Justice Department Considers Criminal Charges Against Guantanamo Detainee

By Del Quentin Wilber and Julie Tate
Washington Post Staff Writers
Saturday, July 25, 2009

The Justice Department signaled in court papers Friday that it was considering filing criminal charges against a Guantanamo Bay detainee who is alleged to have thrown a grenade at U.S. troops in Afghanistan.

The detainee, Mohammed Jawad, would be the second prisoner brought from the U.S. military facility at Guantanamo Bay, Cuba, to the United States for a federal trial if the Justice Department proceeds with a prosecution.

The court papers were filed in a federal lawsuit brought by the Afghan under the centuries-old legal doctrine of habeas corpus, which allows prisoners to contest their confinements before judges. Human rights groups have decried Jawad's detention, asserting that he might have been as young as 12 when he was captured.

Until recently, the government had justified holding Jawad by citing his confessions to Afghan police and U.S. soldiers.

But a federal judge was leaning toward tossing out those statements by adopting a military commission ruling last year that the confessions were obtained through torture.

Last week, the government abandoned the use of those statements, and U.S. District Judge Ellen S. Huvelle gave the government until Friday to file court papers laying out other evidence. The judge set a hearing for Aug. 5 and sharply criticized the government's case, saying it was "riddled with holes."

Instead of providing Huvelle new evidence, the government announced it was going to abandon the habeas fight and was examining whether it could charge Jawad with a crime in a U.S. court.

In a search of records, Justice Department lawyers wrote, authorities had discovered eyewitness accounts of the attack "not previously available for inclusion in the record" and videotaped interviews of witnesses.

Attorney General Eric H. Holder ordered that the criminal investigation be expedited, and Jawad was being transferred to another area on the Guantanamo Bay naval base, the lawyers wrote. The Justice Department stopped short of saying it had made a firm decision in his case.

Jonathan Hafetz, Jawad's attorney, said the court filing was "another example of the government playing tricks and games with the federal courts."

"They want to avoid a hearing before a federal judge who is poised to rule against them," said Hafetz, who works for the American Civil Liberties Union.

Scott Silliman, a national security law professor at Duke University, said the government would probably charge Jawad quickly.

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