Child Soldier Stuck in Legal Limbo at Gitmo

February 18, 2009 | Last updated: July 31, 2020

Not to be competitive about it or anything, but following up on Matt’s post, the case of Mohammed Jawad, the Afghan picked up at age 16 or 17 and tortured before he was transported to Guantanamo Bay, could rival even the Uighurs’ case for surreality.

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.