One of the most controversial cases in Gitmo’s history is coming to a head. According to the New York Times, a federal judge has given the Obama administration’s DOJ until today to decide if it is going to continue to defend the detention of Mohamed Jawad during Jawad’s habeas corpus hearing.
Jawad is accused of throwing a grenade at a vehicle carrying two American servicemen and their Afghan translator. While no one was killed in the December 17, 2002, attack in Kabul, all three riders were seriously wounded. U.S. and Afghan officials say that the attack was orchestrated by Gulbuddin Hekmatyar’s notorious al Qaeda-affiliated terrorist organization, the HIG (Hezb-e-Islami Gulbuddin). The government alleges that the HIG recruited Jawad, who was a teenager at the time, in Pakistan to carry out the attack.
Jawad’s defenders say there is no evidence that Jawad actually threw the grenade, and his confessions were entirely coerced. Indeed, Jawad’s initial confession to Afghan authorities was clearly made under duress. The Afghan officials that interrogated Jawad threatened to kill him and his family if he did not confess. Thus, a military commission dismissed Jawad’s confession to the Afghans. A federal court also excluded Jawad’s initial confession, as well as a subsequent confession he made to American authorities after he was transferred to U.S. custody, from Jawad’s habeas hearing.
To make matters worse: In May of 2004, Jawad was subjected to what is euphemistically called the “frequent flyer” program. Jawad was moved repeatedly from cell to cell such that he was allowed no real time to sleep. This went on for roughly two weeks despite the fact that, as Jawad’s military commission found, such tactics were already barred at Gitmo and Jawad had little to no intelligence value. (The “frequent flyer” program was used to get detainees to talk by breaking down their defenses through exhaustion.)
There is really no excuse for any of this. The handling of Jawad at Gitmo and elsewhere was deplorable. Even if he is guilty of what U.S. authorities allege, Jawad’s abuse was both cruel and unnecessary.
And if it were left to Gitmo’s many critics, Jawad’s story would end there. He would be remembered as an innocent wrongfully detained and tortured–a young man who should be freed post haste.
But, as with so many other detainees, there is more to Jawad’s story. Although the courts have ruled that many of Jawad’s statements are not valid evidence because of the abuse he suffered, at least some of Jawad’s incriminating statements have been made outside of his harsh interrogations.
In fact, Jawad spoke freely at his combatant status review tribunal (CSRT) and administrative review board (ARB) hearing at Gitmo. He was certainly not under duress at the time. Jawad was free to refute all of the allegations against him and he did, in fact, profess his innocence.
However, Jawad also made a number of incriminating admissions.
During his CSRT, for example, Jawad’s personal representative read the following from Jawad’s statement to Gitmo authorities (emphasis added):
After Jawad’s personal representative had finished reading this paragraph, Jawad added: “I didn’t see any names on the list but it talked about the training and how we would clear the mines.” That is, Jawad tried to walk back from his admission that Gulbuddin Hekmatyar’s terrorist group played a role in his training. Interestingly, he apparently said otherwise at first.
During his CSRT, Jawad was asked about his training. Specifically, one member of Jawad’s tribunal asked (errors in original):
Jawad freely responded (emphasis added):
During his ARB hearing, Jawad tried to walk back from this admission too.
Jawad: No. I never learned how to throw [a grenade].
As can be seen in the transcript excerpts cited above, Jawad initially admitted that he had in fact been trained to throw a grenade. Jawad even added this tidbit, on his own volition, to the testimony read by his personal representative. Only later did he try to take it back during his ARB hearing. However, Jawad did not offer any explanation for his about-face.
During his ARB hearing, Jawad also made a number of other important admissions–even in the context of his denials. Specifically, Jawad said that: (a) he was at the scene of the grenade attack, (b) he was in possession of a “bomb” (grenade) at the time he was arrested, but claimed that someone gave it to him and, somewhat implausibly, he didn’t know what it was when he took possession of it, and (c) he did not throw the grenade, but he knew and worked for the man who probably did. That is, Jawad conceded that he worked for the HIG terrorist that Jawad said was probably responsible for launching the grenade.
These are all, taken together, suspicious to say the least. They put Jawad in the middle of the attack. And Jawad’s attempts to explain away his admissions and proximity to the attack are not convincing. Below are the relevant portions of the transcript for Jawad’s ARB hearing. (The excerpts can all be found here and here.)
Particularly relevant portions of the transcript are underlined:
Jawad: Yes. I was there. A person gave me something, but I did not know what the object was that the person gave me [referring to the grenade]. One of those guys gave me one of those to put in my pocket to keep.
Board Member: I am asking you, what is the object he gave to you to put into your pocket?
Jawad: I will tell you now. They gave it to me and then said they would take it back from me later. They told me to stay here [the Detainee did not identify where here was. Close to the origin of the attack.] The man told me that he would come back. The man did not come back. Beside me there was a sack of raison. I wanted to buy some raisons. When I went to pay for the raison, I took the thing the person gave me out of my pocket and placed it on top of the sack of raisons. The shopkeeper saw the thing and asked me what it was. I told the shopkeeper I did not know what it was, but someone had given it to me. The shopkeeper told me that it was a bomb and that I should go and throw it in the river. I put the thing back in my pocket and I was running and shouting to stay away, it’s a bomb! When I got close to the river, people [the police] caught me. The only thing I remember now, I was in the custody of the police.
Board Member: So, someone was going to hire you to clear mines. You were then given a grenade, but you had no idea that the item they gave you was a grenade?
Jawad: Before that time, I had never seen a grenade nor did I know what a grenade was.
Board Member: Do you admit now that the item you had was in fact a grenade?
Jawad: Well, the shopkeeper told me it was a bomb. When I got caught they told me it was a bomb. I guess it is possible that the item I had was a bomb.
Board Member: You were there when the attack occurred, correct? You also know the person who threw the grenades at the American vehicle, correct?
Jawad: It’s a possibility that [the] guy who gave me the grenade, maybe he threw it.
Board Member: Did you hear an explosion?
Jawad: Yes. I didn’t know it was a bomb, but I could hear people shouting.
Board Member: What is your relationship with the person who threw the grenade?
Jawad: I have no relationship with him and I don’t know him.
Board Member: You have no relationship with this man, but he just happened to give you a grenade.
Jawad: That man, I came to Afghanistan to work for him.
Taking Jawad’s testimony at face value, we would have to believe that he was given a grenade by the real perpetrator of the attack (who Jawad admittedly worked for), but he didn’t know it was a grenade until a shopkeeper peddling raisins told Jawad what it was. Jawad then, according to his testimony, tried to get rid of the grenade but got caught before he could do so.
The important point here is that Jawad made some key admissions, even in the context of his denials, during testimony that was not coerced. The claim that Jawad’s admissions were made exclusively while he was under duress, or while he was being tortured, is simply false.
None of this “proves” Jawad’s guilt. Nor does it excuse the unjustifiable treatment Jawad received while in Afghan and then U.S. custody. And a federal court has said that the U.S. government has not produced any witnesses to clarify exactly what happened on December 17, 2002. This is not surprising. Such is the nature of war.
There are other aspects to this case too. It is far from cut and dry. Jawad and his lawyers claim that he was drugged at the time of the attack, and so he was not fully aware of what he was doing. But this is not consistent with the claim that he was entirely innocent. Jawad’s defenders cannot argue both that he did not throw the grenade and, well, even if he did, he was drugged and did not mean it. Either Jawad threw the grenade or he did not.
In any event, the idea that Jawad is an obvious innocent is a fiction. His own words, freely given at Gitmo, are enough to at least raise suspicion.
Thomas Joscelyn is a senior fellow at the Foundation for the Defense of Democracies.
