Despite its recent concession that the bulk of its case against Guantánamo Bay detainee Mohammed Jawad consists of evidence illegally obtained through torture, the Obama administration announced on Friday that it may attempt to bring criminal charges against Jawad in U.S. federal court. This sudden change of course represents the latest in a series of desperate attempts by the government to detain Jawad, who was captured during his early teenage years, without credible evidence and without cause. And even though it now concedes that Jawad's seven-year detention and torture at the hands of the U.S. was illegal, the government still thinks it can circumvent the opinions of a U.S. District Court judge, the Afghan Attorney General, Jawad's former military prosecutor, and countless others, by continuing to hold him illegally and on unsubstantiated grounds.

Jawad, who may have been as young as 12 when he was captured in Afghanistan, has been held for nearly seven years in U.S. custody on the unsubstantiated basis that he threw a hand grenade at two U.S. soldiers. The government's case against him consists almost entirely of statements Jawad made under torture, which have been ruled inadmissible by military and U.S. courts.

U.S. District Court Judge Ellen Segal Huvelle said what we were all thinking when she told the government that its case against Jawad was "in shambles" during a hearing on July 16. Judge Huvelle told the government's lawyers — in no uncertain terms — that their failure to bring a viable case against Jawad, despite having illegally detained him for almost seven years, amounts to an insult to the court and an outrage against justice. Judge Huvelle put it best in her own scathing criticism of the government's lawyers:

This case is riddled with holes. And you know it … The United States Government knows it is lousy. If you can't rely on [Jawad]'s statements, you have a lousy case … The case is in shambles.

Nonetheless, the government refuses to let go. Even though its past reliance on Jawad's coerced statements has been soundly rejected — first by a military judge last fall, then by Judge Huvelle — the government is now trying to circumvent those decisions by asking the court for permission to continue holding Jawad indefinitely while it decides whether to bring criminal proceedings against him in U.S. court. If the government was not able to make a credible case against Jawad while relying on coerced evidence, it will certainly not be able to make a case against him now.

Yesterday, we filed a brief asking the court to deny the government's request. The Afghan government has indicated that it is prepared to receive Jawad immediately and unconditionally, and that the repatriation could be done without any cost to the U.S.

The Afghan Attorney General has already demanded his long-overdue return, and the sentiment that Jawad should be released has been echoed by Judge Huvelle and countless others, including the former lead prosecutor in his case. The administration has entrenched itself in an unsupportable case, but it's not too late to make things right by admitting defeat and sending giving Jawad his freedom back.

Tomorrow, we'll be back before Judge Huvelle for a status hearing. Yesterday, Judge Huvelle ordered the government to turn over a plan for resolving the case by 5 p.m. tonight.

Adm. Patrick M. Walsh, the vice chief of Naval Operations, presented his review of conditions of confinement at Guantánamo Bay (PDF) at a briefing at detention facilities at Guantánamo Naval Base yesterday afternoon. The review team interviewed the military leaders in charge of the detention facility as well as staff, interrogators and guards, and spoke with “about a dozen” detainees. The team also observed “enteral” feedings of hunger-striking prisoners, which entails inserting a tube down the detainee’s nose to his stomach to pump in a protein shake twice a day as the detainee is shackled to a chair and his head attached to a metal restraint with Velcro. Adm. Walsh concluded that the detainees at the prison are being held “in conformity with all applicable laws governing the conditions of confinement, including Common Article 3 of the Geneva Conventions.” Secretary Gates endorsed the report and sent it to President Obama over the weekend.

This is the Department of Defense (DoD) review ordered by President Obama under Section 6 of his January 22, 2009 Executive Order (PDF) to determine whether conditions of confinement at Guantánamo conform to Common Article 3 of the Geneva Conventions and to "other applicable laws." Common Article 3 provides that all detainees are legally entitled to humane treatment in all circumstances. Detainees may not be subject to “cruel treatment and torture” or “outrages upon personal dignity, in particular, humiliating and degrading treatment.”

As we all now know, the Bush administration’s views of what constitutes humane treatment have been far off the mark, and led Major General Antonio Taguba (who investigated the abuses in Abu Ghraib) to conclude that “there is no longer any doubt as to whether the current administration has committed war crimes.” It is hard to trust the current Pentagon leadership’s definition of humane treatment and, in fact, Adm. Walsh’s report ignores definitions already set forth in international human rights law and standards when it alleges that “there is no clear definition of `humane’ treatment, in either U.S. or international law.”

Adm. Walsh does not recommend changes that would address the many violations of international and domestic law that the ACLU and other groups, including the detainees’ own lawyers, have identified. Here are some initial points that the report failed to address or consider sufficiently:

• It does not take into account human rights law and standards (including the International Covenant on Civil and Political Rights) in the review even though such standards are part of the United States’ treaty obligations. In a letter the ACLU wrote to the Assistant Secretary of Defense in early February, at the request of the Pentagon, we urged the review team to ensure it considered these standards.
• It does not take into account that prisoners brought to Guantánamo as juveniles— including the four currently being held there (Omar Khadr, Mohammed Jawad, Mohammed Khan Tumani and Mohammed el Gharani)—are entitled to special treatment, including special housing, and reintegration and rehabilitation programs, under the United States’ binding treaty obligations.
• It does not adequately examine the use of force and violence against prisoners by the so-called “Immediate Reaction Force,” e.g., most recently, the mistreatment of Binyam Mohamed who was freed from Guantánamo yesterday but arrived home to Great Britain with fresh bruises.
• It glosses over the fact that the use of sensory deprivation is still permitted. For example, sleep deprivation continues to be employed (and is enhanced by the use of 24-hour fluorescent lights), as are purposefully loud sounds of guard activity throughout the night, and 2 a.m. wake-up calls for recreational activities. More details of these abusive practices are recounted in the Center for Constitutional Rights’ report on the current conditions in Camps 5, 6, and Echo.
• It legitimizes inhumane force-feeding.
• It inadequately presents the input from NGOs and their critique of current conditions and does not provide information about which detainees were picked for interviews, and if they constituted an accurate representation of the larger population of detainees at the camp.

While the report does refer to the devastating effects of prolonged indefinite detention without charge on conditions of confinement, the review team denies that the current policies—of prolonged and indefinite detention—are punitive or constitute a form of collective punishment. The report instead effectively directs blame for the inhumane conditions in which they are kept on the prisoners themselves, alleging that these men, the vast majority of whom have been held without charge or process for eight years, engage in acts of “defiance, non-compliance with camp rules, and manifestations of self harm or attempts to injure or kill camp personnel.” Disturbingly, the report cites several U.S. federal court decisions and federal bureau of prison standards and polices to justify the current inhumane conditions at Guantánamo -- a stark reminder of the inhumane and cruel standards very often permitted in our prison systems under U.S. Supreme Court interpretation of what constitutes cruel and unusual punishment.

No one denies that conditions at Guantánamo have improved over the years, especially with regard to interrogation methods, and the report does make some helpful suggestions, including that interrogations be videotaped, that the repatriation of detainees should be expedited, and that “further socialization is essential to maintain humane treatment.” The report must not be seen as vindication for seven years of illegal Bush detention and treatment policies at Guantánamo. Adm. Walsh’s 13-day review of Guantánamo, by design, provides only a snapshot of Guantánamo at this moment in time, and a questionable one at that, given the inability the Defense Department to police itself and what’s known about conditions at the prison camp. Moreover, Adm. Walsh himself acknowledges his team did not scrutinize whether the camp had complied with the Geneva standards throughout its history or interview former prisoners who claimed they were tortured.

The ball is now in the President’s court to permit that truly independent review and to improve conditions immediately. The ACLU and other human rights groups requested full access to the camps to do their own review of camp conditions in late January. As Adm. Walsh himself recognized, in a recommendation to President Obama:

[c]onsider inviting non-governmental organizations and appropriate international organizations to send representatives to visit Guantánamo, in a manner that does not jeopardize the current relationship with the ICRC and is consistent with security and safety of the detainees and guard force.

On January 12, the ACLU filed a habeas corpus petition on behalf of Guantánamo detainee Mohammed Jawad, who was a teenager when he was taken into U.S. custody in Afghanistan. The case seeks to challenge the basis for Jawad’s illegal detention and prosecution in the unconstitutional military commissions system in a federal court. Even Jawad’s former military prosecutor, Lt. Col. Darrel Vandeveld supports our case. He left the military commissions because he did not believe he could ethically prosecute Jawad’s case because there is "no credible evidence or legal basis" to justify Jawad's detention and prosecution.

Just two days after the Bush Justice Department received our petition, DOJ attorneys filed a motion to dismiss or delay our case on the grounds that the federal court should wait for Jawad's military commission case to end. But of course, the landscape changed after President Obama took office and issued an executive order instructing Defense Secretary Gates to seek a halt to all military commission cases, including Jawad's.

The President’s Order is a good first step to end the ignominious commissions, but it cannot be used — as the government now is using it in Jawad’s case — to delay habeas relief. We also believe that the flawed and unconstitutional military commissions system should never be revived. So today we filed our brief opposing the government's motion to dismiss. Check out a new video about the case featuring ACLU National Security Project staff attorney Hina Shamsi:

Mohammed Jawad has now spent six years — nearly a third of his life — at Guantánamo, and has been subjected to torture and cruelty there. Six years is a lifetime for anyone, not just a teenager; in this case, justice delayed is truly justice denied.

(Originally posted on Daily Kos.)

It's a safe bet that future generations will judge the U.S. military's detention, treatment and trial of prisoners at Guantánamo harshly, as one of the lowest points in this country's history. But the full story has to include accounts not just of leaders who betrayed this country's most fundamental values, but also of the lower-ranking military personnel who stood up to confront their own government. During the military commissions hearings last week, military defense lawyers and a prosecutor reminded us, again, that there are men and women of courage and honor who are willing to risk their careers and livelihood to speak out against injustice.

At the beginning of the week, military defense lawyers assigned to advise the 9/11 defendants fought zealously to seek some measure of fairness in a system stacked against these detainees. In the latter part of the week, all the focus was on a dramatic development in the commissions' case against Mohammad Jawad: Lt. Col. Darrel Vandeveld, the lead prosecutor, resigned because he does not believe he can ethically proceed with the case.

Before the start of Thursday's hearing in Jawad's case, Major David Frakt, his lawyer, told the media and observers that Vandeveld had given him a written declaration setting out the reasons for the resignation, which Frakt had filed with the court. During the hearing, Frakt reminded the court that Vandeveld "was quite an aggressive prosecutor" but said "he is nevertheless guided by a strong ethical and moral compass." Frakt told the judge that although Vandeveld feared retaliation against him, he was willing to testify, either by phone or videoconference.

The retaliation Vandeveld feared began even before he testified, and it was fierce and personal. Frakt told the court that the chief prosecutor had directed Vandeveld to undergo a psychiatric evaluation, ordered him to stay at home, and prohibited him from coming into his office pending his official release from military service. Once Brig. Gen. Thomas Hartmann, the new "war-court czar" in charge of logistics for the military commissions, found out about Vandeveld's declaration, he quickly armed commissions personnel with media talking points that discredited Vandeveld and called his motivations into question. (Frakt had a copy of the talking points, which he provided to the judge.)

Hartmann has a well-documented history of improperly attempting to influence commission proceedings. Until a couple of weeks ago, he oversaw the military commissions as a legal advisor, a position in which he was supposed to maintain neutrality. But, as military judges found in three cases, Hartmann pressured prosecutors to make decisions based on political considerations or otherwise exercised inappropriate control over them. Hartmann was likely reassigned by the Pentagon in an attempt to neutralize criticism, but it seems that the fox was removed from the henhouse only to act as if he were in charge of the farm. Frakt told the court that since Hartmann was reassigned, he has "lost any pretense of impartiality" and that he was "very involved" in efforts to prevent Vandeveld from testifying.

Perhaps because of Vandeveld's fears of reprisals, on Thursday he initially asked for immunity from prosecution in return for his agreement to testify. It appears Vandeveld had a change of heart, though, because he does not seem to have pressed the issue and he testified without immunity on Friday afternoon. It will be important and telling, in the coming days and weeks, how the Pentagon treats Vandeveld and whether there are further attempts to smear him. Already, Vandeveld's request to be transferred to Afghanistan or Iraq for the remainder of his time on active duty has been denied and he is being released from active service.

Based on Vandeveld's own testimony and Frakt's description of his declaration in court, Vandeveld has three main reasons for resigning. First, Vandeveld said he turned from a "true believer" in the military commissions to feeling "truly deceived" when he realized records were not being provided to defense lawyers as required — and simply could not be — because the process for gathering, maintaining and transferring records was in "utter disarray." According to Vandeveld, the systemic flaws "deprive the accused of basic due process and subject the well-intentioned prosecutor to claims of ethical misconduct."

Second, Vandeveld said that the government has not provided Jawad's lawyers with exculpatory evidence — evidence that could show Jawad's innocence — as it is required to do; he provided examples of specific documents that had not been turned over. On cross-examination by the government (his former co-counsel), Vandeveld admitted that he had himself known about the existence of certain of those documents for a year, but had not turned them over to the defense. According to Vandeveld, he was waiting for the documents to be declassified and for a judge to issue an order establishing a schedule for document production. This struck me as odd. Every prosecutor knows that exculpatory evidence has to be turned over to the defense promptly, regardless of whether there's a court order. Why would a prosecutor willing to resign over documents not being handed over to the defense himself fail to provide those documents? Vandeveld didn't address that question specifically. Given his general description of pressure to prosecute cases aggressively, quickly and without being too cooperative with the defense, I'd speculate that he was working in an environment in which an ethical prosecutor may need the protection of a judicial order to do the right thing.

Finally, Vandeveld said that he had become troubled that Jawad, who was a teenager at the time of his capture, had not been segregated from adult prisoners and had not been provided with rehabilitation. He added that his view of the case had "evolved" over time because he suspected that Jawad was duped into joining an anti-American group and was drugged before the event of which he is accused — throwing a grenade at two U.S. service members and an interpreter. Vandeveld also referred to the abuse Jawad suffered at Bagram and at Guantánamo. Based on all this, and on his strong belief as a Catholic in "reparative and restorative" justice, Vandeveld had come to the conclusion that the government should offer Jawad a plea deal — a short period of confinement that would include rehabilitation, followed by release. His supervisors refused.

Rather than the plea deal Vandeveld wanted to give him, Jawad faces a maximum sentence of life imprisonment. But Vandeveld's concerns about prosecuting Jawad were reinforced by the government's own witnesses who testified on pre-trial evidentiary issues that were also before the court during the hearing. These witnesses told the court they knew at the time of Jawad's capture that he was a juvenile, and that he may have been forced by adults to throw the grenade. Jawad's defense counsel questioned whether he even threw the grenade, given that Afghan authorities arrested at least one other person, an adult, in connection with the attack.

The first military interrogator to interview Jawad after his capture admitted that Jawad said he had not wanted to throw the grenade and that "when it came time to commit the act, he got cold feet and was afraid. He was drugged and accompanied by an older gentleman who did not give him the option not to go through with the act." In addition, the interrogator testified, Jawad said he'd been "recruited" by a Taliban-affiliated group, the Hizb-i-Islami, with the understanding that he would be able to make money to support his family, but that "at the time he was recruited, he wasn't fully aware of what he would be doing." A part of the military interrogator's testimony took place behind closed doors because the interrogation techniques to which he subjected Jawad are apparently classified. (The ACLU has challenged similar abuses of the classification power in other cases) In open court proceedings, though, Jawad's counsel made clear that the techniques could include acts of torture and cruel, inhuman and degrading treatment in violation of the Geneva Conventions.

There is a souvenir shop a short drive from the courtroom in which the hearing in Jawad's case took place. On Friday, after Vandeveld testified and the hearing ended, I walked around the shop looking at T-shirts and coffee mugs emblazoned with Honor Bound to Defend Freedom, the motto of the military task force responsible for detainee operations in Guantánamo. It struck me that the only honor to be salvaged in the courtroom that afternoon had been that of the military lawyers defending Jawad, and the military prosecutor who refused to continue on the case against him.