Confused about Tribunals? Ask a Military Lawyer

by , February 19, 2010

There are few things more insufferable than the media establishment’s uncanny ability to reduce an issue down to a political steel cage match. It presumes the American audience, like bloodthirsty rabble, can only really appreciate the news when there is a versus between two opposing politicians with competing ideas that will only be resolved when one guy verbally smashes the other into submission.   

In the WWF arena of national security, the Democrat is typically the loser, as Republicans have learned that the relentless repetition of caricatures, distortions and lies – like the familiar bit,  "Democrats want to let terrorists loose on Main Street" — is as effective as wielding the steel chair or the old Superfly Splash – the Democrat is left with a gusher on the head and down for the count. 

Take Biden vs. Cheney this week. Ex-Vice President Cheney has had the media in near delirium this week over his "pounding" of the Obama Administration over its handling of detainees in the so-called War on Terror. Like other Rightwing-Republican memes, his is simple – Obama should have detained Umar Farouk Abdulmutallab, otherwise known as the Christmas Day or Underwear Bomber, as an enemy combatant, that way they would have been able to waterboard him and then drag the Nigerian through a military commission (which has so far only convicted three "terrorists" since 9/11 – David HicksSalim Hamdan, and Ali al-Bahlul — two of which are free in their home countries today).  

Biden, representing the administration this week on TV, went on the "attack" (in other headlines the two veeps "sparred" "clashed" and "traded jabs") though he mostly defended the decision to try Abdulmatallab in an Article 3 (civilian) criminal court, which has managed to convict an estimated 190 al-Qaeda/Taliban-related suspects since 9/11.   

Not surprisingly, little of either man’s claims is actually examined by the media in a very instructive way. The story is the face-off, not the substance.   

That the media seems utterly allergic to such examinations never ceases to amaze. A few easy keystrokes on Google these days can raise a number of issues highlighting the weaknesses in Cheney’s superficial, oft-repeated charges. For example, does anyone ever ask the growing number of military lawyers who have worked the military commissions what they think? Ask, and you’ll find out they think the tribunals are bunk – in other words, ineffective, broken, unconstitutional. How’s that for a suplex slam?  

From congressional testimony by Air Force Lt. Col. David Frakt, a Judge Advocate General (JAG) and former lead defense counsel for the Office of Military Commissions, in July: 

    It was the hope and deliberate strategy of the [Bush] 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 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 … 

    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.  

Shame on the media for being too lazy to explore further these explosive charges. Sure, the stories of these stalwart military lawyers have found their way into exhaustive but well-written features in glossy magazines like Vanity Fair and GQ, in law school journals and legal blogs – and especially by dogged investigative reporters like Andy Worthington – but they never transcend to the next level: saturating the mainstream news, where their resistance in the name of the Rule of Law, of ethics and the Constitution, really could have affected the debate more than any human rights advocate or ACLU champion. Even more than the fevered hyperbolics of Dick Cheney or Peter Hoekstra.   

It is only fair that this discussion move beyond the squared circle and into what the news media ought to be doing – informing the public. Devoid of all that, the patented Cheney Method – aggressive and sustained, if not crude and ill-mannered attacks directly on the president and vice president (heavy on the lizard brain scare tactics and chest-thumping) seems to be working.  

In November 2009, after a season of Cheney tantrums, Gallup found that 64 percent of Americans opposed Obama’s plan to close Gitmo and to move terror suspects to federal court. In a Washington Post poll taken in early February – at the start of Cheney’s more recent hysterics — 55 percent of respondents said they’d prefer that the 9/11 suspects be tried in a military tribunal rather than federal court, which only 39 percent preferred. 

Is it too presumptuous to assume most of the respondents are too ill-informed or ideologically blinded to recognize how messed up the military commissions have been and still are? Certainly, they’ve never heard that no less than seven military prosecutors – the best witnesses, in my view — have resigned the commissions in frustration and disgust.  

Defense counselors have quit for similar reasons. Some have openly expressed the belief that the tribunals were set up by the Bush Administration so that suspects could be tortured outside the rule of law.  Certainly most respondents never even heard Frakt’s name, or of Charles Swift, Thomas Fleener, Darrel Vandeveld or William Kuebler – former defenders and prosecutors who have risked reputation and careers to question the system.  

Here is just a taste of what these attorneys – most of them Judge Advocate Generals of the U.S Armed Forces, and professed conservatives – have said: 

Lt. Commander Charles Swift was forced out of the Navy after being passed over for two promotions. His departure followed on the heels of his successful challenge of the Bush Administration in the U.S Supreme Court on behalf of his former client, Salim Hamdan. Swift told Vanity Fair in 2007, "the whole purpose of setting up Guantánamo Bay is for torture. Why do this? Because you want to escape the rule of law. There is only one thing that you want to escape the rule of law to do, and that is to question people coercively — what some people call torture. Guantánamo and the military commissions are implements for breaking the law." 

Major Thomas Fleener, a JAG reservist who had once served on the defense for Ali al-Bahlul, told GQ in 2007 that he couldn’t abide the fact that his client was denied the right to self-representation, and that he was essentially forced to defend him anyway. "The concept of compelled representation has always bothered the crap out of me. You just don’t force lawyers on people. You don’t represent someone against his will… The reason it’s never done is that it undermines the concept of a fair trial. When a man’s life or liberty is at stake, he gets to decide who will speak for him. That’s the way American courts work, have always worked. To eliminate that right is to begin to transform a trial into a pageant." 

Lt. Commander William Kubler, described by GQ as a "conservative Republican and devout Christian, a husband and father," was interviewed on his own experience defending Gassan al-Sharbi in a military commission. He told the magazine in 2007, "I think things have been done to people … that under any definition except this administration’s very narrow one would be torture." He was also quoted as saying the system was "rigged," and eventually opposed the military trials system altogether. 

Lt. Col Darrel Vandeveld, JAG reservist and senior deputy attorney general for Pennsylvania, testified before Congress that he had resigned as prosecutor in the case of a 15-year-old accused terrorist "after concluding that I could not ethically or legally prosecute the assigned case… the military commission system is broken beyond repair. Even good faith efforts at revision …leave in place provisions that are illegal and unconstitutional, undermine defendants’ basic fair trial rights, create unacceptable risks of wrongful prosecution, place our men and women in uniform at risk of unfair prosecution by other nations abroad, harm the reputation of the United States, invite time consuming litigation before federal courts, and, most importantly, undermine the fundamental values of justice and liberty upon which this great country was founded." 

In the meantime, I have interviewed two other attorneys – Maj. Todd Pierce, a JAG reservist, and Michel Paradis, a civilian  — who are working on the defense for al Bahlul’s appeal. They say his 2008 conviction violates the First Amendment and undermines the rule of law. Both men risk ridicule and perhaps professional strife, but they are undeterred. "I was inspired," Pierce told me recently about why he volunteered to live and breathe this case for the unforeseeable future. A conservative with a serious conscience.

*** 

Backed into the corner by the iron-fisted tag team of Dick ‘n Liz and loyal ring rats serving as surrogates throughout the media, the Democrats and the administration asked for it. They never invoke these tenacious lawyers – articulate, unafraid and credentialed – to make their arguments for closing Guantanamo Bay in public. It is clear now, from the administration’s record so far, that it was never really interested in taking a principled stand on the military commissions and the rule of law as it is applied to citizens and non-citizens on the established global battlefield.  

As Human Rights Watch pointed out back in January, the president "has adopted many of the Bush administration’s most misguided policies," including the indefinite detention of enemy combatants without charge and the continued use of the discredited military commissions. A stunning investigation by journalist Anand Gopal recently revealed the continued use of secret military prisons in Afghanistan, where Afghans say they were detained, tortured, and abused at sites that even the Red Cross isn’t allowed to tread. 

And everyone knows there will be no serious push to hold the Bush architects of harsh interrogation techniques – torture – accountable in any meaningful way. Attorney General Eric Holder made a big scene last year when he announced a special investigation into Bush-era CIA interrogation practices. But in fact, there is already evidence that the administration is hedging on that front, too. 

According to Wikipedia, a "hot tag" in professional wrestling is when the good guy, "after several minutes of being dominated by his opponents," finally tags in his partner, who is waiting patiently outside the ropes. 

At this point, the administration seems not so deserving of a "hot tag" from these stalwart attorneys or anyone else who could possibly help make its case for shifting accused terrorists from the tribunals to federal court. But the mainstream media could take pity on us rabble and give us some red meat anyway – to start, how about the truth?

Read more by Kelley B. Vlahos