The Obama administration on Friday signaled it will try to bring a second Guantanamo Bay detainee to the United States for trial in criminal court.
Federal prosecutors told a court Friday they no longer plan to hold Mohammed Jawad as a wartime prisoner.
Instead, they wrote in a court filing, they plan to begin a criminal investigation. That would most likely mean bringing him to criminal trial in the United States.
Even if that happens, Jawad is not likely to be transferred soon. For the time being, prosecutors say, he will remain at the Navy-run detention center at Guantanamo Bay, Cuba, while an "expedited" criminal investigation is conducted.
To bring him to a U.S. courtroom, the government must first present enough evidence to a grand jury to indict Jawad and beat back any attempts by his lawyers to have Jawad freed before such an indictment is filed.
So far, the only Guantanamo detainee brought to face trial in a U.S. criminal court is Ahmed Ghailani, who was sent to New York in June to face charges he helped orchestrate two bomb attacks on U.S. embassies in Africa in 1998.
The Pentagon's top lawyer said Friday that the Obama administration has not abandoned the possibility of transferring some prisoners from Guantanamo Bay to a prison in the United States.
Defense Department general counsel Jeh Charles Johnson told the House Armed Services Committee that some suspected terrorists might be transferred to the U.S. for prosecution and others sent to a facility inside the U.S. for long-term incarceration.
Justice Department spokesman Dean Boyd said prosecutors are trying to build a criminal case against Jawad, but that does not ensure he will face an American jury.
The decision "does not resolve whether evidence would support a criminal prosecution," Boyd said.
Lawyer: Feds stalling
The government task force reviewing the cases of the 229 remaining Guantanamo inmates has previously referred Jawad for possible prosecution.
Boyd said that new evidence includes eyewitness testimony and that the agency will make a determination as soon as possible on whether to file criminal charges against Jawad.
One of Jawad's lawyers said the decision was a stalling tactic by the government to avoid losing the case.
Prosecutors "are trying to manufacture new excuses to whisk him away from a federal judge who is poised to rule against them," said Jonathan Hafetz, a lawyer for the American Civil Liberties Union, which is representing Jawad.
"They are just trying to play the clock and play the courts," Hafetz said. "There is no basis to hold him right now; he's being illegally detained."
Jawad has been detained at Guantanamo Bay for 6 1/2 years after being accused of tossing a grenade at a jeep in Afghanistan that wounded two U.S. soldiers and their interpreter.
Earlier this month, the Justice Department agreed not to use his confession after his lawyers argued the statements were the result of torture by Afghan authorities.
Jawad's attorneys say he was only about 12 years old at the time, although there aren't records of his birth in a refugee camp in Pakistan. The Pentagon says a bone scan shows Jawad was older, about 17, when he was arrested.
In October, a military judge threw out a confession made by Jawad following his arrest. The judge found that Jawad initially denied throwing the grenade and only admitted it after Afghan authorities threatened to kill him and his family if he didn't confess.
The military tribunals at Guantanamo Bay allow evidence obtained through coercion but not torture, leaving it to a judge to decide whether the line between coercion and torture has been crossed. In Jawad's case, the judge found the threats made by the Afghans were a form of torture. Jawad is now suing for his release in U.S. District Court in Washington.
Afghan officials turned Jawad over to U.S. custody shortly after he confessed. He was questioned by U.S. officials overnight. The military judge also said Jawad's statements during that interrogation couldn't be used because they were tainted by the torture at the hands of the Afghans just a few hours earlier.
'Picture is worth millions of words'
Meanwhile, attorneys for another Guantanamo detainee asked Friday that he be given the unprecedented opportunity to testify in a U.S. courtroom after government lawyers admitted they did not record his previous appearance via videoconference as a judge ordered.
No one videotaped detainee Muhammed al-Adahi's testimony last month because of "oversight and miscommunication," the Justice Department revealed in a notice with the federal court in Washington filed Thursday night, a month after the hearing.
A transcript was publicly released, but al-Adahi's attorneys say that isn't enough. "As Abu Ghraib proved, a picture is worth millions of words," they wrote in a court filing asking for sanctions in response to the missing videotape.
U.S. District Judge Gladys Kessler had ordered the videotape as a compromise with al-Adahi's attorneys. They wanted him to testify in a public hearing via video teleconference from the U.S. detention facility in Cuba about why he should be released after being held for more than seven years on accusations that he associated with terrorists in Afghanistan.
Kessler initially said al-Adahi's June 23 video feed would be public, then reversed herself a day later because of concerns that classified information could be revealed. Instead, she ordered government attorneys to prepare the transcript and videotape, with classified information removed.
Wedding at bin Laden's house
The lightly redacted transcript was released three days later. In it, the 47-year-old married father of two said he spent his life working for an oil company and left his home country of Yemen for the first time in July 2001 to take his sister to Afghanistan for her arranged marriage. The wedding was at Osama bin Laden's house, and al-Adahi said he met the terrorist mastermind there for the first time and then again a few days later. He denied being involved with the Taliban or al-Qaida or fighting the United States.
Al-Adahi's attorney's said in a court filing that they repeatedly asked the Justice Department when the videotape would be released and were only told: "I'm looking into it."
Justice Department attorneys apologized to al-Adahi and the judge as they admitted there is no tape. They said they told the Defense Department about the judge's order, but the message was never passed on to Guantanamo Bay where the recording would have been made. And the FBI, which ran the video teleconferencing equipment, didn't record it either, the Justice lawyers said.
Al-Adahi's attorneys responded by proposing sanctions, with "the only true cure" being sending Al-Adahi home to Yemen. Alternatively, they proposed the judge bring al-Adahi to her courtroom in chains "so he can tell his story in person and in public" without cross-examination from the government lawyers.