JAG Officer: Indefinite Detention ‘Defies Common Sense’

by , January 27, 2010

U.S. President Barack Obama’s decision to detain 47 of the just-under 200 remaining prisoners at Guantánamo without trial indefinitely is drawing scorn from legal experts and human rights advocates, who charge that the government simply does not have enough evidence to convict the detainees it says cannot be tried but are "too dangerous to release."

David Frakt is a lieutenant colonel in the U.S. Air Force Judge Advocate General (JAG) Corps Reserve, associate professor, and director of the Criminal Law Practice Center at Western State University College of Law in Fullerton, Calif.

He is a former lead counsel for the Office of Military Commissions Defense, who successfully represented Mohammed Jawad before the military commissions and won his release in habeas corpus litigation in 2009.

Frakt told IPS, "The administration’s suggestion that they can’t try 47 detainees, not because they don’t have evidence of criminal wrongdoing, but because a criminal trial would necessarily involve disclosure of classified information, defies common sense."

He gave three reasons.

"First, both under the Military Commissions Act of 2009 and under the Classified Information Protection Act [CIPA], in use in federal courts, there are elaborate mechanisms in place to protect classified information," Frakt said.

"Second, given that the remaining detainees at Guantanamo have been held, on average, for over seven years, the likelihood that there is an ongoing need to protect classified sources and methods in such cases is remote."

"Finally, it is hard to believe that there would be any greater risk of revealing important classified information than in the 9/11 trial, yet the administration is pressing forward with this and several other cases against high-value detainees who were kept in secret CIA ghost prisons and subjected to still classified methods of interrogation," he noted.

"The administration has acknowledged the right of all detainees to petition for habeas corpus in federal court. Why does the administration seem to believe classified information could be adequately protected in federal habeas litigation, but not in a criminal trial? It seems far more likely that there is simply inadequate admissible non-coerced evidence of criminality," Frakt said.

Other legal scholars have weighed in with similar views. For example, Brian J. Foley, visiting associate professor at the Boston University School of Law, told IPS, "Many of the executive’s claims about danger and terrorism have been shown to be incorrect over the years."

"Last week’s incident where an plane bound from New York to Kentucky was diverted for an emergency landing in Philadelphia because passengers freaked out when they saw a Jewish teenager engaging in an Orthodox prayer ritual, and the recent hours-long shutdown of Kennedy airport because a man from earthquake-ravaged Haiti mistakenly opened an emergency door in a terminal, show that our officials are overreacting and cowardly," he said.

"The executive’s claim that these people are ‘too difficult to prosecute’ really means that the executive knows that the only evidence it has is weak or was obtained by coercion and is therefore very likely false," Foley said.

The American Civil Liberties Union (ACLU), always a major player in the Guantanamo detention issue, called the Obama policy "un-American."

Jonathan Hafetz, a senior ACLU lawyer, told IPS, "By committing to hold suspected criminals indefinitely without charge, the Obama has embraced one of the most lawless and un-American policies of the Bush administration, one that turns the most fundamental principles of the Constitution on their head."

"The notion that the government can simply hold those it believes ‘dangerous,’ without putting them on trial, will ultimately serve neither our liberty nor our security," he said.

And Chip Pitts, president of the Bill of Rights Defense Committee, asked, "How is this any better than Guantanamo itself and the spur such approaches give to al-Qaeda?"

He told IPS, "No legal system worthy of the name can possibly imprison people indefinitely on the shameful argument that they are, in the absence of evidence and a fair trial, ‘too dangerous to release.’"

He called the move a "significant calcification of the lawless Bush approach of holding (often tortured) detainees indefinitely – effectively, perhaps for life – until the conclusion of some endless ‘war on terror,’" but said it is "actually undermining vital cooperation from European and Muslim allies, support for the rule of law itself and our country’s national standing and historical legacy."

In a statement, Amnesty International USA, said, "There’s been talk about people who can’t be tried but who are too dangerous to release. This is absurd. People must either be charged with a crime and given a fair trial, or be released. End of story. That’s the way it works. Either there’s evidence against you or there isn’t."

And Virginia Sloan, president of the widely respected Constitution Project, said, "Even if the Obama administration continues to work to close Guantánamo, by pursuing a policy of indefinite detention without charge, the damaging policies that embody the prison will continue, as will the negative effects to American values, the rule of law, and our nation’s reputation abroad." She urged opposition to the use of military commissions.

The planned closing of the iconic prison facility on the island of Cuba has been, at the same time, one of the Obama administration’s signature issues and most serious embarrassments.

On his first day in office, the new president issued an executive order to close the prison by January 2010. That deadline has now been missed, as Congress refuses to accept detainees even for trial in U.S. civilian courts and countries remain reluctant to accept them for resettlement.

For the past year, Justice Department lawyer Matthew G. Olsen has been leading a task force of national security and law enforcement officials who have been reviewing the files for each Gitmo detainee.

The review included an evaluation of any evidence against each man, how serious the threat would be if the detainee were released, and the government chances of prosecuting each prisoner successfully. The groups were then evaluated under the direction of Attorney General Eric H. Holder Jr.

But the process does not provide all the answers. For example, about 30 of the prisoners scheduled to be transferred to other countries are Yemenis. But transfers to Yemen have been halted following the attempted bombing of a Detroit-bound airliner on Christmas Day. It is believed that this plot was developed by a Yemeni affiliate of al-Qaeda.

Holder is also charged with deciding whether those to be prosecuted should face a civilian trial or a military commission. He has announced that five detainees would face a military commission and five others – including Khalid Sheikh Mohammed, the self-described mastermind of the terrorist attacks of Sept. 11, 2001 – would be tried in civilian court.

It is unclear what criteria the government uses to decide between military commissions and civilian courts.

(Inter Press Service)

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