Today, the ACLU made available on its website D.C. District Court Judge James Robertson’s order granting Guantanamo Bay detainee Mohamedou Ould Slahi’s petition for writ of habeas corpus (here). The decision, handed down on March 22, was under seal pending release of an unclassified version. Judge Robertson’s decision comes over eight years after Slahi’s initial detention in Senegal in November of 2001 and apparently makes Slahi the thirty-fourth detainee to be granted habeas relief. [Harper’s Magazine] Slahi is a citizen of Mauritania and was allegedly initially suspected of involvement in the failed Millenium Plot to bomb LAX. See the transcript of Slahi’s Administrative Review Board hearing, courtesy of the The Washington Post, here.
The decision is compelling in several respects. Judge Robertson:
- offers a concise synthesis of the Guantanamo litigation before federal courts;
- details the changing allegations against Slahi;
- unequivocally states that the alleged purposeful or material support standard cannot support Slahi’s continued detention because his involvement in al Qaeda pre-dated 9-11 and therefore, necessarily, hostilities against U.S. coalition forces;
- somewhat eschews the courts’ willingness to shift the burden of proof to the detainee upon a credible government showing of membership in al Qaeda in favor of “something like skepticisim“, given the government’s advantage over Guantanamo detainees;
- finds “ample evidence that. . . Salahi was subjected to “extensive and severe mistreatment at Guantanamo”;
- avoids deciding whether to exclude statements allegedly obtained through torture by receiving all evidence and “giving it the weight I think it deserves”;
- and, after stating, “the government’s problem is that its proof that Salahi gave material support to terrorists is so attenuated, or so tainted by coercion and mistreatment, or so classified, that it cannot support a successful criminal prosecution”, determines that the government has not made the evidentiary showing necessary to continue holding Slahi.
See additional analysis of the decision and case history, by Human Rights First, here. On the subject of the criminalization of “material support” of terrorism, see the Center for Constitutional Rights‘ extensive documentation and explanation of the issue, which is the subject of the case Holder v. Humanitarian Law Project recently argued before the U.S. Supreme Court (here).