Last week I noted that the Justice Department had finally agreed to stop using statements obtained through death threats and physical abuse in its case against Guantanamo detainee Mohammed Jawad, who was accused of throwing a grenade that wounded two American soldiers and an Afghan translator in 2002. Yesterday The New York Times reported that U.S. District Judge Ellen Segal Huvelle, who is hearing Jawad's habeas corpus challenge to his detention, had some harsh words for the government's lawyers at a July 16 hearing:
This case is riddled with holes….This case is an outrage to me….I'm not going to sit up here and wait for you to come up with some new evidence at this late hour. There is only one question here: Did the guy throw a grenade or didn't he throw a grenade?…If he didn't do that, you can't win. If you can't prove that, you can't win….It is not fair to keep dragging this out for no good reason.
Jawad, who may have been as young as 12 when he was arrested, has been detained for six and a half years. The Army Reserve officer who was once assigned to prosecute him agrees with Judge Huvelle, telling the Times, "The evidence suggests to me he is not guilty." As ProPublica reporter Chisun Lee notes in a Times op-ed piece published the same day, the government has become accustomed to such rebukes from federal judges reviewing detainees' habeas corpus petitions. The Justice Department has lost 26 of 31 cases decided so far, even though the judges are admitting hearsay evidence and applying a "preponderance of the evidence" standard that is relatively easy to meet. "If more than half the evidence tips in the government's favor," Lee writes, "then the detainee stays put—a far lower bar than 'beyond a reasonable doubt.'"
The transcript of last week's hearing is here.