DOJ Loses Gitmo Case, But DOD Could Try Again

Last month, Judge Colleen Kollar-Kotelly ordered the federal government to arrange for the release of Fouad Mahmoud Al Rabiah from the detention center at Guantanamo Bay. The evidence against the 50-year-old Kuwaiti engineer, she wrote in her declassified decision, is “surprisingly bare,” noting that all of his “confessions” appear to have been coerced by threats and extreme and unlawful sleep deprivation, and were deemed incredible even by the government’s own interrogators.

Still, as is often the case, that’s not necessarily the end of the story. Carol Rosenberg at The Miami Herald reports that the defense department’s military commissions could still try Al Rabiah for war crimes, as it planned to do during the Bush administration. The Pentagon claimed Al Rabiah ran a supply depot for al Qaeda fighters during the Battle of Tora Bora in Afghanistan. Al Rabiah’s lawyers argued in federal court that it was a case of mistaken identity; the man who’d actually supplied al Qaeda was killed by American air strikes.

Although Judge Kollar-Kotelly didn’t rule definitively on whether Al Rabiah was the man U.S. forces had intended to capture, she did rule unequivocally against the Justice Department, finding that the U.S. government has no right to keep Al Rabiah, imprisoned at Guantanamo since 2002, any longer. As she put it in her opinion: “If there exists a basis for Al Rabiah’s indefinite detention, it most certainly has not been presented to this Court.”

That won’t necessarily stop the military from charging him with war crimes, however. A military commissions spokesman told The Miami Herald that there’s still an active case pending against Al Rabiah at the commission. It’s been suspended until November, awaiting White House review.