Constitutional clash over detainee?

By Lyle Denniston
on Jul 28, 2009 at 4:12 pm

Urging a federal judge to order the immediate release of a young prisoner from Guantanamo Bay, his lawyers warned on Tuesday of a constitutional confrontation if the Obama Administration resists such an order. 

In the new filing by attorneys for Mohammed Jawad, an Afghan national, they argued: “Any assertion by the Executive that this Court somehow lacks the power to order his release and return to Afghanistan would raise serious separation of powers concerns…”   (The filing was accompanied by a declaration by a military lawyer for Jawad discussing the Afghan government’s plan to arrange to pick up the prisoner at Guantanamo; that government has asked for his return.)

Within minutes after those documents were sent to U.S. District Court Judge Ellen Segal Huvelle, she gave government officials a little more than 24 hours to inform her “how they propose to resolve this case.”  She set a status conference in her courtroom for Thursday morning.  (Her order is here.)

Depending upon how government officials react in the next few days, the Jawad case could turn into a major test of what the Supreme Court meant when, 13 months ago, it ruled that Guantanamo detainees have a constitutional right to pursue habeas challenges and, perhaps, to gain their actual release.  Congress recently has taken steps to curb any such releases, but Jawad’s lawyers contended on Tuesday that those legislative actions “cannot have altered [Judge Huvelle’s] authority to order the most central of habeas remedies: [Jawad’s] immediate release.”

The Administration told Judge Huvelle last week that it no longer is opposing Jawad’s challenge to his detention, but also said it is considering pursuing war crimes charges against him.  It also asked the judge to allow the government to keep him in custody for perhaps several more weeks while arrangements are made for his possible transfer or prosecution.

Resisting any further delay, Jawad’s counsel described the government’s plea as “nonsensical,” and urged the judge to ignore the request.  The government’s claim that it has new evidence that Jawad threw a grenade injuring two U.S. soldiers in Afghanistan in 2002 is “preposterous,” the lawyers said, insisting that all of the information has been in government hands since at least May.

The filing suggested that the new evidence consists of “unsworn summaries of unsworn interviews.”  The filing added: “It is unclear why the Government is even mentioning ‘new’ evidence and discussing potential criminal prosecution in the same document where they acknowledge they cannot prove even by a preponderance of the evidence [the standard in a habeas case] that [Jawad] is detainable.”

In outlining what Jawad’s lawyers want Judge Huvelle to do now, their document said that the government should be given 24 hours to meet any obligations that Congress has now imposed on the Executive Branch to inform both houses before any Guantanamo detainee is released.

The judge should order immediate compliance with any legislative command regarding a detainee’s release, the document said, even though the lawyers contended that “such requirements are constitutionally impermissible” because they amount to a move by Congress to suspend the writ of habeas corpus.

In another legal argument, Jawad’s counsel contended that Judge Huvelle is not bound in this case by a D.C. Circuit Court ruling last February barring federal judges from ordering the release of detainees, when such release is to be into mainland U.S.   (That ruling is now awaiting the Supreme Court’s consideration — in Kiyemba v. Obama, 08-1234; the Justices have put off any review of that decision until they meet in September, at the earliest.)  The Circuit Court ruling, according to Jawad’s counsel, applies only to situations where release into the U.S. is ordered by a judge.

Jawad’s lawyers listed these specific requests for action by Huvelle:

** A flat ruling that he has been detained illegally for seven years, and that continued detention is illegal.

** A ruling that “new” evidence submitted by the government in Jawad’s case does not justify his detention and does not prove he acted illegally.

** An order to release Jawad to the Afghan government or to a neutral entity, such as the International Committee of the Red Cross for travel to Afghanistan.

** An order to government officials to provide arrangements for Jawad to be picked up in Guantanamo.

** An order barring him from being shackled or hooded while being transported to Afghanistan, accompanied by one of his lawyers.

** An order barring any further interrogation of Jawad, and asssuring humane treatment at all times, including preparations for his reentry into society.

** An order requiring the preservation of all evidence about Jawad’s detention.

** An order for the government to report back within 24 hours, and every 24 hours afterward, on moves to transfer Jawad to Afghanistan.

** An order that the government comply within 24 hours with any reporting requirements imposed by Congress regarding a detainee’s transfer.

** And, finally, an order that failure to comply with the judge’s command or failing to act promptly will amount to contempt of court.

The report the government now has been ordered to file with the judge by 5 p.m. Wednesday presumably will respond to some or all of those requests.