Perhaps the best commentary on the human rights record of the Bush administration comes not from the likes of Sean McCormack but from those in the U.S. justice system who are compelled to actually evaluate that record in light of the laws of the land?

A federal judge ruled here for the first time Thursday that the Bush administration had no basis for holding several of its long-term prisoners at Guantanamo Bay, Cuba, and he ordered that five of the Algerian natives go free.

The question in the case was whether the men, who lived in Bosnia and had never fought or been near a battlefield, had plotted with Al Qaeda and were planning to fight in Afghanistan. In Thursday’s ruling, U.S. District Judge Richard Leon, a Bush appointee, said the government’s case was weak because it relied on only one unnamed witness who linked the men to Al Qaeda. They deserve to be released, he said.

“This is a good day for the American justice system,” said Robert C. Kirsch, part of a team of Boston lawyers who spent much of the last seven years trying to win the Algerian men their freedom. “They were swept up by mistake. This is remarkable because Judge Leon essentially told the government, you don’t have a case and you never had a case against these men.”
[...]
Civil libertarians said Thursday’s decision confirmed what the Bush administration’s critics had long assumed — that the cases against the Guantanamo prisoners would not stand up if they were examined by an independent judge.

We never had a case against these men, but we held them for nearly seven years. Without charges. Without meaningful judicial review. And, so deep and abiding was the Bush administration’s commitment to basic human rights that during most of those seven years the prisoners had no legal mechanism available to even challenge their imprisonment.

It’s worth noting that yesterday’s legal slap-in-the-face to the Bush administration’s pious pretensions came from a judge who has not exactly been sympathetic to Guantanamo prisoners before:

Leon had earlier decided that the Guantanamo prisoners had no right to seek their freedom in court. The Supreme Court in June overruled that decision in the case of Lakhdar Boumediene vs. Bush and said the Guantanamo prisoners had the right to habeas corpus — to be heard by a judge.

And Leon didn’t just order the men released, he went a step beyond that:

In an unusual entreaty, Leon urged the administration not to appeal his order releasing the five men.

“Seven years of waiting for our legal system to give them an answer to a question so important is, in my judgment, more than enough,” Leon said.

Boumediene, incidentally, is one of the five ordered to be freed by Judge Leon. Here’s the back story of these men:

In the fall of 2001, the Algerian-born men whose case was decided Thursday were suspected of plotting to bomb the U.S. Embassy in the Bosnian capital of Sarajevo. But a court in Bosnia rejected the allegation and released the men. Then, U.S. authorities took them into custody and shipped them to the U.S. naval base at Guantanamo Bay.

In January 2002, President Bush referred to the case in his State of the Union address. “Our soldiers, working with the Bosnian government, seized terrorists who were plotting to bomb our embassy,” he said.

But when the case went before the judge, the administration’s lawyers dropped that claim. Instead, they asserted that the Algerians planned to travel to Afghanistan to take up arms against U.S. forces. Leon concluded there was little or no evidence to prove the men made such a plan.

Part of the enduring legacy of the Bush administration — part of the scars the Bushies will leave on the American justice system — is that “bait-and-switch”, a term hitherto best reserved for describing the behavior of unscrupulous car dealers, became a standard legal strategy employed by the U.S. government. The Bush administration has used it over and over again against the so-called enemy combatants that it has held for years on end outside the purview of the American justice system (or any other justice system, for that matter). Charges were dropped and amended at the drop of a hat. Usually, as McClatchy points out, when the government was faced with the prospect of a judicial review of some kind. Sensationalist claims that had been repeatedly used to justify detention to the American public (remember Jose Padilla‘s dirty bomb, for example?) would then be hurriedly withdrawn, to be replaced by much milder charges.

McClatchy adds this interesting detail about how the men ended up in unlawful U.S. custody:

The Bosnian courts and prosecutors had previously cleared the men, but on Jan. 17, 2002, Bosnia handed the men over to the U.S. government, which then shipped them to Guantanamo. According to the detainees’ lawyers, U.S. diplomats in Sarajevo had threatened the Bosnian government that if Bosnia failed to detain them, the U.S. would withdraw from the Balkan country.

No such story is complete without checking to see what spin government spokesmen are trying to put on the matter:

Peter Carr, a spokesman for the Justice Department, said the judge’s ruling was an “understandable consequence” of a lack of guidance from Congress or the courts on how to proceed with the habeas hearings, including how to handle classified evidence.

The understandable consequence of a lack of guidance? Judge Leon doesn’t seem to feel his ruling sprang from any lack of guidance from Congress or the courts:

While the government said the men had plotted to travel to Afghanistan to fight the U.S. and its allies, Leon found that the government had only offered unsubstantiated information from a single unnamed source as justification to detain the five men.

“To allow enemy (combatant status) to rest on so thin a reed would be inconsistent with the court’s obligation,” Leon said.

In fact, Judge Leon seems to be perfectly clear what Congress and the courts require him to do in such a habeas hearing. It’s the exact same thing that has always been the object of a habeas hearing: to determine if the government has sufficient evidence to justify holding the person they seek to continue holding. Only a government spokesman in the time of Bush could describe a clearly articulated finding of thoroughly insufficient evidence as the understandable consequence of a lack of guidance.