Miscarriage of Justice?

The allegations levied against Khaled al Mutayri are serious. At Gitmo, the government alleged that al Mutayri was trained by Lashkar-e-Taiba, the al Qaeda-affiliated terrorist group based in Pakistan, and that he traveled to Afghanistan for jihad just days after the September 11 attacks.

Moreover, the government amassed evidence from a variety of different sources to demonstrate al Mutayri’s ties to al Qaeda and al Qaeda-affiliated organizations. This evidence included pieces of captured al Qaeda media, as well as other documents, found at al Qaeda safehouses. It also included reporting from the Kuwaiti government, which has reportedly sponsored efforts to free Kuwaitis detained at Gitmo, including al Mutayri. And perhaps most importantly, this evidence includes a key admission al Mutayri made during his hearings at Gitmo.

All of this is hard to explain away. In fact, al Mutayri’s explanation for how and why he traveled to Afghanistan is, on its face, hard to believe.

Khaled al Mutayri left his home in Kuwait for Afghanistan a little more than one week after the September 11 attacks. During his administrative review board (ARB) hearing at Gitmo, al Mutayri claimed he was blissfully unaware that he was walking into what was about to become a war zone. Instead, al Mutayri said he was simply planning to help build a mosque and engage in other charitable acts.

The timing of al Mutayri’s supposedly charitable journey is, of course, suspicious. The route al Mutayri chose to get to Afghanistan is as well. Al Mutayri traveled first to Iran, and specifically the city of Mashhad. From there, he took a car over the Afghan border. The Mashhad “rat line” is a common transit route utilized by al Qaeda. The thousands of pages of unclassified documents created at Gitmo are littered with references to al Qaeda’s use of Mashhad as a weigh station.

Then, there is the sizable amount of cash al Mutayri carried with him: $15,000. Al Mutayri was asked about this large sum during his ARB hearing. He said that he saved up the money over time, and carried it in the form of $100 bills in his bag.

In the course of his back and forth with Gitmo authorities, al Mutayri readily admitted that he met with and gave a portion of this money to al Wafa–an Islamic “charity” that is really a front for al Qaeda. Al Wafa has been designated a terrorist organization by both the U.S. and the UN.

Al Mutayri said that just because he donated money to al Wafa, it doesn’t mean that he was working with the organization. From the DOD’s transcript of al Mutayri’s ARB hearing (see here and here):

The DOD’s transcript reads (see here and here):

It should be noted that al Wafa members working for al Qaeda routinely used the Mashhad “rat line” when traveling to and from Afghanistan. Thus, al Mutayri just happened to use the same transit route utilized by al Wafa members while carrying $15,000 in cash, some of which admittedly ended up in the hands of al Wafa. His claim that he “didn’t know the organization” before he left is therefore dubious.

Furthermore, al Mutayri claimed that he did not get to spend all of the $15,000. He said some of the money and his passport were stolen. The part about the passport is particularly important because U.S. authorities later found that it was stored in an al Qaeda safety deposit box. U.S. intelligence authorities have noted:

During his ARB hearing, al Mutayri was asked: “Do you have any idea why the thief would put your passport in a safe deposit box that is associated with Al Qaeda operatives?”

He responded, “I don’t know the purpose. I would lie to you if I say. They stole my passport. I don’t know.”

Of course, al Qaeda terrorists typically turn in their passports to their handlers upon arriving in Afghanistan or northern Pakistan. It is one of al Qaeda’s routine security protocols. Al Qaeda terrorists take on new jihadist identities, making it difficult to piece together their past should they be captured and cementing their ties to the jihadist brotherhood.

The list recovered in Karachi is not the only piece of hard evidence captured from al Qaeda’s safe houses that implicates al Mutayri. His name also appears “on a list of Arabs incarcerated in Pakistan which was recovered in a suspected al Qaeda safe house in Islamabad, Pakistan,” the government claims. The list was apparently created between March 2001 and January 2002.

The government also says al Mutayri’s “name and phone number are on a list of captured Mujahedin found on a hard drive associated with a senior al Qaeda operative” as well. That list was “seized in March 2003 in Pakistan.” Finally, al Mutayri’s “name and alias are on a list of 324 names recovered from safe house raids associated with suspected al Qaeda in Karachi, Pakistan.”

Taken together, the government’s files indicate that at least four of al Qaeda’s own internal documents counted al Mutayri among the terrorist organization’s ranks. A fifth document mentioned in the government files similarly counts al Mutayri as one of al Qaeda’s members, but the provenance of this document is not entirely clear.

Perhaps al Mutayri and his defense attorneys offered some creative explanation for how his name and information repeatedly appeared on al Qaeda’s lists. It is not possible to know, at this point, how the judge ruled that none of these lists counted against al Mutayri.

But there is one other particularly noteworthy aspect of the government’s unclassified files on Mutayri. Intelligence authorities at Gitmo have noted:

Another memo produced by the U.S. government, and undoubtedly referencing intelligence received from Kuwait, reads:

Still another allegation levied against al Mutayri notes that this same foreign government (Kuwait) identified al Mutayri as a “possible” associate of Abu Ghaith, a Kuwaiti who served as Osama bin Laden’s top spokesman for a time.

Intriguingly, al Mutayri claims he worked for Kuwait’s interior ministry. If true, this means that the Kuwaiti government has compiled evidence against one of its own. (It should be remembered that various al Qaeda terrorists managed to work for governments throughout the Arab world at various times.)

What’s even more intriguing, as documented by Debra Burlingame, the Kuwaiti government has funded human rights groups and lawyers who have lobbied for the release of Kuwaiti citizens from Gitmo. Namely, the Kuwaiti government sponsors the detainees’ families, who have supposedly paid the legal bills. Those families, in turn, have passed on the government’s funds to the law firm Shearman & Sterling. This same law firm, which has received millions of dollars for its efforts and claims the Kuwaiti funds go to charity, has even represented Khaled al Mutayri.

Thus, the Kuwaiti government is far from being a pushover for American intelligence when it comes to Gitmo. The Kuwaiti’s efforts have even led to hardened ideologues being freed from Gitmo so they can return to terrorism.

That the duplicitous Kuwaiti government, which so often works against American interests when it comes to Gitmo, has itself identified al Mutayri as an al Qaeda associate and a “hardcore extremist” is difficult to dismiss out of hand.

Again, we cannot know for certain how Judge Kollar-Kotelly weighed all of this evidence or came to her conclusion that al Mutayri should be released. We do know that there are good reasons for the U.S. government to believe al Mutayri is an al Qaeda terrorist.

Thomas Joscelyn is a senior fellow at the Foundation for the Defense of Democracies.