Obama's War Crimes Commission Stands Law on its Head

The Administration's decision to press forward with the first war crimes trial of a child soldier in modern history is unfathomable. That the Administration would then try to ensure a conviction by attempting to rewrite the law to create a new war crime is reprehensible. -- David Frakt, Associate Professor of Law at Western State University College of Law and a Lieutenant Colonel in the U.S. Air Force Reserve JAG Corps; former lead defense counsel with the Office of Military Commissions, Guantanamo.

Lt. Col. Frakt, who was the lead defense counsel in the Guantanamo military commissions trials of Mohammed Jawad and Ali al Bahlul, has written an important analysis of the President Obama's new military commission rules. These rules were released without public comment and only a day before the trial was to start in the case of former child soldier, Omar Khadr.

Frakt does a good job explaining the Orwellian logic of the new military commission rules. Lost within the arcana of who is or is not a "privileged combatant," and thereby appropriate for war crimes charges or trial by military commission, is the insanely twisted logic of the Pentagon, who has strained at gnats, only to bring forth yet another atrocity of justice. As Lt. Col. Frakt explains:

Now, the Department of Defense has once again attempted to revive this discredited interpretation of the offense with a slight twist. In the new Manual the following official comment has been included in explanation of the offense of Murder in Violation of the Law of War: "an accused may be convicted in a military commission. . . if the commission finds that the accused engaged in conduct traditionally triable by military commission... even if such conduct does not violate the international law of war." Astoundingly, according to the Pentagon, a detainee may be convicted of murder in violation of the law of war even if they did not actually violate the law of war.

So you can be found guilty of violation of the laws of war, even if you never violated the laws of war. In other words, according to the prosecutors, we can pretty well bloody do what we want to do. Catch-22, anyone?

News reports describe how Khadr is being forced to wear black-out goggles and earmuffs when being taken to the trial, and after undergoing humiliating searches. This kind of treatment can only be meant to assert power and omnipotence over Khadr, and influence the military and observers at the trial that this 23 year old man, captured as a 15 year old, and tortured at Bagram and Guantanamo, is somehow a danger akin to Hannibal Lecter.

This whole trial is emblamatic of the false promise and true face of the Obama administration, which has tried to paper over the worst excesses of the previous administrtion with glitzy wallpaper and superglue, but in the end have nothing new to offer but the same old policies of torture, indefinite detention, bogus military commissions (aka kangaroo courts), and secret prisons, not to mention frame-ups, and draconian attacks on justice, as in the recent case of Syed Fahad Hashmi, a U.S. citizen held in solitary confinement for three years in a NYC jail on trumped-up or exaggerated charges of "material support to terrorism".

From an important story by Andy Worthington, who describes government attempts to influence the judicial process:

Before the trial, Theoharis and Fayad Hashmi’s many supporters had pointed out how the prosecution was trying to rig the proceedings, with the government asking for jurors to be anonymous and kept under extra security (a request that was granted by Judge Loretta Preska) in a filing in which the government’s lawyers claimed that “jurors will see in the gallery of the courtroom a significant number of the defendant’s supporters, naturally leading to juror speculation that at least some of these spectators might share the defendant’s violent radical Islamic leanings.”

With this in mind, Fayad Hashmi may have decided that a plea bargain provided his only opportunity to avoid a 70-year prison sentence, but whatever the truth, his treatment over the last four years, and the paucity of the evidence against him, appears only to demonstrate that the overreaction of the Bush years in relation to the perceived terrorist threat is as exaggerated as ever.

For more on the Khadr trial, follow the coverage by Spencer Ackerman at The Washington Independent, and his own blog, Attackerman. Spencer is in Guantanamo covering the trial.

Marcy Wheeler & David Frakt on Torture & the 9/11 Prosecutions

Marcy Wheeler, aka emptywheel, has an important post up today. She has solicited the opinions of Lt. Col. David Frakt on the issues behind the Attorney General Eric Holder's decision to try Khalid Shiekh Mohammed and four other 9/11 defendants in a New York federal court, and other prisoners in the newly reconstituted military commissions. Frakt was the military attorney for teenaged Guanatanamo prisoner Mohammed Jawad.

Marcy, and key commenter-contributor at her blog, Mary, and others, had been wondering if the decision to move KSM and the others to federal courts wasn't in part due to the fact they could charge the 9/11 prisoners with "material support to terrorism" charges, making it easier to convict them, as such charges have been "used to give wide leeway to prosecutors to charge those for whom intent to commit terrorism may not be easy to prove."

There's much to read and ponder at Marcy's post. I found the discussion of the bogus "laws of war" charges actually brought in the military commissions cases to be very interesting. But in this post of mine today, I'm going to pull from Marcy's blog a portion of Lt. Col. Frakt's comments, which Marcy found particularly important, concerning how the issue of torture was handled by the judge in the military commissions case concerning Mohammed Jawad:

I had another couple of thoughts about why the 9/11 case was transferred to federal court, aside from purely political considerations. The Judge in the case, Colonel Stephen Henley, had made a couple of rulings in the Jawad case (my case) which made the government very nervous. First, he ruled in response to a motion to dismiss that I filed on the basis of torture that he “beyond peradventure” had the power to dismiss all charges on the basis of pretrial abuse of the detainee. Although he declined to dismiss the charges against Jawad, the fact that he would even entertain such a thought was very frightening for the prosecution, since they knew that other detainees had been tortured and abused far worse that Jawad, especially the high value detainees. Judge Henley also indicated that he was declining to dismiss because there were other remedies available, such as giving extra sentencing credit against any ultimately adjudged sentence. Assuming that KSM and his brethren were to get the death penalty, the only remedy for their prior abuse would be to commute the death penalty, the government’s worse nightmare. Also, in response to multiple motions to suppress statements that I filed, he had ruled not only that Jawad’s initial confession was obtained by torture, but that all subsequent confessions were presumptively tainted by the earlier tortured confession. He held that the burden was on the prosecution to prove that subsequently obtained statements were no longer tainted by the earlier torture or coercion. Judge Henley applied the law correctly in each of these rulings, applying well-settled principles of due process from U.S. Supreme Court cases. These rulings provide an opportunity for the defense to put the U.S.’ treatment of these detainees on trial, potentially for months, before ever getting to the merits of the case. And in order for the defense to make comprehensive motions, they would have to be made privy to the full scope of the abuses that had been meted out by the U.S. on their clients and should be given the opportunity to develop such evidence in pre-trial evidentiary hearings, as I did in Mohammed Jawad’s case, including allowing the defendants to testify about the abuses they experienced. Those who claim that this type of sideshow can be avoided in federal court simply don’t understand criminal procedure. The real question will be whether the 9/11 defendants authorize their counsel to make such motions or whether they will continue to seek martyrdom and forgo the opportunity to fully litigate the torture issues. [my emphasis (i.e., emphasis by Marcy Wheeler)]

I would be curious, given Lt. Col. Frakt's suggestion that Judge Henley has provided that "pretrial abuse" is actionable and worthy of remedy, why this was not ruled to be the case in the Jose Padilla proceedings.

US District Court Judge Marcia Cooke, of the U.S. District Court, Southern District, Miami, in an ruling in April 2007 (made without a hearing) rejected Padilla's attorneys' motion for dismissal of Padilla's case due to "outrageous government conduct". That conduct included torture through isolation, profound sensory deprivation, sleep deprivation, use of stress positions, use of drugs, and other indignities. Padilla had been held since June 2002 at the Naval Consoldidated Brig in Charleston, South Carolina as an "enemy combatant". Original charges of constructing a "dirty bomb" had been dropped.

In Judge Cooke's ruling, she accepted "for the sake of this Order" Padilla's claims of mistreatment to be true, but the abuse supposedly did not amount to sufficient outrageous conduct to throw the case out of court. Why? Because the government claimed it would not use any evidence obtained from interrogations while Padilla was in the brig, i.e., from the time when he was tortured. Therefore, legally, Padilla supposedly has no "remedy" against the government.

It will be interesting to see how events unfold in the KSM et al. trial. I hope Lt. Col. Frakt will turn out to be correct, regarding his assumption the government has a lot to risk re bringing out in court the torture issue.

Meanwhile, I thank Marcy/Emptywheel for her excellent reporting, and Lt. Col. Frakt for his standing up for what is right, and fighting this all-important good fight. (If you haven't yet, do spend some time reading Frakt's closing arguments in the Jawad case. Many consider them among the most powerful words yet spoken on the injustice of the Bush/Cheney/Rumsfeld-initiated military commissions system, a system that continues in only slightly modified form in the Obama years.)

Military Attorney Testifies "No Acceptable Basis" for Military Commissions Proposal

Andy Worthington has published excerpts from Lt. Col. David Frakt’s July 30 testimony (PDF) to the Subcommittee on the Constitution, Civil Rights, and Civil Liberties, House of Representatives Judiciary Committee. I'm reposting the concluding remarks of Lt. Col. Frakt to the committee, but the entire article and testimony are definitely worth reading. (H/T to Jason Leopold, who reposted Worthington's article at The Public Record.)

The question this committee, and the rest of Congress, must consider is whether there is any point in continuing with military commissions. As President Obama has stated, military commissions are a legitimate forum in which to try offenses under the law of war, but this begs the question of whether there are any law of war offenses to try.

If one were to review the charges brought against all of the approximately 25 defendants charged in the military commissions, as I have, one would conclude that 99% of them do not involve traditionally recognized war crimes. Rather, virtually all the defendants are charged with non-war crimes, primarily criminal conspiracy, terrorism and material support to terrorism, all of which are properly crimes under federal criminal law, but not the laws of war.

In fact, in my estimation, there has been only one legitimate war crime charged against any Guantánamo detainee, the charge of perfidy against Abdul Rahim al-Nashiri for his alleged role in the attack on the USS Cole in October 2000.

But even though perfidy is a traditional offense under the law of war, convicting Mr. al-Nashiri of this offense requires accepting the dubious legal fiction that the United States was at war with al-Qaeda nearly a year before 9/11, for the law of war only applies during a war.

In fact, most of the offenses with which the so-called “high-value detainees” are charged relate to events which occurred on or before 9/11, when the US was not involved in an armed conflict with al-Qaeda. Perhaps more to the point, Mr. al-Nashiri was also charged with several other non-law of war offenses arising out of the same conduct, including multiple charges carrying the death penalty, making the charge of perfidy redundant […].

If there are no real war crimes to prosecute, are there any good reasons to continue with military commissions? The Bush administration’s motive for creating military commissions was to establish a forum in which American standards of due process did not apply and convictions could be obtained for terrorism crimes (not law of war offenses) under summary procedures using evidence which would not be admissible in a regular court of law.

The Obama administration has now rightly concluded that Constitutional due process standards should apply to military commissions, and that normal rules of evidence should apply. Modifying the military commissions to comport with due process and the rule of law will mean eliminating the very reason for their existence. Partially amending them with some minor cosmetic changes will result only in many more years of protracted litigation.

Among the over two hundred detainees still at Guantánamo, there are perhaps a few dozen who have committed serious offenses. I have yet to hear any compelling reason why any of these men could not be prosecuted under existing law in Federal Court. As the recent report by Human Rights First conclusively demonstrates, the federal courts are open, and have a long track record of successful prosecutions of terrorism cases. Military commissions have not proven to be faster, more efficient or less costly than the alternative.

The logistical difficulties in trying cases in Guantánamo have proven to be incredibly vexing. With Guantánamo slated to be closed in the next six months, the military commissions will have to be relocated and a whole new infrastructure created to support the commissions. This could further delay the commissions for months or even years.

Military lawyers, unlike federal prosecutors and federal public defenders, have no special expertise in prosecuting or defending complex international terrorist conspiracies. The entire military commissions experiment has been a massive drain on DoD resources and personnel at a time when the military can least afford it.

The only other reason I have heard advanced for the use of military commissions is the belief that a person who could not be successfully prosecuted in Federal Court because of evidentiary problems might be successfully prosecuted in a military commission. Those who make this argument are essentially conceding that military commissions do not and should not provide the same due process as a regularly constituted American court.

The desire to achieve convictions at all costs is simply not an acceptable basis for the creation of an alternative legal system. The reason that the military commissions failed — indeed, the primary mistake of the entire “War on Terror” — was the pervasive abandonment of the law by the prior administration.

We must not repeat the mistakes of the past and continue to cut corners. We must remember that this war is ultimately a war about ideas and values. True American values guarantee justice and fairness for all, even for the vilified and unpopular. If there are terrorists and war criminals to be tried, let’s do it the old-fashioned way, in a fair fight in a real court with untainted evidence. America is better than the last eight years. It is time to prove it to the world, and to ourselves.

David Frakt was the military attorney for Guantanamo prisoners Mohamed Jawad and Ali Hamza al-Bahlul. He is also a law professor at Western State University College of Law and a Lieutenant Colonel in the USAF Reserves.

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