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.
The judge did find sufficient evidence for the government to continue to hold a sixth detainee, which suggests his decision was the result of a careful look at the evidence.
I browsed the reactions of a few conservative blogs, and found the predictable outrage that the court system would dare challenge the authority of the executive branch to snatch up people and detain people in overseas prisons without ever giving them a trial, possibly ever. What you won't find is much concern that the Bush administration has been wrong in a disturbing number of these cases about just how dangerous most of the Gitmo detainees really are—which you would think might raise worries that a not insignificant number of them may actually be innocent.
National Review's Andy McCarthy nearly gets there:
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? And the frequency of these mistakes should give us pause before placing all of our trust in the executive to detain people indefinitely on the basis of secret, unreviewable evidence? And the Bush administration should be ashamed of itself for exaggerating the actual evidence against some of these detainees in its efforts to drum up support for unlimited executive power? And it raises the shameful possibility that we may actually have kidnapped and arrested more than a few innocent people, and detained them for years?
No, no. None of that. McCarthy concludes….
…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.
Ah yes. 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!"
It damned-well ought to. Remember that last month, U.S. District Judge Ricardo M. Urbina ordered the release of 17 Chinese Uighurs, also after determining the government had no proof not only that they were enemy combatants, but that they were even a security risk (the government won on appeal, so the Uighurs are still at Gitmo). And as I wrote in a short piece for reason last year, an astonishingly high number of Gitmo detainees fall far short of the classification "the worst of the worst," to use a favorite phrase of the Bush administration and its allies.
In May 2003, Guantanamo held 680 prisoners, the highest number to date. About half have since been released. The Bush administration has claimed the prisoners at the camp represent the "worst of the worst" terrorist threats to the U.S. But when the Seton Hall law professor Mark Denbeaux and the defense attorney Joshua Denbeaux analyzed information supplied by the Defense Department, they found that less than half the inmates were determined to have committed a hostile act against the United States or its allies. Only 8 percent are suspected to be Al Qaeda fighters.
Of the 385 still held at Guantanamo, the Pentagon plans to formally charge 60 to 80. To date, just two have been tried by a military tribunal, and only one, Australian David Hicks, has been convicted. He was sentenced to nine months in prison, which he was allowed to serve in Australia.
You can add to that Salim Hamdan, who was convicted in a military tribunal on minor counts of supporting terrorism. The government wanted 30 years to life. The tribunal judge gave him just five-and-a-half years, clearly a comment on the seriousness of crimes. He will soon be eligible for release, unless the government decides to continue to detain him, anyway.
Me, I look at all of this and I worry that we've given the executive way too much power, that they're abusing that power, and that our government is arresting, detaining, and possibly torturing people who are either innocent, or clearly not a threat to the United States. McCarthy looks at all of this and worries that it might undermine the cause of continuing to give the executive unchecked power to keep people in prison indefinitely, no questions asked.
To which my response would be . . . one can only hope.