U.S. Will Transfer Gitmo Child Soldier to Civilian Court, But Still Won’t Let Him Go

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Monday, July 27, 2009 at 8:49 am

It wasn’t until late Friday afternoon that the Obama Justice Department, after years of wrangling over the fate of Mohammed Jawad, the Afghan boy arrested for allegedly lobbing a hand grenade at U.S. soldiers in 2002, admitted that it does not have enough evidence to continue to hold him indefinitely without trial under the laws of war.

That admission comes just days after the not-so-subtle declarations of Judge Ellen Huvelle of the U.S. District Court in Washington, D.C., that the case had been “gutted” by the government’s admission that Jawad’s confessions were elicited through torture, and the fact that it still, more than six years later, hadn’t produced a single reliable eye witness to the crime.

The Justice Department evidently realized it wasn’t going to get very far in the habeas corpus case. But it wasn’t prepared to relinquish its right to imprison Jawad altogether. On Friday, it insisted that it has sufficient “new” evidence to warrant a criminal investigation.

Here’s what the Justice Department said in the papers it filed with the court Friday:

[I]n light of the multiple eyewitness accounts that were not previously available for inclusion in the record – including videotaped interviews – as well as third-party statements previously set forth in the government’s factual return, . . . the Attorney General has directed that the criminal investigation of petitioner in connection with the allegation that petitioner threw a grenade at U.S. military personnel continue, and that it do so on an expedited basis. As the Court is aware, the standard for detention under the AUMF [Authorization for the Use of Military Force] is different than the elements that must be proved in a criminal prosecution, and thus a decision not to contest the writ does not resolve whether the current eyewitness testimony and other evidence, or additional evidence that may be developed, would support a criminal prosecution stemming from the attack on U.S. service members.

Technically, that’s true. A habeas corpus proceeding is a civil case, and the burden of proof is different than in a criminal prosecution. In a civil case, the government has to prove its case only by “a preponderance of the evidence.” A criminal prosecution, however, requires proof “beyond a reasonable doubt.”  But that’s actually a higher burden of proof. So how could the government prove a criminal case against Jawad and not be able to prove its right to hold him in his habeas case?

The answer couldn’t rely on the strength of the evidence:  eyewitness testimony that Jawad committed a war crime would be strong evidence that would probably support the government’s claim that it could hold him indefinitely under the laws of war. The only way the government’s latest claim makes sense is if it’s now saying that throwing a grenade at U.S. soldiers is not a crime of war, but an ordinary criminal offense. But if that’s the case, then why did the U.S. government hold him for six and a half years at Guantanamo Bay as an enemy combatant? And can it really have “newly discovered” reliable eyewitness testimony almost seven years after the crime occurred? Or is it just that the Department of Justice realized it wasn’t going to be able to string along this particular federal judge who’s clearly become exasperated by the flimsiness of the government’s case?

“Until now, the Administration has been talking about detaining people who can’t be prosecuted,” said David Remes, a lawyer who represents more than a dozen detainees at Guantanamo, in an email over the weekend. Remes was referring to the heated debate over whether the government has the right to hold alleged “combatants” indefinitely if it can’t prove in a court of law that they’ve committed a crime. “Now the Administration is talking about prosecuting people who can’t be detained. This is a new twist.”
Indeed, defense lawyers have been insisting for years that the government either charge the men imprisoned at Guantanamo or release them. Increasingly, however, Remes noted, they’re charging the men simply to avoid their release.  In the cases of “enemy combatants” Ali al-Marri and Jose Padilla, for example, the government transferred them to the civilian court system to avoid facing a potentially adverse decision from the U.S. Supreme Court about the president’s power to continue holding them.
“As soon as the courts force the government’s hand in a habeas case, it simply lowers the boom on the detainee by prosecuting him,” says Remes. Either way, “they always get their man.”

Comments

12 Comments

US still fighting to imprison the child soldier « Later On
Pingback posted July 27, 2009 @ 12:43 pm

[...] in Daily life, Democrats, GOP, Government, Obama administration at 9:42 am by LeisureGuy Daphne Eviatar in the Washington Independent: It wasn’t until late Friday afternoon that the Obama Justice Department, after years of [...]


Mr. Jason
Comment posted July 27, 2009 @ 7:50 pm

Interesting case no doubt. I truly find it most interesting because I was the first American to ever contact Jawad after he attempted to kill two of my brothers. I, and my partner Mr. Jed, took custody of Jawad from Colonel Salangi and several other members of the Kabul Police. All of this was documented under my field reporting number, which included several statements Jawad made about being sorry for throwing the grenade and making excuses for his actions due to his age and being under the influence of opium. Perhaps there is not enough evidence to charge him criminally because we were never called to testify. I remember the night like it was yesterday…
This news is unbelievably disappointing…………………………………….Mr. Jason sends


milman1
Comment posted July 27, 2009 @ 9:19 pm

Stop being a coward and come forward Jason. Didn't think so.


aussielawyer
Comment posted July 27, 2009 @ 9:21 pm

Daphne says, “The only way the government’s latest claim makes sense is if it’s now saying that throwing a grenade at U.S. soldiers is not a crime of war, but an ordinary criminal offense. But if that’s the case, then why did the U.S. government hold him for six and a half years at Guantanamo Bay as an enemy combatant?”

Well,exactly! Throwing a grenade at a US soldier may be evidence of combatancy entitling Jawad to be held under the laws of war until the war is over, but it could never be the basis for a “war crime”. In fact it is difficult to imagine a more paradigmatic example of a classic act of war which cannot be charged as a “war crime”, than throwing a grenade at a soldier (as opposed to a civilian). But the Bush lawyers weren't following the Geneva Conventions. Wake up! The answer to Daphne's question is obvious.

Strange that the reporter and the person commenting both act as though it were actually somehow possible under the law of war – the REAL law, not George Bush's or Congress's – to charge the throwing of a grenade at a US soldier (as opposed to a civilian) as some sort of “war crime.”


bruno2u
Comment posted July 27, 2009 @ 9:28 pm

The Department of Justice is now the Department of Injustice? Get a grip fokes, we could all be in danger of getting thrown in jail with this new type of prosecution. Federal Courts can handle these things. Maintaining human rights is essential to our freedoms. If he was tortured into a confession we are wrong, regardless. My family supports and is in the military. My family supports the constitution and the Geneva Convention.


bruno2u
Comment posted July 27, 2009 @ 9:54 pm

Sounds like Mr Jason should offer his name and tell us how badly this KID was beaten. Guess they have to get him anyway they can. I don't believe anything without proof. How many cases has the DOJ lost now?


Mr. Jason
Comment posted July 27, 2009 @ 10:31 pm

coward? Where'd that come from milkman1…
I don't need to come anywhere. If the government wanted us to testify, they knew where to find us. We offered our services and they didn't respond.


milman1
Comment posted July 27, 2009 @ 10:44 pm

Ah, Jason Baur, the simple fact of the matter is that you should demand to testify and put this to rest. You have your identity masked as Soufan did. The government has adopted a program of hiding evidence and requesting multiple continuances. If you truthfully have something to add, why hid?

If you want rely on others to “ask you” then you are circumventing the defense discovery request and you know it. Enjoy life on the dark side and know you are part of what followed for Jawad. I'm sure you can justify your position, but is that really all that matter's?


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