Kevin Lanigan – Director of the Law and Security Program at Human Rights First – is in Cuba to monitor the proceedings and is reporting back on events as they unfold. He is providing updates of what he observes.
On Wednesday March 12, Mohammed Jawad, a young Afghan man, was arraigned on military commission charges enacted into law in 2006, accusing him of throwing a hand grenade into a vehicle carrying two U.S. Army non-commissioned officers and their Afghan interpreter, wounding all three of them. Jawad was 16 years old at the time of the alleged offense in December 2002. He has been in U.S. military custody ever since then—now for more than 5 years—first at the detention facility at Bagram Air Base in Afghanistan, and then at Guantánamo.
We had heard rumors since the night before that Jawad’s arraignment might not happen. Still, we were told Wednesday morning that the arraignment would begin at 1pm. After going through the external security checkpoints and being in place by the appointed hour, three more hours passed with nothing happening, as the media representatives and the NGO observers sat outside at picnic tables, sheltered from the sun by a tarp.
Finally, at nearly 4pm, we were ushered through the final security checkpoint and into the courtroom for an arraignment that should have taken fifteen minutes, but actually took two hours. By the time we were seated, Jawad was already in the courtroom, dressed in his orange prison jumpsuit with his feet in chains, alternately holding his head in his hands and lying his head on his crossed arms on the table.
Marine Colonel Ralph Kohlmann, the military judge in Jawad’s case, began the proceedings by announcing that he had two things to put on the record. First, Kohlmann reported that Jawad had refused to leave his cell yesterday morning to come to the arraignment, describing at length his analysis of the military commission rules and the various steps he and others took to get Jawad to the courtroom. (After the proceedings were over, Army Colonel J. Michael Sawyers, Jawad’s detailed military defense counsel, told us that Jawad had to be forcibly carried from his cell). And second, Col. Kohlmann chided defense counsel for failing to have Jawad dressed in civilian clothes for court, so that no negative inference could be drawn from his appearance in prison garb.
Then Col. Kohlmann asked Jawad whether he accepted Col. Sawyers as his defense counsel. (This inquiry was interrupted when Col. Kohlmann realized that Jawad’s headset—through which the proceedings were to be translated into Jawad’s native Pashto—was not working. After replacing the headset, the proceedings began again). Col. Kohlmann explained to Jawad his right to counsel in these proceedings, in language very similar to what any regular viewer of our police procedural television shows would easily recognize. But Jawad, raised in the mountains of Afghanistan and Pakistan, and with no more than an elementary-level religious education, has never seen those shows. Col. Kohlmann repeated his explanation of Jawad’s right to counsel, asking again and again if Jawad would accept Sawyers as his attorney, if he wanted another military counsel detailed, if he knew a civilian attorney he would prefer, or if he wanted to represent himself.
Through the court interpreter, Jawad said he did not understand what Col. Kohlmann was saying, that he wanted no counsel and no trial, and that he had things to say that he wanted Col. Kohlmann and the journalists to hear:
I’ve been treated unfairly since my arrest. I’m innocent. I’ve been tortured.
(See Human Rights First report entitled Tortured Justice, http://www.humanrightsfirst.info/wp-content/uploads/pdf/08307-etn-tortured-justice-web.pdf).
I’m a human being. I’ve not infringed anyone’s rights. What is being done
to me is illegal. I was brought here illegally….When I was arrested I was only
16. I don’t know court. I don’t know a judge’s job….I’m very glad if these words
get out today. I’m glad there are journalists to hear me. Before if I said
anything it would not get outside my cell….Is it in the United States
Constitution to be treated this way? I want justice and fairness. That is all I
have to say.
Jawad said that, as a child, he read in books and newspapers of the American government’s criticism of Taliban cruelty in Afghanistan, and that the Taliban would kill and imprison people without trial and did not respect human rights. But Jawad also said that he was arrested by the Americans more than five years ago with no trial, and that, while he was held in Bagram, Americans killed three Afghans in custody there. (See Human Rights First report entitled Command’s Responsibility, http://www.humanrightsfirst.info/wp-content/uploads/pdf/06221-etn-hrf-dic-rep-web.pdf. and description of movie Taxi to the Dark Side, http://www.humanrightsfirst.org/our-work/law-and-security/right-to-remedy/etn/misc/film/index.asp).
During the course of this statement by Jawad, Col. Kohlmann tried to continue questioning Jawad about acceptance of counsel, but also gave him some leeway to say what he wanted. In the end, Jawad essentially shut down, saying he had a terrible headache, refusing to accept Col. Sawyers or any other military counsel, saying he knew no civilian lawyer to take his case, and saying he did not want to represent himself and did not want a trial. Col. Kohlmann told Jawad that the proceedings would continue nonetheless and ordered Col. Sawyers to continue as Jawad’s counsel for the time being.
After the prosecutor, Army Lieutenant Colonel Darrel Vandeveld, read a summary of the charges, Col. Kohlmann asked Jawad for a plea. Since entering any plea would cut off the defense right to file certain motions under commission rules, Sawyers said they would enter no plea. Thus ended the arraignment.
After the arraignment, Col. Kohlmann considered a request for excusal by Col. Sawyers. Some observers predicted this request was based on Jawad’s unwillingness to be represented by a uniformed U.S. military lawyer—a not-uncommon situation in Guantánamo. But this was different. The military commissions’ defense office, it seems, is relying increasingly on reserve officers called to active duty on one-year orders. Sawyers—who has met with Jawad numerous times over the last five months and even traveled to Afghanistan to help prepare the defense—leaves active duty and returns to civilian life on March 18, when he will no longer be able to serve as Jawad’s counsel. This is yet another variable in a military commission system that is being made up along the way.
Attorney General Mukasey should have seen all this. When he was here in February, he reportedly focused on preparations for the trials of Khalid Sheikh Mohammed and the other “high value” detainees. But what we saw yesterday was an inherently limited system, not well equipped to deal even with predictable issues arising at the simplest stage of the proceeding.
Depending on your perspective yesterday, you might have viewed Jawad as keenly aware of his audience or obviously damaged by five years of isolation and abuse. Either way, it is hard to conceive of this military commissions system being able to cope effectively anytime soon with the “high value” detainees.