Constitutional Law

Growing Up at Gitmo

By Ateqah Khaki, National Security Project

Remember Mohammed Jawad? Captured when he was possibly as young as 14 years old, Jawad is one of two Guantánamo prisoners the U.S. is prosecuting for war crimes allegedly committed as a child, under the Bush administration's failed and unconstitutional military commissions. It's been a while since President Obama issued his Executive Order halting the Guantánamo commissions process, so to refresh your memory, recall that the secrecy — shrouded system allows the use of coerced statements and hearsay evidence. There is no question that the military commissions process is unlawful, and should not be resurrected in any way whatsoever.

The ACLU and military co-counsel Major David Frakt, represent Jawad in a habeas petition challenging his illegal detention in federal court. The government sought to deny Jawad his right to challenge his detention in federal court by arguing that the government should dismiss or delay our habeas petition pending a decision in the military commissions — despite the fact that the Obama administration suspended the commissions in January.

In a welcome order, yesterday a federal judge upheld Jawad's right to challenge his indefinite detention by denying the the government's motion to dismiss or delay. As ACLU attorney Jonathan Hafetz stated in a statement in response to the order, 'Today’s ruling is vindication of the right to challenge indefinite detention…[The judge's] order emphasizes the importance of independent judicial review for prisoners who have been held for years with no legal recourse. A prompt habeas hearing is especially necessary because Mr. Jawad’s mental and physical well — being continue to be jeopardized by the harsh conditions in which he is being held at Guantánamo.'

Jawad is accused of throwing a hand grenade at two U.S. service members and their interpreter in Afghanistan. But his alleged 'confession' — obtained by Afghan forces who threatened to kill him and his family if he did not confess — raises alarm because it was found by a military judge to have been obtained through torture. In fact, Jawad’s former lead military prosecutor, Lt. Col. Darrel Vandeveld, left the military commission in September 2008 because he did not believe he could ethically proceed with Jawad’s case. He submitted a 14-page statement in support of the ACLU’s challenge, describing the torture Jawad suffered in U.S. custody and stating that the flaws in the commission system make it impossible 'to harbor the remotest hope that justice is an achievable goal.'

Jawad has quite literally grown up Guantánamo, and his treatment in U.S. custody over the last six years raises grave concerns. We know, for example, that Jawad was subject to the now-infamous 'Frequent Flyer' sleep-deprivation program — after it was 'officially' banned at Gitmo, and just months after his Christmas Day suicide attempt in 2003.

As The New York Times has stated, Jawad's case is 'emblematic of everything that is wrong with Guantánamo Bay.' Even his former prosecutor believes that he should be released. And while we are pleased with yesterday's order, we won't rest until Jawad is free.

Full post as published by Blog of Rights on April 23, 2009 (boomark / email).