5 Ordered Released From Guantanamo

November 21, 2008

The whole thing started 7 years ago with the Bush administration’ claim that they had caught 6 Arab men who planned to blow up the US embassy in Sarajevo, Bosnia. President Bush touted the capture as a big success in the Global War On Terror in his 2002 State of the Union Address:

“Our soldiers, working with the Bosnian government, seized terrorists who were plotting to bomb our embassy.”

Here’s a fuller description of the capture from Glenn Greenwald:

“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.”

These 6 men, all Algerian, were then held at the facility at Guantanamo Bay under these conditions (again from Greenwald):

“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.'”

The 6 were held at Guatanamo under these brutal conditions for 7 years without any recourse to the courts. In 2006, the US Congress passed the Military Commissions Act (and I’m proud to say that both of Massachusetts’s 2 senators and all of Mass.’s House members voted against this act), which, among other things, formally stripped Guantanamo detainees of their right to habeas corpus, the right to challenge their detention in a courtroom (a right recognized under English and American law that goes back at least SEVEN centuries).

Then, this year:

“The six men are among a group of Guantánamo inmates who won a 5-to-4 Supreme Court ruling in June that the detainees had a constitutional right to seek their release in federal court. The decision said a 2006 law unconstitutionally stripped them of their right to contest their imprisonment in habeas corpus lawsuits.” (NY Times)

That case was Boumediene v. Bush (Lakhdar Boumediene is one of the 6 Algerians, and also is among the 5 just ordered to be released), which John McCain greeted with these words: “The Supreme Court yesterday rendered a decision which I think is one of the worst decisions in the history of this country.” In other words, it apparently ranks right up there with Dred Scott v. Sandford, the 1857 Supreme Court case that ruled that African-Americans could never be US citizens, and that Congress lacked the power to prohibit slavery in US territories. I’ll assume Sarah Palin has no opinion on Boumediene (or Dred Scott), as she could not name a Supreme Court case apart from Roe v. Wade.

As a result of the Supreme Court decision, the 6 Algerians sought a habeas corpus hearing in the DC Federal District Court (a very conservative court, incidentally). The men could not appear in court themselves, so listened in via telephone to the proceedings. Here’s the result:

“A federal judge issued the Bush administration a sharp setback on Thursday, ruling that five Algerian men have been held unlawfully at the Guantánamo Bay detention camp for nearly seven years and ordering their release.

It was the first hearing on the government’s evidence for holding detainees at Guantánamo. The judge, Richard J. Leon of Federal District Court in Washington, said the government’s secret evidence in the case had been weak: what he described as ‘a classified document from an unnamed source’ for its central claim against the men, with little way to measure credibility.

‘To rest on so thin a reed would be inconsistent with this court’s obligation,’ Judge Leon said. He urged the government not to appeal and said the men should be released ‘forthwith.'”

So what about that plot to blow up our embassy? Well, as it turns out, the Justice Department backed away from that accusation before the case even went into court:

“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.” (Greenwald)

So no bomb plot, but they were going to go to Afghanistan and fight with the bad guys. Only not, according to the judge:

“A weeklong hearing for the Algerians, in which all of the evidence was heard in proceedings that were closed to the public, was the first in which the Justice Department was required to present its full justification for holding specific detainees since the Supreme Court ruling.

Judge Leon, in a ruling from the bench, said the information gathered on the men had been sufficient for intelligence purposes but not for the court.

He said the government’s case, which contended that the five men planned to travel to Afghanistan and take up arms against the United States, relied exclusively on information obtained from the single unnamed source.” (NY Times)

So there you go – a single unnamed source. So this Judge Leon must be a super-left-wing guy on the side of the Terrorists, right?

“Judge Leon, who was appointed by President Bush, ruled in 2005 that the men had no habeas corpus rights, and he had been expected to be sympathetic to the government in the current case.

As he read his decision in a quiet courtroom, he seemed to bridle at the Supreme Court’s ruling, saying its effect was ‘to superimpose the habeas corpus process into the world of intelligence gathering.'”

This certainly doesn’t sound like a lefty treehugger to me (Bush appointed him!!) – it sounds as if this judge was forced by the law to rule the way he did would personally have rather seen these guys locked up forever. AND he was the federal judge who ruled against Boumediene in the first place.

Here’s Greenwald on Leon:

“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.”

Wow. To reiterate: appointed by Bush, Republican counsel on Iran-Contra and Whitewater, was in the DoJ under Reagan and the first Bush. Again: wow. And yet, how long do you think it will take before the right-wing noise machine and Fox News start screaming that this guy’s a far-lefty?

So what now? The judge ruled against the Bush administration and ordered the release of these five men, saying that the evidence against them is insufficient to justify their detention (to put it mildly). In other words, 5 men were picked up in a foreign country, taken to Cuba, and held and tortured for 7 years, all without any justification and without so much as a hearing in a courtroom. Seriously. But this DOES NOT mean that these 5 will actually be released:

“If the government appeals they could remain there [at Guatanamo] indefinitely. If it does not, one of their lawyers, Stephen H. Oleskey, said he expected that they would return to Bosnia, where they would be freed.” (NY Times)

So in other words, if the government wants to appeal (which the judge urged them not to do), then these guys aren’t going anywhere, at least not until Obama takes office in January. It’s unlikely the government could win an appeal, especially given that they’ve just lost before what should have been the friendliest judge to their case they could have hoped for. However, let’s recall the Uighur case:

“Last month, another federal judge in Washington, Ricardo M. Urbina, ordered the release of 17 ethnic Uighur detainees from China [held by the US at Guatanamo Bay]. But Judge Urbina did not hold a hearing on the evidence because the government conceded that the men were not enemy combatants, and said it was continuing to hold the Uighurs because it could not find a country willing to accept them.

The Justice Department is appealing Judge Urbina’s ruling. Arguments are scheduled for Monday in the United States Courts of Appeals in Washington.”

So, just to make this clear, in another case, the government continues to hold 17 men WITHOUT ANY ACCUSATIONS OF WRONGDOING because they claim there’s nowhere to send them – they can’t go back to China (the Chinese government would likely execute them), they don’t want them in the United States, and nobody else will step up to take them, so they sit in what is essentially hell for lack of anywhere else to go. And if the government is willing to appeal that case, they’re probably willing to appeal any case. And just kick the ball a little further down the road and let Obama handle the mess.

Read the whole NY Times article here.

Read Glenn Greenwald’s piece here.

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