Tortured Afghan Child Refused Right to Sue
August 16, 2016 (Fault Lines) — The case of Mohammed Jawad, a.k.a. Saki Bacha, began in December of 2002 in Afghanistan. He was 15 when he was captured following a grenade attack that seriously injured two American soldiers and their Afghan interpreter. After enduring years of abuse and torture at the hands of American and Afghan officials, and after filing a petition for of habeas corpus in federal court, he was eventually released and shipped back to Afghanistan in 2009.
But it’s as if Jawad was repeating the mantra that his torturers must have told him while he was in their custody: “we’re not done with you yet.” Through his attorneys, he told the United States that he was not through with it when he sued for the abuse he endured at their hands. The decision from the U.S. Court of Appeals for the D.C. Circuit does a fine job in detailing what was done to Jawad in our name, and for shame:
While in their custody, Jawad was abused by American military authorities. Under intense and prolonged questioning, Jawad initially denied responsibility for the grenade attack, but later he confessed. Later still, he recanted his confession. In February 2003, Jawad was transferred to Guantanamo Bay Naval Base, where the cruel treatment continued. Despite his age, he was not housed in a facility for juveniles.
He spent the majority of his first year at Guantanamo “in social, physical, and linguistic isolation,” and even attempted suicide. For two weeks in May 2004, Jawad was “repeatedly mov[ed] . . . from one cell to another in quick intervals throughout the night to disrupt sleep cycles, on average every three hours.” J.A. 30-31. Over the course of his detention at Guantanamo, he was interrogated more than 60 times, even after the government decided he had no useful intelligence. These interrogations included “various forms of cruel treatment such as excessive cold, loud noise, beatings, pepper-spray, and being shackled for prolonged periods.”
That’s right: they decided to keep torturing and questioning Jawad, “even after the government decided he had no useful intelligence.” What for? Just because? For kicks (no pun intended)? But his detention was deemed kosher outside a federal criminal court and by outside tribunals with names that would make Orwell do summersaults in his resting place: in 2004 Jawad appeared before the Combatant Status Review Tribunal, and a year later he pled his case twice before the Administrative Review Boards. The Tribunal and the Boards determined that he was fit to be detained, and the decisions relied heavily on Jawad’s “confessions.”
Jawad was detained and kept outside the realm of a U.S. District Court pursuant to the Authorization for Use of Military Force bill, which was passed just 3 days after the attack on civil society on September 11, 2001. It allows the chief executive to “detain enemy combatants for the duration of the particular conflict in which they were captured.” If that sounds very open ended, it’s because it is. So long as we are in a “conflict” — whatever the hell that means — people kids like Jawad remained in the custody of sadistic torturers Guantanamo Bay personnel.
The same law that was used to prosecute Jawad, the Military Commissions Act of 2006, is the same one cited by the appellate court in dismissing his lawsuit that alleged violations of the law of nations, the Third and Fourth Geneva Conventions, the Rights of the Child on the Involvement of Children in Armed Conflict, and the Torture Victim Protection Act:
The relevant portion of section 7(a) of the 2006 MCA states:
[N]o court, justice, or judge shall have jurisdiction to hear or consider any [non-habeas] action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
28 U.S.C. § 2241(e)(2). By its clear terms, this provision strips federal courts of jurisdiction to hear most claims against the United States arising out of the detention of aliens like Jawad captured during the United States’ invasion of Afghanistan in response to the attacks of September 11, 2001.
So for now, Mohammed Jawad is left without legal recourse against his tormenters. Bear in mind the obvious, folks: Jawad was never tried before a jury or judge, and the government never proved (beyond a reasonable doubt or otherwise) that he did the awful things some Afghans and American officials claimed he did. His detention and torture were pointless, as it produced nothing except pain and anguish for Jawad.
It’s likely that Jawad’s torturers never bothered to read a book called Camp 020: M15 and the Nazi Spies. Published by the British Public Record Office in 2000, it details how Colonel Robin Stephens ran a British prison that housed more than 400 of Hitler’s operatives, and how violence was frowned upon as a form of getting the information the Allies needed. As Col. Stephens phrased it: “Violence is taboo, for not only does it produce answers to please, but it lowers the standard of information.”
The British Colonel was so effective in breaking the Nazi inmates (some even begun to work for him) that he began getting requests for advice “from the FBI and the North West Mounted Police, from the Director of Security in India to the Resistance Movements of de Gaulle, the Belgians and the Dutch.” It goes to show how torturing inmates is much worse than “wrong” and illegal. It’s mind-numbingly stupid as it yields either no information or bad information. It serves us better to be ruthless yet humane. Now that would be the sign of a true American badass.