On Thursday, as I reported in a separate article, “As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat,” District Court Judge Ellen Segan Huvelle granted the habeas corpus petition of Mohamed Jawad, one of Guantánamo’s youngest prisoners, seized when he was just a teenager. That article provides detailed background on the shocking story of Jawad’s mistreatment and the refusal of both the Bush and Obama administrations to concede that there was — and is — no viable case against Jawad, but in this article I am reproducing highlights from a habeas hearing on July 16 (PDF), in which Judge Huvelle subjected Justice Department lawyers to one of the most sustained outpourings of derision in the whole sorry history of the Bush administration’s woefully inept detention policies in the wake of the 9/11 attacks. For some reason known only to itself, the Obama administration seems hell-bent on defending its predecessor’s policies in federal courts, even though all that awaits it, in the majority of cases, is humiliation, embarrassment and worldwide scorn.
The hearing began as follows:
Judge Huvelle: 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?
Kristina Wolfe (Justice Department): 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.
Judge Huvelle: 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?
Kristina Wolfe: The relevant decision-makers, Your Honor, are both within our client agencies and well as within the Department of Justice.
Judge Huvelle: It is a very short trial, you don’t have any witnesses. Without a witness, I don’t understand this case.
When the Justice Department proposed submitting “an amended statement of material facts” on August 7, two days after Judge Huvelle’s scheduled trial date, she reacted as follows:
Judge Huvelle: 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 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. You cannot expect an eyewitness time of account to rely on the kind of hearsay you have here … You should have figured this out months ago, years ago frankly in the military commission, but be that as it may — the answer is we’re going forward full-blown on the fifth. You can participate or not. You have the burden here.
Daniel Barish (Justice Department): Your Honor, again, as explained, we need time to evaluate how to proceed. We need to do a motion to amend the statement of facts.
Judge Huvelle: It’s granted.
Daniel Barish: We’ve not done it yet, Your Honor.
Judge Huvelle: Sir, the facts can only get smaller, not bigger.
Daniel Barish: That’s not correct, Your Honor. There is additional evidence that we’ve identified that we wish to include in an amended statement of facts if that’s how we choose to do so.
Judge Huvelle: Then you’ll have to move faster than you are planning. I’m not the least bit apologetic. We’re going forward. When can you file your statement of facts? They have a right to have this habeas decided. If you are not relying on this gentleman’s statements anymore, face it, this case is in trouble. 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.
After explaining to the Justice Department lawyers that the government’s case “has been gutted,” Judge Huvelle tore into them again:
Judge Huvelle: I don’t know what evidence you are putting in front of me. I’m very interested to know. I’m baffled. This is a case unlike any other case. You have an eyewitness account. You can’t rely on the petitioner. So, either there is a witness who is going to put this guy there subject to a real cross-examination like a real case instead of all this intelligence and attributing it to people who are either cooperators, unknown, unidentified … There’s not a problem. The real people can show up. You can bring them to me in whatever form. If you have to go to Afghanistan to take a deposition, fine. 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.
Daniel Barish: Your Honor, this is a wartime habeas proceeding. So it is not a normal situation where you call live witnesses.
Judge Huvelle: Fine, don’t.
Daniel Barish: There are immense burdens involved. These are intelligence reports we rely on. We don’t want to argue the merits here. But I think you underestimate, with all due respect, the burdens involved in having to call witnesses, remove people off the battlefield and from Afghanistan.
Judge Huvelle: There is nobody on the battlefield. The only people that you can dredge up here are Afghanistan people. There is nobody else. I’m not aware of you having an American that could conceivably offer real testimony. Maybe I’m missing something.
Daniel Barish: Your Honor, if I could have a moment.
Judge Huvelle: You are welcome to try. I’m telling you to discuss this case quickly among your superiors. There is a problem with this case. You’ve known about it for years. You’ve known about it since — when was the military commission? If that didn’t wake anybody up there. Then I get this report, I hope it is not classified. This July 1, is it under seal?
Kristina Wolfe: Your Honor, that was submitted ex parte and cannot be discussed in these proceedings.
Judge Huvelle: Okay. Fine. I’m going forward on the fifth. Take it to the Court of Appeals. Let’s hear from you. Do you have any live witnesses? We have procedures if you want to call your client and all that, we have to be in a special courtroom. The government will have a — we’ll find out if they have any evidence. This is an unbelievable case.
After an exchange with Jonathan Hafetz of the ACLU (for Jawad), in which Judge Huvelle described the case as a “shambles,” she responded to a description by Hafetz of the government’s case being “total nonsense,” by exclaiming, in what appeared to be a rhetorical outburst of despair, “I don’t have time for nonsense. I have another trial. You didn’t do it in a timely fashion. Why should I have to put up with this?”
And then, after focusing again on what the government’s supposed new evidence might be, Judge Huvelle seemed to be struck by another wave of angry incredulity. “This is the most discovered case in the world,” she said. “The idea that you should think that you have new and different [evidence] that you want to put in front of everybody is shocking to me, absolutely shocking. There is not one fact about this guy’s statements that are new to the government. If they 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.”
After Kristina Wolfe explained that, “during our Court-ordered task force search discovery, we did discover some inculpatory evidence that you yourself acknowledged that that is something that could have occurred any time you do additional discovery in these cases,” and then explained that she would not be able to submit the new material immediately because she was going on vacation, Judge Huvelle exploded again:
Judge Huvelle: Then somebody will have to step in. This case is an outrage to me. I’m sorry. This is an outrage. I’m not going to sit up here and wait for you to come up with new evidence at this late hour. There is only one question here: did the guy throw a grenade or didn’t he throw a grenade? That’s the issue. Right? If he didn’t do that, you can’t win. I’m not going to have people running around trying to figure out a way to get this case out of the Court’s jurisdiction for some other reason. You have to come to grips with your cases. This guy, my understanding is the Afghanistan courts want him back. And nobody here objects. That’s his home. That’s where he’s from. They wouldn’t take a minute to get him back to where he came from. So somebody has to decide. I don’t know what your inculpatory evidence is but somebody has looked at it at least before July 1. So, either you can do it in a timely fashion or you can’t.
Daniel Barish: Your Honor, just so you understand, the additional inculpatory evidence that Ms. Wolfe referred to, our understanding is that is evidence that has already been received in the military commission case by defense counsel, Mr. Frakt. So it is not going to be some surprise.
Judge Huvelle: Great. So then you should have no trouble making a motion here to tell me why you want to amend. You did a statement here, which is a pretty good argument you just made for why you shouldn’t be able to [make an] amendment. You made a filing where you listed your evidence. So, that was done, your statement of material facts was done way back. And you are telling me that whatever you knew, you knew before that. You didn’t include it. So why should we have to put up with this now? Give me one good reason.
Kristina Wolfe: Your Honor, we discovered the inculpatory information during our Court-ordered search of the task force materials.
Judge Huvelle: That’s not what you just said. You mean because you didn’t discover it, but –
Kristina Wolfe: I’m not employed by the Office of Military Commission. I do not have access to their files. We, Mr. Barish and myself discovered this information during our Court-ordered search of the task force materials.
Judge Huvelle: I want an affidavit to indicate that you discovered it after June 1. That’s when you filed the statement of facts. June 1, respondent’s statement of material facts on which they intend to reply. 90 percent of that is his statements. So the time has come to face the music.
After running through the implications of Judge Henley’s rulings, and setting dates for submissions, Judge Huvelle then pointed out, “This is a case unlike all the rest of them. This does not involve intelligence. This does not involve any particular high-level government agency doing the intelligence at all. Did anybody see him do it or didn’t they see him do it?”
She then returned to the question of new inculpatory evidence, and the hearing closed with the following exchanges:
Judge Huvelle: And as part of this, I want to know exactly when the people who are seated here learned about this because it is clear that the military commission — I don’t know what kind of government we have that the military commission produces the stuff back in — when was the hearing down there? Was it in ’08?
Jonathan Hafetz: The hearing was all in ’08 …
Judge Huvelle: They, over here, the government doesn’t — the right hand doesn’t know what the left hand is doing. I want to know what the right hand knew as of June 1 when they filed this thing. They’re telling me they didn’t know, “they,” the prosecutors here, or the counsel for the respondents. So as part of this, if they want me to consider something, I’d like to know who knew what, when? You know the question: Who knew what, when?
Jonathan Hafetz: Yes, Your Honor. There is one government holding Mr. Jawad. In addition, even after the material was produced, there was no motion to amend at that point. Now, it’s only when they realize that their statements are inadmissible that they’re now trying to drum up new reasons …
Judge Huvelle: It appears that all they’re relying on is stuff that the military people knew. And they’re saying we didn’t know about it, Ms. Wolfe and Mr. Barish. That’s hardly compelling. It better be good evidence. But the level of trustworthiness of a piece of evidence is going to be determined. It is not my job to give advice but I think you’d better go consult real quick with the powers that be, because this is a case that’s been screaming to everybody for years. I only learned about it when it was transferred to me from Judge Urbina. But the US government has certainly known about the problems through the military commission. That was months ago. There are no surprises to some people, including — there is a prosecutor from the military commission [Lt. Col. Darrel Vandeveld] who quit and wrote a 20-page affidavit. He investigated. They had defense counsel for the military [Maj. David Frakt], who investigated and wrote affidavits, appeared at the military commission. Astounding kinds of things happened at that military commission. I read all of this because I thought we were having a Motion to Suppress. So I read every piece of paper before today. I mean, the idea that people would go to the military commission and say, “I’ll only testify if you put a hood on me” is unbelievable. This is our government.
Your case fell apart back then. So now, somebody ought to face the music and figure out how you can make a case. How can you do it? Boumediene [the Supreme Court ruling granting the prisoners habeas rights] says you have to make a case. You’ve got the burden, you’ll have to satisfy the standard — which is not as high as a criminal case — that you have a basis to continue to detain a young person for more than seven years based on, I don’t know what, people who say that they didn’t see what they said they saw. I mean, it’s time.
Sorry about — I don’t mean to impose a great burden personally. But there are thousands of people within the Department of Justice. Find one of them to so something about this case … We work hard, and so do you. If you need me to call your superiors to wake them up to this case — I don’t understand. It is awful. There are reports in the press all the time. It looks like this case is being ignored in some way. It is not being ignored. It is not that — I only got it recently. Have you read the blogs on this case? It’s just — everything is public. Everybody knows about it.
Fine. You can file you opposition to this. But I’m much more interested in the case and not this other stuff. Is there anything further at this time? I realize it is going to be a difficult time to get together. But if the government is forced to do something, lo and behold, they often look at it and come to the right conclusion, sooner than later. It is now the time to figure out whether you can actually go forward with the habeas. I’d be surprised.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009. Visit his website at: www.andyworthington.co.uk.
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