Five detainees ordered released "forthwith" after seven years at Guantanamo

If the U.S. Congress had its way, these men would continue to be imprisoned despite there being no evidence of their guilt.

Published November 20, 2008 6:29PM (EST)

(updated below - Update II) 

A federal district judge, Richard Leon, today ordered the Bush administration "forthwith" to release five Algerian detainees who have been held in Guantanamo without charges since January, 2002 -- almost seven full years.   The decision was based on the court's finding that there was no credible evidence that the 5 detainees intended to take up arms against the U.S.  The court found sufficient evidence to justify the ongoing detention of a sixth Algerian detainee.

When they were detained in 2001 in Bosnia, the Bush administration claimed that they were plotting to bomb the U.S. embassy in Sarajevo.  But once they were shipped to Guantanamo, the U.S. backed off that accusation and instead claimed they intended to travel to Afghanistan to fight against the U.S.

I don't want to say too much about the legal reasoning behind the decision because it was just issued via an oral ruling from the bench, and I haven't yet been able to obtain a copy of the judge's decision.  For now, then, the following can be noted about this landmark ruling -- the first time a court has ruled that the Government's evidence is insufficient to justify ongoing imprisonment of a detainee as an "enemy combatant":

(1)  These 5 detainees were able to be heard in federal court only because the U.S. Supreme Court in the Boumediene case last June -- in a ruling John McCain called "one of the worst decisions in the history of this country" -- struck down as unconstitutional Section 7 of the Military Commissions Act, which had purported to abolish habeas corpus for Guantanamo detainees and prohibit them from challenging their detention in a federal court.  The release order today resulted from the habeas corpus right which the Military Commissions Act purported to abolish but which the Boumediene Court restored.  Appropriately enough, one of the 5 detainees who won his freedom today was the named plaintiff in that case, Lakhdar Boumediene.

(2) The five men ordered released today have been imprisoned in a cage by the Bush administration for 7 straight years without being charged with any crimes and without there being any credible evidence that they did anything wrong.  If the members of Congress who voted for the Military Commissions Act had their way (see them here and here), or if the four Supreme Court Justices in the Boumediene minority had theirs, the Bush administration would nonetheless have been empowered to keep them encaged indefinitely, for the rest of their lives if desired, without ever having to charge them with any crime or allow them to step foot into a courtroom to petition for habeas corpus.  

In addition to every Republican Senator (except Chafee), those voting to authorize that repellent power include Jay Rockefeller, Ken Salazar, Tom Carper, Ben and Bill Nelson, Debbie Stabenow, and Joe Lieberman.

(3) Judge Leon is a Bush-43 appointed Judge known as a right-wing ideologue and known for ruling in favor of the Government and for expansive executive power.  He was Deputy Chief counsel for the Republicans on the Iran-Contra Committee in 1987, was Special Counsel to the Senate Banking Committee for the Whitewater investigation, and worked for both the Reagan and Bush 41 Justice Departments.  That Judge Leon -- of all judges -- ruled that there was no credible evidence to suggest that these detainees are "enemy combatants" is as compelling a sign as one can imagine that there is no such evidence.

Simply juxtapose that finding with the fact that these men have been imprisoned for seven straight years with no meaningful due process, and one can vividly see the grotesque injustices we have wrought with Guantanamo and our denial of basic due process to detainees.  That is a stain -- one of many -- that will never be fully expunged.


UPDATE:  Here is a gut-wrenching account of what these detainees have endured (h/t Ondelette).  The Bosnian Prosecutor who investigated their initial detention back in 2001 (which was effectuated at the behest of the U.S.) concluded they ought to be released, but the Bosnian Government succumbed to the pressure of the Bush administration and turned them over to the U.S. as they were being released ("hooded, shackled, and packed into waiting cars while their horrified families watched"), after which they were shipped to Guantanamo.

One of the detainees ordered released today had a wife who was pregnant at the time he was shipped to Guantanamo, who then gave birth to a daughter, now 6, whom he has never met.  Another of the Bosnian-Algerians had an infant daughter at the time he was put in Guantanamo who died last year of congenital heart disease at the age of 6.  Another of them "suffered months of facial paralysis from a brutal beating inflicted by Guantanamo camp soldiers."  And then there's this, about one of the other detainees, Saber Lahmer:

When we last saw Saber in November, he was in his sixth month of solitary confinement. Since August, he has seen us, his legal team, twice and a psychiatrist on three brief occasions. For a few minutes each day, he sees the camp guards who bring his meals. He has had no other human contact. The glaring lights in his cell are on 24 hours a day, seven days a week. When we left the cell, we could hear Saber shouting -- brief, truncated cries. We could not understand what he was saying.

According to Human Rights Watch, that detainee -- "a university-educated father of two who once taught at the Islamic Cultural Center in Bosnia" -- "continues to be housed 22 hours a day in a single cell, with nothing to occupy his time other than his Koran" and "now reports that he is going blind in his left eye, a result that he attributes to being housed in cells with fluorescent lights on 24 hours a day."

We haven't just imprisoned people with no evidence in cages for years.  We've kept them encaged under often brutal and extreme conditions, many in unbroken solitary confinement for years.  Today, a federal court ruled that for 5 of these men, there is no credible evidence that they did anything wrong, and if most of our political class -- which supported the Military Commissions Act-- had its way, they wouldn't have even had this hearing at all.


UPDATE II:  The court's ruling is here (.pdf -- h/t sysprog).  Because the evidence on which the Bush administration relied to justify these detentions is classified, the court is unable to discuss it in any detail.  As a result, the decision is rather short, and, in essence, emphatically concludes that the evidence submitted by the Government is not credible and does not satisfy the evidentiary burden required in a habeas proceeding to justify ongoing detention.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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