After seven years of being locked in the Guantánamo Bay detention center, Mohammed Jawad was headed back to prison.
That was what one of Jawad's former attorneys, Maj. Eric Montalvo, realized soon after arriving in Afghanistan last month. In 2002, the United States detained Jawad because it believed he tossed a grenade at a U.S. convoy -- he was between 12 and 14 years old at the time. Because most of the evidence against him was gleaned through torture suffered at the hands of Afghan and U.S. authorities, Judge Ellen Huvelle granted Jawad's habeas corpus petition in July and ordered him sent back home. His legal team requested that one of them be allowed to accompany Jawad on his trip back to Afghanistan. Montalvo says that after all Jawad had been through, "We're pretty much the only adults he's been able to rely upon."
But the Department of Defense refused to allow any of Jawad's lawyers to accompany him on the flight. Instead, a coalition of human-rights groups involved in the original case helped raised money for Montalvo to take a separate plane to Afghanistan. Arriving several hours before Jawad, Montalvo went to the office of Afghan Attorney General Mohammad Ishaq Aloko on the afternoon of Aug. 24 to find out when and where Jawad was arriving. There, he learned of the arrangements the United States had made with the Afghan government: Jawad was to be sent to Pul-e-Charkhi prison, a recently renovated Soviet-era facility outside of Kabul. Alarmed, Montalvo persuaded Aloko to make the necessary calls and have Jawad released into his family's custody instead of throwing him back behind bars.
For Montalvo, the incident highlighted the U.S. government's lack of preparation in handling the repatriation of detainees. "From my perspective there wasn't a specific policy in place," he says. It's possible, Montalvo speculates, that the Afghan government may have only wanted to detain and assess him for security reasons because -- after years of detention -- "they didn't know what they were getting." But that would have been unacceptable, Montalvo says. "From their perspective, that sounds reasonable. ? That wasn't going to happen on my watch. ? Any period of re-incarceration in Afghanistan would be a travesty -- he's already suffered enough."
The possibility of re-incarceration wasn't the only issue facing Jawad. To Montalvo's surprise, neither the U.S. nor the Afghan government had set up any kind of social or financial support for Jawad, whose family is of modest means even by Afghan standards. Montalvo started lobbying nongovernmental organizations, the State Department, and the Afghan government to secure some kind of aid for his client. "If we don't do it, someone else we don't like is probably going to step in," Montalvo says. "This guy's going to be a poster child for the Taliban if we don't square away this situation."
For Montalvo and human-rights groups tasked with monitoring the status of detainees released from Guantánamo Bay, Jawad's near re-incarceration and the absence of a re-entry plan are a symptom of a flawed U.S. policy for handling the release of former terrorist detainees. Those who are not deemed dangerous enough to hold are sent home but left without adequate support for reintegrating into society -- which may result in former detainees turning to violence or extremism. A report co-authored by the International Human Rights Law Clinic and the Berkeley-based Human Rights Center found that released detainees often confronted social stigma, faced difficulty finding employment, and suffered mental and physical health problems. The study advocates for a resettlement and reintegration policy that, in partnership with host nations, would offer short-term assistance with financial, employment, and health issues -- similar to the re-entry programs aimed at helping formerly incarcerated people.
The circumstances of former detainees, however, are more complicated because those who are released may have been held for years without being charged with a crime. Defense Secretary Robert Gates has estimated the Gitmo recidivism rate as being between 7 percent and 11 percent, and the Pentagon's official assessment gives the rate a high upper bound of 14 percent. Meanwhile, the United States prison system has a recidivism rate of almost 66 percent. To human-rights groups, this discrepancy suggests that a fairly high number of those detained aren't actually terrorists.
"It's scandalous," says Stacy Sullivan, a counterterrorism adviser at Human Rights Watch. "These guys are held for years on end [and] have never been accused of a crime. Then, we declare them no longer enemy combatants, and release them, and give them nothing."
Under the Bush administration, detainees were separated into three categories: release, transfer, and hold. Those detainees marked for release were considered not to be dangerous, and the United States would receive "assurances" from foreign nations that the individuals would be given adequate support. Detainees determined to be dangerous or judged to have ongoing intelligence value were put in the "hold" category. The "transfer" category was far more nebulous and included both those who were deemed to be dangerous and those who couldn't be released to their home countries for fear of persecution. The Obama administration set up a detention task force that is currently reviewing the cases of the remaining detainees at Guantánamo Bay.
"There's often a temptation to want to simplify it into two categories -- the person either presents a threat or doesn't," says Matthew Waxman, the former deputy assistant secretary of defense for detainee affairs. "But when you're reviewing the cases inside the government, you see there's actually a wide spectrum of threat level, and for many of them, there's a lot of uncertainty."
The administration did not respond to requests for comment, so it's unclear in which category Jawad was placed. But one thing that was clear to Montalvo was that the government's neglect to ensure Jawad would receive adequate financial assistance served as proof that U.S. officials hadn't actually prepared for his return.
Montalvo says that Jawad wasn't headed to Block D -- the section of Pul-e-Charkhi where, according to Human Rights First (HRF), the United States has transferred 250 former Guantánamo detainees since 2007, often to the shock of their waiting families. The Afghan government has referred 160 of them for prosecution, often based on the same evidence that the United States found insufficient to hold them. These Afghan trials have such weak due-process standards that HRF described the outcomes -- acquittals and convictions -- as "arbitrary."
In practice, the host country has been responsible for providing financial support to released detainees. "Generally, the issue of reintegration was, for the most part left to the discretion of that home government," Waxman says. "Other times, the United States government would work with international organizations that might have an on-the-ground presence that would assist them." In the case of Lakhdar Boumediene, the petitioner in the landmark Boumediene v. Bush case that guaranteed detainee access to American courts, France provided him with financial support. Likewise, Bermuda provided temporary housing to the Uighurs recently resettled there. "The process up till now has to provide no support to the detainees themselves but perhaps provide some small assistance to the government taking them in," says Ken Gude, a human-rights expert at the Center for American Progress. "But it has not been significant." Noting congressional opposition to the Obama administration's plans for closing Guantánamo, Gude added that "from a political perspective," providing more financial assistance to former detainees "would be a challenge."
Political and financial costs aside, Waxman seems to agree with human-rights advocates in favor of reintegration programs. "The United States has an interest in ensuring that those who return to their home country or a third country don't re-engage or engage in terrorism or violent extremist activity," Waxman says. "Rehabilitation programs may be a useful tool in some cases for mitigating that threat."
Jawad's situation is somewhat unique because of the length of his detention, his age when he was originally captured -- and because Afghanistan is particularly lacking in infrastructure. "If you're going to the [United Kingdom], or another industrialized nation, there are certain resources, mechanisms, and support networks that will exist," Montalvo says. "Even if you wanted to get resources in place, they might not even exist in Afghanistan. Even if there had been a plan, it might not have worked out anyway." There's also an issue of sovereignty: The United States only has so much control over how other nations treat the detainees once they're no longer in U.S. custody.
In Jawad's case, the State Department ultimately agreed to meet with Montalvo and said it would consider requests that it provide Jawad with a monthly stipend and a "habitable residence," along with some kind of educational or vocational training.
"Guilt or innocence -- that's no longer relevant. If you're going to let him go, you have to support the effort," Montalvo says. "This is not just a Jawad-centric issue. Many more people may be coming back; how are we going to deal with that?"