Richard J. Leon Puts The Nail In Bush's Coffin

You may know by now that a federal judge ruled today that five Algerians held at Guantanamo for seven years were detained unlawfully and must be released immediately. The prisoners included Lakhdar Boumediene, for whom the Supreme Court case Boumediene v. Bush, which invalidated a section of the Military Commissions Act and forced these habeas corpus challenges to be heard in federal court, was named. Essentially, the ruling held that the Justice Department and intelligence agencies failed to make their case that these prisoners planned to travel to Afghanistan to fight coalition forces, a claim which was based on a single classified source.

Obviously it's a significant development that these five prisoners, who were held illegally without charges for seven years in a cage at Guantanamo, can now be presumably set free, pending a potential appeal. But what's even more significant is the judge who issued the ruling. Richard J. Leon of the Federal District Court in Washington is an appointee of George W. Bush. Glenn Greenwald has a small sketch about him:

Judge Leon is a Bush-43 appointed Judge known as a right-wing ideologue and known for ruling in favor of the Government and for expansive executive power. He was Deputy Chief counsel for the Republicans on the Iran-Contra Committee in 1987, was Special Counsel to the Senate Banking Committee for the Whitewater investigation, and worked for both the Reagan and Bush 41 Justice Departments. That Judge Leon -- of all judges -- ruled that there was no credible evidence to suggest that these detainees are "enemy combatants" is as compelling a sign as one can imagine that there is no such evidence.

History Commons notes that Judge Leon was the original judge in the Boumediene v. Bush case - and incredibly, he argued that the prisoners did not have habeas rights.

District Judge Richard J. Leon dismisses a lawsuit by seven Guantanamo detainees challenging their detention: a French citizen, an Algerian, and five dual Bosnian-Algerian detainees. He rules that foreign nationals captured and detained outside the US have no recognizable constitutional rights [REUTERS, 1/20/2005; BBC, 1/20/2005] and that last year’s Supreme Court ruling (see June 28, 2004) does not entitle Guantanamo detainees with the right to sue in US courts. Foreign citizens, captured and detained outside the US, according to Judge Leon, have no rights under the Constitution or international law enforceable in US courts. [LOS ANGELES TIMES, 1/31/2005] “To the extent that these non-resident detainees have rights,” Leon writes, “they are subject to both the military review process already in place and the laws Congress has passed defining the appropriate scope of military conduct towards the detainees.” He adds that the “extent to which these rights and conditions should be modified or extended is a matter for the political branches to determine,” not the judicial branch. “[T]he petitioners are asking this court to do something no federal court has done before: evaluate the legality of the executive’s capture and detention of non-resident aliens, outside the United States, during a time of armed conflict.”

If there is any judge in the country that George Bush could have hand-selected for the task of protecting his warped theories of executive power, it would be Leon. However, while the judge certainly has an ideological cast to his rulings, in this case he followed the rule of law. He was not empowered to rule on the legality of the capture and detention of the Algerians, in his view, prior to the clarification by the Supreme Court; afterwards, he treated it like a normal habeas hearing. In fact, he sought to expedite their review so that the cases didn't fall into what he called "the black hole of transition" - the fact that a change in executive leadership among the agencies dealing with these cases would inevitably slow down the process. Not only that, but in his ruling (read from the bench) he asked the government not to appeal:

The judge, in an unusual added comment, suggested to senior government leaders that they forgo an appeal of his ruling on freeing the five prisoners. While conceding that the government had a right to appeal that part of his ruling, Leon commented that he, too, had “a right to appeal” to leaders of the Justice Department, Central Intelligence Agency and other intelligence agencies, and his plea was that they look at the evidence regarding the five he was ordering released. “Seven years of waiting for our legal system to give them an answer to their legal question is enough,” he commented.

Senior leaders of the government, he went on, will have “more than enough opportunity” to test the novel issues at stake in defending against an appeal of his ruling in the case of ben Sayah. He said he was appealing to those leaders “to end this process” for the five.

(ben Sayah was the only of the six to be denied release in the hearing.)

When you hold the rule of law in nothing but contempt, and seek to use the courts to hide your mistakes, these are the grave consequences. And the fact that the White House couldn't rely on their own appointee to absolve them of blame in this matter is devastating. But there's a human aspect to this as well - the shocking treatment of the detainees while at Guantanamo, detailed here and here. For those who have followed human rights abuses throughout the so-called war on terror, the information is familiar: hooding, shackling, psychological and physical torture. As Greenwald says in his wrap-up:

We haven't just imprisoned people with no evidence in cages for years. We've kept them encaged under often brutal and extreme conditions, many in unbroken solitary confinement for years. Today, a federal court ruled that for 5 of these men, there is no credible evidence that they did anything wrong, and if most of our political class -- which supported the Military Commissions Act-- had its way, they wouldn't have even had this hearing at all.

We can expect the government to continue this fight, despite Leon's pleadings. They would rather treat these prisoners as waste to be discarded, so that nobody ever learns the true nature of their crimes. And they were aided and abetted by a supine Congress which took the consensus view that the past ought to be buried and everybody let off the hook in the spirit of unity. It took a far-right federal judge, appointed by Bush, to do the job they wouldn't - to strictly interpret the law and let no man above it.