Washington – An appeals court put government prosecutors on notice that they must show evidence that an Algerian detainee held at Guantanamo Bay, Cuba, for more than eight years is actually “part of” al Qaida, or set him free.
The decision reverses what had been a rare victory for the government since the Supreme Court ruled that Guantanamo detainees had the right to contest their incarceration in U.S. courts. Of the 50 cases that have been decided by district courts, the government has prevailed in only 14.
The appeals court overturned a lower court’s decision upholding the detention of Belkacem Bensayah, who was seized in Bosnia along with five other Algerians and shipped to Guantanamo in January 2002, and said the lower court must rehear the case.
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“The evidence upon which the district court relied in concluding Bensayah ‘supported’ al Qaeda is insufficient . . . to show he was part of that organization,” Judge Douglas Ginsburg wrote for the U.S. Court of Appeals for the District of Columbia Circuit.
U.S. District Judge Richard Leon ruled in November 2008 that the Pentagon could hold Bensayah in one of the first cases decided after the Supreme Court ruling.
In the same opinion, Leon ordered that the five other Algerians seized along with Bensayah be freed, including Lakhdar Boumediene, the named plaintiff in the Supreme Court habeas decision.
In the 17-page ruling issued Thursday, Ginsburg agreed that the Pentagon can hold people for being “part of al Qaida,” a looser standard than requiring that the government prove that an individual provided active support to al Qaida. However, the court found that the government hadn’t met even that burden.
The court said that Leon’s ruling had been undermined by developments since it was issued, including the Obama administration’s decision to drop a claim that one of the witnesses against Bensayah was a “senior al Qaida operative and facilitator.”
The name of the witness was redacted from the appeals court’s decision.
Without that testimony, “the government had presented no direct evidence of actual communication between Bensayah and any al Qaida member,” Ginsburg wrote, adding that mere “questions” about Bensayah’s credibility “in no way demonstrate that Bensayah had ties to and facilitated travel for al Qaida in 2001.”
Leon’s conclusion that Bensayah might have been an al Qaida travel facilitator because he had false travel documents also was incorrect, Ginsburg found.
“We agree” with Bensayah’s argument that “mere possession and use of false travel documents is neither proof of involvement with terrorism nor evidence of facilitation of travel by others,” Ginsburg wrote.
Leon’s judgment in Bensayah’s case was also flawed because he’d already found that there was no evidence that the people seized with Bensayah had planned to travel to Afghanistan to fight U.S. forces there.
“Therefore,” Ginsburg wrote, “Bensayah could not have been facilitating their travel for that purpose.”
Bensayah’s appellate attorney could not be reached Friday.
Ginsburg, who was appointed by President Ronald Reagan and once was a nominee for the Supreme Court, is generally a reliably conservative member of the D.C. circuit court, which is often called the nation’s second-highest court, overseeing many cases involving government actions.
The appellate court’s jurisdiction includes D.C.-based trial judges, including Leon, who’s upheld the detention of Guantanamo detainees more often than any other D.C. district judge. These judges will now have to take into account the appellate court’s reasoning in Bensayah’s case.
Bensayah, 47, was first jailed in October 2001 by Bosnian authorities on charges of planning to bomb the U.S. Embassy. An investigation, however, failed to turn up enough evidence and a Bosnian court ordered his release. Instead, however, he was turned over to U.S. authorities, who sent him to Guantanamo.
American officials initially claimed he was the “primary al Qaeda facilitator and financier in Bosnia and Herzegovina” and that he “attempted to travel to Afghanistan to engage U.S. forces,” but later dropped those allegations. No formal charges have been brought against him.
Bensayah, who’s married with two children, said he “sought better economic opportunities in Bosnia” and that he worked at a charitable organization and as a small-time trader of goods purchased on trips to Turkey.
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