Federal Judiciary

Al Odah loses challenge, after five years

By Akin Gump Supreme Court Practice Group

More than five years after the Supreme Court ruled that a Kuwaiti national, Fawzi Khalid Abdullah Fahad Al Odah, had a right to challenge his detention at Guantanamo Bay, a federal judge has decided that challenge, upholding Al Odah’s captivity.  Al Odah’s challenge was the second oldest of the Guantanamo cases in U.S. District Court, but went to the Supreme Court in 2003 as part of the first test of presidential detention power.  (Al Odah’s case was a companion to Rasul v. Bush, the first-filed  Guantanamo case; the two cases were decided together on June 28, 2004.)

After several rounds of legal maneuvering and efforts by Congress since then to stop such challenges, and 14 months after the Supreme Court put such challenges on a constitutional footing, a federal judge on Aug. 24 decided Al Odah’s case in a brief, unexplained order.  On Monday, the District judge, Colleen Kollar-Kotelly. released a partly redacted opinion explaining her ruling. It can be downloaded here.

In deciding the case, the judge borrowed from other District judges a definition of presidential detention power that is less expansive than those proposed by both the Obama Administration and, before it, the Bush Administration.  Still, she concluded that the government had met that standard after finding that Al Odah had gone to Afghanistan and engaged there in a series of actions that, together, showed he “became part of Taliban and al Qaeda forces.”

The key inquiry, Kollar-Kotelly said, in “whether an individual has become part of one or more” of the Taliban, al Qaeda or “associated forces” is “whether the individual functions or participates within or under the command structure of the organization — ie., whether he received and executes orders or directions.”

The evidence, including Al Odah’s admissions, the judge found, was sufficient to put Al Odah in that category.  She noted that he was at a Taliban camp when the terrorist attacks on the U.S. occurred on Sept. 11, 2001, and chose not to leave Afghanistan after those attacks, because he wanted to stay and wanted to avoid detection. “Al Odah had numerous opportunities to travel to the border of Pakistan and surrender prior to arming himself and traveling through the field of battle” in the Tora Bora mountains, she added.  His travels in Afghanistan after 9/11, Kollar-Kotelly said, matched the movements of Taliban and al Qaeda fighters at the time.

“Based on all the evidence in the record,” she wrote, “the Court concludes that the only reasonable inference is that Al Odah made a conscious decisions to become a part of the Taliban’s forces, and not that he became innocently ensnared in fighting after unsuccessfully attempting to leave the country….He moved ever closer to the fighting and repeatedly accepted directions from those affiliated with the Taliban.”

She ruled in favor of his continued detention even while refusing – as other judges have — to give the government’s “hearsay” evidence a presumption that it was accurate and authentic.  She nevertheless found, after weighing that evidence, that  much of it was reliable enough, along with other evidence, including statements of other detainees and similar patterns of Taliban activity as well as Al Odah’s own statements,  to justify his captivity.

Full post as published by SCOTUSBLOG on September 01, 2009 (boomark / email).