Ahmed al Darbi, the brother-in-law of one of the 9/11 hijackers, supposedly plotted a never-realized 2001-2002 attack on an unnamed ship in the Strait of Hormuz. He also allegedly met Osama bin Laden and trained at an al-Qaeda camp. And he’s been imprisoned by the U.S. military since 2003 waiting to be tried on the charges.

On Wednesday, a military judge yielded to the Obama administration’s request to put off Darbi’s trial once again, postponing till January Darbi’s opportunity to present his defense.

Darbi claims the evidence against him consists of statements elicited through beatings, threats of rape, sleep and sensory deprivation, and sexual humiliation, first at the Bagram air base in Afghanistan and then at the prison camp in Guantanamo Bay.

If he’s convicted as an al-Qaeda conspirator, Darbi, 34, could face life in prison.

This is the third time the Obama administration has won a delay in Darbi’s trial on charges of a crime he allegedly committed 9 years ago.  The administration has sought to delay all military commission trials while it decides whether it should proceed with the cases in military court, drop the charges or shift them to federal civilian courts.

The Washington Post reports today that President Obama’s Guantanamo policy is in some disarray, as the administration has faced more obstacles than it expected in shutting down the detention center and deciding what to do with the 220 or so detainees still imprisoned there.

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.

Yoo, of course, is the author of the infamous “torture memos” that justified the abuse and torture of terror suspects held abroad in U.S. custody, and authorized the suspension of the Bill of Rights on U.S. soil.

The Associated Press reports that campus police arrested at least four people who refused to leave the university’s law school building.

Yoo reportedly ignored the demonstrators and. after police removed them from his classroom, began teaching.

Yoo returned to UC Berkeley yesterday after spending the spring semester at Chapman University School of Law in Orange County, where his friend John Eastman is the dean.

According to the AP, Berkeley law students are divided over Yoo: while some think he’s a war criminal who should be fired, his classes are still among the most popular at the law school.

The Department of Justice’s Office of Professional Responsibility is expected to release a report any day now analyzing the conduct of Yoo and his colleagues at the Office of Legal Counsel under the Bush administration, and determining whether he violated ethical rules.  The report has been delayed for months while its subjects and the Department of Justice review and amend its contents.

Jawad, as I’ve explained before, was a teenager (possibly just 12-years-old) when he was arrested in Afghanistan by local police in 2002 and charged with throwing a grenade at a U.S. military vehicle. He “confessed” to Afghan authorities after they threatened to kill him and his entire family if he didn’t admit to the crime. A military commission judge ruled that his subsequent confession to U.S. authorities was also coerced, unreliable and inadmissible.

The transcript of last week’s hearing, where the government said it needed time to think about how to proceed with the case, reveals that now even the federal courts are losing patience with the Justice Department and its handling of Guantanamo habeas cases.

“I have now suppressed every statement attributable to the defendant as the government has failed to oppose,” said Huvelle, noting that that’s about 90 percent of Jawad’s statements. “So what is there to think about?”

The Justice Department lawyer, Kristina Wolfe, responded that the government lawyers are “consulting internally” on how to proceed.

Huvelle: “There are 11 statements attributed to Afghanistan officials and to the Americans. The Americans did not see anything and there may or may not be an Afghani who saw something. You can’t prevail here without a witness who saw it. I mean, let’s be frank. You can tell your superiors that. You can’t. There is no evidence otherwise.”

Huvelle goes on to point out that the former prosecutor in Jawad’s military commission trial, Lt. Col. Darryl Vandeveld, was unable to find any witnesses to the crime and ultimately resigned from the case — and from the military commissions — in protest. He also submitted a 20-page affidavit in the habeas case outlining his failed efforts to find evidence of Jawad’s guilt.

“I’m not putting it off,” said Huvelle of the habeas trial. “This guy has been there seven years — seven years. He might have been taken there at the age of maybe 12, 13, 14, 15 years old. I don’t know what he is doing there. Without his statements, I don’t understand your case. I really don’t. You cannot expect an eyewitness time of account to rely on the kind of hearsay you have here.”

Daniel Barish, the senior justice department lawyer on the case, stepped in. “There is additional evidence that we’ve identified that we wish to include in an amended statement of facts if that’s how we choose to do so.”

That seemed to exasperate Huvelle even more.  “Then you’ll have to move faster than you are planning,” she said. “They have a right to have this habeas decided. If you are not relying on the gentleman’s statements anymore, face it, this case is in trouble. I’m not going to wait to grant a habeas until you gear up a military commission. That’s what I’m afraid of. Let him out. Send him back to Afghanistan.”

Adding that the case has been “gutted” without Jawad’s confession and that the government still hasn’t produced a single witness, Huvelle added: “If you have to go to Afghanistan to take a deposition, fine. But seven years and this case is riddled with holes. And you know it. I don’t mean you. The United States Government knows it is lousy. If you can’t rely on the guy’s statements, you have a lousy case.”

“This case is an outrage to me,” Huvelle said. “I’m sorry. This is an outrage. I’m not going to sit up here and wait for you to come up with new evidence at this late hour. There is only one question here, did the guy throw a grenade or didn’t he throw a grenade. That’s the issue. Right? If he didn’t do that, you can’t win. If you can’t prove that, you can’t win. I’m not going to have people running around trying to figure out a way to get this case out of the Court’s jurisdiction for some other reason. You have to come to grips with your cases.”

Noting that “the right hand doesn’t know what the left hand is doing” in these cases, Huvelle refused to postpone the hearing to accommodate Barish’s family vacation, given that Jawad has been in prison for seven years and the government knew the case was in trouble since Vandeveld resigned last year.

“This is a case that’s been screaming to everybody for years,” she said. “The U.S. Government has certainly known about the problems through the military commission. This was months ago.”

Judge Huvelle said the government must advise the court of any new evidence it intends to introduce by Aug. 24 (two days after Barish returns from vacation), and she set the hearing on the merits for Aug. 5.

–

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After excusing the Bush administration’s torture and abuse policies, Graham noted that he had a meeting yesterday with administration officials about what should be done with the detainees held at the U.S. detention facility at Guantanamo Bay. “It’s my belief that they may ask for another continuance regarding military commission trials” to continue reviewing and consider reviving them, he said.

“President Obama in my opinion has made some very sound decisions,” Graham said.

As Will Bunch at the Philadelphia Daily News puts it:

The Inquirer thus handed Yoo a loud megaphone on what was once a hallowed piece of real estate in American journalism — to write on the very subjects that have now led Justice Department investigators to reportedly recommend disbarment proceedings against Yoo and has led international prosecutors as well as millions of politically engaged Americans to consider the Episcopal Academy graduate worthy of charging with war crimes.

Here’s the Inquirer editorial page editor’s response:

John Yoo has written freelance commentaries for The Inquirer since 2005, however he entered into a contract to write a monthly column in late 2008. I won’t discuss the compensation of anyone who writes for us. Of course, we know more about Mr. Yoo’s actions in the Justice Department now than we did at the time we contracted him. But we did not blindly enter into our agreement. He’s a Philadelphian, and very knowledgeable about the legal subjects he discusses in his commentaries. Our readers have been able to get directly from Mr. Yoo his thoughts on a number of subjects concerning law and the courts, including measures taken by the White House post-9/11. That has promoted further discourse, which is the objective of newspaper commentary.

Uh, maybe. But I tend to agree with Bunch on this:

[W]hile promoting public discourse is a goal of newspaper commentary, it should not be the main objective. The higher calling for an American newspaper should be promoting and maintaining our sometimes fragile democracy, the very thing that Yoo and his band of torture advocates very nearly shredded in a few short years. Quite simply, by handing Yoo a regularly scheduled platform for his viewpoint, the Inquirer is telling its readers that Yoo’s ideas — especially that torture is not a crime against the very essence of America — are acceptable.

“Three thousand of our fellow citizens had been killed in a deliberate attack by a foreign enemy,” said Yoo, according to The Los Angeles Times, unperturbed by shouts from the audience that he is a war criminal and should be in jail. “That forced us in the government to have to consider measures to gain information using presidential constitutional provisions to protect the country from further attack.”

“Was it worth it?” he asked. “We haven’t had an attack in more than seven years.”

Yoo’s confident defense of his controversial legal positions comes as the threat of prosecution for Yoo and his OLC colleagues intensifies. Yesterday, President Obama said that he would not interfere with an attempt to prosecute the lawyers who authorized interrogators’ abusive conduct, and he would be open to a full congressional investigation as well.

Rep. John Conyers (D-Mich), who since proposing legislation in January has been calling for a broad-ranging investigation of Bush policies that would not rule out subsequent prosecutions — unlike Sen. Patrick Leahy’s (D-Vt.) proposed “Commission of Inquiry” — reiterated his call for a thorough investigation. Conyers added that the House Judiciary Committee, which he chairs, would hold hearings of its own on the potentially illegal conduct of the Justice Department officials, such as Yoo.

A report on the investigation of the lawyers’ conduct from the Justice Department’s Office of Professional Responsibility is expected to be released soon, though the Justice Department is still reviewing it. The OPR evaluation is reportedly very critical of the lawyers’ legal reasoning, and tracks the lawyers’ communications with the White House to determine what influenced their conclusions.

Conyers said yesterday that if the OPR report is delayed any further, “we will have hearings in the near term in any event. Critical questions remain concerning how these memos came into existence and were approved, which our committee is uniquely situated to consider.”

As I’ve noted before, the Senate Judiciary Committee, chaired by Leahy, is also well-suited to conduct such an inquiry into the Justice Department’s role in approving torture and other abuses derived from torture techniques used by North Korea, China and other foreign governments on captured soldiers, as detailed by the Senate Armed Services Committee report released Tuesday. So far, however, it has declined to do so.

No matter who investigates, John Yoo is unlikely to change his mind about the legality of using torture to extract information from terror suspects, as his confident demeanor at yesterday’s forum demonstrated. The fact that the tactics used on suspected terrorists were known to have produced false confessions in the past rather than truthful information, however, undermines the strength of the legal argument supporting them.

Yoo’s former OLC colleague, Jay Bybee, however, now a life-tenured judge on the U.S. Court of Appeals for the Ninth Circuit and the target of a campaign for impeachment, has so far remained silent about the matter.

The Inter-American Commission, an arm of the Organization of American States — of which the United States is a member — normally sits in judgment of countries like Argentina and Chile, whose histories of torturing and “disappearing” political opponents and committing war crimes are notorious. But there were the commissioners, from various Latin American countries, listening to the arguments of Center for Constitutional Rights President Michael Ratner and ACLU human rights program director Jamil Dakwar, that the Bush administration had enacted laws and taken steps in litigation to shield itself from accountability for such crimes — and so far, the Obama administration had not changed those policies.

In particular, Ratner was talking about provisions of the Military Commissions Act of 2006 that provides immunity for Bush administration officials who authorized torture of military combatants, violated the Geneva Conventions or otherwise broke the law on the advice of government lawyers. He also cited the positions that the Bush and Obama Justice Departments have taken in seeking to dismiss cases on the grounds that they would expose “state secrets” or otherwise interfere with executive powers.

Dakwar recounted the story of German citizen Khaled el-Masri, an ACLU client who claims he was tortured at a CIA “black site” but whose case was dismissed because of that “state secrets” privilege.

And both lawyers argued that a truth commission, along the lines of one proposed by Senator Patrick Leahy (D-Vt), if it provided immunity and foreclosed prosecutions would never be an adequate substitute for criminal prosecutions, which they argued are critical to holding the United States accountable for violations of international law.

“That’s the way to demonstrate that those violations will not be tolerated and wil not be repeated,” said Ratner. “Otherwise what you’re faced with is impunity … A commission can’t be used as a substitute for criminal liability.”

Lewis Amselem, the U.S. representative to the commission, for his part, respectfully listened to the list of charges and nodded. He responded with his own list of all the pronouncements the Obama administration has made about closing Guantanamo, ensuring the prison meets Geneva Conventions standards, and reviewing the cases of every detainee to facilitate their eventual transfer. He didn’t defend any of the particular provisions of the Military Commissions Act or the legal positions of the Justice Department as described, but promised to bring the concerns back to the State Department. He promised to report back to the commission with the administration’s policy on a truth commissions, as well as to answer questions from the commissioners about how many Americans have been prosecuted for torture in military and civilian courts.

Ratner, however, was ready with the answer:  “None.”

Although there have been cases brought through the military system charging assault of prisoners, only lower level military people at Abu Ghraib were charged, “under the theory of the Bush Administration that this was not a policy or practice of the United States, it was just a few bad apples.”  Prosecutors “only had authority to look down the chain of command, not up the chain of command,” said Ratner.

While the commission’s rulings are not binding, it has authority to make recommendations to the U.S. government. Lawyers involved said they expected those to be issued within the next few weeks.

–

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But wait, weren’t those military commissions proceedings supposed to be stopped, pursuant to President Obama’s executive order? So why were the five men allowed to even file a statement in the case, let alone have it released to media around the world, particularly when many other legal filings have been kept under seal? What’s more, the commission hasn’t even determined the competency of two of the men, and their lawyers didn’t know about or approve the filing or its release.

Those are some of the questions being asked by the American Civil Liberties Union, which has helped many of the Guantanamo detainees get legal counsel.

Judge Stephen Henley has “blatantly defied President Obama’s executive order for an end to the military commissions,” said Anthony Romero, executive director of the ACLU in a statement released today. “Why Judge Henley accepted pleadings and issued an order in halted proceedings is confounding. The judge’s actions extending the military commissions call into question the true intentions of the Pentagon leadership at a time when the Obama administration is searching for a solution to the disastrous detention policies of the Bush administration. If Defense Secretary [Robert] Gates allowed the military commissions to proceed, that’s a serious problem; if he didn’t know about this, that’s equally troubling.”

Reached this afternoon at the Pentagon, spokesman Jeffrey Gordon insisted that Henley did not defy the president’s executive order, which was just to suspend the proceedings for 120 days.

“The judges are authorized to post any pleadings or filings on defenselink.gov,” said Gordon. “The executive orders basically stated that no new trial charges will be filed against detainees nor will there be any court proceedings at Guantanamo. No new charges have been filed. No new court sessions have taken place. We are in compliance with the president’s executive orders.”

Gordon added that this was hardly the first time that the 9/11 defendants have made such inflammatory statements, though those released yesterday, in which they claimed the attack was justified and call themselves “terrorists to the bone”, were certainly the most detailed.

Even if, as Gordon claims, the release was allowed by the military commission rules and not forbidden by the president’s executive order, it does suggest that Gates, who was originally appointed in 2006 by President George W. Bush, may be a bit out of step with the stated intentions of his new boss.

As the ACLU charged: “to selectively release a filing that clearly serves the objectives of the prosecution when defense motions have regularly been suppressed raises the suspicion that political motivations are at play.”

Update: The Washington Post reported the day after this post that Michael Berrigan, deputy chief defense counsel in the Office of Military Commissions, was equally bothered by the military commission’s decision to immediately release the detainees statement and confession, while defense lawyers have been waiting months for their documents to be publicly released.

“Look up the definition of ‘proceeding’ in Black’s Law,” he told the Post, referring to the standard legal dictionary, and to President Obama’s order. “Hopefully, Obama’s people will see what’s going on.”

Some defense lawyers and civil liberties advocates worry that what’s going on is a deliberate attempt by some officials at the Pentagon to undermine President Obama’s ability to close down the military commissions once and for all.

The American Civil Liberties Union filed the lawsuit seeking the information more than five years ago, and more than one year ago, the ACLU tried to hold the CIA in contempt for destroying the videotapes, which a court had ordered the agency to turn over. The court never ruled on that motion, in part because there is a pending criminal investigation into the CIA’s destruction of the videotapes.

The acknowledgment today by the CIA that it destroyed at least 92 tapes comes just after the Senate Select Committee on Intelligence last week announced that it would be conducting a review of the CIA’s interrogation practices since the Sept. 11, 2001 terrorist attacks.

“This letter provides further evidence for holding the CIA in contempt of court,” said ACLU lawyer Amrit Singh in a statement released today. “The large number of videotapes destroyed confirms that the agency engaged in a systemic attempt to hide evidence of its illegal interrogations and to evade the court’s order. Our contempt motion has been pending in court for over a year now – it is time to hold the CIA accountable for its flagrant disregard for the rule of law.”

According to the letter the government filed with the U.S. District Court in New York City today, the CIA will provide a proposed schedule for releasing more information about the materials it destroyed — originally requested by the court last August — by Friday, March 6. The letter appears to be an attempt to comply with the court’s order now, because a previous stay issued on the motion to hold the CIA in contempt expired in February.

In other words, if the CIA doesn’t comply now, District Court Judge Alvin Hellerstein of may actually hold the agency in contempt of court.

The noose is tightening.