A week after a judge’s scathing denunciation of the government’s handling of the case of a youthful detainee at Guantanamo Bay, the Justice Department has given up efforts to justify further detention without facing charges.
Still, in a new test of the patience of the judge who has called the case “absoluely shocking” and an “outrage,” the Obama Administration is attempting to gain time to prepare a possible war crimes case against the prisoner, Mohammed Jawad. The detainee, government lawyers are now arguing, should not be ordered released immediately.
Insisting that it has come up with new evidence that Jawad, as a teenager in Afghanistan, threw a hand grenade that injured two U.S. servicemen, the Administration said in a court filing on Friday that it is expediting a probe that could lead to prosecution in either civilian or military courts.
The document was filed with U.S. District Judge Ellen Segan Huvelle, who is reviewing Jawad’s habeas challenge to his continued confinement. Jawad is an Afghan who was captured in late 2002 and has been held captive since. The document said the government was no longer contesting Jawad’s plea for habeas relief.
On July 16, in a tense 31-minute hearing in her courtroom, Judge Huvelle warned government lawyers that their case for continued detention of Jawad “is riddled with holes.” She also said sternly that she would not tolerate any delay so that government lawyers “can come up with some other alternative to going forward with the habeas and pull this rug from under the Court at the last minute.” (The full transcript of the hearing is now available at this link.)
After that hearing was over, the judge — with no objection from the government — blocked the government from using any statements obtained from Jawad himself during his captivity, finding that all of them were “the product of torture.”
She also ordered the government to come back in a week with word on how it expected to try to persuade her, without Jawad’s statements as evidence, that he should continue in confinement. At the hearing, she had made clear her deep skepticism that the government still had a case for detention.
That order set off a series of behind-the-scenes maneuvering between the Justice and Defense Departments, apparently including discussions of how strong a case it could make even with new evidence that government lawyers had told Huvelle they now had. The result was Friday’s filing, throwing in the towel on habeas, but pleading for more time to come up with an alternative. (Simultaneously with the court document, the Justice Department issued a statement explaining its change of course. That statement can be found here.)
At the July 16 hearing, government attorneys had pleaded with Judge Huvelle to give them a chance to consult with government officials to decide how to proceed with the habeas case. They gave no hint then that the option they would choose would be to abandon opposition to habeas. The judge told them she planned to go ahead with the habeas trial on Aug. 5, whether or not the government was fully ready by then.
It was apparent, on Friday, that government officials had concluded that they had little chance of heading off a ruling by the judge in Jawad’s favor, especially if they had to file their new evidence by Friday, and get ready for the trial early next month.
The filing thus focused primarily upon urging Judge Huvelle to craft any habeas relief order she issued to allow the government “a period of several weeks” to prepare for any possible transfer of Jawad out of Guantanamo to another country — including his homeland of Afghanistan, which has said it wants him returned there.
The federal lawyers also cautioned the judge to take account of Congress’ recent action in putting new restrictions on the Executive Branch’s authority to transfer prisoners out of Guantanamo. Any habeas order the judge issued, the filing said, “should be fashioned in light” of those new restrictions.
Thus, the document concluded, the judge should not do as she had done in another detainee’s case in April, finding him eligible for release and ordering the government to take whatever action was necessary to achieve his release “forthwith.”
The restrictions Congress has imposed on transfers of detainees are binding on the Executive Branch, after President Obama signed them into law. They are not binding on Judge Huvelle or other judges, who are exercising constitutional power under a Supreme Court mandate to hear challenges to detention, and fashion relief, including possible release.
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