Terrorists should be tried in court
By David Frakt, Special to CNN
Editor's note: David Frakt is a professor and director of the Criminal Law Practice Center at Western State
University College of Law, a lieutenant colonel in the U.S. Air Force Reserve JAG Corps, and a former lead defense
counsel with the Office of Military Commissions. He also previously served as a military prosecutor and special
assistant U.S. attorney.
(CNN) -- Suppose that shortly after 9/11, when it became clear that Osama bin Laden and other members of al
Qaeda were responsible for the attacks, President Bush had made the following announcement:
"Those responsible for these attacks are cowardly, vicious murderers, and we will pursue them to the ends of the
earth to capture them. They are not warriors, they are criminals, and they will be treated accordingly. And once we
catch them, we will bring them back to the United States and put them on trial right there in lower Manhattan so that a
jury of 12 fair-minded New Yorkers can decide their fate."
Such an announcement would not have been controversial in the slightest and undoubtedly would have been met
with widespread approval. After all, putting terrorists on trial in federal court is how we always dealt with terrorists,
including the first group of murderers who tried to blow up the World Trade Center.
But President Bush didn't say that. Instead, on November 13, 2001, he announced that those responsible would be
tried in military commissions, and declared that "it is not practicable to apply in military commissions . . . the principles
of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts."
Like many Americans, I did not adequately consider the implications of that statement at the time. More of us should
have challenged the president to explain why it was impracticable to apply regular principles of law and rules of
evidence to these criminal suspects.
In hindsight, it appears likely that the president's real concern was that he knew he had authorized the CIA to detain
suspected terrorists in secret prisons and subject them to harsh interrogation methods. Those grossly abusive
techniques would taint potential statements and pose a challenge for future criminal trials.
Whatever his motivations, the president's decision to jettison the civilian courts in favor of military commissions was a
grave misjudgment that diminished our stature in the world and ultimately accomplished nothing.
As I witnessed as a military defense lawyer at Guantanamo Bay, the military commissions of the Bush administration
were, indisputably, a catastrophic failure. Not a single person responsible for any major terrorist attack was tried. The
countless millions of dollars and man-hours devoted to the commissions yielded only three convictions of minor
figures, two -- David Hicks and Salim Hamdan -- who received token sentences and were then released.
Neither of these defendants was convicted of a traditional war crime, but of providing material support to terrorism, a
crime more appropriately tried in federal court. Since 9/11, many Americans have been tried and convicted of this
same offense in federal court and received considerably longer sentences than Hicks or Hamdan.
The third detainee who was convicted, Ali Hamza al Bahlul (whom I was assigned to represent but who refused to be
defended), received a life sentence. Having sat through the trial, I'm quite confident the prosecutors could have
achieved the same outcome in federal court.
The convictions of Hamdan and al Bahlul are now on appeal. Because of the many flaws in the law and procedures
under which these men were tried, it is by no means certain that their convictions will be upheld.
In November 2009, Attorney General Eric Holder made the decision that President Bush should have made eight
years earlier, announcing that the 9/11 suspects would be tried in federal district court. This was more than just a
symbolic repudiation of Bush era policies -- after eight years of failed efforts to prosecute the men in military
commissions, during which hundreds of other terrorists had been tried and convicted in federal court, it was the only
Unfortunately, Holder also announced that other detainees would be tried in military commissions, creating a two-
tiered system of justice. So far, the attorney general has failed to offer any principled basis for which defendants are
sent to which forum, leaving many with the disturbing impression that the decisions are based on political, rather than
legal, considerations. The latest news reports suggesting the administration is close to reversing itself has only
reinforced this view.
It's true that the Military Commissions Act of 2009, the third version of the military tribunals, is a substantial
improvement over the previous version of the law, which has hastily passed in 2006 in response to the Supreme
Court's ruling that the original military commissions created by executive order were unconstitutional.
Indeed, "the principles of law and rules of evidence" that generally apply in U.S. criminal courts now largely apply to
military commissions, ironically proving false President Bush's original justification for the creation of the military
commissions -- the alleged impracticability of applying such principles and rules.
Yet, even with improvements, the commissions are still a completely untested criminal justice system. The
implementing regulations for the new law have yet to be published. The secretary of defense has failed to appoint a
new Convening Authority or a new Chief Defense Counsel for the military commissions. The first hearings under this
law have been plagued by confusion and delay, and there's every reason to believe that will continue. How much
longer should the families of the 9/11 victims have to wait for justice?
Perhaps there are sound practical and logistical reasons why the 9/11 trial should not take place in lower Manhattan;
that is debatable. But there are no valid reasons why the 9/11 trial should not take place in a federal court under
federal law. Let's show the world what distinguishes Americans from our enemies: our reverence for the rule of law
and our respect for human rights and due process, even for those we despise.
Let the alleged 9/11 co-conspirators have their day in court under fair, time-tested and internationally accepted laws,
rules and procedures. If they are guilty of the appalling crimes of which they are accused, the capable prosecutors of
the Justice Department (who have far more experience than their military counterparts) will prove it.
The opinions expressed in this commentary are solely those of David Frakt.
Find this article at:
Former lead defense counsel with the Office of Military Commissions
Posted: April 29, 2010
New Manual for Military Commissions
Disregards the Commander-in-Chief,
Congressional Intent and the Laws of War
Late Monday, on the eve of Omar Khadr's suppression hearing, the first major military
commission hearing at Guantanamo since President Obama took office, the Defense Department
released the new Manual for Military Commissions. The Manual is the primary implementing
regulation for the Military Commissions Act of 2009, containing detailed procedural guidance,
rules of evidence, and a penal code with explanations of the offenses which may be prosecuted in
these military tribunals.
On the whole, the 2009 MCA is substantially fairer than the 2006 version of the law and the new
Manual also contains some significant improvement over the previous version. The standards for
admissibility of coerced statements and hearsay evidence, for example, now are much closer to
the standards which apply in general courts-martial and federal court. There is, however, some
very troubling language in the new Manual relating to the proof required to convict for certain
offenses, which undermines the Obama Administration's claims of respect for the law of war and
adherence to the rule of law.
On May 21, 2009, in an important national security speech at the National Archives President
Obama explained his rationale for seeking to amend the MCA and keeping military commissions
available as one option for trying detainees, "[D]etainees who violate the laws of war. . .are best
tried through Military Commissions. Military commissions. . . are an appropriate venue for
trying detainees for violations of the laws of war." As Assistant Attorney General David Kris
explained to the Senate last July, "The President has made clear that military commissions are to
be used only to prosecute law of war offenses."
What President Obama may not have realized, or at least neglected to mention in his speech, is
that very few detainees are actually suspected of violating the laws of war. Last summer, I was
invited to testify before a Congressional Subcommittee considering proposals to reform the
military commissions and I tried to explain this point: "The Obama administration has talked
about military commissions being a suitable forum for law of war offenses, and I agree with that.
They are a legitimate forum for law of war offenses. But what gets left out of the debate is that
there are virtually no law of war offenses to be tried." While I encouraged Congress to limit
military commissions to true war crimes, I warned the lawmakers that if reformed military
commissions "are limited to law of war offenses. . .there is not going to be anybody to try."
Unfortunately, in enacting the Military Commissions Act of 2009, Congress did not strictly limit
the jurisdiction of the military commissions to law of war violations and included non-war
crimes like "Providing Material Support to Terrorism," a crime which even the Justice
Department was forced to admit was not a traditional law of war offense. The Secretary of
Defense, in publishing the new Manual for Military Commissions, has done Congress one better,
attempting by regulation to broaden the scope of a real war crime to include conduct that does
not violate the law of war in order to ensure convictions where they would otherwise be
doubtful. In so doing, Secretary Gates has subverted the will of Congress and undermined the
President's law of war justification for military commissions.
Under a 2003 DoD Instruction defining the crimes eligible for trial by the military commissions
created by executive order of President Bush, the President attempted to create a new war
offense called "murder by an unprivileged belligerent."
The theory underling this offense was that any attempt to fight Americans or coalition forces was
a war crime. This status-based definition conflated two different concepts - unprivileged
belligerents and war criminals. Under Article 4 of the Geneva Prisoner of War Convention it is
clear that while a member of an organized resistance movement or militia may be an
unprivileged belligerent (because of not wearing a uniform or failing to carry arms openly, for
example) he may still comply with the laws and customs of war, so not all hostile acts committed
by unprivileged belligerents are war crimes. Attacks by unprivileged belligerents which comply
with the law of war (in that they attack lawful military targets with lawful weapons) may only be
tried in domestic courts. In Iraq, for example, insurgents who try to kill Americans by implanting
roadside bombs are properly arrested and tried before the Central Criminal Court of Iraq as
common criminals. Attacks by unprivileged belligerents which violate the law of war, such as
attacks on civilians or soldiers attempting to surrender, or using prohibited weapons like poison
gas, can be tried in a war crimes tribunal.
In the 2006 MCA, Congress rejected the status-based crime of Murder by an Unprivileged
Belligerent, replacing it with the related, but more narrowly defined, "Murder in Violation of the
Law of War." The statute made it plain, as the name implies, that this offense applied only to
killings that violated the law of war. Despite this clear distinction, military commission
prosecutors argued in three separate cases convened under the 2006 law that "Murder in
Violation of the Law of War" really was just "Murder by an Unprivileged Belligerent" by
another name, explicitly claiming that the mere status of a person as an unlawful combatant
rendered any hostile acts committed by him violations of the law of war. Three separate military
judges in three commissions (Salim Hamdan, Mohammed Jawad and Ali al Bahlul) rejected the
government's argument, each ruling that the mere status of unprivileged belligerency was
insufficient to prove a violation of the law of war. (I was the lead defense counsel in both the
Jawad and al Bahlul cases). Congress was well aware of these rulings when it enacted the 2009
MCA -- I specifically mentioned them in my testimony -- but left the definition of "Murder in
Violation of the Law of War" unchanged, reflecting their comfort with these judges'
interpretation of the crime.
Now, the Department of Defense has once again attempted to revive this discredited
interpretation of the offense with a slight twist. In the new Manual the following official
comment has been included in explanation of the offense of Murder in Violation of the Law of
War: "an accused may be convicted in a military commission. . . if the commission finds that the
accused engaged in conduct traditionally triable by military commission (e.g., spying; murder
committed while the accused did not meet the requirements of privileged belligerency) even if
such conduct does not violate the international law of war." Astoundingly, according to the
Pentagon, a detainee may be convicted of murder in violation of the law of war even if they did
not actually violate the law of war. It is gratifying that DoD has finally acknowledged officially
that status as an unprivileged belligerent --"merely failing to meet the requirements of privileged
belligerency" -- does not equate to a violation of the law of war, an argument that I made
repeatedly before the commissions and in my congressional testimony. But it is deeply troubling
that DoD has nevertheless opined that a non-law of war violation can still constitute murder in
violation of the law of war. The commentary also directly contradicts the elements of the offense
which specifically include a requirement that the prosecution prove beyond a reasonable doubt
that the killing was in violation of the law of war. Although comments in a regulation do not
have the force of law, the inclusion of this commentary is clearly intended to send a message to
the military commission judges that they are not to let the law of war get in the way of a
It is no coincidence that this provision was published on the eve of the recommencement of the
Omar Khadr commission. Khadr, a Canadian who was just 15 when he was captured in 2002, is
charged with murder in violation of the law of war. Khadr allegedly threw a hand grenade which
killed a U.S. soldier, but there is no evidence that he violated the law of war in doing so and in
court filings the prosecution has admitted to relying solely on his status as an unprivileged
belligerent to prove this element of the offense.
The absurdity of claiming that no actual violation of the law of war is required to commit murder
in violation of the law of war severely undermines the Administration's claims of commitment to
adherence to the rule of law and their pledge to use military commissions only to prosecute law
of war offenses. The Administration's alleged devotion to transparency was also undercut by the
release of the new manual. The DoD rejected the plea of the National Institute for Military
Justice and other civil liberties groups for a public comment period on the draft manual and
chose to publish the document as a final product. The obvious contradiction between the
legislative intent and the Pentagon's interpretation of this offense demonstrates precisely why a
public comment period was needed.
The Administration's decision to press forward with the first war crimes trial of a child soldier in
modern history is unfathomable. That the Administration would then try to ensure a conviction
by attempting to rewrite the law to create a new war crime is reprehensible.
David Frakt is Associate Professor of Law at Western State University College of Law and a
Lieutenant Colonel in the U.S. Air Force Reserve JAG Corps. He previously served as lead
defense counsel with the Office of Military Commissions. His views are his own and do not
reflect the views of the Air Force or the Department of Defense.
In Praise of the Gitmo Bar
Thursday 11 March 2010
by: David Frakt, t r u t h o u t | News Analysis
A number of prominent conservative lawyers have now come to the defense of the Department
of Justice attorneys who previously represented detainees or advocated for detainee rights.
While their eloquent defense of "[t]he American tradition of zealous representation of unpopular
clients" is appreciated, their letter overlooked one of the basic fallacies of the original and
continuing attacks on these lawyers. Aside from the obvious point that lawyers who advocate on
behalf of persons with odious viewpoints do not necessarily share the views of the clients they
represent (think about the ACLU fighting for the right of Nazis to march in Skokie, Illinois), it
must also be emphasized that to represent a detainee is not necessarily to represent "a
terrorist" at all, much less "al-Qaeda."
As an important study by Mark Denbeaux at Seton Hall has shown, according to the evidence
relied upon by the US as a basis for detention, most detainees at Guantanamo had little or no
connection with al-Qaeda. Only a small fraction of the detainees have even been alleged, much
less proven, to bear any responsibility for any acts of terrorism. Recently, after an exhaustive
year-long review, the Obama administration determined that there was sufficient evidence to
charge only 35 detainees with any crimes - less than 5 percent of the total of 774 detainees who
have been held at Guantanamo. Before President Obama took office, the Bush administration
voluntarily released two-thirds of the Guantanamo detainees after determining there was simply
no legal basis to continue to hold them; dozens more had been cleared for release and were
awaiting a country to take them in. Of the approximately 240 detainees remaining when
President Obama assumed office, allegedly "the worst of the worst," two-thirds of them have
now been released or cleared for release.
Of course, a small fraction of detainees at Guantanamo actually are al-Qaeda. But most of the
truly committed al-Qaeda detainees, like my former client, Ali Hamza al Bahlul, refused to be
represented by an American lawyer, either military or civilian. (Mr. al Bahlul repeatedly
attempted to fire me, and I was present when Mr. al Bahlul ordered his habeas attorney,
authorized by Mr. al Bahlul's family to file the petition, to drop the case.) Even accepting that
there may be a few actual al-Qaeda terrorists represented by American lawyers, if one were to
review the hundreds of thousands of pages of legal documents filed on behalf of all the
Guantanamo detainees by American lawyers over the last eight plus years, one would be hard
pressed to find a single sentence that could be construed as pro al-Qaeda or pro-terrorism, in
the sense of endorsing the al-Qaeda ideology or endorsing terrorist methods.
So, what exactly have the "pro-terrorist," "pro al-Qaeda" lawyers been fighting for?
In essence, the Gitmo Bar, as we detainee lawyers proudly refer to ourselves, fought for the
restoration of the rule of law in the treatment of detainees in the "war on terror." The Bush
administration's staunchly held position was that Guantanamo was a legal black hole where a
detainee could be held indefinitely, without charge, without being informed of the basis for their
detention and without any ability to challenge the basis for detention. Detainees had no right to
consult counsel and no right of access to any court, anywhere, ever. Indeed, they were not
protected by any law at all. The Gitmo Bar fought back against these positions which were
inconsistent with international law, the US Constitution and cherished American values. The
bulk of the litigation on behalf of detainees has focused on three core principles:
First, the Gitmo Bar fought for humane treatment for all detainees and against torture, cruelty
and abuse. Humane treatment is the baseline guaranteed by Common Article 3 of the Geneva
Conventions for all persons detained in war, and is a basic human right. The Bush
administration said Common Article 3 didn't apply. The Supreme Court said otherwise.
Second, the Gitmo Bar fought for the right of detainees to be informed of the basis for their
detention and to have an opportunity to prove their innocence in a court of law. The Supreme
Court has repeatedly affirmed that detainees had this right.
Third, the Gitmo Bar fought for the right of the few detainees facing criminal charges to be tried
"by a regularly constituted court affording all the judicial guarantees which are recognized as
indispensable by civilized peoples" as guaranteed by the Geneva Conventions. The Supreme
Court agreed that detainees are entitled to nothing less, invalidating the original kangaroo court,
military commissions devised by the Bush administration.
After nearly seven years of fighting for the restoration of these basic rights to detainees, a few
lucky members of the Gitmo Bar have now had the opportunity to prove their client's factual
innocence. In 33 of 44 cases to get to a habeas corpus hearing on the merits in federal court,
the detainees have won (my client, Mohammed Jawad, was one of the winners.) That's right; in
75 percent of cases a federal judge determined that the government had failed to prove by a
preponderance of the evidence (more likely than not) that there was a lawful basis for detention.
Had the Gitmo Bar not fought for the restoration of the rule of law, who knows how much longer
long these 33 innocent men would have been locked up?
The legal fight over the rights of detainees has been the defining human rights battle of our
generation. The hundreds of dedicated members of the Gitmo Bar, for no pay, and at great
personal sacrifice, have fought this battle and won. Their victories are not victories for the
terrorists; their victories are victories for us all.
Professor David Frakt is director of the Criminal Law Practice Center at Western State
University College of Law, a lieutenant colonel in the US Air Force Reserve JAG Corps and a
former lead defense counsel with the Office of Military Commissions. He also served as habeas
counsel for a Guantanamo detainee, Mohammed Jawad, who was released in August 2009.
TUESDAY, MAR 9, 2010 12:10 ET
Confessions of a terrorist sympathizer
A volunteer attorney for Guantanamo detainees comes clean: You got me, I'm shilling for
BY DAVID FRAKT
Salon/Wikipedia (Joshua Sherurcij)
What you might have seen: Last Thursday night, Rachel Maddow exposed a group of al-Qaida
sympathizers who had served as lawyers on behalf of Guantánamo detainees, revealing that these pro-
terrorist attorneys have not only taken over the Department of Jihad (previously known as the
Department of Justice) but have even infiltrated our armed forces. One of the military lawyers identified
on the broadcast was Air Force Reserve Lt. Col. David Frakt, who served as a defense lawyer for
Guantánamo detainees in 2008 and 2009.
What you missed : On Friday, Lt. Col. Frakt agreed to an exclusive interview with Maddow. But shortly
after the interview was taped, federal agents, sporting a secret warrant from the FISA Court, forced
their way onto the set and confiscated the video footage, citing national security. Fortunately, one of the
technicians secretly recorded the interview on his iPhone, which is how Salon obtained the following
Maddow: Lt. Col. David Frakt is a JAG officer in the U.S. Air Force Reserve and a law professor in
California. Professor Frakt, welcome back to the program.
Frakt: Happy to be here, Rachel.
Maddow: Is it true that you’re a terrorist sympathizer?
Frakt: Yes, Rachel. That’s why, in 2008, I volunteered to represent detainees at Guantánamo. The chance
to actually be a U.S. government-paid spokesperson for al-Qaida under the guise of "promoting fairness,
justice and the rule of law" was just too delicious an opportunity to pass up. I figured the military
commissions at Guantánamo would be the perfect soapbox for me to espouse my terrorist ideology.
Maddow: And did your position as a defense counsel give you the opportunities that you were seeking?
Frakt: Not exactly, Rachel. The whole experience was a bit disappointing. Initially, things looked very
positive. The first detainee I was assigned to represent, Ali Hamza al Bahlul, was a member of Osama bin
Laden’s inner circle and a very committed al-Qaida member. In fact, he has been frequently referred to as
the al-Qaida minister of propaganda. So, I thought I’d hit the jackpot.
Maddow: So why didn’t it work out?
Frakt: Well, sadly, Mr. al Bahlul wouldn’t cooperate. He refused to let me represent him in court or speak
on his behalf. He said he didn’t trust me because I was an American military officer. In fact, he basically
boycotted the proceedings and ordered me to do the same. Can you believe that?
Maddow: That must have been very frustrating for you. Didn’t you also represent another client, a
Frakt: Yes, I did represent another young Afghan named Mohammed Jawad, but he was a big
Maddow: How so?
Frakt: Well, as it turned out, he wasn’t a member of al-Qaida, or even the Taliban. In fact, he wasn’t a
terrorist at all. He didn’t even know any terrorists! The only real consolation with Mohammed was that
the United States had tortured him, so I was able to exploit that for substantial propaganda value, but
otherwise, he was a dud.
Maddow: What happened to him?
Frakt: Unfortunately, after I proved that his confession was the product of torture and that he was
innocent, he was ordered released by a federal judge. I’m pretty sure she is a terrorist sympathizer as well.
In fact, your viewers may be interested to learn that all the judges on the Federal District Court bench in
Washington are part of one big al-Qaida sleeper cell.
Maddow: How do you know this?
Frakt: Well, it’s obvious, Rachel. What other explanation is there for the fact that they’ve granted habeas
corpus petitions and ordered the release of 33 detainees out of the 44 cases they’ve heard?
Maddow: Could it be that the government didn’t have sufficient evidence?
Frakt: Don’t be naive, Rachel. They’re obviously fellow al-Qaida sympathizers. The only reason they don’t
let them all go is they don’t want to blow their cover.
Maddow: I see. One final question, professor Frakt. In your previous appearances on the program, you
were in uniform; why aren’t you in uniform today?
Frakt: Well, after I actually won a case at Guantánamo, the Pentagon didn’t want to give me any more
cases, so I was forced to leave active duty and return to my civilian position as a law professor.
Maddow: And how is that going?
Frakt: It’s not so bad. At least in this position, I can indoctrinate the impressionable young minds of the
next generation of lawyers with my pro-terrorist views, while getting paid to churn out pro-terrorism
"scholarship." Academic freedom has its advantages, although I’m obviously opposed to it for those with
differing viewpoints. If I didn’t have to grade papers, this would be the perfect job. Fortunately, I have
teaching assistants for that.
Maddow: Well, we appreciate your taking the time to be on our program this evening.
Frakt: Any time, Rachel. I’m always glad to have any opportunity to advance my pro-terrorist agenda.
David Frakt is a lieutenant colonel in the Air Force Reserve who has defended Guantanamo detainees
Mohammed Jawad and Ali Hamza al-Bahlul in front of military commissions.