The Osterley Times: As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat.

Judge Ellen Segan Huvelle has granted the habeas corpus petition of Mohamed Jawad, the young Afghan teenager accused of a grenade attack on a jeep containing two US soldiers in 2002. She has ordered that he be transferred back to Afghanistan where the Afghans have already announced that he will be released.

However, the Obama administration have stated that they might very well bring charges against Jawad in a US federal court.

The judge has made it very clear that, whilst the government have every right to carry out such an action, that it would be, in her opinion, a serious mistake:

“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.”

Andy Worthington explains what is at stake here:

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.”

It was several months ago when I read Andy's piece on Lt. Col. Vandeveld's conversion from a true believer to someone who had “even developed sympathy” for Jawad, that I began to wonder how anyone could continue to make the case for his continued detention.

Both of his "confessions" have been ruled to have been made under conditions of torture. And the "true believer" Vandeveld has recently stated that Jawad “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.”

And this is the extraordinary scene which played out in court two weeks ago when the government appealed for more time to decide how to proceed:

THE COURT: The motion to suppress is now going to be granted as conceded because the government filed on the 15th the respondent's, meaning the government, do not oppose petitioner's motion. Then you ask that we continue the status conference but I'm not willing to continue the status conference because I don't know what I'm continuing it for. Ms. Wolfe, what is it -- you say this additional time will allow respondents to consult internally to determine how respondents will proceed in connection with this habeas. I have now suppressed every statement attributable to the defendant as the government has failed to oppose. The way I look at this is your books of material facts upon which you are proceeding. If I calculate it right, about 90 percent of it is statements attributable to the petitioner. So they're out. So what is there to think about?

MS. WOLFE: Well, there is other evidence in the factual return and in the statement of material facts that is not comprised of petitioner's statements. At this juncture we're consulting internally to determine how we'll proceed.

THE COURT: There are 11 statements attributed to Afghanistan officials and to the Americans. The Americans did not see anything and there may or may not be an Afghani who saw something. You can't prevail here without a witness who saw it. I mean, let's be frank. You can tell your superiors that. You can't. There is no evidence otherwise. You have nothing here other than statements attributable, there are potentially three people. So that's your only way to proceed. And I don't see how you can do it. Who do you have to consult with about this? Who are the powers that be?

MS. WOLFE: The relevant decision-makers, Your Honor, are both within our client agencies as well as within the Department of Justice.

THE COURT: It is a very short trial, you don't have any witnesses. Without a witness, I don't understand this case.

Plainly, as Huvelle has granted habeas corpus, the government have produced nothing two weeks later. So what the Hell is Obama's administration thinking about?

The judge made her anger quite plain a fortnight ago about what she clearly sees as a miscarriage of justice:

THE COURT: We're having a merit proceeding very swift here. I'm not putting it off. This guy has been there seven years, seven years. He might have been taken there at the age of maybe 12, 13, 14, 15 years old. I don't know what he is doing there. Without his statements, I don't understand your case. I really don't.

[...]

Let him out. Send him back to Afghanistan.

[...]

But seven years and this case is riddled with holes. And you know it. I don't mean you. The United States Government knows it is lousy. If you can't rely on the guy's statements, you have a lousy case.

The question now before the Obama administration is whether they can get this guy on something else before a federal court. Why they would want to do that I have no idea.

The case against Mohamed Jawad was "lousy" from the beginning. I see no purpose in continuing this miscarriage of justice any further.

Obama should let him go.

UPDATE:

Major David Frakt said this during his closing argument:

Why was Mohammad Jawad tortured? Why did military officials choose a teenage boy who had attempted suicide in his cell less than 5 months earlier to be the subject of this sadistic sleep deprivation experiment? Not that anything would justify such treatment, of course, but at least in the case of the other detainees known to have been subjected to sleep deprivation, they were believed to possess critical intelligence that might save American lives. Unfortunately, we may never know. I’ve asked to speak to the guards who actually carried out the program, and I’ve been denied. In the absence of information to the contrary, which the government would surely provide if it existed, we are left to conclude that it was simply gratuitous cruelty.

The government admits that Mohammad Jawad was treated “improperly,” but offers no remedy. We won’t use any evidence derived from this maltreatment, they say, but they know that there was no evidence derived from it because the government didn’t even bother to interrogate him after they tortured him. Exclusion of non-existent evidence is not a remedy. Dismissal is a severe sanction, but it is the only sanction that might conceivably deter such conduct in the future…

Sadly, this military commission has no power to do anything to the enablers of torture such as John Yoo, Jay Bybee, Robert Delahunty, Alberto Gonzales, Douglas Feith, David Addington, William Haynes, Vice President Cheney and Donald Rumsfeld, for the jurisdiction of military commissions is strictly and carefully limited to foreign war criminals, not the home-grown variety. All you can do is to try to send a message, a clear and unmistakable message that the U.S. really doesn’t torture, and when we do, we own up to it, and we try to make it right.

Few people come out of this sordid tale well, but Major David Frakt, Lt. Col. Vandeveld and Judge Ellen Segan Huvelle are the notable exceptions.

UPDATE II:

Glenn Greenwald tells us that, "In 28 of 33 Gitmo detainee cases heard so far, federal judges have found insufficient evidence to support keeping them in prison."

And he reminds us of the US politicians who voted to keep these men from ever having their day in court:

The only reason why these hearings are even taking place is because, in June, 2008, the Supreme Court -- by a 5-4 vote in Boumediene -- struck down the MCA's denial of habeas corpus as unconstitutional and held that detainees are entitled to a hearing before a federal judge to contest the validity of their accusations. John McCain called that decision "one of the worst decisions in the history of this country."

If the members of Congress who voted for the MCA had their way -- and that includes all GOP (except Chafee) plus 12 Democratic Senators, as well as all GOP House members (except 7) and 34 Democratic House members -- then all of these detainees against whom there is virtually no evidence (including Jawad) would still be sitting in a cage, possibly forever, with no mechanism to secure their release. One should be hesitant to attribute bad motives to someone based on political disagreements, but some positions are so morally depraved and just plain tyrannical that a rational person has no choice but to do so. Voting to empower the President to imprison people for life with no charges and no judicial review -- particularly where the individuals were not captured on any "battlefield," thus ensuring a very high risk of error and/or abuse -- falls squarely into that category.

Every time a federal judge orders another Guantanamo detainee released on the grounds of insufficient evidence (and that does not mean "insufficient evidence to convict"; it merely means: "insufficient evidence even to justify their detention"), just remember that the vast majority of the current members of Congress voted to deny those detainees any opportunity to have a court review their imprisonment, the most basic and defining right of Western justice. Put simply, they knowingly voted to deny innocent people the right to have a court review their indefinite imprisonment. If that isn't morally depraved, what is?

People like John McCain - and the others who voted to keep these people locked up without trial - should be forced to publicly account for what they supported.

They were wrong. And yet, if they had had their way, innocent people would have remained incarcerated for years to come. They should hang their heads in bloody shame.

Click title for Andy Worthington's full article.