Judge Faces Major Challenge to Government Authority Over Gitmo Detainee

I’d bet that Judge Ellen Huvelle of the U.S. District Court in Washington, D.C., is really mad now.

After telling the government last week that it has “no evidence” supporting its case against Mohammed Jawad — the Afghan teenager arrested for allegedly throwing a hand grenade at U.S. soldiers, tortured, then transferred to Guantanamo Bay where he was abused some more — the government announced that it was dropping its military case against him; now it plans to bring new, previously unmentioned criminal charges.

Yesterday, Jawad’s lawyers insisted in a court filing that the government has no right to keep holding him and Huvelle should grant Jawad’s habeas petition. Huvelle then ordered the government file its justification today, and show up for a hearing in her court tomorrow.

“It’s another version of the same view of the last administration, that courts don’t have the power to remedy illegal detention,” said ACLU lawyer Jonathan Hafetz, who represents Jawad, in a phone conversation this morning. “They’re saying you can win the battle but lose the war.”

As William Glaberson notes in The New York Times today, the case is “emerging as a major test of whether the courts or the president has the final authority over when prisoners there are released.”

Although the D.C. Circuit Court has ruled that federal courts don’t have the authority to release a foreign detainee into the United States, in this case, the government of Afghanistan wants Jawad returned there to face potential charges. The judge’s authority to have him sent back there is unclear.

Hafetz said that, given that the government has conceded it no longer has the authority to hold Jawad under the Authorization for Use of Military Force — which was its basis for holding him for the last seven years — Huvelle should grant his habeas petition and order him sent home. “His detention is illegal,” said Hafetz. “And the issue is whether a judge can do anything about it. If not, habeas is a dead-letter.”

The Justice Department did not respond to a request for comment or explanation of how they can continue to keep Jawad in prison without proving its claims in his habeas corpus case. Although the government claims it has “new evidence” that Jawad threw a hand grenade at American troops, it has never presented that new evidence to Huvelle to justify his detention. As I’ve explained before, the burden of proof in a habeas corpus case, which is a civil case, is significantly less than what’s needed to prove a criminal case. So it’s odd that the government wouldn’t present the evidence at a hearing in the case where it has a lower burden of proof. That at least suggests that the government is just trying to get the case away from Huvelle, who’s repeatedly expressed her skepticism of the government’s evidence.

Indeed, if anyone seems willing to test the executive’s claim for absolute authority over the matter, it’s Huvelle, whose growing impatience with the Justice Department’s handling of this case is evident.

Last week, in addition to calling the government’s case “riddled with holes,” she said about the Justice Department: “The right hand doesn’t know what the left hand is doing.”