“Some of the difficulties … are unavoidable. They are by-products of the circumstances that we find ourselves in,” said Frakt, director of the Criminal Law Practice Center at Western State University College of Law. Others “are man-made difficulties being placed in our way by people who either don’t care how hard our jobs are or, in some cases, who intentionally seek to make them as hard as possible, if not impossible.”
Now in his early 20s, Jawad was a teenager when he was apprehended in Kabul, Afghanistan, in 2002 after allegedly throwing a grenade that injured U.S. soldiers. He is the only charged detainee who is not alleged to be affiliated with either Al Qaeda or the Taliban and who isn’t accused of any crime of terrorism, said Frakt.
Frakt said that Jawad was raised in a refugee camp in Pakistan after his father was killed in the war between Afghanistan and the former Soviet Union. Homeless, he was recruited at a mosque for the job of clearing land mines in Afghanistan. He was taken to a mountain training camp under these false pretenses and “drugged and brainwashed” until he was “firmly under the control of handlers,” who took him to Kabul. There, Jawad was “given more drugs, and then given hand grenades and told to throw them at any American soldier [he] could find,” said Frakt. His client denies throwing a grenade at all, Frakt said, adding that even doing so — “throwing, a hand grenade at soldiers during a war” — would not amount to a war crime.
Jawad was captured by Afghani police and interrogated by high-level officials “who coerced a confession by force and threats,” then turned over to American forces, said Frakt. In American custody in Afghanistan and then Guantanamo, Jawad was subjected to isolation, routine beatings, and physical and psychological torture, he said, showing obvious emotion.
Some of the “unavoidable” challenges in representing Jawad included gaining the young man’s trust, given his prior experience with others wearing American uniforms, and overcoming language and cultural barriers — exemplified by his long detention, Frakt explained. “In Afghanistan, if you’re arrested for a crime, the trial is held the same day. You’re either guilty or you’re not, and then it’s over. Obviously there are some disadvantages to a system like that, but … at least you know your fate. You aren’t locked up indefinitely.”
Logistics are among the most basic of the “man-made” challenges, said Frakt, whose office is at the Pentagon. “If we want to see our clients we have to give 14 days advance notice and hope we can get on a plane to Guantanamo. There are limited interview slots and times — and that’s if they agree to see you.”
Noting that many “honorable” prosecutors have resigned from their posts with the Office of Military Commissions, Frakt alleged that the military commission process has been tainted by “political meddling,” administrative obstacles, and grievous violations of prosecutorial ethics.
Prosecutors have not complied with requests for discovery, even failing to comply with judicial orders to turn over evidence in a timely fashion, and have banned military witnesses at Guantanamo from talking with defense counsel, said Frakt.
The military commissions’ convening authority, responsible for approving all defense expenditures, has summarily dismissed his requests for an expert psychological evaluation of his client’s mental state after years of confinement, torture, and abuse, and for a doctor to review Jawad’s medical records covering the period of his detention. The convening authority even refused to cover travel expenses for Duke Law professor Madeline Morris who served as an expert witness on the law of war in Jawad’s case last August, said Frakt.
The government’s practice of classifying most of the evidence against the detainees “creates an incredible difficulty,” Frakt continued. “It means I can’t discuss it with my client — he doesn’t have clearance. How do you defend somebody when you can’t even talk about the evidence that supposedly the government has against them?
“It’s not a fair system. It’s a scam, it’s a sham,” declared Frakt. Still, he supported students’ involvement with Duke’s Guantanamo Defense Clinic, saying it offers tremendous assistance to the under-resourced military defense team, as well as hope.
“Whenever there’s a war, there’s always an overreaction,” he said. “When Americans are afraid, they are willing to sacrifice their civil liberties and set aside the Constitution. There’s a pendulum. It swings away and gradually comes back to equilibrium and the rule of law is restored. … We can’t just give up. We have to show that there are people who still will stand up for the rule of law.” He also pointed to “small victories” such as the Supreme Court’s decisions in Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, and Boumediene v. Bush.