After being arrested on July 20, 2002, Afghan national Obaydullah, who today is 29 or 30 years old, was brought to Bagram Air Base before being transferred for detainment at Guantánamo Bay, Cuba. Charges were not sworn against him until September 9, 2008.
At that point, he was charged in a military commission with storing and concealing explosive devices including anti-tank mines and related equipment as well as with concealing a notebook that explained how to wire and detonate explosive devices, on or around July 22, 2002.
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In connection with these charges, military prosecutors allege that from about October of 2001 until about July 22, 2002, he worked with others in or near Khost, Afghanistan as an “enemy combatant” providing material support to terrorism, conspiring to murder, and causing serious bodily injury in violation of the laws of war. On his charge sheet, prosecutors allege that Obaydullah “knew or intended that said material support and resources were to be used in preparation for and in carrying out a terrorist act.”
In August of 2005 at an Administrative Review Board proceeding, Obaydullah retracted a previous confession to the charges against him, stating that he had conceded to the charges only out of fear inspired by his treatment while detained at Bagram. “They were standing me on the wall and my hands were hanging above my head,” the transcript from the proceeding quotes. “There were a lot of things they made me say.” He also described being threatened with a knife held to his throat and suffering from forced sleep deprivation. While U.S. military officers allege that over twenty anti-tank mines intended for use against U.S. troops were found at his family’s home in Khost, Obaydullah describes that while Afghanistan was under Soviet rule, an Afghan commander who lived at the house brought the mines there. The notebook containing illustrations regarding wiring and detonation of explosive devices, he stated, was from two days that he was forced to spend in a Taliban training camp before he escaped and went into hiding.
Since charges were brought against him in September of 2008, Obaydullah has never stepped foot in a military commission courtroom. However, on January 6, 2010, the Justice Department disclosed that his prosecution via military commission had been approved. Despite the fact that Obaydullah’s attorneys have advocated that he be tried in federal court, Judge Richard Leon has ruled that his habeas case not be subject to civilian review so long as he is approved to stand trial by military commission. It is uncertain exactly when his pre-trial hearings in the military commissions will begin.
On February 23, 2010 a hearing was held regarding Obaydullah’s appeal that the court allow his habeas case to go forward despite the fact that he is awaiting trial by military commission. A press release from his defense counsel stated, “Obaydullah is appealing the stay of his habeas case and arguing that his case should go forward so he can challenge the government’s evidence, which he and his attorneys have never seen. The government argues that the habeas proceedings should remain stayed because the federal court should defer to the military justice system, even though it has refused to start Obaydullah’s military commission. This case, which tests the reach and strength of Boumediene, may very well set precedent for several detainees who will be prosecuted in military commissions.”
In a decision released on June 18, 2010, the DC Circuit Court of Appeals reversed the order of the District Court that Obaydullah’s habeas case be stayed. The Circuit Court found that even though charges were pending against Obaydullah in military commissions, the “prolonged delay in adjudicating his petition is inconsistent with the Supreme Court’s teaching in Boumediene v. Bush that a detainee at Guantanamo Bay is entitled to a prompt habeas corpus hearing.” The case was remanded to the District Court.
Arguments were made before the DC Circuit Court for Obaydullah’s habeas case on September 30, 2010, as he listened to a live translation at Guantanamo Bay. After a public session, the court was sealed for a closed-door session for each side to present relevant classified information. Arguments proceeded into October 1st. In a public decision dated October 19th, Judge Richard Leon denied Obaydullah’s habeas petition. He remains detained at Guantanamo Bay with charges pending and no scheduled hearings.