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decision granting Mohamedou’s habeas corpus petition and ordering his release came at a critical moment: as of April 1, 2010, the U.S. government had lost thirty-four out of forty-six habeas cases. In appeals of several of those cases, the government persuaded the DC Circuit Court of Appeals to accept a looser standard for judging whether a petitioner was “part of” al-Qaeda; now, as the appellate court explained in reversing Judge Robertson’s order and remanding the case to district court for rehearing, the government no longer needed to show that a Guantánamo prisoner was carrying out al-Qaeda orders or directions at the time he was taken into custody.
    In its opinion, the appeals court was careful to delineate “the precise nature of the government’s case against Salahi.” “The government has not criminally indicted Salahi for providing material support to terrorists or the ‘foreign terrorist organization’ al-Qaida,” the court emphasized. “Nor,” it added, “does the government seek to detain Salahi under the AUMF on the grounds that he aided the September 11 attacks or ‘purposefully and materially support[ed]’ forces associated with al-Qaeda ‘in hostilities against U.S. Coalition partners.’ ” Rather, when Mohamedou’s habeas corpus case is reheard in federal court, the government will likely again be arguing that his sporadic interactions with active al-Qaeda members in the 1990s mean that he too remained a member. Under the new standard, the court wrote, “Even if Salahi’s connections to these individuals fail independently to prove that he was ‘part of’ al-Qaida, those connections make it more likely that Salahi was a member of the organization when captured and thus remain relevant to the question of whether he is detainable.” 30
    Ironically, when a district court rehears the case, the government will likely face questions about what it has always contended is the most damaging of those connections, Mohamedou’s relationship with his cousin and brother-in-law Abu Hafs. As a member of bin Laden’s Shura Council, Abu Hafs had a $5 million bounty on his head from the United States in the late 1990s, a figure that increased to $25 million after the September 11, 2001, terrorist attacks. For years, though, the United States has known that Abu Hafs opposed those attacks; the 9/11 Commission reported that he “even wrote Bin Laden a message basing opposition to those attacks on the Qur’an.” After the attacks, Abu Hafs left Afghanistan for Iran, where Iranian authorities placed him under a soft form of house arrest for more than a decade. In April 2012, Iran repatriated Abu Hafs to Mauritania. He was held for two months in a Mauritanian prison, during which he reportedly met with an international delegation that included Americans, condemned the 9/11 attacks, and renounced his ties to al-Qaeda. He was released in July 2012 and has been living since then as a free man.
    I have not met Mohamedou Ould Slahi. Other than sending him a letter introducing myself when I was asked if I would help to bring his manuscript to print—a letter I do not know if he received—I have not communicated with him in any way.
    I did request to meet with him at least once before submitting the completed work to make sure my edits met with his approval. The answer from the Pentagon was brief and absolute. “Visiting or otherwise communicating with any detainee in the detention facility in Guantanamo, unless you are legal counsel representing the detainee, is not possible,” a public affairs officer wrote.“As you are aware, the detainees are held under the Law of War. Additionally, we do not subject detainees to public curiosity.”
    The phrase “public curiosity” comes from one of the pillars of the Law of War, the 1949 Geneva Convention Relative to the Treatment of Prisoners of War. Article 13 of the convention, “Humane Treatment of Prisoners,” says:
    Prisoners must at all times be