Tortured Logic: Judge Richard Leon Delivers Habeas Smackdown
It’s usually a comment from the bench, reining in some inappropriate overstep or a warning to back away from misconduct or failure. Written opinion text is generally a more staid, measured rebuke.
A recent written ruling from US District Judge Richard Leon in Abdulrahim Abdul Razak al Ginco [Janko] – District Court docket 05-1310 caught my eye for its blunt, exasperated disgust at government attorneys precisely because it was Judge Leon, who is a conservative, no nonsense law and order judge and always has been.
It’s been no secret the last few years that federal judges have been less than pleased with the logic, evidence and foundational arguments made in any number of government cases.
The detainee habeas cases have been at the top of a large heap of obfuscation and evidentiary tap-dancing on far too many occasions, and Judge Leon is managing more than 30 of them on his docket at the moment.
When Judge Leon is this openly exasperated in a written memo? It’s worth noting.
Especially when you can palpably feel the judge wanting to write "fergawdsakes, get your head out of your ass." To wit:
By taking a position that defies common sense, the Government forces this Court to address an issue novel to these habeas proceedings: whether a prior relationship between a detainee and al Qaeda (or the Taliban) can be sufficiently vitiated by the passage of time, intervening events, or both, such that the detainee could no longer be considered to be "part of" either organization at the time he was taken into custody.6 The answer, of course, is yes.
The facts in this case are indisputably horrid:
"This is a tragedy," Sady said. "The guy was horribly tortured and then tries to report his human rights violation to the U.S. forces. He is a brave person and wants to tell his story. Instead, he gets mistaken for being a terrorist. . . . This is a nightmare for an innocent man being accused of all of these things."
And Judge Leon’s contempt at continued tap dancing on the head of a very tiny pin continually leaks out:
Assuming arguendo that these allegations were established by a preponderance of the evidence,[] the Government has demonstrated, at most, that Janko was trusted enough to be inducted into al Qaeda’s military training program. And while there is no evidence – from either side – as to why he suddenly was suspected by al Qaeda leaders of spying and was tortured for months into giving a false confession, it is highly unlikely that by that point in time al Qaeda (or the Taliban) had any trust or confidence in him. Surely extreme treatment of that nature evinces a total evisceration of whatever relationship might have existed! Stated simply, absent proof to the contrary – which is totally lacking here – no remnant of that preexisting relationship appears to have survived.
No mistaking the annoyance there.
When Sens. Lindsey Graham and John McCain were set up to be the poster boys for habeas evisceration during the MCA debates and beyond, we all knew that the dog and phony show was simply a stall tactic to prevent any real accountability or honesty about what had been done in all of our names. As Jonathan Hafetz put it:
Under the new law, the United States can snatch a person anywhere in the world, declare him an enemy combatant, and imprison him indefinitely without due process or trial on the grounds that he “supported” a terrorist organization, possibly by making donations to a charity he may not realize is a front for a terrorist group. The act also makes it easier for the government to outsource torture, as it did in the case of Maher Arar, who was rendered from J.F.K. International Airport in New York to Syria where he was brutally beaten and imprisoned in a cell the size of a coffin for ten months. Once the president designates a person an enemy combatant, the government never has to present any evidence or face habeas corpus review in the courts. Even torture by the U.S. government has no remedy under the MCA.
The intent of the MCA is unmistakable: to eliminate any restraints on presidential power, specifically by the courts.
Over and over again, the government has proven all on its own why such broad powers should never be given to them without the inherent check and balance of habeas to rein in such excesses. Daphne Eviatar has a piece on the Jawad case that is worth a read on that point alone.
The ACLU has been working on a public accountability project for some time now that is really impressive. There will be more about that in days ahead from me, but suffice it to say that when Judge Leon is pushing accountability forward this bluntly, I think there may be some cause for hope that some measure of accountability may, some day, be meted out.
But it will take all of us pushing, constantly, to make that happen. The last few years should have taught us all that governments tend toward the shadows unless we continually shove them toward the sunlight.
Like Glenn, I continue to be very troubled by the tilt against transparency and double-standards for our own misconduct — we cannot simply pretend the last few years were an aberration, because they are now woven into the fabric of who we are as a nation. We either stand up and hold ourselves to account, or we are all torturers. It is that simple.
(YouTube — ACLU Accountability Project on torture.)
Morning everyone. Beautiful day in my neighborhood — hope you are having one, too.