[Editor's note: Revised and updated for the Web.]
Since the twin towers collapsed in flames on the 11th of September, 2001, a state of fear and unease has inundated America’s psyche as the nation has turned its ear to Washington’s power players and the national news media for the latest on the fight against terror, tragically awaiting the conflict’s next victims. Framed by the Bush administration and its conservative allies in Congress as a battle between civilizations, the vaguely-defined global war has taken on epic proportions as the president steadfastly warns of the dire consequences of defeat in wake of bloody ethnic strife in Iraq and the latest videotaped dispatch from the ever-elusive al-Qaeda figurehead Osama bin Laden.
But amidst heated debate over whether to maintain a heavy United States military presence in the Middle East, Congress’s polarized political gamesmanship, and an upcoming presidential election featuring Iraq front and center, one U.S. Army Reserve officer says a defining aspect of the war on terror has gone largely ignored, in part due to what he calls the war’s underlying “ideological cause and effect.”
Save for Republican presidential hopeful Mitt Romney’s remarks during a recent Fox News-televised debate that “we ought to double Guantanamo” and the occasional news story and call for the detention camps’ closure, the federal government’s use of military commissions on detainees in the naval base on U.S. soil in Cuba has taken a back seat in many Americans’ minds as they process the more outwardly apparent effects of Islamic extremism at home and throughout the world.
An Ames High School graduate of the class of 1985, Army Reserve Major Tom Fleener joined the force out of school, receiving an honorable discharge about four years later. He then attended Hendrix College in Arkansas, where he served as an ROTC cadet before obtaining his law degree from the University of Arkansas at Little Rock. After law school, he became a judge advocate general and spent eight years in Fort Hood, Texas, Germany, and Fort Leavenworth, Kansas, during which time he gained experience as a defense lawyer, prosecutor, and tax attorney. After leaving the Army in the summer of 2003, Fleener moved to Wyoming and worked full time as a federal public defender with part-time Army Reserve obligations.
As of this August an inactive duty officer, Fleener has spent the better part of the last two years in an unlikely position: fighting for the legal rights of an accused al-Qaeda operative holed up in Guantanamo Bay. Uniquely qualified for the job with his combined civilian and military legal background, Fleener was recruited in the summer of 2005 as one of a handful of military attorneys assigned to the office of Military Commissions Defense. Fleener and company were to defend accused terrorists detained in Gitmo before military tribunals held, argued the Bush administration, outside the realm of international law as defined by the Geneva Conventions. Fleener’s client: Ali Hamza Ahmad Sulayman al Bahlul, a Yemeni national facing conspiracy charges for making a video glorifying the bombing of the U.S.S. Cole and allegedly serving as bin Laden’s bodyguard.
But it wasn’t the conspiracy charge al Bahlul wished Fleener to fight for him. In fact, the alleged terrorist didn’t want Fleener’s legal representation at all; he wished instead to represent himself, a well-recognized right in the U.S. justice system. Unfortunately for al Bahlul, the military commissions system operated under a different set of rules. “It was a trial system that was meant to adjudicate those who were already determined to be guilty at some point,” Fleener said. He called it a “kangaroo court” system, intended to fast-track detainees toward convictions, despite his suspicion that most of Gitmo’s clientele were guilty of no legally recognized crimes. “The reason why we’ve always said conspiracy is not a violation of the law of war is because if you took it to the extreme where the government was going, then everybody who fights a war, essentially every member of the armed forces, could be guilty of committing a war crime if the greater unit commits the war crime,” he said. “Did Osama bin Laden commit a violation of the law of war? Sure, he did. But that doesn’t mean every member of al-Qaeda would have committed a violation of the law of war simply because they’re a member of al-Qaeda, without doing anything else to further a crime.”
Late in 2004, the case of Yemeni Salim Ahmed Hamdan – Hamdan v. Rumsfeld – offered a glimpse of hope for Gitmo prisoners. On November 8 of that year, in an opinion written by U.S. District Court Judge James Robertson, the military commissions process was ordered stayed because it was deemed in violation of military law and no “competent tribunal” had determined Hamdan’s prisoner of war status. But in July 2005, a D.C. Circuit appellate court, whose three members included now-Supreme Court Chief Justice John Roberts, unanimously overturned the district court’s decision. As a result, Fleener said, the Department of Defense began readying cases for trial again. “From January to June 2006 there was a great deal of litigation down in Guantanamo Bay, and I was involved in the vast majority of it.” In June the Hamdan case reached the Supreme Court, which ultimately declared the commissions illegal for lacking Congressional authorization.
As anyone familiar with the stubbornness of the Bush administration’s defense of its policies could well have predicted, the SCOTUS decision, rather than predicating the end of the commissions, served as the match that ignited a fire. “There was a little bit of a lull in our office because no one really knew what to do,” Fleener said. “Do we go home? Do we actually have clients? Because none of these people are charged anymore.” During this lull, he said, the Senate and House Armed Services and Judiciary Committees began convening to debate the legal ramifications of the Hamdan case.
“The Supreme Court had said, ‘Congress, if you were to authorize [the commissions], we may have a different take on whether you can do these things,’” he said. “So, it was a Republican-led Congress, and they took the invitation to create a system to prosecute folks in Guantanamo Bay.” To fight back, Fleener, a Democrat, and colleague Bill Kuebler, a Navy Lieutenant Commander and Republican also fighting for his client’s right to self-representation, took to the Hill to educate members of Congress and their staffers about military and federal law. During this process, Fleener said, a draft of a Bush administration-devised bill was leaked in early August. “It was the very first draft of the Military Commissions Act and it was terrible. It essentially just codified the old commission system. There was no prohibition against evidence of torture; there was unlimited hearsay; you could exclude the detainee from the trial.” The draft bill also mandated compelled representation, the issue nearest and dearest to Fleener’s heart. “We got out and we just started talking to members of Congress, both on the House and the Senate side, meeting with not only our individual representatives and senators but also getting out and meeting with members of committees,” he said. “This was all novel to Bill and me because we’d had no experience with politics before.”
Consequently, the two men had to learn the ropes on the fly. They attended Gitmo hearings, focusing especially on the Armed Services and Judiciary Committees and visiting staffers of members of Congress whom they thought might respond favorably to their cause. One of those members was Senator Lindsey Graham, a South Carolina Republican who continues to serve on both committees. “Lindsey Graham recognized, because he’s a lawyer and he’s a JAG, that there are ethical problems with giving information to the lawyers and not letting them share it with the clients,” Fleener said. “He brought that up, and Bill and I immediately grabbed ahold of that and recognized that he was going to be one of the power players in this.”
Senate Bill 3930 of the 109th Congress, the piece of legislation sponsored by Republican Senator Mitch McConnell of Kentucky and ultimately signed into law as the Military Commissions Act of 2006 on October 17, posed the same ethical quandaries as the administration’s draft bill. But, as evidenced by Graham’s queries, not all Senate Republicans fell in line behind it. “John Warner and John McCain and Lindsey Graham were sort of these three rebel Republicans who came out early on against the administration’s positions on allowing the evidence to derive from torture and kicking the detainees out of the room – fundamental trial issues,” Fleener said. Still, Warner, a Virginia lawmaker, co-sponsored the bill alongside Tennessee Republican and then-Senate Majority Leader Bill Frist; and by Fleener’s own admission, Graham was among the bill’s chief proponents. Creating a sea change would be no easy undertaking.
But Fleener and Kuebler’s early recognition of Graham’s discomfort with some of the bill’s more legally questionable characteristics paid off, to an extent. “We explained to Senator Graham’s people in no uncertain terms that we were prepared as the attorneys in this process to do what we needed to do in order to advocate for our clients’ rights to fire us, and if that meant suing the president to stop him from forcing us on these guys that we were prepared to do so,” Fleener said. “His people got it, and in the final bill self-representation and the right to choose counsel were added.”
That taken into account, Fleener said the MCA remains “horribly offensive.” Left intact are provisions allowing for unlimited hearsay and admission of factually suspect and scurrilously obtained evidence. And, he said, it “still creates crimes that just aren’t violations of the law of war.” Perhaps even more chilling is the presence of the Bush administration’s trademark vagueness in the bill. “It has this incredibly broad definition of an unlawful enemy combatant, which could incorporate almost everybody who’s remotely involved in the Middle East or remotely involved in anything unsavory,” Fleener said. “In a true legal sense, ‘unlawful enemy combatant’ is the jurisdictional hook. It’s not just unlawful enemy combatant, it’s an unlawful alien enemy combatant. One of the main problems with the Military Commissions Act is that it creates a separate system of justice for aliens, and it’s not just aliens who happen to be captured in Afghanistan or Iraq. There is nothing that would stop street gangs [from being considered] terrorist organizations – the aliens involved could be taken and receive a lower level of justice than others.”
The Gitmo debate is far from over. Activist groups including the American Civil Liberties Union and Amnesty International continue to regularly condemn the heavily veiled goings on south of Florida, and presidential hopefuls from Republican Senator John McCain to the full Democratic field have promised to close the base’s detention camps. To date, only one detainee has been tried and convicted under the MCA. David Hicks, a native Australian and former Taliban infantryman, received nine months behind bars back home after pleading guilty in March to the charge of providing material support for terrorism. But according to Fleener, hundreds of other alleged enemies in the war on terror, recently among them U.S. citizen JosÃ© Padilla, charged with conspiracy to commit murder and provide material support for terrorists, have been successfully convicted in federal court. “That’s really the problem,” Fleener said. “Factually, there really isn’t much difference between any of these people. It’s just that one person may get a life sentence – Padilla – and one person gets a nine month sentence – David Hicks.”
“Which begs the question,” Fleener added, “why can’t everybody be tried in federal district court? If you can try [9/11 conspirator and French-born] Zacarias Moussaoui, if you can try Jose Padilla, why do you have this special system to try a few people?” The answer, he said, is simple. “We have, unfortunately, tortured and otherwise unlawfully coerced and mistreated the detainees that are in Guantanamo Bay to a point where the evidence that we gathered from them could very well be inadmissible in federal court. And even if it’s admissible in federal court, the government doesn’t want to have to talk about it; they don’t want to have to litigate whether it’s admissible or not.”
“The media just hasn’t done a very good job of exposing and disclosing to Americans what is taking place in Guantanamo Bay,” Fleener said. “You compare this to the international media, and the unfortunate truth is that people overseas know more about our actions in Guantanamo Bay than Americans do.” Between the logistical hell of gaining access to Gitmo and the intense secrecy of information, even journalists who do manage to make the trip often have little to report, he said. “It’s difficult. I wouldn’t want to do it. It’s terrible work fighting the government over documents. [But] I think that the only way we will be able to, as a nation, hold our leaders responsible and be an informed citizenry, especially when you’re dealing with an administration that lives in a non-transparent world, is for journalists to be the ones who push for it. There’s a wealth of information, it’s just very hard to find.”
One story that has received recent media attention stateside regards a bill introduced in May by Senator Tom Harkin of Iowa. It would relocate Gitmo detainees to Fort Leavenworth, Kansas, to restore America’s tarnished image in the international arena by streamlining detainees into the federal justice system. It’s an idea Fleener endorses, assuming it comes with periodic judicial review. He considers its cost-benefit potential. The price the U.S. is paying keeping Gitmo open, he argues, has far more damaging consequences than would the price of changing course and granting legitimacy to the process, even if it means upsetting some Leavenworth residents. “You’re going to have to bite the bullet a little,” he said. “So long as Guantanamo Bay stays open, it’s just a black eye, it’s a scar, it’s ammunition that’s used against us militarily and diplomatically.” Furthermore, contends Fleener, of the 340 detainees the independent research group GlobalSecurity.org estimates remain in Gitmo, “the vast majority still haven’t done anything wrong, aren’t a threat to Americans, and should be released back to their home country.”
If Republican and Democratic politicians are in agreement on one thing, Fleener said, it’s that a solution to the Gitmo question must be achieved by way of a Congressional fix. “It’s easy for people to focus on the Iraq war in terms of troops and bombings and deaths,” he said. “It’s just more abstract and esoteric when you have to look at the ideological cause and effect.” He said he believes that once the American public realizes the connection between America’s image in the world community and the effect it has on its ability to successfully fight terrorism, politicians will begin to feel the pressure to take a stand. “Once people realize that peace is not going to come from military action, that it’s going to come from an ideological change, then they’ll be screaming to close Guantanamo Bay, because that’s the lynchpin.”