The national security law/politics nexus has been buzzing this week about the implications of the government's handling of the status of Mohammed Jawad. His release was formally ordered today by federal judge Ellen Huvelle.
The facts of the case are straightforward. Jawad seemed to be a dangerous kid, what with his allegedly throwing grenades at U.S. troops and all, but the information the government has to prove this was obtained ... extracted ... during torture by the Afghans. Jawad grew up in custody. Military prosecutors couldn't make a case during the Bush Administration, and they weren't able to make a case during the Obama administration. Two weeks ago, the Obama administration conceded this.... but indicated that they weren't ready to let him go.
Under current federal law, and in keeping with the Supreme Court's guidance on detainees, the government's concession that Jawad was detained unlawfully should be the end of it -- the guy should be freed. Afghanistan wants to take Jawad in, and Jawad seems to want to go to Afghanistan.
The President does not want to let Jawad go. The executive branch has determined that Jawad would likely threaten U.S. interests in Afghanistan. The executive branch is entitled to make that determination. But whether that determination can be made after the government concedes that the detention itself was unlawful is... the question. Most legal scholars and the federal judiciary seem to think that the answers is no.
Catch 250: Obama has three choices. He can assert unilateral detention authority. He can yield to the judge, effectively sharing national security power with the judiciary branch. Or he can use Congress as an excuse to delay; Congress required the executive branch to jump through certain hoops before it could release certain categories of prisoners. The administration has chosen the latter course, the least objectionable of the three, because, for Guantanamo detainees, the administration agrees that Congress has the right to determine the mechanism through which those detainees (only) are disposed.The administration is scrambling to build an ex-post-facto criminal case against Jawad. It has about three weeks, roughly, to convince Huvelle that doing so is legal and proper.
What happens if the administration charges Jawad with a federal crime? Would a judge be tempted to throw the case out given Jawad's history and the administration's nose-thumbing at the judicial branch? How can the administration build a federal case against a guy who they couldn't -- wouldn't -- provide evidence against in a habeas hearing, which features a lower burden of proof for the prosecutors?
The legacy of this case will be severalfold: one, it will be a test of the principle that the law demands that some dangerous folks be released, and the administration can do nothing about it. Two: the judiciary wants nothing to do with torture-obtained evidence whatsoever, regardless of whether the torturers were affiliated with the U.S. government or not. Three: the political system, which Obama puts much faith in, has restricted a key executive power that the Bush Administration claimed to possess and one that the Obama administration had not formally renounced.
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is a former contributing editor at The Atlantic