Judge: One Night at a Zubaydah-Related Guest House Not Grounds for Indefinite Detention

As McClatchy reported yesterday, Judge Henry Kennedy granted a the habeas petition of a Yemeni man, Mohamed Hassan Odaini, several weeks ago. That brings the total number of men held at Gitmo who have won habeas petitions to 36.

Kennedy’s ruling reveals not just his exasperation with the government’s arguments, but also the absurd lengths to which the government is going to try to keep some of these men at Gitmo. While much of the ruling remains classified, the government is effectively trying to argue that Odaini must remain at Gitmo because he spent one night at a guest house with alleged ties to Abu Zubaydah (that night happened to be the night the US raided the house and captured its inhabitants), and that one night is all the proof they need to argue that the of evidence showing he’s just a student must be a cover story to hide an affiliation with al Qaeda.

As Kennedy lays out in detail, 12 other Gitmo detainees discussed the safe house in ways that were consistent with Odaini’s own story, and eight of them specifically identified him as a student who had been at the house for just a day or so before the raid. At least six times–starting back in 2002–different people associated with his detention declared him to be appropriate for release. That includes a June 2009 notice from the Gitmo Task Force that he could be transferred (which is not necessarily release, mind you). Yet between a stay and the moratorium on the release of Yemeni detainees put in place after the Christmas bombing attempt, Odaini remains in custody.

But, the government still argues that Odaini’s detention is legal–based partly on the fact that he was at that guest house when they raided it.

Pursuant to an order the Court issued in advance of the merits hearing in this case, the parties identified the issues in dispute and structured their presentations to address each issue in turn during the hearing. Accordingly, respondents first argued that Odaini’s stay in Issa House supports the conclusion that he is lawfully detained and second that his version of events is so implausible as to further support denial of the writ of habeas corpus. Both arguments fail.

Respondents insist that Odaini’ s presence at lssa House demonstrates that he is part of the Al Qaeda-affiliated network of a man named Abu Zubaydah. They vehemently argue that the fact that the occupants of Issa House allowed Odaini to come inside demonstrates that he was, like them, part of this network.

Much of the discussion surrounding the government’s argument is redacted. But it’s clear that at least part of it–apparently, the government’s theory of guest houses–is based on dubious expertise. Following one passage that is redacted, Kennedy wrote,

Based on this statement, respondents argue that the Court should find that Odaini is part of Al Qaeda and therefore lawfully detained. The Court will not do so. It is standard practice to tell jurors evaluating expert testimony that if”they [find] that the opinion is not based on sufficient education or experience, … the reasons supporting the opinion are not sound, or … the opinion is outweighed by other evidence, [they may] completely or partially disregard the opinion.”

Which raises the question of whether the redactions serve to hide classified information–or the government’s own dubious claims about the culture of guest houses (one of the few other unredacted passages in this section refute the claims made in the redacted section about the security of guest houses).

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