Mohammed Jawad and Obama's efforts to suspend military commissions

As one of his very first acts, the new president attempts to suspend Guantanamo military commissions. That's commendable, but only as a first step.

Published January 21, 2009 12:31PM (EST)

(updated below - Update II)

This is a very good and important step -- not only because of its substance, but also because it was something Obama did almost immediately, even before his first full day in office:

In one of its first actions, the Obama administration instructed military prosecutors late Tuesday to seek a 120-day suspension of legal proceedings involving detainees at the naval base at Guantanamo Bay, Cuba -- a clear break with the approach of the outgoing Bush administration. . . .

Such a request may not be automatically granted by military judges, and not all defense attorneys may agree to such a suspension. But the move is a first step toward closing a detention facility and system of military trials that became a worldwide symbol of the Bush administration's war on terrorism and its unyielding attitude toward foreign and domestic critics. . . .

The motion prompted a clear sense of disappointment among some of the military officials here who had tried to make a success of the system, despite charges that the military tribunals were a legal netherworld. Military prosecutors and other commission officials here were told not to speak to the news media, according to a Pentagon official.

"It's over; I don't want to say any more," said one official involved in the process.

A few pre-praise caveats are in order:  This is only a first step and a temporary one at that.  Subsequent actions that the Obama administration is clearly considering could severely undermine both the symbolic and substantive value of this act, particularly if they go and create new "national security courts" of the kind aggressively advocated by newly-appointed Deputy Solicitor General Neal Katyal, which would likely enable coerced evidence to be used in order to obtain convictions of accused Terrorists.  Even with Obama's order yesterday, many of the most vital questions surrounding the closing of Guantanamo remain unanswered.

Still, this order clearly signals that Obama -- even for one day -- did not want his name anywhere near the grotesque mockery of justice known as the "Guantanamo military commissions," tribunals that were created when his own political party, in the weeks before the 2006 mid-term elections, helped to enact the Military Commissions Act (see this photograph for a vivid illustration of the extent to which what happens at Guantanamo is now Obama's responsibility in every sense of the word).  That one of his very first acts as President was to do everything in his power to put a stop to the ongoing military commissions -- including those of detainees accused of participation in the 9/11 attacks -- is as strong a first-day repudiation of those military commissions as one can imagine.

* * * * *

Beyond the symbolic value of that act, consider what it means in specific, concrete terms.  One of the Guantanamo detainees whose military commission has not yet concluded is Mohammed Jawad.  Jawad is an Afghan citizen who, in late 2002, was taken into U.S. custody and then shipped from Afghanistan, his home country, to Guantanamo, where he has remained ever since -- more than six full years and counting.  Nobody has ever accused Jawad of belonging either to Al Qaeda or the Taliban.  Instead, he is accused of throwing a hand grenade at two U.S. soldiers inside his country, seriously injuring both of them.  He vehemently denies involvement.  At the time of his due-process-less imprisonment in Guantanamo, he was an adolescent:  between 15 and 17 years old (because he was born and lived his whole life in an Afghan refugee camp in Pakistan, and is functionally illiterate, his exact date of birth is unknown).

The ACLU represents Jawad in his habeas corpus proceeding (a proceeding which the vile Military Commissions Act denied to him but which the Supreme Court, in its 5-4 Boumediene decision, ruled he was constitutionally entitled to have).   The ACLU's habeas brief -- here (.pdf) -- details the severe abuse, coercion, and mental and physical torture which Jawad has endured for the last six years.  The details, by definition, would thoroughly disgust any decent human being [just read paragraphs 15-54 for a brief glimpse (.pdf) of what was done to this teenager under the official, authorized program of the U.S. Government].

Suffice to say, Jawad's chief prosecutor at Guantanamo -- the Bronze-Star-recipient Lt. Col. Darrel Vandeveld, who since 9/11 has served in Iraq, Afghanistan, Bosnia and Africa -- became so repelled by the treatment to which Jawad was subjected, by the fact that virutally all of the evidence against him was severely coerced, and by the fact that there is "no credible evidence" to justify his detention, that he first demanded that Jawad be released, then, when Bush officials refused, unsuccessfully demanded to be relieved of his duty to prosecute, and then finally resigned.  He has now become one of the key witnesses in Jawad's habeas proceeding, and you can (and should) read Lt. Col. Vandeveld's Sworn Declaration in Support of Jawad's Habeas Petition here.  In Paragraph 2, he writes:

To underscore how dubious and unreliable is the evidence against Jawad, how far away he is from a "hard-core terrorist," and how outrageous is his ongoing detention, Lt. Col. Vandeveld very poignantly wrote:

Had I returned to Afghanistan or Iraq, and had I encountered Mohammed Jawad in either of those hostile lands, where two of my friends have been killed in action and one of my very best friends in the world had been terribly wounded, I have no doubt at all -- none -- that Mr. Jawad would pose no threat whatsoever to me, his former prosecutor and now-repentant persecuter.  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.

Worst of all, Lt. Col. Vandeveld explains that he began to realize the grave injustice of prosecuting Jawad as he discovered long-concealed evidence proving just how brutal and continuous the abuse of Jawad has been, and how virtually all of the evidence against him was suspect at best and almost certainly was unreliably coerced. 

In Afghanistan, Jawad was severely beaten, drugged, and threatened with death for both himself and his family if he refused to confess to the grenade incident.  That occurred just weeks after the incident where two Afghan detainees, including a completely innocent 22-year-old Afghan cab driver, were beaten to death -- murdered -- while detained and interrogated by U.S. troops in Bagram.  The confession Jawad "signed" (with his fingerprint, since he can't write his name) became the centerpiece of the Bush administration's case against him, and yet, it was written in a language Jawad did not speak or read, and was given to him after several days of beatings, druggings and threats -- all while he was likely 15 or 16 years old.

In December, 2003, when he was (at most) 18 years old, Jawad -- according to Guantanamo prison logs -- attempted to kill himself.  In 2004, he was subjected to the so-called "frequent flier" program, where, in a two-week period alone, he was moved to a new cell 112 times -- an average of every 3 hours, in order to ensure he was sleep deprived and disoriented.  Over the six years at Guantanamo, Jawad was repeatedly subjected to extreme cold, bright lights, and various stress positions.  He was often kept in solitary confinement or in "linguistic confinement," isolated from anyone who spoke his only language (Pashto).  As recently as May of 2008, while Jawad was at Guantanamo, he was beaten so badly by guards that, weeks later, he still had extreme bruises on his arms, knees, shoulders, forehead and ribs. 

* * * * *

Despite all of that, the Bush administration -- monstrous war criminals to the end -- just last week demanded in Jawad's habeas corpus proceeding that his military commission be allowed to proceed as scheduled and that his habeas petition be dismissed.   The U.S. was about to proceed with a military commission of a tormented and destroyed human being -- a teenager when his ordeal began and now nothing resembling a healthy, functioning adult -- before a completely rigged tribunal and try him, ironically enough, for "war crimes."  It was that repulsive travesty which Obama's order yesterday stopped, at least temporarily.

Jawad was never waterboarded, but no civilized human being would deny that the cumulative effect of his treatment at the hands of our country is torture in every sense of the word.  And there's nothing unique about his treatment.  It wasn't aberrational.  Rather, it has been miserably common for detainees in U.S. custody -- not only at Guantanamo, but also in Bagram and throughout Iraq.  It was what our highest political officials authorized and ordered.  At least 100 detainees in U.S. custody have died since 2002, many suffering gruesome deaths.  Countless others have been severely injured and irreparably wounded -- mentally crippled -- by the inhumane, brutal and patently illegal treatment to which they were subjected.  Video released earlier this year showed another teenaged detainee at Guantanamo, 16-year-old Omar Khadr, weeping uncontrollably and showing clear signs of mental instability during a Guantanamo interrogation.  Khadr's military commission was scheduled to start this week -- and the military judge in charge of his case has just moments ago agreed to Obama's request to suspend it for 120 days.

This is why it is so unconscionable -- almost as revolting as the original acts themselves -- to hear so many Americans arguing that their leaders who were responsible for all of these crimes should be immunized and protected and their crimes left uninvestigated and forgotten.  The reasons cited for this impunity are even more wretched -- the media wouldn't like it; it would interfere with Obama's ability to get his stimulus package passed; it would make right-wing talk-radio angry; these crimes happened "in the past" and can therefore be forgotten; the criminals aren't in power any longer; it would be "divisive" and undermine bipartisanship.

When the discussion remains at a high level of abstraction, it's easy to wave away "war crimes" and the need for accountability for those who commit them.  But there are actual victims of these crimes -- lots of them, many of whom are completely innocent of having done anything wrong, many whose lives have been destroyed.  Demanding that their victimizers -- or, as Lt. Col. Vandeveld put it, their "persecuters" -- be protected and forgotten is every bit as indefensible as arguing that we should just open the doors to all of our prisons and let out all of the murderers and other violent criminals who reside there in the name of "looking to the future" and not getting caught up in "retribution." 


UPDATE:  Harper's Scott Horton notes that the leading U.N. official in charge of torture conventions, such as the Convention Against Torture (signed by Ronald Reagan and ratified by the U.S. Senate), just stated that the Obama administration is obligated by that treaty and by international law to criminally investigate Bush officials for torture:

In an interview on Tuesday evening with the German television program “Frontal 21,” on channel ZDF Professor Manfred Nowak, the United Nations Rapporteur responsible for torture, stated that with George W. Bush’s head of state immunity now terminated, the new government of Barack Obama was obligated by international law to commence a criminal investigation into Bush’s torture practices.

“The evidence is sitting on the table,” he stated. “There is no avoiding the fact that this was torture.” He pointed to the U.S. undertakings under the Convention Against Torture in which the country committed that it would criminally prosecute anyone who tortured, or extradite the person to a state that would prosecute him. “The government of the United States is required to take all necessary steps to bring George W. Bush and Donald Rumsfeld before a court,” Nowak said.

Manfred Nowak, an internationally renowned law professor at the University of Vienna, currently serves as an independent expert for the United Nations looking at allegations of torture affecting member states. In 2006, he undertook a special investigation of conditions at the U.S. detention facilities at Guantánamo in which he concluded that practices approved by the Bush Administration violated human rights norms, including the prohibition against torture.

There is an important fact which he's overlooking.  We're the United States.  We don't care what the U.N. says.  Everyone knows that we're exempt from treaties we sign and from international law.  We have too many important things to do to bother with any of that.  These so-called "obligations" don't apply to us.  We proved that in 2003 and -- if the likes of David Ignatitus and Newsweek have their way -- we'll be well on our way to proving it again.


UPDATE II:  It appears that the Guantanamo judges will be receptive to the Obama administration's request to stay these commissions, as another military judge -- this one overseeing the proceedings against five detainees accused of involvement in the 9/11 attacks, including Khalid Sheikh Mohammed -- just ordered the commissions stayed for 120 days, as Obama ordered his prosecutors to request.  And the Swiss Government today announced that it will agree to accept released Guantanamo detainees if that helps close the camp, which Switzerland, like most of the civilized world, considers a blight on Western justice and an ongoing violation of international law.  Those are fairly rapid (and encouraging) events for the first 24 hours.

On a related note, AP obtained the draft Executive Order now being circulated in the White House that directs that "the detention facilities at Guantanamo for individuals covered by this order shall be closed as soon as practicable, and no later than one year from the date of this order."  A definitive date certain for closing that camp is vital, though the real question is and will continue to be:  under what system and rules will the detainees, once transferred to the U.S., be tried?  

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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