This last week has seen two developments in Guantanamo litigation, both in the U.S. federal court and in the U.S. Military Commissions:
United States v. Jawad (Mil. Comm. Jan 31, 2008)
The Defense Department announced that charges were referred to a military commission in the case of Mohammed Jawad by the Convening Authority, Office of Military Commissions, Susan J. Crawford. Jawad was charged with attempted murder in violation of the law of war and intentionally causing serious bodily injury. It is alleged that he attempted to commit murder and cause serious bodily injury by throwing a hand grenade into the passenger compartment of a vehicle transporting two U.S. Army military personnel and their interpreter with the intent to kill them. In accordance with the Military Commissions Act of 2006 and the Manual for Military Commissions, Jawad will be brought before the military trial judge for arraignment within 30 days of the service of charges. Within 120 days of the referral, the military trial judge will assemble the military commission.
Brig. Gen. Thomas Hartmann, legal advisor to the convening authority, claimed that these war crime proceedings will continue to move forward in open trials and with more due process than any alleged war criminal has historically received. Many JAG defense lawyers assigned to represent Guantanamo detainees charged with war crimes and the international legal community contend that the military commissions procedures are inherently unfair and contrary to international law and military justice.
Of the 275 detainees at Guantanamo, approximately 80 are expected to face trial by military commission.
Bismullah v. Gates (D.C. Cir. Feb. 1, 2008)
The D.C. Circuit denied en banc review in Bismullah, the lead case with respect to D.C. Circuit review of the Combatant Status Review Tribunal determinations of enemy combatant status (the adequacy of which is a central issue before the Supreme Court in Boumediene). The Circuit split 5 to 5 on the question of whether to grant rehearing en banc, and thus denied the petition. Chief Judge Douglas Ginsburg issued an opinion, essentially restating the position, articulated in the panel opinion at issue, that a DTA (Detainee Treatment Act) revoew requires the Circuit to have access to all of the information in the government's possession relating to the detainee’s status as an enemy combatant, not just the information the Tribunal reviewed in finding the detainee to be an enemy combatant, in order to determine whether the CSRT Recorder discharged his duty to assemble such information. Judges Henderson and Randolph each wrote dissenting opinions, joined by Sentelle and Kavanaugh, arguing that the D.C. Circuit’s review of a CSRT determination should not require production of information that was not part of the record before the CSRT itself, or at least that this question should be decided by the full circuit.
For a more detailed explanation of how the Detainee Treatment Act and the Military Commissions Act affect the Combatant Status Review Tribunals and the Administrative Review Boards (two military procedures that the Guantanamo detainees have been provided during their detention), read "Standards and Procedures for Classifying 'Enemy Combatants': Congress, What Have You Done?" by yours truly, IntLawGrrl and Professor Kristine A. Huskey.