On Thursday, in a long-anticipated ruling (PDF), Judge Ellen Segan Huvelle granted the habeas corpus petition of Mohamed Jawad, an Afghan teenager seized after a grenade attack on a jeep containing two U.S. soldiers and an Afghan translator in December 2002, and ordered the government to transfer him to the custody of the Afghan authorities, who have already stated that he will be released on arrival.
Even if the government accepts Judge Huvelle's ruling, Jawad will not be released immediately, because, under the terms of legislation recently forced on the government by Congress, the administration will have to provide lawmakers with "an assessment of any risk to the national security" posed by Jawad before he can be freed, which, it said, would take 22 days.
However, even as Judge Huvelle delivered her ruling, the government announced that it has not entirely given up on Jawad's case. Deputy Assistant Attorney General Ian Gershengorn told the court that the government was still deciding whether to pursue a criminal case against Jawad, meaning that he could, conceivably, be transferred to the U.S. mainland to stand trial in a federal court.
At Thursday's ruling, Judge Huvelle acknowledged that the government had the right to file a criminal case, and gave lawyers three weeks to do so, but she urged them not to take this course of action. "After this horrible, long, tortured history, I hope the government will succeed in getting him back home," she said. "Enough has been imposed on this young man to date."
These may seem like harsh words, but they are nothing compared to the sustained scorn that Judge Huvelle poured on the government's case in a hearing two weeks ago, and for those who have studied Jawad's case in any detail, they are entirely appropriate, as the case against Jawad first collapsed nine months ago. It would not be an exaggeration to state that, if the Justice Department and the Defense Department decide to proceed with a criminal prosecution, it will demonstrate not only that they have, collectively, taken leave of their senses, but also that no one in a position of responsibility -- President Obama, Attorney General Eric Holder or defense secretary Robert Gates -- has either the courage or the awareness to step in to prevent a clear message being sent out to the world that, far from addressing the excesses of the Bush administration's "War on Terror," the Obama administration is, instead, pursuing exactly the kind of cruel, unjust and incompetent policies that would bring a smile to the lips of former Vice President Dick Cheney.
To understand the significance of the decision facing the government, it is important to understand that the case against Jawad was always tenuous, as I reported in October 2007, when he was first put forward for a trial by Military Commission (the "terror trials" introduced by Dick Cheney in November 2001, and revived by Congress in 2006, after the Supreme Court ruled them illegal), and that it unraveled spectacularly last September, when the prosecutor in his proposed trial, Lt. Col. Darrel Vandeveld, resigned.
Stating that he had once been a "true believer," but had ended up feeling "truly deceived," Lt. Col. Vandeveld explained, as I described it in an article two months ago, that he had come to regard the Commissions as "a dysfunctional system, which, both through accident and design, prevented the disclosure of evidence essential to the defense, thereby ensuring that no fair trial was possible." He also "described how evidence proving that Jawad was a juvenile at the time of his capture, that he was tricked into joining an insurgent group and was drugged before the attack, and that two other men had confessed to the crime, had been deliberately suppressed."
If a shred of credibility remained in the case, this dissolved in October and November, when, on two separate occasions, Jawad's military judge, Army Col. Stephen Henley, ruled that the crux of the government's case against Jawad -- two "confessions" made on the day of his capture, the first in Afghan custody, and the second, just hours later, in U.S. custody -- were inadmissible because they had been obtained through treatment that constituted torture.
As I explained in my article two months ago,
On October 28 ... [Col.] Henley found that there was "reason to believe Jawad was under the influence of drugs at the time of his capture and forced confession," and also "accepted the accused's account of how he was threatened, while armed senior Afghan officials allied with U.S. forces watched his interrogation." He stated that he believed Jawad's account of an interrogator telling him, "You will be killed if you do not confess to the grenade attack. We will arrest your family and kill them if you do not confess." He also made a point of stating that he was accepting Jawad's account because the government had failed to provide "timely disclosure of evidence" for his trial, which was scheduled to begin on January 5, 2009. [...]
Three weeks later, Col. Henley dealt another blow to the prosecution's case by ruling that a second confession, made in U.S. custody the day after his Afghan confession, was also inadmissible, because "the U.S. interrogator used techniques to maintain 'the shock and fearful state' associated with his arrest by Afghan police, including blindfolding him and placing a hood over his head." As Col. Henley explained in his ruling, "The military commission concludes the effect of the death threats which produced the accused's first confession to the Afghan police had not dissipated by the second confession to the U.S. In other words, the subsequent confession was itself the product of the preceding death threats."
When Col. Henley excluded Jawad's first confession, Lt. Col. Vandeveld responded by stating that it was "among the most important evidence for his upcoming war crimes trial," and adding, "To me, the case is not only eviscerated, it is now impossible to prosecute with any credibility."
This really should have been the end of the whole sordid story, and Jawad should have been put on a plane and sent back to Afghanistan, but this didn't happen, and, although Barack Obama suspended the Military Commissions for four months on his arrival in the White House on January 20, 2009, Jawad's habeas corpus petition -- one of hundreds allowed to proceed after a momentous Supreme Court ruling last June -- reached a U.S. District Court around the same time, accompanied by an even more scathing statement by Lt. Col. Vandeveld.
In an unparalleled dissection of the failures of the Military Commission system -- and, in a wider sense, of the gathering of evidence in connection with the cases of all the Guantánamo prisoners -- Lt. Col. Vandeveld described at length the "chaotic" state of the Prosecutors' Office, and explained how he had discovered previously hidden evidence relating to Jawad's abuse at Bagram and in Guantánamo, where he was subjected to a sleep deprivation program, which involved moving prisoners from cell to cell every few hours (over a two-week period, in Jawad's case) and was known, euphemistically, as the "frequent flier program." He also noted that Jawad's continued detention was "something beyond a travesty," and stated that he "should be released to resume his life in civil society, for his sake, and for our own sense of justice and perhaps to restore a measure of our basic humanity."
Given the glacial pace of most of the habeas reviews -- primarily because of obstruction by the Justice Department, where officials have been behaving as though George W. Bush was still in power and Dick Cheney was still breathing down their necks -- it took until June for Jawad's case to reach a point where Judge Huvelle could finally confront the shattered remnants of the government's supposed evidence. On that occasion, she indicated that the government would be in for a bumpy ride, declaring, "This case has been so thoroughly examined that it may be the one and only case not to be so difficult. This case is ready to go."
However, few observers were prepared for the torrent of derision that Judge Huvelle subjected the government to just two weeks ago. In a 30-minute hearing on July 16 (PDF), Judge Huvelle's patience was stretched to breaking point when the government responded to her ruling that every other confession made by Jawad at Guantánamo would also be excluded not by contesting the ruling (or, as would have made sense, by dropping the case outright), but by pleading that it needed more time to decide whether it could still build a case for a possible trial in federal court, or in a new Military Commission, based on what it described as new inculpatory evidence unearthed during a search of records.
Judge Huvelle's criticisms were so sustained, and so damning of the government's inability to recognize that it had no case, that I'm reproducing detailed excerpts in a separate article, but to pick out a few highlights, she repeatedly stressed that the government did not have a single reliable witness, and that the case was "lousy," "in trouble," "unbelievable," and "riddled with holes."
She also insisted that the government should have known that it had no case when Jawad's proposed trial by Military Commission effectively collapsed last November, and repeatedly expressed her fears that the administration was planning some kind of underhand treachery to prevent her from granting Jawad's habeas petition, stating, at one point, "I'm not going to wait to grant a habeas until you gear up a military commission. That's what I'm afraid of. Let him out. Send him back to Afghanistan." On another occasion, she stated, "If they [the government] think for one minute that I am going to delay this thing so they can come up with some other alternative to going forward with the habeas and pull this rug from under the Court at the last minute by saying, oh, he is going to the Southern District of New York, don't bother -- or whatever idea you come up with."
To my mind, the very fact that a judge in a U.S. District Court can, genuinely, fear that the government will attempt to usurp her authority spells out, succinctly, the dangers of the place in which the Obama administration finds itself, as it attempts to clear up the mess inherited from George W. Bush. I still have no firm idea why Obama and Holder have allowed the Justice Department to pursue unjustifiable and unwinnable cases in the habeas litigation, resulting, over the last few months, in humiliation after humiliation, first in the case of Alla Ali Bin Ali Ahmed, then in the case of Abdul Rahim al-Ginco, a young Syrian who was tortured by al-Qaeda, and now in the case of Mohamed Jawad.
However, it's conceivable that, in its desire to fully comprehend the cases -- and to "own" them, if you like -- the administration has poured all its energies into the inter-departmental Task Force that is currently halfway through reviewing all the Guantánamo prisoners' cases. This is, perhaps, understandable, but by neglecting to cast a genuinely critical eye on the habeas litigation, senior officials are committing three unforgivable errors:
firstly, they are treating the judiciary with scorn, even though the habeas litigation began five years ago on the orders of the Supreme Court, and the District Courts are, moreover, the only genuinely open forum for discussion of the Guantánamo cases;
secondly, they are demonstrating that, whatever fine words they may utter, they are, in practice, cleaving to the Bush administration's insanely broad detention policies regarding "enemy combatants," and are effectively failing to distinguish between genuine terrorist suspects (al-Qaeda) and low-level fighters in an inter-Muslim civil war that preceded 9/11 and had nothing to do with it (recruits for the Taliban);
and thirdly, by failing to understand how little "evidence" is actually credible, because it is the product of the dubious interrogations of other prisoners, or of intelligence procedures, designed to produce a "mosaic" of intelligence, which, in reality, cannot stand up to independent scrutiny, they are repeatedly pursuing cases that only end up embarrassing or humiliating the government, and are, yet again, reinforcing notions that they are essentially happy with the Bush administration's unprecedented and unforgivable decision to create a category of prisoner that is neither a prisoner of war nor a criminal suspect.
The response to these errors is the same as it should have been on Day One of the Obama administration, when many of us thought that real change was coming: speed up the habeas cases; focus solely on issues relating to acts of terrorism or genuine support for terrorism; abandon every other case, especially those that look dubious or unwinnable; and prepare federal court trials for those regarded as genuinely dangerous, in the knowledge that federal courts have a proven track record of successful terrorist prosecutions, and that no jury will fail to convict if any real evidence is presented.
In addition, the administration needs to swear that, in future, anyone seized in wartime or in connection with terrorism will be treated either as a prisoner of war, protected by the Geneva Conventions, or as a criminal suspect, to be prosecuted in a federal court, so that "lousy" and "unbelievable" cases like that of Mohamed Jawad become a thing of the past, consigned to history as securely as George W. Bush, Dick Cheney and all the other architects of the unprecedented flight from the law that was initiated in the wake of the 9/11 attacks.