This article first appeared in the St. Louis Beacon: November 20, 2008 - Judge Richard Leon ordered five of six Algerians released. The Algerians had been arrested in 2001 in Sarajevo for allegely plotting to blow up the U.S. embassy there. President Bush even mentioned the plot in the 2002 State of the Union speech. More recently, the government has dropped that claim, but maintained the men had planned to go to Afghanistan to fight with the Taliban and al-Qaida.
Judge Leon said that the single intelligence source relied upon by the government was not enough to justify the men's detention. He said there was no way to corroborate the intelligence source's information or to judge the source's reliability. The judge said that the government could continue to hold the sixth man, about whom there was corroborating evidence.
Judge Leon is a conservative appointee of President Bush's who ruled earlier in the case that the detainees should not have a right to challenge their detention in federal court. But the Supreme Court overruled that decision last term.
Below you can read an analysis of Judge Leon's decision by Robert Chesney, a national security law expert.
Judge Leon's decision: https://ecf.dcd.uscourts.gov/
Chesney analysis:
Judge Leon framed the question as follows, citing the Case Management Order he previously had issued: had the government presented proof sufficient to establish by a preponderance of the evidence that the detainees were part of or supporting al Qaeda, the Taliban, or associated forces engaged in hostilities against the U.S. or its allies (including persons who committed belligerent acts or who “directly supported” hostilities).
The government argued that all 6 men planned to go to Afghanistan to fight against the US. It also alleged that one of the men – Belkacem Bensayah – was an al Qaeda member who served a “facilitator” function (i.e., that he recruited fighters and assisted their transit to Afghanistan). The government did not at this stage still contend that the men had plotted to attack the US embassy in Bosnia, nor that Bensayah was a financier as opposed to a “facilitator”.
To support the claim that the men planned to go to Afghanistan to fight, the government appears to have relied on a single document citing an unnamed source. Judge Leon described the document as tending to show at least something about each detainee’s knowledge of and desire to participate in such a plan, but concluded that the government had not provided sufficient information about this source to establish his/her credibility. As there was no corroborating evidence, Judge Leon concluded that the government had failed to satisfy the preponderance standard as to the Afghanistan argument. (Note: Judge Leon did not say that the document was sufficient to support detention for purposes of intelligence gathering, as some have reported, but rather simply observed that the document in issue may have been useful as an item of intelligence but was not a sufficient evidentiary predicate for detention). Judge Leon expressly reserved decision as to whether the government would have been justified in detaining these individuals if the evidence had supported the claim that they had hoped to go to Afghanistan to fight (i.e., whether the intention to do this constitutes “support” within the meaning of the enemy combatant definition).
This left the question of whether the government had adequate proof that Bensayah was an al Qaeda member and “facilitator”. Here, the government relied not just on the above-mentioned document, but other intelligence reports “based on a variety of sources and evidence” which corroborated this claim. Judge Leon explained that the government’s evidence (i) linked Bensayah to al Qaeda in general and a senior al Qaeda facilitator in particular; (ii) established Bensayah’s capacity to travel internationally on false passports in multiple names; and (iii) tended to discredit Bensayah’s attempt to explain away the government’s allegations. From this, Judge Leon concluded that the government met its burden with respect to Bensayah in terms of showing both that he intended to go to Afghanistan to fight the US and also that he sought to help others travel to Afghanistan to do the same. According to Judge Leon, “there can be no question” that this constituted “direct support” to al Qaeda, making him eligible for military detention.
Bottom line: numerically it was a defeat for the government, but the government prevailed in a significant way insofar as Judge Leon has affirmed (i) the government’s power to use military detention at least as to those who intended to fight or help others to fight against the US and (ii) that at least one of these men falls into that category.