The inside story of a military lawyer who discovered stunning injustice at the heart of the Bush administration’s military commissions.
By Stacy Sullivan, counterterrorism advisor, published in Salon (http://www.salon.com/news/feature/2008/10/23/vandeveld/index.html)
Oct. 23, 2008 | When Army Lt. Col. Darrell Vandeveld began his work in May 2007 as a prosecutor at the Guantánamo Bay military commissions(http://www.hrw.org/photos/2008/guantanamo/), the Iraq war veteran was one of the most enthusiastic and tenacious lawyers working on behalf of the Bush administration. He took on seven cases. In court hearings he dismissed claims of prisoner abuse as "embellishment" and "exaggeration." Once, when a detainee asked for legal representation only for the purpose of challenging the legitimacy of the military commissions, Vandeveld ridiculed the request as "idiotic."
So it came as a shock in mid-September when Vandeveld announced that he was resigning as a prosecutor because he had grave doubts about the integrity of the system he had so vigorously defended.
In the days following his resignation — now testifying, remarkably, for the defense counsel in one of his own cases — Vandeveld said that he went from being a "true believer" in the military commissions to feeling "truly deceived" about them. His deep ethical qualms hinged foremost on the fact that potentially critical evidence had been withheld from the defense by the government.
Vandeveld says he was pressured explicitly by superiors not to talk about his work at Guantánamo. Until now, the details of his story have largely been kept from public view. He maintains that he is not ready to speak at length about his decision to resign, but in several e-mail exchanges with me this week, as well as in a series of recent e-mail exchanges he had with others involved in the military commissions, a picture emerges of a man who struggled through an intense crisis of conscience. When he took action, he was ridiculed and bullied by his bosses for questioning the fairness of the system. The military also subjected Vandeveld to a mental-health evaluation after he decided to resign, perhaps aimed at undercutting his credibility.
Vandeveld’s story reveals the painful struggle of a devoutly religious Catholic who became increasingly disturbed by a process he came to view as fundamentally unjust. Unable to confide in his family and friends because so much of the information in the cases he was working on was classified, he took the unusual step of confiding in his opposing counsel. He also consulted a priest online.
Vandeveld is at least the fourth prosecutor to resign from the highly criticized military commissions, but his account is perhaps the most stark and will surely cast a lasting pall over the process. On Tuesday, the Department of Defense announced that it was dropping charges against five detainees whose cases Vandeveld was prosecuting — though not the controversial case that prompted his resignation.
That case, the one that ultimately provoked Vandeveld’s change of heart, was supposed to be a slam dunk for the government. But as Vandeveld would come to discover, it was plagued by problems.
Mohamed Jawad, a young Afghan who allegedly fought with the Taliban, was accused of throwing a grenade into a vehicle carrying U.S. troops, gravely injuring two of them and their translator. Unlike most of the other men charged before the military commissions, who are accused of seemingly abstract crimes like "providing material support for terrorism," Jawad was charged with "attempted murder in violation of the law of war." There were witnesses to the attack and Jawad had reportedly confessed. It was the kind of coldblooded act the government hoped would capture the public’s imagination.
Yet, problems arose in the case as soon as Jawad entered the Guantánamo courtroom last March. To begin with, it turned out that Jawad was only 16 or 17 at the time of his alleged offense. Under both U.S. and international law, he should never have been detained with adults, and he should have been provided educational opportunities, as well as contact with his family. He appeared emotionally distressed, holding his face in his hands and asking why he was at Guantánamo.
His defense counsel, Maj. David Frakt, told the court that Jawad was a homeless, illiterate teenager who had been drugged and forced to fight with Afghan militia, then abused by the United States and transported halfway around the world to Guantánamo where he was imprisoned for five years without charge and was now being used as a guinea pig to test a new system of military justice. He said that Jawad was deeply traumatized by the experience, to the point that he might be incapable of aiding in his defense.
In the beginning, Vandeveld was openly dismissive of the story.
"What you have heard is a series of exaggerations," Vandeveld told the court. "It’s clear from what you’ve seen here today that he is able to assist in his defense."
But over the next six months, as more information about the case came to light, Vandeveld began to have misgivings.
Initially Vandeveld did not believe that Jawad was a juvenile at the time of his arrest. Because Jawad did not know his birth date (which is common among Afghan villagers), and had at times given different ages for himself, the United States did not record him as a juvenile. However, in the process of examining Jawad’s prison records, it emerged that Jawad had undergone a bone scan at Guantánamo in 2003, estimating his age to be 18, which would have made him 17 at the time of the alleged crime.
"Jawad should have been segregated from the adult detainees, and some serious attempt made to rehabilitate him," Vandeveld said in a declaration shortly after his resignation. "I am bothered by the fact that this was not done. I am a resolute Catholic and take as an article of faith that justice is defined as reparative and restorative, and that Christ’s most radical pronouncement — command, if you will — is to love one’s enemies."
Vandeveld also had not believed that Jawad had been mistreated by his American captors. But once again, evidence obtained in the process of discovery revealed a different story. Frakt asked the government to provide a copy of prison records on detainee movements at Guantánamo. In May, Vandeveld gave Frakt a stack of them.
The records showed that in mid-2003, Jawad had been removed from a Pashto-speaking wing in the detention center and isolated, as well as deprived of comfort items such as books or mail. In September 2003, after prolonged isolation, his mental health deteriorated. Interrogators observed Jawad talking to posters on his wall. Then, on Christmas day 2003, Jawad tried to commit suicide, first by banging his head against the metal structures in his cell, then by hanging himself.
They also showed that during a 14-day period in May 2004 — several months after the suicide attempt — Jawad was moved from cell to cell 112 times, an average of less than every three hours. These movements, which intensified between midnight and 2 a.m., turned out to be part of a sleep deprivation program known in Gitmo parlance as the "frequent flier program." The goal of the program was to disorient detainees and make them more compliant. The records, however, give no indication that Jawad was interrogated at this time.
Initially, Vandeveld did not realize the prison records showed that Jawad had been subjected to a regime of sleep deprivation — the records consisted of many pages of detainee movements, much of it handwritten. The sleep deprivation was pointed out to him by Frakt, who had carefully scrutinized the records. However, Vandeveld had noticed the detainee’s attempt at "self harm." Shortly thereafter, he told Frakt that he wanted to broker a plea agreement that would have given Jawad a minimal sentence and some rehabilitation before sending him home to Afghanistan.
In an e-mail exchange with Frakt on May 22, Vandeveld wrote: "If I ever thought this job required me to do anything I considered unethical, I’d be out the door."
"I appreciate that and I believe you," Frakt replied. "You may have to take back your comments about Jawad’s complaints being embellished and exaggerated. It looks like he was telling the truth. Did you notice that he tried to commit suicide in 2003?"
"I did notice that saddening episode … which is one of the reasons I am pushing for a plea in this case, and why I wanted to get this information in your hands asap," Vandeveld replied.
In a subsequent e-mail the same day, Vandeveld wrote, "BTW, I will correct my misstatements on the record the next time we’re in session. I know I am obliged to do so."
A few days after that exchange, Frakt filed a motion with the court to dismiss the charges against Jawad based on evidence that he had been tortured.
When Vandeveld responded to Frakt’s motion, he argued that although Jawad had suffered some abuse at Guantánamo — an unusual admission by a government prosecutor — the remedy was not to dismiss the charges, but rather to consider the abuse in mitigating the accused’s punishment.
According to Vandeveld, when his superiors saw that he had conceded that Jawad had been abused, they were furious. They reprimanded him and made him withdraw the motion and resubmit it, conceding nothing regarding prisoner torture or abuse.
The new motion he submitted stated: "Jawad … suffered no ill-effects from his alleged sleep deprivation."
As the summer wore on, Vandeveld began to have more doubts. A series of photographs emerged from the time of Jawad’s arrest: They showed a naked and terrified teenager undergoing a strip search and medical examination.
Then, in late July, Vandeveld stumbled across a report that was sitting on a colleague’s desk about an investigation into the death of an Afghan taxi driver named Diliwar who had been killed in U.S. custody. Investigators had come to Guantánamo to interview detainees who were held in Bagram at the time, and took a statement from Jawad.
In his statement, Jawad said that while at Bagram, he was made to wear a black bag over his head and that he was shackled and forced to stand for prolonged periods of time. If he sat down, guards would beat him, grab him by the throat and stand him up again. At one point, he said, they shackled him to the door so he was incapable of sitting down.
Vandeveld immediately informed Frakt about the report and said he was deeply disturbed by the abuse. Equally disturbing to him was that there seemed to be no system in place to provide such evidence to the defense.
"I am highly concerned, to the point that I believe I can no longer serve as a prosecutor at the Commissions, about the slipshod, uncertain ‘procedure’ for affording defense counsel discovery," Vandeveld wrote in a statement after his resignation. "One would have thought that after six years since the Commissions had their fitful start, that a functioning law office would have been set up and procedures and policies not only put into effect, but refined."
Vandeveld also said that he had feared retribution if he was perceived as being too cooperative with the defense. He cited another officer who was perceived to have done so and subsequently received a mediocre Officer Evaluation Report.
"I didn’t express my concerns to Brig. Gen. Hartmann or Col. Morris before asking to be reassigned," Vandeveld told me by e-mail on Wednesday, "largely because I knew both are highly-indoctrinated ideologues whose likely response would have been to have my security clearance revoked as a punitive and preventative measure. (This concern is not happenstance; I could give examples were I not bound by my clearance itself.) The hostile, dismissive way I’d seen [another concerned officer treated by superiors] was enough for me to conclude my reservations would not be well-met."
Vandeveld’s fears in this regard had a potentially devastating effect on the fairness of proceedings in Jawad’s case: For example, Vandeveld said he did not provide the defense with information the government had about another suspect in U.S. custody who had confessed to the same crime Jawad is alleged to have committed. Nor did Vandeveld provide the defense with a report by a U.S. government intelligence analyst stating that Jawad may have been forcibly recruited into a militia group that targets young men, sexually abuses them and drugs them before forcing them to engage in violence — a report that appears to have corroborated part of the defense counsel’s case.
By August, Vandeveld was in despair. He had concluded that Jawad was in dire need of rehabilitation and he desperately wanted to broker a deal, but he could not persuade his superiors in the prosecutor’s office.
Unsure of what to do, he consulted a priest online. In an Aug. 5 e-mail to the priest, which was first reported by the Los Angeles Times, Vandeveld wrote: "I am beginning to have grave misgivings about what I am doing, and what we are doing as a country. I no longer want to participate in the system, but I lack the courage to quit. I am married, with four children, and not only will they suffer, I will lose a lot of friends."
The priest, Father John Dear, known for his social activism, encouraged Vandeveld to quit. "God does not want you to participate in any injustice, and GITMO is so bad, I hope and pray you will quietly, peacefully, prayerfully, just resign, and start your life over," Dear wrote.
Vandeveld said he still didn’t feel comfortable quitting. "One of the precepts of serving as a soldier is that one ‘never quits,’" he told me. So he instead asked to be reassigned, to Afghanistan.
In the days after consulting with Father Dear, Vandeveld continued to try to broker a plea deal for Jawad. In an e-mail to Frakt, he complained that he had no pull in the prosecutor’s office and that the chief prosecutor, Col. Lawrence Morris, seemed to have personal animus toward Frakt.
In early September, Frakt suggested in an e-mail that Vandeveld write a letter to the Convening Authority of the military commissions detailing his efforts to work out a reasonable pretrial deal for Jawad, and explaining that he was repeatedly overruled.
Vandeveld responded: "Let me think about that some more; I have to consider the impact on my family." In mid-September, he tendered his resignation.
Reprisal from the prosecutor’s office was swift.
Vandeveld was directed to undergo a psychological evaluation. He was ordered to stay at home and prohibited from coming into his office pending his official release from military service.
"Those in charge of [the Office of Military Commissions] saw my actions as an abrupt volte face, an aberration borne of emotion, and were hence concerned about my mental well-being," Vandeveld told me. "As I’ve said before, the humiliating experience of undergoing a mental health assessment quickly showed that their concerns were unfounded."
In what may be an effort to prevent Vandeveld from testifying for the defense — and possibly providing additional damning information about the government’s conduct at Guantánamo — the Pentagon on Tuesday announced that it was dropping charges against five of the detainees whose cases Vandeveld was working on. The prosecutor’s office insisted that the announcement was unrelated to Vandeveld’s allegations and that there were no plans to drop charges against Jawad.
Vandeveld is now back home, with his wife and children in Erie, Pa.
"Now that I’m home in Erie, far removed from DC not only in distance, I’m regaining my bearings and sense of self," he said by e-mail. "I’ve learned, to my immense surprise and gratitude, that outside the Commissions and military bubble, there are many, many fine people whose views are sincere and supportive. I’ve also heard from my buddies from my time in Iraq, all of them expressing fundamental support — the connection doesn’t get any deeper than that."
Jawad, meanwhile, remains at Guantánamo, going into his sixth year of confinement. The next hearing for his case is scheduled for Dec. 9.