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 Qaeda 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.
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