McCarthy admits the obvious, but then lapses into excuse-making again at The Corner:
It seems pretty clear that the Bush administration did not help matters here. Nearly seven years ago, the President publicly claimed the Algerians were planning a bomb attack on the U.S. embassy in Sarajevo. Last month, however, the Justice Department suddenly informed the Court that it was no longer relying on that information. We've seen this sort of thing happen too many times over the last seven years, and the effect can only be to reduce the confidence of the court and the public that the government is in command of the relevant facts and can be trusted to make thoughtful decisions.
All that said, though, Judge Leon concluded that “[t]o rest [combatant detention] on so thin a reed would be inconsistent with this court’s obligation.” That is puzzling. There is nothing in the training of a judge that makes him an expert in military matters. In our system of divided government, the question of who is an enemy combatant should be committed to the executive brach — specifically, to the military professionals waging the war. If there is any evidence supporting the military's wartime decision to detain (and, to reiterate, Judge Leon said there was sufficient evidence to hold these men for intelligence purposes), the court should defer to the military judgment.
It takes very little imagination to think of many ways in which evidence sufficient to detain someone for intelligence gathering purposes would be completely inadequate to justify indefinite detention. In a civilian context similar things happen with material witnesses, police investigations and even protective custody.