Judge rules against 2 at Guantanamo that Bush panel cleared for release

WASHINGTON — A federal judge Wednesday ruled that the Pentagon can continue to hold indefinitely at Guantanamo two Yemeni captives whom the Bush administration cleared for release two years ago.

The decisions bring to 11 the number of such cases that the government has won. In 32 other cases, judges have ruled that the Pentagon did not have sufficient evidence to hold the prisoners and have ordered that the detainees be released. Four of those are still at Guantanamo.

The one-page orders by U.S. District Judge Gladys Kessler upholding the detentions of Suleiman Awadh Bin Agil al Nahdi, 36, and Fahmi Salem al Assani, 33, did not include her reasoning. That will be released after her full ruling is declassified after a security review.

In a twist, a Bush-era parole-style panel notified both Nahdi and Assani in February 2008 that the Pentagon’s Administrative Review Board had approved their transfer home to Yemen. The notification is part of the federal court record. Those release decisions were suspended a year ago after President Barack Obama took office and set up a task force Review of their own. It is not known what the Obama task force decided in the case.

The Obama administration has defended its efforts to close Guantanamo and transfer detainees home or to other countries by saying its review has been more thorough than those that took place under the Bush administration.

Meanwhile, the Justice Department announced the transfer of four detainees from Guantanamo Wednesday — three to Albania and one to resettlement in Spain - reducing the prison camps census at the Navy base in Cuba to 188.

The men sent to Albania were identified as Saleh Bin Hadi Asasi of Tunisia, Sharif Fati Ali al Mishad of Egypt, and Abdul Rauf Omar Mohammad Abu al Qusin of Libya. The captive who arrived in Spain Wednesday was not named but identified broadly as a Palestinian who would be allowed to live in Spain but not travel beyond that nation’s borders.

The Justice Department did not say why the three men were transferred to Albania instead of their home countries. But the United States in 2006 transferred eight men to Albania, among them five members of China's Uighur minority group plus an Algerian, Egyptian and Uzbek.

One of the Yemenis' volunteer attorneys, Brian Spahn, said by telephone from Washington that Judge Kessler’s decision in the case of the two Yemenis was “frustrating to say the least,” especially since both men had earlier been told they were cleared to return home.

Repatriations to Yemen have been slowed through both the Bush and Obama administrations as the White House sought assurances that Yemenis would be monitored and get rehabilitation in a nation experiencing an al Qaeda resurgence.

But Spahn said neither men had joined al Qaeda and had traveled to Afghanistan from the same neighborhood in Yemen’s Hadramuth region in the summer of 2001, before the 9/11 attacks, to get basic military training.

“Neither of them engaged in any fighting,” he said, and were caught in U.S. air assaults on the Tora Bora region as they tried to flee Afghanistan in the aftermath of the Sept. 11, 2001 attacks and the U.S. reprisals. “They never saw the Americans, they never fought the Northern Alliance.”

The United States government claimed the men trained to be part of al Qaeda. But Spahn argued that, while the men did get training at al Farouq they didn’t discover the al Qaeda links until they were there — and were trying to flee, not join, al Qaida at the time of their capture on the Afghan-Pakistan border.

Kessler heard their cases separately in early January in closed sessions at the U.S. District Court in Washington D.C. Nahdi told his story by closed-circuit video feed from the remote prison camps set up to enable captives to testify on their behalf at the called habeas corpus hearings. Assani did not.

Kessler has ruled in three other Guantanamo detainee cases. In those, she ruled that the Pentagon didn't have sufficient cause to hold the men and ordered them released.

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