On Friday, October 9, the Obama administration announced the transfer of a Kuwaiti named Khaled al Mutairi, who had been held at Guantanamo for nearly eight years, to his home country. In its announcement of al Mutairi's transfer, the Justice Department cited District Judge Colleen Kollar-Kotelly's habeas corpus ruling as a justification for the decision to transfer al Mutairi. The DOJ also cited President Obama's interagency Guantanamo Review Task Force's "comprehensive review" of al Mutairi's case.
The Obama administration does not publish the results of its "comprehensive reviews," of course, so we cannot know how the task force evaluated al Mutairi's case file. But District Judge Kollar-Kotelly's opinion has been mostly declassified and released. And President Obama has cited decisions such as Judge Kollar-Kotelly's as a prime reason that detainees need to be transferred or released.
So, it is a safe bet that the Judge Kollar-Kotelly's opinion weighed heavily in the administration's decision to transfer al Mutairi.
The problem is that the court's opinion makes little to no sense.
In fact, the ruling is a disturbing example of willful dissembling. That is, instead of looking at the body of evidence as a whole, Judge Kollar-Kotelly took each piece of evidence that was given to the court and viewed it in isolation--much like a criminal defense attorney would. The judge did not even need a firm reason to discard each of these individual pieces of evidence-- in some instances, any hypothetical reason at all would do. The result is a fatally flawed decision that disconnects the dots on al Mutairi in an unreasonable manner.
Here are the publicly available, declassified facts concerning Khaled al Mutairi. Where appropriate, factual material from other sources (e.g. the September 11 Commission's final report and memos written at Gitmo) has been used to supplement his record.
Al Mutairi left his home for Afghanistan on either September 20 or 21, 2001--less than two weeks after al Qaeda's terrorist attacks in the U.S. He did not make any arrangements for a return trip. En route to Afghanistan, al Mutairi used a known al Qaeda smuggling route that goes through Mashhad, Iran. This route is used to bring jihadists to Afghanistan to fight. Al Qaeda members frequently use this route and so have members of an organization named al Wafa. Although it poses as a "charity," al Wafa is really a front for al Qaeda. The 9/11 Commission has confirmed this, and the U.S. government and UN have both designated al Wafa as an al Qaeda organization. Doing business with al Wafa is, therefore, illegal.
Al Mutairi admitted that when he got to Afghanistan he gave at least $1,000 to al Wafa. He says that he did not know al Wafa was really an al Qaeda front at the time. The Kuwaiti said that he carried $15,000--in cash--with him to Afghanistan, but he can't offer a good explanation for what happened to it all. Al Mutairi said that a large chunk of this money was going to be used to build a mosque. (But, of course, that would have to be an extremist mosque because the Taliban didn't exactly welcome moderate mosque-builders.) Al Mutairi says that some of the money and his passport were stolen.
Regardless, the Court couldn't be sure what happened to all of al Mutairi's money. Much of it, or perhaps all of it, may have ended up in al Wafa's coffers and thus, al Qaeda's hands. We know that, at the very least, $1,000 of it did. While this is not a huge amount of money, it is certainly a significant sum in the hinterlands of Afghanistan. Judge Kollar-Kotelly found that al Mutairi admitted to giving at least this much to al Wafa.
Al Mutairi spent more than a month in the Taliban's Afghanistan, but he did not offer any good explanation for his time there. His story was filled with inconsistencies and large gaps. Al Mutairi clearly lied about his time in Afghanistan, repeatedly, because his story kept changing. Judge Colleen Kollar-Kotelly even conceded that al Mutairi's "described peregrinations within Afghanistan lack credibility."
Therefore, al Mutairi could not offer any reasonable explanation for his time in Afghanistan. If he were really just a charity worker, as he and his lawyers claimed, then shouldn't there have been some evidentiary record for his defense to seize upon?
After spending several weeks in Afghanistan, al Mutairi fled towards the Tora Bora Mountains. Jihadists were ordered to retreat to Tora Bora, a long-time stronghold for the Taliban and al Qaeda, after the U.S.-led offensive routed them from the interior of Afghanistan in late 2001. The Kuwaiti fled towards the Tora Bora Mountains just as these jihadists did--at the same time, and using the same route. Judge Colleen Kollar-Kotelly conceded that al Mutairi's travel route "was consistent (in time and place) with the route of Taliban and al Qaeda fighters fleeing toward the Tora Bora mountains along the Afghanistan-Pakistan border."
In November of 2001, al Mutairi was captured near the border. He was detained in Pakistan and then shipped off to Guantanamo.
Subsequently, U.S. and Pakistani counterterrorism officials raided al Qaeda safe houses in Pakistan and found that al Mutairi is listed by al Qaeda on its rosters of "captured Mujahedin." In March 2003, officials recovered a computer hard drive that was used by a senior al Qaeda operative that includes a list of captured al Qaeda fighters. That list includes al Mutairi's name and phone number. Other similar lists that include al Mutairi are also in the U.S. government's possession.
U.S. intelligence officials also found that al Mutairi's "name and safety deposit box number" are on a list recovered during raids of al Qaeda residences in Karachi, Pakistan on September 11, 2002. Those same raids netted Ramzi Binalshibh--al Qaeda's point man for the September 11 attacks.
The recovered list says that al Mutairi's passport - the same passport he said was stolen--is in his safety deposit box. This is consistent with al Qaeda's standard operating procedures. Al Qaeda members frequently turn in their passports and other paper work upon arriving in South Asia. This makes it difficult for authorities to identify them if they are captured and it also means that their passports can be reused in future travels, perhaps with a forged identity grafted onto it. In addition, this practice makes it difficult for them to leave al Qaeda's rank should they second-guess their decision to join the black flag's ranks.
The U.S. government recovered multiple al Qaeda "passport lists" with al Mutairi's information on them.
Judge Colleen Kollar-Kotelly conceded that al Mutairi's "non-possession of his passport is consistent with an individual who has undergone al Qaeda's standard operating procedures that require trainees to surrender their passports prior to beginning their training."
U.S. intelligence officials investigated what the government of Kuwait knew about al Mutairi. According to documents prepared at Guantanamo, al Mutairi is listed "on a chart prepared by Kuwaiti state security depicting the relationship between al Qaeda and extremist groups in Kuwait." During one of al Mutairi's hearings at Gitmo, military officials also alleged that information provided by the Kuwaiti government indicated that al Mutairi is a "possible" associate of Suleiman Abu Ghaith--a top al Qaeda spokesman and long-time confidante of Osama bin Laden. One memo prepared at Gitmo notes that al Mutairi "was assessed by a foreign government service to be a hardcore extremist." This foreign government is almost certainly Kuwait.
At a minimum, therefore, Kuwaiti officials suspect that al Mutairi was an al Qaeda associate well before he left for Afghanistan in the wake of the September 11, 2001 terrorist attacks.
Let us connect the dots on al Mutairi: (1) He left for Afghanistan shortly after September 11 without making any plans for a return trip; (2) He used a known al Qaeda/al Wafa smuggling route to get into Afghanistan; (3) He carried $15,000 in cash with him and admittedly gave at least some of this money to al Wafa--which, again, is a known al Qaeda front--to an al Wafa representative in Kabul; (4) He spent well more than a month in the Taliban's Afghanistan and could not offer any valid explanation for what he was doing during that time; (5) He fled towards the Tora Bora Mountains in a manner that is entirely consistent with al Qaeda and Taliban members, according to the court; (6) His "non-possession" of his passport is consistent with "al Qaeda's standard operating procedures"; (7) His contact information appeared on multiple rosters of "captured fighters," including one that was kept by a senior al Qaeda terrorist; (8) His passport information appeared on multiple "passport lists" maintained by al Qaeda; and (9) Kuwaiti security claims that al Mutairi was a "hardcore extremist" affiliated with al Qaeda before he ever went to Afghanistan in the first place.
Now, if you think that the above indicates that al Mutairi "more likely than not became part of Taliban and al Qaeda forces in Afghanistan" (a phrase used by Judge Kollar-Kotelly in a previous habeas ruling), then you share the opinion held by the U.S. military and intelligence officials who detained him.
But the judge did not see it that way. The judge conceded items (1), (2), (4), (5) and (6) above. She downplayed the importance (3), while conceding al Mutairi did give at least some money to al Wafa. What's worse: she used hypothetical possibilities to downplay or dismiss the importance of (7) and (8). And there is no mention of (9), the Kuwaiti government's evidence, in the unredacted parts of the judge's opinion whatsoever, although it is possible that evidence was not introduced during the al Mutairi's habeas proceeding or was discussed during the still redacted portions of the judge's opinion.
Let us explore, in brief, Judge Kollar-Kotelly's arguments.
What about the money al Mutairi gave to a known al Qaeda front--item (3)?
The judge ruled that the government did not claim the cash, in and of itself, made him "part of" al Wafa and, therefore, al Qaeda. Therefore, apparently, it was no big deal. Even so, Judge Kollar-Kotelly noted that this and other evidence was "consistent" with the idea that al Mutairi became a "part of" al Wafa and/or al Qaeda.
Indeed, al Mutairi perfectly fits the profile of an al Wafa/al Qaeda terrorist who was smuggled into Afghanistan. And the fact that he gave at least some of his money to al Wafa, after using an al Wafa smuggling route, is certainly an important indication of what he was doing in Afghanistan.
What about the multiple rosters of "captured fighters" that al Qaeda maintained, and which listed al Mutairi as one of their detained brethren?
Judge Kollar-Kotelly ruled that because the government could not demonstrate exactly how and why al Mutairi ended up on these lists, they were not very significant. She argued that al Mutairi's information was publicly available and al Qaeda may have placed him on its lists of captured jihadists without knowing whether or not he was really an al Qaeda member. The government argued, quite reasonably, that even al Mutairi's information was originally available to public, or through other sources, it is significant that al Qaeda collected al Mutairi's information. The government said that one such list was maintained by an "al Qaeda leader."
The judge disagreed. It is worth quoting the judge's "reasoning" in this regard in full (emphasis added):The judge disagreed. It is worth quoting the judge's "reasoning" in this regard in full (emphasis added):
Two inferences are therefore possible. On the one hand, the appearance of al Mutairi's information on these lists may be taken to mean that an individual affiliated with al Qaeda is purposefully tracking him because Al Mutairi has connections to al Qaeda. On the other hand, the appearance of Al Mutairi's name could be the result of an individual affiliated with al Qaeda having [REDACTED] Al Mutairi's information along with other names from publicly available sources, not knowing whether Al Mutairi had any al Qaeda connections. On this record - particularly where, as here, there is a lack of evidence supporting any connection between Al Mutairi and al Qaeda -there is simply no way for the Court to decide which is more likely to be the case. Accordingly, the Court does not view these lists as probative of whether al Mutairi is lawfully detained.
According to Judge Kollar-Kotelly, then, there are at least even odds that al Mutairi ended up on al Qaeda's rosters of captured fighters either by accident or because he really was a captured al Qaeda fighter. By claiming that the lists are not "probative," she explicitly bet on the accidental theory. And note the second part of the passage that is bolded above. This is explains why she bet on it being an accident. She claimed there was no "evidence supporting any connection between al Mutairi and al Qaeda."
But this is not true. Remember the numbered list above. You have several significant facts before you even get to al Qaeda's lists of captured fighters, which are themselves evidence that al Mutairi was "part of" al Qaeda. The only way Judge Kollar-Kotelly could make this claim is if she had dissembled the evidence to such a degree that she no longer even attempted to put the picture together, as our intelligence and military professionals are tasked with doing.
There is more.
That information about al Mutairi's passport and other relevant details appear on multiple al Qaeda "passport lists" is a significant fact. Recall that al Mutairi claimed his passport was stolen. His attorneys tried to argue that the person who stole al Mutairi's passport gave it to al Qaeda and that is how the information ended up on al Qaeda's lists. The judge determined that this was just "speculation" without any supporting facts.
But she apparently bought part of the defense team's argument that there was some mix up in names that prevented the court from determining who, exactly, turned over al Mutairi's passport to al Qaeda. For the judge, that was enough to dismiss the value of the "passport lists." Judge Kollar-Kotelly wrote:
On this record, the Court cannot determine one way or the other whether the names are sufficiently similar to support the Government's argument that al Mutairi likely surrendered the passport himself, or whether they are different names such that someone other than al Mutairi could have surrendered the passport to individuals associated with al Qaeda.
Now, admittedly, it is not entirely clear how the judge weighed this "passport lists" evidence because parts of her opinion remain redacted. But still, given the passage above it seems clear that the judge could not dispute the government's claim that al Mutairi's passport ended up in al Qaeda's possession. Incredibly, she argued that because it was possible someone else turned it over to al Qaeda this fact was only minimally important. Now, mind you, the defense team could not come up with any evidence to support this alternative theory. It was just another possibility, as with the accidental theory of how al Mutairi ended up on separate lists of captured fighters maintained by al Qaeda, that the judge decided she could not rule out.
The court also threw out much of the evidence collected from the government's witnesses, including al Mutairi's fellow detainees. But those witnesses were used, by and large, to fill in the many gaps in al Mutairi's story. It is not possible to fully explore the judge's logic when it came to evaluating the witnesses because much of those sections remains redacted. But it is worth noting that none of the witnesses' testimony was used to construct the narrative above.
The bottom line here is this: The Obama administration is relying on decisions made by federal judges to justify the transfers of Gitmo detainees. But this doesn't make much sense when you actually dig into the judges' rulings.
Judge Kollar-Kotelly's habeas ruling in al Mutairi's case did not demonstrate that he should be freed. It just demonstrated that federal judges are not substitutes for trained military and intelligence professionals who are tasked with connecting the dots.
If those who are charged with protecting American citizens used Judge Kollar-Kotelly's specious methodology for weighing the evidence, we would be much worse off.