On Thursday, I reported how retired Rear Adm. John D. Hutson, judge advocate general of the U.S. Navy from 1997 to 2000, had delivered compelling testimony to a Senate Armed Services Committee hearing on “legal issues regarding military commissions and the trial of detainees for violations of the law of war,” explaining why the only valid forum for trials of suspected terrorists at Guantánamo Bay is the U.S. federal court system.
The lucidity and directness of Hutson’s testimony was in marked contrast to the amendments to the existing military commissions system – and terrifying asides about the use of “preventive detention” – that were proposed by Jeh Johnson, the Defense Department’s general counsel, and David Kris, the assistant attorney general in the Justice Department’s National Security Division, in response to legislation already prepared by the committee, which, it seems, will be presented to the Senate in the imminent future, even though it still allows (subject to certain restrictions) the use of information – I hesitate to use the word “evidence” – obtained through coercion and other information that is nothing more than hearsay.
The day after Hutson delivered his testimony, the Constitution, Civil Rights, and Civil Liberties Subcommittee of the House Committee on the Judiciary held a hearing on “Legal Issues Surrounding the Military Commissions System,” in which Lt. Col. Darrel Vandeveld of the U.S. Reserves, a former prosecutor in the military commissions, delivered what should, I believe, be the final word on the unsuitability of military commissions as a valid trial system [.pdf].
Vandeveld, who served in Bosnia, Africa, Iraq, and Afghanistan before volunteering for Guantánamo, and who has been decorated on several occasions, sent shockwaves through the commissions system under the Bush administration when he spectacularly resigned last September, declaring, “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.” He added that the “incomplete or unreliable” discovery process “deprive[s] the accused of basic due process and subject[s] the well-intentioned prosecutor to claims of ethical misconduct.”
The particular trigger for the dissatisfaction that led him to tell the committee about “the mistaken proposals to revise and revive the irretrievably flawed military commissions at Guantánamo Bay” and that turned him from, as he described it, a “true believer to someone who felt truly deceived,” was the incompetence and obstruction he encountered as he tried to build a case against Mohamed Jawad, an Afghan prisoner accused of throwing a grenade that injured two U.S. soldiers and an Afghan translator in December 2002. It was this journey to the “dark side” that he reprised for the committee on Wednesday to such devastating effect.
How Vandeveld Came to Oppose to the Military Commissions
Telling the committee that he had not always been “skeptical about the capacity of military commissions to deliver justice,” Vandeveld admitted that, at the beginning of his assignment at Guantánamo, when Jawad “told the court that he was only 16 at the time of his arrest, and that he had been subjected to horrible abuse, I accused him of exaggerating and ridiculed his story as ‘idiotic.'” He added, “I did not believe that he was a juvenile, and I railed against Jawad’s military defense attorney, whom I suspected of being a terrorist sympathizer.”
Vandeveld explained that, initially, the case against Jawad “seemed uncomplicated,” because he had “confessed to his role in the attack on a videotape recorded by U.S. personnel,” and, as a result, the case “seemed likely to produce a quick, clean conviction, and an unmarred early victory for the prosecution, vindicating the concept” of the commissions.
As he “delved deeper into Jawad’s case file,” however, he “soon discovered a number of disturbing anomalies.” Vandeveld explained that when he “attempted to bring these anomalies to the attention of my supervisors, they were harshly dismissive of my concerns and actually, on some unspoken level, began to question my loyalty, even though my combat experience exceeded both theirs combined.” He continued:
"I began to realize that the problems with Jawad’s case were symptomatic of the military commissions regime as a whole. Indeed, if any case was likely to be free of such anomalies, it should have been that of Mr. Jawad, whose alleged crime was as straightforward as any on the prosecutor’s docket. Instead, gathering the evidence against Mr. Jawad was like looking into Pandora’s Box: I uncovered a confession obtained through torture, two suicide attempts by the accused, abusive interrogations, the withholding of exculpatory evidence from the defense, judicial incompetence, and ugly attempts to cover up the failures of an irretrievably broken system.
"Evidence from U.S. Army criminal investigators showed that Jawad had been hooded, slapped repeatedly across the face and then thrown down at least one flight of stairs while in U.S. custody in Afghanistan. Detainee records show that once at Guantánamo, he was subjected to a sleep deprivation regime, known as the ‘frequent flier program,’ during which he was moved to different cells 112 times over a 14-day period – an average of once every two and a half hours – and that he had tried to commit suicide by banging his head repeatedly against a wall. Evidence from a bone scan showed that he was, in fact, a juvenile when he was initially taken into U.S. custody. Field reports, and examinations by U.S. personnel in the hours after Jawad had been apprehended, indicated that he had been recruited by terrorists who drugged him and lied to him, and that he probably hadn’t committed the crime for which he was being charged. In fact, the military had obtained confessions from at least two other individuals for the same crime."
As a result, Vandeveld explained, he “came to realize that Mr. Jawad had probably been telling the truth to the court from the very beginning,” but when his subsequent attempts to secure a plea bargain that would allow Jawad to be repatriated fell on deaf ears, he made the “enormously painful decision to ask to be reassigned from the commissions.” As he explained, “I simply could not in good conscience continue to work for an ad-hoc, hastily created apparatus – as opposed to the military itself – whose evident resort to expediency and ethical compromise were so contrary to my own and to those the Army has enshrined and preached since I enlisted so many years ago.”
Vandeveld Condemns the Commissions
Vandeveld’s personal experience of incompetence and obstruction in the case of Mohamed Jawad is shocking for two reasons: first, because, although a military judge threw out the only supposed evidence against Jawad in October and November last year, ruling that two confessions obtained on the day of his arrest in Afghan and U.S. custody were the result of torture, and although Vandeveld delivered a more expansive explanation of why there was no case against him in a submission accompanying his habeas corpus petition in January, the Obama administration has not followed Vandeveld’s advice about repatriating Jawad, and the Justice Department has refused to drop the case.
Just last week, this inexplicable obstinacy on the part of the DOJ led his civilian lawyers at the ACLU to lodge a petition urging the judge to throw out information extracted during 57 subsequent interrogations, which was aptly described by one of his lawyers, Jonathan Hafetz, as confirmation of the government’s “continued reliance on evidence gained by torture and other abuse,” which “violates centuries of U.S. law and suggests the current administration is not really serious about breaking with the past.”
However, while this is certainly a painful example of the Obama administration’s insistence on pursuing worthless and embarrassing cases that seem only to confirm a dogged determination to defend the colossal errors made by the Bush administration (as I also explained here and here), Vandeveld’s experience of Jawad’s case enabled him to confirm to the committee not just that one particular case was tainted by incompetence and obstruction, but that the entire system is irredeemably flawed and cannot be repaired by changing a few of the rules. As he explained in his statement:
"I am here today to offer a single, straightforward message: the military commission system is broken beyond repair. Even good faith efforts at revision, such as legislation recently passed by the Senate Armed Services Committee, leave in place provisions that are illegal and unconstitutional, undermine defendants’ basic fair trial rights, create unacceptable risks of wrongful prosecution, place our men and women in uniform at risk of unfair prosecution by other nations abroad, harm the reputation of the United States, invite time consuming litigation before federal courts, and, most importantly, undermine the fundamental values of justice and liberty upon which this great country was founded."
He added, crucially, “The military commissions cannot be fixed, because their very creation – and the only reason to prefer military commissions over federal criminal courts for the Guantánamo detainees – can now be clearly seen as an artifice, a contrivance, to try to obtain prosecutions based on evidence that would not be admissible in any civilian or military prosecution anywhere in our nation.” This was similar to Adm. Hutson’s observation that “You can’t have a legitimate court unless you are willing to risk an acquittal. If you aren’t willing to accept the possibility that a jury will acquit the accused based on the evidence fairly presented, then it isn’t really a court. It’s a charade.” However, Vandeveld then proceeded to provide three concrete examples of institutional problems, “each of which I witnessed during my time at Guantánamo and which would remain problematic under the present proposal”:
- “the rules of admissibility of evidence, including the relaxation of restrictions on the admissibility of evidence obtained through coercion and hearsay”
- “the gathering and handling of evidence, including legal and institutional restrictions on the disclosure of sensitive or classified evidence to the defense”
- “institutional deficiencies, including the insufficient experience and qualifications of both judges and counsel, and the inadequate provision of resources to the defense”
The Problems With Coercion and Hearsay
After stating that each of these shortcomings “will prove persistent even in the face of the most ardent, well-meaning legislative repackaging,” Vandeveld attacked the Senate Committee’s proposal to “continue to allow into evidence statements obtained through coercion.” The wording of the legislation (see Section 1031) stipulates that “A statement in which the degree of coercion is disputed may be admissible in a trial by military commission … only if the military judge finds that (1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; (2) the interests of justice would best be served by admission of the statement into evidence; and (3) the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment prohibited by section 1003 of the Detainee Treatment Act of 2005."
For Vandeveld, however, this remained unacceptable, and he stated, bluntly, “The impetus for this rule is obvious. The sad reality is that virtually every detainee – Mohamed Jawad is a salient example – has been subjected to torture and abuse repeatedly. Many of them are mentally ill as a result, some profoundly so.”
In addition, after noting that the prohibition on the use of coerced statements exists because of “moral repugnance” and because they are “unreliable,” Vandeveld noted that, although in some cases, including those of the “high-value detainees,” coerced statements “may be corroborated by evidence that would be admissible,” for many other prisoners the decision to proceed with coerced statements is desperately unsound:
"Disallowing evidence obtained through coercion would result in the evisceration of many of the cases that might otherwise, on the most tenuous of theories, have been prosecuted. Instead of recognizing this sad reality and resettling or repatriating those prisoners against whom the government has insufficient and tainted evidence, the present legislation, in effect, opts to continue the charade."
For similar reasons, Vandeveld then dismissed the use of information obtained through hearsay, disputing Sen. Carl Levin’s explanation during the Senate committee hearing on Tuesday that the committee’s revisions ought to be acceptable because they were designed to “eliminate the extraordinary language in the existing law which places the burden on detainees to prove that hearsay evidence introduced against them is not reliable and probative.”
He also took exception to President Obama’s claims that the use of hearsay “would be consistent with international standards, such as those employed in international criminal tribunals,” because, he said, the president’s opinion failed to take into account that judges in those cases are “qualified to consider hearsay and determine its value,” whereas the “lay jurors” in the commissions – whose role would essentially be the same in any system revised by Obama – are not.
The Problems With the Gathering and Handling of Evidence
Moving on to the “gathering and handling of evidence,” Vandeveld noted that the commissions suffered from “enormous problems,” primarily because, unlike “the investigations and case files assembled by military or civilian police agencies and prosecution offices,” the commissions had – and will continue to have – “no central repository for case files, no method for cataloguing and storing physical evidence, nor any other system for assembling a potential case into a readily intelligible format that is the sine qua non of a successful prosecution.”
This is damning enough, but, citing his experience with Jawad, Vandeveld also explained why the case files were so chaotic. “The obvious reason behind the shoddy preparation of evidence against Mr. Jawad,” he said, “is that it was not gathered in anticipation of any semblance of a ‘real’ trial.” He added:
"With the government setting an extremely low evidentiary bar for continued detention without charge, with the focus on extracting information through coercive interrogations rather than on prosecution, and with the understanding that any trials will forego fundamental due process protections, there is little incentive for investigators to engage in the type of careful, systematic gathering of evidence that one would find in a typical civilian trial."
Allied to this particular problem, which, it is clear, can only be addressed adequately by dropping cases in which “the government has insufficient and tainted evidence” and putting the rest into federal courts, where this type of systemic evasion will be impossible, are what Vandeveld referred to as “the excessive restrictions on the disclosure of classified or sensitive evidence to defense counsel.”
This, again, is clearly part of the very architecture of the commissions, designed, in an essentially lawless manner, to prevent any obstacles to prosecution, and as Vandeveld spelled out, in practice the almost obsessive focus on secrecy serves only to discredit the entire process. Unmoved by Sen. Levin’s unsubstantiated claim that the committee’s revisions will “eliminate the unique procedures and requirements which have hampered the ability of defense teams to obtain information and led to so much litigation,” Vandeveld described a process in which secrecy (to the detriment of the defense) was absolutely central, and he made it clear that he found it inconceivable that the necessary changes were even remotely feasible.
“Over-classification and protective orders can make it almost impossible for defense attorneys to formulate a viable case,” he said, adding that, although there was “no reason” to deny attorneys access to this information, because they “can and should be trusted not to share such information with their clients as the law requires,” the endemic focus on secrecy meant, in reality, that “names of potential defense witnesses are routinely redacted from discovery materials, and protective orders hinder the defense’s ability to ascertain such witnesses’ identities through its own investigation.”
Beyond the chaos that makes it “nigh impossible for prosecutors to comply with the discovery obligations mandated by their rules of professional conduct,” Vandeveld also identified numerous other “institutional deficiencies” with the commissions, which as he stated, “undermine the pursuit of justice and have created a kind of ‘circus’ atmosphere at GTMO.” These include the lack of experience of the military judges (even though many of them displayed a “remarkable independence” and refused to “serve as little more than an ‘amen chorus,’ witlessly endorsing every pronouncement, however thin, false, or ill-conceived,” that was put forward by the prosecution) and the inadequate provision of resources to the defense.
Although he was “pleased to see” that the Senate committee referred to a call from the Office of the Chief of Defense Counsel at the commissions for more resources to defense counsel, including bringing to an end the patently biased practice of allowing the prosecution to have “input on defense resources,” he insisted that, for these particular reforms to meet necessary standards, they “cannot be simply recommended, they must be mandatory.”
In a neat conclusion, Vandeveld asked the committee to consider how they would react to “the kind of role reversal that senior military officers routinely consider”:
"Imagine that U.S. soldiers captured on the battlefield were, today, being subjected to the type of trial proceedings that we plan to set up through these military commissions. Imagine that our service members had been tortured or abused, and that the commissions hearing their cases allowed into evidence statements obtained through coercion. Imagine that defense counsel were thoroughly under-resourced and prohibited even from viewing information critical to their cases, and that exculpatory evidence was hidden. Imagine that the evidence against our soldiers was so weak, and had been gathered in such a shoddy and disorganized manner, that the commissions allowed hearsay into evidence – to be analyzed not by professional judges but by lay jurors – just to ‘make sure’ that any and all prosecutions were successful. How would out government react to such trials? I imagine the uproar would be close to deafening."
Vandeveld added that “even the well-intentioned changes made to the military commissions by the Senate Armed Services Committee legislation will create a real risk that, in future, American men and women in uniform will be subject to a farcical trial of this nature,” and, in his final words, emphasized the only just manner in which to proceed:
"We do not need military commissions. They are broken and beyond repair. We do not need indefinite detention, and we do not need a new system of ‘national security courts.’ Instead, we should try those whose guilt we can prove while observing ‘the judicial guarantees which are recognized as indispensable by civilized peoples’ – in other words, using those long-standing rules of due process required by Article III courts and military courts-martial – and resettle or repatriate those whom we cannot. That is the only solution that is consistent with American values and American law."
Sadly, Vandeveld’s unparalleled dissection and repudiation of key deficiencies at the heart of the commission system – which, as he correctly observed, are without doubt immune to the kind of cosmetic changes endorsed by the Defense Department, the Justice Department, and the Senate committee – already appears to be a mere footnote of dissent in the revival of the commissions.
As Vandeveld explained to me in an e-mail on Thursday, although he cannot fundamentally understand why Obama is determined to go forward with the commissions, a plausible theory was put forward during the committee meeting: namely, that “the president has too many issues he’s concerned with, and has to rely on his advisers to advise him correctly. Of course, these advisers all come from the National Security Division of the Department of Justice, most of them holdovers from the prior administration, so I suppose their recommendations were and are predictable.”
I received a more withering analysis from someone else who intimately understands the irremediable deficiencies of the commissions, a former senior official who was involved in the novel trial system for many years, who explained to me that, although he was certain when Barack Obama was elected that we were seeing the final days of both Guantánamo and the commissions, it was “disappointing, to put it mildly, that despite being promised ‘change we can believe in,’ we’re getting more of the same old Bush-Cheney policies when it comes to national security.”
Expanding on Vandeveld’s concerns about “holdovers” from the Bush administration, the former senior official explained that it was no surprise that Bush-era policies were still being pursued, because Robert Gates is still running the Defense Department; Susan Crawford, a close friend of Dick Cheney and his chief of staff, David Addington, is still in place as the commissions’ convening authority, responsible for deciding who should be put forward for trial; Brig. Gen. Thom Hartmann, her discredited legal adviser, continues to orchestrate the commissions; George Toscas is still serving as the senior Justice Department attorney on matters of national security; and Capt. John Murphy, the new chief prosecutor, has “taken off his Justice Department suit and put on a Navy uniform, giving DOJ control over the prosecution.”
In a sentence that sums up the increasing sense of disillusion felt by those who expected Barack Obama to work closely with those who resisted the grossest iniquities of the Bush administration, the senior official also noted that it was disappointing that Justice Department and Defense Department officials who stood up to Bush and Cheney and were ostracized for their integrity continue to be ostracized by Obama.
In conclusion, I can only agree wholeheartedly and add my own disappointment that those of us who spent long years pointing out the horrors of the Bush administration’s policies and waiting for the demise of that particular cabal in the expectation that America would once more respect its role as a nation founded on the rule of law are still obliged to struggle to have our voices heard, even though what is at stake – repairing the damage wrought by the Bush administration and ensuring that the handful of genuine terror suspects at Guantánamo are tried in a forum that will meet internationally recognized standards – is of critical importance.