Vol. 72/No. 48      December 8, 2008

In a closed courtroom, U.S. District Judge Richard Leon upheld the jailing of one of the six, Belkacem Bensayah, but decided the U.S. government had to release the other five: Lakhdar Boumediene, Mohamed Nechla, Hadj Boudella, Mustafa Ait Idir, and Saber Lahmar.

The Justice Department claims the six men had planned to fight U.S. and allied forces in Afghanistan based on hearsay from one unnamed source. In the case of Bensayah, the judge ruled that the U.S. government had backed up its allegation to his satisfaction with additional secret evidence.

The government was not required to prove Bensayah’s guilt, but to provide a “preponderance of evidence”—the lowest level of burden of proof. Judge Leon ruled that Bensayah was “more likely than not” planning to fight in Afghanistan.

Justice Department spokesman Peter Carr said the department disagreed with the decision to release the remaining five men. The government has not announced whether it will appeal.

The six Algerians were all residents of Bosnia when they were arrested in late 2001 and accused of joining a plot to bomb the U.S. Embassy in Sarajevo. However, the Justice Department dropped the claim last month without explanation.

The ruling represents the first of more than 200 habeas corpus suits slated to be heard since the Supreme Court decided July 12 that Guantánamo prisoners have the constitutional right to challenge their detentions.

The Justice Department has filed motions to stop more than 100 of these cases.

The prisoners are denied basic rights necessary to a fair trial. In addition to the preponderance of evidence rule the trials allow hearsay and secret evidence. The defendants are not allowed to be in the courtroom during the habeas corpus review; they are only allowed telephone access from Guantánamo for non-classified parts.

Another federal judge, Richard Urbana, ordered the release of 17 Uighurs from Guantánamo in October after the government conceded that they were not “enemy combatants.” Uighers are an oppressed nationality in western China who are mostly Muslim. The Justice Department is appealing the decision.

The U.S. government plans to try up to 80 of the remaining 255 Guantánamo prisoners by a military commission under rules established by Congress in 2006. In these tribunals, the judge and jury are military personnel appointed by the Pentagon and statements extracted through some forms of torture are permitted.

President-elect Barack Obama reiterated his stance November 15 to eventually close the prison, which has become a political liability for Washington in face of exposures of the inhumane conditions there.

The U.S. military stopped sending prisoners to Guantánamo some time ago. Instead they have been sent to other countries. Based on a 2001 presidential order authorizing indefinite detentions for “terror” suspects, an estimated 25,000 are held in prisons in Iraq and 14,000 in Afghanistan.
 
 
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