Late last week, a panel of the DC Court of Appeals ruled that Belkacem Bensayah, an Algerian-born Bosnian detainee in Gitmo, is not part of al-Qaeda.
"The government presented no direct evidence of actual communication between Bensayah and any Al Qaeda member, much less evidence suggesting Bensayah communicated with" anyone else to facilitate travel by an Al Qaeda member, Judge Douglas H. Ginsburg wrote in a 17-page opinion that was declassified late last week. Parts of the ruling were censored by the government.
Full ruling is available here.
Back in 2008, a federal judge ruled that Bensayah could be held without trial because as a supporter of al-Qaeda, he was an unlawful combatant. However, in 2009, the Obama administration reclassified him as merely "part" of al-Qaeda--a much narrower definition. It even backed away from evidence that the Bush Justice Department had presented--reportedly claims he'd communicated with Abu Zubaydah.
Ginsburg ruled, however, that the evidence the Obama administration did stand by didn't prove any link between Bensayah and al-Qaeda.
The government stuck with other evidence, including a raw intelligence report whose contents were largely redacted from the opinion, as well as accusations that Mr. Bensayah had used fraudulent documents and might have lied about his travel in the early 1990s. But Judge Ginsburg said "the evidence, viewed in isolation or together, is insufficiently corroborative" of the accusation that Mr. Bensayah was part of Al Qaeda.
The uncertainty about his travel history, the judge wrote, "at most undermines Bensayah’s own credibility; no account of his whereabouts ties him to Al Qaeda or suggests he facilitated anyone’s travel during that time. These ‘questions’ in no way demonstrate that Bensayah had ties to and facilitated travel for Al Qaeda in 2001."
The only sad part about this is that Bensayah might not be able to get any compensation for his nine years in captivity. I could be wrong here, but given that a lot of the ruling was redacted, the government might be able to scuttle any civil suit using the state secrets privilege. This is despite the fact Justice appeared to back away from arguments Bush's people made and Ginsburg ruled what was left didn't prove any link.
Bensayah's family has been waiting in Bosnia for him for awhile. Hopefully the administration will do the right thing and let him go back there.