Jawad torture case put on hold
on Feb 4, 2009 at 8:10 pm
With a bow to presidential power to fashion detention policy, the military’s highest court on war crimes prosecutions on Wednesday gave the Obama Administration a requested 120-day delay of a pending case to allow a new study of the fate of prisoners at Guantanamo Bay.
In a four-page order (found here), the U.S. Court of Military Commission Review put off until May 20 a ruling on an appeal by military prosecutors seeking a significant narrowing of a war trial judge’s power to bar evidence of terrorism confessions that may have resulted from torture. (The government motion for the delay is here, and the opposition to it is here.)
By postponing a ruling in the case, the military court spared the Obama Administration from having to make a prompt decision — in order to gain time for its study of detention policy — either to have war crimes charges dismissed, or else withdraw the prosecutors’ appeal, thus forfeiting it.
The case, U.S. v. Jawad (CMCR docket 08-4), involves an Afghan national, Mohammed Jawad, who faces war crimes charges before a military commission for allegedly throwing a hand grenade into a military vehicle driving near a crowded marketplace in Kabul, Afghanistan, in December 2002.
At the time, Jawad was somewhere between 15 and 17 years old (his birth date is uncertain). After being interrogated by Afghan police, he was turned over to U.S. military personnel, who continued the interrogation. Both periods of questioning produced confessions about the grenade-throwing incident, which seriously injured two U.S. soldiers and their Afghan interpreter.
Jawad’s lawyers contend that both confessions were the result of torture — direct threats of death for him and his family by the Afghan police if he did not confess, with those threats causing both rounds of confessions.
With the case now on hold, the new administration will review what its legal position is to be, including whether to embrace, change or abandon the argument, made some seven weeks before President Obama took office, that a confession of terrorism is to be barred from a war crimes trial only if the torture directly produced the confession.Â
The Administration also will have to decide whether to continue with an argument that Guantanamo detainees have no constitutional rights to assert in war crimes cases, and have no rights equivalent to constitutional protection under military law — such as, for example, any right to exclude confessions that were not the immediate effect of torture but were obtained soon after a torture session, causing “a taint” on a later confession.Â
A military commission judge, presiding over the war crimes case against Jawad, went further than prosecutors wanted, leading them to pursue a pre-trial appeal to the special war crimes appeals court. The case has been fully briefed and was argued Jan. 13, and ordinarily, the Court would have produced a ruling within 30 days. Now, it will not do so for 120 days.
At issue in the prosecutors’ appeal is a ruling at Guantanamo Bay by Judge Stephen R. Henley, an Army colonel, last Nov. 19. Judge Henley decided that prosecutors may not use at trial Jawad’s confession to U.S. military interrogators because those admissions “were tainted” by a confession he had given hours earlier to Afghan police. The earlier admissions, Henley found, were achieved after Jawad’s life was threatened, and his family’s life was threatened.
Although the judge did not find that U.S. interrogators had themselves used torture on Jawad, Henley concluded that “the effect of the death threats which produced the…first confession to the Afghan police had not dissipated by the second confession to the U.S. government interrogator.” It was up to prosecutors to show that the taint had been removed, and they did not do so, the judge said.
“The effect of the death threats which produced the…first confession to the Afghan police had not dissipated by the second confession to the U.S. government interrogator,” the judge concluded.
Jawad’s lawyers had opposed the Administration’s request to delay a ruling on Henley’s limitation on the confessions evidence. They questioned whether the case could legally be put on hold by the military war crimes appeals court. Jawad’s lawyers also wanted the appeals court to go ahead and rule, in anticipation that the result might well go Jawad’s way, leading perhaps to dismissal of the war crimes charges.
The appeals court, in its order Wednesday, ruled that it did have the authority to delay its ruling. It balanced what it said were the government’s interests in national security and foreign policy, against Jawad’s interest in a speedy trial and final resolution of charges against him. It struck the balance in the government’s favor, but noted that Jawad was free to continue his habeas challenge in U.S. District Court to his continued confinement and his designation as an “enemy combatant.” It noted that he had been detained for more than six years.
The new Administration is seeking to put Jawad’s habeas case in District Court on hold until after his war crimes proceedings are over. Jawad’s lawyers are to respond to that plea by Feb. 13. As of now, the Administration also has a Feb. 27 deadline in the habeas case to file its formal reasons for continuing to detain Jawad as an “enemy combatant.”
There is another case pending in federal court in which the new President and his legal and military teams must take a position on legal issues growing out of claims of torture. The other is at the D.C. Circuit Court, after being returned there by the Supreme Court, involving four Britons who are seeking a right to sue Pentagon officials over alleged torture while they were prisoners at Guantanamo Bay. Both sides are to file new briefs in that case by March 12. (They have been released, and have returned to Britain, but their lawsuit continues.)
