Under Court Order, Administration Prepares Detainee Transfers Three Men Held as Enemy Combatants to Return to Bosnia
By Peter Finn
Washington Post Staff Writer
Monday, December 15, 2008; 6:46 PM
The Bush administration has decided to transfer three Algerian detainees to their adopted homeland of Bosnia and Herzegovina, a decision that partially complies with the order of a federal judge who said last month that five Algerians should be released "forthwith," rejecting government allegations that the men were dangerous enemy combatants.
But Lakhdar Boumediene, the Algerian whose name is associated with a landmark Supreme Court decision regarding the legal rights of those held at the Guantanamo Bay, Cuba, naval base, remains in limbo despite the U.S. District Court ruling and the imminent release of his countrymen.
Administration officials and other sources, who declined to be identified because of the sensitivity of the issue, said today that authorities at the base have begun to prepare for a transfer, a process that includes moving detainees to a pre-release facility at Guantanamo and their conducting exit interviews with the International Committee of the Red Cross. Three of the men have had exit interviews in recent days, sources said.
A Pentagon spokeswoman declined to comment, citing operational concerns.
The ICRC also declined to comment.
The State Department has been negotiating with the Bosnian government over the transfer of the five men, administration officials said, but authorities in Sarajevo have agreed so far only to accept those detainees who hold Bosnian citizenship -- Mohamed Nechle, Mustafa Ait Idir and Hadj Boudella. The governments continue to discuss the fate of two other Algerians, Saber Lahmar, a former legal resident of Bosnia, and Boumediene, who was stripped of his citizenship during a court proceeding in Sarajevo.
The men were seized by U.S. troops in Sarajevo in early 2002 despite the fact that a Bosnian court said there was insufficient evidence to sustain charges that they were planning to blow up the U.S. embassy there. In an action coordinated with the Bosnian government, the Algerians were detained by U.S. troops as they walked out of a detention center.
The men were flown to Guantanamo Bay, where they have been imprisoned since, even though the Chamber for Human Rights, the internationally-chaired top human rights body in Bosnia, called on the United States to leave four of the suspects in the country.
Boumediene subsequently sued President Bush for the right to challenge his detention in federal court, an action forbidden by the Military Commissions Act. In June, the Supreme Court ruled for Boudmediene, granting his request for habeas corpus in a 5 to 4 decision.
Hundreds of Arab fighters fought during the 1992-95 war in Bosnia, a former Yugoslav republic, and some stayed behind after the war and married Bosnian women. In the immediate aftermath of the Sept. 11, 2001, attacks, some American officials raised concerns that the country was a haven for Islamic extremists.
In October, the Justice Department withdrew without explanation the embassy bombing allegation, but it continued to charge that the men planned to travel to Afghanistan to attack U.S. forces.
U.S. District Judge Richard J. Leon said last month that the evidence against the men came from one unnamed source in a classified document, which he described as a "thin reed." Leon was the first judge to rule that the government had insufficient evidence to hold a Guantanamo detainee.
Leon ruled, however, that the continued detention of a sixth Algerian and former Bosnian citizen, Belkacem Bensayah, was proper. U.S.
officials said Bensayah had regular contact with senior military aides to Osama bin Laden and logged dozens of phone calls to Afghanistan after Sept. 11 and before his arrest by Bosnian authorities in 2001.
Judge Leon urged the government to "end this process" and not to appeal his decision to release the other five Algerians.
"Seven years of waiting for a legal system to give them an answer . . .
in my judgment is more than enough," Leon said.
Lawyers for the men welcomed the imminent release of the three detainees, but said the government should quickly secure a commitment from Bosnia that Boumediene and Lahmar can return to Sarajevo as well.
"We're encouraged, but the court said this should happen for all five men and I'm hoping that the United States is doing what the court instructed, which is taking all diplomatic and legal steps to get all of these men home," said Rob Kirsch, an attorney at the law firm of WilmerHale, which represented the six men in federal court.
The firm plans to appeal the continued detention of Bensayah.
Staff researcher Julie Tate contributed to this report