[Ppnews] Judge Orders Release of Tortured Gitmo Prisoner

[Political Prisoner News]

http://www.counterpunch.org/worthington07312009.html

July 31 - August 2, 2009


Government Refuses to Concede Defeat

Judge Orders Release of Tortured Gitmo Prisoner

By ANDY WORTHINGTON

On Thursday, in a long-anticipated ruling 
(<http://www.scotusblog.com/wp/wp-content/uploads/2009/07/huvelle-jawad-order-7-30-09.pdf>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, 
<http://www.andyworthington.co.uk/2009/06/30/guantanamo-charge-or-release-prisoners-say-no-to-indefinite-detention/>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 
<http://www.andyworthington.co.uk/2008/12/25/the-ten-lies-of-dick-cheney-part-one/>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 
<http://www.counterpunch.org/worthington10172007.html>I 
reported in October 2007, when he was first put 
forward for a trial by Military Commission (the 
“terror trials” 
<http://www.andyworthington.co.uk/2007/06/26/dick-cheney-more-horrors-from-the-vice-president-for-torture/>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, 
<http://www.counterpunch.org/worthington07132009.html>Lt. 
Col. Darrel Vandeveld, resigned.

Stating that he had once been a “true believer,” 
but had ended up feeling “truly deceived,” 
<http://www.counterpunch.org/worthington10032008.html>Lt. 
Col. Vandeveld explained, as I described it in 
<http://www.andyworthington.co.uk/2009/06/01/a-child-at-guantanamo-the-unending-torment-of-mohamed-jawad/>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 
 
<http://www.andyworthington.co.uk/2008/11/18/20-reasons-to-shut-down-the-guantanamo-trials/>[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 
<http://www.andyworthington.co.uk/2008/12/01/torture-preventive-detention-and-the-terror-trials-at-guantanamo/>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 
<http://www.counterpunch.org/worthington01222009.html>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 
<http://www.counterpunch.org/worthington06132008.html>Supreme 
Court ruling last June -- reached a U.S. District 
Court around the same time, accompanied by 
<http://www.andyworthington.co.uk/2009/01/14/former-guantanamo-prosecutor-condemns-chaotic-trials-in-case-of-teenage-torture-victim/>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 
(<http://www.scotusblog.com/wp/wp-content/uploads/2009/07/jawad-hearing-7-16-09.pdf>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 
<http://www.andyworthington.co.uk/2009/07/31/how-judge-huvelle-humiliated-the-government-in-guantanamo-case/>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 
<http://www.counterpunch.org/worthington05142009.html>Alla 
Ali Bin Ali Ahmed, then in the case of 
<http://www.counterpunch.org/worthington06242009.html>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 
<http://www.andyworthington.co.uk/2009/07/27/obama-and-the-deadline-for-closing-guantanamo-its-worse-than-you-think/>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 
<http://www.andyworthington.co.uk/2009/03/16/guantanamo-the-nobodies-formerly-known-as-enemy-combatants/>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.

Andy Worthington is a British journalist and 
historian, and the author of 
'<http://www.amazon.com/exec/obidos/ASIN/0745326641/counterpunchmaga>The 
Guantánamo Files: The Stories of the 774 
Detainees in America's Illegal Prison' (published 
by Pluto Press). Visit his website at: 
<http://www.andyworthington.co.uk/>www.andyworthington.co.uk 
He can be reached at: 
<mailto:andy at andyworthington.co.uk>andy at andyworthington.co.uk




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