These days, when federal judges order Guantanamo detainees released, they seem to anticipate that the government may not actually follow through. That’s because the government also has the option of filing criminal charges in the regular justice system, instead:
A federal judge on Thursday ordered the release of a detainee at the U.S. military prison at Guantanamo Bay, Cuba, who was accused of attacking U.S. troops with a grenade in 2002.
The government will have at least until Aug. 21 to send the detainee back to Afghanistan or it could seek criminal charges against him in the attack. In a court filing last week, the Justice Department said it was mulling such a prosecution.
Mohammed Jawad, whose case has generated intense support from human rights groups, might have been as young as 12 when he was arrested by Afghan authorities and turned over to the U.S. military.
And the follow-through statistics don’t exactly inspire confidence:
Jawad is the 28th prisoner to be ordered released from Guantanamo Bay by a federal judge. On Wednesday, another federal judge, Collen Kollar-Kotelly, ordered the release of a Kuwaiti detainee, Khaled Al-Mutairi, 34. So far, 19 detainees who have been ordered released remain at the facility. The government has won orders — all from the same judge — allowing them to continue detaining five prisoners.
Leaving aside Jawad and Al-Mutairi, only 7 detainees have actually been released out of the 26 detainees who were ordered to be released.
That may explain why Judge Huvelle felt the need to advise the government that filing criminal charges against Jawad would probably be stupid and pointless. (I wonder why the judge would think that the Obama administration may be committed to seamlessly continuing the detainee policies of the Bush administration, committed to the point that they would pursue stupid and pointless charges rather than tacitly admit that a mistake was made, and move on.)
In the meantime, the government could also charge him with a crime under U.S. laws.
However, (U.S. District Judge Ellen S. Huvelle) strongly encouraged the government to think hard before bringing charges in a case with such a “long and tortured history.” (Presumably, the use of that word constitutes an act of deliberate black humor on the part of Judge Huvelle.)
She noted it would face obstacles under speedy trial rules and the fact that Jawad was a juvenile at the time of the attack. The government believes he was 17 when the attack occurred, according to military records.
Judge Huvelle was pretty contemptuous of the case the government presented in her courtroom when they opposed Jawad’s habeas corpus petition:
At a hearing two weeks ago, Huvelle sharply criticized the government’s evidence, saying it was “riddled with holes.”
The government is now claiming to have uncovered new evidence (suddenly, by magic, in the last few weeks, seven years after Jawad was captured):
In court papers, Justice Department lawyers have said they have discovered new evidence…
For some reason, Judge Huvelle isn’t overly impressed by that claim.
If 28 detainees have been ordered to be released from Guantanamo Bay by federal judges after hearing their habeas corpus petitions, what is the BushObama administration’s batting average at these habeas corpus hearings?
Not exactly a record that disciples of the “Worst of the Worst” school would like to see publicized:
David Remes, executive director of Appeal for Justice and a lawyer representing more than a dozen Guantanamo detainees, said on Wednesday that the courts have so far granted Gitmo prisoners’ petitions for habeas corpus in 28 out of the 33 cases heard.