[Marxism] Critics of Tribunals Gain Unlikely Allies: Lawyers in Univorm

Walter Lippmann walterlx at earthlink.net
Thu Mar 18 06:28:32 MST 2004

(It certainly sounds from this that these attorneys
are taking their mandate very seriously, which is a
good thing. Certainly the defendants in custody in
US-occupied Guantanamo will need all the help they
can get under the circumstances they're in. At the
same time, it's worth noting that the US doesn't
permit outside church and human rights groups such
as the Guantanamo Human Rights Commission to attend
such sessions or speak to any of the inmates there.)

(The Guantnamamo HRC website: 

March 18, 2004

Critics of Tribunals
Gain Unlikely Allies:
Lawyers in Uniform

JAGs Mount Spirited Attack
On System for Trying
Guantanamo Detainees
Bin Laden Hires a Driver
March 18, 2004; Page A1

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

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

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 3½ 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?"

Write to Jess Bravin at jess.bravin at wsj.com2


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