Interviewing David Frakt

David Frakt is a professor at the Western State University College of Law and a Lt. Col. in the U.S. Air Force Reserve JAG Corps. He is widely known
for his defense 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, Professor Frakt became the first defense counsel to win the dismissal of military commission charges that had been referred to trial and won Mr. Jawad’s release through a successful petition for a writ of habeas corpus. Mr. Jawad returned home to Afghanistan in August 2009.

Professor Frakt was also lead defense counsel in one of just two military commission trials held during the Bush Administration. A recognized expert on the law of war and military commissions, Professor Frakt also recently testified before Congress about proposed reforms to the military commission and has been a guest lecturer at Harvard Law School, Duke Law School, NYU Law School, Loyola Law School, and The Wharton School of Business, among other institutions. He frequently appears at conferences and participates in debates with other leading experts on legal issues surrounding detention, interrogation and counterterrorism.

Professor Frakt has written extensively about military commissions and other issues related to Guantanamo detainees, and is frequently asked to comment on current events surrounding detainees and terrorism in the popular media.

Professor Frakt is also a contributor to the Torture Report, an online publication of the ACLU National Security Project and has appeared repeatedly on MSNBC, CNN and on National Public Radio. He is featured in the recent book, The Guantanamo Lawyers: Inside a Prison Outside the Law.

Here, Prof. Frakt talks with IPS’s William Fisher.

IPS. Since the 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. Most of these petitions were, in fact, filed well before the Boumediene ruling. Lawyers representing GITMO detainees say dozens of additional petitions are in the pipeline. It may be reasonable to assume that outcomes in future habeas hearings will not be materially different from past decisions. Even where the judges have granted the petitions, in several cases the detainees have not been released because of the government’s inability to find other countries willing to accept former detainees. On what basis can the government continue to hold these people indefinitely or until a country is found to accept them?

DF. 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?

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

DF: Neither the Bush Administration nor the 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 reliability of coerced interrogations, it is very troubling that we would consider holding someone forever primarily on that basis.

IPS. 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?

DF: 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 US 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.

IPS. 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?

DF: The military commissions are supposed to be a forum to try offenses under the law of war, but several non-war crimes that don’t belong in military commissions are also authorized to be tried in military commissions, including material support to 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. Military commissions also have no age limit, allowing juveniles like Omar Khadr to be tried as war criminals for acts done when they were 15 years old.

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

Another major shortcoming is the lack of any preliminary hearing or grand jury proceeding to screen out meritless charges, such as exists in federal court and in courts-martial. The rules of the military commission also unfairly exclude qualified defense lawyers who are not U.S. citizens from serving as defense counsel for detainees. Another problem is that there are no precedents to guide military commissions. They are a completely untested system and the rules are basically made up as the cases move along. This creates too many opportunities for challenges and appeals that cause interminable delays.

The victims of 9/11 and other terrorist attacks have waited long enough for justice, as have the detainees, most of whom have been incarcerated without trial for seven or eight years now. Trials in federal court offer the swiftest, surest means to provide justice, and the results would be accepted both domestically and abroad. Although military commissions procedures have been substantially improved, they are still flawed and still lack legitimacy in the international community.

IPS: What is your reaction to Liz Cheney's attack on Justice Department attorneys who represented or advocated on behalf of detainees while they were in private practice during the prior administration? Her advocacy group, “Keep America Safe” even went so far as to call these lawyers, "the al Qaeda seven."

DF: This unwarranted attack by the fringe-right is particularly repugnant. The idea that we should question the patriotism and values of attorneys who volunteered to represent detainees has been widely repudiated by most mainstream conservatives, including a large group of prominent conservative lawyers. This smear campaign by Liz Cheney, sustained in the popular media by Andrew McCarthy of the National Review and Marc Thiessen of the Washington Post is based on several false premises.

First, they are implying that an attorney who represents an unpopular individual or an unpopular cause shares the viewpoint of that individual or cause. This is nonsense.

Second, by constantly referring to the detainees as “terrorist detainees” or “Al Qaeda detainees” they are conveniently overlooking the fact that the vast majority of Guantanamo detainees have proven to be innocent of any ties to terrorism. That’s why the Bush Administration let two-thirds of the detainees go and had cleared dozens more for release even before President Obama assumed office.

Third, they overlook the fact that the detainee litigation was predominantly a fight over three issues: whether detainees are entitled to be treated humanely; whether detainees are entitled to be informed of the basis for their detention and given a meaningful opportunity to challenge the basis for their detention in a real court; and whether detainees charged with crimes are entitled to a fair trial that conforms with Constitutional requirements and the international law of war. Thus, the detainee litigation was about American values, not about terrorist values.

Finally, these attacks conveniently ignore the fact that the U.S. Supreme Court sided with the lawyers representing the detainees every single time. These volunteer lawyers deserve great credit for helping to restore the rule of law in this country and for undoing some of the damage wrought by the Bush Administration.