This decision, Boumediene v Bush, reveals again, in starkest terms, the total injustice that has been done in our names in the so-called War on Terror. Not only have almost five hundred prisoners who Rumsfeld once called the "worst of the worst" already been released without charges, but here we have an impartial court saying that five of the ones that Bush has refused to release are being held illegally. The evidence against them is so flimsy that it does not justify holding them for trial.
In this ruling the Bush Administration was ordered to release five Algerians who have been held at Guantanamo for seven years. Unlike so many other cases in the past that have involved interpretations of the Constitution and various statutes, this case was decided on the facts. In these Habeas Corpus cases, the question was not whether these prisoners were guilty or innocent, but rather whether there was sufficient evidence to justify their continued detention until they could be tried at a later date. The court's decision is a resounding "no."
Lakhdar Boumediene was one of the six prisoners who filed habeas corpus petitions. Earlier this year the Supreme Court ruled that he had a right to seek Habeas Corpus review of his detention even though he had been declared an "enemy Combatant" under the Military Commissions Act. That decision, which was the latest in a string of defeats for Bush, was hailed by all people who believe in our Constitution and who seek a return to long held American values. Six months later Boumediene and the others received their day in court and the injustice of their detention was laid bare for the world to see. Following is some background and the gist of the court's ruling.
The six prisoners are Algerians who were arrested in Bosnia for an alleged plot to blow up the US embassy. A Bosnian court looked at the charges and threw the case out. That didn't stop the US from arresting them on the same charges. Eventually, even Bush dropped the Embassy charges and held them instead on charges that they were planning on traveling to Afghanistan to fight the US.
The Government blew a cavern full of smoke in this case, introducing 650 pages of exhibits and 53 pages of narrative. To counter this barrage of baloney, the prisoners presented 1650 exhibits and over 200 pages of narrative. The question before the court was simply whether these men could be classified as "enemy combatants," as defined by the MCA. The standard of proof was as low as you can go. It's called "preponderance of the evidence" and is essentially a 51% to 49% test. Is it more likely than not that they are enemy combatants?
When all was said and done, Judge Leon said the whole case boiled down to the evidence of one unnamed source contained in a single classified document. The whole case was built on what this one person said. Since no person, let alone a judge, can simply take any statement at face value, Judge Leon tried to look further into the veracity of this witness and the truthfulness of what he said. Analyzing the entire record, the Judge concluded that there was no evidence presented regarding the credibility of the witness or the reliability of what he said. Beyond that, there was no other evidence corroborating the allegation that the prisoners had any plan to fight in Afghanistan.
Think about that a minute. Five people were imprisoned in the hellhole of Guantanamo for more than seven years on the testimony of a single unnamed person, whose truthfulness could not be verified and without a single bit of evidence to corroborate what he said. To call this a miscarriage of justice is a gross understatement. And to put the travesty of Bush's concept of justice into starker relief, one of his Military Commissions had already held that this was sufficient evidence to continue the imprisonment of these men. If anyone doubted that the commissions are little more than kangaroo courts this case should resolve those doubts.
Judge Leon was sufficiently moved by the injustice done these men that he asked the government not to appeal the case. As noted by SCOTUSBLOG,
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 Bensayah. He said he was appealing to those leaders “to end this process” for the five.
Amen to that.
There continues to be handwringing in some quarters about the closing of Guantanamo, particularly what to do with detainees. This case again demonstrates that the detainee issue is overblown. Almost five hundred have already been released. To the extent the case against these five is any indication, it is probable that there are only a handful of remaining prisoners who should continue to be held and prosecuted.