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Judge OK's indefinite detention of alleged bin Laden advisor

By Carol Rosenberg
The Miami Herald
September 21, 2010

GUANTANAMO BAY NAVY BASE, Cuba -- A federal judge has rejected the habeas corpus petition of a Kuwaiti man who was designated during the Bush years for a war crimes trial here, raising the government's win-loss scorecard to 17-38 in Guantánamo unlawful detention challenges.

Fayiz Kandari, 35, has long claimed he was in Afghanistan at the time of his capture as a charity worker -- not a terrorist.

But the Pentagon alleges he trained with al Qaeda and around the time of the 9/11 attacks ``served as an advisor to Osama bin Laden'' and produced al Qaeda tapes that recruited men to jihad.

U.S. District Judge Colleen Kollar-Kotelly rejected Kandari's unlawful detention petition in a one-page order Sept. 15. Her full ruling was still classified Monday.

Kollar-Kotelly has now decided the cases of four Kuwaitiswho had been held here for years in a series of rulings since July 2009.

She has upheld the Pentagon's decision to indefinitelydetain two Kuwaitis held here -- Fawzi al Odah, 33, one of the earliest Camp X-Ray captives to try to sue the U.S. government for his freedom, and now Kandari.

And she has ordered the Pentagon to send two others back to the oil-rich emirate in cases brought in the Bush years but only finally decided during the Obama administration.

In December, a royal jet fetched the U.S.-trained ex-Kuwaiti airlines executive Fouad al Rabia, 51, after Kollar-Kotelly found for his argument that Guantánamo interrogators had coerced him, a father of four and Kuwaiti military washout, into falsely confessing that he worked as a logistics and supply officer at the December 2001 Battle of Tora Bora.

Like Kandari, Rabia had been designated in October 2008 for a war crimes trial here at Camp Justice in a series of proposed prosecutions that the Obama administration put on hold.

Their charge sheets alleged conspiracy and providing material support for terror under the Bush era Military Commissions Act, crimes punishable by a maximum of life in prison.

The men were among a dozen Kuwaitis scooped up in Afghanistan in the aftermath of the Sept. 11 attacks and taken here in 2002.

Kandari has been contesting his status as a so-called ``enemy combatant'' since 2005 when he went before a panel of U.S. military officers reviewing his case and mocked the notion that he had risen from al Qaeda training camp volunteer to bin Laden advisor in three months.

"I ask, are these accusations against Fayiz or against Superman?" he told the military panel. "It seems to me that whoever wrote these allegations . . . must have been drunk when he wrote it."

The Kuwaiti's military defender, Air Force Lt. Col. Barry Wingard, said Tuesday he and civilian counsel David Cynamon broke the news to Kandari last week.

It was unclear whether the Pentagon prosecutor would go forward with plans to try Kandari for war crimes but Wingard said his client may be doomed to life in Guantánamo.

``I believe Fayiz has already been sentenced to life without trial based on consistently wrong U.S. intelligence and ratified by a secret group of individuals whose identities will never be known in accordance with President Obama's policy of indefinite detention,'' he said.

Additional Information from Picture Caption: Fayiz al Kandari, born 6/3/1975, is the lone Kuwaiti at Guantanamo currently facing a possible war crimes trial. Pentagon prosecutors allege he trained with al Qaeda and subsequently ''served as an advisor to Osama bin Laden'' and produced al Qaeda tapes that recruited men to jihad. His military defense lawyer says Kandari was a Muslim in Afghanistan at the wrong time and the military has built a case based on vague allegations and triple hearsay. His family says he went as a student to Afghanistan after the Sept. 11, 2001, attacks, to volunteer as a charity worker. He is wearing the prison camp garb of a compliant captive in this photo. International Committee of the Red Cross

(Rosenberg reports for The Miami Herald.)

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