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Jawad Could Be on His Way Home in Three Weeks

Mohammed Jawad, the Afghan boy seized for allegedly throwing a grenade at U.S. troops and imprisoned at Guantanamo Bay ever since, may be on his way home to Afghanistan within three weeks.

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.

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