David Frakt: Military Commissions “A Catastrophic Failure” by Andy Worthington

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by Andy Worthington
Featured Writer
Dandelion Salad
8 Aug. 2009

A month ago, when the Senate Armed Services Committee heard testimony on “legal issues regarding military commissions and the trial of detainees for violations of the law of war”, and the Constitution, Civil Rights, and Civil Liberties Subcommittee of the House Committee on the Judiciary held a hearing on “Legal Issues Surrounding the Military Commissions System,” the Obama administration’s proposed revival of the much-criticized Military Commission system of trials for “terror suspects” at Guantánamo attracted a decent amount of media attention.

Last week, however, when the House Committee on the Judiciary’s Constitution, Civil Rights, and Civil Liberties Subcommittee convened to hear further testimony about the Military Commissions, few media outlets noticed. This was a great shame, as one of the speakers was Lt. Col. (formerly Maj.) David Frakt of the US Air Force Reserves, whose testimony (PDF) was at least as riveting as that of his former adversary in the Military Commissions, Lt. Col. Darrel Vandeveld, the ex-prosecutor who resigned in September 2008. On July 8, Lt. Col Vandeveld told the committee that the Commissions were “broken beyond repair,” and “cannot be fixed, because their very creation — and the only reason to prefer military commissions over federal criminal courts for the Guantánamo detainees — can now be clearly seen as an artifice, a contrivance, to try to obtain prosecutions based on evidence that would not be admissible in any civilian or military prosecution anywhere in our nation.”

The main thrust of Lt. Col. Frakt’s testimony, as an experienced lawyer who studied the Military Commissions Act of 2006 in depth and served on the Commissions from April 2008 as a military defense attorney (for two prisoners, Mohamed Jawad and Ali Hamza al-Bahlul), is that the MCA should be repealed and trials held in federal courts, which have a proven track record of dealing with cases related to terrorism. However, as he is pragmatic enough to realize that this may not happen, he provided the Committee with eleven detailed revisions to the MCA, which should be followed if, as anticipated, everyone involved in the decision-making process continues to believe that the tainted Commissions will be able to deliver justice.

These are worth looking at in detail (they are on pp. 8-15 of Lt. Col. Frakt’s testimony), but as I agree with his assertion that, essentially, the MCA is a flawed piece of legislation that resuscitated an even more flawed and rigged system conceived by former Vice President Dick Cheney and his close advisors, after the Supreme Court struck down the Commissions’ original incarnation in June 2006, and that it should be consigned to the trashcan of history, I’m reproducing below the section of Lt. Col. Frakt’s testimony in which he explains why (pp. 4-8), and his conclusion (pp. 15-17).

In these sections, Lt. Col. Frakt runs through a chronology of the Bush administration’s deliberate flight from the law, with a particular focus on how standards were deliberately dropped in an attempt to secure successful prosecutions, how criminal activities were confused with acts of war, and how the laws of war were twisted — by both the Bush administration and by Congress — to include crimes that have never been previously been covered by the laws of war. I doubt that you’ll find a better explanation of the legal failures of the Bush administration’s response to the 9/11 attacks anywhere else.

“The Abandonment of the Rule of Law”
An excerpt from Lt. Col. David Frakt’s testimony to the Subcommittee on the Constitution, Civil Rights, and Civil Liberties, Committee of the Judiciary, United States House of Representatives, July 30, 2009

In the run-up to this section, Lt. Col. Frakt stated, “As we ponder the questions before us, I think it is important to review where we are now and how we got to this point.”

One point on which all sides should be able to agree is that the military commissions of the Bush administration were a catastrophic failure. The military commissions clearly failed to achieve their intended purpose. After more than seven years and hundreds of millions of dollars wasted, the military commissions yielded only three convictions, all of relatively minor figures. Not a single terrorist responsible for the planning or execution of a terrorist attack against the United States was convicted. Two of the convicted, David Hicks and Salim Hamdan, received sentences of less than one year and were subsequently released. The third trial, of my client Mr. al-Bahlul [Ali Hamza al-Bahlul], though yielding a life sentence, was far from a triumph for the military commissions.

There were several problematic aspects of this trial, not the least of which was the fact that several members of Mr. Hicks’ jury were actually recycled for this military commission. More disturbing was the denial of Mr. al-Bahlul’s statutory right of self-representation. Mr. Al-Bahlul, a low-level al-Qaeda media specialist, wanted to represent himself before the military commissions and this request was granted by the military judge at the arraignment, Army Colonel Peter Brownback. Soon thereafter, Col. Brownback was involuntarily retired from Army and replaced. The new judge revoked Mr. al-Bahlul’s pro se status, although he knew that Mr. al-Bahlul had refused to authorize me, his appointed military defense counsel, to represent him. As a result, there was no defense presented; Mr. al-Bahlul was convicted of all charges and received the maximum life sentence.

Why, with the entire resources of the Department of Defense, the Justice Department and the national intelligence apparatus at their disposal, were the military commissions such an abysmal failure? The answer is simple: the military commissions were built on a foundation of legal distortions and outright illegality. The rules, procedures and substantive law created for the commissions were the product of, or were necessitated by, the wholesale abandonment of the rule of law by the Bush administration in the months after 9/11. In the United States of America, any such legal scheme is ultimately doomed to fail.

If we review the origins of the military commissions, a clear picture emerges of an intentional disregard for existing legal norms. Perhaps the first indication that the rule of law was to be abandoned was in President Bush’s Military Order of November 13, 2001. In this document, President Bush found: “it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.” In other words, what we consider essential for a fair trial for us would not be required for them. How did the administration know, two months after 9/11, before a single major terrorist suspect had been caught, and before a single prosecutor had reviewed a single piece of evidence, that it would be impracticable to prosecute terrorism cases using existing rules and procedures? They didn’t, of course. But having made this unsupported finding, President Bush and his senior advisors set out to make it a reality.

Another major step in the abandonment of the rule of law came on February 7, 2002, when President Bush issued another order [PDF], this time announcing that the Geneva Conventions would not apply to those detained in the War on Terror, who were labeled with the new and misleading term “unlawful enemy combatants.” The President held not only that such persons were not entitled to be treated as prisoners of war, but also, shockingly, that they were not even legally entitled to be treated humanely. With a stroke of the pen, the President wiped out the principle source of the law of war and the entire existing legal framework for the treatment of persons captured in an armed conflict and replaced it with a policy preference for humane treatment, which could be readily discarded whenever it interfered with military or intelligence operations. The decision that humane treatment was not required created unnecessary confusion about what was permissible and cleared the way for the approval of a vast array of patently illegal and highly coercive “enhanced interrogation techniques” to be employed upon the detainees.

The abandonment of the rule of law was compounded by the decision to house the “unlawful combatants” at Guantánamo Bay, Cuba, and to turn the detention facilities there into a legal black hole, a place where detainees were not even entitled to be informed of the basis of their detention, much less challenge it. Indeed, the Bush administration, regrettably aided and abetted by Congress, made a determined (and, for several years, successful) effort to prevent detainees from gaining access to courts or legal representation. In an environment with no judicial oversight or meaningful avenues for redress, the detainees were simply at the mercy of their captors — and the captors were not in a merciful mood. The extraordinary pressure to produce “actionable intelligence” coupled with the vengeful mood of the times led inexorably to shameful abuses of detainees [Senate Armed Services Committee report, PDF].

In 2002 and 2003, as senior Bush administration officials drafted the rules for the President’s military tribunals, they were aware of several important pieces of information about the detainees at Guantánamo. First, despite claims by high-level officials, including Secretary Rumsfeld, that the detainees represented “the worst of the worst,” in reality, the vast majority of the detainees had no tangible connection with al-Qaeda, and even fewer had any provable role in any terrorist attack. Many of the 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 US 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. The administration was also keenly aware that, to the extent that there was some evidence of criminal acts by a small fraction of the detainees, much, if not most of this evidence had been developed through highly coercive interrogations, which would not be admissible in a regular court of law.

The drafters of the original military commission rules [PDF] resolved each of these problems by rewriting the law. First, the rules of evidence were rewritten to allow the introduction of coerced statements and to eliminate the rules barring the fruits of torture and abuse. Second, the drafters 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.

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 [PDF]. 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 offences. These provisions made killing US soldiers, destroying military property, or attempting to do so, a war crime. In other words, the US declared that it was a war crime to fight, regardless of whether the fighters comply with the rules of war.

After protracted litigation, the original military commissions were invalidated by the Supreme Court in Hamdan v. Rumsfeld [PDF] in the summer of 2006 before anyone was ever convicted. With nearly five years wasted, there was a great rush to put a new legal system in place. Within months “new and improved” military commissions were authorized by Congress through the Military Commissions Act of 2006 (MCA) [PDF]. While these legislatively created commissions were undoubtedly an improvement over those created by Presidential decree, the hastily drafted and poorly considered MCA still incorporated some of the key distortions and departures from the rule of law featured in the invalidated version. Most disturbingly, 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). Although the military commissions were purportedly modeled on the Uniform Code of Military Justice (UCMJ), the best features of that system, such as the robust pretrial investigation required by Article 32 of the UCMJ and equal access by the prosecution and the defense to evidence and witnesses, were removed or weakened. The implementing regulations produced by the Secretary of Defense [PDF], which could have corrected or mitigated some of the glaring problems with the legislation, served only to exacerbate them.

Despite the widespread criticism of the MCA by the international community, legal scholars and non-governmental organizations, identifying the myriad shortcomings of the military commissions, the Bush administration was determined to press ahead with the military commissions and convict as many detainees as possible. It was the hope and deliberate strategy of the administration that if the military commissions were well underway by the time the next administration assumed office, with several trials completed and convictions duly rendered (the administration did not foresee or accept the possibility of acquittals), the commissions would be difficult to derail.

This “spray and pray” strategy might have succeeded but for one factor the Bush administration never anticipated: many of the military lawyers assigned the role 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 experience in the law of war, considered the military commissions an affront to the military justice system to which they had devoted their careers.

Ethical and courageous military prosecutors, such as former Chief Prosecutor Colonel Morris Davis and Lieutenant Colonel Darrel Vandeveld, who took their oaths to defend the Constitution seriously, resigned rather than be party to trials using coerced evidence or to allow political considerations to interfere with their prosecutorial judgment. Professional military judges refused to be bullied into endorsing the administration’s strained interpretations of the law of war. 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 have become known as a fierce critic of the military commissions, I want to make it clear that I am not opposed to military commissions as a general matter, but rather am opposed to military commissions in their current form. I am a strong proponent of military justice and have no concerns about the military’s ability to provide a fair trial, even for our worst enemies, given a fair set of rules and procedures. In my law review article [“An Indelicate Imbalance,” an article about the Commissions for the American Journal of Criminal Law in 2007] I did not propose to abolish the military commissions, but rather suggested a number of legislative and regulatory changes to convert them into a viable, acceptable system. After practicing in the military commissions, I developed some additional concerns with the military commissions which also would require legislative action to address […].

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 Court-Martial [980 pages, PDF], 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. Any deviations, individually and cumulatively, from the rules and procedures for general courts-martial should be minimal, and must not significantly detract from the overall fairness of the proceedings. In my view, had we adopted a military commissions scheme that truly mirrored the rules and procedures for general courts-martial, as was already authorized under federal law in 2001, we would not be in the position we find ourselves in today. The military commissions would have succeeded in providing fair trials and would not have been plagues by endless delays, challenges and setbacks.


After running through his extensive list of proposed amendments, Lt. Col. Frakt nevertheless concluded by asking the members of the Committee to consider whether these would be sufficient to overcome an overarching problem with the Commissions, which has nothing to do with any kind of amendment, whether major or minor, and I conclude by reproducing his closing statements, as they return, with the utmost relevance, to the fundamental problems caused by the Bush administration’s insistence — reiterated by Congress when it passed the MCA — that criminal offenses could be regarded as violations of the laws of war.

Lt. Col. Frakt’s conclusion

The question this committee, and the rest of Congress, must consider is whether there is any point in continuing with military commissions. As President Obama has stated, military commissions are a legitimate forum in which to try offenses under the law of war, but this begs the question of whether there are any law of war offenses to try. 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 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 Guantánamo detainee, the charge of perfidy against Abdul Rahim al-Nashiri for his alleged role in the attack on the USS 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 US was not involved in an armed conflict with al-Qaeda. Perhaps more to the point, Mr. al-Nashiri was also charged with several other non-law of war offenses arising out of the same conduct, including multiple charges carrying the death penalty, making the charge of perfidy redundant […].

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. The Obama administration has now rightly concluded that Constitutional due process standards should apply to military commissions, and that normal rules of evidence should apply. Modifying the military commissions to comport with due process and the rule of law will mean eliminating the very reason for their existence. Partially amending them with some minor cosmetic changes will result only in many more years of protracted litigation.

Among the over two hundred detainees still at Guantánamo, there are perhaps a few dozen who have committed serious offenses. I have yet to hear any compelling reason why any of these men could not be prosecuted under existing law in Federal Court. As the recent report by Human Rights First conclusively demonstrates [PDF], the federal courts are open, and have a long track record of successful prosecutions of terrorism cases. Military commissions have not proven to be faster, more efficient or less costly than the alternative. The logistical difficulties in trying cases in Guantánamo have proven to be incredibly vexing. With Guantánamo slated to be closed in the next six months, the military commissions will have to be relocated and a whole new infrastructure created to support the commissions. This could further delay the commissions for months or even years. Military lawyers, unlike federal prosecutors and federal public defenders, have no special expertise in prosecuting or defending complex international terrorist conspiracies. The entire military commissions experiment has been a massive drain on DoD resources and personnel at a time when the military can least afford it.

The only other reason I have heard advanced for the use of military commissions is the belief that a person who could not be successfully prosecuted in Federal Court because of evidentiary problems might be successfully prosecuted in a military commission. Those who make this argument are essentially conceding that military commissions do not and should not provide the same due process as a regularly constituted American court.

The desire to achieve convictions at all costs is simply not an acceptable basis for the creation of an alternative legal system. The reason that the military commissions failed — indeed, the primary mistake of the entire “War on Terror” — was the pervasive abandonment of the law by the prior administration. We must not repeat the mistakes of the past and continue to cut corners. We must remember that this war is ultimately a war about ideas and values. 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.

David Frakt is a law professor at Western State University College of Law and a Lieutenant Colonel in the USAF Reserves.

Cross-posted on The Public Record.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009. Visit his website at: www.andyworthington.co.uk.


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