Military Lawyer Claims U.S. Paid Gitmo Prosecution Witnesses

Created: August 04, 2009 06:00 | Last updated: July 31, 2020 00:00

Guards search detainees at the Guantanamo Bay Detention Facility. (Zuma Press)

In a startling accusation, defense lawyers in the case of an adolescent arrested and brought to Guantanamo Bay six years ago claim the Justice Department may bring a criminal case against the young man based on testimony from witnesses paid by the U.S. government for their cooperation. Mohammed Jawad was as young as 12 when he was arrested by Afghan police in 2002 and accused of throwing a grenade at U.S. soldiers. Although he confessed to the crime after Afghan officials threatened to kill him and his family, his statements were later ruled inadmissible by two U.S. judges because they were coerced.

Now, although the Justice Department has conceded it can’t rely on those confessions and can no longer imprison Jawad based on the laws of war, it’s said it may file new criminal charges against him based on previously unavailable eyewitness testimony to the crime. Those witnesses, however, according to Jawad’s U.S. military defense lawyer, were all paid in gifts or cash in exchange for their testimony.

U.S. Marine Corps Major Eric Montalvo, one of Jawad’s military defense lawyers, said he’s spoken to all of “the government’s star witnesses” and “they all have a couple of things in common.” First, “they know how to describe the day of the incident anywhere from two to five different ways, placing themselves in different locations for each of these descriptions and witnessing or not witnessing different things,” he said in a recent e-mail message. Second, “they have all received some sort of U.S. government compensation, from shoes and a trip to the United States to $400 for cooperation, which is a princely sum in Afghanistan.”

Furthermore, Montalvo says, when he spoke with officials from the government of Afghanistan, which has been demanding Jawad’s return home, they “openly admit that the matter was not handled properly and they don’t even know what happened because the Americans in their lust for bloodletting snatched Jawad away before the incident could be investigated.”

Jawad’s statements were ruled inadmissible by a military commission last year after a U.S. military judge at Guantanamo Bay agreed that Jawad had been tortured by Afghan police. Statements made to U.S. officials just hours later, the judge also ruled, were still tainted by the Afghan authorities’ torture. U.S. authorities “used techniques to maintain the shock and fearful state associated with the Accused’s initial apprehension by the Afghan police,” the judge ruled. Both confessions were deemed inadmissible.

Jawad’s ordeal didn’t end on the day of his arrest, however. In addition to his torture by the Afghans, military records indicate that at the Bagram prison and later at Guantanamo, Jawad faced more abuse. Jawad arrived at Bagram just days after two prisoners there were murdered during interrogations. Jawad told interrogators he was hooded, strip-searched, shackled and shoved down stairs, slapped and screamed at. Guards there later admitted to abusing prisoners in exactly those ways.

At Guantanamo, military documents reveal that Jawad was subjected to the sleep deprivation technique known as the “frequent flyer” program — he was moved from cell to cell 112 times in 14 days to keep him from sleeping. He was also kicked, beaten, pepper-sprayed and at one point suffered a broken nose. In December 2003, Jawad tried to kill himself by banging his head repeatedly against one of his cell walls. Even the former prosecutor in his military commission case has insisted that there’s no legitimate basis for convicting Jawad. Lt. Col. Darrel Vandeveld, a former military prosecutor, resigned from his post with the military commissions because he insisted there was no reliable evidence supporting the government’s claims.

Vandeveld’s 14-page sworn statement, submitted to support Jawad’s habeas corpus petition and detailing his efforts to investigate the case, is revealing. “I personally do not believe there is any lawful basis for continuing to detain Mr. Jawad,” he wrote. Vandeveld described the evidence as “scattered throughout an incomprehensible labyrinth of databases,” “strewn throughout the prosecution offices” in drawers, bookcases and disorderly piles on desks, and said that “most physical evidence that had been collected had either disappeared or had been stored in locations that no one with any tenure at, or institutional knowledge of, the Commissions could identify with any degree of specificity or certainty.”

Moreover, “crucial physical evidence and other documents relevant to both the prosecution and the defense had been tossed into a locker located at Guantanamo and promptly forgotten.” Vandeveld was unable to locate the videotape of Jawad’s interrogation by U.S. personnel, despite a service-wide search. He also “failed to locate two alleged eyewitnesses to the attack who had allegedly told a U.S. investigator that they had personally witnessed Jawad throw the grenade,” he wrote. “All I had were two paragraph summaries of interviews conducted through an interpreter of these witnesses several months after the attack. The information on the summaries identifying these two witnesses consisted solely of their names, both of which were common in Afghanistan. The few statements that I did have were inconsistent in some respects with each other, but I convinced myself that the discrepancies were the natural and expected fading of witness recollections over time.”

At the time, Vandeveld did not know that Jawad had been tortured or otherwise mistreated or coerced. As his investigation continued, Vandeveled “learned that the written statement characterized by the Afghan police officer as Jawad’s personal confession could not possibly have been written by him.” That’s because “Jawad was functionally illiterate and could not read or write,” and “the statement was not even in his native language of Pashto; the Afghan police officer who created the statement wrote it in his own native Dari.” The statements allegedly given to Afghan police and later given to U.S. authorities, said Vandeveld, “suffered from material differences, causing me and other prosecutors to wonder whether either could be used to establish the truth. It seemed increasingly likely that the statement attributed to Mr. Jawad in his original interrogation had simply been contrived by one of the Afghan policemen, which they then amateurishly sought to “authenticate” by having Jawad place his thumbprint on the document.”

Eventually, Vandeveld learned that both confessions had been coerced, as a military judge subsequently ruled, and that Jawad had been systematically abused in Bagram and then at Guantanamo. Ultimately, Vandeveled concluded that “there is no reliable evidence of any voluntary involvement on Jawad’s part with any terrorist groups.” The most credible evidence suggests “that Mr. Jawad was lured to Afghanistan under false pretenses — the promise of well paid work clearing landmines promised to him by unscrupulous recruiters …” To the extent that Jawad was affiliated with a terrorist group at all, Vandeveld said, that association appears to have been brief and involuntary.

“[H]e was certainly not involved with the organization long enough to have any actionable intelligence, or even unique or otherwise unknown information about the group,” said Vendeveld, adding that Jawad’s youth, lack of education and “manifest gullibility” marked him, at best, as “a low level foot soldier.”

According to military records and news reports, Vandeveld noted, at least three other Afghans have since been arrested and subsequently confessed to responsibility for the grenade attack. It’s not clear what evidence the Justice Department plans to use in a criminal prosecution because all of the evidence that the government claims was “not previously available” is classified. However, a declassified summary of the evidence filed with the court, with most of the substantive information about Jawad blacked out, does reveal many of the sources of the government’s evidence, which are not blacked out. The bulk of it appears to come from testimony and summaries of testimony from 2003 until 2006; most of it appears to have been previously produced at military administrative review hearings.

Other information in the unclassified document consists of summaries of interrogations by U.S. forces drafted by the interrogators and produced at previous hearings. Both the military commission and the federal district court have ruled that, because of the torture and coercion of Jawad, his statements in those interrogations are not admissible. Nothing in the unclassified factual return, at least, refers to newly discovered evidence or testimony only recently made available.

In its submission to the court, Jawad’s lawyers in his habeas case say that “the Government has had possession of this evidence for several months,” and that all of the evidence the government is now saying it wants to use “was provided in discovery to military commission defense counsel in May.” The defense lawyers further insist that the material the government wants to produce consists of “unsworn summaries of unsworn interviews” — similar to what Vandeveld described — that would “not be admissible evidence in a U.S. federal court.”

American Civil Liberties Union attorney Jonathan Hafetz, who has been representing Jawad in his habeas corpus case, says that he also was told that the witnesses received compensation for their testimony. “Had Respondent actually produced one or more of these ‘eyewitnesses’ at a habeas hearing on the merits, Petitioner’s counsel were fully prepared to refute, rebut and impeach him or them,” the defense lawyers write in their brief. “It is unclear why the Government is even mentioning ‘new’ evidence and discussing potential criminal prosecution in the same document where they acknowledge they cannot prove even by a preponderance of the evidence that the Petitioner is detainable.”

Indeed, one curious point about the claim that the government can prosecute Jawad under federal criminal law, after conceding it can’t make its case in his habeas corpus proceeding, is that the burden of proof on the government in a criminal case would be significantly higher than in a civil habeas corpus proceeding. A criminal case must be proven “beyond a reasonable doubt,” whereas in a habeas corpus proceeding, the government need only show that “the preponderance of the evidence” supports its claims.

Asked about the claims that the government’s witnesses had been paid for their testimony, Dean Boyd, spokesman for the Justice Department’s National Security Division, wrote in an e-mail that “Jawad has not been charged with any crime in federal court. To begin speculating in public about possible evidence or witnesses in such a case is inappropriate and not an exercise the government will engage in.” He did not say that the government would not or cannot pay or otherwise compensate witnesses in these circumstances, however. Jawad’s defense lawyers, meanwhile, have not been reticent about their view of the evidence.

While explaining that he cannot describe the evidence because it’s classified, Hafetz insisted that “it is not new and it is not credible or reliable.” So far, the government has lost 28 out of 33 habeas corpus cases brought by Guantanamo detainees and heard by a federal court because the courts have found the evidence unreliable or otherwise insufficient to justify their continued detention. The Justice Department is reportedly planning to bring criminal charges against “dozens more” Guantanamo prisoners.