Interview with Darrel Vandeveld

Continuing my series of interviews on whatever the “war on terror” will now be called, I am pleased to be able to bring you the first of my interviews with someone able to speak from the perspective of having been called upon to prosecute alleged (and this is they key word missed by so many closed-minded people, unlike today’s subject) acts of terror and/or war crimes that may (again, a critical qualifier) have been committed by men now being held at Guantanamo Bay, Cuba, Darrel Vandeveld. As always, I thank the TMV team for letting me post these interviews here. The interview is below, in full after the jump, and is cross-posted at the talking dog blog.

Darrel Vandeveld

Darrel Vandeveld is an attorney and former military officer, who, in civilian life is a prosecuting attorney in Erie, PA. In the military, he attained the rank of Lt. Col. in the Army Reserve, serving, among other places, in Bosnia, Iraq, Afghanistan and Africa, as well as serving as a senior prosecutor for the military commissions prosecuting Guantanamo detainees. Last year, he became the seventh attorney to resign as a prosecutor from the military commissions. On February 20, 2009, I had the privilege of interviewing Col. Vandeveld by e-mail exchange.

The Talking Dog: For various reasons (including perhaps my own proximity both then and now to “Ground Zero”), the customary first question of talking dog interviews is “where were you on 11 Sept. 2001?”

Darrel Vandeveld: When American Airlines Flight 11 struck the north WTC tower, I happened to be working in my office in the placid Northwestern Pennsylvania city of Erie. Within minutes of the first collision, a secretary burst into my office and told me excitedly what had just been reported on one of the network television morning shows. My entire office spent the next hour watching in horror as the subsequent attacks and their aftermath unfolded. We then closed the office for the day, and, along with the rest of the world, remained transfixed as the extent of the attacks became clearer. I knew that day that my life would never be the same again.

The Talking Dog: I understand that in civilian life, you work as an attorney and that you reside in the Erie, PA area. My limited knowledge of Erie is that also from that area are former governor and Homeland Security Secretary Tom Ridge and General Michael Dunlavey, the former commander of Joint Task Force (JTF) 170, created in February 2002. Gen. Dunlavey was placed in charge of interrogating detainees transferred to what was then the only prison in operation in Guantanamo, Camp X-Ray. Gen. Dunlavey is a trial court judge in Erie County in his civilian life. Have you had occasion, either before, during or since your involvement with the Guantanamo prosecutions to speak with Gen. Dunlavey, and if so, what can you tell us about your conversation or conversations?

Darrel Vandeveld:In February 2002, Secretary of Defense Donald Rumsfeld appointed Major General Dunlavey, now retired from the Army Reserve, as the commander of the joint operations unit that had been given the mission of interrogating detainees transferred to Guantanamo in the early stages of the October, 2001 U.S. invasion of Afghanistan. Gen. Dunlavey was and is a well-known figure in the Erie community, and his military background, focused on military intelligence and intelligence interrogations, began with his service in the Viet Nam War. According to what I’ve been told, Gen. Dunlavey had conducted thousands of interrogations in the course of his career, and the Army obviously thought well enough of his abilities to promote him to the rank of two-star general, a rarity in the Army Reserve. Although I thought Gen. Dunlavey was highly qualified for the position, it struck me as unusual that in the first attack on U.S. soil since Pearl Harbor, that the active duty military would choose a part-time, reserve officer to command one of the most important missions in the nascent struggle against terrorists – usually the active Army hoards such positions for their own. I was heartened that Gen. Dunlavey had been selected for the mission, not only because of his military experience, but also because of his legal training and reputation for fairness. Before 2001, I had met Gen. Dunlavey several times at social events, had always been impressed by his decisiveness and obvious intelligence, and hence voted for him when he ran for judge. He seemed qualified by experience and judgment to fill the role he had been assigned.

After February 2002, Gen. Dunlavey’s military duties kept him away from Erie for long periods of time, as did my own, and so I never had the opportunity to speak to him about the so-called Global War on Terrorism or his own service. Since returning to Erie late last year, I have avoided contacting Judge Dunlavey because of the controversies that surround us both. I’ve read extensively about Judge Dunlavey’s service at Guantanamo, and believe that he acted reasonably and honorably during a period of intense political and social pressure, in a very demanding position. Weaker personalities might have succumbed to some of the obviously inhumane directives he received from the Office of the Secretary of Defense, so I personally give Judge Dunlavey great credit for limiting what we now know were serious excesses and misconduct concerning the treatment of the detainees. That Defense Secretary Rumsfeld essentially relieved Gen. Dunlavey of command and replaced him with Major General Geoffrey Miller of Abu Ghraib infamy, stands as a silent testament to Gen. Dunlavey’s moral courage and strong sense of restraint. I should add that I have not appeared before Judge Dunlavey since returning to Erie, do not have any cases pending before him, and do not expect to in the future, since he is currently assigned to the Juvenile Division of the court, an area in which I do not practice.

The Talking Dog: My understanding is that you have described yourself as fitting the classic model of the rock-ribbed, God-fearing military man. And in this model, my understanding is that, at least before your assignment to the Guantanamo prosecutions, you believed that, in fact, the United States was holding a bunch of hardened fighters and terrorists, and you meant to prosecute as many as you could and send them to jail for as long as possible (and at one time, were associated with at least 6 different GTMO prosecutions). How have your personal observations and experiences affected your political world-view overall (if it has), and in particular, your view of what the United States government is doing at Guantanamo Bay? If you can answer this… and I understand you are a devout Catholic and had sought the advice of a Jesuit priest and peace activist named John Dear, who gave you the response “quit GTMO” to your expression of personal misgivings about your prosecution work… has your religious faith been shaken in any way by your experiences… or has it been strengthened and reinforced?

Darrel Vandeveld: When I left Erie for Bosnia in November 2001, I harbored the views of most Americans: I was beyond angry that Americans had been killed in a sneak attack, I viewed al Qaeda as a manifestation of pure evil, and I was determined to do whatever I could to contribute to their wholesale, final destruction. Despite my Christian beliefs, I hungered for revenge and retribution against Osama bin Laden and his criminal organization, and I made little distinction between al Qaeda and its accomplices, the Taliban. I distinctly recall feeling a keen sense of disappointment that I had not been able to secure a position in the invasion of Afghanistan. I accepted, without question, the cynical notion that sometimes brutality has to be met with brutality, and I was prepared to put this notion into practice if the Army ever gave me the opportunity. My motivation was entirely apolitical.

Much has been made of my Catholic faith since I left the Commissions, because I cited, almost in passing, that my professional, ethical qualms over the conduct of the Commissions and the treatment of the detainees led me to consult with a Jesuit priest before I asked to be relieved of my duties as a prosecutor at the Commissions. However, the claim that I am a “devout” Catholic is so self-aggrandizing and lacking in humility that I sometimes regret characterizing myself as a “resolute” Catholic (that is, one convinced of the truth of the Catholic Church’s claims), as opposed to “devout” (the adjective the media has adopted, which I view as implying a fidelity to the church’s teachings and degree of personal holiness that I will be the first to admit I do not possess.) In fact, I’ve always considered myself to be a rationalist, and for many years – had I given the matter much thought – I would have characterized myself as an atheist. Over the past decade or so, however, without any real effort on my part, I gradually came to embrace the Catholic faith and made Kierkegaard’s “leap of faith,” from which I have never retreated. If anything, my study of works such as N.T. Wright’s “The Resurrection of the Son of God” has reinforced what I’ve accepted as matters of faith. Likewise, my moral misgivings while at the Commissions led me to an intense re-examination of the Gospels, Biblical exegesis, and various theological tracts on Christian morality and, in particular, the Just War theory. From this study and from my experiences, my religious convictions are better informed and more deeply held than ever. Certainly I found solace in the church as I struggled to act on principles I knew to be morally and ethically correct.

Getting back to the Commissions, at the time I joined them, I had served in three different combat zones, and had been on active duty for four of the preceding six years. In Iraq, I participated in dozens upon dozens of missions “outside the wire,” i.e., outside the relatively safe confines of the massive U.S. bases there. Some of the events occurring on these missions stripped me of any illusions about the supposed glamour of war. I have had friends killed in action, friends who committed suicide, and another friend, one of my best friends in the world, gravely wounded in a rocket attack. Whatever romantic impressions I’d harbored about the “glory” of combat or the civilian’s naïve concept of “honor” had long since been replaced by an unimpeded view of the terrible realities of war. As a soldier, of course, I had pledged to sacrifice my life, if necessary, to accomplish our ultimate mission of defending the Constitution, and I emerged from my time overseas with an unshakable conviction that I would continue to honor that pledge, even though I knew in an object manner the degree of sacrifice, suffering, and the horrors the endeavor might exact or engender. My deepest yearning, then, when I joined the Commissions, was to further my desire for revenge for the September 2001 attacks, and to avenge those Americans who had not survived their tours of duty, who had made the greatest sacrifice possible in this life: the loss of their own lives. In doing so, I reasoned, I would be protecting and defending the Constitution and our Nation, as well as contributing in some small measure to ensure that the fallen had not done so in vain.

So, far from being cynical and disillusioned, or feeling betrayed or used by the Bush administration to advance its misbegotten mission in Iraq, I had reduced my grand ideals to their essential core: day-by-day I would, I told myself, work as hard as I could to see those deserving of punishment suffer as much punishment as I could convince a Commissions panel to impose, even the death penalty if at all possible.

However, I had not been so transformed by my time overseas that I had banished my essential self, or the idealism that led me to become a lawyer in the first place. As a career prosecutor who had tried well over one hundred criminal jury trials by the time I arrived at the Commissions, I had certain professional expectations regarding the status of the cases under consideration for prosecution. When I arrived in May 2007, the Commissions and their predecessor tribunals, had been underway for almost six years. I fully expected that in that lengthy period of time, the evidence against the detainees would have been collected and systematized, that prosecution packages or files would have long since been assembled, and that informed, prudential decisions would have already been made about which detainees had committed war crimes, and which detainees had not.

Instead, what I found was precisely the opposite: despite the best efforts of the Chief Prosecutor at the time, Air Force Colonel Morris Davis, and his deputy, who I will not identify in order to respect his personal privacy, the prosecution enterprise was a shambles, in a state of disorganization that had me reeling in disbelief. It became clear to me within weeks after I reported for duty that the various military services had not assigned officers with the experience, skills, and motivation necessary to conduct the vital mission of prosecuting the war criminals with the sense of urgency and diligence the task required. As I’ve explained elsewhere – and my assertions have been confirmed by “senior Bush administration officials” familiar with the Commissions – the evidence and, more importantly, the missing evidence, had neither been assembled nor sought after with any diligence after prosecutors and investigators had discovered the evidence to be missing. The prosecution office, after detaining supposed enemy combatants for as long as six years, seemed to have accomplished little more than to install a security door in order to separate the prosecution offices from where the convening authority’s offices had then been located. Still, I saw this appalling situation as yet another obstacle to mission accomplishment, believed that these challenges could be overcome by sheer effort, and undertook my duties with a degree of optimism and resolve that, while undoubtedly tempered by my observations, nonetheless remained vibrant and, I thought, realistic.

The Talking Dog: You joined six others (Robert Preston, John Carr, Carrie Wolf, Fred Borch, Stuart Couch and Morris Davis) in resigning from the Guantanamo prosecutions because of the perceived injustice or ethical or other improprieties of them (Col. Borch resigned perhaps for different reasons)… can you tell me, in your own words, what it was specifically about the Mohammad Jawad case, or the GTMO prosecutions in general, or anything else, that caused you to resign from the prosecution? If you can tell us, what is your current status with the military (e.g. have you resigned your commission)? My understanding is that, for calling into question what you believed to be unethical and illegal conduct, you were subjected to a mental status review by the military… can you comment on that?

Darrel Vandeveld: As to the Jawad case, I filed a lengthy personal declaration in support of his habeas petition, and anyone interested in the details of my personal revelations and what I’m sure was viewed by the Commissions hierarchy as a disturbing volte face, can read the declaration here. The declaration is as detailed a dissertation on my evaluation of the case as I could muster under the time constraints, and presents an accurate portrayal of my assessment of the case. My fundamental conclusion, after eighteen months with the Commissions, was that no lawyer could certify to the Commissions and to opposing counsel that the discovery requirements mandated by the Military Commissions Act and its implementing regulations had been met, so dismal was the condition and organization of the evidence. Hence, I concluded, none of the detainees, or at least those whose cases I examined and evaluated, could be guaranteed a fair trial – not a perfect trial, which is impossible to achieve in any case, but a trial that afforded the detainees with evident and ascertainable fairness and transparency. The ineluctable consequence of this assessment required me, I believe, as a lawyer, military officer, and a human being, to refuse to participate in the Commissions any longer.

Regarding the other cases I was assigned to prosecute (at one point, I was responsible for one out of three cases filed before the Commissions), I have refrained from public comment and will continue to do so unless and until competent authority permits me to address the issues raised by those cases. I can say, however, that the intelligence agencies involved in those cases have undertaken massive, organized efforts to assist the Commissions in the pending prosecutions. Even these herculean efforts, I believe, have been unsuccessful in attaining compliance with our notions of due process and the MCA and Manual for Military Commissions, not to mention the deeply-ingrained American tradition of fairness. (I also formed the belief, and this purely my own conjecture, the more astute among those agencies probably realized that risking the potential compromise of sources and methods of information collection, in an effort to assist a process that had resulted in a grand total of three “trials” in seven years, would have exhibited a certain lack of prudence, to understate the matter significantly. There can be no dispute that revealing sources and methods can lead to lethal consequences for others, and intelligence officers, in my experience, will go to extreme lengths to protect such information.)

Finally, Brigadier General Thomas Hartmann did ask me to undergo an mental status evaluation after I had voiced my opposition to the Commissions. He seemed genuine in his concern for my well-being, largely because my derogation of the Commissions appeared to him, as I say, as an abrupt about face – an aggressive prosecutor who had displayed nothing but the most doctrinaire of beliefs about the propriety of the Commissions, into someone whose observations of the injustices at GTMO resulted in a lengthy period of anguish and a re-evaluation of my beliefs and motivations. Gen. Hartmann did not realize, because I had not confided in him, that my disaffection with the Commissions had evolved over a period of months, and after careful study and self-examination. I therefore do not question his motives for “requesting” the examination (a general officer’s “request” is invariably treated as a military order). I know the defense has developed a deep animus for Gen. Hartmann, but my own interactions with him were nothing but cordial and characterized by mutual respect. Whatever the reason he asked for the evaluation, though, the actual examination lasted for all of five minutes before the examining psychiatrist pronounced me fit to return to duty as soon as I could return to my office at the Commissions. The experience was nonetheless one of the most humiliating of my life, a feeling only enhanced when I saw the physician’s patients who were waiting to be seen. I needed no more than the briefest glance at the anguished, confused faces of these other soldiers to understand that they were genuinely in need of treatment and, as I hope and pray they’ve accomplished, a lasting peace and healing.

The Talking Dog: Following up on the Jawad case, in prior statements to the BBC, and in your court submissions, you noted that Jawad, who attempted suicide in custody, was mistreated in a number of ways, including being hooded, shackled and shoved down a stairway at Bagram, at GTMO, subjected to “the frequent flier program” (i.e. being moved every few hours to prevent him from sleeping), and subjected to “fear up” interrogation designed to take advantage of vulnerable medical and mental health conditions (and aided by medical professionals) in doing so, in order to get Jawad to confess…and Jawad did confess (perhaps after sleep deprivation and death threats), albeit with a thumbprint (that wasn’t his!) to a document in Farsi, a language with which he was not familiar (as he was an illiterate Pashto speaker)! Without disclosing anything classified of course, can you describe what else you determined Jawad was subjected to, whether you’d consider it “torture” or otherwise, and what you became aware of other detainees being subjected to, and again, whether you would consider it torture or otherwise?

Darrel Vandeveld: I did not know, at the time I left the Commissions, that Jawad had been subjected to torture, as the MCA and federal law define the term. In the months following my departure, however, the Military Judge presiding over Jawad’s case did find that Jawad’s supposed confessions had been obtained through the use of torture by the Afghans, and that Jawad’s subsequent statements could not be separated in any meaningful, acceptable manner from his torture only hours earlier by the Afghans. Thus, the Military Judge suppressed all of Jawad’s “confessions,” thereby eviscerating the government’s ability to prove Jawad’s alleged guilt beyond a reasonable doubt. The government, of course, has appealed the Military Judge’s suppression rulings, but the more compelling legal analysis by far is that the appellate court, the Court of Military Commissions Review, will uphold the rulings. (The CMCR has delayed issuing an opinion in the government’s appeal pending the review of Guantanamo and the Commissions ordered by President Obama.)

The Talking Dog: Again, on the Jawad case, I was struck that, similar to the Omar Khadr case (also chosen for prosecution), Jawad was absurdly young (16 or so at the time of capture) and his supposed “crime” (throwing a grenade at soldiers) appeared to be traditionally covered by “belligerent immunity” and while Jawad might certainly be a “POW” or “enemy combatant”… a war crime seemed more than a stretch. An I correct that somewhere along the line you came to the same conclusion? I take it somewhere along the line, you discovered exculpatory evidence about Jawad that was not provided to the defense team… can you tell us about that, and the reaction of your superiors in the commissions prosecution about that?

Darrel Vandeveld: Again, I submitted a declaration and testified (as ordered by the Military Judge) in a pre-trial hearing in Jawad’s case, and specifically mentioned items that I believed had not been relinquished to the defense by the deadlines the Military Judge had previously established. (The deadlines, I should mention in all candor, had not been anticipated or even requested by the defense, and the Military Judge’s surprise ruling afforded the prosecution very little time in which to comply. Errors made under those severe time constraints were probably inevitable and, in my view, excusable and remedied easily enough. Jawad’s defense had not by then been so firmly articulated that he suffered any appreciable prejudice by the omissions, in my admittedly minority view.) The omitted evidence, I discovered, had been entered into a database maintained by the Criminal Investigation Task Force (CITF) in the month preceding the hearing, without any notice to the prosecution that CITF had done so. I therefore testified that I did not believe these omissions had been intentional. I continue to believe, though, that the failure to turn over arguably exculpatory or mitigating evidence, even if unintentional, only served to underscore the travails of the Commission’s process, otherwise so evident to me and to the world.

My declaration also describes the seminal and compelling work of Professor Madeline Morris of the Duke University Law School, whose comprehensive knowledge of the history, evolution, and application of the law of war is the most cogent I’ve seen expressed by anyone to date. Professor Morris submitted to the Commissions a summary analysis of the charges against Jawad, and later testified as a defense expert witness on the subject. Professor Morris’s explication – again, as clear and cogent of any I have seen – would convince any objective observer that Jawad’s conduct, even if true and provable, did not amount to a violation of the law of war.

The Talking Dog: You and the current chief prosecutor (Col. Lawrence Morris) don’t seem to have particularly nice things to say about each other… Col. Morris essentially calling you a disgruntled former employee who quit because you weren’t happy with your recommendations not being followed and you essentially saying that Col. Morris lacks credibility… is there anything you’d like to add to that… and was there something more going on there than disagreement over the handling of the Jawad case? Can you tell me about your relationship with the prior GTMO chief prosecutor, Col. Morris Davis, who also resigned as a prosecutor, and what misgivings Col. Davis expressed to you (and you to him)?

Darrel Vandeveld: Col. Morris and I are vastly different people, with vastly different personalities and professional and military experience. We have irreconcilable differences in our assessments of the propriety and effectiveness of the Commissions, and, regrettably, what should have been a dispassionate debate (if a debate at all), degenerated into a personal series of accusations and counter-accusations that served no purpose, other than to demean us both. Now that the Commissions are all but finished, our differing views matter little and are best forgotten. I truly hope that Col. Morris will eventually adopt the same view of our personal rancor and consider our differences to be an insignificant bit of history better forgotten. Perhaps the best description I’ve come across of Col. Morris can be found here, in his own words.

Col. Morris Davis, the Chief Prosecutor who resigned from the Commissions when he failed to persuade the civilians who run the Commissions that his independence as a prosecutor had been undermined, even eliminated, by political interference from the very same civilians, has displayed a remarkable degree of moral courage and character, and has paid a steep personal price for his principled resignation. There is no doubt on the part of those who know him, that Col. Davis would have been elevated to the rank of general officer had he not refused to be bullied by members of the Administration, who sought to transform the Commissions into vacuous show trials. As with any great leader, Col. Davis largely kept his own counsel and never burdened his subordinates with his own professional struggles. He clearly possessed the ability and ethical rectitude to make the Commissions succeed, both in practice and in the eyes of the world. His resignation and subsequent pillorying in the media by anonymous sources who had their own selfish interests in mind when issuing their condemnations, has unfortunately resulted in an incalculable loss to our nation’s efforts to achieve justice with fairness and transparency.

The Talking Dog: Following up on that, Jawad’s military defense lawyer Maj. David Frakt has suggested that you and he had reached a plea-bargain agreement, by which Jawad would have pleaded guilty to something relatively minor and gotten a light sentence (a la Hicks and Hamdan)… supposedly, Frakt has also suggested, your superiors overruled you on this. Is this anything you can comment on?

Darrel Vandeveld: The foregoing is accurate, and described in detail in the declaration I filed in support of Jawad’s habeas petition. When I realized Jawad either did not commit the offenses charged, or that the charges did not comprise a violation of the law of war, and that Jawad had been terribly mistreated while in US custody, I did seek to end his six-year imprisonment through a negotiated plea that would have required him to be afforded rehabilitation and reintegration services while he served a further, brief period in custody. My superiors dismissed my suggestions out of hand, unequivocally – even to the point of ridicule. With the possibility of securing Jawad’s release through a negotiated plea so decisively rejected, it clarified – if I even needed clarification by then – that I could not in good conscience continue to participate in the Commissions.

I do want to emphasize that Major Frakt is an outstanding lawyer, who possessed a singular grasp of the law of war, Commissions practice and procedure, and a basic commitment to equal justice under the law. Nevertheless, David Frakt is one of the most congenial people I know, and our initial, vigorous disagreements never descended into a lasting lack of mutual regard, even when our aggressiveness toward one another in the courtroom strongly suggested otherwise, at least to those observing the proceedings. I do confess, shamefacedly, that my initial appraisal of David and his advocacy was less than complimentary. My subsequent personal interactions with him quickly disabused me of my misconceptions. I consider David to be a good friend whose conduct was both honorable and admirable. I hope he and will be lifelong friends.

The Talking Dog: You have called GTMO a stain on our military, saying, inter alia, “It took me too long to recognize that we had abandoned our American values and defiled our constitution” and you said that the commissions process cannot end in anything resembling “justice”. With all that, and again based on your own observations and experience, especially as we see blow-back (such as baseless claims we are hearing that “61 released Guantanamo detainees have returned to the battlefield” that “we are holding evil terrorists” and so forth)… what, based on your own experience, MUST the public know about GTMO, right now? What immediate advice would you give (my college classmate) President Obama, Defense Secretary Gates and other responsible officials, on this subject?

Darrel Vandeveld: President Obama has embarked on the correct path. The review he has ordered will unfortunately require more time to achieve than he’s permitted, for the basic reason I left the Commissions: the evidence, such as it is, is so diffuse or even lost, that the review committee will be unable to assess the cases against the detainees with any degree of certainty within the time allotted in the Executive Order. I have serious doubts that Guantanamo can be closed within a year if the evidence-gathering provision of the President’s EO is taken seriously.

Once completed, though (and the conclusion may very well be that the dismal efforts by the prosecution have defeated any realistic possibility of prosecuting all but a small number of detainees), the President should consider whether the Commissions can be continued, albeit under modified set of laws and rules that mirror the Manual for Military Courts-Martial and the Uniform Code of Military Justice. Guantanamo must be closed, whatever the cost, and creating a “national security court,” as some have suggested, will only lead to additional delay as the principles of any such enterprise are tested in federal court. Likewise, although I have not undertaken a comprehensive review of the proposal, prosecuting the confirmed terrorists and war criminals in so-called “Article III” courts in the US may suffer from justice-defeating impediments.

If I were forced to predict the future course of our activities at GTMO, through an admittedly dimly-lighted lens, I would envision the continuation of the Commissions in a modified manner that would conform to accepted standards of international law and to our own basic, inviolable notions of justice. Major Frakt has written a law review article on this subject (which he may now regret), articulating some of the modifications/wholesale changes that might be feasible and acceptable.

So, my advice to President Obama reduces to this: if trials in Article III courts are determined to be imprudent, time-consuming, or to involve too many Constitutional uncertainties, then reform the Commissions by the following: supplement your initial Executive Order with a more specific, imperative directive that ALL evidence be assembled on each detainee immediately, no matter the resources required to do so. Countenance no claims that the task is unattainable. Replace the current Convening Authority, Chief and Deputy Chief Prosecutors, whose failures are undeniable and who, in any event, no longer possess a shred of credibility. Instruct the military services’ top lawyers or “TJAGs” to conscript the most qualified prosecutors available, from whatever source (most probably the reserves, many of whose members are highly-experienced civilian prosecutors). Order the service TJAGs to relocate the entire operation to GTMO (currently, the prosecution and defense have offices in Northern Virginia!). Further, mandate that the Military Judges assigned to the Commissions be relocated to GTMO for the duration as well, holding court proceedings as rapidly as equity allows (before the President’s EO, the Commissions would meet at GTMO perhaps once a month – an unacceptably glacial pace), and to endeavor, consistent with the modified Commissions law and regulations, to complete all trials no later than 21 January 2010. Refuse to release any military personnel from active duty until the mission is complete. Knowing the soldier’s life as I do, this last step will instill the requisite urgency and effort all but abandoned in the preceding seven years. Finally, I would advise the President that after the fair, equitable and just trials are completed, to order the prison camps at GTMO destroyed — bulldozed to the ground, not in an attempt to erase the past, but as a means of recognizing the abandonment of our American values that took place there. Put a decisive end to GTMO.

In sum, if the detainees cannot be tried in US federal courts, replicate the intelligent, reasoned, and highly-regarded Nuremberg trials to the extent possible at GTMO. Restore America as a force for good in the world. Complete the mission at GTMO, with honor and expeditiousness – not dishonor and expediency.

The Talking Dog: Can you describe “the gestalt” of the GTMO prosecutor’s experience… in particular, your statements were the basis for the recent reporting that prosecution files and evidence “were in disarray” (which you discovered upon your arrival in 2007, some several years after the commission system started)? I have suggested that this would be consistent with prosecutors not having much confidence in their “evidence”… is that anything you can comment on? Can you compare this situation, for example, to how other military prosecutions have been run, and to your experience as a civilian lawyer? To the extent its not classified, can you identify the other GTMO prosecutions with which you were associated?

Darrel Vandeveld: There were more than a few competent prosecutors at the Commissions when I was there, but most of the others hadn’t tried a case in years, if at all, and then only within the military justice system. With the implicit pressure to file charges as quickly as possible, my supposition is that many prosecutors succumbed to the human temptation to charge the detainees and seek the evidence later. (Compare and contrast my personal experience in Jawad, when I thought I already possessed all the evidence necessary to convict before swearing charges against him.) It appeared to me that many of the prosecutors did not even know the Military Commissions Act and Manual for Military Commissions to the degree necessary to assure themselves that they were in compliance with the law and regulations. Again, there were definitely exceptions to this broad characterization, and I have to admit that most of these exceptions to the rule were reservists who had extensive civilian prosecution experience. Others, regrettably, seemed to passing the time until they could either retire or move to another assignment somewhere in the D.C. area; i.e., their personal concerns were primary.

Again, if my earlier comments were unclear, trial should be held in Article III courts for the dozen or so detainees who are true war criminals or terrorists. If this is determined to present too many legal impediments to fair trials or too much uncertainty, then the Commissions could be redeemed through judicious modifications that render them fair and just. In either event, seven or eight years to bring the detainees to trial is a travesty; holding for those who should have been released long ago (the plight of the Uighurs is particularly repellent) is unbelievable.

The Talking Dog: I join all my readers in thanking Mr. Vandeveld for that thorough and extremely informative interview.

Readers interested in legal issues and related matters associated with the “war on terror” may also find talking dog blog interviews with attorneys Buz Eisenberg, Steven Wax, Wells Dixon, Rebecca Dick, Wesley Powell, Martha Rayner, Angela Campbell, Stephen Truitt and Charles Carpenter, Gaillard Hunt, Robert Rachlin, Tina Foster, Brent Mickum, Marc Falkoff H. Candace Gorman, Eric Freedman, Michael Ratner, Thomas Wilner, Jonathan Hafetz, Joshua Denbeaux, Rick Wilson,
Neal Katyal, Joshua Colangelo Bryan, Baher Azmy, and Joshua Dratel (representing Guantanamo detainees and others held in “the war on terror”), with attorneys Donna Newman and Andrew Patel (representing “unlawful combatant” Jose Padilila), with Dr. David Nicholl, who spearheaded an effort among international physicians protesting force-feeding of detainees at Guantanamo Bay, with physician and bioethicist Dr. Steven Miles on medical complicity in torture, with law professor and former Clinton Administration Ambassador-at-large for war crimes matters David Scheffer, with former Guantanamo detainees Moazzam Begg and Shafiq Rasul , with former Guantanamo Bay Chaplain James Yee, with former Guantanamo Army Arabic linguist Erik Saar, with law professor and former Army J.A.G. officer Jeffrey Addicott, with law professor and Coast Guard officer Glenn Sulmasy, with author and geographer Trevor Paglen and with author and journalist Stephen Grey on the subject of the CIA’s extraordinary rendition program, with journalist and author David Rose on Guantanamo, with journalist Michael Otterman on the subject of American torture and related issues, with author and historian Andy Worthington detailing the capture and provenance of all of the Guantanamo detainees, with Joanne Mariner of Human Rights Watch, and with Almerindo Ojeda of the Guantanamo Testimonials Project to be of interest.

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Author: THE TALKING DOG