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Former Guantanamo detainee Mohammed Jawad plans civil suit

Mohammed Jawad and his attorney, Major Eric Montalvo

Mohammed Jawad and his attorney, Major Eric Montalvo

Numerous previous posts have discussed the possibility of civil suits against individuals involved in the detention and treatment of detainees. The BBC is reporting about a suit planned by Mohammed Jawad:

Mohammed Jawad was released and arrived in his native Afghanistan earlier this week. His family says he was 12 at the time of his detention in 2002.

He was in custody for seven years. The Pentagon, however, disputes his age.

Mr Jawad had been accused of injuring two US soldiers and their interpreter by throwing a grenade at their vehicle.

Much of the case against him had been ruled inadmissible by a US military judge in 2008.

Mr Jawad’s release was ordered last month by US District Court Judge Ellen Huvelle, who described the US government’s case against him as “an outrage” that was “riddled with holes”.

US government lawyers had said they were considering pursuing a criminal case against Mr Jawad, but no charges were filed.

The BBC explains that:

Mr Jawad’s lawyers said his family would sue for compensation in US courts, but added that he needed as much financial assistance as possible in the short term.

“The way forward right now is to avail the Afghanistan government and the US government of funding to help train him and get him back to normalcy,” Mr Jawad’s lawyer Major Eric Montalvo was quoted by the Associated Press news agency as saying.

“So to not give him any compensation – any way to help him back to civilisation – this is unacceptable,” Mr Montalvo told a press conference in the Afghan capital, Kabul.

“There is no difference between being confined in Guantanamo Bay or being left out in the wild without assistance,” he said.

Mr Jawad’s family say he was 12 when he was arrested in 2002.

The Pentagon says a bone scan showed he was about 17 when taken into custody.

Mr Montalvo, a US military lawyer, says Mr Jawad, who does not have a birth certificate, was between 12 and 15 years old at the time of arrest.

“I was an innocent child when they put me in prison,” Mr Jawad told The Associated Press in an interview.

His family and lawyers say Mr Jawad was subjected to torture while in detention.

Depending upon who the named defendant in such a suit would be, it seems to be that such suit could be brought under the Alien Tort Statute, which provides:

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

Under such suit, the court could be required to come up with a very specific legal interpretation of the meaning of torture under the Convention Against Torture and Title 18, ยงย 2340 of the U.S. Code.

(HT: Institute for International Law & Politics)

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.