By William Fisher
A federal judge last week excoriated government lawyers for advocating the continued detention of a detainee at Guantanamo Bay after his “confession” was ruled inadmissible because it was extracted through torture.
Calling the case “an outrage,” U.S. District Judge Ellen Segal Huvelle urged the lawyers to “let him out. Send him back to Afghanistan.”
She also questioned the Justice Department’s (DOJ) ability to produce any evidence to justify a trial to determine whether the detainee, Mohammed Jawad, could be held as an enemy combatant.
Jawad was arrested in Afghanistan in 2002 for allegedly throwing a grenade at two U.S. soldiers and their interpreter. He was first imprisoned at Bagram Air Force base, and then illegally rendered to Guantanamo (GITMO).
According to his lawyers, he was subjected to repeated torture and other mistreatment and to a systematic program of harsh and highly coercive interrogations designed to break him physically and mentally. Eventually, he tried to commit suicide in his cell by slamming his head repeatedly against the wall.
The Afghan government recently asked the U.S. government to return Jawed and suggested he was as young as 12 when he was captured.
The judge was particularly harsh in her criticism of the U.S. government’s case.
Among her comments: “Seven years and this case is riddled with holes…This guy has been there seven years, seven years. He might have been taken there at the age of maybe 12, 13, 14, 15 years old. I don't know what he is doing there…Your case has been gutted…The case is in shambles…This case is riddled with holes...The United States Government knows it is lousy…This is a case that's been screaming to everybody for years…This is a case unlike all the rest of them. This does not involve intelligence. This does not involve any particular high-level government agency doing the intelligence at all. Did anybody see him do it or didn't they see him do it?”
She concluded: “The time has come to face the music...for seven years the guy sat down there, being subjected to the conditions that the United States Government has subjected him to since the day they picked him up in Afghanistan…It is not fair to keep dragging this out for no good reason...We're not going to wait and wait until you come up with another piece of evidence…This case is an outrage to me…There is only one question here, did the guy throw a grenade or didn't he throw a grenade. That's the issue. Right? If he didn't do that, you can't win. If you can't prove that, you can't win.”
The judge denied the government’s request for a delay in Jawad’s habeas corpus hearing, but gave the lawyers until later in August to produce new evidence.
DOJ lawyers have indicated they may decide to bring Jawad to the U.S. for a criminal trial. They asked Judge Huvelle not to release Jawad until criminal investigators can review the allegations against him. Attorney General Eric Holder has ordered that investigation to be put on an “expedited” basis.
Jonathan Hafetz of the American Civil Liberties Union, one of Jawad’s lawyers, said he did not believe the government could come up with new evidence to support Jawad’s trial in a federal court.
He told us, “It is troubling that after admitting it tortured Jawad and illegally imprisoned him for nearly seven years, the government is not sending him home to Afghanistan right away, as law and justice demand, but is considering prolonging is unlawful imprisonment. We expect that, upon review, the Justice Department will conclude, as it must, that there is no credible or reliable evidence against Jawad, and end this travesty.”
We also discussed the case via email with Jawad’s military defense counsel, Major David Frakt. He said it was “disappointing that the Justice Department has not yet been able to conclude the review that President Obama ordered his first week in office.” However, he added, “As the government has now conceded, there is no legal basis to detain Mr. Jawad under the law of war, so he must be repatriated immediately to Afghanistan. The Afghan government has requested Mr. Jawad to be returned, and he is eager to be reunited with his family. Eighty months in illegal detention is enough.”
On July 1, the ACLU filed a motion to suppress Jawad’s statements, and the Justice Department said it would not oppose that motion. The judge in Jawad’s military commission trial had previously suppressed statements made by Jawad to Afghan and U.S. officials following his arrest, finding that they were the product of torture.
According to Jawad’s lawyers, following his arrest, he was subjected to repeated torture and other mistreatment and to a systematic program of harsh and highly coercive interrogations designed to break him physically and mentally. At Guantanamo, Jawad tried to commit suicide in his cell by slamming his head repeatedly against the wall.
The lead military prosecutor in Jawad’s Military Commission case, Lt. Col. Darrel Vandeveld, resigned in 2008, charging that “There is no credible evidence or legal basis to justify Mr. Jawad’s detention in U.S. custody or his prosecution by military commission. There is, however, reliable evidence that he was badly mistreated by U.S. authorities both in Afghanistan and at Guantanamo, and he has suffered, and continues to suffer, great psychological harm. Holding Mr. Jawad for over six years, with no resolution of his case and with no terminus in sight, is something beyond a travesty.”
Vandeveld said the U.S. government was not providing defense lawyers with the evidence it had against their clients, including material that might be helpful to the defense.
He said the absence of such evidence would likely lead to their being wrongly convicted. Testifying that he went from being a "true believer to someone who felt truly deceived" by the tribunals, he said the system in place at the U.S. military facility in Cuba was dysfunctional and deprived the accused of “basic due process.”
Three other military commission prosecutors have resigned under protest, raising questions about the fairness of the system.
During his first week in office, President Barack Obama signed an executive order to close the Guantanamo detention center within a year. He also set up task forces to review the case of each detainee still being held there and to make recommendations regarding their future disposition.
There are currently 241 prisoners at the Cuban base. More than 800 have been detained at the base since 2001. More than 500 have been released. While a few have been released recently, the Obama administration – like its predecessor – has had difficulty finding countries willing to accept prisoners classified by U.S. officials as safe to release.
That process has been made more difficult by the unwillingness of Congress to accept any detainees for resettlement in the U.S. Lawmakers have even opposed bringing GITMO prisoners to the U.S. for trials in federal courts.
Currently the administration’s task forces are working on plans to modify the military commissions to afford defendants more due process, and also considering what to with detainees it says cannot be tried but who are too dangerous to release. Human rights advocates have objected to both solutions.