David Frakt
On November 3, 2008, I sat silently at the counsel table while the military commission located at Guantánamo Bay, Cuba, announced the sentence against Ali Hamza al Bahlul. Mr. al Bahlul, the Yemeni detainee whom I had been ordered to represent against his will, was seated as far as he could get away from me at the opposite end of the long table. Not surprisingly, given that I had put on no defense, he was given the maximum permissible sentence: life imprisonment. Ordinarily in a military tribunal, counsel and the accused stand for the verdict—out of respect to the court—but we remained seated. Mr. al Bahlul was boycotting the proceedings, refusing to recognize the legitimacy of the military commissions, and I joined his boycott, both in deference to my client’s wishes and in protest of the commission’s refusal to honor Mr. al Bahlul’s request to represent himself, which had placed me in this awkward position. After the sentence was announced, Mr. al Bahlul was taken away in shackles and moved to a different wing of the prison complex where he remains to this day; convicted prisoners were not permitted to be housed with ordinary detainees. It was the last time I ever saw him.
There were few spectators in attendance that day. The entire press corps, save one lone pool reporter from the Associated Press, had decamped to the mainland to cover the historic presidential election that was to take place the following day. Although the trial of Mr. al Bahlul was only the second military commission trial of the Bush administration, and the first to produce a significant sentence (there had been one plea bargain resulting in a nine-month sentence and one litigated trial resulting in a five-month sentence after accounting for time served), this historic event passed with barely a notice, buried in the back pages of the newspapers, if they bothered to cover the story at all. And so the era of the Bush military commissions went out not with a bang, but with a whimper, overshadowed by the immensity of the impending election of our first African American president.
The following night, I watched the election returns from the lobby of the Guantánamo naval base’s visiting officer quarters with a great sense of excitement and satisfaction, confident that this historic election signaled the end of the disastrous military commission experiment, as presidential candidate Barack Obama had made plain his intent to scrap the military commissions. Accordingly, for many of the defense counsel assigned to represent detainees facing trial by military commission, the primary strategy had been delay, in hopes of fending off a trial in a system heavily slanted in favor of the prosecution until the next administration could come in and put a stop to the whole embarrassing enterprise. Although the election came too late to help Mr. al Bahlul, I was optimistic that it portended good things for my other client, Mohammed Jawad, who, along with Canadian Omar Khadr, was one of two detainees captured as children who were facing military commission charges. The decision by the Bush administration to make the United States the first country in modern history to try alleged child soldiers for war crimes was highly controversial, and much criticized by the international human rights community. It seemed inconceivable to me that President Barack Obama would permit these cases to continue. My faith in the new president, however, turned out to be misplaced.
By way of background, I had arrived at the Office of Military Commissions in late April 2008, and was immediately appointed defense counsel for both Mr. al Bahlul and Mr. Jawad, who were both arraigned in separate hearings on May 7, 2008. Although both detainees initially resisted my help, and Mr. al Bahlul ultimately rejected me completely, Mr. Jawad gradually accepted me as his attorney. Over the summer and fall of 2008, through numerous visits and multiple pretrial hearings, we developed a strong rapport. Mr. Jawad even granted me permission to file a habeas corpus petition on his behalf.
Mr. Jawad’s case was factually quite simple. He was accused of throwing a hand grenade at a U.S. military vehicle in Kabul that had injured two U.S. soldiers and their Afghan interpreter. There was only one charge: “attempted murder in violation of the law of war.” Unlike every other detainee to have been charged in the military commissions, he was not charged with terrorism, or material support for terrorism, or conspiracy, nor was he alleged to be a member of Al Qaeda or the Taliban. Because of the relative simplicity of the charge, the case was moving forward to trial rapidly. At the time Mr. al Bahlul’s trial concluded, Mr. Jawad was next on the docket. His trial was scheduled to begin January 5, 2009, and last two weeks—the last two weeks of the Bush presidency.
Although the trial date was fast approaching, by November 2008, the case against Mr. Jawad had already begun to unravel. In September, the lead prosecutor, Army Reserve Lieutenant Colonel Darrel Vandeveld, had courageously resigned, asserting that he could no longer ethically continue to prosecute the case. The military commission judge, Army Colonel Stephen Henley, had rejected the government’s theory of the case, ruling that Mr. Jawad’s mere status as an alleged “unlawful enemy combatant” was insufficient to prove that his claimed belligerent act violated the law of war. Perhaps more importantly, Judge Henley had suppressed the prosecution’s primary evidence in the case, two purported confessions, on the basis that these self-incriminating statements were the product of torture. Recognizing that they had no hope of gaining a conviction without at least one confession (there was scant evidence corroborating the confessions), on November 24, 2008, the government filed a notice of an appeal to the Court of Military Commission Review (CMCR), a new military appeals court created by the Military Commissions Act of 2006, seeking to have one of the suppression orders reversed. Pending the outcome of the appeal, the trial was indefinitely postponed.
I argued the appeal on January 13, 2009. Lacking its own courtroom, the CMCR borrowed the U.S. Court of Appeals for the Federal Circuit for the occasion. The issue before the appellate panel was whether a statement made to U.S. authorities could properly be considered the product of torture if it was a result of torture by Afghan authorities earlier that same day. The trial judge had held that because there was no break in circumstances, the torture by the Afghan authorities that had yielded the first “confession” also tainted Mr. Jawad’s statement a few hours later. Although the judge had followed well-settled principles of constitutional law in reaching his ruling, the government argued that those precedents did not apply in military commissions. Rather, the government argued, a statement could be the product of torture only if it was elicited directly during a torture session. The court did not seem to find the government’s logic persuasive. At the conclusion of the oral argument, I felt confident that the court would uphold the suppression ruling. I was never to find out if I was right.
The same day as the oral argument, I, together with the ACLU, filed an amended habeas corpus petition in the U.S. District Court for the District of Columbia on Mr. Jawad’s behalf. After Mr. Jawad had authorized me to file the petition, I learned that the Center for Constitutional Rights had already filed a petition on his behalf some years earlier as part of a group of Afghan petitioners, based on permission from a member of Mr. Jawad’s family. The petition had languished for years while the federal courts grappled with the issue of whether detainees had the right to seek habeas corpus (and whether Congress had the power to revoke this right). Although the Supreme Court had ruled that detainees did have habeas corpus rights under the U.S. Constitution in Boumediene v. Bush in June 2008, there was a huge backlog of habeas petitions in D.C. District Court. Those detainees facing trial by military commission, like Mr. Jawad, were at the back of the line, as the District Court had refused to intervene where there were ongoing military commission proceedings. Although we knew that Mr. Jawad’s habeas case would continue to be stayed so long as he was facing criminal charges, in anticipation that the military commission charges would be dismissed if there were a favorable ruling on the CMCR appeal, we wanted to be ready to move forward quickly on the habeas corpus case whenever the District Court was ready to take it up. The habeas petition would challenge the government’s authority to hold Mr. Jawad even in the absence of any pending charges in a military commission. In support of the amended habeas petition, we included an extraordinary sworn declaration by Mr. Jawad’s erstwhile prosecutor, Lt. Col. Vandeveld.1 The Vandeveld Declaration offered his opinion that there was insufficient evidence to convict Mohammed Jawad, confirmed that Mr. Jawad had been abused in U.S. custody, and concluded that Mr. Jawad posed no threat to the United States if released. It also contained a stinging indictment of the entire military commissions experiment.
The next week was an eventful one. On January 20, 2009, President Obama was inaugurated. I woke up early and braved the bitter cold and teeming crowds to attend this historic event in person. I particularly wanted to hear what he was going to say about Guantánamo. A few weeks earlier, in December, I had been invited to the Pentagon by members of President Obama’s transition team. Mr. Jeh C. Johnson, shortly to be named Defense Department general counsel, was leading the transition team’s review of legal issues facing the Defense Department. Mr. Johnson had sought my advice on how the military commissions already in progress could be stopped, and I had offered my thoughts on the matter. This gave me great hope that the president would announce an immediate end to the military commissions. Although he did not address Guantánamo directly, there was one line in the inaugural address that seemed to be a veiled reference to Guantánamo and the military commissions: “we reject as false the choice between our safety and our ideals.”
Later that day, Secretary of Defense Gates directed the chief prosecutor of the military commissions to “cease swearing charges, to seek continuances for 120 days in any cases that have already been referred to military commissions, and to petition the Court of Military Commission review to hold in abeyance any pending appeals for 120 days” in order “to provide the Administration sufficient time to conduct a review of detainees currently held at Guantánamo, to evaluate the cases of detainees not approved for release or transfer to determine whether prosecution may be warranted for any offenses these detainees may have committed, and to determine which forum best suits any future prosecution.” On January 22, 2009, President Obama signed Executive Order 13492, directing a review of all detainees at Guantánamo and ordering the secretary of defense to “ensure that during the pendency of the Review . . . all proceedings pending in the United States Court of Military Commission Review, are halted.” The following day, the government sought a stay from the CMCR in Mr. Jawad’s case, asking the court to withhold ruling on the interlocutory appeal. Over my strenuous objection, the court granted the request.
Sometimes when one door closes, another opens. Although I was disappointed not to get a prompt ruling on the merits of the appeal (the CMCR’s rules required them to issue a ruling within 30 days), my co-counsel2 and I realized that the suspension of military commission proceedings might create an opportunity in federal court. We filed a motion seeking to compel the government to respond to our habeas corpus petition on the merits. We argued that since the military commission proceedings had been suspended, there was no longer any basis for postponing the habeas corpus petition. Shortly thereafter, we had a stroke of good fortune. Mr. Jawad’s habeas petition was transferred to District Judge Ellen Segal Huvelle, a no-nonsense judge who had little patience for the government’s dilatory tactics in the habeas cases. On April 22, 2009, she ordered the government to respond on the merits to Jawad’s petition.
The issue in a habeas corpus case is whether there is a lawful basis to detain. For Guantánamo detainees, the government had to prove that the detainee was an alien unlawful enemy combatant, which could be proven by involvement with Al Qaeda or through direct participation in a hostile act against the United States. In its response to Mr. Jawad’s habeas petition, the government’s asserted basis for his detention was exactly the same as the basis for the criminal charges against him—his alleged involvement in the hand grenade attack that injured the two U.S. soldiers. As supporting evidence for the lawfulness of detention, the Justice Department offered the very same statements from Mr. Jawad that had been suppressed by Judge Henley in the military commission case, claiming that the suppression rulings by the military commission did not bind the district court.
Judge Huvelle was not impressed. At a July hearing, in a scolding that made headlines in the New York Times, she described the case as “an outrage” that was “riddled with holes” and accused the government of “dragging this out for no good reason.” She ordered a suppression hearing to determine the admissibility of the statements. Shortly before the hearing, the Justice Department made an abrupt about-face. It not only dropped its reliance on Mr. Jawad’s statements, but also conceded that all of the statements he had made in detention were the product of torture and agreed that our motion to suppress should be granted. When the Justice Department claimed that it had additional evidence to support Mr. Jawad’s detention, Judge Huvelle called its bluff. She set the case for an expedited merits hearing in early August and told the government lawyers to “bring me a witness.” Once again, the government capitulated. Shortly before the hearing, the Justice Department informed the court that the government had decided to “no longer treat Mr. Jawad as detainable” and conceded that the writ of habeas corpus should be granted.
On July 30, 2009, Judge Huvelle held the final hearing in the case. The government submitted a proposed order of release within three weeks of the hearing, to enable the Justice Department to comply with a blatantly unconstitutional statute recently enacted by Congress that required advance notice before transferring any detainee from Guantánamo. I requested that the court make one amendment to the proposed release order. I asked that the government be ordered to treat Mr. Jawad humanely until he was released. Incredibly, the government lawyers objected. Judge Huvelle settled on some compromise language, ordering that “petitioner Jawad shall be treated humanely consistent with respondents’ legitimate security and operational concerns.”
The following day, in response to my demand, the Convening Authority for the military commissions dismissed the charges against Mr. Jawad, thereby mooting the government’s appeal, which was also dismissed. Three weeks later, Mr. Jawad was flown back to Afghanistan by military transport, where, through the timely intervention of my military co-counsel, Major Eric Montalvo (USMC, ret.), he was released to his family.
While the Justice Department’s reversal on Mr. Jawad’s petition and his unconditional release was a positive outcome to his case, regrettably, it did not signal a broader change in administration policies toward Guantánamo detainees. Rather, the Justice Department’s change of heart seems to have been driven by the torrent of negative publicity generated by Mr. Jawad’s case, which a New York Times editorial referred to as “emblematic of everything that is wrong with Guantánamo.” The Obama administration did nothing to assist in Mr. Jawad’s reintegration to civilian life; no compensation, transitional assistance, or social services were provided. In fact, the government refused my request to have a member of the defense team present for his repatriation, forcing me to raise funds from human rights NGOs and private donors to pay for Major Montalvo’s trip. As for other detainees, the administration continued to vigorously oppose virtually all habeas corpus petitions, even in several cases where the administration’s own Guantanamo Review Task Force had cleared the detainee for release.
President Obama has tried, to no avail, to shut down Guantánamo. But he made no effort to fulfill his campaign pledge to shut down the military commissions, choosing instead to try to reform them. Shockingly, President Obama did not even abandon his predecessor’s effort to convict child soldiers in the military commissions, allowing the prosecution to press on with charges against Canadian Omar Khadr (under the same status-based war crime theory rejected by Judge Henley in Mr. Jawad’s case) until Mr. Khadr finally agreed to plead guilty in 2010. The legitimacy of Mr. Khadr’s conviction, like every other conviction obtained in the military commissions to date, is in grave doubt, for at least some of the charges to which he pled guilty have since been found to have been improperly before the court. Only two men have been convicted in a military commission trial, Salim Hamdan and Ali Hamza al Bahlul.11 When the appeals of Mr. Hamdan and Mr. al Bahlul finally reached the U.S. Court of Appeals for the D.C. Circuit, the court vacated both of their convictions because the crimes for which they were convicted (material support, conspiracy, and solicitation) were not recognized offenses under the law of war at the time of the conduct in question. By the time the court ruled on Mr. Hamdan’s case, he had long since been released, and the government did not appeal the ruling. But in Mr. al Bahlul’s case, the government appealed the ruling to the full D.C. Circuit. In this appeal, the Justice Department argued that I had waived the right to appeal Mr. al Bahlul’s convictions by failing to object at trial and, therefore, that the convictions must be reviewed under a “plain error” standard. Under this standard, the legal error must be so obvious that the trial court should have acted on its own even without a defense objection. Applying this extraordinarily pro-government standard, the court nevertheless vacated the material support and solicitation convictions, finding that it was so clear that these offenses were not war crimes that the trial judge should have dismissed the charges on his own motion. The court remanded the case to the original three-judge panel for additional consideration of the validity of the conspiracy conviction.
On June 12, 2015, the three-judge panel finally issued its ruling, and it was a stinging defeat for the U.S. government. In a 2–1 opinion, the majority held that conspiracy was not a recognized crime under the international law of war, but rather was a domestic crime. As such, the U.S. Constitution did not permit the offense to be tried in a military commission, but rather only in an Article III (federal) court. The court vacated the sole remaining conviction of Mr. al Bahlul, which also happens to be the last remaining conviction from a Bush-era military commission.3 Once again the government appealed to the full D.C. Circuit, which agreed to hear the case. Oral arguments were held on December 1, 2015. If history is any guide, it will be several months before the full court issues its ruling, at which point the losing side will likely appeal to the Supreme Court, potentially delaying a final decision in the case for many more months. If Mr. al Bahlul ultimately prevails, he could be charged with some other offense or, more likely, moved back into indefinite detention, along with several dozen other detainees determined to be unprosecutable, but too dangerous to release. Meanwhile, Mr. al Bahlul, one of the first men brought to Guantánamo, approaches his 14th anniversary of detention on the island prison, with no clear end in sight.
1 This powerful statement, which has come to be known as the “Vandeveld Declaration,” was one of the most extraordinary documents to come out of the entire war on terror, and is featured in the forthcoming documentary Reckoning with Torture. More info at reckoningwithtorture.org.
2 Jonathan Hafetz of the ACLU National Security Project and Art Spitzer of the ACLU of the Nation’s Capital.
3 The only other person to be convicted of a crime by military commission during President Bush’s tenure in office was Australian David Hicks. Mr. Hicks’s conviction for material support for terrorism, resulting from a guilty plea in 2007, was vacated by the CMCR in 2015, after the D.C. Circuit ruled that this offense was not a war crime under international law and, therefore, could not be tried by military commission for conduct that predated the 2006 Military Commissions Act.