Innocent Student Finally Released from Guantánamo

14.7.10

Finally! 48 days after a District Court judge ordered the release of Mohammed Hassan Odaini, a Yemeni prisoner in Guantánamo, the Obama administration has sent him home.

Odaini’s case had become an embarrassment for the administration, which had been obliged to concede that it had no basis on which to appeal the judge’s decision. As an official explained to the Washington Post on June 19, it would be “unconscionable” to appeal Odaini’s case. “This is a bad case to argue,” the official stated. “There is nothing there. The bottom line is: We don’t have anything on this kid. The judge wants a progress report by June 25th. We have to be able to report something other than we are thinking about it.”

Alarmingly, one of the administration officials who spoke to the Washington Post also stated that the administration was prepared to release him because senior officials were “comfortable” with making an exception for him “because of the guy’s background, his family and where he comes from in Yemen,” thereby admitting that the perception of a prisoner’s family background is now more important than whether he is innocent or not.

In order to release Odaini, the administration had to break a moratorium on repatriating any Yemeni prisoners, which was introduced by President Obama in January, in response to a wave of hysteria following the revelation that the would-be Christmas Day plane bomber, Umar Farouk Abdulmutallab, a Nigerian, had been recruited in Yemen.

Implicit in the moratorium was the unacceptable notion that all Yemenis were potential terrorists, but the President chose to ignore this so as not to make his life uncomfortable, and, in doing so, also ignored the fact that some Yemenis were going to win their habeas petitions while the moratorium was in place. If he had any doubt about this, he need only have consulted the final report of his own Guantánamo Review Task Force, which had concluded that, of the 97 Yemenis still held, 59 should be released.

Obama’s indifference paved the way for the devastating ruling on May 26, when Judge Henry H. Kennedy Jr. revealed not only that Odaini had been cleared for release by the Bush administration, and by President Obama’s Guantánamo Review Task Force, but also that, since his arrival in Guantánamo in June 2002, interrogators and the prison authorities had repeatedly approved his release. This was so intolerable that Judge Kennedy forcefully ordered Odaini’s release and concluded his ruling by stating:

Respondents have kept a young man from Yemen in detention in Cuba from age eighteen to age twenty-six. They have prevented him from seeing his family and denied him the opportunity to complete his studies and embark on a career. The evidence before the Court shows that holding Odaini in custody at such great cost to him has done nothing to make the United States more secure. There is no evidence that Odaini has any connection to al-Qaeda. Consequently, his detention is not authorized by the AUMF [the Authorization of the Use of Military Force, passed by Congress the week after the 9/11 attacks, and used to justify the detentions at Guantánamo]. The Court therefore emphatically concludes that Odaini’s motion must be granted.

What makes this story all the more depressing, as Charlie Savage explained in the New York Times last week, is that the administration already knew that it would lose the case. As Savage wrote, “The suspension on transfers meant that habeas corpus lawsuits that had been frozen since the detainees were due to be released anyway started to move forward, putting the Justice Department in the position of fighting to keep the detainees imprisoned.” As I added in an article yesterday, “In other words, the Justice Department is arguing in court that the administration should be allowed to continue holding men that it has already conceded it has no reason to hold.”

Another depressing realization is that Odaini was not released until now not just because of inertia on the part of the administration, but because, as law professor (and former Guantánamo military defense attorney) Lt. Col. David Frakt has explained, for 15 days before his release, Odaini was held “in the status of ‘Congressional prisoner,’ a status for which there is no Constitutional authority,” while the administration fretted about whether it could break its appalling moratorium on just this one occasion.

Lt. Col. Frakt was referring to a law, passed last summer, which requires the administration to give Congress 15 days’ notice before releasing anyone from Guantánamo, and his full explanation of why this is unconstitutional, which he illustrated with reference to his own client, Mohammed Jawad, who was held for 22 days before being released last summer, after winning his habeas petition, is revealing:

I consider this Congressional notification requirement to be blatantly unconstitutional as a violation of the separation of powers. In Jawad’s case, it meant that after the Executive Branch and the Judiciary had concluded there was no lawful basis for the military to detain Mohammed Jawad (after the Department of Justice ultimately conceded the habeas corpus petition), the military was required to continue to detain him at Guantánamo at the order of the legislature, Congress. As I explained in Federal District Court, this placed Jawad in the status of “Congressional prisoner,” a status for which there is no Constitutional authority.

He added:

[F]or those detainees determined to be unlawfully held, this law simply arbitrarily extends their unlawful stay at Guantánamo. This provision, coupled with the refusal to authorize funds for detainees to be resettled in the United States — even those determined to be innocent of any wrongdoing who should qualify for political asylum — shows the extent of Congressional depravity on any issues related to detainees.

For Mohammed Hassan Odaini, his vulnerability to the whims of an unprincipled administration and a constitutionally depraved Congress is now over, but others are not so fortunate. In May, Congress proposed to extend the period in which it can hold men as “Congressional prisoners” from 15 to 30 days, and the administration has been true to its word regarding the moratorium. When administration officials spoke to the Washington Post three weeks ago, one of them stressed that it was just a one-off exception, and that the moratorium was still in place. “What isn’t being considered is lifting, in a blanket fashion, the moratorium on detainee transfers to Yemen,” he said.

This is in spite of the fact that, as the officials also explained, President Obama “may come under further pressure to quickly release Yemenis besides Odaini,” because “[a]s many as 20 more Yemenis could be ordered released by the courts for lack of evidence to justify their continued detention.” The official added, “There is a group of Yemenis who are going to win their habeas cases. Some of them will not be as clear as this case, but some will be, and that poses a real dilemma.”

One of those men may be Hussein Almerfedi, who won his habeas petition last week, and others will doubtless follow, given that the Justice Department is now pursuing cases that it knows it will lose. However, in releasing Odaini — and Odaini alone — the administration has just demonstrated that it will put off thinking about this dilemma until, as with Mohammed Hassan Odaini, it has no choice.

Note: With this release, 180 prisoners remain at Guantánamo. One of these men, Ali Hamza al-Bahlul, is serving a life sentence in solitary confinement, after a one-sided trial by Military Commission in October 2008, in which he refused to mount a defense. Another prisoner, Ahmed Khalfan Ghailani, is in prison in New York, awaiting a federal court trial that was approved yesterday. 592 prisoners have been released (or, in some cases, transferred to the custody of their home governments, or of other governments), and six men died, five in mysterious circumstances.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners (my first article on the brand-new website — check it out!). Cross-posted on Eurasia Review, Uruknet, Rebel News and Blog from Middle East.

See the following for articles about the 142 prisoners released from Guantánamo from June 2007 to January 2009, and the 59 prisoners released from February 2009 to May 2010, whose stories are covered in more detail than is available anywhere else –- either in print or on the Internet –- although many of them, of course, are also covered in The Guantánamo Files: June 2007 –- 2 Tunisians, 4 Yemenis (here, here and here); July 2007 –- 16 Saudis; August 2007 –- 1 Bahraini, 5 Afghans; September 2007 –- 16 Saudis; September 2007 –- 1 Mauritanian; September 2007 –- 1 Libyan, 1 Yemeni, 6 Afghans; November 2007 –- 3 Jordanians, 8 Afghans; November 2007 –- 14 Saudis; December 2007 –- 2 Sudanese; December 2007 –- 13 Afghans (here and here); December 2007 –- 3 British residents; December 2007 –- 10 Saudis; May 2008 –- 3 Sudanese, 1 Moroccan, 5 Afghans (here, here and here); July 2008 –- 2 Algerians; July 2008 –- 1 Qatari, 1 United Arab Emirati, 1 Afghan; August 2008 –- 2 Algerians; September 2008 –- 1 Pakistani, 2 Afghans (here and here); September 2008 –- 1 Sudanese, 1 Algerian; November 2008 –- 1 Kazakh, 1 Somali, 1 Tajik; November 2008 –- 2 Algerians; November 2008 –- 1 Yemeni (Salim Hamdan) repatriated to serve out the last month of his sentence; December 2008 –- 3 Bosnian Algerians; January 2009 –- 1 Afghan, 1 Algerian, 4 Iraqis; February 2009 — 1 British resident (Binyam Mohamed); May 2009 — 1 Bosnian Algerian (Lakhdar Boumediene); June 2009 — 1 Chadian (Mohammed El-Gharani), 4 Uighurs to Bermuda, 1 Iraqi, 3 Saudis (here and here); August 2009 — 1 Afghan (Mohamed Jawad), 2 Syrians to Portugal; September 2009 — 1 Yemeni, 2 Uzbeks to Ireland (here and here); October 2009 — 1 Kuwaiti, 1 prisoner of undisclosed nationality to Belgium; October 2009 — 6 Uighurs to Palau; November 2009 — 1 Bosnian Algerian to France, 1 unidentified Palestinian to Hungary, 2 Tunisians to Italian custody; December 2009 — 1 Kuwaiti (Fouad al-Rabiah); December 2009 — 2 Somalis, 4 Afghans, 6 Yemenis; January 2010 — 2 Algerians, 1 unidentified Uzbek to Switzerland, 1 Egyptian, 1 Azerbaijani and 1 Tunisian to Slovakia; February 2010 — 1 Egyptian, 1 Libyan, 1 Tunisian to Albania, 1 Palestinian to Spain; March 2010 — 1 Libyan, 2 unidentified prisoners to Georgia, 2 Uighurs to Switzerland; May 2010 — 1 Syrian to Bulgaria, 1 Yemeni to Spain.

17 Responses

  1. Tweets that mention Innocent Student Finally Released from Guantánamo | Andy Worthington -- Topsy.com says...

    [...] This post was mentioned on Twitter by GStuedler. GStuedler said: RT @QueerjohnPA: "Innocent Student Finally Released from Guantánamo | Andy Worthington" http://j.mp/a8qAOt #p2 [...]

  2. Frances Madeson says...

    Lately in this epic battle between David and Goliath, David seems to be racking up quite a few solid bumps to Goliath’s behemoth of a head. And, Andy, as anyone who’s ever had one can relay, head wounds really bleed–they bleed baaaaaaad.

  3. Andy Worthington says...

    Here are a few comments from Facebook:

    Filiz Kanzu wrote:

    Congratulations and thanks!
    Freedom 4 all prisoners in Guantanamo hell!

  4. Andy Worthington says...

    Susan Hall wrote:

    Imagine that they found a “Student” nearby the college he attended. Thank you Pres. Obama for allowing him to return. I think the whole country should write his professor an excuse for the abduction. Actually though I think I really will call and say thank you later this wk & then add please release Shaker Aamer, Aafia Sidduqui, & Omar Khadr.

  5. Andy Worthington says...

    Ghias Aljundi wrote:

    Thanks Obama? I think we can not thank a hypocrite president. We should thank the judge. Obama said that he would close the detention centre as exactly he said he would sort out the Palestinian problem. He is the man of excuses and sweet words. I believe releasing this poor guy is not enough, US must apologise and compensate him. How could you bring back 8 years of somebody’s life? this not to mention the emotional damage they caused him. What a country called US we have!!!

  6. Andy Worthington says...

    Cheney Watch wrote:

    Andy, thanks for keeping people informed. Thanks to the judges for continuing to expose that Obama is…same old.

    Ghias, you are oh so right. Thank you.

  7. maraahmed.com » Blog Archive » Innocent Student Finally Released from Guantánamo says...

    [...] Christmas Day plane bomber, Umar Farouk Abdulmutallab, a Nigerian, had been recruited in Yemen. Full article.     Read [...]

  8. Christmas At Guantánamo « Eurasia Review says...

    [...] should be released, only one (Mohammed Hassan Odaini, who won his habeas petition in May) has been freed in the last year because of a moratorium that President Obama issued in January, preventing the release of any [...]

  9. Another Desperate Letter from Guantánamo by Adnan Latif: “With All My Pains, I Say Goodbye to You” « Eurasia Review says...

    [...] Hassan Odaini, a patently innocent man who won his habeas corpus petition last May, and was released in July — the administration has refused to break its moratorium, providing additional safeguards to [...]

  10. Habeas Hell: How The Great Writ Was Gutted At Guantánamo « Eurasia Review says...

    [...] had been recruited in Yemen — every successful habeas petition by a Yemeni (with the exception of Mohammed Hassan Odaini, a student whose clearly mistaken detention was picked up by the mainstream media) has been [...]

  11. Judges Rule Evidence Not Necessary To Hold Guantánamo Prisoners For Rest Of Their Lives – OpEd « Eurasia Review says...

    [...] one, and, similarly, no one blinked when every Yemeni who won his habeas corpus petition — with one heroic exception — subsequently had his successful petition [...]

  12. Guantánamo: Mocking the Law | Amauta says...

    [...] one, and, similarly, no one blinked when every Yemeni who won his habeas corpus petition — with one heroic exception — subsequently had his successful petition [...]

  13. Guantanamo: Jemeniten schon bis zu 7 Jahre eingekerkert « Ticker says...

    [...] January 2010, just one Yemeni has been freed – a patently innocent man, who also won his habeas corpus petition – while, in general, [...]

  14. As Judges Kill Off Habeas Corpus For Guantánamo Prisoners, Will Supreme Court Act? says...

    [...] five of the remaining 14 have been released. Two of these men — Alla Ali Bin Ali Ahmed and Mohammed Hassan Odaini — were freed after convincingly winning their habeas corpus petitions, and the others were freed [...]

  15. American Gulag: Evidence Is Not Necessary to Hold Guantánamo Prisoners for the Rest of Their Lives (Andy Worthington) says...

    [...] and, similarly, no one blinked when every Yemeni who won his habeas corpus petition — with one heroic exception — subsequently had his successful petition [...]

  16. freedetainees.org – The Guantánamo Experiment: A Harrowing Letter By Yemeni Prisoner Emad Hassan says...

    […] Many of the men seized in the house raid have since been released (see here, here, here and here). […]

  17. The Guantanamo Experiment & A Collective Test of Human(e) Traits | THE YIN FACTOR says...

    […] Many of the men seized in the house raid have since been released (see here,here, here and here). […]

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