On March 7 President Obama rescinded an executive order from January 2009 that had halted new military charges against Guantánamo detainees. Military tribunals determining the guilt or innocence of some detainees have now resumed under revised procedures. That same month, the president also formalized a system of indefinite detention for a class of detainees who will never be charged or tried in military or civilian court.
Lt. Col. Darrel J. Vandeveld (Army Reserve) worked as a prosecutor in the Office of Military Commissions at Guantánamo Bay, Cuba, until he became the second prosecutor to resign from the office because of ethical concerns about the process. Vandeveld, a devout Catholic, had served as lead prosecutor in the case of Mohammed Jawad, a Pakistani youth accused of throwing a hand grenade at U.S. soldiers. He was charged with “attempted murder in violation of the laws of war.” The U.S. military detained Jawad at Bagram Air Base in Afghanistan (2002-3) and Guantánamo (2003-9) until his successful petition for a writ of habeas corpus and subsequent release to Afghanistan in August 2009. The army maintains that Jawad was 17 at the time of his arrest, but his family insists that he was closer to 12. Like many Afghans, Jawad has no birth certificate.
Since Sept. 11, 2001, Mr. Vandeveld has served in Bosnia, Africa, Afghanistan and Iraq. After resigning from the Office of Military Commissions, Vandeveld became the Chief Public Defender for Erie County, Pa., in December 2008. He has battled intermittent, chronic insomnia since 2006, when he returned from Iraq. In February he took a medical leave of absence from the public defender’s office to pursue treatment for post-traumatic stress disorder. He has returned to Erie County to work part time as assistant public defender.
How did your assignment to Guantánamo come about?
After the passage of the Military Commissions Act of 2006, the military needed experienced prosecutors who also had the requisite security clearance. There are few of us who possess those two qualifications. When asked if I would go to Guantánamo, I never hesitated. This was—if you’ll forgive the expression—an almost “heaven sent” opportunity to seek justice. And by “justice,” on some level, I meant revenge. I had served in several different combat zones, and I had witnessed friends and comrades killed in action. Two of them committed suicide. It is fair to say that I was not unaffected by that. I was angry all the time, and I went to Guantánamo seeking revenge in the only way left open to me: through the legal system.
What was the basic case against Mohammed Jawad?
Jawad, 15 or 16 years old, was living in Miram Shah, Pakistan, when recruiters from Hezbe-i-Islami-Gulbiddin, an Islamist terrorist faction in Afghanistan, approached him. According to what I believed at the time, Jawad was taken to a training camp in the mountains where he received rudimentary training in throwing hand grenades. In December 2003, in a crowded marketplace in Kabul, Jawad allegedly threw a grenade into a jeep carrying two U.S. Special Forces soldiers, and everyone in the jeep was terribly wounded.
Within hours, Afghan police transferred Jawad to American custody. When I received the case, I thought, this is no different from the many street crimes that I have prosecuted. Since Jawad was a kid, he had not been entrusted with any valuable information. He attacked a couple of Americans, which the Military Commissions Act described as a crime. I filed charges against him, alleging that Jawad had attempted to commit murder in violation of the law of war.
What happened to Mohammed Jawad in U.S. custody?
At Bagram Air Base, Jawad was hooded and shackled, slapped across the face, thrown down flights of stairs and threatened. At Guantánamo, Jawad was placed in the “frequent flyer program.” That meant he was awakened every two hours and moved from cell to cell, which itself could take up to an hour. Army General Jay Hood had issued an order to discontinue the program—calling it ineffective, cruel and ultimately self-defeating, but his order was ignored.
In late 2003 Jawad attempted suicide in the crudest possible way: by banging his head against his cell wall. Guards observed it and let it go on for a period of time. What compounded this inhumanity, however, was the response of the psychologist, a lieutenant colonel in the U.S. Army. Instead of deciding that the interrogations needed to cease and that Jawad required mental health treatment, the psychologist concluded that since Jawad was in a vulnerable position, it would be a good time to interrogate him further. This was not an isolated incident at Guantánamo. It happened again and again.
How did you come to question whether you could continue?
Jawad’s defense counsel, Maj. David J. R. Frakt (Air Force Reserve), convinced me that “murder in violation of the law of war” had never been considered a crime under international law and hence could not be prosecuted under the Military Commission Act. Madeline Morris, a Duke University law professor, in an analysis of the Jawad case, gave such a compelling explication of the law of war and why it was inaccurate and wrong to charge Jawad as I had, that I began to realize, in a moment of epiphany, that I was participating in evil.
What else bothered you about the Jawad case?
My ethical concerns intermeshed with my moral concerns as a believing Catholic. We are commanded to love our enemies, and while that doesn’t mean simply allowing them to kill us, it does require encouraging them to a reciprocal love through humane treatment. Jawad was a juvenile when he arrived at Guantánamo. By international agreements we not only signed but championed, he should have been treated as an unformed adolescent who was himself, in some sense, a victim of war. We should have segregated him from adults, provided rehabilitation and reintegration services and afforded him access to a system of justice designed to meet those ends. Instead we ignored his status as a juvenile and sought to punish him as a terrorist.
How quickly did you come to this realization?
My ethical and moral sense developed over time as I re-examined my Catholic faith and came to realize that we will never prevail against violent Islamists by attempting to kill, capture or imprison all of them. That is a prescription for what we have now: a never-ending conflict that has depleted America’s material resources, coarsened our population and degraded our commitment to justice and the rule of law. It took me too long to recognize these tragic consequences of bloodlust, but once I finally did understand how badly we had erred morally, I did act, with a lot of encouragement from others.
So how did you proceed with the case?
I tried to convince the new chief prosecutor that we should enter into a plea agreement with Jawad, which would allow Jawad to serve some short additional time at Guantánamo, during which he would receive rehabilitative services, and ultimately be repatriated to his country of origin. I did not believe that Jawad was guilty, but because the specter of indefinite detention had been raised, I wanted to avoid a situation in which he continued to be held indefinitely with no resolution of his fate.
I brought the idea of a plea agreement to the chief prosecutor, who rejected it vehemently. He looked at me as if I had abandoned my allegiance to America and joined the enemy’s cause. This is when I realized that I simply could not continue to participate in this travesty. Not knowing where to turn, I sent an e-mail to John Dear, a Jesuit priest.
Why Father John Dear?
I had read some of John’s books because they are joyful and optimistic. Reading about peace and the nonviolent Jesus can provide a kind of hope for humankind—even for someone committed to the war. I wrote: “I am at the Military Commissions. I am gravely concerned about what we are doing as a country and what I am doing here at Guantánamo. What should I do?”
I never really expected him to respond, but within 24 hours, John returned a message that floored me. In essence: “Quit. Leave Guantánamo. The entire world knows that what goes on there is a farce. Do not participate in evil. Leave and start your life over.” I was 47 at the time, a reservist, established in my career, with a family. It did not seem as easy as that. I was afraid. It would have required a true leap of faith that I was not sure I could make.
What gave you the courage to finally resign your position?
I went to St. Anselm’s Abbey in Washington, D.C., and stayed there for three days. In addition to praying the Liturgy of the Hours, I read three books: John Dear’s A Persistent Peace, Nelson Mandela’s autobiography, Long Walk to Freedom, and a collection of Martin Luther King Jr.’s speeches. I basically spent 72 hours in constant prayer. I barely slept. At the end of it, I felt—and this is the first time I have said this—I felt touched by the hand of God. My path became clear.
John Dear served in a parish of military people—some had sons and daughters in Iraq. Yet John told them truths that they did not want to hear, and he got into trouble for that. This is what I had done on a much smaller scale. Having read John’s story, I emerged as someone who knew that I could make the decision to live as Christ wants us to.
Martin Luther King said that we are sometimes faced with great moral questions, and we have the ability to act or to refuse to act—but the moment we refuse to act is the death of the spirit. Reading these books and praying intensely worked an inner transformation. I have no idea what led me to St. Anselm’s Abbey, but it changed me forever.
You had shared your concerns with defense counsel, and you were called by the defense to testify in the Jawad case. How did your commission colleagues respond?
After I testified, the Army began its campaign to kick me out. They tried to portray me as some sort of traitor. They sent me to Walter Reed for a mental status evaluation. I had to meet with a psychiatrist for the first time in my life. It was humiliating.
When I walked out of the psychiatrist’s office, I looked at a group of soldiers—young kids—waiting to see the psychiatrist. They were anguished; there was so much pain. If I needed a sign that I was doing the right thing, this was it. I saw the damage that war can cause, and I felt shame for what those young soldiers experienced.
How would you evaluate President Obama’s efforts to close Guantánamo?
President Obama ordered Guantánamo closed for the right reasons. It is a recruiting tool for terrorists. Because we have systematically disregarded international law and abused human rights in the so-called “global war on terror,” we are more at risk for terrorist attacks than ever before. It is a travesty that we continue to act lawlessly and forfeit our own rights simply because politicians tell us we should be afraid. President Obama has succumbed to those arguments. But Christ told us time and again in the New Testament: be not afraid.
President Obama claims that the revised Military Commissions give due process to the accused. What is your view?
The revisions to the Military Commissions Act were well intentioned and favorable, but the commissions can only be seen as a second-class, second-rate vehicle intended to secure convictions, not to strive for the truth. If the detainees are not to be tried in regular, domestic federal courts, then the only acceptable alternative would be to try the detainees who merit prosecution before military courts-martial. Prolonged or indefinite detention promotes arbitrariness and a denial of human rights.
Where do you find hope?
In my work with the Public Defender’s Office, I find hope every time I stand up in court and urge the judge to see the human behind the shackled, prison-clothed person in front of him or her and to seek to do justice. This is what sustains me. Each day at work, my desire is to see God in everything and to recognize that all of us are better than the worst acts we commit. This is the beginning of my spiritual journey.
