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More Boumediene Fall-out: Judge Orders Release of Five Alleged Combatants


The New York Times has details — which are scant. At issue are six Algerians, one of whom is identified as a member of al Qaeda. His detention was upheld, but Judge Richard Leon — a Bush 41 43 appointee reputed to be generally sympathetic to the government — has ordered the remaining five released. (One of these five is Lakhdar Boumediene — the combatant who was the petitioner in last term’s case in which the Supreme Court granted the alien enemy combatants a constitutional right to judicial review (i.e., habeas corpus)).

We don’t know what the evidence was because virtually the entire proceeding was classified and thus sealed. The Times report says Judge Leon found “the information gathered on the men had been sufficient to hold them for intelligence purposes, but was not strong enough in court.” Why not? What was the standard of proof by which the court found evidence that was good enough to detain was now not good enough to detain? We don’t know. In its Boumediene decision, the Supreme Court did not provide guidance as to how these habeas hearings it has ordered should be conducted. Congress, moreover, has failed to enact any rules, even though that is Congress’s job (as previously explained here). Indeed, as I reported here, Attorney General Mukasey implored federal lawmakers to prescribe sensible procedures back in July — and the Democrat-controlled Congress gave him the back of the hand.

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 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.

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 brach — 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.