November 21 2008
“Seven years … is enough.” With those words Thursday, U.S. District Judge Richard Leon ordered the release of five Algerians held at the U.S. Naval Base in Guantanamo Bay, Cuba, since January 2002. A conservative appointed by President George W. Bush, Leon also delivered a forceful indictment of the administration’s detention decisions and provided indisputable proof of the importance of allowing federal judges to evaluate the secret evidence the government used to justify detentions.
The case, known as Boumediene v. Bush, yielded the first ruling in a habeas corpus proceeding involving Guantanamo detainees. It first came before Leon in 2004, and, at that time, he read the law as not allowing detainees federal court review.
The Algerians appealed and ultimately prevailed this summer when the Supreme Court issued a landmark ruling empowering federal judges to review the government’s basis for detaining people on the naval base.
In Boumediene, the government relied on a single classified document from an unnamed source. Justice Department lawyers were unable to convince Leon of the validity of the detentions, even though they were held to a low standard of proof. Leon concluded the document did not prove that the men, captured in Bosnia in 2002, were planning to travel to Afghanistan to fight U.S. forces. The fact that there was no corroborating evidence and that there was little information to help the judge assess the reliability of that source doomed the government’s case.
“To allow enemy combatantcy to rest on so thin a reed would be inconsistent with this Court’s obligation … to protect petitioners from the risk of erroneous detention,” he wrote. He ordered the five Algerians freed “forthwith,” but left the details to the government and did not specify where the men should be sent. He declined to order the release of a sixth man, concluding that the government had provided corroborating evidence that he was an al-Qaida operative.
In another extraordinary move, Leon urged the Justice Department not to appeal his order that the five be freed, saying: “Seven years of waiting for our legal system to give them an answer to their legal question is enough.”
The government needs the legal flexibility to hold those it believes are terrorism threats but against whom there is not enough evidence to bring traditional criminal charges. But what Leon revealed in his ruling is the utter travesty that is holding people with virtually no evidence – and certainly no evidence that can reasonably be considered reliable.
The Justice Department should heed the judge’s call and refrain from an appeal. It should work with the departments of State and Defense to find a suitable third country for these detainees. And it should not wait for another judicial rebuke before releasing others who are being held on the basis of feeble or questionable evidence.