Report from Guantanamo:  A need for prosecutorial discretion Commentary
Report from Guantanamo: A need for prosecutorial discretion
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Anthony S. Barkow [voluntary consultant, Human Rights First]: "The fair administration of criminal justice requires prosecutors to exercise their power and discretion to do justice and defense lawyers who are zealous and effective. I was in Guantanamo Bay late last month to observe pretrial hearings in the case of United States vs. Mohammed Jawad [HRF backgrounder]. The proceedings raised serious concerns about prosecutorial discretion in military tribunals, even as they demonstrated that effective defense representation is possible.

Jawad is accused of throwing a hand grenade into a military vehicle in Afghanistan in 2002 and injuring two soldiers and a translator. He was16 years old at the time of the offense. According to his lawyer, Air Force Maj. David Frakt, Jawad is "the first child soldier, along with [Omar Ahmed] Khadr [who is also facing charges here in a separate case] to be tried for war crimes in the history of the world, and faces life imprisonment."

The Prosecutors

The proceedings in Jawad's began with the court addressing the recent resignation of the case's lead prosecutor, Army Reserve Lt. Col. Darrel Vandeveld. Vandeveld is the fourth known Guantanamo prosecutor to have resigned.

Vandeveld submitted a declaration to the court on September 24 giving notice of his resignation and stating he had "ethical qualms about continuing to serve as a prosecutor." "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. [D]iscovery in even the simplest of cases is incomplete or unreliable," he wrote. He added that the discovery problems "are not only appalling, they deprive the accused of basic due process and subject the well-intentioned prosecutor to claims of ethical misconduct." He concluded that "[p]otentially exculpatory evidence" that "we have an obligation as prosecutors and officers of the court [to disclose] has not been made available to the defense."

Vandeveld testified via videoconference on September 26, and chronicled his transformation over the past year from a "true believer" into one "truly deceived." He described "systemic problems" creating logistical chaos within the prosecutors' office which, in his opinion, make it impossible for prosecutors even to locate all materials relevant to the case. He opined that the problems are so entrenched they "cannot be remedied at this late date."

The previous day, a government interrogator testified that, under interrogation, Jawad had complained he was "more or less forced" to throw the grenade by an "older man" who "did not give him the option to back out" after he "got cold feet." Jawad's attorney, Maj. Frakt, has suggested that an Afghan militia group deceptively recruited by financial inducement the impoverished Jawad, drugged him, and forced him to be present during the incident.

Vandeveld testified that a government intelligence analyst report backing up this claim — the report found the militia group targets young men, sexually abuses them, and drugs them before forcing them to engage in violence — had not yet been disclosed to the defense. He further revealed that the prosecution had failed to disclose information about another man who had confessed to the same crime. Vandeveld attributed these two non-disclosures to the prosecution's endemic disorganization.

In his declaration, Vandeveld further explained that he advocated a plea agreement for Jawad to serve a short additional sentence, with rehabilitation so that he could reintegrate into Afghan or Pakistani society. But defense lawyers in Guantanamo describe the line prosecutors as having no discretion to exercise independent judgment. And Vandeveld's supervisors prohibited him from extending such an offer.

As news of the Vandeveld declaration broke earlier in the week, Brig Gen. Thomas W. Hartmann — whom Military Judge Steven Henley previously ordered off the Jawad case — issued talking points designed to discredit Vandeveld. Frakt said in court that Vandeveld feared — and had already experienced — reprisals after making his allegations. If the alleged intimidation effort occurred, it may have worked: Vandeveld initially refused to testify, invoking his privilege against self-incrimination, demanding legal representation, and requesting immunity from prosecution. By the end of the week, Vandeveld reversed course and testified, but went out of his way to sprinkle his testimony with praise for Hartmann and the chief prosecutor.

Filling Vandeveld's shoes is his former deputy, who has not prosecuted a case since 1995 and who has not been in a courtroom since 2000 (and whose experience seems to consist significantly of prosecuting petty drug and alcohol related cases on military property), and a new junior prosecutor just assigned to the case. (By contrast, in civilian life, Vandeveld is a career prosecutor in Pennsylvania). This new prosecution team may be in over its head. On the first day of the week's proceedings, the court censured the team more than once for being unprepared. At one point, the junior prosecutor essentially asked the court to explain how best to prosecute the case.

On the final day of proceedings, more serious infirmities surfaced. A prosecution witness, "Gunnery Sgt. M" admitted destroying exculpatory evidence. The defense accused the prosecutors of sanctioning Sgt. M's act. An evidentiary hearing was held immediately. Although Sgt. M's testimony mutated throughout the hearing, he stated under oath several times that he told the prosecutors that he would "destroy" or "get rid of" the evidence. The prosecutors insisted that they did not understand Sgt. M to have said that to them. In the end, Judge Henley found that the prosecutors had no advance knowledge of Sgt. M's intention, and no ethical violation had occurred.

It is a fundamental precept of American criminal justice that prosecutors must disclose all material, exculpatory information — called "Brady material" — to the defendant. Prosecutors and agents must be able effectively to collect, organize, and search materials in order to discharge their disclosure obligations. They must supervise agents and witnesses to ensure that exculpatory evidence is preserved. Decisions whether to disclose Brady material are virtually always made autonomously by the prosecution. And prosecutorial discretion to enter into plea agreements and otherwise dispose of cases is critical. Thus, for prosecutors to discharge these duties, they must have experience, good judgment, and a strong ethical base.

Frakt suggested in court that the problems in Jawad's case result from top-down political pressure on line prosecutors. The specter of such pressure, particularly with Hartmann managing the response to Vandeveld's resignation despite his removal from these cases, undermines one's confidence in the military commission system. The fact that, despite having 6 years to prepare its case before charging Jawad, the government cannot locate all relevant materials further lessens that confidence. And the possibility that the new prosecution team, which faces the same intractable logistical problems that caused Vandeveld to resign, may lack necessary experience does nothing to reassure.

If it is true that the government's lack of organization renders it unable to comply with its disclosure obligations, and that line prosecutors in Guantanamo have no ability to exercise discretion, defendants will not receive information to which they are entitled, and the cases will barrel forward without meaningful and consistent evaluation by those who are closest to them and know them best.

Defense Lawyers

It is also a foundation of the American criminal justice system that an accused has a right to defense lawyer. To be effective, that defense lawyer must be able to forge a relationship of trust with the client.

The history surrounding the Guantanamo detainees' treatment makes the establishment of attorney-client relationships extremely difficult and often impossible. The detainees have been held in captivity for years. Some have been subjected to torture, and many have endured abuse. Even the Bush Administration has confirmed the use of "alternative" interrogation techniques on the high value detainees held in secret CIA custody, including—in at least two cases—waterboarding.

Courts here have found that some of this mistreatment was at the hands of U.S. officials. All of the appointed military counsel here dress in the same uniforms, which makes it almost impossible for military defense counsel to forge meaningful relationships with their clients. Quite likely, at least some detainees view their appointed military counsel as identical to, or as extensions of, those who abused them and who currently are their jailers. Quite likely, they see their lawyers as inexorably untrustworthy, because they answer to and follow the commands of their superiors — those same superiors who, in the detainees' view, have ordered their abuse and detention.

In this environment — and likely also in light of many detainees' express and intense hostility toward the United States — it is not surprising that most detainees refuse to allow the military lawyers to represent them. Their hostility extends, too, to the pro bono civilian counsel appointed by the court: because they are American and because they are appointed by military judges, the detainees typically reject them.

Maj. Frakt is one defense lawyer who has succeeded in this atmosphere. As noted, Jawad was a teenager when he was captured, and he has now spent a quarter of his life detained at Guantanamo. He has attempted suicide, and he was severely abused. In 2004, Jawad was subjected to the euphemistically-named "frequent flyer" interrogation program, which was designed to make its victims "more compliant and break down their resistance to interrogation." Under this program, Jawad was moved from cell to cell 112 times in 14 days, on average once every three hours. He was shackled and unshackled as he was moved. Judge Henley has ruled that, at the time Jawad was subjected to this treatment, he "was of no intelligence value to any government agency. The infliction of the 'frequent flyer' technique . . . thus had no legitimate interrogation purpose."

Likely as a result of all of this, Jawad entered these proceedings refusing to participate. During an early court appearance, he banged his head repeatedly against the defense table, refusing to speak or wear headphones to listen to court interpreters.

But over time Frakt has built a relationship of trust with Jawad. Jawad listens to Frakt's advice, and he is benefiting from Frakt's representation. Frakt has scored several major legal victories in Jawad's case: Recently Judge Henley ordered that Hartmann disassociate from the case, and late last month, Frakt convinced Judge Henley that the government cannot rely solely on Jawad's status as an enemy combatant to prove the act of throwing a hand grenade violated the laws of war. When the latter ruling was discussed in court, the prosecution appeared stymied. Indeed, based on the colloquy, it appeared quite possible that the government now might be unable to prove its case. And Frakt has won the court's respect: Only half-jokingly, when Judge Henley admonished Frakt to speak more slowly, the judge expressed that he "enjoys listening to [Frakt] speak in court."

* * *

Most of the line attorneys in Guantanamo — prosecutors and defense counsel alike — seem earnest, professional, and well-meaning. But they are practicing within a flawed, ad hoc system. Although relationships like Frakt's with Jawad generate some hope of effective lawyering, one must remember that Jawad's is only one case, and even Frakt has absolutely no relationship with his other client, Ali Hamza al-Bahlul.

As for the prosecutors? As the Supreme Court once said of federal prosecutors:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

There have been and still are courageous prosecutors here in Guantanamo. But they appear to work in an irreparably disorganized logistical environment, and by many indications are not given the discretion or independence from political influence required to exercise their power in accordance with the Supreme Court's famous admonition."

"Report from Guantanamo" is a regular column written by Human Rights First.

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