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Torture, delay may end “enemy” status

In a significant legal breakthrough for Guantanamo Bay prisoners, the federal judge who has previously upheld the broadest detention power for the government ruled on Monday that torture of an individual and the passage of time after he had ties to terrorism can end his status as an enemy of the United States, and require his release.

U.S. District Judge Richard J. Leon, ruling in the case of a Syrian national who had links to Al Qaeda in Afghanistan years ago, ruled that the prisoner could no longer be detained as an “enemy combatant,” and the government must make efforts to release him “forthwith.”  (The 13-page ruling came in the case of Abdulrahim Abdul Razak al Ginco [Janko] – District Court docket 05-1310. It can be downloaded at this link. This is the unclassified version of an apparently longer ruling; the judge said most of the evidence in the case remains classified.)

Ridiculing the government’s argument, Judge Leon said it “defies common sense” to contend that an individual was “part of” a terrorist network when taken by U.S. forces more than seven years ago, when he had undergone before capture a prolonged period of torture by Al Qaeda — abuse described by the judge as arguably “barbaric” — and had been held for 18 months by the Taliban in an Afghan prison, where conditions were “terrible if not horrific.”

Because the decision came from Judge Leon, who is the only District judge to adopt without change the former Bush Administration’s view of its detention authority, it might be best understood as limited to its special facts.  The judge himself seemed to treat them as unusual, although at some points he did use fairly expansive language — for example, writing that a “pre-existing” link to a terrorist group may “sufficiently erode” over “a sustained period of time.”

Colleagues on the District Court pay attention to each other’s rulings, and Leon’s interpretation of the effects of torture during captivity, other forms of mistreatment, and lengthy confinement in harsh conditions could be read more broadly to establish breaks with past terrorism..

It seems likely, for example, that some judges who apply the Leon approach would take into account in deciding whether a detainee remains an “enemy” the proof — when it exists — of torture or abuse at Guantanamo, and years of confinement there, long after having had links to Al Qaeda or terrorism.

Under Judge Leon’s version of the military’s detention authority, an individual can be legally held as an “enemy combatant” if he “was part of or supporting Taliban or al Qaeda forces.”  His ruling Monday focuses only on the phrase, “part of.’

Al Ginco (he prefers the name Janko) was taken into custody by U.S. forces in Afghanistan in 2002.  Focusing on his activities prior to that point, the government said that he was “part of…Taliban or Al Qaeda” forces at the point of capture.  He had traveled to Afghnisant to take part in a “jihad” for the Talbian, the government contended, and had stayed at a guesthouse used by terrorists, and attended a terrorist training camp brief.

But, Judge Leon said, between those events and his capture by the U.S. military, Al Ginco (Janko) was tortured by Al Aeda into making a false “confession” that he was a U.S. spy, and after that was held by the Taliban for more than 18 months “at the infamous Sarpusa prison in Kandahar”

These, the judge said, were “extraordinary intervenign events,” yet the government contended that he was “part of” terrorist groups when taken into U.S. custody.

By taking that position, Leon said, the government had forced him to decide “an issue novel to these habeas proceedings, whether a prior relationship between a detainee an al Qaeda (or the Taliban) can be sufficiently viiated by the passage of time, intervening events, or both, such that the detainee could no longer be considered to be ‘part of’ either organization at the time he was taken into custody.  The answer, of course, is yes.”

That, the judge concluded, is “exactly what happened in this case.”  To the government’s argument that his mistreatment after he had ties to terrorism was not enough to break the tie, the judge said, adding the punctuation: “I disagree!”

Listing the factors that must be weighed to determine if the link to terrorism had been broken, Leon concluded that a “fair application of these factors to the circumstances here overwhelmingly leads this Court to conlcue that the relationship that existed in 2000 — such as it was — no longer existed whatsoever in 2002…” (emphasis in original)

While the judge ordered the government to “take all necessary and appropriate diplomatic steps to facilitate the release of [Al Ginco {Janko)] forthwith,” he lacked the authority to order his outright release. (That authority has been denied by the D.C. Circuit Court, in an opinion that is now being challenged in the Supreme Court in Kiyemba, et al., v. Obama, docket 08-1234.  The Justices are to examine that case on Thursday.)