Thursday, November 20, 2008

Court Orders Five G-Mo Detainees Released on Habeas

Judge Richard J. Leon of the U.S. District Court for the District of Columbia today ordered five Algerians released from Guantanamo Bay after nearly seven years of detention.  Judge Leon ruled that a sixth was lawfully detained as an "enemy combatant."  All six brought habeas claims (under Boumediene) challenging their status as "enemy combatants" and thus challenging their continued detention.  NYT reports here.

Judge Leon's ruling is here.

As is now familiar, the government argued that it could detain petitioners as "enemy combatants" pursuant to the Authorization for Military Force and the President's Commander-in-Chief powers.  The question for the court thus turned on whether the government showed, by a preponderance of the evidence, that petitioners were in fact "enemy combatants."

The government's evidence against them?  Slim, to say the least.  The court:

To support its claim that petitioners had a plan to travel to Afghanistan to engage U.S. and allied forces [and therefore were detainable "enemy combatants"], the Government relies exclusively on the information contained in a classified document from an unnamed source.  This source is the only evidence in the record directly supporting each detainee's alleged knowledge of, or commitment to, this supposed plan.  And while the Government has provided some information about the source's credibility and reliability, it has not provided the Court with enough information to adequately evaluate the credibility and reliability of this source's information. . . .  Because I cannot, on the record before me, adequately assess the credibility and reliability of the sole source information relied upon, for five of the petitioners, to prove an alleged plan by them to travel to Afghanistan to engage U.S. and coalition forces, the Government has failed to carry its burden with respect to these petitioners.  Unfortunately, due to the classified nature of the Government's evidence, I cannot be more specific about the deficiencies of the Government's case at this time.

(We've seen government source documents before.  Here's the Mobbs Declaration in Hamdi; here's the Mobbs Declaration in Padilla.)

I've previously posted on this case here and here.

SDS

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