He has grown up at Gitmo.

ACLU had another day in court yesterday in the Jawad case, this time arguing that evidence in the case which was coerced through torture and other impermissible means cannot be used to continue to detain him.

The judge in Jawad’s military commission proceedings previously suppressed statements made by Jawad to Afghan and U.S. officials following his arrest, finding that they were the product of torture. However, the government continues to rely on those same statements in Jawad’s habeas corpus challenge.

"Since his arrest in 2002, Mr. Jawad has been subjected to repeated torture and other mistreatment and to a systematic program of harsh and highly coercive interrogations designed to break him physically and mentally," said Jonathan Hafetz, staff attorney with the ACLU National Security Project. "The statements wrung from Mr. Jawad in Afghanistan and at Guantánamo during more than 50 interrogations do not remotely meet the standard for admissibility in a court of law."

Lest you think this is simply hyperbole, the ACLU has described what happened with Jawad from the moment of his capture forward — and remember he was a young boy at the time that all of this occurred.

The YouTube above is more detail from ACLU, along with this:

Following his arrest for allegedly throwing a grenade at U.S. soldiers, Jawad was taken to an Afghan police station where he was coerced into signing a confession written in Farsi, a language Jawad could not speak, much less read or write. In fact, Jawad was functionally illiterate even in his native language of Pashto.

Once transferred to U.S. custody, Jawad was illegally rendered to Bagram Air Base in Afghanistan, where he was interrogated at least 11 times and subjected to beatings, forced into painful "stress positions," deprived of sleep, forcibly hooded, placed in isolation, pushed down stairs, chained to a wall for prolonged periods and subjected to threats of death. The U.S. later transported Jawad to Guantánamo, where he was subjected to the notorious "frequent flyer" sleep deprivation program as well as the Survival Evasion Resistance Escape (SERE) interrogation methods recently denounced in a Senate Armed Services Committee Report. Eventually, Jawad tried to commit suicide in his cell by slamming his head repeatedly against the wall….

We’re still holding him at Gitmo. (more…)

Too many paths.  Gorgeous shot via Philipp Klinger.

UPDATE: This just in: CIA and DOJ are asking for more time before releasing the CIA IG report. Knock me over with a feather. More details as I get them.

Today, the less-heavily-redacted version of the CIA IG report on torture and interrogation techniques during the Bush Administration is due for release.  Unless, of course, there is yet another delay. 

Why I’d think there might be another attempt at delay is beyond me.  I’ll let Marcy take the Rizzo from here. And hope we see an IG report sometime before I pass from this earth.

While we wait, I wanted to note a potential victory of sorts for the rule of law from the still-as-yet-unhelmed by Dawn Johnsen OLC. Because any good news on the rule of law is worth spreading around, I thought I’d make certain you all saw this from the WSJ:

In a memorandum issued May 4, David Barron, acting assistant attorney general, said the office believes there is a "serious risk" that federal courts "would adopt a constitutional due process approach" when evaluating military commission trials, people familiar with the memo say.

Mr. Barron advised that federal courts were unlikely to require strict adherence to Bill of Rights provisions spelling out specific procedures, such as the Sixth Amendment speedy trial right, or the Miranda warning, which the Supreme Court imposed in 1966 to ensure compliance with the Fifth Amendment right against self-incrimination and the Sixth Amendment right to an attorney.

But Mr. Barron advised that courts were likely to view the use of coerced statements to convict and punish defendants as violating any definition of the Fifth Amendment’s Due Process Clause, which courts have cited in establishing a baseline of fundamental rights. As a result, some officials believe a legislative fix to the Military Commissions Act should include additional rights for defendants in order to lower the chances courts would strike it down.

I’ve got a request in at DOJ for comment on several aspects of this, and will let you know if I get a response and/or any confirmation that this memo does, indeed, exist. Spencer has already done some excellent digging on the indefinite detention order angle.

Plus, Anthony Romero of the ACLU had some choice words about potentially reviving military commissions in response to the WSJ report that are well worth a read. And they have a petition going to the WH and Congress on indefinite detention. (more…)

Considering how opposed I was to this during the Bush years?  It should be no shocker that I still think it’s craptastically unconstitutional nincompoopery. And so does Glenn.

However, AFP reports that the WH now denies such a draft order exists.

But they do say that discussions about indefinite detention and other options are currently ongoing within the Obama Administration. Ambinder got his hands on a copy of the draft proposal from Wittes and Pepard for everyone to peruse.

Digby nails the reason for anxiety on this:

The irony, of course, is that the man who ran on transparency is actually turning out to be less transparent than the president he excoriated on the campaign trail for his secrecy. Bush and Cheney were pretty upfront about the fact that they believed they had the constitutional right to act in any way they saw fit, regardless of the accepted understanding of the constitution or congressional and judicial prerogatives. Bush declared "I’m the decider" and he meant it. This administration obviously believes it has that right as well — it just pretends otherwise.

And there you have my frustration in a nutshell. Information dribbles out, it isn’t done in a public, up front way, and not always with consultation of the people I’d trust to steer rule of law oversight purposely in the mix.  And that makes me nervous. 

Especially when we’re still fighting the same endless battles over the Uighurs and others which ought to have been resolved ages ago.

I want to reiterate that the Senate Democratic leadership had better get off their asses and confirm Dawn Johnsen for OLC so that a rule of law stalwart is in place in that office before too much more damage is done with a rudderless OLC. NYTimes agreed with me on that point over the weekend.

As Spencer reported earlier, both CCR and ACLU have strongly opposed an executive fiat indefinite detention plan and continue to do so on constitutional grounds.  So it remains to be seen where any of this will go. (more…)

Jefferson Memorial at sunset via Camera Slayer.In case anyone is wondering why I’ve been dogging the Dawn Johnsen OLC nomination for months and months on end? Why restoration of the rule of law and having real leadership in place at OLC rather than a temporary staffing limbo is so important to me?

I have seen a lot of exasperated judges in my day, especially when dealing with unprepared or outright smarmy lawyering from appearing counsel. It’s usually a comment from the bench, reining in some inappropriate overstep or a warning to back away from misconduct or failure, saving the written opinion text for a more staid, measured rebuke.

Because Dawn Johnsen’s known as a straight shooter who not only does not play fast and loose with the letter of the law, but is also blunt about what is required to uphold it?  Is this why Johnsen’s nomination is really on hold? Via The Nation…

Dawn Johnsen is one of the premiere scholars — on the left or right — on the subject of presidential power, constitutionality and the rule of law. She, along with several other former OLC lawyers from sides of the political aisle, crafted a document which lays out limitations on presidential power and conduct under our nation’s laws shortly after the OLC torture memos started surfacing. And that is at the root of GOP opposition to her nomination. For, as this says, there are some boldfaced limitations to “whatever the President says goes,” and the OLC lawyers not only knew that, but had a duty to say so…

In the back and forth on Dawn Johnsen’s OLC nomination, what gets lost in the media shuffle is why her experience in that office is so critical.

And why that office needs an experienced hand at the helm.  Now.