Battle of the Prosecutors

By William Fisher

A Florida congressman is hoping to drive the last nail into the coffin of the U.S. justice system for Guantanamo detainees.

Republican Representative Tom Rooney, a former military prosecutor, this week introduced a bill mandating that the detention facility at Guantanamo Bay, Cuba, “remains open indefinitely” and requiring that “individuals detained at the facility be tried only by Military Commission.”

But other former military prosecutors think Rooney’s position would be a mistake of epic proportions.

Rooney’s “Detainee Trials at Gitmo Act” would require all detainees currently held at Guantanamo Bay to be tried in the courtroom facility constructed at Guantanamo Bay.

In a statement, Rep. Rooney said, “Military commissions are fair and provide due process for the accused, but they also protect critical intelligence officials and evidence.

The Congressman, a former constitutional law professor at West Point, said, “Foreign terrorists should absolutely not receive the same rights and privileges as American citizens do.”

He added that the recent trial of Ahmed Khalfan Ghailani, who was acquitted on more than 280 counts, including murder, “highlights the flaws with the Administration’s strategy of giving detainees civilian trials.”

Ghailani, who was tried in Federal Court in downtown Manhattan, was convicted on one count of conspiracy and faces a mandatory 20-years-to-life sentence.

But Congressman Rooney believes that the “Constitutional and legal standards for evidence-gathering and prosecution in a civilian case are simply not adequate for the trial of an enemy combatant.”

He adds, “As a former military prosecutor, I strongly believe that trying detainees in military tribunals at Guantanamo Bay is the best way to hold terrorists accountable, keep them out of the United States, and prevent them from rejoining the fight.”

But other former military prosecutors take starkly different positions.

One of them is David Frakt, who, in 2008, challenged the role of chief prosecutor Brigadier General Thomas W. Hartmann in choosing his client, Mohammed Jawad, for trial. Frakt argued that Hartmann had "...exercised unlawful command influence. Challenging that unlawful influence, Frakt charged that the Prosecution had failed to release important records to the Defense, and that this showed that the process through which Jawad was charged was rushed and without proper preparation.

Frakt also claimed that Jawad had been subjected to: "...pointless and sadistic treatment [in a] bleak underworld of barbarism and cruelty, of anything goes, of torture."

Frakt told The Public Record, “It is shameful that some members of Congress are trying to hamstring the President and Attorney General and substitute their judgment for that of the Executive Branch as to what is the appropriate place to try a criminal case, without any knowledge of the specific facts and circumstances of each case, or the evidence available.”

He said Rooney’s act “also shows the extreme hypocrisy of many members of Congress, who will claim one moment that the Military Commissions are virtually identical in all important respects to federal criminal courts and courts-martial, capable of providing full, fair trials consistent with American ideals of justice and due process, then insist on trials in military commissions for the sole reasons that they clearly believe that convictions are more likely to be obtained on tainted evidence in a military commission than in federal court.”

He added that the "protection of critical evidence is a massive red herring. The procedures in place in the Military Commissions to protect classified evidence are modeled on, and virtually identical to, the Classified Information Procedures Act in place in federal court.”

Frakt told us, “It is deeply insulting that members of Congress repeatedly refer to the Ghailani trial as some kind miscarriage of justice, casting aspersions not only on the jury that rendered the verdict after grappling with the evidence for several days, but on the entire justice system. The criticism of the Ghailani case is clearly premised upon a presumption of Ghailani's guilt, not the presumption of innocence to which even detainees are entitled.”

He added, “It seems to be Rooney's position that Ghailani must have been guilty, since why else would the Justice Department have charged him? It has apparently not occurred to this "former military prosecutor and Constitutional law professor" that the government might have overcharged Mr. Ghailani, or that their theory of the case was flawed, or that their evidence was insufficient.”

Frakt also noted that the Rooney bill, if passed, “would potentially prohibit some detainees from being tried at all.”

He explained: “There are very likely some detainees who have committed federal terrorism crimes, but who have not committed any war crimes. It is still an open question as to whether the appellate courts will allow crimes which have never been considered law of war offenses, such as material support to terrorism, to be tried in the military commissions. It is also still an open question whether the appellate courts will accept the spurious claim that the U.S. was in a war with al Qaeda for five years before 9/11. If the courts reject this theory, then there will be no available forum in which to try detainees for pre 9/11 terrorist acts.”

Frakt’s Guantanamo client, Mohamed Jawad, was called the “child soldier” because he was reportedly only 12 years old when he allegedly threw a hand grenade at an American soldier in Afghanistan, killing him.

In his trial, the military tribunal judge ruled that Jawad's alleged confession to throwing a grenade was inadmissible since it had been obtained through coercion after Afghan authorities beat him and threatened to kill his family. He was ordered released after a successful petition for a writ of habeas corpus and in 2009 was returned to Afghanistan.

Another Military Commission veteran, Col. Morris Davis (Ret.), former chief prosecutor at Guantanamo and now executive director of the Crimes of War Project, noted that Rooney “introduced the same bill a year ago in the 111th Congress where four percent of his colleagues joined as co-sponsors and it died in committee.”

He said Rooney’s “bad idea hasn’t gotten better with age. After more than nine years of failure since President Bush first tried to revive military commissions, and after a thorough trashing of our reputation as the world leader in justice, perhaps we should start upholding the rule of law rather than creating novel arguments to get around it. We used to set the highest standard, now we try to see how low we can go. We’re Americans. We’re better than that.”

Another aspect of the Military Commission debate was highlighted by Andrea Prasow, Senior Counter Terrorism Counsel for Human Rights Watch.

She told The Public Record, ""Military Commissions are new and untested. They have handled only five cases, three of which were plea bargains. By contrast, Article III courts have a proven track-record for prosecuting terrorism suspects. The Military Commissions remain deeply flawed and any verdict rendered by them might ultimately be overturned by the Supreme Court. The victims of 9/11 deserve better than to see such important cases prosecuted in a defective legal system."

And Chris Anders, ACLU Senior Legislative Counsel, injected a note of political realism into the issue. Noting that Rooney's bill was introduced last year and went nowhere, he said it may have a brighter future now because of Republican control of the House of Representatives.

But he told The Public Record that the Rooney measure is merely the first of many focusing on Guantanamo and Military Commissions that are likely to be introduced in this session of congress.

Rooney, who was elected in 2008, represents Florida’s 16th Congressional District, which stretches from the Gulf of Mexico to the Atlantic coast. Rooney won election with 60% of the vote.

He is a member of the House Armed Services Committee, the Committee on the Judiciary, and the Committee on Agriculture. He was selected to serve as a Republican Deputy Whip for the 112th Congress, the only second-term member to be tapped for this post.

Though not a member of the Tea Party caucus, he spoke at the South Florida Tea Party’s first rally on Tax Day in 2009.

Rooney spokesman Michael Mahaffey said, “Congressman Rooney is very supportive of the Tea Party Movement and its message of lower taxes, less government and more personal freedom.” He added, “He believes the strength of the Tea Party lies in its grass roots support and its leadership from the people, not from Washington.”