Judge Enhances Government's GMTO Detention Burden

A federal judge has ordered the release of a Guantanamo detainee even though the judge had reason to disbelieve the detainee's account of why he was captured in the vicinity of Al Qaeda fighters. The ruling judge Colleen Kollar-Kotelly, also clarifies the government and defense's ability to use hearsay evidence in habaes hearings. It was handed down last week and published yesterday. The detainee, Khalid Abdullah Mishal Al Mutairi, claimed that he was picked up unlawfully. But the judge concluded that the government that while "the government "has at best shown that some of Al Mutairi's conduct is consistent with persons who may have become a part of al Wafa or al Qaida, but there is nothing in the record beyond speculation that Al Mutairi did, in fact, train or otherwise become a part of one or more of those organizations, where he would have done so, and with which organization."  Pay attention to her formulation. All the government had to do was to prove, by a preponderance of evidence, that Al Multairi helped terrorist groups.

By granting Al Mutairi the right to be trial, the Kollar-Kotelly added some definition to the D.C. circuit's sense of the scope of the president's inherent detention authority. The president, she writes, does not have the authority to detain individuals who have "directly supported hostilities" in aid of enemy forces if it cannot be proven that they were part of the forces -- Al Qaeda, the Taliban, other militias -- themselves. This isn't a distinction without a difference. It means that the government has to present clear evidence that the detainee's actions constituted de facto or de jure membership in said terrorist or hostile organizations.

The Court agrees that the President has the authority to detain individuals who are "part of' the Taliban, al Qaeda, or associated enemy forces, but rejects the Government's definition insofar as it asserts the authority to detain individuals who only "substantially supported" enemy forces or who have "directly supported hostilities "in aid of enemy forces. While evidence of such support is undoubtedly probative of whether an individual is part of an enemy force, it may not by itself provide the grounds for detention. Accord Mattan, 2009 U.S. Dist. LEXIS 43286 at *13-*15. Accordingly, the Court shall consider whether AI Mutairi is lawfully detained in the context of the following standard: The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of the Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act in aid of such enemy armed forces." 

No immediate comment from the Justice Department, but I think they'll probably appeal this as quickly as possible.