Monday, May 25, 2009
Mohammed Jawad, detained at Guantanamo at age 12 or 18 (depending on whom you talk to), is stuck in limbo at Guantanamo until the Obama administration works out its new detention and trial policies for Guantanamo detainees. Jawad's attorneys, frustrated by the delays and potential changes in policies just as Jawad's military trial started going his way, sought an order last week from Afghan courts to release Jawad, reports the NYT. The lawyers argue that Afghanistan's constitution at the time of Jawad's capture did not allow for the extradition of prisoners to another country.
Any order from the Afghan courts could only exert diplomatic pressure--not legal pressure--against the U.S. and U.S. courts. But Jawad's move to seek relief from the Afghan judiciary is also calculated to keep public attention on this troubling case of the (perhaps) youngest detainee, caught between an old military tribunal system and a (potentially) new one.
The case highlights the new due process problems arising from the administration's review of detention policy and potentially revamped military tribunals. As Jawad's military attorney said in the NYT piece: "We were in a winnning posture in the trial, so to now come along and change the rules in the middle of the game, who knows what's going to happen." Given the options President Obama set out in his speech last week, it's not even obvious that Jawad will be subject to a revamped military tribunal--especially because there may not be evidence to convict him. (Jawad's military judge threw out his confessions last October, because Afghan police threatened to kill his familly.) If not, and if he's not moved to an Article III court, he could fall into Obama's fifth category of detainees--those subject to (apparently) indefinite detention.