Lt. Col. David Frakt 

In the shadows of Guantanamo

While the aftershocks of America's wars in the Middle East continue to reverberate, one group remains in a kind of stasis: prisoners from those conflicts held at Guantanamo Bay. Lt. Col. David Frakt was the court-appointed legal counsel for two Guantanamo detainees, ultimately securing the release of one, Mohammed Jawad, a child soldier charged by a military commission for "attempted murder in violation of the law of war" after he threw a hand grenade at a U.S. military vehicle, injuring three.

Since then, Frakt has appeared in print and on cable news shows, talking about securing Jawad's release and the dark side of America's prosecution of the War on Terror.

Frakt, who has written a chapter for Obama's Guantanamo: Stories from an Enduring Prison, will be joined by the book's editor Jonathan Hafetz and Boise attorney David Nevin (who has also defended Guantanamo detainees) at the Esther Simplot Performing Arts Academy Friday, Aug. 26, for the book's launch party and a discussion of the attorneys' experiences and observations.

What's a military commission?

These were a way of having quick justice in the field when regular civilian courts were unavailable.

How did they change after 9/11?

Instead of a U.S. service member being accused, it would be a suspected terrorist or war criminal. President [George W.] Bush ordered military commissions that did not at all look like modern courts martial. There was one rule of evidence: If it's relevant, it's in. No limitations on hearsay or coerced evidence.

How did Congress react?

Congress added a whole bunch of crimes to the jurisdiction of military crimes [in the Military Commissions Act of 2006] that were really made up. For example, they added "material support to terrorism." Well, material support to terrorism has never been a war crime—it's a domestic crime we invented. They invented war crimes and they invented a new category of war criminal.

Is that to say they invented war crimes to prosecute people?

Basically, what the Bush administration said was, "It's a war crime to fight the United States." The administration said no one was authorized to fight us.

How did this apply to your clients?

One of the clients I represented [Muhammad Jawad] was charged with "Attempted Murder in Violation of the Law of War." He was accused of throwing a hand grenade at U.S. soldiers in uniform in a combat zone. The U.S. came up with a theory that if you're not a regular member of a national military force in uniform, then it's a war crime for you to fight.

How did you secure Jawad's release?

The evidence against Jawad was very flimsy. It was a couple of alleged self-incriminating statements we weren't even sure he'd made. We knew that if he did make them he'd made them under highly coercive conditions and made a motion to suppress those statements, and the court granted that motion at the military commissions.

How have military commissions changed under President Barack Obama?

They've tightened up the rules of evidence, made it a little harder to get hearsay evidence in, but they didn't address the fundamental flaws of the commissions. They did not remove the non-war crimes. They did not remove jurisdiction to child soldiers.

What's the significance of Guantanamo?

The truth about Guantanamo is that it was created specifically as a place that was designed to be beyond the law while the Bush administration was talking about spreading democracy overseas. Guantanamo came to symbolize everything that was wrong with our approach in those years.

How do you feel about it all?

I shouldn't have achieved this notoriety because it only happened because the United States tortured a teenage boy in the middle of a war and charged him with some invented nonsense war crime based on tortured confession. It should have never happened. It's just shocking that we would torture anybody, that we'd torture children, when they're generally understood to be victims of war. It's just a shameful chapter of American history.

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