Source: AP, 19/01/2011
WASHINGTON — The U.S. Supreme Court has refused to take a new case involving a Guantanamo Bay detainee who was ordered released by a federal judge before an appeals court said he could continue to be held.
The court turned down an appeal Tuesday from Mohammed al-Adahi, a Yemeni who has spent more than eight years in the jail of the U.S. naval base in Cuba.
In 2009, U.S. District Judge Gladys Kessler said there was not "reliable evidence" to justify al-Adahi's continued detention, despite his family ties to Osama bin Laden, his admission that he met with the terrorist mastermind in the weeks before the Sept. 11 attacks against the United States and his attendance at an al-Qaida training camp.
Last year, the federal appeals court in Washington voted 3-0 to reverse Kessler's decision, saying she displayed insufficient skepticism about al-Adahi.
The appeals court opinion was written by Judge A. Raymond Randolph, whose decisions against the detainees have fared poorly at the court.
The justices have overruled him three times and sided with detainees who were seeking access to U.S. courts to argue that they should not be detained.
Randolph has been openly critical of the high court rulings, even delivering a lecture on the topic in October to the conservative Heritage Foundation.
His talk argued that the court's decision in 2008 that extended some constitutional protections to the detainees created a "legal mess" that the justices were leaving for other judges to clean up.
In the 3-0 decision, the appeals court said there is ample evidence that Mohammed al-Adahi was more likely than not part of al-Qaida.
The appeals court said the judge in the U.S. District Court case displayed little skepticism about Al-Adahi, despite his having met twice with bin Laden and having attended al-Qaida's Al Farouq training camp, where many of the Sept. 11 terrorists trained.
"One of the oddest things about this case is that despite an extensive record and numerous factual disputes," the judge "never made any findings about whether Al-Adahi was generally a credible witness," wrote Randolph, an appointee of former President George H.W. Bush.
Randolph said that "put bluntly, the instructions to detainees are to make up a story and lie."
The other appeals judges on the case were Brett Kavanaugh, an appointee of former President George W. Bush; and Karen LeCraft Henderson, an appointee of Bush's father.
Kessler had ruled that al-Adahi was to be released after seven years at the U.S. detention facility in Cuba.
In his appeals court opinion, Randolph said the district court wrongly required each piece of the government's evidence "to bear weight without regard to all or indeed any other evidence in the case." Randolph called the judge's approach "a fundamental mistake that infected the court's entire analysis."
Pakistani authorities captured Al-Adahi in 2001. In 2004 at Guantanamo Bay, a Combatant Status Review Tribunal determined that the evidence showed he was part of al-Qaida.
A Yemeni man's family ties to bin Laden and admission that he met with the terrorist mastermind in the weeks before the Sept. 11 attacks are not enough to continue holding him at Guantanamo Bay, a judge wrote in an order released Friday.
Al-Adahi testified that in July 2001 he took his sister to Afghanistan for a celebration of her arranged marriage to a man the United States alleges was a bin Laden bodyguard. The wedding was at bin Laden's house, and al-Adahi said he was introduced to bin Laden there for the first time and then met briefly with him again a few days later. He said bin Laden summoned him and for about five to 10 minutes asked about the religious community in Yemen.
Justice Department attorneys argued the associations demonstrate that al-Adahi was an al-Qaida insider whose brother-in-law was facilitating his rise up the ranks of the terror organization. After the wedding, al-Adahi allegedly spent the night at an al-Qaida guest house and trained at the Al Farouq terrorist camp for seven to 10 days before he was ordered to leave for disobeying orders.
"This training represents the strongest basis that the government has for detaining al-Adahi," Kessler wrote. She said al-Adahi's "brief attendance at Al Farouq and eventual expulsion simply do not bring him within the ambit of the executive's power to detain."
Al-Adahi's testimony in the case was made via videoconference from Guantanamo Bay. Kessler had ordered that an unclassified version of the video be released, but Justice Department attorneys revealed a month later that no recording was made because of oversight and miscommunication. A lightly edited transcript was released.
Government lawyers apologized to al-Adahi and the court. But al-Adahi's attorneys have asked for sanctions, including his release, because of the violation of the court order. Kessler wrote in a footnote to her order that she's still considering the request for sanctions but did not otherwise mention the videotape in her reasons for ordering his release.
Al-Adahi is one of scores of Guantanamo detainees suing in U.S. District Court in Washington for their release. Judges there so far have ordered the release of at least 29 detainees, although many still remain at the prison since no country will agree to take them.
The judges have denied requests for release by at least six others — most recently another Yemeni named Adham Mohammed Al Awad who the United States argued became an al-Qaida fighter in the weeks after the Sept. 11 attacks.
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