The fireworks start when Huvelle points out that 90 percent of the government's evidence consists of statements from Jawad obtained under coercion, and is therefore inadmissable. The DOJ responds that it has recently found some new evidence and asks for some time to submit it to the court.
Huvelle: I’m not putting it off. This guy has been there seven years, seven years. He might have been taken there at the age of 12, 13, 14, 15 years old. I don’t know what he is doing there. Without his statements, I don’t understand your case. I really don’t. You cannot expect an eyewitness time of account to rely on the kind of hearsay you have here… You should have figured this out months ago, years ago frankly in the military commission, but be that as it may—the answer is we’re going forward full-blown on the fifth. You can participate or not. You have the burden here.
DOJ: Your Honor, again, as explained, we need time to evaluate how to proceed. We need to do a motion to amend the statement of facts.
Huvelle: It’s granted.
DOJ: We’ve not done it yet, Your Honor.
Huvelle: Sir, the facts can only get smaller, not bigger.
DOJ That’s not correct, Your Honor. There is additional evidence that we’ve identified that we wish to include in an amended statement of facts if that’s how we choose to do so.
Huvelle: Then you’ll have to move faster than you are planning. I’m not the least bit apologetic. We’re going forward. When can you file your statement of facts? They have a right to have this habeas decided. If you are not relying on this gentleman’s statements anymore, face it, this case is in trouble. I’m not going to wait to grant a habeas until you gear up a military commission. That’s what I’m afraid of. Let him out. Send him back to Afghanistan.
... [Y]our case has been gutted, Mr. Barish. I don't need to put too fine a point on it. The case, without the statements, has been gutted. I don't know what you've, you've got three Afghanistan officials...You tell your superiors, I want a live witness on this one. I'm not going to put up--There are live witnesses within your control. This is going to be a real trial. And it's going to start before this Court on the fifth. Do your best. Seven years he has been there. You are not going to convince me to change. I'm converting the motion to suppress into a merits hearing. If you would like to add some more evidence, I don't know why it's so late, then you'll have to file a motion.
... I don’t know what evidence you are putting in front of me. I’m very interested to know. I’m baffled. This is a case unlike any other case. You have an eyewitness account. You can’t rely on the petitioner. So, either there is a witness who is going to put this guy there subject to a real cross-examination like a real case instead of all this intelligence and attributing it to people who are either cooperators, unknown, unidentified… There’s not a problem. The real people can show up. You can bring them to me in whatever form. If you have to go to Afghanistan to take a deposition, fine. But seven years and this case is riddled with holes. And you know it. I don’t mean you. The United States government knows it is lousy. If you can’t rely on the guy’s statements, you have a lousy case.
DOJ: Your Honor, this is a war time habeas proceeding. So it is not a normal situation where you call live witnesses.
Huvelle: Fine, don't.
DOJ: There are immense burdens involved. These are intelligence reports we rely on. We don't want to argue the merits here. But I think you under estimate, with all due respect, the burdens involved in having to call witnesses, remove people off the battlefield and from Afghanistan.
Huvelle: There is nobody on the battlefield. The only people that you can dredge up here are Afghanistan people. There is nobody else. I'm not aware of you having an American that could conceivably offer real testimony. Maybe I'm missing something.
DOJ: Your Honor, if I could have a moment.
Huvelle: You are welcome to try. I'm telling you to discuss this case quickly among your superiors. There is a problem with this case. You've known about it for years. You've known about it since—when was the military commission? If that didn't wake anybody up there. Then I get this report, I hope it is not classified. This July 1, it is under seal.
DOJ: Your Honor, that was submitted ex parte and cannot be discussed in these proceedings.
Huvelle: Okay. Fine. I'm going forward on the fifth. Take it to the Court of Appeals. Let's hear from you. Do you have any live witnesses? We have procedures if you want to call your client and all that, we have to be in a special courtroom. The government will have a—we'll find out if they have any evidence. This is an unbelievable case.
Huvelle then hears from Jawad's lawyer, and returns to the government's claim that it has new evidence.
Huvelle: The government, if they want to amend their statement of facts, I don't get it. This case has gone to a military commission. There are 6,000 pieces of paper they're going to produce…This is the most discovered case in the world. The idea that you should think that you have new and different that you want to put in front of everybody is shocking to me, absolutely shocking. There is not one fact about this guy's statements that are new to the government. If they think for one minute that I am going to delay this thing so they can come up with some other alternative to going forward with the habeas and pull this rug from under the Court at the last minute by saying, oh, he is going to the Southern District of New York, don't bother, or whatever idea you come up with. Let me just tell you, we're going forward. I'll rule from the bench if I have to. You can't keep up for seven years and then finally someone says, oh, you really can't fight the fact that his statements are the function of torture.
DOJ: Your Honor, as I explained to the Court when we were here last, as I have made emphatically clear, I am on family vacation beginning to tomorrow. I will not return to the District until Wednesday, which is the 22nd.
Huvelle: Do you think that you could share what conceivable evidence, we have the evidence you have. We know what it is. Why is it that, at this late date, somebody could possibly say to me, Judge, we need to amend it?
DOJ: … during our Court-ordered task force search discovery, we did discover some inculpatory evidence that you, yourself, acknowledged that that is something that could have occurred any time you do additional discovery in these cases. It is the result of that task force search that we would like the opportunity to amend our statement of material facts.
Huvelle: When is the first possible date you can get it in?
DOJ: I would ask for Friday the 31st.
Huvelle: I can't do it. We're starting on the 5th. You'll have to do it before you leave, the 22nd. I'm sorry, we're all killing ourselves.
DOJ: I'm leaving tomorrow, Your Honor.
Huvelle: Then somebody will have to step in. This case is an outrage to me. I'm sorry. This is an outrage. I'm not going to sit up here and wait for you to come up with new evidence at this late hour. There is only one question here, did the guy throw a grenade or didn't he throw a grenade. That's the issue. Right? If he didn't do that, you can't win. If you can't prove that, you can't win. I'm not going to have people running around trying to figure out a way to get this case out of the Court's jurisdiction for some other reason. You have to come to grips with your cases. This guy, my understanding is the Afghanistan courts want him back. And nobody here objects. That's his home. That's where he comes from. They wouldn't take a minute to get him back to where he came from. So somebody has to decide. I don't know what your inculpatory evidence is but somebody has looked at it at least before July. So, either you can do it in a timely fashion or you can't….
I don't have any desire to interfere with your vacation but for seven years, the guy sat down there, being subjected to the conditions that the United States Government has subjected him to since the day they picked him up in Afghanistan…
[W]e're getting to about a nine month mark where you've already known that your evidence is in serious trouble. And it wouldn't have taken anybody with criminal law course 101 to know it was collateral estoppel. So at that point then, the only legal question for this Court would have been whether or not the taint had been dissipated by being in Guantanamo and Bagram. So, it is not fair to keep dragging this out for no good reason.
… This is a case unlike all the rest of them. This does not involve intelligence. This does not involve any particular high level government agency doing the intelligence at all. Did anybody see him do it or didn't they see him do it?
...[T]he level of trustworthiness of a piece of evidence is going to be determined. It is not my job to give advice but I think you'd better go consult real quick with the powers to be, because this is a case that's been screaming to everybody for years. I only learned about it when it was transferred to me from Judge Urbina. But the U.S. Government has certainly known about the problems through the military commission. This was months ago.
There are no surprises to some people, including, there is a prosecutor from the military commission who quit and wrote a 20 page affidavit. He investigated. They had defense counsel for the military, who investigated and wrote affidavits, appeared at the military commission. Astounding kinds of things happened at that military commission. I read all of this because I thought we were having a Motion to Suppress. So I read every piece of paper before today. I mean, the idea that people would go to the military commission and say, "I'll only testify if you put a hood on me," is unbelievable. This is our government.
Your case fell apart back then. So now, somebody ought to face the music and figure out how you can make a case. How can you do it? Boumedine says you have to make a case. You've got the burden, you'll have to satisfy the standard—which is not as high as a criminal case—that you have a basis to continue to detain a young person for more than seven years based on, I don't know what, people who say that they didn't see what they said they saw. I mean, it's time.