By ACLU Staff Attorney Amrit Singh. Amrit is at Guantánamo Bay this week overseeing the military commissions as a human rights observer.
Guantánamo Bay is an eerie place. With its blue skies and even bluer waters it could be mistaken for paradise. But beneath this natural beauty lurks an ugly truth — for more than seven years now, Guantánamo has been the place where the United States government has hidden its prisoners from world view with the express purpose of denying them the most basic elements of due process.
This afternoon, I attended the military commission hearing of an Afghan detainee who — between coercive interrogations and unfulfilled promises that he would be taught to read and write — has literally grown up in this prison. Mohammed Jawad was about 16 years old when he was captured in Afghanistan in late 2002. The U.S. government has held him in Guantánamo for six years, claiming that he threw a grenade at a U.S. military vehicle in Kabul in wartime, not that he is affiliated in any way with the Taliban, al Qaeda, or indeed any terrorist group. Jawad vigorously maintains his innocence, and says that he was tortured by Afghan police into a confession.
At the outset of the proceedings, Jawad’s military lawyer, Major David Frakt, informed the military judge, Colonel Peter Brownback, that although Jawad did not believe that he could get justice before the military commission, he had agreed to let Frakt represent him for the sole purpose of challenging the legitimacy and legality of the commission proceedings. Remarkably, when the judge asked government counsel if he had a response, he retorted that he had not anticipated that Jawad would make such an "idiotic request." Although that statement was subsequently withdrawn at the judge’s direction, it was emblematic of the intemperate and contemptuous tone adopted by government counsel throughout the proceedings.
Jawad’s claims of mistreatment by the government were front and center of his proceedings. Although we observers did not have access to all the details of these claims, Jawad alleged that he had been punished by the government for his reluctance to attend his previous military commission hearing. Following government counsel’s denial that such punishment had occurred, the judge said that he would give Jawad’s counsel an opportunity to submit a motion in support of his claim of past mistreatment. In a poignant moment that summed up the futility of the military commission proceedings, Jawad’s counsel asked whether the judge "had any power" to address mistreatment under the rules governing military commissions. The judge did not have a ready answer. He merely said that if punishment had indeed occurred, he "would take whatever actions [he] need[ed] to take."
Colonel Frakt also requested that Jawad be placed in a quiet restful place where he could rehabilitate, noting that Jawad feels like "he is in a graveyard when he is in his cell." He added his client’s mental state was very fragile on account of his prolonged detention and mistreatment by the government, and was unlikely to be able to assist counsel in preparing his case. Once again, the judge had no ready answers as to whether he could address the issue of Jawad’s rehabilitation, but said that he would consider a motion on that issue.
At that point, Jawad submitted that he would like to make a brief statement to the court. He said, "I want to express that I have been punished a lot. If I lie, you can punish me." He described incident after incident in which he was coercively interrogated for hours on end in sealed rooms, sometimes after being woken up from sleep at 2 a.m. and 3 a.m., subjected to bright lights for 24 hours, threatened that he would spend his whole life in Guantánamo, and falsely promised that he would be able to get out. He said, "This is the justice of the United States of America? You think this is justice? I am a human being. Why am I here, for what? . . . Why am I in prison?"
It is unlikely that Jawad will get justice through the military commission proceedings. Those proceedings — which permit the prosecution to rely on hearsay and coerced evidence and to withhold classified evidence from the accused — are a sham. Nor is there hope that the commission will recognize that under the Optional Protocol to the Convention on the Rights of the Child — which the U.S. ratified in 2002 — Jawad should never have been detained at Guantanamo, let alone subjected to military commission proceedings. Colonel Brownback recently ruled in the case of Omar Khadr — a Canadian national who was fifteen at the time of his capture by U.S. forces — that there was no bar to subjecting child soldiers to military commission proceedings.
This, apparently, is the justice of the United States of America.