The Obama Administration has continued efforts to prosecute Mohammed Jawad an Aghani accused of throwing a grenade which injured 2 US soldiers and their translator in Kabul in 2002. This is another case that crosses over from the Bush Administration. It is a particularly egregious miscarriage of justice which the Obama Administration has done nothing to rectify. The facts are these. Jawad whose precise age is unknown although he may have been as young as 12 at the time of the attack was arrested and tortured by Afghan authorities and then turned over to the Americans. He was transferred to Guantanamo where he was tortured again. As a result of his torture, he confessed to the attack and was eventually put on trial before a military commission in Guantanamo. And then the government’s case fell apart.

On August 14, 2008, Brigadier General Thomas Hartmann, the supposedly neutral adviser to the Convening Authority for the Military Commissions process in Guantanamo was barred from Jawad’s trial for bias in favor of the prosecution by trial judge Colonel Stephen Henley. Also on August 14, 2008, Lieutenant Colonel Diane Zierhoffer, a military psychologist supervising Jawad’s interrogation at Guantanamo, invoked her article 31 rights. Article 31 is the military version of the 5th Amendment protection against self-incrimination. It was Zierhoffer who recommended the techniques, such as prolonged periods of extreme isolation, sleep deprivation (via frequent flier with 112 cell changes in one 13 day period) that drove Jawad to attempt suicide in 2003. And from the beginning, the government knew that aside from his confession extracted under torture, Jawad was almost certainly innocent. On September 24, 2008, the military’s own prosecutor Lieutenant Colonel Darrel Vandeveld quit the case. He cited both a lack of due process and the government’s suppression of exculpatory evidence. Two other men had confessed to the attack and it was likely that Jawad had been drugged at the time of the attack and so incapable of participating in it. On November 19, 2008, Henley ruled to suppress Jawad’s confession.

From there the action moved to a habeas petition in the DC federal district court of judge Ellen Huvelle. On July 16, 2009, Judge Huvelle ruled similarly to suppress all statements made by Jawad including his confession. The government did not oppose the motion to suppress. Huvelle then pointed out to the government lawyers that they had no actual witness who saw Jawad engage in the attack and with no witness and no confession the government case could not go forward. As she said, all the government had to justify holding a young man for 7 years was “people who say that they didn’t see what they said they saw.” Huvelle was relentless in her description of the government’s case, calling it “gutted,” “riddled with holes” and “in shambles” and declaring that the government had known this to be so for years. She also decided to move swiftly to a merits hearing on August 5, 2009. It was clear she did not trust the government or its intentions. As she said, “I’m not going to wait to grant a habeas until you gear up a military commission. That’s what I’m afraid of. Let him out. Send him back to Afghanistan” (where Afghani courts could try him if they so chose). Judge Huvelle gave the government until July 29, 2009 to inform the court what it was going to do about the Jawad case.

Again it is so important to understand that US federal courts are very sympathetic to the government on national security cases. Their bar for evidence is extremely low. So for a federal district judge to use these terms with federal prosecutors and to bring them up short as Judge Huvelle has done is a real indication of what a total and absolute botch the Jawad case has been. As she said toward the end of the hearing, “I think you’d better go consult real quick with the powers to be[sic], because this is a case that’s been screaming to everybody for years.”

This is item 69 of my Obama scandals list