Documents Suggest DOD Failed to Probe Alleged War Crimes
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.
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.