Constitutional Law

Jawad Case Update

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Yesterday U.S. District Court Judge Ellen Segal Huvelle ordered the Obama administration to release Guantanamo detainee Mohammed Jawad, who has been imprisoned since December 2002, by August 21, saying there are no legal grounds for continuing to hold him. In the meantime, as I noted on Wednesday, the Justice Department may decide to prosecute him in federal court, in which case he will be transferred to civilian custody. "It is a very real possibility," an unnamed Justice Department official told The New York Times, "but whether we can compile enough evidence to support a case is a question we don't yet know the answer to." Even if they can't, of course, that's not the end of the story. As Pentagon General Counsel Jeh Johnson has explained, once acquitted in federal court, Jawad can still be held in "prolonged detention," unless he files a successful habeas corpus petition (again), at which point the president will either have to send him back to Afghanistan, send him back to civilian custody for a second trial on a different charge, or simply admit that all his talk about due process and the rule of law was just for show.

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  1. “but whether we can compile manufacture enough evidence to support a case is a question we don’t yet know the answer to.”

  2. kilroy makes a good point.

    It is ridiculous to expect civil standards of evidence in a military circumstance. The evidence is produced by secret means far from the sight and experience of ordinary jurors. The government could easily fabricate any evidence they wish. Any trial will simply boil down to whether the jurors trust the governments evidence or not.

    In other words, if we trust the government to give him a fair trial we might as well trust them just to keep him in custody, especially since that is what they intend to do anyway.

    Warfare isn’t law. Trying to shoehorn legal abstractions into the the ugly chaos of the reality of war will destroy the law, not make warfare more lawful.

  3. Except that most of the detainees didn’t surrender on the battlefield, but were kidnapped and sold to the U.S. by warlords that were on the U.S. government payroll often being kidnapped off of cars while going through checkpoints.

    So, absent any actual evidence to hold them, they should be released. They are no more POW’s than French civilians picked up by the Germans as punishment for French Resistance activities.

  4. kilroy makes a good point

    You keep referring to that post. I do not this it makes the point you think it makes.

  5. Of all the crap that has happened since 9/11/01, I think the use of indefinite detention is the most un-American thing. I can’t fathom that anyone in the US support hold people forever even after an acquital.

  6. …then Inigo goes all Hisaglipa on the tags…

  7. Greenwald had a great article yesterday at Salon saying that certain unalienable rights should never be limited by practical considerations (like running a war against criminals).

  8. My meaningless opinion is that refusing to release this guy would constitute an impeachable offense.

    Nobody in the Senate has enough hair on his chest to do anything, so it really doesn’t matter.

  9. I can’t fathom that anyone in the US support hold people forever even after an acquital.

    Wish that were true. I constantly encounter people who trust the govt and are willing to forfeit the rights of “criminals” and “terrorists” in exchange for (the illusion of) security.

    One of the most maddening examples was a future in-law, a woman of Lebanese ancestry who said they should just “lock up all the terrorists.” I didn’t have the heart to point out to her that this would potentially mean her depending on how broad “terrorist” gets interpreted. Fortunately, she’s not the one marrying into my family.

  10. They are no more POW’s than French civilians picked up by the Germans as punishment for French Resistance activities.

    Just so. Of course, since they are not POWs, they are not subject to the Geneva Conventions on POWs.

    Some of them are undoubtedly war criminals, and should be tried and executed as such. All should be tried as war criminals (as that is what they are accused of being); those acquitted should be repatriated.

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