The Bridge

A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit has ruled that War on Terra prisoner Belkacem Bensayah cannot be considered a “part” of Al Qaeda, based on the “evidence” the government presented against him.

The 17-page opinion, written by Judge Douglas H. Ginsburg, was declassified on July 1. Like the recent order from Judge Henry Kennedy commanding the release of War on Terra prisoner Mohamed Mohamed Hassan Odaini (see here and here), significant portions of Ginsburg’s opinion have been “redacted.” And also like Kennedy’s order, those redacted portions reference information provided by Abu Zubaydah.

Zubaydah is the Original Sin of the War on Terra. Zubaydah is a grievously mentally ill man who, shortly after he was taken into custody in March of 2002, was dubbed by the FBI’s premier expert on Al Qaeda as “insane, certifiable, split personality.”

Acknowledged by top officials at both the FBI and the CIA as a mentally damaged nobody, Zubaydah was nonetheless waterboarded and otherwise tortured on hundreds of occasions. During which, in his agony, he would “speak of plots of every variety—against shopping malls, banks, supermarkets, water systems, nuclear plants, apartment buildings, the Brooklyn Bridge, the Statue of Liberty,” causing “thousands of uniformed men and women [to] race in a panic to each target,” and ensuring the continued incarceration of untold innocents like Bensayah and Odaini.

Ginsburg’s opinion, like Kennedy’s, indicates that men and women of the law (before whom this nation’s War on Terra cases have at last landed), once they are confronted with Zubaydah, his treatment, and his “testimony,” will lend his words little or no weight whatsoever.

Ginsburg is no wild-eyed “liberal activist” judge. In 1987 he was selected by President Ronald Reagan to sit on the United States Supreme Court. His nomination was withdrawn only after the Puritans recoiled at the news that he had occasionally smoked marijuana with his students at Harvard.

That judges from all over the political spectrum are refusing to credit tales torn from Zubaydah by torture leads inevitably to that day when the US government must admit that with Zubaydah it mortally erred.

Until, as Sinead O’Connor recently said of the Holy Father and his hierophants, it will be required that, in some secular and metaphorical manner, they “get on their knees and confess the full truth in the same language they make us use in Mass. They need to get on their knees, open everything up, be transparent, tell the truth, ask the people for forgiveness and prayers. That confession is their only hope of survival into the 21st century. It’s a rickety bridge, but it is a bridge. And personally, I would be willing to bring them across that little bridge into the 21st century, and help them.”

Bensayah is an Algerian man who was arrested in Bosnia in 2001 and eventually accused of helping people who wished to travel to Afghanistan and there join Al Qaeda.

Along the way there were also occasional nutter allegations that Bensayah and company were contemplating crimes like attacking the US Embassy in Sarajevo. But it is doubtful that even the “dark side” ops who came up with such stuff ever really believed it. The Supreme Court of the Federation of Bosnia and Herzogovinia certainly didn’t believe it, because after a three-month investigation it found there was no reason to hold Bensayah and his five fellows. It was at that point, in January of 2002, that BushCo transported the men to the Guantanamo gulag . . . because that is how things were done in those days.

Fast forward seven years. In late 2008 District Judge Richard Leon released the five other men arrested with Bensayah, but ruled that Bensayah himself could be held indefinitely as an “unlawful combatant” because he provided “direct support” to Al Qaeda by “facilitating travel.”

When Bensayah appealed, the Obama administration—to its credit—narrowed the argument previously presented by the factotums of George II. Whereas George II’s people had asserted that Bensayah acted “in support” of Al Qaeda, the Obama administration argued that he was functionally “part” of Al Qaeda. The current prevailing opinion among the Obama people—who are, every day, behind the scenes, slugging it on out on these matters—is that indefinitely detaining someone who merely “supports” Bad People violates the Geneva Conventions.

In the event, the Ginsburg opinion seems to indicate that he and his two fellow judges wouldn’t have given two figs if the government had argued Bensayah was a “supporter,” a “part,” or “a guy who looked once at an Al Qaeda dude on the street.”

“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, Ginsburg wrote.

In trying to tease out what is in and around the redacted portions of Ginsburg’s opinion, it appears that the Obama administration—again to its credit—not only dropped the “support” argument, but also withdrew its reliance on statements from Zubaydah, with which George II’s minions had secured Judge Leon’s permission to hold Bensayah indefinitely. The Obama people apparently steered around the ravings of Zubaydah obtained via torture—which included a hallucination that Zubaydah and Bensayah had chatted on the phone about passports—and instead meekly offered some “raw intelligence reports” . . . which Judge Ginsburg swept aside as “evidence, viewed in isolation or together, [that] is insufficiently corroborative” of the claim that Bensayah was a “part” of Al Qaeda. What these reports were intended to “corroborate,” it is clear from reading around the redactions, was info from Zubaydah, referenced in such maddening passages as: “contained in a classified document [REDACTED] from an unnamed source.”

After years of lies from senior BushCo officials that Zubaydah was, among other things, “a senior Al Qaeda facilitator,” Ginsburg’s opinion discloses that the Obama administration is no longer willing to make that argument:

[T]he Government has eschewed reliance upon a portion of the evidence that the “senior al-Qaida facilitator” with whom Bensayah allegedly had contact was in fact a senior al Qaeda facilitator.

On remand, Judge Ginsburg’s opinion instructs, Judge Leon is to abandon his nonsense that [REDACTED] contains some inherent indicia of reliability[.]” Addressing Bensayah’s discovery requests regarding the torture and other treatment of Zubaydah, Ginsburg wrote: “It is not necessary to address Bensayah’s specific discovery requests relating to [REDACTED] because, as explained below, we hold this exhibit may not be relied upon by the district court on remand in the absence of additional corroborative evidence.”

Summing up, Judge Ginsburg wrote:

On appeal the Government has eschewed reliance upon certain evidence the district court had considered and has abandoned its position that Bensayah’s detention is lawful because of the support he rendered to al Qaeda; instead it argues only that his detention is lawful because he was “part of that organization—a contention the district court did not reach.

We agree with the Government that its authority under the AUMF extends to the detention of individuals who are functionally part of al Qaeda. The evidence upon which the district court relied in concluding Bensayah supported al Qaeda is insufficient, however, to show he was part of that organization. We therefore remand this case for the district court to determine whether, considering all reliable evidence, Bensayah was functionally part of al Qaeda.

The Obama administration—not to its credit—did not promptly heed the words of Bensayah’s attorney, Mark Fleming, who asked that rather than drag Bensayah back to Judge Leon on remand, he be returned forthwith to his wife and his daughters: “We hope the United States will now do the right thing and release Mr. Bensayah so he can begin to rebuild his life after his long captivity.”

Instead, the Justice Department is “reviewing” the ruling, to determine how it shall “respond.” No doubt civil war has again broken out in that place, with the deadenders pushing for a return to the “support” argument. But at some point Attorney General Eric Holder and/or his deputies are going to have to put duncecaps on those people and tell them to go sit in the corner and keep quiet. As I argued at length here, more than two hundreds years of constitutional law commands that the job of a federal prosecutor is not to secure convictions, but to secure justice. And justice commands that Belkacem Bensayah be returned to his home and his family.

Enough.

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