This case will become moot upon the effective date of the repeal of § 654, rendering any judicial disposition unnecessary. That date is swiftly approaching. As a result, the Court should withhold further proceedings and decision in this matter, both out of the respect owed to the orderly repeal process undertaken by the political branches and in furtherance of the policy favoring avoidance of deciding constitutional questions unnecessarily.

The Obama administration had sought a delay in the briefing schedule [JURIST report] in January shortly after Congress passed the Don't Ask Don't Tell Repeal Act of 2010 [materials]. In December, three former service members discharged under DADT filed a complaint against the DOD seeking reinstatement [JURIST report] and the declaration that their discharges under the statute, and the statute itself, are unconstitutional. In November, US Air Force Major Margaret Witt, who was discharged under DADT, became the first openly gay person to serve in the US military after the Obama administration did not pursue a stay of a previous federal court decision ordering her reinstatement [JURIST reports]. The policy was struck down by a federal judge in September, but the Ninth Circuit has since stayed that ruling [JURIST report]. Since the enactment of DADT in 1993, approximately 13,000 servicemen and women have been discharged from the armed forces as a result of the policy.

This is a monumental decision that will enable a Spanish judge to continue a case on the "authorized and systematic plan of torture and ill treatment" by U.S. officials at Guantanamo. Geoffrey Miller, the former commanding officer at Guantanamo, has already been implicated, and the case will surely move up the chain of command. Since the U.S. government has not only failed to investigate the illegal actions of its own officials and, according to diplomatic cables released by WikiLeaks, also sought to interfere in the Spanish judicial process and stop the case from proceeding, this will be the first real investigation of the U.S. torture program.

The court first opened the investigation in April 2009 [JURIST report], looking into torture allegations at Guantanamo Bay made by four former prisoners, including Ikassrien. The court based its decision on statements by the prisoners who claimed they were subject to various forms of physical and mental abuse during their imprisonment, as well as CIA interrogation memos [JURIST report] detailing a plan which allegedly authorized the systematic torture and mistreatment of persons who were deprived the basic rights of detainees. The alleged abuses violated the Geneva Conventions [ICRC materials], the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [UN materials], and other international treaties, the court said. In July 2005, US officials at Guantanamo Bay extradited Ikassrien to Spain [JURIST report] to answer charges that he assisted al-Qaeda cell leader Imad Eddin Barakat Yarkas in planning the 9/11 terror attacks.