As the Guantánamo prisoners’ habeas corpus petitions wind their way through the courts, the Obama and Bush Administrations have scored remarkably few victories—and many of them have come from the same judge, Bush appointee Richard J. Leon. Now an equally conservative appeals panel of the D.C. Circuit has overturned one of those denials and directed a new hearing for Algerian prisoner Belkacem Bensayah, offering a serious rebuke to Leon over the way he’s been handling his cases.
Bensayah was one of six Algerians seized in connection with what has become known as “the Bosnian subplot,” an alleged plot against U.S. interests in the Balkans. Five of the six were ordered released by Judge Leon, who concluded that the United States presented no meaningful evidence linking them to terrorist plots. As for Bensayah, however, Leon concluded that the government had “put forth more than credible evidence that” he had dealings with an unnamed individual who was a senior Al Qaeda operator.
The Court of Appeals conducted its hearings in camera, and so many of the submissions to the court were classified that it’s difficult to make out exactly what went on. However, it’s clear that the thrust of the attack on appeal, handled by WilmerHale partner Mark Fleming, focused on Leon’s willingness to accept unsubstantiated intelligence analysis as evidence. The Legal Times noted that a declassified part of his brief argued that:
Leon relied on “unfinished, conclusory intelligence reports and uncorroborated assertions from anonymous sources.” The judge refused to order the government to search for exculpatory information, which Fleming said was later provided to him in April 2009.
As its declassified opinion (PDF) makes clear, the Court of Appeals bought this argument. Judge Ginsburg wrote:
The Government presented no direct evidence of actual communication between Bensayah and any Al Qaeda member, much less evidence suggesting that Bensayah communicated with [redacted name] or anyone else in order to facilitate travel by an Al Qaeda member.
The Bush Administration made extravagant claims to the effect that Bensayah was an Al Qaeda functionary, but the Obama Administration, acknowledging that the evidence did not warrant these claims, pulled back substantially, calling him only a “functional part” of the terrorist organization. Many observers expected the appeals court ruling to turn on the legality of this new definition. It did not. Charlie Savage nails this point in his penetrating analysis of the ruling for the New York Times: “Still, Judge Ginsburg’s opinion suggested that the appeals court ruling turned less on the recategorization of Mr. Bensayah’s alleged ties to Al Qaeda than on skepticism about the basic credibility of the evidence the government presented against him.” The ruling is clearly about the character of the evidence the government presented and Judge Leon’s decision to rely on it. Leon seems to have accepted unsubstantiated conjecture as a substitute for fact. In this regard, it is important that the Justice Department withdrew a good portion of the evidence on which it secured the earlier ruling against Bensayah, apparently because it concluded that the evidence was not credible.
So the Bensayah case goes back for another hearing, but with the appeals court’s rulings and the severely eroded case against him, it seems likely that he will join his five colleagues.
The point that emerges from these hearings is not that Bensayah is innocent but rather that he was at best an exceedingly peripheral player—not the sort of Al Qaeda leadership figure for whom the detention facilities in Guantánamo were designed. The Justice Department had good evidence tying Bensayah to the use of fraudulent travel documents–evidence that could well have sufficed for his prosecution in a foreign court and his incarceration.
The Bensayah case allows us to chart the twisted path of the Justice Department. Unable to cope with the truth and the failings of their own case, they spewed irresponsible propaganda through media leaks and attempted to snow the court with evidence that was not evidence. The hope was that the hysteria they whipped up, coupled with the partisan political fidelity of a handful of judges, would serve their needs and spare them the embarrassment of more defeats in court. The mission of the Justice Department throughout this exercise is transparently political: spare the White House more embarrassment as a result of its decision to fill Guantánamo with hundreds of nobodies and then lie to the world about who they are by calling them the “worst of the worst.” The Justice Department did not behave like a law enforcement agency at any point along the way. Rather it worked overtime to subvert justice and enforcement of the law. The case of Belkacem Bensayah is a powerful testimony to a Justice Department that has lost sight of its name. The wave of habeas corpus defeats they now suffer at the hands of some of the most conservative Republicans in the federal judiciary offers testimony to the fact that the system is still–though belatedly–holding their misconduct in check.
