“I Do Believe I Have Relevant Testimony To Offer”: Vandeveld, Military Commissions, and the Use of Exculpatory Evidence

On October 21, 2008, the Pentagon announced that it had dropped war crimes charges against five detainees at Guantánamo Bay, Sufyiam Barhoumi, Binyam Mohammed, Noor Uthman Muhammed, Jabran Said Bin al Qahtani, and Ghassan Abdullah al Sharbi. The chief prosecutor at Guantánamo Bay, U.S. Army Colonel Lawrence Morris, has appointed new trial teams, and according to Clive Stafford Smith, a civilian attorney representing Mohamed, “The Military . . . plan[s] to charge [Mohamed] . . . after the election.” According to an article in The Guardian, Mohamed has accused the U.S. military of subjecting him to 18 months of torture, “including razor cuts to his genitalia.” Mohamed has sued the UK government in an attempt to procure evidence supporting his claim.

As reported by the New York Times, the former prosecutor for all five cases, Army Lieutenant Colonel Darrel Vandeveld, not only withdrew from these cases, but also criticized the Military Commissions Act trials as unfair at a pretrial hearing for a sixth detainee. Vandeveld resigned on September 9, 2008, and submitted a four-page affidavit related to the Office of Military Commission’s (OMC) trial in United States v. Mohammed Jawad. After Vandeveld resigned, he made himself available to testify on behalf of Jawad’s defense, claiming, “I do believe I have relevant testimony to offer.” According to an article in The Nation, the OMC barred him from doing so and ordered Vandeveld to undergo a mental health evaluation, despite no previous symptoms of psychological issues. As of October 20, 2008, Vandeveld was under a gag order regarding his potential testimony.

Vandeveld’s affidavit emphasizes his belief that OMC prosecutors fail to disclose potentially exculpatory or mitigating evidence to the defense in prosecutions of Guantánamo Bay detainees. As stated by Vandeveld, “evidence we have an obligation as prosecutors and officers of the court has not been made available to the defense.” OMC accused Vandeveld, in his words, of “forming an attorney-client relationship with the detailed military defense counsel for Mr. Jawad” solely for his attempts to provide exculpatory and mitigating evidence or reasons why he could not provide such evidence.

Jawad is charged with attempted murder in violation of the laws of war, as noted in a Human Rights Watch account of the trial. Although Vandeveld initially discounted defense counsel’s assertions that the Afghan militia drugged Jawad and forced him to fight, he came to believe that Jawad was a juvenile at the time of the alleged crime based on a bone scan undergone at Guantánamo Bay, and therefore the U.S. military should have segregated Jawad from adult detainees in accordance with U.S. and international law. In addition, Vandeveld eventually conceded that Jawad was subject to abuse while in detention. Jawad’s trial will continue despite a motion to dismiss based on Jawad’s torture. In a decision on September 24, 2008, Military Judge Stephen R. Henley, noting that “[the] Accused has not apparently suffered any permanent physical injuries as a result of his detention in U.S. custody,” did not determine whether U.S. military personnel tortured Jawad and concluded that the remedy of dismissal was not appropriate.