In response to:
Official American Sadism from the September 25, 2008 issue
To the Editors:
I am prominently mentioned in a quite flattering light by Anthony Lewis in his article “Official American Sadism” [ NYR, September 25]. Please convey my appreciation to Mr. Lewis for his kind words. However, there are a couple of minor factual inaccuracies in his story regarding my client’s case that I wanted to try to get corrected. I know that Mr. Lewis as a Pulitzer Prize–winning journalist would want to get his facts right even if they are not central to the point of his story.
The story says:
Mohammed Jawad, an Afghan accused of throwing a grenade at a convoy of American soldiers in Kabul in late 2002, wounding two, was brought to the Guantánamo Bay prison camp in February 2003. He was then seventeen years old. In December 2003 he attempted suicide. The following May he was subjected to what Guantánamo officials called the “frequent flyer program.” Every three hours, day and night, he was shackled and moved to another cell—112 times over fourteen days.
We know about what was done to Mr. Jawad because the military lawyer assigned as his defense counsel, Major David J.R. Frakt (Air Force Reserve), sought and won from a military judge an order for his jailers to produce the records of his captivity. Major Frakt brought out the realities of Jawad’s treatment in his closing argument at a pre-trial hearing on June 19, 2008—an argument that was a remarkable display of legal and moral courage.
Two points: 1. Jawad is accused of throwing a grenade at a vehicle with American soldiers in it, but it was not part of a convoy. It was a vehicle traveling alone through a crowded bazaar in the streets of Kabul. The Russian-made jeep-like vehicle known as a Gaz had two American special forces members and one Afghan interpreter inside. All three were injured. The incident occurred on December 17, 2002, and there are a number of press accounts about the incident available on the Internet. Google “Kabul hand grenade attack” and the date and you will find the stories. You will note that others were arrested for the incident as well, but Jawad, the minor, is the only one in US custody and the only one being tried for this offense. This is an interesting story as well.
The judge did not order the jailers to produce the records of Jawad’s captivity. I have submitted a number of motions to compel evidence, but the judge has never ruled on any of them. The records were voluntarily turned over by the prosecutor, Lieutenant Colonel Darrel Vandeveld, a US Army Reserve JAG. Lieutenant Colonel Vandeveld also acted with moral courage in producing a number of exculpatory records relating to the mistreatment of Jawad, knowing well that it could doom the case.
Incidentally, Lieutenant Colonel Vandeveld recently submitted his resignation because he felt he could not ethically continue to work as a prosecutor for the military commissions. I would like to see Lieutenant Colonel Vandeveld get some credit for his moral courage because he is currently facing serious threats of reprisal and retaliation for acting with integrity.
David J.R. Frakt
Major, USAFR Defense Counsel Office of Military Commissions
Anthony Lewis replies:
I am grateful for Major Frakt’s letter, especially for his information on how the facts of Jawad’s sleep deprivation came to light. As Major Frakt writes, the prosecutor he complimented, Lieutenant Colonel Vandeveld, has resigned because his superiors rejected his proposal to settle the Jawad case. The proposed settlement would have imposed a brief additional sentence on Jawad rather than proceed to trial on charges that could bring a life sentence.
According to a report for the Miami Herald by Carol Rosenberg, Vandeveld said in a sworn declaration that there was a risk of the case going to trial without the defense obtaining all “potentially exculpatory evidence.” “In my view,” he wrote, “evidence we have an obligation as prosecutors and officers of the court has not been made available to the defense.”