After that, according to a court document filed by his attorneys this afternoon, he was consistently coerced and abused by interrogators immediately following his arrest, then later at Bagram Air Base, and again at Guantanamo, where he is being held now. That treatment included being thrown down stairs, death threats, prolonged isolation, and sleep deprivation, according to the document, which includes references to testimony from an Army Criminal Investigation Division agent, Katharine Doxakis, who conducted an investigation at Bagram.
In 2003, he attempted suicide. According to his attorneys, interrogators subsequently ramped up pressure tactics, seeking advantage in his weakened state.
The Afghan attorney general's office has called for Jawad's repatriation, as reported earlier this month by AFP. Jawad's former military prosecutor, Lt. Col. Darrel Vandeveld, resigned in September 2008 and filed a declaration of support for Jawad's habeas petition, stating there is no credible reason for his continued detention.
Jawad's statements to interrogators included a written confession in Farsi, according to his attorneys, obtained by interrogators soon after his arrest in Afghanistan--though he is both illiterate and a native speaker of Pashto, not Farsi, document says. Jawad's statements following his arrest were excluded from court by a military tribunal.
The military court's exclusion should apply not only to those statements, Jawad's lawyers argued today, but to all statements made to Afghan and U.S. officials while in custody. If not, the attorneys argued, the evidence they presented of Jawad's treatment should lead the judge to the same conclusion reached by the military judge on the first statements, and all Jawad's confessions should be thrown out.
"This is the first case to squarely address and exclude testimony based on coercion and torture," said ACLU attorney Jonathan Hafetz, one of the lawyers representing Jawad. The issue has come up in some rulings, but, as an issue, it's been "tangential" to other detainee cases thusfar, Hafetz said.
The hope is that Jawad's case will set a precedent that no statements obtained under enhanced interrogation will be admissible in federal court.
"Our view is that no evidence gained through torture or coercion can be used in a federal court," Hafetz said. "We hope the court will make clear that coerced evidence has no place in a country that's dedicated to the rule of law."
But, as detainee cases flow into federal courts after the 2008 Boumediene ruling, domestic courts are encountering post-9/11 "enemy combatant" detainees, and the conditions of enhanced military/CIA interrogations, for the first time.
The Fifth Amendment entitles U.S. citizens to the right not to incriminate themselves. Subsequently, that's been interpreted to mean that if a statement is not given voluntarily, it will be excluded by a judge. It's a right that is well established domestically, and has been applied in U.S. court to non-U.S. citizens before. There's also the thought, unrelated to civil rights, that coerced statements are unreliable and should be discarded for that reason.