A federal appeals court in the District of Columbia upheld the dismissal of a former Guantanamo Bay prisoner’s lawsuit seeking damages for torture.
Mohammed Jawad was 15 years-old in December 2002, when he was illegally captured in Afghanistan after a grenade attack that injured two United States soldiers and one Afghan interpreter. Afghan forces tortured Jawad and forced him to sign a confession, even though he initially denied involvement in the attack.
He was transferred to Guantanamo in February 2003. The facility did not keep him in the part of the prison for juveniles. He was tortured and “kept in social, physical, and linguistic isolation.” He attempted suicide.
During two weeks in May 2004, according to the appeal, Jawad was “repeatedly moved” from “one cell to another in quick intervals throughout the night to disrupt sleep cycles, on average every three hours.” He was interrogated more than 60 times, despite the fact the government determined he had no “useful intelligence.” The interrogations involved “excessive cold, loud noise, beatings, pepper-spray, and being shackled for prolonged periods.”
A federal judge, U.S. District Judge Ellen S. Huvelle, granted his habeas petition and ordered the U.S. government to release Jawad in August 2009. Huvelle also ruled the “confession” he was forced to sign in Afghanistan was the result of torture.
Jawad sued for damages in 2014 and alleged the torture he experienced while he was illegally detained violated the Federal Tort Claims Act, Alien Tort Claims Act, the Third & Fourth Geneva Conventions, and the Fifth and Sixth Amendments of the U.S. Constitution. But the D.C. District Court ruled the Military Commissions Act of 2006 bars courts from hearing any of Jawad’s claims.
The appeals court agreed with the district court. “By its clear terms, this provision strips federal courts of jurisdiction to hear most claims against the United States arising out of the detention of aliens like Jawad captured during the United States’ invasion of Afghanistan in response to the attacks of September 11, 2001.”
In other words, federal courts see this law as providing retroactive immunity to personnel who engaged in the torture of Guantanamo prisoners, including juveniles like Jawad, who were coerced into false confessions.
Jawad claims he was not properly detained as an “enemy combatant” so the Military Commissions Act should not cover him. The appeals court countered with the technicality that the U.S. government refused to concede Jawad was not “properly” detained. The only thing the U.S. government did is decide to stop treating him like a “properly” detained “enemy combatant” (because a federal court ordered his release).
Moreover, it would appear the federal appeals court believes the Military Commissions Act shields U.S. personnel from being held accountable for the cruel and inhuman treatment of juveniles at Guantanamo. It contended Jawad was unable to cite any part of the Uniform Code of Military Justice of domestic law that “prohibits the detention of juvenile enemy combatants” under the Authorized Use of Military Force.
The Authorized Use of Military Force is the resolution President George W. Bush sought and obtained from Congress to give him wide latitude to respond to the September 11th attacks how his administration desired.
Lieutenant Colonel Daniel Vandeveld, who served in the U.S. Army Reserve Judge Advocate General’s Corps, wrote [PDF] in support of Jawad’s release in 2009, “I was the lead prosecutor assigned to the military commissions case against Mr. Jawad until my resignation in September 2008. It is my opinion, based on my extensive knowledge of the case, that there is no credible evidence or legal basis to justify Mr. Jawad’s detention in U.S. Custody or his prosecution by military commission. There is, however, reliable evidence that he was badly mistreated by U.S. authorities both in Afghanistan and at Guantanamo, and he has suffered, and continues to suffer, great psychological harm.”
“Holding Mr. Jawad for over six years, with no resolution of his case and with no terminus in sight, is something beyond a travesty,” Vandeveld added. He argued, “Six years is long enough for a boy of sixteen to serve in virtual solitary confinement, in a distant land, for reasons he may never fully understand.”
While in custody in Afghanistan, he was struck in the nose. He was told he would be killed unless he confessed to the grenade attack. His family was threatened with arrests or murder if he did not give a confession. [PDF]
At U.S. Forward Operating Base 195, Jawad was blindfolded and made to hold a water bottle that he was told was a bomb that “could explode at any moment.”
Jawad was pushed down the stairs while at the prison at Bagram. He was chained to the wall for long periods, beaten, forced into “stress positions,” and endured sleep deprivation. He could hear other prisoners screaming as they were beaten and heard rumors some of the prisoners were beaten to death.
In 2004, Jawad was subject to the “frequent flyer” program, where he was rapidly moved from one cell to another to disorient him. The program caused significant health effects, including blood in his urine, pains in his body, and 10% weight loss from April 2004 to May 2004.
This program was ordered to be stopped in March 2004, but clearly, it did not end. The commander of Joint Task Force Guantanamo was to seek approval from U.S. Southern Command for sleep deprivation of any prisoner and was only permitted to deprive a prisoner of sleep for period of four days. Jawad was never approved for the 14 days of sleep deprivation he endured.