GTMO habeas petition denied

* Abdah v. Obama (D.D.C. May 4, 2010) (Kennedy, J.) (denying habeas petition of GTMO detainee Yasein Khasem Mohammad Esmail)

In a 43-page opinion posted here, Judge Kennedy on May 4th denied Esmail’s habeas petition on the ground that the government proved by the preponderance of the evidence that Esmail was part of al Qaeda at the time of his capture in Afghanistan in late 2001. Specifically, the court concluded that the government’s evidence sufficed to prove that Esmail had (i) traveled to Afghanistan after being recruited by an al Qaeda facilitator, (ii) attended multiple military-style training courses sponsored by al Qaeda, (iii) stayed at multiple guesthouses sponsored by or associated with al Qaeda, (iv) studied at a religious institute sponsored by al Qaeda, (v) elected to remain in Afghanistan after the 9/11 attacks, and (vi) was present at the battle of Tora Bora as an al Qaeda fighter.

Substantive detention standard: Notably, Judge Kennedy did not say whether it would have been adequate to justify detention if the government had proved only the training and guesthouse facts. Footnote 25 on p. 42 acknowledges that the D.C. Circuit’s opinion in al Bihani asserts in dicta that such facts would suffice to justify detention, but goes on to state that the “Court need not evaluate the significance of this statement [from al Bihani] because the evidence in this case demonstrates that Esmail did more than stay in Al Qaeda guesthouses and attend Al Qaeda training camps.”

Reliability of interrogation and CSRT statements/Taint issues: Equally notable is Judge Kennedy’s analysis of the evidence used by the government to establish these facts. Most of that evidence consisted of statements made by Esmail either during (i) interrogations by U.S. officials in Bagram and Kandahar in early 2002 and thereafter at GTMO or (ii) Esmail’s CSRT appearance. Esmail argued that these statements were unreliable, contending that he had been tortured or at least abused repeatedly at all stages of U.S. custody (that is, in Bagram, then in Kandahar, and then later at GTMO) and that he frequently told interrogators what he thought they wanted to hear in order to prevent further abuse. The government denied the abuse allegations, and put forward evidence contesting them. Ultimately Judge Kennedy concluded that Esmail may have suffered some abuse, but also that he had exaggerated or invented the worst of his allegations. As a result, Judge Kennedy was willing to credit his prior, inculpatory statements.

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