DOES THE JAWAD CASE SIGNAL A CHANGE?

Yesterday, Guantanamo Bay prisoner Mohammed Jawad's lawyers may have secured his freedom after seven years of imprisonment. The question is, does the government's behavior in this case signal continuity or change from the prior administration?

It depends who you ask. The Obama administration would certainly like you to think it represents change. Justice Department spokesman Matt Miller said yesterday that the administration had "made a dramatic break with the policies of the past by rejecting the use of torture ... and making it clear that we will not rely on statements obtained through such methods."

That may be giving themselves a little too much credit. The administration didn't voluntarily agree not to use the coerced confessions--it merely opted not to contest Judge Ellen Huvelle's suppression of them--so it initially tried to get them admitted. Some close to the case have suggested to me that this is at least partially the result of the Justice Department still being filled with Bush hires--but I couldn't say for sure one way or another.

The DOJ lawyers prosecuting the case were also not privy to the "new evidence" supposedly collected by the task force on detention that may lead to a criminal indictment--one of the reasons why Huvelle described the government's case yesterday as an example of how "one arm of the government doesn't know what the other arm is doing." But if Jawad is indicted before he makes it home--or indicted by the Afghans when he returns, I doubt that there will be much praise for the administration from the human-rights and civil-libertarian activists who fought for his release.

As for the implications for a future preventive detention policy--the Jawad case would have provided pretty poor terrain for the government to pitch its battle on--because the case against him was so tainted. Interestingly enough Assistant Attorney General David Kris told the Senate last week that the task force on detention has sorted through half of the detainees' cases--and none have been put in the so-called "fifth category" who can't be tried or released. The administration said there would be a preventive detention policy--but they may simply have wanted to preserve the option--and I think it's entirely possible that we could end up without one.

Reacting to the verdict, Lt. Col. Darrel Vandeveld, Jawad's onetime prosecutor in the military commissions who resigned in disgust and denounced the whole process as a sham, said in an e-mail that "I see no way that Jawad would have been released (and he still may not be) under the legal regime the Bush administration attempted to put in place, and I view the comments of the DOJ attorney at the habeas hearing today, about Jawad's possible prosecution, as a face-saving gesture."

Vandeveld added that "I do know the same DOJ lawyers, CIA attorneys, and other civilians remain in charge of the Commissions, and it's a facet of human nature to resist admitting failure the longer any kind of enterprise continues, particularly when these same people are the architects of the system."

-- A. Serwer

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