A U.S. appeals court Friday ruled that a federal judge was too quick to order the Pentagon to free a Guantanamo detainee who joined and then quit al Qaeda, and was subsequently abused by military interrogators at Guantanamo.
U.S. District Judge James Robertson on March 22 ordered the release of Mohamedou Slahi, 39, a Mauritanian who lived in Germany and Canada as a computer technician.
A three-judge panel of the U.S. Court of Appeals for the Washington D.C. circuit ordered Robertson to undertake more review and possibly take more testimony to consider how many past ties to the terror group are enough to confine a captive indefinitely at Guantánamo.
Among those questions it wanted answered was Salahi's responsibility for introducing others to the terror organization.
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"Does the government's evidence support the inference that even if Salahi was not acting under express orders, he nonetheless had a tacit understanding with al Qaeda operatives that he would refer prospective jihadists to the organization?'' wrote Judge David Tatel for Chief Judge David Sentelle and Judge Janice Rogers Brown. The judge used an alternate spelling of Slahi's name.
At issue in part is the federal court's evolving definition of who among the 170 or so captives at Guantánamo can be held indefinitely without charge for some association with al Qaeda.
Salahi faces no criminal charges, Robertson wrote in his ruling, because his file is "so tainted by coercion and mistreatment, or so classified, that it cannot support a successful criminal prosecution.''
He arrived at Guantánamo in August 2002, nearly a year after he turned himself in for questioning in his native Mauritania in late September 2001 and found himself handed over first to Jordan for interrogation and then to U.S. forces in Afghanistan.
The 9/11 Commission Report tied Slahi to the 9/11 plot.
But Robertson ruled in March that the Obama administration never demonstrated in court that Salahi had recommended paramilitary training in Afghanistan for two of the 9/11 hijackers and an alleged plotter, Ramzi bin al Shibh, while the four were living in Hamburg, Germany.
Rather, the judge ruled, the government showed only that Slahi hosted the three men for one night at his home in Germany.
Slahi has admitted he swore loyalty to al Qaeda in the early 1990s.
Robertson ruled that while he may have remained a sympathizer he was providing no support to the organization in late 2001. He also found that Slahi's contacts with various terrorism suspects in the decade before his capture ``are too brief and shallow to serve as an independent basis for detention.''
Tatel wrote that Robertson was too narrow in his analysis, limiting it to whether "Salahi participated in al Qaeda's command structure.'' Robertson, Tatel said, "did not make definitive findings regarding certain key facts necessary for us to determine as a matter of law whether Salahi was in fact `part of' al Qaeda when captured.''
The appeals panel said the district court may need to seek more testimony in order to complete its analysis.
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