Jawad was likely an innocent child but was nevertheless subjected to torture for seven years without a trial, and his solitary confinement continued for political reasons even after both the government-appointed military defense and prosecutor agreed that he should be released.
Released on August 24, Jawad had undergone years of a variety of torture, including sleep deprivation, beatings, hoodings and being pushed down stairs. U.S. military attorneys on both sides of his legal case have testified that Jawad had undergone torture. Defense Attorney Major David Frakt termed Jawad a former “suicidal teenager'' who was subjected to ''pointless and sadistic treatment.” His later defense attorney, Marine Corps Major Eric Montalvo, is even representing Jawad in his civil suit against against the U.S. Government. Jawad's former U.S. prosecutor, Lt. Col. Darrel Vandeveld, says Jawad endured “torture.”
Nobody knows for sure how old Jawad was when he was arrested in Afghanistan in 2002. He was charged with throwing a grenade into a public square that injured two American soldiers. Jawad says he believes he was 12 when he was arrested, and says that someone else in the crowd near him had thrown the grenade. The U.S. Government officially stated his age at about 17 after a “bone scan” at the time of his arrest. Like most Afghans at the time, he does not have a birth certificate. What is certain is that Jawad was a child at the time of his arrest.
A self-described “resolute Catholic,” Vandeveld started prosecuting Jawad in a military commission for the U.S. Government with the initial belief he could put away a terrorist for life, and maybe even impose the death penalty. But “as I went through the file,” Vandeveld says:
I began to realize that there were significant pieces missing and I've been a career prosecutor for 20 years. And things that you would expect to see in a file weren't there, so I went to find them. And as I searched for evidence, what I found was not evidence of his guilt but evidence of his innocence. And I also discovered that he had been mistreated at Bagram Air Base and certainly at Guantanamo.
Vandeveld found he had no eyewitnesses who could identify Jawad as the person from the crowd who threw the grenade. He eventually came to the conclusion that the boy was probably not the person who threw the grenade. Even if he did, Vandeveld concluded that he was too young to have full moral culpability in the matter. Vandeveld now says he was “truly deceived” by political leaders and found that “it isn't enough to be truly innocent” in order to be released from Guantanamo. When Vandeveld and Frakt jointly recommended that Jawad be released, Vandeveld was met with bureaucratic delays and orders to go forward with the case anyway. After he resigned his position in protest for pursuing the case anyway, senior officials publicly smeared him in the press and ended his military career. “I don't think he has any ethical qualms of any consequence,'' chief prosecutor Army Col. Lawrence Morris told the press, casting him as “somebody who is disappointed that his superiors didn't see the wisdom of his recommendations in the case.”
Vandeveld was unbowed after being kicked out of the Army, telling the Rachel Maddow Show on MSNBC that: “First of all, I took an oath to defend the Constitution of the United States, both as an officer and a citizen. Due process of law is what holds us together as a country. It's about government accountability. We can certainly say that just because someone gets a defense, doesn't mean that they get off. It means that justice was served. So as we look to government accountability, did the government do everything they were supposed to do in order to seek out the appropriate punishment and in this particular case, I can from personal perspective say no they did not.”
Vandeveld says he resigned because “silence in the face of evil is collaboration with evil.” And far from “working,” the military commissions and the torture the commissions obscure are actually against the American tradition. "Our fighting men and women who've been putting themselves in harm's way — They're not fighting for rigged, kangaroo trials," Vandeveld said. “The rules are applicable to everyone. There is no exception. There are no different forms of justice.”
That's just what the Jawad case is designed to expose, according to Jawad's former military defense attorney Maj. Eric Montalvo. “There has been misconduct in this case and others and those people should be held accountable. It's a double-standard where you accuse this young man for seven years and he doesn't even go on a trial. And yet we have documented misconduct on behalf of people within the system that has gone unpunished.”
But punishment for the corruption of the justice system is precisely what former senior Bush administration officials seek to avoid. Former Vice President Dick Cheney criticized Attorney General Eric Holder's appointment of John Durham to investigate CIA torture as an "intensely partisan, politicized look back at the prior administration." Cheney had no problem with drumming Vandeveld out of the military, but particularly offensive to Cheney is the possibility that the Justice Department may investigate the obvious sanction of torture techniques by the Bush-era Justice Department. “The fact of the matter is the lawyers in the Justice Department who gave us those opinions had every right to give us the opinions they did,” Cheney told Fox News Sunday August 30. “Now you get a new administration and they say, well, we didn't like those opinions, we're going to go investigate those lawyers and perhaps have them disbarred.”
But the truth is that the Bush administration's overruling of the judgment of military attorneys in the Jawad case was political. They thought nothing of overruling military commission prosecutors and gave no thought to ending the military career of Vandeveld. Perhaps that's because both Cheney and Bush had both already put a lot of political capital into the myth that all of those detained at Guantanamo were the “worst of the worst” and “all” were terrorists captured on the battlefield, even though Seton Hall Law School Professor Mark Denbeaux proved the truth that less than 10 percent had been captured on a battlefield.
"The important thing here to understand is that the people that are at Guantanamo are bad people," the former vice president told Sean Hannity back in 2005. "I mean, these are terrorists for the most part. These are people that were captured in the battlefield of Afghanistan or rounded up as part of the Al Qaeda network.” Cheney added: "We've already screened the detainees there and released a number, sent them back to their home countries.… But what's left is hard core.
What was actually left included a lot of innocent people like child-prisoner Mohammad Jawad, and many of these innocents had been tortured while their right to a fair trial had been denied. Just as importantly, the Bush-Cheney administration may have interfered with the justice process to protect their own inaccurate public pronouncements, and unjustly ruined the careers of honest military officers in the process.