First Guantánamo Prisoner To Lose Habeas Hearing Appeals Ruling


Belkacem BensayahSo here’s a little-noticed story, courtesy of the Blog of Legal Times. Back in November last year, Belkacem Bensayah, an Algerian who had been living in Bosnia since the 1990s, was the first prisoner to lose his habeas corpus appeal. The judge, Bush appointee Richard Leon, granted the appeals of the five men who had been kidnapped with him from Sarajevo in January 2002 and flown to Guantánamo (after being imprisoned, investigated and declared innocent by the Bosnian authorities, who had been pressed by the Bush administration to investigate them in connection with an alleged plot to blow up the US embassy).

Although Judge Leon ruled that the government (having never mentioned the bomb plot once the men arrived in Guantánamo) had failed to establish that the five men intended to travel to Afghanistan to take up arms against US forces (a claim it had conjured up during their long imprisonment, based solely on classified information from an unnamed source, which Judge Leon found “inadequate”), he ruled that Bensayah could continue to be held as an “enemy combatant,” because the government had provided “credible and reliable evidence,” from a number of sources, “linking Mr. Bensayah to al-Qaeda and, more specifically, to a senior al-Qaeda facilitator.” Leon also stated, “There can be no question that facilitating the travel of others to join the fight against the United States in Afghanistan constitutes direct support to al-Qaeda in furtherance of its objectives and that this amounts to ‘support’ within the meaning of the ‘enemy combatant’ definition governing this case.”

Last week, as BLT noted, a panel of the D.C. Circuit Court of Appeals — comprising Judges Douglas Ginsburg and Karen LeCraft Henderson, with Senior Judge Harry Edwards — began hearing an appeal in Bensayah’s case, in which his lawyers “are challenging, among other things, the admission of certain evidence and the legal definition of ‘enemy combatant.’” BLT added that, as with the original habeas case, which was held in closed hearings, “Much of the record in the D.C. Circuit is classified and under seal,” although the court “released heavily redacted versions of the briefs on Sept. 11.”

In a brief filed in June, Marc Fleming, one of Bensayah’s lawyers, claimed that Judge Leon relied on “unfinished” intelligence reports and “uncorroborated assertions from anonymous sources” in making his ruling, and added, “The court’s ruling authorizes military imprisonment for mere intention, without finding that Mr. Bensayah acted affirmatively to advance any military objectives. Whatever authority the Executive has to detain alleged ‘enemy combatants,’ it cannot extend to cases of mere ‘intention’ without proof of any action.”

Fleming also explained that Judge Leon had “refused to order the government to search for exculpatory information,” adding that it was only provided to him in April this year (although BLT noted that the Justice Department said that the information, which is classified, “supports Leon’s judgment”).

Fleming also stated that, two weeks before Judge Leon made his ruling, on the evening of November 11, 2008, he chastised the government for not being “in a zone where you are meeting the standards set by the [court],” regarding the provision of relevant information, before giving the Justice Department “a second chance,” and that, as a result, government lawyers submitted more classified information to the court, but at such a late date that Bensayah’s lawyers had only 31 hours to research the new information, which was “insufficient time,” according to Fleming, who added that a request from the judge for further time to deal with the documentation was denied.

In the run-up to Bensayah’s appeal, Justice Department lawyer Sharon Swingle sent a letter to the court, dated August 28, stating that the government was “prepared to argue the case in open court so long as no classified information is discussed,” but that the courtroom would have to be cleared “if the appellate judges wanted to ask about classified information.” “The Department of Justice has provided classified material to the Court with the understanding that the secrecy of this information will be protected,” she explained.

In response, Fleming said that “the inability to argue classified information in open court would hurt Bensayah’s effort to have Leon’s order reversed.” In a reply to the court, he wrote, “We certainly believe that there is a strong public interest in this appeal, and we would welcome an argument in open session if the government were to agree that the record below and all of the rulings under appeal could be discussed publicly. Absent such an agreement by the government, however, Mr. Bensayah’s contentions on appeal cannot be meaningfully presented or assessed in open session, because oral argument necessarily will require reference to the classified record and the classified briefs.”

Despite Fleming’s protestations, the judges sided with the Justice Department. The case continues on September 24, in a session closed to the public, when Fleming and his colleagues will be hoping that the judges will accept that “mere ‘intention’ without proof of any action” is insufficient to justify Bensayah’s continued detention as one of only seven Guantánamo prisoners to have lost their habeas appeals (out of 36 in total).

Note: A statement submitted to the court by Belkacem Bensayah in his habeas case is here, and see the following for a list of all the exhibits submitted in the case of Bensayah and the other five men (Boumediene v. Bush). In the most recent commentary on the men’s cases, in the Huffington Post on August 24, Seema Jilani wrote: “In 2001, the US reportedly tapped [Bensayah’s] mobile phone conversations with Abu Zubaydah, allegedly an al-Qaeda operative. In an interview in Bosnia, Anela Belkacem, Bensayah’s wife, states they did not have enough money to own a mobile phone. According to [one of his lawyers, Stephen] Oleskey, ‘The Bosnian police couldn’t even get this number to work.’ Anela claims her husband ‘has been sacrificed … No one wants to admit they made a big mistake in detaining these men.’”

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and also see my definitive Guantánamo prisoner list, published in March 2009.

For a sequence of articles dealing with the Guantánamo habeas cases, see: Guantánamo and the Supreme Court: the most important habeas corpus case in modern history and Guantánamo and the Supreme Court: What Happened? (both December 2007), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), Guantánamo as Alice in Wonderland (Uighurs’ first court victory, June 2008), What’s Happening with the Guantánamo cases? (July 2008), Government Says Six Years Is Not Long Enough To Prepare Evidence (September 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (November 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), The Top Ten Judges of 2008 (January 2009), No End in Sight for the “Enemy Combatants” of Guantánamo (January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Lies, Damned Lies and Statistics (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), The Nobodies Formerly Known As Enemy Combatants (March 2009), Farce at Guantánamo, as cleared prisoner’s habeas petition is denied (April 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), Guantánamo: A Prison Built On Lies (May 2009), Free The Guantánamo Uighurs! (May 2009), Guantánamo And The Courts (Part One): Exposing The Bush Administration’s Lies (July 2009), Obama’s Failure To Deliver Justice To The Last Tajik In Guantánamo (July 2009), Obama And The Deadline For Closing Guantánamo: It’s Worse Than You Think (July 2009), How Judge Huvelle Humiliated The Government In Guantánamo Case (Mohamed Jawad, July 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Guantánamo As Hotel California: You Can Check Out Any Time You Like, But You Can Never Leave (August 2009), Judge Orders Release From Guantánamo Of Kuwaiti Charity Worker (August 2009), Guantánamo And The Courts (Part Two): Obama’s Shame (August 2009), Guantánamo And The Courts (Part Three): Obama’s Continuing Shame (August 2009), No Escape From Guantánamo: The Latest Habeas Rulings (September 2009).

Also see: Justice extends to Bagram, Guantánamo’s Dark Mirror (April 2009), Judge Rules That Afghan “Rendered” To Bagram In 2002 Has No Rights (July 2009), Bagram Isn’t The New Guantánamo, It’s The Old Guantánamo (August 2009), Obama Brings Guantánamo And Rendition To Bagram (And Not The Geneva Conventions) and Is Bagram Obama’s New Secret Prison? (both September 2009).

4 Responses

  1. Four Men Leave Guantánamo; Two Face Ill-Defined Trials In Italy « says...

    […] District Court Judge Richard Leon, a no-nonsense appointee of President George W. Bush, granted the habeas corpus petitions of five of the six men, including Lahmar, after concluding that the government had provided no credible evidence that, as was alleged in place of the bomb plot, they intended to travel to Afghanistan to take up arms against US forces. The sixth man, Belkacem Bansayah, was ruled to be legally detained as an “enemy combatant,” based on the government’s claims that he was “link[ed] to al-Qaeda and, more specifically, to a senior al-Qaeda facilitator,” although he is currently appealing the ruling. […]

  2. Innocent Guantánamo Torture Victim Fouad al-Rabiah Is Released In Kuwait « says...

    […] Shame (August 2009), No Escape From Guantánamo: The Latest Habeas Rulings (September 2009), First Guantánamo Prisoner To Lose Habeas Hearing Appeals Ruling (September 2009), A Truly Shocking Guantánamo Story: Judge Confirms That An Innocent Man Was […]

  3. What Does It Take to Get Out of Obama’s Guantanamo? says...

    […] prisoners who have lost their habeas petitions have mounted appeals, but only one, on behalf of Belkacem Bensayah, an Algerian whose habeas petition was denied in November 2008, has begun to be heard by the Court […]

  4. An Insignificant Yemeni at Guantánamo Loses His Habeas Petition « says...

    […] Shame (August 2009), No Escape From Guantánamo: The Latest Habeas Rulings (September 2009), First Guantánamo Prisoner To Lose Habeas Hearing Appeals Ruling (September 2009), A Truly Shocking Guantánamo Story: Judge Confirms That An Innocent Man Was […]

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Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo and We Stand With Shaker. Also, photo-journalist (The State of London), and singer and songwriter (The Four Fathers).
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