Federal judge orders release of five Guantanamo detainees

From Jurist:

A judge for the US District Court for the District of Columbia on Thursday ordered the release of five Algerian Guantanamo Bay detainees. In the first ruling on detainees’ rights since the June Supreme Court decision in Boumediene v. Bush , Judge Richard Leon  decided that the government’s evidence was insufficient to persuade him that the men were planning to travel to Afghanistan to join al Qaeda and therefore properly classed as “enemy combatants. To support the claim that the men planned to go to Afghanistan to fight, the government appears to have relied on a single document citing an unnamed source. Judge Leon described the document as tending to show at least something about each detainee’s knowledge of and desire to participate in such a plan, but concluded that the government had not provided sufficient information about this source to establish his/her credibility.

[W]hile the information in the classified intelligence report, relating to the credibility and reliability of the source, was undoubtedly sufficient for the intelligence purposes for which it was prepared, it is not sufficient for the purposes for which a habeas court must now evaluate it. To allow enemy combatancy to rest on so thin a reed would be inconsistent with this Court’s obligation under the Supreme Court’s decision in Hamdi to protect petitioners from the risk of erroneous detention. [emphasis in original]

So this document was sufficient as as an item of intelligence but was not a sufficient evidentiary predicate for detention. Earlier the government had dropped charges that the men had plotted to attack the US embassy in Bosnia. Leon ordered that a sixth detainee, Belkacem ben Sayah, remain in custody because the government’s evidence against him was sufficient to label him an enemy combatant. Here, the government relied not just on the above-mentioned document, but other intelligence reports “based on a variety of sources and evidence” which corroborated this claim. Judge Leon explained that the government’s evidence (i) linked Bensayah to al Qaeda in general and a senior al Qaeda facilitator in particular; (ii) established Bensayah’s capacity to travel internationally on false passports in multiple names; and (iii) tended to discredit Bensayah’s attempt to explain away the government’s allegations. From this, Judge Leon concluded that the government met its burden with respect to Bensayah in terms of showing both that he intended to go to Afghanistan to fight the US and also that he sought to help others travel to Afghanistan to do the same.

According to Judge Leon, “there can be no question” that this constituted “direct support” to al Qaeda, making him eligible for military detention. US Justice Department officials issued a statement indicating that they were “pleased” with the court’s decision to detain ben Sayah, but “disappointed” with the court’s decision to release the other detainees.

Leon began habeas corpus hearings for the six Algerians earlier this month.
In October, he ruled that in order to be validly held as “enemy combatants,” Guantanamo Bay detainees must have directly supported hostilities against the US or its allies, setting the standard which the government must use to justify their detention.

Transcript of the hearing here. (This transcript includes comments that were not included in the written order.)

Mukasey was obviously not so happy with the judgment, read his reaction in the Wall Street Journal here.

More details on scotus.

To conclude, Judge Leon hoped that an Uighur-scenario would be avoided:

“The Court appreciates fully that the Government has a right to appeal its decision as to these five detainees whose petitions I have granted. I have a right, too, to appeal to the senior-most leadership at the Department of Justice, Department of Defense, and the CIA and other intelligence agencies. My appeal to them is to strongly urge them to take a hard look at the evidence, both presented and lacking, as to these five detainees. Seven years of waiting for our legal system to give them an answer to a question so important, in my judgment, is more than plenty. The appellate process for these five detainees would, at a minimum, constitute another 18 months to two years of their lives. It seems to me that there comes a time when the desire to resolve novel, legal questions and decisions which are not binding on my colleagues pales in comparison to effecting a just result based on the state of the record.”

2 Responses

  1. […] ruling  followed his decision last month in a separate case declaring that five Algerian born Bosnians had been held unlawfully at the detention camp in Guantánamo Bay, Cuba, for nearly seven years and ordering […]

  2. […] Newspaper Elhabar, the U.S. has handed over the Bosnian Government documents alleging that 5 Bosnian-Algerians recently freed from Guantanamo have signed documents to waive their right to file a lawsuit in the US against American and Bosnian […]

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