Criminal Charges Against Detainee Weighed
Prisoner Would Be 2nd Brought From Guantanamo to U.S. for Federal Trial

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.

"This means they are ready to go," Silliman said.

If brought to the United States, Jawad would follow Ahmed Ghailani, who was flown to New York last month to face criminal charges in the 1998 bombings of U.S. embassies in East Africa.

A prosecution of Jawad would have to rely almost entirely on accounts of eyewitnesses placing him at the attack.

In court filings, the government has alleged that Jawad threw a grenade into a vehicle that was on a humanitarian mission, seriously injuring two U.S. Special Forces soldiers and their Afghan interpreter Dec. 17, 2002.

Jawad was also accused of being associated with a group tied to Osama bin Laden.

The government had planned to try Jawad for the attack in military tribunals. But that case evaporated upon close inspection by military prosecutors and judges who grew concerned about how Afghan police and U.S. forces obtained his confessions the night of the attack.

A military judge, Army Col. Stephen R. Henley, threw out the statements to Afghan police after he determined that the interrogators had threatened to kill Jawad or his family if he didn't confess.

The judge also tossed out statements that Jawad gave that night to U.S. soldiers because his fears of being harmed "had not dissipated."

The case received publicity last year when a military prosecutor quit his post over Jawad's treatment. The former prosecutor also called for the detainee's release.

Staff writer Peter Finn contributed to this report.

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