Maj. Tom Fleener was enjoying a quiet life as an assistant public defender in Wyoming when he was thrust into the greatest legal conundrum of our times.
Fleener, an Army Reservist, became more and more outraged as he read about the military commissions set up in Guantanamo Bay for the "enemy combatants" held there. In particular, he couldn't believe the detainees were forced to accept pro bono military lawyers even when they wanted to represent themselves.
He was so outraged by this gross breach in legal tradition, in fact, that he returned to active duty just to represent Ali Hamza al Bahlul, a detainee who had asked to represent himself multiple times and been denied. Fleener planned from the start to be fired by Bahlul so that the detainee could challenge the tribunals' rules -- and, in the end, Fleener's courageous battle against the system led to change.
In today's New Times, we try to answer the thorniest question at the heart of President Obama's promise to close Guantanamo Bay within a year: What do we do with the truly dangerous men inside?
After the jump, read Riptide's interview on that subject with Fleener, who's practicing again in Wyoming and still passionate about ending the injustices in Guatanamo Bay.
Riptide: What do you think of Obama's plans to close down the detention camps at Guantanamo Bay?
Fleener: I certainly agree that Gitmo needs to be closed down. Certainly that's what I hope for, after being down there and seeing how the trials are run ... He also needs to halt the tribunal system forever.
The choice of counsel issue was my baby. It was fundamental to me and has turned out to be the key to changing the rules so these guys can represent themselves. But the commissions themselves, there's so many problems with the commissions that go way beyond rights to counsel.
Riptide: So you don't feel there's any way to change the tribunal system, to make it work for the most dangerous detainees in Guantanamo?
Fleener: No one has talked about this, but the real issue to me is much more fundamental than a right to counsel. Gitmo is so remote, you can't possibly get all your witnesses there. So there is no fair trial in Gitmo. The lawyers just fly in for hearing and fly back. So you can't ever have a fair trial in Gitmo to start with.
Once you get into some of the legal principals, it's just a terrible mess. How you can admit evidence, for example. It's appalling, the whole thing
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Riptide: So you would support trying the Guantanamo detainees in U.S. federal courts?
Fleener: Yeah, I don't remember the number now off the top of my head, but the number of successful terrorism prosecutions is in the hundreds. We have the capability to try folks here in the States. If we can try (9-11 plotter) Zacarias Mousaoui in federal court and the shoe bomber in federal court, we can try any of these guys.
If the argument is we can't try them because we tortured them, it incentivizes the government to torture guys to avoid taking them to court. If you get rid of the folks who don't need to be tried and youre stuck with the hard core number, say fifty guys, most are probably are just going to do what the detainees in Gitmo have done: refuse to do a trial and accept a sentence.
So you're really going to have maybe five difficult trials, where they accept counsel from Western attorneys and really fight the charges. ... It's always been a farce that you couldn't try them in federal court.