It's hard for most people to conceptualize the legal difficulties and contradictions that now have plagued the efforts of two successive administrations to process and prosecute the terror suspects at Guantanamo Bay, Cuba. And this lack of imagination, borne of the vacuum of solid facts, has resulted in prejudgment, prejudice and even the frequent expression of outright stupidity about the status of the men and our government's right to continue to hold them.
Fortunately, however, the curtain is beginning to draw back. Last week, a federal judge in Washington, D.C. ordered the release of a Kuwaiti detainee named Khalid Al Mutairi, who first challenged the terms of his confinement at Gitmo back on May 1, 2002. Earlier this week, the judge released a heavily-redacted ruling that offers rare insight into the facts of the Al Mutairi case, the way the government approached it, and the skepticism with which the allegations were met by a seasoned member of the federal judiciary.
Al Mutairi's habeas corpus petition was the first of hundreds of similar motions filed by the prisoners. All of them have sought some sort of independent review of the allegations against them. The fact that it took more than seven years for a substantive ruling on the merits of Al Mutairi's case—and surely there will be appeals to come-- reveals much of what you really need to know about the government's failure to timely process and prosecute the detainees out of Gitmo. Do yourself a favor. Read the ruling.
In Al Mutairi's case, the government alleged long ago that he was part of Al Qaeda and/or one of its offshoot groups. U.S. District Judge Colleen Kollar-Kotelly didn't buy it. No, she ruled, "the Government has at best shown that some of Al Mutairi's conduct was consistent with persons who may have become a part of al Qaida (sic) or an associated force of al Qaida. but there is nothing in the record beyond speculation that Al Mutairi did, in fact, train with or otherwise become a part of either or both of those organizations." (Emphasis added).
Over and over again in her ruling, Judge Kollar-Kotelly rejected government assertions of fact and law. She denied "the Government's motion to have its evidence admitted with a presumption of accuracy and authenticity" because she found that in many cases that evidence lacked reliability and credibility. For example, she ruled, "the Government believed for over three years that Al Mutairi manned an anti-aircraft weapon in Afghanistan based on a typographical error in an interrogation report."
Judge Kollar-Kotelly noted in one instance that an important allegation against Al Mutairi was "supported by one reference, in a portion of one sentence, in one interrogation report." In another instance, she found that the "identification of Al Mutairi at an alleged [terror] training camp is neither reliable nor credible" and that "the assertion that Al Mutairi was fighting with Osama bin Laden in Afghanistan in 1991 is not credible."
So if you are wondering why the White House and the Justice Department are so reticent to bring some of the detainees to the States for regular civilian trials here's your answer. If the feds can't convince a judge that a detainee was a member of Al Qaeda applying the lowest burden of persuasion— the "preponderance of the evidence" standard—how in the world can the feds convince a judge or jury likewise using the highest burden of proof—the "beyond a reasonable doubt standard"?
And it's not like the judge had much nice to say about Al Mutairi, either. "The Court concludes," she wrote in her ruling, that "Al Mutairi's version of events is implausible and, in some respects, directly contracted by other evidence in the record… It notes numerous other inconsistencies and conspicuously unexplained events by Al Mutairi." The problem with the government's case, the judge concluded, is that it "has not supplanted Al Mutairi's version of his travels with sufficiently credible and reliable evidence to meet its burden of persuasion."
For the Justice Department and White House, perhaps the most ominous part of Judge Kollar-Kotelly's ruling was her rejection of the government's detention standard. She wrote:
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.
This formulation, if adopted by the higher courts, could jeopardize the government's plan to continue to hold the detainees indefinitely—or even for a few more years. That's why the judge's ruling almost certainly will wend its way up the ladder, perhaps to the United States Supreme Court. Al Mutairi may lose in the end—it rarely ends well for these men no matter how innocent or guilty they are. But at least the myth that he is among the "worst of the worst" or otherwise guilty beyond doubt or redemption can finally be exposed for the bunk it is.
Andrew Cohen is CBS News' Chief Legal Analyst and Legal Editor. CourtWatch is his new blog with analysis and commentary on breaking legal news and events. For columns on legal issues before the beginning of this blog, click here. You can also follow him on Twitter.