Beside having some oddly upswept eyebrows, Judge Richard J. Leon, of the federal district court for the District of Columbia, is also the second federal judge so far to order the release of Guantanamo detainees. Those two combined distinctions earn him the title of WMBW Judge of the day.
Unlike Judge Urbina's opinion in the Uyghers' case, which included some lofty language about the historic role of the habeas right and the fundamental freedom of personal liberty, Judge Leon's opinion in this case is much more workmanlike. For Judge Leon, it isn't so much a question of fundamental rights, it's simply a question of evidence: did the Government meet it's burden? No.
Consistent with his brick-and-mortar approach to judicial opinion writing, Judge Leon is not what you would call a liberal: He was appointed by President Bush, and it was Judge Leon that decided back in 2005 that Gitmo detainees didn't have habeas rights. The Supreme Court later reversed that decision.
While he lacks some of the inspiring personal drama of Judge Urbina's life story, Judge Leon's legal credentials are impressive. Judge Leon earned his J.D. from Suffolk University Law in 1974 and then clerked for justices of two state supreme courts. He then earned an L.L.M. from Harvard in 1981 and then taught as a professor at St. John's Law School and worked for the Justice Department where he was chief minority council for the investigation of the Iran-Contra affair. He then went into private practice in D.C. until President Bush appointed him to the bench in 2002.
Judge Leon already has some history with Gitmo and habeas proceedings. In fact, it was Judge Leon's 2005 decision in Kalid v. Bush, 355 F.Supp.2d 311 (D.D.C. 2005) that prompted the landmark Supreme Court decision Boumediene v. Bush, 128 S. Ct. 2229 (2008), earlier this year.
You see, back in 2004 the Supreme Court made it clear that federal courts had jurisdiction over Guantanamo Bay. Rasul v. Bush, 542 U.S. 466 (2004). Shortly thereafter, six detainees filed habeas petitions challenging their detention. Judge Leon heard the case and decided that even though the court had jurisdiction to hear habeas petitions from Guantanamo, that did not mean that the Gitmo detainees actually had any habeas rights that the court was bound to recognize. Kalid, 355 F.Supp.2d at 314. Judge Leon concluded that they did not, and dismissed the petitions. Id. The Supreme Court reversed the dismissal earlier this year, holding that Gitmo detainees "are entitled to the privilege of habeas corpus to challenge the legality of their detention." Boumediene, 128 S. Ct. at 2262. The Court sent the case back to the district court to let the habeas hearings proceed. In the meantime, Judge Urbina, another Judge on the D.C. District Court relied on Boumediene to grant a habeas petition and order the release of a group of Uyghers who had been held in Gitmo.
Then yesterday, Judge Leon issued his decision in Boumediene v. Bush, Slip Op., No. 04-1116 (RJL) (D.D.C. Nov. 20, 2008). It turns out that the six detainees, who were native Algerians living legally in Bosnia, were arrested in Bosnia on suspicion of having plans to bomb the U.S. embassy in Sarajevo. Id. at 3. But when that suspicion proved to be false, the Government continued to hold them at Guantanamo.
Judge Leon decided that in order to justify the detention, the Government had to prove, not beyond a reasonable doubt, but only by a preponderance of the evidence (a legalese term meaning "more likely than not") that the detainees were enemy combatants---that is, that they were part of or supported Taliban or Al Qaeda forces or associated forces, that are engaged in hostilities against the United States or its coalition partners. Id. at 8.
The Government argued that five of the six detainees were enemy combatants because they had planned to go to Afghanistan and take up arms against U.S. forces there. The detainees disagreed, but argued that even if they did have a plan, a mere plan to be an enemy combatant is not the same thing as actually being one. Id. at 9. Judge Leon never resolved the issue of whether a plan was sufficient because he found that the evidence did not support the Government's allegation that the detainees even had the plan to begin with. He observed that the Government had provided only one classified source as evidence, and that it had failed to provide the Judge with enough evidence to evaluate the reliability and credibility of that one source. Id. at 10. Because most of the hearing was classified and not made public, Judge Leon did not go into any specifics about the deficiencies in the evidence. He concluded, however, that "to allow enemy combatancy to rest on so thin a reed would be inconsistent with this Court's obligation . . . to protect petitioners from the risk of erroneous detention." Id. at 11.
As for the sixth detainee, Judge Leon found that the government had provided sufficient evidence to prove that he was an "al-Qaida facilitator" and allowed his continued detention. Id. at 11-13. Again, because of the classified nature of the evidence, there was no specific discussion of what the Government had proved.
That's two judges now, one liberal and one conservative, who have officially reached the same conclusion. Is it because they are dutifully applying the law? Or are the D.C. district court judges gunning for President-elect Barack "shut-down-Gitmo" Obama to give them a spot on the D.C. Circuit Court of Appeals---the most likely feeder court for the Supreme Court?