After 7 Years, Judge Orders Release of Guantnamo Kidnap Victims

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On Thursday,
in the U.S. District Court in Washington, D.C., Judge Richard Leon,
an appointee of President George W. Bush, delivered a major blow
to the outgoing administration's u201Cwar on terroru201D detention policies
by ordering the immediate release of five Algerian-born Bosnian
prisoners at Guantnamo, after concluding that the government had
provided no credible evidence that, as was alleged, the men intended
to travel to Afghanistan to take up arms against U.S. forces.

The case of
the Bosnian Algerians has long been one of the more surreal episodes
in Guantnamo's long and undistinguished history of wanton cruelty
and intelligence failures. The story
began
(PDF) in October 2001, when the U.S. embassy in Sarajevo
asked the Bosnian government to arrest six men – Lakhdar Boumediene,
Mohammed Nechla, Hadj Boudella, Mustafa Ait Idr, Sabir Lahmar and
Belkacem Bensayah (all aged between 32 and 40) – because of
a suspicion that they were involved in a plot to bomb the U.S. embassy.
The Americans’ request took the form of a diplomatic note, which
contained no evidence to support the allegation, and the Bosnians
refused to comply until the Americans threatened to close their
embassy and withdraw peacekeeping forces unless the men were arrested.
Human-rights activist Srdjan Dizdarevic noted
that u201Cthe threats from the Americans were enormous. There was a
hysteria in their behavior.u201D

Unwilling
to defy the Americans, the Bosnians then arrested the men, but after
a three-month investigation, in which they conducted extensive searches
of their apartments, their computers and their documents, they found
u201Cliterally no evidenceu201D to justify the arrests. The Bosnian Supreme
Court ordered their release, and, with rumors circulating that the
Americans were going to seize them anyway, the Bosnian Human Rights
Chamber ruled that they had the right to remain in the country and
were not be deported. On the night of January 17, 2002, a huge crowd
of supporters gathered outside the prison in Sarajevo to protect
them on their release, but riot police dispersed the crowd with
tear gas, and at dawn, as the men emerged, they were seized by American
agents, hooded, handcuffed and rendered to Guantnamo.

After they
arrived in Guantnamo, the embassy plot was never mentioned. Instead,
the six men were subjected to relentless allegations that they were
associated with al-Qaeda. Although they had all traveled to Bosnia
during the 1992–95 civil war to fight on behalf of the oppressed
Muslim population, they were then granted citizenship, married Bosnian
women and spent the next six years working with orphans for various
Muslim charities, including the Red Crescent – and, in the
case of Lahmar, an Islamic scholar, the Saudi High Committee for
Relief – and maintained that they had no connections whatsoever
with terrorism.

When lawyers
were finally allowed to meet the men, following the Supreme Court's
ruling, in June 2004, that the Guantnamo prisoners had habeas corpus
rights (the right to ask a judge why they were being held), they
discovered that a possible source of the allegations against the
men was Lahmar’s embittered ex-brother-in-law, who had run a u201Csmear
campaignu201D against him. The only allegation that they were unable
to counter – because the U.S. authorities refused to substantiate
it – was that Bensayah had made 70 phone calls to Afghanistan
after the 9/11 attacks and was u201Cthe top al-Qaeda facilitatoru201D in
Bosnia.

On Thursday,
seven years and one month after the men were first arrested by the
Bosnian authorities, and six years and ten months after they were
cleared and then kidnapped by U.S. agents and flown to Guantnamo,
Judge Leon finally addressed the allegations against the men in
a U.S. courtroom. This unconscionable delay was the result of legislation
passed in the wake of the Supreme Court's habeas verdict in June
2004 (the Detainee Treatment Act of 2005 and the Military Commissions
Act of 2006), which purported to strip the prisoners of the habeas
rights upheld by the Supreme Court. It was not until June this year,
when the Supreme Court revisited the prisoners' rights, and ruled
that their habeas rights were constitutional, that the cases of
the Bosnian Algerians – and of most of the 255 prisoners still
held in Guantnamo – made their way to the District Court.

In his Memorandum
Opinion (PDF),
issued on November 20, Judge Leon's crucial verdict concerned the
government's allegation that the men had u201Cplanned to travel to Afghanistan
to take up arms against U.S. and allied forces,u201D and that this constituted
u201Csupportu201D of al-Qaeda under the definition of an u201Cenemy combatantu201D
that Judge Leon had decided
four weeks previously (it is a sign of the chaotic imprecision of
the government's detention policies that no single definition existed
until Leon ruled that an u201Cenemy combatantu201D is someone u201Cwho was part
of or supporting Taliban or al-Qaeda forces, or associated forces
that are engaged in hostilities against the U.S. or its coalition
partners. This includes any person who has committed a belligerent
act or has directly supported hostilities in aid of enemy armed
forcesu201D).

Countering
this, the prisoners contended that the government had u201Cnot shown
by a preponderance of the evidence that any of the petitioners planned
to travel to Afghanistan to engage U.S. forces, and, even if the
government had shown that petitioners had such a plan, a mere plan,
unaccompanied by any concrete acts, is not – as a matter of
law – u2018supporting' al-Qaeda within the meaning of the Court's
definition of u2018enemy combatant.'u201D

Ruling on
behalf of the prisoners, Judge Leon declared that the government
had u201Cfailed to show by a preponderance of the evidence that any
of the petitioners, other than Mr. Bensayah, either had, or committed
to, such a plan.u201D He explained that the government had relied u201Cexclusively
on the information contained in a classified document from an unnamed
source,u201D but stressed that this information – u201Cthe only evidence
in the record directly supporting each detainee's alleged knowledge
of, or commitment to, this supposed planu201D – was inadequate,
because, although the government had u201Cprovided some information
about the source's credibility and reliability,u201D it had not u201Cprovided
the Court with enough information to adequately evaluate the credibility
and reliability of this source's information.u201D As an example, Leon
pointed out that u201Cthe Court had no knowledge as to the circumstances
under which the source obtained the information as to each petitioner's
alleged knowledge and intentions.u201D He also noted that u201Cthe Court
was not provided with adequate corroborating evidence that these
petitioners knew of and were committed to such a plan,u201D and added,
with a clear note of regret, that u201Cdue to the classified nature
of government's evidence, I cannot be more specific about the deficiencies
of the government's case at this time.u201D

Judge Leon
also noted that, although the source's information was u201Cundoubtedly
sufficient for the intelligence purposes for which it was prepared,u201D
it was manifestly u201Cnot sufficientu201D as the basis for detaining the
men as u201Cenemy combatants.u201D Referring to Hamdi v. Rumsfeld (a case
dealing with the detention on the U.S. mainland of a U.S. citizen
initially held at Guantnamo, which was decided by the Supreme Court
in June 2004, at the same time as Rasul v. Bush, which granted the
prisoners habeas rights), he concluded, u201CTo allow enemy combatancy
to rest on so thin a reed would be inconsistent with this Court's
obligation under the Supreme Court's decision in Hamdi to protect
petitioners from the risk of erroneous detention.u201D

And then,
after sidestepping the question of whether committing to a plan
to travel to Afghanistan to fight U.S. forces would be enough to
constitute u201Csupportu201D for al-Qaeda, Judge Leon delivered the final
blow. Declaring that, u201Cbecause the government has failed to establish
by a preponderance of the evidence the plan that is the exclusive
basis for the government's claim that Messrs. Boumediene, Nechla,
Boudella, Ait Idr, and Lahmar are enemy combatants, the Court must,
and will, grant their petitions and order their release.u201D

There was,
however, some consolation for the government, as Judge Leon also
ruled that, in Belkacem Bensayah's case, the government had provided
u201Ccredible and reliable evidence,u201D from a number of sources, u201Clinking
Mr. Bensayah to al-Qaeda and, more specifically, to a senior al-Qaeda
facilitator,u201D and also stated, u201CThere can be no question that facilitating
the travel of others to join the fight against the United States
in Afghanistan constitutes direct support to al-Qaeda in furtherance
of its objectives and that this amounts to u2018support' within the
meaning of the u2018enemy combatant' definition governing this case.u201D

Even so, it
would scarcely be possible to underestimate how crucial Judge Leon's
verdict is in discrediting the government's basis for holding prisoners
for nearly seven years without charge or trial, for three particular
reasons: it assumes enormous symbolic resonance as the first habeas
case to be decided in a courtroom; it comes at a time when Barack
Obama's transition team is beginning to look at a review
of the Guantnamo cases; and it was delivered with some stern advice
for the government from Judge Leon himself.

Evidently
drawing on his disdain for the quality of the classified information
used to detain the five men for nearly seven years, Judge Leon implored
the Justice Department, the Defense Department and the intelligence
agencies not to appeal his verdict, which would u201Cat a minimum, constitute
another 18 months to two years of their lives.u201D He added, u201CIt seems
to me that there comes a time when the desire to resolve novel,
legal questions and decisions which are not binding on my colleagues
pales in comparison to effecting a just result based on the state
of the record.u201D

While I will
not be content with Judge Leon's ruling until Lakhdar Boumediene,
Mohammed Nechla, Hadj Boudella, Mustafa Ait Idr and Sabir Lahmar
have actually been released from Guantnamo and are reunited with
their wives and children, I am also obliged to draw the attention
of readers to the extraordinary brutality to which these men have
been subjected in the last six years and ten months, and to ask
if their release – when it comes – will be sufficient
to eradicate the administration's crimes.

As three British
prisoners – Shafiq Rasul, Asif Iqbal and Rhuhel Ahmed, the
so-called u201CTipton Threeu201D – explained (PDF
) after their release from Guantnamo in 2004, the Bosnian Algerians
u201Cwere treated particularly badly. They were moved every two hours.
They were kept naked in their cells. They were taken to interrogation
for hours on end. They were short-shackled for sometimes days on
end. They were deprived of their sleep.u201D All the men were routinely
abused, but Mustafa Ait Idr seems to have been singled out for particularly
harsh punishment
.

During one
cell search, u201Cguards stuffed his face into the toilet and repeatedly
pressed the flush button,u201D and on another occasion u201Ca garden hose
was pushed into his mouth and the water turned on until [it] came
out of his mouth and nose and he couldn't breathe.u201D During an assault
by the Extreme Reaction Force (ERF), a group of armored guards responsible
for dealing brutally with even the most minor infringements of the
rules, he had two knuckles broken, and was thrown onto crushed stones
while a man jumped on the side of his head with his full weight,
which led to him suffering a stroke that left one side of his face
paralyzed. Despite requesting a hospital visit after this assault,
he did not receive medical treatment for ten days.

Even
after the sleep deprivation, isolation and use of painful stress
positions came to an end, the men were not free from pointless interrogations
and false allegations. At the time I was writing my book, The
Guantnamo Files
, new allegations had sprung up to plague
them, of which the most ludicrous was a claim that Hajj Boudella
was with Osama bin Laden during the Tora Bora campaign in Afghanistan
in November 2001, when of course, he was in jail in Sarajevo, but
the real reason that the men were still in Guantnamo was because
of the authorities' belief that they had ongoing intelligence value.

This was unexpectedly
revealed by Condoleezza Rice in March 2005, when she responded to
a request for their release from the Bosnian prime minister by stating
that it was not possible because u201Cthey still possess important intelligence
data,u201D and it was explicitly stated by Mustafa Ait Idr in the military
tribunal at Guantnamo in 2004 that concluded that he was being
correctly detained as an u201Cenemy combatant.u201D Ait Idr explained, u201CThe
interrogator told me I was there to give up informationu201D about Arabs
living in Bosnia, to which he replied, u201CThe story on the outside
was I was captured because of terrorism, and now here you are telling
me you want me to give up information about rescue organizations
and Arabs and how the Arabs are living.u201D

Judge Leon
may have done the right thing, but harvesting false allegations
and holding prisoners to mine them for their supposed intelligence
value remain an intrinsic part of the regime at Guantnamo, and
it is crucial that the government's supposed evidence is tested
as thoroughly in future habeas cases. The prisoners at Guantnamo,
who have always sought nothing more than a day in court, deserve
nothing less as the seventh anniversary of the opening of Guantnamo
approaches.

November
26, 2008

Andy
Worthington is the author of
The Guantánamo Files: The Stories of the 774 Detainees in
America’s Illegal Prison
(published by Pluto Press).
Visit his website.

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