For nearly seven years the US government has defended its detention of Mohamad Jawad, possibly the youngest inmate at Guantanamo Bay. But in an abrupt about-face late on Wednesday, Justice Department lawyers said they will allow Jawad to be released, acknowledging that key evidence in their case had been tainted by torture. This admission could affect the cases of more detainees and complicate the administration’s attempt to close down Guantanamo by the end of the year.
The government's decision to release Jawad suggests that it may stop trying to delay the release of at least some of the detainees whose cases hinge on evidence contaminated by torture. It could also signal a real break between Obama's Justice Department and the agencies that have previously run the show at Guantanamo: the Defense Department and the CIA.
Jawad’s detention was controversial from the beginning. He was brought to Guantanamo after being apprehended in December 2002 when he was as young as 14—perhaps even younger. He had been accused of throwing a hand grenade at two US service members and their Afghan interpreter in an attack in Kabul.
However, when a military prosecutor named Darrel Vandeveld was assigned to Jawad’s case, he found serious problems with the evidence. In particular, he came to the conclusion that Jawad’s statements about his alleged crimes had been obtained under torture. Vendeveld eventually resigned and started helping Jawad’s defense effort.
Less than a week ago, government lawyers conceded Jawad had been tortured at Guantanamo, and that his statements could not be used against him. (In a blistering exchange on July 16, the federal judge hearing the case described it as "an outrage.") However, the government also said that it had access to alternative evidence that could be used to continue to hold Jawad, and asked for more time to assemble it. On Wednesday, it abandoned that tactic. (Keeping their options open, DOJ lawyers did suggest that they may still pursue criminal charges against Jawad after he’s released.)
"I think it just shows the rule of law is starting to take hold again," Major David Frakt, one of Jawad's military lawyers, told me on Wednesday evening. He said the Obama administration's lawyers "are starting to take a critical, skeptical eye to what they were given."
Now the big question for the Obama administration is: How many Jawads are there?
Libby Lewis is a print and public radio journalist and a former Knight Fellow at Yale Law School.