Afghanistan: Kabul Court Ruling Could Free Afghan Terrorism Suspects Held at Guantanamo

A short message on the back of Maj. Eric Montalvo's business card reads: "My lawyer has told me not to talk to anyone about my case, not to answer any questions and not to reply to any accusations." The message is intended for those who try to approach his clients. Montalvo has one of the most difficult jobs anywhere. As a soldier and prosecutor for the US military, he is tasked with defending those suspected by the US government of committing acts of terrorism in Afghanistan and around the world. Some of his clients have not even been charged.

Now, Montalvo is fighting in Afghanistan's Supreme Court to represent an Afghan national in a legal case that could have far-reaching implications for the US government's attempts to relocate Guantanamo Bay prisoners to third countries, or detain them indefinitely in the United States.

At the heart of his petition is the case of Mohammed Jawad, a minor when he was arrested in December 2002 for his alleged involvement in a hand grenade attack on a US military vehicle. Jawad was reportedly 12 at the time he was sent to Guantanamo. While Jawad's exact age is difficult to determine because of an absence of official records, military prosecutors have accepted that he was a juvenile at the beginning of his incarceration.

Montalvo's petition argues that Jawad was not involved in the attack and that his confession was obtained under torture and duress, perpetrated both by Afghan police officers who initially arrested him and by interrogators at US detention facilities at Bagram Air Base, Afghanistan, and Guantanamo Bay, where he is still held.

In a boon to the defense, Montalvo's plea to suppress Jawad's statements under interrogation has been accepted by a US military judge in the Guantanamo Military Commission. Moreover, in September 2008, Lt. Col. Darryl Vandeveld, the lead prosecutor in the case against Jawad, left the commission because, he said, he could not ethically continue to prosecute the case. "I personally do not believe there is any lawful basis for continuing to detain Mr. Jawad," Vandeveld wrote in his resignation letter. "There is no reliable evidence of any voluntary involvement with any terrorist group."

Vandeveld added that he did not believe Jawad to be a threat. Describing himself as a "former prosecutor and now repentant persecutor," Vandeveld wrote that "six years is long enough for a boy of 16 to serve in virtual solitary confinement, in a distant land, for reasons he may never fully understand."

The petition argues that Jawad was not extended any of the privileges and rights of a juvenile during the years of his incarceration, and that he endured torture in various forms, including blindfolding and hooding, 'shock techniques,' stress positions, physical and linguistic isolation, being pushed down stairs and chained to a wall, beating, threats of death and physical violence, and was subjected to the 'frequent flyer' program (in Jawad's case this involved forcibly moving him from cell to cell 112 times in a period of 14 days to cause sleep deprivation). Jawad, according to official prison logs cited in the petition, tried to commit suicide by repeatedly banging his head against the cell walls.

It is however not the torture, or even the innocence of Jawad, as has been well documented in a large number of other Guantanamo cases, and not even his status as a juvenile, that has immediate repercussions for America's new administration. Montalvo and his colleague, Capt. Christopher L. Kannady, challenge Jawad's detention and his continuing incarceration on the grounds that in the absence of an extradition treaty between the United States and Afghanistan, the arrest and detention of Jawad was illegal and must be overturned.

"Clear violations of foreign sovereignty in the extradition process deprive US criminal courts of jurisdiction over foreign nationals," the petition states. "There has and is currently no formal extradition treaty between the United States and Afghanistan. In fact, the Afghan Constitution of 1964 expressly prohibits the extradition of Afghan citizens to a foreign state." The 1964 constitution was in effect at the time Jawad was transferred by Afghan authorities to the United States on December 17, 2002, and on February 6, 2003, when Mr. Jawad was forcibly removed from Afghanistan.

Not only did the 1964 Constitution prevent extradition, but also there is no evidence the United States even bothered to ask the Afghan government for permission, the petition argues. While the new constitution, adopted in January 2004, does make provisions for the Afghan government to enter into extradition treaties with other states, to date no such pact exists between Afghanistan and the United States. Currently, the extradition bill has been referred to an Afghan parliamentary committee. In its present version, the draft requires the requesting state to submit evidence including witness testimony in support of the extradition request.

In May, Montalvo and Kannady filed the petition challenging Jawad's ongoing Guantanamo incarceration in the Afghan Supreme Court. It calls on the Afghan government "to pursue by all means necessary the immediate release and repatriation of Jawad." During their visit to file the petition, Montalvo and Kannady said that not only had the US government made it difficult to obtain the information they needed, but that the US Marine Corps had so far refused to respond to their request to practice law before the Supreme Court of Afghanistan. The Afghan Independent Human Rights Commission and the Afghanistan Independent Bar Association have supported the two US military lawyers.

Afghanistan's Supreme Court has directed the office of the Attorney General to look into the case. "Under international law and the Afghan Constitution, Jawad should be released," Montalvo told EurasiaNet. "Afghanistan has shown hope and promise that they will follow the law."

If Afghanistan's Supreme Court does indeed accept the petition on grounds that the extradition was invalid, it will lay the groundwork for not just Jawad, but for all Afghan prisoners in Guantanamo to be returned to Afghanistan -- even those whom the Obama Administration believes should continue to be held in custody.