Rep. Jerrold Nadler and David Frakt on Obama’s Three-Tier Justice System For Guantánamo

20.11.09

The US flag at Guantanamo In the wake of Attorney General Eric Holder’s announcement that five Guantánamo prisoners — including Khalid Sheikh Mohammed — will face federal court trials in New York, and five others will face trials by Military Commission, much of the media has been consumed with the whining of opportunistic right-wing politicians, who persist in maintaining the same hysterical level of unfounded fearmongering that has skewed the debate on Guantánamo for most of the year.

As a result, far too little attention has been paid to the inadequacy of the Military Commissions as a venue for trying crimes related to terrorism, although there have been some notable exceptions. Both Glenn Greenwald and myself (in an article entitled, “The Logic of the 9/11 Trials, The Madness of the Military Commissions”) have written about it, and Lt. Col. David Frakt, who served as the military defense attorney for the released Afghan prisoner Mohammed Jawad, and for Ali Hamza al-Bahlul, who was convicted in a one-sided show trial last November, delivered a withering analysis of the Commissions’ failings in an email exchange with Marcy Wheeler on Firedoglake, and has also spoken to Truthout about his concerns. In an email to Marcy Wheeler, he explained:

I reject the government’s claim that the nature of the crime determines the forum (federal court or military commission). I believe it is largely political considerations that are the basis for these determinations. Basically, if there is a US Attorney who wants to try the case and they think they can prove it, they get priority and it goes to federal court. Clearly, there weren’t any federal prosecutors who wanted to touch the [Omar] Khadr case with a ten-foot pole. Who wants to be the first person to try a 15-year old child soldier as a war criminal in history? (Answer — the prosecutors at OMC [the Office of Military Commissions]).

It is absolutely appalling that AG Holder has approved this case to continue in the military commissions. This is truly one of the great disappointments of the Obama Administration to date. The claim that the nature of the crime determines the forum is similarly false. The Administration claims that “law of war offenses” will be tried in commissions, but there are precious few, if any, legitimate law of war violations to try. The attack on the USS Cole looks like a war crime (because it was perpetrated by suicide bombers pretending to be harmless civilian fishermen) but the law of war only applies during an armed conflict. The military commission prosecutors are relying on an incredibly dubious claim that the US was engaged in an armed conflict with al-Qaeda since 1996 based on declarations of jihad by Osama bin Laden, even though everyone knows that the armed conflict really didn’t start until 9/11. I was on active duty with the Air Force from 1995 to 2005. There was absolutely no armed conflict taking place between the US and al-Qaeda prior to 9/11.

Lt. Col. Frakt was essentially reprising a damning appraisal of the system’s many failures that he delivered to a House Subcommittee this summer, when committees in both the Senate and the House of Representatives were discussing proposals to revive the Commissions. I reported on his testimony in detail in an article entitled, “David Frakt: Military Commissions ‘A Catastrophic Failure,’” which followed articles dealing with similar testimony by retired Adm. John Hutson and by Lt. Col. Darrel Vandeveld, a former prosecutor in the Commissions, who resigned when he discovered that the system was incapable of delivering justice to Mohammed Jawad.

Sadly, Congress failed to pay attention to these critics — and to others who testified against proposals to revive the system — and even ignored advice from senior administration officials, including Assistant Attorney General David Kris, who warned that retaining “material support for terrorism” as a crime in the planned legislation would almost certainly lead to successful appeals, as it is not a legitimate law of war violation (although, ironically, it is a legitimate crime in the federal court system).

I strongly urge anyone with an interest in the revival of the wretched Commission system to read Lt. Col. Frakt’s testimony (plus the testimony of Adm. Hutson and Lt. Col. Vandeveld), and also to read the following statement by Rep. Jerrold Nadler (D-NY), which was recently forwarded to me (via Secrecy News) by Charles Gittings, who runs the excellent website Project to Enforce the Geneva Conventions.

This was the opening statement at the meeting of the House of Representatives’ Subcommittee on the Constitution, Civil Rights, and Civil Liberties on July 30, 2009, at which Lt. Col. Frakt demolished the Commissions’ viability, and it is clear that Rep. Nadler is one of the few lawmakers to understand not only that reviving the Commissions is a bad idea, but also that the Obama administration, with the backing of Congress, was, in summer, proposing to instigate a three-tier system of justice to deal with the remaining Guantánamo prisoners, which has now been realized. As he explained, in the key passage:

[W]e may be creating a system in which we try you in Federal court if we have strong evidence, we try you by military commission if we have weak evidence, and we detain you indefinitely if we have no evidence. That is not a justice system.

The full statement is reproduced below, as I think Rep. Nadler also succinctly explained why the whole of the Bush administration’s “War on Terror” detention policies were such a disgrace, and an affront to US notions of justice.

Introductory statement by Representative Jerrold Nadler at a meeting of the House of Representatives’ Subcommittee on the Constitution, Civil Rights, and Civil Liberties to discuss “Proposals for Reform of the Military Commission System” on July 30, 2009

Today the Subcommittee examines proposals for reform in the military commissions system and, more importantly, how we in Congress can work together productively and with the administration to clean up the terrible legacy of the Bush administration’s detention policies in a manner that provides us with a legitimate legal framework going forward.

Over the past seven years, approximately 800 individuals have been detained at Guantánamo, Cuba, with some 500 already having been released before President Obama took office in January.

In those seven years, only three detainees have been convicted of terrorism offenses using the military commissions, and approximately 230 individuals remain at the facility.

Most of these men have been held for at least four years. Some have been detained for more than six years. By contrast, approximately 200 individuals have been charged with international terrorism, prosecuted, convicted and sentenced to long prison terms using our normal Article III Federal courts.

These numbers speak for themselves, yet the Obama administration, after initially halting use of the military commissions and beginning an in-depth case-by-case review of the individuals still being detained at Guantánamo, has said that the commissions are necessary.

Why? The general explanation is that military commissions provide the flexibility that is necessary to account for “the reality of battlefield situations and military exigencies,” such as chain of custody concerns, the need to use hearsay statements, and an appropriate test for determining whether incriminating statements were coerced or voluntary under the circumstances.

This might explain the need in cases where an individual is caught in the heat of battle, but it does not explain the need for military commissions in other circumstances.

My concern remains, as I articulated at our hearings a few weeks ago, that we may be creating a system in which we try you in Federal court if we have strong evidence, we try you by military commission if we have weak evidence, and we detain you indefinitely if we have no evidence. That is not a justice system.

Mohammed Jawad’s case, which was again before a Federal judge today, provides just one example. At our hearing a few weeks ago, Lieutenant Colonel Vandeveld, the lead military prosecutor responsible for bringing Mr. Jawad to justice in the military commission system, testified that he resigned because he could not ethically or legally prosecute the case.

After discovering exculpatory evidence had been withheld from the defense and determining that Mr. Jawad’s confession, the only evidence against him, had been obtained through torture, Lieutenant Colonel Vandeveld was unable to convince his supervisor to reach a plea agreement that would have allowed Mr. Jawad’s release and return to his family after nearly seven years in Guantánamo.

Convinced that it was not possible to achieve justice through the military commission system, Lieutenant Colonel Vandeveld felt he had no choice but to resign his post.

A military judge and a Federal judge have since ruled that Mr. Jawad’s confession was obtained through torture. In the Federal habeas corpus proceedings, the judge has called the case “an outrage” and has urged the administration to send Mr. Jawad, who may have been 12 years old when captured in 2002, home.

It is my understanding that at a hearing this morning the judge, in fact, ordered his release.

Mr. Jawad’s case is not an anomaly. In 26 of the approximately 31 habeas corpus cases brought by Guantánamo detainees and decided so far, Federal judges have concluded that the government does not have sufficient evidence to justify or continue the detention.

These numbers are staggering — not one case, not two, but in 85 percent of the cases when an individual finally has gotten meaningful review, Federal judges have found that there was no grounds for detention. This is a stain on American justice.

Not only has the system served as a tremendous recruiting tool for our enemies, it has proven legally unsustainable and unjust. We would challenge such a system set up by another country to detain and try Americans. We should demand no less of ourselves.

The detainees at Guantánamo and other individuals who we may capture today or tomorrow are accused terrorists. They are not terrorists. They are accused terrorists. Some may be terrorists, but right now they are accused terrorists. They have not been proven to be terrorists.

And while officials in the previous administration were fond of claiming that its detainees at Guantánamo were the worst of the worst, the Bush administration released the vast majority of them, approximately 500 in all. Apparently the Bush administration did not really think they were the worst of the worst.

The people who we have detained because they were turned over to us by someone with a grudge or by someone who wanted to collect a bounty do not belong in custody.

We have an obligation to determine who should and should not be imprisoned and to afford fair trials to those we believe have committed crimes. This is especially important if our government plans to seek prison sentences or to execute those convicted.

There is no doubt that keeping America safe is paramount. We must decide how to deal with these individuals in a manner that ensures that our Nation is protected from those who would do us harm, in a manner that is consistent with our laws, our treaty obligations and our values.

We are the United States of America, and we have traditions and beliefs worth fighting for and worth preserving. This problem will not go away simply because we close Guantánamo. We are still fighting in Afghanistan and Iraq. We are still battling terrorists around the world.

We will continue to have to intercept and detain individuals who have attacked us or who threaten us. We need to be sure that, however we handle these cases, we do not conduct kangaroo courts.

This debate has been dominated by a great deal of fear-mongering. That is no way to deal with a problem of this magnitude. Fanning the flames with the unfounded claim that it is a threat to our national security to transfer individuals to the US for detention and trial defies logic and reality.

We have long housed and prosecuted dangerous criminals and terrorists in my district and elsewhere. It is an insult to our law enforcement and military to suggest that they cannot do the same with regard to those individuals that we have been holding at Guantánamo.

Others have argued that because some individuals released from Guantánamo have turned to battle, we must now hold all others forever. But we are not a police state. In order to imprison anyone, we must have sufficient evidence to do so.

Much as some people would like to drop detainees down a hole and forget about them, this is simply not an option legally or morally. It is also not necessary.

We are not the first country in history to have to deal with potentially dangerous people. Indeed, this is not the first time this country has had to deal with potentially dangerous people.

I do not underestimate the enormity of the challenge both from a security standpoint and a legal one, but we can and will find solutions that honor the rule of law, and in so doing keep us safe.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, published in March 2009, details about my film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.