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Wednesday, April 7, 2010 as of 11:14 AM ET

Foreign Policy

Mike Levine

Washington, DC


2nd Gitmo Detainee To Face Trial In U.S.?

July 24, 2009 - 5:13 PM | by: Mike Levine

The Obama administration could be one step closer to transferring a second Guantanamo Bay detainee to the United States to face prosecution in a criminal court.


Mohammed Jawad, accused of wounding two U.S. soldiers in a grenade attack in Afghanistan, has been detained at Guantanamo Bay for more than six years.


Jawad’s attorneys, many from the American Civil Liberties Union, have been fighting his detention through a habeas corpus challenge in U.S. District Court in Washington.


The new Obama Justice Department has said it’s holding Jawad under the auspices of the Authorization for Use of Military Force. But in documents filed today in federal court, the Justice Department says it will no longer be using that rationale to detain Jawad, and it will no longer oppose Jawad’s demand for release.


But that doesn’t mean Jawad will get his freedom. The government said it will now hold Jawad in a separate facility at Guantanamo Bay while the Justice Department completes a criminal investigation.


“Our decision not to contest the [challenge to Jawad's detention] … does not resolve whether evidence would support a criminal prosecution stemming from Jawad’s alleged attack on U.S. service members,” Justice Department Spokesman Dean Boyd said in a statement.


ACLU attorney Jonathan Hafetz called this a “despicable attempt to prolong” Jawad’s detention, accusing the government of trying to “manipulate the courts to get out from under … a federal judge who believes [the government] has no case.” In fact, Hafetz said this latest development amounts to the government “now admitting [Jawad] was unlawfully held for almost seven years.”


As for Jawad’s future, the Attorney General has ordered that the criminal investigation into Jawad’s actions continue “on an expedited basis,” according to the Justice Department.


The Justice Department has “multiple eyewitness accounts that were not previously available for inclusion in the record – including videotaped interviews – as well as third-party statements previously set forth in the government’s factual return” that could prove Jawad’s guilt, the filing said.


The Justice Department now needs to determine whether “the current eyewitness testimony and other evidence, or additional evidence that may be developed, would support a criminal prosecution stemming from the attack on U.S. service members,” the Justice Department said.


“We will make that determination as soon as possible,” Boyd said.


In the meantime, “the Department of Defense is taking steps to house petitioner at an appropriate camp facility at Naval Station, Guantanamo Bay, Cuba,” the Justice Department said.


Today’s filing does not rule out the possibility that Jawad could be transferred to another country altogether.


“In order to give effect to any order to transfer the Government will require a period of several weeks to prepare Mr. Jawad’s records so that they can be shared with the receiving government authorities and to engage with those authorities on logistical and other issues related to transfer arrangements,” the filing said.


In May, the Justice Department announced that Ahmed Khalfan Ghailani, a Tanzanian who had been held at Guantanamo Bay since 2006, would be prosecuted in federal court in the United States. He was transferred to New York last month.