Former Gitmo prosecutor rips military trials, calling interrogators' practices 'despicable'
Andy Worthington
Published: Tuesday January 13, 2009


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In a declaration submitted to a Washington D.C. District Court Tuesday, 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 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."

Vandeveld's declaration today constitutes the most sustained criticism of the Bush administration's trial system for terror suspects since Col. Morris Davis, the Commission's former Chief Prosecutor, resigned in 2007. Col. Davis said he'd quit 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, seen by Raw Story, explained that he joined 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 in 2002. Vandeveld said he initially thought Jawad was guilty because he'd been arrested "almost immediately" by Afghan police officers and had purportedly "freely confessed" to throwing the grenade. In addition, he'd allegedly explained that he'd "claimed sole responsibility for the attack" and "that he would repeat the attack if given the opportunity."

According to the interrogation report, US soldiers took Jawad to an operating base, where, after initial denials, he "eventually confessed to his role in the attack, this time on videotape recorded by US personnel."

But as Lt. Col. Vandeveld began to investigate the evidence in Jawad's case, he was shocked to discover that locating relevant documents was extraordinarily difficult. He said 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."

"The evidence, such as it was," he wrote, "remained scattered throughout an incomprehensible labyrinth of databases... or strewn throughout the prosecution offices."

As a result, Lt. Col. Vandeveld was unable to locate crucial documents, such as Jawad's videotaped confession. 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 prosecuting Jawad.

Despite these misgivings, Vandeveld said 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 Maj. Frakt following a request for discovery, Lt. Col. 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 Dec. 25, 2003 "by banging his head repeatedly against one of his cell walls." After notifying Maj. Frakt 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 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. Lt. Col. 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 Jawad may have been acting "under duress" and "may have been drugged by unscrupulous recruiters."

Lt. Col. Vandeveld then 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." 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."

Further investigation unearthed more evidence of systematic abuse. Vandeveld found a summary of an interview with Jawad, conducted by an agent from the Army Criminal Investigation Division, in which he 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, Lt. Col. 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.


Lt. Col. Vandeveld's final disappointment concerned issues relating to Jawad's age at the time of his capture. Initially, Vandeveld was not particularly troubled by the fact that "[v]irtually all the documentation concerning Mr. Jawad from his first year at Guantanamo 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."

As a result, 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, were rebuffed. He "asked to be permitted to leave the Commissions" and 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, and it was "impossible for anyone involved... in the Commissions to harbor even the remotest hope that justice is an achievable goal."

Since Vandeveld's depature, Jawad's case has continued to crumble. Air Force Col. Stephen Henley recently threw out the alleged "confessions" made after his capture because they were obtained through torture.

"I think there's a good chance that Jawad's case will be tossed out and that the District Court will order his release," Vandeveld told Raw Story Tuesday. 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," he wrote. "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 Guantanamo Files: The Stories of the 774 Detainees in America's Illegal Prison (published by Pluto Press).

 
 


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