WASHINGTON – In courtrooms barred to the public, dozens of terror suspects are pleading for their freedom from the Guantanamo Bay prison, sometimes even testifying on their own behalf by video from the U.S. naval base in Cuba.
Complying with a Supreme Court ruling last year, 15 federal judges in the U.S. courthouse here are giving detainees their day in court after years behind bars half a world away from their homelands.
The judges have found the government's evidence against 30 detainees wanting and ordered their release. That number could rise significantly because the judges are on track to hear challenges from dozens more prisoners.
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Scooped up along with hard-core terrorist suspects in Afghanistan, Pakistan and elsewhere, these 30 detainees stand in stark contrast to the 10 prisoners whom the Obama administration targeted for prosecution Friday for plotting the Sept. 11 and other terrorist attacks. Khalid Sheikh Mohammed, the professed mastermind of 9/11, and four of his alleged henchmen are headed for a federal civilian trial in New York; five others, including a top suspect in the bombing of the USS Cole, will be tried by a military commission.
More detainees are expected to soon be added to the prosecution list. But there will still be plenty of cases left among the 215 detainees now at Guantanamo to keep the judges here busy as they work to clear a legal morass the Bush administration created after the Sept. 11, 2001, attacks.
Bush administration Defense Secretary Donald Rumsfeld once promised Guantanamo held "the worst of the worst." The judges here have rejected pleas for release from eight detainees, but they have concluded the government doesn't even have enough evidence to keep 30 other detainees behind bars.
"There is absolutely no reason for this court to presume that the facts contained in the government's exhibits are accurate," District Judge Gladys Kessler wrote in ordering the release of Alla Ali Bin Ali Ahmed. He was repatriated to Yemen after a seven-year stay at Guantanamo, where he was brought as a teenager.
"Much of the factual material contained in those exhibits is hotly contested for a host of different reasons ranging from the fact that it contains second- and third-hand hearsay to allegations that it was obtained by torture to the fact that no statement purports to be a verbatim account of what was said," Kessler said. She ruled the government failed to prove the detainee was part of or substantially supported Taliban or al-Qaida forces.
The evidentiary record "is surprisingly bare," U.S. District Judge Colleen Kollar-Kotelly wrote in ordering the release of Fouad Mahmoud Al Rabiah, a 50-year-old father of four from Kuwait who had been an aviation engineer for Kuwaiti Airways for 20 years. He has been imprisoned at Guantanamo Bay since 2002.
Rabiah is one of dozens of men who won their cases in court or who have been cleared for transfer by the Obama administration who are still among the 215 detainees at Guantanamo. Finding countries willing to take the detainees has proved difficult. Since Obama took office, only 25 detainees have actually left.
In the case of a detainee from Syria, Abdulrahim Abdul Razak Al Ginco, who uses the surname Janko, U.S. District Judge Richard Leon pointed to evidence that the man had been tortured repeatedly by al-Qaida for three months into falsely confessing that he was a U.S. spy, then jailed for 18 months by the Taliban in Kandahar before he fell into the hands of U.S. forces.
"Notwithstanding these extraordinary intervening events, the government contends that Janko was still 'part of' the Taliban and/or al-Qaida when he was taken into custody," Leon wrote in ordering the detainee's release. "Surely extreme treatment of that nature evinces a total evisceration of whatever relationship might have existed!"
One detainee who lost his bid for freedom was Adham Mohammed Ali Awad, taken into custody seven years ago when he was a teenager.
"It seems ludicrous to believe that he poses a security threat now, but that is not for me to say, " wrote U.S. District Judge James Robertson.
"The case against Awad is gossamer thin," consisting of raw intelligence, multiple levels of hearsay and documents whose authenticity cannot be proven, said Robertson. "In the end, however, it appears more likely than not that Awad was, for some period of time, 'part of' al-Qaida."
The detainees' hearings — which usually last a day or two apiece — are expected to go well into next year, unless the Obama administration finds homes for them in other countries in the meantime.
Some 45 percent of the detainees are citizens of Yemen. Afghanistan is the home country of about one in 10 detainees. Saudi Arabia, Algeria and Tunisia together are home for about one in five, according to the Pentagon.
The courthouse's Guantanamo cleanup started with the Bush administration still in office, set in motion by the district judges just days after the Supreme Court ruled that detainees could go to civilian court to challenge their indefinite detention. After two earlier Supreme Court rulings in favor of the detainees, a Republican-controlled Congress stepped in to effectively keep detainees from seek freedom from civilian courts, but the Democratic-controlled Congress let the June 2008 ruling stand.
The district judges contacted the attorney general and the defense secretary to arrange for a secure video link to Guantanamo. A few judges have taken testimony by satellite from several detainees who wanted to speak on their own behalf.
Typically, the first half hour of a detainee's hearing is open to the public, with the prisoner listening by phone. Then the courtroom doors are locked, and the judges hear classified evidence.
The 15 judges' chambers were outfitted with safes, special laptop computers and printers and each of the judges' law clerks underwent background checks and was given a security clearance to deal with classified information that dominates the evidence.
One of the last bastions of judicial opposition to the detainees is the federal appeals court on the fifth floor of the courthouse.
There, a three-judge panel ruled the judges lack authority to order them released into the United States even if they have won their release and have nowhere else to go. Considered no threat to the United States, the detainees in that case are 17 Muslims, known as Uighurs. They were picked up in Afghanistan after fleeing western China and fear persecution if returned to China. The Supreme Court has agreed to hear their appeal, with a decision expected next spring. This year, the U.S. government found a home for four Uighurs in Bermuda and six on the Pacific island nation of Palau. The seven still at Guantanamo hope to live in the United States. To achieve that goal, their lawyers must persuade the Supreme Court to rule in their favor.
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