Mohammed Jawad and the Failure of the Guantanamo Military Commissions

David J. Frakt, Western State University College of Law

Abstract

In order to justify outrageous treatment of detainees at Guantanamo during the early years of the “Global War on Terror” it was necessary to portray the detainees as hardened terrorist criminals. But it was not enough to simply label them as such; the Bush Administration knew that in order to maintain popular support for their detention policies, they would have to convict a critical mass of the detainees in some sort of legal proceedings.

The problem for the Bush Administration was that few of the detainees were actually involved in any terrorist criminal activity. Fewer still had committed any offenses that might be considered traditional war crimes. And to the extent that there was evidence linking some detainees to criminal activity, much of that evidence was in the form of coerced confessions and highly unreliable hearsay statements, none of which would be admissible in a normal court of law.

The solution for the Bush Administration was simple - abandon the traditional American concept of the rule of law.

In order to convict a significant number of detainees at Guantanamo, it was necessary to create a legal scheme that would allow detainees to be charged with invented war crimes based simply on fighting against the U.S. or being loosely associated with the Taliban or Al Qaeda, and to permit the prosecution to prove these and any other alleged crimes with coerced or otherwise unreliable evidence. That is what President Bush created with his Executive Order of November 2001 authorizing military commissions. The Supreme Court refused to endorse his legal scheme, finding that he had overreached his authority. Thus, President Bush was forced to turn to Congress for authorization. The problem, however, remained the same – to convict a significant number of detainees, it was still necessary to have the authority to charge them with invented war crimes and to use tainted and unreliable evidence. In other words, it was obligatory that the worst features of the original military commissions be preserved under the guise of a new statutory formulation. The Administration got what it wanted, a legislatively approved military commissions scheme, the Military Commissions Act of 2006, which retained these two central features. These features were enhanced by the implementing regulations adopted by the Secretary of Defense, known as the Manual for Military Commissions.

The military commission of U.S. v. Mohammed Jawad, (in which I served as lead defense counsel) perhaps more clearly than any other case demonstrated that the government was relying on its ability to use coerced evidence to earn convictions, even for invented war crimes. In this notorious case, which the New York Times called “emblematic of everything that is wrong with Guantanamo Bay” the prosecution repeatedly took extreme and unsupportable positions in litigation before the commission in an effort to preserve its ability to use coerced evidence and to convict detainees for non-existent war crimes. Even with all the advantages afforded to the government, the prosecution was unable to make its case against Mr. Jawad and was ultimately forced to dismiss the charges and release him when a federal judge granted his petition for a writ of habeas corpus. Through the story of Mohammed Jawad and the disintegration of the case against him we can see the larger narrative of the abject failure of the military commissions of the Bush Administration, and the lessons that can be drawn therefrom.