The War Profiteers - War Crimes, Kidnappings & Torture
July 30th, 2009 - Judge Orders Young Guantanamo Detainee’s Release
By Del Quentin Wilber
July 30, 2009
A federal judge on Thursday ordered the release of a detainee at the U.S. military prison at Guantanamo Bay, Cuba, who was accused of attacking U.S. troops with a grenade in 2002.
The government will have at least until Aug. 21 to send the detainee back to Afghanistan or it could seek criminal charges against him in the attack. In a court filing last week, the Justice Department said it was mulling such a prosecution.
Mohammed Jawad, whose case has generated intense support from human rights groups, might have been as young as 12 when he was arrested by Afghan authorities and turned over to the U.S. military.
He has challenged his confinement in a federal lawsuit being heard by U.S. District Judge Ellen S. Huvelle under habeas corpus, a legal doctrine that allows prisoners to contest their confinements before independent arbiters.
Last week, under pressure from Huvelle and Jawad's lawyers, the Justice Department dropped its defense of the detainee's challenge, but said it might still charge him with a crime in a U.S. courtroom.
At Thursday's hearing, Huvelle gave the government until Aug. 6 to notify Congress that it intends to send Jawad back to Afghanistan. Such notification is required under a law passed by Congress last month.
The government must then wait 15 days - Congress could try to block his transfer - before sending him back home. Huvelle said she expected a status report from the Justice Department on Aug. 24 indicating that Jawad was on his way to Afghanistan. She left the specific dates and times of his actual release up to the government for security reasons.
In the meantime, the government could also charge him with a crime under U.S. laws.
However, Huvelle strongly encouraged the government to think hard before bringing charges in a case with such a "long and tortured history."
She noted it would face obstacles under speedy trial rules and the fact that Jawad was a juvenile at the time of the attack. The government believes he was 17 when the attack occurred, according to military records.
"I hope the government will succeed in getting him back to Afghanistan," Huvelle said.
Jawad is the 28th prisoner to be ordered released from Guantanamo Bay by a federal judge. On Wednesday, another federal judge, Collen Kollar-Kotelly, ordered the release of a Kuwaiti detainee, Khaled Al-Mutairi, 34. So far, 19 detainees who have been ordered released remain at the facility. The government has won orders - all from the same judge - allowing them to continue detaining five prisoners.
Justice Department lawyer Ian Heath Gershengorn said federal prosecutors were reviewing the case but declined to comment further. He also said the State Department was negotiating with Afghanistan over Jawad's transfer.
Any prosecution of Jawad would have to rely almost entirely on accounts of eyewitnesses placing him at the attack.
In court filings, the government has alleged that Jawad threw a grenade into a vehicle that was on a humanitarian mission, seriously injuring two U.S. Special Forces soldiers and their Afghan interpreter Dec. 17, 2002.
The government had planned to try Jawad for the attack in military tribunals.
But that case evaporated upon close inspection by military prosecutors and judges. They grew concerned about how Afghan police and U.S. forces obtained his confessions the night of the attack.
A military judge, Army Col. Stephen R. Henley, threw out the statements to Afghan police after he determined that the interrogators had threatened to kill Jawad or his family if he didn't confess.
The judge also tossed out statements that Jawad gave that night to U.S. soldiers because his fears of being harmed "had not dissipated." The case received publicity last year when a military prosecutor quit his post over Jawad's treatment.
The former prosecutor also called for the detainee's release. At a hearing two weeks ago, Huvelle sharply criticized the government's evidence, saying it was "riddled with holes."
In court papers, Justice Department lawyers have said they have discovered new evidence that does not involve Jawad's own statements.
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