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Judge orders the release of five at Gitmo
Evidence against Algerians isn't credible, he says in ruling
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Published: November 21, 2008
WASHINGTON - A federal judge yesterday ordered the release of five Algerians held at Guantanamo Bay, Cuba, and the continued detention of a sixth in a major blow to the Bush administration's strategy to keep terror suspects locked up without charges.
In the first case of its kind, Judge Richard J. Leon of U.S. District Court said that the government's evidence linking the five Algerians to al-Qaida was not credible as it came from a single, unidentified source. Therefore, he said, the five could not be held indefinitely as enemy combatants, and should be released immediately.
"To allow enemy combatancy to rest on so thin a reed would be inconsistent with this court's obligation," Leon told the crowded courtroom.
As a result, he said, "the court must and will grant their petitions and order their release."
As for the sixth Algerian, Belkacem Bensayah, Leon said that there was enough reason to believe that he was close to an al-Qaida operative and that he had sought to help others travel to Afghanistan to join the terrorists' fight against the United States and its allies.
Leon also urged senior Justice Department leaders and high-level officials at other government agencies involved in the case not to appeal his ruling. The Justice Department said later yesterday that it had not decided whether it would.
Leon said that the five Algerians already have been improperly held for seven years and deserve to go home. He said that an appeal could delay their release for up to two more years.
"This is a unique case," Leon said, trying to assuage any Justice Department fears that hundreds of other detainees also could be released based on his ruling. "Few if any others will be factually like it. Nobody should be lulled into a false sense that all of the ... cases will look like this one."
One of the men to be released is Lakhdar Boumediene, whose landmark U.S. Supreme Court case last summer gave the Guantanamo detainees the right to challenge their imprisonment.
The Algerians' attorneys said they would appeal Bensayah's detention but celebrated Leon's ruling. "It's a relief," attorney Robert C. Kirsch said.
The Bosnian government already has agreed to take back the detainees, all of whom immigrated there from Algeria before they were captured in 2001.
A spokesman for the Justice Department, Peter Carr, said that the agency is pleased that Bensayah will remain at Guantanamo but "we are, of course, disappointed by, and disagree with, the court's decision that we did not carry our burden of proof with respect to the other detainees."
Leon was appointed by President Bush and has been sympathetic to the argument that the president has broad authority during wartime. In 2005, Leon ruled that this same group of detainees had no right to challenge their detention in civilian courts.
Yesterday's ruling is the first since the Supreme Court cleared the way last June for civilian courts to hear challenges by terror suspects being held indefinitely without charges.
It largely hinged on Leon's definition of an enemy combatant, which he said included al-Qaida or Taliban supporters who directly assisted in hostile acts against the United States or its allies.
Much of the evidence against the Algerians is classified and could not be discussed during the two open-court hearings in the seven-day trial -- or even with the detainees themselves.
The detainees listened to yesterday's ruling through a translated telephone conference call, but could not be heard during the nearly one-hour hearing.
The government initially detained Boumediene and the other Algerians on suspicion of plotting to bomb the U.S. Embassy in Sarajevo in October 2001. They were transferred to Guantanamo in January 2002.
The Justice Department last month backed off the embassy-bombing accusations, but said that the six men were caught and detained before they could join terrorists' global jihad.
The detainees' attorneys denied that the men ever planned to join the battlefield.
The cases of more than 200 additional Guantanamo detainees are still pending, many in front of other judges in Washington's federal courthouse.
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