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Last year, in Boumediene v. Bush, the US Supreme Court held that foreign prisoners at Guantánamo have a constitutional "privilege of habeas corpus to challenge the legality of their detention" promptly. Guantánamo prisoner Mohammed Jawad filed a habeas corpus petition (pdf file). The Bush DOJ filed a motion to dismiss or hold in abeyance, claiming no right to habeas until after a military commission trial. The Obama DOJ adopted the Bush pleading, and despite repeated inquiries from Jawad’s lawyers, do not wish to modify Bush’s legal arguments.  While adopting Bush’s pleadings, it appears that Obama really seeks to delay habeas proceedings until status determinations are completed before his 120-day deadline. However, even if true, the effect of Obama’s actions is a de facto granting of holding habeas in abeyance, not in deference to the now terminated military proceedings argued by Bush, but until the status determinations have been completed.

Jawad is a 22-year old Afghan national captured as a teenager 6 years ago and imprisoned at Guantánamo. There is no allegation that Jawad is a member of al-Qaeda, the Taliban or any armed militia. There is no allegation that he committed terrorism. Rather, Jawad was charged with typical criminal justice system crimes of attempted murder and intentionally causing serious bodily injury. Bush imprisoned Jawad for a grenade attack in Kabul that injured 2 US soldiers and their Afghan interpreter. The former military prosecutor, Lt. Col. Darrel Vandeveld, who investigated this case for over 1 year, concluded that "there is no credible evidence or legal basis to justify Mr. Jawad’s detention in U.S. custody."  In fact, the military commission judge ordered the suppression of Jawad’s alleged confessions to Afghan and US authorities because they were the product of torture, including death threats by Afghan authorities against him and his family.

The problem from delay is not legal niceties or abstract violations of rights, but the continued harm to Jawad.  We know from the recent release of Guantánamo prisoner Binyam Mohamed that prisoners are still being "beaten by US guards right up to the point of ... departure". Medical examinations last week revealed Mohamed has suffered many injuries, including organ damage, bruising, stomach problems and severe damage to ligaments.  

A brief synopsis of the Bush DOJ grounds for denying habeas relief to Jawad show that the Bush arguments simply are not applicable to the facts of Jawad’s case or Obama’s position on these issues.

(1) Habeas Corpus Delayed Until After Military Commission Proceedings Completed.

On the eve of Obama’s inauguration, the Bush DOJ filed a motion to dismiss or hold in abeyance (pdf file) Jawad’s habeas corpus petition so that the government could first complete its military commission proceedings against Jawad.   Essentially, the argument is one of abstention by the federal courts to provide deference to another adjudicatory system, such as parallel proceedings conducted by military commissions or tribunals.  

(2)  Bush DOJ defended the MCA.

Bush DOJ argued that the court should provide deference to the Military Commissions Act of 2006 or MCA law signed into law by Bush. The Bush DOJ praised some of the MCA provisions, such as an impartial judge and jury, as ensuring fair proceedings while ignoring many of the constitutional violations inherent in the MCA.

(3)  The real issue for Bush is public disclosure of what happened at Guantánamo.

The Bush DOJ was concerned that habeas corpus would interfere with the "autonomous military commission system created by Congress" or the MCA. The true concern for Bush was parallel proceedings in civilian courts that may "produce rulings on the production of discovery and/or exculpatory information that diverge from those of the military commissions."  Moreover, civil and military proceedings could result in "inconsistent rulings on disclosure of classified information."  

(4)  Did Obama accept the Bush DOJ position as delay tactic rather than change in previously stated positions on habeas and MCA?

The ACLU reported on February 18th that "despite President Obama's executive order halting military commission proceedings, the government is moving forward with a last-minute effort by the Bush administration to deny Jawad his right to challenge his detention in federal court until after the commissions case against him is complete."  In a subsequent telephone conversation with an authoritative source close to Jawad’s case, it was confirmed that Jawad’s lawyers had invited the Obama DOJ to withdraw Bush’s motion or to change its position. The Obama DOJ responded that more time was needed for status determinations and therefore, it was "not modifying" the motion filed by the Bush DOJ.

There are indications that this time the Obama DOJ is not whole-heartedly accepting the Bush DOJ substantive positions, as has been recently done with the invocation of state secrets or other governmental prerogatives in torture lawsuits.

Acceptance of Bush’s habeas deference argument is ludicrous in the factual context of Jawad’s case. President Obama ordered a stay of all military commission proceedings, which means that there "are no ongoing military commission proceedings" to which the court owes deference. Further, Obama stated in an executive order that the Guantánamo prisoners have the "constitutional privilege of the writ of habeas corpus."

Moreover, in this case, when the "Court of Military Commission Review granted the government’s request for a stay in Mr. Jawad’s case, the court made clear that it expected Mr. Jawad’s habeas case to proceed in federal court. According to the military appeals court, it decided to grant the stay in part because the prejudice to Mr. Jawad of excessive delay is mitigated by the fact that he can challenge his detention now" in this federal court.

This is consistent with candidate Obama’s statement that the significance of the Boumediene case was that the "principle of habeas corpus ... is the essence of who we are" and the "basic principles of rule of law."

As for the MCA, candidate Obama stated that "As President, I will ... reject the Military Commissions Act." Obama voted against the MCA, and as a candidate stated that these "trials are too important to be held in a flawed military commission system."

While Obama has flipped on some issues and disappointed us with adopting Bush’s state secrets privilege, I think this case is different. In an Executive Order, Obama stated that "prompt and appropriate disposition" of the current prison population at Guantánamo would further our national security and foreign policy interests.

Obama is currently undergoing status reviews to determine whether each prisoner at Guantánamo should be released or not. Obama stayed all Bush military tribunal proceedings for 120 days while a task force develops a better method for determining prisoner status. If Jawad’s status review is held soon and he is released in the next 60-90 days, then this case goes away.

In the meantime, Jawad’s habeas proceedings have been delayed to give the Obama DOJ time to determine how it wished to proceed.  On January 26, the ACLU asked the Obama DOJ to consider withdrawing Bush’s motion to dismiss given Obama’s EO. The Obama DOJ responded that it was "in the process of considering how they will proceed in this and similar cases, and are not in a position to withdraw the Motion at this time (pdf file)."  Thus, a joint motion for continuance was filed and granted by the court on Feb. 2 to give the Obama DOJ more time.  

Jawad’s counsel twice asked the Obama DOJ to withdraw the Bush DOJ’s motion, but the government refused (pdf file)
because it was still working out the status determination process.  Thus, the ACLU filed its pleadings to oppose the Bush/Obama DOJ motion to dismiss or hold in abeyance on February 18th.

The problem, as noted by Jawad’s lawyers, is that this continued delay by the Obama DOJ – even if with the best intentions -- provides a de facto denial of habeas corpus review by the court:

In any event, there is no justification for additional delay.  While the new administration may have the best intentions in reviewing Guantanamo detentions and seeking to avoid the many and grievous mistakes of its predecessor, the law applicable to the government’s alleged basis for Mr. Jawad’s detention has not changed, nor have the facts in his case.  There is no other historical context of which counsel are aware in which the executive branch took upon itself—and asked the judiciary to approve—the authority to declare a constitutional "time out" to decide how the executive wished to proceed, whether with a civilian criminal trial, a military trial or some unspecified third option, while it continued to detain prisoners.  To permit this kind of delay would, effectively, permit the government to detain by fiat, not by law, and thus evade the Suspension Clause.

 

The Boumediene court recognized that it would be "impractical" to provide habeas relief "at the moment the prisoner is taken into custody."  However, when prisoners have been held for 6 years, the costs of delay caused by the government establishing a new process, as is true in Jawad’s case as well, can not be sustained by the prisoner, who is "entitled to a prompt habeas corpus hearing."

Originally posted to Patriot Daily News Clearinghouse on Thu Feb 26, 2009 at 07:57 PM PST.

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