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Federal Judge: Evidence Against Detainee Is ‘Surprisingly Bare’

Last week, a federal judge ruled that the government had failed to justify the detention for the last seven years of a 50-year-old Kuwaiti engineer who worked for Kuwait Airlines and had gone to Afghanistan to do charitable work. He was seized by the Northern Alliance, turned over to U.S. authorities, and shipped to Guantanamo Bay.

Today, Judge Colleen Kollar-Kotelly released a declassified version of her opinion in the case of Fouad Mahmoud Al Rabiah. Although the opinion is heavily redacted, the judge’s point is clear.

“The evidentiary record on which the Government seeks to justify his indefinite detention is surprisingly bare,” she wrote. “Far from providing the Court with credible and reliable evidence as the basis for Al Rabiah’s continued detention, the Government asks the Court to simply accept the same confessions that the Government’s own interrogators did not credit.”

The U.S. government claimed Al Rabiah provided “material support” to the Taliban and al-Qaeda, and met several times with Osama bin Laden. Al Rabiah denied this, but apparently “confessed” under abusive interrogations to having run a supply depot for al-Qaeda fighters. Al Rabiah’s lawyers argued that the confessions were all coerced, and that it was a case of mistaken identity: the government had confused Al Rabiah with another man with the same nickname. That man was killed by American air strikes.

Judge Kollar-Kotelly, while acknowledging that strong possibility, decided she didn’t ultimately need to go there because it was clear that the government did not have credible evidence against Al Rabiah. Instead, she noted the many “inconsistencies and impossibilities” in the government’s case and the unreliable nature of the government’s witnesses, including that at least one of them had been subjected to a week of sleep deprivation via the “frequent flyer” program, which involves moving a detainee from one cell to another every couple of hours. Judge Kollar-Kotelly notes that this was both in violation of the Army Field Manual and violated the guidance issued by the Commander at US SOUTHCOM. In any event, it destroyed the credibility of the witness’s claims against Al Rabiah, which were never repeated again.

In the end, the judge threw out the government’s case, ruling that the detention of Al Rabiah for the past seven years was unjustified:

“[T]he court concludes that Al Rabiah’s uncorroborated confessions are not credible or reliable, and that the Government has failed to provide the Court with sufficiently credible and reliable evidence to meet its burden of persuasion. If there exists a basis for Al Rabiah’s indefinite detention, it most certainly has not been presented to this Court.”

David Cynamon, Al Rabiah’s lawyer in this victory, sent me these thoughts on the case in an email today:

I think the significance of this case is that it totally rebuts the torture apologists. Thus far Cheney and his ilk have argued that torture is OK because, after all, guys like KSM and Abu Zubaydah are bad guys and it was necessary to torture them because of the valuable intelligence. Those arguments are without merit, but they appeal to a lot of people. But Al Rabiah is not a bad guy — he’s a totally innocent man — and he had no intelligence value because he is an innocent man. This demonstrates why you need to have a bright line against torture and abuse, and why declaring the Geneva Conventions to be “quaint” and outmoded has such a disastrous effect. Maybe you start off with the idea that you’re “only” going to torture the KSMs, but pretty soon you end up torturing anyone who doesn’t fit your preconceived determination that everyone at Guantanamo is “the worst of the worst.” What the interrogation reports show in Al Rabiah’s case is that the more he insisted on his innocence, the harsher the interrogations got, because his interrogators would not, and, indeed could not, believe that he was innocent.

Here’s Judge Kollar-Kotelly’s decision:

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