Send Jawad Home

As a teenager, Mohammed Jawad may or may not have thrown the hand grenade that wounded two American servicemen in Kabul in 2002. That ambiguity doesn't excuse his deplorable mistreatment. Afghan officials tortured him until he confessed, then turned him over to American military authorities who abused him at Guantanamo, where he's been detained without trial.

In May of 2004, Jawad was subjected to what is euphemistically called the "frequent flyer" program. Jawad was moved repeatedly from cell to cell such that he was allowed no real time to sleep. This went on for roughly two weeks despite the fact that, as Jawad's military commission found, such tactics were already barred at Gitmo and Jawad had little to no intelligence value.

After seven years of detention in our names, a federal judge has said "enough." In response to her ruling, the Justice Department on Friday advised the court that Jawad would no longer be treated as a military detainee. [more ...]

[Judge Ellen Segal Huvelle] said last week that the government’s case for continuing to detain the prisoner, Mohammed Jawad, was “riddled with holes” and that the Justice Department had been “dragging this out for no good reason.”

The Justice Department apparently intends to continue "dragging this out," although it now intends to detain Jawad while investigating a possible criminal prosecution. The seven years that have lapsed didn't afford sufficient time to investigate?

The government’s filing on Friday said it had “multiple eyewitness accounts that were not previously available” and other evidence including an account by an witness who “alleges that he saw Jawad throw a grenade that wounded two American service members.”

Seriously? Seven years after the fact, just as the government is about to lose Jawad's habeas challenge to his detention, witnesses have appeared who were "not previously available"? As the Church Lady used to say, "How Conveeeenient"!

This article from The Weekly Standard makes the case that "it's not clear that [Jawad is] innocent" while conceding that it's also not clear that he's guilty. The government admits that it can't use Jawad's coerced statements against him. Does the Justice Department really think it has a case against Jawad, or is it reluctant to give Republicans another opportunity to argue that the Obama administration is soft on terrorism?

Judge Huvelle indicated in a hearing on July 16 that she was considering ordering that Mr. Jawad be returned to Afghanistan. That created a politically awkward situation for the Obama administration, which has faced sharp criticism from Republicans for its plan to close the Guantánamo prison. It potentially meant that the administration would be required to transfer a detainee charged with trying to kill American servicemen.

After conceding that it could no longer detain Jawad at Guantanamo as a military detainee, the government told Judge Huvelle that it intends to detain Jawad at Guantanamo as a criminal suspect.

The filing indicated that the government planned to continue to hold Mr. Jawad at Guantánamo “at an appropriate camp facility,” evidently until a decision on whether to transfer him to the United States for prosecution.

How conveeeenient for the government. Not so much for Jawad. Let's hope Judge Huvelle has none of it.

Judge Huvelle could still issue an order directing that Mr. Jawad be released to Afghanistan. But such an order would encounter many hurdles. Congress recently passed legislation requiring that it receive 15 days’ notice before any such transfer, which could give the administration the time necessary to charge Mr. Jawad in an American court.

Of course, charging Jawad in an American court implies that Jawad would have to stand trial within the nation's borders, giving Republicans (and cowed Democrats) another opportunity to advance the specious claim that a young man like Jawad can't be safely detained anywhere within the United States without jeopardizing the nation's security. This might seem like a "no win" situation to the Obama administration and congressional Democrats, but justice isn't about winning in the court of public perception. It's about doing the right thing. Jawad has been tortured and abused during his seven years of captivity, and it's impossible to believe that his guilt at this late date can be proved beyond a reasonable doubt. The right thing is to send him home.

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    If we're talking federal criminal process now ... (5.00 / 1) (#2)
    by Peter G on Sun Jul 26, 2009 at 05:20:28 PM EST
    ... then isn't Jawad an alleged juvenile delinquent, not a criminal suspect?

    Isn't he now entitled to a preliminary appearance before a US Magistrate Judge "without unnecessary delay" for the appointment of counsel and the setting of bail?

    Don't the rules say that even if denied bail he can't be held for more than ten days without either grand jury indictment or a preliminary hearing to air and scrutinize the evidence against him?

    And meanwhile, even if Judge Huvelle doesn't have authority to "just say no" to this cruel, Bush-admin-style nonsense, she certainly has authority under habeas corpus law (see 28 USC 1651 (All Writs) & 2243 ("dispose of the matter as law and justice require") to grant Jawal immediate "enlargement from custody" (the habeas equivalent of bail) while the government decides what it wants to do.  She can also set his travel limits, or lack thereof, while on "enlargement" status.

    Excellent point Peter. (5.00 / 1) (#5)
    by TChris on Mon Jul 27, 2009 at 09:21:35 AM EST
    Hear Hear!! (none / 0) (#3)
    by squeaky on Sun Jul 26, 2009 at 05:24:49 PM EST
    On the money.

    Calling Lamar Smith (none / 0) (#1)
    by Cream City on Sun Jul 26, 2009 at 04:56:31 PM EST
    -- or does he only want to send home those who are  in local jails, not those we have incarcerated (without convictions) in federal prisons?  It would seem that a Congressman could do a lot more about Guantanamo than he can about local sites.

    If we're talking politics (none / 0) (#4)
    by BackFromOhio on Sun Jul 26, 2009 at 06:04:51 PM EST
    why can't Obama admin release the fellow & blame the release etc on adverse effects of torture conducted under the Bush admin?  

    And, based on the info provided, it seems this young man may be in terrible mental & physical shape as the result of his abusive treatment.  Is there any info on his condition?

    As with all Orwellian systems... (none / 0) (#6)
    by mcl on Mon Jul 27, 2009 at 07:17:10 PM EST
    ...Once you fall through the rabbit hole into the system, you can never get out. The theory seems to be that if the Ministry of Love or the NKVD or the SAVAK or Pol Pot's Khmer Rouge or the unconstitutional kidnap-and-torture regime of the previous maladminstration have you in custody, then you must have done something wrong. The only question is: What exactly did you do?

    To discover that, repeated applications of torture seem the standard methodology.

    Standard, usual, typical, familiar from the Inquisition. If the suspect refuses to recant, it's a sure sure sign s/he is even more closely in league with the devil than we thought, so let's bring out the Pear.