by Aisling Reidy
March 12, 2008
Guantanamo Bay Naval Base – We sat for almost four hours under the tents erected outside the Military Commissions building at Guantanamo Bay, waiting to hear whether the arraignment of Mohammad Jawad, a young Afghan man, would take place. Jawad was 16 or 17 when he was picked up in Afghanistan in December 2002 for allegedly throwing a hand grenade at a US military vehicle in which two soldiers and an interpreter were injured. He faces no charges of terrorism, material support, or any connection to al-Qaeda or the Taliban. He was just a young man in Afghanistan when the US invaded his country. We had heard various rumors that the hearing might not happen, that there was an issue with his lawyers, and that the “detainee was not cooperating,” but the military authorities weren’t prepared to confirm anything.
Our long wait outside was not unusual. Nor was the fact that we needed a military escort to leave the shade of the tent to walk to the “port-a-potties” 100 feet away (the rationale for which is still a complete mystery to all involved). What was unusual was that when we finally entered the courtroom, having passed three sets of security checks, Jawad was already in the room. He was sitting at the defense table, in his orange jumpsuit so symbolic of Guantanamo, with his legs shackled together, clearly agitated, constantly rubbing his forehead, and holding his head in his hands. This was striking, both because normally detainees are not brought into the courtroom first, but only after the parties, security, journalists, and other observers are settled, and also because detainees are not required to wear their prison uniform when they attend hearings and normally don’t.
In Jawad’s case, his orange (as opposed to white or blue)
jumpsuit marked him out as “uncooperative.” Indeed it was his alleged
“lack of cooperation” that had delayed the proceedings for some hours.
Jawad simply did not want to participate in a proceeding that he
believed was illegal. He did not want to play along with this process.
So he had indicated earlier in the day that he was refusing to attend.
However, while Jawad could refuse to attend his trial, and the rules
allow the Military Commissions to move forward with his trial in his
absence, the chief military judge, Marine Col. Ralph Kohlmann,
determined that Jawad was required to be present for his arraignment.
So Jawad was forcibly removed from his cell and brought to court –we
weren’t told exactly how. And there he sat. Judge Kohlmann explained
that restraints remained on the detainees ankles because he had been so
uncooperative “in terms of his physical movement.”
Judge Kohlmann did want to emphasise that none of this,
including the fact that Jawad had apparently decided to remain in his
orange jumpsuit, should be taken as undermining his presumption of
innocence. It was hard to believe, though, that such procedural
formalities would have any meaning for Jawad, who clearly felt that his
five years of incarceration had already stripped his presumption of
innocence far more than refusing to change clothes ever could.
Moreover, it was not clear whether Jawad was following the
proceedings. He had an interpreter beside him who occasionally
whispered to him, but he was not wearing his headphones to hear the
court interpretation. The judge, at the prosecution’s urging,
instructed him to put them on, which he did. But he still didn’t seem
to be listening and didn’t respond to the judge’s question as to
whether he could hear. You could sense suspicion rise that this was
just another demonstration of Jawad’s unwillingness to “cooperate.”
For five minutes or so, with the assistance of the
interpreter sitting beside Jawad, the judge struggled to determine
whether there was an interpretation problem, or whether Jawad was being
obstinate. Finally, the judge had the headsets brought to him. Jawad,
it turned out, was not being difficult; the headsets were simply not
working. He had basically heard nothing but English, a language he does
not understand, since he was in the room.
The battle between Judge Kohlmann seeking to move forward
a process and Jawad struggling to convey his experience was only
beginning. Jawad was told that he had a right to counsel. He wanted to
know if he could speak. He was asked if he understood that he had a
right to have a military lawyer as his defense counsel free of charge.
He said he did understand, but he wanted to say something. He was told
that he would be given an opportunity to speak later. Jawad insisted
that he wanted to speak right away. Again, there seemed to be almost a
sense of satisfaction among the military that those of us who have
criticized the current military commissions system for their lack of
fairness and ability to ensure a fair trial, were witnessing firsthand
how difficult these “detainees” could be.
Yet Jawad’s demeanor was not belligerent or abusive. It
was focused, displaying almost an anxiety that if he did not keep
insisting, he would not be understood and he might lose the opportunity
to speak. Maybe he had learned from five years of incarceration and
interrogation that the trick is to repeat things over and over again
until you feel you are making progress. And he had something he needed
to say, something he said he wanted the journalists to hear.
Advising Jawad again that he would be allowed speak, Judge
Kohlmann also warned that failure to cooperate would result in a loss
of that opportunity. So the judge returned to clarify whether Jawad had
understood his right to counsel. Jawad said that he did, but he did not
want his counsel or any other military counsel. Speaking in Pashto, he
“I don’t want this counsel or this session, or any trial.
I am asking – are you treating me with justice and fairness or not? … I
do not want him or anyone else. I am innocent and I want justice and
fairness … I do not want this decision at all. I want justice and
fairness. I do not want a lawyer. I am innocent. I have been treated
unfairly. … I have been tortured. I am a human being. I have not
violated any law or infringed anyone’s rights. Whatever has been done
to me is illegal. I was brought here illegally. I was only 16. I didn’t
know that there was a court or what the job of the judge is. I just
want law and justice and fairness.”
In an effort to plow ahead as if this were some form of
normal proceeding, Judge Kohlmann asked if this meant that Jawad wanted
to represent himself. Jawad was confused.
“How can I represent myself? I don’t know.” he said.
question,” responded the judge, though still seemingly unable or
unwilling to grasp the depths of Jawad’s apparent despair.
Jawad continued to explain how he was innocent and that he
was 16 when he was arrested. He claimed that soldiers mistreated him
and accused him of knowing about the September 11, 2001 terrorist
attacks. He told the judge that when he was held at Bagram, Americans
had killed three people by beating them. He said he needed to know the
reason that he was being held in prison, and he needed the world to
hear him because his pleas of innocence had gone no further than his
cell. He asked Kohlmann: “Is it in the US Constitution how to treat a
16-year-old with justice? I want justice and fairness.”
Judge Kohlmann told Jawad that although he understood the
detainee had been confined for a long time and wanted to speak, he
needed to answer the question about who he wanted as a lawyer. Jawad
was told that the proceedings would move forward and Jawad should
cooperate. Jawad insisted: “If a lawyer comes to defend me in an
illegal trial how does that work in the Constitution? … Everything
should be based on the law.”
Jawad had enough, he did not want his lawyer nor, having
been locked up for five years, did he know another lawyer. He had tried
again to explain this: “Since I don’t know any lawyer how can I have
them represent me? ... I don’t know a lawyer. … I only know I want
someone to be just with me. Yes, I want someone to represent me, but in
a lawful manner, in a lawful court.” Jawad then thought of one way he
might find a lawyer.
“I should be given freedom so that I can find a lawyer,” he said.
The judge was quick to shoot down that prospect. “That is not going to happen,” he responded.
Kohlmann finally decided that, for now, the assigned defense lawyer
would remain on the case. By this time, Jawad’s head was on the table
and he was complaining of a headache. “My condition is not good, I
cannot use them,” he said, referring to the headphones the judge
ordered him to put back on so he could hear about his right to be
present at trial. Jawad complained again of his headache, claiming that
since he had been arrested the constant exposure to lights and blubs
had made him sick. While Judge Kohlmann sought to repeat for Jawad what
his rights at trial would be, Jawad decided to bring things to an end.
“Ok. I understand. Do not bother me any more.”
The judge concurred. He ruled that Jawad had understood the rules but that he was simply refusing to cooperate.
the session drew to a close with a discussion over assigning a new
defense counsel, Jawad had his head on the desk, rubbing his forehead.
We were all asked to leave the room, but Jawad was still sitting there.
Clearly we were not to observe how this young man would be removed from
I left, wondering how long it was going to take to realize
that when a system is so flawed that you have someone like Jawad, who
was locked up for five years before being charged with committing a
crime, no amount of apparent due process formalities in court about
orange jumpsuits or a right to a US civilian counsel of his choice
could cover over the basic denial of “justice and fairness”.
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