The military defense counsel expert on Military Commissions, that is, who won the release today of his client in the Jawad habeas corpus case in Judge Huvelle’s courtroom – which should, at long last, send Jawad home to Afghanistan within a month.

Below are very important and enlightening excerpts from testimony at a hearing today about Military Commissions in the House Judiciary Subcommittee on the Constitution, chaired by Rep. Jerry Nadler of New York [also in attendance were Bill Delahunt, and, intermittently, Sheila Jackson-Lee and Steve King] by that expert, Major David Frakt:

Many of the [Guantanamo] detainees were completely innocent of any wrongdoing, and had simply been turned in for bounty, or were caught in the wrong place at the wrong time. The worst that could be said about many of them was that they had fought against the U.S. and Coalition forces that had invaded Afghanistan, conduct that, under the laws of war, would not be considered a war crime. A small group of those captured were likely guilty of terrorism crimes, but not crimes of war.

[...]

Second, the drafters [of the original Military Commission rules] classified as "war crimes" conduct, such as conspiracy and terrorism crimes that are violations of regular criminal law but had never previously been recognized as covered by the laws of war, largely because the laws of war rightly apply to the narrow context of armed conflict. [Note that 9/11's mass murder itself happened before a state of armed conflict existed between the U.S. and a foreign state or terrorist organization, putting it outside the "armed conflict" context.] They also created a number of "new" war crimes based on the alleged status of a person, rather than on conduct that actually violates the laws of war.9 The most egregious examples of these were the invented crimes "Murder by an Unprivileged Belligerent," and "Destruction of Property by an Unprivileged Belligerent" which appeared in the original commission’s list of offenses. These provisions made killing U.S. soldiers, destroying military property, or attempting to do so, a war crime. In other words, the U.S. declared that it was a war crime to fight [against the U.S.], regardless of whether the fighters comply with the laws of war.

[...]

Most disturbingly, [in the 2006 Military Commissions Act] Congress retained the rules of evidence (with minor variations) that permitted coerced evidence to be introduced. Congress also retained the full list of war crimes (again with minor variations), including the invented ones, and even added new ones, such as the flexible catch-all "material support to terrorism."

The Obama Administration has now acknowledged that material support is not a traditional war crime, calling into question all three of the convictions thus far attained. (Mr. Hicks, Mr. Hamdan and Mr. al Bahlul were all convicted of material support. For Mr. Hicks and Mr. Hamdan, it was the only crime of which they were convicted.)

[...]

This "spray and pray"13 strategy might have succeeded but for one factor the Bush Administration never anticipated: many of the military lawyers assigned the roles of prosecutors, defense counsel and judges in the military commissions refused to put aside their ethical obligations and their training in the rule of law. Many of these judge advocates, officers with decades of expertise in the law of war, considered the military commissions an affront to the military justice system to which they had devoted their careers.

[...]

Tenacious military defense counsel challenged the government at every turn, exposing the many flaws in this concocted legal system and the disgraceful brutality with which their clients had been treated. Through patient, professional advocacy both inside and outside the commissions, these lawyers managed to put the brakes on the military commission freight train and slow the proceedings to the point where it was a simple matter for President Obama to suspend them almost immediately after assuming office. This suspension period allows us an opportunity for reasoned debate about the shortcomings of the military commissions and their efficacy and utility.

[...]

Although I still believe it is theoretically possible to amend the MCA to create valid commissions, the best solution would simply be to repeal the MCA and start over to create military commissions that are not just loosely based on the UCMJ and Manual for Courts-Martial, but are virtually identical. Any proposed deviation from court-martial procedure would have to be carefully scrutinized to ensure that it was truly necessary and appropriate and not merely an effort to favor the prosecution.

[...]

The proposal in the Senate [National Defense Authorization Act] to amend § 948r to preclude the admissibility of statements made as a result of cruel, degrading and inhumane interrogation methods does not go far enough because it still allows for the admission of coerced statements so long as the government disputes "the degree of coercion," and a judge determines its reliability and that "the interests of justice would best be served" by admission of the statement. This entire provision is built on false premises. There are no circumstances where "the interests of justice would best be served" by the introduction of involuntary statements. One significant reason that involuntary statements are inadmissible is because, as a category, such statements are not reliable.

[...]

In particular, Congress should clarify the vaguely defined offense of "murder in violation of the law of war." This offense replaced the invented offense of "murder by an unprivileged belligerent" in the list of offenses created by Executive Order of President Bush. Although the title and definition of this offense are clearly different from the predecessor offense, government prosecutors interpreted this offense to be identical to the offense of "murder by an unprivileged belligerent." Several defendants at the military commissions have been charged with the offense of "murder in violation of the law of war" and/or solicitation or conspiracy to commit this offense. The prosecution’s theory, advanced in several military commissions, was that all murders committed by an "unlawful combatant" or "unprivileged belligerent" violated the law of war. Their claim was that the mere status of being an "unlawful combatant" was sufficient to establish a violation of the law of war and that no other law of war violation need be proven. This interpretation of the statute finds no support in the law of war and was emphatically rejected by three different judges (Captain Keith Allred, USN; Colonel Stephen Henley, USA; and Colonel Ronald Gregory, USAF) in three different military commissions (Hamdan, Jawad and al Bahlul).

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In short, the revisions of the MCA in the [Senate Armed Services Committee] proposal fall well short of what is required to transform the deeply flawed MCA into a law Americans can be proud of.

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If one were to review the charges brought against all of the approximately 25 defendants charged in the military commissions, as I have, one would conclude that 99% of them do not involve traditionally recognized war crimes. Rather, virtually all of the defendants are charged with non-war crimes, primarily criminal conspiracy, terrorism and material support to terrorism, all of which are properly crimes under federal criminal law, but not the laws of war. In fact, in my estimation, there has been only one legitimate war crime charged against any Guantanamo detainee, the charge of "perfidy" against Abdal-Rahim Al-Nashiri for his alleged role in the attack on the U.S.S. Cole in October 2000. But even though perfidy is a traditional offense under the law of war, convicting Mr. Al-Nashiri of this offense requires accepting the dubious legal fiction that the United States was at war with Al Qaeda nearly a year before 9/11, for the law of war only applies during a war. In fact, most of the offenses with which the so-called "high value detainees" are charged relate to events which occurred on or before 9/11, when the U.S. was not involved in an armed conflict with Al Qaeda.

[...]

If there are no real war crimes to prosecute, are there any good reasons to continue with military commissions? The Bush Administration’s motive for creating military commissions was to establish a forum in which American standards of due process did not apply and convictions could be obtained for terrorism crimes (not law of war offenses) under summary procedures using evidence which would not be admissible in a regular court of law.

[...]

True American values guarantee justice and fairness for all, even for the vilified and unpopular. If there are terrorists and war criminals to be tried, let’s do it the old-fashioned way, in a fair fight in a real court with untainted evidence. America is better than the last eight years. It is time to prove it to the world, and to ourselves.

- Major David J. R. Frakt, USAFR, 7/30/2009

[For further information about [Frakt's] experience as a Guantanamo defense lawyer and these two cases, see, David J. R. Frakt, Closing Argument at Guantanamo: The Torture of Mohammad Jawad 22 Harvard Human Rights Journal 1 (2009); David J. R. Frakt, The Difficulties of Defending Detainees, 48 Washburn Law Journal 381 (2009)]

http://judiciary.house.gov/hearings/hear_090730.html

Will the House let the Senate roll it in conference and unquestioningly accept Levin’s latest undebated, segregated-and-unequal version of Military Commissions legislation, despite the House defense bill having no such language in it? Will the Senate allow the Judiciary Committee to give its input despite Levin’s Armed Services Committee steamrolling another problematic version of this legislation, hidden in the massive 2010 Defense Authorization Act?

Will Congress LISTEN to the military experts who are testifying with such passion and precision, when given a chance? [Also see Jawad's former military prosecutor Vandeveld testifying to Nadler's committee earlier this month.] If these experienced, thoughtful, conscientious commission veterans don’t know the principled American way to obtain justice for our military prisoners during our ongoing armed conflicts, no one does. They do General George Washington proud.