It wasn’t until late Friday afternoon that the Obama Justice Department, after years of wrangling over the fate of Mohammed Jawad, the Afghan boy arrested for allegedly lobbing a hand grenade at U.S. soldiers in 2002, admitted that it does not have enough evidence to continue to hold him indefinitely without trial under the laws of war.

The judge said the case had been "gutted" by the government's admission that torture was used to elicit confessions. There were also no reliable eye witnesses, not one.

The Justice Department evidently realized it wasn’t going to get very far in the habeas corpus case.

As you recall from my previous posts, DoJ now wants to take Jawad to criminal court.

A habeas corpus proceeding is a civil case, and the burden of proof is different than in a criminal prosecution. In a civil case, the government has to prove its case only by “a preponderance of the evidence.” A criminal prosecution, however, requires proof “beyond a reasonable doubt.” But that’s actually a higher burden of proof. So how could the government prove a criminal case against Jawad and not be able to prove its right to hold him in his habeas case?

The answer couldn’t rely on the strength of the evidence: eyewitness testimony that Jawad committed a war crime would be strong evidence that would probably support the government’s claim that it could hold him indefinitely under the laws of war. The only way the government’s latest claim makes sense is if it’s now saying that throwing a grenade at U.S. soldiers is not a crime of war, but an ordinary criminal offense. But if that’s the case, then why did the U.S. government hold him for six and a half years at Guantanamo Bay as an enemy combatant? And can it really have “newly discovered” reliable eyewitness testimony almost seven years after the crime occurred? Or is it just that the Department of Justice realized it wasn’t going to be able to string along this particular federal judge who’s clearly become exasperated by the flimsiness of the government’s case?

Here's the "new twist" in a nutshell:

“Until now, the Administration has been talking about detaining people who can’t be prosecuted,” said David Remes, a lawyer who represents more than a dozen detainees at Guantanamo, in an email over the weekend. [...] “Now the Administration is talking about prosecuting people who can’t be detained. This is a new twist.”
Seems the DoJ is all twisted up.
[...] Remes noted, they’re charging the men simply to avoid their release. In the cases of “enemy combatants” Ali al-Marri and Jose Padilla, for example, the government transferred them to the civilian court system to avoid facing a potentially adverse decision from the U.S. Supreme Court about the president’s power to continue holding them.

“As soon as the courts force the government’s hand in a habeas case, it simply lowers the boom on the detainee by prosecuting him,” says Remes. Either way, “they always get their man.”