\”Military Commissions Are a Second-Class Justice System\”

Mar 22 2010

By William Fisher

IPS interviews Guantanamo defence counsel DAVID FRAKT

NEW YORK, Mar 22, 2010 (IPS) – David Frakt is a professor at the Western State University College of Law and a lieutenant colonel in the U.S. Air Force Reserve JAG Corps.

He is widely known for his defence of former Guantanamo detainee Mohammed Jawad, an alleged “unlawful enemy combatant” who previously faced charges in the U.S. military commissions for events alleged to have taken place when he was a minor in December 2002.

In July 2009, Frakt became the first defence counsel to win the dismissal of military commission charges that had been referred to trial, and won Jawad’s release through a successful petition for a writ of habeas corpus. Jawad returned home to Afghanistan in August 2009.

Frakt recently spoke with IPS correspondent William Fisher. Excerpts from the interview follow.

Q: Since the Supreme Court’s ruling in Boumediene, 44 habeas corpus petitions have been decided in federal court in Washington DC. Of these, 33 have been granted and 11 have been denied. Lawyers representing Guantanamo detainees say dozens of additional petitions are in the pipeline. Assuming that outcomes in future habeas hearings will not be materially different from past decisions, on what basis can the government continue to hold these people?

A: There is no lawful basis to continue to incarcerate these individuals. If no other country is willing to take them, then they should be released into the United States.

The problem is the political unwillingness to allow any former detainees into the U.S., even those determined to be completely innocent and wrongfully held. Our unwillingness to accept any detainees for resettlement in the U.S. is also the biggest stumbling block to convincing our allies to accept released detainees. Why should they solve our problems when we are unwilling to be part of the solution?

Q: Why is there a category of prisoners deemed “too dangerous to free” and “too dangerous to try”?

A: Neither the [George W.] Bush administration nor the [Barack] Obama administration has ever specified who is in this category or why they were placed there, although the Obama administration announced that they believe as many as 50 individuals are in this category.

One possibility is that the primary evidence that these individuals are dangerous was derived through coercive interrogations that would likely be inadmissible in court. Given the inherent unreliability of coerced interrogations, it is very troubling that we would consider holding someone forever primarily on that basis.

Q: Why would some detainees be tried before military commissions and others in federal court before a civilian jury? What determines which venue is to be used?

A: The attorney general has produced a list of factors to be considered in making this determination but has not indicated which factors cut which way. There does not appear to be any principled basis for making this distinction.

It looks as if those cases that the U.S. Attorneys want and think they can prove in federal court are going to federal court, and other cases are going to military commissions, making it appear that military commissions are a second-class justice system. As the controversy over the location of the alleged 9/11 co-conspirators’ trial indicates, political factors also appear to be a significant consideration.

Q: Could anything further be done to improve military commissions to the point where they would be acceptable venues for trials? What are the principal shortcomings of the commissions?

A: Although military commissions procedures have been substantially improved, they are still flawed and still lack legitimacy in the international community.

Military commissions are supposed to be a forum to try offences under the law of war, but several non-war crimes that don’t belong in military commissions are also authorised to be tried in military commissions, including material support of terrorism, conspiracy, and terrorism.

The vast majority of detainees to be charged so far have been charged with these non-war crimes, which more properly belong in federal court.

The rules of evidence allowing coerced evidence to be admitted have been improved so that most coerced confessions will be excluded, but even if the statements themselves may not be admissible, evidence derived from them is still admissible.

Other major shortcomings: Lack of any preliminary hearing or grand jury proceeding to screen out meritless charges; rules excluding qualified defense lawyers who are not U.S. citizens; no age limit, allowing juveniles like Omar Khadr to be tried as war criminals for acts committed when they were 15 years old; and no precedents to guide military commissions – the rules are basically made up as the cases move along, creating many opportunities for challenges and appeals that cause interminable delays.

Trials in federal court offer the swiftest, surest means to provide justice, and the results would be accepted both domestically and abroad. (END)

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