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The Closing Argument at Guantanamo

 

Editor's note: In 2002, Mohammed Jawad, who was somewhere between the ages of 12 to 17 (his birth date is unknown), was arrested by Afghan police, suspected of involvement in a grenade attack in Kabul which injured two U.S. soldiers and their interpreter. He was turned over to the U.S. military, sent to Bagram prison, and then transferred to Guantanamo Bay, Cuba, in February 2003. Although he consistently denied throwing the hand grenade in dozens of interrogations, in 2007, he was charged by the U.S. government with attempted murder "in violation of the law of war." He was the fourth person charged in the military commissions

In 2008, David J.R. Frakt, then a Major in the U.S. Air Force Judge Advocate General’s (JAG) Corps, volunteered as a defense lawyer in the military commission set up to try Guantanamo prisoners. After presenting evidence that Jawad had been abused by the U.S. while detained, Frakt argued that this abuse should result in dismissal of the charges, in essence, that the U.S. had forfeited the right to try Jawad because of its own lawless actions. In support of this motion, Jawad was the first detainee to describe his torture at Guantanamo under oath in a military commission. Although the motion to dismiss was denied, the judge did rule that Jawad had been subjected to cruel and inhuman treatment and was entitled to relief. In a related ruling, the judge found that the primary evidence against Jawad, two alleged confessions made on the day of his capture, were the product of torture and excluded them from evidence.

The lead prosecutor in the case, Lt. Col. Darrel Vandeveld, was so disturbed by the treatment of Jawad that in September 2008 he resigned from the military commissions and actively assisted Major Frakt in his efforts to have Jawad freed, stating in a declaration in Jawad's habeas corpus case:

…based on my extensive knowledge of the case, [there is] no credible evidence or legal basis to justify Mr. Jawad’s detention in U.S. custody or his prosecution by military commission. There is, however, reliable evidence that he was badly mistreated by U.S. authorities both in Afghanistan and at Guantanamo, and he has suffered, and continues to suffer, great psychological harm. Holding Mr. Jawad’s for over six years, with no resolution of his case and with no terminus in sight, is something beyond a travesty.

Without the ability to use the tortured confessions, the Justice Department eventually concluded that they had no basis to prosecute Jawad, or even to continue to detain him. In the summer of 2009, the charges were dismissed, Jawad's habeas corpus petition was granted, and he was repatriated to Afghanistan.

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What follows is the text of a dramatic reading presented at the opening night of PEN World Voices Festival of International Literature, April 29, 2013.

Frakt’s remarks are taken from an actual oral argument in support of a motion to dismiss that he made on June 19, 2008 in the military commission: “Closing Argument at Guantanamo: The Torture of Mohammed Jawad.” Frakt recently published a second oral argument from the same case from Guantanamo on the PEN American website (here).

Frakt's complementary piece, "Shame and Pride," appears on The Mantle here.

Lieutenant Colonel Vandeveld's remarks were drawn from his Declaration in support of Mohammed Jawad's habeas corpus petition (here). Vandeveld’s document is also featured in the documentary Reckoning with Torture where Robert Redford and others read from the Declaration.

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Emcee: Who is Darrel Vandeveld?

David Frakt: Darrel Vandeveld is a patriot. He is retiring from the U.S. Army this year after 24 years of Active and Reserve service. He is a former infantry officer who won a bronze star for valor in Desert Storm and later went to law school and has served his country as a JAG officer ever since. He deployed several times, including to Bosnia, Iraq, Djibouti, and Afghanistan. He was my opposing counsel in the military commissions of Guantanamo. He is my friend. He is a writer.

 

Emcee: Who is David Frakt?

Darrel Vandeveld: David Frakt is a patriot, an honors graduate of Harvard law School who was the only member of his class to volunteer for military service after graduation, joining the Air Force JAG Corps. He has 18 years of active and reserve service as a military lawyer. He was my opposing counsel in the Guantanamo military commissions and became my dear friend. He is a writer.

 

Emcee: Darrel Vandeveld, what did you do?

Vandeveld: In 2007, I volunteered to prosecute detainees at Guantanamo in the U.S. military commissions. I was assigned as the lead prosecutor in several cases, including the case of Mohammed Jawad, a young man from Afghanistan. While I was a prosecutor, David Frakt helped me to find and expose gross human rights abuses of Mohammed and other detainees by the U.S. government. In September 2008, I became convinced that the prosecution of Mohammed was unjust and that the military commissions were grossly flawed. I requested to be relieved and reassigned to other duties. After stepping down from the prosecution, I worked with David Frakt to expose detainee abuse, to secure Mohammed’s release and bring about much-needed reforms to the U.S. military commissions.

Mohammed Jawad was one of the youngest prisoners held at Guantanamo (via)

 

Emcee: How did you do it?

Vandeveld: I testified before the military commission in Mohammed’s case, as to why I was resigning, I testified before Congress, and I wrote a declaration in support of Mohammed’s habeas corpus petition, in which I said:

“It is my opinion. . .that there is no credible evidence or legal basis to justify Mr. Jawad’s detention in U.S. custody or his prosecution by military commission. There is, however, reliable evidence that he was badly mistreated by U.S. authorities both in Afghanistan and at Guantanamo, and he has suffered, and continues to suffer, great psychological harm. Holding Mr. Jawad for over six years, with no resolution of his case and with no terminus in sight, is something beyond a travesty.

At the time of the swearing of charges we had absolutely no idea that Mr. Jawad had ever been subjected to any abusive treatment of any kind by anyone involved in his capture and subsequent imprisonment. We at OMC‐P were predisposed to discount any allegation of detainee abuse. . .we knew and believed that members of al Qaeda had been trained to make false claims of abuse if captured as part of their propaganda war against the U.S. and as a means to halt their interrogations or to serve as the basis for attempting to discredit any admissions they may have made in the course of questioning. We accepted as an article of faith that the detainees either fabricated outright or grossly exaggerated their seemingly continual complaints of abuse.

In response to Major Frakt’s request, I obtained a copy of the Detainee Incident Management System (DIMS) records maintained by JTF‐GTMO (Joint Task Force-Guantanamo). While reviewing the records, I noticed that they referred to a suicide attempt by Mohammed Jawad on December 25, 2003, which he sought to accomplish by banging his head repeatedly against one of his cell walls.

The records reflected 112 unexplained moves from cell to cell over a two week period, an average of eight moves per day for 14 days. Upon further investigation, we were able to determine that Mr. Jawad had been subjected to a sleep deprivation program popularly referred to as the “frequent flyer” program. I realized that Mr. Jawad had been telling the truth. I lack the words to express the heartsickness I experienced when I came to understand the pointless, purely gratuitous mistreatment of Mr. Jawad by my fellow Soldiers.”

 

Emcee: Why did you do this, Darrel Vandeveld?

Vandeveld: I did it because I believe in truth, justice, the rule of law, and our common humanity. I did it for Mohammed Jawad, I did it because it was my duty, and I did it for us all. As I have written:

“Ultimately, I decided that I could no longer ethically prosecute Mr. Jawad, or, in good conscience, serve as a prosecutor at the Office of Military Commissions.

The chaotic state of the evidence, overly broad and unnecessary restrictions imposed under the guise of national security, and the absence of any systematic, reliable method of preserving and cataloging evidence, all of which have plagued the Commissions since their inception, make it impossible for anyone involved (the prosecutors) or caught up (the detainees) in the Commissions to harbor even the remotest hope that justice is an achievable goal.

I have taken an oath to support and defend that Constitution of the United States, and I remain confident that I have done so, spending over four of the past seven years away from my family, my home and my civilian occupation – all without any expectation or of desire for any reward greater than the knowledge that I have remained true to my word and have done my level best to rise to our Nation’s defense in its time of need. 

The military commission courtroom at Guantanamo BayNo one who has fought for our country and its values has done so to enable what happened in Guantanamo. We did not sacrifice so that an administration of partisan civilians, abetted by military officers who seemed to have lost their moral compass, could defile our Constitution and misuse the rule of law.

I did not "quit" the military commissions or resign; instead, I personally petitioned the Army's Judge Advocate General to allow me to serve the remaining six months of my two year voluntary obligation in Afghanistan or Iraq. In the exercise of his wisdom and discretion, he permitted me to be released from active duty. However, had I been 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 another one of my very best friends was 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 persecutor.

Six years is long enough for a boy of sixteen years to serve in virtual solitary confinement, in a distant land, for reasons he may never fully understand. Mr. Jawad should be released to resume his life in a civil society, for his sake, for our own sense of justice and perhaps, to restore a measure of our basic humanity.”

 

Emcee: What did you do, David Frakt?

Frakt: In 2008, I volunteered to defend detainees at Guantanamo before the military commissions. I Represented Mohammed Jawad, a young man captured as a teenager and held at Guantanamo for nearly 7 years and facing a life sentence for war crimes before the military commissions. I think I've helped Darrel to see that this young man did not deserve to be prosecuted, that the evidence against him was weak to non-existent, and that he was doing an injustice. Darrel and I exposed that my client and many others had been subjected to abuses and inhumane treatment at the hands of the United States, including the now infamous “frequent flyer” sleep deprivation program. Ultimately, I secured the dismissal of all charges and won a federal court order to release this young man and send him home to Afghanistan in August 2009. I think I helped to bring about much needed reforms to the U.S. military commissions.

 

Emcee: How did you do it?

Frakt: I proved that the charges against Mohammed were unsupported. I turned the tables on the prosecution and put the U.S. government on trial at Guantanamo for its own violation of human rights and the laws of war. In an argument seeking to have the charges against Mohammed dismissed I once said:

“Our Commander-in-Chief, perhaps unwittingly, perhaps not, started the U.S. down a slippery slope, a path that quickly descended, stopping briefly in the dark, Machiavellian world of “the ends justify the means,” before plummeting further into the bleak underworld of barbarism and cruelty, of “anything goes,” of torture. It was a path that led inexorably to the events that brought us here today, the pointless and sadistic treatment of Mohammed Jawad, a suicidal teenager.

The administration chose to rely on the infamous torture memos. These secret memos attempted to redefine torture for the purpose of providing legal cover for administration officials who approved the use of patently unlawful tactics. These legal opinions, now disgraced, disavowed, and relegated to the scrap heap of history where they belong, laid the groundwork for the wholesale and systematic abuse of detainees which ultimately ensnared my client, Mohammed Jawad.

America is a nation founded on a reverence for the rule of law. We should never forget that when we take an oath to enlist or be commissioned as an officer in the United States Armed Forces, we do not swear to defend the United States, we swear “to support and defend the Constitution of the United States…Tragically, under the undeniably heavy pressure to defend Americans from terrorist attack, some of our military and civilian leaders lost sight of their obligation to defend the Constitution as well.

Under the Constitution all men are created equal, and all are entitled to be treated with dignity. No one is “undeserving” of humane treatment. It is an unmistakable lesson of history that when one group of people starts to see another group of people as “other” or as “different,” as “undeserving” or “inferior,” ill-treatment inevitably follows. In the Global War on Terror generally and in the detention camps of Guantanamo especially, the detainees were seen as “terrorists,” as “the worst of the worst,” something less than human, and were treated accordingly. After six and a half years, we now know the truth about the detainees at Guantanamo: some of them are terrorists, some of them are foot soldiers, and some of them were just innocent people, caught in the wrong place at the wrong time. But the detainees at Guantanamo have one thing in common—with each other, and with us—they are all human beings, and they are all worthy of humane treatment.

 

Emcee: Why did you do it?

Frakt: I did it because I believe in truth, justice, the rule of law, and our common humanity. I did it for Mohammed Jawad, I did because it was my duty, and I did it for us all. As I said in a Guantanamo courtroom 5 years ago:

“America lost a little of its greatness. We lost our position as the world’s leading defender of human rights, as the champion of justice and fairness and the rule of law. But it is a testament to the continuing greatness of this nation, that I can stand here before you today, with the world watching, without fear of retribution, retaliation or reprisal, and speak truth to power. I can call a spade a spade, and I can call torture, torture. 

Restore a bit of America’s lost luster…bring back some small measure of the greatness that was lost...set us back on a path that leads to an America which once again stands at the forefront of the community of nations in the arena of human rights. Send a message, a clear and unmistakable message that the U.S. really doesn’t torture, and when we do, we own up to it, and we try to make it right.”

Mohammed Jawad greets a friend in his family's home in 2009 (via Zimbio)

 


May 6, 2013

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Professor David J. R. Frakt earned his B.A., summa cum laude, from the University of California, Irvine and his J.D., cum laude, from Harvard Law School. After law school, he clerked for the Honorable Monroe G. McKay, former Chief Judge of the U.S. Court of Appeals for the Tenth Circuit. From 1995 to 2005, he served on active duty with the U.S. Air Force Judge Advocate General's Corps (JAG) before transitioning to academia and the Air Force Reserves, where he is now a Lieutenant Colonel.  He served as Associate Professor and Director of the Criminal Law Practice Center at Western State University College of Law from May 2005 to July 2010, and as Associate Professor of Law at Barry University School of Law from August 2010 to May 2012.  In 2008, he was an adjunct professor at Georgetown University Law Center.

From April 2008 to August 2009, Professor Frakt took a military leave of absence from teaching to serve as lead defense counsel with the Office of Military Commissions, representing two detainees at Guantanamo facing war crimes and terrorism charges before the U.S. military commissions. He was the first defense counsel to win the pretrial dismissal of all charges against his client, Mohammed Jawad, a juvenile from Afghanistan, and also won Mohammed's release through a habeas corpus petition in federal court. He was the sole defense counsel in one of the only two military commission trials completed during President Bush's tenure in office, representing Ali Hamza al Bahlul.

Visit David's University of Pittsburgh School of Law page and read and download his publications from his SSRN page.