Former Guantanamo Bay adversaries visit ethics class

When Guantanamo detainee Mohammed Jawad was appointed new defense counsel nearly six years after his arrest, it was a game-changer. Jawad had been arrested in Afghanistan for allegedly throwing a grenade into an SUV containing U.S. soldiers and an Afghan interpreter in December 2002. Lt. Col. David Frakt of the United States Air Force Reserves JAG Corps was appointed to Jawad’s case and sought to challenge the Military Commissions and the government’s case from the ground up. Guantanamo Bay prosecutor Lt. Col. Darrel Vandeveld of the U.S. Army JAG Corps met him every step of the way.

Both attorneys addressed a legal ethics class at Penn State Law on Friday.

“It was one of my favorite classes of the year,” said Penn State Law Professor Catherine Rogers, a scholar of international legal ethics who organized the event. “Their story illustrates that legal ethics have a profound impact on people’s lives.”

The Government's Case

Jawad was taken into custody in Afghanistan on the day of the attack and allegedly confessed on videotape and signed a confession before being sent to Bagram and then to Guantanamo Bay. The U.S. government swore charges for attempted murder in violation of the law of war and intentional infliction of serious bodily harm. While Jawad’s exact age is unknown, the evidence indicates that he was certainly under age 18 at the time of the attack.

Frakt described Vandeveld as cooperative and ethical in dealing with opposing counsel.

Vandeveld had arrived in Guantanamo in May 2007 to prosecute alleged enemy combatants. A decorated soldier who has earned the Bronze Star Medal, the Iraqi Campaign Medal, the Joint Service Commendation Medal, and two Joint Meritorious Unit Awards, he thought his legal work would avenge Americans who lost their lives in Iraq and Afghanistan. For several months, Vandeveld prosecuted cases at the Office of Military Commissions and at one point in time was in charge of 1 in every 3 prosecutions.

Vandeveld said that Frakt is “one of the most aggressive advocates I have ever seen.” In civilian life, Frakt is a defense attorney and a professor of law. (Frakt's most recent publication before heading to Guantanamo was an article criticizing Military Commissions procedures.) Vandeveld described awakening each morning dreading the sight of his inbox, knowing that it would be filled with defense motions that required immediate responses.

Signs of Trouble

Jawad turned out to be illiterate and, at any rate, did not speak the language in which his “confession” was written. Vandeveld said he assumed the videotaped confession would bolster the government’s case. However, no one could find the videotaped confession.

Vandeveld later wrote, “[T]he 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.”

Yet Vandeveld held fast to his theory of the Jawad case. When Jawad said in a hearing that he was deprived of sleep in U.S. custody, Vandeveld explained to the class that he thought Jawad had been trained to falsely allege torture. When Frakt sought Jawad’s medical and detainment records, Vandeveld assisted opposing counsel as much as he could in obtaining those records.

During the discovery process the attorneys learned that Jawad continued to be interrogated six years after his arrest, long after he was shown to have no intelligence value. The detainee records showed that Jawad had been subject to the “frequent flier program”—and was moved every 2 hours round-the-clock for 14 days. Vandeveld later wrote that he was “sickened” at the “pointless, purely gratuitous mistreatment of Mr. Jawad” by his fellow soldiers.

A Shared Mission

The attorneys said that at some point they realized they shared a mission—to find the truth. Vandeveld shared his “crisis of conscience” that arose when he had reasonable doubt on Jawad’s guilt and irresolvable doubts about the ability of the Military Commissions to provide justice. He thought that as a prosecutor he was perpetrating injustice. Vandeveld said that Martin Luther King Jr. in particular inspired him. This statement, in particular, resonated with him:

You may be 38 years old as I happen to be, and one day some great opportunity stands before you and calls upon you to stand up for some great principle, some great issue, some great cause--and you refuse to do it because you are afraid; you refuse to do it because you want to live longer; you're afraid that you will lose your job, or you're afraid that you will be criticized or that you will lose your popularity or you're afraid that somebody will stab you or shoot at you or bomb your house, and so you refuse to take the stand. Well you may go on and live until you are 90, but you're just as dead at 38 as you would be at 90! And the cessation of breathing in your life is but the belated announcement of an earlier death of the spirit. You died when you refused to stand up for right, you died when you refused to stand up for truth, you died when you refused to stand up for justice.  

Vandeveld resigned from the Military Commissions in September 2008, testified on Jawad’s behalf at a suppression hearing, and filed a 15-page personal declaration on Jawad’s Petition for Habeas Corpus. Judge Ellen S. Huvelle of the U.S. District Court of the District of Columbia granted Jawad’s habeas corpus petition and ordered the Justice Department to release Jawad, finding that there was no credible evidence to continue holding him as an enemy combatant. Jawad was eventually returned to Afghanistan. 

Vandeveld later said that he wrote the declaration on Jawad's behalf "in a matter of hours." His experience in Guantanamo bay irrevocably changed the way he practices law; he now serves as Chief Public Defender in Erie County, Pennsylvania. 

“When faced with moral issues, you have to stop skipping and jumping," Vandeveld advised future attorneys. "You must stand and proclaim out loud what you know to be true." 

After fielding a few questions from law students about their work, the presenters brought their presentation to a close long after the class period was scheduled to end.

"Goodbye, brother," Vandeveld said.