I’m here at Guantanamo to observe a hearing in the case of Noor Uthman Mohammed, who is being accused of material support for terrorism. There has been very little detail released about the evidence against him, because much of it is classified — possibly because Mohammed was caught in the same sweep in which the U.S. captured Abu Zubayda in 2002. The process of sorting through the classified material in his case means that his trial won’t begin until February 2011, if it happens. The chief prosecutor for the military commissions told me a few days ago that “as a practical matter, there’s very little difference” between the process for dealing with classified information in military commissions and civilian court.

That “day-to-day” process McCarthy is so concerned about is happening here at Guantanamo, much in the same way it would happen back home. It’s also happening twice, once prior to a hearing that will determine whether Mohammed is an “unprivileged enemy belligerent,” and then again as the evidence is reviewed prior to his likely trial.

Meanwhile, it’s not like the military commissions have an unblemished record in protecting classified information. One example off the top of my head: The existence of the military’s “Frequent Flier” sleep deprivation program was disclosed during Mohammed Jawad‘s military commission, which seems to me a much more significant disclosure than bin Laden finding out we’re after him several years after he’s issued fatwas calling for Muslims to fight the U.S.

In fairness, McCarthy told me he doesn’t carry any particular brief for military commissions. He favors the establishment of special national security courts for terrorism cases, an idea also favored by Benjamin Wittes of the Brookings Institution and Jack Goldsmith of Harvard — and, for that matter, by Sen. Lindsey Graham (R-S.C.) — but rejected by the Obama administration. (So far.)

As Carol Rosenberg at The Miami Herald reports, though, the charges were dropped last Thursday “without prejudice” — meaning the same charges could still be re-filed against him.

The government had originally accused al Rabia of providing “material support” to al-Qaeda by running a supply depot at the battle of Tora Bora during the U.S. invasion of Afghanistan in 2001. But after imprisoning him for eight years, a U.S. District Court judge in September ruled that the evidence against him was “surprisingly bare” and not credible. Even government interrogators hadn’t believed it, the judge noted. She also ruled that al Rabia had been coerced and abused into “confessing” to activities which likely had been committed by someone else with a similar nickname.

Al Rabiah’s lawyers, meanwhile, demanded an investigation into their client’s treatment by U.S. officials, but as in the case of Mohammed Jawad, whose defense lawyer similarly sought an investigation into his abuse, the lawyers received no response.

Although the government did not appeal the district court’s order that the government was detaining al Rabia unlawfully, the Pentagon still refused for months to drop the military commission charges against him.

His return to Kuwait appears to have forced the military’s hand. Although he’s not likely to be charged again, the dismissal “without prejudice” may be the military’s way of avoiding an implicit admission that U.S. officials picked up the wrong guy in the first place.

A federal judge in July said that without his statements given under torture, the government’s case against Jawad, who was around 12 years old when he was arrested for allegedly throwing a hand grenade at U.S. soldiers, was “riddled with holes” and based on wholly unreliable evidence. She ordered that he be freed.

Mark Magnier at the Los Angeles Times tracked down Jawad in Kabul, Afghanistan, where he found a 19-year-old struggling with mood swings as he tries to reconcile himself to having lost his adolescent and teen years to confinement and mistreatment in a U.S. prison. Jawad was one of many detainees who tried to commit suicide at Guantanamo.

Jawad tells Magnier that he now suffers from headaches, remains haunted by prison memories, and worries about those he left behind, who had become a sort of surrogate family. About 220 detainees are still at Guantanamo Bay, which may or may not be closed in January, as President Obama promised shortly after he took office.

Jawad reportedly asked Magnier to tell President Obama, the United Nations or anyone else who could do anything to help the prisoners who remain there. “People there are sick,” he told Magnier. “They should be treated. They should be freed.”

Although UNICEF and some other civil groups are trying to help Jawad get counseling, education and job training, neither the U.S. nor the Afghan government has provided Jawad with any assistance.

A Defense Department official told the L.A. Times that financial assistance for former Guantanamo detainees would cost too much, and “we don’t want to give them money to buy equipment that could come back to hurt us.”

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.

In September 2008, a U.S. military judge ruled that Mohammed Jawad, an Afghan arrested as an adolescent in 2002, imprisoned at Bagram and then at Guantanamo Bay, had been subjected to “cruel and inhuman treatment” by the U.S. military.

Specifically, Judge Stephen Henley, a U.S. Army colonel, found that the military had subjected Jawad to the so-called “frequent flyer” program: he’d been “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 the his mental senses.” Jawad was accused of throwing a hand grenade at U.S. soldiers, though a court later found there was no reliable evidence to support the charge.

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.” (It’s worth noting that interrogation experts say sleep deprivation doesn’t help interrogations even if the subject does know something.)

This 13 consecutive days of sleep deprivation, the judge concluded, constituted “abusive conduct and cruel and inhuman treatment.”  Judge Henley also acknowledged that it violated the United Nations Convention Against Torture, to which the United States is a signatory.

What’s more, 13 days of “frequent flying” also violates the rules set out by the Justice Department’s Office of Legal Counsel. As I’ve pointed out before, those allowed anywhere from 48 hours to 180 hours of sleep deprivation on “high-value” detainees. But OLC memos never condoned 13 days straight of sleep deprivation on anyone, let alone someone like Jawad, who was at best an al-Qaeda or Taliban foot soldier.

In fact, as the Senate Armed Services Committee report on the treatment of detainees by the U.S. military notes, the “frequent flyer” program “was not on the list of 24 techniques OLC advised the DoD General Counsel were permitted.” The report added: “The Committee is unaware of a request from DoD to OLC for legal guidance on whether that technique comported with techniques on that list of 24 approved by the Secretary.”

Last week, Walter Pincus wrote in The Washington Post about the case of Lt. Col. Allan West, who allowed his soldiers to beat up an Iraqi police officer and threaten him with a knife and a gun to convince him to give up information. The CIA is now reportedly outraged that Attorney General Eric Holder would authorize an investigation of its agents for crossing the lines of permissible interrogations while the military guys are getting away with it.

Walter Pincus and his CIA source were right: the Department of Defense violated the rules just like the CIA did.  When it comes to whether the attorney general should prosecute, the difference may simply be that soldiers are subject to the military’s own disciplinary system rather than the usual criminal laws.

Jawad’s case is actually worse than the West case, since the military knew by the time they abused Jawad that he was of no intelligence value; so with Jawad, it was cruel and inhuman treatment just for the sake of it.

But what if the military didn’t discipline or prosecute anyone, or even investigate? The military judge’s ruling in Jawad’s case was only for the purpose of deciding whether his military commissions case should be dismissed or the evidence of his confessions under torture suppressed. (The judge chose the latter.)

Yesterday I spoke to Eric Montalvo, Jawad’s former military defense lawyer who’s now in private practice and plans to represent Jawad in a lawsuit against the U.S. government. He said that during the military commission proceedings, Jawad’s defense team “asked for an investigation that was never conducted.” He’s not aware of any investigation conducted since then.

If the military refuses to investigate, should the Department of Justice step in?  Or if it’s beyond the DOJ’s jurisdiction, how about a commission inquiry?  The military judge’s ruling in the Jawad case would seem to provide even more support for the argument that a broader investigation is necessary.

Previous cases have been dismissed on grounds that government officials had “qualified immunity” for their actions — meaning they’re immune from suit if it wasn’t clearly established that what they did was illegal — or based on the government’s claim that the case would expose “state secrets” and endanger national security.

Will the case of Mohammed Jawad, arrested around age 12, tortured and held in U.S. custody in Afghanistan and then Guantanamo Bay for the next six and a half years with no reliable evidence he’d committed a crime, be any different?

Eric Montalvo, one of Jawad’s military defense lawyers who recently entered private practice and paid his own way to accompany Jawad back home earlier this week, hopes he’ll have a better case. The fact that a U.S. military judge confirmed that Jawad was tortured by Afghan authorities, then interrogated under a range of abusive and threatening conditions by U.S. authorities, could help.

“The short answer is, factually we have a different set up given that we have judicial findings of mistreatment,” Montalvo wrote to me yesterday in an email, since he’s not back in the United States yet. “I will have to figure out which way to go to be most successful,” he added, saying it will take some time to develop and file the case.

In the meantime, the Supreme Court could weigh in on the issues. Earlier this week lawyers representing four British former detainees who claim they were tortured at CIA black sites filed a petition asking the court to review dismissal of their clients’ cases. In that case, Rasul v. Myers, the Court of Appeals in the D.C. Circuit dismissed the men’s claims, ruling that it wasn’t clear at the time that the U.S. wasn’t allowed to torture detainees. The court also ruled that they’re not “persons” within the meaning of the Religious Freedom Restoration Act, so their claims that they were denied the right to practice their religion in custody don’t count. The court interpreted that federal law to apply only to U.S. citizens or lawful U.S. residents.

The men are British citizens who were abducted by U.S. officials and imprisoned from 2002 to 2004 at the U.S.-run detention center at Guantanamo Bay. None was a member of any sort of terrorist group or ever charged with a crime.

The Inter-American Commission on Human Rights (IACHR) has accepted a petition filed by the American Civil Liberties Union on behalf of Khaled El-Masri, an innocent victim of the CIA’s extraordinary rendition program. The U.S. government has two months to respond to allegations of kidnapping and torture summarily rejected by U.S. courts in 2007.

“The United States has an opportunity to reverse one of the most shameful legacies of the Bush administration and finally give an innocent victim of the extraordinary rendition program his day in court,” said Steven Watt, senior staff attorney with the ACLU Human Rights Program. “The State Department should fully engage in this process and comprehensively address the gross violation of El-Masri’s human rights, including his forcible disappearance and torture. To date, the United States hasn’t so much as acknowledged its involvement in El-Masri’s extraordinary rendition.”

Lawyers for Mohammed Jawad, the Afghan national who was a minor when he was first detained by the U.S. government and was recently released to Afghanistan after spending seven years in detention based on evidence gained through torture, intend to sue the U.S. government in part to prevent torture from being ever used again.

Speaking from Kabul, Maj. Eric Montalvo, Jawad’s military commissions defense lawyer, said that “From a policy standpoint, it’s a disincentive for the United States to engage in that type of conduct…you have punitive damages, you have a lawsuit that creates precedent…and it may create a pause for the U.S. government should they decide to do this in the future.”

In light of the claims about Guantanamo “recidivism,” who’ll be the first to claim that Jawad’s lawsuit represents an act of war by other means?

Jawad is the young Afghan arrested in 2002 when he was only 12, according to the Afghan government. (His exact age remains unclear.) He was tortured by Afghan police, then “confessed” to throwing a grenade that wounded two U.S. soldiers. He confessed again after U.S. authorities threatened and roughed him up some more.

Years of litigation later, those statements were thrown out of court, first by a Bush administration military judge and then by a federal judge in Washington, leaving little to no evidence that the man had ever committed a crime. Still, the Justice Department claimed it had “newly available evidence” including eyewitnesses who would testify that they saw Jawad throw the grenade.

Except that, as I reported here a few weeks ago, it turned out that those “new” witnesses had been paid by the U.S. government. Two U.S. military lawyers confirmed that (the Justice Department refused to comment), and the case against Jawad quickly crumbled.

Although Judge Ellen Huvelle granted Jawad’s petition for habeas corpus in July, it wasn’t clear until today whether the Justice Department would file new criminal charges against Jawad. ACLU lawyer Jonathan Hafetz confirmed today that Jawad was returned to Afghanistan, but with little assistance from the U.S. government. Military defense lawyers had sought the government’s support to accompany Jawad on his return, but that was denied, so one of them, Eric Montalvo, who’s since retired from the military, paid his own way to go.

Jawad was not provided any money for resettlement or rehabilitation, despite nearly seven years of detention by the United States, which Huvelle ruled was unlawful. (Jawad was the 28th detainee whose petition for release has been granted.)

The United Nations Convention on the Rights of the Child says child soldiers should be treated as victims rather than aggressors, and provided rehabilitation assistance, since they’re often forced into fighting. In Jawad’s case, as even the U.S. military prosecutor who resigned over the case has acknowledged, Jawad appears to have been forced into weapons training, although no reliable evidence has ever been produced that he actually threw a grenade at U.S. soldiers.

“Jawad’s rights have been vindicated, although at a profound human cost,” ACLU lawyer Jonathan Hafetz said today. “Were it not for habeas corpus and Judge [Ellen] Huvelle’s determination to provide Jawad a fair hearing, he would no doubt still be behind bars illegally at Guantanamo.”

The Department of Justice today confirmed that Jawad has been returned, and added: “The United States has coordinated closely with the government of Afghanistan to ensure the transfer takes place under appropriate security measures and will continue to consult with the Afghan government regarding Jawad.”

Guards search detainees at the Guantanamo Bay Detention Facility. (Zuma Press)

In a startling accusation, defense lawyers in the case of an adolescent arrested and brought to Guantanamo Bay six years ago claim the Justice Department may bring a criminal case against the young man based on testimony from witnesses paid by the U.S. government for their cooperation. Mohammed Jawad was as young as 12 when he was arrested by Afghan police in 2002 and accused of throwing a grenade at U.S. soldiers. Although he confessed to the crime after Afghan officials threatened to kill him and his family, his statements were later ruled inadmissible by two U.S. judges because they were coerced.

Now, although the Justice Department has conceded it can’t rely on those confessions and can no longer imprison Jawad based on the laws of war, it’s said it may file new criminal charges against him based on previously unavailable eyewitness testimony to the crime. Those witnesses, however, according to Jawad’s U.S. military defense lawyer, were all paid in gifts or cash in exchange for their testimony.

U.S. Marine Corps Major Eric Montalvo, one of Jawad’s military defense lawyers, said he’s spoken to all of “the government’s star witnesses” and “they all have a couple of things in common.”  First, “they know how to describe the day of the incident anywhere from two to five different ways, placing themselves in different locations for each of these descriptions and witnessing or not witnessing different things,” he said in a recent e-mail message. Second, “they have all received some sort of U.S. government compensation, from shoes and a trip to the United States to $400 for cooperation, which is a princely sum in Afghanistan.”

Furthermore, Montalvo says, when he spoke with officials from the government of Afghanistan, which has been demanding Jawad’s return home, they “openly admit that the matter was not handled properly and they don’t even know what happened because the Americans in their lust for bloodletting snatched Jawad away before the incident could be investigated.”

Jawad’s statements were ruled inadmissible by a military commission last year after a U.S. military judge at Guantanamo Bay agreed that Jawad had been tortured by Afghan police. Statements made to U.S. officials just hours later, the judge also ruled, were still tainted by the Afghan authorities’ torture. U.S. authorities “used techniques to maintain the shock and fearful state associated with the Accused’s initial apprehension by the Afghan police,” the judge ruled. Both confessions were deemed inadmissible.

Jawad’s ordeal didn’t end on the day of his arrest, however. In addition to his torture by the Afghans, military records indicate that at the Bagram prison and later at Guantanamo, Jawad faced more abuse. Jawad arrived at Bagram just days after two prisoners there were murdered during interrogations. Jawad told interrogators he was hooded, strip-searched, shackled and shoved down stairs, slapped and screamed at. Guards there later admitted to abusing prisoners in exactly those ways.

At Guantanamo, military documents reveal that Jawad was subjected to the sleep deprivation technique known as the “frequent flyer” program — he was moved from cell to cell 112 times in 14 days to keep him from sleeping. He was also kicked, beaten, pepper-sprayed and at one point suffered a broken nose. In December 2003, Jawad tried to kill himself by banging his head repeatedly against one of his cell walls. Even the former prosecutor in his military commission case has insisted that there’s no legitimate basis for convicting Jawad. Lt. Col. Darrel Vandeveld, a former military prosecutor, resigned from his post with the military commissions because he insisted there was no reliable evidence supporting the government’s claims.

Vandeveld’s 14-page sworn statement, submitted to support Jawad’s habeas corpus petition and detailing his efforts to investigate the case, is revealing. “I personally do not believe there is any lawful basis for continuing to detain Mr. Jawad,” he wrote. Vandeveld described the evidence as “scattered throughout an incomprehensible labyrinth of databases,” “strewn throughout the prosecution offices” in drawers, bookcases and disorderly piles on desks, and said that “most physical evidence that had been collected had either disappeared or had been stored in locations that no one with any tenure at, or institutional knowledge of, the Commissions could identify with any degree of specificity or certainty.”

Moreover, “crucial physical evidence and other documents relevant to both the prosecution and the defense had been tossed into a locker located at Guantanamo and promptly forgotten.” Vandeveld was unable to locate the videotape of Jawad’s interrogation by U.S. personnel, despite a service-wide search. He also “failed to locate two alleged eyewitnesses to the attack who had allegedly told a U.S. investigator that they had personally witnessed Jawad throw the grenade,” he wrote. “All I had were two paragraph summaries of interviews conducted through an interpreter of these witnesses several months after the attack. The information on the summaries identifying these two witnesses consisted solely of their names, both of which were common in Afghanistan. The few statements that I did have were inconsistent in some respects with each other, but I convinced myself that the discrepancies were the natural and expected fading of witness recollections over time.”

At the time, Vandeveld did not know that Jawad had been tortured or otherwise mistreated or coerced. As his investigation continued, Vandeveled “learned that the written statement characterized by the Afghan police officer as Jawad’s personal confession could not possibly have been written by him.” That’s because “Jawad was functionally illiterate and could not read or write,” and “the statement was not even in his native language of Pashto; the Afghan police officer who created the statement wrote it in his own native Dari.” The statements allegedly given to Afghan police and later given to U.S. authorities, said Vandeveld, “suffered from material differences, causing me and other prosecutors to wonder whether either could be used to establish the truth. It seemed increasingly likely that the statement attributed to Mr. Jawad in his original interrogation had simply been contrived by one of the Afghan policemen, which they then amateurishly sought to “authenticate” by having Jawad place his thumbprint on the document.”

Eventually, Vandeveld learned that both confessions had been coerced, as a military judge subsequently ruled, and that Jawad had been systematically abused in Bagram and then at Guantanamo. Ultimately, Vandeveled concluded that “there is no reliable evidence of any voluntary involvement on Jawad’s part with any terrorist groups.” The most credible evidence suggests “that Mr. Jawad was lured to Afghanistan under false pretenses — the promise of well paid work clearing landmines promised to him by unscrupulous recruiters …” To the extent that Jawad was affiliated with a terrorist group at all, Vandeveld said, that association appears to have been brief and involuntary.

“[H]e was certainly not involved with the organization long enough to have any actionable intelligence, or even unique or otherwise unknown information about the group,” said Vendeveld, adding that Jawad’s youth, lack of education and “manifest gullibility” marked him, at best, as “a low level foot soldier.”

According to military records and news reports, Vandeveld noted, at least three other Afghans have since been arrested and subsequently confessed to responsibility for the grenade attack. It’s not clear what evidence the Justice Department plans to use in a criminal prosecution because all of the evidence that the government claims was “not previously available” is classified. However, a declassified summary of the evidence filed with the court, with most of the substantive information about Jawad blacked out, does reveal many of the sources of the government’s evidence, which are not blacked out. The bulk of it appears to come from testimony and summaries of testimony from 2003 until 2006; most of it appears to have been previously produced at military administrative review hearings.

Other information in the unclassified document consists of summaries of interrogations by U.S. forces drafted by the interrogators and produced at previous hearings. Both the military commission and the federal district court have ruled that, because of the torture and coercion of Jawad, his statements in those interrogations are not admissible. Nothing in the unclassified factual return, at least, refers to newly discovered evidence or testimony only recently made available.

In its submission to the court, Jawad’s lawyers in his habeas case say that “the Government has had possession of this evidence for several months,” and that all of the evidence the government is now saying it wants to use “was provided in discovery to military commission defense counsel in May.” The defense lawyers further insist that the material the government wants to produce consists of “unsworn summaries of unsworn interviews” — similar to what Vandeveld described — that would “not be admissible evidence in a U.S. federal court.”

American Civil Liberties Union attorney Jonathan Hafetz, who has been representing Jawad in his habeas corpus case, says that he also was told that the witnesses received compensation for their testimony. “Had Respondent actually produced one or more of these ‘eyewitnesses’ at a habeas hearing on the merits, Petitioner’s counsel were fully prepared to refute, rebut and impeach him or them,” the defense lawyers write in their brief. “It is unclear why the Government is even mentioning ‘new’ evidence and discussing potential criminal prosecution in the same document where they acknowledge they cannot prove even by a preponderance of the evidence that the Petitioner is detainable.”

Indeed, one curious point about the claim that the government can prosecute Jawad under federal criminal law, after conceding it can’t make its case in his habeas corpus proceeding, is that the burden of proof on the government in a criminal case would be significantly higher than in a civil habeas corpus proceeding. A criminal case must be proven “beyond a reasonable doubt,” whereas in a habeas corpus proceeding, the government need only show that “the preponderance of the evidence” supports its claims.

Asked about the claims that the government’s witnesses had been paid for their testimony, Dean Boyd, spokesman for the Justice Department’s National Security Division, wrote in an e-mail that “Jawad has not been charged with any crime in federal court. To begin speculating in public about possible evidence or witnesses in such a case is inappropriate and not an exercise the government will engage in.” He did not say that the government would not or cannot pay or otherwise compensate witnesses in these circumstances, however. Jawad’s defense lawyers, meanwhile, have not been reticent about their view of the evidence.

While explaining that he cannot describe the evidence because it’s classified, Hafetz insisted that “it is not new and it is not credible or reliable.” So far, the government has lost 28 out of 33 habeas corpus cases brought by Guantanamo detainees and heard by a federal court because the courts have found the evidence unreliable or otherwise insufficient to justify their continued detention. The Justice Department is reportedly planning to bring criminal charges against “dozens more” Guantanamo prisoners.