A total of seven Military Prosecutors have now resigned their commissions. The seventh Military Prosecutor to leave Guantanamo Bay, Lieutenant Colonel Darrel Vandeveld, a prosecutor in the Guantanamo Military Commissions, resigned September 24, 2008, citing ethical issues. He had serious misgivings regarding the evidence against Mohammed Jawad, the Pakistani youth he was prosecuting. He evidently shared those concerns with the Defense Attorney, David Frakt, an officer in the United States Air Force Reserve. Among the issues leading to his resignation was his concern for the sleep deprivation and disruption that Jawad had purportedly been subject to as well as the fact that another person confessed to the crime he was accused of.
The following from Wikipedia:
Vandeveld had recommended to his superiors that a plea bargain be offered to Mohammed Jawad, the Pakistani youth he was prosecuting. He felt that it was appropriate for Jawad to receive an early release, and be offered assistance in re-integrating into civilian life. His superiors had over-ruled him, and wanted to seek a life sentence.
Vandeveld has not spoken publicly about his concerns. Jawad's defense counsel, David Frakt, plans to call upon him to testify that the Prosecution had been withholding potentially exculpatory evidence.
Jawad was a minor at the time of the incident; Jawad had been subjected to sleep deprivation through Guantanamo's frequent flyer program; Jawad had testified, during his 2004 Combatant Status Review Tribunal that he had accepted a job clearing land mines, only to have his employers drug him, and use him to carry objects he was later informed were bombs. Two other individuals had confessed to throwing the grenade Jawad was being tried for throwing. Their confessions had been withheld from Jawad's Defense counsel.
Although his four-page resignation letter has not been officially released, Carol Rosenberg of the Miami Herald, and other journalists have quoted from it.
In June 2008, prosecutor Lt Col Darrel Vandeveld turned over detention records which had been previously withheld to the defense. These records demonstrated that Mohammed Jawad had been subjected to the controversial "frequent flyer program" a euphemistic term used by Guantanamo detention officials to describe a frequent cell movement program which resulted in sleep disruption and deprivation. These records were made available to Frakt shortly before Mohammed Jawad's first hearing before his Military Commission. Based on these records, Frakt sought to have the charges against Jawad dismissed on the grounds of torture and "outrageous government conduct." Frakt reported at Jawad's June 19, 2008 Commission hearing that those records showed that Jawad had been moved 112 times in a two week period in May 2004. Following previous inquiries into abusive treatment of detainees, this technique had reportedly been ordered discontinued two months prior to its use on Jawad by the then Commanding Officer of JTF-Guantanamo, Brig Gen Jay Hood.
On July 11, 2008, in another filing submitted to the Military Commission Frakt reported that the Prosecution had withheld evidence of the medical effects on his client of the two weeks of sleep deprivation.[4] Frakt reported that Jawad's medical records, which had only recently been made available to him, contradicted the Prosecution's claims that Jawad had suffered "no ill effects" from the sleep deprivation. Frakt reported that the medical records showed that Jawad had lost ten percent of his body weight during his sleep deprivation, and that he had told doctors he had been urinating blood.
On August 7, 2008 an article in the Washington Post reported that newly published documents showed that the prohibited sleep deprivation technique had been in wider use than had previously been known. The Washington Post report quoted Frakt's response to the news of this violation:
* "...no one actually knows the full scope of the abuses at Guantanamo."
* "...all of these allegedly comprehensive investigations were whitewashes. This is only the tip of the iceberg."
* "This program was approved at the highest levels. ... It suggests that people had simply lost their ability to distinguish right from wrong."
Additional hearings were held on August 13-14 and September 26-27, 2008. At the August 13-14 hearing, an intelligence officer formerly stationed at Guantanamo testified that the frequent flyer program was "standard operating procedure" and was used on dozens of detainees until at least April 2005. On September 24, Col. Henley ruled that the frequent flyer program was cruel, abusive and inhumane treament, and recommended those responsible be punished. However, he declined to dismiss the charges against Jawad, ruling that other lesser remedies were adequate to address the abuse. The next hearing is scheduled for December.
The latest story from the Los Angeles Times on this case and Lt. Colonel Vandeveld's resignation can be found here.
The following from Wikipedia:
Vandeveld had recommended to his superiors that a plea bargain be offered to Mohammed Jawad, the Pakistani youth he was prosecuting. He felt that it was appropriate for Jawad to receive an early release, and be offered assistance in re-integrating into civilian life. His superiors had over-ruled him, and wanted to seek a life sentence.
Vandeveld has not spoken publicly about his concerns. Jawad's defense counsel, David Frakt, plans to call upon him to testify that the Prosecution had been withholding potentially exculpatory evidence.
Jawad was a minor at the time of the incident; Jawad had been subjected to sleep deprivation through Guantanamo's frequent flyer program; Jawad had testified, during his 2004 Combatant Status Review Tribunal that he had accepted a job clearing land mines, only to have his employers drug him, and use him to carry objects he was later informed were bombs. Two other individuals had confessed to throwing the grenade Jawad was being tried for throwing. Their confessions had been withheld from Jawad's Defense counsel.
Although his four-page resignation letter has not been officially released, Carol Rosenberg of the Miami Herald, and other journalists have quoted from it.
In June 2008, prosecutor Lt Col Darrel Vandeveld turned over detention records which had been previously withheld to the defense. These records demonstrated that Mohammed Jawad had been subjected to the controversial "frequent flyer program" a euphemistic term used by Guantanamo detention officials to describe a frequent cell movement program which resulted in sleep disruption and deprivation. These records were made available to Frakt shortly before Mohammed Jawad's first hearing before his Military Commission. Based on these records, Frakt sought to have the charges against Jawad dismissed on the grounds of torture and "outrageous government conduct." Frakt reported at Jawad's June 19, 2008 Commission hearing that those records showed that Jawad had been moved 112 times in a two week period in May 2004. Following previous inquiries into abusive treatment of detainees, this technique had reportedly been ordered discontinued two months prior to its use on Jawad by the then Commanding Officer of JTF-Guantanamo, Brig Gen Jay Hood.
On July 11, 2008, in another filing submitted to the Military Commission Frakt reported that the Prosecution had withheld evidence of the medical effects on his client of the two weeks of sleep deprivation.[4] Frakt reported that Jawad's medical records, which had only recently been made available to him, contradicted the Prosecution's claims that Jawad had suffered "no ill effects" from the sleep deprivation. Frakt reported that the medical records showed that Jawad had lost ten percent of his body weight during his sleep deprivation, and that he had told doctors he had been urinating blood.
On August 7, 2008 an article in the Washington Post reported that newly published documents showed that the prohibited sleep deprivation technique had been in wider use than had previously been known. The Washington Post report quoted Frakt's response to the news of this violation:
* "...no one actually knows the full scope of the abuses at Guantanamo."
* "...all of these allegedly comprehensive investigations were whitewashes. This is only the tip of the iceberg."
* "This program was approved at the highest levels. ... It suggests that people had simply lost their ability to distinguish right from wrong."
Additional hearings were held on August 13-14 and September 26-27, 2008. At the August 13-14 hearing, an intelligence officer formerly stationed at Guantanamo testified that the frequent flyer program was "standard operating procedure" and was used on dozens of detainees until at least April 2005. On September 24, Col. Henley ruled that the frequent flyer program was cruel, abusive and inhumane treament, and recommended those responsible be punished. However, he declined to dismiss the charges against Jawad, ruling that other lesser remedies were adequate to address the abuse. The next hearing is scheduled for December.
The latest story from the Los Angeles Times on this case and Lt. Colonel Vandeveld's resignation can be found here.
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Jesuit Fr. John Dear writes about his conversation with Darrel Vandeveld in his weekly column for National Catholic Reporter: http://ncrcafe.org/node/2215
New York Times 10/21/08
U.S. Drops Charges Against 5 Detainees
By WILLIAM GLABERSON
Published: October 21, 2008
The Pentagon official in charge of prosecutions at Guantanamo on Tuesday dismissed war-charges against five detainees, the latest setback to the government’s military commission system.
The official, Susan J. Crawford, has broad power over the military commission tribunals, including the power to dismiss charges, but she does not have to provide public explanations for her decisions and did not on Tuesday.
But a statement from her office said the charges against the five were dismissed without prejudice, which means “the government can raise the charges again at a later time.”
After the decision was announced, Col. Lawrence J. Morris, the chief military prosecutor, said that supervising lawyers in his office had asked Ms. Crawford to withdraw the charges. He said all five would be resubmitted after a review of their files, which had been handled by a prosecutor who left the office after questioning the judicial fairness at Guantanamo.
The best known of the five detainees is Binyam Mohammed, a former British resident who claimed harsh torture methods had been used against him. Government officials have accused him of taking part in a plan to attack the United States with a radioactive dirty bomb.
The Bush administration has long said that it would like to close the detention camp, where 255 detainees are being held on the naval station at Guantanamo Bay, Cuba. But officials have said in recent days that no action would likely be taken before the end of Mr. Bush’s term in January. One reason they cited was uncertainty about how legal cases against the remaining detainees would be handled inside the United States.
Ms. Crawford also dismissed without prejudice charges that had been presented to her against four other detainees: Noor Uthman Muhammed, Sufyiam Barhoumi, Ghassan Abdullah al Sharbi, and Jabran Said Bin al Qahtani.
All five cases had been handled by Lt. Col. Darrel Vandeveld, a military prosecutor who stepped down from his position in September, saying publicly that there were systemic problems in the prosecution that raised ethical issues. Colonel Vandeveld, an Army reserve officer and the latest person to quit the prosecutor’s office in Guantanamo, said the prosecutors did not fully comply with rules that require that they turn over any information that might help the defense.
Colonel Morris has denied that Colonel Vandeveld’s departure was related to a dispute about complying with legal rules for the proper handling of cases.
“I don’t want to unduly attribute responsibility to him,” Colonel Morris said of reviewing the files handled by Colonel Vandeveld. “We have found that there is more work to be done on all these cases.” He said he had recently appointed new prosecutors to each of the cases.
But detainees’ lawyers cast the decision to withdraw the charges as the latest in a series of difficulties government lawyers have had in pressing cases against Guantanamo detainees.
“My impression is it is just a mess, and the floor is collapsing underneath them,” said Clare Algar, the executive director of Reprieve, an international legal organization that represent many detainees including Binyam Mohammed.
Colonel Vandeveld has said recently that he was ordered by military superiors not to comment on the Guantanamo cases and did not respond to a message seeking comment Tuesday.
A military defense lawyer for other cases, Maj. David J. R. Frakt, said the decision to re-evaluate the five cases showed that the military had been shaken by Col. Vandeveld’s assertion that there were widespread questions about the fairness of the war-crimes system at Guantanamo.
Major Frakt, who is in the Air Force Reserve, recalled that Colonel Vandeveld had argued that there were difficulties with the way each of the cases he had worked on had been handled. “He said there are systemic problems across the board and he’s on all these cases,” Major Frakt said, suggesting that may have been why the five cases were dismissed Tuesday.
From the Nation:
Smearing Colonel Vandeveld
by ROSS TUTTLE
October 20, 2008
As the Office of Military Commissions (OMC) was informed of a top prosecutor's intent to resign--and his decision to go on record with his ethical concerns--it launched a forceful offensive against him. As part of this campaign, leading officials at the OMC circulated belittling talking points to other staffers and deployed a Soviet-style strategy of punitive and discrediting psychiatric evaluations.
The target of this latest push was Lieut. Col. Darrel Vandeveld, a former military prosecutor, who resigned September 9 and then submitted a damning four-page affidavit to the war court. Vandeveld had been the lead prosecutor in the case of Mohammed Jawad, a young Afghan accused of attempted murder. According to his statement, Vandeveld decided to resign due to deep-seated ethical concerns about the treatment of Jawad in custody and the withholding of "potentially exculpatory evidence" from the defense. Vandeveld characterized the procedure for providing evidence to the defense as "slipshod [and] uncertain" and concluded, "I am highly concerned to the point that I believe I can no longer serve as prosecutor at the Commissions."
Vandeveld's resignation came after a string of embarrassing repudiations of the Guantanámo trials, including three Supreme Court setbacks, the defection of at least four other prosecutors from the OMC and the disqualification of Brig. Gen. Thomas Hartmann from three separate trials because of political bias and interference. In an apparent attempt to minimize the impact of this latest rebuke of the OMC, Hartmann prepared talking points against Vandeveld. Obtained by The Nation, these talking points assert that Vandeveld is dishonest, "ill-informed" and has violated commission regulations.
After Vandeveld resigned, he made himself available to testify on behalf of the Jawad defense at a pretrial hearing, writing, "I do believe I have relevant testimony to offer." But the OMC barred him from doing so. The office then circulated the sharply worded talking points intended to discredit Vandeveld.
"They were well prepared to try to discredit [Vandeveld] if this issue flared up," said a former Pentagon official close to the OMC.
Hartmann, the embattled former legal adviser for the Office of Military Commissions, was removed from his post in September. He was then shifted to a supervisory position overseeing the commissions within the Pentagon, and he is now reportedly being investigated by his chain of command for ethics abuses. But he is still exerting unparalleled influence.
"He is very intimately involved in the effort to prevent Colonel Vandeveld from being able to testify," defense lawyer Maj. David Frakt said to the judge during the pretrial hearing.
While Hartmann made a concerted effort to keep Vandeveld's voice off the record, he also apparently attempted to devalue that voice if it ever became public. According to the defense team, Hartmann ordered Vandeveld to undergo a mental health evaluation after he submitted his resignation, despite having displayed no previous symptoms of psychological distress.
This tactic, as a means of suppressing dissent, was popularized by the Soviet Union in the late 1950s. In the aftermath of Stalin's violent and bloody purges, Khrushchev believed he could punish opponents in a more discreet way, announcing, "there are not political prisoners, only persons of unsound mind." Involuntary hospitalizations and punitive psychiatric evaluations became part of the regime's strategy and targeted dissenters like Pyotr Grigorenko, a former Soviet general and critic of Khrushchev, and Leonid Plyushch, a mathematician turned human rights advocate. Grigorenko was forcibly hospitalized in the '60s; Plyushch in the early '70s.
These tactics have not been foreign to the US military. In the late 1980s, Congress conducted hearings into the misuse of mental health evaluations to discredit whistleblowers, during which two junior officers testified that they were hospitalized in psychiatric wards after making reports of fraud and misconduct. One major in the military said that he met other servicemembers who were confined by their commanders for objecting to Army policy. An amendment by then-Congresswoman Barbara Boxer was eventually passed to curb the abuse of mental health evaluations in the case of whistleblowers.
However, the practice still occurs. The Nation has learned of at least three other cases of the apparent use of mental health referrals and hospitalization to stifle critics who have witnessed abuse, fraud or criminal behavior since 9/11. Vandeveld's is just the latest troubling episode.
"It's extremely disturbing," says Eugene Fidell, a visiting lecturer at Yale Law School and professor of military law at Washington College of Law, "especially when you involve a psychiatric evaluation in such a charged setting" like the one that exists at Guantánamo. And even if there was no intent to smear or tarnish Vandeveld's reputation, Fidell says, the mere appearance is "horrible."
Charlie Clements, president and CEO of the human rights organization Unitarian Universalist Service Committee, who served as an Air Force pilot during the Vietnam War, worries about the weapon of psychiatric evaluations. Clements was was hospitalized in a psychiatric ward after refusing to fly a mission because of ethical reasons.
"For this to be one of the first actions taken against a man [Vandeveld] who otherwise performs his duties well and without any problems, it would certainly raise concerns about the abuse of psychiatry," he says.
Clements warns that these tactics can be quite intimidating and that the mere specter of them can serve to chill dissent. Vandeveld was cleared and declared fit for duty, "to the psychiatrist's credit," notes a former military doctor, who declined to be identified because of involvement in a related case. But this doctor also suggested the results of the evaluation might say something about the motive in ordering it, or the imprudence.
"Given the implications that it's being used as retribution, unless I have very good reason, I'd think that any prudent lawyer would have backed off," says the doctor. "And if there was a good reason to refer, the evaluation would have supported it. But it didn't. This was totally the wrong thing to do."
The judge in the Jawad case ultimately ordered the prosecution to allow Vandeveld to testify. When he did, he spoke about feeling "truly deceived" and said the commissions were likely incapable of providing justice.
The cross-examination by Vandeveld's replacement in the case, Lieut. Col. Doug Stevenson, echoed the talking points provided by Hartmann, which asserted that Vandeveld made "inaccurate, irresponsible comments"; "generalities/opinion statements that have zero basis in fact"; and "generalizations about the discovery process."
But Vandeveld's account of the OMC echo criticisms made by other former military prosecutors who have also resigned their commissions. "It's not the kind of thing [Vandeveld's affidavit] you read and go, There's no way in hell this can be true," says former chief prosecutor Morris Davis. "Based on what I observed, I can't say I'm surprised by the things he alleges."
Despite the attempt to prohibit Vandeveld's testimony, in an internal e-mail, Vandeveld's former boss, the current chief prosecutor, Col. Larry Morris, said he was "inclined to let [Vandeveld] talk to the press if he wants--we have nothing to fear, and we can refute whatever he or his counsel suggest." However, as of October 20, Vandeveld was under a renewed gag order, barring him from speaking to the media.
Meanwhile, the prosecution is free to make comments about Vandeveld's affidavit and his testimony at will, as deputy chief prosecutor Col. Bruce Pagel did during a panel at the Military JAG School in Virginia September 30. Speaking about the provision of evidence to the defense, Pagel said that the documents "were in his [Vandeveld's] custody and control. He was in the perfect position to make disclosure. He never told me anyone had kept him or forbade him from making those disclosures."
When panel member and ACLU lawyer Hina Shamsi offered a possible explanation for why Vandeveld may have withheld some documents--because he felt pressure and feared reprisals for appearing too close to the defense (as Vandeveld mentions in his affidavit)--Pagel joked dismissively, to rousing laughter, "Well, we did torture Colonel Vandeveld quite a bit."
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