Return to Gitmo

David Iglesias finally talks about his service as a war crimes prosecutor

The same year that his book that slammed the Bush administration’s politicization of the Justice Department hit stands, David Iglesias quietly offered his service to an institution that marked another one of President George W Bush’s controversies: the detention camp at Guantanamo Bay, Cuba.

Iglesias was among the seven US attorneys dismissed by the administration on Dec. 7, 2006, a unprecedented move that called into question whether politics had compromised the independence of the Justice Department's top prosecutors. The scandal preceded the resignation of nearly a dozen officials, including Attorney General Alberto Gonzales and White House Deputy Chief of Staff Karl Rove.

After Iglesias publicly criticized the firings, officials attacked his record as the US attorney for New Mexico by claiming he was an "absentee landlord" because of his 40-day per year service in the Navy.

Ironically, it was that service that helped Iglesias connect to the next chapter in his career bringing to justice some of the people Bush suspected of committing war crimes against the United States under the banner of al-Qaida.

Iglesias was a Navy reservist working in Albuquerque when he became aware of the new career opportunity in 2008.

Officials needed judge advocate generals (JAGs) to help prosecute enemy combatants or represent them as a defense attorneys while the detainees' cases moved through the military court system set up after the Sept. 11 attacks.

A year after the completion of his five-and-a-half years in full-time active duty service with the Navy JAG Corps, when he traded time between Washington DC and Guantanamo Bay, Iglesias has now been given clearance to talk about his experience prosecuting terrorism suspects. This story represents Iglesias' first public account about his time at Guantanamo. Looking back, he calls it the most "difficult" and "challenging" job he's ever had as a lawyer.

The challenge was rewarding, however. Iglesias says there's "no feeling I can ever recall" that matches his emotions after he led a prosecution team that secured a guilty plea from a Sudanese national. Noor Uthman Muhammed served out a 34-month sentence—on top of the nine years he had been awaiting trial—on charges that he had materialy supported terrorist organizations like al-Qaida that were engaged in hostilities against the US.

He also led a prosecution effort against Abd al-Rahim al-Nashiri, a Saudi Arabian alleged to have masterminded the bombing of the USS Cole. The case is ongoing.

Now Iglesias, 56, is in much calmer career waters than he has navigated in years. He's preparing to teach a national security course at Wheaton College in Illinois, his undergraduate alma mater where as a young man he contemplated becoming a history professor. He went on to attend law school at the University of New Mexico instead. The Santa Fe High grad is also the new director for the college's J Dennis Hastert Center for Economics, Government and Public Policy, what he calls a "mini" think tank named after the former Republican speaker of the US House of Representatives.

For Iglesias, the recent job at the naval base in Cuba was a return to Gitmo. Most of the island base seems familiar from when Iglesias first visited it in 1986, he says. That year, the Navy dispatched the 30-year-old JAG as a part of a three-member defense team to represent 10 Marines accused of assaulting a private first class during a hazing incident. (The trial became the basis for the 1992 Aaron Sorkin film A Few Good Men, with Tom Cruise's character based off a composite of the three defense lawyers). But, Iglesias says, the other side of the base, where about men are still incarcerated, has "enormously changed."

"You've got 150 or so detainees being held, and there's a large infrastructure set up to guard them," he says. "And so it's a very unusual place. I can't say I've ever been to a place quite like it."

The commissions, which are presided over by a military judge and jury, can only try foreign national prisoners in a narrow category for war crimes. Iglesias defends the military commissions, which afford some of the same protections of civilian courts, like the presumption of innocence, the right to remain silent and the right to counsel. Critics call the courts slow moving, ineffective and a waste of money. Defendants have awaited trial for nearly a decade in some cases, as the system doesn't offer a right to a speedy trial and other constitutional protections afforded by civilian courts. A federal appeals court, for instance, recently invalidated a conviction of another detainee for material support of terrorism charges.

Some argue the alleged terrorists shouldn't have some of the protections already built into the system, but Iglesias doesn't count himself in that camp. "I'm the first to concede there were significant problems with the first versions of military commissions," he says of the Bush-era tribunals. "I'm the first to concede that we lost our moral standing. But I believe that we're in a much better place in 2014 than we were in 2004. What you're seeing now is not victor's justice, it's not summary justice. It's essentially what you'd see at any state or federal court in the US."

Despite his experience as a federal prosecutor and assistant attorney general in New Mexico, Iglesias says it would not have been a deal-breaker if he had been assigned to represent the terrorism suspects in front of the military commissions.

"I didn't raise my hand and say, 'I'll only be a prosecutor,'" he says, "Given my background, that would make more sense. I had more experience being a prosecutor than a defense counsel. But I would have certainly [done] that to the best of my abilities."

Iglesias says it's history and duty that called him back to Guantanamo Bay.

SFR: You wanted to volunteer because of the historic nature of a military commission?

David Iglesias: That's correct. If you've seen the movie Judgment at Nuremberg, that was a commission, that was an international tribunal case involving the prosecution of Nazi war criminals. There's also a case called [ex parte] Quirin that went to the US Supreme Court, and it involved six Nazi saboteurs. They were prosecuted by military commissions. Interestingly enough, they were actually prosecuted within the Justice Department headquarters in Washington DC. But it was a separate court system that was set up for alleged war criminals.

So the thought was, 'We can't treat war criminals like the garden-variety criminal.' And that concept is one I think that causes a lot of readers to scratch their heads because they're used to watching TV shows and movies in which there is a methodology in prosecuting [civilian criminal] cases. Well, criminals don't typically have the backing of a government or a terrorist group. Criminals typically don't have an ideology that they're trying to put forth. So the sense is that we need to have a separate court system to try this very different type of crime. And that fascinated me from a historian's point of view—I'm an amateur historian—and I enjoyed my years in the criminal justice system.

A modern-day military commission is concerned with terrorists. In the past, a military commission—you'd be trying the Redcoats.

It's funny you say that, because the first military commissions I'm aware of involved a British major who colluded with Benedict Arnold, and this spy was caught in civilian clothes, which, if you know anything about the old rules of war, if you were caught as a spy in civilian clothes, the penalty was death. There was some due process, though: Major [John] André was prosecuted by commissions, found guilty and hung. But other more common war crime cases were in the Civil War. I think there was something in the order of 4,000 war crimes prosecutions that the North prosecuted Southern soldiers. And then smaller conflicts, such as the so-called Philippine Insurrection, there were some commissions set up for that. There were some commissions set up for the so-called Indian Wars of the late 1800s. But most people don't know anything about those. I think a lot of people who know history know about Nuremberg and the post World War II military commissions.

How was the military commission you served on different from those historic American military commissions?

Well, there's just a lot more due process built into today's military commissions. In the past, probably more so for Civil War cases, there was very little due process. There was no requirement for there to be a legally trained judge or a legally trained advocate. There was a panel of officers from the North that heard the case. But typically they were not legally trained. In my view, it was essentially summary justice—victor's justice.

Now in military commissions you have a presumption of innocence. You have the right to remain silent. You have the right to counsel. The government has to prove its case beyond a reasonable doubt—all those indicia that you expect from a legitimate court on the civilian side of things, you find in the military commissions. So what we have now in my view is a much fairer system than any time in US history.

General [Tomoyuki] Yamashita, who was in charge of the Japanese imperial army that took over Singapore and Malaysia and I believe Manila also, he was sentenced to death by an officers' panel, and that execution was carried out six weeks after he was convicted. You would never see that today in any court: state, federal or military. There's so much appellate review now, including in the military commissions, it would take years for any such sentence to be carried out.

Human Rights Watch says a recent US Appeals Court ruling shows the US military commissions are "a substandard system of justice, with new rules and charges never before contemplated by US court." What do you have to say to that?

They truly believe that, but in my experience, having worked in the state and federal side, what you're finding with Guantanamo, is it meets [civilian court] standards. It does have enough protections and a robust appellate process.

In garden variety [civilian] cases, you can prosecute in a matter of weeks or months. You could just say 'Well we should be able to do that with the military commission cases.' But you have to understand these actions involve things that happened years ago on the other side of the world in multiple languages, and are classified and held by multiple agencies. That enormously complicates everything. Human Rights Watch is saying what they truly believe, and I respect their opinions. But I think they're wrong.

But does it do any harm to America's image internationally at all, even still having Guantanamo Bay [the detention facility] open? President Obama pledged to close it.

He tried to close it down and he failed. We need to be on the higher moral ground. Some of that was lost during the years that it took to get to a fair system. When you hold somebody for prosecution, it shouldn't take 10 or 12 years to bring them to court.

There's this alternative prosecution world in Guantanamo that makes it so much more difficult to prosecute a case, in large part because so much of the evidence is highly classified. On a typical day at the commission, I'd review more classified documents than I ever did as United States attorney. And I had the same level of clearance. There's just so much more evidence, and you have to go through it. There's a process by which you can summarize it and declassify it and make it available for use in open court, but it takes a long time. So there are built-in internal hurdles in the commissions that you would never have to worry about as a federal prosecutor.

You were involved in the prosecution of Omar Khadr, the Canadian teenager. And there was actually a New Mexico connection there because his grenade killed Christopher Speer, who was an Albuquerque…

Who was an Albuquerque native, right. Omar Khadr was an interesting case. I acted in my capacity as a spokesperson. I was not a team leader or prosecutor in that case. I did sit in on several hearings for Omar's case. It was a fascinating case for several reasons. One is his age at the time of the offense. He was slightly under 16. And he pled guilty to murder and violation of the laws of war and I believe three or four other counts. But what the foreign media keyed on was his age. They characterized him—especially the Canadian media, they really followed this story very closely—as a child soldier, so we should treat him like the child soldiers in Africa, who are forced into it and should not be held morally or legally held responsible for their actions.

The job of the prosecution was to show that in fact Khadr was not coerced into it. He grew up in a family of terrorists. The US Army came into the village. They gave the villagers a chance to leave, all non-combatants to leave the area. And Khadr chose to stay. So the prosecution had to prove that he was not a child soldier in a typical sense of the word. Obviously, the fact that he was almost 16, I thought, militated very favorably for the government. Now had he been 10, I don't think he would have ever been charged. But he was close enough—there's not a bright line. There's kind of a sliding scale: Do we treat this suspect as an adult or as a child?

And the answer is that it depends. You've got to look at the totality of the circumstances. And in Khadr's case, we felt there was enough evidence to charge him as an adult. That he was morally responsible, he knew right from wrong and he just made a series of terrible choices that resulted in the death of Sgt. Speer.

Is there any alternative to these military commissions we've set up? Is this the most robust system of justice the US would be able to offer in special cases like these?

I think the alternatives have already been considered. There was some discussion years ago, shortly after 9/11, that we use the US court martial system, which would allow for the trying of enemy combatants. But I think the final factor that's weighed against it was the fact that we can't give [terrorists] the same stature as a bona fide combatant. We have to treat them as alien, unprivileged belligerents. That's a lot of words. But essentially their status as unlawful fighters should result in a different type of court system, that we can't give them the same moral standing as a bona fide belligerent: Somebody who wears a uniform, somebody that carries their arms openly and their weapons openly, somebody that reports to a command structure and somebody that obeys the laws of war. That's typically a four-part test to determine, 'Is this fighter a legitimate or illegitimate belligerent?' And these al-Qaida fighters were not in uniform. They did not report to a command structure with one person in charge of the actions. They didn't follow the laws of war. And they certainly didn't carry their weapons openly. I think the time has long past that we think of alternatives. I have a friend, there's one military justice professor at the Coast Guard Academy, he actually wrote a book that came out a couple years ago about the creation of a national security court, which would have been a good idea—had we created it 10 years ago.

What we have now I think is our best alternative. And it's not perfect any more than any criminal justice system is a perfect system, but it has enough of the requisite due-process safeguards built in so that it's fundamentally fair.

An Esquire magazine article about you came out, and the headline was, "Can One Good Man Redeem a Nation From the Sins of Guantanamo?" Four years later, what do you think about that question?

[Laughs] I don't think any one man can redeem Guantanamo. But I do think the team we have in place now is regaining the moral ground we've lost. Nothing that's going to be used in open court was derived from torture or abusive treatment.

That's an important point I want to make to readers. There was initially a lot of concern that, 'Well, of course they're going to plead guilty because we tortured them.' Well, I happen to oppose waterboarding and abusive treatment. But within the cases that you'll see tried, the evidence derived does not come from abusive treatment or torture. So I think that goes a long way in regaining the moral ground we've lost.

My criticism is that we should've been here 10 years ago, but we took so long to get to the current good law that we have. We lost a lot of time. The Hamdan v. Rumsfeld [US Supreme Court] case wasn't handed down until 2006. That was five years after 9/11. If we were to have the same law that passed in 2009 back in 2001, most of these cases would've been done years ago.

Do you think Guantanamo Bay [the detention facility] should be closed?

I'd like to say yes, but where do we send these detainees? We've got a group of approximately a third of them who have been cleared for release, they're not a threat to the United States, but no country is willing to take them. So what do we do with them?

There have been a few countries that have taken these Chinese Muslims called Uighurs. But there's still a group there. So what do we do with them? And then there's another group of people we're trying, and they'll eventually serve their time and presumably be released back to their home countries. But here's the question: What if their home country doesn't want to take them, and they become a stateless person? I mean, what do we do with them? That's a really complicated question, because we can't just drop them off at the Saudi Arabia airport if their country doesn't want to take them back.

And we have the third category, which is the most vexing from a moral and legal perspective, that is those that we have intelligence that shows they were involved in terrorists actions, but we can't use that evidence in open court, there's no way to meet our burden of proof beyond a reasonable doubt. Is it responsible to release them back? I think the answer is no. The figures I've seen of detainees that have been released showed about a 20 to 25 percent rate of recidivism. That's the most conservative number that I've seen.On the other hand, do we want to have Guantanamo open until they all die? I think the answer there is no. I think about the saboteurs from the World War II cases, several were given life sentences. But President [Harry] Truman commuted their sentences, and let them go back to Germany. So I think at some point, years out, our future president is going to say, 'In my call, this person is no longer a threat to the United States,' and send them home.

This interview has been edited for space and clarity.

Letters to the Editor

Mail letters to PO Box 4910 Santa Fe, NM 87502 or email them to editor[at] Letters (no more than 200 words) should refer to specific articles in the Reporter. Letters will be edited for space and clarity.

We also welcome you to follow SFR on social media (on Facebook, Instagram and Twitter) and comment there. You can also email specific staff members from our contact page.