GOP Judge Gives Bush a Gitmo Victory
December 31, 2008
Civil libertarians hailed last June’s U.S. Supreme Court ruling requiring habeas corpus hearings to justify indefinite detentions at Guantanamo Bay, but there remained the question of which federal judges would hear the evidence. It was clear that many would be right-wing Republican appointees.
A Dec. 30 ruling by U.S. District Judge Richard J. Leon – siding with the Bush administration regarding two alleged “enemy combatants” – underscores that problem. Leon is a longtime Republican legal operative who believes in expansive executive power (at least when the GOP has the White House) and who has covered up past crimes implicating Republicans.
In an earlier ruling, on Nov. 20, Leon did surprise the Bush administration when he decided that the evidence against five Algerians was so thin he couldn’t accept their “enemy combatant” designation. But Leon was back on board Dec. 30 with a judgment that a Yemeni and a Tunisian could be held indefinitely based -- in large part -- on secret evidence that the accused were not permitted to see.
Some concerns about the injustices of President George W. Bush’s “enemy combatant” cases may be lessened by the inauguration of Barack Obama in three weeks, assuming the incoming President lives up to his word about closing Guantanamo and renouncing Bush’s grandiose presidential powers.
However, if the process continues as currently structured, the right-wing ideological bent of the federal judiciary could become a factor in determining whether meaningful justice will be granted to people swept up in Bush’s “war on terror.”
Leon is a good example of the partisan GOP judges who now stock the federal judiciary – after 20 years of Republican control of the presidency out of the past 28 years. Since these judges have lifetime appointments, their ideological tendencies are sure to shape American jurisprudence far into the future despite the Democrats’ new-found control of the White House and Congress.
In view of Leon’s latest ruling – and what will surely be the long-term Republican dominance of the Judiciary – we are republishing parts of a story we wrote last month about Leon’s troubling record:
Earlier in his career – before getting appointed to the bench by George W. Bush in 2002 – Leon had been one of the most reliable Republican legal apparatchiks, skilled in steering investigations toward a desired partisan outcome, whatever the facts and the evidence might be.
So, in 1987, when Rep. Dick Cheney and his legal adviser David Addington were defending President Ronald Reagan and Vice President George H.W. Bush in the congressional Iran-Contra investigation – and devising legal arguments about inherent presidential powers – Richard Leon was there as a Republican senior counsel.
In 1992, when a House task force was examining evidence that Reagan and Bush began their secret contacts with Iran’s Islamic regime in 1980 while trying to unseat President Jimmy Carter, Leon was the Republican point man to make sure nothing too damaging came out.
Later in the 1990s, after Bill Clinton became President, Leon served as special counsel to the House Banking Committee for a highly partisan investigation that transformed Clinton’s minor Whitewater real estate deal into a big scandal.
In other words, if there was a politically sensitive probe that needed the answer to come out a certain way for Republicans, Richard Leon was one of their top go-to guys.
Even as a federal judge, Leon reliably leaned the Republican way. He opposed the idea of having civilian judges handle cases regarding the indefinite incarceration of terror suspects whom President Bush had locked up at Guantanamo.
However, on Nov. 20, after a closed-door habeas corpus hearing where the Bush administration presented its secret evidence against six Algerian men, Leon ordered five of them released and blasted the weakness of the evidence.
Though still criticizing the U.S. Supreme Court for requiring the government to show cause for keeping detainees locked up, Leon nevertheless added about the government’s evidence, “to rest [the men’s continued imprisonment] on so thin a reed would be inconsistent with this court’s obligation.”
Leon said the government’s case, accusing five of the Algerians of planning to fight American troops in Afghanistan, relied on information from a single unnamed source. However, Leon agreed to the continued incarceration of the sixth Algerian because Leon felt there was sufficient corroboration of that man’s links to al-Qaeda.
Counted as Lucky
Yet before the ruling was handed down, the Bush administration must have counted itself lucky to have drawn Leon for 24 of the habeas corpus hearings. Leon had a long record of protecting the flanks of powerful Republicans caught up in national security scandals.
In 1987, when President Reagan faced accusations that he authorized an off-the-books operation to send illicit assistance to the Nicaraguan contra rebels and to illegally ship military hardware to Iran, Leon stepped forward as deputy chief counsel on the Republican side of the Iran-Contra investigation.
There, Leon worked with Dick Cheney, then a Wyoming congressman, fending off accusations of Reagan’s wrongdoing. They even came up with a counter-argument that accused Congress of intruding on the foreign policy prerogatives of the President.
“Congressional actions to limit the President in this area … should be reviewed with a considerable degree of skepticism,” the Republican minority report said. “If they interfere with the core presidential foreign policy functions, they should be struck down.”
In 2005, when Cheney was defending his concept of George W. Bush’s nearly unlimited powers during wartime, the Vice President harkened back to that Iran-Contra minority report.
“If you want reference to an obscure text, go look at the minority views that were filed with the Iran-Contra committee,” Cheney told a reporter. Cheney said those old arguments “are very good in laying out a robust view of the President’s prerogatives with respect to the conduct of especially foreign policy and national security matters.”
One could say that Richard Leon – along with David Addington, now Cheney’s chief of staff, another strong advocate of expansive executive powers – was there at the birth of what became George W. Bush’s imperial presidency.
October Surprise Case
Leon also came to the rescue in 1992 when evidence was mounting that Ronald Reagan and George H.W. Bush had started their illicit contacts with Iran even earlier than the Iran-Contra deals, back to Campaign 1980 when they allegedly interfered with President Carter’s efforts to gain the release of 52 U.S. hostages held by Islamic radicals in Iran.
To examine this so-called “October Surprise” case, the House approved creation of a task force headed by Democratic Rep. Lee Hamilton and Republican Rep. Henry Hyde. Hamilton hired former prosecutor Lawrence Barcella as chief majority counsel and Hyde picked Richard Leon as chief minority counsel.
From the start, however, the investigation seemed more determined to debunk the allegations of Republican wrongdoing than to seriously assess the evidence. At one point, I went to the task force’s office and questioned Barcella and his assistant, Michael Zeldin, about this peculiar style of investigating.
Barcella and Zeldin pointed to Leon’s insistence that interviews with witnesses be conducted only with him or another Republican present. This stricture had sharply limited the task force’s ability to follow leads and develop new witnesses.
Indeed, some key October Surprise witnesses described to me how Leon sought to intimidate them into retracting their allegations about Republican wrongdoing. When these witnesses refused to alter their sworn testimony, they became the targets of the task force, more so than Reagan and Bush.
Jamshid Hashemi, an Iranian businessman who had assisted the Carter administration on the hostage issue in 1980, alleged that he and his brother Cyrus Hashemi also helped Reagan’s campaign chief William Casey arrange secret meetings with Iranian officials in Madrid in summer 1980.
However, after Jamshid Hashemi gave his account to the task force in 1992, he said Leon tried to pressure him to recant his allegations.
"I found this Mr. Leon – who I knew as the 'fat man' – every time we had a break and my lawyer would go to the washroom, he would rush into my room where I was sitting and say, 'come on, change the story'," Jamshid Hashemi told me.
"I said I would not change my story at all. The last time he opened the door, I said, 'Get out of my office. If you have anything to say, say it in front of my lawyer.’"
Hashemi said Leon, rather than task force chief counsel Barcella, appeared to be running the October Surprise investigation with the goal of protecting Republicans, rather than getting at the truth.
I received a similar account of Leon’s behavior from former Israeli intelligence official Ari Ben-Menashe, who testified that he and other Israelis helped arrange a Paris meeting in October 1980 involving Casey, George H.W. Bush and key Iranians. Ben-Menashe said Leon demanded that he alter his sworn testimony as well.
Recently, when I spoke with Ben-Menashe, he reaffirmed that account and described Leon as “a Bush crony.”
So, despite substantial evidence of Reagan-Bush wrongdoing from more than a score of individuals, Leon helped persuade the task force to reject the October Surprise allegations, a finding made easier for the Democrats by their 1992 election victories that meant the end of the Reagan-Bush era.
Besides Hashemi and Ben-Menashe, the many individuals describing Republican guilt included: former Iranian president Abolhassan Bani-Sadr (who sent the task force a detailed account of the Iranian-Republican contacts from his view in Tehran); senior officials of the Palestine Liberation Organization who described overtures from Republicans seeking help in interfering in the hostage crisis; and French intelligence chief Alexandre deMarenches (who told his biographer about secret GOP-Iran hostage meetings in Paris, claims corroborated by other French intelligence officials).
Barcella told me years later that new evidence in support of the October Surprise allegations poured in late in the investigation, so much evidence that he urged Hamilton to extend the deadline for several months. Hamilton, however, refused and ordered the probe wrapped up with a finding of Republican innocence.
Complications for Leon, Hamilton and the other debunkers continued to arise, however.
On Jan. 11, 1993, just two days before the task force’s debunking report was scheduled for release, the Russian government sent an extraordinary report to Hamilton describing Moscow’s internal intelligence on the controversy.
The Russian report described Republican meetings with Iranians in Europe, including Casey’s trip to Madrid and the Paris meeting that the Russians also said involved George H.W. Bush and then-CIA officer Robert Gates (now U.S. Defense Secretary).
Instead of making the Russian report public, the task force stuck it – and its startling information – in a cardboard box that was filed away with other classified and unclassified material from the investigation. (I found the Russian report when I got access to the task force's raw documents in 1994.)
While hiding the Russian report and other evidence supporting the October Surprise allegations, the House task force released its negative findings on Jan. 13, 1993, and went on the attack against the witnesses who had rejected Leon’s demands that they recant their testimony.
In January 1993, task force leaks indicated that Jamshid Hashemi and Ari Ben-Menashe would be referred to the Justice Department for prosecution on perjury charges. However, no such charges were ever filed.
[For more details on the October Surprise case, see Robert Parry’s Secrecy & Privilege. For the text of the Russian report, click here. To view the actual U.S. embassy cable that includes the Russian report, click here.]
Over the years, both Hashemi and Ben-Menashe have stuck to their stories.
When I re-interviewed Hashemi in 1997 about the October Surprise case, he said, "I thought it was my duty that the people in the United States should know. They should know, they should be the judge of it."
Though Hashemi sat through my interview with the same gentlemanly style that I encountered when I first met him in 1990, he did flash with anger when I asked him about the House task force’s report.
"Rubbish, that's what I think," steamed Hashemi. "Just a whitewash of the whole situation. It's a cover-up."
Hashemi argued that it made no sense for him to have invented his October Surprise account, which he repeated under oath to Congress in 1992. He had nothing to gain – and a great deal to lose, he said.
"Who has ever paid me a single dime?" Hashemi asked. "I had to pay all my lawyer's fees. What did I gain here?"
Hashemi blamed the cover-up primarily on the attack strategy of Republican lawyers on the task force, particularly Richard Leon.
However, there were rewards in store for Leon. After George W. Bush became President, grateful Republicans got Richard Leon a seat on the federal bench in Washington in 2002.
As a District Court judge, Leon has performed as a reliably conservative jurist – at least until he surprised the Bush administration on Nov. 20 by ordering the release of those five Algerian “terror suspects.”
However, on Dec. 30, with his latest ruling in support of the Bush administration, Leon appears to have returned to the fold.
Though it’s impossible assess the quality of the administration’s secret evidence against the two detainees – Moath Hamza Ahmed al Alwi of Yemen and Hisham Sliti of Tunisia – there will remain doubts about the hearing process as long as judges like Richard Leon are involved.
Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Neck Deep: The Disastrous Presidency of George W. Bush, was written with two of his sons, Sam and Nat, and can be ordered at neckdeepbook.com. His two previous books, Secrecy & Privilege: The Rise of the Bush Dynasty from Watergate to Iraq and Lost History: Contras, Cocaine, the Press & 'Project Truth' are also available there. Or go to Amazon.com.
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