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I Was Slow to Recognize the Stain of Guantanamo

By Darrel J. Vandeveld
Sunday, January 18, 2009

My small role in the "Global War on Terror" started in November 2001, with a rousing farewell party in my home town of Erie, Pa. I was going off to avenge the attacks of Sept. 11, 2001, with a sense of pride and moral purpose.

Over the next seven years, I served in Bosnia, Africa, Afghanistan and Iraq as a military lawyer. They were not easy assignments. I witnessed the horrifying effects of roadside bombs. Some of my friends were killed. Others took their own lives. Still others have suffered wounds from which they will never fully recover. All of us fought because we believed that we were protecting America and its ideals.

But my final tour of duty made me question everything we had done.

From June 2007 through September 2008, I worked as a prosecutor for the Office of Military Commissions at Guantanamo Bay, Cuba. Warning signs appeared early on, but I ignored them. The chief military prosecutor, Col. Morris Davis, complained to me and others that he was being bullied by political appointees in the Bush administration. They wanted him to bring charges against detainees before he was ready. He eventually resigned, saying that he didn't believe detainees could get fair trials at Guantanamo.

I had heard stories about abuse at Guantanamo, but I brushed them off as hyperbole. When one of the detainees I was prosecuting, a young Afghan named Mohammed Jawad, told the court that he was only 16 at the time of his arrest, and that he had been subject to horrible abuse, I accused him of exaggerating and ridiculed his story as "idiotic." I did not believe that he was a juvenile, and I railed against Jawad's defense attorney, whom I suspected of being a terrorist sympathizer.

My experience with the Jawad case led me to file a declaration in federal court this week stating that it is impossible to prepare a fair prosecution against detainees at Guantanamo Bay. I had concluded that the system of handling evidence is a haphazard farce.

I saw this clearly with Jawad.

He was not lying about his age. Nor was he lying about the abuse. Evidence from U.S. Army criminal investigators -- taken in the course of investigating homicide charges at Bagram air base -- showed that while in U.S. custody in Afghanistan, Jawad had been hooded, slapped repeatedly across the face and then thrown down at least one flight of stairs. Detainee records show that once at Guantanamo, he was subjected to a sleep deprivation regime during which he was moved to different cells 112 times over a 14-day period -- an average of every 2 1/2 hours. It was called the frequent flier program.

As a juvenile, Jawad should have been treated with care, held separately from the adult population and provided educational and other rehabilitation services. Instead, he was placed in isolation and deprived of sleep. More than once he tried to commit suicide, according to detainee records.

Eventually I learned of evidence from field reports suggesting that he was innocent. The reports indicated that he had been recruited by terrorists who drugged him and lied to him, and that others had probably perpetrated the offenses with which he was being charged. It took me a long time to obtain this evidence. I had sought it repeatedly, and military investigators had repeatedly denied me access to it. Only after long delays and many, many requests was it finally given to me, because even after nearly seven years, the military commissions do not have a system in place for discovering exculpatory evidence or providing it to the defense.

I tried to negotiate an agreement to have Jawad rehabilitated and sent back to Afghanistan, where he could be reunited with his family. It was clear to me that he should not have been imprisoned any longer. But the chief prosecutor dismissed that idea out of hand.

I wasn't able to discuss any of the cases I was working on with family or friends because most of the information I was working with was classified. As I sank deeper and deeper into despair, I turned to a Jesuit priest who has written and spoken widely about justice, Father John Dear. I could not give Father John much detail, but he understood my plight immediately. "Quit Gitmo," he said without hesitation. "The whole world knows it is a farce. Refuse to cooperate with evil, and start your life over."

I knew Father John was right, but I was afraid. I was afraid of losing friends, my job, whatever popularity I enjoyed and my status as someone who was well thought of in this community. But with Father John's help, and with the unlikely support of Jawad's relentless defense counsel -- a scorned adversary whose integrity and intelligence transformed him into a trusted friend -- I finally resigned in September.

Later that month, I made my final appearance before the military commissions at Guantanamo, not as a gung-ho prosecutor, but as a reluctant but determined witness for the defense. My testimony was a confession of sorts, an acknowledgment of the error of my own ways as well as a candid admission of the shortcomings of the system that I had so enthusiastically supported.

Now that I'm home in Erie, far removed from Guantanamo, I have regained my sense of self. I am ashamed that it took me so long to recognize the stain of Guantanamo, not simply on America's standing in the world, but as part, now, of a history we cannot undo. We have kept human beings in solitary confinement for as long as seven years, even though they have never been charged with any crime. In other places, we have beaten hooded, shackled prisoners, at least two of whom died as a result.

There is a way out of Guantanamo. It is not as difficult as some apologists have made it seem. Many of the detainees have not committed war crimes and the handful of real terrorists and war criminals can be tried in federal court. The Department of Justice has a well-developed expertise in these cases and can achieve justice with transparency and rigorous due process.

Although some have called for a new national security court to prosecute terrorist suspects, this should be squarely rejected. If we've learned anything from Guantanamo, it's that it is hard to create an entirely new system of justice from scratch. A special court would inevitably be subject to criticism and legal challenge, only further delaying the day when the terrorists are brought to justice.

For the detainees who have not committed any crime, we must begin an immediate and intensive program of rehabilitation that will allow them to reintegrate into the societies from which they were removed on the flimsiest of legal bases.

President-elect Barack Obama should waste no time pursuing these modest ends. He should start by appointing a civilian with full authority, competence and expertise to review detainee files and determine who can be prosecuted and who should be released, and her or his determination should be final.

No one who has fought for our country and its values has done so to enable what happened in Guantanamo. We did not sacrifice so that an administration of partisan civilians, abetted by military officers who seemed to have lost their moral compass, could defile our Constitution and misuse the rule of law. For a few dark years, it was "legal" to mistreat fellow human beings. Now, some of that treatment has been called "torture" by Susan Crawford, the convening authority of military commissions.

I just hope no one will see that kind of abuse -- and look the other way -- again.

Vandeveld@yahoo.com

Darrel J. Vandeveld, a former lieutenant colonel in the Army Reserve, resigned as a prosecutor in the Office of the Military Commissions in September.

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