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Federal judge rules Guantanamo detainee no longer 'enemy combatant'

By Bernard Hibbitts (editor) and University of Pittsburgh School of Law students.

[JURIST] A federal judge ordered the release of a Guantanamo Bay detainee Monday, ruling that the prisoner could not be considered part of a terrorist organization when originally taken into custody due to the "passage of time, intervening events, or both." Judge Richard Leon of the US District Court for the District of Columbia found that detainee Abdulrahim Abdul Razak Al Ginco could no longer be classified as an "enemy combatant" and that the government must "take all necessary and appropriate diplomatic steps" to facilitate his release. The government contended that Ginco was part of the Taliban when captured by US forces in 2002, despite being imprisoned and tortured by al Qaeda and then imprisoned by the Taliban for over eighteen months. According to the court, a pre-existing relationship between a person and a terrorist organization can be sufficiently attenuated over a period of time by an examination of the nature of the relationship and the intervening events as well as the amount of time that has passed between the relationship and time of custody. Leon addressed the government's argument that Ginco, referred to as Janko, was part of the Taliban or al Qaeda prior to being taken into custody, saying that their position "defies common sense" and:To say the least, five days at a guesthouse in Kabul combined with eighteen days at a training camp does not add up to a longstanding bond of brotherhood. ...hile there is no evidence - from either side - as to why he suddenly was suspected by al Qaeda leaders of spying and was tortured for months into giving a false confession, it is highly unlikely that by that point in time al Qaeda (or the Taliban) had any trust or confidence in him. Surely extreme treatment of that nature evinces a total evisceration of whatever relationship might have existed! Stated simply, absent proof to the contrary - which is totally lacking here - no remnant of that preexisting relationship appears to have survived.he combination of Janko's incarceration thereafter for a substantial eighteen-plus month period by the Taliban and subsequent abandonment by his captors when U.S. forces ultimately liberated Kandahar, is even more definitive proof that any preexisting relationship had been utterly destroyed.The released order does not reflect the full decision of the court, as it only discusses unclassified evidence and does not mention much the government's evidence, which consisted of sensitive intelligence reports.Leon has previously ruled in favor of the government's broad "enemy combatant" classification. In December, Leon allowed the US government to hold two Guantanamo Bay detainees despite their filed habeas corpus petitions, finding that the government had met its burden of showing that the prisoners were being lawfully detained as "enemy combatants." In both cases, Leon specified that the government did not have to make a showing that the men engaged in hostilities towards the US or its allies to meet that classification. In November, Leon ordered the release of five Algerian detainees in the first rulings on habeas petition since the 2008 Supreme Court decision in Boumediene v. Bush granting them the right to challenge their detention. In that case, he found that the government had not provided enough evidence to show that the men had been engaged in or supported hostilities against the US or its allies, but did find that a sixth man could continue to be lawfully detained.

Full post as published by JURIST - The Paper Chase on June 23, 2009 (boomark / email).