Judge rules Kuwaiti at Guantánamo was foot soldier

 

crosenberg@MiamiHerald.com

A federal judge has upheld the military detention of a Kuwaiti man whose lawyers were among the earliest and most persistent challengers of President George W. Bush's right to lock him up as an enemy combatant at Guantánamo Bay, Cuba.

Fawzi al Odah, 32, was captured in the U.S. invasion of Afghanistan in December 2001 and has been held lawfully since, U.S. District Judge Colleen Kollar-Kotelly wrote in a partially censored ruling, which was released late Monday.

Her Aug. 24 decision raised to seven the number of Guantánamo detentions upheld by federal judges hearing habeas corpus petitions, compared to the 29 men at Guantánamo whom judges have ordered freed.

About 200 more cases are working their way through the federal court in Washington, D.C., even as President Barack Obama has ordered the prison camps emptied by early next year.

``Al Odah unquestionably had choices,'' the judge wrote in the 32-page decision, in which she concluded the Kuwaiti college graduate decided to leave his home before the Sept. 11, 2001, terrorist attacks, train in Afghanistan and align with fighters resisting the American invasion.

She declared his claim that he was fleeing the invasion ``not credible'' because he left Kandahar for Tora Bora, a route that meant ``a difficult climb into and then through bitterly cold mountains where al Qaeda and Taliban fighters were making their stand against coalition forces.''

In contrast, she said, ``the shortest and simplest route from Jalalabad to Pakistan was through the famed Kyber Pass, 45 miles from Jalalabad.''

Al Odah is among four Kuwaitis still held at the remote prison camps in Cuba and was the first name on a habeas corpus unlawful detention petition filed at the federal court soon after they arrived there in 2002.

At the time, and throughout its tenure, the Bush White House argued that no civilian judge could review the president's authority to hold war prisoners at Guantánamo. The U.S. Supreme Court overturned that power in June 2008, and judges at the U.S. District Court are now engaged in a case-by-case review.

Kollar-Kotelly had earlier ordered the release of another Kuwaiti, Khalid Mutairi, finding the government had not met its burden to prove that the Kuwaiti trained with al Qaeda. The Obama administration has not yet released him.

Kollar-Kotelly is reviewing the other two Kuwaiti cases as well.

The plight of the Kuwaitis in Cuba has won great sympathy in their homeland, where al Odah's English-speaking father has campaigned for their release. He has consistently argued that his son and the others were Muslim relief workers caught up in the wrong place at the wrong time.

``The court finds that this record supports a reasonable inference that Al Odah may have also been traveling to Afghanistan to engage in jihad, and not to teach the poor and needy for two weeks,'' she wrote.

The government portrayed al Odah as a typical al Qaeda foot soldier in Afghanistan during the American invasion, meant to topple the Taliban and hunt down Osama bin Laden in reprisal for the 9/11 attacks.

Justice Department lawyers argued that the Kuwaiti had received a day's weapons training at al Qaeda's al Farouq training camp, rather than the full three-week course, and was evacuated with other fighters toward the Tora Bora Mountains.

To bolster its case, the government gave the judge government accounts of the interrogations of two other men captured as foreign fighters in Afghanistan:

One, so-called American Taliban John Walker Lindh, is serving a 20-year sentence in federal prisons. The other, Australian David Hicks, spent six years at Guantánamo before pleading guilty to supporting terror at the Guantánamo war court in exchange for return to his homeland.

Hicks, a Christian-born convert to radical Islam, was set free in late 2007.

Read more In the Courts stories from the Miami Herald

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