A U.S. appeals court Friday ruled that a federal judge was too quick to order the Pentagon to free a Mauritanian captive who joined and then quit al-Qaida, and was subsequently abused by military interrogators at Guantanamo.
U.S. District Judge James Robertson on March 22 ordered the release of Mohamedou Ould Salahi, 39, 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 is enough to confine a captive indefinitely at Guantanamo.
Among those questions it wanted answered was Salahi's responsibility for introducing others to the terror organization.
"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-Qaida operatives that he would refer prospective jihadists to the organization?" wrote Judge David Tatel for Chief Judge David Sentelle and Judge Janice Rogers Brown.
At issue in part is the federal court's evolving definition of who among the 170 or so captives at Guantanamo can be held indefinitely without charge for some association with al-Qaida.
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 Guantanamo 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 Salahi 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 Salahi hosted the three men for one night at his home in Germany.
Salahi has admitted he swore loyalty to al-Qaida 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 Salahi'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-Qaida when captured."
The appeals panel said the district court may need to seek more testimony in order to complete its analysis.
The United States relied on Salahi's admissions to make its case but excluded three months of Guantanamo interrogations when Salahi was subjected to "special interrogation techniques" approved by Defense Secretary Donald Rumsfeld.
Both Defense Department and congressional probes found that Salahi was subjected to sleep deprivation, exposure to extremes of heat and cold, and taken into Guantanamo Bay on a boat and threatened with death. Investigators also found that interrogators had told him they'd jail his mother as the only female detainee at Guantanamo if he did not cooperate.
The interrogations were so abusive that a highly regarded Pentagon lawyer, Marine Lt. Col. Stuart Couch, quit the case five years ago rather than prosecute him during the Bush administration's first effort to stage military commissions.
Only one of the 174 captives at Guantanamo is currently charged before a military commission, Noor Uthman Mohammed of Sudan. Three others are held as war court convicts.
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