Cases Against Detainees Have Thinned

Six Algerian men who have been held at this military prison at Guantanamo Bay, Cuba, since 2002 will soon challenge their detention in civilian federal courts.
Six Algerian men who have been held at this military prison at Guantanamo Bay, Cuba, since 2002 will soon challenge their detention in civilian federal courts. (By Chip Somodevilla -- Getty Images)
By Del Quentin Wilber
Washington Post Staff Writer
Sunday, November 2, 2008

The six Algerians were scooped up in Bosnia and shuttled to the U.S. military prison at Guantanamo Bay in early 2002. Days later, President Bush proclaimed in his State of the Union address that the men had been plotting to blow up the U.S. Embassy in Sarajevo.

The case would seem to be an easy victory for the Bush administration, which is preparing to defend the men's lengthy detentions in landmark federal court proceedings scheduled to begin this week.

But the government is backpedaling.

The charges of plotting to blow up the embassy have been dropped. Other allegations, made by a witness whom federal prosecutors called a liar in court filings five years ago, have dissolved. The government now justifies the detentions on far narrower grounds: It says the men were planning to travel to Afghanistan to fight U.S. forces.

Lawyers who have represented Guantanamo Bay detainees say those developments could not have occurred without the prospect of habeas corpus hearings looming over the government. For the first time since Guantanamo Bay, Cuba, opened six years ago, the government must justify a captive's detention before an impartial federal judge with no connection to the military, which enforces the detainees' confinement.

"We've always said that when the government's lawyers have to stand up and defend their so-called evidence in front of a judge, many of their allegations on paper are going to crumble to dust," said Shayana Kadidal, an attorney for the Center for Constitutional Rights, which is representing many of the detainees.

The government recently also has withdrawn allegations that another detainee is linked to a high-profile "dirty bomb" plot. Together, the legal moves raise questions about the government's claims over the years that it has disrupted imminent terrorism threats.

A Justice Department spokesman declined to comment.

Scott Silliman, a former military prosecutor and attorney and a professor of national security law at Duke University, reviewed the government's public court filings, which were heavily redacted. He said he was "surprised at how weak the government's case" is against the Algerians. But, Silliman noted, the Justice Department is holding a potentially powerful weapon in reserve.

The government told U.S. District Judge Richard J. Leon that lawyers also had filed a set of secret documents that he should review only if he "determines that the weight of the evidence otherwise supports" the Algerians' release.

Robert Kirsch and Stephen H. Olesky, attorneys for the Algerians, have reviewed other classified documents in the matter and said they want access to that information. Legal experts say filing such secret evidence is unusual but not unprecedented.

The six Algerians won their access to federal court in June, when the Supreme Court granted all Guantanamo Bay detainees the right of habeas corpus -- literally "present the body" -- in its ruling in Boumediene v. Bush. Lakhdar Boumediene is one of the Algerians.

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