5 Detainees Ordered Released From Guantanamo

A federal judge in Washington has ordered the Bush administration to release five detainees from the prison camp at Guantanamo Bay, Cuba. The men have been held there for seven years on evidence the judge finds insufficient. The ruling is the first by a trial judge since the Supreme Court declared in June that the Guantanamo prisoners have the right to challenge their detentions in U.S. courts.

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A federal judge has dealt the Bush administration another setback over the Guantanamo Bay prison camp. The judge - who, by the way, was appointed by President Bush - ordered the release of five Bosnian citizens held for seven years at Guantanamo. Yesterday's ruling was the first since the Supreme Court decided the detainees have the right to go to court to challenge their detentions. Here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG: Yesterday's ruling by conservative judge Richard Leon does not bode well for the Bush administration, and it sends a warning signal to other judges here in Washington who will soon be reviewing other detainee cases from Guantanamo, a warning that the government's representations may not be entirely reliable. Judge Leon's decision involved six Bosnians who were arrested shortly after 9/11. President Bush in his 2002 State of the Union speech actually singled them out as examples of the terrorist threat.

(Soundbite of State of the Union Address, January 29, 2002)

President GEORGE W. BUSH: Our soldiers working with the Bosnian government seized terrorists who were plotting to bomb our embassy.

TOTENBERG: The Bosnian citizens, all born in Algeria, were arrested in their homes in Sarajevo, after U.S. officials told the Bosnian government the men were involved in a plot to blow up the U.S. embassy. Bosnian authorities then joined with Interpol and the U.S. to conduct an investigation, at the end of which the Bosnian Supreme Court, with the concurrence of the Bosnian prosecutor, ruled that the charges were not supported by the evidence. The court ordered the men released, but they were turned over to U.S. authorities and sent to Guantanamo, where they've remained ever since.

Last year, the case went to the Supreme Court, and the justices ruled that these men, and all others at Gitmo, have a constitutional right to challenge their detentions in federal court. But as Judge Leon's opinion made clear yesterday, when the men got their day in court, the evidence seemed to evaporate like the morning mist. The government long ago gave up its claim that the men had been plotting to blow up the U.S. embassy. Instead, there were other charges, some of which the government also ended up withdrawing. In one case, the government was relying on a witness who turned out to be not only a convicted felon but a person repudiated by the government itself in another case as a liar, whose testimony could not be believed.

The Bosnian case had other curiosities. The government's 60-page narrative of facts was not signed by any Justice Department lawyer. Usually, every such filing assigned by a government lawyer attesting to the government's good-faith belief in the veracity of the facts as presented. In this case, the factual narrative was filed without any signature. In the end, the government's only charge as to five of the detainees was that they had planned to go to Afghanistan to fight U.S. forces there and that such a plan constituted aid to terrorists. Yesterday, though, Judge Leon ruled that there were no reliable facts to support even that allegation. The sole piece of evidence, he said, came from a single intelligence source whose reliability could not be corroborated. As to the sixth Bosnian, he said, there was enough evidence to justify his detention.

And then Judge Leon did something rare; he, for all practical purposes, pleaded with the Bush administration not to appeal his ruling. The government is certainly entitled to appeal, he said, but that would take another year and a half. And these men, he said, deserve, after seven years, not to wait any longer to go home to Bosnia, where their wives and children still live. Unlike other countries that have refused to take back cleared Guantanamo prisoners, Bosnia has said in the past it is willing to take these men back. The Bush administration now has 60 days to appeal. The appeal deadline is January 20th, Inauguration Day. Nina Totenberg, NPR News, Washington.

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Judge Orders 5 Freed From Guantanamo

A federal judge ordered the release of five Bosnian citizens Thursday who have been held for seven years at the U.S. military base in Guantanamo Bay, Cuba.

Judge Richard Leon, a conservative Bush appointee, found that there was no evidence to justify the detention of the men, who are all native-born Algerians who moved to Bosnia in the early 1990s.

This was the first ruling since the Supreme Court declared in June that detainees at Guantanamo have a right under the U.S. Constitution to challenge the basis for their indefinite detention.

Leon's ruling Thursday had particular force, not only because he is a conservative Bush appointee, but because he had previously sided with the government, declaring that the men had no right to challenge their detentions.

Indeed, it was his earlier ruling that eventually got to the Supreme Court and was reversed by a 5-to-4 vote.

Writing for the Supreme Court majority in June, Justice Anthony Kennedy said that the system set up by the Bush administration — and ratified by Congress — was fraught with the risk of error because the detainees had no right to counsel, no meaningful way of knowing what the allegations against them were, and no chance to rebut evidence against them.

The cases ruled on Thursday were the first to provide all of those safeguards, and in five of the six cases, Leon concluded there simply was no corroborated evidence against the men and that indeed, the sole basis for their detention was a single uncorroborated piece of raw intelligence.

In the case of the sixth man, however, he concluded there was corroboration, and that his detention is justified.

Reading his opinion from the bench, Leon did something few remember any judge doing. He noted that the government is within its right to appeal his order, but he urged what he called the senior leadership of the government not to. Seven years of waiting for our legal system to give these men an answer, he said, is long enough.

The courtroom scene was dramatic, with the detainees hooked up by phone at Guantanamo, and interpreters there to translate the proceedings.

Sitting in Washington, D.C., before the judge was a phalanx of lawyers who have spent thousands of hours on this case, including Seth Waxman, who served as the government's chief appellate lawyer in the Clinton administration, and argued the Bosnians' case in the Supreme Court.

"There was a lot of eye-wiping and handkerchief-reaching; it was very emotional," Waxman said. "I mean these guys have been held for seven years following their detention investigation in Sarajevo."

Indeed, the facts of the case ruled on Thursday are extraordinary, even in the context of Guantanamo. The men were arrested in their homes shortly after Sept. 11, 2001.

U.S. officials said the men were involved in a plot to blow up a U.S. embassy.

Bosnian authorities then joined with Interpol and the U.S. to conduct a three-month investigation, at the end of which the Bosnian Supreme Court, with the concurrence of the Bosnian prosecutor, ruled that the charge was not supported by the evidence. The court ordered the men released, but they were quickly rearrested, turned over to the U.S. and taken to Guantanamo, where they have remained since.

With this as the first of many Guantanamo cases due to be reviewed by federal judges in the coming months, Thursday's ruling will likely be seen as a signal to other judges to be skeptical of the government representations.

In fact, the case ruled on today has become a prime example of the moving target the government has presented as legal justification for many of the detentions.

In his State of the Union address in 2002, President Bush outlined the basis for holding the Bosnians.

"Our soldiers working with the Bosnian government see terrorists who are plotting to bomb our embassy," Bush said at the time.

The government, however, later abandoned this claim and moved on to a number of other claims, which similarly were later withdrawn when they could not be substantiated.

A Justice Department spokesman declined to say whether the government would appeal Thursday's ruling. The Bosnian government has said in the past it is willing to allow these detainees to come back to their homes, where their wives and children still live.

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