On Friday, Judge James Robertson released the unclassified version of his ruling granting the habeas petition of Guantanamo Bay detainee Mohamedou Ould Salahi, a Mauritanian national whose torture was approved by then-Secretary of Defense Donald Rumsfeld. Salahi has reportedly become an important intelligence source because of his early ties to al-Qaeda -- he swore a loyalty oath to the terrorist group in the early 1990s but left Afghanistan soon afterward. He has been in U.S. custody since 2001.
Jonathan Hafetz, an ACLU attorney who has litigated habeas cases on behalf of detainees, said that "the district court's ruling properly rejects the government's claim that it can exercise global dragnet detention authority and that it can do so, moreover, without any credible or reliable evidence."
Salahi is an interesting case because he's a fairly unsympathetic character. Aside from having fought alongside al-Qaeda in the battle of Gardez, he was friendly with convicted terrorist Christopher Paul, having sent him a fax in 1997 asking for advice on where he could direct would-be terrorists. He made two $4,000 money transfers to his brother-in-law, Abu Hafs, whom he knew to be a member of al-Qaeda and an associate of Osama bin Laden, although he says he was merely helping Hafs send money to his family. (Judge Robertson concluded that the money transfers do not amount to "material support" for terrorism.) Salahi also allowed one of the alleged 9/11 planners, Ramzi bin al-Shibh, and two of the eventual hijackers to stay at his home in Germany in 1999, according to the U.S. government. Salahi may have also provided some logistical support to an al-Qaeda cell in Canada in 2001.
But all in all, Robertson concludes that Salahi appears to have been an al-Qaeda flunkie. There's little strong evidence that he was an active member of al-Qaeda beyond 1992, even though he appears to have been a sympathizer who certainly didn't mind the company of terrorists. He was also willing to do al-Qaeda the odd favor, particularly when it came to his brother-in-law.
The problem for the government is that it's not clear Salahi committed a crime. The government could charge him criminally (most likely with material support for terrorism), but because Salahi was tortured, and the statements of witnesses that corroborate the government's accusations may have been gleaned through torture, convicting him might be hard. Sen. Kit Bond, the ranking Republican on the Intelligence Committee, has called for Salahi to be detained indefinitely -- but it's only because of Republican-supported torture policies that Salahi can't be criminally charged in the first place. As Robertson notes, "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." At the same time, he wrote that the concern that Salahi would join al-Qaeda after release "may indeed be well-founded."
In any case, here's my point: The law shouldn't get in the way of justice, but it also shouldn't be discarded simply because the case involves someone like Salahi who associated with bad guys. If he committed a crime, he should be charged. But there's a reason Judge Robertson ordered his release, after nearly a decade of detention: A lawful society doesn't indefinitely detain people on suspicion they might commit a crime in the future.
-- A. Serwer
