Military Commissions -- "Broken Beyond Repair" (and other related stories)

July 9, 2009
Lt. Col. Darrel Vandeveld of the US Reserves, a former prosecutor in the Military Commissions at the Constitution, Civil Rights, and Civil Liberties Subcommittee of the House Committee on the Judiciary hearing on “Legal Issues Surrounding the Military Commissions System

I am here today to offer a single, straightforward message: the military commission system is broken beyond repair. Even good faith efforts at revision, such as legislation recently passed by the Senate Armed Services Committee, leave in place provisions that are illegal and unconstitutional, undermine defendants’ basic fair trial rights, create unacceptable risks of wrongful prosecution, place our men and women in uniform at risk of unfair prosecution by other nations abroad, harm the reputation of the United States, invite time consuming litigation before federal courts, and, most importantly, undermine the fundamental values of justice and liberty upon which this great country was founded....

The military commissions cannot be fixed, because their very creation — and the only reason to prefer military commissions over federal criminal courts for the Guantánamo detainees — can now be clearly seen as an artifice, a contrivance, to try to obtain prosecutions based on evidence that would not be admissible in any civilian or military prosecution anywhere in our nation.

The quote is from Andy Worthington's excellent recent posting, "Former Insider Shatters Credibility of Military Commissions". Worthington covered earlier testimony before the Senate Armed Services Committee here.

Fortunately, Retired Rear Admiral John D. Hutson, who served as a Judge Advocate in the US Navy from 1973 to 2000, and was the Navy’s Judge Advocate General from 1997 to 2000, was on hand to cut through the administration’s fog, to put forward a stout defense of the abilities of the federal courts, and to deliver a withering dismissal of proposals to revive the Military Commissions (PDF).

Hutson said that although he was an “early and ardent supporter of military commissions,” the process created by the Bush administration “did not live up to the traditions” of the Uniform Code of Military Justice (the military’s own judicial system), and had become a “significant distraction for the military,” because “[p]reserving and ensuring justice in the United States is the primary mission of the Department of Justice, not the Department of Defense.”

But as a commenter on Worthington's Huffington Post article (reproduced by Andy here) noted, the SASC hearing came after language for the new military commissions law was already written.

CitizenLegislatorDC wrote:

Superb reporting, Andy.

You are absolutely right that floor debate on NEW Obama-blessed military commissions language — ALREADY PASSED by Carl Levin’s Armed Services Committee — is “imminent” in the Senate.

From Wednesday, July 8th:

“Mr. REID. I ask unanimous consent that on Monday, July 13, after the pledge, prayer, and any leader remarks, the Senate proceed to the consideration of Calendar No. 89, S. 1390, the Department of Defense Authorization bill.

The PRESIDING OFFICER. Without objection, it is so ordered.”

And from Thursday, July 9th:

“Mr. REID. …[Next] Monday, we will be in at 11 a.m. Senators Levin and McCain will begin managing the Defense Authorization bill… There are a lot of very big, important amendments on that bill.”

Perhaps Huffington Post Washington reporters (Hi, Dan Froomkin) could ask some questions:

1. WHO WROTE the complex new military commissions language? Levin’s Armed Services committee staffers, or the White House?

2. WHY was the public hearing on the new language held AFTER the committee had already adopted the language?

3. WHO will control the conference committee / negotiations merging the Senate (if its MC language remains) and House (H.R. 2647) defense bills? The President via Emanuel? Will those negotiations be secret, or publicly available?

4. WHY DID NO SENATOR OBJECT to consideration of this 2009 version of the 2006 Military Commissions Act?? Especially Pat Leahy, Chris Dodd, or Russ Feingold — who expressed disgust about the 2006 bill they ALL refused to filibuster, just before the Democrats regained Congress.

All of this comes in context recent scary statements also made at the SASC hearing (emphasis added):

The Obama administration said Tuesday it could continue to imprison non-U.S. citizens indefinitely even if they have been acquitted of terrorism charges by a U.S. military commission.

Jeh Johnson, the Defense Department's chief lawyer, told the Senate Armed Services Committee that releasing a detainee who has been tried and found not guilty was a policy decision that officials would make based on their estimate of whether the prisoner posed a future threat.

Recent statements by Obama administration officials or their surrogates, and by Obama himself, indicate that a turn for more real transparency and accountability may be in the offing. The most promising of such turnarounds comes from Obama himself, on the investigation of the Dasht-e-Leili massacre. A Newsweek article, and a piece by Scott Horton at the Daily Beast, maintain that Attorney General Holder is leaning towards prosecutions over torture. Already there are analysts pouring over what Holder might choose to investigate.

Besides the Obama statement, which represents a turnaround for official U.S. government policy on a single investigation, we are getting very mixed signals from the Obama administration. The next period will be one of accelerated struggle over the fight for accountability and justice, and against torture and a war-inclined military. Unreported here by me is also a struggle over economic justice, as the country sinks ever deeper into economic depression. At some point, these two struggles must link up, and then major change in this country will be in the offing.

Death of a "Dirty Bomb" Frame-up

Andy Worthington has an excellent article at AlterNet analyzing the recent decision by Bush's Justice Department to drop "dirty bomb" charges against British resident and Guantánamo prisoner Binyam Mohamed, the so-called co-conspirator with Jose Padilla to construct and detonate a "dirty bomb" on U.S. soil.

For over three years, Binyam's lawyers at Reprieve, the London-based legal action charity, have been arguing that the allegations against Binyam were extracted through the use of torture -- in Morocco, where Binyam was tortured for 18 months, after being rendered by the CIA, and at the CIA's own "Dark Prison," near Kabul, where he was held for four or five months from January 2004, before his transfer to the U.S. military prison at Bagram airbase, and his eventual arrival at Guantánamo in September 2004.

U.S. authorities got Binyam to "confess" under torture that he had met with Khalid Sheikh Mohammed, Abu Zubaydah, Sheikh al-Libi, Ramzi bin al-Shibh and Jose Padilla to discuss the "dirty bomb" plot. Except guess what? Abu Zubaydah and al-Libi were already in U.S. custody on the date of Binyam's "confessed" plot. The U.S. knew this, too, and continued to torture and prosecute Binyam. And now that the Justice Department has dropped its charges, the Department of Defense, which is conducting the notoriously unjust military tribunals at Guantanamo says it's still "reviewing" Binyam's case.

Mohamad was one of five Guantanamo detainees who had charges dropped against them. (They are not free, however, and the U.S. says there are other charges and further investigation and review to be undertaken.) In Binyam's case, it's widely suspected dropping certain charges were meant to forestall the release of documents proving torture and other mistreatment, and British High Court judges have been highly critical of U.S. conduct in the case. "Torturers do not readily hand over evidence of their conduct," the judges are quoted as saying.

The military tribunals are so unfair that one of its chief prosecutors, Lt. Col. Darrel J. Vandeveld, quit over the handling of evidence in the Mohammed Jawad case, and went public with his criticisms of the frame-up trials. He was the fourth prosecutor to resign from Bush's military kangaroo courts. A Los Angeles Times article on Vandeveld described the former prosecutor's actions:

Vandeveld's claims are particularly explosive.

In a declaration and subsequent testimony, he said the U.S. government was not providing defense lawyers with the evidence it had against their clients, including exculpatory information -- material considered helpful to the defense.

Saying that the accused enemy combatants were more likely to be wrongly convicted without that evidence, Vandeveld testified that he went from being a "true believer to someone who felt truly deceived" by the tribunals. The system in place at the U.S. military facility in Cuba, he wrote in his declaration, was so dysfunctional that it deprived "the accused of basic due process and subject[ed] the well-intentioned prosecutor to claims of ethical misconduct."

Vandeveld is a hero for trying to expose what he called "the creeping rot of the commissions." The reaction from his military colleagues? While some have been supported, there was also "outrage and condemnation," and now this Army Reserve officer fears for his safety and that of his family.

But then this is the final act of a brazen coven of war criminals. George W. Bush announced the other day that he was not going to close Guantanamo -- in fact, he had never even considered it. Meanwhile, his Defense Department made it clear that if it was up to them, no one would ever be released from that facility. The U.S. government is trying to undo the sentence of Salim Hamdan, whose years at Guantanamo were to be counted in his final five year sentence, administered as part by one of the Pentagon's military commissions. While Hamdan should be freed in December, the government is appealing, hoping to keep Hamdan in prison at least another five years, and maybe forever.

“The length of the sentence is a matter of indifference to us,” Morris said. He said that if the jury still wants Hamdan released on Dec. 31, it could resentence him to however many days remained until then.

Marcion has covered the recent events in some depth over at Daily Kos, and his article there is worth reading. His summary makes some essential points:

And for anybody who thinks that the Guantanamo horror stories are the exception, and that after the detention center is closed under the next administration, or after these terror show trials end, that all will be back to normal, I have to say - this is normal. These publicized cases are merely shedding light on an inherently unfair and fixed system. Just as the Trotsky/Bukharin show trials revealed the truth about the entirety of the fixed Soviet justice system, these show trials reveal the same truth about the American system. Our prisons are filled with people whose only crime was attracting the attention of some cop cruising for an arrest. Once somebody is arrested, the prosecutors go to work trying to fix the case so as to get the maximum sentence possible, and the cops cooperate with providing the evidence or testimony that the prosecutor will need to get the conviction, by torturing their prisoner within the bounds of the law (i.e. no permanent bruising). The majority of jurors, being good Americans, are also convinced that justice equals longest sentence possible, and that cops never lie, but defendants always do. Any jurors that show any hesitation or moral qualms are kicked during voir dire. A prosecutor or cop who shows some qualms about pulling out all the stops sees their career come to a grinding halt quickly, while the guys who get convictions get promoted and eventually become judges.

The "justice" of Guantanamo has already come to America, along with the torture and the indefinite detention and obliteration of civil rights. As a follow-up, the reader could go read my recent posting, Battle Over Habeas -- Torture Inc. Comes to America.

Gitmo Prosecutor Quits, Cites Gov't Suppression of Evidence

The Guantanamo chief prosecutor in the case of Mohammed Jawad, the first child soldier to be tried as a "war criminal" in modern times, testified for the defense today in the case of -- Mohammed Jawad! Army Lt. Col. Darrel Vandeveld quit the prosecution (and the Office of Military Commissions) a few days ago, citing government misconduct and suppression of exculpatory evidence in the case. Apparently, the injustice and mistreatment of Jawad finally touched his humanity.

From AP's story by Mike Melia:

Dressed in Army camouflage fatigues, Vandeveld told the court that he reached a turning point when by happenstance he discovered key evidence among material scattered throughout the prosecutors' office.

Flipping through another case file, he saw for the first time a statement Jawad made to a military investigator probing prisoner abuse in Afghanistan — an episode that helped convert him from a "true believer to someone who felt truly deceived."

Vandeveld said he become gradually disillusioned and even developed sympathy for the defendant, who was captured as a teenager and allegedly subjected to beatings and sleep-deprivation.

"My views changed," said the once hard-charging prosecutor. "I am a father, and it's not an exercise in self-pity to ask oneself how you would feel if your own son was treated in this fashion."

Guantanamo's Chief Prosecutor, Army Col. Lawrence Morris, is trying to limit the damage, labeling Vandeveld as disgruntled case. But this is not the first prosecutor to quit and call foul on the government, labeling Bush and the Pentagon's showcase military tribunals a farce. Vandeveld is the third such to resign, though he may be the first to then testify for the defense in a case he was prosecuting only days before.

According to an L.A. Times report, Vandeveld was working on a plea agreement for Jawad that would allow the young man to go free, but the government blocked the move. The Times also noted:

The Jawad case is one of several in which the Pentagon's former legal advisor to military commissions, Air Force Brig. Gen. Thomas W. Hartmann, has been banned from playing an oversight role because of charges that he lost his neutrality by withholding exculpatory information in recommending the charges.

You'd have to have the intelligence of a Sarah Palin supporter not to see that something very, very rotten is happening in Guantanamo. You have to wonder why, at this point, there hasn't been a mass resignation of government prosecutors over such malfeasance.

Meanwhile, Jawad's attorney, Air Force Maj. David Frakt, is asking for dismissal of charges against Jawad, citing government misconduct, as well as the mistreatment Jawad suffered while under arrest and imprisonment, beginning in Afghanistan, and continuing at Guantanamo Naval Base prison. Maj. Frakt also recently initiated a letter writing and petition campaign on behalf of his client, hoping to convince the Conventing Authority at Guantanamo to drop the charges. The petition gathered hundreds of signatures from around the world.

If Jawad is released -- still a big If -- there are many more waiting to be tried in the "complete farce" that is the military commissions system. Maybe some of these prisoners are guilty of terrible crimes; maybe most of them are innocent. Who would know, as the government holds prisoners indefinitely, to render them hopeless, then uses torture to gain information, elicit confessions, and, finally, according to the sworn testimony of prosecutors from Guantanamo, hides evidence that might prove a defendant innocent?

And what of those left facing trial in this kangaroo court? According to an earlier AP story:

Jawad is one of about 20 detainees facing charges in the Pentagon's specially designed system for prosecuting alleged terrorists. Military prosecutors say they plan trials for about 80 of the 255 men held here on suspicion of links to al Qaeda or the Taliban.

All reasonable and patriotic Americans, all citizens of the world who despise injustice, must speak out for the dropping of charges against Mohammed Jawad, and call for the closing of Guantanamo and a halt to the crooked and discredited military tribunal system. Let the remaining prisoners make their cases through the U.S. court system, which should consider their cases with all deliberate speed.

It's not only politics at this point. It's just plain human decency.

Thank you, Lt. Col. Vandeveld, for taking the courageous path and telling the truth.

(H/T to possum over at Never In Our Names, who wrote his own excellent essay on this story.)