the obama administration has been pretty awful on detainee issues. for all of obama's rhetoric and the executive order to close guantanamo, the administration's lawyers have pretty much continued to take the same absurd unitary executive-type positions in court. which is why i'm anxious to see what they do with mohammed jawad next month. military's case against him was always extremely flimsy, based almost entirely on his own tortured confession. it was so flimsy, they couldn't even hold it together before the military tribunal, where the normal standards of evidence are relaxed in favor of the prosecution.
now that a federal judge has ordered his release, the obama administration is considering filing criminal charges and transferring him to the u.s. for trial. but if they couldn't assemble a case that could meet the military commission's standards, they certainly don't have one that could stand up in a real court. all that would do is throw another delay in front of his release, a release that is now all-but inevitable.
so why are they bothering? the afghan government has offered to take him, there's no actual evidence to support holding him. plus, he may have been only 12 years old when he was detained. even if the prosecution's story was upheld by the court, it's not even clear that he would be criminally responsible for his actions.
the only reason i can think of for working this hard to hold him is to avoid the embarrassment of the entire case. it's been clear for a while that the entire military commissions system has been more about covering the ass of american personnel than national security or principles of crime and punishment. up until now, the obama administration has largely picked up the ass-covering where the bush administration left off. but as time passes, that gets harder and harder to do. the obama administration inherited a lot of these cases after its predecessor had already lost a bunch of court cases. i really hope they see the futility with this one and let mr. jawad go home.
