The Bush administration's detention policy at Guantanamo Bay prison has received another judicial slap in the face. Judge Richard Leon, a no-nonsense Federal District Court judge whom Bush appointed to the bench, said that only one of six Algerian detainees who have been held as enemy combatants for seven years has been legally detained. Judge Leon, who had ruled in 2005 that the men had no right at all to judicial review of their detention, ordered the administration to release five of the six Algerians "forthwith" because the evidence against them was not strong enough to stand up in a court of law.
Adding insult to injury, he urged the government not to appeal — advice the White House is likely to ignore.
Questions about this amazing rebuke of Bush's detention policy abound. Are the men dangerous if not convictable? Will the government yield and release the men? If so, to whom? It's doubtful that Algeria, which has been battling Islamic militants since the early 1990's, will take them –- except of course off to jail or even worse. Should they be released here in the U.S.?
Nor do we know why Judge Leon felt the evidence may have been good enough for intelligence purposes to justify holding the men, who were picked up in Bosnia in 2001 and accused of plotting to bomb the American embassy –- allegations the government has since withdrawn without explanation — but not strong enough to stand up in court. We don't know because the proceeding was secret –- presumably to protect classified information. Andrew McCarthy, the former Federal
prosecutor, reminds us that after the Supreme Court ruled in its famous Boumediene decision last June that detainees had to right to judicial review of their detention, Attorney General Mukasey begged Federal lawmakers to enact sensible rules and procedures for such reviews, but that Congress, fed up with the detention system, ignored him. As a result, no one is sure what constitutes adequate review or how they should be conducted.
It is a further irony that one of the men whose release was ordered today is Lakhdar Boumediene, for whom the landmark Supreme Court ruling in June is named. For him and the other four, justice delayed has been justice denied.