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Afghan ordered freed, trial unsure

UPDATE 3:05 p.m.  Judge Huvelle has now issued an order carrying out her ruling from the bench Thursday morning. It can be found here.


A federal judge, ruling for the first time that the U.S. government must release a detainee who once faced terrorism charges, on Thursday told officials to free a young Guantanamo prisoner by Aug. 21 or 22 so that he can return to his home country, Afghanistan.  U.S. District Judge Ellen Segal Huvelle conceded that the Justice Department still had the option of prosecuting Mohammed Jawad for some crime, but nevertheless cautioned that such a case would face serious obstacles.

Meanwhile, Jawad’s lawyers disclosed that they would meet with Justice Department officials on Friday to try to head off a criminal case. “We hope to persuade them to give up on the [criminal] investigation, and conclude that prosecution is not warranted,” Air Force Major David Frakt, one of Jawad’s counsel, told reporters outside the U.S. courthouse after the judge ruled.

Judge Huvelle, during a 32-minute hearing before she ruled, was more conciliatory toward government lawyers than she had been in prior courtroom encounters, and granted officials all of the time they asked to make the arrangements they said were necessary for Jawad’s actual release.  She also refused a plea by Jawad’s lawyers that she lay down a series of commands to the military on how it should go about freeing Jawad, including whether to order that he not be shackled or hooded while being flown homeward.  The judge said she doubted she had the authority to issue such orders, although she said she would require that Jawad be treated “humanely” during the transfer.

The hearing drew a full audience at the courthouse, apparently in anticipation of a significant confrontation between the judge and government lawyers, who had earlier drawn her wrath over some of their tactics.  Because the case also offered a close look at how federal judges are handling detention cases in the face of considerable government resistance, the hearing also had something of a dramatic air to it.  Adding to the drama, U.S. District Judge Emmet G. Sullivan, who like Judge Huvelle has engaged in some tense jousting with government lawyers in detainee cases, took a seat as a spectator in the jury box, perhaps as a gesture of solidarity with the judge.

In a formal order expected to be issued later Thursday, Judge Huvelle said, the government will be given seven days to prepare a report to Congress that is now required before any Guantanamo detainee is to be freed.  Then, 15 days after that, the government must complete plans for Jawad’s transfer out of Guantanamo, the judge indicated.

By Aug. 24, a written report is due on Jawad’s status, the judge said. “By then, I hope he’s en route to Afghanistan,” she commented.

Told by a government lawyer, Deputy Assistant Attorney General Ian Heath Gershengorn that Attorney General Eric Holder is still considering whether to pursue criminal charges against Jawad, Judge Huvelle said she hoped Holder would “give serious thought” about that prospect, saying she could foresee “some serious issues” surrounding such a case.

“I can tick them off,” she said, noting, among other things, that the long delay in bringing criminal charges — based on an alleged grenade-throwing incident in Afghanistan in 2002 — would raise issues of a violation of his right to a speedy trial. She also said there could be issues about his “competency,” since he was arrested when he was a teenager and has been subjected to torture since then.  She added that, because of his age, it may be questioned whether he could form the necessary intent to commit a war crime.

Although the judge showed a willingness to accommodate the government’s “security and operational considerations” in working out the details of Jawad’s release, she did return to her former pattern of criticizing the government’s handling of the case in which Jawad was seeking his release.

She complained that one part of the government had apparently withheld information about the case from the government team appearing in her court, resulting in the court having to act “without a full deck of cards.”  It is “not acceptable,” she said, for one arm of the government not to let another in on its information.

Moreover, she said, there “has been a consistent pattern” of government lawyers repeatedly asking for more time in preparing the case, putting the courts in “an untenable position.”  Last year, she noted, the Supreme Court had ordered District Court judges to move quickly to rule on detainees’ challenges.  “If the government had gone quickly, we could get going here,” she added.

In fact, a period of 13 months and 18 days had elapsed between the Supreme Court’s ruling in Boumediene v. Bush last year and Judge Huvelle’s order releasing an individual that the government still believes committed an act of terrorism, but that officials had just this month conceded they could not justify his continued detention.

Jawad is the only detainee at Guantanamo who had been directly accused of war crimes before a military commission — a case that has faltered over claims that evidence against him was obtained by torture — and then won his release by a court order applying the Supreme Court’s Boumediene decision.  One detainee who had been convicted by a military commission was transferred out of Guantanamo after he had completed his sentence and thus was not further detained.

Jawad’s lawyers, after Thursday’s hearing, called the ruling mandating his release “a staggering victory” because he was the first detainee who had been “on the verge of a military trial” who had now won his freedom.

A military judge last year threw out most of the military’s evidence against Jawad as the product of torture. Also, the military prosecutor in his case resigned because of restrictions on sharing information with defense lawyers.

Judge Huvelle herself, in a ruling earlier this month, threw out the evidence of some 50 interrogation sessions of Jawad, finding that the evidence had been produced by torture.

Although the judge seemed to go out of her way Thursday to suggest that the government might have an unwinnable case if it tried anew to press charges against Jawad, nothing in the order she planned to issue and nothing in what she said in open court would actually prevent the Justice Department from pursuing criminal charges, either in civilian or military court.

In the report that the government must file about the transfer of Jawad out of Guantanamo, it is required to tell Congress whether there are any risks in his release and to report on what it may have done to reduce or eliminate those risks.  Presumably, that report will spell out what Attorney General Holder had concluded for or against a criminal case.

Although the judge showed some interest during the hearing in the chance that the government of Afghanistan might prosecute Jawad after his return there — an issue the judge said she could not control, Jawad’s lawyers told reporters that high officials of the Afghan government had given them assurances that he would not be prosecuted.  “They feel he’s suffered enough,” Major Frakt commented.

Jonathan L Hafetz, an American Civil Liberties Union who is another lawyer for Jawad, said he had met last week at Guantanamo with the young man — who now is perhaps 21 or 22 years old.  “He is cautiously optimistic” after seven years in captivity, but has been confused by the legal proceedings surrounding his fate.  Hafetz, asked about a possible criminal case, said “there are a thousand-and-one ways to make a prosecution go down in flames.”

The Justice Department lawyers did not meet with reporters following the hearing.