No Win

A Navy Lawyer Cries Foul on Gitmo’s Kafkaesque Legal System

A decorated JAG defense counsel is blowing the whistle on the extreme government lawlessness and absurd evidence he says he’s been fighting at Guantanamo.

09.26.14 9:45 AM ET

Lt. Commander Kevin Bogucki is a Navy JAG officer serving as defense counsel for enemy combatants detained at Guantanamo. He has made it his mission to expose what he calls the “Kafka-esque absurdity” of the military justice system put in place after the 9/11 attacks.

The location itself, a no-man’s-land free from the oversight of U.S. courts and protections for defendants that Americans take for granted, and the detainees, described by then-President George W. Bush as “the worst of the worst,” led Bogucki to expect that one of his clients, described as the head of supplies for al Qaeda at its base in Tora Bora, “must really be something. Instead I met a man the opposite of what I expected,” he told The Daily Beast.

 “He was gentle and courteous even though his love of the U.S. had faded over time,” said Bogucki. “He said, ‘It’s not enough for you to represent me, you have to believe me.’ I’m not the person my confession says I am.” Fouad al Rabiah had crossed into Afghanistan with relief supplies along with another aid worker just hours before U.S. bombs fell. With the border closed, he couldn’t return home to Kuwait, messaging his employer that he would be delayed.

Rabiah speaks perfect English; he had studied engineering in the States, and he thought the Americans would help him. “But nobody wanted to listen; they were convinced everybody was guilty of something,” says Bogucki. President Bush had issued an executive order to hold everyone captured on the battlefield. “So his next stop was Guantanamo Bay, where he sat for eight years subject to unimaginable and indescribable abuses I can’t tell you about because they are classified,” says Bogucki.

At Guantanamo, his U.S. captors learned he went by Abu Abdullah al Kuwaiti, which happened to be the same name as the head of the al Qaeda supply depot at Tora Bora where Osama bin Laden had evaded capture. “If you looked into his background for 30 seconds,” says Bogucki, you would have seen this was a case of mistaken identity. Rabiah had worked for Kuwaiti Airlines for 20 years without missing a day, taking several weeks off each year for his humanitarian work. His elder son was named Abdullah, Abu Abdullah means “father of,” and al Kuwaiti means of Kuwait.

“It’s like saying John’s father from New York. There are lots of John’s fathers,” says Bogucki. “I went to the D.C. District Court, showed how he’d been taught his confession, and he would get punished if he got any detail wrong.”

In a scathing 65-page opinion, the court ordered Rabiah released and in December 2009 he was returned to Kuwait, where Bogucki visited him in a Kuwaiti military hospital, which he called “almost surreal for both of us to see him back at home after an eight-year nightmare.”

How did this experience affect his client’s view of America? “Kuwaitis have a lot of money,” Bogucki replies. “He likes to say that every year he bought a brand new Cadillac, but he’s not buying anymore. He’s become a Lexus guy.”

Of the four clients Bogucki was assigned to represent, Rabiah’s story had what you might call a happy ending, or at least an ending. The others have not fared as well in this theater of the absurd. “The more guilty you are, the better off you are,” says Bogucki. “The more innocent you are, the worse your situation is. If the government has no evidence against you, they won’t take you to court. You stay in Guantanamo forever.”

As an example of this upside-down approach, Bogucki cites the bin Laden driver who was captured with surface-to-air missiles in his trunk. A jury convicted him but sentenced him to just six months above what he had already served, “so he is back home in Yemen with his family,” while Bogucki’s client, Fayiz al-Kandari, a young Kuwaiti student, languishes in Guantanamo with virtually no prospect of release.

Hailing from a respectable family, Kandari had traveled to Afghanistan to do charity work, digging water wells, because his mother had cancer “and he thought if he did something good God would smile on his family,” says Bogucki. He was captured by Afghans responding to leaflets distributed by the U.S. promising $5,000 per combatant. Bogucki includes the leaflet in a Powerpoint presentation he has developed. It shows a scary-looking Arab man and a bag of money with an arrow in between, nothing subtle about it.

Because Kandari didn’t have a passport, his captors at Guantanamo concluded he was an al Qaeda recruit. Bogucki went back to the prison where he was held initially and found his passport. That meant he was high-ranking al Qaeda, U.S. authorities said, because only they can keep their passports. “He was sunk either way,” says Bogucki. “If he had a passport, he was al Qaeda; if he didn’t, he was super al Qaeda. This is the kind of absurdity you see across the board.”

Bogucki has visited with Kandari’s parents in Kuwait—“a sweet, quiet father and a mother constantly devastated over the loss of her son. They try to help in any way they can,” but can’t even hire a Kuwaiti attorney because a detainee can only be represented by a U.S. attorney. “These men who have no reason at all to trust Americans have no other choice for representation even if they pay for it,” says Bogucki.

When President Obama announced soon after his inauguration in 2009 that he would close Guantanamo, “there was literally a conga line at Guantanamo,” says Bogucki. Almost six years later, 150 men remain, with six currently on trial. With a new generation of extremists demanding government and media attention, there is no urgency to address this human backlog. Kandari was one of dozens of men last year who went on a hunger strike. “He looks like half the man he was, a skeleton,” says Bogucki.

Kandari is still in Gitmo because the standard of review has changed. It no longer looks at whether a detainee is affiliated with al Qaeda. “Now the only thing they consider is, ‘Do you presently pose a threat?’ They look at the level of anger during your confinement. Whether you were an enemy of the U.S. before is almost insignificant,” Bogucki explains. “Now after 12 years of confinement, if you harbor hostile feelings against the government that held you, that’s sufficient basis for holding you even if you may have done nothing.”

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Since Bogucki won release through the U.S. District Court for a client in 2009, the court in a subsequent opinion developed a threshold of “conditional probability”—that if none of the government’s evidence against an individual is sufficient, a look at the totality can lead to a conditional probability that a detainee is more likely than not al Qaeda. Bogucki explains it this way. “The fact that someone is Arab doesn’t prove anything; that they’re in Afghanistan doesn’t prove anything; that they’re in Tora Bora doesn’t prove anything. Add the three up, combined they create the conditions that meet the government’s burden.” 

The two “low-value” detainees Bogucki described last week to a small group at the American News Women’s Club in Washington are able to occasionally speak with family or loved ones through video conferences arranged by the International Committee of the Red Cross. “High-value” detainees are permitted no contact with family. “They’ve fallen into a black hole,” says Bogucki.

Muhammad Rahim al Afghani was a multilingual translator for al Qaeda and a member of the group’s inner sanctum. “He’ll probably never go to trial because the government has no evidence he committed anything like a war crime,” says Bogucki. “Under the Military Commissions Act, he can stay in the status of indefinite detention for life. There’s no chance to negotiate a political solution because the fallout from releasing a high-level detainee is too much for the administration to even entertain.”

Bogucki’s other high-value detainee is Ramzi bin al Shibh, one of the plotters of the 9/11 attacks and the alleged head of the al Qaeda cell in Hamburg. He is on trial along with three others, and Bogucki is blowing the whistle on government practices he says are not fair play. Despite a top-security clearance and almost 20 years on active duty, Bogucki discovered the government was bugging the table in the courtroom where he sat, and that there was a microphone disguised as a smoke detector in the room where he met with his client. In April of this year, the FBI tried to recruit a member of the Guantanamo defense team as an informant. “In any courtroom in the U.S., this would be so offensive as to have the case dismissed,” he says.

In the Catch-22 world of post-9/11 military justice, rules of basic fair play and attorney-client privilege are sacrificed in the name of national security. Even so, Bogucki says this is the best job he’s ever had. “I feel like I’m fighting for the best principles of American justice instead of what it’s devolved into,” he says. Dressed in his Navy uniform with ample medals displayed, he says proudly, “I am in the tradition of John Adams, which feels like I am boasting.” With no sign that Guantanamo will be closed any time soon, this theater of the absurd could have a long run.