Attorneys: Release young Gitmo detainee to Afghans

WASHINGTON — Attorneys for a young Guantanamo Bay detainee being considered for prosecution in the United States said Tuesday that the government has no authority to continue holding him in Cuba and Afghanistan is ready to pick him up.

A federal judge who recently described the government’s case as an “outrage” ordered U.S. officials to come back within one day to propose a resolution for Mohammed Jawad. Jawad has been detained at Guantanamo Bay for nearly seven years after being accused of throwing a grenade at a jeep in Afghanistan, wounding two U.S. soldiers and their interpreter.

But on Friday, U.S. attorneys said they no longer consider him a wartime prisoner. They said they want to hold him, perhaps for several more weeks, at the naval detention center while they conduct a criminal investigation, which could mean he would eventually be brought to the United States for trial. There was no immediate indication the government would change that position in response to the judge’s order.

Jawad’s attorneys have been fighting in U.S. District Court in Washington for his release, arguing that he only confessed to the crime after being tortured by Afghan officials. Air Force Maj. David Frakt, a lawyer for Jawad, argued that it’s illegal to continue holding Jawad at Guantanamo without charges when the government admits he’s no longer a wartime prisoner. “So I think the government’s options are severely limited here,” he said in an interview.

Jawad’s attorneys asked U.S. District Judge Ellen Huvelle to order that Jawad be released to the Afghan government or a neutral intermediary like the Red Cross for transport back to Afghanistan, where his family lives. In response, Huvelle ordered government lawyers to propose a resolution to the case by Wednesday and she scheduled a hearing for Thursday.

In an affidavit, one of Jawad’s lawyers, Marine Maj. Eric Montalvo, told the court he spoke on the phone Monday with “a high government official who directly represents” President Hamid Karzai’s interests. Montalvo said the official told him the Afghan government is ready to pick Jawad up. Montalvo quoted the official as saying, “If I have to pay for the plane out of my own pocket, I will. This boy doesn’t need to stay at Guantanamo one day longer.”

Jawad’s attorneys say he was only about 12 years old when he was arrested in December 2002, although there aren’t records of his birth in a refugee camp in Pakistan so his age is unclear. The Pentagon says a bone scan shows Jawad was older, about 17, when he was arrested.

In October, a military judge threw out a confession made by Jawad following his arrest. The judge found that Jawad initially denied throwing the grenade and only admitted it after Afghan authorities threatened to kill him and his family if he didn’t confess.

Afghan officials turned Jawad over to U.S. custody shortly after he confessed. He was questioned by U.S. officials overnight. The military judge said Jawad’s statements during that interrogation couldn’t be used because they were tainted by the torture at the hands of the Afghans just a few hours earlier.

Frakt says Jawad wants to return to Afghanistan despite his mistreatment at the hands of police because his family is there and he believes conditions have improved. Frakt also said high-ranking Afghan officials have assured their legal team that he won’t be further harassed.

The Justice Department agreed earlier this month not to use any statements that Jawad made to Afghan authorities or during interrogations at Guantanamo Bay after his attorneys said they were the result of torture and other coercion.

In a hearing July 16, Huvelle criticized the government’s case against the detainee as “an outrage” that was “riddled with holes,” and she encouraged his release. “This guy has been there seven years,” she said. “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.”

The Justice Department argues it has new evidence for a criminal investigation. If Jawad were indicted and brought to the United States, he’d be only the second Guantanamo detainee brought to face trial in a U.S. criminal court. The other is Ahmed Ghailani, who was sent to New York in June to face charges he helped orchestrate two bomb attacks on U.S. embassies in Africa in 1998.