US DC Court asks for more evidence to hold terror detainees

The Court of Appeals for the District of Columbia Circuit has ruled that US government prosecutors must present evidence that an Algerian detainee held at Guantanamo Bay for over eight years truly belongs to Al-Qaeda or release him.

At issue is the appeal of Belkacem Bensayah, an Algerian who had been living in Bosnia alleged to have arranged travel for five others (the rest of the detainees set free after the Boumediene decision gave them habeas rights) to go to Afghanistan to fight the Americans.

 In the past, the government has claimed the phone number of a “senior al Qaeda member”–reported to be Abu Zubaydah–was found in his possession; in addition, a senior al Qaeda member (presumably also a reference to Abu Zubaydah) “reported he has known the detainee since 1993 when the detainee went to Afghanistan from the war in Tajikistan.” The government stuck with other evidence, including a raw intelligence report whose contents were largely redacted from the opinion, as well as accusations that Mr. Bensayah had used fraudulent documents and might have lied about his travel in the early 1990s.

In a partially redacted 17-page ruling issued Thursday, Judge Douglas Ginsburg said “the evidence upon which the district court relied in concluding Bensayah ‘supported’ Al-Qaeda is insufficient… to show he was part of that organization.”

Circuit Judge Douglas Ginsburg held that the government’s authority under the 2001 Authorization for Use of Military Force (AUMF) only extends to the detention of individuals who are “functionally part of” a terrorist organization. If the government, upon remand to the district court, cannot provide a preponderance of evidence that Bensaya was part of al-Qaeda, then his indefinite detention would be deemed illegal under AUMF and he should be granted habeas corpus relief.

Ginsburg’s decision sent the case back before District Judge Richard Leon. In 2008, Leon ruled that Bensayah could be held indefinitely without trial, but also ordered the five other Algerians seized in Bosnia to be freed.

In his decision, Ginsburg set a looser standard for holding terror detainees than proving suspects actively supported Al-Qaeda. He said the Pentagon can hold suspects simply for being “part of Al-Qaeda.” But he said the US government had failed to meet even that burden of proof.

“The government presented no direct evidence of actual communication between Bensayah and any Al Qaeda member, much less evidence suggesting Bensayah communicated with” any other individual to help facilitate travel for an Al-Qaeda member, Ginsburg added.

Read a comment on the decision here.

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