A federal judge in July said that without his statements given under torture, the government’s case against Jawad, who was around 12 years old when he was arrested for allegedly throwing a hand grenade at U.S. soldiers, was “riddled with holes” and based on wholly unreliable evidence. She ordered that he be freed.

Mark Magnier at the Los Angeles Times tracked down Jawad in Kabul, Afghanistan, where he found a 19-year-old struggling with mood swings as he tries to reconcile himself to having lost his adolescent and teen years to confinement and mistreatment in a U.S. prison. Jawad was one of many detainees who tried to commit suicide at Guantanamo.

Jawad tells Magnier that he now suffers from headaches, remains haunted by prison memories, and worries about those he left behind, who had become a sort of surrogate family. About 220 detainees are still at Guantanamo Bay, which may or may not be closed in January, as President Obama promised shortly after he took office.

Jawad reportedly asked Magnier to tell President Obama, the United Nations or anyone else who could do anything to help the prisoners who remain there. “People there are sick,” he told Magnier. “They should be treated. They should be freed.”

Although UNICEF and some other civil groups are trying to help Jawad get counseling, education and job training, neither the U.S. nor the Afghan government has provided Jawad with any assistance.

A Defense Department official told the L.A. Times that financial assistance for former Guantanamo detainees would cost too much, and “we don’t want to give them money to buy equipment that could come back to hurt us.”

Jawad is the young Afghan arrested in 2002 when he was only 12, according to the Afghan government. (His exact age remains unclear.) He was tortured by Afghan police, then “confessed” to throwing a grenade that wounded two U.S. soldiers. He confessed again after U.S. authorities threatened and roughed him up some more.

Years of litigation later, those statements were thrown out of court, first by a Bush administration military judge and then by a federal judge in Washington, leaving little to no evidence that the man had ever committed a crime. Still, the Justice Department claimed it had “newly available evidence” including eyewitnesses who would testify that they saw Jawad throw the grenade.

Except that, as I reported here a few weeks ago, it turned out that those “new” witnesses had been paid by the U.S. government. Two U.S. military lawyers confirmed that (the Justice Department refused to comment), and the case against Jawad quickly crumbled.

Although Judge Ellen Huvelle granted Jawad’s petition for habeas corpus in July, it wasn’t clear until today whether the Justice Department would file new criminal charges against Jawad. ACLU lawyer Jonathan Hafetz confirmed today that Jawad was returned to Afghanistan, but with little assistance from the U.S. government. Military defense lawyers had sought the government’s support to accompany Jawad on his return, but that was denied, so one of them, Eric Montalvo, who’s since retired from the military, paid his own way to go.

Jawad was not provided any money for resettlement or rehabilitation, despite nearly seven years of detention by the United States, which Huvelle ruled was unlawful. (Jawad was the 28th detainee whose petition for release has been granted.)

The United Nations Convention on the Rights of the Child says child soldiers should be treated as victims rather than aggressors, and provided rehabilitation assistance, since they’re often forced into fighting. In Jawad’s case, as even the U.S. military prosecutor who resigned over the case has acknowledged, Jawad appears to have been forced into weapons training, although no reliable evidence has ever been produced that he actually threw a grenade at U.S. soldiers.

“Jawad’s rights have been vindicated, although at a profound human cost,” ACLU lawyer Jonathan Hafetz said today. “Were it not for habeas corpus and Judge [Ellen] Huvelle’s determination to provide Jawad a fair hearing, he would no doubt still be behind bars illegally at Guantanamo.”

The Department of Justice today confirmed that Jawad has been returned, and added: “The United States has coordinated closely with the government of Afghanistan to ensure the transfer takes place under appropriate security measures and will continue to consult with the Afghan government regarding Jawad.”

Jawad, of course, is the Afghan arrested in 2002 around the age of 12, tortured into confessing (according to a U.S. military judge) and imprisoned ever since at Guantanamo Bay, where he was subjected to yet more abusive and “extreme” interrogations. Yesterday, D.C. District Court Judge Ellen Huvelle granted his petition for habeas corpus, making him the 28th Gitmo detainee ordered free to go of the 33 cases decided by a federal court so far. But as I wrote yesterday, the Obama administration is still saying that it may charge Jawad for essentially the same crime (he was alleged to have thrown a hand grenade that wounded two U.S. soldiers), although the government has never been able to produce any admissible or reliable evidence to support their case, as Huvelle has repeatedly emphasized.

Montalvo had this to say about the new “eye witnesses” that the government claims it can produce:

I have spoken with the government’s star witnesses and they all have a couple of things in common … 1) they know how to describe the day of the incident anywhere from two to five different ways placing themselves in different locations for each of this descriptions and witnessing or not witnessing different things … 2) they have all received some sort of U.S. government compensation  from shoes and a trip to the United States to $400 for cooperation, which is a princely sum in Afghanistan.

According to Montalvo, officials from the government of Afghanistan, which has been demanding Jawad’s return home, “openly admit that the matter was not handled properly and they don’t even know what happened because the Americans in their lust for bloodletting snatched Jawad away before the incident could be investigated.” In the view of Montalvo and many other U.S. lawyers, if Jawad committed a crime in Afghanistan, that’s where he should be tried. “We have no place interfering with Afghan sovereignty,” wrote Montalvo.

In fact, it’s not even clear what crime he can be accused of in the United States.

In a conversation with University of California at Davis international law professor Diane Marie Amann yesterday, she told me that “if you look at murder and attempted murder statutes, they don’t contemplate extraterritorial jurisdiction” — meaning the U.S. government may not be able to prosecute if the crime was committed overseas. “The one statute that jumps out is the material support statute,” she said, which criminalizes “material support” to a terrorist organization, and is the law the Justice Department frequently uses against terror suspects charged in the United States. But given his age and the circumstances of Jawad’s arrest, “that seems unlikely,” she said. “I don’t see how they’re going to be able to take the same charges that they had levied in the Guantanamo system and put them in federal criminal court.”

So even if they have the evidence to bring a new case against Jawad, “those are the kinds of issues that Justice will struggle with now.”

In another tense hearing this morning at U.S. District Court in Washington, D.C., Judge Ellen Huvelle granted his petition for habeas corpus and ruled that the government must notify Congress within seven days of his impending release, and prepare to send him home 15 days after that.  Under a recent Supplemental Appropriations law, Congress must be given 15 days’ notice of the release of any Guantanamo prisoners to a country other than the United States. Congress cannot stop the release, however.

Still, as I explained yesterday, the government has not relinquished its right to charge Jawad again under the federal criminal laws, and it has repeatedly suggested that it may do so.

“The government said the investigation is ongoing,” said Jonathan Hafetz, the American Civil Liberties Union attorney who represents Jawad, after the hearing. “But it’s become clear that there would be 1,001 obstacles to a prosecution.”

Huvelle has repeatedly told the government that she thinks its case is “riddled with holes”, was “gutted” by its inability to introduce Jawad’s confessions, which were derived by torture, and that it’s time to return Jawad to Afghanistan.

“She made clear that Jawad should not be prosecuted and that his nightmare should come to a quick close,” said Hafetz. (The transcript of the hearing isn’t available yet, but I’ll provide more details when it is.)

As Hafetz pointed out and I’ve discussed previously, the burden to prove a criminal case is significantly higher than the burden to prove its right to detain Jawad in a habeas corpus proceeding. So even though the government has said it has “new evidence” from eyewitnesses to the alleged crime that occurred seven years ago, it’s difficult to see how evidence it didn’t introduce in the habeas proceeding would stand up to the stricter requirements of a criminal proceeding.

If the Justice Department does bring new charges against Jawad, it will have to do so within the next three weeks.

Update:  SCOTUSblog has more on today’s hearing. Judge Huvelle’s order is here.

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.”

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?

Jawad, as I’ve explained before, was a teenager (possibly just 12-years-old) when he was arrested in Afghanistan by local police in 2002 and charged with throwing a grenade at a U.S. military vehicle. He “confessed” to Afghan authorities after they threatened to kill him and his entire family if he didn’t admit to the crime. A military commission judge ruled that his subsequent confession to U.S. authorities was also coerced, unreliable and inadmissible.

The transcript of last week’s hearing, where the government said it needed time to think about how to proceed with the case, reveals that now even the federal courts are losing patience with the Justice Department and its handling of Guantanamo habeas cases.

“I have now suppressed every statement attributable to the defendant as the government has failed to oppose,” said Huvelle, noting that that’s about 90 percent of Jawad’s statements. “So what is there to think about?”

The Justice Department lawyer, Kristina Wolfe, responded that the government lawyers are “consulting internally” on how to proceed.

Huvelle: “There are 11 statements attributed to Afghanistan officials and to the Americans. The Americans did not see anything and there may or may not be an Afghani who saw something. You can’t prevail here without a witness who saw it. I mean, let’s be frank. You can tell your superiors that. You can’t. There is no evidence otherwise.”

Huvelle goes on to point out that the former prosecutor in Jawad’s military commission trial, Lt. Col. Darryl Vandeveld, was unable to find any witnesses to the crime and ultimately resigned from the case — and from the military commissions — in protest. He also submitted a 20-page affidavit in the habeas case outlining his failed efforts to find evidence of Jawad’s guilt.

“I’m not putting it off,” said Huvelle of the habeas trial. “This guy has been there seven years — 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. Without his statements, I don’t understand your case. I really don’t. You cannot expect an eyewitness time of account to rely on the kind of hearsay you have here.”

Daniel Barish, the senior justice department lawyer on the case, stepped in. “There is additional evidence that we’ve identified that we wish to include in an amended statement of facts if that’s how we choose to do so.”

That seemed to exasperate Huvelle even more.  “Then you’ll have to move faster than you are planning,” she said. “They have a right to have this habeas decided. If you are not relying on the gentleman’s statements anymore, face it, this case is in trouble. I’m not going to wait to grant a habeas until you gear up a military commission. That’s what I’m afraid of. Let him out. Send him back to Afghanistan.”

Adding that the case has been “gutted” without Jawad’s confession and that the government still hasn’t produced a single witness, Huvelle added: “If you have to go to Afghanistan to take a deposition, fine. But seven years and this case is riddled with holes. And you know it. I don’t mean you. The United States Government knows it is lousy. If you can’t rely on the guy’s statements, you have a lousy case.”

“This case is an outrage to me,” Huvelle said. “I’m sorry. This is an outrage. I’m not going to sit up here and wait for you to come up with new evidence at this late hour. There is only one question here, did the guy throw a grenade or didn’t he throw a grenade. That’s the issue. Right? If he didn’t do that, you can’t win. If you can’t prove that, you can’t win. I’m not going to have people running around trying to figure out a way to get this case out of the Court’s jurisdiction for some other reason. You have to come to grips with your cases.”

Noting that “the right hand doesn’t know what the left hand is doing” in these cases, Huvelle refused to postpone the hearing to accommodate Barish’s family vacation, given that Jawad has been in prison for seven years and the government knew the case was in trouble since Vandeveld resigned last year.

“This is a case that’s been screaming to everybody for years,” she said. “The U.S. Government has certainly known about the problems through the military commission. This was months ago.”

Judge Huvelle said the government must advise the court of any new evidence it intends to introduce by Aug. 24 (two days after Barish returns from vacation), and she set the hearing on the merits for Aug. 5.

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As I noted yesterday, though, it’s still not clear whether this reflects a change in policy on the part of the Obama administration — and a break from the Bush administration’s insistence that such statements should be relied upon — or whether it’s simply a strategic move in this one case, where the government seemed likely to lose any argument that the confessions were admissible.

Rejecting the Justice Department’s request to postpone Jawad’s hearing on the merits of his case, Judge Huvelle ruled today:

Petitioner has been imprisoned at Guantanamo for more than seven years. Permitting the government to take additional time would be contrary to the Supreme Court’s directive that “the costs of delay can no longer be borne by those who are held in custody.” Boumediene v. Bush, 128 S. Ct. 2229, 2275 (2008) (“The detainees in these cases are entitled to a prompt habeas corpus hearing.”).

The government had asked the court to delay the latest status conference in the case so that it could “consult internally to determine how Respondents will proceed in connection with this habeas action.”

It’s not clear at this point whether the government is considering dropping the case altogether, since its primary evidence appeared to be the coerced confessions it’s now agreed not to use, or whether it will seek to introduce new evidence to support keeping Jawad in prison.

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Which makes this exchange captured by Adam Serwer at The American Prospect all the more precious. Serwer was at the court hearing Friday of Mohamed Jawad, accused of throwing a grenade at a U.S. military vehicle in Afghanistan when he was somewhere between 12 and 14 years old. After being imprisoned and tortured in an Afghan prison (according to a U.S. military judge), Jawad eventually landed at Guantanamo Bay, where he’s spent the last seven years — approximately one-third of his life.

The hearing itself, Serwer notes, was mostly about legal procedure and scheduling. But it did include this:

[T]here was an amusing exchange between the judge and a lawyer from the DoJ who tried to explain that she had a scheduling conflict with one of the dates the judge had set. “I’m going on vacation that week,” the lawyer explained. The judge paused and stared at the lawyer. “He’s been incarcerated for a very long time,” she said.

No word yet on whether the lawyer changed her vacation plans.

Today, the American Civil Liberties Union, representing Jawad in his habeas corpus petition, was forced into the bizarre situation of having to file a brief opposing the government’s motion to dismiss Jawad’s case based on his pending military commission proceeding.

But wait, didn’t President Obama suspend the military commission proceedings? Yes, actually, one of the president’s first acts was to instruct the Defense Secretary Robert Gates to seek a suspension of all military commission proceedings. Administration officials, including Attorney General Eric Holder, have also made clear that they believe the military commissions are unconstitutional. So why are they trying to dismiss the habeas petition in deference to the military commission?

Jawad is just one of the many Guantanamo Bay prisoners now stuck in a strange legal limbo while the new administration tries to decide what to do with them. ACLU lawyer Hina Shamsi told me today that she’s contacted the Justice Department twice in recent weeks asking them if they would clarify the current, seemingly nonsensical position in this case and withdraw the motion to dismiss Jawad’s petition. Both times it refused. “The government said it hadn’t yet decided its position,” said Shamsi.

Given that President Obama has been in office less than a month, that might not seem so surprising. But for 23-year-old Jawad, an illiterate Afghan who’s been at Guantanamo Bay for more than six years — more than a quarter of his entire life — the consequences are disastrous.

Already, Jawad, who even the U.S. military commission ruled had been tortured, has tried to kill himself. Since then, he’s been subjected to the military’s so-called “frequent flyer” program – a sleep deprivation technique that led him to be moved 112 times, every 3-4 hours, for 14 days, according to the ACLU. Not surprisingly, an independent psychiatric examination found that he’s now suffering from intensive psychological impairment.

Interestingly, the government has insisted on holding Jawad at Gitmo all these years even though he’s never been accused of being a terrorist or associated with terrorist organizations. He was accused of tossing a grenade at a U.S. military vehicle that was, at the time, invading his country.  Although he eventually confessed to interrogators, a U.S. military judge later ruled that his confession was tainted by his torture.  In fact, even the military prosecutor assigned to the case resigned in protest last September because he thought the evidence against Jawad was so weak, and the evidence that Jawad was tortured into confessing so strong.

Of course, it can’t be easy for the new Obama administration to have to decide within weeks how to handle cases such as Jawad’s, or those of the Chinese Uighurs that Matt wrote about earlier. Still, the egregiousness of their ongoing situations should be lighting a fire under the Justice Deparment’s lawyers — justice in limbo is just not good enough.