Federal judge rejects enemy combatant charges against Guantanamo prisoners

Today the Bush administration suffered its fourth major defeat since June in litigation over detentions at Guantanamo. This ruling by US District Judge Richard Leon, a Bush appointee, is the most devastating yet. He'd been expected to favor the government, not least because in 2005 Leon had ruled that the detainees have no habeas rights. And these are not low-profile prisoners. In his 2002 State of the Union address, George Bush had accused them of planning to bomb the US embassy building in Sarajevo. (As with other such garish accusations, the Bush administration subsequently and very quietly changed its allegations to something considerably more mundane – planning to fight in Afghanistan.)

Yet Leon rejected the administration's argument that five Algerian nationals formerly resident in Bosnia are enemy combatants and ordered their release "forthwith".

The text of his ruling is here (PDF).

It's the first time that a federal court has investigated the merits of a Bush administration claim that it possesses sufficient evidence to continue detaining a prisoner as an enemy combatant. Thus there's great significance in the fact that the administration's evidence has finally been put to the test and, right off the bat, found to be lacking. In fact, the evidence upon which these prisoners were held for the last 7 years, and treated horrifically, was ridiculously weak. Just like the 'evidence' against so many of the remaining prisoners at Gitmo, it depends upon hearsay or unverified/unverifiable allegations of a vague nature from unnamed or shadowy figures.

“The decision by Judge Leon lays bare the scandalous basis on which Guantánamo has been based — slim evidence of dubious quality,” said Zachary Katznelson, legal director at Reprieve, a British legal group that represents many of the detainees.

Leon found the government's case to be extremely flimsy, based as it was upon one undocumented allegation by a single unnamed source.

Judge Leon said that the Justice Department and intelligence agencies had relied solely on a classified document from an unnamed source, which he found was not persuasive on the government’s claim that the five had planned to travel to Afghanistan to join in hostile actions against the United States and allied forces. That secret document, the judge said, was too “thin a reed” on which to base detention.

Their detention has been so outrageously without merit that, very unusually, the judge urged the Justice Department lawyers not to appeal his ruling. The prisoners had waited seven years "for our legal system to give them an answer", Leon argued, and it wouldn't be useful to prolong the injustice with a pointless appeal. He found that a sixth prisoner was being held on the basis of sufficient evidence, and Leon suggested that the DoJ had plenty of opportunity to contest the broader legal issues in the appeal of his continued detention without delaying the release of the other five prisoners any longer.

In June the Supreme Court handed down a landmark ruling about these prisoners in Boumediene v. Bush, which upheld their right to challenge the basis for their detention in federal court. It was an unusually strong ruling against the Bush administration's policies of open-ended detention. What was most remarkable was the Supremes' intervention into the appellate process in order to expedite the habeas review it was ordering for the Guantanamo prisoners. The concurrence written by Justice Souter in particular argued that the prisoners had been held for far too long without habeas review to allow the government to continue to drag things out through the appeals court. The government's allegations against Boumediene and the other prisoners in that case were on the face of pretty ridiculous on their face, though no court had yet examined them. Hence Judge Leon's ruling today that the government has no credible basis for imprisoning these men was the predictable outcome of the SCOTUS ruling.

Let's not forget that these prisoners had already been arrested, investigated, and ordered freed by the Bosnian Supreme Court before the US, ignoring that finding, demanded custody of the Algerians. Like a number of other prisoners held at Tuzla air base in Bosnia after the September 11 attacks, they were tortured while in US custody. At a minimum, they were treated to the sensory deprivation that became a standard part of the "exploitation" of prisoners at Guantanamo, Bagram, and elsewhere. As the European Parliament report (PDF) by Dick Marty stated:

While still on Bosnian soil, the six men were kept shackled in painful positions. They were forced to wear goggles to prevent them from seeing, headphone-like covers over their ears to make it impossible for them to hear, and face masks making it impossible to be understood and very difficult to breathe. They were subsequently transported to the U.S. Naval Base at Guantanamo Bay.

It should be stressed that Judge Leon's ruling frees the men and urges the US to arrange for their return to Bosnia, but does nothing to redress the torture inflicted on them during seven years of captivity.

A similar pair of rulings in June and October regarding the Uighur prisoners at Gitmo came to a similar result as the rulings on the Bosnians. In June the DC Court of Appeals rejected sarcastically the Bush administration's claims about the Uighur prisoners, mocking the government's reliance upon hearsay and unvetted evidence at Combatant Status Review Tribunals, as well as its claims of secrecy in withholding evidence. The administration has to actually prove in court that the evidence supports the allegations.

Well, they thought about the difficulty of proving the nonsensical charges they were leveling against the Uighurs and decided to drop them instead. So in October, at a habeas review for the Uighurs in DC District Court, judge Ricardo Urbina ordered their immediate release. The government managed to get a stay of that order, but that could be reversed before the month is out.

Four cases in six months, each of them devastating to the Bush administration's pretense that it holds prisoners at Guantanamo based on overwhelming evidence of terrorist activities.

crossposted at unbossed.com