October 28, 2011

Panel to discuss military commissions, war crimes

by Pete Rosenbery

David Frakt

CARBONDALE, Ill. -- As the arraignment nears for Abd al-Rahim al-Nashiri, suspected in the deadly 2000 bombing attack on the U.S.S. Cole, a panel discussion next week at the Southern Illinois University School of Law will focus on international justice, and the nation’s use of military commissions in war crimes cases.

“The Changing Face of International Justice:  Military Commissions, Guantánamo Bay and Beyond,” is at 5 p.m., Thursday, Nov. 3, in the law school courtroom in the Hiram H. Lesar Law Building Courtroom at Southern Illinois University Carbondale.  The panel discussion is free, and open to the public.  A reception in the law school’s formal lounge after the panel discussion is also open to the public.

Media Advisory

Reporters, photographers and news crews are welcome to cover the panel discussion featuring David J.R. Frakt, at 5 p.m., Thursday, Nov. 3.  Associate Professor Frakt will also be available for interviews from 1 to 4:30 p.m. that day.  To make arrangements for interviews or for more information on the event, contact Alicia Ruiz, the law school’s director of communication and outreach, at 618/453-8700.

 The SIU School of Law, the Southern Illinois chapter of the United Nations Association of the U.S.A. (UNA-USA), and the law school’s International Law Society, a registered student organization, are event sponsors.

One the panelists, David J.R. Frakt, a lieutenant colonel in the U.S. Air Force Judge Advocate General’s Corps Reserve and an associate professor at the Andreas School of Law at Barry University in Orlando, Fla., will provide a unique perspective.  Frakt took a military leave from teaching from April 2008 to August 2009 to serve as lead defense counsel with the Office of Military Commissions, and represented two Guantánamo detainees facing war crimes and terrorism charges before U.S. military commissions.

“He will provide a very unique perspective from inside Guantánamo Bay as a defense counsel,” said Lucian E. Dervan, an assistant professor at the SIU School Law.  “This is something that few have been able to hear up to this point.”

Frakt said he will “discuss several fundamental flaws with the military commissions that have contributed to the very low number of successful prosecutions of Guantánamo detainees.”  Those issues include the “effort to invent new war crimes, the use of coerced testimony, the dysfunctional prosecution and the prevalence of detainee abuse.” Frakt said.

Dervan will moderate the discussion, and provide a brief history of international justice and military tribunals from the Nuremberg War Crimes Trials in the aftermath of World War II, the ad-hoc criminal tribunals in Rwanda and the former Yugoslavia, the international criminal court, and U.S. military commissions. 

Cindy Galway Buys, law professor and director of the law school’s international law programs, will present a historical perspective of U.S. military commissions and Guantánamo Bay.  Frankt will discuss what he sees are five fundamental flaws with military commissions, and Christopher W. Behan, an assistant professor at the law school, will provide response.  Behan is a former military prosecutor and military criminal defense attorney with the U.S. Army Judge Advocate Generals Corps.

“This panel presentation will provide a unique opportunity for our students, faculty, and the public to hear from some scholars who have been involved and interested in the legal issues surrounding the Guantánamo situation,” Dean Cynthia L. Fountaine said.  “This presentation will look at the issues from a variety of perspectives and, thus, will be a thought provoking experience for all who attend.  I am grateful to our participants, and hope that this will be an enriching experience for our entire community.”

There will also be an opportunity for audience questions after the discussion.

“The timing of the presentation is really remarkable,” Dervan said.

Al-Nashiri’s arraignment, set for Nov. 9, “signals the ramping up of the military commission’s process,” Dervan said.

“It’s very timely that (assistant) professor Frakt is going to be here to tell us about his experiences with the military commission, and give us that insider’s perspective on what the commissions are really all about and what we might expect from the al-Nashiri prosecution.”

According to reports, prosecutors accuse al-Nashiri, a Saudi-born, self-described millionaire, of planning the October 2000 bombing on the U.S. Navy warship that killed 17 American sailors and wounded 40. Al-Nashiri has been in custody since his capture in the United Arab Emirates in 2002. Initial charges of murder and terrorism charges that were dropped in 2009 during an overhaul of the military commission process were re-filed in April, and this is the first case since President Barack Obama ordered military trials to resume at Guantánamo.  Prosecutors plan to seek the death penalty upon conviction.

“What happens with military commissions says a lot about our nation, a lot about our military, and a lot about our treatment of those who fall into our hands who may have committed war crimes and violations of international law,” Behan said.  “It’s going to be intriguing to hear from Dave (Frakt). He’s a very credible voice in this area and we are very excited to have him.  He has successful experience as a defense counsel with the military commissions.”

The military commission originally conceived by President George W. Bush was a “tremendous mistake” that mirrored a criticized structure, procedure, and evidentiary rules in use during World War II, Behan said.  The Military Commissions Act in 2006, and amended in 2009, is “a very good solution for dealing with the trials of these detainees,” he said.  The new laws give military commissions “much more robust procedures and protections” than initially provided in President Bush’s original order, Behan said.

Military commissions have a military judge, who presides over the hearings and makes evidentiary rulings, similar to the work of a federal judge.  A military panel with a minimum of five current military officers serves as a jury, which will deliberate to a verdict.  The panel will also determine the sentence should a defendant be found guilty, Behan said.  Military lawyers serve as both prosecutors and defense attorneys, and detainees also have the right to representation from civilian attorneys.

In addition to participating in the panel discussion, Frakt will also participate in the Dean’s Colloquium Series for law school faculty earlier in the day, in addition to being a guest lecturer in Dervan’s class on international criminal law.

The colloquium series “is an opportunity to bring in scholars from across the country and internationally to speak to the faculty,” Fountaine said.

Frakt said his faculty lecture, “Defending Detainees and the Constitution at GTMO,” will be on his successful representation of detainee Mohammed Jawad before the military commission at Guantánamo and in federal court proceedings seeking Jawad’s release.

Jawad was slated to be the first child soldier ever to be tried in a military tribunal for war crimes, and Frakt said he will discuss how the case against Jawad “fell apart during pretrial litigation, ultimately resulting in the dismissal of charges … and release home to Afghanistan after nearly seven years of detention” in 2009.  The case raised several fundamental Constitutional issues, he said.

Frakt was also the sole defense counsel for Ali Hamza al Bahlul, one of only two military commission trials completed during President Bush’s tenure in office.

From 1995 to 2005, Frakt was on active duty with the U.S. Air Force Judge Advocate General’s Corps (JAG) before transitioning to the Air Force Reserve and becoming a law professor.  Prior to his current work at Barry University’s Andreas School of Law, Frakt was director of the criminal law practice center at Western State University College of Law, and an adjunct professor at Georgetown University Law Center.  Frakt earned a bachelor’s degree from the University of California, Irvine, and his law degree from Harvard Law School.