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Disconnecting the Dots, Part 2

The Obama administration should appeal a district judge’s habeas ruling.

7:40 PM, Jul 20, 2010 • By THOMAS JOSCELYN
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Here, the Government has demonstrated that [Mohammed] stayed at a guesthouse with links to al-Qaida. It has also shown that he traveled to that location with the assistance of a network of individuals tied to al-Qaida, and that he was brought to this particular guesthouse by those men. Further, while his attendance at the two London mosques may not, in and of itself, demonstrate membership in or substantial support of al-Qaida and/or the Taliban at the time it took place, his subsequent conduct (both using the recruiters and [sic] and relying on their travel guides), when viewed along with his attendance at the mosques, does demonstrate that it is more likely than not that the time he spent at those mosques was the beginning of his journey toward affiliation with al-Qaida.

In short, Judge Kessler agreed with the government that Mohammed was recruited by al Qaeda at extremist mosques in London, traveled to Afghanistan with the assistance of al Qaeda’s recruiters, and stayed in an al Qaeda guesthouse in Afghanistan. Incredibly, in Judge Kessler’s mind, this somehow does not add up to Mohammed being a part of al Qaeda – as if he could travel half around the world under al Qaeda’s auspices for a reason other than serving al Qaeda.

The D.C. Circuit Court’s ruling in Al-Adahi provides a clear rebuke to Kessler’s reasoning.  On behalf of the three-judge circuit court panel, U.S. Senior Circuit Judge A. Raymond Randolph wrote (emphasis added):

“Al-Adahi’s voluntary decision to move to an al-Qaida guesthouse, a staging area for recruits heading for a military training camp, makes it more likely – indeed, very likely – that Al-Adahi was himself a recruit. There is no other sensible explanation for his actions. This why we wrote in Al-Bihani that an individual’s attendance at an al-Qaida guesthouse is powerful – indeed ‘overwhelming[]’ – evidence that the individual was part of al-Qaida.

This parallels Mohammed’s case precisely. Mohammed was recruited by al Qaeda and then stayed in an al Qaeda guesthouse in Afghanistan. For Judge Kessler, this should have been “powerful” and “overwhelming” evidence indicating that Mohammed was a part of al Qaeda.

Third, Mohammed’s absurd cover story is strong evidence that he was hiding his nefarious activities. Judge Kessler writes:

While in Europe, [Mohammed] claims he attended mosques and met people who suggested that he go to Afghanistan to find a particular Swedish woman known to Rahim (a recruiter) who would be willing to marry him so that he could obtain citizenship to stay in Europe.

Judge Kessler did not buy his story, finding it was “entirely implausible.” Of course it is. Judge Kessler went on to demonstrate, correctly, that Mohammed’s tale is just as ridiculous as it sounds at first blush. It does not survive any measure of scrutiny – no one knew anything about this mysterious Swedish woman, including Mohammed or his al Qaeda handlers.

But Judge Kessler missed an obvious point. In Al-Adahi, Judge Randolph noted it is a “well-settled principle that false exculpatory statements are evidence – often strong evidence – of guilt.”

According to memos prepared at Gitmo, Mohammed traveled to Pakistan on June 2, 2001, and continued on to Afghanistan shortly thereafter. He was detained by Pakistani officials in December 2001. What was Mohammed doing in Afghanistan for six months?

If U.S. intelligence officials used Judge Kessler’s methodology, they would be unable to conclude the obvious: that Mohammed was in Afghanistan as a part of al Qaeda. Mohammed cannot offer any other reasonable explanation for what he was doing in Afghanistan, and neither could Judge Kessler.

Fourth, Judge Kessler’s analysis of the evidence is highly speculative and accepts outrageous “torture” claims made by other detainees at face value.

The government did present evidence that Mohammed trained at al Qaeda’s notorious al Farouq camp and went on to fight alongside al Qaeda and Taliban forces. Judge Kessler dismissed this evidence, mostly for specious reasons.

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