WASHINGTON — The Obama administration on Wednesday said that it was willing to send a young Guantánamo detainee home to Afghanistan after military and civilian judges banned almost all evidence against him as tainted by torture.
In a court filing, government attorneys, however, reserved the right to file new charges against Mohammed Jawad if they find evidence against him before he is released.
The Justice Department asked U.S. District Judge Ellen Segal Huvelle to grant them 22 days to release Jawad — seven days to notify Congress of the release plans, as current law requires, and then 15 days till a cooling off period mandated by law expires.
If no new charges are filed during that time, the government said it would promptly release Jawad and send him back to Afghanistan. Huvelle, who earlier had scheduled a hearing for Thursday in the case, did not immediately rule on the request.
The Justice Department filing came as another federal judge in Washington ordered the release of Kuwaiti detainee after concluding that the government did not have enough evidence to continue to hold him.
U.S. District Judge Colleen Kollar-Kotelly said Khalid al Mutairi should be released as soon as arrangements can be made for him to travel to a third country and congressional notification requirements have been met.
Kollar-Kotelly's full opinion was classified, but she ordered that an unclassified version be released in two days.
Justice Department spokeswoman Tracy Schmaler said the department's handling of the Jawad case showed that the administration has “made a dramatic break with the policies of the past by rejecting the use of torture without exception or equivocation.”
“It is clear that, in addition to serving as a recruiting tool for terrorists, the status quo left behind by the previous administration at Guantánamo is legally unsustainable,” she said. “We are working to close Guantánamo and develop a new legal framework to govern detention policy that is grounded in the rule of law and will strengthen our national security."
There was no immediate reaction to Kollar-Kotelly's ruling, which the Obama administration can appeal.
Jawad was originally charged with throwing a grenade that wounded two U.S. soldiers in Kabul. A military judge ruled last year, however, that his confession to Afghanistan authorities had been coerced by torture. A federal judge in Washington earlier this month told Justice Department attorneys that without the confession they had no evidence against him and should consider sending him home.
Jawad has been in Guantánamo almost seven years. U.S. officials say they believe he was 17 when first detained, but Afghan officials have said they think he was 12.
Jawad and Mutairi are the first detainees to face imminent release from Guantánamo since Congress imposed new restrictions on the Obama administration intended to make sure Congress is notified in advance of any plans either to bring Guantánamo detainees to the United States for trial or to send them to another country. Under those limits, passed as part of a supplemental Defense spending bill, the administration must provide 45 days notice of plans to bring a detainee to the United States for trial and 15 days notice of plans to send a detainee, such as Jawad, to another country.
The legislation also prohibits the administration from releasing Guantánamo detainees into the United States.