Guantanamo Prosecutor Who Quit Had 'Grave Misgivings' About Fairness

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the Los Angeles Times

Guantanamo Prosecutor Who Quit Had 'Grave Misgivings' About Fairness

Josh Meyer

ENOUGH: Lt. Col. Darrel J. Vandeveld is at least the fourth Guantanamo Bay prosecutor to resign under protest. (Los Angeles Times photo)

Darrel J. Vandeveld was in despair. The hard-nosed lieutenant colonel
in the Army Reserve, a self-described conformist praised by his
superiors for his bravery in Iraq, had lost faith in the Guantanamo Bay
war crimes tribunals in which he was a prosecutor.

His work was top secret, making it impossible to talk to family or
friends. So the devout Catholic -- working away from home -- contacted
a priest online.

Even if he had no doubt about the guilt of the accused, he wrote in an
August e-mail, "I am beginning to have grave misgivings about what I am
doing, and what we are doing as a country. . . .

"I no longer want to participate in the system, but I lack the courage
to quit. I am married, with children, and not only will they suffer,
I'll lose a lot of friends."

Two days later, he took the unusual step of reaching out for advice from his opposing counsel, a military defense lawyer.

"How do I get myself out of this office?" Vandeveld asked Major David
J.R. Frakt of the Air Force Reserve, who represented the young Afghan
Vandeveld was prosecuting for an attack on U.S. soldiers -- despite
Vandeveld's doubts about whether Mohammed Jawad would get a fair trial.
Vandeveld said he was seeking a "practical way of extricating myself
from this mess."

Last month, Vandeveld did just that, resigning from the Jawad case, the
military commissions overall and, ultimately, active military duty. In
doing so, he has become even more of a central figure in the "mess" he
considers Guantanamo to be.

Vandeveld is at least the fourth prosecutor to resign under protest.
Questions about the fairness of the tribunals have been raised by the
very people charged with conducting them, according to legal experts,
human rights observers and current and former military officials.

Vandeveld's claims are particularly explosive.

In a declaration and subsequent testimony, he said the U.S. government
was not providing defense lawyers with the evidence it had against
their clients, including exculpatory information -- material considered
helpful to the defense.

Saying that the accused enemy combatants were more likely to be wrongly
convicted without that evidence, Vandeveld testified that he went from
being a "true believer to someone who felt truly deceived" by the
tribunals. The system in place at the U.S. military facility in Cuba,
he wrote in his declaration, was so dysfunctional that it deprived "the
accused of basic due process and subject[ed] the well-intentioned
prosecutor to claims of ethical misconduct."

Army Col. Lawrence J. Morris, the chief prosecutor and Vandeveld's
boss, said the Office of Military Commissions provides "every scrap of
paper and information" to the defense. Morris said that Vandeveld was
disgruntled because his commanding officers disagreed with some of his
legal tactics and that he "never once" raised substantive concerns.

Morris said last week that he had no idea why Vandeveld had become so
antagonistic toward the tribunal process, adding that the lieutenant
colonel's outspokenness angered him because it was unfair and was a
"broad blast at some very ethical and hardworking people whose
performances are being smudged groundlessly."

Vandeveld, who was prosecuting seven tribunal cases -- nearly a third
of pending cases -- has declined to be interviewed about the
particulars of the Jawad case. But he did engage in a series of e-mails
with The Times about his general concerns, before being "reminded" last
week that he could not talk to the press until his release from active
duty was final. In the future, he said, he plans to speak out.

"I don't know how else the creeping rot of the commissions and the
politics that fostered and continued to surround them could be exposed
to the curative powers of the sunlight," he said. "I care not for
myself; our enemies deserve nothing less than what we would expect from
them were the situations reversed. More than anything, I hope we can
rediscover some of our American values."

Some tribunal defense lawyers are preparing to call Vandeveld as a
witness, saying that his claims of systemic problems at Guantanamo, if
true, could alter the outcome of every pending case there -- and force
the turnover of long-sought information on coercive interrogation
tactics and other controversial measures used against their clients in
the war on terrorism.

For years, defense lawyers and human rights organizations have
raised similar concerns in individual cases. "But we never had anyone
on the inside who could validate those claims," said Michael J.
Berrigan, the deputy chief defense counsel for the commissions.

Before the Sept. 11 terrorist attacks, Vandeveld led a relatively
placid life outside Erie, Pa., with his wife and four children. He
worked as a senior deputy state attorney general in charge of consumer
protection in the region, and he served on his local school board in
Millcreek Township.

Anyone who knows him, Vandeveld, 48, told The Times, "will probably
tell you that I've been a conformist my entire life, and [that] to
speak out against the injustice wrought upon our worst enemies entailed
a weather shift in my worldview."

Mark Tanenbaum, an English teacher whose children are friends with
Vandeveld's, remembers talking to him while sitting around campfires at
high school gatherings. "We talked a lot about religion. I'm Jewish.
We'd talk about faith, value-based philosophy. We were kindred spirits
in this.

"With him, it is all about doing the right thing."

Vandeveld, called to active duty after 9/11, received glowing
evaluations as a Pentagon legal advisor and judge advocate in Bosnia,
the Horn of Africa and Iraq. "An absolutely outstanding, first-class
performance by an extraordinarily gifted, intelligent, knowledgeable
and experienced judge advocate, whose potential is utterly unlimited,"
his commanding officer, Gen. Charles J. Barr, wrote in his June 2006
evaluation. "One of the corps' best and brightest. Save the very
toughest jobs in the corps for him."

From his Iraq assignment, Vandeveld went to Guantanamo, where he began
locking horns over the Jawad case with Frakt -- a law professor at
Western State University in Fullerton and a former active-duty Air
Force lawyer who volunteered for the tribunals.

Frakt believed that his Afghan client was, at worst, a confused
teen who had been brainwashed and drugged by militant extremists who
coerced him into participating in a grenade-throwing incident with
other older -- and more guilty -- men. He insisted that the prosecution
was withholding key information or not obtaining it from those at the
Pentagon, CIA and other U.S. agencies that had investigated and
interrogated Jawad.

Vandeveld believed that Jawad was a war criminal who had been
taught by an Al Qaeda-linked group to kill American troops and, if
caught, to make up claims he had been tortured and was underage.
Vandeveld insisted that he had been providing all evidence to the

But by July, Vandeveld told The Times, he had grown increasingly
troubled. He kept finding sources of information and documents that
appeared to bolster Frakt's claims that evidence was being withheld --
including some favorable to the defense, such as information suggesting
that Jawad was underage, that he had been drugged before the incident
and that he had been abused by U.S. forces afterward.

Vandeveld also was having difficulty obtaining authorization to release documents in his possession to the defense.

On Aug. 5, he e-mailed Father John Dear, a well-known Jesuit peace
activist. Dear, who boasts of being arrested 75 times in protests,
encouraged him to act, saying he might "save lives and change the
direction of the entire policy."

With Frakt pressing for the charges against Jawad to be dismissed due
to "outrageous government misconduct," Vandeveld proposed a plea
agreement under which Jawad, now thought to be 22, could return to
Afghanistan for rehabilitation. But his superiors rejected it,
Vandeveld said.

By late August, he had told Frakt that there were other
"disquieting" things about Guantanamo and that his superiors were
refusing to address them or to let him quietly transfer out, Frakt said
in an interview.

"Now might be a good time to take a courageous stand and expose some of
the 'disquieting' things that you have alluded to, whatever they may
be," Frakt replied in a Sept. 2 e-mail, noting that there would soon be
a change of administrations in Washington.

"It wouldn't be a bad idea to distance yourself from a process that has
become largely discredited, or at least distinguish yourself as one of
the good guys, an ethical prosecutor trying to do the right thing,"
Frakt wrote.

On Sept. 9, Vandeveld e-mailed Dear to say he had resigned from
the Guantanamo military tribunals: "The reaction was the expected
outrage and condemnation. I have and will maintain my equanimity and,
while scared for me and for my family, know that Christ will watch over

That, however, was only the beginning. In late September -- after the
military, according to Frakt, initially tried to block it -- Vandeveld
testified by video link for the defense, saying he believed that
insurmountable problems with the tribunals might make them incapable of
meting out justice fairly.

Morris said that Vandeveld is not qualified to speak about systemwide
problems at Guantanamo. But Frakt said that he is and that Vandeveld's
testimony and declaration only scratched the surface of his concerns,
judging by their extensive conversations and hundreds of e-mail

"There is a lot more that he knows," Frakt said.


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