Judge orders release of 5 Guantanamo detainees

McClatchy NewspapersNovember 20, 2008 

WASHINGTON — In the first ruling of its kind, a federal judge ordered the speedy release Thursday of five Algerian men after concluding the government didn't have the evidence to hold them for nearly seven years in Guantanamo Bay prison.

The decision by U.S. District Judge Richard Leon, a Bush appointee, was the latest setback for the administration's detention policies and could foretell more court-ordered releases.

Leon, however, backed the continued imprisonment of a sixth Algerian from the same group, concluding that the Justice Department had sufficient evidence he was a supporter of al Qaida.

One of those ordered released is Lakhdar Boumediene, whose appeal to the Supreme Court became the underpinning of a 5-4 decision that gave Guantanamo prisoners the right to challenge their detention in court. Boumediene, 42, had maintained all along that he was a relief worker with the Islamic Red Crescent.

Leon's decision marked the first time that a lower court has concluded after a habeas corpus hearing that the government lacked evidence to hold Guantanamo detainees as enemy combatants. Now, more than 200 other detainees await similar reviews in Washington's federal court.

Leon said he didn't want his ruling to serve as precedent for upcoming cases. Nonetheless, the decision — issued by a judge who originally supported the government's position — is certain to hearten administration critics who think that many detainees are being held in the prison in Cuba without cause.

In an unusual entreaty, Leon urged the administration not to appeal his order releasing the five men.

"Seven years of waiting for our legal system to give them an answer to a question so important is, in my judgment, more than enough," Leon said.

Anthony D. Romero, Executive Director of the American Civil Liberties Union, called the decision "another nail in the coffin of the Bush administration's lawless and failed Guantanamo policies."

The men, natives of Algeria who immigrated to Bosnia more than a decade ago, have been imprisoned without charges because the Bush administration claimed they were enemy combatants in an unconventional war waged by terrorists after Sept. 11, 2001.

While the government said the men had plotted to travel to Afghanistan to fight the U.S. and its allies, Leon found that the government had only offered unsubstantiated information from a single unnamed source as justification to detain the five men.

"To allow enemy (combatant status) to rest on so thin a reed would be inconsistent with the court's obligation," Leon said.

Robert Kirsch, one of the lawyers for the group, described the judge's decision to release the men as a "relief," adding that Bosnia has indicated that it's willing to allow them to return home.

The Bosnian courts and prosecutors had previously cleared the men, but on Jan. 17, 2002, Bosnia handed the men over to the U.S. government, which then shipped them to Guantanamo. According to the detainees' lawyers, U.S. diplomats in Sarajevo had threatened the Bosnian government that if Bosnia failed to detain them, the U.S. would withdraw from the Balkan country.

On Jan. 29, 2002, President George W. Bush announced in his State of the Union Address that U.S. soldiers "working with the Bosnian government, seized terrorists who were plotting to bomb our embassy."

However, the government dropped that allegation as soon as the group won court review.

Peter Carr, a spokesman for the Justice Department, said the judge's ruling was an "understandable consequence" of a lack of guidance from Congress or the courts on how to proceed with the habeas hearings, including how to handle classified evidence.

"As the court requested, we are promptly reviewing the decision," Carr said. "But we also think that this ruling demonstrates the need for Congress to enact procedures that allow these petitions to be adjudicated in a way that is fair to the detainee but that allows the government to present its case without imperiling national security."

Leon, however, said the government offered convincing evidence during closed-door hearings that the sixth detainee, Belkacem Bensayah, had planned to travel to Afghanistan to fight the U.S. military and its allies. Bolstering the government's case, Leon said, was evidence that Bensayah had traveled frequently between countries using multiple fake passports under different names.

Leon said he could not go into detail about the evidence because it was classified, but described it as supported by multiple sources.

The detainees' lawyers planned to appeal Bensayah's detention.

Leon's decision comes as the government is trying to prevent the release into the U.S. of 17 Chinese-born Muslims, who've been held for nearly seven years despite being cleared for release by the U.S. military. The detainees, all members of the ethnic Uighur minority, are among a group of more than 60 men inside the prison who've been cleared for release but who are stuck in limbo because the U.S. government can't find a country to ship them to. The men say they can't return to China because they'll be tortured.

A federal judge ordered the Bush administration to transfer the men to the U.S. after the government conceded they no longer consider the prisoners enemy combatants. The government, however, has appealed that decision, saying it cannot release the men into the U.S. because of security concerns. A hearing on that appeal is Monday.

As of Thursday, there were about 250 detainees in Guantanamo, including 17 accused of war crimes. The others are being held as enemy combatants, neither charged with a crime nor approved for release.

(Carol Rosenberg of The Miami Herald and Warren P. Strobel contributed to this article.)

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