Will Obama Rethink His Gitmo Plans?

In a decision that could have significant repercussions, a judge orders the release of a detainee.

| Thu Jul. 30, 2009 6:48 PM EDT

For the first time, a federal judge has ordered a Guantanamo detainee to be freed after finding that the evidence against him was contaminated by torture. This could have important ramifications for other Guantanamo cases—as well as the Obama administration’s stated goal of moving as many of those cases as possible into the federal courts. 

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At a hearing on Thursday, US District Judge Ellen Segal Huvelle ordered the prompt release of Mohamed Jawad, one of the youngest detainees at Guantanamo, and one of the few to be confronted with war crimes charges. He had faced those charges in a military commission, in which the government accused Jawad of throwing a hand grenade that wounded US service members and an Afghan interpreter in Kabul. But in a habeas corpus lawsuit in federal court, Judge Huvelle threw out most of the evidence against Jawad, saying that it had been obtained under torture.

On Thursday, the government agreed to let Jawad go. His attorneys called this development a huge victory. But in the Alice-in-Wonderland world of Guantanamo litigation, that’s not the end of the story. Justice Department lawyers said they may still bring criminal charges against Jawad before he is sent home to Afghanistan.

The government now faces a dilemma, one that will also apply to at least some of the 228 reported remaining Guantanamo cases. Obama's officials have said that they won't rely on evidence obtained by torture to prosecute people. But they're not willing to abandon the possibility of trying him for the crime they believe he is guilty of. Where will they go from here?

If the administration ultimately allows Jawad to be go free, the implications could be significant. In abandoning its effort to contest Jawad’s habeas corpus suit, the government is, for the first time, implicitly acknowledging that a detainee was tortured. That opens a door, says Benjamin Wittes, an expert on the law of terrorism at the Brookings Institution.

"It is a significant development if you believe a lot of the evidence against a lot of the people at Guantanamo was obtained under circumstances that were ugly. It could imply there are going to be a lot of these cases," he told Mother Jones.

It could also spell trouble for the government’s plan to move the Guantanamo cases into federal court “whenever feasible,” as Obama promised in May.

Another clue that the government may see further setbacks in federal court is its less-than-stellar attempts to block detainees' habeas corpus suits. According to Wittes, detainees have won 28 habeas cases so far, while the government has only won five. (Even if you set aside the Chinese Uighur detainees—whom the government itself had long deemed were not a threat—the score is still 11 to five in favor of the detainees.)

"It's a powerful statement of judicial anxiety...about the government's decisions,” said Wittes. “The government's not doing well, and Jawad is the latest example of that."

That could tempt the administration and Congress to make a renewed push to restore military commissions. As American University law professor Stephen Vladeck points out, some of the problems that dogged the administration in Judge Huvelle’s courtroom wouldn’t apply in a military commission, which would have a less stringent standard for what kinds of evidence are admissible. Of course, relying on military commissions comes with other drawbacks—not least that they may be unconstitutional.
 
For now, all eyes will be watching the government to see whether it lets Jawad go or attempts to find an eleventh-hour means of keeping him behind bars. Under a law requiring the government to notify Congress before freeing any Guantanamo detainees, the DOJ has three weeks to figure out what to do. On Thursday, Judge Huvelle all but asked the administration not to pursue criminal charges, as Jawad has spent his adolescence at Guantanamo, much of it in solitary confinement. “Enough,” she said, “has been imposed on this young man."
 

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