A federal judge ordered the release of five Bosnian citizens Thursday who have been held for seven years at the U.S. military base in Guantanamo Bay, Cuba.
Judge Richard Leon, a conservative Bush appointee, found that there was no evidence to justify the detention of the men, who are all native-born Algerians who moved to Bosnia in the early 1990s.
This was the first ruling since the Supreme Court declared in June that detainees at Guantanamo have a right under the U.S. Constitution to challenge the basis for their indefinite detention.
Leon's ruling Thursday had particular force, not only because he is a conservative Bush appointee, but because he had previously sided with the government, declaring that the men had no right to challenge their detentions.
Indeed, it was his earlier ruling that eventually got to the Supreme Court and was reversed by a 5-to-4 vote.
Writing for the Supreme Court majority in June, Justice Anthony Kennedy said that the system set up by the Bush administration — and ratified by Congress — was fraught with the risk of error because the detainees had no right to counsel, no meaningful way of knowing what the allegations against them were, and no chance to rebut evidence against them.
The cases ruled on Thursday were the first to provide all of those safeguards, and in five of the six cases, Leon concluded there simply was no corroborated evidence against the men and that indeed, the sole basis for their detention was a single uncorroborated piece of raw intelligence.
In the case of the sixth man, however, he concluded there was corroboration, and that his detention is justified.
Reading his opinion from the bench, Leon did something few remember any judge doing. He noted that the government is within its right to appeal his order, but he urged what he called the senior leadership of the government not to. Seven years of waiting for our legal system to give these men an answer, he said, is long enough.
The courtroom scene was dramatic, with the detainees hooked up by phone at Guantanamo, and interpreters there to translate the proceedings.
Sitting in Washington, D.C., before the judge was a phalanx of lawyers who have spent thousands of hours on this case, including Seth Waxman, who served as the government's chief appellate lawyer in the Clinton administration, and argued the Bosnians' case in the Supreme Court.
"There was a lot of eye-wiping and handkerchief-reaching; it was very emotional," Waxman said. "I mean these guys have been held for seven years following their detention investigation in Sarajevo."
Indeed, the facts of the case ruled on Thursday are extraordinary, even in the context of Guantanamo. The men were arrested in their homes shortly after Sept. 11, 2001.
U.S. officials said the men were involved in a plot to blow up a U.S. embassy.
Bosnian authorities then joined with Interpol and the U.S. to conduct a three-month investigation, at the end of which the Bosnian Supreme Court, with the concurrence of the Bosnian prosecutor, ruled that the charge was not supported by the evidence. The court ordered the men released, but they were quickly rearrested, turned over to the U.S. and taken to Guantanamo, where they have remained since.
With this as the first of many Guantanamo cases due to be reviewed by federal judges in the coming months, Thursday's ruling will likely be seen as a signal to other judges to be skeptical of the government representations.
In fact, the case ruled on today has become a prime example of the moving target the government has presented as legal justification for many of the detentions.
In his State of the Union address in 2002, President Bush outlined the basis for holding the Bosnians.
"Our soldiers working with the Bosnian government see terrorists who are plotting to bomb our embassy," Bush said at the time.
The government, however, later abandoned this claim and moved on to a number of other claims, which similarly were later withdrawn when they could not be substantiated.
A Justice Department spokesman declined to say whether the government would appeal Thursday's ruling. The Bosnian government has said in the past it is willing to allow these detainees to come back to their homes, where their wives and children still live.