45 Pages Posted: 11 Jul 2012
Date Written: 2011
This article makes the case for why the military commissions of the Bush Administration were such a dismal failure through an in-depth analysis of one of the most notorious military commission cases, the case of Afghan juvenile Mohammed Jawad, who was represented by then Major David J. R. Frakt. Jawad’s story and the collapse of the case against him is a microcosm of the problems that have bedeviled Guantánamo, and it exposed many troubling and controversial aspects of the military commissions. This article explore five of the most significant aspects of his case. First, Jawad was a child soldier charged with a novel war crime based on an unsupported legal theory. His case therefore demonstrated the Bush administration’s abandonment of the law of war. Second, because it rested largely on statements obtained through coercive interrogations, Jawad’s case revealed the extent to which the success of the commissions hinged on the prosecution’s ability to introduce unreliable, involuntary confessions. Third, the case revealed the prosecution to be dysfunctional and deeply divided. Fourth, the case laid bare the prevalence and nature of detainee abuse at Bagram and Guantánamo with a well-publicized motion to dismiss the charges based on torture by U.S. personnel. Finally, although all of these factors contributed to the unraveling of the prosecution, the case ultimately foundered because Jawad had something in common with the vast majority of his fellow Guantánamo detainees: he was not a terrorist.
Keywords: Mohammed Jawad, military commissions, Guantanamo, Major David Frakt, torture, child soldier, law of war
Suggested Citation: Suggested Citation
Frakt, David Jason Rankin, Mohammed Jawad and the Military Commissions of Guantanamo (2011). Duke Law Journal, Vol. 60, p. 1367, 2011. Available at SSRN: https://ssrn.com/abstract=2103829