Despite its recent concession that the bulk of its case against Guantánamo Bay detainee Mohammed Jawad consists of evidence illegally obtained through torture, the Obama administration announced on Friday that it may attempt to bring criminal charges against Jawad in U.S. federal court. This sudden change of course represents the latest in a series of desperate attempts by the government to detain Jawad, who was captured during his early teenage years, without credible evidence and without cause. And even though it now concedes that Jawad's seven-year detention and torture at the hands of the U.S. was illegal, the government still thinks it can circumvent the opinions of a U.S. District Court judge, the Afghan Attorney General, Jawad's former military prosecutor, and countless others, by continuing to hold him illegally and on unsubstantiated grounds.
Jawad, who may have been as young as 12 when he was captured in Afghanistan, has been held for nearly seven years in U.S. custody on the unsubstantiated basis that he threw a hand grenade at two U.S. soldiers. The government's case against him consists almost entirely of statements Jawad made under torture, which have been ruled inadmissible by military and U.S. courts.
U.S. District Court Judge Ellen Segal Huvelle said what we were all thinking when she told the government that its case against Jawad was "in shambles" during a hearing on July 16. Judge Huvelle told the government's lawyers — in no uncertain terms — that their failure to bring a viable case against Jawad, despite having illegally detained him for almost seven years, amounts to an insult to the court and an outrage against justice. Judge Huvelle put it best in her own scathing criticism of the government's lawyers:
This case is riddled with holes. And you know it … The United States Government knows it is lousy. If you can't rely on [Jawad]'s statements, you have a lousy case … The case is in shambles.Without even illegally obtained statements to rely on, Judge Huvelle asserted, the case against Jawad "has been gutted." And since the judge's opinion represents the final word in Jawad's habeas corpus proceedings, the hearing should have been an opportunity for the government to admit defeat.
Nonetheless, the government refuses to let go. Even though its past reliance on Jawad's coerced statements has been soundly rejected — first by a military judge last fall, then by Judge Huvelle — the government is now trying to circumvent those decisions by asking the court for permission to continue holding Jawad indefinitely while it decides whether to bring criminal proceedings against him in U.S. court. If the government was not able to make a credible case against Jawad while relying on coerced evidence, it will certainly not be able to make a case against him now.
Yesterday, we filed a brief asking the court to deny the government's request. The Afghan government has indicated that it is prepared to receive Jawad immediately and unconditionally, and that the repatriation could be done without any cost to the U.S.
The Afghan Attorney General has already demanded his long-overdue return, and the sentiment that Jawad should be released has been echoed by Judge Huvelle and countless others, including the former lead prosecutor in his case. The administration has entrenched itself in an unsupportable case, but it's not too late to make things right by admitting defeat and sending giving Jawad his freedom back.
Tomorrow, we'll be back before Judge Huvelle for a status hearing. Yesterday, Judge Huvelle ordered the government to turn over a plan for resolving the case by 5 p.m. tonight.