Seven years after their capture, six Algerian men denied Thursday they planned to fight with al-Qaida and asked to be released from prison in the first case of suspected terrorists challenging their detention at Guantanamo Bay.
The men, who were arrested in Bosnia in the weeks after the Sept. 11 attacks, are being held without charges as enemy combatants at the U.S. detention facility on Cuba.
The detainees last summer won the right to sue for their release in U.S. civilian courts following a Supreme Court case by one suspect, humanitarian aid worker Lakhdar Boumediene.
During more than two hours of arguments in federal court in Washington, the Justice Department accused the Algerians of planning to travel to Afghanistan and join al-Qaida in its global jihad against the United States and its allies.
Lawyers for the Algerians said there is no evidence the men ever would have ended up on a battlefield or posed any threat against the U.S. Therefore, the lawyers said, the U.S. should not consider the men enemy combatants, as defined by the judge hearing the case, and must free them.
"The government does not allege that the petitioners had anything to do with the terrorist attacks on 9/11. It knows they did not," said one of the detainees' lawyers, Stephen Oleskey. "The government does not allege that these men engaged in any combat against the United States or its allies on any battlefield. It knows they did not."
Evidence classified
Government lawyer Nicholas Oldham said the men were swept up before they could carry out their plans. "The United States was certainly entitled to be proactive," Oldham said.
The Algerians "made their plan to go to Afghanistan," Oldham said. "One of them was already a member and facilitator of al-Qaida. And the fact that they were captured before they were allowed to attack or kill Americans in the present conflict does not diminish the government's authority to detain them."
Nearly all the specific evidence against the Algerians is classified and can be discussed only in secret court sessions. Some evidence cannot be shared even with the detainees.
The detainees were supposed to have listened to the opening arguments in a conference call between the courtroom and the U.S. Navy base at Guantanamo, but because of a technological glitch, the men could not hear what was said in Washington and said nothing during the hearing.
Oldham said the men could be called enemy combatants, defined by U.S. District Judge Richard J. Leon as al-Qaida or Taliban supporters who directly assisted in hostile acts against the United States or its allies.
"There can be no higher level of support for al-Qaida or associated forces than volunteering to fight on their behalf," Oldham said.
'Restore their liberty'
The Algerians' lawyers have argued that the men could not have assisted directly because they never joined al-Qaida. Oleskey pointed to the government's recently dropped claims that the men plotted to bomb the U.S. Embassy in Sarajevo, Bosnia-Herzegovina, as "a tacit admission of how weak its case has become."
"The continued mistaken detention of these six men is one that the government has, thus far, refused to admit and refused to correct," Oleskey said.
Asking Leon for their release, Oleskey added: "While it lies outside your power to restore to them their seven lost years, you can restore their liberty."
Leon, who was appointed to the bench by President Bush, said he expects to decide this month whether to release the Algerians.
Leon described the unprecedented case as a legal and logistical headache that needed to be resolved quickly before any "inevitable delays due to the turnover" of government with the incoming administration of President-elect Barack Obama.