Yesterday, White House Homeland Security Chief John Brennan indicated the Obama administration might not meet President Obama’s January 22, 2010, deadline to close the detention center at Guantánamo Bay. When asked about the president’s executive order to close the prison within a year, Brennan stated, “I don’t have a crystal ball. At this point it is unknowable exactly how many people will be transferred next week, month, several months and what the conditions on the ground will be on 1 January and 21 January…Everybody is doing everything possible in the administration to realize the President’s goal.”
And as the review process forges on, it is critical that the Obama administration not slip into the same legal swamp that engulfed the Bush administration. Despite a recent victory in the habeas case of our client, Mohammed Jawad, in which a federal judge ordered his release from Guantánamo by August 21, the Justice Department has signaled that it is considering bringing criminal charges against him in the United States. Jawad, who was captured when he was as young as 12 years old, has been detained for almost seven years, on evidence that government itself has conceded – and two judges have found – was illegally obtained through torture.
A New York Times editorial this week recognizes the “belated victory for justice” in the Jawad case. The editorial states:
Mr. Holder should heed Judge Huvelle’s stern warning that bringing criminal charges now would raise serious issues, including the violation of Mr. Jawad’s right to a speedy trial, his mental competency and his status as a juvenile subjected to torture. Even if the government succeeded in securing a conviction — highly unlikely — the sentence would almost certainly be limited to the seven hellish years Mr. Jawad has already served.
There is a broader concern, too. Mr. Obama has assigned Mr. Holder the critical task of reviewing the files of Guantánamo detainees to distinguish those having only weak evidence against them from truly dangerous prisoners. We hope the handling of the Jawad case is not representative of how that review is going.
But some signs are troubling. Another recent federal court decision in the case of Guantánamo detainee Khalid Abdullah Mishal Al Mutairi provided yet another glimpse into how the government is struggling to justify indefinite imprisonments in some cases on flimsy evidence. The judge in that case issued a lengthy written opinion eviscerating the government’s evidence, concluding that, “there is nothing in the record beyond speculation” that Al Mutairi had “become a part of al Qaida or an associated force of al Qaida,” as the government alleged. She ordered the Obama administration to “take all necessary and appropriate steps to facilitate Al Mutairi’s release forthwith.”
Simply put, as lawyer Kristine Huskey writes in Justice at Guantanamo: One Woman’s Odyssey and Her Crusade for Human Rights, her newly published account of representing Guantánamo detainees:
[P]rinciples don’t really matter much in times of peace. It’s easy to maintain your ideology when everything is stable and life is good; it’s during times of conflict that holding fast to your values really matters. It is conflict that truly tests your beliefs.
We couldn’t have said it better ourselves. We hope that as the Obama administration tries to meet its January deadline for closing Guantánamo, they will keep Jawad, Mutairi and the countless others who have been detained for years without credible evidence in mind. These men will never be able to regain the years of their lives spent locked up at Gitmo, but we could at least send them home without any further delay.