Dispatches from the Creation Wars

Judge Orders Release of Gitmo Detainees

In the first hearing to result from the Supreme Court ruling in Boumediene that the district courts in the DC circuit had to grant habeas corpus rights to detainees held there and hold hearings on whether there was sufficient evidence to continue their detention, a federal judge has ordered the release of 5 Algerians held at Gitmo for 7 years.

For the first time, a federal judge ordered the release yesterday of detainees from the U.S. military prison at Guantanamo Bay after evaluating and rejecting government allegations that five men were dangerous enemy combatants.

The government had alleged that the men planned to travel to Afghanistan to attack U.S. forces. But U.S. District Judge Richard J. Leon ruled that in a series of closed hearings in recent weeks, the Justice Department had not proved that five of the six Algerian detainees at the Cuban facility were enemy combatants under the government’s own definition.


Richard Leon was appointed by President Bush in 2002. In fact, he has a long history as a Republican lawyer, having served as counsel to Republican committees in three different presidential investigations, including the Iran-Contra affair and Whitewater. And in a 2005 case, Leon ruled Gitmo detainees could not challenge their detentions in civil court (that was before the Supreme Court gave them that right, of course). So they certainly can’t dismiss Leon as a wide-eyed liberal judicial activist. And it looks as though he minced few words:

Leon ordered them released “forthwith” and said the government should engage in diplomatic efforts to find them new homes. In an unusual moment, he also pleaded with Justice Department lawyers not to appeal his order, noting that the men have been imprisoned since shortly after the attacks of Sept. 11, 2001.

“Seven years of waiting for a legal system to give them an answer . . . in my judgment is more than enough,” he said. He urged the government “to end this process.”

All of this obviously calls into question the validity of the evidence the government has long claimed to have to justify the detention of the people held at Gitmo:

“For a judge like Leon to order their release from detention is significant because the government has long maintained the evidence it had was more than sufficient to justify the detentions,” said Scott L. Silliman, a national security law professor at Duke University. “This is a clear warning shot to the government. . . . These are probably not the last detainees to be ordered released.”

They won’t all be released, of course. Some of them really are terrorists and should not be released. But that is the whole point of having a court with due process protections to determine guilt or innocence, so you can distinguish between the guilty and the innocent and justify imprisoning the guilty ones. It was precisely this kind of examination of the evidence that the Bush administration has tried so mightily to avoid for the last 7 years and now we are finding out why — because even their own appointed judges can see that the evidence isn’t there for many of these people.