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Mohammed Jawad: Judge Orders Gitmo Detainee's Release

NEDRA PICKLER   07/30/09 05:44 PM ET   AP

Gitmo

WASHINGTON — A judge ruled Thursday that one of the youngest detainees brought to Guantanamo Bay is being held illegally and must be released – 6 1/2 years after the detainee from Afghanistan says he was tortured into confessing at age 12.

U.S. District Judge Ellen Huvelle's order does not end the case of Mohammed Jawad, however. Deputy Assistant Attorney General Ian Gershengorn told the judge that as the State Department negotiates with the detainee's home country for his return next month, the Justice Department also is pursuing a criminal investigation.

Gershengorn said Attorney General Eric Holder has not yet decided whether to indict Jawad, who allegedly threw a grenade that wounded two U.S. soldiers and their interpreter in December 2002. That means it's possible he could be brought to the United States for a criminal trial.

Huvelle said she had no authority to prevent an indictment. But she encouraged prosecutors to think hard about problems with the case, including Jawad's mental competency to stand trial and the fact that someone arrested as a juvenile has already been incarcerated so long. She told the Justice Department attorneys she would be happy to discuss her concerns directly with the attorney general if he's interested.

"After this horrible, long, tortured history, I hope the government will succeed in getting him back home," she said, adding that Jawad was not given the humane treatment of a juvenile arrested in the United States. "Enough has been imposed on this young man to date."

Jawad's age is uncertain because he was born in a refugee camp in Pakistan and there are no records of his birth. He says he was about 12 when he was arrested in December 2002, but the Pentagon says a bone scan shows he was about 17.

He says he only confessed to throwing the grenade after Afghan officials threatened to kill him and his family. A military judge agreed that Jawad was tortured and ruled in October that the confession couldn't be used in military tribunals at Guantanamo.

Jawad's attorneys took their case for his release to the federal court in Washington, where they argued that he continued to be subjected to torture at Guantanamo and has been diagnosed with post-traumatic stress disorder. They say he's been isolated with only minimal contact with other inmates, subjected to sleep deprivation, and has tried to commit suicide.

The Justice Department agreed earlier this month not to use any of Jawad's statements during interrogations by Afghan or U.S. officials in the case in the Washington courtroom because of the torture allegations.

The Justice Department said Friday it would no longer hold Jawad as a wartime prisoner. But officials wanted to keep him at Guantanamo while conducting a criminal investigation, saying the government had new eyewitness evidence and would speed up a grand jury investigation.

Jawad's attorneys responded that the United States has no authority to continue holding him at the U.S. naval prison in Cuba during a criminal probe and asked Huvelle to allow him to return to Afghanistan immediately.

Huvelle gave the government three weeks to fulfill legal requirements to report to Congress about any national security risks and diplomatic agreements for Jawad's release, then "promptly" transfer him. She didn't give a specific date for his release, but ordered the government to report back to her by Aug. 24 and said she hoped by then he would be on a trans-Atlantic flight.

Jawad's attorneys asked that he not be shackled or hooded on his flight and indicated they would prefer to have Afghanistan pick him up rather than have the U.S. military handle his transportation. Huvelle said she didn't have authority to determine the details of his transport, but ordered that he be treated humanely, consistent with the military's security and operational concerns.

If prosecutors were to indict Jawad, they must notify Congress and wait 45 days before bringing him to the United States for trial. It's unclear where Jawad would be during that time – whether he would remain at Guantanamo longer or possibly be incarcerated in Afghanistan, a possibility that Gershengorn didn't rule out despite objections from Jawad's attorneys who say they've been assured by Afghan officials they would set him free.

Only one Guantanamo detainee has been brought to face trial in a U.S. criminal court. Ahmed Ghailani was sent to New York in June to face charges he helped orchestrate two bomb attacks on U.S. embassies in Africa in 1998.

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Filed by Susan Crile  |