Sun 6 Jul 2008
The military charges that back in 2002, a certain Mohammed Jawad tried to kill two of our soldiers in Afghanistan by throwing a grenade at them. Mohammed, 16 years old, was captured and flown to the detention camp at Guantanamo Bay, Cuba. Mohammed has been locked up in solitary confinement since that time, not yet charged with any crime. (Nor has he been provided, until recently, access to counsel or any recourse to challenge his detention.)
No doubt, the gallant administrators and soldiers at Guantanamo (once our executive branch suspended habeas corpus and article three of the Geneva Conventions for the detainees) found it amusing to engage in alternative interrogation tactics while attempting to garner intel from this terrorist kingpin.
Did Mohammed Jawad throw that grenade? Probably. It is a war over there, after all. The salient point is that he was only a kid and if he was attacking us, we should have shot him then. Or, at least, captured him, interrogated him and then tried him for murder. Holding him without end should not have been an option. Is there any actionable intelligence that can be gathered from a teenage combatant who has already spent many years alone in prison?
Let me be clear, unlike the ACLU, I do not bristle at these words from the president, “As a matter of policy the United States Armed Forces shall continue to treat detainees humanely, and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.” It is obvious that there are some very bad people who wish the US much harm. Because of that, I do not argue that there is never a case for the use of less-humane treatment to extract vital, timely intelligence. However an acknowledgment that such situations might conceivably exist is not the same as a wholesale torture permission slip. Those incidents ought to be the of the extremely rare, ticking-bomb variety.
Enter Maj. J. R. David Frakt, Jawad’s newly military-appointed attorney. Frakt’s closing argument (June 19th, 2008) in favor of dismissal of Mohammad Jawad’s case contains some well crafted arguments. Here is an excerpt:
America is a nation founded on a reverence for the rule of law. We should never forget that when we take an oath to enlist or be commissioned as an officer in the United States Armed Forces, we do not swear to defend the United States, we swear “to support and defend the Constitution of the United States against all enemies, foreign and domestic.” The Oath of Office for the President contains similar words: “I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” Tragically, under the undeniably heavy pressure to defend Americans from terrorist attack, some of our military and civilian leaders lost sight of their obligation to defend the Constitution as well.
Under the Constitution all men are created equal, and all are entitled to be treated with dignity. No one is ‘”undeserving” of humane treatment. It is an unmistakable lesson of history that when one group of people starts to see another group of people as “other” or as “different,” as “undeserving” as “inferior,” ill-treatment inevitably follows. In the Global War on Terror generally and in the detention camps of Guantanamo especially, the detainees were seen as “terrorists,” as “the worst of the worst” something less than human, and were treated accordingly. After six and a half years, we now know the truth about the detainees at Guantanamo: some of them are terrorists, some of them are foot soldiers, and some of them were just innocent people, caught in the wrong place at the wrong time. But the detainees at Guantanamo have one thing in common “with each other, and with us” they are all human beings, and they are all worthy of humane treatment. We should also never forget that no one in Guantanamo has been convicted of a single crime and that even in these deeply flawed military commissions, they are entitled to a presumption of innocence…
February 7, 2002. America lost a little of its greatness that day. We lost our position as the world’s leading defender of human rights, as the champion of justice and fairness and the rule of law. But it is a testament to the continuing greatness of this nation, that I, a lowly Air Force Reserve Major, can stand here before you today, with the world watching, without fear of retribution, retaliation or reprisal, and speak truth to power. I can call a spade a spade, and I can call torture, torture.
Today, Your Honor, you have an opportunity to restore a bit of America’s lost luster, to bring back some small measure of the greatness that was lost on Feb 7, 2002, to set us back on a path that leads to an America which once again stands at the forefront of the community of nations in the arena of human rights.
Sadly, this military commission has no power to do anything to the enablers of torture … All you can do is to try to send a message, a clear and unmistakable message that the U.S. really doesn’t torture, and when we do, we own up to it, and we try to make it right.
I have provided you with legal authority for the proposition that you have the power to dismiss these charges. I can’t stand before you and say that you are legally required to do so. But I can say that that it is a moral imperative to do so, and I ask that you do so.
Please know that I don’t wish to cast aspersions on our patriotic festivities– to the contrary– I’m convinced that this great country is what she is today, in part, because of a persistent willingness to face and resolve the issues which confront her. It is through candid, honest and intelligent dialog that change can be effected. Far from a liberal cynic, I am very proud to be American.
Click for the full text of Major David Frakt’s closing arguments.