...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....
Judge Huvelle: .....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.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 mean, let’s be frank. You can tell your superiors that........ 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.
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. ....... 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....< Daniel Barish: Your Honor, this is a wartime habeas proceeding. So it is not a normal situation where you call live witnesses.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?”
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.
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..... Full story
Commentary by attorney and author John Whitbeck:
.... the government's case against Jawad was deemed one of the BEST cases that could be cobbled together against the randomly collected hostages still being caged and abused at Guantanamo, one of the few cases deemed worthy of presentation to one of the kangaroo "military commisions" specifically designed to prevent the rendering of justice as Americans used to think they knew it.
Finally, it is worth noting that the worldwide appeals to "close Guantanamo", to which Barack Obama responded in one of his first acts as president, were not directed at a particular piece of real estate but, rather, at a system of gross and manifest injustice, one spreading well beyond the confines of America's Cuban enclave.
By tinkering with the travesty of "military commissions", rather than abolishing them, by talking of moving those hostages against whom the government still has no case to maximum-security prisons elsewhere, rather than liberating them with an apology and generous compensation for their suffering, and by talking of developing clear guidelines for the perpetual imprisonment without charges of some of them, rather than recognizing that such a practice is the hallmark of a totalitarian state and can never, under any circumstances, be worthy of a country which calls itself a democracy, Obama seems to have totally missed the point.
By tinkering with the travesty of "military commissions", rather than abolishing them, by talking of moving those hostages against whom the government still has no case to maximum-security prisons elsewhere, rather than liberating them with an apology and generous compensation for their suffering, and by talking of developing clear guidelines for the perpetual imprisonment without charges of some of them, rather than recognizing that such a practice is the hallmark of a totalitarian state and can never, under any circumstances, be worthy of a country which calls itself a democracy, Obama seems to have totally missed the point.
Since Obama appeared such a huge improvement over his predecessor and the electoral alternative, the world has been giving him the benefit of the doubt and an extended grace period. However, six months have already passed, and charm, eloquence and a great smile can carry one only so long and so far.
If, at the level of substance, Obama and his administration persist, as they have so far, in supporting, continuing and (in the case of Afghanistan) even intensifying the most odious policies of the the Bush-Cheney regime, while refusing to permit any accountability for torture, war crimes, crimes against humanity and crimes against peace when approved, ordered or perpetrated by American government officials, it would be only natural for much of mankind to write off the United States of America as a terminally sick society, incapable of change and unworthy of respect.
If, at the level of substance, Obama and his administration persist, as they have so far, in supporting, continuing and (in the case of Afghanistan) even intensifying the most odious policies of the the Bush-Cheney regime, while refusing to permit any accountability for torture, war crimes, crimes against humanity and crimes against peace when approved, ordered or perpetrated by American government officials, it would be only natural for much of mankind to write off the United States of America as a terminally sick society, incapable of change and unworthy of respect.
Posts
