(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.

The court heard pretrial motions this week in the Guantánamo death penalty cases of Khalid Sheikh Mohammed and the four men charged with 9/11 crimes in the Bush administration’s military commissions.

Given that this is arguably the most high-profile capital trial ever, you might think that the government prosecutors would be killing the defense with kindness when it comes to resources. You might expect that they would take the position that most federal prosecutors take – give them what they want, judge, so we don’t have to try this twice. Instead, part of the week was spent wrangling over defense requests for expert psychiatrists, accurate transcripts, and some other pretty modest items.

The defense requests included one for a telephone between Gitmo and the secure facility in Washington, so counsel would be able to talk with their clients, who are, in effect, their co-counsel (since most are representing themselves, with the help of the ACLU’s John Adams Project lawyers and their military counterparts). Another was for a courier – one courier, thus bringing the grand total to TWO couriers – to get pleadings and papers back and forth from the detainees’ cells to the secure site on Guantanamo.

Bob Swan, the chief prosecutor, told the military judge that there was no way to make the 40,000+ pages of materials searchable for the clients representing themselves, but triumphantly announced “a 287-page index!” When asked if it could be in Arabic, he said, “No”. He said what he’s been saying all week in response to grievous translation problems: we already gave you translators; use them. (Each team has its own translator – well, except for the Azziz Ali team, whose government-sponsored translator wasn’t up on legal terminology.) When it came to a really “expensive” request like a mental health expert for Ramzi bin al Shibh whose competence is in question, the government of course denied it outright.

The prosecutor’s refrain of the day was: “No.” No telephone, no courier, no Arabic transcripts or index or files, and no experts. No, the Constitution doesn’t apply to these men. And absolutely no visits to the infamous Camp 7, where the so-called “high value” detainees are held, so no to the request to evaluate conditions of confinement that would be commonplace even in a capital case without allegations of maltreatment, rendition, and torture-induced insanity.

A possible motive emerged at the end of the day, when Swan claimed that “these defense lawyers” would “rather be in Washington D.C.” than at Guantanamo seeing their clients — which of course is nonsense aimed at driving a wedge between clients and counsel. The prosecution, it seems, longs for the days in June when tortured men held incommunicado for years seemed ready to forego trials altogether and simply agree to their own executions. It appears that the prosecution’s problem is not just with the specific requests that the defense counsel are making but with the very presence of defense counsel in the first place.

(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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We learned late today 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 not providing the defense evidence that could indicate Jawad’s innocence. Jawad was a teenager when he was captured in Afghanistan and he’s one of the two youngest prisoners at Guantánamo.

ACLU attorneys Hina Shamsi and Denny LeBoeuf are in Guantánamo right now observing the military commission hearings of the accused 9/11 defendants. We’ll have more details soon, so stay tuned!

(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).

Read more…

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.

Read more…

(Originally posted on Daily Kos.)

Friday morning, a determined and defiant Ali Hamza Ahmed Sulayman al-Bahlul (PDF) appeared before the military commission. Escorted by military police holding each of his wrists, al-Bahlul wore a tan prison uniform and flip-flops. He wasn’t carrying his “boycott” sign, which he created back in January 2006 and has held during subsequent hearings. We soon realized that this was the reason for a half-hour delay in the hearing’s start time.

Al-Bahlul then took center stage in a hearing that quickly became a circus. First, al-Bahlul requested the boycott sign, on which he had written a nine-point list enumerating the “political and legal reasons” why he opposes the military commission proceedings against him. The front of the sign had been entered into evidence, but apparently not the reverse side, on which al-Bahlul had written his nine-point manifesto, and no one could produce the original, which he said had been confiscated from him after his last hearing. Al-Bahlul refused to continue without the signed document, saying it would assist him in explaining his position to the judge. Al-Bahlul then rightly pointed out “There should be an administrative regime for the court to find the paper…If such a legal document is lost, what kind of court is this?”

Criticizing the proceedings as being inherently unfair, Al-Bahlul then announced that he refuses to attend any further hearings and will not accept military defense counsel. “I do not have any trust in this legal farce,” Al-Bahlul declared. “When it is the final proceeding, just let me know this is the proceeding when the verdict and sentence are announced, and I will show up. For the other sessions in between I will not be present,” he announced. He gestured to his stand-by defense counsel, Maj. David Frakt, and said, “Until I hear the final verdict I don’t consider him my attorney.” He stoutly added, “I am not going to talk to Major Frakt.”

Al-Bahlul also told the new military judge in this case, Col. Ronald Gregory, that because fellow Yemeni Salim Hamdan had recently been convicted and sentenced, he was ready to “do some settling” of the case today to “facilitate things.” It is unclear whether he meant he was prepared to plead guilty to the charges today. Al-Bahlul also asked to withdraw his habeas petition — filed on his behalf by his cousin — announcing, “The case which is put forth in the American courts in my name, I am not satisfied with it, and I don’t want it.”

Before exiting the courtroom midway through the pre-trial hearing, Al-Bahlul departed with a final salvo: “You can continue your legal play.”

After al-Bahlul left the courtroom, the judge appointed Maj. David Frakt defense counsel because al-Bahlul’s departure meant he had waived his right to represent himself. Maj. Frakt told the military judge that he would defend al-Bahlul “in the manner in which he desired to be defended.” Afterwards, Maj. Frakt stunned the judge and observers by waiving all future pre-trial motions, including motions related to discovery of evidence, and demanded the right to a speedy trial, announcing he was ready to go directly to trial. Under the military commission’s rules, Maj. David Frakt’s request for a speedy trial could push the trial to start in 90 days.

After the hearing, Maj. Frakt told me he will not mount any defense. Because his client “does not recognize the legality or validity of the proceedings,” and believes it is impossible for him to receive a fair trial in a Guantánamo military commission, Maj. Frakt explained, al-Bahlul does not want to have defense counsel do anything purporting to be on his behalf. “He thinks this circus has gone on long enough,” Maj. Frakt said.

Al-Bahlul’s decision to boycott is, perhaps, only a recognition of what the whole world knows — the military commissions system is designed to arrive at a guilty verdict, regardless of whether evidence was coerced or can be tested, because it lacks fundamental guarantees of fair trials and due process. The government has ensured that the regular rules don’t apply, so it can hardly be surprised when criminal defendants refuse to participate in a sham process.

It also comes as no surprise that al-Bahlul rejects the military commission system as unfair. Al-Bahlul’s statement Friday criticizing the legal process as a “farce” is just the latest in a series of accusations of unfairness that have marred the proceedings in the past week.

On Thursday Judge Stephen Henley disqualified Brig. Gen. Thomas Hartmann, the military commission’s Legal Advisor to the Convening Authority, from participation in Mohammed Jawad’s case, citing excessive interference in the prosecution of commission cases (for excellent coverage, see here, here, and here). Because Brig. Gen. Hartmann pushed for charges to be brought against Jawad, (bringing Jawad “from the freezer to the frying pan, thanks to Gen. Hartmann,” according to testimony by the former chief prosecutor on Wednesday), Judge Henley ordered an unprecedented top-level review of the charges against Jawad. This is the second time Brig. Gen. Hartmann has been removed from a military commission case for improper influence, as Judge Keith Allred disqualified him from further participation in Salim Hamdan’s case back in May.

Last week also brought additional testimony by Col. Morris Davis, former chief prosecutor for the military commissions, in Omar Khadr’s case. Col. Davis resigned in last October, citing political interference. He has testified in Hamdan, Jawad, and now Khadr’s hearings to criticize Brig. Gen. Hartmann’s interference with the prosecution of military commission cases, including pressuring the prosecution to get trials underway before the presidential election. On Wednesday Col. Davis repeated his famous testimony recalling his initial job interview, when the Defense Department’s chief counsel William J. Haynes II told him that the military commissions couldn’t result in acquittals because “We’ve been holding these guys for years.”

Also last week another senior military official (this time a general) came forward to critique Brig. Gen. Hartmann, adding to the taint on the military commissions. Brig. Gen. Gregory J. Zanetti, deputy commander of Joint Task Force Guantánamo prison camps, accused Brig. Gen. Hartmann of bullying, characterizing his approach as “Spray and pray. Charge everybody. Let’s go. Speed, speed, speed.”.

Rather than providing fair, meaningful justice that reflects American principles, recent testimony in the Hamdan, Jawad and Khadr cases shows dogged pursuit of wins in these cases at all costs. The taint of political pressure and the failure to observe basic constitutional guarantees means that any verdict rendered by the military commissions will be regarded as illegitimate by the American public and overseas observers. This country deserves more than trials rushed to provide an election-year win.

The Office of Military Commissions has a new motto: “Freedom through Justice.” Between the taint of political pressure in Mohammed Jawad and Salim Hamdan’s cases and the impending farce of Ali al-Bahlul’s trial, how could this kind of justice possibly not detract from our freedoms?

(Originally posted at Daily Kos.)

Thursday’s hearing in Afghan national Mohammed Jawad’s case brought stunning testimony on serious abuse he suffered at Bagram Air Base in Afghanistan as a teenager, as well as military psychologists’ role in crafting abusive interrogation methods for use on Jawad and other prisoners at Guantánamo Bay.

On Thursday Special Agent Angela Birt, an Army Criminal Investigation Division (CID) investigator who investigated two homicides of prisoners at Bagram prison in Afghanistan, took the stand. Her investigation resulted in confessions from 18 military police for their role in abusing prisoners and findings of probable cause to charge 27 officers for the homicides. Birt’s investigation led her to Jawad because he had been imprisoned at Bagram at the time of the two homicides. Her investigation also uncovered a widespread pattern of abuse that corroborates Jawad’s claims of mistreatment at Bagram prison.

Birt testified that the types of abuse Jawad told her he suffered—being forced to stand for long periods of time in stress positions; forced sleep deprivation; being hit, kicked and beaten; being shackled to the door of his cell; and being hooded and shackled with hand irons, leg irons and a waist chain while moved and in one case pushed down the stairs—mirrored other Bagram detainees’ claims. She also said that Jawad’s claim that he heard the cries and screams of other detainees was a “fairly common” claim of other prisoners locked in isolation who heard other prisoners “crying for their parents and begging for the beatings to stop” during interrogations nearby.

Birt testified that the period of time Jawad was at Bagram—the same period in which these two homicides occurred and the period chronicled in the documentary film Taxi to the Dark Side —“was the worst period of abuse I’ve ever seen” in the 2,000 cases she’s investigated in her 18-year career at CID.

The methods Birt uncovered at Bagram were part of a menu of abusive Survival, Evasion, Resistance, and Escape (SERE) interrogation techniques also used on prisoners at Guantánamo Bay. Thursday’s hearing in Jawad’s case brought attention to the role of military psychologists belonging to Behavioral Science Consultation Teams (BSCTs), known as “Biscuit teams,” in developing and refining these abusive techniques for use at Guantánamo Bay. Since 2002 BSCT psychologists have evaluated prisoners’ fears and psychological weaknesses to craft individualized blueprints for torture and other mistreatment, which they passed on to the interrogators. For instance, a Guantánamo psychiatrist advised interrogators to exploit one detainee’s severe phobia of the dark by deliberately keeping him almost totally in the dark.

Earlier media reports (see here, here, and here, and a New England Journal of Medicine article revealed, and recent revelations from a June Senate Armed Services Committee Investigation confirmed, that military psychologists contributed to the development of these abusive interrogation methods.

Sadly, Thursday’s hearing did not add much to the public record on the workings of the BSCT program at Guantánamo Bay. The BSCT psychologist, “Lt. Col. Z,” who was scheduled to testify for the defense today, invoked her right to remain silent—presumably because she feared recounting her role could incriminate herself in criminal activity. Her testimony would have been the first time a member of the BSCT team had testified in a military commissions hearing.

What we already knew was that leaked Guantánamo Bay interrogation logs—which must be read to be believed —show that a BSCT psychologist was present during the highly abusive interrogation of Guantánamo prisoner Mohammed al-Qahtani. (Charges against al-Quatani were suddenly dropped in May, some have speculated because a trial would have turned the spotlight to the torture he endured at Guantánamo Bay.) And BSCT psychologists’ role in aiding torture has been the subject of much controversy among the American Psychological Association (APA), which is holding a referendum among its members to disallow psychologists to participate in such mistreatment.

What we did learn Thursday was that, according to Jawad’s defense attorney Maj. Frakt, in September 2003, “when an interrogator observed Mohammad talking to posters on the wall of the interrogation room and was concerned about his mental health,” instead of calling a mental health professional to care for him, they summoned the BSCT team, whose psychologist made a “cruel and heartless assessment and recommendations.” Maj. Frakt called the BSCT psychologist’s report, which was classified secret and therefore not discussed in detail in the open court session, “the most chilling document of all.”

And on Wednesday, Dr. Bruce Menely, the chief medical officer at Guantánamo Bay, testified that when Jawad tried to hang himself only months later, on Christmas Day 2003, BSCT psychologists—not regular medical psychologists—were notified of Jawad’s suicide attempt. In Omar Khadr’s hearing Wednesday, Khadr’s defense lawyer Lt. Cmdr. William C. Kuebler noted that, much like in Jawad’s case, military psychologists have met with Khadr to manipulate him and extract more information from him during interrogations.

During his emotional closing argument Thursday, Maj. Frakt asked, “What has this country come to when a licensed psychologist, a senior officer in the U.S. Armed Forces, someone trained in the art of healing broken hearts and mending broken minds, someone with a duty to do no harm, turns her years of training and education to the art of breaking people, to the intentional devastation of a lonely, homesick teenage boy?”

At the end of her examination of Birt, defense attorney Katharine Doxakis asked Birt whether her resignation from the military was because she had become disillusioned with the military after seeing the results of her Bagram abuse investigation. The prosecution’s immediate objection was sustained, and Birt never got to answer the question.

If, as implied by the defense, Birt’s resignation from the military was a stand against torture, why didn’t Guantánamo’s military’s psychologists do the same?  

(Originally posted on DailyKos.)

Two hearings on Wednesday concerned the cases of two of the youngest prisoners of Guantánamo Bay, Omar Khadr and Mohammed Jawad, who were both teenagers when they were captured by U.S. forces.

On Wednesday, pre-trial hearings resumed in the case of Omar Khadr, who was 15 years old when he was shot in the back and captured by the U.S. A legal advisor to the Canadian Department of Foreign Affairs who is permitted one-on-one "welfare visits" with him tells me Khadr, who is now 21, is laboring through the Ontario seventh- and eighth-grade school curriculum she brings him.

Khadr’s defense attorneys put the issue of Khadr’s age at the time of his capture front-and-center. His lawyers argued that because he was only 15 when U.S. imprisonment and interrogations commenced, Khadr requires a full clinical evaluation by independent—not military—experts on juvenile psychology who can assess the reliability of statements extracted from him and the psychological impact of abusive interrogations and coercive conditions of confinement on a teenager.

Khadr’s defense attorney, Lt. Cmdr. William C. Kuebler, said that there are significant segments of Khadr’s time at the Bagram Air Base in Afghanistan that Khadr won’t discuss with his attorneys, who believe he may be suffering psychological trauma from mistreatment at the hands of U.S. interrogators there. They hope that a trained clinical psychologist will be able to assess whether Khadr’s mental state is consistent with his allegations of torture at Bagram.

Khadr’s allegations? We don’t know much about them, since the government has classified a nine-page affidavit in which Khadr describes his mistreatment in Afghanistan. We do know that Khadr has claimed that he was repeatedly interrogated while he was in excruciating pain, hooded and menaced by barking dogs, and threatened with rape.

Although prosecutor Maj. Jeffrey Groharing urged the commission to "give very little weight to an accused terrorist’s claims of abuse" and noted that Khadr’s claims were investigated and unsubstantiated, recent revelations suggest that the investigation of Khadr’s allegations of mistreatment at Bagram prison was patently inadequate. The military intelligence unit involved in interrogations of Khadr at Bagram prison was the same unit implicated in the deaths of two detainees at that prison, and U.S. investigators later recommended that 27 members of that unit be criminally prosecuted. And yet still the Naval Criminal Investigative Service (NCIS) found it appropriate to find Khadr’s claims of mistreatment unsubstantiated.

All this begs the question of what continued effects of mistreatment Khadr could possibly exhibit after the fact. Video footage of then-17-year-old Khadr’s interrogation by Canada’s Air Force Office of Special Investigations released a month ago provides the first glimpse of an interrogation at Guantánamo Bay. The video, along with an interrogation report (PDF) written a year after the footage was taken, raise concerns not only about the teenager’s mental state at the time of both interrogations, but about the conduct of the interrogators as well.

Also on Wednesday was the military commission hearing of Afghan national Mohammed Jawad, whose case brought new revelations about the "Frequent Flyer" sleep deprivation program, a program we recently learned was used by the Chinese on American soldiers during the Korean War. Jawad, who was 16 or 17 years old at the time of his capture, is not accused of any links to al Qaeda or the Taliban.

As recently as a week ago, reports suggested that at least 17 prisoners at Guantánamo Bay have been subjected to the program. But Maj. Jason Orlich, a creator of Guantánamo Bay’s "incentives" program that uses long-term sleep deprivation as a punishment for those who misbehave or fail to cooperate, testified that nearly all of the 350 to 400 prisoners held in two Guantánamo Bay prison camps were subject to the program, which entails waking the prisoners, shackling them, and moving them to a different cell along with all their belongings. Maj. Orlich was reluctant to specify the frequency of the moves, but testified that three-hour intervals "would not be abnormal."

Maj. Orlich also revealed that the Frequent Flyer Program was Standard Operating Procedure (SOP), although it did not appear in writing in the SOPs of that time—begging the question of what other detainee treatment policies were omitted from the written records. According to Maj. Orlich, Guantánamo Bay leadership was aware that the Frequent Flyer Program was in use, and the program was a routine included in what the military calls its "daily synchronization matrix." Maj. Orlich also said that the Frequent Flyer Program was ongoing at the time of his departure from Guantánamo Bay in April 2005, and he had never heard of any order to stop the program. This is despite previous government claims that the program had been discontinued in March 2004.

The fact the program continued at Guantánamo Bay even after it was officially banned isn’t exactly news: On July 10, Jawad’s lawyers announced that prison logs reveal that the Frequent Flyer program was used on Jawad after it was "officially" banned at Guantánamo Bay. According to Jawad’s lawyers, in 2004 the military subjected Jawad to two weeks of sleep deprivation in which Jawad was moved 112 times in 14 days. The Frequent Flyer program was used on Jawad only months after his Christmas Day suicide attempt in 2003.

(Around the same time in July 2004, Canada disclosed a document (PDF) in which Canada’s foreign intelligence director confirms that a similar Frequent Flyer Program was used on Omar Khadr for three weeks to "soften" him for interrogations by Canadian agents in March 2004—when he was 17. Notably, the Canadian judge found that this treatment of Khadr constituted torture.)

When asked Wednesday whether he thought it was humane to move prisoners every three hours, eight times a day, 112 times in two weeks, Maj. Orlich replied, after a lengthy pause, that yes, he believed it was humane.

I wonder what Maj. Orlich was thinking during that pause.

(Originally posted on Daily Kos.)

There’s been little time for blogging, but then there’s been less need — Hamdan is front-page news worldwide today, and you can read excellent accounts of Wednesday’s remarkable proceedings here, here, and here.

There was a feeling on Wednesday — and this was evident on the faces of the prosecutors — that the jurors had struck a major blow against the Guantánamo military commissions. For the last seven years, uniformed military officers have been pushing back, sometimes dramatically, against the most extreme detention and interrogation policies of the Bush Administration. Charlie Swift, Alberto Mora, Antonio Taguba — and many more whose names are not well known — have stood up for the best traditions of military justice, and for the principle that the United States military must treat its enemies as we demand to be treated by them. We may never know why the military commission members acquitted Hamdan of the most serious charges against him, but there was no mistaking the impact of their decision. Harry Schneider, one of Hamdan’s lawyers, quipped that Hamdan’s phone call home to Yemen would likely be an easier one than the prosecutors’ call to Washington.

The sentencing phase is now underway. The prosecution sought to call one witness: an FBI agent who was on the scene at the World Trade Center on 9/11 who would describe the carnage and chaos of that day. But, having failed to convict Hamdan of participation in a terrorist conspiracy, the prosecution was unable to persuade Judge Allred that 9/11 victim testimony was relevant to Hamdan’s punishment. “Guilt is personal in the United States, sir,” argued Lt. Commander Brian Mizer, one of Hamdan’s lawyers. Judge Allred agreed, stating that Hamdan was “so little involved” in Al Qaeda’s activities, his support was “so small,” that it would be unduly prejudicial to make it appear that he was responsible for the 9/11 attacks.

As has been common in these proceedings, the prosecutors did not give up, and continued to argue throughout the afternoon that the FBI agent should be permitted to testify.

“Nothing could be more closely connected,” argued lead prosecutor John Murphy, than Hamdan’s driving and bodyguard duties and the attacks of 9/11. But Judge Allred was unpersuaded. “I know you think that man, many people want some vindication for those attacks,” he said. But Hamdan’s role was so marginal and attenuated that there was simply no basis for turning the sentencing hearing into another grisly horror show.

Hamdan is expected to take the stand on Thursday and address the jurors directly. We are told that the prosecutors may attempt to close the courtroom for part of this testimony — once again pressing the outrageous argument that Hamdan is in possession of classified evidence simply by virtue of what the United States has done with him and to him since his capture. (Journalists have speculated that what the administration truly wants to conceal is that Hamdan offered to help the United States capture bin Laden in November of 2001 — an offer that was rejected. The defense has obliquely referred to a “squandered opportunity,” but will say no more.)

Today may be the final day of this historic trial. If wiser heads prevail, this first trial by unjust military commission will also be the last.