Tom Joscelyn on Al Kandari

By Benjamin Wittes
Monday, August 29, 2011, 7:35 AM

Over at the Weekly Standard's blog, Thomas Joscelyn has this piece critiquing a CNN report on Fayiz Mohammed Ahmed Al Kandari, whose habeas case we have covered here. I haven't dissected the CNN piece about which Joscelyn links, but having looked at it briefly, I do have to say that Kandari is a funny subject for an article about "the difficulties of establishing who may have had links with al Qaeda and similar groups in the chaotic aftermath of 9/11." Joscelyn's article opens:

There has been no shortage of articles written from the perspective of the Guantanamo detainees’ lawyers and advocates. The result, more often than not, is a wildly inaccurate picture. A piece (“Ten years on, Kuwaiti inmates fear indefinite Guantanamo detention”) published by Jenifer Fenton earlier this month is typical of the genre.

Fenton’s article features the story of a Kuwaiti Gitmo detainee named Fayiz Mohammed Ahmed Al Kandari (who was given the internment serial number 552). A D.C. district judge denied al Kandari’s petition for a writ of habeas corpus, citing the substantial evidence against him, in 2010. According to a leaked Joint Task Force Guantanamo (JTF-GTMO) threat assessment written in 2008, al Kandari was deemed a “high” risk to the U.S. and its allies. JTF-GTMO also recommended that al Kandari remain in detention. And al Kandari’s own lawyers told Fenton that it is “likely” the Obama administration has decided to detain him indefinitely. So the Obama administration, which approved for transfer 65 percent of the detainees remaining at Guantanamo as of January 2009, determined that al Kandari was too dangerous to return to Kuwait.

According to Fenton, however, al Kandari’s “case illustrates the difficulties of establishing who may have had links with al Qaeda and similar groups in the chaotic aftermath of 9/11, the strength of evidence against them, and whether they might remain or become a threat today if freed from detention.”

That is certainly true for some of the detainees who have been held at Guantanamo. It is not true for al Kandari.

Joscelyn has a point here. In her opinion in the Kandari case almost a year ago, here is how Judge Colleen Kollar-Kotelly summarized the evidence:

Petitioner Fayiz Mohammed Ahmed Al Kandari (“AI Kandari”) has been detained by the United States Government at the Guantanamo Bay Naval Base in Cuba since 2002. According to his own statements and admissions against interest, Al Kandari was in the mountains near Tora Bora, during the height of the Battle of Tora Bora, armed with a Kalishnikov rifle, and in the company of several members and high-level leaders of al Qaeda, the Taliban, or associated enemy forces, who were actively engaged in fighting the United States and its Coalition allies. Based on these admissions and other evidence in the record, the Government asserts that it has the authority to detain Al Kandari pursuant to the Authorization for the Use of Military Force, Pub. L. No. 107-40. § 2(a), 115 Stat. 224,224 (2001) (“AUMF”), which authorizes the use of force against certain terrorist nations, organizations, and persons. Al Kandari believes he is unlawfully detained and has filed a petition for a writ of habeas corpus. This civil proceeding requires the Court to determine whether or not Al Kandari’s detention is lawful. In connection with this inquiry, the Court has considered the factual evidence in the record, the extensive legal briefing submitted by the parties, and the arguments presented during a five-day Merits Hearing held on October 19-23,2009. The parties did not present any live testimony at the Merits Hearing, but Al Kandari did listen telephonically to the unclassified opening statements by his counsel and Government’s counsel. Based on the foregoing, the Court finds that the Government has met its burden to show by a preponderance of the evidence that Al Kandari became part of al Qaeda, the Taliban, or associated enemy forces. Accordingly, the Court shall DENY Al Kandari’s petition for habeas corpus.