Saturday, August 01, 2009


Both Scott Horton and Andrew Sullivan have posted excerpts from this closing argument. It's by Maj. David J.R. Frakt, the lawyer of Mohammad Kawad, the 12-14 year old boy (at the time of his capture) who has been ordered released from Guantanamo after six years in the prison, where he was submitted to various tortures. I'm posting Sullivan's longish excerpt because I want it to be documented on yet one other little place. Please feel free to spread it widely.

"Why was Mohammad Jawad tortured? Why did military officials choose a teenage boy who had attempted suicide in his cell less than 5 months earlier to be the subject of this sadistic sleep deprivation experiment? Not that anything would justify such treatment, of course, but at least in the case of the other detainees known to have been subjected to sleep deprivation, they were believed to possess critical intelligence that might save American lives.

Unfortunately, we may never know. I’ve asked to speak to the guards who actually carried out the program, and I’ve been denied. In the absence of information to the contrary, which the government would surely provide if it existed, we are left to conclude that it was simply gratuitous cruelty.

The government admits that Mohammad Jawad was treated “improperly,” but offers no remedy. We won’t use any evidence derived from this maltreatment, they say, but they know that there was no evidence derived from it because the government didn’t even bother to interrogate him after they tortured him. Exclusion of non-existent evidence is not a remedy. Dismissal is a severe sanction, but it is the only sanction that might conceivably deter such conduct in the future.

February 7, 2002. America lost a little of its greatness that day. We lost our position as the world’s leading defender of human rights, as the champion of justice and fairness and the rule of law. But it is a testament to the continuing greatness of this nation, that I, a lowly Air Force Reserve Major, can stand here before you today, with the world watching, without fear of retribution, retaliation or reprisal, and speak truth to power. I can call a spade a spade, and I can call torture, torture.

Today, Your Honor, you have an opportunity to restore a bit of America’s lost luster, to bring back some small measure of the greatness that was lost on Feb 7, 2002, to set us back on a path that leads to an America which once again stands at the forefront of the community of nations in the arena of human rights. Sadly, this military commission has no power to do anything to the enablers of torture such as John Yoo, Jay Bybee, Robert Delahunty, Alberto Gonzales, Douglas Feith, David Addington, William Haynes, Vice President Cheney and Donald Rumsfeld, for the jurisdiction of military commissions is strictly and carefully limited to foreign war criminals, not the home-grown variety.

All you can do is to try to send a message, a clear and unmistakable message that the U.S. really doesn’t torture, and when we do, we own up to it, and we try to make it right. I have provided you with legal authority for the proposition that you have the power to dismiss these charges. I can’t stand before you and say that you are legally required to do so. But I can say that that it is a moral imperative to do so, and I ask that you do so," - Major David J. R. Frakt, in his closing argument in favor of dismissal of the case against Mohammad Jawad.

A 12 year old boy as the extremely dangerous terrorist whose evil essence supposedly justifies torture.... We seem to have gotten the evil wrong. Here's Scott:
In Guantánamo he was abused repeatedly, particularly by means of a form of sleep deprivation known as the “frequent flyer program.” This regime involved prison guards waking a prisoner every 2-4 hours and moving him to a different cell, ensuring that he would not sleep for days. Jawad was subjected to this process 112 times, according to military records. And interestingly, all of those incidents occurred after the military—following widespread criticism of the program—announced that it had ceased its use in May 2004. Judge Henley wrote that “[t]hose responsible should face appropriate disciplinary action, if warranted under the circumstances” for their “flagrant misbehavior.” There is no evidence so far of any disciplinary action or even of an investigation. Under the doctrine of command responsibility, the Pentagon has an affirmative duty to investigate war crimes allegations–and in this case, we have what approaches a judicial determination that war crimes occurred.


troutsky said...

Frakts own belief ( and Sullivans) in Americas unique greatness, is at the root of this crime and much else that is gross, corrupt and pathetic.Those with no historical knowledge make the best torturers.

helmut said...

I actually think there's merit to the claim of greatness. Not as unique, of course. But the US is a conflicted country with a conflicted history and competing self-narratives that is such precisely because it is a pluralistic nation where, for the most part, it is possible for that pluralism to express itself. I do believe this. And I think some of the greatest and most developed ideas of democracy have come from the US. Not that the country lives up to its ideals, its better methods, or even a full acknowledgment of its pluralism. But we do have the basic institutions through which we can attempt to answer these perpetual questions.

There must be some better alternative in the future to this imperfect terrain on which the battle of authoritarianism and radical democracy takes place. I just don't know what that alternative is.

I think we can understand Frakt's rhetoric of patriotism. He's a military officer, after all. But it's not a blind patriotism because he is essentially saying that "America, right or wrong" is unacceptable as an operating principle.

And, re Sullivan, I disagree with him on many things, but he seems to me one of the most savvy - though sympathetic - critics of current US policies. He has been one of the most intelligent and informed anywhere in exposing and critiquing the Bush admin's torture policy and abuses of power. Sullivan, I think, gets a lot that we progressives often miss because of his conservative background and because of our own ideological predilections. He's one of that rare, rapidly dying breed of largely - though not completely - non-blinkered conservatives, ideologically-speaking.

The "greatness" rhetoric can be knee-jerk - a call to shut off thought, inquiry, deliberation. That's how it's usually used. But the intellectual strength and moral passion of intense criticism of the country also seems to me to come from a deep-seated belief that there is something great worth defending. Or perhaps worth developing into the future in better ways than the status quo has it.