JAG offers an insider's account of defending GITMO detainee

[struggle4progress]

February 27, 2009

Major David J. R. Frakt ’94, a U.S. Air Force JAG officer, discussed his ongoing representation of a detainee in the war on terror, in a February 23 panel discussion at <Harvard Law School>. The event was sponsored by the American Constitution Society, the National Security and Law Association and the Harvard Human Rights Journal ...

Frakt recounted for the HLS audience how he bombarded the court with motions, including a successful motion to suppress two inculpatory statements obtained from Jawad at Bagram prison in Afghanistan, on the basis that they were produced by torture. He also filed a motion to dismiss a charge alleging that Jawad had committed a “war crime,” arguing that the grenade was a lawful weapon used in a war zone against a lawful target. In another motion, Frakt argued that the court had the authority to dismiss the case because torture had been used. The court agreed that it had the authority—an important ruling, with potentially far-reaching consequences—and that the government had not proven Jawad committed a war crime, but denied both motions to dismiss, saying other remedies were available.

Frakt’s article includes a detailed account of his argument on his motion to dismiss. New York Times columnist Anthony Lewis has described the argument as “a remarkable display of legal and moral courage.”

Jawad’s case, which Frakt believes will be dismissed, was put on hold when President Obama suspended the military commissions as part of an executive review of the process. In the meantime, Frakt and the ACLU have filed a habeas corpus petition for Jawad, in another attempt to release him ...

http://www.law.harvard.edu/news/2009/02/27_gitmo.html



Closing Argument at Guantanamo:
The Torture of Mohammed Jawad
Major David J.R. Frakt ...

... But the civilian political appointees of this administration intentionally cut the real experts on the law of armed conflict, the uniformed military lawyers, the JAGs, out of the loop, marginalized them, for fear that their devotion to the Geneva Conventions might pose an obstacle to their intended course of action. The State Department, led by Colin Powell, tried to raise a red flag, but to no avail. Instead, the administration chose to rely on the infamous torture memos by John Yoo, Robert Delahunty and Jay Bybee. These secret memos attempted to redefine torture for the purpose of providing legal cover for administration officials who approved the use of patently unlawful tactics. These legal opinions, now disgraced, disavowed, and relegated to the scrap heap of history where they belong, laid the groundwork for the wholesale and systematic abuse of detainees which ultimately ensnared my client, Mohammed Jawad ...

Adding to the pervasive atmosphere of lawlessness in the early days of Guantanamo was the administration’s assertion that the detainees could be held indefinitely without charge, without access to counsel, without any recourse to challenge their detention. The administration asserted that the detainees were beyond the reach of any federal court and were not eligible for habeas corpus, a hallowed right guaranteed by the founding fathers of this great country. In effect, the administration created a legal black hole at Guantanamo, a policy universally decried by even our staunchest allies in the war on terror, but steadfastly defended by the administration. If there was any doubt that the President intended unlawful tactics to be used, all doubt was erased when Secretary of Defense Rumsfeld authorized, on December 2, 2002, numerous extra-legal special interrogation techniques. These techniques and how they were developed and utilized were the subject of hearings before the Senate Armed Service Committee yesterday and are described in detail in the book Torture Team, which I have attached to this motion ...

Throughout the Global War on Terror we have heard repeatedly from our military and civilian leaders that this was a new kind of war, a war that requires new methods, new ideas, “thinking outside the box.” So that is what the highly creative and motivated people at Guantanamo did; they abandoned the tried and true and lawful methods of Army Field Manual 34-5262 and wrote a new playbook, a playbook that included intimidation with dogs, sexual humiliation, and sleep deprivation. These and other methods were employed at Guantanamo and, as the Schlesinger report put it, migrated to Abu Ghraib, where they resulted in the shocking conduct portrayed in the infamous photographs. The Secretary of Defense said “take the gloves off” and the soldiers and sailors of Guantanamo saluted smartly and said, “Yes, Sir!” In fact, many of the illegal and abusive “enhanced” interrogation techniques were personally approved for use by the Secretary of Defense; other techniques, like the frequent flyer program, were simply invented on the fly ...

Why was Mohammed Jawad tortured? Why did military officials choose a teenage boy who had attempted suicide in his cell less than five months earlier to be the subject of this sadistic sleep deprivation experiment? Not that anything would justify such treatment, of course, but at least in the case of the other detainees known to have been subjected to sleep deprivation, they were believed to possess critical intelligence that might save American lives. Unfortunately, we may never know. I’ve asked to speak to the guards who actually carried out the program, and I’ve been denied. In the absence of information to the contrary, which the government would surely provide if it existed, we are left to conclude that it was simply gratuitous cruelty ...

<link to pdf via HLS:> http://www.law.harvard.edu/news/2009/02/frakt-closing-argument.pdf