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D.C. Circuit Vacates Order Releasing Gitmo Detainee

(CN) - The D.C. Circuit on Friday vacated a judge's order releasing a Guantanamo detainee accused of recruiting two 9/11 hijackers, citing the need for "additional fact-finding" to determine if the West African man was "part of" al-Qaida when he was captured in 2001.

In March, U.S. District Judge James Robertson granted Mohamedou Ould Salahi's habeas petition, saying the government can't hold him indefinitely based on a loyalty oath he swore to al-Qaida in 1991, when Islamic rebels were fighting to overthrow Afghanistan's Soviet-supported government.

Salahi claimed to have cut ties with the terrorist organization in 1992, but the government said he continued to help al-Qaida by hosting its leaders, helping it buy telecommunications equipment, transferring money, and even recruiting two future 9/11 hijackers and a third man who became a 9/11 coordinator.

He also actively supported his cousin, one of Osama bin Laden's spiritual advisers, and had connections with an al-Qaida cell in Montreal, according to the government.

Judge Robertson noted that much of the evidence against the Mauritanian native was "so tainted by coercion and mistreatment ... that it cannot support a successful criminal prosecution."

He concluded that although Salahi "was an al-Qaida sympathizer," he was not "part of" the organization when he was captured, because the government failed to prove that he still received and executed orders from within al-Qaida's "command structure."

But the federal appeals court in Washington, D.C., pointed out that three of its recent rulings -- Al-Adahi v. Obama, Bensayah v. Obama and Awad v. Obama -- "cast serious doubt on the district court's approach to determining whether an individual is 'part of' al-Qaida."

Specifically, Judge Robertson relied too heavily on the government's lack of proof that Salahi received marching orders from the group's command structure, the D.C. Circuit said.

"Evidence that an individual operated within al-Qaida's command structure is 'sufficient but is not necessary to show he is 'part of' the organization,'" Judge David Tatel wrote, quoting the court's decision in Awad.

"The problem with the district court's decision is that it treats the absence of evidence that Salahi received and executed orders as dispositive," Tatel added.

The government had urged the court to reverse the release order with instructions to deny Salahi's habeas petition, but the D.C. Circuit chose instead to vacate the order and send the case back to Judge Robertson for "additional fact-finding."

"Because the district court, lacking the guidance of these later decisions, looked primarily for evidence that Salahi participated in al-Qaida's command structure, it did not make definitive findings regarding certain key facts necessary for us to determine as a matter of law whether Salahi was in fact 'part of' al-Qaida when captured," Tatel explained.

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