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Prosecutors Desert a Sinking Ship

Hina Shamsi,
Director, ACLU National Security Project
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September 25, 2008

(Originally posted on Daily Kos.)

As previously noted, we learned late yesterday that Army Lieutenant Colonel Darrel Vandeveld, the lead prosecutor in the military commissions case against Mohammed Jawad, has resigned in protest because the prosecution team was withholding exculpatory evidence from the defense. Jawad was a teenager when he was captured in Afghanistan and he’s one of the two youngest prisoners at Guantanamo.

The reason for the prosecutor’s resignation is only the latest in a series of deeply disturbing revelations in Jawad’s case. In July, we learned that Jawad was subjected to the euphemistically-named “frequent flyer” program, in which detainees at Guantanamo were subjected to sleep deprivation for days on end as punishment for failing to cooperate with their jailors or for misbehaving. Jawad’s treatment, which his lawyers say is chronicled in prison logs, appears to have been particularly harrowing. In May 2004, a few months after Jawad tried to hang himself in his cell, prison officials deprived him of sleep for two weeks by moving him 112 times in 14 days – and they did so after the government claims it officially discontinued the “program.”

Vandeveld is not the first prosecutor who has left or resigned from the prosecution team in protest against unethical or unlawful pressure. The head of the entire prosecution team, Col. Morris Davis, resigned in October 2007, citing pressure from senior Pentagon officers to secure convictions in time for this year’s elections. Jawad’s defense lawyer, Maj. David Frakt, says he has a declaration from Vandeveld detailing the reasons for his resignation, and expects to provide the declaration to the court during hearings tomorrow and Friday. Stay tuned for details.

The revelation came at the end of a day in which there were two sets of hearings, a continuation of yesterday’s proceedings against the alleged 9/11 defendants, and a pre-trial hearing in the case of Ali Hamza al-Bahlul, whom prosecutors accuse of being Osama bin Laden’s media secretary. I attended the al-Bahlul proceeding and, if it is any guide, al-Bahlul’s trial is likely to be a circus. The defendant has said that he will “boycott” the trial by not permitting his counsel to put on a defense. Instead, al-Bahlul intends to comment on the proceedings and the unfairness of the process being used to try him. We got a preview of his approach today when al-Bahlul launched into a long, often rambling, sometimes agitated justification for his actions as part of a war al-Qaeda wants to engage in against the United States. This was a man clearly seeking attention and recognition as a warrior. Ironically, the government has given al-Bahlul what he wants by trying him in a military court, under a system he can attack as unfair and illegitimate.

The U.S. should shut down the military commissions and try defendants like al-Bahlul in federal court, where the Constitution still means something and real justice can be achieved…

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