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BAR IS RAISED FOR HOLDING DETAINEES

An Algerian detainee, an appeals court says, hasn't been shown to be a part of al-Qaida.

McClatchy Newspapers

WASHINGTON - An appeals court put government prosecutors on notice that they must show evidence that an Algerian detainee held at Guantanamo Bay, Cuba, for more than eight years is actually "part of" al-Qaida, or set him free.

The decision reverses what had been a rare victory for the government since the Supreme Court ruled that Guantanamo detainees had the right to contest their incarceration in U.S. courts. Of the 50 cases that have been decided by district courts, the government has prevailed in only 14.

The appeals court overturned a lower court's decision upholding the detention of Belkacem Bensayah, who was seized in Bosnia along with five other Algerians and shipped to Guantanamo in January 2002, and said the lower court must rehear the case.

"The evidence upon which the district court relied in concluding Bensayah 'supported' al-Qaida is insufficient ... to show he was part of that organization," Judge Douglas Ginsburg wrote for the U.S. Court of Appeals for the District of Columbia Circuit.

U.S. District Judge Richard Leon ruled in November 2008 that the Pentagon could hold Bensayah in one of the first cases decided after the Supreme Court ruling.

In the 17-page ruling issued Thursday, Ginsburg agreed that the Pentagon can hold people for being "part of al-Qaida," a looser standard than requiring that the government prove that an individual provided active support to al-Qaida. However, the court said, the government hadn't met even that burden.

The court said Leon's ruling had been undermined by developments since it was issued, including the Obama administration's decision to drop a claim that one of the witnesses against Bensayah was a "senior al-Qaida operative and facilitator."

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