The Third Branch: Alive and Well!

By William Fisher

As the debate heats up over what to do about recent disclosures of widespread abuse of war-on-terror prisoners, the “third branch” of the U.S. government – the Judiciary -- continues to assert its independence from the other two branches – the Executive and the Legislative.

In one recent decision, a federal court has refused the Obama Administration’s efforts to delay a hearing for a Guantanamo prisoner. In a second, another federal court has ordered the release of a "substantial number" of photos depicting abuse of prisoners by U.S. personnel in Iraq and Afghanistan.

In the Guantanamo case, a federal judge has denied the Justice Department's motion 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.

In February, the government filed a motion continuing Bush administration efforts to deny Jawad his right to challenge his detention in federal court until after the Guantánamo military commission case against him is complete, even though President Obama has ordered a halt to all military commission proceedings.

"Today's ruling is vindication of the right to challenge indefinite detention," said Jonathan Hafetz, staff attorney with the American Civil Liberties Union (ACLU) National Security project and counsel in Jawad's habeas case.

Hafetz told us, “Mohammed Jawad's case embodies the complete injustice and failure of Guantanamo. Mr. Jawad has been unlawfully detained for more than six years based on evidence that a military commission judge ruled was the product of torture. Yet, the government persists in imprisoning Mr. Jawad. We intend to vigorously contest that detention in federal court in light of the district judge's recent ruling that his case must proceed promptly.”

He added that the court order “emphasizes the importance of independent judicial review for prisoners who have been held for years with no legal recourse. 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. This order upholds Mr. Jawad's right to have his day in court."

The Supreme Court ruled last year that Guantanamo detainees have the right to challenge their imprisonment in U.S. civilian courts. The decision was one of several major rebukes by the High Court to the Bush Administration.

In the order, U.S. District Court Judge Ellen S. Huvelle of the District of Columbia said that earlier cases asserting the right of prisoners to challenge their detention require "prompt adjudication of Guantánamo detainees' habeas cases."

Jawad has been in U.S. custody since he was captured when he was possibly as young as 14, and is one of two Guantánamo prisoners the U.S. is prosecuting for war crimes allegedly committed when they were children.

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 torture Jawad suffered in U.S. custody.

In the second court decision, the Defense Department has been ordered to release a "substantial number" of photos depicting abuse of prisoners by U.S. personnel in Iraq and Afghanistan.

The photos' release is in response to a Freedom of Information Act lawsuit filed by the ACLU in 2004 and will include images from prisons in Iraq and Afghanistan at locations other than Abu Ghraib, the ACLU said. The photos will be made available by May 28.

"These photographs provide visual proof that prisoner abuse by U.S. personnel was not aberrational but widespread, reaching far beyond the walls of Abu Ghraib," according to Amrit Singh, a staff attorney with the ACLU.

"Their disclosure is critical for helping the public understand the scope and scale of prisoner abuse as well as for holding senior officials accountable for
authorizing or permitting such abuse," she said.

Since the ACLU's FOIA request in 2003, the Bush administration had refused to disclose these images, the ACLU said. The administration claimed that disclosure of such evidence would generate outrage and would violate U.S. obligations toward detainees under the Geneva Conventions, the ACLU said.

But, in September of 2008, a U.S. Appeals Court ruled that disclosure of the photos was required, thus rejecting the Bush administration's position. The court ruled that there was significant public interest in disclosure of the photographs. The Bush administration's appeal to the full appeals court was denied on March 11 of this year.

"The disclosure of these photographs serves as a further reminder that abuse of prisoners in U.S.-administered detention centers was systemic," said Jameel Jaffer, director of the ACLU National Security Project. "Some of the abuse occurred because senior civilian and military officials created a culture of impunity in which abuse was tolerated, and some of the abuse was expressly authorized. It's imperative that senior officials who condoned or authorized abuse now be held accountable for their actions."

Conservative critics are forever seeking ways to attack “activist judges” (read Liberal). But these two decisions are neither conservative nor liberal. They are the result of what judges are supposed to do: follow the law.

It’s refreshing to know that they’re still in business.