Salon Radio: ACLU's Jonathan Hafetz on Mohamed Jawad

Why has a young Afghan boy - no older than 15 when detained - been kept in Guantanamo for the last seven years?

Published August 4, 2009 10:05AM (EDT)

As I noted last Friday, Mohamed Jawad became the latest Guantanamo detainee ordered released by a federal judge on the ground that there is insufficient evidence to substantiate the accusations against him.  Jawad was shipped from his native Afghanistan halfway around the world to the American prison in 2002, when he was no older then 15 and possibly as young as 12, accused of throwing a grenade at two American soldiers in his country.  The evidence against him consisted almost entirely of a "confession" he made after Afghan soldiers threatened to kill both him and his family if he did not confess -- threats issued shortly after two innocent Afghans detainees were killed by American soldiers in Bagram prison.  I previously wrote in detail about Jawad's case here.

My guest today on Salon Radio is one of Jawad's lawyers, Jonathan Hafetz of the ACLU.  We discuss the judge's decision ordering Jawad released, whether the Obama administration is likely to release him or try to keep him detained, what the Obama DOJ's actions thus far reflect about how it will handle detention issues, and the facts that make this case stand out even among the numerous Bush-era travesties.  

We also discuss a question I have been wondering about for some time:  even if the accusations against Jawad were true -- and a federal judge just ruled there was little or no credible evidence that they are -- it would mean that he did nothing more than throw a grenade at two soldiers who were part of a foreign army that had invaded his country.  Not even the Bush administration ever claimed he had anything to do with Al Qaeda, or was a high-level member of the Taliban, or had anything to do with any Terrorist plots.  Independent of whether the American invasion of Afghanistan was or was not justified, how could an act like that -- an attack by a native citizen against soldiers of an invading army -- possibly make someone a Terrorist or a war criminal, let alone justify shipping them thousands of miles away to a camp for Terrorists (or, more bizarrely still, trying them in an American criminal court under American criminal law)? 

It's as though we've interpreted the laws of war so that it's perfectly legal for the U.S. to invade, occupy and bomb other countries, but it's illegal and criminal -- it turns someone into a Terrorist -- if any of the citizens of those countries fight back against our army.  When one adds to all of that Jawad's very young age at the time of his detention, the fact that he was repeatedly tortured, and the fact that he's now been kept in a cage for seven years, thousands of miles from his country, without any charges at all, his ongoing detention should horrify any decent person.

The discussion is roughly 15 minutes in length and can be heard by clicking PLAY on the recorder below.  A transcript is here.

To listen to this discussion, click PLAY on the recorder below:

GG: My guest today on Salon Radio is Jonathan Hafetz with the ACLU's national security project.  He is also a lawyer for Mohamed Jawad, the Guantanamo detainee who was taken in 2002 from Afghanistan when he was teenager, maybe even as young as 12, and was ordered released this week by a federal judge, who ruled that there was no credible evidence to justify his detention.  Jonathan, thanks very much for joining me.

JH: Good to be here.

GG: Now, one of the interesting things about what has happened in the Jawad case over the last couple of weeks is that the federal judge's condemnation of the government's conduct in this case was really quite extreme - very unusual for a federal judge I think when dealing with the government, especially in areas of national security and terrorism. Can you explain what has happened over the last couple of weeks that led up to the judge's ruling in the habeas proceeding?

JH: There's about three critical things that have happened. First of all, the government has for a long time sought to rely on evidence that had been gained through torture and abuse - physical beatings of Mr. Jawad, prolonged sleep deprivation, prolonged isolation and other cruel treatments. And we had moved to suppress the statement that was the product of torture, and in fact a military judge had already thrown out some of the statements, yet the government continued to try and use them in federal court. And the day the government's response was due to the judge, they abandoned reliance on this evidence. They basically conceded that Mr. Jawad was tortured, and the judge threw out the evidence.

At that point, however, the government then sought to delay the case for a number of weeks and the judge got understandably very frustrated, recognizing how long Mr. Jawad has been in prison, and that without his false confessions, they had no evidence. And so, a lot of sentiments from the judge were in response to this delaying tactic, and in fact the government wasn't recognizing that it didn't have any evidence against Mr. Jawad. So she scheduled a hearing, very promptly, at which point, the government then said they were conceding they had no basis to detain Mr. Jawad and threw in the towel, after which the judge ordered that he be released and granted the habeas petition.

GG: Now, the efforts on the part of the government to use evidence that was obtained by torture against Mr. Jawad to prove that he should be detained, was that something that was done by the Department of Justice under the Obama administration? In other words, was the Obama administration attempting to use evidence against him that everyone acknowledges was obtained by coercion and torture?

JH: I think the answer is yes, this was done by the Obama Justice Department, but on the other hand, the Obama Justice Department has openly decided not to try to use the evidence and we view the Justice Department - they are one entity - but it's unclear whether the people at the higher levels of policy, how much they knew what was going on until it finally came to their attention.

To me the big issue is a positive step to take to abandon reliance on this evidence of what was really gross mistreatment and well-documented as a way to avoid adverse judicial findings, and these - upbraided by the judge, or whether this represents a broader change in policy across different cases. I think that remains to be seen. We hope that their decision not to try to use the kind of coerced evidence in Jawad's case reflects a broader decision not to use that evidence in any other case.

GG: Let me ask you about that, because I've seen people argue both positions, and frankly I'm not sure which one I believe, and it sounds like you're not either, because you want to see how thing play out before deciding, but I just want to ask you to be clear.

Some people have said that they see this as a positive development -- that essentially the Obama administration here has said, well, look, we won't rely on evidence obtained by torture.  Other people, though, have said that they don't deserve credit for that because the judge had made clear that she was going to exclude that evidence, and wouldn't have allowed it, and in fact they were attempting to use it until the judge said essentially that it would be unusable. What is your view on that, in terms of whether they deserve credit for this, or were they forced by the judge into doing what they did?

JH: I think the judge had not actually said how she was going to rule on the suppression motion to throw out the evidence gained by coercion.  She indicated she was going to use the standard that we, the standard that our Constitution requires our federal courts to use, which is one of voluntary statements.  If the statement is involuntary, it's taken against someone's will, even if it's not extracted at the moment of torture or what's defined as cruel and degrading treatment, it's not useable in a federal court. It's not useable for two reasons. One, because it's notoriously unreliable, and two, because it just undermines the integrity of the proceedings, and it's against the values that our courts uphold.

Now, the interesting thing is that the Justice Department, the Office of Legal Counsel, according to press accounts, right around this time, had issued a legal opinion which regrettably is not public - it's an opinion which is binding on the Justice Department, and we were seeking access to that through the Freedom of Information Act - and in this opinion, this Office of Legal Counsel opinion, it appears to suggest that detainees at Guantanamo have constitutional due process rights and that involuntary statements cannot be used. We're not sure exactly what it says in all the details because it's not public, it's not clear if it was exactly on all fours, but that would be roughly consistent with the position we were advocating and the indication of what the judge was going to do. So, it may be that they just were not, the position of the Justice Department was to have to take was going to necessarily mean that the statements were going to be thrown out.

GG: Okay. Now, let me ask you a couple questions quickly about the charges that have been levied against Mr. Jawad, because I've always been sort of baffled by the case because of these two reasons. First of all, you indicated that he had been threatened when in Afghanistan -- I think he was told he would be killed, his family would be killed if he didn't confess, and this was very close to the time when two detainees were in fact murdered at Bagram, but then he was also subject to things like sleep deprivation and other forms of coercive interrogation tactics, torture tactics at Guantanamo.

Of course there are some detainees about whom the government alleges, probably credibly, that they were high-level ranking members of al-Qaeda, Khalid Sheikh Mohammed types, who might have had information about actionable plots, and therefore they were subject to these methods. But here is someone who by all accounts was never a member of al-Qaeda, or any kind of high-ranking member of the Taliban; he was a kid, basically, who was accused of throwing a grenade at two US troops who were part of a military unit that had invaded his country. What possible justification, or what motive was there, do you think, in choosing him to subject him to things like severe sleep deprivation and the like, given the obvious fact that he didn't have any intelligence information of that type?

JH: Well, I think he was a mix of different points, and certainly Bagram and in some stages at Guantanamo, the techniques that were used on so-called higher level, value detainees eventually were never limited just to those detainees. Now, techniques such as waterboarding may have been more limited in their use, but broader categories of abuse just spread like a virus and it was never just contained to the people that the administration believed were high-ranking alleged al-Qaeda members.

Once there was a decision to go outside the Geneva Conventions, and to treat the detainees as without legal protection, and there was pressure for intelligence, these techniques became used against even people like Mr. Jawad, who by all accounts is a kid and by all accounts has no connection to terrorism. In fact, we've shown very conclusively, he is innocent - and that's another point I think that is important to mention, that the government, at the end of the day, they had the opportunity to present evidence without his false confessions to the judge, and they did not do so. They simply just don't have the evidence, so based on that, the judge has granted our petition and ordered him home, and hopefully, that's what will happen next.

GG: Last couple questions, the one being the other issue about the accusations against him.  Obviously, the idea of terrorism grew out of - popularly, anyway - grew out of the September 11th attacks when people came over to the United States and attacked civilian targets here in the United States; that pretty much meets every definition of terrorism. But it seems like that term has grown rather drastically.

So here you have somebody, who as I indicated earlier, is basically accused of attacking members of an invading army, of an army that invaded, whether justifiably or not, legally or not, that invaded his country. Is the reason that that's considered a war crime, or that he's treated as being a terrorist or war criminal, is because he's not part of a regularly constituted army, and was acting as a civilian? I mean, obviously, people who are involved in regular armies have the right under the laws of war to do things like throw grenades. Why is he being treated essentially as a terrorist, even if the accusations were true - and I understand the argument is that they're not - but even if they were, why would that justify taking him halfway around the world to Guantanamo? 

And how is that different from - if you know - under the laws of war, from things like having Blackwater or civilian contractors engaging in violence in foreign countries in conjunction with our armies?

JH: Yeah. I think that hits the nail on the head. The answer is that it's not a war crime. The government's theory, and this was propounded during the failed military commission prosecution of Mr. Jawad that preceded the federal habeas corpus proceeding, was that because he was what they decided was an unlawful combatant, or unprivileged belligerent, that he was not an armed soldier of a nation state, that anything he did, any act was by definition a war crime, even if it was something like throwing a grenade at the invading army, which is not a crime under the laws of war.

What's interesting is that the military judge, in his military commission prosecution, rejected that theory, and essentially the government conceded at that point that without that theory, they had no case against Mr. Jawad. At that point, after that the military commission case would have been dismissed, but the commissions were suspended by President Obama, and so Mr. Jawad's case was sort of put on hold with everyone else, at which point the habeas corpus case began, and we were able to secure his release through that means.

But, you're right, it's a fundamental contradiction or issue in the government's theory, and what this is, what the allegation is - and again, there's no evidence to sustain it, is that this is basically a street crime, and this is something that has been always been, and should be, prosecuted, if it's going to be prosecuted at all, under Afghan law, and in fact that's exactly what we do in Iraq. If there's an attack by a so-called insurgent or someone commits an offense like this, they would be prosecuted under the Iraqi law; it does not justify taking someone, rendering them from the country, taking them halfway across the world, and incarcerating them without due process in Guantanamo.

And especially, it's doubly illegal, because Mr. Jawad was a juvenile, so it flouts, his treatment flouts every international treaty and the customs regarding the treatment of child soldiers, which mandates that if you're going to hold children, the purpose of capturing in the course of armed conflict, the purpose has to be rehabilitative, and the whole purpose of Mr. Jawad's treatment was not to rehabilitate him, but to break him, indeed to destroy him.

GG: Along those lines is my last question: as you alluded to earlier, there's a question about whether the Obama administration, even in light of this ruling by the judge that he should released, will nonetheless try to continue detaining him by indicting him in a federal court on actual criminal charges - and we've seen that happen in the past with previous detainees as a way of prolonging the detention, and I guess it remains to be seen whether they will in fact do that, or whether they'll finally release him.

But can you talk about the human aspect of this story? Here's someone who was thirteen, fourteen, maybe even twelve when he was detained seven years ago; he tried to commit suicide in 2003; does he hold out hope that his release is actually imminent, and how do you react as somebody who has been representing him, to the fact that his position is finally been vindicated and a judge has ordered his release?

JH: We're hopeful. We're grateful to see the habeas petition granted. He's optimistic, Mr. Jawad is, about it; hopeful, cautiously at least, about being finally sent home and that his nightmare of years of illegal detention and abuse are finally going to be over, and we just hope that, at this point, the Justice Department will really look at this case through the lens of justice, and if they do, there's really no other possibility but to send him home, and not to try to prolong his detention.  

The judge made abundantly clear, having looked at the evidence and examined his case very closely, that there's no question in her mind that the government did not the evidence to hold him, and that that he should be sent home to Afghanistan, which is demanding his return, and I think any careful review of the evidence by the Justice Department will point them in the same, will lead to the same conclusions. It's telling that they, the government chose not to contest at the end of the day the habeas proceeding to determine whether or not, to prove whether or not Mr. Jawad threw the grenade, and that proceeding, their burden of proof in that proceeding is lower than it would be at any kind of criminal trial. So they chose not to go forward because of the lack of evidence in a proceeding where it would have been easier for them to make their case than it would be in a criminal trial.

They face innumerable legal obstacles - issues around speedy trial, outrageous government conduct, which would make any prosecution incredibly difficult as Judge Huvelle pointed out, and then finally just to return to your question at the outset, there is the human element. Mr. Jawad was a juvenile admittedly when he was taken into custody, possibly as young as twelve, certainly no more than fourteen or fifteen years old, flown halfway across the world, grossly mistreated, and already served these seven years in detention. There's no allegation even today that he is associated with any kind of terrorist group, al-Qaeda or otherwise, and no matter how you look at it, factually, legally, or through equitable considerations, it is really a case that cries out, enough is enough, and send this boy home. And again, if the Justice Department is interested in doing justice, and we hope they are, and hold that believe that they are, then Mr. Jawad will be on a plane home to Afghanistan before the end of the month.

GG: And just to underscore that, the former military prosecutor, who was in charge of prosecuting his case, who began by believing he was guilty, upon reviewing the case because so disgusted that he stopped and issued an affidavit essentially saying that he is 100% certain that if he were returned to Afghanistan, he would present no danger to anybody.

Well, Jonathan, thanks very much for taking the time to discuss the truly commendable work that you're doing, that's actually very important for the rights of everybody. I really appreciate it and hopefully there'll be a good ending to this case shortly.

JH: Thanks, Glenn.


[Transcript courtesy of Thames Valley Transcribe]

By Glenn Greenwald

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