The Justice Department has said it will not appeal the Sept. 17 order of Judge Judge Colleen Kollar-Kotelly, who granted Al Rabiah’s petition for release in a scathing ruling that criticized the U.S. government and described how interrogators used coercion and abuse to extract false confessions from him. Al Rabiah’s lawyer, David Cynamon, has demanded an investigation from the Senate Armed Services Committee and the inspectors general of the Defense and Justice departments, as well as from Attorney General Eric Holder. He has not received a response.

The situation sounds reminiscent of the case of Mohammed Jawad, an Afghan teenager who a military commission judge had similarly ruled was “tortured” and coerced into confessing to throwing a grenade at U.S. soldiers. The bulk of his case was based on his coerced statements, and was eventually thrown out by the military commissions and dropped by the Justice Department.

Jawad’s military lawyer, David Frakt, complained repeatedly to senior Defense Department officials that he believed U.S. military personnel had committed war crimes in connection with his client. As TWI documented in September, Frakt never received a response, and the matter appears never to have been investigated.

Jawad is now back in Afghanistan. Al Rabiah’s future, however, remains in doubt. Although the Justice Department has said it won’t appeal his order of release, a military commission case is still pending against him.

Salim Hamdan, Osama bin Laden's alleged driver, was held in Cuba at Guantanamo Bay prison camp like these detainees. (Department of Defense photo by Petty Officer 1st class Shane T. McCoy, U.S. Navy)

New documents obtained by TWI related to the case of Mohammed Jawad, an adolescent tortured by Afghan police and then abused again by U.S. interrogators, suggest that not only certain CIA interrogations, but interrogations by the Department of Defense demand a broader investigation as well.

Last month, Attorney General Eric Holder announced that he would investigate only CIA interrogations that appeared to have violated the agency’s rules and guidance from the Department of Justice. The Jawad case, however, reveals that U.S. military interrogations also violated well-established laws and appear to have violated the Justice Department’s legal guidelines as well. The newly obtained documents also reveal that the Department of Defense repeatedly failed to follow up on complaints by Jawad’s lawyers that its officers were breaking the law.

Illustration by: Matt Mahurin

Jawad, who was about 12 years old when he was captured and accused of throwing a hand grenade at U.S. soldiers, endured “cruel and inhuman” treatment and possibly “torture” while in U.S. custody, a U.S. military commission judge ruled last year, determining that his supposed “confessions” to the crime were therefore unreliable. A federal district court judge later similarly refused to admit the confessions in ruling on Jawad’s habeas corpus petition, and announced that without Jawad’s statements, the government’s case was “riddled with holes.” She eventually granted Jawad’s petition, and Jawad was released on Aug. 24 after nearly seven years in captivity, most at the U.S. detention center at Guantanamo Bay.

Despite the court’s rulings that Jawad was mistreated in U.S. custody, however, no one has ever been punished or otherwise held accountable. His lawyers say that despite repeated requests, the Defense Department never investigated whether its officers had violated the law. Jawad’s lead military lawyer, Air Force Maj. David Frakt, has released to TWI some of the details of how and why he asked the Defense Department to investigate, and how his repeated complaints about Jawad’s treatment went ignored.

Jawad now plans to sue the United States for his mistreatment, which included such extreme sleep deprivation that it appears to have violated even the rules governing interrogation tactics issued by the Bush Justice Department’s Office of Legal Counsel, which issued the now-infamous “torture memos.”  A military judge in Jawad’s case excluded his “confessions” in part on the grounds that he endured 14 days straight of sleep deprivation (by means of what came to be known as the “frequent flyer” program), which may well have amounted to torture. Justice Department memos approved up to 96 hours of sleep deprivation, although some make reference to 180 hours, which would be 11 days. But 14 days exceeds the guidelines of all of the legal memos regarding interrogations that have been revealed so far.

According to Judge Stephen Henley, the U.S. Army colonel who ruled on Jawad’s military commission case, Jawad was “moved from cell to cell 112 times from 7 May 2004 to 20 May 2004, on average of about once every three hours.” Jawad was shackled but not interrogated; “the scheme was calculated to profoundly disrupt his mental senses.”

The alleged purpose of the “frequent flyer” program, Judge Henley wrote, was “to create a feeling of hopelessness and despair in the detainee and set the stage for successful interrogations.” But by the time Jawad was subjected to it, he “was of no intelligence value to any government agency,” Judge Henley ruled. “The infliction of the ‘frequent flyer’ technique upon the Accused thus had no legitimate interrogation purpose.” (Significantly, interrogation experts say sleep deprivation doesn’t produce useful information even if the subject does know something.)

When Frakt, Jawad’s appointed military defense lawyer, learned about how the frequent flyer program was used on Jawad, he became so concerned that, as a military officer, he felt obliged to report to his superiors what he believed was evidence of a war crime. So on May 29, 2008, Frakt sent a memo to the chief defense counsel at the Office of Military Commissions.

“I am reporting a suspected LOAC [Law of Armed Conflict] violation that I have uncovered in the course of my duties as a defense counsel assigned to the Office of Military Commissions Defense,” Frakt wrote. Frakt wrote that after an exhaustive review of the facts and relevant law, he believed Jawad had been tortured — in violation of the Geneva Conventions, U.S. and international law, and Defense Department regulations. “Accordingly, I believe I have an affirmative obligation to report the incident to my chain of command,” he wrote. Frakt cited several provisions, all of which require reporting of suspected war crimes to a supervisor.

Records provided by the government in the course of the case before the military commission reveal that from May 7, 2004 until May 20, 2004, Jawad, a teenager at the time, was subjected to the program.

“During this 14 day period, Mr. Jawad was moved from cell to cell 112 times, an average of every 2 hours 50 minutes,” Frankt wrote in the memo. “There were eight extra moves of very short duration between the hours of midnight and 0200 to ensure maximum disruption of sleep.”

After sending that memo, Frakt expected to receive a response. At least, eventually. But he received nothing.

So on Oct. 7, 2008, he followed up with an e-mail to the Commander in charge at the U.S. Southern Command post, Joint Task Force for Guantanamo Bay, or SouthCom-JTFGTMO. He cc’d four lawyers in the Pentagon’s Office of General Counsel.

In his email, Frakt wrote:

On 29 May, I filed this LOAC violation memo with the Chief Defense Counsel, COL David. He forwarded the memo to your office on or about 1 June. Presumably your office forwarded it to SOUTHCOM. I have never received any information about the investigation.

The military judge in the Jawad case recently found that Jawad was subjected to the frequent flyer program, and that it constituted “abusive conduct and cruel and inhuman treatment.” (see attached ruling) He found it unnecessary to decide whether the conduct rose to the level of torture but did find that the action was intended to seriously disrupt the mental senses, which is one of the elements of psychological torture. He recommended disciplinary action for this “flagrant misbehavior”. [Confidential testimony from Guantanamo officer indicated] that the program was standard operating procedure, was carried out on many detainees as part of the camp “incentives program” and was personally approved by Col Nelson Cannon (now Maj Gen) and Brig Gen Jay Hood (now Maj Gen). Please provide me with an update on the status of the mandatory LOAC violation investigation or direct me to the appropriate officials who can respond to this inquiry. If you need any further supporting documentation to assist you in the investigation, please let me know. Thank you very much.

Frakt received no response. In January of this year, he sent another e-mail to the same Commander and a Captain at Joint Task Force-Guantanamo, and the same set of lawyers in the Pentagon’s General Counsel office.

It read, in part:

It has now been over seven months since this report was filed. I have never received any update on the status of the mandatory LOAC violation investigation. In the interim, the Military Commission has determined that the violation did, in fact, occur and that “under the circumstances, subjecting [Mr. Jawad] to the ‘frequent flyer’ program from May 7-20, 2004 constitutes abusive conduct and cruel and inhuman treatment.” In other words, Mr. Jawad was abused, in clear violation of the Geneva Conventions. The commission has specifically recommended that “those responsible should face appropriate disciplinary action.” (See attached Ruling D-008)

Upon receipt of a LOAC violation report, a formal investigation is mandatory and should be done by the most expeditious means available. However, it does not appear that the DoD Directive was followed because I have never been contacted by anyone regarding my report. Please confirm whether JTF-GTMO or SOUTHCOM investigated this incident, and provide me with an update on the status of this investigation or direct me to the appropriate authority at USSOUTHCOM who can answer this query. If I do not receive a satisfactory explanation, I intend to pursue this matter with the appropriate Inspector General offices. Thank you very much for your prompt attention.

V/R

David J. R. Frakt, Major, USAFR

To this day, says Frakt, he has not hear back from the Defense Department as to whether anyone investigated the abuse and potential war crimes violation.

The Defense Department and US-SOUTHCOM-JTFGTMO did not respond to TWI’s request for comment. TWI has other outstanding requests for comment from the the Defense Department, including an explanation of why the department stopped reporting the deaths of detainees in U.S. custody in Iraq and Afghanistan, and a statement of the current policy of reporting those deaths. Despite at least half a dozen requests, TWI has never received an answer.

The transcripts come from the Combatant Status Review Tribunals, which the military set up to determine whether suspects seized qualified as “enemy combatants.” Advocates hoped the Obama administration would release those documents, which Bush officials had previously refused to turn over. But the CIA turned over only heavily-redacted transcripts of the proceedings in June that continue to conceal the prisoners’ accounts of their treatment.

“While much is known about the Bush administration’s torture program, the CIA is continuing to censor the most important eyewitnesses – the torture victims themselves,” Ben Wizner, staff attorney with the ACLU National Security Project, said in a statement released today. “The CIA destroyed videotapes of interrogations in order to hide its crimes from the American public; the Obama administration should not prolong this cover-up by suppressing the victims’ firsthand accounts. The CSRT records will provide critical missing information about how the CIA’s torture program was actually carried out and will shed light on whether interrogators followed, or exceeded, Justice Department legal guidance that purported to authorize brutal interrogations.”

The government argues that it must continue suppressing the documents because releasing them would reveal “intelligence sources and methods” and might aid enemy “propaganda.”

The ACLU counters that most of those methods have already been publicized, and that fear of the public reaction to the information cannot be grounds for concealing it.

“No court has ever upheld the suppression of descriptions of government misconduct on the ground that those descriptions would inflame the nation’s enemies,” writes the ACLU lawyers in their brief filed today. “To do so would enshrine into the [Freedom of Information Act] the fundamentally antidemocratic principle that the more egregious the government misconduct at issue, the more protected it would be from public disclosure. “A law enacted “to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed,” writes the ACLU, citing the Supreme Court, would thus be “transformed into an instrument of cover-up.”

The Obama administration has made a similar argument to defend its refusal to release photos of prisoner abuse that the ACLU is also seeking under the Freedom of Information Act.

Jawad’s case is particularly compelling given that he was arrested by Afghan authorites for allegedly throwing a hand grenade when he was as young as 12 years old, according to the Afghan government. His lawyers say the primary evidence against him was his “confession” to Afghan police after they threatened to kill him and his family if he didn’t say he committed the crime. His “confession” again hours later to U.S. authorities who were similarly trying to intimidate was determined by a U.S. military judge to have also been coerced, unreliable and inadmissible in his military commission case.

The Obama administration, however, in Jawad’s habeas case introduced that same tortured evidence to argue the government had a right to keep him imprisoned. It was only yesterday when, for the first, time, the government indicated a shift in position, by filing a document with the district court hearing the case saying it would not oppose the arguments of Jawad’s ACLU lawyers that the evidence should not be used against their client.

ACLU lawyer Jonathan Hafetz says he had no prior indication that the government would be changing its view in this case, and although he thinks it’s a hopeful sign, it’s not completely clear what it means.

“To me the question is, does this reflect a changed position on the use of coerced evidence generally, as we hope, or just another example of the government dropping a dubious position to avoid embarrassment and an adverse decision by a court?” Hafetz said.

All indications are that the judge in the case, Ellen Huvelle, would likely not allow the introduction of evidence acquired through torture. And an Office of Legal Counsel memo, which the ACLU requested from the government via a FOIA lawsuit yesterday, reportedly says that such Guantanamo detainees would have the right to object to use of such coerced evidence at their military commission trials.

And as Jess Bravin at  The Wall Street Journal reported, military prosecutors “have said involuntary statements comprise the lion’s share of their evidence against dozens of Guantanamo prisoners who could be tried.”

So was the Justice Department’s decision not to press for using the coerced confessions in Jawad’s case just a strategic move, or does it signify a real change in policy on the part of the Obama administration?

That remains to be seen. In the meantime, the government will soon have to report to the court whether it has any convincing legally admissible evidence that supports continuing to hold Jawad, or whether it will have to let him go.