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 Guantánamo, 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 Guantánamo. 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)
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 Guantánamo, 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
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 Guantánamo 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 Guantánamo 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 protégée of Dick Cheney and a close friend of David Addington, is still in her job nine months after Obama took office.