In two little noted decisions, the Obama administration has decided to go ahead with the Guantánamo prosecution of an Afghan detainee who allegedly hid mines in his homeland and late last year quietly sent home another captive who was once taken to the war court for allegedly spying on U.S. soldiers in Afghanistan.
On Dec. 20, U.S. troops released Mohammed Hashim among a dozen detainees let go from the U.S. Navy base in the last transfer of captives that sent six to Yemen, four to Afghanistan and two to Somaliland. Until his release, Hashim was charged with war crimes, first sworn out in 2008, that alleged he had carried out surveillance on U.S. forces in Afghanistan in the first year of the invasion, specifically at a Forward Operating Base called Gecko.
A Justice Department statement said in response to a Miami Herald inquiry that a U.S. task force unanimously agreed to let him go -- ``consistent with the national security interests of the United States'' -- as part of the ongoing churn of cases as the Obama administration reviews the detainee population at Guantánamo.
The December 2009 release, specifically of six long-held captives back to Yemen, has stirred controversy in U.S. domestic politics since a Nigerian man's Christmas Day attempt to blow up a Detroit-bound airliner -- allegedly with help from a Yemeni-based al Qaeda offshoot led by two freed Saudi Guantánamo detainees.
The Dec. 20 transfer, a major operation at the close of the year, reduced the prison camps census to 198 foreign men from 28 nations amid an Obama administration push to close the detention center.
Agencies that signed off on the release of all 12 detainees included representatives of the Office of the Director of National Intelligence and, the Departments of Defense, State, Justice and Homeland Security, the statement said.
``That review examined a number of factors, including potential threat, mitigation measures and the likelihood of success in habeas litigation,'' it added.
Hashim, born in Kandahar in 1976, was taken before a Marine Corps judge at Guantánamo's Camp Justice Nov. 20, 2008, two days after President Barack Obama's election in a little-noticed hearing attended by a lone reporter.
Pentagon documents alleged that the Afghan had boasted to military interrogators that he helped Osama bin Laden elude capture by the Americans in the 2001 U.S. invasion of his homeland. But he was instead charged with spying and providing material support for terror.
Once he was released, Pentagon prosecutors withdrew the charges, but issued no explanation.
In contrast, the Justice Department disclosed for the first time in a brief filed Wednesday at a federal appeals court that Attorney General Eric Holder had approved a military commissions prosecution in the case of an Afghan detainee named Obaidullah.
Obaidullah, born in Khost in 1980, has never gone before a war court. Military prosecutors first swore out charges against him in 2008, alleging he hid mines and other explosives in the Khost area of Afghanistan from October 2001 to July 2002. He also allegedly had a notebook with instructions on how to use them.
The Hashim case marked the first about-face in a military commissions prosecution that was not mandated by a federal judge.
``He was in good health. He was returned to Afghanistan in accordance with his wishes,'' said his civilian attorney Steven Kilpack, a federal public defender in Utah, who could not shed light on the decision to free him.
Last year, two separate judges ordered the Pentagon to free Fouad Rabia, a Kuwaiti, and Mohammed Jawad, an Afghan, after reviewing the military's evidence against the men through habeas corpus petitions at the U.S. District Court in Washington D.C., an authority granted to the courts by the U.S. Supreme Court.
In the case of Rabia, a Kuwait Airways engineer, Judge Colleen Kollar-Kotelly ordered him freed from eight years detention ``forthwith'' because American interrogators had wrung a false confession out of him years ago.
And in Jawad, Judge Ellen Segal Huvelle found that, since the evidence against him was the fruit of torture by Afghan interrogators in his homeland, the Defense Department should send him home to his mother. Jawad had been taken to Guantánamo as a teen.
Obaidullah's lawyers had sought to have his case reviewed by a federal court too. But Judge Richard Leon ruled that the Afghan was not entitled to a civilian review as long the military planned a prosecution.
Holder's decision to let the Pentagon prosecute him makes Obaidullah the seventh Guantánamo detainee in the queue for trial by a military commission system that Congress revamped at President Obama's request.
The other six are:
Alleged Bin Laden bodyguard Ibrahim al Qosi, a Sudanese man who has a show-case hearing scheduled for mid-February.
Canadian Omar Khadr, captured at age 15, on track for a summer trial on charges he threw a grenade that killed a U.S. soldier in Afghanistan in July 2002.
Saudi Arabian Ahmed Darbi, accused of plotting a never realized attack on a ship in the Strait of Hormuz.
Noor Mohammed of Sudan, accused of running an al Qaeda training camp.
Mohammed Kamin of Afghanistan, who had been accused of also spying on U.S. forces until the Pentagon prosecutor withdrew the charges, with plans to refile them.
Also, Holder approved the likely death penalty trial by military commission of former CIA captive Abd al Rahim al Nashiri, a Yemeni accused of plotting the October 2000 al Qaeda suicide bombing of the USS Cole that killed 17 American sailors. The Pentagon prosecutor has yet to swear out his charges.