attacks, and used to justify the detentions at Guantánamo]. The Court therefore emphatically concludes that Odaini’s motion must be granted.
The Washington Post gets involved
Last Wednesday, picking up on the story, the Washington Post ran an editorial entitled, “Meet one Gitmo inmate who can’t be described as ‘the worst of the worst,’” which, helpfully, highlighted Odaini’s plight with reference to some of the “roughly 10 bills or amendments pending in Congress” with “some nexus” to Guantánamo, the “most extreme” of which “aim to ban transfer or release altogether.” The Post continued:
Most in the latter group are based on the premise that those still being held at Guantánamo are the “worst of the worst” — committed terrorists intent on doing damage to the United States and its interests. A recently declassified judicial opinion in the case of one of those detainees puts the lie to this assertion.
After pointing out that, despite being cleared for release by both the Bush and Obama administration, Odaini “inexplicably and inexcusably continued to languish behind bars,” the Post proceeded to note that, although the moratorium on transfers to Yemen “generally is sensible, given that the Yemeni government is probably incapable of keeping tabs on detainees who do pose a risk,” President Obama “should consider making an exception for Mr. Odaini, a young man from what is believed to be a good family and whose only crime was being in the wrong place at the wrong time. Alternatively, officials should do everything in their power to find a suitable third country. Whatever the approach, the administration must correct this injustice.”
This was a high-level condemnation, despite the unnecessary caveats about the security situation in Yemen, and it was followed, on Saturday, by an article in the Washington Post explaining that Odaini’s case had “become so pressing” that senior administration officials will discuss it this week. The official who spoke to the Post stressed that any decision “should not be viewed as a reflection of a broader policy for other Yemeni detainees,” and added, “What isn’t being considered is lifting, in a blanket fashion, the moratorium on detainee transfers to Yemen.”
However, this assertion was immediately undermined when the Post noted that the administration “may come under further pressure to quickly release Yemenis besides Odaini,” because “As many as 20 more Yemenis could be ordered released by the courts for lack of evidence to justify their continued detention,” according to a second official, who told the Post, “There is a group of Yemenis who are going to win their habeas cases. Some of them will not be as clear as this case, but some will be, and that poses a real dilemma.”
Noting that Odaini’s case “presents a particular challenge to the administration, and to those on Capitol Hill who are opposed to any transfers to Yemen,” the Post added that the second administration official had stated that, although the government has appealed successful habeas petitions in the cases of other Yemenis, it would be “unconscionable” to appeal Odaini’s case. “This is a bad case to argue,” the official stated. “There is nothing there. The bottom line is: We don’t have anything on this kid. The judge wants a progress report by June 25th. We have to be able to report something other than we are thinking about it.”
Outside of Capitol Hill, where political paralysis is so prevalent that senior administration officials — up to and including the president — have become incapable of standing up to unprincipled complaints by their opponents, Odaini’s case is such a clear example of injustice that any rational human being would advise the administration to send him home today. However, while it is reassuring that the administration official who spoke to the Post recognized this, it remains disturbing that, in the cases of other prisoners who have won their habeas petitions (including two other Yemenis, Mohammed al-Adahi and Saeed Hatim), that same official spoke approvingly of appeals lodged by the government, because they, in turn, reveal a general unwillingness to accept the court’s rulings which, at present, means that 12 of the 34 prisoners who have won their habeas petitions are still imprisoned.
Three reasons why Mohammed Hassan Odaini — and other Yemenis — should be released immediately
Whether the administration will act with some urgency to released Mohammed Hassan Odaini — and will, in addition, consider releasing other men who have won their habeas petitions, instead of automatically considering appeals against successful petitions — depends, ultimately, on whether President Obama can discover, or rediscover some necessary moral fiber, and some fighting spirit. I certainly hope that he can, not just because his reluctance to stand up to criticism regarding Guantánamo has done nothing but play into the hands of opponents who delight in deeply cynical fear-mongering, but also because a resolution to the Yemeni problem is urgently required for three reasons.
The first relates to the moratorium on releases to Yemen, introduced during an artificially created political crisis, which is now nearly six months old and shows no sign of being brought to an end, even though, when viewed objectively, the refusal to release 59 of the remaining 90 Yemenis (as recommended by the Task Force) is based on nothing more than blanket guilt by nationality.
The second, as hinted at in the Washington Post article, is that other Yemenis “are going to win their habeas cases.” Reading between the lines, some of the men referred to by the official who spoke to the Post are undoubtedly others seized in the house raid with Odaini. After all, four have already been released, and one of the four, Alla Ali Bin Ali Ahmed, won a resounding habeas victory last May. Moreover, of the eleven still held, another, Ravil Mingazov, recently won his habeas petition, and as the judge in Alla Ali Bin Ali Ahmed’s case explained over a year ago, “It is likely, based on evidence in the record, that at least a majority of the [redacted] guests were indeed students, living at a guest house that was located close to a university.”
In Odaini’s case, Judge Kennedy was slightly more cautious, noting that “there may have been Issa House residents whose activities before arriving at the house were questionable and perhaps render them detainable under the AUMF,” but “may” and “perhaps” are appropriate words to use, given that some of the other men seized were also obviously students — and, in some cases, were also told shortly after their capture that they would soon be freed.
The third reason, as should be obvious, is that holding Mohammed Hassan Odaini for one day longer is completely unjustifiable. As one of his lawyers, David Remes, explained to the Washington Post, “Why the government fights so tenaciously to keep men such as Mr. Odaini in prison unless and until the government sees fit to release them is the great mystery of this litigation, especially since President Obama took office. They seem unable to admit they’ve ever made a mistake.”
This is sadly true, and those primarily responsible for overseeing important decisions about Guantánamo and justice — President Obama and Attorney General Eric Holder — need to think long and hard about what they are doing, because the main questions that any opponent of arbitrary detention will be asking right now are: “Will you release Mohammed Hassan Odaini today?” and “Why did the Justice Department go to court to attempt to defend a patently innocent man’s detention in the first place?”