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Saturday, Jul 11, 2009
The inside story of a military lawyer who discovered stunning injustice at the heart of the Bush administration's military commissions.
Editor's note: Since May, staff members of Human Rights Watch have been reporting on U.S. judicial proceedings at Guantánamo for Salon.
By Stacy Sullivan
Read more: George W. Bush, Terrorism, Politics, Afghanistan, Pentagon, News, Iraq, Al Qaeda, Guantánamo Bay, Guantanamo military commissions
Reuters/Brennan Linsley/Pool
An American flag waves within the razor wire-lined compound of Camp Delta prison, at the Guantanamo Bay U.S. Naval Base, Cuba, June 27, 2006.
Oct. 23, 2008 | When Army Lt. Col. Darrell Vandeveld began his work in May 2007 as a prosecutor at the Guantánamo Bay military commissions, the Iraq war veteran was one of the most enthusiastic and tenacious lawyers working on behalf of the Bush administration. He took on seven cases. In court hearings he dismissed claims of prisoner abuse as "embellishment" and "exaggeration." Once, when a detainee asked for legal representation only for the purpose of challenging the legitimacy of the military commissions, Vandeveld ridiculed the request as "idiotic."
So it came as a shock in mid-September when Vandeveld announced that he was resigning as a prosecutor because he had grave doubts about the integrity of the system he had so vigorously defended.
In the days following his resignation -- now testifying, remarkably, for the defense counsel in one of his own cases -- Vandeveld said that he went from being a "true believer" in the military commissions to feeling "truly deceived" about them. His deep ethical qualms hinged foremost on the fact that potentially critical evidence had been withheld from the defense by the government.
Vandeveld says he was pressured explicitly by superiors not to talk about his work at Guantánamo. Until now, the details of his story have largely been kept from public view. He maintains that he is not ready to speak at length about his decision to resign, but in several e-mail exchanges with me this week, as well as in a series of recent e-mail exchanges he had with others involved in the military commissions, a picture emerges of a man who struggled through an intense crisis of conscience. When he took action, he was ridiculed and bullied by his bosses for questioning the fairness of the system. The military also subjected Vandeveld to a mental-health evaluation after he decided to resign, perhaps aimed at undercutting his credibility.
Vandeveld's story reveals the painful struggle of a devoutly religious Catholic who became increasingly disturbed by a process he came to view as fundamentally unjust. Unable to confide in his family and friends because so much of the information in the cases he was working on was classified, he took the unusual step of confiding in his opposing counsel. He also consulted a priest online.
Vandeveld is at least the fourth prosecutor to resign from the highly criticized military commissions, but his account is perhaps the most stark and will surely cast a lasting pall over the process. On Tuesday, the Department of Defense announced that it was dropping charges against five detainees whose cases Vandeveld was prosecuting -- though not the controversial case that prompted his resignation.
That case, the one that ultimately provoked Vandeveld's change of heart, was supposed to be a slam dunk for the government. But as Vandeveld would come to discover, it was plagued by problems.
Mohamed Jawad, a young Afghan who allegedly fought with the Taliban, was accused of throwing a grenade into a vehicle carrying U.S. troops, gravely injuring two of them and their translator. Unlike most of the other men charged before the military commissions, who are accused of seemingly abstract crimes like "providing material support for terrorism," Jawad was charged with "attempted murder in violation of the law of war." There were witnesses to the attack and Jawad had reportedly confessed. It was the kind of coldblooded act the government hoped would capture the public's imagination.
Yet, problems arose in the case as soon as Jawad entered the Guantánamo courtroom last March. To begin with, it turned out that Jawad was only 16 or 17 at the time of his alleged offense. Under both U.S. and international law, he should never have been detained with adults, and he should have been provided educational opportunities, as well as contact with his family. He appeared emotionally distressed, holding his face in his hands and asking why he was at Guantánamo.
His defense counsel, Maj. David Frakt, told the court that Jawad was a homeless, illiterate teenager who had been drugged and forced to fight with Afghan militia, then abused by the United States and transported halfway around the world to Guantánamo where he was imprisoned for five years without charge and was now being used as a guinea pig to test a new system of military justice. He said that Jawad was deeply traumatized by the experience, to the point that he might be incapable of aiding in his defense.
In the beginning, Vandeveld was openly dismissive of the story.
"What you have heard is a series of exaggerations," Vandeveld told the court. "It's clear from what you've seen here today that he is able to assist in his defense."
But over the next six months, as more information about the case came to light, Vandeveld began to have misgivings.
Initially Vandeveld did not believe that Jawad was a juvenile at the time of his arrest. Because Jawad did not know his birth date (which is common among Afghan villagers), and had at times given different ages for himself, the United States did not record him as a juvenile. However, in the process of examining Jawad's prison records, it emerged that Jawad had undergone a bone scan at Guantánamo in 2003, estimating his age to be 18, which would have made him 17 at the time of the alleged crime.
"Jawad should have been segregated from the adult detainees, and some serious attempt made to rehabilitate him," Vandeveld said in a declaration shortly after his resignation. "I am bothered by the fact that this was not done. I am a resolute Catholic and take as an article of faith that justice is defined as reparative and restorative, and that Christ's most radical pronouncement -- command, if you will -- is to love one's enemies."
Vandeveld also had not believed that Jawad had been mistreated by his American captors. But once again, evidence obtained in the process of discovery revealed a different story. Frakt asked the government to provide a copy of prison records on detainee movements at Guantánamo. In May, Vandeveld gave Frakt a stack of them.
The records showed that in mid-2003, Jawad had been removed from a Pashto-speaking wing in the detention center and isolated, as well as deprived of comfort items such as books or mail. In September 2003, after prolonged isolation, his mental health deteriorated. Interrogators observed Jawad talking to posters on his wall. Then, on Christmas day 2003, Jawad tried to commit suicide, first by banging his head against the metal structures in his cell, then by hanging himself.
They also showed that during a 14-day period in May 2004 -- several months after the suicide attempt -- Jawad was moved from cell to cell 112 times, an average of less than every three hours. These movements, which intensified between midnight and 2 a.m., turned out to be part of a sleep deprivation program known in Gitmo parlance as the "frequent flier program." The goal of the program was to disorient detainees and make them more compliant. The records, however, give no indication that Jawad was interrogated at this time.
Initially, Vandeveld did not realize the prison records showed that Jawad had been subjected to a regime of sleep deprivation -- the records consisted of many pages of detainee movements, much of it handwritten. The sleep deprivation was pointed out to him by Frakt, who had carefully scrutinized the records. However, Vandeveld had noticed the detainee's attempt at "self harm." Shortly thereafter, he told Frakt that he wanted to broker a plea agreement that would have given Jawad a minimal sentence and some rehabilitation before sending him home to Afghanistan.
In an e-mail exchange with Frakt on May 22, Vandeveld wrote: "If I ever thought this job required me to do anything I considered unethical, I'd be out the door."
"I appreciate that and I believe you," Frakt replied. "You may have to take back your comments about Jawad's complaints being embellished and exaggerated. It looks like he was telling the truth. Did you notice that he tried to commit suicide in 2003?"
"I did notice that saddening episode ... which is one of the reasons I am pushing for a plea in this case, and why I wanted to get this information in your hands asap," Vandeveld replied.
In a subsequent e-mail the same day, Vandeveld wrote, "BTW, I will correct my misstatements on the record the next time we're in session. I know I am obliged to do so."
A few days after that exchange, Frakt filed a motion with the court to dismiss the charges against Jawad based on evidence that he had been tortured.
When Vandeveld responded to Frakt's motion, he argued that although Jawad had suffered some abuse at Guantánamo -- an unusual admission by a government prosecutor -- the remedy was not to dismiss the charges, but rather to consider the abuse in mitigating the accused's punishment.
According to Vandeveld, when his superiors saw that he had conceded that Jawad had been abused, they were furious. They reprimanded him and made him withdraw the motion and resubmit it, conceding nothing regarding prisoner torture or abuse.
The new motion he submitted stated: "Jawad ... suffered no ill-effects from his alleged sleep deprivation."
American credibility on trial
The insanity inside Guantánamo
