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Brennan Linsley/AP
Detainees are seen from a tower overlooking a common area where Guantanamo detainees
gather, at camp 4 detention facility at the U.S. Naval Base, in
Guantanamo Bay, Cuba (AP)

Impact of Gitmo Release Could Be Minimal, Say Judge and Experts

November 21, 2008 03:03 PM
by Christopher Coats
A landmark ruling deciding the fate of five Algerians held at Guantanamo Bay could support the wave of detainee appeals emerging from the controversial detention center, though experts warn of overconfidence.

No Sign of Things to Come, Says Judge

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Coming five months after the Supreme Court struck down Section 7 of the Military Commissions Act, which denied the right to habeas corpus to “enemy combatants” held at Guantanamo, a Washington, D.C., judge ordered the five prisoners to be released “forthwith.”

However, both the judge and legal experts have warned that the prisoners in question represent a truly unique case and should not be taken as a sign of further releases.

“These men were far from the worst-of-the-worst, or the sorts of ‘killers’ that the White House has called the detainees at Guantanamo Bay,” CBS legal expert Andrew Cohen said. “So in many ways this is not a true test of the power of the civilian courts to release terror suspects.”

Further, Judge Richard Leon, the Bush-appointed justice who passed down the ruling, stated that the case was unique and “should not be read as a reflection on the strength of the cases against other detainees, more than 200 of whom have filed habeas corpus cases,” according to The New York Times.

The case emerged from the June Supreme Court case, Boumediene v. Bush, which was decided by a 5-4 vote, opening the door for detainees to challenge their incarceration in U.S. courts.

The federal case was filed by Lakhdar Boumediene, one of the Algerian prisoners.

Held for seven years, the detainees were accused of planning to take up arms against the United States in Afghanistan, but never faced actual charges or “credible evidence” during their time in Cuba.

Issued by Leon on Thursday, the ruling found that the United States had “failed to show by burden of proof” that the petitioners had such intentions, and further advised prosecutors to forgo an appeal due to the lengthy period the prisoners had waited for a final judgment.

Background: A lightening rod for criticism

Established in Jan. 2002 to hold those accused of terrorism following the attacks of Sept. 11, the detention center now holds over 250 prisoners, many without charge.

The controversial center has attracted international criticism for alleged human rights abuses and an unfair judicial system and became a point of debate during the 2008 presidential election, with both candidates promising to shutter the center as soon as possible.

However, this task has proven to be more difficult than first suggested due to issues of relocation and controversy surrounding where the prisoners would be tried and what rights they would be allowed should they travel to the United States for trial.

The five Algerians ordered to be released were arrested in 2002, not in Afghanistan or on a battlefield, but in Bosnia, where they lived. Part of a group of six who had moved there years earlier to fight alongside Muslim groups against Serb forces, the men were rounded up amid allegations that they were planning to bomb the U.S. embassy in Sarajevo.

Held for three months in Bosnia, the prisoners were released into U.S. custody and sent to Guantanamo Bay, a transfer that Bosnian authorities now say came under duress from U.S. diplomatic and intelligence services, according to a lengthy report on the events in Mother Jones.

Unable to produce credible evidence tying the six to an embassy bombing plot, the Algerians were eventually charged with planning to travel to Afghanistan to take up arms against the United States—a charge that was not adequately supported, according to Judge Leon’s final ruling.

Leon also stated that the incarceration of the sixth Algerian arrested in Sarajevo was justified and he was not to be released.

Opinion & Analysis: Both cases could mean more

Following the June ruling on Boumediene v. Bush, Richard A. Epstein, law professor at the University of Chicago, took to the pages of The New York Times and outlined what the reversal of Section 7 of the Military Commissions Act could mean for detainees.

Rejecting critics views that the ruling was “a license to allow hardened terrorists to go free,” Epstein asserted that “[i]t is a rejection of the alarmist view that our fragile geopolitical position requires abandoning our commitment to preventing Star Chamber proceedings that result in arbitrary incarceration.”

Relating it to the current case, Glenn Greenwald writes at Salon that this marks the “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.’”
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