U.S. agrees to release Afghan detainee
on Jul 29, 2009 at 5:10 pm
Averting for now a possible constitutional showdown, the Obama Administration urged a federal judge on Wednesday to order the release — within a few weeks — of a young Afghan detainee at Guantanamo Bay, with a transfer to the Afghan government. It asked for more time to notify Congress, and time to arrange the transfer. In a new filing in U.S. District Court, along with a proposed court order, the Administration said it was not contesting the judge’s power to order the release of Mohammed Jawad.
The filings were made in U.S. District Court in Washington under a deadline set by District Judge Ellen Segal Huvelle.
Specifically, the government asked for seven days to notify Congress of its plan to release Jawad, with an assessment of any risks from that move, and then another 15 days to carry out the transfer.  An immediate release, as demanded by Jawad’s lawyers, is not feasible, the government said, because of the practical problems in arranging an overseas flight in a military aircraft. It may take up to 20 days to arrange such a flight, it said.
The new memorandum explaining the government’s position leaves uncertain whether Jawad will have to face criminal prosecution, before his departure. The document mentions the continuing Justice Department investigation of possible war crimes charges, but does not say explicitly whether that would be resolved before Jawad is sent to Afghanistan.
The document, though, does urge Judge Huvelle not to make any findings “that touch on the subject matter of that investigation.” The government contends it has “newly available evidence” that Jawad was involved in a grenade-throwing incident in Afghanistan in 2002 that injured two U.S. servicemen there. Jawad’s lawyers had asked the judge to make a formal finding that the government had not shown it had any basis for continuing to hold him.
The memorandum expressly disclaimed any authority by the government to “detain an individual to pursue a criminal investigation.” Still, it appeared that, in preparing a report required by Congress for the release of any Guantanamo detainee, including a risk assessment, the Justice Department will make up its mind whether it is, in fact, going to start a criminal case against Jawad. It is unclear how that could go forward after Jawad was sent to Afghanistan.
Presumably, that is an issue that Judge Huvelle and the lawyers may cover at a hearing in her courtroom Thursday morning.  The judge previously had concluded that the government case for holding Jawad any further — he has been a prisoner for seven years after being captured as a teenager — was “riddled with holes.”  She also has warned the government not to try to take Jawad’s habeas case away from her at the last minute.
Besides putting forth an order for Jawad’s release on the government’s timetable, the Administration opposed any other action by Judge Huvelle. It expressly contended that the judge has no power to direct the military on how to arrange for Jawad’s physical transfer, or what his living conditions should be at Guantanamo while awaiting transfer, and said it was too late for her to make any further factual findings about government evidence against him. It also said it had no plans to interrogate Jawad any further, so the ban on such questioning sought by his lawyers should be denied.
The efforts by Jawad’s lawyers “to impose judicial supervision over the details of…preparations for his transfer and its execution would inappropriately involve the judiciary in matters of foreign relations and military operations,” the document argued.
It argued that, while the Supreme Court has ruled that Guantanamo detainees have a constitutional right to challenge their detention, the Justices’ ruling allowed for flexibility in the remedy for unauthorized further detention.
On the reporting requirements that Congress recently imposed on the Executive Branch when it plans to release anyone from Guantanamo, the memorandum said the State and Defense Departments ahve alreayd starting preparing a “risk assessment.” This can be done within a week, it suggested.
While Jawad’s lawyers contended that Congress acted unconstitutionally in seeking to impose limits on detainee transfers, the government document said Judge Huvelle did not need to rule on that question, since she has discretion to fashion a remedy that satisfies habeas law as well as the new reporting requirement. The judge, it added, should not “contravene Congress’s express intent” to impose those requirements on planned releases of detainees.
Meanwhile, another District Court judge joined several of her colleagues in ordering the release of a Guantanamo detainee. In the first such release order by Judge Colleen Kollar-Kotelly, she granted the habeas plea of a Kuwaiti, Khalid Abdullah Mishal al Mitairi.  The reasons for her action, she said, are spelled out in a still-secret opinion; a declassified version is to be prepared within 48 hours, she ruled.
This brings to 28 the number of Guantanamo prisoners ordered release, compared to five that were ordered to remain confined. Most of those ordered released, however, are still at Guantanamo, awaiting diplomatic efforts to resettle them.
