U.S. Judge Orders Five Bosnian Detainees Released from Guantanamo

By Anthony Dworkin

In the first court case to assess the U.S. government's right to hold detainees classed as enemy combatants at Guantanamo Bay, a federal judge in Washington DC has ruled that five suspected terrorists who have been detained for nearly seven years should be released "forthwith".  The judge said the government did not have sufficient evidence to justify holding the men, and suggested it should not appeal his decision as the men had already been detained for long enough.

The decision came in a case brought on behalf of six Bosnian residents of Algerian origin, who were arrested by Bosnian authorities in October 2001 and handed to the United States in January 2002.  The six men had been among those who won a Supreme Court decision earlier this year that gave the Guantanamo detainees clearance to bring cases challenging their detention in U.S. federal courts.

In this latest ruling, Judge Richard Leon of the district court in Washington DC had failed to prove by "a preponderance of the evidence" that the five men could lawfully be detained.  However, he said that the government had met that threshold in the case of the sixth man who brought the case, Belkacem Bensayah, and that therefore it could continue to detain him.

As the first judicial statement about the grounds and evidence necessary to justify the detention of suspected terrorists at Guantanamo, the ruling in this case (Boumediene v. Bush) established a number of significant precedents.  Judge Leon said the government was justified in detaining anyone who could be shown by a preponderance of evidence to be an "enemy combatant", defined as "an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners.  This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces."

He said the authority to detain anyone meeting that description was based on the Authorization for the Use of Military Force passed by Congress in the days following the attacks of September 11, 2001.

During the court case, the United States argued that the six men had been planning to travel to Afghanistan in late 2001 to take up arms against U.S. and allied forces (when first detained, President Bush had said they were planning to bomb the U.S. embassy in Sarajevo, but this charge was later dropped).  In addition, the government alleged that Bensayah was an al-Qaeda "facilitator" who intended to arrange the travel of others to Afghanistan and other places to participate in terrorist acts.

Most of the case was held in closed session because of the classified nature of the evidence.  In his ruling, Judge Leon said the government had only produced a single classified document from an unnamed source as evidence for the plans of the five men to travel to Afghanistan.  Without further knowledge of the source's reliability and credibility, he said he did not regard this as sufficient evidence to justify the men's detention: "To allow enemy combatancy to rest upon so thin a reed would be inconsistent with this Court's obligation... to protect petitioners from the risk of erroneous detention."

Because Judge Leon said the allegations against the men were not adequately substantiated, he did not have to address the additional question of whether an intention to travel to Afghanistan to fight would have qualified the men as "enemy combatants" under the definition the Court adopted.

A significant aspect of the decision is its finding that the existence of some allegations against the detainees, which might have intelligence value, is not sufficient to justify holding them if the government cannot show a preponderance of evidence to indicate they meet the criteria for enemy combatancy.

However in the case of Bensayah, Judge Leon said that the government had shown that it was "more likely than not" that he "not only planned to take up arms against the United States but also facilitate the travel of unnamed others to do the same."  The judge ruled that this constituted "direct support to al-Qaeda in furtherance of its objectives," and that Bensayah therefore qualified as an enemy combatant according to the definition given.

In this way, Judge Leon established a precedent for the idea that someone can qualify as an enemy combatant for purposes of detention even if he had not set foot anywhere near a conventional battlefield or participated in an actual attack.

Related Chapters from Crimes of War: What the Public Should Know 2.0:

Courts and Tribunals

Guantanamo

Terrorism

Related Links:

Boumediene v. Bush Memorandum Order (court decision, pdf file)

US District Court for the District of Columbia

November 20, 2008

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