Judge orders 5 Guantanamo inmates released

Says they were unlawfully held nearly 7 years

By William Glaberson
New York Times / November 21, 2008
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NEW YORK - In the first hearing on the government's justification for holding detainees at the Guantanamo Bay detention camp, a federal judge ruled yesterday that five Algerian men were held unlawfully for nearly seven years and ordered their release.

The judge, Richard J. Leon of US 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 along with high-level and hardened terrorists.

The six men are among a group of Guantanamo inmates who won a Supreme Court ruling that said 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.

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.

Leon, 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 Guantanamo Bay, Cuba, 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 Guantanamo 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.

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

"We're immensely gratified that a habeas court has spoken so decisively and so eloquently about the need for these men to be freed immediately," Stephen Oleskey, a partner with the Boston-based law firm WilmerHale, said in a statement. The law firm represented the six men pro bono, and Oleskey was a leader of the case team that secured the ruling.

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 men were initially arrested on grounds that they were plotting to blow up the United States embassy in Sarajevo, but the government later abandoned that claim and said the men planned to fight with Al Qaeda.

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

Oleskey's statement said lawyers will appeal the ruling to keep Belkacem detained.

"The six men hardly fit the profile of dangerous terrorists or 'enemy combatants,' " the statement said. "They have wives and children, most worked for charities in Bosnia, thousands of miles from the battlefield of Afghanistan, and not one had directly participated in any hostilitites against the United States."

Milton J. Valencia of the Globe staff contributed to this report.

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