guantanmo: habeas right victory and press ban rift

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http://www.mcclatchydc.com/2010/07/02/96987/government-loses-appeal-in-guantanamo.html

Government loses appeal in Guantanamo habeas case

July 2, 2010
Michael Doyle
McClatchy Newspapers

WASHINGTON — An appeals court put government prosecutors on notice that they must show evidence that an Algerian detainee held at Guantanamo Bay, Cuba, for more than eight years is actually "part of" al Qaida, or set him free.

The decision reverses what had been a rare victory for the government since the Supreme Court ruled that Guantanamo detainees had the right to contest their incarceration in U.S. courts. Of the 50 cases that have been decided by district courts, the government has prevailed in only 14.

The appeals court overturned a lower court's decision upholding the detention of Belkacem Bensayah, who was seized in Bosnia along with five other Algerians and shipped to Guantanamo in January 2002, and said the lower court must rehear the case.

"The evidence upon which the district court relied in concluding Bensayah 'supported' al Qaeda is insufficient . . . to show he was part of that organization," Judge Douglas Ginsburg wrote for the U.S. Court of Appeals for the District of Columbia Circuit.

U.S. District Judge Richard Leon ruled in November 2008 that the Pentagon could hold Bensayah in one of the first cases decided after the Supreme Court ruling.

In the same opinion, Leon ordered that the five other Algerians seized along with Bensayah be freed, including Lakhdar Boumediene, the named plaintiff in the Supreme Court habeas decision.

In the 17-page ruling issued Thursday, Ginsburg agreed that the Pentagon can hold people for being "part of al Qaida," a looser standard than requiring that the government prove that an individual provided active support to al Qaida. However, the court found that the government hadn't met even that burden.

The court said that Leon's ruling had been undermined by developments since it was issued, including the Obama administration's decision to drop a claim that one of the witnesses against Bensayah was a "senior al Qaida operative and facilitator."

The name of the witness was redacted from the appeals court's decision.

Without that testimony, "the government had presented no direct evidence of actual communication between Bensayah and any al Qaida member," Ginsburg wrote, adding that mere "questions" about Bensayah's credibility "in no way demonstrate that Bensayah had ties to and facilitated travel for al Qaida in 2001."

Leon's conclusion that Bensayah might have been an al Qaida travel facilitator because he had false travel documents also was incorrect, Ginsburg found.

"We agree" with Bensayah's argument that "mere possession and use of false travel documents is neither proof of involvement with terrorism nor evidence of facilitation of travel by others," Ginsburg wrote.

Leon's judgment in Bensayah's case was also flawed because he'd already found that there was no evidence that the people seized with Bensayah had planned to travel to Afghanistan to fight U.S. forces there.

"Therefore," Ginsburg wrote, "Bensayah could not have been facilitating their travel for that purpose."

Bensayah's appellate attorney could not be reached Friday.

Ginsburg, who was appointed by President Ronald Reagan and once was a nominee for the Supreme Court, is generally a reliably conservative member of the D.C. circuit court, which is often called the nation's second-highest court, overseeing many cases involving government actions.

The appellate court's jurisdiction includes D.C.-based trial judges, including Leon, who's upheld the detention of Guantanamo detainees more often than any other D.C. district judge. These judges will now have to take into account the appellate court's reasoning in Bensayah's case.

Bensayah, 47, was first jailed in October 2001 by Bosnian authorities on charges of planning to bomb the U.S. Embassy. An investigation, however, failed to turn up enough evidence and a Bosnian court ordered his release. Instead, however, he was turned over to U.S. authorities, who sent him to Guantanamo.

American officials initially claimed he was the "primary al Qaeda facilitator and financier in Bosnia and Herzegovina" and that he "attempted to travel to Afghanistan to engage U.S. forces," but later dropped those allegations. No formal charges have been brought against him.

Bensayah, who's married with two children, said he "sought better economic opportunities in Bosnia" and that he worked at a charitable organization and as a small-time trader of goods purchased on trips to Turkey.

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http://www.vancouversun.com/news/Guantanamo+reporters+illegal+News+companies/3229826/story.html

Ban on Guantanamo reporters is illegal: News companies

Lesley Clark, McClatchy-Tribune
July 2, 2010

WASHINGTON — A coalition of major news organizations is challenging as unconstitutional Pentagon rules that were used in May to ban four reporters from covering military commissions at Guantanamo Bay, Cuba.

In a letter to Pentagon General Counsel Jeh Johnson, the organizations argue that the Pentagon's interpretation of the rules is "plainly illegal" because it bars publication of information considered "protected" even if the information is already widely known and publicly available.

Such a restriction is "a 'classic example' of a prior restraint" that "the Supreme Court repeatedly has refused to allow . . . even in the name of national security," the organizations said.

The organizations include McClatchy Newspapers, which owns The Miami Herald and 30 other newspapers, The Associated Press, Dow Jones & Co., The New York Times, Reuters and The Washington Post.

The Pentagon has agreed to lift the ban on the four reporters on Aug. 5. That, however, isn't enough, the organizations said, noting that the hearing the reporters were covering resumes on July 12.

The Pentagon, the organizations said, must lift the ban immediately so that the reporters can return and revise the 13 pages of rules that reporters are required to sign before covering military hearings for detainees held at Guantanamo.

"There must be a sufficiently strong, legitimate government interest before a contractual condition may legally restrict a citizen's First Amendment rights," attorney David Schulz wrote on the news organizations' behalf. "As demonstrated above, no such legitimate interest justifies the overly broad censorship imposed by the ground rules."

A spokesman for the Pentagon said Johnson's office had received the letter, but declined further comment.

The case stems from a hearing for Omar Khadr, 23, a Canadian who has been held at the offshore detention camp since he was seized in Afghanistan at the age of 15 and charged with throwing a grenade that killed Army Sgt. First Class Christopher Speer. Khadr claims that he was abused during his interrogation and is seeking to exclude the evidence gleaned from the questioning.

Before a court session, Miami Herald reporter Carol Rosenberg and three Canadian journalists published the name of a witness that the government had said should be identified as "Interrogator No. 1." The name of the witness, former Army Sgt. Joshua Claus, had been known for years after he voluntarily gave newspaper interviews in Canada denying that he'd abused Khadr. Claus also had been convicted by a U.S. court martial of abusing detainees in Afghanistan and sentenced to five months in prison.

The letter to the Pentagon notes that Khadr's Wikipedia biography identifies Claus as Khadr's main interrogator.

"We don't dispute their authority to restrict information to protect national security and witnesses, but they can't exercise that authority to prohibit reporters who happen to be in Guantanamo from reporting information that is known to the rest of the world," Schulz said in an interview.

The complaint also faulted the Pentagon for leaving the decision on whether a reporter has violated the rules to Pentagon public affairs officers, saying that by law only a military judge has the authority to make such a ruling. The organizations said that Congress required that military commissions be open to news reporters and international representatives.

"Where Congress has mandated proceedings open to the press, and permitted a limitation of access by a military judge only in those circumstances where necessary to protect national security or ensure physical safety," the Pentagon "cannot unilaterally impose restrictions upon access by reporters."

David Tomlin, the associate general counsel of The Associated Press, said the news agency also has concerns about rules that permit public affairs officers on the island to delete photographs and video they consider "security violations."

"This new issue . . . resonates very much with us," Tomlin said. "We understand that in a high security situation, run by a large organization with a lot of demands on it, the review isn't going to be completely uniform. But we need somebody at some higher level of authority and familiarity with the real priorities of protection to review and make sure that some overprotective lower level officer isn't just taking the easy way out and deleting images when in doubt."

David McCraw, an attorney for the New York Times, said most news organizations respect legitimate national security needs, but he noted that Congress has declared that the military commissions at Guantanamo "should be as public and transparent as possible."

"We're optimistic that some Department of Defense attorneys will understand the issues, and maybe we can find a way to get to a set of rules that work for both sides," McCraw said. "If the government is going to take the position of preventing us from publishing information we found independently, those are rules we can't live with, and I don't think it benefits anyone."