The War Profiteers - War Crimes, Kidnappings & Torture


July 22nd, 2009 - U.S. Judge Challenges Evidence on a Detainee

News article from the New York Times

Profile of the Guantánamo Concentration Camp

U.S. Judge Challenges Evidence on a Detainee


By William Glaberson

New York Times

July 22, 2009


The Obama administration has until Friday to decide whether to continue to defend the six-year imprisonment of an Afghan at the prison at Guantánamo Bay, Cuba, who was a teenager when he came into American hands.


The decision was prompted by Judge Ellen Segal Huvelle of Federal District Court, who last week criticized the government’s case against the detainee as “an outrage” that was “riddled with holes.” Judge Huvelle’s comments, made at a hearing in district court in Washington, were not reported at the time.


The detainee, Mohammed Jawad, has drawn international attention because of questions about his treatment as one of the youngest prisoners at Guantánamo.


Judge Huvelle expressed fury at the government for “dragging this out for no good reason” after “your case fell apart,” according to a transcript of the hearing.


The federal court case is becoming a test of how the Obama administration responds to the skepticism from several federal judges who are reviewing evidence against some of the remaining 229 detainees at Guantánamo as part of habeas corpus cases.


The case against Mr. Jawad has long been one of the most publicly troubled at Guantánamo. His exact age is unknown, but a military judge ruled last fall that, while still a teenager, Mr. Jawad was tortured by Afghan officials before he was turned over to American forces in 2002 and was later abused at the detention camp at Guantánamo Bay.


Also last fall, the military prosecutor in a war crimes case against Mr. Jawad on charges of attempted murder drew wide notice by saying publicly that the evidence was weak and that he had grave questions about the fairness of the military commission system for prosecuting detainees.


Now, Judge Huvelle has given the government until the end of the week to tell the court whether it would produce any witnesses and suggested that she might rule that Mr. Jawad should be returned to Afghanistan.


“You’d better go consult real quick with the powers that be, because this is a case that’s been screaming at everybody for years,” Judge Huvelle said.


American officials say Mr. Jawad threw a hand grenade that seriously wounded two American servicemen and their Afghan translator in an attack in Kabul in 2002. But their claims have been undermined by the judicial findings that almost all of the evidence against Mr. Jawad was the confessions he made as a result of torture.


Judge Huvelle is handling the habeas corpus case challenging Mr. Jawad’s imprisonment. Of about 200 habeas cases in the federal court in Washington, judges have so far ruled that five Guantanamo detainees are properly held and that 26 are not.


Jonathan Hafetz, Mr. Jawad’s lawyer at the American Civil Liberties Union, said Judge Huvelle’s comments were an indication that judges were growing uneasy about many of the government’s claims.


“It reflects the pent-up frustration among judges who have seen first hand the government’s lack of evidence,” Mr. Hafetz said.


Dean Boyd, a spokesman for the Justice Department, did not respond to that assertion. But he said, “We are not going to release anyone if it would endanger our national security.”


At the hearing last week, when Justice Department lawyers asked for more time to confer within the government, Judge Huvelle noted that Mr. Jawad had been held for years despite questions about his guilt. The Afghan government claims he may have been as young as 12 when he was first detained.


Military records show that Mr. Jawad was subjected to a sleep deprivation program in which he was moved from cell to cell 112 times in a 13-day period and that he was isolated, beaten and kicked by guards at Guantánamo. He attempted suicide in Guantánamo in 2003.


Judge Huvelle’s anger was prompted by a battle over whether the government planned to use Mr. Jawad’s confessions as evidence in defending his detention. Until last Wednesday, Justice Department lawyers had been relying heavily on those statements.


Mr. Jawad’s lawyers had repeatedly noted that in the separate military commission case, the military judge, Col. Stephen R. Henley, ruled that those statements could not be used because they had been the product of torture. Judge Henley wrote last year that Afghan officials had threatened to kill Mr. Jawad and his family if he did not confess to the grenade attack.


Judge Henley also ruled that confessions Mr. Jawad had given hours later to American interrogators in Afghanistan also could not be used against him because they were the product of what he called torture by the Afghan officials.


Still, since this spring, Justice Department lawyers continued to cite the confessions as evidence in the case before Judge Huvelle. Last week, they abruptly said they would not oppose a request by Mr. Jawad’s lawyers that Judge Huvelle, too, bar the use of those confessions.


In his comments Wednesday, Mr. Boyd, the Justice Department spokesman, said the Obama administration made “a dramatic break with the policies of the past” by deciding not to rely on statements obtained through torture, including in Mr. Jawad’s case. He did not comment on why the department had based its case on those statements for months.


Last week, Judge Huvelle demanded to know what the administration claimed as evidence against Mr. Jawad, saying that 90 percent of the case had been based on his confessions. “There is no evidence otherwise,” she said.


Mr. Jawad’s military lawyer, Maj. David J. R. Frakt of the Air Force Reserve, said that as many as three adults had also confessed to the grenade attack but that they were not in custody.


Judge Huvelle noted that the military prosecutor who publicly raised questions about the case said he had failed to find other persuasive evidence.


The prosecutor, Lt. Col. Darrel Vandeveld, an Army Reserve officer, was transferred after his public comments and is no longer on active duty.


In an interview, Colonel Vandeveld said he doubted that the government could find any credible witness who would claim to have seen Mr. Jawad throw the hand grenade.


He added that his concerns about any case against Mr. Jawad were not based on technicalities but on an opinion he had developed working to convict Mr. Jawad.


“The evidence suggests to me,” Colonel Vandeveld said, “that he is not guilty.”


Copyright 2009 The New York Times Company


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