Eric Montalvo, a U.S. Marine Corps major and Mohammed Jawad’s military defense lawyer, yesterday sent me a long note about the latest news on his client. Among the most interesting points is his characterization of the evidence the government now says it may use to bring a new criminal prosecution against Jawad.
Jawad, of course, is the Afghan arrested in 2002 around the age of 12, tortured into confessing (according to a U.S. military judge) and imprisoned ever since at Guantanamo Bay, where he was subjected to yet more abusive and “extreme” interrogations. Yesterday, D.C. District Court Judge Ellen Huvelle granted his petition for habeas corpus, making him the 28th Gitmo detainee ordered free to go of the 33 cases decided by a federal court so far. But as I wrote yesterday, the Obama administration is still saying that it may charge Jawad for essentially the same crime (he was alleged to have thrown a hand grenade that wounded two U.S. soldiers), although the government has never been able to produce any admissible or reliable evidence to support their case, as Huvelle has repeatedly emphasized.
Montalvo had this to say about the new “eye witnesses” that the government claims it can produce:
I have spoken with the government’s star witnesses and they all have a couple of things in common … 1) they know how to describe the day of the incident anywhere from two to five different ways placing themselves in different locations for each of this descriptions and witnessing or not witnessing different things … 2) they have all received some sort of U.S. government compensation from shoes and a trip to the United States to $400 for cooperation, which is a princely sum in Afghanistan.
According to Montalvo, officials from the government of Afghanistan, which has been demanding Jawad’s return home, “openly admit that the matter was not handled properly and they don’t even know what happened because the Americans in their lust for bloodletting snatched Jawad away before the incident could be investigated.” In the view of Montalvo and many other U.S. lawyers, if Jawad committed a crime in Afghanistan, that’s where he should be tried. “We have no place interfering with Afghan sovereignty,” wrote Montalvo.
In fact, it’s not even clear what crime he can be accused of in the United States.
In a conversation with University of California at Davis international law professor Diane Marie Amann yesterday, she told me that “if you look at murder and attempted murder statutes, they don’t contemplate extraterritorial jurisdiction” — meaning the U.S. government may not be able to prosecute if the crime was committed overseas. “The one statute that jumps out is the material support statute,” she said, which criminalizes “material support” to a terrorist organization, and is the law the Justice Department frequently uses against terror suspects charged in the United States. But given his age and the circumstances of Jawad’s arrest, “that seems unlikely,” she said. “I don’t see how they’re going to be able to take the same charges that they had levied in the Guantanamo system and put them in federal criminal court.”
So even if they have the evidence to bring a new case against Jawad, “those are the kinds of issues that Justice will struggle with now.”