The D.C. Circuit reversed a federal judge's order to release the "Forrest Gump in the war against al Qaeda" from Guantanamo Bay.
Uthman Abdul Rahim Mohammed Uthman has been held at Guantanamo for more than nine years since his capture at the Afghan-Pakistani border near Tora Bora on Dec. 15, 2001.
That was about to change when U.S. District Judge Henry Kennedy Jr. granted Uthman's habeas petition in early 2010. Kennedy had said the government "presented some evidence that, at first blush, is quite incriminating of Uthman and supportive of the position that he is lawfully detained. Upon close examination of that evidence, however, the court finds that there is reason not to credit some of it at all and reason to conclude that what remains is not nearly as probative of respondents' position as they assert."
A three-judge panel of the D.C. Circuit took a more pragmatic approach, saying Uthman's explanations tested the bounds reason and that the Yemeni "more likely than not" belonged to al Qaeda.
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"Uthman's account piles coincidence upon coincidence upon coincidence," Judge Brett Kavanaugh wrote for the court. "Here, as with the liable or guilty party in any civil or criminal case, it remains possible that Uthman was innocently going about his business and just happened to show up in a variety of extraordinary places - a kind of Forrest Gump in the war against al Qaeda. But Uthman's account at best strains credulity; and the far more likely explanation for the plethora of damning circumstantial evidence is that he was part of al Qaeda." (Emphasis in original.)
Yemeni-born Uthman was captured along with about two dozen others near Tora Bora in the months following the Sept. 11 terrorist attacks on the World Trade Center. Kavanaugh notes that insurgents had been gathering in the mountainous cave complex of eastern Afghaniston to battle the U.S. military in December 2001. Along with Uthman, U.S. forces captured two al Qaeda members who confessed to being bodyguards for Osama bin Laden and third man who was a Taliban fighter. "One of the bin Laden bodyguards in Uthman's band described the group as 'brothers' retreating from battle," according to the decision.
Kennedy said it is not necessary to show that someone is part of al Qaeda's command structure to show that they belong to the organization.
"Being captured in the company of a Taliban fighter and two al Qaeda members and Osama bin Laden bodyguards 12 miles from Tora Bora in December 2001 might not be precisely the same as being captured in a German uniform 12 miles from the Normandy beaches in June 1944," Kavanaugh wrote. "But it is still, at a minimum, highly significant."
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In addition to finding himself among suspicious company in December 2001, Uthman's journey there also suggests that his presence was "not an accident." The two bin Laden bodyguards and Taliban fighter had both previously studied with Uthman at the Furqan Institute, a religious school that was a recruiting ground for al Qaeda fighters.
"Uthman's long association with those three fellow travelers, dating back to their shared time at an al Qaeda recruiting ground, renders it rather unlikely that their travel together near al Qaeda's embattled stronghold at Tora Bora in December 2001 was a coincidental reunion of old schoolmates," Kavanaugh wrote.
The Yemeni had claimed he went to Afghanistan to teach the Koran in Kabul, but he does not remember the names of any of his students and cannot describe his school. He also only left the city when the U.S. military took hold of it, fleeing into the mountains near Tora Bora. Kavanaugh notes that this route is markedly similar to that which other admitted al Qaeda members had followed.
Uthman also apparently lied about how he paid for the trip, claiming to have saved money by selling food at a roadside shack during the summers. The government says a sheikh funded the trip, calling it inconceivable for Uthman to have tripled the average Yemeni's annual income in only a few summers' unskilled work.
During his time "teaching" in Afghanistan, Uthman was spotted at an al Qaeda guesthouse. "It is highly unlikely that a visitor to Afghanistan would end up at an al Qaeda guesthouse by mistake, either by the guest or by the host," Kavanaugh wrote, noting that Uthman offered no other explanation for his presence and did not have his passport when he was captured.
"As this court has explained, surrendering one's passport was 'standard al Qaeda and Taliban operating procedure' when checking into an al Qaeda guesthouse in Afghanistan," Kavanaugh wrote.