Appeals court overturns release of Gitmo detainee

AP News
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Posted: Mar 29, 2011 5:40 PM
Appeals court overturns release of Gitmo detainee

Federal appeals court judges on Tuesday rejected what they described as a Guantanamo Bay detainee's "Forrest Gump" defense, because they found it unlikely he was an innocent who repeatedly just happened to find himself at hot spots in the war on terror.

Uthman Abdul Rahim Mohammed Uthman of Yemen won a lower court decision granting his release after more than nine years at the U.S. naval prison for terror suspects in Cuba. But a three-judge appellate panel overturned that ruling.

Uthman says he was mistaken as an al-Qaida fighter fleeing U.S. bombardment of Tora Bora when he was captured at the Afghan-Pakistani border in December 2001. The U.S. government says Uthman was one of Osama bin Laden's bodyguards and fought against anti-Taliban forces, claims he denied.

Uthman said he went to Afghanistan to teach the Quran and was doing so in Kabul on Sept. 11, 2001. He said he fled after the United States began fighting the Taliban regime, but instead of taking the more direct eastward route to Pakistan he followed his interpreter south through the mountainous region toward Tora Bora. That's where bin Laden had relocated as al-Qaida gathered for a major battle against the United States and its allies and where Uthman says he happened to meet up with some schoolmates he was later captured with.

The school they had attended was the Furqan Institute, a religious school in Yemen where al-Qaida had recruited fighters. Among those schoolmates in Uthman's group were two admitted bin Laden bodyguards and a Taliban fighter.

The court also found that Uthman traveled to Afghanistan along a route used by al-Qaida recruits and was seen at an al-Qaida guesthouse. Uthman said none of that proved he was a member of al-Qaida.

"Uthman's account piles coincidence upon coincidence upon coincidence," the appeals court wrote. "Here, as with the liable or guilty party in any civil or criminal case, it remains possible that Uthman was innocently going about his business and just happened to show up in a variety of extraordinary places _ a kind of Forrest Gump in the war against al-Qaida. But Uthman's account at best strains credulity, and the far more likely explanation for the plethora of damning circumstantial evidence is that he was part of al-Qaida."

U.S. District Judge Henry Kennedy Jr. had ruled that the U.S. government did not prove that Uthman received and executed orders from al-Qaida, the so-called "command structure test." But since that ruling, the appeals court has rejected that formal standard for determining whether a detainee was part of al-Qaida and instead ordered that judges look at each detainee's actions individually to determine if he was a member of the terrorist group.

The appeals court also found Uthman's version suspicious because he claimed he paid for his travel to Afghanistan himself primarily by working summers selling food at a roadside shack. But the government argued Uthman would have had to earn more than three times the average Yemeni's annual income in only a few summers of unskilled work. The lower court found that Uthman actually received the money from a sheik, and the appeals court said the false statement was strong evidence of his guilt.

The unanimous appeals court decision was issued by two judges, Brett Kavanaugh and Thomas Griffith, nominated by President George W. Bush, and by Judge Merrick Garland, a nominee of President Bill Clinton. Kavanaugh wrote the court's opinion.

According to a count by the Justice Department, judges in the Washington federal court have now ordered the release of 34 detainees and ruled that 21 are being properly held. Uthman remained at Guantanamo after the release order pending appeal.