Balko points to this post at NRO by Andrew McCarthy about the Bush-appointed judge ordering the release of 5 Algerians from Gitmo because there was no evidence to justify their detention and this curious statement:
It seems pretty clear that the Bush administration did not help matters here. Nearly seven years ago, the President publicly claimed the Algerians were planning a bomb attack on the U.S. embassy in Sarajevo. Last month, however, the Justice Department suddenly informed the Court that it was no longer relying on that information. We’ve seen this sort of thing happen too many times over the last seven years, and the effect can only be to reduce the confidence of the court and the public that the government is in command of the relevant facts and can be trusted to make thoughtful decisions.
Well yes, Andrew, this would — and should — undermine the confidence of the court and the public that the executive branch can be trusted to make thoughtful decisions on who should be detained and held indeterminately without ever charging them with anything. Yet despite this, McCarthy claims that the courts should not overrule such detention decisions:
All that said, though, Judge Leon concluded that “[t]o rest [combatant detention] on so thin a reed would be inconsistent with this court’s obligation.” That is puzzling. There is nothing in the training of a judge that makes him an expert in military matters. In our system of divided government, the question of who is an enemy combatant should be committed to the executive branch — specifically, to the military professionals waging the war.
Bizarre reasoning. He fully admits that the executive branch has relied on false information to detain people “too many times” over the last seven years, yet he still thinks that they should have full power to detain anyone they want without ever charging the detainees with anything or showing the evidence that they have. Apparently, he simply doesn’t care whether they are guilty or not.
Balko’s reaction, in a post titled “I Hope This Whole “Imprisoning People Without Evidence” Thing Doesn’t Make People Question the President’s Judgment!” is spot on:
A Republican-appointed judge has reviewed his first six Gitmo cases, and found that in five of the six, the government not only didn’t have sufficient evidence to continue to hold the detainees, he ordered their release forthwith, and urged the government not to appeal his ruling. That’s a pretty resounding repudiation. And McCarthy’s reaction is, “Gee, I hope this doesn’t undermine the public’s faith in executive power!”