The Unsung Heroes Who Helped Secure Mohammed Jawad's Release From Guantanamo

On August 24, Mohammed Jawad, an Afghan prisoner who was, perhaps,
as young as 12 when he was seized after a grenade attack in Kabul in
December 2002 and transported to Guantanamo, was finally freed after his habeas corpus petition was granted,
and returned to Afghanistan, where he was welcomed by President Hamid
Karzai, who offered to help him readjust to his new-found freedom by
providing him with a house, and the Defence Minister, Abdul Rakhim
Wardak, who offered to pay for him to study overseas, following a
statement by Jawad, in which he announced that he would like to study
to become a doctor.

I had been reporting Jawad's story since October 2007, when he was first put forward for a trial by Military Commission (the "terror trials" introduced by former Vice President Dick Cheney
in November 2001), despite his age, despite the fact that a grenade
attack in wartime is not a war crime, and despite severe doubts that he
actually threw the grenade.

I had also written extensively about the fine work undertaken on his
behalf - and against the Commissions in general - by his military
defense attorney, Maj. David Frakt, who delivered a compelling speech
to a House Committee in July, and by his former prosecutor, Lt. Col.
Darrel Vandeveld, who resigned as a prosecutor in September 2008, when
- based largely on his experience of Jawad's case - he declared that
the Commissions were incapable of delivering justice, and followed up by submitting a stunning submission in Jawad's habeas corpus petition in January 2009 and a powerful speech to a Senate Committee in July.

I had also praised Col. Stephen Henley, the judge in Jawad's
proposed trial by Military Commission, who had effectively demolished
the case against him last October and November,
when he ruled that the government's primary evidence - confessions made
to Afghan and US forces shortly after his capture - could not be used
because they had been extracted through threats of torture, and Judge
Ellen Segal Huvelle, who had denounced the government's case
against Jawad during his habeas hearing in July, when she condemned the
Justice Department for its persistent obstruction, and repeatedly
stressed that the government did not have a single reliable witness,
and that the case was "lousy," "in trouble," "unbelievable," and
"riddled with holes," and who finally granted his habeas petition on
July 30.

I was aware of some of the contributions made by another member of the defense team, Maj. Eric Montalvo, as I had written, in June,
about a visit to Afghanistan that had recently been made by Maj.
Montalvo, who had come up with the latest information about Jawad's
possible age at the time of his capture, and had also been liaising
with the Afghan authorities to encourage them to play a part in
securing his release. However, it was not until I contacted Maj. Frakt,
to congratulate him personally for the part he played in securing
Jawad's release, that I learned how extensive had been the role played
by Maj. Montalvo, and how Maj. Frakt hoped that the contributions of
other members of the defense team would also be recognized.

As a result of these discussions, I reproduce below what Maj. Frakt told me about the unsung heroes in Mohamed Jawad's case.

David Frakt: Thank you for recognizing the
contributions of the Jawad defense team. The extraordinary story of how
Maj. Montalvo ended up in Kabul is also worthy of comment. When I
arrived at the Office of Military Commissions-Defense in April 2008, we
were extremely shorthanded and I was assigned two cases to try on my
own. In the summer of 2008, additional military defense counsel started
showing up at OMC-D looking for work. In late June, I asked the
eminently capable Lt. Cmdr. Katharine Doxakis (a Navy Reservist, soon
to be promoted to Commander) to join the defense team on both the Jawad
and al-Bahlul cases [the latter refers to the case of Ali Hamza
al-Bahlul, which I covered here and here].

Lt. Cmdr. Doxakis made her first court appearance with me at a two-day hearing in August.
At that point, it appeared that Mr. Jawad was headed to trial (a trial
date was actually scheduled for December 2008, then moved to January
2009 due to the government's inability to provide discovery in a timely
manner, then delayed again due to a government appeal of Judge Henley's
ruling suppressing Mr. Jawad's "confessions" as the product of torture,
before finally being postponed indefinitely
when President Obama assumed office). Both Lt. Cmdr. Doxakis and I
thought we needed another experienced trial lawyer on the Jawad defense
team. When Maj. Eric Montalvo showed up later that month, we instantly
hit it off. I immediately asked for him to be assigned to my team as
assistant defense counsel.

Lt. Cmdr. Doxakis, Maj. Montalvo and I all worked together preparing
for the next hearing, a suppression hearing in late September. It was
shortly before this hearing that Lt. Col. Vandeveld resigned, and he
appeared as a defense witness at this hearing. We had filed two
suppression motions, one to suppress statements made to Afghan
authorities, and one to suppress statements in US custody. Both were
litigated at this hearing.

One of the difficulties with the Jawad case was that we were trying
to reconstruct events from December 2002 based on very flimsy evidence.
The investigation of the hand-grenade incident, such as it was, was
incredibly shoddy and incomplete. Alleged witnesses had
disappeared. Important evidence, such as a videotape of Jawad's first
interrogation, had also disappeared. We realized that in order to
properly defend Jawad, we needed to conduct our own independent
investigation into the crime, not just rely on the meager evidence
provided by the government.

Unfortunately, at that time the Office of Military
Commissions-Defense had no investigative personnel assigned to
it. Accordingly, we were obliged to request funding for an investigator
from the Convening Authority Susan Crawford [whose role overseeing the Commissions as an impartial advisor, despite her close connections with both Dick Cheney and David Addington, is discussed here and here].
We found an eminently qualified investigator with years of experience
investigating murders and terrorism offenses. He had already
investigated one high-profile case in Afghanistan. He was even willing
to do the work for half his usual rate because he felt it was important
that detainees be given an adequate defense. Our request, like
virtually every other request for resources made to the Convening
Authority, was denied [see the note at the end of this article for
further details about how most requests for resources were denied by
the Convening Authority]. We appealed the denial to the military
commission, but at the September hearing, our motion was denied.

It
was clear that if we wanted to investigate, we were going to have to do
it ourselves. Maj. Montalvo volunteered to go. As a combat-trained
Marine, he was clearly our best choice to go into an active conflict
zone to investigate. Lt. Cmdr. Doxakis was pregnant and I was preparing
for the al-Bahlul trial in late October. Maj. Montalvo drafted another
fine young Marine JAG, Capt. Chris Kannady, to join him on the
trip. Maj. Montalvo's mission to Afghanistan was highly successful. He
located several key witnesses. Many of these witnesses gave very
different descriptions of the events of December 17, 2002, than the
statements that had been ascribed to them by the prosecution. Maj.
Montalvo took detailed photos, videos and sketches of the scene of the
attack. We were prepared to use these to prove that several of the key
witness accounts by the government witnesses were physically
impossible. Of course, the case never went to trial so we did not
present our evidence in Court, but we did share it with the Justice
Department and I believe that this ultimately led to their decision not
to pursue an indictment against Jawad [following the granting of his
habeas appeal by Judge Huvelle]. The evidence just wasn't there.

Maj. Montalvo and Capt. Kannady also met with several senior Afghan
officials. They explained to these officials what had happened to Jawad
while in US custody to try to convince the Afghan government to press
for Jawad's release. In anticipation that Jawad would someday be
released, they met with representatives from various agencies to
determine what resources were available for Jawad upon his return and
to begin to lay the groundwork for a rehabilitation and reintegration
plan. Finally, they met with Jawad's family and tribal
representatives. They took videos of Jawad's family to bring back to
Jawad at Guantanamo. These provided a tremendous lift to Jawad's
spirits.

Maj. Montalvo and Capt. Kannady returned to Afghanistan in May 2009
to conduct additional investigation and to meet again with Afghan
officials. On this trip, they persuaded the Afghan Independent Human
Rights Commission to file a lawsuit forcing the Afghan government to
seek Jawad's return. They persuaded the Afghan Attorney General and
Minister of Defense to support Jawad's return and to promise not to
reincarcerate him upon his return. They continued with their efforts to
identify and establish relationships with organizations that could
assist with the reintegration process for Jawad. They met with "new"
witnesses that the government had identified. Once again, these
witnesses' accounts, as told to Maj. Montalvo, differed dramatically
from what they had supposedly told the government.

When the government's case against Jawad finally disintegrated for
good in July, culminating in the grant of the writ of habeas corpus by
District Judge Ellen Huvelle on July 30, the Jawad team immediately
started making plans to assist with Jawad's repatriation. I even asked
the Judge to order the government to permit the defense to accompany
Jawad home. She stated that she did not believe she had the authority
to mandate the terms of release, but did strongly recommend to the
government that defense counsel be permitted to be present.

Once again, the path to Afghanistan led through the Convening
Authority Susan Crawford. All defense requests for funding for overseas
travel must be approved by her. In early August, I submitted a request
with a detailed justification, reproduced below:

Subject: Request for Team Jawad Travel To Afghanistan (U)

UNCLASSIFIED

Team Jawad proposes to send Major Eric Montalvo, Capt. Chris Kannady
and their regular interpreter, Chand, to assist with the repatriation
of Mohammed Jawad. Major Montalvo and Capt. Kannady have already made
two trips to the theater and have all the necessary training and
clearances to make the trip on short notice. More importantly, they
have an established a network of contacts on the ground within the
Afghan government, in the NGO community and with Mohammed's tribe and
family. Team Jawad is working with UNICEF, the ICRC, and other
government agencies, NGOs and human rights organization within
Afghanistan to ensure that he is provided appropriate counseling and
rehabilitation services. Team Jawad needs to be present to ensure a
smooth transition to the new team of social workers and other aid
groups who will be overseeing his rehabilitation and
reintegration. Major Montalvo and Capt. Kannady have received a number
of personal assurances from senior government officials in Afghanistan,
including the Minister of Defense, the Attorney General, and the
Minister of Foreign Affairs, about what will happen to Mr. Jawad upon
his return. Major Montalvo and Capt. Kannady need to be present to
ensure that these promises are carried out.

There are a number of reasons why Team Jawad feels it is of
paramount importance to be in Afghanistan to receive Mohammed when he
arrives and to assist with his transition to Afghan society. Because of
security rules at Guantanamo, Mohammed has been deprived of virtually
all news from Afghanistan. He has no idea what is going on there now
and is unaware of the seismic changes that have taken place in
Afghanistan since he was detained in December 2002. He will be landing
in a war-torn country that is dramatically different from the place
that he left seven years ago. As the attached memorandum from the
court-appointed psychologist attests, it is critical to have "familiar
trusted adults" present when he reenters Afghan society after so many
years in captivity. Mohammed's lawyers are the only "familiar trusted
adults" in his life. While one could argue that the representation of
the client ends at the time charges are dropped, this has not
traditionally been the practice of military defense counsel, who
frequently continue to provide counseling and assistance after the
criminal phase of representation has ended.

Team Jawad's detailed counsel unanimously agree that under our duty
of loyalty and thoroughness (required under the duty of competence) to
our client, we have an ethical obligation to Mohammed that will not be
fulfilled if one or more of us are not present to assist with his
repatriation. As a matter of force protection, it is essential that we
send a minimum of two officers. It should be noted that US District
Court Judge Ellen Segal Huvelle, at the time she granted the writ of
habeas corpus, strongly recommended from the bench to the Department of
Justice that Mr. Jawad's lawyers be permitted to be present when he is
turned over to Afghanistan. Clearly she did not believe that the
representation ended upon ordering his release. Indeed, I would
suggest the US is obligated to provide Mohammed with the assistance of
his lawyers in this critical stage.

Article 6 of the Optional Protocol
to the Convention on the Rights of the Child on the Involvement of
Children in Armed Conflict, which the US ratified in 2002, requires
that "States Parties shall take all feasible measures to ensure that
persons within their jurisdiction recruited or used in hostilities
contrary to this Protocol are demobilized or otherwise released from
service. States Parties shall, when necessary, accord to these persons
all appropriate assistance for their physical and psychological
recovery and their social reintegration." Article 7 of the protocol
provides that "States Parties shall cooperate in the rehabilitation and
social reintegration of persons who are victims of acts contrary to
this Protocol."

As a child allegedly recruited to participate in armed conflict,
Mohammed is considered a victim entitled to rehabilitation and social
reintegration. Unfortunately, the US has woefully failed to fulfill its
obligations under this binding international treaty for the last six
and a half years. Mohammed was offered virtually no assistance for his
physical and psychological recovery. Indeed, the abuses he received at
the hands of the US are the primary cause of his psychological
problems. We cannot morally, ethically or legally abandon him now when
he is actually about to be reintegrated into society.

An additional justification for sending Major Montalvo and Capt.
Kannady is the strong level of international interest in this
case. Mohammed's plight has become a significant matter of worldwide
interest in the media. Indeed, just yesterday, the New York Times
devoted an entire editorial to his long ordeal and urged the Obama
Administration to release him without delay. The mistreatment of
Mohammed, a juvenile, by the United States has generated significant
anger in Afghanistan. This anger has been partially mollified by the
fact that Mohammed has been so zealously and ably represented by his
appointed military defense lawyers. It would not enhance the image of
the US in Afghanistan at this critical period if we were to simply dump
Mohammed unceremoniously on the Afghans. Having well-respected members
of the US military present to aid in the repatriation process will
undoubtedly generate favorable publicity and dampen negative feelings
towards the US.

Finally, it is in the interests of all concerned that Mohammed be
placed in a living situation where he has appropriate services
available and is not at risk of being caught up in the ongoing armed
conflict. Major Montalvo and Capt. Kannady can assess the security
situation on the ground and ensure that suitable arrangements are made.

Thank you in advance for your prompt consideration of this request.

David J. R. Frakt, Major, USAFR
Defense Counsel

Office of Military Commissions

This request was denied by the Convening Authority in a terse
one-paragraph letter which indicated that such a trip was beyond the
scope of the duties of military commission defense counsel. Our boss,
Col. Peter Masciola, the Chief Defense Counsel, appealed the denial to
Susan Crawford's boss, the DoD General Counsel. Late on Friday
afternoon on August 21, the day before Jawad was scheduled to be
released, we received word that the appeal was denied.

Maj. Montalvo was determined to be present when Jawad arrived in
Afghanistan and had promised him that he would be there, even at his
own expense. In anticipation that the official DoD travel request would
be denied, he had obtained a civilian visa for himself to enter
Afghanistan. Maj. Montalvo had been approved to retire from the US
Marine Corps after 21 years of service and was in "terminal leave"
status, a status in which one is still technically in the service, but
is using up accumulated leave prior to the official retirement date.
During terminal leave, retiring officers are authorized to work for
other employers and Maj. Montalvo had already begun work for a private
law firm in Washington D.C. Using the firm's credit card (with a
promise to reimburse the firm from his personal funds) Maj. Montalvo
booked an airline ticket for himself and our intrepid interpreter, who
agreed to take a week of unpaid leave from his regular job with no
promise of compensation in order to assist Maj. Montalvo. Capt.
Kannady, still on active duty, was denied permission to go by the
military chain of command. As for me, by this time, my military orders
had expired and I was back at my civilian job as a law professor in
California.

Before Maj. Montalvo departed, I promised him I would find a way to
pay for the trip, even if I had to pay for it myself. Maj. Montalvo
told me that his only concern was ensuring that our interpreter was
paid. I am pleased to report that through the extraordinary generosity
of the ACLU, Human Rights Watch, and Amnesty International, I was able
to raise enough money to reimburse Maj. Montalvo for his expenses and
to pay our interpreter, albeit at 50% of his usual rate.

Maj. Montalvo's trip was an extraordinary success. He was able to
put in place an effective rehabilitation and reintegration plan for
Jawad in coordination with the Afghan government, the US State
Department, UNICEF, and various other intergovernmental organizations
and NGOs. Maj. Montalvo's efforts received substantial positive
publicity in the international media, and the US Embassy sent a letter
of appreciation in praise of his efforts to the Chief Defense Counsel.

Upon Maj. Montalvo's return, Lt. Cmdr. Doxakis submitted a request
for additional funding to go back and check on Jawad's progress later
this year. The request was denied.

While I have received the lion's share of the credit for winning the
release of Mohammed Jawad, I could not have done so without the
tireless contributions of the entire defense team. Maj. Montalvo's
extraordinary selflessness was just one of many examples of the heroic
efforts of our team to do justice and uphold the rule of law in the
face of continuous opposition from the US government (except Lt. Col.
Vandeveld, of course). While this narrative focuses on the contribution
of my military co-counsel and our interpreter, I would be remiss if I
failed to mention my fine habeas co-counsel from the ACLU National
Security Project, Hina Shamsi (now at NYU), Jonathan Hafetz, and our
local counsel Art Spitzer, who kept us out of trouble by ensuring that
we complied with D.C. local rules. And of course, no attorney is
effective without strong paralegal administrative and research support.
We had several highly dedicated military paralegals assisting us and
received exceptional research support from law students at Duke's
Guantanamo Defense Clinic. Our habeas efforts were also enhanced
considerably by outstanding support from Joe Pace, a law student at
Yale.

Note by Andy Worthington:
In order to understand why virtually every request for resources made
to the Convening Authority by the military defense lawyers was denied,
it is important to understand, as Col. Masciola, the Chief Defense
Counsel, explained in testimony to the House Judiciary Committee on
July 30 (PDF), that the Convening Authority holds an "untenable and inherently conflicted role."

In the military justice system, it makes sense for the convening
authority in courts-martial cases - generally the commander of the unit
in which the alleged crime took place - to be responsible for
overseeing both the prosecution and the defense, because "the
court-martial takes place in a military unit in which the convening
authority, as commanding officer, is the ultimate military authority
and promotes military discipline and efficiency."

In the Military Commissions, however, as Col. Masciola explained,
"Neither logic nor military reality compels any such centralization of
prosecution and defense control in the hands of a single individual."
Pointing out that the Office of Military Commissions-Convening
Authority is "entirely a creature of Congressional and Department of
Defense Regulation, headed by a political appointee (who is currently a
civilian)," Col. Masciola added that there was no "military or
otherwise natural necessity for the Convening Authority to hold
ultimate power over funding of both the prosecution and defense."

Col. Masciola also explained that the in-built bias in the role was
readily apparent, because although, on the one hand, the Convening
Authority is responsible for "the ultimate decision to proceed with
charging and trial of the accused," the "ultimate acceptance or
rejection of pretrial agreements" and "initial review and correction of
all convictions" ("all prosecutorial or quasi-prosecutorial functions,"
in his words), she is also responsible for "all of the most critical
defense resource and funding decisions: the initial decision whether or
not the defense is entitled to retain and fund defense experts at
government expense, the initial decision to authorize travel funding of
all witnesses (which, given the location of the accused and trials in
Guantanamo Bay, is tantamount to virtual veto power over the
presentation of most witnesses), and to provide for interpretation and
translation services for the defense."

The result, as he proceeded to explain, is that, "because the Convening Authority is the de facto
chief prosecutor as well as the arbiter of defense resources, defense
requests have not been ruled upon with even a semblance of fairness or
objectivity." As examples, he explained that, although 56 requests for
expert assistance were filed in eleven cases, only nine were granted,
and six of these were in the case of Omar Khadr.
He added that none were granted in any of the four capital cases, and
described these decisions as "astonishing, given the special need for
mitigation specialists and other experts in capital cases," as
recognized by the Supreme Court and the Court of Appeals for the Armed
Forces.

As Col. Masciola also explained, perhaps the most significant effect
of having a politically-appointed Convening Authority overseeing both
the prosecution and the defense is that, when requests for defense
resources are made, "simply filling out a request to the CA requires
our defense teams to lay out, in detail, defense strategy and
privileged materials that the CA freely shares with the prosecution.
Moreover, in practice, the prosecutors have enjoyed a vote on whether
or not defense counsel requests will be granted."

Col. Masciola's testimony was delivered (along with the statements
of Maj. Frakt and Lt. Col. Vandeveld, mentioned at the start of this
article) in an attempt to persuade Congress to reconsider its plans to revive the Commissions
in an amended form, as proposed by President Obama. Given the bias he
describes above, it is, I think, remarkable that Mohammed Jawad made it
through the entire process and eventually secured his release, but it
remains deeply troubling to me that, as Col. Masciola explained to the
House Committee, the "inherently conflicted role" of the Convening
Authority is not addressed in the Senate bill aimed at reviving the
Commissions, and, moreover, that Susan Crawford, a protegee of Dick
Cheney and a close friend of David Addington, is still in her job nine
months after Obama took office.