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.”

It’s also unclear whether the military judge in the case is empowered under the Military Commissions Act to accept guilty pleas, and to impose the death penalty, which the government is seeking, or whether a military jury must make those decisions.

Organizations such as the ACLU and Human Rights Watch have been saying the military commissions proceedings are a sham and that the defendants should all be tried in a federal court instead. President-elect Barack Obama has also indicated that he intends to close the Guantanamo Bay prison, where the five men are being held, and to shut down the military commission system. Today’s guilty pleas suggest that at least some of the defendants want nothing to do with an American system of justice, however — whether by military commission or in federal court.

“We don’t want to waste our time with motions,” Mohammed said, according to the Times. “All of you are paid by the U.S. government. I’m not trusting any American.”

The five men sent their statement to the judge just as the court was scheduled to hear a series of defense motions challenging the military charges against the defendants.

Khalid Shaikh Mohammed has said repeatedly that he wants to die and to be martyred. He’s also confessed to more than 35 terrorist attacks around the world. He and two of his co-defendants have been deemed competent to represent themselves, although they all have stand-by defense counsel to assist them.

Some advocates have expressed concern that KSM may be pressuring the other defendants to plead guilty along with him, and to all martyr themselves together.

Joanne Mariner, Terrorism and Counterterrorism program director at Human Rights Watch, noted that KSM’s adamant position in this case underscores why a credible justice system for suspected terrorists is important.

“Whether Khalid Sheikh Mohammed wants to be a martyr or not, the US justice system should not allow him to be,” she told me today. “It would degrade the justice system. We have an interest in maintaining the credibility of the justice system.”

According to William Glaberson of the New York Times, Judge Steven Henley, an Army colonel, plans to probe the vountariness of the pleas and make factual findings before he accepts them.

“We think it’s important for the judge not to rush to accept this,” said Mariner. “In our view there should be a psychiatric examination of the defendants. Given the years in CIA custody and the abuses they endured, there’s a strong possibility of post-traumatic stress. Even if the judge accepts the guilty plea, he should have hearings and time to decide on the penalty. Whether or not the defendants want that.”

Although the judge has indicated that he will hold hearings, it’s not clear how far he’ll get in this case. When Barack Obama assumes control of the Justice and Defense Departments in January, he is expected to disband the military commissions. What he will replace them with, however, remains a subject of much speculation and debate.