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Report from Guantanamo: Mohammed Jawad is another teen growing up in detention

Jurist Hotline
by Sahr Muhammed Ally
May 19, 2008

"On March 12, 2008, Mohammed Jawad - an Afghan national who was 16 or 17 years old at the time of his arrest in Kabul in December 2002 - made his first public appearance to the world when he appeared before a military judge in pre-trial military commission proceedings at Guantanamo Bay, Cuba. Jawad has been in Guantanamo for over five years – a quarter of his life. Jawad is charged with attempted murder and intent to cause serious bodily injury in violation of the laws of war. The relevant incident involved a grenade that injured two US soldiers and an Afghan interpreter in Kabul on December 17, 2002. He faces no charges of terrorism, material support, or any connection to al-Qaeda or the Taliban.

I observed Jawad at his pre-trial hearing on May 7 where Jawad consented to having defense counsel represent him, but only for the purpose of challenging the legitimacy of the military commission system. Air Force Major Reserve David Frakt, who was assigned to represent Jawad on April 28, told the court: "Mr. Jawad is an innocent man. He has been held for five years. He was a homeless boy wrongfully accused and beaten into confession by the Afghanistan police."

According to his lawyer, Jawad lived in a refugee camp in Miran Shah, Pakistan. His father died when he was very young. His mother remarried, but Jawad was thrown out of his home by his stepfather at age 13. At his Combatant Status Review Tribunal (CSRT) on October 19, 2004, Jawad said that he was approached by some men who offered to train him to clear landmines in Afghanistan. According to Major Frakt, Jawad told him that he was aware that mine clearing was dangerous work but that the money was good.

Jawad claims that when he was taken to Afghanistan he was drugged and cannot recall many details. At his CSRT hearing, Jawad said that he was taken to a mountainous area for a few days and was given pills daily which made him "sleepy and forget [about his] family." He also stated that he was given injections on his leg that made him hallucinate. On the day of the alleged grenade attack, Jawad said that that he was given orange chewing gum, chocolate candy and a tablet. "When I took this pill I didn’t know what I did. I was out of mind I couldn’t think clearly," said Jawad at his CSRT hearing.

On December 17, 2002, there was a grenade attack on a vehicle in broad daylight. Two American soldiers and their interpreter were injured. The grenade was thrown from the back window. Jawad and another man were arrested but the Afghans released the other man.

According to Major Frakt, Jawad told him that he was taken to the police station, where Afghan police officers beat him just enough so that no marks were left. The police told him that if he confessed he would be released. They put a piece of paper in front of him to sign, but Jawad can barely read. "They made him put his thumb print on the paper. The US is calling this a confession," said Major Frakt.

Jawad spent a night with the Afghans and was handed over to the Americans. He was held in Bagram for a few weeks and then taken to Guantanamo, arriving in early 2003.

At his arraignment in March, Jawad claimed that soldiers accused him of knowing about the September 11, 2001 terrorist attacks. 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 the judge: "Is it in the US Constitution how to treat a 16-year-old with justice? I want justice and fairness."

Major Frakt was appointed counsel to Jawad a week before Jawad’s pre-trial hearing. Jawad’s previous detailed military counsel Army Colonel J. Michael Sawyers — who was at the arraignment in March, and had met with Jawad numerous times and even traveled to Afghanistan to help prepare the defense — left active duty on March 18 to return to civilian life.

Conditions in Guantanamo

Jawad has spent over five years in Guantanamo — most of it in solitary confinement. Major Frakt said that, "Jawad’s memory is shaky. Everything starts to blend together. He has no reference of time, except Ramadan. All days are the same. No change in season. He is not allowed outdoor activity except for under a covered roof." Camps 5 and 6 are maximum security prisons where detainees are confined to a 8 x 10 foot cell for 23 hours a day. There is no natural air or sunlight and artificial light is on 24 hours a day. At the hearing on May 7, Jawad corrected Major Frakt and said that once he saw a sliver of the sky — a comment indicative of someone treasuring a rare moment of seeing the blue sky.

During the proceedings I observed, Jawad appeared agitated and told the court that he had "been punished a lot." He described how he was coercively interrogated for hours on end in sealed rooms, sometimes after being woken up from sleep at 2 a.m. or 3 a.m., subjected to bright lights for 24 hours, threatened that he would spend his whole life in Guantanamo, and falsely promised that he would be able to get out. He also mentioned that he was moved from different camps and different cells and said that he could not remember how long he was in a particular camp. He seemed to have lost track of time. He told the court that he was promised books so he could study and told that he would be transferred to Camp 4, where he would be able to mingle with other detainees, but that these promises were not kept. During the hearing, he appeared confused and held his hand to his head several times while stating that he could not remember. He asked why he was in Guantanamo and kept saying that he wants to go home. He told the court that he is “a human being” and asked the court whether this was "justice."

Major Frakt is requesting a mental health evaluation for Jawad. He told me that, "Jawad has mood swings. He seems paranoid at times. For instance he says, 'that’s not what you told me before why are you changing your view now.' He never stays happy for long. He is really desperate to get out. He gets frustrated easily. He has trouble concentrating for long periods of time and is bewildered by the complexity of the legal system." But Major Frakt also said that his client is polite, appreciative and always thanks him, and that Jawad has inquired whether Major Frakt would get in trouble for helping him.

The Next Steps

Although Jawad has instructed defense counsel to challenge the validity of the military commission proceedings, there are several hurdles in the way. In April 2008, Army Col. Judge Peter Brownback, who also is the presiding judge in Jawad’s case ruled in the case of Omar Khadr — a Canadian national who was fifteen at the time of his capture by US forces — that there was no bar to subjecting child soldiers to military commission proceedings. Although children should be held accountable for their crimes, international law requires that they be treated in a manner that takes into account their particular vulnerability and relative culpability as children, and focuses primarily on rehabilitation and reintegration. The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, to which the US is a party, explicitly prohibits the recruitment or use of children under 18 in armed conflict by non-state armed groups and requires state parties to criminalize such conduct. It regards child soldiers as victims in need of rehabilitation, not as volunteer "soldiers" capable of making an informed choice to join a military force. In the military commission system, however, US treaty obligations under the Optional Protocol have no bearing.

Notably in 2003, the United States released three children, ages 13-15, from Guantanamo to UNICEF (The United Nations Children’s Fund) to enable them to receive rehabilitation and reintegration assistance in Afghanistan. But the US government has not made any such rehabilitation assistance available to Mohammed Jawad.

Another possible challenge to the jurisdiction of the military commissions is that the application of the Military Commissions Act (MCA) to Jawad violates both constitutional and international legal principles banning ex post facto laws because the MCA was not enacted until 2006 —four years after Jawad was captured. A similar motion was filed in the Salim Hamdan case in February 2007 and a decision is pending. The prosecution in that case argued that ex post facto principles do not apply because the US Constitution does not protect aliens detained as enemy combatants at Guantanamo and international ex post facto principles are irrelevant because Congress is not bound by international law. The government is expected to take the same position in Jawad’s case.

"Jawad told me that I should not come back unless I have good news. Our next reunion will be difficult," said Major Frakt. He is probably right; there may be no good news for Jawad in the imminent future given the difficulties in challenging the jurisdiction of the military commission proceedings. "My hope is that if he understands that I am working on his behalf then he will allow me to continue representing him," added Major Frakt."

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