Donald Rumsfeld called the Gitmo detainees "the worst of the worst." (Wikimedia Commons)

On Monday a federal court judge ordered the Department of Defense to release a 47-year-old father of two with a heart condition who it has imprisoned at Guantanamo Bay for the past seven years without justification. But like the other Yemeni men cleared for release but still held at the detention facility, it’s not clear when or even if Mohammed al-Adahi will get to go free.

Illustration by: Matt Mahurin

Obama administration officials on Wednesday boasted that they’d secured agreements from six European countries to accept Guantanamo detainees, although the United States itself has still refused to free any Guantanamo prisoners on U.S. soil. But since President Obama’s inauguration in January, the administration has not released a single prisoner to Yemen, although that country is willing to have them back and many would be happy to go there. (Some prisoners from other countries, such as the Uighurs from China, cannot be returned to their home countries for fear of persecution.) The administration has not stated its reasons, but said only that the State Department is negotiating with the Yemeni government over the prisoners’ return. At least three Yemeni prisoners since April have won their petitions for habeas corpus in federal court — meaning a judge has ordered that the government must let them go. (The government has cleared for release an unknown number of others.) So far, though, the Obama administration has not complied with those court rulings.

The United States has long been reluctant to return Guantanamo detainees to Yemen, where al-Qaeda is believed to be active. As a result, of about 550 prisoners released from Guantanamo by Bush officials, only 14 were from Yemen. But that trickle has slowed to a complete halt under the Obama administration, despite court rulings that the government hasn’t shown the men have done anything wrong or present any security risk.

Nearly 100 of the remaining 223 detainees at Guantanamo Bay are from Yemen. A government official on Wednesday said that negotiations are ongoing. Now that two U.S. federal courts have ordered at least three Yemeni prisoners freed, however, it’s not clear under what power the United States can continue to hold them.

“We appreciate that the United States has security concerns about Yemen, but continuing to hold these men without charge is morally wrong, is in violation of court orders, and it’s handing al-Qaeda a recruiting tool,” said Letta Taylor, a researcher for Human Rights Watch who wrote a report on the Yemeni detainees’ situation in March. “It creates its own sets of risks.”

The standoff between the court and the president in the Yemeni prisoner cases is another example of the executive branch ignoring the orders of the federal judiciary. In previous court cases, the government has refused to turn over evidence that it deemed a “state secret,” for example, even after a federal judge ordered the evidence be disclosed.

“The way our system is supposed to work is that if a federal district court orders that a branch of the government do something, they’re supposed to do it,” said John Chandler, a lawyer in Atlanta who represents al-Adahi in his court case and won his order of release on Monday. “I have every hope that they will. But they haven’t done anything yet. And he’s not the first one to be ordered released.”

In April, Judge Ellen Huvelle granted the habeas corpus petition of Yasin Muhammed Basardah, a Yemeni who was known to have provided information — often found to be unreliable — against other Guantanamo detainees. As a result, he faces security risks wherever he’s released.

And in May, Judge Gladys Kessler ordered the release of Alla Ali Bin Ali Ahmed, a Yemeni man arrested seven years ago as a teenager. The Pentagon claimed he was a terrorist based largely on statements from other Guantanamo prisoners whose testimony the judge deemed unreliable, as well as bits and pieces of other circumstantial evidence that Judge Kessler found were too “weak and attenuated” to support his continued detention.
Despite the federal court orders to release them, both men are still at Guantanamo Bay. And many more Yemenis have been cleared for release by the U.S. government, although in a strange twist, the government refuses to say how many and their lawyers are forbidden from divulging this information to the media. Among them is a 38-year-old orthopedic surgeon captured in Afghanistan in January 2002, who the Justice Department announced in March that it had cleared for release. Two more Yemeni prisoners at Guantanamo apparently committed suicide, according to the government.

“The government is designating the very fact of approval for transfer ‘protected’ information, meaning it can’t be disclosed to anyone who has not committed to obeying the protective order – which in turn prohibits the disclosure of ‘protected’ information,” explained David Remes, Executive Director of the nonprofit group Appeal for Justice, and a lawyer representing more than a dozen detainees from Yemen. “All of us are fighting that ["protected"] designation in our cases.”

Al-Adahi, who won his order of release on Monday, was captured by Pakistani troops while fleeing Afghanistan after the U.S. invasion. Because he was on a bus that also carried some wounded Taliban soldiers, the Defense Department claimed he was working for the Taliban and sent him to Camp X-Ray at Guantanamo Bay in January 2002.

An oil worker who lived in Yemen, Al-Adahi was originally suspected of acting as Osama bin Laden’s bodyguard, but he has consistently maintained his innocence. In June, he testified to a closed federal courtroom via video camera from Guantanamo, where he was chained to the prison floor and sweating in the Caribbean heat. Al-Adahi talked about his high blood pressure, and Guantanamo officials have confirmed he has heart problems.

According to declassified portions of the transcript, Al-Adahi testified that he was introduced to Osama bin Laden during the summer before the September 11, 2001 terrorist attacks while he was in Afghanistan, where he was bringing his sister, who the family had arranged to marry a Yemeni man in Kandahar. Bin Laden, then considered the de facto “governor” of Kandahar, was at the wedding celebration. Al-Adahi has consistently maintained that he never worked for bin Laden, and Judge Kessler apparently believed there was insufficient evidence to support the government’s claims. Her written opinion in the case has not yet been declassified, however, so the basis for her findings remain unclear.

“I did not fight the American alliance,” Al-Adahi testified. “I did not deal with Taliban or al-Qaeda. I am a working man in my country. I have never committed a crime.”
The Department of Justice referred questions about the repatriation of Yemeni detainees to the State Department. A State Department spokesman said he cannot comment on the situation of Yemenis who have brought their cases to federal court.

Of the 35 habeas corpus cases heard so far, federal courts have granted the petitions and ordered the release of 29 Guantanamo Bay detainees, finding the government has not produced enough evidence to keep holding them. In addition to the three Yemeni prisoners whose petitions have been granted, the petitions of three others from Yemen have been denied.

Update: Judge Kessler released this unclassified, redacted version of her opinion in the al-Adahi case late on Friday. In the opinion, she says there is no reliable evidence that al-Adahi was ever a member of or fought for al-Qaida or the Taliban, or provided either group any affirmative support.

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.”

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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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.