Jawad’s case is particularly compelling given that he was arrested by Afghan authorites for allegedly throwing a hand grenade when he was as young as 12 years old, according to the Afghan government. His lawyers say the primary evidence against him was his “confession” to Afghan police after they threatened to kill him and his family if he didn’t say he committed the crime. His “confession” again hours later to U.S. authorities who were similarly trying to intimidate was determined by a U.S. military judge to have also been coerced, unreliable and inadmissible in his military commission case.

The Obama administration, however, in Jawad’s habeas case introduced that same tortured evidence to argue the government had a right to keep him imprisoned. It was only yesterday when, for the first, time, the government indicated a shift in position, by filing a document with the district court hearing the case saying it would not oppose the arguments of Jawad’s ACLU lawyers that the evidence should not be used against their client.

ACLU lawyer Jonathan Hafetz says he had no prior indication that the government would be changing its view in this case, and although he thinks it’s a hopeful sign, it’s not completely clear what it means.

“To me the question is, does this reflect a changed position on the use of coerced evidence generally, as we hope, or just another example of the government dropping a dubious position to avoid embarrassment and an adverse decision by a court?” Hafetz said.

All indications are that the judge in the case, Ellen Huvelle, would likely not allow the introduction of evidence acquired through torture. And an Office of Legal Counsel memo, which the ACLU requested from the government via a FOIA lawsuit yesterday, reportedly says that such Guantanamo detainees would have the right to object to use of such coerced evidence at their military commission trials.

And as Jess Bravin at  The Wall Street Journal reported, military prosecutors “have said involuntary statements comprise the lion’s share of their evidence against dozens of Guantanamo prisoners who could be tried.”

So was the Justice Department’s decision not to press for using the coerced confessions in Jawad’s case just a strategic move, or does it signify a real change in policy on the part of the Obama administration?

That remains to be seen. In the meantime, the government will soon have to report to the court whether it has any convincing legally admissible evidence that supports continuing to hold Jawad, or whether it will have to let him go.

As I’ve written previously, for some, that’s more than a quarter of their entire lives.

To keep the pressure on the administration to do something about this, Human Rights Watch today sent a letter to Holder, setting out some of the more gruesome details of the men’s cases — and the fact that their treatment appears to violate international standards of juvenile justice.

According to Human Rights Watch: “International treaty law and accepted juvenile justice norms require governments to provide children (defined as persons under the age of 18) with special safeguards and care.”  Juveniles are supposed to be held for the shortest time possible; their cases should be handled as “speedily as possible”; and rehabilitation should be the primary goal. They’re also supposed to be separated from adults, allowed contact with their families, and be given special care and rehabilitative assistance.

That’s not happening.

Among the men who were picked up as children and are still being held at Gitmo are Mohammad El Gharani, arrested when he was 15-years-old in a mosque in Pakistan on evidence a judge later said was too thin to justify holding him; Mohammad Jawad, detained at age 16 or 17 for allegedly throwing a grenade at a U.S. army vehicle in Afghanistan, to which he “confessed” under torture; Omar Khadr, a Canadian arrested at 15 and held in prolonged solitary confinement and used “as a “human mop” after he urinated on the floor during an interrogation session”; Mohammad Khan Tumani, held in solitary confinement and subjected to a range of physical and psychological abuses since age 17, and denied access to his father, also imprisoned at Guantanamo; and Fahd Abdullah Ahmed Ghazi, a Yemeni arrested at when he was 17 — who’s been at Gitmo for more than seven years and has been cleared to leave for over a year now but must wait for the United States to reach an agreement with Yemen for his return.

Not surprisingly, many have tried to commit suicide multiple times and in a variety of gruesome ways — slitting their wrists, banging their heads against walls — and show clear signs of dramatic mental deterioration.

They are, as I’ve noted before, among many men stuck in legal limbo as they await rulings on their cases. It’s a problem that was created by the arguably illegal indefinite detentention policies and extreme executive power claims of the Bush administration; unfortunately for President Obama, it’s now fallen to his administration to resolve.

Following up on his campaign promises to restore the rule of law, and under strong pressure from legal advocates such as the ACLU, Center for Constitutional Rights, Human Rights First and many others, Obama acted more quickly than many expected to shut down the commissions process.  Although the military judge must agree to the request — and in at least one case, the detainee’s lawyer is expected to object, seeking instead full dismissal of his case — it is unlikely that the military commissions will proceed.

While the world (and the media) was focused yesterday on the pomp and circumstance of the historic inauguration and the 10 black-tie inaugural balls that followed, the Obama administration was quietly getting to work:  Obama verbally requested a 120-day delay in the trials through Defense Secretary Robert Gates, and prosecutors then submitted a motion to the military judges.

The motion asks for a suspension “in the interests of justice” and to allow the new president “time to review the military commissions process, generally, and the cases currently pending before military commissions.”

Given his critical remarks of the military commissions process in the past and his pledge to close down the Guantanamo Bay prison, it’s widely expected that Obama will try to devise a new way to prosecute the detainees charged — either in federal court, or in some sort of new national security court.

Obama is also expected to issue an order to shut down the prison at Guantanamo Bay this week.

So says the ACLU, which is calling on the U.N. Committee on the Rights of the Child and the U.N. Special Representative for Children and Armed Conflict to stop the military commission war crimes trial of Omar Khadr, the 22-year-old Canadian national who the Bush administration wants to try at Guantánamo Bay for war crimes he allegedly committed when he was 15. Khadr’s trial is scheduled to begin Jan. 26.

Will Obama let it happen?

The ACLU wrote yesterday to the UNCRC, urging it to stand up to the United States and oppose the trial: “while such a public statement is an exceptional measure for the Committee to adopt, it is warranted by the urgent circumstances. If the trial of Omar Khadr goes forward, it would establish dangerous precedent for the United States and the entire world.”

The ACLU’s letters ask the organizations to call on President-elect Barack Obama to suspend the trial. But it raises an interesting question: Even if he stops the military commissions from going forward, what’s Obama going to do with these guys?

As I noted yesterday, a U.S. District Court judge Wednesday ordered another Gitmo prisoner, picked up as a 17-year-old, released. He’d been held for support he allegedly offered to Al Qaeda when he was 11.  And the judge found there wasn’t any credible evidence to support the charges.

Khadr would be very lucky if a judge in a habeas proceeding were to dismiss his case, too.  But what if a judge decides there’s enough evidence to keep holding him? And even if a court orders him released, as we’ve seen from the cases of about 60 other prisoners already cleared to leave, that doesn’t guarantee he’ll actually get to go home.

The ACLU has also protested the trial of Mohammad Jawad, who I’ve written about before, who’s been accused of throwing a grenade when he was 16.  He’s been stuck at Gitmo without a trial for six years. The ACLU is also representing him in a habeas case.

At this point, it’s hard to imagine that Obama will allow the military commission trial to go forward for either of these prisoners, given his criticisms of the system.  But the continued imprisonment of young men in their twenties accused of committing war crimes as children only adds to the pressure Obama will face about how to ensure justice is served for all these Gitmo prisoners once he takes over.

Given that Khadr’s trial is scheduled to start just six days after Obama’s inauguration, the new president will have a lot of decisions to make — fast.

Neither option sounds very good. But the question is becoming more urgent these days, as the Bush administration brings military commission charges against detainees arrested when they were teenagers, and as I’ve written before, insists on submitting a child’s confession as evidence, even though the judge ruled it was elicited by torture.

But then there’s the case of Mohamed el-Gharani, who was arrested at a mosque in Pakistan when he was just 14-years-old and held at Gitmo every since. Yesterday, a federal judge in Washington hearing his habeas corpus petition ordered his release.

U.S. District Judge Richard Leon found no evidence to support the government’s claim that el-Gharani is a dangerous “enemy combatant.”

A Chadian national, the young teenager was arrested at a mosque in Pakistan in October 2001. This was a time of particular hysteria among American authorities, who accused el-Gharani of being a member of Al Qaeda in 1998 — when he was only 11-years-old.

According to a BBC report, the U.S. government claimed el-Gharani stayed at an Al Qaeda-affiliated guest house in Afghanistan, fought in the battle of Tora Bora after the United States invaded Afghanistan, and worked as a courier for senior Al Qaeda operatives.

But Leon found no evidence to support the government’s claims.  He said U.S. officials had relied largely on information from two less-than-reliable detainees at the Guantanamo prison.

El-Gharani’s lawyers, from the British legal organization Reprieve, say there’s no evidence that their client ever even went to Afghanistan.

Leon is the same judge who in November ordered the release of five Algerians held at Gitmo, finding insufficient evidence to support holding them, either. Three of the men were released in December.

Mohammad Jawad was picked up in Afghanistan six years ago for allegedly throwing a grenade at an American convoy and is now imprisoned at Guantanamo Bay. In November, a U.S. military judge presiding over the military commission at Guantanamo Bay had excluded evidence from being heard because he determined that the boy had only confessed after Afghan police had threatened to kill him and his entire family if he didn’t.  Any subsequent confessions made by the 17-year-old during his interrogation by U.S. authorities — which according to his military lawyer involved him being hooded, handcuffed, blindfolded, strip-searched, sleep-deprived, yelled at and possibly drugged — were inherently unreliable and the product of torture, the judge concluded.

Among the evidence that the judge considered was the following statement from Jawad:

When I got to the place the Americans took me, I was very scared. During the interrogation, I was trembling and very cold. At one point, while the hood was covering my face, they put a bottle of water in my hand and told me to hold on tight to it with both hands. I did not know that it was a water bottle at the time. In my mind, I thought that it was a bomb and might explode…

I was so scared by the experience at the Afghan police station and by my experience with the Americans at the place they took me after the police station, that I had nightmares for several days after I got to Bagram prison.

Still, the government plans to argue that the Military Commissions Act allows the admission of such a confession even if it was initially obtained under torture, as long as it’s obtained again separately – in this case, under a brutal interrogation.

That Jawad was only a teenager at the time and he initially denied any involvement in the attack to Afghan and American authorities does not make his confession less reliable, according to the government.

Of about two dozen Guantanamo prisoners facing military commission charges, at least two were teenagers when they were detained by U.S. authorities, according to Human Rights First.

The arguments are scheduled to be heard on Tuesday morning in the U.S. Court of Appeals for the Federal Circuit.

Yesterday, five human rights groups sent President-elect Barack Obama a letter urging him to stop the prosecutions of child detainees.