BY REBECCA AGULE
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On February 23, Major David J. R. Frakt, ’94, a Judge Advocate General, discussed his experience defending Mohammed Jawad, a young man detained at the Guantanamo Bay Detention Camp.
Following ten years on active duty in the United States Air Force JAG Corps, Frakt remained in the reserves while taking a position as an Associate Professor of Law at Western State University College of Law, where he also is Director of the Criminal Law Practice Center. Frakt had settled into his life in academia when, in 2008, he volunteered to represent Jawad, a 17-year old Afghan imprisoned at Gitmo.
Jawad was detained in 2002 and accused of throwing a grenade at American soldiers and their interpreter. Frakt began the defense with a flood of motions, countering the war crimes charges themselves and attempting to suppress statements Jawad made while in custody at the detention center at Bagram Air Base. Frakt’s motion to dismiss the war crimes charge stipulated that the grenade was used as a lawful weapon against lawful targets. The court, while agreeing it had the authority to dismiss, declined to do so, citing the existence of other remedies. Frakt did succeed in his motion to suppress, demonstrating that the inculpatory statements had been obtained through the use of torture.
These fluctuations between progress and disappointment wore down both client and attorney, as Frakt said, “It is like butting your head against a wall.” “The case has taken a toll,” he continued. “Just given the frustration and the hopelessness of the whole situation.” Frakt discussed of Jawad’s life in detention, recalling the young man’s suicide attempt as well as his subjection to the infamous “Frequent Flyer” sleep deprivation program, which shifts prisoners to new cells every few hours, preventing them for resting.
Even though Frakt believes the case will be dismissed, Jawad must again wait. President Barack Obama ’91 suspended military commissions in order to conduct an executive review of the process. Shelving the commissions put Jawad’s case on hold, and now Frakt cannot bear seeing Jawad until the release is imminent. Frakt told the audience he could not blame Jawad for saying, “Don’t come back to see me until you have good news. I’m just tired of hearing, ‘Oh, we’re making progress.'”
Despite the continual frustrations, Frakt remained committed. Looking over his career, he said, “It’s been very rewarding to have a chance to defend the Constitution. That’s what I took an oath to do, when I joined the military, but I never actually did it until now.”
Katy Glenn ’09, President of HLS Advocates for Human Rights, echoed Frakt’s sentiments. “The right to a fair trial is one of the most fundamental principles of both U.S. and international law, and its practical importance was demonstrated by Major Frakt,” she said. “With the help of a capable lawyer, Jawad was able to challenge the evidence against him and show that the case against him was far flimsier than the government contended.”
The military also assigned Frakt to represent Ali Hamza Suleiman Al-Bahlul, the Yemenite described as al Qaeda’s “PR Director” who is accused of creating films which glorified the September 11 attacks. However, al-Bahlul, who first requested a lawyer from Yemen and then sought to represent himself, refused to authorize Frakt as his counsel, so both men sat silently during al-Bahlul’s trial.
Visiting Professor Lori Damrosch, the Henry L. Moses Professor of International Law and Organization at Columbia Law School, made short remarks before Frakt opened the floor to audience questions. An upcoming issue of the Harvard Human Rights Journal will publish Frakt’s article, “Closing Argument at Guantanamo: The Torture of Mohammed Jawad,” which he distributed to the audience. ACS, the National Security and Law Association, and the Harvard Human Rights Journal collaborated in sponsoring the event.