Transcript: Testimony by Lt. Joshua Fryday on closing Guantanamo – July 24, 2013

Partial transcript of the testimony by Navy Lt. Joshua Fryday, Judge Advocate General, Office of the Chief Defense Counsel for Military Commissions, on “Closing Guantanamo: The National Security, Fiscal and Human Rights Implications.” The hearing was held before the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights on July 24, 2013.

…I am grateful for the opportunity to share my experiences with you.

While the Office of the Chief Defense Counsel for the Military Commissions is aware that I am testifying today, my statement is based on my own personal experience and knowledge. It does not reflect the views of my office, the Navy, or the Department of Defense.

Over the past year, I’ve been assigned under military orders to serve as military defense counsel for individuals detained in Guantanamo Bay, Cuba.

As you know, there are 166 remaining. I represent one of them, and his name is Mohammed Kamin.

People often ask me if it’s difficult representing a detainee in Guantanamo. I am proud to live in a country where my commander-in-chief can order me to perform such a challenging mission. My colleagues – prosecutors and defense lawyers alike – are patriots who love their country. We are taught in the military to perform our duties with honor, courage, and commitment, and I am here today doing my duty to talk to you about my client’s indefinite detention in Guantanamo Bay.

My client has now been detained by our government for over 10 years. After five years of detention in 2008, he was charged with material support for terrorism. In 2009, the military commission process halted and the charges against him were dismissed.

A recent DC Circuit Court decision – Hamdan v. United States – held that material support for terrorism is now no longer a crime that he or anyone detained prior to 2006 can ever be tried for in a military commission.

I am not here today to ask for sympathy for a man I was ordered to represent, but I would like to tell you a little bit about him.

He’s an Afghan citizen with a third grade education received in a Pakistani refugee camp his family went to after fleeing the Russian invasion. He was roughly 22-years-old when he was detained, although he doesn’t know his exact age. He has a son who was six months old when he last saw him in 2003. And he has never been charged with harming anyone either Afghan or American.

Had my client been brought to federal court instead of Guantanamo, he could have and would have been tried years ago. Since 9/11, nearly 500 terrorists have been convicted in federal courts. In the Guantanamo military commissions, six.

Now, after a decade of detention with no crime he can be charged of, he sits in Guantanamo imprisoned indefinitely.

My client has asked me how is it possible for my government to detain him for 10 years without proving he committed a crime.

I tried my best to explain that there are people in our government who believe under the laws of war we are allowed to detain people indefinitely until the war is over.

He then ask me, “You will no longer be at war with Afghanistan after 2014. Can I go home then? Or does this war never end?”

As a service member and an attorney sworn to uphold our Constitution and our strong legal conditions, I don’t have good answers for him.

If my client is guilty of a crime, he should be tried and given his day in court.

So I thank this committee for your willingness to listen to his story today – for as long as he is in Guantanamo, no judge or jury ever will.

We are a nation of laws and people of principle. Denying my client a trial and detaining him indefinitely is at odds with our oldest values.

On the eve of our Revolutionary War, we held trials for British soldiers responsible for the Boston Massacre. Our founding father, John Adams, served as one of the British soldier’s defense lawyers.

But today, even basic due process in Guantanamo is denied, including the opportunity to confront your accusers, be presented with evidence against you, and have access to counsel.

Our threats are real. Criminal and terrorists should be prosecuted and jailed. Our enemies must know that we will bring them to justice no matter what.

But as a people guided by principle and the rule of law, we can do better than indefinite detention.

For centuries, American service members have fought and paid the ultimate sacrifice to protect the fundamental values that define our nation. We strive to always be faithful to those values, especially when it is most challenging to do so.


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