Originally published December 29, 2008 at politics unlocked.com.
In a significant enemy combatant case, Boumediene v. George W. Bush, five men, who have been held at Guantanamo Bay detention facility, have been ordered to be released, while one continues to be detained.
The five released, who had previously been denied an opportunity to challenge their detention in court, owe their freedom in part to a Supreme Court decision earlier this year granting Guantanamo Bay detainees the right of habeas corpus, to challenge their detention is U.S. courts.
After the Sept. 11 attacks, President George W. Bush, guided by Vice-President Richard (Dick) Cheney and Defense Secretary Donald Rumsfeld, adopted aggressive defense strategies to deal with the nation’s security. While the administration’s geopolitical approach was to demand cooperation from foreign powers, and eventually to conduct wars in Afghanistan and Iraq, the administration also needed to handle the enemy one by one.
The attacks had shown that a small number of individuals using the element of surprise could cause extraordinary destruction and loss of life. Fearing more attacks, the administration ramped up its world-wide hunt for terrorists. As arrests were made, the Bush administration created new procedures for placing those captured into U.S. military detention facilities rather than providing them with the opportunity for civil or military trials.
It was often said that the worst of the worst were placed in a U.S. military prison facility at Guantanamo Bay, Cuba. The administration took the position that prisoners at this facility were not entitled to a trial or the right to challenge their detention in U.S. courts. In many cases, the U.S. government refused to allow lawyers to contact prisoners and rarely released the names of persons being held.
Concerned that some prisoners were wrongly held or were subject to torture, yet lacking a good alternative, civil libertarians, lawyers groups, family and friends staged theatrical photo ops outside the Supreme Court, argued their cases in the press and lobbied the government of behalf of the detainees.
Meanwhile, legal appeals to the administration’s position have slowly worked their way through the courts and gradually defined what rights detainees do have. The courts have not rubber stamped the Bush administration’s plans and have significantly increased the rights provided to detainees.
The Supreme Court ruled in 2008 that Guantanamo Bay detainees have the right of habeas corpus to challenge the legality of their detention. This right provides judicial review of the government’s decision to designate and hold someone, but does not expressly provide the constitutional protections of a criminal trial. Further, the Court in another detainee case, Hamdi, indicated that the courts have an obligation to protect prisoners from the risk of erroneous detention.
Under the Supreme Court ruling, six men were given a new hearing before U.S. District Court Judge Richard Leon in Washington, D.C. They had all been in custody since 2001, when they were arrested in Southern Europe by the Bosnian government for alleged involvement in a plot to bomb the U.S. embassy in Sarajevo. They were subsequently turned over to U.S. authorities and sent to the U.S. Naval Station at Guantanamo Bay.
A Bush administration appointee, Judge Leon conducted the hearings in private because of the presence of classified information, but the order of the court made public a number of issues in the case.
The Bush administration argued that the defendants had a plan to travel to Afghanistan and fight U.S. and coalition forces there. They made no claims regarding the previously alleged embassy plot.
The detainees, Lakhdar Boumediene, Mohamed Nechla, Hadj Boudella, Belkacem Bensayah, Mustafa Ait Idir, and Saber Lahmar were represented by counsel, who argued that the government had failed to show the six Algerian-born men were enemy combatants.
The Judge first defined an “enemy combatant” as “an individual who was part of or supporting Taliban or Al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.”
Judge Leon concluded that the government failed to meet its burden of convincing the court that a plan existed. The court did not fully elaborate on the reasons for its decision, noting that classified material could not be revealed.
None-the-less, Judge Leon granted the five habeas petitions and ordered those prisoners’ be released. The court also ruled that a sixth defendant was in fact an enemy combatant based on evidence showing ties to Al Qaeda that was not present in the case against the other five petitioners. The sixth defendant will remain in military custody.
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