Mohammed Jawad and Obama's Efforts to Suspend Military Commissions

This is a very good and important step
-- not only because of its substance, but also because it was something
Obama did almost immediately, even before his first full day in office:

one of its first actions, the Obama administration instructed military
prosecutors late Tuesday to seek a 120-day suspension of legal
proceedings involving detainees at the naval base at Guantanamo Bay,
Cuba -- a clear break with the approach of the outgoing Bush
administration. . . .

Such a request may not be
automatically granted by military judges, and not all defense attorneys
may agree to such a suspension. But the move is a first step toward
closing a detention facility and system of military trials that became
a worldwide symbol of the Bush administration's war on terrorism and
its unyielding attitude toward foreign and domestic critics. . . .

motion prompted a clear sense of disappointment among some of the
military officials here who had tried to make a success of the system,
despite charges that the military tribunals were a legal netherworld.
Military prosecutors and other commission officials here were told not
to speak to the news media, according to a Pentagon official.

"It's over; I don't want to say any more," said one official involved in the process.

few pre-praise caveats are in order: This is only a first step and a
temporary one at that. Subsequent actions that the Obama
administration is clearly considering could severely undermine both the
symbolic and substantive value of this act, particularly if they go and
create new "national security courts" of the kind aggressively
advocated by newly-appointed Deputy Solicitor General Neal Katyal,
which would likely enable coerced evidence to be used in order to
obtain convictions of accused Terrorists. Even with Obama's order
yesterday, many of the most vital questions surrounding the closing of
Guantanamo remain unanswered.

Still, this order clearly signals
that Obama -- even for one day -- did not want his name anywhere near
the grotesque mockery of justice known as the "Guantanamo military
commissions," tribunals that were created when his own political party,
in the weeks before the 2006 mid-term elections, helped to enact
the Military Commissions Act (see this photograph
for a vivid illustration of the extent to which what happens at
Guantanamo is now Obama's responsibility in every sense of the word).
That one of his very first acts as President was to do everything in
his power to put a stop to the ongoing military commissions --
including those of detainees accused of participation in the 9/11
attacks -- is as strong a first-day repudiation of those military
commissions as one can imagine.

* * * * *

Beyond the
symbolic value of that act, consider what it means in specific,
concrete terms. One of the Guantanamo detainees whose military
commission has not yet concluded is Mohammed Jawad. Jawad is an Afghan
citizen who, in late 2002, was taken into U.S. custody and then shipped
from Afghanistan, his home country, to Guantanamo, where he has
remained ever since -- more than six full years and counting.
Nobody has ever accused Jawad of belonging either to Al Qaeda or
the Taliban. Instead, he is accused of throwing a hand grenade at two
U.S. soldiers inside his country, seriously injuring both of them. He
vehemently denies involvement. At the time of his due-process-less
imprisonment in Guantanamo, he was an adolescent: between 15 and 17 years old (because
he was born and lived his whole life in an Afghan refugee camp in
Pakistan, and is functionally illiterate, his exact date of birth is

The ACLU represents Jawad in his habeas corpus
proceeding (a proceeding which the vile Military Commissions Act denied
to him but which the Supreme Court, in its 5-4 Boumediene decision, ruled he was constitutionally entitled to have). The ACLU's habeas brief -- here
(.pdf) -- details the severe abuse, coercion, and mental and physical
torture which Jawad has endured for the last six years. The details,
by definition, would thoroughly disgust any decent human being [just read paragraphs 15-54 for a brief glimpse (.pdf) of what was done to this teenager under the official, authorized program of the U.S. Government].

to say, Jawad's chief prosecutor at Guantanamo -- the
Bronze-Star-recipient Lt. Col. Darrel Vandeveld, who since 9/11 has
served in Iraq, Afghanistan, Bosnia and Africa -- became so repelled by
the treatment to which Jawad was subjected, by the fact that virutally
all of the evidence against him was severely coerced, and by the fact
that there is "no credible evidence" to justify his detention, that he
first demanded that Jawad be released, then, when Bush officials
refused, unsuccessfully demanded to be relieved of his duty to
prosecute, and then finally resigned. He has now become one of the key
witnesses in Jawad's habeas proceeding, and you can (and should) read
Lt. Col. Vandeveld's Sworn Declaration in Support of Jawad's Habeas
Petition here. In Paragraph 2, he writes:

underscore how dubious and unreliable is the evidence against Jawad,
how far away he is from a "hard-core terrorist," and how outrageous is
his ongoing detention, Lt. Col. Vandeveld very poignantly wrote:

I returned to Afghanistan or Iraq, and had I encountered Mohammed Jawad
in either of those hostile lands, where two of my friends have been
killed in action and one of my very best friends in the world had been
terribly wounded, I have no doubt at all -- none -- that Mr.
Jawad would pose no threat whatsoever to me, his former prosecutor and
now-repentant persecuter. Six years is long enough for a boy of
sixteen to serve in virtual solitary confinement, in a distant land,
for reasons he may never fully understand.

of all, Lt. Col. Vandeveld explains that he began to realize the grave
injustice of prosecuting Jawad as he discovered long-concealed evidence
proving just how brutal and continuous the abuse of Jawad has been, and
how virtually all of the evidence against him was suspect at best and
almost certainly was unreliably coerced.

In Afghanistan, Jawad
was severely beaten, drugged, and threatened with death for both
himself and his family if he refused to confess to the grenade
incident. That occurred just weeks after the incident where two Afghan detainees, including a completely innocent 22-year-old Afghan cab driver, were beaten to death -- murdered
-- while detained and interrogated by U.S. troops in Bagram. The
confession Jawad "signed" (with his fingerprint, since he can't write
his name) became the centerpiece of the Bush administration's case
against him, and yet, it was written in a language Jawad did not speak
or read, and was given to him after several days of beatings, druggings
and threats -- all while he was likely 15 or 16 years old.

December, 2003, when he was (at most) 18 years old, Jawad -- according
to Guantanamo prison logs -- attempted to kill himself. In 2004, he
was subjected to the so-called "frequent flier" program, where, in a
two-week period alone, he was moved to a new cell 112 times -- an
average of every 3 hours, in order to ensure he was sleep deprived and
disoriented. Over the six years at Guantanamo, Jawad was repeatedly
subjected to extreme cold, bright lights, and various stress
positions. He was often kept in solitary confinement or in "linguistic
confinement," isolated from anyone who spoke his only language
(Pashto). As recently as May of 2008, while Jawad
was at Guantanamo, he was beaten so badly by guards that, weeks later,
he still had extreme bruises on his arms, knees, shoulders, forehead
and ribs.

* * * * *

Despite all of that, the Bush
administration -- monstrous war criminals to the end -- just last week
demanded in Jawad's habeas corpus proceeding that his military
commission be allowed to proceed as scheduled and that his habeas
petition be dismissed. The U.S. was about to proceed with a military
commission of a tormented and destroyed human being -- a teenager when
his ordeal began and now nothing resembling a healthy, functioning
adult -- before a completely rigged tribunal and try him, ironically
enough, for "war crimes." It was that repulsive travesty which Obama's
order yesterday stopped, at least temporarily.

Jawad was never
waterboarded, but no civilized human being would deny that the
cumulative effect of his treatment at the hands of our country is
torture in every sense of the word. And there's nothing unique about
his treatment. It wasn't aberrational. Rather, it has been miserably
common for detainees in U.S. custody -- not only at Guantanamo, but
also in Bagram and throughout Iraq. It was what our highest political
officials authorized and ordered. At least 100 detainees in U.S. custody have died since 2002, many suffering gruesome deaths.
Countless others have been severely injured and irreparably wounded --
mentally crippled -- by the inhumane, brutal and patently illegal
treatment to which they were subjected. Video released earlier this year
showed another teenaged detainee at Guantanamo, 16-year-old Omar Khadr,
weeping uncontrollably and showing clear signs of mental instability
during a Guantanamo interrogation. Khadr's military commission was
scheduled to start this week -- and the military judge in charge of his case has just moments ago agreed to Obama's request to suspend it for 120 days.

is why it is so unconscionable -- almost as revolting as the original
acts themselves -- to hear so many Americans arguing that their leaders
who were responsible for all of these crimes should be immunized and
protected and their crimes left uninvestigated and forgotten. The
reasons cited for this impunity are even more wretched -- the media
wouldn't like it; it would interfere with Obama's ability to get his
stimulus package passed; it would make right-wing talk-radio angry;
these crimes happened "in the past" and can therefore be forgotten; the
criminals aren't in power any longer; it would be "divisive" and
undermine bipartisanship.

When the discussion remains at a high
level of abstraction, it's easy to wave away "war crimes" and the need
for accountability for those who commit them. But there are actual
victims of these crimes -- lots of them, many of whom are completely
innocent of having done anything wrong, many whose lives have been
destroyed. Demanding that their victimizers -- or, as Lt. Col.
Vandeveld put it, their "persecuters" -- be protected and forgotten is
every bit as indefensible as arguing that we should just open the doors
to all of our prisons and let out all of the murderers and other
violent criminals who reside there in the name of "looking to the
future" and not getting caught up in "retribution."

UPDATE: Harper's Scott Horton notes that the leading U.N. official in charge of torture conventions, such as the Convention Against Torture (signed
by Ronald Reagan and ratified by the U.S. Senate), just stated that the
Obama administration is obligated by that treaty and by international
law to criminally investigate Bush officials for torture:

In an interview on Tuesday evening with the German television program "Frontal 21,"
on channel ZDF Professor Manfred Nowak, the United Nations Rapporteur
responsible for torture, stated that with George W. Bush's head of
state immunity now terminated, the new government of Barack
Obama was obligated by international law to commence a criminal
investigation into Bush's torture practices.

"The evidence is sitting on the table," he stated. "There
is no avoiding the fact that this was torture." He pointed to the U.S.
undertakings under the Convention Against Torture in which the country
committed that it would criminally prosecute anyone who tortured, or
extradite the person to a state that would prosecute him. "The
government of the United States is required to take all necessary steps
to bring George W. Bush and Donald Rumsfeld before a court," Nowak said.

Nowak, an internationally renowned law professor at the University of
Vienna, currently serves as an independent expert for the United
Nations looking at allegations of torture affecting member states. In
2006, he undertook a special investigation of conditions at the U.S.
detention facilities at Guantanamo in which he concluded that practices
approved by the Bush Administration violated human rights norms,
including the prohibition against torture.

is an important fact which he's overlooking. We're the United
States. We don't care what the U.N. says. Everyone knows that we're
exempt from treaties we sign and from international law. We have too
many important things to do to bother with any of that. These
so-called "obligations" don't apply to us. We proved that in 2003 and
-- if the likes of DavidIgnatitus and Newsweek have their way -- we'll be well on our way to proving it again.

appears that the Guantanamo judges will be receptive to the Obama
administration's request to stay these commissions, as another military
judge -- this one overseeing the proceedings against five detainees
accused of involvement in the 9/11 attacks, including Khalid Sheikh
Mohammed -- just ordered the commissions stayed for 120 days, as Obama ordered his prosecutors to request. And the Swiss Government today announced
that it will agree to accept released Guantanamo detainees if that
helps close the camp, which Switzerland, like most of the civilized
world, considers a blight on Western justice and an ongoing violation
of international law. Those are fairly rapid (and encouraging) events
for the first 24 hours.

On a related note, AP obtained the draft Executive Order
now being circulated in the White House that directs that "the
detention facilities at Guantanamo for individuals covered by this
order shall be closed as soon as practicable, and no later than one
year from the date of this order." A definitive date certain for
closing that camp is vital, though the real question is and will
continue to be: under what system and rules will the detainees, once
transferred to the U.S., be tried?

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