On Guantánamo Lawyers

Keep America Safe's attack ad labeling a group of Justice Department lawyers who formerly defended Guantánamo detainees “the al Qaeda 7” got people talking about such fundamentals of justice as the right to have an advocate in legal proceedings, which is certainly a good thing. (I recommend Torture Report contributor and former Guantanamo detainee defense counsel David Frakt's excellent satirical and serious pieces on this subject.) But it's really only the beginning of a conversation that needs to go much deeper than this one, with its lingering insinuation that Guantánamo housed “the worst of the worst” and that lawyers who represented Gitmo detainees and challenged the conditions and terms of their confinement were playing a loathsome but essential role in our venerated system of justice.

The real question, of course, is to what extent the limited legal proceedings afforded Guantánamo detainees can even be called a justice system.

As I've been writing the final pages of Chapter 4, which include the U.S. government's attempts to prosecute Binyam Mohamed before two generations of Military Commissions, I've been deeply and repeatedly moved by the words of the lawyers detailed to military commission cases as they sought to answer this question, not only for their clients, but for themselves and for their nation. Far from ‘mob lawyers' bent on springing their clients at all costs, they exhibit what I think we all like to consider essential qualities of the American character: a sense of fairness, honesty, and personal and national integrity.

There is, for example, the July 11, 2006 Congressional testimony of Lieutenant Commander Charles Swift, who represented Yemeni detaineed Salim Ahmed Hamdan, following the Supreme Court's ruling that Hamdan had a right to pursue a habeas corpus petition in federal court. At the hearing, Swift questioned “whether military commissions can ever actually deliver the full and fair trials promised by the President's Order. Based on the past five years the inescapable conclusion is that the commission consistently failed to meet the President's mandate for full and fair trials.”

Swift cited several glaring shortcomings in the military trial process: all of the personnel involved, including the officers serving as jurors, were handpicked by the Appointing Authority, the same official who approved the charges; the defense had a limited right to call witnesses; defense lawyers, even if they were granted access to secret government documents, couldn't share them with their clients. Most outrageously, Swift told the Senate, “the military commission system had no rule preventing the admissibility of statements obtained by coercion,” and “had inadequate rules to ensure that the Defense would receive exculpatory evidence in the government's possession”—including evidence that the information prosecutors were advancing was the fruit of torture.

Keep America Safe's ad is meant to cast doubt on the motivations of those who, like Swift, defended Guantánamo detainees before the Military Commissions and in habeas corpus proceedings. But as Swift made clear to Congress, the view he was expressing “isn't simply the view of a defense counsel who litigated in the commission system. It is also the view of some of the commission prosecutors.” Citing two tribunal prosecutors who had resigned in protest, Swift testified,

One of those prosecutors, Air Force Captain John Carr, wrote that in his experience, the commission was “a half hearted and disorganized effort by a skeleton group of relatively inexperienced attorneys to prosecute fairly low-level accused in a process that appears to be rigged. Another prosecutor, Air Force Major Robert Preston, lamented that “writing a motion saying that the process will be full and fair when you don't really believe it is kind of hard—particularly when you want to call yourself an officer and a lawyer.”

Swift noted that Carr was especially concerned about the government's routine practice of withholding potentially exculpatory evidence from the defense.

In the military commission system, the Prosecution had no obligation to give the Defense exculpatory evidence in the possession of other government agencies. This was significant because, according to one former military commission prosecutor, government agencies intended to deliberately exploit this gap in discovery obligations to keep the defense from obtaining exculpatory evidence. Commission prosecutor Captain John Carr wrote to the commission system's Chief Prosecutor, “In our meeting with [a government agency], they told us that the exculpatory information, if it existed, would be in the 10% that we will not get with our agreed upon searches. I again brought up the problem that this presents to us in the car on the way back from the meeting, and you told me that the rules were written in such a way as to not require that we conduct such thorough searches, and that we weren't going to worry about it.”

Some of the most compelling words on this subject come from another former Guantánamo prosecutor, Lt. Col. Darrel Vandeveld, the military prosecutor originally assigned to Binyam Mohamed's case. Vandeveld also prosecuted the case of Mohammed Jawad, an Afghan youth facing attempted murder charges for allegedly throwing a grenade into a jeep in a passing military convoy in Afghanistan, until he resigned in protest of the unfairness of the commission process on September 22, 2008. I'll quote from both his resignation statement to the Military Commission and the declaration he later filed in Jawad's successful habeas corpus petition in the conclusion to Chapter 4. But it is worth reading both documents in their entirety, for their clear, specific descriptions of both detainee abuse and misconduct in the military trials system. And it is absolutely worth keeping this conclusion to his habeas declaration in whenever we hear allegations about the motivations of Guantánamo lawyers:

Ultimately, I decided that I could no longer ethically prosecute Mr. Jawad or, in good conscience, serve as a prosecutor at OMC-P. I have taken an oath to support and defend the Constitution of the United States, and I remain confident that I have done so, spending over four of the past seven years away from my family, my home, my civilian occupation—all without any expectation of or desire for any reward greater than the knowledge that I have remained true to my word and have done my level best to rise to our Nation's defense in its time of need. I did not “quit” the Commissions or resign; instead, I personally petitioned the Army's Judge Advocate General to allow me to serve the remaining six months of my two year voluntary obligation in Afghanistan or Iraq . In the exercise of his wisdom and discretion, he permitted me to be released from active duty. However, had I been returned to Afghanistan or Iraq, and had I encountered Mohammed Jawad in either of those hostile lands, where two of my friends have been killed in action and another one of my very best friends in the world had been terribly wounded, I have not doubt at all—none—that Mr. Jawad would pose no threat whatsoever to me, his former prosecutor and now-repentant persecutor. Six years is long enough for a boy of sixteen to serve in virtual solitary confinement, in a distant land, for reasons he may never fully understand. I respectfully ask this Court to find that Mr. Jawad's continued detention is unsupported by an credible evidence, any provision of the Detainee Treatment Act of 2005, the MCA, international law or our own Constitution. Mr. Jawad should be released to resume his life in a civil society, for his sake, and for our own sense of justice and perhaps to restore a measure of our basic humanity.

The conclusion of Chapter 4's “Ponzi Scheme of Torture” will be posted this week.

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