Sunday, July 4, 2010
A three-judge panel of the D.C. Circuit ruled that the government failed to support its argument that Guantanamo detainee Belkacem Bensayah was part of al Qaeda, but the panel gave the government a second bite at the apple by remanding the case to the D.C. District to consider any additional evidence the government might submit. The case, Bensayah v. Obama, was decided June 28, but just released last week.
The lower court ruled in favor of the government and upheld detention under the government's theory that Bensayah provided support to al Qaeda. But the government changed its argument on appeal: it argued to the D.C. Circuit that Bensayah was detainable because he was part of al Qaeda. (The change may have related to an internal administration dispute on the basis for detention, as reported here by the New York Times.)
The D.C. Circuit ruled that the government's evidence that supported the district court's ruling that Bensayah provided support to al Qaeda was insufficient to meet the higher standard that Bensayah was part of al Qaeda. We don't know precisely how insufficient, though, because a good part of the evidence is redacted. But the panel provides some clues in its critical account of the evidence between pages 13 and 17 of the opinion (linked above).
The ruling comes on the heels of another ruling against the government released just under a month ago. In that case, involving Yemeni Mohamed Mohamed Hassan Odaini, the district court detailed the administration's foot-dragging and shocking continued detention in the face repeated recommendations for release by the Defense Department itself.