The Advocate

How can you defend a man where no law exists?

by Doron Taussig

war on terror

This story delves into the intricate legal niceties and transmuting jurisdictional standards that face a man caught in the lawless void of military tribunals in an era of stateless war. From a technical standpoint, it's an ugly situation. But don't worry. Ten months ago, the detainee's lead defense counsel knew as much about these things as we do.

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Thomas Bogar is a tax attorney from Abington. It wouldn't be quite fair to call him an "ordinary" tax attorney. At 43, he's the sort of guy who wakes up at 5:30 to go to the gym, is married to a cardiac surgeon, and is quick to tell you his "Martindale-Hubbell" rating. (Met with a blank stare, he explains that this means he's a pretty good lawyer). When it comes to, say, getting the amount of back taxes owed the state of Pennsylvania by a big national company drastically reduced, not many are better.

Bogar is also a military man: a former member of the Navy and a lieutenant colonel in the Army Reserve. About a month after 9/11, he was doing "very high-end transactional work" in Wilmington, and received an e-mail telling him to report to his local base within 24 hours. He was sent to Fort Drum to do legal assistance; a couple of years later, he was mobilized again, this time to Fort Stewart, where by raising questions about prosecutorial tactics, he persuaded a judge to sentence a man facing over 30 years for allegedly molesting his own daughter to just six. "Actually a very good result," he says. "Military trials are very, very difficult [for the defense]. ... I gained a reputation as a zealous advocate."

Bogar was still taken aback when, after being activated for a third time in early 2006, the Office of Military Commissions informed him that he would be representing a man detained at Guantanamo Bay. "I asked them, 'Why'd you pick me?'" he says. "I'm a transaction lawyer."

Indeed, his appointment has been met with some skepticism: One ACLU blogger, writing about the Zahir trial, snarked, "Even though Bogar doesn't speak or understand Persian, does that matter if he understands the intricacies of like-kind exchanges?" But his selection appears to have been in good faith. Bogar was picked by the lead defense counsel for the Office of Military Commissions, respected Marine defense attorney Col. Dwight Sullivan, because Bogar is, as Bogar himself puts it, a "real lawyer."

"I intend to win," Bogar says.

But he'll have his work cut out for him. "Prosecutors didn't pick the defense attorneys," but, he concedes, "If they had, they may have picked me."

It's not just that the law being practiced at Guantanamo Bay is closer in kind to criminal defense than transactional work. It's not even that Bogar has no experience in constitutional or international law. It's that practicing law in Guantanamo Bay is a bit like complaining to referees in street ball. There is no law in Guantanamo Bay, no concrete set of rules by which every individual must abide. If Bogar is to succeed in defending his client, what he really needs to figure out is how to bring law to a lawless place.

Bogar's client is Guantanamo Detainee No. 753, or Abdul Zahir, an Afghan who was arrested in his home country in the summer of 2002. Early last January, Zahir became the tenth of several hundred Guantanamo detainees to be charged by "military commissions," a set of tribunals established by the Bush administration to try alleged war criminals that were not under the jurisdiction of either U.S. law or international agreements. He was accused of being a member of al-Qaida, translating for a Taliban leader, distributing money for al-Qaida and the Taliban, and, most significantly, of being involved in a grenade attack on Western journalists in spring 2002. (A prosecutor has since said the evidence does not suggest he actually threw the grenade, but was a part of a conspiracy.)

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In testimony before a 2004 Combatant Status Review Tribunal, a hearing to determine whether there was evidence to hold people as enemy combatants, Zahir painted himself as a regular-guy hotel employee who had been unknowingly caught up in his boss's affairs. "I worked for [Mr. Hadi, an alleged al-Qaida member] as a peasant or employee, not a member of the group," he said. "It was very simple employment and had no political affiliations."

Throughout the hearing, the detainee managed to project an image of simplicity. He observed that he had no military training, and, when asked his opinion on America, said, "I don't have enough education to understand all of the political groups and differences, or what is to hate America or not to hate America. ... From the information I have, I know the United States Constitution, democracy allows freedom of religion, and for this reason, this type of government does not interfere with our religion of Islam."

As for his involvement in a grenade attack, Zahir called it "a complete lie." He had told American soldiers the names of the attackers, he said, and had mistakenly been implicated. His testimony ended with a request for his case to move forward and not "stop in one place."

In February 2006, shortly after being appointed Zahir's counsel, Bogar flew down to Guantanamo to meet his client. His illusions of Cuban food and mojitos were quickly shattered. Gitmo was a dry, dead place — "a couple of restaurants, nothing much," he says, somehow managing to seem not callous, but charmingly optimistic, as if he really assumed a military detention camp might be a pleasant place.

For Bogar's visit, Zahir had been moved from Camp 4, where he lived communally with other detainees, to Camp Echo, where he was placed alone in a small, square room split in two by a cage wall: In one half, there was a bunk, toilet and shower. In the other were a table and chairs, where Bogar, his interpreter and his client met.

The accused has been described in news reports as "diminutive" — about 5 foot 6 inches and slight, with a beard. Perhaps opinions on Zahir rendered by Bogar should be taken with a grain of salt, but the lawyer says this doesn't begin to capture the nonthreatening nature of the man's presence.

"From the media, I was expecting him to be like Hannibal Lecter, like the mouthpiece and this big, scary guy. And he's nothing like that at all. ... [He's a] very quiet, passive guy."

Over the course of a week, Bogar and his client met every day from 9 to 11:30 a.m. and from 1 to 5 p.m. Zahir's arms and legs were unshackled. Bogar spent much of the time trying to earn his client's trust.

"Put yourself in his shoes. He sees a military guy in uniform, a white guy. He's been questioned for four years ... by these guys in this uniform. ... I didn't want him to think I was interrogating him."

A few years prior, Bogar had represented Philadelphia's Faridah Ali, the wife of a West Philly imam, in a tax case, and the lawyer offered to have the imam write a letter vouching for Bogar. Zahir declined. Instead, the client interrogated his attorney.

"He asked where I'm from, am I married, do I have any children. I said, 'No, but my wife and I would like to have children someday,'" Bogar recalls. "And one of the great things he said was ...'Well, I'll pray for you.'"

Bogar once ran for school board as a Republican, because he believes, he says, in the "Reagan ideal" of small government. And from the delicate, diplomatic way he treats political questions, he may have greater ambitions. But since visiting Zahir, he has not voiced opinions that would be acceptable in the National Review. He says he's concerned about torture, about showing the world we can give the detainees a fair trial. And he questions the government's decision to prosecute his guy.

"I like to use the analogy (of) organized crime," the attorney, whose cell phone rings with the theme from The Godfather, says. "[The 10 who have been charged] are not the captains. They're more like the guys [who] can't even be made, because they're not even Italian. [Zahir] was serving as an interpreter."

Being mobilized "kills" your practice, Bogar says. He knows attorneys who, like people in many other professions, have left jobs to serve and found no work when they returned. Bogar was comparatively lucky: He was financially comfortable, had a wife who was also a professional and no kids. He received his assignment, took an apartment in D.C. and dug in.

The first month, he immersed himself in the history of military law: He studied tribunals from World War II back to the days of Lincoln, took a "Law of War" class, and enrolled in courses in international law at George Washington University. Then, after meeting his client, he began work on motions and discovery. But with everything he tried to do, he ran into the same problem. In law, every decision is based in some way on a decision that came before it, or at least a clear set of guidelines. And the military commissions had no precedents.

"The rules are the foundation on which we stand," Bogar says. "It was like standing on a bowl of Jell-O."

In April, Bogar and Zahir joined the first military war crimes tribunal the U.S. had participated in since World War II. It was just a pretrial hearing, and there were some snafus — the government failed to provide the defendant an English-to-Persian translator, for instance -— but it gave Bogar an opportunity to voir dire (question) the presiding judge, Marine Col. Robert S. Chester. Bogar asked Chester what sources of law would apply in the military commissions, and Chester responded by listing several possible sources. Bogar found this frustrating.

"If you argue one thing, and you cite a great case, the response is gonna be, well ... that's not commission law," he says. But "there's no precedent in commission law, the commission law is what we say it is. So how can you make an argument? It's this very circular argument that they try and spit back at you, and it's very illogical."

Still, Bogar thought the first hearing went relatively well. Of greater concern was the condition of his client. About a week before the hearing, Zahir had been moved from Camp 4, the communal camp where he reported receiving "very common treatment," to Camp 5, where he lived in isolation for 22 hours a day. A sliding door to his cell was occasionally opened for prayer, and two hours a day he was allowed recreation, during which he wouldn't necessarily see another Afghan. He was very distressed about it.

Bogar filed a petition to move the detainee back, but he wasn't very confident it would happen. For one thing, a similar motion from another detainee had been shot down. For another, the three arguments he constructed — one about international guidelines for pretrial confinement, one about the control of the courtroom and one about his attorney-client relationship — were not clearly supported by precedent, because, of course, there was no precedent. A couple of weeks after filing, Zahir instructed him to withdraw the motion and focus on preparing for the actual trial.

This included, in late spring, a trip to Afghanistan. Bogar flew into Kabul and took a Black Hawk to Abdul Zahir's native Logar Province. "The whole area was like living in the past," he remarks of the dirt roads and mud homes. "They still live the way they did back in the time of Muhammad." He and his interpreter sought out the haji, or village elder, who received them warmly and introduced them to his client's brother, with whom Abdul Zahir had been detained at Bagram before officials decided there was reason to hold just one of them. (Zahir's wife was out of town at a funeral, though Bogar wouldn't have been able to interview her without a female interpreter.) Both the brother and the haji were put on the record as character witnesses, and Bogar went on to Bagram, where he collected information on his client's detention and case, which he says is classified. On the way out, he got to fly on a general's jet, which made a "tactical takeoff straight up in the air.

"It was cool," he says. "Something you don't do around here."

Bogar returned feeling good about his case. "We have some very good facts," he says. But about a week after his return, his situation changed drastically. On June 29, the Supreme Court ruled in Hamdan v. Rumsfeld that the military commissions trying Zahir were illegal. Everyone involved in the process had been proceeding with the understanding that its constitutionality was being challenged. Now the charges that were the basis for their work had evaporated, and a whole new framework would have to be built. Meanwhile, Bogar's client remained in Camp 5, detached from other people, from reality, from everything but daily prayers.

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"His attitude had totally changed," Bogar says of Zahir in July. "He was despondent. He doesn't want to see anybody. ... All his faith is left in God's hands."

Once the government finds a legal way to try the Guantanamo detainees, Bogar expects Zahir and the other nine previously charged will be prosecuted again. In October, Congress passed, and President Bush signed, the Military Commissions Act of 2006 to "facilitate bringing to justice terrorists and other unlawful enemy combatants through full and fair trials by military commissions, and for other purposes." But the government has yet to publish the regulations associated with that law, and once it does, it will be subject to legal challenges.

There are other ways, besides defense in front of a commission, that Zahir's case could play out. An attorney from Vermont named Bob Gensburg, who has been working on the Zahir's case within the U.S. judicial system (Bogar is his military lawyer), has filed a habeas corpus petition asking the government to "show cause" for Zahir's imprisonment. Several courts have ruled that the government must satisfy detainees' habeas requests, but Gensburg doubts this will happen until a judge just holds the habeas hearings.

Bogar has also enlisted the help of an attorney named Kermit Roosevelt (the great-great-grandson of Teddy Roosevelt), a constitutional scholar at the University of Pennsylvania, to consider challenging Abdul Zahir's detention on constitutional grounds. Roosevelt observes that Guantanamo begs "the cutting-edge question in constitutional law: Who can claim rights under the Constitution?" The Bush administration's position, according to Roosevelt, is that a man from, for example, China, can be arrested by the United States and held in prison for the rest of his life without once appearing before a judge. Bogar prefers not to discuss legal strategy. But should he successfully challenge this position in a lower court, the name "Zahir" could be the next "Hamdan." This is an appealing thought for Bogar: Hamdan's lead counsel was Lt. Cmdr. Charles Swift, who was stationed in Guam in the Navy and went to the same law school at the same time as Bogar, and Bogar seems amicably envious of his peer.

While all these legalities are teased out, however, Zahir remains locked up, possibly where he deserves to be, but also possibly the victim of a grave error. He has three children he has not seen, spoken to or heard from since mid-2002, and has intimated that he's losing interest in the judicial process. His attorney remains characteristically upbeat: "What we have is the eyes of the world," Bogar says when asked whether the military might just disregard even his strongest arguments, making his work for nought. But no one can file motions on Zahir's behalf without Zahir's consent. So right now, before he convinces the world of anything, Thomas Bogar may simply have to convince his client to share his faith in the law.

(doron@citypaper.net)