Mohammed Jawad and the Military Commissions of Guantánamo

Duke Law Journal

Volumn 60, Issue 6, 2011, Pages 1367-1411

  Frakt, David J R ^a  

^a BARRY UNIVERSITY   (United States)

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EID: 79952847276     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (279)

1. Jawad does not know his birth date, so it is unknown how old he was at the time of his arrest. Reports from Afghan officials suggest he may have been as young as twelve, while the U.S. government claims he was seventeen.
2. Mohammed Jawad, HUMAN RIGHTS FIRST, http://www.humanrightsfirst.org/our-work/law-and-security/military-commissions/cases/mohammedjawad (last visited Jan. 22, 2011).
3. E.g., Waheedullah Massoud, Five Held Over Rare Attack on U.S. Troops in Kabul, AGENCE FRANCE-PRESSE, Dec. 18, 2002, available at Factiva, Doc. No. afpr 000020021218dyci005pn.
4. Stephane Orjollet, Two US Troops, Translator Wounded in Grenade Attack in Kabul, AGENCE FRANCE-PRESSE, Dec. 17, 2002, available at Factiva, Doc. No. afpr000020021218dych00020.
5. Todd Pitman, Two US Soldiers and Interpreter Hurt in Afghanistan Grenade Attack, INDEPENDENT (Dec. 18, 2002), http://www.independent.co.uk/news/world/asia/two-us-soldiers-and-interpreter-hurt-in-afghanistan-grenade-attack-611329.html.
6. Al-Qaeda Blamed for Attack on U.S. Soldiers in Kabul
7. US Troops Hurt in Kabul Attack, BBC NEWS (Dec. 17, 2002, 18:46 PM GMT), http://news.bbc.co.uk/2/hi/south_asia/2583947.stm.
8. Amin Tarzi, Perpetrators of Attacks Against U.S. Troops in Kabul Arrested, News, Afghan Report: December 20, 2002, RADIO FREE EUR./RADIO LIBERTY (Dec. 20, 2002), http://www.rferl.org/content/article/1340650.html.
9. US Troops Hurt in Kabul Attack, (quoting Basir Salangi, Head, Kabul Police).
10. United States v. Jawad, 1 M.C. 349, 349 (Military Comm'n Guantánamo Bay, Cuba Nov. 19, 2008) (ruling on Defense Motion to Suppress Out-of-Court Statements by the Accused Made While in U.S. Custody (D-021)).
11. Daphne Eviatar, Military Lawyer Claims U.S. Paid Gitmo Prosecution Witnesses, WASH. INDEP. (Aug. 4, 2009, 6:00 AM), http://washingtonindependent.com/53655/gitmodetainee-claims-u-s-paid-prosecution-witnesses.
12. For the unclassified details about the interrogation, see Amended Petition for Writ of Habeas Corpus on Behalf of Mohammed Jawad (Also Known as Saki Bacha) at 10-11, Al Halmandy v. Bush, No. 05-cv-2385 (D.D.C. Jan. 13, 2009), available at http://www.aclu.org/pdfs/natsec/amended_jawad_20090113.pdf.
13. Unfortunately, the videotape of this interrogation-which would have resolved disputed claims about the nature and level of coercion used and the content of the alleged confession-was lost.
14. In all, Jawad was interrogated over fifty times from 2002 to 2006.
15. After his first twelve hours in captivity, he consistently denied throwing the hand grenade. Amended Petition for Writ of Habeas Corpus on Behalf of Mohammed Jawad (Also Known as Saki Bacha).
16. (citing Tim Golden, In U.S. Report, Brutal Details of 2 Afghan Inmates' Deaths, N.Y. TIMES, May 20, 2005, at A1)).
17. See United States v. Jawad, 1 M.C. 334, 336 (Military Comm'n Guantánamo Bay, Cuba Sept. 24, 2008) (ruling on Defense Motion to Dismiss-Torture of the Detainee (D-008)) (finding that the use of the "frequent flyer" program against Jawad was "abusive conduct and cruel and inhuman treatment," but declining to decide whether it rose to the level of torture).
18. Defense Motion to Dismiss Based on Torture of Detainee Pursuant to R.M.C. 907 (D-008) at 17, United States v. Jawad (Military Comm'n Guantánamo Bay, Cuba May 28, 2008) ("[A] suicidal teenager, brought to Guantanamo while still a minor, was subjected to a flagrant violation of international and domestic law-tortured by U.S. officials while in U.S. custody as an enemy combatant.").
19. see also Amnesty Int'l, United States of America: From Ill-Treatment to Unfair Trial, the Case of Mohammed Jawad, Child 'Enemy Combatant,' at 2, AI Index: AMR 51/091/2008 (Aug. 13, 2008) ("Whatever the reason for [Jawad's] subjection to the frequent flyer program... its use violated the international prohibition on torture and other cruel, inhuman or degrading treatment or punishment."). Because citations to Military Commissions cases require a unique format, this Essay includes full citations to them unless a shortened form is unambiguous.
20. Jawad, 1 M.C. at 334.
21. see also Memorandum from the Office for the Admin. Review of the Det. of Enemy Combatants at U.S. Naval Base Guantanamo Bay, Cuba, Dep't of Def., to Mohamed Jawad 1-2 (Nov. 7, 2005), available at http://projects.nytimes.com/guantanamo/detainees/900-mohamed-jawad#8 (identifying factors favoring Jawad's continued detention).
22. See David J.R. Frakt, An Indelicate Imbalance: A Critical Comparison of the Rules and Procedures for Military Commissions and Courts-Martial, 34 AM. J. CRIM. L. 315, 335 (2007) (outlining the rules for counsel appointed in detainee cases).
23. Memorandum from the Deputy Sec'y of Def. to the Sec'ys of the Military Dep'ts, Chairman of the Joint Chiefs of Staff, and Under Sec'y of Def. for Policy, Enclosure (1), § C(3) (July 14, 2006), available at http://www.defenselink.mil/news/Aug2006/d20060809CSRTProcedures.pdf (describing the "personal representative" offered to a detainee instead of a lawyer at the CSRT).
24. Pursuant to Rule for Military Commissions 502(d)(6), a military defense counsel was detailed to represent Jawad after charges were sworn against him in October 2007. U.S. MANUAL FOR MILITARY COMM'NS pt. II, R.M.C. 502(d)(6), at II-23 (2007). This initial counsel was excused in March 2008, and I replaced him the next month.
25. Charge Sheet of Mohammed Jawad, United States v. Jawad (Military Comm'n Guantánamo Bay, Cuba Oct. 9, 2007), available at http://www.defense.gov/news/Oct2007/JawadChargeSheet.pdf.
26. Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (codified as amended in scattered sections of 10, 18, 28, and 42 U.S.C.).
27. David J.R. Frakt, Closing Argument at Guantanamo: The Torture of Mohammed Jawad, 22 HARV. HUM. RTS. J. 1, 3 (2009).
28. The legal advisor to the Convening Authority for Military Commissions prepared a brief three pages of legal analysis prior to Jawad's charges being referred. Defense Motion to Dismiss for Unlawful Influence (D-004), Attachment 3, at 1-3, United States v. Jawad (Military Comm'n Guantánamo Bay, Cuba May 20, 2008) (on file with the author). Unfortunately, when this motion was publicly released, the entire attachment was redacted by the Department of Defense (DOD).
29. Defense Motion to Dismiss for Unlawful Influence, Attachment 3, at 1-4, available at http://www.defense.gov/news/Jawad-D-004MotiontoDismissUnlawfulInfluence2.pdf.
30. Charge Sheet of Mohammed Jawad, United States v. Jawad (Military Comm'n Guantánamo Bay, Cuba Nov. 13, 2007), available at http://www.defense.gov/news/Jan2008/d20080130jawadcharge.pdf.
31. Record of Trial at 19-20, United States v. Jawad (Military Comm'n Guantánamo Bay, Cuba Mar. 12, 2008).
32. This record of trial has not been publicly released, but the relevant portion of the transcript was published.
33. David J.R. Frakt, The Difficulty of Defending Detainees, 48 WASHBURN L.J. 381, 387-88 (2009).
34. I served active duty as an Air Force Judge Advocate General (JAG) from 1995 to 2005. In 2005, I transferred to the Air Force Reserves and began a new career as a law professor.
35. Stacy Sullivan, The Forgotten Kid of Guantánamo, SALON (May 27, 2008, 7:00 AM), http://www.salon.com/news/feature/2008/05/27/gitmo_jawad/index.html.
36. Editorial, The Price of Our Good Name, N.Y. TIMES, Nov. 23, 2008, at WK8.
37. Bob Herbert, How Long Is Long Enough?, N.Y. TIMES, June 30, 2009, at A21.
38. Editorial, Justice Too Long Delayed, N.Y. TIMES, Aug. 4, 2009, at A20.
39. Eric Umansky, Gitmo Tribunal: Things Fall Apart, PROPUBLICA (Oct. 29, 2008, 11:40 AM), http://www.propublica.org/article/gitmo-tribunal-things-fall-apart-1029.
40. The federal judge assigned to the habeas corpus petition, Ellen Segal Huvelle, pointedly reminded the Department of Justice (DOJ) attorneys that "we're getting to about a nine month mark where you've already known that your evidence is in serious trouble" and chastised them for "dragging this out for no good reason" after the "case fell apart." Transcript of Hearing at 16, 21, Bacha v. Obama, No. 05-2384 (D.D.C. July 16, 2009), available at http://www.aclu.org/files/pdfs/safefree/jawad_transcriptofhearing.pdf.
41. Transcript at 61, United States v. Jawad (Military Comm'n Guantánamo Bay, Cuba May 7, 2008) (on file with the Duke Law Journal).
42. Initially, I was the sole defense counsel assigned. After the June 19, 2008 hearing, Navy Lieutenant Commander Katharine Doxakis was assigned as assistant defense counsel. After the August 13-14 hearing, Marine Corps Major Eric Montalvo was added to the team.
43. Many, but by no means all, of the motions are available on the Department of Defense Military Commissions website, on the Mohammed Jawad page. Military Commissions: Mohammed Jawad, DEPARTMENT OF DEFENSE, http://www.defense.gov/news/commissionsJawad.html (last visited Jan. 23, 2011).
44. See Ben Fox, Guantanamo Detainee Tells Military Court He Was Subjected to Sleep Deprivation, ASSOCIATED PRESS, June 20, 2008, available at Factiva, Doc. No. APRS000020080619e46j00bcx (describing Jawad's testimony at a June 19 hearing, during which he accused guards of conducting a two-week-long sleep deprivation program on him).
45. Jane Sutton, Guantanamo Prisoner Cites 2-Week Sleep Deprivation, REUTERS (June 19, 2008, 10:15 PM BST), http://uk.reuters.com/article/idUKN1936906020080619 (same).
46. Jane Sutton, Judge Urged to Drop Guantanamo Charge, REUTERS (June 20, 2008, 5:52 AM BST), http://uk.reuters.com/article/idUKN1946929420080620 (same).
47. see also Jo Becker, The War on Teen Terror, SALON (June 24, 2008, 08:15 AM ET), http://www.salon.com/news/feature/2008/06/24/juveniles_at_gitmo/index.html (describing Jawad's testimony, but in the broader context of juveniles at the detention camp in Guantánamo).
48. See Mike Melia, Adviser to Guantanamo Trials Faces More Criticism, ASSOCIATED PRESS, Aug. 13, 2008 [hereinafter Melia, Adviser to Guantanamo Trials], available at NewsBank, Rec. No. D92HMRB82 (discussing the August 13 hearing at which Jawad's defense team argued for the legal advisor to the tribunal to be removed from the case on the ground of improper interference).
49. Mike Melia, Pentagon Official Removed from 2nd Gitmo Trial, ASSOCIATED PRESS, Aug. 14, 2008 [hereinafter Melia, Pentagon Official Removed], available at NewsBank, Rec. No. D92I82501 (recounting that day's hearing, during which a military judge ordered the legal advisor removed from Jawad's case because he had compromised his objectivity).
50. Jane Sutton, U.S. General Barred from Another Guantanamo Trial, REUTERS (Aug. 14, 2008, 04:10 PM EDT), http://www.reuters.com/article/idUSN1337894520080814 (same).
51. see also Nicole Barrett, The GTMO "Incentive Program," ACSBLOG (Aug. 19, 2008, 3:13 PM), http://www.acslaw.org/acsblog/node/12603 (reporting the military's defense of the frequent flyer program during testimony at Jawad's August hearing in Guantánamo).
52. Jennifer Turner, Allegations of Torture of Two Teen Detainees at Guantánamo, DAILY KOS (Aug. 14, 2008, 12:32 PM PST), http://www.dailykos.com/storyonly/2008/8/14/151057/877/558/567963 (same).
53. See Mike Melia, Former Gitmo Prosecutor Blasts Tribunals, ASSOCIATED PRESS, Sept. 27, 2008 [hereinafter Melia, Former Gitmo Prosecutor Blasts Tribunals], available at NewsBank, Rec. No. D93ENVE80 (explaining that a U.S. military prosecutor quit, alleging at a September 25 hearing that his superiors withheld potentially exculpatory evidence in Jawad's case).
54. Mike Melia, Gitmo Prosecutor Seeks Immunity for Testimony, ASSOCIATED PRESS, Sept. 25, 2008, available at NewsBank, Rec. No. D93E2BG80 (same).
55. Mike Melia, Guantanamo Prosecutor Quits over Detainee Case, ASSOCIATED PRESS, Sept. 25, 2008 [hereinafter Melia, Guantanamo Prosecutor Quits], available at NewsBank, Rec. No. D93DH2AG0 (same).
56. United States v. Jawad, 1 M.C. 345, 346 (Military Comm'n Guantánamo Bay, Cuba Oct. 28, 2008) (ruling on Defense Motion to Suppress Out-of-Court Statements of the Accused to Afghan Authorities (D-022)).
57. United States v. Jawad, 1 M.C. 349, 351 (Military Comm'n Guantánamo Bay, Cuba Nov. 19, 2008) (ruling on Defense Motion to Suppress Out-of-Court Statements by the Accused Made While in U.S. Custody (D-021)).
58. William Glaberson, Obama Orders Halt to Prosecutions at Guantánamo, N.Y. TIMES (Jan. 21, 2009), http://www.nytimes.com/2009/01/22/washington/22gitmo.html.
59. Government Motion for Additional Stay of Decision, United States v. Jawad, No. 08-004 (Ct. Military Comm'n Rev. Guantánamo Bay, Cuba May 15, 2009), available at http://www.defense.gov/news/JAWAD Government Motion for Additional Stay of Decision (15 May 2009) (11 pages) pdf.pdf.
60. see also Appellee Response to Government Motion for Additional Stay of Decision, United States v. Jawad, No. 08-004 (Ct. Military Comm'n Rev. Guantánamo Bay, Cuba May 19, 2009), available at http://www.defense.gov/news/JAWAD 08-004 Appellee Response to Government Motion for Additional Stay (18 May 2009) (14 pages).pdf.
61. Al Halmandy v. Obama, No. 05-2385 (D.D.C. Apr. 22, 2009) (order denying Respondents' Motion to Dismiss Habeas Petitions Without Prejudice or, Alternatively, to Hold Petitions in Abeyance Pending Completion of Military Commission Proceedings), available at http://www.aclu.org/files/pdfs/safefree/alhalmandyvobama_order.pdf. The spelling of Al Halmandy's name varies among different court documents; those spellings are preserved here.
62. Respondents' Motion to Dismiss Habeas Petitions Without Prejudice or, Alternatively, to Hold Petitions in Abeyance Pending Completion of Military Commission Proceedings, Al Hamandy v. Bush, No. 05-2385 (D.D.C. Jan. 16, 2009), available at http://www.aclu.org/files/images/asset_upload_file88_38719.pdf.
63. Al Halmandy v. Obama, 612 F. Supp. 2d 45, 46-48 (D.D.C. 2009) (order amending the Case Management Order).
64. Petitioner Mohammed Jawad's Motion to Suppress his Out-of-Court Statements, Al-Hamdandy v. Obama, No. 05-2385 (D.D.C. July 1, 2009), available at http://www.aclu.org/files/pdfs/safefree/jawad_motiontosuppress.pdf.
65. William Glaberson, U.S. Judge Challenges Evidence on a Detainee, N.Y. TIMES, July 22, 2009, at A22.
66. The New York Times published the full transcript of the hearing, highlighting the judge's stinging criticism of the government's case.
67. Bacha v. Obama, No. 05-2385, 2009 WL 2149949, at *1 (D.D.C. July 17, 2009) (order granting Jawad's motion to suppress).
68. Notice that Respondents Will No Longer Treat Petitioner as Detainable Under the AUMF and Request for Appropriately Tailored Relief, Al Hamandy v. Obama, No. 05-cv-2385 (D.D.C. July 24, 2009), available at http://www.aclu.org/files/pdfs/safefree/alhalmandyvobama_govtfiling.pdf.
69. Bacha v. Obama, No. 05-2385, 2009 WL 2365846, at *1 (D.D.C. July 30, 2009) (order granting Jawad's petition for a writ of habeas corpus).
70. Letter from Susan J. Crawford, Convening Auth. for Military Comm'ns (July 31, 2009), available at http://www.defense.gov/news/DirectionofCA-Jawad31JUL2009.pdf.
71. See infra notes 204-10 and accompanying text.
72. Charge Sheet of Ibrahim Ahmed Mahmoud Al Qosi, United States v. Al Qosi (Military Comm'n Guantánamo Bay, Cuba Feb. 8, 2008), available at http://www.defense.gov/news/d20080305alqosicharges.pdf.
73. Charge Sheet of Salim Ahmed Hamdan, United States v. Hamdan (Military Comm'n Guantánamo Bay, Cuba Apr. 5, 2007), available at http://www.defense.gov/news/1AE001-025Redacted.pdf.
74. Charge Sheet of Ali Hamza Ahmad Suliman al Bahlul, United States v. al Bahlul (Military Comm'n Guantánamo Bay, Cuba Feb. 8, 2008), available at http://www.defense.gov/news/AE1-13.pdf.
75. See Memorandum from President George W. Bush to the Vice President et al., Regarding Humane Treatment of Taliban and al Qaeda Detainees 1 (Feb. 7, 2002), available at http://www.pegc.us/archive/White_House/bush_memo_20020207_ed.pdf.
76. ("By its terms, Geneva applies to conflicts involving 'High Contracting Parties,' which can only be states. Moreover, it assumes the existence of 'regular' armed forces fighting on behalf of states. However, the war against terrorism ushers in a new paradigm, one in which groups with broad, international reach commit horrific acts against innocent civilians, sometimes with the direct support of states.... I accept the legal conclusion of the Department of Justice and determine that none of the provisions of Geneva apply to our conflict with al Qaeda in Afghanistan or elsewhere throughout the world because, among other reasons, al Qaeda is not a High Contracting Party to Geneva.").
77. Robert K. Goldman & Brian D. Tittemore, Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law 4, 23-32 (Dec. 2002) (unpublished manuscript), available at http://www.asil.org/taskforce/goldman.pdf.
78. Under 32 C.F.R. § 11.6, attempts or successful efforts to kill U.S. or Coalition forces, or to destroy military property were subject to prosecution as war crimes. 32 C.F.R. § 11.6 (2005).
79. JENNIFER ELSEA, CONG. RESEARCH SERV., RL 33688, THE MILITARY COMMISSIONS ACT OF 2006: ANALYSIS OF PROCEDURAL RULES AND COMPARISON WITH PREVIOUS DOD RULES AND THE UNIFORM CODE OF MILITARY JUSTICE 7 (2007).
80. See Defense Reply to D-012 to Government Response to Defense Motion for Lack of Personal Jurisdiction Pursuant to R.M.C. 907(b)(1)(A) (Child Soldier), United States v. Jawad, (Military Comm'n, Guantanamo Bay, Cuba July 2, 2008), available at http://www.defense.gov/news/Jawad-D-012MotiontoDismissChildSoldier.pdf (beginning on p. 82).
81. see also Editorial, Tainted Justice, N.Y. TIMES, May 23, 2010, at A24.
82. Optional Protocols to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict and on the Sale of Children, Child Prostitution and Child Pornography, GA Res. 54/263, U.N. Doc. A/RES/54/263 (Mar. 16, 2001).
83. See Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict pmbl., May 25, 2000, S. Treaty Doc. No. 106-37, 2173 U.N.T.S. 222, 236 ("The States Parties to the Present Protocol... [are c]onvinced of the need to strengthen international cooperation in the implementation of this Protocol, as well as the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict....").
84. Status of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, UNITED NATIONS TREATY COLLECTION (Nov. 16, 2010, 7:55 AM), http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11-b&chapter=4&lang=en.
85. See Nienke Grossman, Rehabilitation or Revenge: Prosecuting Child Soldiers for Human Rights Violations, 38 GEO. J. INT'L L. 323, 358-59 (2007) (discussing the wider ratification of the optional protocol in general recognition of the trauma that child soldiers suffer).
86. In fact, under the Rome Statute of the International Criminal Court (ICC), it is now a war crime to recruit and utilize child soldiers. Rome Statute of the International Criminal Court art. 8, ¶ 2(b)(xxvi), July 17, 1998, 2187 U.N.T.S. 3, 90 (defining the conscription or enlistment of "children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities" as a war crime).
87. The defendant at the very first trial at the ICC, Thomas Lubanga Dyilo, was charged with this offense. Lubanga Case, COALITION FOR THE INT'L CRIM. CT., http://www.iccnow.org/?mod=drctimelinelubanga (last visited Jan. 23, 2011).
88. Defense Motion to Dismiss for Lack of Personal Jurisdiction Pursuant to R.M.C. 907(b)(1)(A) (Child Soldier), United States v. Jawad (Military Comm'n Guantánamo Bay, Cuba June 13, 2008), available at http://www.defense.gov/news/Jawad-D-012MotiontoDismissChildSoldier.pdf.
89. There was not a single mention of the words "child soldier," "juvenile," or "minor" in the legislative history of the 2006 MCA. Proposals for Reform of the Military Commissions System: Hearing Before the Subcomm. on the Constitution, Civil Rights, and Civil Liberties of the H. Comm. on the Judiciary, 111th Cong. 90, 102 (2009) (statement of Major David J.R. Frakt, U.S. Air Force Reserve, Lead Defense Counsel, Office of Military Commissions-Defense).
90. see also Paola Konge, International Crimes & Child Soldiers, 16 SW. J. INT'L L. 41, 57 (2010) ("The Optional Protocol is an example of a treaty with widespread acceptance; 144 states had signed on as of June 16, 2006.").
91. Daniel Ryan, Case Comment, International Law and Laws of War and International Criminal Law, 33 SUFFOLK TRANSNAT'L L. REV. 175, 185 (2010) ("Congress should take immediate steps to amend the MCA to exclude jurisdiction of the Commissions-or any other judicial forum-over child soldiers.
92. Such policy initiatives would serve to hold child soldiers accountable through ageappropriate rehabilitation programs, fulfill the United States' obligations under the Optional Protocol, and restore the United States to a position of leadership in developing, promoting and protecting the rights of children in armed conflict." (footnote omitted)).
93. United States v. Jawad, 1 M.C. 338, 339 (Military Comm'n Guantánamo Bay, Cuba Sept. 24, 2008) (ruling on Defense Motion to Dismiss-Lack of Personal Jurisdiction: Child Soldier (D-012)) ("The MCA does not contain any age limitation, even though Congress was aware of how to state exceptions to application of the MCA. Nor is there any evidence that Congress intended an age limitation." (citation omitted)).
94. Military Commissions Act of 2009, 10 U.S.C. §§ 948a-950t (Supp. III 2009). In fact, the Obama administration is continuing to prosecute one detainee, Omar Khadr, who was a juvenile at the time of his capture.
95. Carol Rosenberg, New Khadr Trial Date, MIAMI HERALD, May 11, 2010, available at Rec. No. 201005111747KNRIDDERFLMIAMIH_be484e0fc02f7396 144c62e8f50a67d4.
96. "[A]dditional changes suggested by the Judiciary Committee-including a sunset provision, a voluntariness requirement for all statements, a different appeals structure, and a prohibition on the trial of child soldiers by military commission-should have been adopted." 155 CONG. REC. H11,133 (daily ed. Oct. 8, 2009) (statement of Rep. Ralph Nadler) (emphasis added).
97. See Christopher L. Dore, What to Do with Omar Khadr? Putting a Child Soldier on Trial: Questions of International Law, Juvenile Justice, and Moral Culpability, 41 J. MARSHALL L. REV. 1281, 1288 (2008) ("Meanwhile, more juvenile prisoners were arriving at Guantanamo, some as young as ten.
98. After spending twenty-eight months in solitary confinement, the United States charged Omar [Khadr] with Murder in Violation of the Law of War and four lesser charges." (footnote omitted)).
99. See Defense Motion to Dismiss for Failure to State an Offense and for Lack of Subject Matter Jurisdiction under R.M.C. 907 (D-007) at 7, United States v. Jawad (Military Comm'n Guantánamo Bay, Cuba May 28, 2008), available at http://www.defense.gov/news/d20080528Defense Motion To Dismiss for Failure to State an Offense - Lack of Subject Matter Jurisdiction D-007.pdf ("In sum, Mr. Jawad did not commit an attack against a protected person or through a prohibited means. Even assuming he qualifies for personal jurisdiction as an unlawful enemy combatant, this status does not convert his alleged grenade toss into a war crime. This Commission therefore has no subject matter jurisdiction to try Mr. Jawad for attempted murder and causing serious bodily injury.").
100. Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704, Annex, 32 I.L.M. 1159, 1172 (May 3, 1993) (granting jurisdiction to the International Criminal Tribunal for the Former Yugoslavia (ICTY) over "[v]iolations of the laws or customs of war").
101. War Crimes Act of 1996, 18 U.S.C. § 2441 (2006).
102. Scholars have discussed whether the crimes of attempt, terrorism, material support for terrorism, and conspiracy were war crimes recognized in international law prior to the enactment of the MCA.
103. See, e.g., Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development: Addendum, Human Rights Council 12, U.N. Doc. A/HRC/6/17/Add.3 (Nov. 22, 2007) (by Martin Scheinin) ("[T]he offences listed in Section 950v(24)-(28) of the [MCA] (terrorism, providing material support for terrorism, wrongfully aiding the enemy, spying, and conspiracy) go beyond offences under the laws of war.").
104. PETER VICKERY, TIM MCCORMACK, ALASTAIR NICHOLSON, HILARY CHARLESWORTH, GAVAN GRIFFITH, ANDREW BYRNES, GIDEON BOAS, STUART KAYE & DON ROTHWELL, ADVICE: IN THE MATTER OF THE LEGALITY OF THE CHARGE AGAINST DAVID HICKS 4 (2007), available at http://www.icjaust.org.au/images/stories/documents/070308_-_LCA_-_Hicks_Advice.pdf.
105. ("[T]here is no agreed definition of the international crime of terrorism in the Law of War as it currently stands and so there can be no crime of 'providing material support for terrorism' in the Law of War either.").
106. George P. Fletcher, Editorial Comment, Guantánamo Revisited: The Hamdan Case and Conspiracy as a War Crime: A New Beginning for International Law in the United States, 4 J. INT'L CRIM. JUST. 442, 446 (2006) (noting that "international arguments in the post-World War II period have quietly dropped all... charges to conspiracy").
107. George P. Fletcher, Hamdan Confronts the Military Commissions Act of 2006, 45 COLUM. J. TRANSNAT'L L. 427, 446 (2007) ("[N]either conspiracy nor membership in a terrorist organization meets the standards of an international crime acceptable to the leading legal systems of the world.").
108. David Glazier, A Self-Inflicted Wound: A Half-Dozen Years of Turmoil Over the Guantánamo Military Commissions, 12 LEWIS & CLARK L. REV. 131, 177 (2008) ("[W]hile providing material support to terrorism is clearly an offense against U.S. federal law, its trial as a war crime seems unprecedented.").
109. see also David Glazier, Precedents Lost: The Neglected History of the Military Commission, 46 VA. J. INT'L L. 5, 74-75 (2005) ("[R]egardless of the type of [military] tribunal [that has been used], the substantive law being applied is international law... which cannot be created by the enactment of any particular national legislature. This was highlighted in the general rejection of the Anglo-American concept of conspiracy as a war crime." (internal quotation marks omitted)).
110. Michael O. Lacey, Military Commissions: A Historical Survey, ARMY LAW., Mar. 2002, at 41, 41 ("[M]ilitary commissions, or tribunals, have received widespread media and public attention.... Much of the unfavorable publicity stems from a serious misunderstanding of the history, nature, and purpose of these commissions.").
111. Claims of ex post facto punishment were raised frequently in pretrial litigation in the earlier military commissions under the president's order, including in the cases against David Hicks and Salim Hamdan.
112. Thus far, all pretrial attempts to challenge individual offenses on retroactivity grounds have failed.
113. See, e.g., United States v. Khadr, 1 M.C. 199, 202 (Military Comm'n Guantánamo Bay, Cuba Apr. 21, 2008) (ruling on Defense Motion to Dismiss Charge One for Failure to State an Offense and for Lack of Subject Matter Jurisdiction (D-008)) (concluding that "prosecution of Mr. Khadr for the offense of murder in violation of the law of war... does not violate ex post facto standards-whether under the Constitution or international law").
114. Also, whether conspiracy and material support were traditional war crimes properly subject to trial by military commission was the basis of a pretrial motion to dismiss in the case of United States v. Hamdan. The motion was denied. United States v. Hamdan, 2 M.C. 1, 6 (Military Comm'n Guantánamo Bay, Cuba July 24, 2008) (ruling on Motion to Dismiss (Ex Post Facto) (D-012) and Defense Request to Address Supplemental Authority on D-012 (D-050)) ("The Government has shown, by a preponderance of the evidence, that Congress had an adequate basis upon which to conclude that conspiracy and material support for terrorism have traditionally been considered violations of the law of war.").
115. Hamdan was acquitted of conspiracy but was convicted of material support. The question of whether material support is an offense properly within the jurisdiction of a military commission and the correctness of Judge Allred's ruling is currently being considered on appeal to the CMCR. A similar ex post facto claim is currently being considered on appeal in United States v. al Bahlul.
116. See Brief on Behalf of Appellant at 26, United States v. al Bahlul, No. 09-001 (Ct. Military Comm'n Rev. Guantánamo Bay Cuba Sept 1, 2009), available at http://www.defense.gov/news/6%20%20%20UnitedStatesv%20%20alBahlul-BriefforAppellant(1September2009).pdf.
117. During the Civil War, several persons were convicted of "murder in violation of the laws of war" by military commissions.
118. CHARLES ROSCOE HOWLAND, A DIGEST OF OPINIONS OF THE JUDGE ADVOCATES GENERAL OF THE ARMY 1071-72 (1912).
119. According to Howland, the charges related to "the alleged killing, by shooting or unwarrantably harsh treatment, of officers or soldiers, after they had surrendered, or while they were held in confinement as prisoners of war.".
120. Thus, this offense was comparable to the modern day offenses of "Murder of Protected Persons," 10 U.S.C. § 950v(b)(1) (2006), and "Cruel or Inhuman Treatment,".
121. The only other example Howland gives of murder in violation of the laws of war was the 1873 trial by military commission of the Modoc Indians for "a treacherous killing of an enemy during a truce.".
122. See 10 U.S.C. § 950v(b)(1)(17)-(18).
123. 32 C.F.R. § 11.6 (2005).
124. Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 13, 2001).
125. 32 C.F.R. § 11.6(b)(3).
126. "Even an attack on a soldier would be a crime if the attacker did not enjoy 'belligerent privilege' or 'combatant immunity.'".
127. "Any person subject to this chapter who intentionally kills one or more persons, including lawful combatants, in violation of the law of war shall be punished by death or such other punishment as a military commission under this chapter may direct." 10 U.S.C. § 950v(b)(15).
128. The elements of the offense are as follows: (1) one or more persons are dead; (2) the death or deaths resulted from the act or omission of the accused; (3) the killing was unlawful; (4) the accused intended to kill the person or persons; (5) the killing was in violation of the law of war; and (6) the killing took place in the context of and was associated with an armed conflict. U.S. MANUAL FOR MILITARY COMM'NS pt. IV, § 6(15)(b), at IV-12 (2007).
129. The Manual was promulgated by the secretary of defense in consultation with the attorney general. The Office of Military Commissions-Prosecution was staffed by both military prosecutors and DOJ prosecutors, but the DOJ lawyers were responsible for the overarching legal strategy. This interpretation of murder in violation of the law of war was the official position of those responsible for prosecuting detainees and has been consistently argued, albeit with little success, in every prosecution in which the crime was charged.
130. YORAM DINSTEIN, THE CONDUCT OF HOSTILITIES UNDER THE LAW OF INTERNATIONAL ARMED CONFLICT (2004) [hereinafter DINSTEIN, THE CONDUCT OF HOSTILITIES].
131. Yoram Dinstein, The Distinction Between Unlawful Combatants and War Criminals, in INTERNATIONAL LAW AT A TIME OF PERPLEXITY: ESSAYS IN HONOUR OF SHABTAI ROSENNE 103 (Yoram Dinstein ed., 1989).
132. Yoram Dinstein, Unlawful Combatancy, in 79 INTERNATIONAL LAW STUDIES: INTERNATIONAL LAW AND THE WAR ON TERROR 151 (Fred L. Borch & Paul S. Wilson eds., 2003).
133. Ex parte Quirin, 317 U.S. 1 (1942).
134. George P. Fletcher, The Law of War and Its Pathologies, 38 COLUM. HUM. RTS. L. REV. 517, 541 (2007).
135. see also R.R. Baxter, So-Called 'Unprivileged Belligerency': Spies, Guerrillas, and Saboteurs, 28 BRIT. Y.B. INT'L L., 323, 327 (1951) ("The determination of the requirements to be established for those claiming prisoner-of-war status has not been easy, and it has been equally troublesome to assess the basis on which persons not so qualifying should be penalized or punished-whether as war criminals, or as violators of the laws and customs of war, or merely as persons whose acts have been harmful to the opposing belligerent.").
136. Government's Response to the Defense's Motion to Dismiss for Failure to State an Offense and for Lack of Subject Matter Jurisdiction Under R.M.C. 907 (D-007), United States v. Jawad (Military Comm'n Guantánamo Bay, Cuba June 3, 2008), available at http://www.defense.gov/news/d20080528DefenseMotionToDismissforFailuretoStateanOffense-LackofSubjectMatterJurisdictionD-007.pdf (beginning on p. 31).
137. United States v. Jawad, slip op. at 3 (Military Comm'n Guantánamo Bay, Cuba Sept. 24, 2008) (ruling on Defense Motion to Dismiss-Lack of Subject Matter Jurisdiction (D-007)), available at http://www.defense.gov/news/RULING D-007 (subjectmatterjurisdiction)(2).pdf ("The government has not cited any persuasive authority for the proposition that acting as an unlawful enemy combatant, by itself, is a violation of the laws of war in the context of noninternational armed conflict.").
138. Government Motion for Reconsideration (D-007), United States v. Jawad (Military Comm'n Guantánamo Bay, Cuba Oct. 9, 2008), available at http://www.defense.gov/news/d20081104JawadD007Reconsider.pdf (beginning on p. 2).
139. see also Email from David Frakt, Defense Counsel, Office of Military Comm'ns, to James Polley, Office of Gen. Counsel, Dep't of Defense (Oct. 21 2008, 5:15PM), available at http://www.defense.gov/news/d20081104JawadD007Reconsider.pdf (beginning on p. 12) (arguing that the government's reply was untimely).
140. United States v. Jawad, 1 M.C. 347, 348 (Military Comm'n Guantánamo Bay, Cuba Oct. 29, 2008) (ruling on Government Motion for Reconsideration (D-007)).
141. The government's refusal to accept judicial rulings and its filing of meritless motions to reconsider was also typical both in Jawad's military commission and in the military commissions generally.
142. See, e.g., United States v. Hamdan, 1 M.C. 49 (Military Comm'n Guantánamo Bay, Cuba Mar. 14, 2008) (ruling on reconsideration on Motion for Stay and for Access to High Value Detainees (P-004)).
143. United States v. Hamdan, 1 M.C. 149 (Military Comm'n Guantánamo Bay, Cuba Oct. 29, 2008) (ruling on Motion For Reconsideration and Resentencing (P-009)). In Jawad, the government also filed a Motion for Reconsideration of Ruling on Motion to Dismiss. This motion is on file with the author and has never been publicly released. The court's ruling on the motion is publicly available, however.
144. See Motion for Reconsideration of Ruling on Motion to Dismiss- Unlawful Influence (D-004), United States v. Jawad, 1 M.C. 322 (Military Comm'n Guantánamo Bay, Cuba Aug. 14, 2008).
145. Charge Sheet of Salim Ahmed Hamdan.
146. Transcript of Record at 3765, United States v. Hamdan (Military Comm'n Guantánamo Bay, Cuba Aug. 1, 2008), available at http://www.defense.gov/news/20-21-Hamdan-1Augand4Aug08-FINAL-3648-3890Redacted.pdf.
147. Transcript of Record at 583-84, United States v. Jawad (Military Comm'n Guantánamo Bay, Cuba Aug. 13, 2008) (on file with the Duke Law Journal) ("[I]t should be clear now that, the court, the commission is not joined in [the] position [that status alone is enough]." (quoting Colonel Henley, Military J.)).
148. United States v. Jawad (Military Comm'n Guantánamo Bay, Cuba Sept. 24, 2008) (ruling on Defense Motion to Dismiss-Lack of Subject Matter Jurisdiction (D-007)), available at http://www.defense.gov/news/RULINGD-007(subjectmatterjurisdiction)(2).pdf.
149. Government Motion for Reconsideration (D-007).
150. Government Reply to Defense Response to Motion for Reconsideration (D-007) at 12, United States v. Jawad (Military Comm'n Guantánamo Bay, Cuba Oct. 21, 2008), available at http://www.defenselink.mil/news/d20081104JawadD007Reconsider.pdf (beginning on p. 15).
151. United States v. Jawad, 1 M.C. 347, 347 (Military Comm'n Guantánamo Bay, Cuba Oct. 29, 2008) (ruling on Government Motion for Reconsideration (D-007)) ("The Government's additional legal precedent and argument submitted in support of its request for reconsideration is unpersuasive....").
152. This ethically dubious behavior by Office of Military Commissions prosecutors was, unfortunately, not uncommon. The ethically challenged atmosphere led numerous prosecutors to resign from the Office of Military Commissions, including the lead prosecutor in the Jawad case.
153. See, e.g., Declaration of Lieutenant Colonel Darrel J. Vandeveld at 1, United States v. Jawad (Military Comm'n Guantánamo Bay, Cuba Sept. 22, 2008), available at http://humanrights.ucdavis.edu/projects/the-guantanamo-testimonials-project/testimonies/testimonies-of-prosecution-lawyers/vandeveld_declaration.pdf ("I recently asked to be permitted to resign from the OMC-P....").
154. Dan Ephron & Daniel Stone, Gitmo Grievances, NEWSWEEK, May 26, 2008, at 24, 25 ("[Colonel Morris] Davis is just one of several military prosecutors who have come to believe the Guantánamo tribunal process is deeply flawed.
155. None of these men is a bleeding-heart type; they are spit-and-polish career officers. But in the past four years, at least five of them have quit their jobs or walked away from Gitmo cases because they believed their own integrity was being compromised.").
156. see also Gregory S. McNeal, Organizational Culture, Professional Ethics and Guantánamo, 42 CASE W. RES. J. INT'L L. 125, 133 (2009) ("Colonel [Morris] Davis, the Chief Prosecutor of the military commissions, resigned after criticizing the process for its politically-motivated undue command influence.").
157. Al Bahlul was the second detainee to be tried by military commission. His trial commenced October 27, 2008. I was his appointed defense counsel.
158. The government provided draft jury instructions to the judge that would have instructed the members consistent with the government theory that any killing by an unlawful combatant was a per se violation of the law of war. The judge modified the government's proposed instructions to conform to Judge Henley's rulings in the Jawad case.
159. The government's proposed instructions do not appear in the trial record of United States v. al Bahlul.
160. As Colonel Gregory noted, A violation of the law of war may be proven by either the killing of protected persons or by using a means, weapon, or technique considered illegal under the laws of war.... A killing may also violate the law of war where an accused, regardless of status as a lawful or unlawful combatant, intentionally and without justification kills any person by a method, manner, or under circumstances that violate the law of war. Transcript of Trial at 853, United States v. al Bahlul (Military Comm'n Guantánamo Bay, Cuba Oct. 31, 2008), available at http://www.defense.gov/news/05alBahlul-trans-Pages717-993-Redacted.pdf.
161. In the summer of 2009, as Congress was considering proposals to reform the military commissions, I was invited to testify. One of my recommendations was to codify Judge Henley's ruling by adding the following definition into the MCA: IN VIOLATION OF THE LAW OF WAR-The term 'in violation of the law of war' means in a method or manner or under circumstances which violate the law of war. The mere status of being an unprivileged enemy belligerent, without more, is insufficient to establish that an act was 'in violation of the law of war[.]'.
162. U.S. MANUAL FOR MILITARY COMM'NS pt. IV, § 5(15)(c), at IV-13 (2010) (emphasis added).
163. See Barack Obama, President, Remarks by the President on National Security (May 21, 2009), available at http://www.whitehouse.gov/the_press_office/Remarks-by-the-President-On-National-Security-5-21-09 ("[D]etainees who violate the laws of war... are... best tried through military commissions.... [Military commissions] are an appropriate venue for trying detainees for violations of the laws of war.").
164. See David Frakt, New Manual For Military Commissions Disregards the Commanderin-Chief, Congressional Intent and the Laws of War, HUFFINGTON POST (Apr. 29, 2010, 6:23 PM), http://www.huffingtonpost.com/david-frakt/new-manual-for-military-c_b_557720.html ("The absurdity of claiming that no actual violation of the law of war is required to commit murder in violation of the law of war severely undermines the Administration's claims of commitment to adherence to the rule of law and their pledge to use military commissions only to prosecute law of war offenses.").
165. See, e.g., Letter from William H. Neukom, President, Am. Bar Ass'n, to President George W. Bush (Feb. 27, 2008), available at http://www.abanet.org/poladv/letters/antiterror/2008feb27_detainees_l.pdf ("Under the current system, we believe that detainees will not receive due process or fair trials.... [S]tatements secured through coercion could be introduced against a defendant.").
166. Legal Issues Regarding Military Commissions and the Trial of Detainees for Violations of the Law of War: Hearing Before the S. Comm. on Armed Servs., 111th Cong. 8 (2009) (statement of Jeh C. Johnson, General Counsel, Department of Defense) ("The most prominent criticism we hear of the current Military Commissions Act is that it permits the use of [coerced] statements, if obtained before December 30, 2005.").
167. Compare Dickerson v. United States, 530 U.S. 428, 433 (2000) (noting that both the Fifth and Fourteenth Amendments require "that a confession be voluntary to be admitted into evidence"), and United States v. Bubonics, 45 M.J. 93, 95 (C.A.A.F. 1996) ("The necessary inquiry is whether the confession is the product of an essentially free and unconstrained choice by its maker. If, instead, the maker's will was overborne and his capacity for self-determination was critically impaired, use of his confession would offend due process."), with U.S. MANUAL FOR MILITARY COMM'NS pt. III, M.C.R.E. 304(c)(1)-(2), at III-9 (2007) (utilizing a standard that allows coerced statements to be admitted if the "the totality of the circumstances renders the statement reliable" and, if the statement was obtained post-December 30, 2005, that it was not obtained by "cruel, inhuman, or degrading treatment").
168. See U.S. MANUAL FOR MILITARY COMM'NS pt. III, M.C.R.E. 304(a)(1) ("A statement obtained by use of torture shall not be admitted into evidence against any party or witness, except against a person accused of torture as evidence that the statement was made.").
169. Article 15 of the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, which the United States has ratified, prohibits the use of statements obtained by torture in any judicial proceeding.
170. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 15, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85, 113 ("Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.").
171. U.S. MANUAL FOR MILITARY COMM'NS pt. III, M.C.R.E. 304(c)(1), at III-9.
172. See Court Ordered Brief Regarding D-021 and D-022 at 1, United States v. Jawad (Military Comm'n Guantánamo Bay, Cuba Oct. 3, 2008), available at http://www.defense.gov/news/Dec2008/4Dec08EXHIBITSA-H-redacted.pdf (beginning on p. 52) (articulating the defense's argument that "MCRE 304(a)(1) requires suppression of all alleged statements of Mr. Jawad made in Afghan police custody on 17 December 2002 as such statements were the result of torture").
173. Defense Response to Government Brief on the Issue of Torture Under M.C.R.E. 304 (D-021, D-022) at 14, United States v. Jawad (Military Comm'n Guantánamo Bay, Cuba Oct. 10, 2008), available at http://www.defense.gov/news/Dec2008/4Dec08EXHIBITSA-Hredacted.pdf (beginning on p. 27) ("The government has failed to meet their burden of proving that Mr. Jawad's alleged confessions were the product of anything other than torture and coercion. The statements must be suppressed.").
174. Government Brief on the Issue of Torture Under M.C.R.E. 304 (D-021, D-022) at 3, United States v. Jawad (Military Comm'n Guantánamo Bay, Cuba Oct. 3, 2008), available at http://www.defense.gov/news/Dec2008/4Dec08EXHIBITSA-H-redacted.pdf (beginning on p. 42) ("The accused's recent, unsworn allegations of threats in this case... are insufficient to establish 'torture' as defined under the MCA and MMC, such that his statements to the Afghan police should be suppressed.").
175. Government Response to the Defense Brief on the Issue of Torture Under M.C.R.E. 304 (D-021, D-022) at 1, United States v. Jawad (Military Comm'n Guantánamo Bay, Cuba Oct. 10, 2008), available at http://www.defense.gov/news/Dec2008/4Dec08EXHIBITSA-H-redacted.pdf (beginning on p. 18) ("The arguments in the defense brief... do not support finding that the accused was 'tortured' as defined under M.C.R.E. 304.").
176. Government Brief on the Issue of Torture Under M.C.R.E. 304, 129, at 4-5 ("Regarding any threats allegedly made against himself, even if believed... the accused's bare, unsworn allegation that the Afghan police threatened to 'kill me' does not establish a threat of imminent death against him.... [T]he alleged threat against his family is so indefinite and so removed from any ability to immediately act on it that it could not possibly amount to a threat of imminent death under M.C.R.E. 304(b)(3).").
177. United States v. Jawad, 1 M.C. 345, 346 (Military Comm'n Guantánamo Bay, Cuba Oct. 28, 2008) (ruling on Defense Motion to Suppress Out-of-Court Statements of the Accused to Afghan Authorities (D-022)).
178. Clewis v. Texas, 386 U.S. 707 (1966).
179. United States v. Jawad, 1 M.C. 349, 350 (Military Comm'n Guantánamo Bay, Cuba Nov. 19, 2008) (ruling on Defense Motion to Suppress Out-of-Court Statements by the Accused Made While in U.S. Custody (D-021)).
180. Brief on Behalf of Appellant at 19, United States v. Jawad, No. 08-004 (Ct. Military Comm'n Rev. Guantánamo Bay, Cuba Dec. 4, 2008), available at http://www.defense.gov/news/Dec2008/4Dec08ProsecutionBrief.pdf ("[T]he Military Judge should have examined the totality of the circumstances in which the statements to U.S. authorities were made to determine directly whether those statements were 'obtained by use of torture' under the M.C.A., or were otherwise the product of coercion.").
181. U.S. MANUAL FOR MILITARY COMM'NS pt. III, M.C.R.E. 304(a)(5), at III-8 to -9 (2010) (barring the use of such evidence, except when it "would have been obtained even if the statement had not been made" or when "use of such evidence would otherwise be consistent with the interests of justice").
182. pt. III, M.C.R.E. 304(a)(2)(B)(ii), at III-8.
183. The government filed this document under seal, as it contained classified data. As of this date, an unredacted, releasable version of the document has not been made publicly available. The defense motion to suppress, however, references the filing and the various statements relied upon by the government.
184. Nedra Pickler, Justice Agrees to Exclude Detainee's Confession, ASSOCIATED PRESS, July 15, 2009, available at NewsBank, Rec. No. D99F40BO9 (reporting that the DOJ would not oppose the ACLU's motion to exclude statements made by Jawad from consideration).
185. Bacha v. Obama, No. 05-2385, 2009 WL 2149949 (D.D.C. July 17, 2009) (order granting Jawad's motion to suppress).
186. See S. COMM. ON ARMED SERVS., 110TH CONG., INQUIRY INTO THE TREATMENT OF DETAINEES IN U.S. CUSTODY, at xiii (Comm. Print 2008) ("The President's order closed off application of Common Article 3 of the Geneva Conventions, which would have afforded minimum standards for humane treatment, to al Qaeda or Taliban detainees.").
187. See generally THE TORTURE REP., http://www.thetorturereport.org (last visited Jan. 16, 2011) (investigating rendition, detention, and interrogation under the Bush administration).
188. See, e.g., A.T. CHURCH, III, OFFICE OF THE SEC'Y OF DEF., DETAINEE FILES: REVIEW OF DEPARTMENT OF DEFENSE DETENTION OPERATIONS AND DETAINEE INTERROGATION TECHNIQUES (U) (2005), available at http://www.aclu.org/images/torture/asset_upload_file625_26068.pdf (investigating the Department of Defense's detention operations in the Global War on Terror).
189. JAMES R. SCHLESINGER, HAROLD BROWN, TILLIE K. FOWLER, CHARLES A. HOMER & JAMES A. BLACKWELL, JR., FINAL REPORT OF THE INDEPENDENT PANEL TO REVIEW DOD DETENTION OPERATIONS (2004), available at http://www.humanrightsfirst.org/us_law/PDF/abuse/schlesinger_report.pdf (same).
190. U.S. DEP'T OF DEF., ARMY REGULATION 15-6: FINAL REPORT: INVESTIGATION INTO FBI ALLEGATIONS OF DETAINEE ABUSE AT GUANTANAMO BAY, CUBA DETENTION FACILITY (2005) [hereinafter SCHMIDT REPORT] (investigating violations of Army interrogation procedures at the detention facility in Guantánamo Bay, Cuba).
191. For example, the treatment received by Mohammed al-Qahtani was indisputably worse.
192. See generally Adam Zagorin & Michael Duffy, Inside the Interrogation of Detainee 063, TIME, June 12, 2005, at 26 (reviewing the interrogation log of Mohammed al-Qahtani).
193. Another example was the treatment of the so-called high-value detainees, particularly in the secret CIA ghost prisons.
194. See INT'L COMM. OF THE RED CROSS, REPORT ON THE TREATMENT OF FOURTEEN "HIGH VALUE DETAINEES" IN CIA CUSTODY 7-21 (2007), available at http://www.nybooks.com/media/doc/2010/04/22/icrc-report.pdf (describing the methods used on fourteen individuals arrested in Pakistan and Thailand between 2002 and 2005).
195. Mark Danner, US Torture: Voices from the Black Sites, N.Y. REV. BOOKS, Apr. 9, 2009, at 69, 69 (describing stories of detainee abuse in the war on terrorism).
196. Richard Norton-Taylor, Court Attacks US Refusal to Disclose Torture Evidence: Information Is Vital to UK Respondent's Case: British Judges Say Claims Are Unprecedented, GUARDIAN (U.K.), Oct. 23, 2008, at 9.
197. Josh White, Tactic Used After It Was Banned, WASH. POST, Aug. 8, 2008, at A12 (noting that the sleep deprivation technique was "dubbed the 'frequent flyer' program in official documents").
198. Transcript of Hearing, Ex. 40 at 1-2, United States v. Jawad (Military Comm'n Guantánamo Bay, Cuba June 19, 2008) (on file with the Duke Law Journal).
199. The motion, attachments, government response, and initial defense reply can be found at http://www.defense.gov/news/d20080528DefenseMotiontoDismissBasedonTortureofDetainee.pdf.
200. The oral argument that I gave at the June 19 hearing, in particular, received a significant amount of attention. The ACLU published the entire argument on its website, and several articles quoted excerpts.
201. Jamil Dakwar, Guantánamo's Frequent Flyer Program, ACLU BLOG OF RIGHTS (June 20, 2008, 4:45 PM), http://blog.aclu.org/2008/06/20/guantnamosfrequent-flyer-program.
202. Anthony Lewis, Official American Sadism, N.Y. REV. BOOKS, Sept. 25, 2008, at 45, 45, 48.
203. Deborah Colson, Supreme Court Returns the Constitution to Guantánamo, HUFFINGTON POST (June 25, 2008, 9:20 PM), http://www.huffingtonpost.com/deborahcolson/the-supreme-court-returns_b_109260.html.
204. Michael Winship, What Patriotism Is, and Is Not, BILL MOYERS J. (July 2, 2008, 6:12 PM), http://www.pbs.org/moyers/journal/blog/2008/07/michael_winship_what_patriotis.html.
205. see also Dan Froomkin, Battered Congress Syndrome, WASH. POST (June 24, 2008, 11:31 AM), http://busharchive.froomkin.com/BL2008062400869_pf.htm (excerpting a portion of the argument for his column).
206. See generally David J.R. Frakt, Closing Argument at Guantanamo: The Torture of Mohammed Jawad, 22 HARV. HUM. RTS. J. 1 (2009) (publishing the defense's closing argument for a pretrial dismissal).
207. United States v. Jawad, 1 M.C. 334, 334 (Military Comm'n Guantánamo Bay, Cuba Sept. 24, 2008) (ruling on Defense Motion to Dismiss-Torture of the Detainee (D-008)).
208. This echoes language from the U.S. antitorture statute, which defines torture, in part, as "procedures calculated to disrupt profoundly the senses or the personality." 18 U.S.C. § 2340(2)(B) (2006).
209. "[T]he narrow issue before this Military Commission is whether dismissal of the charges against this accused is appropriate.... Answering this question does not require the Military Commission to decide as fact that this accused was tortured." Jawad, 1 M.C. at 336.
210. See Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field art. 50, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 (defining "[g]rave breaches" to include "torture or inhuman treatment").
211. Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea art. 51, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 (same).
212. Geneva Convention Relative to the Treatment of Prisoners of War art. 130, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (same).
213. Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 147, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 (same).
214. War Crimes Act of 1996, 18 U.S.C. § 2441(c).
215. Jawad, 1 M.C. at 336.
216. See The Guantánamo Docket: High Value, N.Y. TIMES, http://projects.nytimes.com/guantanamo/detainees/high-value (last visited Jan. 16, 2010) ("Sixteen men in Guantánamo have been described as 'high-value detainees' by United States officials.").
217. Jawad, 1 M.C. at 335. Jawad's interrogation records revealed that he was not interrogated during the frequent flyer program or for several months thereafter.
218. The Joint Detention Operations Group was responsible for the day-to-day running of the Guantánamo detention facilities.
219. Transcript of Record, 106, at 451-53, 466.
220. News Transcript, Dep't of Def., Media Availability with Vice Admiral Church (May 12, 2004), http://www.defense.gov/transcripts/transcript.aspx?transcriptid=3002.
221. Donald Rumsfeld, Sec'y of Def., Pentagon Press Briefing (CNN television broadcast May 4, 2004).
222. Admiral Church visited Guantánamo on the orders of Secretary of Defense Donald Rumsfeld as part of the initial crisis response to the Abu Ghraib prison abuse scandal. He later conducted a comprehensive review of DOD interrogation operations, the result of which was known as The Church Report. This comprehensive report reiterated his initial findings from his May 2004 visit.
223. See Josh White & R. Jeffrey Smith, Abuse Review Exonerates Policy: Low-Level Leaders and Confusion Blamed, WASH. POST, Mar. 10, 2005, at A16 ("Church's review, according to officials familiar with it, sheds little new light on what has been a year of high-level investigations....").
224. The Rutherford Inst., Human Rights, Faith-Based and Justice Groups Urge Obama to Establish Presidential Torture Commission, RIGHT SIDE NEWS (Apr. 28, 2009, 15:49), http://www.rightsidenews.com/200904284559/editorial/us-opinion-and-editorial/humanrights-faith-based-and-justice-groups-urge-obama-to-establish-torture-commission.html ("The Rutherford Institute has joined with a coalition of 18 other human rights, faith-based, and justice organizations to urge President Obama to appoint a commission to investigate torture sanctioned by the Bush administration.").
225. EMINENT JURISTS PANEL ON TERRORISM, COUNTER-TERRORISM AND HUMAN RIGHTS, INT'L COMM'N OF JURISTS, ASSESSING DAMAGE, URGING ACTION 159 (2009) (noting the "harmful results of intemperate responses to the threat of terrorism").
226. Colum Lynch, U.S. Policies Criticized by U.N. Rights Watchdog, WASH. POST, June 25, 2009, at A11 ("The United Nations' top human rights advocate... said officials who authorized the use of 'torture' must be held accountable.... She also called for a probe of officials involved in the Bush administration's harsh interrogation program.").
227. See Daphne Eviatar, Documents Suggest DOD Failed to Probe Alleged War Crimes, WASH. INDEP. (Sept. 25, 2009, 6:00 AM), http://washingtonindependent.com/60833/documentssuggest-detainee-abuses-by-defense-department.
228. Eric Umansky, Pentagon Investigating Gitmo Abuse? Who Knows, PROPUBLICA (Oct. 29, 2008, 5:39 PM), http://www.propublica.org/article/pentagon-investigating-gitmo-abuse-who-knows-1029.
229. As of this writing, I have never been contacted by anyone in DOD about the report.
230. Memorandum from Dep't of Defense to Joint Intelligence Grp. & Joint Task Force- Guantanamo, Operational Policy Memorandum #14, Behavioral Science Consultation Team (BSCT) (Dec. 10, 2004), available at http://humanrights.ucdavis.edu/projects/the-guantanamotestimonials-project/testimonies/testimonies-of-standard-operating-procedures/bsct_sop_2004.pdf.
231. See PHYSICIANS FOR HUMAN RIGHTS, EXPERIMENTS IN TORTURE: EVIDENCE OF HUMAN SUBJECT RESEARCH AND EXPERIMENTATION IN THE "ENHANCED" INTERROGATION PROGRAM 7-10 (2010) (describing the role of health professionals in designing and monitoring torture activities).
232. Joseph Goldstein, Psychologists Are Split Over Gitmo, N.Y. SUN, Aug. 15, 2008, at 1 (discussing the debate over whether military psychologists should be prohibited from contributing to the interrogation of the detainees).
233. Editorial, Psychologists and Torture, BOS. GLOBE, Aug. 30, 2008, at A16 (suggesting that the members of the American Psychological Association (APA) should vote for officers and resolutions that oppose psychologist participation in enhanced interrogation techniques).
234. Benedict Carey, Psychologists Vote to End Interrogation Consultations, N.Y. TIMES, Sept. 17, 2008, at A26 (reporting that the APA passed a referendum prohibiting psychologists from consulting in the interrogations of detainees held in violation of international law or the U.S. Constitution).
235. Joseph Goldstein, Psychology Group Changes Policy on Interrogations, N.Y. SUN, Sept. 18, 2008, at 6 (same).
236. see also Dan Ephron, The Biscuit Breaker, NEWSWEEK, Oct. 27, 2008, at 49, 49-50 (profiling Steven Reisner, an APA presidential candidate and advocate of prohibiting psychologists from participating in interrogations).
237. Referendum on Torture: Debate Over Role of Psychologists in Military Interrogations Comes to a Head at APA Annual Convention, DEMOCRACY NOW! (Aug. 18, 2008), available at http://www.democracynow.org/2008/8/18/referendum_on_torture_debate_over_role (previewing the APA's vote on the referendum).
238. Daniel Schulman, Is the Army Forcing Out a Gitmo Whistleblower?, MOTHER JONES (May 31, 2010, 3:00 AM PDT), http://motherjones.com/politics/2010/05/vandeveld-militarycommissions. 184.
239. See, e.g., Scott Horton, The Great Guantánamo Puppet Theater, HARPER'S MAG., Feb. 21, 2008, http://www.harpers.org/archive/2008/02/hbc-90002460 (describing the role of politics in the Guantánamo military trials).
240. Ross Tuttle, Rigged Trials at Gitmo, NATION, Mar. 10, 2008, at 4, 4-6 (same).
241. Morris Davis, AWOL Military Justice, L.A. TIMES, Dec. 10, 2007, at 15.
242. Davis continued. 'At which point, [Haynes's] eyes got wide and he said, 'Wait a minute, we can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals. We've got to have convictions.' Davis submitted his resignation on October 4, 2007, just hours after he was informed that Haynes had been put above him in the commissions' chain of command.").
243. United States v. Hamdan, 1 M.C. 78 (Military Comm'n Guantánamo Bay, Cuba May 9, 2008) (ruling on Motion to Dismiss (Unlawful Influence) (D-026)).
244. See Jane Sutton, Guantanamo Trials Put Generals at Odds, REUTERS (Aug. 13, 2008, 6:49 AM EDT), http://www.reuters.com/article/idUSN1337894520080813 ("Davis testified on Wednesday that Jawad's case 'went from the freezer to the frying pan thanks to Gen. Hartmann.'").
245. The Motion, Government Response, and Supplemental Motions can be found at http://www.defense.gov/news/Jawad - D - 004 Motion to Dismiss Unlawful Influence 1.pdf. Under the MCA, no person could attempt to influence the professional judgment of the Chief Prosecutor. 10 U.S.C. § 949b (2006).
246. See Carol Rosenberg, General Accuses Counterpart of Bullying, PITTSBURGH POSTGAZETTE, Aug. 14, 2008, available at Factiva, Doc. No. PPGZ000020080814e48e0006l ("[S]ubordinates have described Hartmann's style as abusive 'nano-management'....").
247. Brigadier General Gregory Zanetti described General Hartmann as "abusive, bullying and unprofessional,... pretty much across the board.".
248. See, e.g., Ross Tuttle, More Meddling at Gitmo, NATION (July 17, 2008), http://www.thenation.com/article/more-meddling-gitmo ("Hartmann's stance has 'eroded the independence of his own function and the independence of the Convening Authority'....").
249. After General Hartmann was disqualified from a third case, United States v. Khadr, he was finally removed from his position as legal advisor.
250. See Andy Worthington, The Dark Heart of Guantanamo, HUFFINGTON POST (Oct. 2, 2008, 10:26 AM), http://www.huffingtonpost.com/andyworthington/the-dark-heart-of-guantan_b_131188.html (describing Hartmann's tenure, disqualifications, and promotion).
251. Stacy Sullivan, Confessions of a Former Guantánamo Prosecutor, SALON (Oct. 23, 2008, 7:19 AM ET), http://www.salon.com/news/feature/2008/10/23/vandeveld.
252. Other media outlets also reported that Lieutenant Colonel Vandeveld quit. E.g., William Glaberson, Guantánamo Prosecutor Is Quitting in Dispute Over a Case, N.Y. TIMES, Sept. 24, 2008, at A20.
253. Declaration of Lieutenant Colonel Darrel J. Vandeveld.
254. See Melia, Former Gitmo Prosecutor Blasts Tribunals, (describing Vandeveld's comments and the military's response).
255. Josh Meyer, For Lawyer, Trial Was Tribulation, L.A. TIMES, Oct. 12, 2008, at A1 (same).
256. Ross Tuttle, Smearing Colonel Vandeveld, NATION (Oct. 20, 2008), http://www.thenation.com/article/smearing-colonel-vandeveld.
257. William Glaberson, U.S. Drops War Crimes Charges for 5 Guantánamo Cases, N.Y. TIMES, Oct. 22, 2008, at A1.
258. Eric Umansky, Gitmo Dismissals Don't Include One of Most Problematic Cases, PROPUBLICA (Oct. 22, 2008, 11:50 AM), http://www.propublica.org/article/gitmo-dismissals-dont-include-one-of-most-problematic-cases-1022. 200.
259. Darrel J. Vandeveld, I Was Slow to Recognize the Stain of Guantanamo, WASH. POST (Jan. 18, 2009), http://www.washingtonpost.com/wp-dyn/content/article/2009/01/14/AR2009011 402319.html?sid=ST2009011402450 ("Now that I'm home in Erie, far removed from Guantanamo, I have regained my sense of self.
260. Legal Issues Surrounding the Military Commissions System: Hearing Before the Subcomm. on the Constitution, Civil Rights, and Civil Liberties of the H. Comm. on the Judiciary, 111th Cong. 16 (2009) (statement of Lieutenant Colonel Darrel J. Vandeveld, Former Prosecutor, Guantánamo Bay Military Commissions).
261. Declaration of Lieutenant Colonel Darrel Vandeveld at 1, 14, Al Halmandy v. Obama, No. 05-cv-02385 (D.D.C. Jan. 12, 2009).
262. See MARK DENBEAUX, REPORT ON GUANTANAMO DETAINEES: A PROFILE OF 517 DETAINEES THROUGH ANALYSIS OF DEPARTMENT OF DEFENSE DATA 2 (2006), available at http://law.shu.edu/publications/guantanamoReports/guantanamo_report_final_2_08_06.pdf ("Fifty-five percent (55%) of the detainees are not determined to have committed any hostile acts against the United States or its coalition allies.... Only 8% of the detainees were characterized as al Qaeda fighters. Of the remaining detainees, 40% have no definitive connection with al Qaeda at all and 18%... have no definitive affiliation with either al Qaeda or the Taliban.").
263. see also Carol Rosenberg, Review: Most Guantánamo Detainees Should Be Released, MIAMI HERALD, Jan. 29, 2010, at A7 ("A yearlong review of evidence against men who are being held as terrorism suspects at Guantánamo has concluded that most of them should be released or transferred to third countries.").
264. Katharine Q. Seelye, Threats And Responses: The Detainees; Some Guantanamo Prisoners Will Be Freed, Rumsfeld Says, N.Y. TIMES, Oct. 23, 2002, at A14.
265. Lawrence Wilkerson, Some Truths About Guantanamo Bay, WASH. NOTE (Mar. 17, 2009, 7:27 PM), http://www.thewashingtonnote.com/archives/2009/03/some_truths_abo.
266. see also Andrew O. Selsky, Ex-Bush Official: Many Gitmo Detainees Innocent, S.F. GATE (Mar. 20, 2009), http://articles.sfgate.com/2009-03-20/news/17215507_1_guantanamo-detainees-combatants ("Many detainees locked up at Guantanamo were innocent men swept up by U.S. forces unable to distinguish enemies from noncombatants, a former Bush administration official said Thursday.").
267. Declaration of Col. Lawrence Wilkerson at 4, In re Petitioners Seeking Habeas Corpus Relief in Relation to Prior Detentions at Guantánamo Bay, 700 F. Supp. 2d 119 (D.D.C. 2010) (CV 05-1009), available at http://www.truthout.org/files/Wilkerson.pdf.
268. See Exec. Order No. 13,492, 74 Fed. Reg. 4897, 4897 (Jan. 22, 2009) ("Over the past 7 years, approximately 800 individuals whom the Department of Defense has ever determined to be, or treated as, enemy combatants have been detained at Guantánamo. The Federal Government has moved more than 500 such detainees from Guantánamo, either by returning them to their home country or by releasing or transferring them to a third country.").
269. CTR. FOR CONSTITUTIONAL RIGHTS, GUANTANAMO HABEAS SCORECARD 1 (2010), available at http://www.ccrjustice.org/files/2010-11-02HabeasSCORECARDWebsiteVersion.pdf.
270. GUANTANAMO REVIEW TASK FORCE, FINAL REPORT, at ii (2010), available at http://www.justice.gov/ag/guantanamo-review-final-report.pdf.
271. Fewer than thirty Guantánamo detainees have ever been charged with a crime before the military commissions.
272. See Commission Cases, DEPARTMENT OF DEFENSE, http://www.defense.gov/news/commissions.html (last visited Jan. 16, 2010) (listing twenty-four cases). Of these, three have been convicted (Hicks, Hamdan, and al Bahlul), and three have had the charges dropped and been released (Mohammed Jawad, Binyam Mohamed, and Fouad al Rabia).
273. The third officer, Major Eric Montalvo, retired.
274. The Guantanamo Defense Clinic at Duke Law School provided expert research assistance to the Jawad defense team.
275. Andy Worthington, The Unsung Heroes Who Helped Secure Mohammed Jawad's Release from Guantánamo, COMMONDREAMS.ORG (Sept. 21, 2009), http://www.commondreams.org/view/2009/09/21-7.
276. David G. Savage & Christi Parsons, Court Rules Bagram Prisoners Can't Appeal Their Detention, L.A. TIMES, May 21, 2010, at AA1.
277. See David J.R. Frakt, Lawfare and Counterlawfare: The Demonization of the Gitmo Bar and Other Legal Strategies in the War on Terror, 43 CASE W. RES. J. INT'L L. (forthcoming Mar. 2011) ("The article analyzes several specific legal actions, including the efforts to discredit and malign attorneys who represented Guantanamo detainees, which attacks have continued to come from defenders of Bush-era policies.").
278. Steve Vladeck, The War on Lawyers, Continued..., BALKINIZATION (May 25, 2010, 10:25 AM), http://balkin.blogspot.com/2010/05/war-on-lawyers-continued.html ("[S]ection 1037 of the Act..., titled 'Inspector General Investigation of the Conduct and Practices of Lawyers Representing Individuals Detained at Naval Station, Guantanamo Bay, Cuba,' instructs the Department of Defense IG to 'conduct an investigation of the conduct and practices of lawyers' who represent clients at Guantánamo and report back to the House and Senate Armed Services Committees within 90 days.").
279. See generally David Luban, Lawfare and Legal Ethics in Guantánamo, 60 STAN. L. REV. 1981, 1983 (2008) ("This Article is about government policies that have (intentionally or not) made it more difficult for lawyers to provide legal representation to Guantánamo prisoners.").