The Washington Independent
The Washington Independent

U.S. Relies on Tortured Evidence in Habeas Case

Last updated: 07/31/2020 08:00 | 06/23/2009 09:44
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Dexter Cooke

A guard tower at the Guantanamo detention center. (defenselink.mil) A guard tower at the Guantanamo detention center. (defenselink.mil)

The United States is relying on evidence obtained by torture to prove that it can continue to imprison indefinitely a young man arrested as an adolescent in Afghanistan six and a half years ago, according to documents filed with a federal district court.

Mohammed Jawad may have been as young as 12 years old when he was seized by Afghan police and turned over to U.S. authorities in December 2002, according to a recent letter from the Afghan attorney general, who is requesting his return. Jawad is accused of throwing a hand grenade into a U.S. military vehicle and injuring two servicemen and their translator. But the primary evidence against him — his own confessions — were obtained by torture. Although the U.S. military commission created by President George W. Bush eventually charged him with war crimes for the attack in October 2007 — almost six years after the crime — a judge ruled in October 2008 that because they were tortured, his confessions were unreliable and inadmissible.

Illustration by: Matt Mahurin Illustration by: Matt Mahurin

By all accounts, Jawad’s military commission case has been a fiasco. In September 2008, military prosecutor Lt. Col. Darryl Vandeveld resigned from the case and from the military commissions altogether, saying he could not in good conscience prosecute someone for an act allegedly committed as a child and where virtually the only evidence against him is his tortured confessions. (Vandeveld was unable to convince the commission to drop the charges or let Jawad enter a plea agreement with a sentence to time served.) In October, a U.S. military judge at Guantanamo Bay agreed that Jawad had only confessed after armed Afghan police threatened to kill him and his entire family if he didn’t. Statements made to U.S. authorities just hours later, the judge subsequently ruled in November, were still tainted by the Afghan authorities’ torture, because U.S. authorities “used techniques to maintain the shock and fearful state associated with the Accused’s initial apprehension by the Afghan police.” Both confessions therefore were inadmissible.

In addition to his torture by the Afghans, military records indicate that at Bagram and later at Guantanamo, Jawad faced more abuse. Jawad arrived at Bagram just days after two prisoners there were murdered during interrogations. Jawad says 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. And at Guantanamo, 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.

The Department of Justice on Monday refused to discuss the case, saying it does not comment on ongoing litigation. However, the government’s documents submitted to the court, partly blacked out for security reasons, set forth the government’s claims and evidence.

The bulk of the government’s claim that Jawad can be held indefinitely (although he was deemed an “enemy combatant” by the Bush administration, the Obama administration no longer uses that term) appears to be that Jawad, an Afghan citizen born in a refugee camp in Pakistan and functionally illiterate, learned how to throw a grenade at a Madrassa in Afghanistan and was at the time of his capture as an adolescent associated with a group called Hezb-i-Islami Gulbuddin, or HIG, “an extremist organization long associated with [Osama bin Laden], with a 30-year history of supporting jihad in Afghanistan.” Its founder has been named a “specially designated global terrorist” by the U.S. government. The evidence supporting this charge is that Jawad was able to provide directions to and describe the appearance of the HIG camp. The government also originally claimed Jawad was a member of HIG based on a document it said indicated sworn loyalty to the group that was “signed” with Jawad’s thumbprint. A later forensic exam by the US Army laboratory concluded that the thumbprint was not Jawad’s.

Vandeveld, the former military prosecutor who is a lieutenant colonel in the U.S. Army Reserve Judge Advocate General’s Corps and a senior deputy attorney general for Pennsylvania, has submitted a 14-page sworn statement in support of Jawad’s petition for release. “I personally do not believe there is any lawful basis for continuing to detain Mr. Jawad,” he writes, describing the year he spent trying to collect reliable evidence against him. “[T]here is no reliable evidence of any voluntary involvement on Jawad’s part with any terrorist groups,” he concludes. 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 for HIG.” To the extent that Jawad was affiliated with HIG at all, Vandeveld says, it was likely 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,” adding that his youth, lack of education and “manifest gullibility” marked him, at best, as “a low level foot soldier.” Moreover, according to military records and news reports, at least three other Afghans have since been arrested and subsequently confessed to responsibility for the grenade attack. The only supposed eyewitness accounts implicating Jawad were “two paragraph summaries of interviews conducted through an interpreter of these witnesses several months after the attack.” Despite his efforts, Vandeveld was never able to find the witnesses.

After Vandeveled resigned, he was replaced by a new prosecutor, who appealed the military commission ruling that the tortured confession to U.S. authorities should be suppressed. There has never been a ruling on that appeal, however, because when President Obama took office he suspended the military commission proceedings until his administration could review them. Although the government also attempted to stall the habeas corpus proceedings pending the outcome of the military commission review, Judge Ellen Huvelle of the federal district court in Washington, D.C. refused. So on June 1, the government submitted its statement of facts it is relying on in the case.

“They’re relying on everything they relied on in the military commissions, including statements that are the product of torture, including tortured statements they didn’t even appeal that were made to Afghan authorities,” said Jonathan Hafetz, an attorney with the ACLU’s National Security Project who represents Jawad in his habeas case. The United States did not appeal the ruling that the tortured confession to Afghan authorities was inadmissible, but relies upon it in its statement of facts to the federal court. Hafetz says the Justice Department’s lawyers are also relying on a written confession drafted by an Afghan police officer in Farsi that has Jawad’s thumbprint on it, although Jawad does not speak or read Farsi. (His native language is Pashto, though in any event he is illiterate.)

“Setting aside the hearsay statements, our position is that a statement that’s involuntary and coerced is not admissible in a federal court,” said Hafetz. “It’s against our basic values and principles. And it’s notoriously unreliable.” That Jawad was a child at the time suggests the statements were even more likely coerced and therefore even less reliable.

On May 31, the government of Afghanistan sent a letter to the U.S. Embassy in Kabul protesting the continued imprisonment of Jawad by U.S. authorities. Jawad’s uncle, the attorney general writes, says Jawad was only 12 years old when he was captured.

“The Independent Commission for Human Rights has expressed its serious concern over the non-observance of national and international laws in regard to the detention of children, particularly the investigation and fair trial of Jawad.”

The United States’ treatment of Jawad would seem to violate a United Nations Protocol that the U.S. signed and ratified in January 2003. According ot the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, children who were recruited or used in armed conflicts should be considered primarily as victims and provided with rehabilitation services. Jawad’s lawyers say he’s never received any such services.

In January, five human rights groups sent President-elect Barack Obama a letter urging him to stop the prosecutions of child detainees.

The U.S. government is scheduled to appear before Judge Huvelle to defend its continued imprisonment of Jawad at Guantanamo and its reliance on tortured evidence on August 5.

Dexter Cooke | He is an orthopedic surgeon who insists that a physician's first priority should be patient care. He specializes in minimally invasive complete knee replacement surgery and laparoscopic procedures that reduce pain and recovery time. He graduated from the Medical University of South Carolina with a medical degree and a postdoctoral fellowship in orthopedic medicine.

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