5 at Guantanamo Ordered Released
Men Not Considered Enemy Combatants
Friday, November 21, 2008; Page A02
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.