The Constitution Strikes Back

In an unexpected (to me, anyway) ruling, Judge Richard Leon of the U.S. District Court in Washington, D.C. ordered the release of 5 (out of 6 litigating) Bosnian/Algerian detainees now held at Guantanamo Bay, granting their habeas corpus petitions. Judge Leon is actually the second judge to order detainees released. Judge Ricardo Urbina previously granted an ostensibly uncontested petition by a group of Chinese nationals who the government conceded were “not enemy combatants,” just that they had no rights anyway, and the government got a stay from an appellate court. [The plight of the Uighurs is discussed in my interview with Buz Eisenberg.]
Today, however, marks the issuance (by Judge Leon) of the first habeas corpus writ after the government contested the merits of the petition. Judge Leon directed the government to undertake diplomatic efforts as to where to send the detainees; the government might consider, oh, Bosnia, from where the CIA ostensibly kidnapped these men in the first place (albeit with the connivance of the Bosnian government, under a wee bit of American pressure). Just saying.
Amazingly, Judge Leon is not only “no liberal,” he was a George W. Bush appointee and previously was associated with arch-villains David Addington and Dick Cheney at the House Iran Contra Committee back in the ’80’s; so for Judge Leon of all people to have issued this writ is even more astounding. Well, go figure.
Today’s ruling and Judge Urbina’s earlier ruling (the latter under appeal) means that a wee bit over 20 detainees have now been ordered released (more, of course, than the number facing military commission charges), though,of course, none have yet been released.
The team at WilmerHale is to be commended for their tireless efforts to achieve this day; now we’ll see if the logjam is broken, and more of these cases proceed to writs granted, so that other lawyers working tirelessly for similar results, many of whom have been interviewed on this very blog, can also see their clients’ ultimate judicial vindication and freedom.
Will the government seek more dilatory tactics to delay the freedom of these men whom it has now been adjudged to be holding wrongly? That certainly IS how you bet.

More likely (and this IS how you bet) the Bush Administration, like Kahn up there, will cry out: “From hell’s heart I stab at thee.”