WASHINGTON — A Kuwaiti detainee at Guantanamo Bay is mounting a novel legal challenge to win his release, arguing in a federal lawsuit that he should be freed when U.S. combat troops pull out of Afghanistan because international law stipulates that prisoners of war be returned home once a conflict is over.
The lawsuit is the latest attempt in a 12-year struggle by the Odah family of Kuwait to secure the release of a dozen Kuwaiti young men who were captured in Afghanistan after the Sept. 11, 2001, attacks and brought to the terrorist prison in Cuba.
Though 10 have been released over the years, two remain in Guantanamo, including Fawzi Odah, 36, who is the son of Khalid Odah, a U.S.-trained Kuwaiti air force colonel who worked with American troops in the 1991 Gulf War to help organize his country's resistance against Iraq.
The Odah family maintains that Fawzi Odah was captured after performing charitable work in Afghanistan. His father has told The Times that Fawzi was helping refugees in Afghanistan when U.S. bombs struck the area. Fawzi and the others were mistakenly arrested in the post-Sept.11 chaos and taken to Guantanamo, the family says.
Pentagon and intelligence officials, however, said Fawzi Odah was captured in late 2001 by a Pakistani militia near the Tora Bora mountains, where U.S. troops had been searching for Al Qaeda leader Osama bin Laden. Fawzi Odah was carrying an AK-47 assault rifle, had sworn allegiance to Bin Laden and was working as a recruiter for a London-based terrorist cell, U.S. officials say.
According to Odah's lawsuit, announced Monday, the Geneva Conventions require that prisoners be released at the end of fighting or the "cessation of active hostilities." The releases are to be immediate, the suit states, and not postponed by the absence of a formal peace treaty, proclamation or armistice.
That means Fawzi Odah could be released by the end of 2014, the suit claims, citing President Obama's declaration in last week's State of the Union address that "by the end of the year, America's longest war will finally be over."
Justice Department officials have asked U.S. District Judge Colleen Kollar-Kotelly in Washington to dismiss the suit, saying it is premature because U.S. combat troops are still in Afghanistan. They said the completion of U.S. combat operations in Afghanistan "cannot be known at this time" and might not occur as anticipated by the Obama administration, if at all, the department said in legal briefs.
"It is inappropriate to engage in speculation at this time as to the timing of the future end of hostilities," they said in their filing.
Washington attorney Tim MacArthur, who practices military law and serves as a reserve military attorney, said the suit was unique but a long shot.
"The global war on terror is not over just because U.S. troops will be coming out of Afghanistan," he said. "It's a very novel concept to file that and make that particular argument, but I'm not sure it will prevail as the United States interprets the international rule of law."
Turning to U.S. courts has worked for other detainees. Salim Hamdan, a Yemeni driver and Bin Laden bodyguard who was facing a military trial, was released after winning a Supreme Court decision that invalidated the military commissions because they had not been authorized by Congress. He was set free in 2008; the U.S. Appeals Court in Washington overturned his conviction on lesser charges.
Yaser Esam Hamdi, born in the U.S., was deported to Saudi Arabia after renouncing his American citizenship; he was released after the Supreme Court, ruling in his lawsuit in 2004, rejected the government's desire to hold him without trial.
Odah, in his lawsuit, cites support from an opinion by Supreme Court Justice Anthony M. Kennedy, a moderate who has often been the swing vote on controversial cases.
"The detainees at Guantanamo Bay are being held indefinitely and without benefit of any legal proceeding to determine their status," Kennedy said in a 2004 case brought by detainee Shafiq Rasul, a British citizen. "As the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker."
In that case, the court ruled that foreign nationals had a right to turn to U.S. courts, and Rasul was released.
Fawzi Odah's father set up a committee to help free his son and 11 other Kuwaitis being held in Cuba. So far, 10 have been sent home after they were deemed to be no longer a threat.
But one of those — Abdullah Saleh Ali Ajmi, who was released in 2005 after three years in Guantanamo — died as a suicide bomber during a 2008 attack in the Iraqi city of Mosul.
The other Kuwaiti still in Guantanamo is Fayez Kandari, described in U.S. records as a former "advisor and confidant" to Bin Laden with "numerous connections to senior Al Qaeda members." He also likely "had advanced, though probably limited, knowledge" of the Sept. 11 attacks.
Christopher Cooper, an advocate who has been working with Odah's legal team, said the years had been hard on Odah's father, who believed his work supporting U.S. troops in 1991 entitled the family to leniency for their son.
"It's tragic that he organized all this," Cooper said, "and it's his kid who's one of the last two still in there."