Sunday Forum: Eight years later, still waiting for justice
I received military orders last year directing me to report to Washington, DC, to defend a Kuwaiti detainee at Guantanamo named Fayiz al-Kandari. Prior to accepting these orders, I assumed Guantanamo Bay was full of al-Qaida operatives and others involved with the Sept. 11 attacks on our nation. I have since learned that is not the case.
My career has taken me down many paths, some of which were totally unexpected. I have served in the U.S. military for two and a half decades -- 14 years in the Army infantry and 11 and counting in the Air Force as a judge advocate general.
As a JAG attorney, war crimes trials and investigations are not uncharted territory for me. Among my prior military assignments, I was charged with prosecuting in Baghdad more than 100 cases involving more than 170 individuals who had attacked coalition forces in Iraq. I have investigated various crimes in Bosnia.
My current assignment representing Fayiz, however, may be the most challenging and eye-opening case in my long military career. As a military lawyer, I am duty bound to defend Fayiz every bit as zealously as I defend American soldiers. But I must admit that, at first, a part of me assumed Fayiz and the other detainees at Guantanamo probably deserved to be there.
The more I investigated Fayiz's case and examined the government's evidence against him, my initial assumptions quickly changed.
Fayiz likely was sold to U.S. forces by Afghan bounty hunters; he wasn't captured on the battlefield. The evidence that has kept Fayiz locked up without charges for more than seven years is razor thin and questionable at best. Despite being subjected to harsh treatment and "enhanced interrogation techniques," Fayiz's story has remained consistent. When he was captured in Afghanistan, Fayiz was doing charity work that his religion requires, known in Islam as Zakat.
If the U.S. government believes my client is guilty, it should give him a trial. If the government is not sure, it should allow him to challenge his detention before a federal judge. But what the government cannot do -- in a country that believes in the rule of law -- is imprison a man on a whim and throw away the keys. If that's what our country has come to, then there's a bitter irony here. We are fighting for democracy abroad while abandoning our democratic principles at home.
It has been, and continues to be, difficult to earn my client's trust when he knows that the government that appointed me to represent him is the same government that has accused him of committing a crime yet prevents him from challenging his accusers. It is the same government that will supply the prosecutor, judge and jury should he ever be tried.
Representing Fayiz al-Kandari is not about being a liberal or a conservative, a Democrat or a Republican. It is about upholding the principles of our country and fighting for the fundamental rights that many of us take for granted -- the right to see evidence against us, the right to a speedy trial, the right to challenge our accusers.
In Iraq, when evidence was lacking in a case, I chose not to prosecute. To have done otherwise would have wrong, un-American. In Bosnia, I saw first hand what happens when law breaks down and when might equals right, when law yields to prejudice and when prejudice becomes law.
I am hopeful that Fayiz will some day get his day in court and that a judge will find insufficient evidence to justify his continued detention. After nearly eight years in prison without charges, after enduring harsh treatment and cruel interrogation, my client is suffering. So, too, are the rule of law and our fundamental principles of democracy.
Each time I travel to Guantanamo Bay to visit Fayiz, his first question is, "Have you found justice for me today?" This leads to an awkward hesitation.
"Unfortunately, Fayiz," I tell him, "I have no justice today."
First Published July 26, 2009 12:00 am