updated 7/30/2009 1:22:26 PM ET 2009-07-30T17:22:26

A U.S. judge ruled Thursday that one of the youngest detainees brought to a naval prison at Guantanamo Bay, Cuba, is being held illegally and must be released.

U.S. District Judge Ellen Huvelle's order does not end the case of Mohammed Jawad, however.

Deputy Assistant Attorney General Ian Gershengorn told the judge that as the United States negotiates with the detainee's home country of Afghanistan for his return next month, the Justice Department also is pursuing a criminal investigation.

Gershengorn said Attorney General Eric Holder has not yet decided whether to indict Jawad, who allegedly threw a grenade that wounded two U.S. soldiers and their interpreter in December 2002. That means it's possible he could be brought to the United States for a criminal trial.

'Long, tortured history'
Huvelle said she had no authority to prevent an indictment, but she encouraged prosecutors to think hard about problems with the case, including Jawad's mental competency to stand trial and the fact that he has already been incarcerated for 6 1/2 years.

"After this horrible, long, tortured history, I hope the government will succeed in getting him back home," she said. "Enough has been imposed on this young man to date."

Huvelle gave the government three weeks to fulfill legal requirements to report to Congress about any national security risks and diplomatic agreements for Jawad's release. She ordered the government to report back to her by Aug. 24 and said she hoped by then he was on a trans-Atlantic flight.

Jawad's attorneys say he was only about 12 years old when he was arrested in December 2002, although there are not records of his birth in a refugee camp in Pakistan, so his age is uncertain. The Pentagon says a bone scan shows Jawad was older, about 17, when he was arrested.

Controversial interrogations
Jawad's attorneys argue he only confessed to throwing the grenade after Afghan officials threatened to kill him and his family. A military judge agreed that he was tortured and ruled in October that the confession couldn't be used in military tribunals at Guantanamo. The Justice Department agreed earlier this month not to use any of Jawad's statements during interrogations by Afghan or U.S. officials in the case in the Washington courtroom, either.

The Justice Department said Friday it would no longer hold Jawad as a wartime prisoner. But officials wanted to keep him at Guantanamo while conducting a criminal investigation, saying the government had new eyewitness evidence and would speed up a grand jury investigation.

Jawad's attorneys responded that the United States has no authority to continue holding him at Guantanamo Bay and asked Huvelle to allow him to return to Afghanistan immediately.

More on: Guantanamo

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