'Habeas' rules in Guantanamo cases

Judge Kessler stated that “at this point in this long, drawn-out litigation the Court’s obligation is to make findings of fact which satisfy appropriate and relevant legal standards as to whether the Government has proven by a preponderance of evidence that the Petitioner is justifiably detained”.

Judge Kessler evaluated the evidence of various witnesses whose identities were not disclosed. Most appear to have been past or present Guantanamo detainees. The judge commented adversely on the credibility of the witnesses; the fact that much of the information was imprecise; that versions had been stated, recanted and re-stated; that torture or fear of torture was relevant to the statements relied on; that the question whether the applicant was properly identified as the person identified who was the subject of the dispute was often unclear; and much of the information was, itself, second or third hand hearsay.

Judge Kessler examined allegations that Mr Ali Ahmed had fought in Afghanistan; had trained in Afghanistan; had used a particular “kunya” or nickname; and that he had stayed at a particular guest house in Pakistan with al-Qaida or Taliban members. Judge Kessler was not satisfied that the applicant had ever been in Afghanistan. She concluded that any contact with other persons alleged to be Taliban fighters had not been shown to be other than innocent and incidental.

None of the allegations were found to be made out. Judge Kessler said: “When taken all together as facts which comprise a mosaic theory, the evidence does not satisfy the Government’s burden of proof: ie, the Government’s picture does not establish that it is more likely than not that [Mr. Ali Ahmed] fought for the Taliban …”

As well as granting the writ of habeas corpus, Judge Kessler ordered that (PDF) “the Government … take all necessary and appropriate diplomatic steps to facilitate [Mr Ali Ahmed’s] release forthwith, and to report back to the Court no later than June as to the status of [his] release”.

The approach of the District Court judges in Gherebi, Hamlilly and Ali Ahmed indicate a degree of rigour that may not have been present in the Military Commissions’ processes. One wonders why President Obama is thinking of restoring the role of those Commissions.