After seven years in detention, five of six Algerian terror suspects at the US prison at Guantanamo Bay, Cuba have been ordered freed by a federal district judge. In his decision, Judge Richard Leon, a Bush appointee, noted that the government had provided enough evidence to continue holding the sixth Algerian, Belkacem Bensayah, who is accused of helping others travel to Afghanistan to join al-Qaida in its attacks on US interests.  Washington attorney Annemarie Brennan has been following the trial for Amnesty International and its Counterterror with Justice program.She points out that government prosecutors failed to show that the other defendants had assisted in the subversion campaign.

“Although the information was likely sufficient for intelligence purposes, it was not legally sufficient to hold them as enemy combatants within the US legal system,” she said.

Thursday’s decision follows a landmark US Supreme Court ruling back in June that determined that the detainees had the legal right to contest their imprisonment.Attorneys for the Algerians had argued that the prisoners should not be considered enemy combatants because they had not actually been captured on the battlefield in Afghanistan.

In its June decision, the court rejected prosecution claims that the men, who were taken into custody in Bosnia in 2001, were planning to travel to Afghanistan to join al-Qaida. The Supreme Court gave the five detainees, who included Algerian Boumediene Lakhdar, the right to challenge their Guantanamo imprisonment in court.Amnesty International’s Annemarie Brennan says she’s not sure whether Judge Leon was convinced by that verdict that US prosecutors lacked sufficient evidence.But she contends that the direction charted out by the Supreme Court made it possible for yesterday’s setback of the government’s case.

“It was the Boumediene decision in June, 2008 that struck down the portion of the military commission’s act that stripped the courts of the right to hear these cases.I think he (Judge Leon) felt he had the authority now to go forward on that.That said, I think there was some speculation that the case actually would come out the other way.This judge, I believe, was a Bush appointee, and thought to be fairly conservative.And so I think there were some people who were surprised by the outcome,” Brennan noted.

The US Defense Department says the government plans to appeal yesterday’s ruling.However, with US President-Elect Barack Obama looking into ways to close down Guantanamo, Brennan says the future disposition of a prosecution appeal may change.

“It’s going to be necessary for them to weigh the possible benefits of continuing to prosecute, or at least to detain these men with the fact that they really have what’s been a series of losing court battles.And I’m not sure if continually having people named not-enemy combatants helps their case at all.In the case of these five men, the judge cautioned them (the prosecution) to take a hard look at the evidence and suggested that any appeal would take at least 18 months to two years to play out.And he really seemed to be suggesting that even if they did pursue an appeal, it would end up in the same decision,” she explains.

During the recent US presidential campaign, both Senators Obama and John McCain agreed that it would be hard for the US government to justify continuing to operate Guantanamo during their presidential terms.

“I’m not surprised that the current administration would like to move forward with that appeal, but I don’t know if the next administration will find that the best use of time or resources,” said Brennan.

If Thursday’s court order is upheld, Brennan says the five detainees would likely be repatriated either to Algeria, if security and conditions ensuring their safety permit, or to Bosnia, where she says some of them maintain residency, or to another destination where they will be allowed to move on with their lives.

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