At Guantanamo, Caught in a Legal Trap

Court Orders Ignored

After finding the note in the library book, investigators had trouble finding evidence that would stand up in court.

Phone records revealed no calls from Bensayah's home to the phone number attributed to Abu Zubaydah, according to Bosnian judicial documents. U.S. officials declined to provide Bosnian investigators with transcripts of their own wiretaps, saying that could compromise spying methods.

On Jan. 17, 2002, the Bosnian Supreme Court ordered the release of the six Algerians, ruling that there was not enough evidence to warrant their detention. The same day, the Bosnian Human Rights Chamber issued a separate decision that the men had the right to remain in Bosnia and could not be deported.

By then, rumors had swirled for days that U.S. peacekeeping troops would seize the Algerians anyway.

As dusk fell, an angry crowd of more than 150 people surrounded the prison in Sarajevo. A Muslim radio station urged listeners to turn out to protect the men. Scuffles broke out with police, who dispersed the crowd.

Shortly before dawn on Jan. 18, the Algerians were officially released from Bosnian custody. But instead of gaining their freedom, they were handed over by Bosnian police to U.S. military personnel.

"The only way out was to deliver them" to the Americans, said Alija Behmen, Bosnia's prime minister at the time, in an interview. "We were not interested in introducing a new period of instability in Bosnia."

Other officials said the decision caused lasting harm to efforts to solidify the rule of law in a fragile nation trying to recover from civil war.

Manfred Nowak, the U.N. special rapporteur on torture, said it was especially disturbing that the Bosnian and U.S. governments ignored the order of the Bosnian Human Rights Chamber. Nowak noted that the United States had played an instrumental role in creating the human rights court as part of the international effort to rebuild Bosnia.

"There was a clear order not to deport them from Bosnia. The U.S. government totally ignored it," Nowak said. "It's implausible to say they are enemy combatants. They were fighters during the Bosnian war, but that ended in 1995. They may be radical Islamists, but they have definitely not committed any crime."

Shifting Allegations

At Guantanamo, the Algerians entered a military justice system where the rules allow hearsay and other uncorroborated evidence to be used as justification for keeping an inmate imprisoned.

The men waited more than 2 1/2 years before they got judicial hearings. In October 2004, a U.S. military tribunal held a hearing to examine the evidence against Hadj Boudella and decide whether he should be classified as an enemy combatant.