ࡱ> fhe%` Fbjbj"x"x .X@@>$,;h2HHHH###:::::::<h>^:h!##h!h!:HH:$$$h!ZHH:$h!:$$8o:H& ėR5"FK9::0,;_9Z?#Z?(o:Z?o:`#$q###::$ ###,;h!h!h!h!d bb 19 August 2008 MEMORANDUM TO: Friends of Mohammad Jawad and Supporters of Justice, Fairness and the Rule of Law FROM: Major David Frakt, Defense Counsel Lieutenant Commander Katharine Doxakis, Assistant Defense Counsel SUBJECT: Request for Support Letter Writing Campaign On 14 August, Military Commissions Judge Colonel Stephen Henley issued a ruling in the case of U.S. v. Mohammad Jawad. In his ruling, he found that the pretrial advice prepared by Brigadier General Thomas Hartman, the Legal Advisor to the Convening Authority, was inadequate and misleading in that it failed to advise the Convening Authority of matters in extenuation and mitigation raised by the defense. The judge found that the Legal Advisors actions had compromised the objectivity necessary to fairly and dispassionately evaluate the evidence. The judge ordered the Convening Authority, Ms. Susan Crawford (former Judge of the U.S. Court of Appeals for the Armed Forces), to reconsider her decision to refer the charges against Mohammad Jawad for trial. The judge ordered Ms. Crawford to consider any matters in mitigation or extenuation or other issues submitted by the defense and established a deadline of September 15th to submit matters to Ms. Crawford. The judge has given Ms. Crawford until September 25th to either ratify her earlier decision to refer charges or to withdraw the charges. Accordingly, we are in the process of preparing a package of materials for Ms. Crawfords consideration. We will also be requesting a personal audience with Ms. Crawford, but there is no guarantee that she will grant the request. She has refused my previous requests to meet with her. In addition to the matters that we will be preparing personally, we would like to present Ms. Crawford with letters of support from other concerned citizens and organizations, urging her to withdraw the charges. If you agree that the charges should be withdrawn, please take a few moments of your time to prepare a personal letter to the Convening Authority expressing your views. Attached is a model letter with talking points that you may wish to consult. We will consolidate all of the letters received and present them as a package to Ms. Crawford. Please submit your letter not later than Friday September 12th. Do not send it directly to Ms. Crawford, but rather send it to Major Frakt. If you would like us to review a draft of your letter before signing it, you may e-mail it to Major Frakt at  HYPERLINK "mailto:fraktd@dodgc.osd.mil" fraktd@dodgc.osd.mil. If you have any questions, please e-mail or call (202)761-0133 extension 106. Once the letter is complete, you may e-mail it (signed .pdf document is best) or fax it to (202)761-0510 (Attn: Major Frakt). If you wish to mail the letter, please keep the efficiency of the U.S. Postal Service in mind and allow plenty of time. The mailing address is: Major David Frakt Office of Military Commissions - Defense 1099 14th St. NW. Ste 2000D Washington DC 20005 Thank you very much in advance for your time and consideration. Together, we may be able to accomplish some small measure of justice for Mohammad Jawad. Warm Regards, //signed// David J. R. Frakt, Major, USAFR Defense Counsel //signed// Katharine Doxakis, LCDR, USN Assistant Defense Counsel Enclosure: Model Letter with Talking Points The Honorable Susan J. Crawford Convening Authority Office of Military Commissions 1600 Defense Pentagon Washington DC 20301-1600 Madam Convening Authority, [State the purpose of the letter, e.g. I am writing in support of the defense request to withdraw the charges against Mohammad Jawad.] [You may wish to talk a bit about yourself and explain your interest in the case, e.g. As a longtime supporter of childrens rights.. As a former war crimes prosecutor. As the parent of two U.S. soldiers fighting in Iraq. ] [In the body of the letter, state your reason or reasons why you believe it would be in the interests of fairness and justice to withdraw the charges. Dont use every bullet point in this model letter. For individuals, try to keep it to one or two pages. Focus on what you are most passionate about and try to make it personal and heartfelt. You may wish to mention one or more of the reasons listed below. Feel free to add additional reasons.] Mohammad Jawads age: Mohammad Jawad is a child solder. He was a juvenile, either 16 or 17 years of age, at the time he was captured, which the State Department has recognized in official filings with the United Nations. Under international law, child soldiers are considered primarily to be victims of war, not war criminals. The evidence suggests that Mr. Jawad was lured to Afghanistan under false pretenses by an unscrupulous recruiter for the Hezb-e-Islami Gulbuddin (HIG) group, a group led by former Prime Minister Hekmatyar Gulbuddin. This group and its leader were designated as terrorists by the U.S. Government in February 2003, two months after the grenade attack allegedly perpetrated by Mohammad Jawad. At the time of the attack, they were a lawful group. There is no indication in the Military Commissions Act of 2006 (MCA) that Congress intended military commissions to have jurisdiction over child soldiers. There is not a single reference to child soldiers, juveniles, or minors, either as a group or by name, in the legislative history of the MCA. It would be a major policy decision of the U.S. government to choose to try child soldiers for war crimes. Such a decision would reverse long-standing U.S. opposition to treating child soldiers as war criminals, and would run counter to the views of all of our major allies in the Global War on Terror. There is no precedent for trying child soldiers as war criminals in modern history. Only one other nation has ever even proposed trying child soldiers, Sierra Leone, but the Chief Prosecutor decided not to do so because his task was to prosecute only those most responsible for war crimes and by definition he found child soldiers to be excluded. No one under the age of 18 at the time of their offense has been tried for war crimes in modern history. If child soldiers are held and prosecuted as war criminals, international law requires that their confinement, prosecution and sentences be designed strictly for rehabilitation and reintegration purposes. No system of rehabilitation and reintegration exists within the military commissions, under the MCA or its implementing regulations. Mohammad Jawad has never been provided any of the required rehabilitation and reintegration services required by international law. The MCA is required to be interpreted and implemented consistent with court-martial practice. No one under 18 has ever been prosecuted for a war crime in a court-martial. Courts-martial have jurisdiction only over active duty military members. One must be 18 (or 17 with the permission of a parent) to enlist in the U.S. Armed Forces. Under U.S. policy and international law, minors are strictly prohibited from serving in a combat zone, even in non-combat roles. Significant doubt exists about Mohammad Jawads role in the grenade attack of December 17, 2007: Afghan Interior Minister Taj Wardak publicly stated in a press conference on December 18, 2008 that three men were arrested, one teenager and two adults, in connection with the attack, and all three men had confessed their role. Only one hand grenade was thrown. Contemporaneous press accounts and military incident reports all indicate there were multiple perpetrators involved in the attack, and that more than one person was arrested. The adult perpetrators of the attack are not in U.S. custody and have not been brought to justice for their role in the attack. According to Mohammad Jawad, he was forcibly drugged for weeks prior to the attack including on the day of the attack. Several officials involved in interrogating Mohammad Jawad after the attack, both Afghani and American, observed that he appeared to be under the influence of drugs or going through withdrawal from drugs. The case against Mohammad Jawad relies almost entirely on a confession purportedly taken from Mohammad Jawad by Afghan authorities on December 17, 2002. According to Mohammad Jawad, he was subjected to both physical abuse and coerced by threats while in Afghan police custody. The confession itself was not written by Mohammad Jawad, who was functionally illiterate, and bears only his thumbprint. The confession is not even written in Mohammad Jawads native language of Pashto. Virtually all of the independently verifiable facts in the so-called confession are demonstrably false. Mohammad Jawad has been interrogated approximately 36 times at Guantanamo. In all of these interrogation sessions, he has never admitted throwing the hand grenade and has affirmatively and adamantly denied it, despite the use of illegal enhanced interrogation techniques on Mohammad Jawad, the same techniques which have broken hardened terrorists. Some of the interrogators and even the Combatant Status Review Tribunal have expressed doubt as to whether he threw the hand grenade. The purpose of the Military Commissions is to try terrorists and serious war crimes, not minor crimes committed by child soldiers in a combat zone. The military commissions were intended to try those persons involved in major terrorist attacks such as 9/11 and the East Africa embassy bombings. Mohammad Jawad is the only person charged under the MCA who has not been charged with any crimes of terrorism, material support for terrorism or conspiracy Mohammad Jawad is the only person charged under the MCA who is not even alleged to have any affiliation with al Qaida or the Taliban No one died in the attack allegedly perpetrated by Mohammad Jawad. The injuries sustained by the two Special Forces soldiers in the attack, while painful, were not life-threatening. Both soldiers have been fully rehabilitated. One is back on active duty with the military and the other is a police officer in California. The Afghan interpreter received a humanitarian visa to the United States and has resettled permanently in Virginia. Significant doubt exists over whether the commission has jurisdiction over the alleged offense of Mohammad Jawad. Hand grenades are lawful weapons and uniformed soldiers in a combat zone are lawful military targets. Mohammad Jawads alleged actions are not a violation of the law of war. Even if we assume that he did throw the hand grenade, and was able to form the specific intent to kill the U.S. soldiers, this constitutes the domestic crime of attempted murder, it does not constitute the offense of attempted murder in violation of the law of war. Mohammad Jawad has suffered enough and no point will be served by trying him as a war criminal. Mohammad Jawad has been in U.S. custody since December 17, 2002, nearly 69 months, more than one quarter of his life. Salim Hamdan, Osama Bin Ladens personal driver and bodyguard received a sentence of only 66 months. Mohammad Jawad, while still a minor, suffered horrifying physical abuse at Bagram Prison from December 18, 2002 to February 6, 2003. Mohammad Jawad was present while the 377th Military Police Company were performing guard duties at the prison. Mohammad Jawad was beaten, pushed down the stairs, hooded, deprived of sleep and chained to a wall. During this period, two Afghan prisoners were beaten to death, one was found to have been beaten so badly that his body was pulpified. Army CID treated these deaths as criminal homicides and substantiated dozens of cases of detainee abuse at Bagram consistent with the abuse suffered by Mohammad Jawad. A major investigation by McClatchy Newspapers about detainee abuse at Bagram also corroborated that beatings and other abuse were routine. Mohammad Jawad, while still a minor, was placed in isolation for 30 days upon his arrival at Guantanamo, a clear violation of the Geneva Conventions. He was placed back in isolation for 30 more days in the fall of 2003 at the recommendation of the Behavioral Science Consultation Team psychologist who believed such isolation would break him. Mohammad Jawad has been held with adult prisoners (contrary to international law) in conditions more severe than supermax confinement conditions for virtually his entire period of confinement at Guantanamo. Mohammad Jawad was subjected to the frequent flyer program, an intentional and illegal sleep deprivation regime, from May 7-May 20, 2004. This occurred after the JTF-GTMO Commander claims that he ordered this abusive program stopped in late March 2004. This program was specifically found to be abusive by Lt Gen Randall Schmidt in the Schmidt-Furlow report, but he did not recommend any corrective action because he was informed that the program had ceased. Testimony at the August 14 hearing in the Jawad case from the intelligence officer for the Joint Detention Operations Group (JDOG) established that the frequent flyer program continued until at least April 2005 with the knowledge and concurrence of the JTF-GTMO and JDOG Commanders. All of the evidence of detainee abuse of Mohammad Jawad, including physical and linguistic isolation, sleep deprivation and physical abuse was discovered after charges had been sworn and referred in this case. The Acting Chief Prosecutor responsible for swearing and forwarding the charges against Mohammad Jawad testified that he was unaware of any abuse of Mr. Jawad at the time charges were sworn, and that, as a matter of personal ethics, he would not swear charges against someone he believed to have been tortured. The Legal Advisor also testified that he was unaware of any evidence of abuse of Mohammad Jawad at the time that he recommended referral. The lead Trial Counsel in this case has specifically recommended to the Chief Prosecutor that a pretrial agreement be offered to Mohammad Jawad with a sentence of time served. Mohammad Jawad is not a threat to the United States or its allies. From his first days at Bagram prison, Mohammad Jawad repeatedly expressed his concern for the servicemembers injured in the grenade attack and the Afghan interpreter. When he was falsely informed that the soldiers were not expected to make it he expressed deep sorrow and repeatedly stated that he was praying for their recovery. In 69 months of captivity, Mr. Jawad has never indicated that he harbors any ill will towards the United States. He has expressed no intent to return to the battlefield or to engage in jihad against the United States. To the contrary, all he has ever requested is to return home to his family to pursue a normal life. Things not to say in your letter: Please refrain from general attacks on the Bush Administration and its policies in the Global War on Terror. The Convening Authority is a loyal Bush administration insider and such attacks will not be helpful. Please refrain from general attacks on the legitimacy of military commissions (however valid such attacks may be). Remember that your audience is the Convening Authority, a person deeply committed to the commissions. A better approach is to try to convince her that withdrawing the charges against Mohammad Jawad would enhance the legitimacy of the commissions by ensuring that commissions focus on real terrorists, and by demonstrating that the Convening Authority will respond fairly and reasonably when new evidence comes to light which casts doubt on earlier decisions. [Close with an appropriately respectful and hopeful ending, e.g. Thank you very much for taking my/our views into consideration. I am confident that when you review all of the matters in extenuation and mitigation, you will agree that the interests of justice will be best served by withdrawing and dismissing the charges against Mohammad Jawad.] Respectfully, John Q. 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