A couple of months ago, President Obama said he would continue to indefinitely detain terrorism suspects when there's not enough admissible evidence to try them in civilian or military court. At the same time, he promised "clear, defensible, and lawful standards for those who fall into this category"; "fair procedures so that we don't make mistakes"; and "a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified." He emphasized that "prolonged detention" without trial "can't be based simply on what I or the executive branch decide alone."
This month Pentagon General Counsel Jeh Johnson revealed that even those detainees who are acquitted by federal courts or military tribunals can still be held in "prolonged detention" if the executive branch thinks releasing them would be dangerous and their habeas corpus challenges are unsuccessful. Tomorrow, at a hearing where a federal judge may order the release of Guantanamo detainee Mohammed Jawad, the third shoe of this due-process pantomime horse could drop: Even if a detainee successfully challenges the grounds for his detention in federal court, he still won't be released.
Although the Pentagon continues to detain 17 of the 26 Guantanamo detainees who have won their habeas corpus challenges, The New York Times reports, its excuse is that "it has been unable to find countries willing to take the men that will provide adequate human rights and security assurances." Jawad's case is different, since the Afghan goverment is demanding his return. If U.S. District Judge Ellen Segal Huvelle concludes there are no legal grounds for detaining Jawad and the Obama administration still refuses to release him, its defiance of judicial authority will be blatant, and the president's promises of independent review and "fair procedures" will be revealed as empty.
Jawad, who may have been as young as 12 when he was arrested in December 2002, was accused of throwing a hand grenade that injured two American soldiers and a translator. The officer who was originally assigned to prosecute Jawad before a military commission resigned from the case in protest over the way it was being handled. He now supports Jawad's release, saying he appears to be innocent. Jawad's military prosecution fell apart when the judge ruled that the main evidence against him, statements obtained through torture and death threats, was inadmissible. The Obama administration nevertheless continued to use those statements to fend off Jawad's habeas corpus challenge until two weeks ago, when it suddenly reversed course and admitted that it could not justify his detention as an enemy combatant. At that hearing Huvelle called the case "an outrage," saying it was "riddled with holes." She told the Justice Department's lawyers "it is not fair to keep dragging this out for no good reason."
Now the Obama administration says it has to keep holding Jawad because it may decide to try him in federal court. It claims to have found "multiple eyewitness accounts that were not previously available." Should Jawad be acquitted, of course, he can still be transferred back to military custody and held in "prolonged detention," unless he files another successful habeas corpus petition, in which case he can be transferred to civilian custody again for trial on a different charge. And so on.