Wednesday, July 22, 2009
Judge Ellen Segal Huvelle (D.D.C.) held a hearing last week in Guantanamo detainee Mohammed Jawad's habeas case in which she lambasted the government for its most recent gambit: A motion to amend its statement of facts supporting its case against Jawad. The NYT posted the hearing transcript here.
When detained, Jawad was the youngest detainee at Guantanamo Bay; the government has held him for over seven years. His military commission trial got caught between the Bush administration's military commission system and the Obama administration's efforts to revamp it and to consider other options for Guantanamo detainees. The case was so bad that the former lead military prosecutor left the military commission last year and submitted a 14-page statement describing Jawad's torture in U.S. custody and stating that the flaws in the military commission system made it impossible "to harbor the remotest hope that justice is an achievable goal." (I posted on Jawad's case most recently here.)
In Jawad's habeas case, Judge Huvelle most recently granted Jawad's unopposed motion to suppress his inculpatory statements. Now every one of Jawad's inculpatory statements is out, apparently leaving the government with only the barest trace of a case.
Last week's hearing focused on the government's motion to amend its statement of facts supporting Jawad's continued detention. The government's DOJ prosecutors asked for more time to consult internally about how to proceed after discovering "new" information--new, apparently, to the DOJ, but already released in Jawad's military commission case. (Yes, you read that right.)
Given this background, Judge Huvelle understandably expressed deep, deep frustration with the government's move. (Take a look at the transcript for yourself. I'd excerpt portions, but I'm afraid I'd end up excerpting the whole thing.) Nevertheless, she granted the motion and set a merits hearing for August 5.
If the government doesn't pull any more tricks--and Judge Huvelle specifically ruled out transferring the case to the Southern District of New York, presumably for a regular Article III criminal trial--the government will have to meet the Obama administration's new (but only slightly revised) standard for detention. And it will have to meet the standard with live witnesses, according to Judge Huvelle's statements at the hearing.
Government attorneys didn't reveal much about their legal positions on Judge Huvelle's instructions. But take a look at this claim by one of them: "Your Honor, this is a war time habeas proceeding. So it is not a normal situation where you call live witnesses." The claim is reminiscent of the Bush administration's seemingly catch-all position that the government can do what it wants because this is war. Like many, Judge Huvelle was unpersuaded. In response to the claim, she simply told the DOJ attorney, "Fine, don't."