Jacob Sullum

Since the Supreme Court ruled last June that Guantanamo detainees may pursue habeas corpus petitions in federal court, the government has lost 23 of 26 cases. The most recent one involved Mohammed el Gharani, a Chadian who was detained by Pakistani forces at a Karachi mosque in 2001, when he was 14.

Last week, U.S. District Judge Richard Leon ordered Gharani's release, finding that the case against him was based almost entirely on the unconfirmed, inconsistent accounts of two prisoners whose reliability the government itself had questioned. Among other things, Gharani was accused of belonging to a London-based Al Qaeda cell in 1998, when he was 11 and living in Saudi Arabia.

In November, Leon ruled that the government did not have enough evidence to detain five Algerians who were arrested in Bosnia in 2001 and accused of (SET ITAL) intending (END ITAL) to fight with the Taliban. He found that the charge was based "exclusively on the information contained in a classified document from an unnamed source."

Leon, a Bush appointee who ruled in 2005 that Guantanamo detainees could not pursue habeas corpus claims, probably was inclined to side with the government. Furthermore, under the standard he applied, the Bush administration only had to show by "a preponderance of the evidence" (a likelihood of more than 50 percent) that the prisoners' detention was appropriate.

These cases therefore speak volumes about the fallibility of the executive branch and the need for independent review of its detention decisions. I hope our new president is listening.


Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
 
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