U.S. Is Set to Release 3 Detainees From Base

U.S. Is Set to Release 3 Detainees From Base

By WILLIAM GLABERSON, The New York Times, December 15, 2008, Source

The Bush administration is preparing to transfer to Bosnia three Guantánamo detainees whom a court ordered freed last month after the first court hearing into the evidence the government used for detaining men at the prison.

The transfers would be the first releases from the prison made by the Bush administration because of a court order. There have been years of legal challenges over the detention camp at the American naval base at Guantánamo Bay, Cuba, which accepted its first detainees seven years ago next month.

The three men, originally from Algeria, are to be returned to Bosnia and Herzegovina, where they had obtained citizenship by the time they were detained in 2001. At the time, the American government said it had evidence that they and three other Bosnians also originally from Algeria had been planning a bomb attack on the United States Embassy in Sarajevo.

The transfer, which has not been formally announced by the Pentagon, was a signal that the administration was acknowledging its defeat in the first habeas corpus case to reach a full factual hearing since the Supreme Court ruled last June that detainees at Guantánamo had a constitutional right to contest their detentions in federal court.

After hearing a week of secret evidence in the case of the six Bosnians, a federal district judge in Washington, Richard J. Leon, ruled last month that the evidence presented by the government had not been sufficient to prove that five of the men were enemy combatants.

Judge Leon urged the administration to free the men, and not to appeal the ruling, saying that seven years was long enough for them to get a court decision. The ruling drew international attention, in part because it was the first full court test of the government’s detention evidence and because Judge Leon, considered a conservative, was an appointee of President Bush.

Stephen H. Oleskey, one of the lawyers for the men, said he had been told by people in Guantánamo and Bosnia that the transfer was imminent.

“It’s tragic that it took seven years and the ruination of their lives to accomplish this,” Mr. Oleskey said. He has said he expects Bosnia to free the men.

But he said it appeared the administration was continuing to resist a full acknowledgment of its legal defeat by continuing to hold two of the men ordered released. “Why aren’t five of them on the plane and only three?” Mr. Oleskey said.

A military official confirmed that a transfer was imminent, speaking anonymously because of administration policy that transfers are not announced until they are complete.

The detainee for whom the Supreme Court ruling was named, one of the six Algerians who had been living in Bosnia, Lakhdar Boumediene, was not to be among the three released, evidently because he had been stripped of his Bosnian citizenship at the time of his detention because of questions about how he obtained it.

The Supreme Court ruling opened the door for more than 200 habeas corpus claims by other detainees, which are now pending in federal court in Washington.

The case against the six men offered the latest example of the administration’s pattern of changing strategy in its legal defense of the detention camp. On the eve of the hearing before Judge Leon, the Justice Department said it was abandoning its claims about the embassy bombing plot. Instead, it claimed in court that the men had been planning to go to Afghanistan to fight Americans.

The Justice Department has not said whether it plans to appeal Judge Leon’s ruling. The transfer, which was expected to be completed Monday night, was the first indication that the government had concluded it could no longer fight to keep the men detained.

The three men who are to be transferred were Mohamed Nechle, Mustafa Ait Idir and Hadj Boudella, the defense official said.