Military attorneys risk careers to criticize practices at Guantanamo

Lt. Col. Darrel Vandeveld had seen colleagues die in combat, commit suicide and suffer excruciating injuries.

When he was assigned to prosecute a Guantanamo detainee accused of wounding two U.S. soldiers and their interpreter in Afghanistan with a grenade, the U.S. Army Reserve judge advocate was more than ready.

"He was hard-charging, aggressive, what I would call a 'true believer,' " said Maj. David J.R. Frakt, attorney for defendant Mohammed Jawad. His attitude toward the defense during Mr. Jawad's arraignment in April 2008 was "hostile, almost snarling," said Maj. Frakt.

"When Jawad took the witness stand, he attacked him, basically calling him a liar."

But by fall, Lt. Col. Vandeveld -- in civilian life, a Pennsylvania senior deputy attorney general from Erie -- had asked to be reassigned, potentially derailing his future in the military. In September, he would testify for the defense in the case.

The complete turnabout by a man committed to the military and to military justice came after months spent shuttling between the Washington, D.C., headquarters of the Office of Military Commissions -- established in 2006 to prosecute terror suspects -- and Guantanamo Bay Naval Base in Cuba. Hundreds of suspected Islamist militants detained in the Middle East have been held at Guantanamo since 2002, most for years without trial.

Maj. Barry Wingard, an Allegheny County public defender who grew up in Beechview and now lives in Dormont and Washington, D.C., initially looked forward to working on Guantanamo cases as well.

Maj. Wingard, 42, had prosecuted cases in 110-degree courtrooms in Iraq, investigated war crimes in Bosnia and acquired years of experience as an officer in the Air Force Reserve judge advocate general corps, which handles military legal matters. Although he'd hoped to be a prosecutor with the Office of Military Commissions, he was instead assigned to defense work.

Like Lt. Col. Vandeveld, he signed on to handle detainee cases expecting to encounter the "worst of the worst." That's what they found, they said, but the justice system at Guantanamo, not the detainees, represented that worst.

Questions about evidence

Both men said they expected to work within a military justice system similar to the ones in which they'd spent their careers. Instead, they said, they found a chaotic environment in which cases were tainted by questionable interrogation techniques and evidence was scattered, missing, of questionable origin or simply unavailable.

For the two experienced JAG officers, working in a system that they considered to be so lacking in proper legal procedures was frustrating and disturbing. They are among a handful of military attorneys who have chosen to risk their careers by publicly voicing criticisms of the Military Commissions, which face an uncertain future.

In one of his administration's first acts, newly inaugurated President Barack Obama on Jan. 20 suspended the commissions while considering whether detainees at Guantanamo should be tried in U.S. courts or under reconstituted commissions, freed or held without trial. Mr. Obama also has announced his intention to close the prison at Guantanamo.

The Bush administration faced criticism and numerous court challenges over its handling of the detainees. As the Obama administration nears its self-imposed May 20 deadline for announcing its plans for approximately 240 prisoners held at Guantanamo, speculation and debate continue to mount.

A longtime Army Reserve JAG officer, Lt. Col. Vandeveld, 48, came to the Office of Military Commissions with distinguished credentials.

An officer evaluation report from 1998 said of him: "Promote this brilliant, versatile officer now. Magnificent performance by a spectacular officer in perhaps the most demanding and important operational environment our nation has faced in thirty years."

In a 2004 evaluation, a superior officer wrote, "An astonishingly fine performance by the very best Judge Advocate I have served with in my entire career."

Lt. Col. Vandeveld, who had come back from Iraq in August 2006, said he'd read media reports about allegations of possible mistreatment of detainees and court challenges to the judicial process at Guantanamo.

"I was dismissive of that. I thought it came from the 'Blame America First' crowd," he said. "I also had faith in our military."

He'd had two friends killed in action in Iraq, another badly wounded in Afghanistan. Two other military friends had committed suicide. Partly to vindicate those losses, he wanted to take on and push through cases against those he viewed as a threat to his country when he came on board in May 2007.

"I thought I was engaging in a noble enterprise, a righteous enterprise."

'Slam dunk' case?

One of his cases involved prosecuting Mr. Jawad, an Afghani who was a teen when he was detained by Afghan officials. Mr. Jawad was accused of throwing a grenade into a vehicle carrying Army Sgt. 1st Class Michael Lyons, Army Sgt. 1st Class Christopher Martin and their interpreter, Afghan citizen Assadullah Khan Omerk, wounding all three men on Dec. 17, 2002.

Lt. Col. Vandeveld received the outline of Mr. Jawad's case in materials provided by the previous prosecutor, who had left active duty.

"At that time, Vandeveld thought he had a very strong case," said Maj. Frakt. "He thought this guy was caught red-handed, he confessed, there were witnesses, a videotape [of the confession.] It was a slam dunk."

During the arraignment, Lt. Col. Vandeveld recalled, "Periodically Jawad would erupt," claiming he'd been mistreated at the U.S.-run Bagram Theater Internment Facility. "He said, at Bagram 'They beat me, they mistreated me, they took things from me, they deprived me of sleep.' "

"I stood up in court and denounced Jawad. I said he was exaggerating," Lt. Col. Vandeveld said. "I said he was taking a page from the al-Qaida playbook -- after you've confessed, you allege torture."

But as Lt. Col. Vandeveld tried to build a case, over time, he said, he came to believe that its facts were not as he'd been led to believe. When he traveled to Afghanistan to investigate more in December 2007, he found the accounts of those listed as witnesses didn't jibe with records.

One witness, who was supposed to be an Afghan soldier, turned out to be a police officer. He "disavowed any firsthand observation of Jawad as the perpetrator and said that at least five other individuals had been arrested at the same time as Jawad," said Lt. Col. Vandeveld.

"The case thus began to unravel."

Lt. Col. Vandeveld learned from Mr. Jawad's medical and prison records that in December 2003, Mr. Jawad had tried to commit suicide by banging his head against the steel shelf of his bed in Guantanamo. He found that Mr. Jawad had been crying and asking for his mother.

In May 2008, Lt. Col. Vandeveld also learned that Mr. Jawad had been subjected to what was termed the "frequent flyer" program of sleep deprivation at Guantanamo after his suicide attempt, despite a ban on the practice of extended periods of sleep deprivation issued months earlier by the Guantanamo commander.

"That disturbed me ... The only motive is to disorient the detainee to the point where he might reveal intelligence information," said Lt. Col. Vandeveld.

He said he couldn't understand why interrogators at Guantanamo would use those techniques on a prisoner who had not been designated a "high-value" detainee with intelligence information or was believed to have been directly involved in terrorist activities.

"He really had no intelligence value. He was just a criminal as far as I was concerned."

He also questioned the ethics of using those techniques on a detainee whose behavior suggested a fragile psychological state.

"It's hard for me to describe to you the effect it had on me as a human being. We just don't treat people that way," he said. "You treat captured prisoners the way we would want to be treated, no matter what they did.

"I don't know why anybody would disobey an order against our often-stated commitment to human rights. I was heartsick."

From prosecution to defense

His tipping point came in June, when he came across a statement made by Mr. Jawad in 2002 about mistreatment in Bagram while glancing through a binder with another detainee's records -- a statement he had never seen and did not know existed even though it should have been provided to him.

"There is no way I would have gotten access to that statement" had he not come across it by chance, he said. "That's when I decided I couldn't ethically go on. I just couldn't do it."

For a "millisecond," he said, he thought about putting the binder back. Instead, he faxed the statement to Maj. Frakt, the defense attorney.

After agonizing over his continued role with the Military Commissions, in September he sought reassignment to Afghanistan or Iraq. Instead, he was released from active duty and testified for the defense Sept. 26 after Maj. Frakt ordered a subpoena for his testimony.

"My ethical qualms about continuing to serve as a prosecutor relate primarily to the procedures for affording defense counsel discovery," he said in a declaration filed as part of the case record.

"I am highly concerned, to the point that I believe I can no longer serve as a prosecutor at the commissions, about the slipshod, uncertain 'procedure' for affording defense counsel discovery."

Col. Larry Morris, the chief prosecutor for the commissions, would not comment on Lt. Col. Vandeveld's assessment.

"I don't think much is served by someone who's been gone from the organization as long as he's been gone to frame the discussion," he said.

He acknowledged many "challenges" in assembling detainee legal cases.

He said that al-Qaida in particular is a "far-flung and uniquely organized terrorist enterprise" and that many components of government -- military, intelligence, law enforcement -- were involved in fighting it and other organizations. Prosecutors must deal with information from many sources all over the world, some highly classified, he said.

"That means you never have a prosecutor who is bored, but occasionally have one who is frustrated."

After Lt. Col. Vandeveld left the case, a military judge suppressed Mr. Jawad's confession, ruling it had been made after torture. Mr. Jawad remains at Guantanamo while awaiting a decision on the future of the Military Commissions.

Hearsay, vague accusations

For Maj. Wingard, the experience also has been disheartening.

At Guantanamo Bay Naval Base, a corner of Cuba populated by very large iguanas, Starbucks, Subway and a giant American flag, the system ran by no rules he'd ever experienced, he said. Unlike other U.S. civilian and military courts, the commissions permitted the use of hearsay testimony as evidence.

Maj. Wingard said vague charges made it difficult to defend his client after he was assigned in October to represent a Kuwaiti named Fayiz al-Kandari. In trying to prepare his case, Maj. Wingard said, he has been presented with no evidence against his client.

"There is no tangible thing we can challenge. They say he was arrested in the [United Arab Emirates]. Give me the arrest record."

The government said Mr. al-Kandari had produced audio and video recruitment tapes for terrorist organizations but presented no tapes as evidence, Maj. Wingard said. Nor could he obtain evidence Mr. al-Kandari said would support his story -- including his journal and passport, which were seized when he was detained.

Maj. Wingard said his client, who comes from a wealthy family, continues to insist he was on a charitable mission digging wells in Afghanistan at the time of the Sept. 11 attacks, when he was turned over to Afghan officials by local people, then transferred to American custody.

Mr. al-Kandari was held in Jalalabad, Bagram and Kandahar before being transferred to Guantanamo in 2002.

"There simply is no evidence other than he is a Muslim in Afghanistan at the wrong time, other than double and triple hearsay statements, something I have never seen as justification for incarceration, let alone eight years," Maj. Wingard said of his client.

Maj. Wingard, who returned to Guantanamo last week is continuing to seek information for his case. Lt. Col. Vandeveld is back in Erie, working for the state attorney general's office.

For him, the commissions reflected nothing of the kind of justice he expected of the U.S. military.But he said "the commissions can be remodeled, but there have to be substantial changes in the way they're conducted."

Col. Morris said he wouldn't speculate on the future of the commissions but that he and the team of prosecutors will continue working on their cases.

"They are working harder than ever, because they are preparing all of their cases, so that if the administration makes the decision to continue with the commissions in some form, we're prepared to try those cases."

Lillian Thomas can be reached at lthomas@post-gazette.com or 412-263-3566.

First published on May 10, 2009 at 12:00 am