NYT : Judge Orders Five Detainees Freed From Guantánamo

Thursday, November 20, 2008

Judge Orders Five Detainees Freed From Guantánamo

By WILLIAM GLABERSON | November 20, 2008

In the first hearing on the government’s justification for holding detainees at the Guantánamo Bay detention camp, a federal judge ruled Thursday that five Algerian men were held unlawfully for nearly seven years and ordered their release.

The judge, Richard J. Leon of Federal District Court in Washington, also ruled that a sixth Algerian man was being lawfully detained because he had provided support to the terrorist group Al Qaeda.

The case was an important test of the Bush administration’s detention policies, which critics have long argued swept up innocent men and low-level foot soldiers along with high-level and hardened terrorists.

The six men are among a group of Guantánamo inmates who won a Supreme Court ruling that the detainees have constitutional rights and can seek release in federal court. The 5-4 decision said a 2006 law unconstitutionally stripped the prisoners of their right to contest their imprisonment in habeas corpus lawsuits.

The hearings for the Algerian men, in which all of the evidence was heard in proceedings that were closed to the public, were the first in which the Justice Department presented its full justification for holding specific detainees since the Supreme Court ruling in June.

Judge Leon, in a ruling from the bench, said that the information gathered on the men had been sufficient to hold them for intelligence purposes, but was not strong enough in court.

“To rest on so thin a reed would be inconsistent with this court’s obligation,” he said. He directed that the five men be released “forthwith” and urged the government not to appeal.

Judge Leon, who was appointed by President Bush, had been expected to be sympathetic to the government. In 2005, he ruled that the men had no habeas corpus rights.

Lawyers said the decision was likely to be seen as a repudiation of the Bush administration’s effort to use the detention center at the American naval base at Guantánamo Bay, Cuba, as a way to avoid scrutiny by American judges. President-elect Barack Obama has promised to close the prison.

“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. “This is a tough, no-nonsense judge.”

Because of the Bush administration’s claims that most of the evidence against the men was classified, Judge Leon ordered the entire case to be heard in a closed courtroom after brief opening statements on Nov. 5.

The government argued that the six Algerians, who were residents of Bosnia when they were first detained in 2001, were planning to go to Afghanistan to fight the United States and that one of them was a member of Al Qaeda.

The five men who were ordered freed on Thursday include Lakhdar Boumediene, for whom the landmark Supreme Court ruling in June was named. The one detainee Judge Leon found to be lawfully held, Bensayah Belkacem, has been described by intelligence agencies as a leading Al Qaeda operative in Bosnia.

It was not immediately clear whether the government would appeal, but some lawyers said they considered an appeal likely.

The case has become an example of the Bush administration’s pattern of changing strategy in its long legal war over Guantánamo as the courts have scrutinized the government’s justification for its detention policies in general and its reasons for holding individual detainees.

In 2002, President Bush made the government’s allegations against the men a showcase of his administration’s approach to dealing with terrorists. He said in his State of the Union address that the six men had been planning a bomb attack on the United States Embassy in Sarajevo, Bosnia. Last month, however, Justice Department lawyers said they were no longer relying on those accusations to justify the men’s detention.

The habeas corpus cases have moved slowly despite the Supreme Court decision that directed federal judges in Washington to act quickly after nearly seven years of detention for many of the 250 men still held in Guantánamo.

Detainees’ lawyers said Thursday’s ruling by Judge Leon would be a signal to other judges that they should be skeptical of the government’s efforts to delay hearings.

P. Sabin Willett, a lawyer for the Uighurs, said that Judge Leon’s decision “sends a powerful message to all the other judges to get these cases moving.”

J. Wells Dixon, a detainees’ lawyer at the Center for Constitutional Rights, said the ruling made clear that Guantánamo Bay had failed. But, he said, “Justice comes too late for these five men.”

Earlier this week, the Justice Department filed legal motions seeking to stop more than 100 of the other Guantánamo habeas corpus cases from proceeding, a move that lawyers for detainees said was a government effort to avoid further court scrutiny.

The Justice Department lawyers argued in motions filed Tuesday that there were flaws in the ground rules of other judges for the Guantánamo cases that would require the government to reveal classified evidence.

Last month, another district court judge in Washington, Ricardo M. Urbina, ordered the release of 17 other detainees, all ethnic Uighurs from western China. The judge did not hold a hearing on the evidence in that case because the government conceded that the men were not enemy combatants.

The Justice Department won a stay of Judge Urbina’s release order and is appealing. Arguments are scheduled for Monday in the United States Courts of Appeals in Washington.

Bernie Becker contributed reporting from Washington.