When it comes to terrorist suspects in detention, Obama is finding that Bush set a difficult precedent to break

Overdue process

The cavernous room in the U.S. District Court in Washington, D.C., was nearly empty, except for a few journalists holding yellow legal pads. A small parade of government lawyers marched in and rested their briefcases on their desks before approaching the trio of lawyers representing Mohammed Jawad, an Afghan national who was detained in 2002 after being accused of throwing a grenade at an American convoy, injuring several American soldiers. He was between 12 and 17 years old at the time and has been in U.S. custody for seven years. The hearing, held in June, was not related to Jawad’s guilt or innocence. Rather, it was his habeas corpus proceeding — the legal challenge to the government’s ability to hold him in the first place.

It is widely believed that Jawad’s confession, offered to Afghan authorities shortly after his capture, was coerced through torture. Jawad is illiterate, and the confession was written in a dialect he didn’t speak, accompanied by a separate page bearing only his thumbprint. His military defense attorney, Maj. Eric Montalvo, says that as soon as Jawad was asked about the incident in a language he could understand, he denied everything. Then, Montalvo says, Jawad was handed over to American interrogators who tortured him (“They did things that were classified”). After Jawad attempted suicide in his Guantánamo cell in 2003, he was subjected to the government’s “frequent flyer” program, in which the detainee is moved from cell to cell every few hours for days or weeks on end, in order to deny him sleep.

Because Jawad was technically captured “on the battlefield,” he appeared before a military commission in 2007. At the hearing, the presiding judge threw out the coerced confessions and the original prosecutor, Lt. Col. Darrel Vandeveld, resigned in disgust, penning a letter in which he denounced the commissions as a travesty. Jawad has been denied a criminal trial, where his culpability might be determined according to the high standards of federal courts. “Under the Bush administration, there was this attempt to blur the criminal-justice system and the military-justice system and create this hybrid system that lacked due-process safeguards,” says Stacy Sullivan, a counterterrorism adviser for Human Rights Watch. “We hoped that during the Obama administration we’d be able to put those pieces back where they belong. That doesn’t seem to be happening.” [continued…]

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