By Spencer S. Hsu
Washington Post Staff Writer
Friday, September 17, 2010; 8:48 PM
A U.S. appeals court indicated Friday it would likely overturn a lower court ruling ordering the release of one of the highest-profile detainees at Guantanamo Bay, Cuba, because the government could not prove its suspicions he would renew ties with al-Qaeda.
A three-judge panel for the U.S. Court of Appeals for the D.C. Circuit suggested it would at least order a U.S. district judge to reconsider the case of Mohamedou Ould Slahi - a Mauritanian and a former resident of Germany - if not reverse his release outright, given a series of Guantanamo-related appellate rulings since then.
However, in hour-long arguments over the Obama administration's appeal, the judges mused aloud over a key question: How could Slahi ever prove that he quit al-Qaeda, even if the law requires that Guantanamo prisoners do so before being freed? Slahi could not have told al-Qaeda that he wanted to sever ties, Chief Judge David B. Sentelle noted, adding: "That would have gotten him killed."
The wrangling over whether Slahi - who was subject to harsh interrogation techniques - still qualified as an al-Qaeda member comes as a series of D.C. circuit opinions have clarified the criteria by which the U.S. government can detain an enemy combatant.
Earlier this year, U.S. District Judge James Robertson found that although Slahi swore allegiance to al-Qaeda and Osama bin Laden in 1991, the government did not prove he continued to support the group, requiring his release.
Slahi has said that he joined al-Qaeda to fight Afghanistan's communist government, a goal shared by the United States in the early 1990s, and that it was only after the start of the Persian Gulf War that bin Laden began to focus on U.S. targets.
On Friday, the appeals judges suggested that other court decisions since April required them to consider al-Qaeda membership and compliance with its "command structure" in a broader, "functional, not formalistic" sense than when Robertson ruled.
"Wouldn't it make sense" to return Slahi's case, asked Judge David Tatel, "so we have as consistent decision-making as possible?"
Slahi's lawyer, Theresa M. Duncan, acknowledged it might. But after the hearing Duncan said that the government is trying to justify the indefinite detention of her client by relying on "statements made under the coercive influence of some of the worst torture we know about at Guantanamo."
More than eight years after her client was detained and five years since he sued for his release, Duncan told the judges she hoped the court's move Friday would not require "starting from scratch," since Robertson has since retired.
Staff writer Peter Finn contributed to this report.