One of the most puzzling things about yesterday’s news of the dismissal of charges against five Guantánamo detainees is that Mohammed Jawad was not among the five to have his charges dismissed. This is odd because it was Jawad’s case that Lt. Col. Darrel Vandeveld resigned over after protesting the withholding of exculpatory evidence—evidence that could prove Jawad’s innocence—from the defense.
Well, it looks like ProPublica’s Eric Umansky has chased down the reason why Jawad’s charges weren’t dismissed:
We spoke with Jawad’s military lawyer, Maj. David Frakt, who said that Jawad’s case is both much further along and more troubled than the others. Frakt argued that the government is going to end up dismissing the charges against Jawad, and unlike the other cases, will be unlikely to re-file them.
“Jawad is really on a separate track,” Frakt told us. “The judge has specifically rejected the government’s theory in the case.” Last month, the judge ruled that the mere status of being an enemy combatant isn’t a war crime (PDF). Though the government still has an opportunity to bring new allegations against Jawad, what amounts to the enemy combatant charge has so far been the basis of the government’s case.
Jawad’s trial is currently set to start Jan. 5. But Frakt doesn’t see it coming to that. “The case is dead in the water,” he said.
You’ll recall that Jawad was a teenager when he was captured, and Frakt has argued all along that Jawad should have been treated as a child solider and rehabilitated instead of incarcerated. Last month, the judge in Jawad’s case substantiated the defense’s claims (PDF) of abusive treatment—namely, the now-infamous “Frequent Flyer” sleep-deprivation program—Jawad suffered while in U.S. military custody.
Pentagon officials say they dropped the charges just so they can start fresh and refile the charges against these detainees. In the meantime, these detainees have no hope of being released, charges against them or not. It’s what makes the military commissions, and the mere existence of Guantánamo, so very unconstitutional.