President-elect Obama has been taking all of us on an emotional roller-coaster ride of late. On Sunday, he told ABC that closing the base at Guantánamo would be very difficult and probably wouldn't happen in the first 100 days of his administration. On Monday afternoon, it was leaked that the transition team is drawing up an executive order to close Gitmo the first week of the presidency. Tumultuous and gut-wrenching? Yes and yes.
On Tuesday morning, Bush administration lawyers appealed a Guantánamo military judge’s decision last October to throw out tainted evidence against Afghan national Mohammed Jawad, evidence the military judge had held was the product of torture. The government has admitted that the torture-derived evidence was the centerpiece of its prosecution.
Jawad has been tortured or abused repeatedly – first by Afghan authorities and then by U.S. personnel, both in Afghanistan and at Guantánamo. In Guantánamo, Jawad was subjected to the now-infamous "frequent-flyer" sleep-deprivation program in which detainees are kept awake and constantly moved from cell to cell. Jawad was moved 112 times in a 14-day period.
ACLU attorney Hina Shamsi attended the hearing before the U.S. Court of Military Commission Review in Washington, D.C. on the Bush administration’s appeal, and reports that the commission judges seemed offended by the government’s assertion that the Fifth Amendment does not apply to detainees in U.S. custody. “Even in the waning days of the Bush administration, government attorneys asked an American court to permit evidence derived from torture,” Shamsi said.Also on Tuesday morning, the ACLU filed a habeas corpus petition in U.S. federal court on behalf of Jawad, challenging his unlawful detention. Most notable in this filing is a statement made in support of the ACLU’s petition by Lt. Col. Darrel Vandeveld, the former lead prosecutor in Jawad’s military commission case. In September last year, Lt. Col. Vandeveld asked to be taken off the case and reassigned because he could not ethically proceed with prosecuting Jawad under the current military commission system, which he found deeply flawed and unethical. In Tuesday's filing, Vandeveld states:
[H]ad I been returned to Afghanistan or Iraq, and had I encountered Mohammed Jawad in either of those hostile lands, where two of my friends have been killed in action and another one of my very best friends in the world had been terribly wounded, I have no doubt at all—none—that Mr. Jawad would pose no threat whatsoever to me, his former prosecutor and now-repentant persecutor. Six years is long enough for a boy of sixteen to serve in virtual solitary confinement, in a distant land, for reasons he may never fully understand...Mr. Jawad should be released to resume his life in a civil society, for his sake, and for our own sense of justice and perhaps to restore a measure of our basic humanity.
Another wrinkle: Unless Obama shuts down Guantánamo and the military commissions immediately upon taking office, his administration will stumble into a major human rights crisis. A mere six days after Obama is sworn in, the military commission trial of Omar Khadr, who, like Jawad, was a teenager when he was captured and detained in U.S. custody, will begin.
If Obama allows the trial to proceed, Khadr will be the first person in recent history to be tried by any western nation for alleged war crimes committed as a child. Such a trial would be in violation of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, which the U.S. signed in 2000 and ratified in 2002.
To avoid such a human rights debacle, we urged the President-elect to drop the military commission charges against Khadr and either repatriate him to Canada or, if there is evidence to support it, to prosecute him in U.S. federal courts in accordance with international child protection and fair trial standards.
President-elect Obama voted against the legislation that authorized the Guantánamo military commissions, calling the law “a betrayal of American values.” And he has co-sponsored legislation designed to stop the use of child soldiers in armed conflict. We're asking that immediately upon taking office, President-elect Obama must stop the travesty of war crimes prosecutions of young men who were children when they were captured. And we’re asking for that change to come immediately, not eventually.
Suzanne Ito writes for and manages Blog of Rights, the blog of the national ACLU.