U.S. Returns Bosnians From Guantanamo

The United States has repatriated three Guantanamo prisoners to Bosnia. They are three of the five detainees that a federal judge had ordered the government to release. He said the government had only an unreliable tip that the men were planning to engage in terrorism with al-Qaida and he urged the Justice Department not to appeal his ruling.

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For the first time since the prison camp opened at Guantanamo Bay, the U.S. has sent detainees home on the orders of a federal judge. This morning, three Bosnians landed in Sarajevo. They were briefly taken into custody by Bosnian officials and then released to their families. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG: In June, the U.S. Supreme Court, in a case involving six Bosnians, ruled that the detainees at Guantanamo have the right to challenge their detentions in court. Last month, Judge Richard Leon, a conservative Bush appointee, held the first proceeding to carry out that mandate. He ruled there was no credible evidence to justify detaining five of the men and ordered them released immediately. What's more, he urged the Bush administration not to appeal his ruling, saying it would only delay the release of men held almost seven years without any basis. Today, without any public announcement, three of the men were flown home. Word of the release came from their lawyers - among them, Stephen Oleskey.

STEPHEN OLESKEY: Unfortunately, apparently, our government chose to send them back shackled and hooded on the 20 hour or so plane ride from Guantanamo after they had been declared free men who should no longer be held. But at least they're home.

TOTENBERG: And Oleskey says they're elated.

OLESKEY: I just talked to one of our clients in Sarajevo. They're having a party.

TOTENBERG: The background sounds of greetings from friends, relatives, wives and children, he said, was so chaotic that any real description of the reunion will have to wait for another day. There was no explanation from the Defense Department as to why two of the Bosnians ordered released remain at Guantanamo. Lawyers for the group theorize that the three men who are home now are Algerian-born Bosnian citizens, while the two still at Gitmo are Bosnian residents, but not citizens.

Ironically, one of the men still at Gitmo, Lakhdar Boumediene, was the lead plaintiff in the case that led to the landmark Supreme Court ruling on detainee rights. He was stripped of his Bosnian citizenship in 2006. For the past two years, he's been on a hunger strike and force-fed. His lawyer, Mr. Oleskey, says he's down to 129 pounds.

OLESKEY: He's not a healthy person, but he has said repeatedly to us that he will not stop hunger striking until he steps off a plane a free man. Of course, he was made a free man on November 20, and we hope that our government will make that a reality before January 20.

TOTENBERG: The saga of these Bosnian men is extraordinary, even in the context of Guantanamo. They were arrested in their homes shortly after 9/11 when U.S. government officials informed Bosnian government authorities that the men were involved in a plot to blow up the U.S. Embassy. Bosnian authorities then joined with the U.S. and Interpol to conduct an investigation, at the end of which, the Bosnian Supreme Court, with the concurrence of the Bosnian prosecutor, ordered the men released. They were, however, rearrested and sent to Guantanamo where they have remained ever since.

The U.S. government long ago conceded they were not involved in a plot to blow up the embassy, and Bosnian authorities have long said they would accept the men back into the country. Now it appears the Bosnian government may be hesitant to repatriate non-citizens, especially non-citizens characterized by the U.S. government for years as dangerous. Diplomatic negotiations are continuing. 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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