District Court Judge Ellen Segal Huvelle Thursday morning granted Guantanamo detainee Mohammed Jawad, a writ of habeas corpus that could result in his being freed on August 21.
Justice Department officials 22 more days to determine whether or not they can try Jawad in a criminal court in the U.S.
Jawad was arrested by Afghan police in December 2002 for allegedly throwing a grenade into a vehicle containing two US troops and an Afghan interpreter. It's unclear how old Jawad was at the time, but he was almost certainly 17 years old or younger. Jawad confessed to Afghan police that he had committed the crime, but later told US officials that he only did so because he had been tortured by them, making the evidence unusable under President Obama's new rules for detainees.
The Justice Department says it has "newly available evidence" of Jawad's "involvement with the grenade attack on two U.S. servicemen." But the Justice Department isn't asking for more time to investigate the new evidence. And on Wednesday night Justice Department officials submitted a proposed writ of habeas corpus for Judge Huvelle to sign.
"We have informed the judge in this case that we will not contest the writ of habeas corpus and that we are not detaining Jawad in order to conduct a criminal investigation of his actions," Justice Department spokesman Matt Miller said in a statement last night. "Instead, we have informed the court that there are a number of steps the government must undertake to comply with Congressional reporting requirements before any transfer can take place. In the meantime, Department prosecutors are investigating whether they can make a criminal case against Jawad, an effort that is proceeding separate and apart from his habeas case.
Miller said that the Obama administration "made a dramatic break with the policies of the past by rejecting the use of torture without exception or equivocation and making it clear that we will not rely on statements obtained through such methods. This case is one of more than a hundred initiated during the last several years that continue to work their way through the federal courts. It is clear that, in addition to serving as a recruiting tool for terrorists, the status quo left behind by the previous administration at Guantanamo is legally unsustainable, which is why we are working to close Guantanamo and develop a new legal framework to govern detention policy that is grounded in the rule of law and will strengthen our national security."
Under the Obama administration's proposed writ of habeas corpus for Jawad, the US government would "no longer treat petitioner Mohammed Jawad as detainable under the Authorization for Use of Military Force…"
The government would be given seven days to submit the Congress the proper notification for Jawad's release in Afghanistan. Fifteen days after that, assuming Jawad is not brought up on criminal charges, the government would "promptly release petitioner Jawad from detention at the U.S. Naval Station at Guantanamo Bay and transfer him to the custody of the receiving government."
The Pentagon has asserted that Jawad in December 2002 "attempt(ed) to commit murder in violation of the law of war, by throwing a hand grenade into the passenger compartment of a vehicle transporting U.S. or Coalition Forces," namely Army Sgts. Michael Lyons and Christopher Martin, and interpreter Assadullah Khan Omerk.
"I received shrapnel and burns all along my left side," Martin later told a National Guard publication. The blast shattered his right eardrum, broke bones in his feet and left leg, and sprayed shrapnel into his eye, arm and leg. Lyons had similar injuries as well as damage to an artery in his right leg. Omerk had a head wound.
According to the Combatant Status Review Board report, Jawad, originally from Miran Shah, Pakistan, was recruited by six men attending the local Qari mosque to clear Russian mines in Kabul, Afghanistan. Affiliated with the Hezb-E-Islami organization, a terrorist group with long-established ties to Osama bin Laden, Jawad attended a "Jihad Madrassa" where he prepared to fight on the front lines. He attended a training camp in late 2002 where he received instruction on how to use AK-47s, shoulder-held rocket launchers and grenades, and he "told a senior Afghani police officer that he was proud of what he did and if he were let go, he would do it again."
The Pentagon said that according to Afghan policeman who witnessed the attack, there was only one suspect involved. In addition, the Pentagon said that a member of the Afghanistan National Security Council reported that Jawad "stated none of the people who trained him were around and he acted alone in the grenade incident." Jawad "also stated he was trained to target Americans and the Afghanistan government," the Pentagon said.
Jawad admitted having been there, but pleaded innocence. "I am not the person who threw the grenade," he said.
"I was there," he told the tribunal. "A person gave me something, but I did not know what the object was that the person gave me." After the incident, a "shopkeeper told me that it was a bomb and that I should go and throw it in the river. I put the thing back in my pocket and I was running and shouting to say 'Stay away, it's a bomb.' When I got close to the river, people [the police] caught me."
The Afghan police "tortured me. They beat me. They beat me a lot. One person told me, 'If you don't confess, they are going to kill you.' So I told them anything they wanted to hear. I told them anything they wanted me to say. By forcing me, beating me, and scaring me, I confessed."
Jawad's journey began, he said, when his uncle gave him money to go to the market in Pakistan. At prayer time he went to the mosque, where he was approached by a man who offered him a job to clear mines in Afghanistan, offering him 12,000 Pakistani Rupees to do the job. Whisked away by the man and another to a training camp, Jawad said, he was given "two small pills each day, which made me sleepy and forget my family. Two men came and told me to fire guns they said everybody does this and it is fun…They gave me injections in the leg and I hallucinated about many things, like my nose coming off and giving my ear to people. They showed me how to use the grenade, how to throw the bomb."
Jawad said that before the grenade incident, "they gave me orange chewing gum, chocolate candy and a tablet. When I took this pill I didn't know what I did. I was out of my mind. I couldn't think clearly."
During his detention at Gitmo, Jawad was subjected to sleep deprivation, according to his attorney, Air Force Major Reserve David Frakt, who referred to records indicating that prison guards had transferred Jawad "from cell to cell 112 times over a two week period, shackling, moving and unshackling him on average every two hours and fifty minutes," according to Human Rights First. "Just several months earlier, Jawad had attempted suicide."
The ACLU says that Jawad is one of two Guantanamo prisoners the US "has charged with war crimes for acts allegedly committed as juveniles…Jawad's former military prosecutor, Lt. Col. Darrel Vandeveld, supports the ACLU's legal challenge, and has stated that there is 'no credible evidence or legal basis' to justify Jawad's detention and prosecution, and that his release presents no risk."
Referring to Jawad as "a terrorist who attacked and wounded two U.S. soldiers and an Afghan citizen in a grenade attack," Navy Commander Kirk Lippold (Ret.), former commander of the USS Cole and a senior fellow at Military Families United, asked, "How many more terrorists does the President need to release before he realizes the threat they pose to our troops? Our country and the brave troops that protect it should not be put at greater risk because vital national security decisions are being made to meet arbitrary deadlines and repay campaign debts to the ACLU. Americans …We cannot allow terrorists to slip through our fingers because of misplaced and untrue political perceptions about Guantanamo Bay.”
Jawad's attorneys had requested that Judge Huvelle immediately order Jawad's release into the hands of the receiving government or "a neutral intermediary such as the International Committee of the Red Cross," but in a memorandum in support of their own proposed writ of habeas corpus, Justice Department officials say that isn't necessary since Jawad is currently being held in Camp Iguana, the least restrictive facility for Guantanamo detainees.
At Camp Iguana, the officials say, Jawad has "relative freedom of movement and opportunities for not only education, but also social interaction, physical exercise and recreational activities. Camp Iguana is a communal camp with wooden, hut-like living structures, which provide freedom to move about from different buildings designated for housing, prayer, library, laundry facilities, shower/bathroom, outdoor recreation, and lounge areas. Detainees also have free access to satellite television, books, newspapers, magazines, handheld games, puzzles, and art supplies."
*This post has been updated with breaking news of Judge Huvelle's decision.