ACLU Opposes Justice Department Efforts To Throw Out Case Challenging Illegal Detention Of Guantánamo Prisoner Mohammed Jawad

February 18, 2009 12:00 am

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Government Improperly Seeks Dismissal Or Delay Based On Halted Military Commissions Proceedings

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WASHINGTON – The American Civil Liberties Union filed a motion today opposing the Justice Department’s move to dismiss or delay a challenge to the unlawful detention of Mohammed Jawad, a Guantánamo prisoner who has been held in U.S. custody since he was a teenager. 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.

“Mr. Jawad’s case is the epitome of everything that’s wrong with the military commissions because his detention and prosecution were based on a confession that was tortured out of him. 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,” said Hina Shamsi, staff attorney with the ACLU National Security Project. “President Obama followed through on his campaign promise to halt the military commissions and Attorney General Holder has said the commissions do not provide due process protections, but the Justice Department still seems to be playing catch-up. The new administration should do the right thing and reject Bush administration policies that sought to evade independent judicial oversight of Mr. Jawad’s unlawful detention.”

Jawad, now about 23, has been in U.S. custody since he was captured at the age of 16 or 17 and is one of two Guantánamo prisoners the United States is prosecuting for acts allegedly committed when they were children. He is accused of throwing a hand grenade at two U.S. service members and their interpreter in Afghanistan. Jawad’s former military commission prosecutor, Lt. Col. Darrel Vandeveld, submitted a 14-page statement in support of the ACLU’s habeas corpus challenge stating that the flaws in the commission system make it impossible “to harbor the remotest hope that justice is an achievable goal.” Lt. Col. Vandeveld’s statement describes other torture Jawad suffered in U.S. custody.

The Bush administration previously told the judge in Jawad’s military commission case that the centerpiece of its case against him was evidence the judge had suppressed because it was obtained through torture. Prosecutors subsequently appealed the judge’s decision to throw out the torture-derived evidence. After President Obama assumed office, he instructed the Secretary of Defense to seek a halt to all commission proceedings, including Jawad’s. The Court of Military Commission Review, the system’s appeals court, granted the government’s request for a stay based in part on a finding that Mr. Jawad’s habeas case could still proceed in federal court.

“After unjustly detaining and abusing Mr. Jawad for over six years, the government’s effort to prosecute Mr. Jawad in the commissions has been an abject failure. All Mr. Jawad is asking is to have his day in court so he can prove his innocence,” said U.S. Air Force Major David J. R. Frakt, who represents Jawad in the military commissions case and is co-counsel in the habeas case. “The government’s continued stonewalling, particularly when both President Obama and the Chief Judge of the Military Commission Court of Review has recognized his right to habeas review, is inexcusable. A prompt habeas hearing is especially necessary because Mr. Jawad’s mental and physical well-being continue to be jeopardized by the harsh conditions in which he is being held at Guantánamo. The government seems to have lost sight of a fundamental truth – justice delayed is justice denied.”

Attorneys on the habeas case are Shamsi and Jonathan Hafetz of the ACLU National Security Project, Arthur Spitzer of the ACLU of the National Capital Area and Maj. Frakt.

The ACLU’s legal brief is available at:

Lt. Col. Darrel Vandeveld’s statement is available at:

A video featuring Shamsi and Vandeveld explaining Jawad’s habeas corpus case is available online at:

Additional information about the Jawad case can be found online at:

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