Justice for Gitmo Detainees?

A disgrace:

This week, two more Guantanamo detainees -- Khaled Al-Mutairi from Kuwait and Mohamed Jawad of Afghanistan -- were ordered released by federal judges on the ground that there was insufficient evidence to justify their detention. The Washington Independent's Daphne Eviatar notes this amazing fact: "In 28 of 33 Gitmo detainee cases heard so far, federal judges have found insufficient evidence to support keeping them in prison." Virtually all of those detainees were held for many years without charges and with no opportunity for judicial review. Once they finally got into a court, federal judges (including Bush-43 appointed judges) in the vast majority of cases concluded there was virtually no credible evidence ever to justify their detention. Just consider what that fact, standing alone, means about what our Government has been doing.

The case of Jawad is particularly striking because he was a young teenager -- possibly as young as 12 -- when he was shipped to Guantanamo in 2002; unquestionably tortured; never accused of being a member of either Al Qaeda or the Taliban; barely saved after a suicide attempt in 2003; and then kept in a cage for seven years and counting with no charges. I wrote at length about Jawad's case here, and Scott Horton summarizes some of the miserable lowlights of his case today here. As Andy Worthington reports, so unpersuasive was the case against Jawad -- particularly once the "confession" he gave after being threatened with his own death and his family's death were, over the objections of the Obama DOJ, excluded -- that the federal judge excoriated the Obama DOJ with an unusually strident and hostile tone for attempting to continue his detention. Adam Serwer considers the implications of Jawad's habeas victory, as well as the fact that the Obama DOJ may try now to indict him on actual criminal charges in order still to prevent his release even in light of the judge's ruling. (snip)

Eviatar notes: "If the 85% success rate for Gtmo detainees holds up, that would mean govt lacks evidence to support holding about 195 of 229 detainees left." Remember, that's The Worst of the Worst -- so evil and threatening that the Democratic-led U.S. Congress has barred the Obama administration from accepting any of them into the U.S., including the ones found guilty of nothing, even as we try to persuade other countries to accept them.

There's also this--Major David J. R. Frakt, in his closing argument in favor of dismissal of the case against Mohammad Jawad:

"Why was Mohammad Jawad tortured? Why did military officials choose a teenage boy who had attempted suicide in his cell less than 5 months earlier to be the subject of this sadistic sleep deprivation experiment? Not that anything would justify such treatment, of course, but at least in the case of the other detainees known to have been subjected to sleep deprivation, they were believed to possess critical intelligence that might save American lives.

Unfortunately, we may never know. I’ve asked to speak to the guards who actually carried out the program, and I’ve been denied. In the absence of information to the contrary, which the government would surely provide if it existed, we are left to conclude that it was simply gratuitous cruelty.

The government admits that Mohammad Jawad was treated “improperly,” but offers no remedy. We won’t use any evidence derived from this maltreatment, they say, but they know that there was no evidence derived from it because the government didn’t even bother to interrogate him after they tortured him. Exclusion of non-existent evidence is not a remedy. Dismissal is a severe sanction, but it is the only sanction that might conceivably deter such conduct in the future.

February 7, 2002. America lost a little of its greatness that day. We lost our position as the world’s leading defender of human rights, as the champion of justice and fairness and the rule of law. But it is a testament to the continuing greatness of this nation, that I, a lowly Air Force Reserve Major, can stand here before you today, with the world watching, without fear of retribution, retaliation or reprisal, and speak truth to power. I can call a spade a spade, and I can call torture, torture.

Today, Your Honor, you have an opportunity to restore a bit of America’s lost luster, to bring back some small measure of the greatness that was lost on Feb 7, 2002, to set us back on a path that leads to an America which once again stands at the forefront of the community of nations in the arena of human rights. Sadly, this military commission has no power to do anything to the enablers of torture such as John Yoo, Jay Bybee, Robert Delahunty, Alberto Gonzales, Douglas Feith, David Addington, William Haynes, Vice President Cheney and Donald Rumsfeld, for the jurisdiction of military commissions is strictly and carefully limited to foreign war criminals, not the home-grown variety.

All you can do is to try to send a message, a clear and unmistakable message that the U.S. really doesn’t torture, and when we do, we own up to it, and we try to make it right. I have provided you with legal authority for the proposition that you have the power to dismiss these charges. I can’t stand before you and say that you are legally required to do so. But I can say that that it is a moral imperative to do so, and I ask that you do so."