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Smearing Colonel Vandeveld | The Nation

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Smearing Colonel Vandeveld

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As the Office of Military Commissions (OMC) was informed of a top prosecutor's intent to resign--and his decision to go on record with his ethical concerns--it launched a forceful offensive against him. As part of this campaign, leading officials at the OMC circulated belittling talking points to other staffers and deployed a Soviet-style strategy of punitive and discrediting psychiatric evaluations.

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The target of this latest push was Lieut. Col. Darrel Vandeveld, a former military prosecutor, who resigned September 9 and then submitted a damning four-page affidavit to the war court. Vandeveld had been the lead prosecutor in the case of Mohammed Jawad, a young Afghan accused of attempted murder. According to his statement, Vandeveld decided to resign due to deep-seated ethical concerns about the treatment of Jawad in custody and the withholding of "potentially exculpatory evidence" from the defense. Vandeveld characterized the procedure for providing evidence to the defense as "slipshod [and] uncertain" and concluded, "I am highly concerned to the point that I believe I can no longer serve as prosecutor at the Commissions."

Vandeveld's resignation came after a string of embarrassing repudiations of the Guantanámo trials, including three Supreme Court setbacks, the defection of at least four other prosecutors from the OMC and the disqualification of Brig. Gen. Thomas Hartmann from three separate trials because of political bias and interference. In an apparent attempt to minimize the impact of this latest rebuke of the OMC, Hartmann prepared talking points against Vandeveld. Obtained by The Nation, these talking points assert that Vandeveld is dishonest, "ill-informed" and has violated commission regulations.

After Vandeveld resigned, he made himself available to testify on behalf of the Jawad defense at a pretrial hearing, writing, "I do believe I have relevant testimony to offer." But the OMC barred him from doing so. The office then circulated the sharply worded talking points intended to discredit Vandeveld.

"They were well prepared to try to discredit [Vandeveld] if this issue flared up," said a former Pentagon official close to the OMC.

Hartmann, the embattled former legal adviser for the Office of Military Commissions, was removed from his post in September. He was then shifted to a supervisory position overseeing the commissions within the Pentagon, and he is now reportedly being investigated by his chain of command for ethics abuses. But he is still exerting unparalleled influence.

"He is very intimately involved in the effort to prevent Colonel Vandeveld from being able to testify," defense lawyer Maj. David Frakt said to the judge during the pretrial hearing.

While Hartmann made a concerted effort to keep Vandeveld's voice off the record, he also apparently attempted to devalue that voice if it ever became public. According to the defense team, Hartmann ordered Vandeveld to undergo a mental health evaluation after he submitted his resignation, despite having displayed no previous symptoms of psychological distress.

This tactic, as a means of suppressing dissent, was popularized by the Soviet Union in the late 1950s. In the aftermath of Stalin's violent and bloody purges, Khrushchev believed he could punish opponents in a more discreet way, announcing, "there are not political prisoners, only persons of unsound mind." Involuntary hospitalizations and punitive psychiatric evaluations became part of the regime's strategy and targeted dissenters like Pyotr Grigorenko, a former Soviet general and critic of Khrushchev, and Leonid Plyushch, a mathematician turned human rights advocate. Grigorenko was forcibly hospitalized in the '60s; Plyushch in the early '70s.

These tactics have not been foreign to the US military. In the late 1980s, Congress conducted hearings into the misuse of mental health evaluations to discredit whistleblowers, during which two junior officers testified that they were hospitalized in psychiatric wards after making reports of fraud and misconduct. One major in the military said that he met other servicemembers who were confined by their commanders for objecting to Army policy. An amendment by then-Congresswoman Barbara Boxer was eventually passed to curb the abuse of mental health evaluations in the case of whistleblowers.

However, the practice still occurs. The Nation has learned of at least three other cases of the apparent use of mental health referrals and hospitalization to stifle critics who have witnessed abuse, fraud or criminal behavior since 9/11. Vandeveld's is just the latest troubling episode.

"It's extremely disturbing," says Eugene Fidell, a visiting lecturer at Yale Law School and professor of military law at Washington College of Law, "especially when you involve a psychiatric evaluation in such a charged setting" like the one that exists at Guantánamo. And even if there was no intent to smear or tarnish Vandeveld's reputation, Fidell says, the mere appearance is "horrible."

Charlie Clements, president and CEO of the human rights organization Unitarian Universalist Service Committee, who served as an Air Force pilot during the Vietnam War, worries about the weapon of psychiatric evaluations. Clements was hospitalized in a psychiatric ward after refusing to fly a mission because of ethical reasons.

"For this to be one of the first actions taken against a man [Vandeveld] who otherwise performs his duties well and without any problems, it would certainly raise concerns about the abuse of psychiatry," he says.

Clements warns that these tactics can be quite intimidating and that the mere specter of them can serve to chill dissent. Vandeveld was cleared and declared fit for duty, "to the psychiatrist's credit," notes a former military doctor, who declined to be identified because of involvement in a related case. But this doctor also suggested the results of the evaluation might say something about the motive in ordering it, or the imprudence.

"Given the implications that it's being used as retribution, unless I have very good reason, I'd think that any prudent lawyer would have backed off," says the doctor. "And if there was a good reason to refer, the evaluation would have supported it. But it didn't. This was totally the wrong thing to do."

The judge in the Jawad case ultimately ordered the prosecution to allow Vandeveld to testify. When he did, he spoke about feeling "truly deceived" and said the commissions were likely incapable of providing justice.

The cross-examination by Vandeveld's replacement in the case, Lieut. Col. Doug Stevenson, echoed the talking points provided by Hartmann, which asserted that Vandeveld made "inaccurate, irresponsible comments"; "generalities/opinion statements that have zero basis in fact"; and "generalizations about the discovery process."

But Vandeveld's account of the OMC echo criticisms made by other former military prosecutors who have also resigned their commissions. "It's not the kind of thing [Vandeveld's affidavit] you read and go, There's no way in hell this can be true," says former chief prosecutor Morris Davis. "Based on what I observed, I can't say I'm surprised by the things he alleges."

Despite the attempt to prohibit Vandeveld's testimony, in an internal e-mail, Vandeveld's former boss, the current chief prosecutor, Col. Larry Morris, said he was "inclined to let [Vandeveld] talk to the press if he wants--we have nothing to fear, and we can refute whatever he or his counsel suggest." However, as of October 20, Vandeveld was under a renewed gag order, barring him from speaking to the media.

Meanwhile, the prosecution is free to make comments about Vandeveld's affidavit and his testimony at will, as deputy chief prosecutor Col. Bruce Pagel did during a panel at the Military JAG School in Virginia September 30. Speaking about the provision of evidence to the defense, Pagel said that the documents "were in his [Vandeveld's] custody and control. He was in the perfect position to make disclosure. He never told me anyone had kept him or forbade him from making those disclosures."

When panel member and ACLU lawyer Hina Shamsi offered a possible explanation for why Vandeveld may have withheld some documents--because he felt pressure and feared reprisals for appearing too close to the defense (as Vandeveld mentions in his affidavit)--Pagel joked dismissively, to rousing laughter, "Well, we did torture Colonel Vandeveld quite a bit."

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