Avoiding Court Fight, Obama Administration to Release Young Gitmo Detainee

The Obama administration may be on the verge of dropping charges against and releasing Guantanamo detainee Mohamed Jawad, widely described as one of the youngest detainees at the prison.  Arrested when he was possibly as young as 12, and no older than 17 or 18, on charges of wounding two U.S. soldiers with a grenade, Jawad has been in Gitmo for 7 years.  Nearly all the evidence against him has been thrown out in both federal court and in a military commission, as judges have determined it was obtained through torture.  And the government of Afghanistan, Jawad’s home country, has long said it is willing to send a plane for him and set him free there.

The Obama administration faced a hearing in federal court Thursday morning that could have forced it either to obey a judicial order to release Jawad or turn him into a test case for indefinite detention.  Instead, it appeared to decide Wednesday to release him.  I say appeared because there will be about a month before the government actually puts Jawad on a plane to Afghanistan, and it’s reserved the right to file new charges against him if it finds new evidence before then.

That might sound far-fetched, but the tactic of changing venue and charges at the last minute to avoid a judicial showdown – but keep a detainee in custody – has been used before.  Days before a probable loss before the Supreme Court on its over-2-year military detention of “dirty bomb” suspect Jose Padilla, in 2005 the Bush administration charged Padilla on new, lesser charges in civilian court.  And the federal judge in Jawad’s case, Ellen Segal Huvelle, was clearly wise to the possibility of a repeat, and so quickly ordered Thursday’s hearing on Jawad’s status:

…in angry remarks from the bench on July 16, [Huvelle] expressed suspicion that the government might try to keep her from ordering Mr. Jawad released. She said she would not delay her case so the government can “pull this rug from under the court at the last minute” by moving Mr. Jawad into the civilian criminal justice system.

So we’ll see what happens in the next month.  Of course, it’s hard to know what the Obama administration might have done if Afghanistan weren’t so ready and willing to take Jawad.  Congress has forbidden Gitmo detainees from being released into the U.S., and other countries have been slow to volunteer to take them.  Yet to be seen is what will happen judicially when the government invokes a right to indefinite detention, or when a detainee is ordered released and there’s nowhere to send him.

Separately today, another federal judge ordered a Kuwaiti detainee released.  As Chisun Lee wrote in the New York Times recently, detention policy is really being made case by case by federal judges.