July 29, 2009

Faced with impending defeat in a US District Court habeas corpus case, the Obama administration devised a new strategy for continuing the detention of Mohammed Jawad, an Afghani who may have been as young as 12 in 2002 when he allegedly wounded two US soldiers with a grenade.

Justice Department lawyers announced Friday that they would transform Jawad's indefinite detention as an enemy combatant at Guantanamo Bay into a criminal case, thus negating the habeas corpus hearing in Washington, DC, where Judge Ellen Segal Huvelle had accused the government of "dragging [the case] out for no good reason."

Jonathan Hafetz, an attorney with the ACLU's National Security Project and one of Jawad's lawyers, blasted the Obama administration for its "pathetic attempt to prolong an outrageous case and to manipulate the court system.

"The government's case failed in the Guantanamo military commission hearings and failed in the habeas corpus proceedings before a federal court, and now - knowing that its case would most likely be dismissed - the government is trying to take a third bite at a rotten apple," Hafetz said. "This travesty of justice has gone on long enough, and Jawad should be sent home."

Judge Huvelle appeared ready to do just that, indicating that she was prepared to order Jawad's return to Afghanistan, given the paucity of evidence against him, especially after the US government didn't contest that his confession had been coerced.

Regarding witnesses against Jawad, Huvelle said last week "the Americans did not see anything and there may or may not be an Afghani who saw something. You can't prevail here without a witness who saw it. I mean, let's be frank. You can tell your superiors that. You can't. There is no evidence otherwise. .... Seven years and this case is riddled with holes."

During a military commission proceeding last year, it was revealed that Jawad confessed to throwing a grenade at an unmarked jeep, wounding the two US soldiers and an Afghani translator, but [the confession 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.

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 US custody or his prosecution by military commission," Vandeveld wrote.

"There is, however, reliable evidence that he was badly treated by US 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.

Building a Criminal Case

Justice Department attorneys said in a four-page motion Friday that at the direction of Attorney General Eric Holder, they will now try to build a criminal case against Jawad. Although the government won't detain Jawad as an enemy combatant any longer, it has other evidence to support his continued imprisonment in connection with a criminal case, the filing said.

"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 US military personnel continue, and that it do so on an expedited basis," the filing said.

The Obama administration was facing a Friday deadline on the habeas corpus case set by Judge Huvelle, who had rejected a government request for an extension until August 3.

"I'm not putting it off," Judge Huvelle said last week. "[Jawad] has been there seven years - seven years. He might have been taken there at the age of maybe 12, 13, 14, 15 years old. I don't know what he is doing there. Without his statements, I don't understand your case. I really don't....

"You'd better go consult real quick with the powers that be, because this is a case that's been screaming at everybody for years. This case is an outrage to me.... I'm not going to sit up here and wait for you to come up with new evidence at this late hour.... This case is in shambles."

In setting the July 24 deadline, the judge also warned the government against coming up with a maneuver to take the case away from her.

"I'm not going to have people running around trying to figure out a way to get this case out of the Court's jurisdiction for some other reason," Huvelle said.

However, in its Friday motion, the Justice Department appeared to do just that, announcing its plan to transfer the Jawad case to criminal jurisdiction. Jawad is being moved to another section of Guantanamo, the government said. He could become the second person sent to the United States from Guantanamo to face trial in federal court for terrorism-related activities.

Notorious Case

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.

"US 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."

US authorities later transported Jawad to Guantanamo, where he was subjected to the notorious "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.

Recently, the Afghan government sent a letter to the US government demanding Jawad's return. But the Justice Department said in Friday's court document that President Barack Obama is the final authority on such matters and noted that Congress has demanded a 15-day notification before any Guantanamo detainee may be transferred or released.

US 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."

A telephone conference involving the ACLU, Judge Huvelle and Justice Department attorneys is set for next Friday. A court hearing in the matter is scheduled for August 5.