Yesterday, U.S. District Judge Richard J. Leon ordered the release of Guantanamo Bay detainee Abdul Rahim Abdul Razak al-Janko, a former member of al-Qaeda who was believed to be a spy for the U.S. and was tortured until he confessed. (I'm sure al-Qaeda was nonetheless convinced that it had foiled several American anti-terrorist plots.) Al-Janko was then imprisoned for 18 months by the Taliban. Al-Janko was then abandoned in his prison as the Taliban retreated, at which point he was detained as an enemy combatant based on his association with al-Qaeda, and it is on this basis that the Obama administration sought to keep him detained. Al-Janko argues that he was no longer part of al-Qaeda at the time of his capture by U.S. forces, given his torture and imprisonment; the U.S. says he was. Judge Leon described the government's position as "[defying] common sense."
Perhaps more significantly, we're beginning to see elements of an emerging standard for the government when it comes to defining who is and is not an "enemy combatant" (a term the Obama administration no longer uses, but it's essentially a cosmetic change). Judge Leon writes, "Whether someone is 'part of' the Taliban or al Qaeda is a factual question that the Government has the burden of proving by a preponderance of the evidence." He also adds--and I've never seen a judge in these cases use an exclamation point before--this:
The Government also contends, in essence, that the extreme treatment Janko was subjected to over a substantial period of time thereafter was not sufficient to vitiate that relationship [with al-Qaeda]. As such, the Government contends he was still "part of' those organizations when he was ultimately taken into custody by the U.S. forces some two years later. I disagree!
Leon does it again later, referring to al-Janko being tortured: "Surely extreme treatment of that nature evinces a total evisceration of whatever relationship might have existed!" In the eyes of the administration, apparently not.
Obama's defenders have argued that his policy isn't so much Bush's policy as Bush's policy once the courts were done with it--and it seems like the courts will once again emerge as the most powerful force in reigning in the government's attempts to assert wide authority in the war on terror, particularly when it comes to using military authority to detain suspected terrorists indefinitely.
-- A. Serwer
