Government Takes a Different Tack in Jawad Case

Late this afternoon, as expected, the Justice Department filed its brief defending its claim that it can continue to hold Guantanamo detainee Mohammed Jawad, even though it hasn’t produced any admissible evidence that he committed a crime.

But instead of arguing that the government has the right to detain him pending the filing of criminal charges, which is what it suggested in papers filed on Friday, the government now says they have to hold him to comply with Congress’ recent requirement in a Supplemental Appropriations Bill that the president give Congress 15 days’ notice before sending any Gitmo detainees home.

According to the Justice Department, which submitted a proposed order to U.S. District Court Judge Ellen Huvelle:

under Respondents’ proposed order the government would be allowed up to seven days’ time to prepare the inter-agency report, required by the Supplemental Appropriations Act of 2009, informing Congress of any risks to national security of Petitioner’s transfer, any measures taken to reduce that risk, and any agreements with the receiving country pertaining to its acceptance of Petitioner. Upon expiration of the 15-day notice period required by the Act, Respondents would then be obligated to promptly release Petitioner and transfer him to the receiving government.

Well, unless the Justice Department decides before that to file a criminal indictment against Jawad, which it’s already said it’s planning to do.

It seems kind of disingenuous, after telling the court it wants to hold Jawad longer so it can prosecute him, for the government now to tell the court that it has to hold him to comply with an appropriations bill passed by Congress, which is arguably unconstitutional. (Defense lawyer Sabin Willett, who represents 13 Uighur detainees, has argued that the law is an unconstitutional suspension of the writ of habeas corpus.)

Perhaps the government was convinced by American Civil Liberties Union attorney Jonathan Hafetz’s argument filed yesterday that the government doesn’t have the authority to keep holding a prisoner without any admissible evidence against him, just because it plans in the future to file new charges in a different forum.

The government’s latest tack in this case is sneaky, but it just might work. After all, the new law does say Congress gets 15 days to approve a transfer, and that statute hasn’t yet been challenged. Unless Judge Huvelle were to rule that the law is unconstitutional, she’s likely to let the government hold Jawad another 15 days — which would give the Justice Department plenty of time to file criminal charges based on its supposedly “new” eyewitness evidence that it has never, in seven years, presented to the federal court.

Expect more challenges to this latest plan in the days to come.