Judge Orders 5 Gitmo Detainees Released
Posted on November 20, 2008
I have asked a more eloquent writer to post on this, so you may see more on this later. I just want to do a basic rundown and roundup of reactions on it.
For the first time, a federal judge today ordered the release of enemy combatants from the U.S. military prison in Guantanamo Bay, Cuba, ruling that the government had provided insufficient evidence to continue their detentions.
The decision came in the case of six Algerians who were detained in Bosnia after the Sept. 11, 2001, terror attacks and have been held at the military prison in Cuba for nearly seven years. U.S. District Judge Richard J. Leon, a Bush appointee, ruled that five of the men must be released “forthwith” and ordered the government to engage in diplomatic efforts to find them new homes.
In an unusual move, Leon also urged the government not to appeal his ruling, saying “seven years of waiting for our legal system to give them an answer” was long enough.
In the case of the sixth Algerian, Belkacem Bensayah, Leon found that the government had met its evidentiary burden and could continue to hold him. Bensayah’s lawyers said he would appeal.
Andy McCarthy:
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. If there is any evidence supporting the military’s wartime decision to detain (and, to reiterate, Judge Leon said there was sufficient evidence to hold these men for intelligence purposes), the court should defer to the military judgment.
In any event, the Times reports that Leon “directed that the five men be released ‘forthwith’ and urged the government not to appeal.” The government is considering its appellate options. Meanwhile, one can only hope that either Algeria or some other country is willing to take these guys. Otherwise, we are in the same fix presented by the Uighur case (which will be argued on appeal next week): facing the prospect of jihadists being released into the United States.
This is the tricky and scary part of the controversy. The legal loopholes leaving open the possibility of releasing dangerous individuals, and the possible consequences that could occur from this. This is the danger with involving judges in national security matters. As Andy states above, these issues should be left to our military. However, all responsibility for this judge’s decision can’t squarely be put on him alone. He had to make a judgment call based on the evidence at hand, which he didn’t find sufficient, because of the Supreme Court’s decision to grant enemy combatants habeas corpus rights in the first place. It’s a complicated mess of legal mumbo jumbo that remains a controversy.
Over at Ace’s Gabe touches on this a bit:
Judge Leon has been extremely fair in all his war on terror cases. If he says the classified documents provided by the government do not credibly establish that these five men are enemy combatants, I am inclined to believe him. That he did, in fact, rule that the sixth should continue to be detained reinforces the idea that he is giving some deference to the military’s evidence.
Keep in mind that he is required at this point to rule on their habeas petitions. He originally upheld the MCA and was subsequently overruled by the Supreme Court. It was not his idea to allow overseas detained enemy combatants access to the federal courts. But now that they have been given such access, he is bound by his oath to give them a fair hearing.
Drew adds a conclusion:
Boumediene v. Bush basically offered these detainees a way to short circuit the military tribunals and threw open the court house doors by saying detainees had Habeas rights. They basically then told the lower courts to work out what other rights they had and the standards to adjudicate them. Judge Leon, like all other lower court judges have to figure this out for themselves but they are bound to give these guys fair hearings and that’s not their fault, that’s the Supreme Court’s fault.
The Boumediene decision is one that has forever transformed the way America will proceed in war during the future. We will be seeing consequences from the decision for years to come. Advocates for terrorist habeas corpus are absolutists in their passion for the pure principle of justice for all, and very shortsighted on the consequences granting such rights to enemy combatants can and probably will bring about. A balance between civil liberties and national security is a very thin line to tread, and the decision to grant constitutional rights to captured foreign combatants pushes over that line. In war, one can not stop in the heat of battle to read rights, or obtain search warrants, etc. Military tribunals have been sufficient for those captured in war throughout history, and they should have been sufficient even now. The door has been opened to a slippery slope, and we will see more consequences from this original decision.
As for Judge Leon’s decision, I won’t comment or criticize much. He made a difficult decision based on the information he had at hand. It very possibly could have been the right decision. The fact that he had to make the decision at all is the problem. It’s hard to criticize something when the evidence and witnesses are kept secret. The fact that the government was ordered to engage in diplomatic efforts to find them new homes is a bit muddy too. Lets hope their “new homes” are in the country of origin.
The Justice Department has the best conclusion for now:
“These cases present extraordinary circumstances where wartime enemies have been captured abroad and are being detained based often on the same sort of classified intelligence relied upon by the military in conducting wartime operations,” spokesman Peter Carr says in a written statement. “Today’s decision is perhaps an understandable consequence of the fact that neither the Supreme Court nor Congress has provided rules on how these habeas corpus cases should proceed in this unprecedented context.”
Expect to see more terrorists released, as Obama still plans on shutting down Gitmo and giving the detainees U.S. trials!
I’m gonna take a wild guess here and bet the government appeals. If not, the question we are left with is “where will these detainees go?”. Here is the basic rundown. If they really are guilty and dangerous, caught on the battlefield, and their confessions were obtained through interrogation some interpret to be “torture”, that evidence is thrown out. What little evidence is left may not be enough to convict them, and a guilty dangerous terrorist gets to go free. In the meantime Obama wants to move them all to already overcrowded prisons in the U.S.
Here is the problem in a nutshell from a blog that probably disagrees with me on the overall topic:
Even if the government doesn’t appeal, the problem will be finding a place to put all of the people wrongfully detained. Other countries don’t want them. And we can’t easily release them into the U.S., because even if they weren’t our enemies before they were detained and likely tortured, they sure as hell probably consider us an enemy now. And who could blame them?
By the way, I don’t buy the idealistic purity crap on any of this. Being merciful when the enemy knows no mercy is asking to be taken advantage of. Our judicial system is totally screwed up and corrupted. Is there any such thing as an unbiased judge anymore? The only ethics our lawyers have is greed. They argue what the highest bidder’s tells them to. Groups like the ACLU that are backed with taxpayer money and millions of donations ensure they can buy the best lawyers and you can bet they will always argue against America. I trust the military tribunals much more. Too bad that isn’t an option anymore.
» Filed Under 1st Amendment, 2nd Amendment, ACLU, Activist Judges, Barack Obama, Bill Of Rights, Constitution, Elections, Fed Immigration Law, Judicial Impeachment, Liberal World, National Security, News, Politics As Usual, Stupidity, U.S. Constitution, War On Terror, military, terrorism
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12 Responses to “Judge Orders 5 Gitmo Detainees Released”
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Gives us 5 more targets to shoot. They may be a little slower after living in club Gitmo, so be sure to lead ‘em a little less.
If we are going to support the Constitution, we should live by it. President Cheney and Vice President Bush know nothing about the Bill of Rights, let alone the UCMJ.
either appeal the decision or
Release them to an ‘empty lot’ in Chicago,
it is not quite ‘40 acres and a mule’ but
it is next door to a donkey.
Yeah, I suggest we put these dudes in “affordable housing” near Obama’s Hyde Park digs.
Hey, since they’re supposedly innocent, I’m sure Bill Ayers and Bernadine Dohrn will be delighted to have them over for coffee and show them around the neighborhood.
Larry Lynn,
Judging from your post, neither do you.
Isreal allows captured terrorists access to their legal system, so why can’t we do the same?
“Larry Lynn,
Judging from your post, neither do you.”
Judge Leon sure does MarkJ.
I trust the military tribunals much more.
Do you know that many military lawyers have refused to participate in these kangaroo trials?
I’m for Change We Need. I think they should turn all the 200 Gitmo nice guys loose. Send them to Los Angeles, Hollywood, San Francisco, Chicago, and New York!
“Send them to Los Angeles, Hollywood, San Francisco, Chicago, and New York!”
Ho ho! Hopefully they’ll kill someone!
Seriously, Cleats, what could possibly make you think this is an acceptable thing to say?
Also, keep in mind that
a) These people are probably going to be relocated to Bosnia.
b) Bosnia’s investigations have cleared them of terrorist involvement.
c) The US government no longer believes that they were plotting to destroy the US embassy in Sarajevo, which was the original reason they were captured. The evidence against them comes from one source, who was anonymous.
I’m not going to argue about the broader issue of Boumediene v. Bush, but it seems fairly clear that there wasn’t enough evidence to hold these people. Why shouldn’t we let the provably innocent go?
“…Why shouldn’t we let the provably innocent go?”
At the least, we should make them pay for all the food they ate…
The whole idea of Gitmo was a screw-up by Gonzalez. We should have tried them in the field and executed the guilty post haste.
Have we already forgotten 9/11 and the subsequent declaration of war against the United States? Whether they wear a uniform or not, they are enemy combatants.
I agree with Cleats comment, either send them to Husein obamas house since he is going to be living in the white house for awhile or L.A, San Fransisco, New York, Hollywood.
Did these Muslim terrorist ever given our people a fair trial??????? NO! They executed them in front of a camera and then placed the video on TV for all of us to see. I do not understand what is wrong with these liberal judges any more.Perhaps they should have them living in their homes!!
LET THE MILITARY give them a trial.