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A Specious Ruling

2:53 PM, Oct 16, 2009 • By THOMAS JOSCELYN
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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?