(Originally posted on Daily Kos.)

It’s a safe bet that future generations will judge the U.S. military’s detention, treatment and trial of prisoners at Guantánamo harshly, as one of the lowest points in this country’s history. But the full story has to include accounts not just of leaders who betrayed this country’s most fundamental values, but also of the lower-ranking military personnel who stood up to confront their own government. During the military commissions hearings last week, military defense lawyers and a prosecutor reminded us, again, that there are men and women of courage and honor who are willing to risk their careers and livelihood to speak out against injustice.

At the beginning of the week, military defense lawyers assigned to advise the 9/11 defendants fought zealously to seek some measure of fairness in a system stacked against these detainees. In the latter part of the week, all the focus was on a dramatic development in the commissions’ case against Mohammad Jawad: Lt. Col. Darrel Vandeveld, the lead prosecutor, resigned because he does not believe he can ethically proceed with the case.

Before the start of Thursday’s hearing in Jawad’s case, Major David Frakt, his lawyer, told the media and observers that Vandeveld had given him a written declaration setting out the reasons for the resignation, which Frakt had filed with the court. During the hearing, Frakt reminded the court that Vandeveld "was quite an aggressive prosecutor" but said "he is nevertheless guided by a strong ethical and moral compass." Frakt told the judge that although Vandeveld feared retaliation against him, he was willing to testify, either by phone or videoconference.

The retaliation Vandeveld feared began even before he testified, and it was fierce and personal. Frakt told the court that the chief prosecutor had directed Vandeveld to undergo a psychiatric evaluation, ordered him to stay at home, and prohibited him from coming into his office pending his official release from military service. Once Brig. Gen. Thomas Hartmann, the new "war-court czar" in charge of logistics for the military commissions, found out about Vandeveld’s declaration, he quickly armed commissions personnel with media talking points that discredited Vandeveld and called his motivations into question. (Frakt had a copy of the talking points, which he provided to the judge.)

Hartmann has a well-documented history of improperly attempting to influence commission proceedings. Until a couple of weeks ago, he oversaw the military commissions as a legal advisor, a position in which he was supposed to maintain neutrality. But, as military judges found in three cases, Hartmann pressured prosecutors to make decisions based on political considerations or otherwise exercised inappropriate control over them. Hartmann was likely reassigned by the Pentagon in an attempt to neutralize criticism, but it seems that the fox was removed from the henhouse only to act as if he were in charge of the farm. Frakt told the court that since Hartmann was reassigned, he has "lost any pretense of impartiality" and that he was "very involved" in efforts to prevent Vandeveld from testifying.

Perhaps because of Vandeveld’s fears of reprisals, on Thursday he initially asked for immunity from prosecution in return for his agreement to testify. It appears Vandeveld had a change of heart, though, because he does not seem to have pressed the issue and he testified without immunity on Friday afternoon. It will be important and telling, in the coming days and weeks, how the Pentagon treats Vandeveld and whether there are further attempts to smear him. Already, Vandeveld’s request to be transferred to Afghanistan or Iraq for the remainder of his time on active duty has been denied and he is being released from active service.

Based on Vandeveld’s own testimony and Frakt’s description of his declaration in court, Vandeveld has three main reasons for resigning. First, Vandeveld said he turned from a "true believer" in the military commissions to feeling "truly deceived" when he realized records were not being provided to defense lawyers as required — and simply could not be — because the process for gathering, maintaining and transferring records was in "utter disarray." According to Vandeveld, the systemic flaws "deprive the accused of basic due process and subject the well-intentioned prosecutor to claims of ethical misconduct."

Second, Vandeveld said that the government has not provided Jawad’s lawyers with exculpatory evidence — evidence that could show Jawad’s innocence — as it is required to do; he provided examples of specific documents that had not been turned over. On cross-examination by the government (his former co-counsel), Vandeveld admitted that he had himself known about the existence of certain of those documents for a year, but had not turned them over to the defense. According to Vandeveld, he was waiting for the documents to be declassified and for a judge to issue an order establishing a schedule for document production. This struck me as odd. Every prosecutor knows that exculpatory evidence has to be turned over to the defense promptly, regardless of whether there’s a court order. Why would a prosecutor willing to resign over documents not being handed over to the defense himself fail to provide those documents? Vandeveld didn’t address that question specifically. Given his general description of pressure to prosecute cases aggressively, quickly and without being too cooperative with the defense, I’d speculate that he was working in an environment in which an ethical prosecutor may need the protection of a judicial order to do the right thing.

Finally, Vandeveld said that he had become troubled that Jawad, who was a teenager at the time of his capture, had not been segregated from adult prisoners and had not been provided with rehabilitation. He added that his view of the case had "evolved" over time because he suspected that Jawad was duped into joining an anti-American group and was drugged before the event of which he is accused — throwing a grenade at two U.S. service members and an interpreter. Vandeveld also referred to the abuse Jawad suffered at Bagram and at Guantánamo. Based on all this, and on his strong belief as a Catholic in "reparative and restorative" justice, Vandeveld had come to the conclusion that the government should offer Jawad a plea deal — a short period of confinement that would include rehabilitation, followed by release. His supervisors refused.

Rather than the plea deal Vandeveld wanted to give him, Jawad faces a maximum sentence of life imprisonment. But Vandeveld’s concerns about prosecuting Jawad were reinforced by the government’s own witnesses who testified on pre-trial evidentiary issues that were also before the court during the hearing. These witnesses told the court they knew at the time of Jawad’s capture that he was a juvenile, and that he may have been forced by adults to throw the grenade. Jawad’s defense counsel questioned whether he even threw the grenade, given that Afghan authorities arrested at least one other person, an adult, in connection with the attack.

The first military interrogator to interview Jawad after his capture admitted that Jawad said he had not wanted to throw the grenade and that "when it came time to commit the act, he got cold feet and was afraid. He was drugged and accompanied by an older gentleman who did not give him the option not to go through with the act." In addition, the interrogator testified, Jawad said he’d been "recruited" by a Taliban-affiliated group, the Hizb-i-Islami, with the understanding that he would be able to make money to support his family, but that "at the time he was recruited, he wasn’t fully aware of what he would be doing." A part of the military interrogator’s testimony took place behind closed doors because the interrogation techniques to which he subjected Jawad are apparently classified. (The ACLU has challenged similar abuses of the classification power in other cases) In open court proceedings, though, Jawad’s counsel made clear that the techniques could include acts of torture and cruel, inhuman and degrading treatment in violation of the Geneva Conventions.

There is a souvenir shop a short drive from the courtroom in which the hearing in Jawad’s case took place. On Friday, after Vandeveld testified and the hearing ended, I walked around the shop looking at T-shirts and coffee mugs emblazoned with Honor Bound to Defend Freedom, the motto of the military task force responsible for detainee operations in Guantánamo. It struck me that the only honor to be salvaged in the courtroom that afternoon had been that of the military lawyers defending Jawad, and the military prosecutor who refused to continue on the case against him.

(Originally posted on Daily Kos.)

As previously noted, we learned late yesterday that Army Lieutenant Colonel Darrel Vandeveld, the lead prosecutor in the military commissions case against Mohammed Jawad, has resigned in protest because the prosecution team was withholding exculpatory evidence from the defense. Jawad was a teenager when he was captured in Afghanistan and he’s one of the two youngest prisoners at Guantanamo.

The reason for the prosecutor’s resignation is only the latest in a series of deeply disturbing revelations in Jawad’s case. In July, we learned that Jawad was subjected to the euphemistically-named “frequent flyer” program, in which detainees at Guantanamo were subjected to sleep deprivation for days on end as punishment for failing to cooperate with their jailors or for misbehaving. Jawad’s treatment, which his lawyers say is chronicled in prison logs, appears to have been particularly harrowing. In May 2004, a few months after Jawad tried to hang himself in his cell, prison officials deprived him of sleep for two weeks by moving him 112 times in 14 days – and they did so after the government claims it officially discontinued the “program.”
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(Originally posted on Daily Kos.)

When the 9/11 defendants first emerged from years of torture and detention in secret CIA custody, it was for arraignment in a Guantanamo courtroom. The government immediately made it clear that any public mention of the prisoners’ abuse was off limits. The audio feed to the spectators’ room (where we observers and the media sit behind soundproof glass) was cut off any time a defendant mentioned being tortured. In today’s hearing, though, it was perfectly acceptable for Khalid Shaikh Mohammed to mention he was waterboarded (the government apparently realized it’s futile to censor what the head of the CIA himself admits).

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Even as the proceedings in the 9/11 defendants’ cases were stalled, the chief military commissions prosecutor, Col. Lawrence Morris, was telling journalists yesterday he wants trials in five other cases to be finished before the next president takes office. In two of Morris’ flagship cases, the United States has the distinction of being the first nation in modern times to prosecute child soldiers for war crimes: Omar Khadr was 15 when he was picked up, and Mohammad Jawad was about 16. Each was severely abused in U.S. custody and Jawad appears to have been subjected to deliberate and systematic cruelty; he has tried to commit suicide. The third case on Morris’ list is against Ahmed al-Darbi, who has said he was subjected to torture at the U.S. detention center at Bagram, in Afghanistan, during the time that some of the worst abuses there took place. In the remaining cases, those of Ibrahim al-Qosi and Ali Hamza Ahmed al-Bahlul, it doesn’t look like the accused will participate in the trial; each defendant has said he will boycott the proceedings because he thinks the system is stacked against him.

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The lead article in today’s New York Times raises all sorts of red flags about the likelihood of prisoner abuse in U.S. custody in Afghanistan. The article describes a Red Cross complaint about the treatment of prisoners at the United States’ Bagram military base, just outside Kabul, as well as the conditions under which they are held. The descriptions are chillingly similar to conditions and treatment the military’s own investigators found contributed to prisoner abuse by U.S. forces in Iraq and Afghanistan starting around 2002: massive overcrowding, “harsh” conditions, lack of clarity about the legal basis for detention, prisoners held “incommunicado,” in “a previously undisclosed warren of isolation cells,” and “sometimes subjected to cruel treatment in violation of the Geneva Conventions.”

Tim Golden, the Times reporter who wrote the piece, is no stranger to the Bagram beat. In a series of investigative articles beginning in 2005, he chronicled the brutal beatings and other cruelty that lead to the December 2002 deaths of two detainees in U.S. custody at Bagram - and the lack of senior-level accountability that followed.

Although conditions at Bagram have improved, at least since the universal revulsion at the revelations of Abu Ghraib and Congress’ passage of the Detainee Treatment Act of 2005, Golden’s report shows that the tragic mistakes of the past may be in danger of repetition. For example, two American officials tell Golden of a confidential report from the International Committee of the Red Cross last summer that “dozens of prisoners had been held incommunicado for weeks or even months.” And Bagram appears to be just as bad, if not worse, than Guantanamo:

Military personnel who know both Bagram and Guantanamo describe the Afghan site, on an American-controlled military base 40 miles north of Kabul, as far more spartan. Bagram prisoners have fewer privileges, less ability to contest their detention and no access to lawyers. Some detainees have been held without charge for more than five years, officials said.

As if that were not enough, perhaps the most troubling aspects of the article is in what the official Pentagon response does not say. In response to a reported Red Cross complaint that prisoners were hidden from its inspectors:

The senior Pentagon official for detention policy, Sandra L. Hodgkinson, would not discuss the complaint, citing the confidentiality of communications with the Red Cross. She said that the organization had access to “all Department of Defense detainees” in Afghanistan, after they were formally registered, and that the military “makes every effort to register detainees as soon as practicable after capture, normally within two weeks.

Ms. Hodgkinson’s phrasing is noteworthy. What if there are detainees in Afghanistan who are not “Department of Defense detainees” but are instead held by the CIA or another civilian agency? We know, after all, that the CIA was holding “ghost prisoners” - i.e. prisoners held in secret, hidden from the Red Cross - at a secret facility called the “Salt Pit” in Afghanistan. According to a groundbreaking Washington Post report in 2005, the CIA prison was moved to Bagram for a while, but was later moved outside the base. The article doesn’t address this question, but note that the administration has never renounced the CIA’s illegal secret detention and interrogation program that President Bush announced on September 6, 2006.

It is clear, though, that another lesson from the torture scandal seems to have been ignored: different rules for different agencies and different prisoners are an invitation to abuse. According to the article, at Bagram, Special Operations forces functioned with a different set of rules than the rest of the military:

One former Bush administration official said the Pentagon told Congressional leaders in September 2006 that a small number of prisoners held by Special Operations forces might not be registered within the 14-day period cited in a Defense Department directive issued that month. The exceptions were to be “approved at the highest levels,” the former official said.

Finally, the Bush administration is not content to limit its regime of illegal detention to Guantanamo, and has tried to foist it - without success - on Afghanistan:

Afghan officials rejected pressure from Washington to adopt a detention system modeled on the Bush administration’s “enemy combatant” legal framework, American officials said. Some Defense Department officials even urged the Afghan military to set up military commissions like those at Guantanamo, the officials said.

The article makes clear that American military officials and diplomats have been stymied in an attempt to do the right thing - financing an Afghan prison that meets international humane treatment standards and has trained Afghan guards - and they clearly face uphill challenges. But it is when a prisoner is in American custody and under American control that our values are at stake and our commitment to the rule of law is tested. And the Times article gives cause for concern that we may be failing the test. Both Congress and the Executive Branch need to investigate what’s happening at Bagram if we are to avoid a tragic repetition of history - assuming it hasn’t already happened.

Ponder this: A U.S. citizen joins an organization to advance political goals. Some in the group engage in illegal activity but the citizen’s own goals and activities are legitimate. The government blacklists the organization and says that working for it or taking a leadership role in it is a crime. May the government prosecute the citizen for her activities even though she didn’t intend to do anything wrong? May the citizen challenge the blacklisting in her criminal trial? After all, if it weren’t for the blacklisting, her activity would not be criminal and would be protected by the First Amendment.

You might think the scenario Orwellian and the answers clear - no to the first question, and yes to the second. But the statutory scheme governing “material support” for a terrorist group, last amended by Congress in 2004, says otherwise, and a similar scenario is now playing out in federal district court in Brooklyn.

Zeinab Taleb-Jedi is a 52-year-old U.S. citizen who faces up to 15 years in prison for providing “material support” - in the form of herself - to the Mojahedin el-Khalq (MEK), a group that opposes the current regime in Iran. Her case is a striking illustration of the problems with the material support statute and the way it is applied by the government. In a friend-of-the-court brief the ACLU filed last week, we argued that Ms. Taleb-Jedi’s criminal indictment should be dismissed because the material support statute violates the First Amendment right to freedom of association and the Fifth Amendment’s guarantee of due process.

Ms. Taleb-Jedi’s lawyers describe MEK as an organization dedicated to the overthrow of the government of Iran, and one with which the United States has apparently cooperated. The government designated MEK a foreign terrorist organization starting in 1997. But nowhere in the government’s charges against Ms. Taleb-Jedi is there any suggestion that she intended to support or to further any unlawful aim of MEK. In essence, the case is one of guilt by association.

The first major problem with the material support statute, therefore, is that the government doesn’t have to show intent to do wrong, so it can prosecute people like Ms. Taleb-Jedi for activity that would be protected by the First Amendment. But the First Amendment’s right to freedom of association doesn’t just protect attending a meeting or carrying a membership card, but also the right to work for a political organization, and to “organize, manage, supervise, or otherwise direct” the organization - the very activities criminalized by the material support statute. One person cannot be held criminally liable simply because someone else she associates with engages in criminal activity. In the United States, the Supreme Court has repeatedly held, we do not criminalize guilt by association.

The second constitutional problem with the material support statutory scheme is that it specifically prohibits defendants like Ms. Taleb-Jedi from challenging the government’s designation - essentially blacklisting - of an organization. This is true even though the government’s designation is the predicate that determines whether the defendant’s behavior is lawful or not. In Ms. Taleb-Jedi’s case, if it weren’t for the blacklisting of MEK, she would be free to support, advocate for, associate with, volunteer under, organize and be a leader of MEK, even if it had unlawful as well as lawful aims. Essentially, the blacklisting exposed Ms. Taleb-Jedi to severe criminal penalties for exercising her First Amendment rights.

Despite the importance of the blacklisting to Ms. Taleb-Jedi’s criminal case, she does not have the right to challenge it in her own criminal trial. The provision prohibiting her from doing so violates the First and Fifth Amendments. As the Supreme Court has held, the Constitution mandates that a defendant in Ms. Taleb-Jedi’s position be able to challenge in a meaningful judicial proceeding the underlying designation that strips her of her rights. Simply put, no other party or person has as much at stake in her criminal trial as Ms. Taleb-Jedi does. Under the Constitution, she must be able to challenge the government’s blacklisting designation - the direct cause of her prosecution.

Opponents may argue, as they often do in cases like this, that civil liberties must give way to national security concerns. But the First and Fifth Amendments aren’t optional and security and rights do not have to be at odds. In fact, it is in the context of national security cases that the Supreme Court has developed the precedent that directly applies to Ms. Taleb-Jedi. In those cases, from the 1950s and 60s, the Supreme Court addressed the rights of people accused of supporting the Communist Party, thought to be the greatest national security threat to the United States during that time. As the court held in United States v. Robel, “It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties … which makes the defense of the Nation worthwhile.”

The government is due to reply to the court filings in December. We’re continuing to watch this case closely and will keep you updated about developments.