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Another Black Eye for the Bush Administration’s Detention Policy

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For years, lawyers representing Guantánamo detainees have dreaded getting notice from the District Court in Washington that their case had been assigned to Judge Richard J. Leon. A conservative Republican appointed to the bench by George W. Bush in 2002, Judge Leon was seen as an almost reflexive supporter of the Bush Administration’s positions with respect to Guantánamo. But today things changed. Leon took up the habeas corpus petitions of six Guantánamo detainees on remand from the Supreme Court following its landmark decision in Boumediene–a decision in which the Court had reversed Judge Leon. In his opinion for the Court, Judge Kennedy had stressed that the system crafted by the Bush Administration was “fraught with grave risk of injustice” because it allowed the government to detain people indefinitely without any showing of evidence to back its claims that the detainees were combatants who posed a risk to the United States. And as Judge Leon rendered his decision in a packed courtroom, Kennedy’s core thesis was fully vindicated. The Leon decision is very straightforward: either the government has evidence that the persons held are combatants and there is a risk that they will battle the United States if released, or it does not. In this case, Judge Leon found that in five of six cases, the Bush Administration had no meaningful or corroborated evidence to sustain its claims. Rendering his decision, Judge Leon admonished the Bush Administration lawyers against taking appeals and further protracting the injustice visited upon the five petitioners whose freedom he ordered. “Seven years is enough!” he said, with a fixed gaze directed at the Justice Department lawyers.

For years, the Bush Administration had touted their capture of the Boumediene petitioners as a triumph of counterterrorism policy. The prisoners were not captured on or near a battlefield in Iraq or Afghanistan. Rather they were Algerians who had resettled in Bosnia, where they came under suspicion of involvement in a plot to bomb the American embassy. After their case progressed through the Bosnian legal system, both the Bosnian Supreme Court and Attorney General concluded that there was insufficient evidence to support the charges against them. It ordered their release. But then through a curious sleight of hand orchestrated by U.S. intelligence officials, the petitioners were seized, turned over to the Americans and flown out to Guantánamo, where they have been incarcerated in tough and at times brutal conditions for seven years. President Bush personally proclaimed them terrorists and called their capture and imprisonment a victory in the war on terror. Today, the Bush Administration’s claims about the prisoners were revealed to be a sham not backed by serious evidence. The Bush Administration’s incarceration of five of the six petitioners was pronounced an unlawful, and indeed possibly criminal act.

Judge Leon ended the hearing with an appeal to the Justice Department to stop the farce in which it had ensnared the courts and the military. But this appeal to justice is almost certain to fall on deaf ears. The hallmark of this regime is that it never admits to its own error or lawlessness. Prepare for an immediate appeal. We have sixty days of these abusive antics remaining. Mark your calendars for January 20, 2009: the day on which adult supervision resumes at the Justice Department.

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