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.”

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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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.