Hina Shamsi,
Director, ACLU National Security Project
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September 30, 2008

(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.