US Judge orders release of young Guantánamo detainee

A United States District Court judge ordered on Thursday the release of Afghan national Mohammed Jawad who has spent six and a half years in US custody in Guantánamo Bay, but delayed his release for three weeks for the US administration to report to Congress under recent legislation.

Mohammed Jawad has been held since early 2003 at Guantánamo following his arrest in Kabul in December 2002 after a grenade attack in which two US soldiers and their Afghan interpreter were injured. He was subjected to cruel interrogation techniques and detention conditions, both in Afghanistan and in Guantánamo, and was only given access to a lawyer five years into his detention. In December 2003, apparently driven to despair over his treatment in detention, he attempted suicide.

District Court Judge Ellen Segal Huvelle ordered Mohammed Jawad’s release to begin on 21 August. She also ordered the government to treat him “humanely” but declined to order that he not be hooded or shackled during his transfer out of Guantánamo, as his lawyers had requested.

The order for his release comes three and a half years after a petition was first filed in US District Court challenging the lawfulness of Mohammed Jawad’s detention. He was no older that 17 when he was taken into custody in Kabul, and Afghan authorities claim he was as young as 12. The USA did not take into account Mohammed Jawad’s young age at the time of the arrest, as it was required to do under international law.

Despite the ruling, Mohammed Jawad’s release is not yet guaranteed. Although charges that had been filed against him in 2008 for trial by military commission were withdrawn on 31 July 2009, the US Department of Justice has kept open the option of charging him and transferring him to the USA to face trial in a federal court. Judge Huvelle, who earlier this month berated the government for its handling of the case which she described as an “outrage”, warned that there would be serious obstacles to this action.

There are 229 detainees still held in Guantánamo – 95 per cent of the total held at the time of the presidential inauguration on 20 January this year. Moreover, 13 and a half months after the US Supreme Court ruled that the detainees are entitled to a “prompt” hearing to challenge the lawfulness of their detention, such hearings have only been held in a small proportion of cases. In five cases, federal judges have upheld the detentions, and in 29 cases, judges have ruled the detentions unlawful and ordered the detainees’ release.

Twenty of those 29 individuals remain in detention, however, some of them many months after their releases were ordered. They await completion of diplomatic negotiations over their transfers, or for the US government to change its policy of resisting release into the USA of detainees for whom no other solution is presently available.