No Comment — July 31, 2009, 9:50 am

Court Orders Release of Juvenile Prisoner at Gitmo

When historians search through the materials relating to Guantánamo for a handful of cases that give a good sense of what was done there in the nation’s name, they’d be well advised to pause over the file of Mohammed Jawad. On December 17, 2002, a grenade was hurled at Americans traveling in a Soviet military vehicle, resulting in injury to several soldiers. Jawad was arrested and accused of the act. He may have been 12 years old at the time, and certainly was no older than 14. American officials consistently misrepresented him as older. Jawad states that he was near the passing convoy because he had been hired to clear landmines; he says he did not throw the grenade. The Government has never produced any meaningful evidence that he did.

Instead, the Bush Administration attempted to push Jawad’s case through on the basis of a confession extracted through torture. A military judge reviewing the case, Colonel Stephen Henley, concluded that Jawad was turned over to Afghan authorities who threatened to kill Jawad or his family if he did not confess; he refused to allow the case to proceed on this basis.

The torture of young Jawad was not limited to American proxies in Afghanistan, however. In Guantánamo he was abused repeatedly, particularly by means of a form of sleep deprivation known as the “frequent flyer program.” This regime involved prison guards waking a prisoner every 2-4 hours and moving him to a different cell, ensuring that he would not sleep for days. Jawad was subjected to this process 112 times, according to military records. And interestingly, all of those incidents occurred after the military—following widespread criticism of the program—announced that it had ceased its use in May 2004. Judge Henley wrote that “[t]hose responsible should face appropriate disciplinary action, if warranted under the circumstances” for their “flagrant misbehavior.” There is no evidence so far of any disciplinary action or even of an investigation. Under the doctrine of command responsibility, the Pentagon has an affirmative duty to investigate war crimes allegations–and in this case, we have what approaches a judicial determination that war crimes occurred.

Jawad also sought habeas corpus review of his case before Judge Ellen Segal Huvelle in Washington. In the last week, the Justice Department admitted to the court that its defense of Jawad’s detention in Guantánamo was no longer tenable–a fact that had been plain to all outside observers following Judge Henley’s ruling. The Justice Department’s case rested entirely on confessions secured by torture; moreover, the Justice Department had consistently misled the court about the circumstances in which the confessions were obtained and insisted that no torture was involved—apparently relying to the bitter end upon the celebrated John Yoo understanding of the word “torture.” Yesterday, Judge Huvelle ordered Jawad’s release and return to Afghanistan. “Enough has been imposed on this young man to date,” she said. The judge gave the government until August 21 to arrange his return home to Afghanistan.

Major David Frakt, the Air Force reserve JAG whose tenacious management of the defense of Jawad does credit to the uniformed bar, summed up the situation well in a powerful closing argument he delivered to the Military Commission that led to the rejection of the government’s case against his client:

Why was Mohammad Jawad tortured? Why did military officials choose a teenage boy who had attempted suicide in his cell less than 5 months earlier to be the subject of this sadistic sleep deprivation experiment? Not that anything would justify such treatment, of course, but at least in the case of the other detainees known to have been subjected to sleep deprivation, they were believed to possess critical intelligence that might save American lives. Unfortunately, we may never know. I’ve asked to speak to the guards who actually carried out the program, and I’ve been denied. In the absence of information to the contrary, which the government would surely provide if it existed, we are left to conclude that it was simply gratuitous cruelty.

The government admits that Mohammad Jawad was treated “improperly,” but offers no remedy. We won’t use any evidence derived from this maltreatment, they say, but they know that there was no evidence derived from it because the government didn’t even bother to interrogate him after they tortured him. Exclusion of non-existent evidence is not a remedy. Dismissal is a severe sanction, but it is the only sanction that might conceivably deter such conduct in the future…

Sadly, this military commission has no power to do anything to the enablers of torture such as John Yoo, Jay Bybee, Robert Delahunty, Alberto Gonzales, Douglas Feith, David Addington, William Haynes, Vice President Cheney and Donald Rumsfeld, for the jurisdiction of military commissions is strictly and carefully limited to foreign war criminals, not the home-grown variety. All you can do is to try to send a message, a clear and unmistakable message that the U.S. really doesn’t torture, and when we do, we own up to it, and we try to make it right.

Read all of Frakt’s argument here.

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