If Only the Gitmo Detainees Could Hold a Tea Party (Updated)

by Kevin Jon Heller

More disappointment from Bush 44:

Lawyers and judges working on Guantanamo Bay legal cases are showing signs of exasperation at President Barack Obama’s administration, which they accuse of slowing federal judicial procedures for detainees.

Two federal judges tasked with examining cases by five Guantanamo prisoners contesting their detention — a right to habeas corpus granted by the Supreme Court in June 2008 — have made a rare public row of their impatience with government prosecutors.

“Respondent’s counsel violated all three orders,” Judge Colleen Kollar-Kotelly wrote in an unusually harshly worded court document seen Wednesday.

Kollar-Kotelly was referring to an earlier decision that a government lawyer should be removed from the case of four Kuwaitis held at the US military prison in southern Cuba because the attorney repeatedly missed deadlines.

The lawyer’s “compliance was not optional,” she wrote, adding that the court “has serious concern about counsel’s ability to read and comprehend its orders.”

Another federal [judge], Emmet Sullivan, expressed outrage at a hearing last week over prosecutors’ delay in providing unclassified documents to the defense in a Yemeni detainee’s case.

“To hide — and I don’t use that word loosely — to hide relevant and exculpatory evidence from counsel and from the court under any circumstance … is fundamentally unjust, outrageous and will not be tolerated,” he said, threatening to sanction the government.

“How can this court have any confidence whatsoever in US government to comply with its obligation and to be truthful to the court?” he added, citing “repeated failures” by government prosecutors in complying with the court’s order to provide exculpatory evidence.

But hey, why split hairs?  After all, now that we’ve added the word “substantially” to the definition of an enemy combatant and officially banished the expression “Global War on Terror,” all is right with the world again.

UPDATE: I have replaced the original article in the post with a better one.


6 Responses

  1. Being held by the military as an enemy somethingorother (combatant, soldier, prisoner of war, whatever the new administration chooses to call it) is not a criminal proceeding. The detainee is not accused of any crime, just as none of the 435,000 Axis POWs in WWII were accused of a crime. Therefore there is no “exculpatory” evidence. A Habeas case is in the form of a civil proceeding. The petitioner has access to witnesses, subpoena power, and whatever discovery the judge finds appropriate. You cannot expect to sit passively and have the other side drop useful evidence in your lap, as might happen in a criminal case. In the cited article, the exculpatory evidence was acquired by a defense attorney in a previous criminal case that was supposed to be presented to a Military Commission. That was a criminal case, and the government fulfilled its obligation to the defense.

    The judge may order the government to turn over to the petitioner information that might prove favorable to that side. That might be similar to Brady material, but it would be an entirely new rule since Brady does not apply to non-criminal cases. The decision of the DC Circuit on the type of discovery required for CSRT review (before that process was shut down) would be an example of a rule that might be crafted. However, until the Judge issues an order, there is no reason to expect the government to turn over favorable evidence just because the attorney for the petitioner doesn’t know the difference between civil and criminal procedure.

  2. Kevin,
    Does a person have a right to report a crime?
    Does a victim of a crime have a right to aid / enforcement /redress?

  3. Charles,



  4. Howard,

    The court has specifically ordered the government to disclose all exculpatory evidence to the defense — see here.  The civil/criminal/other status of the habeas proceedings is thus irrelevant.

  5. Kevin

    “Exculpatory” means tending to show innocence or contradicting an accusation of guilt. Being a soldier in the Afghan army under the Taliban is not a crime or immorality, any more than being an ordinary German or Japanese soldier was a crime in WWII. Both in the Brady sense and in any of the six or so variants in Webster’s dictionary, evidence favorable to the petitioner or tending to disprove the statements of the respondant are not “exculpatory”, except in the dictionary (non-legal) sense should the government make a claim that is also an accusation of immorality.

    In addition, you make a mistake calling counsel for the petitioner “the defense”. There is no criminal charge, and the petitioner is closer to the plaintiff in a civil action than to the defendant in a criminal trial. Think of an action to block deportation of an alien, or to free someone committed to a mental hospital.

    If a judge issues an order requiring the government to turn over “exculpatory material”, we all know what the judge meant, and it should be followed in spirit even if the wording is defective. However, at some time the mistake stops being innocuous and becomes reversible error. So it is worth the effort to correct the language and the underlying defective analysis now, before it becomes part of some decision.

  6. Kevin,

    Sorry, I wasn’t meaning to be cryptic it was just late and I was tired. Those questions have been nagging me for seven years now, and in multiple contexts: IHL, Constitutional law, federal law, and military law.

    The problem in each context being that the people responsible for enforcing the laws are engaged in committing the crimes, or in the case of the new administration, aiding and abetting crimes by negligence or excessive caution, and the retention of individuals who were complicit in the crimes of the previous administration, such as Robert Gates, Gordon England, and every DOJ civil division attorney ligating the detainee cases for example.

    All of these supposed legal problems (and all of the endless BS fabricated by apologists) disappear under the relevant criminal statues.  Assault is assault, kidnapping is kidnapping, torture is torture, and war crimes are war crimes. If there was as much evidence against a child molester as there is against these people, there wouldn’t be any debate at all, and the only reason there is any debate is because of the dishonesty and political agendas in play.

    It’s been adding up the same for seven years now: there must be some way to enforce the law, or there is no law. It’s just that simple.

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