U.S. says it's willing to send young Afghan detainee home

McClatchy NewspapersJuly 29, 2009 

WASHINGTON — The Obama administration on Wednesday said it plans to release a young Guantanamo detainee after military and civilian judges banned almost all evidence against him that they ruled was extracted through torture.

Government attorneys, however, reserved the right to file new charges in federal court against Mohammed Jawad if they find evidence against him before he's freed.

The Justice Department asked U.S. District Judge Ellen Segal Huvelle to grant them 22 days to release Jawad — seven days to notify Congress of the release plans, as current law requires, and then 15 days until a cooling off period mandated by law expires.

If no new charges are filed during that time, the government said it would promptly release Jawad. The Justice Department didn't specify where it would send him, but his lawyers say they expect he'd be returned to his native Afghanistan.

In a separate decision, another federal judge ordered a second detainee released late Wednesday because the government didn't have enough evidence against him.

Justice Department spokeswoman Tracy Schmaler said the department's handling of the Jawad case showed that the administration has "made a dramatic break with the policies of the past by rejecting the use of torture without exception or equivocation."

"It is clear that, in addition to serving as a recruiting tool for terrorists, the status quo left behind by the previous administration at Guantanamo is legally unsustainable," she said.

"We are working to close Guantanamo and develop a new legal framework to govern detention policy that is grounded in the rule of law and will strengthen our national security."

Jawad's lawyers with the American Civil Liberties Union said that while they're hopeful that their client will be sent home soon, they think the government should move more quickly.

"We're cautiously optimistic that they appear closer to recognizing that Mr. Jawad needs to be sent home as soon as possible," said Jonathan Hafetz, a lawyer with the ACLU's National Security Project. "We remain concerned by some of the arguments they make with regards to the court's power to order an immediate remedy."

Jawad was originally charged with throwing a grenade that wounded two U.S. soldiers in Kabul. A military judge ruled last year, however, that his confession to Afghan authorities had been coerced by torture. A federal judge in Washington earlier this month told Justice Department attorneys that without the confession they had no evidence against him and should consider sending him home.

Jawad has been in Guantanamo almost seven years. U.S. officials think he was 17 when he was first detained, but Afghan officials have said they think he was actually 12.

If he's released, Jawad would be the first detainee transferred from Guantanamo since Congress imposed new restrictions on the Obama administration intended to make sure Congress is notified in advance of any plans either to bring Guantanamo detainees to the U.S. for trial or to send them to another country.

Under those limits, passed as part of a supplemental Defense spending bill, Congress must be told 45 days in advance of any plans to bring a detainee to the U.S. for trial and 15 days in advance of plans to send a detainee, such as Jawad, to another country.

The legislation also prohibits the administration from releasing Guantanamo detainees into the U.S.

The Justice Department's case against Jawad has underscored the difficulties the U.S. government faces in justifying its continued imprisonment of Guantanamo detainees.

President Barack Obama ordered the closure of Guantanamo by January, but the administration has struggled to come up with a way to either release or try detainees.

The Justice Department has said a task force convened by Obama to review Guantanamo cases considered Jawad's case and referred him for possible prosecution. Jawad's lawyers with the American Civil Liberties Union, however, accused the government of relying on delaying tactics and questioned whether any new evidence existed.

Jawad, meanwhile, has been moved to a section of the detention center reserved for detainees ready for release, and his lawyers said that the Afghan government is ready to dispatch a plane to Cuba to pick him up.

Jawad grew up in a refugee camp in Pakistan, where he left just months before his capture. His military judge ruled that Afghan interrogators tortured the youth into confessing soon after his arrest by threatening to arrest and kill his family.

In the second ruling, U.S. District Judge Colleen Kollar-Kotelly said Khalid al Mutairi should be released as soon as arrangements can be made for him to travel to a third country and the congressional notification requirements are met.

A spokeswoman said the department is reviewing the ruling. Kuwait has long sought Mutairi's release.

Mutairi was taken into custody in Pakistan in 2001 after he traveled to Afghanistan to build a mosque with money from his parents, and to provide funds for schools and orphans. The military described him in a 2005 document as a "hard-core extremist," and said he had been associated with al Qaida and the al Wafa fund, which the U.S. branded a terror organization.

Kollar-Kotelly's full opinion was classified, but she ordered that an unclassified version be released in two days. There was no immediate reaction to Kollar-Kotelly's ruling, which the Obama administration can appeal.

(Carol Rosenberg of the Miami Herald contributed to this article.)

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