In all the recent hysteria about the supposed dangers posed by the remaining 240 prisoners at Guantánamo, it has been easy to forget that sensible appraisals of the number of individuals with any meaningful connection to terrorism have long indicated that no more than a few dozen of those still held should be regarded as any kind of significant threat, and that therefore the prison still holds over 200 prisoners who, at best, were low-level Taliban soldiers with a strong dislike of US foreign policy, and, at worst, should never have been held at all.
To listen to Dick Cheney, or to some serving politicians who are prone to similar hyperbole, you would think that every one of the remaining 240 prisoners is just itching to return to the fictional battlefield conjured up in last week’s conveniently leaked Pentagon report about recidivism rates (PDF), which, while published uncritically by the New York Times, has been comprehensively trashed by reporters for the New American, FAIR (Fairness and Accuracy in Reporting), Firedoglake and many other media outlets.
On Friday, the Times finally made up for its lopsided reporting, allowing Peter Bergen and Katherine Tiedemann of the New America Foundation to write an op-ed whittling the Pentagon’s figure of 74 (14 percent of the prison’s total population) down to somewhere between 12 and 20, and all the commentators cited above have also pointed out that, in any case, the recidivism rate in US federal prisons is somewhere between 60 and 70 percent.
The prisoners in Guantánamo are human beings, and not statistics
Moreover, behind all the bluster and the reckless use of statistics are 240 human beings, who, for the most part, have now been imprisoned for over seven years with little, if any opportunity to answer back. Over the last year or so, I have done my best to profile some of these men: those “approved for transfer” from Guantánamo after multiple military review boards (many of whom are now having their cases appraised yet again, this time by the Obama administration’s inter-departmental review), the 25 prisoners cleared for release by US courts (including the Uighurs and former child prisoner Mohammed El-Gharani), after judges ruled in their habeas corpus cases that the government had failed to establish a case against them, and others whose cases are remarkably similar to those dismissed by the US courts.
Last week, however, I was reminded of another of these prisoners, one of several put forward for trial in the Military Commission trial system conceived by Dick Cheney and his legal counsel, David Addington, in November 2001, who, it seemed to me after detailed examination of their cases over the last two years, should also have been approved for release from Guantánamo, rather than being put forward for the kind of “war crimes” trials that, if valid at all, should surely have been reserved for the handful of prisoners who were accused of being involved in terrorist attacks on the United States.
These prisoners include Omar Khadr, a Canadian who was just 15 years old when he allegedly threw a grenade that killed a US soldier (although his defense team discovered, 18 months ago, that there had been a cover-up of information indicating that Khadr did not throw the grenade), and a handful of Afghans, who, like Khadr, were, at most, minor insurgents in a war zone, rather than terrorists plotting atrocities on US civilians.
However, the man I was particularly reminded of — although he, like Omar Khadr, was not a man when he was first seized — is Mohamed Jawad, a young Afghan, accused of throwing a grenade at a jeep containing two US soldiers and an Afghan interpreter in December 2002, whose long road to justice stalled in January, when the Obama administration froze all proceedings in the tribunals for four months (and is now seeking another four-month freeze).
How the case against Mohamed Jawad collapsed
This was particular harsh on Jawad because, over the previous few months, his military defense lawyer, Maj. David Frakt, had demonstrated to the judge’s satisfaction that the only material that the government was relying on as evidence of Jawad’s involvement in the attack — a confession extracted from him soon after his capture by Afghan forces, and another extracted the day after by US forces — were inadmissible because they had been obtained through death threats that constituted torture.
On October 28, the judge, Army Col. Stephen Henley, found that there was “reason to believe Jawad was under the influence of drugs at the time of his capture and forced confession,” and also “accepted the accused’s account of how he was threatened, while armed senior Afghan officials allied with US forces watched his interrogation.” He stated that he believed Jawad’s account of an interrogator telling him, “You will be killed if you do not confess to the grenade attack. We will arrest your family and kill them if you do not confess.” He also made a point of stating that he was accepting Jawad’s account because the government had failed to provide “timely disclosure of evidence” for his trial, which was scheduled to begin on January 5, 2009.
In response, Maj. Frakt noted that Col. Henley was explicitly rejecting the administration’s notorious attempts to redefine torture, and congratulated the judge for “adopting a traditional legal definition of torture, rather than making one up.”
Three weeks later, Col. Henley dealt another blow to the prosecution’s case by ruling that a second confession, made in US custody the day after his Afghan confession, was also inadmissible, because “the US interrogator used techniques to maintain ‘the shock and fearful state’ associated with his arrest by Afghan police, including blindfolding him and placing a hood over his head.” As Col. Henley explained in his ruling, “The military commission concludes the effect of the death threats which produced the accused’s first confession to the Afghan police had not dissipated by the second confession to the US. In other words, the subsequent confession was itself the product of the preceding death threats.”
How Mohamed Jawad’s case prompted his prosecutor’s resignation
These were not the only blows to the credibility of Jawad’s case. In September, his prosecutor, Lt. Col. Darrel Vandeveld, had become so disenchanted by systemic failures in the Prosecutors’ office that he resigned, explaining that he had gone from being a “true believer to someone who felt truly deceived,” and damning the Commissions as a dysfunctional system, which, both through accident and design, prevented the disclosure of evidence essential to the defense, thereby ensuring that no fair trial was possible.
Lt. Col. Vandeveld also described how evidence proving that Jawad was a juvenile at the time of his capture, that he was tricked into joining an insurgent group and was drugged before the attack, and that two other men had confessed to the crime, had been deliberately suppressed, and also explained that his proposal to negotiate a plea arrangement for Jawad’s release, which would have involved “a short period of additional custody … devoted to rehabilitating him and preparing him to reintegrate into civilian society,” was dismissed out of hand.
In a submission accompanying Jawad’s habeas corpus claim in January this year, Lt. Col. Vandeveld laid out his criticisms in even more detail, describing at length the “chaotic” state of the Prosecutors’ Office, and explaining how he discovered evidence relating to Jawad’s abuse at Bagram and in Guantánamo, where he was subjected to a sleep deprivation program, which involved moving prisoners from cell to cell every few hours (over a two-week period, in Jawad’s case) and which was known, euphemistically, as the “frequent flier program.” He also noted that Jawad’s continued detention was “something beyond a travesty,” and stated that he “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.”
In addition, when Col. Henley excluded Jawad’s first confession because it had been extracted through torture, Lt. Col. Vandeveld explained why the government no longer had a case against him. The confession, he said, was “among the most important evidence for his upcoming war crimes trial,” and he added, “To me, the case is not only eviscerated, it is now impossible to prosecute with any credibility.”
With all this evidence eviscerating the government’s case against Jawad, you would be forgiven for thinking that, seven months later, he would have been repatriated to Afghanistan, to begin to pull together the pieces of his shattered life. Instead, however, he is still in Guantánamo, with no sign of whether his habeas corpus review will be successful, or if President Obama intends to haul him up before a Military Commission once more.
Was Mohamed Jawad just 12 years old when seized?
In an attempt to inject fresh life into Jawad’s moribund case, another member of his defense team, Marine Maj. Eric Montalvo, last week visited Afghanistan in an attempt to “create political pressure to move the case forward,” as the Associated Press explained, because President Obama’s “decision to close Guantánamo and reconsider how detainees should be tried has indefinitely stalled their case in the United States.”
Announcing, “We were in a winning posture in the trial, so to now come along and change the rules in the middle of the game, who knows what’s going to happen,” and adding that Jawad’s case was “somewhat of an embarrassment to the American judicial system,” Maj. Montalvo deposited a petition at Afghanistan’s Supreme Court last Monday, acknowledging that a ruling by the Court would “not have legal authority in the United States,” but hoping that it might raise calls for Jawad’s release by ruling that “Afghanistan’s constitution at the time did not allow for the extradition of prisoners to another country, making the transfer to Guantánamo illegal.”
However, the most shocking detail to emerge from Maj. Montalvo’s visit to Afghanistan was his announcement that recent research indicated that Jawad was not 16 or 17 when seized (in contrast to the Pentagon’s claim that he was 18), but that he was in fact just 12 years old. Like many of the dirt-poor, illiterate prisoners in Guantánamo, Jawad himself has no idea when he was born, but Maj. Montalvo said that, after representatives of the Afghan Independent Human Rights Commission visited his family, they were able to “estimate how old Jawad is because they recall he was born in a refugee camp in Pakistan about six months after his father was killed in the battle of Khost,” part of the bloody civil war that followed the Soviet withdrawal in 1989, which took place in the winter of 1990-91.
Asked to comment on this latest claim, a Pentagon spokesman, Navy Cmdr. Jeffrey Gordon, maintained that a bone scan, taken at Guantánamo, indicated that Jawad was 18 at the time of his capture, but even before this latest announcement, his defense team — and Lt. Col. Vandeveld — had disputed this claim. Maj. Frakt acknowledged to the AP that Jawad’s family “might not know his age” and that “they would have an interest in making him seem younger,” but he defended the latest estimate of his age, stating that it was “supported by records showing Jawad was only 5-foot-3 and 124 pounds when he arrived at Guantánamo in February 2003, [but] is now roughly 5-foot-9 and 165 pounds.”
In an email exchange with me on Saturday, Maj. Frakt added that the US authorities were in contact with Jawad’s family for six years through the International Committee of the Red Cross, although they “apparently never bothered to ask them his age,” and defended Maj. Montalvo’s efforts to try to determine his age as “the first real concerted attempt that has been made.” He also pointed out that the government “definitely considered Jawad a minor when they transported him to Guantánamo,” because Larry C. James, the author of Fixing Hell: An Army Psychologist Confronts Abu Ghraib, wrote that he “was sent to accompany minors on the flight from Afghanistan.”
As the AP noted, the estimate of Jawad’s age, if confirmed, would make him “one of the youngest detainees ever sent to Guantánamo.” This is certainly true, but as I have reported previously, at least 22 juveniles — including an Afghan boy who was probably just 11 years old when he was seized — have been held at Guantánamo throughout its long history, and in the end, whether Jawad was 12 or 17 at the time of his capture, what matters most is that he was never treated with the kind of care that is appropriate for juvenile prisoners — as stipulated by the UN Optional Protocol on the Rights of the Child (on the involvement of children in armed conflict), to which the US is a signatory — and, even more importantly, that he is still held, even though the government has no case against him.
POSTSCRIPT: Today AFP reported that the Afghan government had sent a letter to the US embassy in Kabul demanding Jawad’s repatriation. Sayed Sharif Sharif, a senior government lawyer, said, “We expect the US government to return Jawad without any delay,” and added that his detention was “totally illegal.”
Maj. Montalvo also spoke out again, telling a press conference in Kabul, “There is no dispute that Jawad was tortured in the hands of the US government over the last seven years,” and Rohullah Qarizada, the chief of Afghanistan’s Bar Association, told reporters that Jawad suffered “extremely inhuman violence, abuse and torture during interrogation in Guantánamo,” including sleep deprivation, beating and death threats. “They would make him hold a bottle in his hand, telling him that it was a grenade which would explode if he dropped it,” he added.
Also present was Jawad’s uncle, Gul Nak, who explained that the family “only learned he was in Guantánamo 10 months after he was taken to Cuba when they received a letter from him through the International Committee of the Red Cross.” Nak said, “He was a child, he had nothing to do with the Taliban or terrorists,” and stated that he was, instead, just a well digger. He added, “We want them (the US government) to compensate us financially as well as apologize.”
POSTSCRIPT 2: On June 2, District Court Judge Ellen Huvelle refused Justice Department calls “for more time to produce material relevant to the case,” as AFP described it. Giving the government a deadline of June 12 “to present supporting evidence in the case,” Judge Huvelle also set a date of June 19 for Jawad’s habeas corpus hearing, and explained — demonstrating an acute awareness of the details of Jawad’s long ordeal, which, I believe, augurs well for the success of his habeas petition — “This case has been so thoroughly examined that it may be the one and only case not to be so difficult. This case is ready to go.”
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, and also see my definitive Guantánamo prisoner list, published in March 2009.
As published exclusively on the website of the Future of Freedom Foundation.
See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 2007), A bad week at Guantánamo (Commissions revived, September 2007), The curse of the Military Commissions strikes the prosecutors (September 2007), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Guantánamo’s shambolic trials (ex-prosecutor turns, February 2008), Torture allegations dog Guantánamo trials (March 2008), African embassy bombing suspect charged (March 2008), The US military’s shameless propaganda over 9/11 trials (April 2008), Betrayals, backsliding and boycotts (May 2008), Fact Sheet: The 16 prisoners charged (May 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan’s trial approved, July 2008), A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008), Salim Hamdan’s sentence signals the end of Guantánamo (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), The collapse of Omar Khadr’s Guantánamo trial (October 2008), Corruption at Guantánamo (legal adviser faces military investigations, October 2008), An empty trial at Guantánamo (Ali Hamza al-Bahlul, October 2008), Life sentence for al-Qaeda propagandist fails to justify Guantánamo trials (al-Bahlul, November 2008), 20 Reasons To Shut Down The Guantánamo Trials (profiles of all the prisoners charged, November 2008), How Guantánamo Can Be Closed: Advice for Barack Obama (November 2008), More Dubious Charges in the Guantánamo Trials (two Kuwaitis, November 2008), The End of Guantánamo (Salim Hamdan repatriated, November 2008), Torture, Preventive Detention and the Terror Trials at Guantánamo (December 2008), Is the 9/11 trial confession an al-Qaeda coup? (December 2008), The Dying Days of the Guantánamo Trials (January 2009), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Bush Era Ends with Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials (January 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009).
And for a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Obama’s Confusion Over Guantánamo Terror Trials (June 2009).
[…] Andy Worthington Featured Writer Dandelion Salad http://www.andyworthington.co.uk 1 June […]
First a big shout out to you Andy – what a great job you are doing!
In response to people like you protesting the treatment of prisoners in the gulag, Bush trotted out three guys for show trials, people to convince us they are the worst of the worst, right? so who shows up in the dock? two child soldiers and a taxi driver. None of these three had ever done anything, certainly nothing that could be proved in a court of law – in the old traditional sense of the term. Khadr was shot twice in the back before being dragged off as a terrorist because during a ferocious bombing attack, somebody had the nerve to toss a grenade.
Mohammed was arrested in a confusing street scene, where nothing was clear, and nothing can ever be proved.
What I remember best about him was that wretched day in court when the prosecutors and the judge were harassing him mercilessly, and sometimes he was asking to be allowed to speak. When the judge finally let him do so, he made this extraordinary statement, which shocked everyone present:
“I AM A HUMAN BEING!” he shouted. clearly this was news to the court, to the judge and the lawyers. A statement that will continue to echo through all the trials and all the courtrooms and tribunals to come for all the innocents in the gulag, forever.
Great to hear from you, and thanks for the support. Thanks also for reminding readers of Mohamed’s plea to the court, which, if I recall, took place about a year ago, although it seems to have made little or no difference to those holding him.
I’m struck by the stark contrast between a risk taker like Maj. Montalvo and bottom-feeders like Yoo, Bradbury and Bybee. The one, a fighter who would board a plane and fly across an ocean to stir others to demand justice for his client; the others, desk jockeys cowering behind computers raping the English language and our legal code to inflict a world of hurt on defenseless boys. Major Mantalvo is an inspiration; sometimes you just gotta get up and go, even without guarantees.
Great job Andy. Your work is a true service to humanity. Here’s another servant you may be interested in networking with.
Thanks for the support, and welcome to the site. As for your recommendation, I know Candace already, and am very proud of her work.
[…] (in contrast to the Pentagon’s claim that he was 18), but that he was in fact just 12 years old. Full article by Andy Worthington. Read More Post a […]
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