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By Ben Wizner, staff attorney with the ACLU's National Security Project. Ben arrived in Guantanamo Bay Tuesday evening to attend this week's military commission hearings involving three Guantanamo detainees. He'll be posting today and tomorrow on his observations and reflections.

President Bush’s weekend veto of legislation that would have prohibited the CIA’s most barbaric interrogation practices has effectively sealed his legacy as the Torture President. Here in Guantanamo, one of the many consequences of that legacy – a deeply flawed military commission system designed to permit convictions on the basis of evidence extracted through such “enhanced” techniques – was once again on display yesterday with the unusual arraignment of Afghan national Mohamad Jawad, who was 16 years old at the time of his capture.

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Jawad is the first prisoner brought before these commissions who is not accused of any links to Al Qaeda, or even the Taliban. He is charged with having thrown a grenade that injured two U.S. servicemen and their interpreter in Afghanistan. There’s something a little odd about charging anyone – let alone a teenager – with war crimes for having engaged in battle with foreign soldiers in his own land. Jawad’s attorneys have argued for the dismissal of these charges on that ground, contending that even if the government’s allegations are true – something Jawad denies – he is a prisoner of war, not a war criminal. But today’s hearing didn’t address issues of substance. As usual, the hearing nearly fell apart over much more basic matters.

When we entered the courtroom at 4pm on Wednesday, Jawad was already seated, dressed in orange prison garb and shackled at the ankles. We hadn’t seen shackles in the courtroom before, but evidently Jawad had been “reluctant to participate,” and had to be carried from his cell to the court.

The judge began a series of questions regarding Jawad’s right to counsel – whether Jawad understood that he was represented by military defense counsel; whether he knew that he could add a civilian lawyer at his own expense; whether he had any desire to represent himself – but Jawad simply repeated, over and over, that he wished to speak. Then, through an interpreter, he spoke:

“I am innocent, and I want justice and fairness,” he said. “Since I’ve been arrested, I’ve been treated unfairly. I’ve been tortured. I’m a human being. I have not violated any law; I have not infringed on anyone’s rights; I have been brought here illegally.

“When I was arrested, I was only 16 years old. The soldiers who were treating us over there said, you are a child, what are you doing here? ...  I was reading in a publication that the American government said that the Taliban had been very cruel, that they killed people without trials and did not respect human rights. I remember this – I was a child at the time.  But the Americans also killed people without trials. At Bagram [prison], the Americans killed three people by beating them.” (Alex Gibney’s Oscar-winning documentary, Taxi to the Dark Side, tells the story of one of those deaths.)

Jawad insisted that the proceedings against him were illegal. “Is this in the U.S. Constitution,” he asked, “to treat a 16-year-old with injustice?  I want justice and fairness, and this is all I have to say.”

The judge tried to steer the conversation back to issues of counsel, but Jawad was finished, and asked not to be bothered further. His military lawyer provided some context for the outburst after the hearing, explaining that Jawad had been 16, with “at best” a seventh grade religious education, at the time of his capture, and had been confined in a 3 foot by 7 foot cell for five years since then. He was bewildered by the prosecution and likely did not comprehend the judge’s questions.

Jawad certainly didn’t present as one of the “most dangerous, best-trained vicious killers on the face of the earth.” But perhaps that’s in the eye of the beholder. The usual human rights monitors – the ACLU, Amnesty International, Human Rights Watch – were joined this time by one Wayne Simmons, described to us simply as an “intelligence analyst.” (Yes, this Wayne Simmons.)  His handshake, I can report, is firm. His conclusions, I have no doubt, will be different.

Extended (Optional)

Originally posted to ACLU on Thu Mar 13, 2008 at 07:16 AM PDT.

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