Obama Defers Habeas, Defends Bush’s MCA

Last year, in Boumediene v. Bush, the US Supreme Court held that foreign prisoners at Guantánamo have a constitutional “privilege of habeas corpus to challenge the legality of their detention” promptly. Guantánamo prisoners, like Mohammed Jawad, filed a habeas corpus petition (pdf file) to challenge their imprisonment. Now, the Obama Justice Dept. wants to impose another requirement of no habeas corpus relief until after a military commission trial. In fact, our government says no harm in delay? Guantánamo prisoner Binyam Mohamed is now being released to Britain. He was “beaten by US guards right up to the point of his departure”. Medical examinations last week revealed he has suffered many injuries, including organ damage, bruising, stomach problems and severe damage to ligaments.  

Jawad is an Afghan national captured as a teenager and imprisoned at Guantánamo for over 6 years. There is no allegation that Jawad is a member of al-Qaeda, the Taliban or any armed militia. There is no allegation that he committed terrorism. Rather, Jawad was charged with typical criminal justice system crimes of attempted murder and intentionally causing serious bodily injury. Bush imprisoned Jawad for a grenade attack in Kabul that injured 2 US soldiers and their Afghan interpreter. The former military prosecutor, Lt. Col. Darrel Vandeveld, who investigated this case for over 1 year concluded that “there is no credible evidence or legal basis to justify Mr. Jawad’s detention in U.S. custody.”  In fact, the military commission judge ordered the suppression of Jawad’s alleged confessions to Afghan and US authorities because they were the product of torture, including death threats by Afghan authorities against him and his family.

The former prosecutor supports this habeas corpus petition because the “chaotic state of the evidence, ” and “overly broad and unnecessary restrictions imposed under the guise of national security” make it impossible for justice in the military commissions.

Jawad remains imprisoned because the government determined that he was an “enemy combatant” that was predicated on the same documents and Jawad’s confession that were compelled by torture.

(1) Habeas Corpus Delayed Until After Military Commission Proceedings Completed.

Earlier this month, the Obama Justice Dept. filed a motion to dismiss (pdf file) the habeas corpus petition of Mohammed Jawad so that the government could complete military commission proceedings against Jawad.

Candidate Obama rejected this approach when he stated that the significance of the Boumediene case was that the “principle of habeas corpus … is the essence of who we are” and the “basic principles of rule of law.”

The ACLU brief states that the government’s motion seeks to dismiss or hold in abeyance Jawad’s habeas corpus petition “because the principle of comity requires the Court to abstain from habeas review while the military commission case against him proceeds.”  Essentially, the argument is one of abstention by the federal courts to provide deference to another adjudicatory system, such as parallel proceedings conducted by military commissions or tribunals.  

However, President Obama ordered a stay of all military commission proceedings, which means that there “are no ongoing military commission proceedings” to which the court owes deference.  Moreover, in this case, when the “Court of Military Commission Review granted the government’s request for a stay in Mr. Jawad’s case, the court made clear that it expected Mr. Jawad’s habeas case to proceed in federal court. According to the military appeals court, it decided to grant the stay in part because the prejudice to Mr. Jawad of excessive delay is mitigated by the fact that he can challenge his detention now” in this federal court.

The Justice Dept. brief states that the military commissions provide Jawad with “an adequate remedy at law and will not impose irreparable harm.”  The brief then quotes an earlier Guantánamo case for the proposition that “[t]here is no substantial public interest at stake in this case that distinguishes it from the multitude of criminal cases for which post-judgment review of procedural and jurisdictional decisions has been found effective.”  Hmm.  What about the torture of these prisoners?

(2)  The Justice Dept. defended the MCA.

The Justice Dept. is advocating that the court should provide deference to the Military Commissions Act of 2006 or MCA law signed into law by Bush. Candidate Obama stated that “As President, I will close Guantanamo, reject the Military Commissions Act.”

The government brief starts by praising the many MCA provisions which provide procedural and substantive fairness, such as an impartial judge and jury, presumption of innocence, assistance of defense counsel, etc. If convicted, then Jawad may seek review in the DC federal court.  However, the government brief does not state the many constitutional violations included in the MCA.  The ACLU brief noted, for example, that the “MCA permits prosecution for offenses that were created after the time they were allegedly committed, in violation of the Ex Post Facto Clause of the Constitution.” This is relevant because Jawad “is being prosecuted for ‘attempted murder in violation of the laws of war’ which is not, in fact, a crime under the law of war, and never existed before the passage of the MCA in 2006, well after Mr. Jawad’s alleged offenses took place.”

The Boumediene court discussed deference to the Executive Branch on the issue of delaying or staying habeas corpus review:

In cases involving foreign citizens detained abroad by the Executive, it likely would be both an impractical and unprecedented extension of judicial power to assume that habeas corpus would be available at the moment the prisoner is taken into custody. If and when habeas corpus jurisdiction applies, as it does in these cases, then proper deference can be accorded to reasonable procedures for screening and initial detention under lawful and proper conditions of confinement and treatment for a reasonable period of time. Domestic exigencies, furthermore, might also impose such onerous burdens on the Government that here, too, the Judicial Branch would be required to devise sensible rules for staying habeas corpus proceedings until the Government can comply with its requirements in a responsible way. …

   The cases before us, however, do not involve detainees who have been held for a short period of time while awaiting their CSRT determinations. Were that the case, or were it probable that the Court of Appeals could complete a prompt review of their applications, the case for requiring temporary abstention or exhaustion of alternative remedies would be much stronger. These qualifications no longer pertain here. In some of these cases six years have elapsed without the judicial oversight that habeas corpus or an adequate substitute demands. And there has been no showing that the Executive faces such onerous burdens that it cannot respond to habeas corpus actions… .  While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing.

(3)  The real issue is public disclosure of what happened at Guantánamo.

The Justice Dept. is concerned that habeas corpus would interfere with the “autonomous military commission system created by Congress” or the MCA.  This is the same military commission system that President Obama halted by EO and AG Holder acknowledged did not provide sufficient due process.  

An ACLU attorney stated that “for the government to try to use the unconstitutional commissions as an excuse for delaying federal court habeas review of Mr. Jawad’s case makes no sense.”

The reason seems pretty clear based on past Bush cases that Obama has adopted in the area of rendition, torture and FISA and that is to keep torture evidence from being disclosed to the public.

The true concern of allowing habeas corpus in federal courts is revealed when the Justice Dept. discusses the duplication of parallel proceedings in civil court and military commissions. If habeas corpus is delayed, it would “eliminate[] the potential for conflicting findings or rulings that would arise if the Petitioners’ habeas cases and military commissions proceedings proceed simultaneously.”  The Justice Dept. quoted a case where the judge acknowledged that habeas proceedings may “produce rulings on the production of discovery and/or exculpatory information that diverge from those of the military commissions.”  Moreover:

Parallel litigation of discovery issues in both tribunals could potentially result in inconsistent rulings on

disclosure of classified information and would also potentially allow circumvention of the discovery limitations inherent in military commission proceedings.

Obama voted against the MCA, but now defends it. Obama campaigned that these “trials are too important to be held in a flawed military commission system.”  Obama is currently reviewing how to best provide trials for these prisoners, and this review may take 6 months. Even if Obama’s ultimate trial system is excellent and truly provides fairness and justice, these prisoners need some justice now.


  1. also posted at the orange


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