Mohammed Jawad and the Military Commissions of Guantánamo

David J. R. Frakt Dwayne O. Andreas School of Law, Barry University

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During the last presidential campaign, then-candidate Barack Obama pledged to close the detention center at Guantánamo Bay, Cuba and suggested that he would end the use of military commissions and rely exclusively on federal courts to prosecute suspected terrorists. Upon assuming office, he revised his approach and announced a bifurcated policy, with a preference for the use of Article III courts, but with reformed military commissions remaining a viable option for alleged violations of the law of war. Accordingly, Congress passed the revised Military Commissions Act (MCA) of 2009, and a new Manual for Military Commissions was released in 2010. Two years into the Obama presidency, exactly one detainee, Ahmed Khalfan Ghailani, has been transferred to the mainland for prosecution in federal court, while two additional detainees have entered guilty pleas before the military commissions, bringing the total number of detainees convicted at Guantánamo to five.

Ghailani’s federal trial, on charges relating to the 1998 bombings of American embassies in East Africa, resulted in acquittal on all but one of the counts against him. For the remaining count, he received life imprisonment without parole. Although this equaled the stiffest sentence received in the military commissions, this near-acquittal has been cited by congressional proponents of military commissions as a reason to favor commissions. In fact, Congress recently barred the president from using any Defense Department funds to transfer detainees to the United States, even for the purpose of facing federal criminal charges, making military commissions the only current viable option for trial. A new round of military commissions will reportedly commence soon, with thirty or more detainees under consideration for prosecution.1

This new round of commissions should prompt a pause to consider why the previous round of commissions under the 2006 MCA was such a dismal failure, with only a handful of cases initiated and only three convictions of low-level figures. An analysis of the case of Mohammed Jawad, which straddled the Bush and Obama Administrations, provides some important insights. I was lead defense counsel for Jawad.

I.
Jawad’s Story

Jawad was captured in December 2002 in Kabul, Afghanistan, arrested on suspicion of involvement in a grenade attack that injured two U.S. soldiers and their interpreter. He was fourteen or fifteen years old at the time. The Afghan police threatened to kill him or a member of his family unless he confessed, then forced the illiterate teen to place his thumbprint on a written confession they prepared in Dari; Jawad spoke only Pashto. Jawad was the only one of several suspects arrested by the Afghans who was turned over to the United States. American forces subjected him to another highly coercive interrogation, and he eventually confessed again, although this second confession provided a completely different version of the grenade attack. The two conflicting coerced statements eventually formed the centerpiece of the prosecution’s case.

Jawad was taken to Bagram Prison for forty-nine days, then, in February 2003, transferred to Guantánamo. During his captivity, he was interrogated several dozen times and was the victim of inhumane treatment. This maltreatment included not only beatings, forced stress positions, and other physical abuse, but also psychological abuse such as repeated periods of physical and linguistic isolation. These measures so emotionally devastated Jawad that on December 25, 2003, he tried to commit suicide. In May 2004, Jawad was subjected to Guantánamo’s notorious sleep-deprivation program, euphemistically referred to as the “frequent flyer” program. Although he was a juvenile, and thus entitled to specific protections under the Child Soldier Protocol, the United States did not comply with this treaty. No effort was made to provide rehabilitation or to prepare Jawad for reintegration into society. For his first five years in U.S. custody, he was never permitted to speak to a lawyer.

In October 2007, Jawad was charged with three counts of “Attempted Murder in Violation of the Law of War” for his alleged involvement in the grenade attack. In January 2008, the charges were referred to trial. I volunteered to serve as a military defense counsel for detainees in February 2008 and, two months later, was assigned to represent Jawad. Over the next several months, I filed numerous motions seeking to have the charges dismissed or evidence suppressed, on a variety of grounds. By November 2008, the case against Jawad had begun to unravel. The lead prosecutor resigned, and the military judge suppressed the government’s primary evidence and rejected its entire theory of the crime.

In two separate rulings, the military judge suppressed all of the confessions to the Afghan police on the day of capture and any self-incriminating statements made to U.S. personnel later that night and the next morning. The Government appealed the latter ruling. While the Court of Military Commission Review was considering the appeal, President Obama suspended the military commissions in January 2009. While the commissions were on hold, I pursued a habeas corpus petition in U.S. District Court for the District of Columbia on Jawad’s behalf. In April 2009, Judge Ellen Segal Huvelle ordered the prosecution to respond on the merits to the petition. She later suppressed all of the prosecution’s evidence derived from Jawad, ruling that it was the product of torture. In late July, the Justice Department dropped its opposition to the habeas corpus petition and admitted that Jawad was not legally detainable. Judge Huvelle granted the writ and ordered Jawad released. In August 2009, Jawad left Guantánamo to be reunited with his family in Afghanistan.

There are five principal ways in which the Jawad case was representative of the problems that plagued the military commissions and ultimately doomed them to failure. In the following section, I briefly explore these problems.

II.
Distortion of the Law of War

One of the oft-repeated justifications for the use of military commissions is that detainees are not ordinary criminals but war criminals. This claim is based on a gross distortion of the law of war. Virtually all of the detainees charged under the 2006 MCA were charged with non-traditional war crimes—such as terrorism, material support to terrorism, and conspiracy—or with crimes specifically invented for the military commissions under novel interpretations of the law of war.

Jawad was charged with one of these invented crimes: “Attempted Murder in Violation of the Law of War.” The attempted murder part of the charge was straightforward and was based on Jawad’s alleged act of throwing a hand grenade. The “in violation of the law of war” part, however, was more complicated and was based on a novel and barely supported interpretation of international law. The government’s theory that Jawad had violated the law of war was based on his status as an unlawful combatant—a status shared by everyone who opposed the United States in the war on terror, according to the Bush administration. Essentially, because Jawad was not in uniform at the time of the alleged attack, he was deemed to be both an unlawful combatant—a necessary prerequisite for personal jurisdiction—and a war criminal.

According to the prosecution’s theory, every hostile act against U.S. or Coalition forces in the war on terror, even typical combat activities, violated the law of war. Several defense counsel, including me, challenged this theory. In all three cases in which military judges ruled on the issue, the judges rejected the prosecution’s theory. In September 2008, Jawad’s judge held that “the propriety of the charges in this case must be based on the nature of the act,” not on the status of the actor. He stated that the “government has not cited any persuasive authority for the proposition that acting as an unlawful enemy combatant, by itself, is a violation of the laws of war.” He ordered the government to prove “that the method, manner or circumstances used violated the law of war.”2 Although the prosecution admitted in a motion for reconsideration of this ruling that that they could not do so, the government refused to dismiss the charges.

III.
Reliance on Coerced Statements

One of the principal bases for criticism of the military commissions has been the potential admissibility of coerced statements. Under the 2006 MCA, confessions resulting from torture were barred, but derivative evidence from “fruits” of torture was not, and coerced statements were potentially admissible. The government sought to admit statements from Jawad that would not have been admissible in any domestic U.S. court. In fact, the prosecution relied so heavily on these statements that when the judge suppressed them, the government was forced to file a rare interlocutory appeal in order to keep any hope alive of convicting Jawad.

The prosecution’s argument on appeal was abominable. It argued that the judge had erroneously suppressed Jawad’s second confession to U.S. authorities because he had improperly considered the effect of torture by the Afghan police earlier the same day, going so far as to assert that the effects of torture could never carry over to later interrogations. The appeal was ultimately rendered moot when the charges against Jawad were dismissed, and no ruling was issued. However, the federal judge in Jawad’s habeas corpus case also found that the confessions were the product of torture and excluded the government from using them as a basis to detain him. She ordered the government to produce some witnesses or other admissible evidence supporting its claim that Jawad was an enemy combatant. Shortly after this ruling, the government conceded that it had no lawful basis to detain him, again proving the extent to which it had been relying on coerced statements to both hold and try Jawad.

IV.
The Torture Problem

Reports of abuse and torture at Guantánamo have been at the center of the controversy over the island prison complex since its creation. Jawad’s case shed further light on the abusive practices at Guantánamo, demonstrating that detainee abuse was not limited to “high value detainees” believed to possess critical intelligence and revealing that senior officers and military health care professionals were complicit in detainee abuse.

Most of the evidence of Jawad’s maltreatment came from the government’s own records. Documents provided in discovery detailed the abuse Jawad had suffered, including a sleep-deprivation program known as the frequent flyer program and prolonged periods of isolation. Citing a litany of abuses experienced by Jawad, I filed a motion to dismiss the charges against him based on outrageous government conduct. Although he did not dismiss the charges, the judge found that Jawad had been subjected to the “frequent flyer” program, during which he had been moved from cell to cell 112 times between May 7 and May 20, 2004. The judge concluded that the frequent flyer technique “constitute[d] . . . cruel and inhuman treatment” and “had no legitimate interrogation purpose.”3

The Jawad case also highlighted the lack of accountability for detainee abuse. The Army intelligence officer who ran the frequent flyer program testified in the Jawad case that the program was standard operating procedure that had been vetted by camp leadership, including two officers subsequently promoted to major general. Yet despite significant publicity and a recommendation from the military judge that those responsible face disciplinary proceedings, the government initiated no investigation and took no disciplinary action.4

Another controversial aspect of the Bush-era detention and interrogation practices on display in the Jawad case was the participation in controversial interrogation practices of mental health professionals serving on Behavioral Science Consultation Teams (BSCTs). One discovered document discussed the involvement of a BSCT psychologist in Jawad’s interrogations. The document strongly suggested that a BCST psychologist had been directly responsible for some of the abuses that led to Jawad’s suicide attempt in December 2003. This psychologist invoked her right against self-incrimination and refused to testify in an August 2008 pretrial hearing. Shortly thereafter, the American Psychological Association (APA) voted to bar its members from participation in many military interrogations. The publicity surrounding the Jawad case was an important turning point in the debate.

V.
Problems at the Prosecution

The resignation of seven military prosecutors who cited various ethical, procedural and fairness concerns created an enormous credibility problem for the military commissions. Two of the highest-profile and most damaging resignations directly affected the Jawad case. The first resignation impacting Jawad was that of the former chief prosecutor, Air Force Colonel Morris Davis, who became a consistent and outspoken critic of the military commissions. As Davis explained in an op-ed in the Los Angeles Times, he resigned because he believed that “full, fair, and open trials were not possible” under the “deeply politicized” commission system.5

Eight months after his resignation, Colonel Davis testified that the Convening Authority’s senior legal advisor, Brigadier General Thomas Hartmann, had pressured Davis to file charges against Jawad before he was ready. Several other officers also testified about Hartmann’s improper meddling in the prosecutions. Hartmann’s unprofessional actions led to his disqualification from further participation in three separate military commission cases, including Jawad’s. Those actions ultimately cost him his position and further sullied the reputation of the commissions.

The second resignation affecting Jawad’s case was even more dramatic. In September 2008, lead prosecutor Lieutenant Colonel Darrel Vandeveld concluded that he could no longer ethically continue to prosecute Jawad; he requested reassignment to other duties. In a virtually unprecedented action, he then testified for the defense, at my request, about his reasons for resigning. His stinging criticism of the commissions both in court and in the press severely damaged their legitimacy. In an affidavit, he stated his conclusion that there was no credible legal basis that could justify Jawad’s detention or prosecution—and that there was reliable evidence that Jawad had been badly mistreated by U.S. authorities during his time in Afghanistan and at Guantánamo.

VI.
Actual Innocence

Lieutenant Colonel Vandeveld’s testimony and the Justice Department’s ultimate concession after nearly seven years that Jawad was wrongly detained proved that the unthinkable had happened: an innocent boy had been not only wrongfully imprisoned and tortured, but also prosecuted for an invented war crime using coerced evidence. Jawad was not the only innocent person to be prosecuted. Charges against two other detainees, Binyam Mohammed and Fouad al Rabia, were also dismissed after their lawyers were able to prove that the charges against them were based on false confessions produced by torture. Both men were released in 2009. Like Jawad, the majority of the 774 detainees held at Guantánamo were wrongly imprisoned. The United States has voluntarily released more than two-thirds of them. Of those remaining detainees whom the government asserted it had a lawful basis to detain, many have sought relief through the writ of habeas corpus. In two-thirds of such cases to reach the merits in federal court, the detainee has prevailed, with the government unable to prove by a preponderance of the evidence that the detainee was an enemy combatant, much less a war criminal or terrorist.

Conclusion

Although there have been some significant improvements to the military commissions in the 2009 MCA and to the implementing regulations in the area of admissibility of coerced evidence, and although the prosecution no longer appears to be divided and dysfunctional, the other problems that surfaced in the Jawad case and doomed the commissions to failure are likely to continue. Prosecutors believe they have sufficient evidence untainted by torture to prosecute a small number of detainees, but torture and detainee abuse are still likely to be a focal point of the commissions, as several prime prospects for prosecution (including Khalid Sheikh Mohammed) are known to have been tortured by the United States. Abd al-Rashim al-Nashiri, alleged to be responsible for the 2000 bombing of the U.S.S. Cole, is likely to be one of the first to be prosecuted, despite the fact that he is known to have been subjected to waterboarding and other extreme abuses. Also, the prosecution continues to rely on nontraditional war crimes and unproven and distorted theories of the law of war; the prosecution of al-Nashiri as a war criminal is based on the bizarre premise that the United States was in a state of armed conflict with al Qaeda well before the September 11 attacks.6 The Obama Administration also continues to rely on the discredited notion that unlawful combatancy in itself is a war crime. The Pentagon’s new regulation for the commissions takes an even more extreme position than was advanced in the Jawad case, stating that an accused may be convicted of “murder in violation of the law of war” even if his “conduct does not violate the international law of war.”7 Military commission prosecutors also continue to pursue charges for material support to terrorism, even though the Justice Department has repeatedly acknowledged that convictions for this offense are unlikely to be upheld on appeal.8

It is entirely possible that the pending round of military commissions will yield a larger number of convictions for more serious terrorist attacks. Yet even if a significant number of detainees are ultimately convicted, the military commissions should not truly be deemed a success unless such verdicts are accepted as fair and just by both the public and the larger international community. This seems extremely unlikely. However much the military commissions have been improved, it is clear that they are still a second-class justice system built on a shaky legal foundation. Ironically, the most ardent supporters of the military commissions have consistently reinforced this view by arguing in favor of their use on the basis that coerced evidence is less likely to be suppressed and convictions are more certain.9 Such comments suggest that the lessons of the Jawad case have yet to be learned.

Acknowledgments:

Copyright © 2011 Duke Law Journal.

David J. R. Frakt is Associate Professor of Law at the Dwayne O. Andreas School of Law, Barry University. He is also a Lieutenant Colonel in the U.S. Air Force Judge Advocate General’s Corps Reserve, and he served as defense counsel in the Office of Military Commissions from April 2008 to August 2009. The views expressed in this editorial are solely the author’s.

This editorial is based on Professor Frakt’s essay in the March 2011 issue of the Duke Law Journal: David J. R. Frakt, Mohammed Jawad and the Military Commissions of Guantánamo, 60 DUKE L.J. 1367 (2011).

  1. See Charlie Savage, U.S. Prepares to Lift Ban on Guantánamo Cases, N.Y. TIMES, Jan. 20, 2011, at A1; Benjamin Weiser, Ex-Detainee Gets Life Sentence in Embassy Blasts, N.Y. TIMES, Jan. 26, 2011, at A18.
  2. United States v. Jawad, slip op. at 2–3 (Military Comm’n Guantánamo Bay, Cuba Sept. 24, 2008) (ruling on Defense Motion to Dismiss—Lack of Subject Matter Jurisdiction (D-007)), available at http://www.defense.gov/news/RULING D-007 (subject matter jurisdiction) (2).pdf.
  3. United States v. Jawad, 1 M.C. 334, 335–36 (Military Comm’n Guantánamo Bay, Cuba Sept. 24, 2008) (ruling on Defense Motion to Dismiss—Torture of the Detainee (D-008)).
  4. David J.R. Frakt, Military Accountability (or the Lack Thereof) for Detainee Abuse: The Instructive Case of Mohammed Jawad, 45 U.S.F. L. REV. (forthcoming Spring 2011) (on file with Duke Law Journal).
  5. Morris Davis, AWOL Military Justice, L.A. TIMES, Dec. 10, 2007, at 15.
  6. Savage, supra note 1.
  7. U.S. MANUAL FOR MILITARY COMM’NS pt. IV, § 5(15)(c), at IV-13 (2010).
  8. Jane Sutton & Xavier Briand, Facts About Guantanamo Prison Detainees, REUTERS, Nov. 5, 2009, available at http://www.reuters.com/article/2009/11/05/idUSN05149893.
  9. See, e.g., Marc Thiessen, Op-Ed., Holder’s Terror Trial Catastrophe, WASH. POST (Oct. 11, 2010), http://www.washingtonpost.com/wp-dyn/content/article/2010/10/11/AR2010101102834.html.

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