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5 at Guantanamo Ordered Released
Men Not Considered Enemy Combatants

By Del Quentin Wilber
Washington Post Staff Writer
Friday, November 21, 2008

For the first time, a federal judge ordered the release yesterday of detainees from the U.S. military prison at Guantanamo Bay after evaluating and rejecting government allegations that five men were dangerous enemy combatants.

The government had alleged that the men planned to travel to Afghanistan to attack U.S. forces. But U.S. District Judge Richard J. Leon ruled that in a series of closed hearings in recent weeks, the Justice Department had not proved that five of the six Algerian detainees at the Cuban facility were enemy combatants under the government's own definition.

Leon ordered them released "forthwith" and said the government should engage in diplomatic efforts to find them new homes. In an unusual moment, he also pleaded with Justice Department lawyers not to appeal his order, noting that the men have been imprisoned since shortly after the attacks of Sept. 11, 2001.

"Seven years of waiting for a legal system to give them an answer . . . in my judgment is more than enough," he said. He urged the government "to end this process."

Leon is the first federal judge to rule on whether the government's evidence is sufficient to justify the confinement of a detainee. The order springs from a landmark Supreme Court decision in June that the Guantanamo Bay detainees have the right to challenge their confinements in federal court under the legal doctrine of habeas corpus, literally "present the body."

The decision applies to five of the six Algerians, who were arrested in Bosnia and have been held at Guantanamo Bay since January 2002. Leon found that the government had provided enough evidence to justify the continued detention of one Algerian who the government contends was a facilitator for al-Qaeda.

Another federal judge last month ordered the release into the United States of a small group of Chinese Muslims held at Guantanamo Bay. But in that case, the government conceded that the men are not threats to the United States, and the legal argument centered around whether the courts could order the executive branch to release a detainee into the United States. The government is appealing the ruling.

In June, as part of a separate review of the detainees' military classification, an appellate court panel ordered the transfer, release or retrial of one of those men. But the judges said they were unsure whether they had the authority to order his release.

All told, more than 200 detainees are challenging their confinements before judges in U.S. District Court in Washington.

Legal scholars and lawyers representing detainees said the ruling is the latest setback for the Bush administration's legal battle over the rights of the detainees. Leon, an appointee of President Bush, had been viewed by many as sympathetic to government arguments. He ruled in 2005 that the detainees did not have grounds to contest their detentions in his court. That was the decision the Supreme Court reversed in June.

"For a judge like Leon to order their release from detention is significant because the government has long maintained the evidence it had was more than sufficient to justify the detentions," said Scott L. Silliman, a national security law professor at Duke University. "This is a clear warning shot to the government. . . . These are probably not the last detainees to be ordered released."

President-elect Barack Obama has pledged to close Guantanamo Bay, but the Bush administration is not likely to drop the legal fight. A Justice Department spokesman issued a statement that said officials disagree with Leon's order and are weighing their options.

Attorneys for the Algerians said they would like the men returned to their families in Bosnia, where they were legally living when they were captured. Bosnian officials have indicated they would take them back and have said their own investigation has cleared them of connections to terrorism.

Robert Kirsch, a lawyer for the detainees, said the ruling was "a relief. The judge did what he had to do." He added that his team would appeal Leon's decision involving the sixth Algerian, Belkacem Bensayah.

Leon issued his ruling in the D.C. federal courthouse's large ceremonial courtroom, which was filled with lawyers and law clerks hoping to witness a historic ruling. As he read his decision, Leon patiently waited for an Arabic interpreter to translate his words for the detainees, who were listening via audio-link at Guantanamo Bay. Their attorneys hugged after Leon left the courtroom.

The Algerians were detained for years on allegations that they had been plotting to blow up the U.S. Embassy in Sarajevo when they were picked up by Bosnian authorities and later turned over to U.S. officials. Bush mentioned the bomb plot in his 2002 State of the Union Address. But the government withdrew those allegations last month without explanation. The most serious remaining allegations concerned Bensayah, who was accused of being an al-Qaeda facilitator who sought to arrange travel for others to fight U.S. forces in Afghanistan.

The other five -- Lakhdar Boumediene, Mohamed Nechle, Mustafa Ait Idir, Hadj Boudella and Saber Lahmar -- were accused of planning to go to Afghanistan to fight.

Leon said the direct evidence against those five was skimpy and came from one unnamed source in a classified document. On top of that, Leon ruled, the government did not provide him with enough information to evaluate the source's credibility.

"The court has no knowledge as to the circumstances under which the source obtained the information," Leon said, adding that the government did not give him "adequate corroborating evidence" to support the source's allegations.

"To rest on so thin a reed would be inconsistent with the court's obligations," he said.

Leon did not fault the government for picking up the men in the first place, noting that the evidence "was undoubtedly sufficient for the intelligence purposes for which it was prepared."

In the case of Bensayah, Leon said, the government proved by a preponderance of the evidence that he was an enemy combatant. He said the government relied on the same unnamed source but provided "other intelligence reports based on a variety of sources and evidence" to corroborate the allegations.

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