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Judge's order to release Kuwaiti detainee puts Obama in a bind

By Carol Rosenberg
The Miami Herald
September 30, 2009

WASHINGTON - A year ago, an Air Force prosecutor swore out charges of conspiracy and providing material support to a terrorist organization against Fouad al Rabia, a 50-year-old Kuwaiti aviation engineer who was seized by U.S. forces in Afghanistan nearly eight years ago.

Now a U.S. district court judge in Washington has ordered him released from the Guantanamo military prison, saying the government has presented no evidence of his guilt.

The decision, recently made public in a redacted form, not only casts a harsh spotlight on the kind of evidence Pentagon prosecutors were relying on to bring a war crimes charge against Rabia, but also leaves the Obama administration with a dilemma.

It can appeal the order dictating Rabia's release, in an expression of confidence in the military commission system that brought the charges against him. Or it can send him home and mark the second time that the government has set free one of the people the Pentagon once labeled the worst of the worst: worthy of being charged with war crimes.

Rabia's been held at Guantanamo since soon after his capture in Afghanistan on suspicion he was "Abu Abdullah al Kuwaiti," a notorious ally of Osama bin Laden who allegedly served as logistics and supply officer at the 2001 battle of Tora Bora.

In a recently released decision, U.S. District Judge Colleen Kollar-Kotelly, in 65 pages, dissected and discredited the evidence that the Justice Department cited in its bid to continue to hold Rabia.

She noted that the Guantanamo testimony against Rabia was contaminated by a sleep deprivation program at odds with the U.S. Army's own field manual. She pointed out that Rabia's confession came only after an interrogator advised that he needed to be convicted to go free. She revealed that even American intelligence analysts doubted that an obese aviation engineer, who'd washed out of military training for the Kuwaiti military, had been transformed into an al Qaida field commander in two weeks.

"If there exists a basis for al Rabia's indefinite detention, it most certainly has not been presented to this court,'' she wrote.

Rabia is the 30th person ordered freed by a federal judge since the U.S. Supreme Court ruled that Guantanamo detainees had the right to appeal their detention in U.S. civilian courts. The indefinite detention of eight detainees has been upheld. Nearly 200 cases are pending.

Kollar-Kotelly's ruling in the Rabia case, however, was the harshest denunciation yet of the government's evidence, analysts say.

"Despite heavy deletions, blacking out many details, what remains is a withering denunciation of military and intelligence data,'' Supreme Court reporter Lyle Denniston wrote in a posting Saturday on Scotusblog.com, a respected Web site devoted to legal affairs. He called the ruling by far "the most critical assessment of government evidence'' yet of a Guantanamo case.

Currently, the Obama administration is appealing two orders to release detainees. Both are Yemeni men and neither has been charged at the war court.

The Rabia case, however, stands out because of its timing. The Obama administration isn't only deciding, independently of the court, which detainees it can free but it's also deciding which of the ongoing proposed military commissions prosecutions should go forward - either in a war crimes setting or at a federal district court. Rabia is one of them.

The Tora Bora battle, a shock-and-awe assault by U.S. special forces on Taliban and al Qaida fighters, was meant to be bin Laden's last stand, but it became the moment of his escape. U.S. officials have been uncertain of bin Laden's whereabouts since.

Rabia has maintained his innocence, arguing that he was a humanitarian relief worker who every year went to another Muslim area in need and was swept up when the U.S. invaded Afghanistan in reprisal for the Sept. 11, 2001, attacks.

For a time at Guantanamo, however, he admitted to some of the claims, in what Kollar-Kotelly declared were "uncorroborated confessions" that "defy belief." She called the government's evidentiary record "surprisingly bare."

Aspects of Rabia's biography were never in dispute: He was at the time of his capture an engineer with Kuwait Airways with an advanced degree from Embry-Riddle Aeronautical University's Daytona, Fla., campus. He has four children and had for years taken vacations to do charity work in Muslim countries, including war zones.

The U.S. government sought to tie him to terrorist organizations. Defense lawyers, however, documented a history of humanitarian travel, complete with authorized leaves from his employer that the judge found persuasive.

She highlighted one intelligence analyst's assessment that the Kuwaiti shouldn't have been detained, and noted that he was subjected to prison camp punishment for recanting confessions and that interrogators who were frustrated with his inconsistencies under questioning "began using abusive techniques that violated the Army Field Manual and the 1949 Geneva Convention Relative to the Treatment of Prisoners of War."

Some of the examples were blacked out. Still, she specified both a sleep deprivation program and a specific threat to subject him to rendition - outsourcing to interrogation in a foreign country - where he "could either be tortured and/or would never be found."

"Interrogators ultimately extracted confessions from him, but they never believed his confessions based on the comments they included in their interrogation reports," she wrote.

Justice Department spokesman Dean Boyd said administration lawyers are reviewing the ruling to decide whether to appeal it.

In parallel, commissions spokesman Joe DellaVedova said, the Rabia case remains on the docket of the war court, which is suspended until November, pending the White House review.

However, Rabia's appointed military defense lawyer, Navy Lt. Cmdr. Kevin B. Bogucki, argues that Kollar-Kotelly "completely destroyed the government's case'' by finding that the Pentagon had insufficient evidence simply to detain him, which has a lower threshold than having to prove at trial that a captive committed a crime.

Her ruling found, specifically, that Rabia hadn't worked as an al Qaida or Taliban logistics and supply chief at Tora Bora, and instead that Rabia had been coerced into giving a false confession.

Secondly, she found no evidence he'd ever socialized with bin Laden.

"The whole purpose of habeas corpus is to afford the federal courts the ability to reach in and grab a person who is being unlawfully detained,'' Bogucki said, "and this decision should completely undercut the government's ability to proceed against Mr. al Rabia."

Should Pentagon prosecutors seek a conspiracy trial, he said, defense lawyers would point to the ruling and ask a military judge to dismiss the charges and block the trial by finding that the court has no jurisdiction.

(Rosenberg reports for The Miami Herald.)

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