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Guantanamo detainee loses latest legal challenge

  • Story Highlights
  • Judge denies suspect's demand that U.S. justify his detention
  • Fawzi al-Odah admits being at Taliban camp on September 11, 2001
  • His legal challenge in federal court was oldest of Guantanamo appeals
  • Supreme Court twice ruled in his favor on broad constitutional questions
By Bill Mears
CNN Supreme Court Producer
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WASHINGTON (CNN) -- An accused terrorist who was at the center of two previous Supreme Court decisions over his years-long detention by the U.S. military has lost his latest legal challenge.

More than 200 men remain at the U.S. detention facility at Guantanamo Bay, Cuba.

More than 200 men remain at the U.S. detention facility at Guantanamo Bay, Cuba.

A federal judge on the U.S. District Court for the District of Columbia has ruled that Fawzi al-Odah of Kuwait can be held at the Guantanamo Bay detention facility in Cuba, denying his petition for habeas corpus, which had demanded that the government justify his imprisonment.

In a ruling released by the court Tuesday, Judge Colleen Kollar-Kotelly offered a more restrictive view of executive authority to indefinitely detain terrorist suspects than the Obama and Bush administrations had offered.

Nevertheless, she said, "the government has met its burden to show by a preponderance of the evidence that al-Odah became part of the Taliban and al-Qaeda forces."

The judge said she carefully weighed the evidence presented by the Justice Department against al-Odah and "whether the individual functions or participates within or under the command structure of the organizations -- i.e., whether he received and executes orders of directions." Kollar-Kotelly found that the Kuwaiti native belonged in that category.

Al-Odah has admitted that he was at a Taliban camp in Afghanistan when the terror attacks on U.S. soil occurred September 11, 2001, and that he met with and traveled with armed Muslim fighters. He was captured during the battle of Tora Bora in Afghanistan in late 2001 and transferred to U.S. military custody.

"The court concludes that the only reasonable inference is that al-Odah made conscious decisions to become a part of the Taliban's forces, and not that he became innocently ensnared in fighting after unsuccessfully attempting to leave the country," the judge wrote. "He moved ever closer to the fighting and repeatedly accepted directions from those affiliated with the Taliban."

His legal challenge in federal court was the oldest of Guantanamo appeals. His litigation has been floating around various courts for more than seven years, but only recently have the merits of his claims for relief been closely examined.

The Supreme Court had ruled in 2004 that al-Odah had a basic right to challenge his detention in U.S. courts. The justices made no judgment on whether that detention violated international laws or was unconstitutional or whether his particular claims had merit.

It was the first test of the government's authority to detain indefinitely and prosecute those captured in the ongoing war on terror.

In a subsequent 2008 ruling by the justices, al-Odah again prevailed on the broader constitutional questions. The court struck down a federal law that would have restricted the ability of detainees to challenge their detention and the power of federal courts to hear such appeals.

"The laws and Constitution are designed to survive, and remain in force, in extraordinary times," Justice Anthony Kennedy wrote for the 5-4 majority in the pair of cases, Boumediene v. Bush and al-Odah v. United States. "Liberty and security can be reconciled; and in our system reconciled within the framework of the law."

About 226 men remain at the Guantanamo prison. Several are being prosecuted for war crimes by the military, and dozens more have been transferred over the years to other countries or released. President Obama has ordered the detention facility closed by January.

Al-Odah's future remains unclear, although the latest ruling clears the way for his prosecution.

Although the judge allowed for the prisoner's continued detention, she signaled in her ruling that some of the "hearsay" evidence presented by prosecutors may not hold up at trial.

The government had sought a legal standard that such evidence gathered on the battlefield against suspected terrorists should be presumed as accurate and authentic, limiting perhaps the defendant's ability to challenge it as he might in a civilian criminal trial.

That might include statements made by other detainees or confessions that may have been gathered under physical or mental duress by a suspect's captors. Kollar-Kotelly found in this stage of the legal fight, the evidence presented met a basic standard of reliability.

The civil case is al-Odah v. U.S. (02-828).

All About TerrorismGuantanamo BayU.S. Supreme Court

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