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Former Guantánamo Prosecutor Condemns “Chaotic” Trials in Case of Teenage Torture Victim

Source:cageprisoners.com
Author:Andy Worthington
Date:16/01-2009

On January 13, in a declaration submitted to a Washington D.C. District Court in the case of Guantánamo prisoner Mohamed Jawad, Lt. Col. Darrel Vandeveld, a former prosecutor in the Military Commission trial system, delivered perhaps the most blistering attack on the US military’s detention program by a former member of the Pentagon’s team to date.

Speaking of the man he was once tasked to prosecute, Vandeveld said prisoner Mohamed Jawad’s continued detention is “something beyond a travesty,” and urged that Jawad be released given a “lack of any credible evidence.”

Some of this information was revealed in September 2008, after Vandeveld (who has served in Bosnia, Africa, Iraq and Afghanistan in the years since the 9/11 attacks, and has received several military awards) resigned as a prosecutor, complaining that “potentially exculpatory evidence” had “not been provided” to Jawad’s defense team, and that his accidental discovery of information relating to Jawad’s abuse helped convert him from a “true believer to someone who felt truly deceived.”

However, other information has never before been revealed in public, and Vandeveld’s declaration, in a habeas corpus review triggered by a Supreme Court ruling last June, constitutes the most sustained criticism of the Bush administration’s flagship trial system for terror suspects since Col. Morris Davis, the Commissions’ former chief prosecutor, resigned in October 2007. Davis explained that he had done so because of the politicization of the trial system, attempts to endorse the use of evidence obtained through torture, and the refusal of Pentagon chief counsel William J. Haynes II to accept that any planned trials could end in acquittals.

Vandeveld’s statement explained that he joined the prosecution department of the Office of Military Commissions (OMC-P) in May 2007, and described how, based on his civilian experience as a Senior Deputy Attorney General in Pennsylvania, he initially thought that Jawad’s case “appeared to be as simple as the street crimes I had prosecuted by the dozens in civilian life.”

Jawad, an Afghan national, was accused of throwing a grenade at a jeep containing two US Special Forces soldiers and an Afghan interpreter, while the vehicle was stuck in traffic in a marketplace in Kabul on Dec. 17, 2002. Vandeveld said he initially thought Jawad was guilty because he had been arrested “almost immediately” by Afghan police officers and members of the Afghan National Army, and had, it was claimed, “freely confessed” to throwing the grenade. In addition, he had apparently explained that he had been recruited by Hezb-e-Islami Gulbuddin, an Afghan insurgent group, had “claimed sole responsibility for the attack” and had “proclaimed his pride in conducting the attack,” and had also stated “that he would repeat the attack if given the opportunity.”

Backing up this confession was another statement, made a few hours later to US Special Forces soldiers from the same unit as those who were wounded in the attack. Vandeveld explained that, according to the interrogation report, the soldiers took Jawad to a forward operating base, where, after initial denials, he “eventually confessed to his role in the attack, this time on videotape recorded by US personnel.”

However, as Vandeveld began to investigate the evidence in Jawad’s case, he was shocked to discover that locating relevant documents was extraordinarily difficult, because the Commissions’ prosecution department was in a “state of disarray” and “lack[ed] any discernable organization.” He explained that he did not “expect that potential war crimes would be presented, at least initially, in ‘tidy little packages,’” such as those that would be “assembled by civilian police agencies and prosecution offices,” but was dismayed to discover that

the evidence, such as it was, remained scattered throughout an incomprehensible labyrinth of databases … or strewn throughout the prosecution offices in desk drawers, bookcases packed with vaguely-labeled plastic containers, or even simply piled on the tops of desks vacated by prosecutors who had departed the Commissions for other assignments. I further discovered that most physical evidence that had been collected had either disappeared or had been stored in locations that no one with any tenure at, or institutional knowledge of, the Commissions could identify with any degree of specificity or certainty.

As a result, Vandeveld was unable to locate crucial documents, such as Jawad’s videotaped confession and any information that would enable him to corroborate statements made by “two alleged eyewitnesses to the attack, who had allegedly told a US interrogator that they had personally witnessed Jawad throw the grenade.” Although he explained that it was “difficult” for him “to accept that the US military could have failed so miserably in six years of effort,” he began to doubt “the propriety of attempting to prosecute Mr. Jawad without any assurance that through the exercise of due diligence I could collect and organize the evidence in a manner that would meet our common professional obligations.”

Despite these misgivings, Vandeveld stated that he clung to a belief that the case could be prosecuted “ethically and successfully” until May 2008, when a succession of discoveries led to his dramatic departure.

The first took place after a new military defense attorney, Maj. David Frakt, was assigned to Jawad’s case. While attempting to gather records for Frakt following a request for discovery, Vandeveld obtained a copy of Jawad’s Detainee Incident Management System records, which log the prisoners’ every move. In the records, he discovered that Jawad had attempted to commit suicide on December 25, 2003 “by banging his head repeatedly against one of his cell walls.” After notifying the defense team of this incident, Frakt responded by pointing out that the records also “reflected 112 unexplained moves from cell to cell over a two week period, an average of eight moves per day for 14 days.”

After further investigation, Vandeveld and Frakt ascertained that Jawad had been subjected to a sleep deprivation program known as the “frequent flier program.” Vandeveld added that Jawad had mentioned this in a hearing at the start of May, but that he had dismissed his claims as an “exaggeration,” and explained, “I lack the words to express the heartsickness I experienced when I came to understand the pointless, purely gratuitous mistreatment of Mr. Jawad by my fellow soldiers.” He later discovered that, although the program had supposedly come to an end in March 2004, it “was carried out systematically on a large number of detainees at least until 2005,” and was regarded as being “part of the standard operating procedure at the time.”

Further disturbing revelations followed. Vandeveld discovered that media accounts and intelligence reports “indicated that at least three other Afghans had been arrested for the crime and had subsequently confessed, casting considerable doubt on the claim that Mr. Jawad was solely responsible for the attack.” He also discovered that, “[t]o the extent that any evidence indicated that Mr. Jawad was present at the scene and may have thrown the hand grenade, there was also evidence that he may have acted under duress and that he may have been drugged by unscrupulous recruiters.”

Delving deeper, Vandeveld found that Jawad’s statement in Afghan custody, which was presented as his “personal confession,” could not have been written by him because he was “functionally illiterate.” He ascertained that it had actually been written one of the Afghan police officers, who had written it in Dari rather than Jawad’s native language of Pashto. Moreover, when he obtained a summary of Jawad’s subsequent US interrogation — which “required a ludicrous amount of time” to obtain — he discovered “material differences” between the statements, “causing me and other prosecutors to wonder whether either could be used to establish the truth.”

Vandeveld explained that he then began to suspect that Jawad’s first statement “had simply been contrived by one of the Afghan policemen,” who “amateurishly sought to ‘authenticate’” it by adding Jawad’s thumbprint, but added that even this turned out to be a fake. The print was “sent to the Army’s crime lab for analysis, which concluded that [it] was not Mr. Jawad’s.”

Further investigation unearthed more evidence of systematic abuse. “[B]y sheer happenstance,” he “stumbled across” a summary of an interview with Jawad, conducted by an agent from the Army Criminal Investigation Division, “which had been added to the record of trial in a case where a guard at Bagram prison had been charged with the murder of a detainee.” From this interview, Vandeveld learned that Jawad “had experienced extensive abuse” while held at Bagram from December 2002 (when two prisoners died at the hands of US forces) to February 2003, which included being “shoved down a stairwell while both hooded and shackled.” The agent, who testified at a hearing in Jawad’s case last August, explained that Jawad’s statement “was completely consistent with the statements of other prisoners held at Bagram at the time, and, more importantly, that dozens of the guards had admitted to abusing the prisoners in exactly the way described by Jawad.”

Around the same time that he found the Bagram statement, Vandeveld also received a copy of a report by a Behavioral Science Consultation Team psychologist, who had “prepared an assessment of Mr. Jawad’s mental condition.” He was disturbed to discover that

The psychological assessment was not done to assist in identifying and treating any emotional or psychological disturbances Mr. Jawad might have been suffering. It was instead conducted to assist the interrogators in extracting information from Mr. Jawad, even exploiting his mental vulnerabilities to do so. This rank betrayal of a supposed healer’s professional obligations towards a detainee struck me as particularly despicable.

Vandeveld’s final disappointment concerned issues relating to Jawad’s age at the time of his capture, and to the charge of “attempted murder in violation of the law of war” which had been leveled against him. He explained that the “working assumption” in OMC-P was that, at the time of his capture, Jawad “was probably 18 or 19 and that he had lied about his age when questioned about this matter.” Initially, Vandeveld was not particularly troubled by the fact that “[v]irtually all the documentation concerning Mr. Jawad from his first year at Guantánamo list[ed] his age as approximately 17 years,” because OMC-P had charged Omar Khadr, who was 15 at the time of his capture, and “there seemed to be little concern about the propriety of charging minors as war criminals.”

However, after hearing Maj. Frakt’s “repeated assertions that child soldiers are entitled to be treated differently from adults, and that we are obliged by treaty to provide them with opportunities for rehabilitation and reintegration,” Vandeveld explained that he became “deeply bothered by the fact that no such opportunities had been afforded to Mr. Jawad, who, no matter what he was alleged to have done, retained his fundamental rights as a human being.”

He added that this focus on fundamental rights led him to have “serious concerns about the President’s decision not to apply the Geneva Conventions to the prisoners,” because “one of the oft-repeated rationales for adherence to the law of war is that it encourages one’s enemies to reciprocate.” As an adjunct, he criticized the tribunals and review boards that had been established at Guantánamo to review the prisoners’ cases because they had not provided any of them with a “meaningful opportunity to establish their status before a tribunal legitimately interested in ascertaining the truth,” and added that the records he reviewed in Jawad’s case and others “seemed to me to be the worst sort of a joke. I concluded personally that the hearings were little more than a heavily bureaucratized charade.”

Again inspired by Maj. Frakt’s arguments, Vandeveld acknowledged that he “undertook a more comprehensive review of the traditional laws of war,” revisiting doubts that had been expressed by “one of the more astute prosecutors,” when Jawad was first charged in October 2007. At the time, this prosecutor had “questioned whether attacking a lawful target (uniformed enemy soldiers) with a lawful weapon (a hand grenade) in the midst of an armed conflict could plausibly be considered a violation of the law of war.” Vandeveld explained that he was “unpersuaded” at the time, but that, by the summer of 2008, he had changed his mind, and was reassured when, in the trial of Salim Hamdan, the judge, Navy Capt. Keith Allred, had issued a panel instruction that was “virtually indistinguishable” from the position taken by Maj. Frakt.

As a result of all these factors, Vandeveld “became convinced that Mr. Jawad should not be prosecuted.” Aware that OMC-P would be unwilling to drop the charges and that, in any case, the administration “would continue to hold Mr. Jawad indefinitely as an enemy combatant, no matter the paucity or unreliability of the evidence asserted against him,” he attempted to negotiate a plea bargain, whereby Jawad would undergo “a short period of additional custody,” which would be “devoted to rehabilitating him and preparing him to reintegrate into civilian society.”

His efforts were, however, rebuffed by OMC-P, and after his loyalty “began to be viewed with the sort of suspicion harbored by only the truly embattled,” and the Chief Prosecutor, Col. Lawrence Morris, was “harshly dismissive, and even contemptuous of any proposal to resolve the case for less than a multi-year sentence,” he “asked to be permitted to leave the Commissions.” He concluded that, because it was impossible to certify that discovery had been made in a case as simple as Jawad’s, “no Commissions prosecutor could make such representations accurately and honestly” in any other case. He added:

The chaotic state of evidence, overly broad and unnecessary restrictions imposed under the guise of national security, and the absence of any systematic, reliable method of preserving and cataloguing evidence, all of which have plagued the Tribunals and Commissions since their inception … make it impossible for anyone involved (the prosecutors) or caught up (the detainees) in the Commissions to harbor even the remotest hope that justice is an achievable goal.

Since Vandeveld’s departure, Jawad’s case has continued to crumble. He explained that, in his opinion, “any chance at a successful prosecution was lost forever — and justifiably so,” when Judge Henley “ruled that it was not enough for the government to show that a defendant was an unlawful combatant; it also had to show that the alleged crime was a violation of the law of war.” This led to the government conceding that it “had no evidence to prove a violation of the law of war,” and any lingering hopes on the part of OMC-P that Jawad could be successfully prosecuted should have been dashed when Henley then “suppressed all of Mr. Jawad’s allegedly self-incriminating statements because [he] specifically found the statements to be the product of torture.”

As Vandeveld’s declaration was filed today, Hina Shamsi of the ACLU, which represents Jawad in his habeas review, told me, “This young man doesn’t represent a threat — even his former prosecutor says so.” She added that Vandeveld’s declaration “spells out exactly why the Military Commissions are such an affront to both the law, and to notions of decency. President-Elect Obama must follow through on his promise to close Guantánamo and scrap the Military Commissions, and he should do so quickly, with a comprehensive and transparent plan that ends this travesty.”

When I spoke to Lt. Col. Vandeveld, he told me, “I think there’s a good chance that Jawad’s case will be tossed out and that the District Court will order his release.” His sentiments echoed the closing words of his declaration:

Six years is long enough for a boy of sixteen to serve in virtual solitary confinement, in a distant land, for reasons he may never fully understand. I respectfully ask this court to find that Mr. Jawad’s continued detention is unsupported by any credible evidence … Mr. Jawad should be released to resume his life in civil society, for his sake, and for our own sense of justice and perhaps to restore a measure of our basic humanity.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed.

An edited version of this article was published exclusively on The Raw Story (as “Former Gitmo prosecutor rips military trials, calling interrogators’ practices ‘despicable’”).