Adam Serwer of the American Prospect has been doing yeoman’s work as of late doggedly covering US detainee issues. His recent feature on former child soldier Mohammed Jawad is truly essential reading:
The story is an old one for Jawad’s lawyers — they believe the government knows it cannot justify holding him, but it doesn’t want to let him go. More galling to Jawad’s defense counsel is the fact that the government sought to include Jawad’s confessions to Afghan authorities, obtained through torture, as evidence against his release. In July, his lawyers filed a motion to suppress the confessions, which made up about 90 percent of the evidence against him. This time, the government chose not to challenge the motion — but failed to commit to his release. Judge Ellen Segal Huvelle eviscerated the government for having little cause to continue holding him. “This guy has been there seven years — seven years,” Huvelle said. “Without his statements, I don’t understand your case. I really don’t.”
At the core of the dispute over the detention of suspects like Jawad is whether or not there are, as President Barack Obama claims, “detainees at Guantánamo who cannot be prosecuted yet who pose a clear danger to the American people.” This is the so-called “fifth category” of detainees — exactly how many there are, the government has yet to determine. (Assistant Attorney General David Kris told Congress in July that half of the Guantánamo detainees’ cases had been reviewed, and none had yet been put into the “fifth category.”) “There will be some, who we have picked up and who are in Guantánamo ? who for a variety of reasons can’t be prosecuted,” says former CIA counsel Jeff Smith. “We have convincing intelligence information, but it is not enough to prosecute them.”
[Maj. David Frakt, one of Jawad’s lawyers] isn’t buying the administration’s assertion about the necessity of preventive detention — the practice of imprisoning suspected terrorists even in cases where the government cannot prove they have committed crimes. “When you look at the minimal amount of evidence required to convict someone of something like material support for terrorism, and they don’t even have that much, how is it that we know that these people are so dangerous?” he asks. Frakt’s concerns likely have a great deal to do with the way the government has treated his client — and not only because it tried to get his coerced confession admitted as evidence.
Montalvo says government officials “believe they have a guilty guy who tried to hurt Americans.”
But after seven years of failing to justify his detention, the government agreed on July 29 to release Jawad to return home to Afghanistan — though it implied he might still be subject to criminal prosecution.
Standard read-the-whole-damn-thing rules apply.