Judge Slams Justice Department in Gitmo Child Soldier Case

Created: July 23, 2009 10:55 | Last updated: July 31, 2020 00:00

The last time I wrote about the case of Guantanamo detainee Mohammed Jawad, the government had just conceded that its primary evidence — his “confessions” — were the product of torture and inadmissible in court. But the government still wasn’t letting Jawad go. Last night I received a copy of the transcript of last Wednesday’s status hearing in the case, in which U.S. District Court Judge Ellen Huvelle chastised the Justice Department’s lawyers for trying once again to delay the case while it scrambles to find some admissible evidence against Jawad.

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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