Rejecting arguments from both the Bush and Obama administrations, a federal judge has ordered the release of an Afghani who may have been as young as 12 when he was detained 6 ½ years ago for allegedly wounding two U.S. soldiers and an Afghan translator by throwing a grenade at their unmarked jeep.
U.S. District Court Judge Ellen Segal Huvelle granted Mohammed Jawad his habeas corpus writ on Thursday and ordered the Obama administration to submit the necessary information to Congress by Aug. 6 to begin the process of releasing Jawad from the Guantanamo Bay prison.
“After this horrible, long, tortured history, I hope the government will succeed in getting him back home,” Judge Huvelle told Justice Department lawyers during a court hearing Thursday. “Enough has been imposed on this young man to date.”
Judge Huvelle’s two-page order called for Jawad to be freed by Aug. 21 and demanded a status report to the court by Aug. 24. Recently, the Afghan government sent a letter to the U.S. government demanding his return.
However, it remains uncertain whether the Obama administration will free Jawad from U.S. custody or simply transfer his case from Guantanamo to a U.S. criminal court.
A Justice Department official told the New York Times that it remained “a very real possibility” that Jawad would be charged in a civilian court depending on “whether we can compile enough evidence to support a case,” adding “we don’t yet know the answer.”
On Wednesday, the Justice Department filed documents stating that it would agree to return Jawad to Afghanistan, but reserved the right to file criminal charges against him in federal court before the government schedules him to be released if additional evidence surfaces.
In court papers last week, the government said it had obtained new evidence to support Jawad’s continued imprisonment in connection with a criminal case.
“In light of the multiple eyewitness accounts that were not previously available for inclusion in the record – including videotaped interviews – as well as third-party statements previously set forth in the government’s factual return, the Attorney General has directed that the criminal investigation of petitioner in connection with the allegation that petitioner threw a grenade at U.S. military personnel continue, and that it do so on an expedited basis,” the filing said.
But this week, in a three-page declaration, Maj. Eric Montalvo, a Marine Judge Advocate assigned to the Office of Military Commissions who has represented Jawad since last August, said the new evidence the government claims it obtained in February was shared with him and others on Jawad’s defense team in May and that it is not “new and based upon our investigation none of it is credible or reliable.”
Additionally, Montalvo said he had a telephone conversation on Monday with a “high-level [Afghan] government official who directly represents the interest of His Excellency, President [Hamid] Karzai” and “this government official assured me that the Afghanistan government is ready, willing, and able to pick up Jawad at Guantanamo and stated ‘if I have to pay for the plane out of my own pocket I will.’”
During a military commission proceeding last year, it was revealed that Jawad’s confession to throwing a grenade at an unmarked jeep was made only after Afghan authorities threatened to kill his family. The confession was written in Farsi, a language Jawad could not speak, read or write.
The lead prosecutor at Jawad’s military commission hearing, Lt. Col. Darrel Vandeveld, resigned because he said the evidence against Jawad was obtained through torture and there were no eyewitnesses to support claims that Jawad threw the grenade at the soldiers in December 2002.
Vandeveld recently signed a 15-page declaration calling for Jawad to be released from custody.
“It is my opinion, based on my extensive knowledge of the case, that there is no credible evidence or legal basis to justify Mr. Jawad’s detention in U.S. custody or his prosecution by military commission,” Vandeveld wrote.
“There is, however, reliable evidence that he was badly treated by U.S. Authorities both in Afghanistan and at Guantanamo, and he has suffered, and continues to suffer, great psychological harm. Holding Mr. Jawad’s [sic] for over six years, with no resolution of his case and with no terminus in sight, is something beyond a travesty.”
Court documents filed by the American Civil Liberties Union earlier this month state that Jawad was subjected to severe beatings before his interrogation sessions.
“Judge Huvelle made clear that Mr. Jawad has been illegally detained and the government has no credible evidence to continue holding him,” Jonathan Hafetz, an attorney with the ACLU’s National Security Project who represents Jawad, said Thursday.
“We are pleased that the Justice Department has expressed a commitment to getting him home so that this nightmare of abuse and injustice can finally come to an end.”
Given the uncertainty about Jawad’s age at the time of his arrest and the ambiguity about his alleged actions, his indefinite detention as an enemy combatant has become a notorious example of the abuses associated with President George W. Bush’s detention policies.
“U.S. personnel at Bagram [Air base in Afghanistan, where Jawad was detained after his arrest] subjected Mr. Jawad to beatings, forced him into painful ’stress positions,’ deprived him of sleep, forcibly hooded him, placed him in physical and linguistic isolation, pushed him down stairs, chained him to a wall for prolonged periods, and subjected him to threats, including threats to kill him, [his family], and other intimidation,” the ACLU said in a July 1 legal brief.
“While in an isolation cell, Mr. Jawad remained hooded and restrained with handcuffs. Guards made him stand up and, if Mr. Jawad sat down, he was beaten. Guards also kicked Mr. Jawad and made him fall over, as he was wearing leg shackles and was unable to take large steps. Sometimes guards fastened Mr. Jawad’s handcuffs to the door of his isolation cell so that he was unable to sit down.”
U.S. authorities later transported Jawad to Guantanamo, where he was subjected to the “frequent flyer” sleep deprivation program and other harsh interrogation methods, his lawyers said. Eventually, Jawad tried to commit suicide in his cell by slamming his head repeatedly against the wall.
U.S. Air Force Major David Frakt, another attorney representing Jawad, said, “It is astonishing that even after conceding that the bulk of the evidence against Mr. Jawad was obtained through torture, the government is even considering proceeding with its bankrupt case. It is long past time to return Jawad home to his native Afghanistan in the face of the absence of any evidence against him.”
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