Saturday, April 25, 2009

Our military JAG officers emerging from the shadows as heroes of civil liberty

Rear Admiral Jane Dalton

Colonel Morris Davis

Major David J. R. Frakt

Lieutenant Colonel Darrel Vandeveld

Colonel Stephen Henley

The Military Commissions Act was an unconstitutional abuse of power, but the story is slowly emerging of a dedicated cadre of JAG officers throughout the last eight years who have stood up for the rights of the accused, and have stood up against torture and--when necessary--their superior officers.

From the ACLU [This report was originally published--and I missed it--on 13 January 2009, which explains the seemingly anachronistic reference to the Bush administration]:

WASHINGTON – The American Civil Liberties Union filed a petition for habeas corpus today in federal court in the District of Columbia to challenge the unlawful detention of Mohammed Jawad, who has been held for over six years at Guantánamo Bay. Lt. Col. Darrel Vandeveld, the former lead prosecutor in Jawad's military commission case, is supporting the ACLU's legal challenge.

Jawad, now about 23 years old, has been in custody since he was captured at the age of 16 or 17 and is one of two Guantánamo prisoners the United States is prosecuting for acts allegedly committed when they were juveniles. Jawad is accused of throwing a hand grenade at two U.S. service members and their interpreter in Afghanistan.

"It would be a miscarriage of justice for President-elect Obama to continue Mr. Jawad's unlawful detention in Guantánamo, particularly considering that Mr. Jawad was captured as a teenager and detained based on alleged confessions obtained through torture," said Hina Shamsi, staff attorney with the ACLU National Security Project. "The Bush administration compounded this injustice by using torture-derived evidence to prosecute Mr. Jawad for war crimes in the unconstitutional military commissions. The government's continued detention and prosecution of Mr. Jawad violates America's values and the Constitution, as well as this country's binding obligations under the Geneva Conventions and human rights law."

In September, prosecutor Vandeveld left the military commissions because he did not believe he could ethically proceed with the case. In a declaration filed in support of Jawad's petition, Vandeveld told the court that there is "no credible evidence or legal basis" to justify Jawad's detention and prosecution, and that the commission system's flaws make it impossible for anyone "to harbor the remotest hope that justice is an achievable goal." Vandeveld does not believe Jawad's release presents any risk.

"I have no doubt at all – none – that Mr. Jawad would pose no threat whatsoever to me, his former prosecutor and now-repentant persecutor," said Vandeveld in his declaration. "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."

In a separate legal case argued today, the Bush administration is in the United States Court of Military Commission Review appealing a military commission judge's decision to throw out the torture-tainted evidence against Jawad. In November, Army judge Col. Stephen Henley held that evidence collected while Jawad was in U.S. custody could not be admitted in his trial because it had been obtained under duress. The government told the judge that Jawad's alleged confessions were the centerpiece of its case against him and has asked the proceedings to be stayed until the appeals court rules.

"The fact that the government persists in trying to use evidence obtained through torture says everything you need to know about the integrity of its case," said U.S. Air Force Major David J. R. Frakt, who represents Jawad in the military commission case and is co-counsel in the habeas case. "But the larger problem is that Mr. Jawad should never have been prosecuted in the military commissions system at all. Our values of due process and fair justice apply to all defendants and should not depend upon whom we are prosecuting and what the alleged crimes are. Mr. Jawad's only meaningful opportunity to challenge the basis for his detention comes through this habeas case, in a legitimate court."

Among other forms of abusive treatment, Jawad was subjected to the military's so-called "frequent flyer" program, in which detainees at Guantánamo were subjected to sleep deprivation for extended periods of time. In May 2004, a few months after Jawad tried to commit suicide in his cell, prison officials deprived him of sleep for two weeks by moving him 112 times in 14 days – and they did so after having been ordered by their commanding general to discontinue this inhumane program.

I'd like to believe that the long, rear-guard action these brave JAG officers have been fighting for the past few years is going to end soon, but...

From The Raw Story:

"In its first filing on detention and torture under the Obama administration, the Department of Justice filed briefs in March urging the Court of Appeals to reject any constitutional or statutory rights for detainees," says a release. "The Obama Justice Department further argued that even if such rights were recognized, the Court should rule that the previous administration’s officials who ordered and approved torture and abuse of the plaintiffs should be immune from liability for their actions."

"This is a question about accountability for torture and abuse. It’s a disgrace to have a U.S. court stating that Guantánamo detainees are not persons. It would be a shame to have our new President supporting such a position in the Supreme Court. It was bad enough for the Obama Administration to take this position at this stage. We hope that they reconsider," stated Michael Ratner, President of the Center for Constitutional Rights (CCR). “Boumediene acknowledged that the fundamental rights we take for granted apply to persons in U.S. custody at Guantanamo. This decision runs directly counter to that principle."

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