If They Don't Drag It Out, How Can It Be Prolonged?

Jacob Sullum | July 29, 2009

A couple of months ago, President Obama said he would continue to indefinitely detain terrorism suspects when there's not enough admissible evidence to try them in civilian or military court. At the same time, he promised "clear, defensible, and lawful standards for those who fall into this category"; "fair procedures so that we don't make mistakes"; and "a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified." He emphasized that "prolonged detention" without trial "can't be based simply on what I or the executive branch decide alone."

This month Pentagon General Counsel Jeh Johnson revealed that even those detainees who are acquitted by federal courts or military tribunals can still be held in "prolonged detention" if the executive branch thinks releasing them would be dangerous and their habeas corpus challenges are unsuccessful. Tomorrow, at a hearing where a federal judge may order the release of Guantanamo detainee Mohammed Jawad, the third shoe of this due-process pantomime horse could drop: Even if a detainee successfully challenges the grounds for his detention in federal court, he still won't be released.

Although the Pentagon continues to detain 17 of the 26 Guantanamo detainees who have won their habeas corpus challenges, The New York Times reports, its excuse is that "it has been unable to find countries willing to take the men that will provide adequate human rights and security assurances." Jawad's case is different, since the Afghan goverment is demanding his return. If U.S. District Judge Ellen Segal Huvelle concludes there are no legal grounds for detaining Jawad and the Obama administration still refuses to release him, its defiance of judicial authority will be blatant, and the president's promises of independent review and "fair procedures" will be revealed as empty.

Jawad, who may have been as young as 12 when he was arrested in December 2002, was accused of throwing a hand grenade that injured two American soldiers and a translator. The officer who was originally assigned to prosecute Jawad before a military commission resigned from the case in protest over the way it was being handled. He now supports Jawad's release, saying he appears to be innocent. Jawad's military prosecution fell apart when the judge ruled that the main evidence against him, statements obtained through torture and death threats, was inadmissible. The Obama administration nevertheless continued to use those statements to fend off Jawad's habeas corpus challenge until two weeks ago, when it suddenly reversed course and admitted that it could not justify his detention as an enemy combatant. At that hearing Huvelle called the case "an outrage," saying it was "riddled with holes." She told the Justice Department's lawyers "it is not fair to keep dragging this out for no good reason."

Now the Obama administration says it has to keep holding Jawad because it may decide to try him in federal court. It claims to have found "multiple eyewitness accounts that were not previously available." Should Jawad be acquitted, of course, he can still be transferred back to military custody and held in "prolonged detention," unless he files another successful habeas corpus petition, in which case he can be transferred to civilian custody again for trial on a different charge. And so on.

Previous discussion of the Jawad case here and here.

Comments

Fluffy|7.29.09 @ 3:06PM|#

Maybe Obama could just have a beer with the kid.

Since it doesn't matter who's right or wrong or what anybody's rights are - all that matters is "learning" and "healing". Right?

Obama = dick.

Totally off topic|7.29.09 @ 3:12PM|#

Yo, Mike Treder is talking trash about Libertarians. Fuck that guy

http://ieet.org/index.php/IEET/more/treder20090719/

jtuf|7.29.09 @ 3:14PM|#

I disagree with indefinite detentions for both mental patients and detainees. However, it doesn't take a large legal leap to keep detainees locked up. The law in most states allows mental patients to be locked up if they "pose a danger to themselves or others" even if they never committed a crime. Obama is just getting rid of the formality of pretending there is a medical illness involved.

Fluffy|7.29.09 @ 3:21PM|#

The law in most states allows mental patients to be locked up if they "pose a danger to themselves or others" even if they never committed a crime.

The law allowing mental patients to be locked up presumes that they are incompetent - that as a result of delusions or mental defect, they might commit some violent act without really intending to. It's the other side of the coin of not holding the mentally ill criminally responsible for their actions - the mentally ill are not being regarded as fully fledged moral actors by dint of their incompetence.

That's a little different than saying, "Your political opinions might lead you to commit political violence in the future, so we are going to hold you in a camp indefinitely." And it's definitely a different than saying, "We don't know what you did before, but since we abused you for 7 years, you might be pissed off at us and might commit acts of violence against us in revenge if we release you," which is part of what's going on here. By that logic, anyone found to have been wrongfully convicted of a crime should be kept in prison anyway, on the theory that they might seek revenge for their unjust imprisonment.

!</ </a>|7.29.09 @ 3:28PM|#

Ah, just release him in Buffalo, Raleigh or Albuquerque.

kilroy|7.29.09 @ 3:33PM|#

Don't this shit make you wanna sing I'm proud to be an American?

|7.29.09 @ 3:57PM|#

Fluffy, as I'm sure you know, the distinction between political dissidents and mental patients has been ignored before in the name of indefinite detention. Not in the US, that I am aware of. Not yet.

|7.29.09 @ 4:01PM|#

A perfect candidate for the RC Dean plan to empty Guantanamo.

Take every current detainee back to the spot they were detained. Release. Compensate them with the equivalent of the local wage for the time they were detained. Wish them a good day.

Alleged war criminals detained going forward will be tried expeditiously by military courts. Those found guilty will be executed, but may have their sentences suspended pending cooperation with our inquiries. Those found not guilty will be released at the spot they were detained, and compensated with the equivalent of the local wage for the time they were detained.

hammeredHead|7.29.09 @ 4:03PM|#

Judge Ellen Segal Huvelle concludes there are no legal grounds for detaining Jawad and the Obama administration still refuses to release him, its defiance of judicial authority will be blatant

If our country had a viable constitution, like Honduras, then the judge could order Obama arrested and deported to Costa Rica.

|7.29.09 @ 4:03PM|#

The declaration of "innocence" linked to is an interesting read. First, the guy admits that the evidence indicated this clown came to Afghanistan, joined the terrorist group and was present the day of the attack. The only question is whether he was the person who threw the grenade. He clearly was a member of a criminal enterprise and is an accessary to the crime. I really could care less that he was "as young as 12" when he went to Afghanistan to join a terrorist group or that it may have been under false pretense to make money clearing minds. Life if tough and even tough if you are stupid.

The guy's complaints go to how badly the military handled the evidence and what a muck job they have made of the case. That is all true. But it doesn't make this clown innocent. He is not.

Afghanistan is a sovereign nation. This guy committed a crime in that country. If we were not able to blow his head off when the crime occurred, what is our interest here? I don't see any. We should only be taking and prosecuting big fish, not some loser who threw a grenade. We should have never taken him from the Afghans. And we should give him back to them now.

|7.29.09 @ 4:20PM|#

If indefinite detention bugs the hell outta you all of you how come I never hear a peep outta you for the indefinite detention/imprisonment of defendants in federal court convicted of crimes involving child porn? Well?

|7.29.09 @ 6:33PM|#

kafka,

Please elaborate on whatever it is you are talking about. And don't make me regret asking you to.