By Peter Finn
Washington Post Staff Writer
Thursday, September 25, 2008
GUANTANAMO BAY, Cuba, Sept. 25 -- A military prosecutor involved in war crimes cases here has quit his position, citing ethical concerns about his office's failure to turn over exculpatory material to attorneys for an Afghan detainee scheduled to go to trial in December.
Army Lt. Col. Darrel Vandeveld, a reservist, who declined to be interviewed, filed a declaration with a military court here Wednesday, laying out his concerns about the case and procedures in the military prosecutor's office, according to defense attorneys.
"My ethical qualms about continuing to serve as a prosecutor relate primarily to the procedures for affording defense counsel discovery," wrote Vandeveld in his filing. "I am highly concerned, to the point that I believe I can no longer serve as a prosecutor at the Commissions, about the slipshod, uncertain 'procedure' for affording defense counsel discovery."
Vandeveld's departure is the latest blow to the military trials process and a prosecutor's office that has been buffeted by resignations over issues of fairness. Other officials have alleged that the leadership of the military commissions is sacrificing principles of justice in a rush to secure convictions.
Vandeveld was prosecuting Mohammed Jawad, 24, who is accused of tossing a grenade into a military jeep at a bazaar in Kabul in 2002, injuring two U.S. troops and their Afghan interpreter.
"I believe [Vandeveld's] view is that there is a systematic problem with the discovery process," said Air Force Maj. David Frakt, Jawad's military attorney, referring to the prosecution's obligation under the law to turn over material to the defense even if it damages the prosecution's case. "He decided he could no longer ethically serve on this case, or generally."
Frakt said that Vandeveld wanted to reach a plea agreement that would allow Jawad, who was 16 or 17 at the time of the attack, to be released in the very near future. Frakt said there were serious questions about Jawad's guilt and that the government failed to investigate two other Afghans who he said admitted to Afghan police to having roles in the attack.
Frakt, speaking to reporters here, said he would seek to have the case dismissed because of "gross government misconduct."
The chief prosecutor, Army Col. Lawrence Morris, declined to discuss any potential plea agreement. He said Vandeveld resigned because he is "disappointed" his superiors "didn't see the wisdom of his recommendations."
"There are no grounds for ethical qualms," Morris said in a conference call with reporters here. "We are the most scrupulous organization you can imagine in terms of disclosure to the defense."
A Pentagon official, Brig. Gen Thomas W. Hartmann, was ordered by a military court to have no further involvement in the Jawad case last month. Hartmann was the legal adviser to the Convening Authority, a Pentagon office that is required to exercise a neutral role in the running of the military commissions.
The defense alleged that Hartmann wanted Jawad prosecuted for political and public relations purposes. And the judge found that Hartmann had compromised his objectivity.
Hartmann did not respond to requests for comment Wednesday.
Word of Vandeveld's resignation came on the same day that a military judge rejected a formal motion by Khalid Sheik Mohammed, the self-described operational mastermind of the Sept. 11, 2001, attacks, to disqualify himself because of bias and the possibility that his upcoming retirement could disrupt the process.
"It is clear you are retiring before [the trial] is completed," Mohammed told Marine Col. Ralph H. Kohlmann, the presiding judge, at a hearing earlier Wednesday, arguing that Kohlmann might inappropriately rush the proceedings. Three of the five defendants in the case, including Mohammed, are representing themselves with the assistance of military and civilian attorneys.
Kohlmann said Mohammed's claims were "completely wrong" and briskly rejected each argument offered as a basis for disqualification.
Kohlmann told the court during a hearing this week on his impartiality that he is scheduled to retire April 1 and has lined up a new job. Defense attorneys said that factoring in unused leave time, Kohlmann could be gone as early as mid-January.
Kohlmann, who is responsible for appointing judges to cases here, selected himself for the trial, the most-watched proceeding at Guantanamo Bay.
Navy Lt. Cmdr. James E. Hatcher, the lead military attorney for defendant Tawfiq bin Attash, said that if a new judge is appointed, a new round of pretrial hearings would be required and the new judge would be forced to reexamine earlier rulings.
That could set back a process that still lacks a trial date and promises to be protracted.
The loquacious Mohammed, as he does on most days, took the lead in speaking for the other four defendants, all of whom face the death penalty if convicted on various murder and war crimes charges.
CIA Director Michael V. Hayden has confirmed that Mohammed was subject to waterboarding, a technique that simulates drowning, among other tactics when he was held by the intelligence agency. But the Bush administration has argued that the coercive interrogation techniques it sanctioned did not amount to torture.
Defense attorneys said they will seek to exclude from trial all evidence extracted under duress. "Torture is at issue in this case," said Navy Lt. Cmdr. Brian Mizer, who is representing Ammar al-Baluchi. "It is going to be at the very center of this case."