Judge orders Yemeni detainee released in latest Guantanamo habeas decision

Miami HeraldMay 26, 2010 

A federal judge Wednesday ordered the Obama administration to free a Yemeni man at Guantaamo who has long claimed he was captured in Pakistan studying the Quran and had no ties to al Qaida.

U.S. District Judge Henry H. Kennedy Jr.'s ruling of unlawful detention in the case of Mohammed Hassen, 27, raised the number of detainee wins in Guantánamo detention challenges to 36.

The win-loss scorecard was 14-36 on Wednesday. Civilian judges have upheld the military detentions of 14 other foreign men among the 181 war on terror captives at the U.S. Navy base in southeast Cuba.

Hassen argued at a 2004 status hearing at Guantanamo that the first time he heard of al Qaida was "in this prison.'' He claimed that he had been unjustly rounded up in a March 2002 dragnet by Pakistani security forces in the city of Faisalabad that targeted Arabs, including himself a student of Islam.

He's the third person captured in the same raid who has been ordered released since the U.S. Supreme Court authorized federal courts to undertake a case by case review of Guantánamo detentions through petitions of habeas corpus.

On May 11, 2009, Judge Gladys Kessler ordered the release of fellow Yemeni Alla Ali Ahmed in a ruling that found the government's mosaic theory of association with terrorism did not meet the burden. He was repatriated four months later.

Then two weeks ago, Kennedy ruled for the release of Russian Ravil Mingazov, 42, a former Russian army dancer.

Kennedy's rulings in both the Mingazov and Hassen case were still classified on Wednesday.

U.S. Justice Department lawyers were studying both decisions and had yet to decide whether to appeal either, said Dean Boyd, spokesman for the department's national security division.

In the Hassan case, the judge gave the government until June 25 to report back. It ordered the Obama administration to ``take all necessary and appropriate diplomatic steps'' to arrange for the Yemeni's release ``forthwith.''

But in February 2007 a Bush administration era review concluded that Hassen was among the Guantánamo detainees who could be repatriated through a negotiated transfer. It was not known whether an Obama-era Task Force that studied the files of Guantánamo captives concluded the same thing because it has kept most of its findings secret.

Still, neither the Bush nor Obama administration have reached agreement with Yemen on a large-scale return of their citizens cleared for release from Guantánamo.

Defense attorney David Remes said Hassen was studying at a ``respected university in Faisalabad'' and had the misfortune of going to a friend's house for dinner and an overnight stay -- only to be ``seized along with other Arabs there during an early morning raid by Pakistani police.''

Eight years have passed, said Remes.

"President Obama should return Mohammed to Yemen without delay,'' he added. "His incarceration is a tragedy.''

Another of Hassen's defense attorney's, Marc Falkoff, wrote Pentagon officials in 2005 that the young man ``harbors no ill will toward the United States or its citizens'' and sought to return to his extended family in Taiz and study.

Separately, a federal judge upheld the indefinite detention of a Libyan at Guantánamo in an April 19 decision during a closed-door hearing in Washington not yet noted on the U.S. District Court's public docket.

Judge James Robertson accepted the government's argument in the case of Omar Mohammed Khalifh, 38, who as far back as 2004 sent a message to a military panel reviewing his status. ``I would rather be in the worst American jail than be a minister in my country,'' he wrote. ``I want to stay here.''

Volunteer defense attorney Cary Silverman of Washington said Khalifh fled his country in 1995, as an opponent of the Qaddafi regime, and fears for his safety and that of his family were he to be returned.

``From the very get-go,'' Silverman added, the Libyan ``has maintained that he would rather stay at Guantánamo forever rather than be released back to Libya.''

Defense lawyers, however, had sought his release to a safe third country.

Robertson examined the case in a two-day merits hearing April 18-19 and ruled from the bench. His reasons are included in a transcript that was still classified on Wednesday.

The Libyan did not testify and his attorneys had yet to notify him of the court's decision.

Other Guantánamo captives have testified by a closed-circuit video link between the prison camps and the U.S. District Court in Washington under questioning from a defense lawyer who arranged to be at the Navy base at the time of the hearings.

One of his attorneys is Edmund Burke of Honolulu, who may be the farthest flung defense attorney offering pro bono services to a Guantánamo detainee. He said he has traveled between Hawaii and the base to consult his client nine times.

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