Yesterday United States District Judge Richard Leon (a George W. Bush appointee) ordered the release of five Algerians who were captured in Bosnia in 2001 and transferred to Guantanamo Bay. Judge Leon concluded that the feds can continue to hold a sixth. Among the detainees to be freed --if the Justice Department doesn’t successfully appeal-- is Lakhdar Boumediene. (Yes, that Boumediene).
In 2005, Judge Leon ruled that the detainees were not entitled to habeas corpus rights, but with that judgment overturned by the Supreme Court he turned to the merits of their petitions. The evidence the Justice Department brought against the five is classified, but Judge Leon was clearly not impressed: “To allow enemy combatancy to rest on so thin a reed would be inconsistent with this court's obligation,” he said.
Bosnia has agreed to take the five if they are released, but if Justice chooses to appeal it still could be years before that happens.
This, of course, is not the first defeat in terrorism cases the government has suffered in court: In June the D.C. Circuit ordered (under the Detainee Treatment Act, not habeas) that a detainee be given a new military hearing or released, and in August a military jury at Gitmo essentially sentenced Salim Hamdan (yes, that Hamdan) to time served. This is the first major defeat for the government under post-Boumediene habeas inquiry, however, and we can almost certainly expect more unless the new Obama administration radically changes policy on holding people the government doesn’t actually have any substantial evidence against.
Correction: Corrected “last year” to “In 2005” in the second paragraph.