Will the Obama administration release Guantanamo detainee Mohammed Jawad, thereby pleasing the ACLU crowd? Or, is it going to move forward with a criminal prosecution, as the DOJ has suggested?
Here is the background, in brief. Jawad is accused of throwing a hand grenade at a vehicle carrying two American servicemen and their Afghan translator. All three were seriously wounded in the attack. A federal court ruled today that Jawad should be released. This comes after that same court lambasted the evidence the Department of Justice was using to justify Jawad's detention earlier this month. The ACLU, which represents Jawad, and U.S. District Court Judge Ellen Huvelle want Jawad released as soon as possible.
But the Obama administration is reportedly hesitating, saying that they are still exploring the possibility of bringing criminal charges against Jawad. Obama's DOJ says new evidence has come to light, including possibly eyewitnesses who can identify Jawad as the attacker.
"The criminal investigation is continuing," Deputy Assistant Attorney General Ian Gershengorn said to Judge Huvelle.
However, the ACLU is under the impression that the DOJ has agreed to release Jawad to his home country of Afghanistan. A statement from the ACLU's Jonathan Hafetz says, "We are pleased that the Justice Department has expressed a commitment to getting him home so that this nightmare of abuse and injustice can finally come to an end."
So, which is it? Has the Obama administration promised to send Jawad home? Or, is the criminal investigation truly continuing?
As I explained in a piece last week, there is no doubt that Jawad was abused while in Afghan and U.S. custody. And his initial confession was clearly coerced, making it inadmissible for any legal proceeding, including his military commission proceedings. Jawad's treatment was simply unacceptable. But that doesn't make him an innocent.
During his testimony before his combatant status review tribunal (CSRT) and administrative review board (ARB), Jawad made a number of admissions, even in the context of his denials. He denied that he threw the grenade that struck the American's vehicle during both sessions. But during his CSRT he admitted, "They showed me how to use the grenade, how to throw the bomb." In this context, "they" is most likely the terrorist organization run by Gulbuddin Hekmatyar (the HIG), who is a long-time ally of Osama bin Laden. Only later during his ARB hearing did Jawad try to take this back, claiming he knew nothing about grenades.
But during his ARB hearing, Jawad also conceded that he was at the scene of the attack, and that he was arrested while carrying a grenade. Jawad implausibly claimed that he didn't know what the grenade was while in his possession until a shopkeeper told him what it was. He also said that he worked for the man who truly committed the attack -- that is, he admitted that he worked for a terrorist. What does that make Jawad?
The court, and previously Jawad's military commission, has thrown out a number of Jawad's statements because they were compromised by his horrible treatment. But none of the admissions that Jawad made during his CSRT and ARB hearing were part of an interrogation. He was not under duress at the time. He even claimed that he had never been tortured or abused at Gitmo during his ARB hearing. And he was free to claim that he did not throw the grenade at all.
For some reason, all of the statements made by Jawad during his Gitmo hearings have been left out of the public discourse even though they put him at the scene of the attack, holding a grenade, and in the employment of the terrorist Jawad claims truly perpetrated the attack.
