Critics of Tribunals Gain Unlikely Allies: Lawyers in Uniform
JAGs Mount Spirited Attack On System for Trying Guantanamo Detainees
Bin Laden Hires a Driver
By JESS BRAVIN Staff Reporter of THE WALL STREET JOURNAL
On Jan. 31, a military officer showed up at the cell of Osama bin Laden's former driver in Guantanamo Bay with an unusual mission: to try to set the man free.
Lt. Cmdr. Charles Swift is a Navy lawyer assigned to defend Salim Ahmed Hamdan before a military tribunal. After 15 meetings with his client, Cmdr. Swift says he's shed any misgivings he harbored about Mr. Hamdan, a 34-year-old Yemeni who has been in detention since being captured in Afghanistan in late 2001.
Cmdr. Swift, 42, plans to argue that statements made against his client by other detainees were coerced and that Mr. Hamdan was merely a poorly educated functionary desperate for a job to support his family. "He has two beautiful kids -- one's 4, one's 2," Cmdr. Swift says, noting that his client has never met his younger child.
In November 2001, when President Bush authorized the first U.S. military tribunals since World War II, the process drew fire from human-rights groups and some legal experts. Now the critics have an unexpected set of allies: the detainees' five military lawyers, who have launched a surprisingly vigorous assault on the system that hired them.
The five JAGs -- as members of the Judge Advocate General's Corps, the military's legal arm, are known -- have attacked the tribunals as inherently unfair, contrary to international law and susceptible to political influence. In a brief they submitted to the Supreme Court, Cmdr. Swift wrote a section comparing the president with King George III and likening the treatment of tribunal defendants to the injustices that helped spark the American Revolution.
Ultimately, the JAGs are expected to challenge virtually every aspect of the administration's policies on Guantanamo detainees, from the denial of protections of the Geneva Conventions to the interrogation methods used in extracting statements. As the first trials draw near, the JAGs' approach could force the administration either to answer in open court or risk undercutting its longstanding promise that the tribunals will be "full and fair."
Citing national-security concerns, Mr. Bush decreed the tribunals free from federal court review, "the principles of law and the rules of evidence" used in civilian trials and the rights afforded U.S. military defendants in courts-martial. That gives the tribunal members, who are military officers selected by the Pentagon, vast leeway to consider hearsay, unsworn statements and other evidence that wouldn't pass muster under normal court procedures. Defendants are entitled to a military defense lawyer and, at their own expense, a civilian lawyer who can pass security checks. But they aren't guaranteed the right to see all the evidence against them.
As military officers defending accused enemies of the U.S., the JAGs say they are motivated by a mix of patriotic duty, personal values and a desire to help shape legal history. Air Force Col. Will Gunn, the Harvard-trained lawyer who heads the defense office, says he wants to show future generations that "even under fire we held firm to our ideals."
For Cmdr. Swift, the cause is in part personal. He says the hazing he experienced as a first-year "plebe" at Annapolis gave him "an affinity for people who get in trouble." As the navigator on the frigate Rathburne in 1989, he bailed out four sailors jailed in Malaysia for possessing a marijuana cigarette, sparing them a potential life term. He says the experience made him realize that "I'm a defense attorney. In my heart I've always been."
Tricky Position
The JAGs know they are in a tricky position. People may wonder why they are defending presumed enemies of the U.S., while others may believe they are merely putting on a show to lend legitimacy to the process. Indeed, the Defense Department has cited their vigorous stance as evidence that the tribunal system is just.
The JAGs say they are fighting to win. "I have absolutely no desire to be the loyal opposition," says Navy Lt. Cmdr. Philip Sundel, 39, one of two JAGs assigned to defend Ali Hamza Ahmed Sulayman al Bahlul, a Yemeni accused of producing al Qaeda propaganda videos. "I do not want to be the person whose impassioned but unsuccessful arguments help show the system was fair."
So far, the JAGs have won praise from human-rights groups and legal experts who initially expected to see little more than a perfunctory defense. "I was shocked to discover just how good these military lawyers were," says Neal Katyal, a Georgetown University law professor and national-security adviser in the Clinton Justice Department who helped the JAGs draft their Supreme Court brief.
In December, the government denied the JAGs permission to hold a joint press conference where they planned to criticize tribunal rules. Maj. Michael Mori, the Marine lawyer representing Australian prisoner David Hicks, is publicly complaining that prosecuting foreigners before tribunals considered unfit for American defendants represents a double standard. Referring to the U.S. Army officer who served only 31Ž2 years for the 1968 My Lai massacre in Vietnam, Maj. Mori asks, "How hard do we hold our own people accountable? How many people did Lt. [William] Calley kill?"
The Pentagon declined to comment on the JAGs' defense tactics. The tribunal system's top lawyer, retired Air Force Brig. Gen. Thomas Hemingway, says they should only speak publicly to help their clients, not aim "to make a big splash."
So far, President Bush has deemed only six of the roughly 660 prisoners at Guantanamo to be eligible for prosecution before tribunals, or commissions, as they are formally known. Four have been assigned lawyers, although only two have been charged. No trial dates have been set, but a courtroom stands ready at the sealed-off navy base on Cuba's southern coast.
To assemble the defense team, each military branch -- all have their own JAG corps -- was asked to nominate a handful of candidates. They were interviewed by Col. Gunn and approved by the Pentagon's general counsel, William J. Haynes II. Even within the military, Col. Gunn says, there was "a perception that they're probably not going to put their best over there."
What's more, the JAGs, including Col. Gunn, each had to consider what effect their new job might have on their military careers. Instead of moving into a top post in the Air Force JAG Corps, as he had expected, "I am now being asked to coordinate the defense efforts of ... people who are identified as enemies of the nation," Col. Gunn says. That's "a fairly high-risk proposition."
Most of the defense JAGs say they expect to remain in the military after the trials.
>From their nondescript offices in a Pentagon annex, decorated with
service pennants and maps of Afghanistan, the attorneys spent months
scouring texts on World War II tribunals and modern commentaries on
the law of war. They sought out Arabic interpreters and outside
attorneys skilled in the complicated constitutional, criminal and
military issues they are facing. None was assigned a specific
defendant until December.
Along the way, the JAGs say, they have continually run into impediments in the tribunal procedures, which were devised by lawyers working for Mr. Haynes, whom President Bush has nominated to a federal appeals court. For one, the general counsel selected, and now oversees, both Col. Gunn and the chief prosecutor, Army Col. Fred Borch. The defense lawyers maintain that they should report to a separate agency, such as the Army or Navy JAG Corps, as is standard procedure in the regular military justice system.
"I have to ask the person who drafted the military commission instructions whether I can do certain things to fight against the military commission instructions," says Cmdr. Sundel. The connections between Bush administration political appointees, the prosecution and the tribunal judges seem "a little incestuous," he says.
'Protected Information'
The defense JAGs also complain that they are required to tell the tribunal apparatus anything they may plan to say to people outside the office. The information must be screened for what the Pentagon calls "protected information," a category created for the tribunals that covers material the government deems relevant to national security. This forces the JAGs to decide between disclosing "exactly what I'm going to say" in a conversation with an outside legal expert, for instance, or not asking to having the conversation at all, says Cmdr. Sundel.
The JAGs say they are especially troubled by regulations that deny Col. Gunn the attorney-client privilege with tribunal defendants. Col. Gunn acknowledges his staff's dilemma: "Is the boss a government plant to provide high-level officials with information about what they're going to do with their cases?" His solution has been to keep a distance from much of the legal work undertaken by the JAGs.
Gen. Hemingway says many of the lawyers' concerns are overblown. Regarding protected information, for instance, he says, "We're trying to set up some training programs for them to reduce whatever fog they feel exists in that area." He says the Pentagon designed "a very, very effective process" and that he sees no reason "to scrap what we've already done and go back to something that they assert would be more comfortable."
Still, the defense JAGs say the tribunal system allows for the potential of conflicts of interest that wouldn't be tolerated in courts-martial. In naming the panel that will review tribunal verdicts, Defense Secretary Donald Rumsfeld appointed lawyers with whom he has longstanding relationships, the JAGs say.
"There is an enormous number of people in this country that would have been fully qualified to sit on the review panel," says Cmdr. Sundel. "Yet they couldn't move beyond picking their friends."
Panel member William Coleman, who served with Mr. Rumsfeld in President Ford's cabinet, says their history together won't influence his decisions. "I started my career as a law clerk to Mr. Justice [Felix] Frankfurter, so I'm well aware of the responsibilities" judges have to act ethically, says Mr. Coleman.
Gen. Hemingway says the panel members, who also include Rhode Island's chief justice, a former Pennsylvania congressman and President Carter's attorney general, are "very, very distinguished members of the bar" whose "reputation speaks for itself."
Prof. Katyal offered his services to the defense last May. After receiving clearance from Col. Gunn, he began meeting with the JAGs to discuss legal attacks on the tribunals. They saw an opening in November, when the Supreme Court agreed to decide whether federal courts held jurisdiction over non-U.S. citizens jailed at Guantanamo, in a case brought by relatives of the detainees.
Prof. Katyal urged the JAGs to file their own brief before the high court, arguing that apart from the legality of offshore detention without charge, civilian courts should have the power to review decisions of military tribunals. The JAGs agreed, debating only whether they should notify Mr. Haynes of their plans in advance. When they did, "questions were raised by the general counsel's office about whether it would be appropriate," says Army Maj. Mark Bridges, one of the defense JAGs.
The team resolved to prepare a brief and submit it as private citizens if necessary. They worked on the project out of uniform at Prof. Katyal's law-school offices. Sometimes, after work, they met at an Irish pub near Georgetown to discuss the brief over beers or coffee. The effort "reminded me of law school," says Cmdr. Swift.
Ultimately, the Bush administration allowed the team to submit the brief in their official capacity.
Aware of the vast cultural gap he faced with his new client, Cmdr. Swift read up on Arab culture and searched for a way to connect with his client. Mr. Hamdan knew of Islamic Sharia law but had no grasp of the adversarial legal system used by the U.S., Cmdr. Swift says. So the lawyer found a common denominator: their mutual love of chess, which allowed him to explain the roles of the prosecution and defense. "It's been the first metaphor that really works," Cmdr. Swift says.
Pentagon officials have said they expect to strike plea bargains with some defendants willing to testify against others. Although he has not himself been charged, Mr. Hamdan is identified as a co-conspirator in charges issued last month against two other Guantanamo prisoners accused of helping Mr. bin Laden run his terrorist network. A Pentagon spokesman declined to discuss the specifics of Mr. Hamdan's case prior to charges being filed.
Should Mr. Hamdan stand trial, Cmdr. Swift is preparing a double-barreled defense, attacking the procedures and evidence while arguing that his client was a hired hand ignorant of Mr. bin Laden's schemes.
Cmdr. Swift says he will contest statements extracted from other prisoners as coerced. Detainees who don't talk to interrogators "get up to 30 days in solitary [confinement]," he says, something especially onerous to Muslims used to a communal culture. Moreover, he adds, posters at Guantanamo promise "Freedom through Cooperation," a strong hint that detainees should give incriminating statements. "What is the incentive not to tell them exactly what they want to hear?" he asks.
Pentagon officials say Guantanamo prisoners are treated humanely and that the U.S. complies with an international treaty banning torture. But they acknowledge that interrogators can use such harsh techniques as forcing prisoners to stand in uncomfortable "stress" positions and depriving them of sleep.
Cmdr. Swift says his client left Yemen in 1995 or 1996 for Tajikistan, where he sought to aid Islamic fundamentalists fighting the former Soviet republic's post-Communist government. But "weather and politics" closed the border, Cmdr. Swift says, and a dejected Mr. Hamdan planned to return home when he was offered a job as a driver. The client: Mr. bin Laden.
At the time, Mr. bin Laden was known to many Muslims as a wealthy benefactor who had aided the Islamic resistance to the Soviets in Afghanistan in the 1980s. To Mr. Hamdan, a steady paycheck from such a boss sounded better than returning to impoverished Yemen, Cmdr. Swift says.
Cmdr. Swift declines to say how much Mr. Hamdan knew about Mr. bin Laden's affairs. But he argues that the terrorist kept his plans secret. Moreover, he says, "Osama bin Laden didn't just blow people up. One of his appeals -- and one of our problems in catching him -- is that he also does things like build roads and set up agricultural co-ops and stuff like that."
Many people had dealings with Mr. bin Laden, he adds, "from [Mohammed] Atta who is sitting there beside him planning a horrific attack, to the guy in town who may have sold him a tea beverage in Kandahar," says Cmdr. Swift. "Are you guilty because you liked or worked for a bad man?"