David Frakt memo to Susan Crawford

by David Frakt

Subject: Request for Team Jawad Travel To Afghanistan (U)

UNCLASSIFIED

Team Jawad proposes to send Major Eric Montalvo, Capt. Chris Kannady and their regular interpreter, Chand, to assist with the repatriation of Mohammed Jawad. Major Montalvo and Capt. Kannady have already made two trips to the theater and have all the necessary training and clearances to make the trip on short notice. More importantly, they have an established a network of contacts on the ground within the Afghan government, in the NGO community and with Mohammed’s tribe and family.

Team Jawad is working with UNICEF, the ICRC, and other government agencies, NGOs and human rights organization within Afghanistan to ensure that he is provided appropriate counseling and rehabilitation services. Team Jawad needs to be present to ensure a smooth transition to the new team of social workers and other aid groups who will be overseeing his rehabilitation and reintegration.

Major Montalvo and Capt. Kannady have received a number of personal assurances from senior government officials in Afghanistan, including the Minister of Defense, the Attorney General, and the Minister of Foreign Affairs, about what will happen to Mr. Jawad upon his return. Major Montalvo and Capt. Kannady need to be present to ensure that these promises are carried out.

There are a number of reasons why Team Jawad feels it is of paramount importance to be in Afghanistan to receive Mohammed when he arrives and to assist with his transition to Afghan society. Because of security rules at Guantánamo, Mohammed has been deprived of virtually all news from Afghanistan. He has no idea what is going on there now and is unaware of the seismic changes that have taken place in Afghanistan since he was detained in December 2002. He will be landing in a war-torn country that is dramatically different from the place that he left seven years ago.

As the attached memorandum from the court-appointed psychologist attests, it is critical to have “familiar trusted adults” present when he reenters Afghan society after so many years in captivity. Mohammed’s lawyers are the only “familiar trusted adults” in his life. While one could argue that the representation of the client ends at the time charges are dropped, this has not traditionally been the practice of military defense counsel, who frequently continue to provide counseling and assistance after the criminal phase of representation has ended.

Team Jawad’s detailed counsel unanimously agree that under our duty of loyalty and thoroughness (required under the duty of competence) to our client, we have an ethical obligation to Mohammed that will not be fulfilled if one or more of us are not present to assist with his repatriation. As a matter of force protection, it is essential that we send a minimum of two officers.

It should be noted that US District Court Judge Ellen Segal Huvelle, at the time she granted the writ of habeas corpus, strongly recommended from the bench to the Department of Justice that Mr. Jawad’s lawyers be permitted to be present when he is turned over to Afghanistan. Clearly she did not believe that the representation ended upon ordering his release. Indeed, I would suggest the US is obligated to provide Mohammed with the assistance of his lawyers in this critical stage.

Article 6 of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, which the US ratified in 2002, requires that “States Parties shall take all feasible measures to ensure that persons within their jurisdiction recruited or used in hostilities contrary to this Protocol are demobilized or otherwise released from service. States Parties shall, when necessary, accord to these persons all appropriate assistance for their physical and psychological recovery and their social reintegration.” Article 7 of the protocol provides that “States Parties shall cooperate in the rehabilitation and social reintegration of persons who are victims of acts contrary to this Protocol.”

As a child allegedly recruited to participate in armed conflict, Mohammed is considered a victim entitled to rehabilitation and social reintegration. Unfortunately, the US has woefully failed to fulfill its obligations under this binding international treaty for the last six and a half years. Mohammed was offered virtually no assistance for his physical and psychological recovery. Indeed, the abuses he received at the hands of the US are the primary cause of his psychological problems. We cannot morally, ethically or legally abandon him now when he is actually about to be reintegrated into society.

An additional justification for sending Major Montalvo and Capt. Kannady is the strong level of international interest in this case. Mohammed’s plight has become a significant matter of worldwide interest in the media. Indeed, just yesterday, the New York Times devoted an entire editorial to his long ordeal and urged the Obama Administration to release him without delay. The mistreatment of Mohammed, a juvenile, by the United States has generated significant anger in Afghanistan.

This anger has been partially mollified by the fact that Mohammed has been so zealously and ably represented by his appointed military defense lawyers. It would not enhance the image of the US in Afghanistan at this critical period if we were to simply dump Mohammed unceremoniously on the Afghans. Having well-respected members of the US military present to aid in the repatriation process will undoubtedly generate favorable publicity and dampen negative feelings towards the US.

Finally, it is in the interests of all concerned that Mohammed be placed in a living situation where he has appropriate services available and is not at risk of being caught up in the ongoing armed conflict. Major Montalvo and Capt. Kannady can assess the security situation on the ground and ensure that suitable arrangements are made.

Thank you in advance for your prompt consideration of this request.

David J. R. Frakt, Major, USAFR
Defense Counsel
Office of Military Commissions