Civil Liberties

Judge Orders Release of Five Gitmo Detainees

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From the Washington Post:

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.

NEXT: Liquidate the Libertarian Party?

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  1. What’s good about the courts getting balls the last couple of years is that Obama won’t feel that he has the ability to act with quite as much impunity as Bush. We’re going to have a hard enough time putting the executive power genie back in the bottle, and I fully expect the new administration to try to hang on to as much power as they can.

  2. The best place to find info on Gitmo and wade thru all the bullshit that has been thrown our way over the past few years is to read the studies listed on this webpage:

    http://law.shu.edu/faculty/fulltime_faculty/denbeama/denbeaux.html

    However, I would strongly recommend that Andy McCarthy NOT read any of these reports, as I’m afraid his confidence in the federal government might descend into a crippling state.

  3. Whenever someone tells you that conservatives are skeptical of government and its power, just refer them to Andy McCarthy articles at NRO for the past years.

    Then laugh and have a beer with this person, as they will be laughing too.

  4. Crow Eating Dumbass-

    Funny post. It read just like a Deep thoughts w/ Jack Handy” segment.

  5. One silver lining is that all of this power that Bush seized isn’t going to end up in Hillary’s hands.

    I’m not saying I actually trust Obama, but he hasn’t demonstrated a completely shameless power lust like several other presidential candidates did.

    -jcr

  6. We can all rejoice now that all the detained choirboys at Gitmo can be released in, hopefully San Francisco. There they may be exposed to the tolerance and love of the denizens of that city.

    As we all know about a third of the released choirboys have subsequently returned to the choir and either been sent off to pardise or returned for remedial instruction at their local correctional facilities.

    One caN ONLY HOPE THE SUPERIOR WISDOM OF THE COURT SYSTEM WILL BE ABLE TO protect innocent terrorists rather than have them exposed to the rigors of Article IV of the Geneva Convention. However since our troops realize that the detention of terrorists aka in leftwingnut speak “innocents” will nresult in their immediate release it is probable they will exercise their options. Somehow I doubt our legal geniuses will be able to reverse these battlefield decisions.

    Sob.

  7. Well, it’s about fucking time.

  8. The ideology of wingnuts, which NRO both exemplifies and puts to print, is above all else authoritarian.

  9. One caN ONLY HOPE THE SUPERIOR WISDOM OF THE COURT SYSTEM WILL BE ABLE TO protect innocent terrorists rather than have them exposed to the rigors of Article IV of the Geneva Convention. However since our troops realize that the detention of terrorists aka in leftwingnut speak “innocents” will nresult in their immediate release it is probable they will exercise their options. Somehow I doubt our legal geniuses will be able to reverse these battlefield decisions.

    Your fat is showing.

  10. I suppose they’ll be welcome in San Francisco.

  11. Thomas Jackson: You might want to familiarize yourself with the case before you make an idiot out of yourself. These men weren’t captured on the field of battle by US soldiers (which would have been relevant evidence that would likely result in their not being released). They were arrested by Bosnian authorities and turned over to the US, and now they’re being sent back to Bosnia. If you want to live in a country where an Imperial President can proclaim anyone he wants an “enemy combatant” to hold them indefinitely without judicial review in order hold the illusion of safety, there are several all over the globe, just don’t be surprised when the men in black boots come knocking at your door.

  12. As to McCarthy, he’s a party-perspective thinker. He loves the Imperial Presidency NOW, but once Obama is inaugurated he’ll be screaming at the top of his lungs about checks and balances. No different than the Democrats happy to sign over Line-Item-Veto to Clinton but terrified of Bush’s authority. They never seem to remember that the powers the sacrifice to the government are eventually going to be in the hands of people they don’t like.

  13. And the Bush administration should be ashamed of itself…

    WAHHHAHAHAHAHAAAA! OMG that’s hilarious! I’m gonna party like it’s 2999 when these assclowns finally leave.

    Seriously, though. That the judicial branch still has the balls to smack down the executive branch on occasion leaves me with a ray of hope that we won’t devolve into a neo-Soviet Union.

  14. As we all know about a third of the released choirboys have subsequently returned to the choir

    You are aware that absolutely ZERO of the detainees released to date have been released by court action, right?

    That EVERY LAST ONE of them was released by the executive branch on its own dime?

    And that, therefore, if you feel that the releases to date have been incompetently handled, that it’s the President’s fault – the very same President whose infallible ability to choose who to detain you want to put beyond judicial review?

    That’s the whole problem with the arguments – or pathetic attempts at arguments – put forward by supporters of the President’s policy. They can only be valid if the President is infallible. That means that any mistake made by the President, or any time that he changes his mind, explodes the argument and refutes it.

    The courts aren’t the ones claiming to be infallible. They are merely asking for the application of due process, which is a process that starts with the premise of doubt. The President, on the other hand, is asking us to trust him – and there’s no reason for us to trust him if he makes mistakes. And by your own statement, his mistakes have been numerous and egregious.

  15. However since our troops realize that the detention of terrorists aka in leftwingnut speak “innocents” will nresult in their immediate release it is probable they will exercise their options. Somehow I doubt our legal geniuses will be able to reverse these battlefield decisions.

    Ohhh, I get it. Our “warfighterz” on the battlefield will adopt a “take no priznerrz” policy, and just kill everybody, in order to facilitate the sorting process.

    Sob, indeed.

    But wait- these guys were snatched up (in front of their families) as they left a Bosnian courthouse after the Bosnians decided there was insufficient cause to detain them. I guess the CIA should have just done a drive-by.

  16. Since these detainees are enemy combatants, by treaty can’t they be held without charge until the end of the war? When the war on terror ends they may be released.

  17. That means that any mistake made by the President, or any time that he changes his mind, explodes the argument and refutes it.

    As long as we have a president who isn’t a flip flopper he won’t change his mind. Do we really want a president who changes his mind?

  18. Gitmo evidence or release him.

  19. Saying that American military personnel will murder surrendering troops or prisoners already captured is a pretty egregious slander, Mr. Jackson.

  20. Fred | November 21, 2008, 9:23am | #

    Since these detainees are enemy combatants, by treaty can’t they be held without charge until the end of the war?

    If you want to go that route, they are entitled to the Geneva protections of POWs.

  21. [In] the fall of 2001, when he and the other five men were arrested by Bosnian authorities under pressure from the United States, which asserted that they were involved in planning terrorist activities in Bosnia. After a three-month investigation, the Bosnian federal prosecutor recommended to the Bosnian Supreme Court that all six be released. But again under heavy pressure from the United States, the Bosnians caved, and as the men were released from a jail in Sarajevo, the Bosnians turned them over to the United States. Hooded, shackled, and packed into waiting cars while their horrified families watched, they began the sickening odyssey that continues today.

    Boston Globe

  22. Released where?

    I thought we couldn’t send the Uighurs back to China, on the twin grounds that China doesn’t want them and would promptly start violating their human rights if they did ever get their hands on them.

    Will the Algerians take these five back? Can we send them to a country with a craptacular human rights record like Algeria?

    If not, just where are these people going to go?

    Since these detainees are enemy combatants, by treaty can’t they be held without charge until the end of the war?

    If you want to go that route, they are entitled to the Geneva protections of POWs.

    I don’t think so. They weren’t fighting in uniform, for a sovereign nation, within a recognized chain of command.

    That’s the problem with these (alleged) stateless terrorists – they don’t fit into our pre-existing legal framework.

  23. They weren’t fighting in uniform, for a sovereign nation, within a recognized chain of command.

    Then they are entitled to the trial before a “regularly constituted tribunal” described in the Geneva Accords, if you wish to hold them as criminals – if you’re going to take the “captured troops can be held until the cessation of hostilities” route Fred brings up – holding them without trial until the cessation of hostilities.

    POWs found guilty of such behavior can be held in a status more like prisoners, without the full POW treatment, only upon a conviction. We don’t get to declare on someone’s say-so that any individual captured in battle was actually an enemy combatant operating outside the laws and traditions of war – much less some gut brought trussed-up by a bunch of locals looking for a payment. That’s a decision that has to be made in a legitimate trial of some kind. That, too, is one of the protections of Geneva.

  24. joe | November 21, 2008, 9:27am | #

    Saying that American military personnel will murder surrendering troops or prisoners already captured is a pretty egregious slander, Mr. Jackson.

    joe | August 15, 2008, 12:23pm | #

    Do I believe that atrocities were committed daily in Vietnam?

    Yup.

    Do I believe that atrocities were committed with the knowledge of people holding each of the following ranks: E-1, E-2, E-3, E-4, E-5, E-6, E-7, E-8, SPC1, SPC2, SPC3, SPC4, 1st Lt, 2nd Lt, CPT, Major, Lt. Colonel, Colonel, One-star, two-star, three-star, four-star, SecDef, President?

    Yup.

    Now joe will explain why his August 15, 2008, 12:23pm post is not egregious slander.

  25. I don’t think so. They weren’t fighting in uniform, for a sovereign nation, within a recognized chain of command.

    They were fighting for “Terror”. Basically, since the war on terror will never end, can’t we just hold anyone that is a terrorist or that the president says is an enemy combatant for life without a charge? It seems we need extra legal procedures in order to win and finally get terror to surrender.

  26. Then they are entitled to the trial before a “regularly constituted tribunal” described in the Geneva Accords, if you wish to hold them as criminals

    US criminal jurisdiction doesn’t really extend to acts of foreign national committed on foreign soil.

    Like I said, they don’t fit our usual categories.

    The obvious/traditional thing to do is remand them to their country of origin, but, as noted, generally those countries either won’t take them, or are likely to violate their human rights.

    Its a conundrum.

    And no one has answered my original question: Release them where?

  27. Release them where?

    Crawford, Texas.

  28. And no one has answered my original question: Release them where?

    Within the United States.

    You’re daring us to make that the answer, and I’m not very impressed by the dare, frankly.

    US law requires us to grant political asylum to any foreign national who is likely to suffer human rights abuses if they are repatriated to their country of origin. Does this mean that we have to be very, very careful about seizing and detaining people we won’t then be able to repatriate if it turns out our detention is without sufficient legal basis? Yes, it does. But that’s a feature, not a bug.

    If the Bush administration doesn’t like the fact that it has to release a bunch of Uighurs and Algerians into the US, it should have thought of that before it seized them and placed them in extrajudicial US custody.

  29. “””And no one has answered my original question: Release them where?”””

    1. Just pushing them out the front gate of gitmo with $100 in their pockets.

    2. Put them back on a plane and return them to where we found them.

    3. Allow them asylum since we decided to make them our problem.

    Take your pick.

    I like the Crawford TX answer.

  30. Now joe will explain why his August 15, 2008, 12:23pm post is not egregious slander.

    Because truth is an absolute defense to slander, and because I didn’t accuse anyone of murdering surrendering troops.

    This has been another episode of Easy Answers to Stupid Questions.

    Get over your stale Boomer politics, old man.

  31. RC,

    US criminal jurisdiction doesn’t really extend to acts of foreign national committed on foreign soil.

    Who said anything about “US criminal jurisdiction?” I’m talking about the “regularly constituted tribunals” in the Geneva Conventions.

    We’ve tried illegal combatants before military courts in every war we’ve ever fought.

  32. BTW, it takes a special kind of stupid to keep insisting, in 2008, that there weren’t atrocities in Vietnam, or that it is improper to point out that they weren’t the result of “just a few bad apples in the lower ranks” rather than official policy.

    It’s going to be nice when the people who still feel an emotional need to deny these long-established facts are fully into their dotage.

  33. US criminal jurisdiction doesn’t really extend to acts of foreign national committed on foreign soil.

    I’m sure this will come as a relief to the British nationals currently being held for breaking the US’ internet gambling laws.

  34. 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.

    Seton Hall, FTW.

    Jonathan D. Henry, Esq.
    Seton Hall University School of Law
    Class of ’08

  35. And no one has answered my original question: Release them where?

    Within the United States.

    Political suicide.

    joe asks:

    Who said anything about “US criminal jurisdiction?”

    joe, I believe you’re the one who suggested that they be held and tried as criminals, @ 10:43:

    Then they are entitled to the trial before a “regularly constituted tribunal” described in the Geneva Accords, if you wish to hold them as criminals

    I know, I know, you didn’t mean treat them as criminals criminals, but that’s been my point all along.

    We’ve tried illegal combatants before military courts in every war we’ve ever fought.

    Boumediene said that that approach would be, as of this year, unconstitutional. That case overthrew the statute that provided for trying alleged illegal combatants in front of military courts.

  36. The court ruled that the procedures in the Detainee Treatment Act were not adequate substitutes for habeas. It threw out the new military tribunal, not military tribunals in general. It was pretty clear from their opinion that a military tribunal with an adequate substitution would be valid.

    Bush needed a tribunal that excluded habeas in order to convict people without anything that looks like real evidence or people actually committing the crime for which they were accused.

    SCOTUS seemed to affirm habeas as a fundamental right of humans, and why not it’s necessary for freedom to exist. The concept of excluding enemy de jour from law was/is practiced by enemies of freedom.

  37. “””The government initially detained Boumediene and the other Algerians on suspicion of plotting to bomb the U.S. Embassy in Sarajevo in October 2001. They were transferred to Guantanamo in January 2002.

    The Justice Department last month backed off the embassy bombing accusations, but said the six men were caught and detained before they could join terrorists’ global jihad. The Justice Department said it needed to be proactive against threats, especially in the months after the Sept. 11, 2001 attacks on New York and Washington.””””
    http://news.yahoo.com/s/ap/20081121/ap_on_go_ot/guantanamo_detainees;_ylt=AnyiaSZcWr0nXHan1QFCpXmyFz4D

    In what court is a pro-active arrest before the crime was committed valid?

  38. Sure conspiracy to commit. The question didn’t come out as I hoped anyway.

    In what court is a pro-active arrest for a crime that might not exist valid?

  39. RC,

    You are missing the distinction between the civilian criminal court system – whose jurisdiction extends only to American territory – and the military’s ability to try prisoners (its own and those captured) from crimes. The latter are still criminal trials, but they are not “US criminal jurisdiction” as you were using the term, to mean the state- and federal- criminal courts.

    Boumediene said that that approach would be, as of this year, unconstitutional. No, it didn’t. It said that that approach would be unconstitutional ONLY IF THERE WERE INADEQUATE PROCEDURES AND PROTECTIONS FOR THE DEFENDANT. Had the military been trying these people in US Army Field Manual-approved military courts, the trials would have been upheld. It was only the Kangaroo Courts that were authorized by that one particular statute, not the actual courts martial that have long been convened by our military, that were thrown out.

  40. TrickyVic,

    Bush needed a tribunal that excluded habeas in order to convict people without anything that looks like real evidence or people actually committing the crime for which they were accused.

    Let’s not forget item three on that list: evidence secured through the use of torture.

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