February 24, 2009 archive

In the Jawad case, bush team filed a motion to stay habeas shortly before Obama was sworn in as president.

The ACLU, defense counsel for Jawad, filed its response on in mid February or this month.

There were two reasons i thought that the Obama DOJ had once again accepted or adopted Bush’s position on this issue.

(1)  The ACLU issued a press release saying that despite Obama’s EO stopping military commission proceedings, “the government is moving forward.” I interpreted government as Obama not bush, given the earlier reference to Obama  in the same sentence:

ACLU Opposes Justice Department Efforts To Throw Out Case Challenging Illegal Detention Of Guantánamo Prisoner Mohammed Jawad (2/18/2009)

Despite President Obama’s executive order halting military commission proceedings, the government is moving forward with a last-minute effort by the Bush administration to deny Jawad his right to challenge his detention in federal court until after the commissions case against him is complete.

http://www.aclu.org/safefree/d…

(2)  In the ACLU brief filed in February 2009 or same date as the press release, the ACLU says it asked the government to withdraw its motion, but the government refused, saying that it was still working out the process for these cases. I interpreted this as obama DOJ because Bush is gone. (footnote  8)

“Mr. Jawad’s counsel have twice asked the government to withdraw the Motion.  The government’s lawyers have refused.  As the basis for their refusal, counsel for the government cite “the process of assessing how it should proceed in these cases.”  Email Exchange, Frakt

Decl. Ex. D.  But that is not the basis for the government’s Motion before this Court, and the government has not moved to modify the Motion.  The Court should not entertain this post-hoc justification if it is raised by the government.  Cf. Goldring v. District of Columbia, 416 F.3d 70,

77 n.4 (D.C.Cir. 2005) (argument raised for first time in reply brief is untimely (citation omitted)); Ark Las Vegas Rest. Corp. v. NLRB, 334 F.3d 99, 108 n.4 (D.C. Cir. 2003) (same).  In any event, there is no justification for additional delay.  While the new administration may have the best intentions in reviewing Guantanamo detentions and seeking to avoid the many and grievous mistakes of its predecessor, the law applicable to the government’s alleged basis for Mr.

Jawad’s detention has not changed, nor have the facts in his case.  There is no other historical context of which counsel are aware in which the executive branch took upon itself-and asked the judiciary to approve-the authority to declare a constitutional “time out” to decide how the executive wished to proceed, whether with a civilian criminal trial, a military trial or some unspecified third option, while it continued to detain prisoners.  To permit this kind of delay

would, effectively, permit the government to detain by fiat, not by law, and thus evade the Suspension Clause.”

Someone raised a question in the DK posting comments of how did we know this was the position of the Obama DOJ accepting once again the Bush position stated in papers filed by Bush.

I said i would doublecheck, intending to dig out from my notes the links i had for media articles on this case. What i found is the media articles were just reposting the ACLU press release.

Thus, I did not have the confirmation i thought i had, and so i deleted the diary.

I will be calling the ACLU tomorrow and hopefully i can reach one of the attorneys on this case to confirm.

When i do, i will repost.

sorry, for posting and deleting here too.