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January 25, 2009
By: Hilzoy

There Are No Files, Part 2

This morning, I read this declaration in a GTMO case (pdf). It's very much worth reading: the author, LTC Darrel Vandeveld, is a member of the Reserve JAG Corps who has served in Iraq and Afghanistan. He was the lead prosecutor against a detainee, Mohammed Jawad, until he resigned last September. After spending over a year on the case, he became convinced that the government had no good case against Jawad, that Jawad had been badly mistreated and was suffering serious psychological harm, and that continuing to hold him was "something beyond a travesty." (p. 1) That's why he wrote the declaration in question, in support of Jawad's habeas petition.

Jawad was between fifteen and seventeen when we took him into custody. That was more than six years ago.

I wasn't reading this because I thought it might have something to do with last night's post on files. Imagine my surprise, then, when I found the following, on p. 3 (note: OMC-P is "Office of Military Commissions -- Prosecutions"; CITF is "Criminal Investigative Task Force"):

"7. It is important to understand that the "case files" compiled at OMC-P or developed by CITF are nothing like the investigation and case files assembled by civilian police agencies and prosecution offices, which typically follow a standardized format, include initial reports of investigation, subsequent reports compiled by investigators, and the like. Similarly, neither OMC-P nor CITF maintained any central repository for case files, any method for cataloguing and storing physical evidence, or any other system for assembling a potential case into a readily intelligible format that is the sine qua non of a successful prosecution. While no experienced prosecutor, much less one who had performed his or her duties in the fog of war, would expect that potential war crimes would be presented, at least initially, in "tidy little packages," at the time I inherited the Jawad case, Mr. Jawad had been in U.S. custody for approximately five years. It seemed reasonable to expect at the very least that after such a lengthy period of time, all available evidence would have been collected, catalogued, systemized, and evaluated thoroughly -- particularly since the suspect had been imprisoned throughout the entire time the case should have been undergoing preparation.

8. Instead, to the shock of my professional sensibilities, I discovered that the evidence, such as it was, remained scattered throughout an incomprehensible labyrinth of databases primarily under the control of CITF, or strewn throughout the prosecution offices in desk drawers, bookcases packed with vaguely-labeled plastic containers, or even simply piled on the tops of desks vacated by prosecutors who had departed the Commissions for other assignments. I further discovered that most physical evidence that had been collected had either disappeared or had been stored in locations that no one with any tenure at, or institutional knowledge of, the Commissions could identify with any degree of specificity or certainty. The state of disarray was so extensive that I later learned, as described below, that crucial physical evidence and other documents relevant to both the prosecution and the defense had been tossed into a locker located at Guantanamo and promptly forgotten. Although it took me a number of months -- so extensive was the lack of any discernable organization, and so difficult was it for me to accept that the US military could have failed so miserably in six years of effort -- I began to entertain my first, developing doubts about the propriety of attempting to prosecute Mr. Jawad without any assurance that through the exercise of due diligence I could collect and organize the evidence in a manner that would meet our common professional obligations."

Its description of the lack of GTMO case files is not even close to being the most important part of this declaration, which is worth reading in its entirety (it's only 14 pages long, and quite well-written.) It just makes me angry when an anonymous "former senior official" can say that when the Obama administration claims that there are no case files, it is just "'backpedaling and trying to buy time' by blaming its predecessor." That "former senior official" is counting on the fact that most people have no idea whether there are case files on GTMO detainees, and thus no idea who is telling the truth. So s/he thinks that s/he can say anything, and who's to say that s/he's wrong?

That makes me angry. Not nearly as angry a lot of other things about this case, some of which I've put below the fold, but it's the only one I can do something about.

More things that make me angry: (pdf)

"As early as November 2003, Joint Task Force-GTMO ("JTF-GTMO") personnel used sleep deprivation to disorient specific detainees for intelligence purposes. Pursuant to this technique, euphemistically referred to as the "frequent flyer" program, a detainee would be repeatedly moved from one cell to another in quick intervals, throughout the day and night, to disrupt sleep cycles.

48. Military records show that Mohammed was subjected to the "frequent flyer" program from May 7 to May 20, 2004. Over that fourteen-day period, Mohammed was forcibly moved from cell to cell 112 times, on an average of about once every three hours, and prevented from sleeping. Mohammed's medical records indicate that significant health effects he suffered during this time include blood in his urine, bodily pain, and a weight loss of 10% from April 2004 to May 2004."

Likewise, this account (pdf) of the "confession", obtained under torture, that the government described as "central" to its case against Jawad:

"During the interrogation, Mohammed allegedly made incriminating statements and a document, purporting to be a confession, was prepared for him to "sign" with his thumbprint. Mohammed did not know what the document was, did not read it, and was told he needed to put his thumb print on it to be released.

25. The written statement allegedly containing Mohammed's confession and thumbprint is in Farsi. Mohammed does not read, write, or speak Farsi. There are several factual assertions in the statement that are false, including Mohammed's name, his father's name, his grandfather's name, his uncle's name, his residence, his current residence, his age, and an assertion that he speaks English. The statement's account of the grenade attack -- the responsibility for which the statement ascribes solely to Mohammed -- conflicts with the eyewitness accounts of the American victims. Yet, it was this statement that Respondents and their agents primarily relied on as a basis for Mohammed’s detention, and for the charges brought against him in the Guantanamo Military Commissions.

Or this account (pdf) of Jawad's treatment while in US custody at Bagram:

"At approximately the same time, by sheer happenstance, I stumbled across a summary of an interview, taken by an Army Criminal Investigation Division Special Agent from Mr. Jawad himself, which had been added to the record of trial in a case where a guard at Bagram prison had been charged with the murder of a detainee. The statement -- essentially a recitation of Mr. Jawad’s account -- indicated that Mr. Jawad had experienced extensive abuse while at Bagram prison from December 18, 2002 to early February 2003. This abuse included the slapping of Mr. Jawad across the face while Mr. Jawad’s head was covered with a hood, as well as Mr. Jawad’s having been shoved down a stairwell while both hooded and shackled. I immediately provided the statement to the defense. The interviewer, a veteran Army CID agent, later testified as a defense witness at an August hearing in the Jawad case that Mr. Jawad's statement was completely consistent with the statements of other prisoners held at Bagram at the time, and, more importantly, that dozens of the guards had admitted to abusing the prisoners in exactly the way described by Jawad. My cross‐examination, which I quickly ended, only served to reinforce the agent's testimony on direct."

Hilzoy 11:26 AM Permalink | Trackbacks | Comments (32)

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Ugh. Thanks for reading through this and posting about it.And thanks to Mr Vandeveld for understanding what honor and duty really mean.

Posted by: shrink in sf on January 25, 2009 at 11:42 AM | PERMALINK

So this is the kind of business practice we got from the first CEO President, is it?

You know what? I'm not surprised. As an academic (one of those hopelessly ivory-tower types who don't know diddly about the real world) I've served on promotion committees, and have seen promotion dossiers put together by many different departments. You'd think something like a promotion dossier would bring out the orderly, businesslike instincts of people with MBA's, but the business school appears to hand the job over to an infinite number of monkeys at keyboards until they produce something that roughly approximates a dossier.

Posted by: T-Rex on January 25, 2009 at 11:46 AM | PERMALINK

Prosecution of terrorists involves highly classified information. It must be disseminated only on a "need to know" basis. and access to it must be compartmentalized. I'm very concerned that the new administration seems to be overlooking this and pulling all information together so that anyone can see the whole picture.

Posted by: Al on January 25, 2009 at 11:58 AM | PERMALINK

Excuse me, but throwing papers, interviews, evidence hither and yon does NOT count as being compartmentalized. It counts as total ineptness. And it should be obvious to anyone that the information in question cannot at all be characterized as "highly classified" or "on a need to know" basis. To raise a totally irrelevant excuse for this travesty of American values is obscene. And to suggest that it should be continued is worse.

Posted by: Texas Aggie on January 25, 2009 at 12:08 PM | PERMALINK

Fortunately, 53% of the country cares.

The other 47% will believe the "former senior official" - regardless of the facts!

Posted by: Mark-NC on January 25, 2009 at 12:18 PM | PERMALINK

I'm very concerned that the new administration seems to be overlooking this and pulling all information together so that anyone can see the whole picture.

I take it you're against anyone knowing the whole picture. It would be absurd to conclude that bringing the stuff together necessarily makes it available to all.

Posted by: Danp on January 25, 2009 at 12:35 PM | PERMALINK

Posted by: Steve W. on January 25, 2009 at 12:37 PM | PERMALINK

"...pulling all information together so that anyone can see the whole picture" is what Al and his friends have feared from the start. Remember, the truth shall set us free. Well, maybe not you, Al.

Posted by: Rachel on January 25, 2009 at 12:37 PM | PERMALINK

Ummm...let's try this one again, shall we?

Excuse me, but throwing papers, interviews, evidence hither and yon does NOT count as being compartmentalized. It counts as total ineptness.

This is not "ineptness"; rather, it reeks of an intentional effort to both obstruct justice and tamper with evidence---both prosecutable felonies under UCMJ, and might be considered "war crimes."

Posted by: Steve W. on January 25, 2009 at 12:42 PM | PERMALINK

Thanks phony Al--you crack me up. But after 8 years of the last administration, you'll have to be way more over-the-top for readers of this site to catch the parody.

Posted by: WSP on January 25, 2009 at 12:50 PM | PERMALINK

"The foolish reject what they see, and cling to what they believe; the wise reject what they believe, and cling to what they see."

Zen koan

Posted by: CN on January 25, 2009 at 12:51 PM | PERMALINK

From his politicizing the DoJ to his turning the military justice system into a giant kangaroo court, to spying on citizens via the telephone companies (as it turns out, it was ALL domestic communications as well as international), Mr Bush showed his disdain for the law. He never had the brains or the sense of discipline it took to get through law school (hard to believe that even Alberto Gonzales was smarter than Bush), and resented the hard work of others to achieve their credentials as it was well understood publicly that he himself never achieved anything. Any educational or business advantage was a direct result of his family name, especially his father's network of contemporaries.

In the early days of his ruinous presidency, he often joked about how so many people with impressive academic and professional credentials worked for him, a lowly MBA with a 'C' average. His disdain for those who achieved where he could not, carried over into a disdain for any field that required a high level of professional behavior and ethics.

No, it was clear then, and is especially clear now that Bush had no respect for the law, and no understanding of its importance in our society (he is truly a sociopath)civilian or military.

From the DoJ to Gitmo (oh, remember the task force to rebuild Iraq, too?), the idealogue rank amateurs handling the cases with the goal of "working at the president's pleasure" are going to be found to have botched up the cases, one after the other.

That man destroyed so much. Good riddance to bad rubbish.

Posted by: jcricket on January 25, 2009 at 1:30 PM | PERMALINK

Keep watching. They put the country in the ditch, now they're trusting the workers to pull it out again.

Notice we're hearing the words "social contract" again? That was big in the 1950s, used to tell the returned veterans they'd contributed to society by going to war -- those who did come back.

Then for decades the words disappeared from the media, and all we heard was "Free market!"

Now the country's in the weeds again.

Time for the workers and minorities to come do the grunt work to get it back on the pavement.

Then to hell with'em, leave'em behind.

Posted by: me on January 25, 2009 at 1:35 PM | PERMALINK

Unfortunately, GWB will get away with all the malicious damage he has done, just like he always has. He understands that if you go to far over the top and get away with it that the system will cover for you because the system can't reveal itself to be a sham. He is a sick man in a sick system. It is a reminder of the banality of evil.

Posted by: Always Hopeful on January 25, 2009 at 1:46 PM | PERMALINK

Paragraph 8 of LTC Abraham's declaration from 2007 indicates much the same.

Posted by: AA on January 25, 2009 at 1:55 PM | PERMALINK

One bit of historical comparison: the British did many of the same things to the Irish they picked up in the course of their war with the IRA that we have been doing at Baghram and Guantanamo and who knows how many other sites around the world. The rot extended just as far or possibly even farther up the justice system in that case as well, as anyone who saw the somewhat fictionalized account of the Guildford Four in "In the Name of the Father." Or has read about the Birmingham Six or the Maguires, likewise imprisoned on falsified evidence, Or has looked into the techniques used at Long Kesh.

It's a potent combination: the war on terror as applied to helpless individuals in custody, particularly those regarded as less than human. What remains to be seen--if transparency produces any real disclosures--is how deeply the rot penetrated the DoD and the DoJ. If the British experience is any guide, expect the worst.

We'd probably see the same pattern if we looked at the French record in Algeria. Someone else will have to cover that point.

Posted by: Henry on January 25, 2009 at 2:24 PM | PERMALINK

The issue of the files, or lack thereof, is disturbing enough, but what I found most disturbing in LTC Vandeveld's declaration was the denunciation at the end, paragraph 28 at page 13, where he complained of "the civilians who de facto run the Commissions" and "could not accept the poverty of their legal arguments.." In footnote #6 he refers to them as "dim ideologues". This begins to tie the failure of the military commissions in with the disasters that were befalling the DOJ during this same period. The Bush administration seems to have attempted to bend every conceivable branch of government to their political will denying that there could be any justice without ideological purity. That, in the end, will be the worst crime of the Bush administration.

Posted by: majun on January 25, 2009 at 2:40 PM | PERMALINK

Absolutely right, Hilzoy. Very much worth the time it took.

Wow, what an unbelievable read! One would be tempted to call the Lt. Col's actions heroic, if it didn't seem as if these should be the minimum standards of decency and honesty in prosecutors, civilian and military.

Thank you for bringing this to our attention.

Posted by: Shantyhag on January 25, 2009 at 2:43 PM | PERMALINK

"Ineptness", etc. Somehow this doesn't seem exactly right. This ranks as deep unseriousness about our shared human nature that crosses the line right into evil. You'd be fired at the Humane Society for messing up the records on a stray mutt as badly as these people abused their charge to render just treatment to this young man. I want these people in the dock with smart prosecutors making their lives as miserable as possible. And then I want them in jail. For a long time.

Posted by: jhill on January 25, 2009 at 3:06 PM | PERMALINK

What's hard for a lot of people to wrap their brains around is that Vandeveld is a prosecutor. Prosecutors are trained to give no unnecessary quarter to the defense; I've met some who were quite certain that their defendants were guilty long after not only acquittals but dismissals (e.g. on the grounds that the alleged behavior was not a crime).

For a prosecutor to be saying thing like this, the situation has to be bad beyond the comprehension of mere ordinary people.

Posted by: paul on January 25, 2009 at 3:18 PM | PERMALINK

To Shantyhag--

On whether he qualifies as a hero, I'll take Romain Rolland's definition: "A hero is one who does what he can. The others dont."

Posted by: Henry on January 25, 2009 at 4:41 PM | PERMALINK

For a prosecutor to be saying thing like this, the situation has to be bad beyond the comprehension of mere ordinary people.

That is what I would pick up from it too. I feel badly for Obama in this sense. He is dynamic, polished, articulate, happens to be a politician talented with language, and he has to clean up this deplorable state of affairs. I do not like the Islamic 8th century morality that Bin Laden and co. exploit to great effect, or did, but I cannot defend Bush's Banana Republic mentality that a fun guy like Hitchens is always harping on. Perhaps it is also a reflection of American malaise and decline, and stupidity with a chip on its shoulder.

I console myself by saying maybe I should just pack and go to Italy, but then again, the function of Italian jurisprudence would be about at the level of Gonzo's comfort zone. Reading this blog makes me very despondent, among other things.

Posted by: Jozanny on January 25, 2009 at 5:04 PM | PERMALINK

I noticed the pushback on the move to close Guantanamo earlier this week, including the story about the released individual who went to Yemen to become an al Qaeda operative.

Here's an MSNBC slide show giving Gitmo the slick treatment. No problems here...we even have a "comfy chair" (slide 16).

We are seeing two absolutely different versions of what is purported to be the "truth." Who's telling the truth? Who stands to benefit the most?

Posted by: JayDenver on January 25, 2009 at 5:08 PM | PERMALINK

You know, Republicans aren't responsible for anything.

That's the whole point of being a Republican, and losing all the files or not even having any in the first place.

It's just like when they piously tell everyone they'll have to learn to make do with less while they gild the toilet paper.

Posted by: alan on January 25, 2009 at 6:01 PM | PERMALINK

They were experimenting on these prisoners...practicing torture techniques. Nothing claimed against these subjects was deserving of this type of treatment..These were callous sadistic psychopaths who cannot justify these actions by claiming they were only following orders.

Conyers is not wanting a real prosecution but a commission to obscure, delay and confuse the issues for years when the end result will be no prosecutions. He's a coward unwilling to do what was right at the time saying they would do nothing until they could prove Bush/Cheney was guilty which stopped the investigations from happening. Only a coward refuses to fight until it is proven beforehand that he will win.

We need a special prosecutor because we already know they are all guilty. We should already be at the punishment phase not the discovery phase. Look at what these bastards have done...it was a torture regime without the common decency to even care if they were torturing the right people.

We should be arresting people. Issue some subpoenas and arrest warrants Conyers or will that too "distract from policy making".

Yes we can...no "we" can't but we elected you so that "you" can issue the orders so "we" can have them prosecuted for the horrendous crimes they've committed without our consent or knoweledge.

"I have issued the following arrest warrants for war crimes to:" (fill in the list)

Posted by: No excuse on January 25, 2009 at 6:43 PM | PERMALINK

The difference between Bush and Obama is likely to be the fact that defects in evidence favor the detainee. The main point of the Bush commissions was to transfer the burden of proof to the detainees, and give them zero resources to meet that burden.

Posted by: tomj on January 25, 2009 at 10:02 PM | PERMALINK

Do you suppose the "former senior official" has a name that rhymes with Bic Laney? Or would that be a "recently former" senior official?

Posted by: biggerbox on January 25, 2009 at 10:02 PM | PERMALINK

I'm thinking of the conversation that was reported back in the spring where an officer asked what would happen if a detainee were acquitted, and the officer in charge of the tribunals said "that won't happen."

It's another example of "they knew they were right." They didn't care about evidence or justice, because they were already sure these were "the worst of the worst" (except for the ones they released.) They were only interested in a process that would produce convictions, preferably before the election, not one that would evaluate the evidence.

Posted by: Redshift on January 25, 2009 at 10:18 PM | PERMALINK

I noticed the pushback on the move to close Guantanamo earlier this week, including the story about the released individual who went to Yemen to become an al Qaeda operative.

The problem with this line of reasoning, Jay, is that Bush turned nearly the entire executive branch into one giant hack job, and Congress looked the other way, and the whiz kid who took over from Hack43 is going to pay the price for this.

Believe me, I am attracted to less government micro-managing me because I am a naughty cripple, but less intrusive government does not mean government that won't function, or government that can't function. If 43 had such contempt for the power of his office, I can't see why he wanted the job. But I also think, as a country, we are collectively guilty, and this depresses me as much as my personal circumstances do.

I used to believe being an American was a good thing, until I started following politics. Now I just basically believe we're all going to hell.

Posted by: Jozanny on January 25, 2009 at 10:33 PM | PERMALINK

Mad? That doesn't even begin to get the emotions that this horror evokes in me. What's even more astounding is the incompetence. You would think that these animals would at least try and justify their work by assembling a plausible terror prosecution case. But they couldn't even be bothered by that! I think the poster above (no excuse) is right; it's just sadistic goons experimenting on helpless prisoners. There is no other explanation. God help us all.

Posted by: LADave on January 26, 2009 at 1:49 PM | PERMALINK
It just makes me angry when an anonymous "former senior official" can say that when the Obama administration claims that there are no case files, it is just "'backpedaling and trying to buy time' by blaming its predecessor."
This whole thing - doesn't it make you think of the Bush claims that the Clinton people had trashed the White House before leaving in January 2001?

I wondered as the Inauguration was approaching what kind of mess the Bushies would leave.

Well, they did, but it wasn't in the White House.


But what disturbs me most is that this is MILITARY people, not civilian Bushies. Was the mentality THAT pervasive that it filtered down to the Adjutant General's core?

Is this part of what "Gitmo-ize" means? Holy CRAP!

Posted by: SteveGinIL on January 26, 2009 at 4:08 PM | PERMALINK


All they needed was one decent law clerk.

ONE clerk, working over 2 months, should have been able to organize things. I will allow maybe 9 months, tops - for the 245 cases remaining. For all 500 or so, give one clerk, what? 18 months?

And that is to straighten it out. If it had been done right up front, it would have been a breeze.

Are the AG corps lawyers all a bunch of Beetle Baileys?

Posted by: SteveGinIL on January 26, 2009 at 4:12 PM | PERMALINK



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