Federal Judiciary

Judge rules against two detainees

By Akin Gump Supreme Court Practice Group

U.S. District Judge Richard J. Leon ruled on Tuesday that two Guantanam Bay detainees — nationals of Yemen and Tunisia — must remain prisoners of the U.S. military, finding that the government has proved that each is an “enemy combatant.”  In the most significant of the two separate rulings, the judge concluded that the government does not have to prove that a detainee uses arms against U.S. forces or against forces of its coalition partners, in order to fit the judge’s definition of an enemy associated with Al Qaeda or Taliban.

The ruling against the Yemeni captive, Moath Hamza Ahmed Al Alwi, can be found here.  The ruling against the Tunisian prisoner, Hisham Sliti, can be found here.

In both cases, Judge Leon appeared to have relied quite heavily on secret evidence provided by the government and discussed by the judge in separate classified versions of his Tuesday rulings. The judge found that the government had proved to him that the two individuals had traveled to Afghanistan to fight with Taliban forces or to carry on activities, including military training, with Al Qaeda associates or Taliban forces.

It was in Al Alwi’s case that Judge Leon made his ruling that the government need not prove that a detainee actually used arms against U.S. or coalition forces in order to be classified as an “enemy combatant” — the designation that determines the government’s continued authority to prolong detention at Guantanamo Bay.

Al Alwi, the judge ruled, had “close ties to Taliban and al Qaeda forces” before the U.S. attacked Afghanistan following the Sept. 11, 2001, terrorist attacks on the U.,S., and continued to serve with a Taliban unit after the U.S. began bombing targets in Afghanistan in October 2001.

The judge specifically declined to rule on government claims that Al Alwi had served as a bodyguard for Al Qaeda leader Usama Bin Laden, or that he had received military training at a camp closely tied to Al Qaeda.  Both of those accusations, the judge said, were based on statements the government obtained from other, unnamed detainees at Guantanamo.  The judge said he need not try to assess the reliability of these statements, because the government’s other evidence against Al Alwi had “considerable weight.”

Judge Leon, who has been moving more rapidly than his District Court colleagues in holding full trials of detainee habeas cases on his calendar, has now ruled on the fate of eight detainees.  He has ordered the release of five, and approved the continued detention of three.  Lawyers for an Algerian native against whom Leon had ruled in November — Belkacem Bensayah — on Tuesday formally notified the judge that they are appealing his decision to the D.C. Circuit Court.

Another judge has ordered the release of 13 detainees, but the government no longer contends that they are enemies.  Their fate, however, now awaits a ruling by the D.C. Circuit Court on an appeal by the government.

Full post as published by SCOTUSBLOG on December 30, 2008 (boomark / email).