By Peter Finn
Washington Post Staff Writer
Wednesday, January 14, 2009
A former military prosecutor said in a declaration filed in federal court yesterday that the system of handling evidence against detainees at Guantanamo Bay is so chaotic that it is impossible to prepare a fair and successful prosecution.
Darrel Vandeveld, a former lieutenant colonel in the Army Reserve, filed the declaration in support of a petition seeking the release of Mohammed Jawad, an Afghan who has been held at the military prison in Cuba for six years. Jawad was a juvenile when he was detained in Kabul in 2002 after a grenade attack that severely wounded two U.S. Special Forces soldiers and their interpreter.
Vandeveld, who has served in Iraq and Afghanistan, was the lead prosecutor against Jawad until he asked to be relieved of his duties last year, citing a crisis of conscience. He said the case has been riddled with problems, including alleged physical and psychological abuse of Jawad by Afghan police and the U.S. military, as well as reliance on evidence that was later found to be missing, false or unreliable.
Vandeveld said in a phone interview that the "complete lack of organization" has affected nearly all cases at Guantanamo Bay. The evidence is often so disorganized, he said, "it was like a stash of documents found in a village in a raid and just put on a plane to the U.S. Not even rudimentary organization by date or name."
Vandeveld was assigned to the military prosecutor's office at Guantanamo Bay in May 2007, shortly before Jawad was charged. Vandeveld, who as a civilian serves as a senior deputy attorney general in Pennsylvania, said he was shocked by the "state of disarray" as he began to gather material for Jawad's case file.
He said the evidence was scattered throughout databases, in desk drawers, in vaguely labeled containers or "simply piled on the tops of desks" of departed prosecutors.
"I further discovered that most physical evidence that had been collected had either disappeared" or had been stored in unknown locations, he said.
Military officials rejected the accusations.
"I am happy to respond under oath to any of the allegations," Col. Lawrence Morris, chief military prosecutor, said in an e-mailed statement. Vandeveld, he said, "was disappointed when I did not choose him to become a team leader, and he asked to resign shortly thereafter, never having raised an ethical concern during the 9 months I supervised him. I relied on his representations to me about Jawad and other cases I entrusted to him (which included his advocacy of a 40-year sentence for Mr. Jawad the week before he departed)."
"My response is I wouldn't believe a word he says," Vandeveld said last night.
Military defense lawyers also said yesterday that the Office of Military Commissions may have accidentally withdrawn the charges against all defendants at Guantanamo Bay facing trial, including Jawad and even Khalid Sheik Mohammed, the operational mastermind of the Sept. 11, 2001, attacks.
Defense lawyers said the Office of Military Commissions, while creating new jury panels, took the additional step of re-referring all charges, which, they said, would return all cases to square one and require new arraignments.
"This was a royal screw-up," said Air Force Reserve Maj. David Frakt, Jawad's military attorney. Another military lawyer, Navy Lt. Cmdr. Brian Mizer, expressing disbelief at the action, said, "This is military justice 101."
A military judge at Guantanamo Bay has asked lawyers in the case of Canadian Omar Khadr, who is about to go on trial, to brief him on the matter.
"If, in fact, the charges referred on 24 April 2007 have been withdrawn and re-referred on 17 December 2008, it appears the first order of business at the Commission session scheduled for 19 January 2009 is to arraign Mr Khadr on the newly referred charges," Judge Patrick J. Parrish wrote in an e-mail to counsel.
Pentagon officials called the legal move "simply an administrative action to update commission panels."
"In some cases, the defense is challenging the way the substitutions were made," according to a statement by the Office of Military Commissions. "The military judges have ordered briefs on this issue. Depending upon how the judges rule, the government will be prepared to respond."
In his declaration, Vandeveld said Afghan police had made Jawad place his thumbprint on a statement written in Farsi, a language that the defendant, who is functionally illiterate, does not speak. To extract an admission, and before he was turned over to U.S. forces, the Afghans allegedly threatened to kill Jawad and his family, Vandeveld said in the declaration.
Later, Jawad also made a statement to U.S. interrogators, which was recorded, Vandeveld said. But despite an extensive search, Vandeveld said, he was not able to obtain the videotape.
A military judge last year threw out Jawad's statement to U.S. forces, saying it was tainted as a result of his treatment at the hands of the Afghans. The government the appealed decision, and the U.S. Court of Military Commission Review heard arguments on the matter yesterday. A decision is expected within 30 days.
Vandeveld and Jawad's attorneys have catalogued a pattern of abuse in the case, including an incident in June in which Jawad was said to have been "beaten, kicked and pepper-sprayed while he was on the ground with his feet and hands in shackles, for allegedly not complying with guards' instructions," according to a filing in federal court.