In the wake of the Guantanamo Military Commissions Convening Authority Susan Crawford’s admission that Mohamed al-Qahtani had been “tortured”, resulting in charges against al-Qahtani being dropped, Maj. Frakt, Mohhamed Jawd’s military defense attorney has just sent a letter to Ms. Crawford requesting that she apply the same criterion to his client and drop the charges.
January 14, 2008
The Hon. Susan J. Crawford
Convening Authority
Office of Military Commissions
1600 Defense Pentagon
Washington DC 20301-1600
Madame Convening Authority:
I am writing to commend your courageous and candid comments concerning the commissions to Bob Woodward, as reflected in a story in this morning’s Washington Post. Your decision to refuse to refer charges against a detainee because he was tortured, despite the repeated swearing of charges against him by the Chief Prosecutor, was in the finest traditions of American standards of military justice.
As you know, I represent Mohammed Jawad. I assumed all along that your decision with regard to Mr. Qahtani was based on his harsh treatment in detention, and, in fact stated as much in an open session of Mr. Jawad’s military commission, while cross-examining the former Legal Advisor:
Q [MAJ FRAKT]: But. . .the treatment of the detainees, whether they may have been subjected to abusive treatment, is a consideration that you have taken into account in formulating your pretrial advice, is it not?
A [BG HARTMANN]: It could be, certainly.
Q [MAJ FRAKT]: In fact, it has been in the Qahtani case. You specifically recommended something other than what the chief prosecutor recommended, considering the totality of the circumstances surrounding his detention.
A [BG HARTMANN]: I recommended something different than the chief prosecutor recommended based upon the totality of the circumstances, that’s correct.
Q [MAJ FRAKT]: And those circumstances included harsh treatment at the hands of U.S. detention authorities?
A [BG HARTMANN]: Those circumstances included all the circumstances that were described as in the referral binder.
Q [MAJ FRAKT]: In fact, the Convening Authority dismissed those charges against Mr. al Qahtani presumably concerning the totality of the circumstances as well?
A [BG HARTMANN]: The Convening Authority dismissed the charges. . . She did not explain the reason.
U.S. v. Jawad, Draft Record of Trial pp. 342-344 (June 19, 2008)
I was also heartened by the following passage in the story: “Crawford said she believes that coerced testimony should not be allowed. ‘You don’t allow it in a regular court,’ said Crawford.” Given your stated disapproval about the use of coerced statements and the propriety of referring charges against detainees who have been tortured, I am sure you’ll be very interested in the recent developments in the case against my client, Mohammed Jawad. Just yesterday, in an oral argument before the Court of Military Commission Review in U.S. v. Jawad, the government counsel from OMC-P argued that coerced testimony is and should be admissible under MCRE 304. The government had filed an interlocutory appeal of Judge Henley’s ruling that a statement obtained by U.S. interrogators from Mr. Jawad was the product of torture. They argued that he had applied the incorrect standard, that the statement was not the product of torture but only coercion, and that it was in the interests of justice to admit the coerced statement.
Although I welcome the strong public stand you have taken in the article, your enlightened attitudes about the use of coerced statements and the propriety of referring charges against detainees who have been tortured seem to be inconsistent with your actions in my client’s case. I am writing to bring some of these inconsistencies to your attention, in the hope that you will reconsider.
The Post article suggests that you referred charges against other detainees known to have been tortured because there was independent uncoerced evidence. Referring to the alleged 9/11 co-conspirators, the story says: “The five detainees face capital murder charges, and Crawford said she let the charges go forward because the FBI satisfied her that they gathered information without using harsh techniques. She noted that Mohammed has acknowledged his Sept. 11 role in court, whereas Qahtani has recanted his self-incriminating statements to the FBI.” This is certainly an understandable distinction. If there is independent reliable evidence of involvement in a terrorist attack, then it may not be unreasonable to pursue charges. It must be underscored that the only confessions Mohammed Jawad ever made were the initial statements made the first day of capture which Judge Henley has ruled were the product of torture. In nearly a dozen interrogations at Bagram prison and over 36 interrogations at Guantanamo under less coercive circumstances, he consistently denied throwing the hand grenade. He also denied throwing the hand grenade in his Combatant Status Review Tribunal. Thus, when the prosecution was asked during the September 25-26 suppression motion whether they intended to offer any additional self-incriminating statements from Mr. Jawad at his trial, they stated that they had none, and would not offer any statements other than those from Mr. Jawad’s first day and night in captivity.
I note also that you considered the extent of the abuse suffered by Mr. Qahtani. The torture that led to the incriminating statements was not the only abuse experienced by Mr. Jawad. The Post story referenced that Mr. Qahtani “experienced sustained isolation, sleep deprivation, nudity and prolonged exposure to cold.” While perhaps not to the same degree, Mr. Jawad also experienced these same techniques, despite the fact that, as both the former JTF-GTMO Commander, Maj Gen Jay Hood, and the former JIG Director, Esteban Rodriguez, have testified, Mr. Jawad was not perceived to possess any intelligence value. Indeed, as Judge Henley found in D-008 “by March 2004 the accused was of no intelligence value to any government agency.” And of course, Mr. Jawad, unlike Mr. Qahtani, was a minor at the time that these techniques were utilized. Mr. Jawad has also been beaten, forced to stand in stress positions and hooded, among other forms of abuse. This abuse has been the subject of considerable pre-trial litigation in his case, and has all been proven in open court, as explained by Judge Henley in the following passages from his Ruling in D-008:
[T]he accused was subjected to the frequent flyer program and moved from cell to cell 112 times from 7 May 2004 to 20 May 2004, on average of about once every three hours. The accused was shackled and unshackled as he was moved from cell to cell. The Accused was not interrogated and the scheme was calculated to profoundly disrupt his mental senses.
On or about June 2, 2008, the Accused was beaten, kicked, and pepper sprayed for not complying with a guard’s instructions. He suffered, among other injuries, a broken nose.
The conditions experienced by the Accused while confined at Guantanamo Bay include excessive heat, constant lighting, loud noise, linguistic isolation (separating the accused from other Pashto speakers), and, on at least two separate occasions, 30 days physical isolation.
This Commission finds that, under the circumstances, subjecting this Accused to the “frequent flyer” program from May 7-20, 2004 constitutes abusive conduct and cruel and inhuman treatment.
In one respect, Mr. Jawad’s treatment may be viewed as even more egregious than the abuse of Mr. Qahtani. As you noted in your interview, the techniques utilized against Mr. Qahtani were authorized at the time. In contrast, the frequent flyer program was never officially authorized, and, as Judge Henley noted in D-008 the frequent flyer treatment of Mr. Jawad “came at least two months after the JTF-GTMO commander had ordered the program stopped.”
Another remarkable aspect about Mr. Jawad’s case is the fact that, due to Brig Gen Hartmann’s intense personal interest in the case, it was rushed to trial without adequate preparation. I was struck by the following passage in the story:
When she came in as convening authority in 2007, Crawford said, “the prosecution was unprepared” to bring cases to trial. Even after four years working possible cases, “they were lacking in experience and judgment and leadership,” she said. “A prosecutor has an ethical obligation to review all the evidence before making a charging decision. And they didn’t have access to all the evidence, including medical records, interrogation logs, and they were making charging decisions without looking at everything.”
Truer words have never been said; nowhere are the accuracy of your comments more evident than in the decision to charge Mohammed Jawad. Everyone involved in the charging decision, including the trial counsel, Lt Col Darrel Vandeveld, the former Chief Prosecutor, Col Morris Davis, the Acting Chief Prosecutor, Lt Col Will Britt, and the Legal Advisor, Brig Gen Thomas Hartmann, all have acknowledged under oath that they had no idea, at the time they recommended swearing or referral of charges, that Mr. Jawad had been subjected to abuse. Consider the following testimony from the June 19, 2008 hearing:
Q [MAJ FRAKT]: . . .[Y]ou were not aware of any allegations or evidence of detainee abuse with regard to Mr. Jawad?
A [LTC BRITT]: . . .[T]hat is true. I was not aware of any allegations of abuse, true.
Q [MAJ FRAKT]: And as a matter of personal and professional ethics, you told me that you would not forward charges against someone that you believe to have been tortured, is that correct?
A [LTC BRITT]: That’s accurate.
U.S. v. Jawad, Draft Record of Trial p. 156 (June 19, 2008)
Q [MAJ FRAKT]: And was it a factor that your office, under your leadership, would take into account whether the detainee had been subjected to abusive treatment?
A [COL DAVIS]: Yes.
Q [MAJ FRAKT]: You obviously were unaware that Mr. Jawad had been subjected to the Frequent Flyer treatment?
A [COL DAVIS]: The first that I’ve heard of that was in the last few days.
Q [MAJ FRAKT]: Had you known that, would that had been a factor that would have given you a pause in that case?
A [COL DAVIS]: Yes, I think certainly any time there are issues like that, as I said, you have to do your due diligence on a case. You can’t, you know, be finding out what the facts are in midstream. You’ve got to have close to the hundred percent solutions before you start the clock running. So that clearly would have been a pause to find out what the facts were.
U.S. v. Jawad, Draft Record of Trial p. 282 (June 19, 2008)
Q [MAJ FRAKT]: Now, obviously, you were not aware that Mr. Jawad, because no one in the prosecution knew this, had been subjected to the Frequent Flyer Sleep Deprivation Program at the time, when you were preparing a pretrial advice?
. . .
A [BG HARTMANN]: If you’re asking about the Sleep Deprivation Program, I was not aware of that at the time of the swearing of the charges or at the time of the referral package.
U.S. v. Jawad, Draft Record of Trial p. 344 (June 19, 2008)
According to Lt Col Vandeveld: “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.” (Sworn declaration in support of petition for habeas corpus, filed 12 Jan 2009, ¶ 11)
As you may recall, I attempted to bring these matters to your attention back in September, when the military judge ordered that you reconsider your earlier decision to refer charges. (See, Supplemental Pretrial Advice from Defense Counsel: U.S. v. Mohammad Jawad September 15, 2008 pp.10-11). Unfortunately, the pretrial advice from the new Legal Advisor, Mr. Chapman, gave short shrift to the defense arguments in his new pretrial advice to you. According to Mr. Chapman:
Defense counsel argues the accused was “tortured and abused” during his detention, and submits “there should be amoral and ethical bar” to prosecution for this reason. Defense counsel submitted an excerpt of a report in which the accused alleged he was physically abused at Bargram Air Base shortly after his capture. There is evidence the accused was moved from cell to cell frequently for a period of two weeks in May 2004. There is no indication that either allegation, if true, would require exclusion of evidence necessary to prove the charged offenses. The defense submission does not persuade me the accused was tortured, but it is a matter you may consider.
Legal Advisor’s Supplemental Advice Concerning Ratification of Referral Decision. (September 22, 2008).
As we now know, the Legal Advisor’s Pretrial Advice has been proven deficient and false in a number of respects. First, Judge Henley ruled that Mr. Jawad was tortured. Second, he suppressed the only self-incriminating statements that Mr. Jawad ever made. These statements formed the primary basis for your referral decision. According to the summary of the evidence in the pretrial advice: “During the ensuing interrogation, the accused admitted that he committed the attack, he specifically targeted Americans, he acted alone, he was proud of what he had done, and he would do it again. He adopted a confession written for him by a local police officer by affixing his thumbprint to it.” Undoubtedly, Mr. Chapman was simply reiterating information that was provided to him by OMC-P. Unfortunately, they gave him false information. Just three days after Mr. Chapman wrote this advice to you, the new lead trial counsel, Lt Col Doug Stevenson, disavowed the written confession before the commissions:
DC [MAJ FRAKT]: . ..[W]hat we have been advised is that it’s considered to be a written confession of Mr. Jawad with his thumbprint on it. . . .
MJ [COL HENLEY]: And you’re asking whether the government is going to introduce that document?
DC [MAJ FRAKT]: It was on their intent–statement of intent to offer exhibits, but then they didn’t ask this witness about it. So I wasn’t sure if they changed their plans.
MJ [COL HENLEY]: Colonel Stevenson, can you speak to that point? . . .Well, the specific question from me is, do you intend to introduce a purported confession of Mr. Jawad?
TC [LT COL STEVENSON]: Here, in this proceeding?
MJ [COL HENLEY]: Written confession.
TC [LT COL STEVENSON]: No, sir.
MJ [COL HENLEY]: In this proceeding or at trial. . . that would be part of the motion to exclude statements of the accused; a written document purportedly confessing to the crime?
TC [LT COL STEVENSON]:. . .Sir, it’s our understanding that this purported statement was taken down by Mr. M in a language that is not the accused’s primary language, nor do we believe that it’s a language that the accused speaks at all. So we believe these are more agents’ notes. So we don’t intend to offer it as a statement. It’s not even in his language.
As to the assertion that Mr. Jawad “adopted the confession” Judge Henley ruled that any admissions made by Mr. Jawad to the Afghan authorities (“The Accused subsequently admitted to throwing a grenade into the vehicle, he was happy if it caused the Americans to die and he would do it again.”) were obtained by torture.
During the interrogation, someone told the Accused, “You will be killed if you do not confess to the grenade attack,” and, “We will arrest your family and kill them if you do not confess,” or words to that effect.”
While the torture threshold is admittedly high, it is met in this case. The Military Commission concludes that the Accused’s statements to the Afghan authorities were obtained by physical intimidation and threats of death which, under the circumstances, constitute torture within the meaning of MCRE 304.
Ruling D-022, October 28, 2008
Judge Henley also suppressed the self-incriminating statements allegedly made by Mr. Jawad to U.S. interrogators later that evening. The self-incriminating statements are the heart of the government’s case. According to the sworn declaration of former lead prosecutor Lt Col Vandeveld: “Without these confessions, there is simply no possibility of a conviction.” The only other evidence in the case is the conflicting and ever-changing testimony of some Afghan police officials of highly questionable reliability. The crime was never investigated. Thus, although the grenade attack occurred in broad daylight in a crowded public square, there is not a single civilian eyewitness. My co-counsel, Major Eric Montalvo, recently travelled to Afghanistan to investigate the crime, for the first time, six years after the fact. He was able to track down one of two persons alleged by the government to be an eyewitness to the attack. According to an unsigned two paragraph summary of interview the defense was provided, he had personally observed Mr. Jawad throw the hand-grenade. However, when he spoke to Major Montalvo, this individual, an Afghan policemen who was incorrectly identified in the interrogation report as an Afghan soldier, denied ever making such a statement and was quite adamant that he did not see who threw the grenade, that multiple people were arrested and that he did not know who was responsible for the attack. He also accused the government’s principal witness of being dishonest and unreliable. We would be happy to share our transcript of the recorded interview of this individual with you if you are interested.
The other glaring error in the Pretrial Advice was the Legal Advisor’s continued assertion of the discredited legal theory regarding the government’s theory of murder in violation of the law of war:
Defense counsel asserts. . .that an attack on U.S. forces by an “unprivileged belligerent” is not a violation of the law of war.
The charge of “Attempted Murder in Violation of the Law of War . . . is a violation of the law of the war because the accused was not a lawful enemy combatant and because the conduct occurred in the context of and in connection with an armed conflict.
Of course, this theory of unlawful combatancy as a war crime had already been rejected by Judge Allred in the trial of U.S. v. Hamdan the previous month. Two days after Mr. Chapman’s advice to you, Judge Henley also rejected the government’s theory:
Proof the Accused is an unlawful enemy combatant, by itself, is insufficient to establish that the attempted murders in this case were in violation of the law of war. The government has not cited any persuasive authority for the proposition that acting as an unlawful enemy combatant, by itself, is a violation of the laws of war
Ruling D-007, September 24, 2008.
The government filed a motion for reconsideration of this ruling, citing additional authority. In their motion, they made the following remarkable admission:
Finally, the Prosecution is obliged to make one last point-and does so with all due respect and candor to this Commission. Under the military judge’s current construction ofthe M.C.A., the evidence the government intends to offer at trial will not establish the requirement of the “in violation of the law of war” element as the military judge construes it.
D-007 Government Reply to Defense Response to Motion for Reconsideration (October 21, 2008).
The government’s reconsideration motion was decisively rejected by the commission:
The Government’s additional legal precedent and argument submitted in support of its request for reconsideration is unpersuasive.
Ruling D-007 Motion for Reconsideration October 29, 2008.
After this ruling, I wrote to the Chief Prosecutor and requested that he initiate a voluntary dismissal of charges, consistent with his ethical obligation to not pursue charges for which evidence is lacking. He flatly refused. According to Lt Col Vandeveld’s declaration:
[T]he government conceded in writing that it had no evidence to prove a violation of the law of war; it seems a manifest violation of the rules of professional responsibility to continue to advocate for an outcome so decisively rejected and frivolous in the extreme. Long before these concessions, I thoroughly researched other potential theories to support the exercise of jurisdiction over Mr. Jawad, such as perfidy – a separate crime under the law of war and in the MCA ‐‐ and simply could not make a good faith argument for any other law of war violation.
The government tried, once again, to advance the theory of unlawful combatancy as a violation of the law of war in U.S. v. al Bahlul, in proposed findings instructions filed to the commissions. You will recall that, at Mr. al Bahlul’s request, I did not defend him in his trial and submitted no motions on his behalf (I was the sole defense counsel). Remarkably, Judge Gregory, sua sponte, rejected the government’s theory and crafted instructions based on Judge Henley’s ruling in the Jawad case.
I have requested the Chief Prosecutor to bring these matters to your attention and I have requested the Legal Advisor correct or supplement his advice to you and correct the numerous errors therein. Both have refused. They also apparently advised you to refuse to meet personally with me, despite my numerous requests to do so. It is apparent to me that you have been ill-served by your Legal Advisors and the Chief Prosecutor and they have prevented your from exercising your own independent judgment. You may recall that when Judge Henley ordered you to reconsider your referral decision in U.S. v. Jawad, he ordered the Legal Advisor not to interfere:
[T]o afford the accused the opportunity to present relevant extenuating and mitigating factors, the Commission orders that any defense matters will be forwarded to the Convening Authority for consideration not later than 15 September 2008. The Legal Advisor will not supplement his original pretrial advice.
Ruling D-004 (August 14, 2008). What you may not realize is that OMC-P subsequently filed a motion in which they asserted, in essence, that you were incapable of making a decision without the Legal Advisor’s advice:
[T]he Military Judge’s direction to the Convening Authority to “ratify” her pretrial advice or take other appropriate action requires further guidance so that the Convening Authority can execute the Commission’s order. Although the incumbent Convening Authority is a lawyer, the Commission no doubt recognizes that a lawyer in a decision-making capacity might not also be her own best counsel; the Military Judge’s disqualification of the Legal Advisor leaves the Convening Authority without the ability to seek the advice of others in her own office. . .[T]he Convening Authority should be permitted to seek legal advice.
Government’s Motion to Reconsider Ruling on Motion to Dismiss-Unlawful Influence D-004 (September 9, 2008). Based on the government’s claim of your impaired decision-making capacity, the military judge amended his ruling to allow supplemental pretrial advice. As the foregoing has demonstrated, the inaccurate and misleading advice you were then given led you to make a decision that was contrary to your core beliefs and your commitment to the rule of law.
There is one additional matter which I feel needs to be brought to your attention. In December, you were advised by the Legal Advisor to select members for new court panels. You then re-referred all previously referred charges to these new panels. Unfortunately, the memorandum and other paperwork that your staff prepared for you to sign had the effect of withdrawing and re-referring the charges completely, effectively restarting the cases over at the pre-arraignment stage. It is unclear to me whether you personally intended to withdraw and re-refer charges or simply change panel members, but the withdrawal and re-referral of charges eleven months after the original referral is problematic, particularly after the government has suffered so many setbacks in the case. Regardless of your intent, there is another significant problem with the new referral. The charge sheet that you re-referred dated 8 January 2009 included two charges. However, there is only one charge remaining under the original charges referred on 30 January 2008. On 19 June 2008, pursuant to motion D-006 “Defense Motion to Dismiss Charge II and its Specifications for Multiplicity and Unreasonable Multiplication of Charges,” the Military Commission dismissed Charge II and its three specifications alleging Intentional Infliction of Serious Bodily Injury with prejudice.1 Obviously, the referral of dismissed charges casts significant doubt on the validity of the referral action.
In your interview, you noted the reality that the military commission probably will not be able to proceed. You also acknowledged that mistakes were made and that someone should take responsibility for it. There is no reason to wait for the next administration to start correcting the mistakes and taking responsibility. The charges against Mr. Jawad never should have been brought and the case has now become a national embarrassment. The New York Times recently wrote in an editorial (“The Price of Our Good Name,” November 23, 2008) that “the Jawad case has become emblematic of everything that is wrong with Guantánamo Bay.” While the charges may have been sworn and referred in good faith, they were done so based on a mistaken belief that he had not been abused and misperceptions about the strength of the evidence coupled with reliance on an invalid legal theory. Now that the many flaws and missteps in the case have been exposed, there is no longer a good faith basis to continue this misguided prosecution. Mr. Jawad is not a war criminal and he is not a terrorist. As Lt Col Vandeveld said so poignantly in his declaration, he represents no danger to the United States. If the government disagrees about this last point, the proper forum to make that forum to make that argument is in response to the habeas corpus petition filed yesterday in U.S. District Court. I urge you in the strongest possible terms to put an end to this prosecution once and for all. Dismiss the charges against MKr. Jawad, with predjudice, today. Thank you in advance for doing the right thing and for your service to our country.
1 The military judge granted the defense motion D-006 orally on the record. U.S. v. Jawad, Record of Trial, p. 411 (June 19, 2008) (Exhibit 5) The ruling was not reduced to writing.
Very Respecfully,
David J. R. Frakt, USAFR
Defense Counsel