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Judge Colleen Kollar-Kotelly critical of detainee “confession”

Federal District Judge Colleen Kollar-Kotelly

Federal District Judge Colleen Kollar-Kotelly

With a Hat Tip to Neal Sonnett– Lyle Denniston over at SCOTUSblog brings to our attention a recently-declassified opinion by Judge Colleen Kollar-Kotelly in a detainee habeas case, Al Rabiah v. U.S. During the course of the opinion Judge Kollar-Kotelly makes it clear that the evidence supporting that the argument that Al Rabiah should be detained indefinitely was simply insufficient. To quote just the beginning of the opinion:

Petitioner Fouad Mahmoud Al Rabiah (“AI Rabiah”) has been detained by the United States Government at the Guantanamo Bay Naval Base in Cuba since 2002. The evidentiary record on which the Government seeks to justify his indefinite detention is surprisingly bare. The Government has withdrawn its reliance on most of the evidence and allegations that were once asserted against Al Rabiah, and now relies almost exclusively on Al Rabiah’s “confessions” to certain conduct. Not only did Al Rabiah’s interrogators repeatedly conclude that these same confessions were not believable – which Al Rabiah’s counsel attributes to abuse and coercion, some of which is supported by the record – but it is also undisputed that AI Rabiah confessed to information that his interrogators obtained from either alleged eyewitnesses who are not credible and as to whom the Government has now largely withdrawn any reliance, or from sources that never even existed. Far from providing the Court with credible and reliable evidence as the basis for Al Rabiah’s continued detention, the Government asks the Court to simply accept the same confessions that the Government’s own interrogators did not credit, and to ignore the assessment [REDACTED]

Based on this record (or more accurately, in spite of it), the Government asserts that it has the authority to detain Al Rabiah pursuant to the Authorization for the Use of Military Force, Pub. L. No.1 07-40, § 2(a), 115 Stat. 224, 224 (2001) (“AUMF”), which authorizes the use of force against certain terrorist nations, organizations, and persons. Al Rabiah believes he is unlawfully detained and has filed a petition for a writ of habeas corpus.
In connection with its inquiry into whether Al Rabiah is lawfully detained, the Court has considered the factual evidence in the record, the extensive legal briefings submitted by the parties, and the arguments presented during a four-day Merits Hearing held on August 26-28, 2009, and August 31, 2009, during which the parties proffered evidence based on the written record and did not present any live testimony.    Based on the foregoing, the Court concludes that Al Rabiah’s uncorroborated confessions are not credible or reliable, and that the Government has failed to provide the Court with sufficiently credible and reliable evidence to meet its burden of persuasion. If there exists a basis for Al Rabiah’s indefinite detention, it most certainly has not been presented to this Court.    Al Rabiah’s petition for habeas corpus is GRANTED. (footnote omitted)

As Denniston notes, “[o]f the 38 decisions so far by federal judges implementing the Supreme Court’s mandate in Boumediene v. Bush to test the legality of Guantanamo Bay detentions, the most critical assessment of government evidence has just emerged, in Al Rabiah v. U.S. . . .” True enough! It will be interesting to see if similar critiques are written in subsequent habeas cases.

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.