Detainee's Attorney Seeks Dismissal Over Abuse

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By Josh White
Washington Post Staff Writer
Sunday, June 8, 2008

A military defense attorney for a detainee held at Guantanamo Bay, Cuba, has asked that all charges against his client be dismissed after prosecutors provided him documents that show the detainee was subjected to an abusive technique that had been banned at the facility, calling the treatment a violation of the law of war and U.S. laws and policies.

According to Guantanamo prison records, Mohammed Jawad was subjected to the military's "frequent flier program" in May 2004, which meant he was moved repeatedly from one detention cell to another in quick intervals and usually at night, a program designed to deprive detainees of sleep. Such sleep deprivation was banned at the facility in March 2004, and other prison records indicate that it was used on detainees as late as July 2004.

Air Force Maj. David Frakt, who represents Jawad, said prison logs show that his client was moved 112 times in 14 days between cells L40 and L48, for no apparent reason. Frakt alleges Jawad had no intelligence value and was abused maliciously. The "frequent flier" program -- later dubbed "secure move" -- was a tactic about which FBI interrogators raised concerns and that a high-level military investigation confirmed.

But that investigation, by Air Force Lt. Gen. Randall M. Schmidt, said the program was for use on high-value detainees and was barred in March 2004. The investigation did not find the evidence that showed Jawad was subjected to the tactic, but Schmidt, in a draft of expected testimony he provided to Frakt, said he has no reason to doubt the government's information about Jawad's cell movements.

Schmidt wrote in the draft testimony that he regretted not uncovering the use of the program on Jawad but that he found it was used in other instances, both authorized and unauthorized.

"Had I learned of the treatment of Mr. Jawad, it would have been included as a finding in my report," Schmidt wrote. "The fact that the frequent flyer program was apparently carried out after the point that we were told the practice had been discontinued is troubling."

Schmidt, who is retired, said yesterday in a telephone interview that he believes Frakt is "scrambling" to defend a detainee accused of trying to murder U.S. troops in Afghanistan and that the treatment used against Jawad in Guantanamo Bay should be no reason to drop criminal charges against him. Schmidt said he thinks it was a "good catch" to find the alleged abuse of Jawad and that someone should be held accountable for not following established policy and command directives at the time.

"I did not term the frequent-flier program as torture," Schmidt said. "There was a frequent-flier program, and that was considered to be abusive if it was not properly done."

Defense officials have said repeatedly that the department's policy is to treat detainees humanely and that credible allegations of abuse are investigated, and if they are substantiated, individuals are held accountable for their actions.

Jawad, who is now about 24 years old, was arrested after a Dec. 17, 2002, attack in which he allegedly threw a grenade into a passing U.S. Special Forces vehicle in Kabul that was on a humanitarian mission. All three people in the vehicle were seriously wounded, and one was blinded in his left eye. Jawad has been accused of attempted murder, and hearings in his case are scheduled to resume next week at Guantanamo.

Col. Lawrence Morris, the military commissions' chief prosecutor, said yesterday that the government acknowledges that Jawad was subject to some form of the frequent-flier treatment but that it happened long after his capture. Morris said that Jawad made confessions at the scene of his capture and more than once in the few hours following the incident, all without any duress.

"Even if the facts were as the defense states, it is not grounds for relief and certainly not grounds for the dismissal of charges," Morris said. "Notwithstanding that, the government is not relying on any evidence educed from this process. We're not using a sentence that came from any involvement in it. Theirs is just a broad argument that says you ought to give him this colossal relief because the government may have stumbled some in how he was treated."

Frakt argues that, after his client was sent to Guantanamo, he was tortured and that there is substantial case law supporting the case's dismissal, a point the government strongly opposes. He said his client's mental state was seriously altered as a result of the illegal technique and its duration -- far longer than the few days of sleep deprivation that at one point were allowed -- and that it indicates wider abuse at Guantanamo than has been previously acknowledged.

"I think it reflects the abandonment of basic American values of human decency that occurred on a widespread basis in detention operations in the first two to three years of the global war on terror," Frakt said yesterday. "What started as an effort focused on a few detainees believed to possess critical intelligence filtered down to ordinary detainees and became routine."

A 46-page study report by lawyers at the Seton Hall University School of Law expected to be released today supports Frakt's contention that investigators missed many allegations of abuse at Guantanamo and omitted others from official reports. The Defense Department has repeatedly used the report to show that there was no torture at Guantanamo. The Seton Hall analysis, led by lawyers Mark and Josh Denbeaux, found that FBI-reported beatings, religious abuse and other illegal techniques were missing from Schmidt's investigation and never surfaced elsewhere.

"Despite the Schmidt Report's failure to properly address FBI agents' accounts of misconduct at Guantanamo Bay, the Government has accepted the report's assertion that no 'inhumane conduct' ever occurred at Guantanamo," the Seton Hall study concludes.

Schmidt said yesterday that his team was chartered to looked at the FBI allegations and that it did so, making the unpopular findings that at least one detainee -- Mohammed al-Qahtani -- was "severely abused" by the aggregation of several interrogation techniques. Schmidt said he thinks that his team was thorough and that the job was done with integrity.

"Are we going to catch every single thing? The answer is going to be no," Schmidt said. "If somebody from another group says you didn't find everything that happened, they're absolutely correct. Did I find just about anything and everything the FBI talked about? Yes, we did."


© 2008 The Washington Post Company

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