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Judge orders five detainees freed

UPDATED to 4:30 p.m.

NOTE TO READERS: This post includes a link to the judge’s 14-page ruling. However, that “memorandum order” does not include the judge’s remarks encouraging the government to forgo an appeal of his order to release five captives, his comments about the long delay the detainees faced in getting a legal answer to their challenges, his statements that his ruling would have no precedential effect for other cases, or his suggestion that the Supreme Court had imposed a judicial process on the intelligence-gathering regime.  Those presumably will be reflected in the transcript of Thursday’s session, available later.


U.S. District Judge Richard J. Leon, in the first ruling in a full trial testing the Supreme Court’s June decision on detainees’ rights, on Thursday ordered the federal government to release five Guantanamo Bay detainees “forthwith.” The judge found, however, that the government had justified the continued imprisonment of a sixth detainee, Belkacem Bensayah. (The ruling is available here.)

The judge, in an unusual added comment, suggested to senior government leaders that they forgo an appeal of his ruling on freeing the five prisoners. While conceding that the government had a right to appeal that part of his ruling, Leon commented that he, too, had “a right to appeal” to leaders of the Justice Department, Central Intelligence Agency and other intelligence agencies, and his plea was that they look at the evidence regarding the five he was ordering released.  “Seven years of waiting for our legal system to give them an answer to their legal question is enough,” he commented.

Senior leaders of the government, he went on, will have “more than enough opportunity” to test the novel issues at stake in defending against an appeal of his ruling in the case of Bensayah.  He said he was appealing to those leaders “to end this process” for the five.

Robert Kirsch, one of the detainees’ lawyers, said after the session that they would appeal  the decision to continue the imprisonment of Bensayah. Kirsch also told reporters that there have been diplomatic negotiations with Bosnian authorities, and they have indicated a willingness to take the five detainees once they are released. The six prisoners were captured in Bosnia, where they had been living, although they are all natives of Algeria.

The Justice Department said in a statement that it was “promptly reviewing the decision” on releasing the five captives.  It did not indicate whether it would appeal that part of the ruling, although it said it disagreed with it.  It also said that the ruling demonstrates “the need for Congress to enact” new procedures to limit court review of detention cases — a goal that Attorney General Michael B. Mukasey has sought.

The judge appeared to be mildly critical of the Supreme Court’s ruling on detainees’ habeas rights, saying that “the practical effect of imposing the habeas process on the world of intelligence-gathering” is “to create a virtually limitless complex of novel and difficult questions; as a result, the precedential value [of his decision] should be and is limited to these cases.”

In ruling against the government as to the five detainees, 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.

Leon also said he could not evaluate that intelligence report for credibility or corroboration because the government had not given him information enabling him to do so, and he said it did not convince him that the five had a plan to fight against the U.S. or its allies, or even knew of such a plan.  He said he could not be more specific in public, because of the classified nature of the information. (After announcing his ruling, Judge Leon met in private with lawyers for both sides to discuss the information he could not mention in open court.)

The five detainees ordered released are Lakhdar Boumediene, Hadj Boudella, Mustafa Ait Idir, Saber Lahmar and Mohammed Nechla.

The judge said, however, that the government had persuaded him that Bensayah was “an al Qaeda facilitator” who sought to arrange travel to Afghanistan by others to join in armed hostilities toward U.S. and coalition partners.  Applying a “preponderance of the evidence” standard of proof, Leon said that the government had proved “that it was more likely than not that Bensayah planned to take up arms against the United States, but also planned to facilitate travel of others to do the same.”

He added that there “can be no question that facilitating others to join the fight against the United States in Afghanistan constitutes direct support of al Qaeda in furtherance of its objectives, and that this support is within the definition of ‘enemy combatant’ ” on which the judge was relying.

Near the close of the oral announcement of his decision, the judge cautioned observers not to read any wider effect into his ruling.  “Few if any of the others will be factually like” the Bosnians’ case, he said, adding: “Nobody should be lulled into a false sense that all of the government’s cases will look like this one.”

The judge also added that “there comes a time when the desire to resolve novel legal questions…pales in comparison to effecting a just result based on the state of the record.”

It took nearly an hour for the judge to announce his ruling, because it was being translated, sentence by sentence, into arabic so that the six detainees could keep up with it via a telephone link with the U.S. Naval prison at Guatanamo Bay.