Federal appeals court judges on Tuesday rejected what they described as a Guantanamo Bay detainee’s “Forrest Gump” defense, finding it unlikely he was an innocent who repeatedly just happened to find himself at multiple hot spots in the war on terror.
Uthman Abdul Rahim Mohammed Uthman of Yemen won a lower-court decision granting his release after more than nine years at the U.S. naval prison for terror suspects in Cuba. But the three-judge appellate panel unanimously overturned that ruling.
Uthman says he was mistaken as an al Qaeda fighter fleeing U.S. bombardment of Tora Bora when he was captured at the Afghan-Pakistani border in December 2001. The U.S. government says Uthman was one of Osama bin Laden’s bodyguards and fought against anti-Taliban forces, claims he denied.
Uthman said he went to Afghanistan to teach the Koran and was doing so in Kabul on Sept. 11, 2001. He said he fled after the U.S. began fighting the Taliban regime that had harbored bin Laden, but instead of taking the direct route to Pakistan he followed his interpreter south through the mountainous region toward Tora Bora.
Bin Laden had relocated to Tora Bora as al Qaeda gathered for a major battle against U.S. forces and Afghan allies and where Uthman says he happened to meet up with some schoolmates with whom he was later captured.
The school they had attended was the Furqan Institute, a religious school in Yemen where al Qaeda had recruited fighters. Among those schoolmates in Uthman’s group were two admitted bin Laden bodyguards and a Taliban fighter.
The court also found that Uthman traveled to Afghanistan along a route used by al Qaeda recruits and was seen at an al Qaeda guesthouse. Uthman said none of that proved he was a member of al Qaeda.
“Uthman’s account piles coincidence upon coincidence upon coincidence,” the appeals court wrote. “Here, as with the liable or guilty party in any civil or criminal case, it remains possible that Uthman was innocently going about his business and just happened to show up in a variety of extraordinary places - a kind of Forrest Gump in the war against al-Qaida. But Uthman’s account at best strains credulity.”
U.S. District Judge Henry Kennedy Jr. had ruled that the U.S. government did not prove that Uthman received and executed orders from al Qaeda, the so-called “command structure test.”
But since that ruling, the appeals court has rejected that standard for determining whether a detainee was al Qaeda - which is not a uniformed military with a formal command structure - and told judges to look at each detainee’s actions individually to determine whether he was a member of the terrorist group.
The appeals court also found Uthman’s version suspicious because he claimed he paid for his travel to Afghanistan himself primarily by working summers selling food at a roadside shack. But the government argued Uthman would have had to earn more than three times the average Yemeni’s annual income in only a few summers of unskilled work.
According to a count by the Justice Department, judges in the Washington federal court have now ordered the release of 34 detainees and ruled that 21 are being properly held. But many of those who have won their right to release nevertheless remain at Guantanamo Bay because no country will accept them.
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