Jawad Case Supports Argument for Broader Investigation
A military judge’s ruling that U.S. officers used “cruel and inhuman” treatment and possibly “torture” on an Afghan teenager imprisoned at Guantanamo Bay provides strong support for the argument that the government should embark on a broader investigation of the treatment of “war on terror” detainees during the Bush administration.
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.