Analysis
Applying a set of legal rules or theories that appear outwardly to give the government an easier time of proving that a Guantanamo Bay detainee must remain confined, a federal judge nevertheless has found that none of them can support continuing captivity for a Yemeni national in the face of serious weaknesses found in the government’s evidence, especially its reliance on information from four other detainees.
In one of the widest ranging rulings by any trial judge in the wake of the Supreme Court’s decision finding that Guantanamo detainees have a constitutional right to contest their captivity, U.S. District Judge Gladys Kessler has ordered the release of 25-year-old Alla Ali Bin Ali Ahmed of Yemen after nearly seven years of detention. The ruling, if followed by other District judges, has strong negative portents for government efforts to justify further detention in other cases.
Her 45-page opinion, completed May 4 but publicly released only this week after considerable deletion of secret data, came in the case of Ahmed v. Obama (District Court docket 05-1678. It is entered as document 220 on the District Court’s website under that docket number. Pacer access is required.)
Taking point by point the government’s case that Ahmed has too many ties to terrorism to be set free, Kessler found the case wanting in all of its dimensions. It was her first ruling on the merits of a detainee case. (Three other judges have ruled on the merits of 29 cases, ordering release of 24 of those detainees; one of those judges has ordered continued detention for five others. Close to 200 other detainees’ cases remain pending in proceedomgs that are moving fairly slowly.)
Kessler allowed the government to proceed on what is called “the mosaic theory” rather than requiring it to prove directly that Ahmed has been a terrorist — a much harder task. The “mosaic theory,” often used by the intelligence community to build a case, provides that single pieces of evidence that may not be strong when looked at singly can be examined together to form a convincing pattern — here, a pattern of terrorist activity.
In the end, however, Kessler said, “when taken all together as facts which comprise a mosaic theory, the evidence [against Ahmed] does not satisfy the government’s burden of proof.” The picture it assembled, she wrote, did not convince her that Ahmed “fought for the Taliban,” received military training, traveled in Afghanistan “with terrorists fleeing from the scene of war,” or demonstrated by a stay at a specific location (deleted) that he “was a supporter of al-Qaida.” (There was a further argument against him that she rejected, but all references to the details of that are redacted).
What is very likely the most significant parts of the ruling, with implications for other cases, is that Judge Kessler applied without qualification the legal standard of government authority to detain that the Obama Administration has laid out, allowed the government to try to prove its case on the lowest standard of proof, conceded that the government was entitled to a presumption that its evidence was authentic, and allowed the government to offer hearsay — what others said that Ahmed had said. Each of those legal principles is, as written, more favorable to the government than to detainees, but Kessler still rejected the cumulative effect as well as the individual strength of each piece of government evidence.
Most of the evidence the government offered remains classified. The judge said it included statements by Ahmed and statements of other detainees (including one who claimed to have been tortured while held in a military prison in Bagram airbase in Afghanistant), plus some other exhibits she did not describe.
The only legal principle that the government asked her to apply that she rejected was a presumption that its evidence was accurate. ‘It is clear that the accuracy of much of the factual matter contained in those exhibits is hotly contested,” she wrote. There are, she noted, no statements that are verbatim accounts of what was said.
Judge Kessler said there were six “tiles” in the government’s mosaic of terrorist accusations. She rejected all six (including the one that is mentioned but without any details because of secrets).  She wrote: “The mosaic theory is only as persuasive as the tiles which compose it and the glue which binds them together.”
While concluding that Ahmed was legally entitled to be released, the judge merely ordered the government to “take all necessary and appropriate diplomatic steps” to work out his release, and to report back by June 15. She said she could not directly order his release, because that type of order has been barred by the D.C. Circuit Court’s ruling earlier this year in Kiyemba v. Obama — a ruling now under challenge in an appeal to the Supreme Court.
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