There Are No Files, Part 2

There Are No Files, Part 2

This morning, I read this declaration in a GTMO case (pdf). It’s very much worth reading: the author, LTC Darrel Vandeveld, is a member of the Reserve JAG Corps who has served in Iraq and Afghanistan. He was the lead prosecutor against a detainee, Mohammed Jawad, until he resigned last September. After spending over a year on the case, he became convinced that the government had no good case against Jawad, that Jawad had been badly mistreated and was suffering serious psychological harm, and that continuing to hold him was “something beyond a travesty.” (p. 1) That’s why he wrote the declaration in question, in support of Jawad’s habeas petition.

Jawad was between fifteen and seventeen when we took him into custody. That was more than six years ago.

I wasn’t reading this because I thought it might have something to do with last night’s post on files. Imagine my surprise, then, when I found the following, on p. 3 (note: OMC-P is “Office of Military Commissions — Prosecutions”; CITF is “Criminal Investigative Task Force”):

“7. It is important to understand that the “case files” compiled at OMC-P or developed by CITF are nothing like the investigation and case files assembled by civilian police agencies and prosecution offices, which typically follow a standardized format, include initial reports of investigation, subsequent reports compiled by investigators, and the like. Similarly, neither OMC-P nor CITF maintained any central repository for case files, any method for cataloguing and storing physical evidence, or any other system for assembling a potential case into a readily intelligible format that is the sine qua non of a successful prosecution. While no experienced prosecutor, much less one who had performed his or her duties in the fog of war, would expect that potential war crimes would be presented, at least initially, in “tidy little packages,” at the time I inherited the Jawad case, Mr. Jawad had been in U.S. custody for approximately five years. It seemed reasonable to expect at the very least that after such a lengthy period of time, all available evidence would have been collected, catalogued, systemized, and evaluated thoroughly — particularly since the suspect had been imprisoned throughout the entire time the case should have been undergoing preparation.

8. Instead, to the shock of my professional sensibilities, I discovered that the evidence, such as it was, remained scattered throughout an incomprehensible labyrinth of databases primarily under the control of CITF, or strewn throughout the prosecution offices in desk drawers, bookcases packed with vaguely-labeled plastic containers, or even simply piled on the tops of desks vacated by prosecutors who had departed the Commissions for other assignments. I further discovered that most physical evidence that had been collected had either disappeared or had been stored in locations that no one with any tenure at, or institutional knowledge of, the Commissions could identify with any degree of specificity or certainty. The state of disarray was so extensive that I later learned, as described below, that crucial physical evidence and other documents relevant to both the prosecution and the defense had been tossed into a locker located at Guantanamo and promptly forgotten. Although it took me a number of months — so extensive was the lack of any discernable organization, and so difficult was it for me to accept that the US military could have failed so miserably in six years of effort — I began to entertain my first, developing doubts about the propriety of attempting to prosecute Mr. Jawad without any assurance that through the exercise of due diligence I could collect and organize the evidence in a manner that would meet our common professional obligations.”

Its description of the lack of GTMO case files is not even close to being the most important part of this declaration, which is worth reading in its entirety (it’s only 14 pages long, and quite well-written.) It just makes me angry when an anonymous “former senior official” can say that when the Obama administration claims that there are no case files, it is just “‘backpedaling and trying to buy time’ by blaming its predecessor.” That “former senior official” is counting on the fact that most people have no idea whether there are case files on GTMO detainees, and thus no idea who is telling the truth. So s/he thinks that s/he can say anything, and who’s to say that s/he’s wrong?

That makes me angry. Not nearly as angry a lot of other things about this case, some of which I’ve put below the fold, but it’s the only one I can do something about.

More things that make me angry: (pdf)

“As early as November 2003, Joint Task Force-GTMO (“JTF-GTMO”) personnel used sleep deprivation to disorient specific detainees for intelligence purposes. Pursuant to this technique, euphemistically referred to as the “frequent flyer” program, a detainee would be repeatedly moved from one cell to another in quick intervals, throughout the day and night, to disrupt sleep cycles.

48. Military records show that Mohammed was subjected to the “frequent flyer” program from May 7 to May 20, 2004. Over that fourteen-day period, Mohammed was forcibly moved from cell to cell 112 times, on an average of about once every three hours, and prevented from sleeping. Mohammed’s medical records indicate that significant health effects he suffered during this time include blood in his urine, bodily pain, and a weight loss of 10% from April 2004 to May 2004.”

Likewise, this account (pdf) of the “confession”, obtained under torture, that the government described as “central” to its case against Jawad:

“During the interrogation, Mohammed allegedly made incriminating statements and a document, purporting to be a confession, was prepared for him to “sign” with his thumbprint. Mohammed did not know what the document was, did not read it, and was told he needed to put his thumb print on it to be released.

25. The written statement allegedly containing Mohammed’s confession and thumbprint is in Farsi. Mohammed does not read, write, or speak Farsi. There are several factual assertions in the statement that are false, including Mohammed’s name, his father’s name, his grandfather’s name, his uncle’s name, his residence, his current residence, his age, and an assertion that he speaks English. The statement’s account of the grenade attack — the responsibility for which the statement ascribes solely to Mohammed — conflicts with the eyewitness accounts of the American victims. Yet, it was this statement that Respondents and their agents primarily relied on as a basis for Mohammed’s detention, and for the charges brought against him in the Guantanamo Military Commissions.

Or this account (pdf) of Jawad’s treatment while in US custody at Bagram:

“At approximately the same time, by sheer happenstance, I stumbled across a summary of an interview, taken by an Army Criminal Investigation Division Special Agent from Mr. Jawad himself, which had been added to the record of trial in a case where a guard at Bagram prison had been charged with the murder of a detainee. The statement — essentially a recitation of Mr. Jawad’s account — indicated that Mr. Jawad had experienced extensive abuse while at Bagram prison from December 18, 2002 to early February 2003. This abuse included the slapping of Mr. Jawad across the face while Mr. Jawad’s head was covered with a hood, as well as Mr. Jawad’s having been shoved down a stairwell while both hooded and shackled. I immediately provided the statement to the defense. The interviewer, a veteran Army CID agent, later testified as a defense witness at an August hearing in the Jawad case that Mr. Jawad’s statement was completely consistent with the statements of other prisoners held at Bagram at the time, and, more importantly, that dozens of the guards had admitted to abusing the prisoners in exactly the way described by Jawad. My crossâ€examination, which I quickly ended, only served to reinforce the agent’s testimony on direct.”