|Thomas Bogar ’85 met with Sibghatullah Mojaddedi, former president of Afghanistan, in an effort to repatriate his client to Afghanistan.
Lt. Col. Thomas Bogar ’85 jokes about his unexpected path “from a physics major to tax law to Guantanamo Bay,” but his current position as defense attorney for a Guantanamo Bay detainee has become his crusade.
After graduating from Dickinson, Bogar joined the U.S. Navy as a radiation health officer and served in Guam, then headed to law school. Later a member of the Army Reserve, he was activated after Sept. 11, 2001, and sent to Fort Drum, N.Y., then Fort Stewart, Ga., to do criminal-defense work.
“I had always kept a hand in litigation,” Bogar says, “and I made a good reputation for myself in Georgia. When the need arose for Guantanamo Bay defense lawyers, my name came up.”
He has now been to the Guantanamo Bay detainee camp several times to visit his client, Abdul Zahir, who is primarily being held for working in Afghanistan as an interpreter for someone allegedly involved with Al-Qaeda.
Trekking to Guantanamo is no easy task. It requires many weeks’ advance scheduling and working around the few flights between Miami, Fla., and Cuba, and then there are the strict four-hour visiting times per day and numerous security clearances and searches.
On top of this, Bogar explains, “My client had a natural tendency to distrust someone in uniform, so we had to spend time getting to know each other. We probably spent 20 hours chitchatting, because you have to be comfortable with the person you are doing business with.
“People don’t want to get right down to business, and especially in that part of the world, you never start a conversation with business,” he adds.
This is where his Dickinson education came into play. “For two years I have been learning about Islamic law and Afghanistan’s history, and I am constantly needing to relate to people. To do this, you have to understand a broad spectrum of issues. I have to have things to talk about.”
Bogar recalls other lawyers at Guantanamo who “went in and started talking sternly about business.” He says that they didn’t develop a relationship with their clients first, which may have had an adverse effect.
When Bogar had his first meetings with his client, Zahir was in a communal prison and was in a sound mental state. Since then, he has been transferred to another camp where he is in isolation for 22 hours a day. Bogar says that Zahir has been “a compliant prisoner” and does not understand why Zahir was placed in isolation.
“Now he is depressed and doesn’t want to think about anything. He has given up,” Bogar says. “He sits in his cell and cries all day.”
But Zahir is not the only one in this situation. “At first I didn’t realize how important the Guantanamo Bay issue is,” says Bogar, “but now I think about the other 400 detainees languishing down there.”
Zahir has been at Guantanamo for five years, taken from his home without struggle in June 2002, and Bogar is fighting on numerous fronts for his client’s rights.
First, he is wants to challenge Zahir’s status as an enemy combatant through a combat status review petition. According to the Geneva Convention, a prisoner is considered a prisoner of war until proven to be a civilian during a hearing.
But after 9/11, the Bush administration rejected this Geneva Convention standard and created the status of “enemy combatant,” which Bogar claims is inconsistent with international law.
“The government still has to decide who is a civilian,” he says. “We were one of the earliest to file a petition in the Washington D.C. Circuit Court of Appeals and are now second or third on the list of people challenging enemy combatant status.”
Zahir’s status was determined based on “unnamed, unsigned, classified witness statements. How can my client argue against these if he is not allowed to see [the classified documents]? He can’t challenge the ruling and say that he was turned in by a rival tribe member—the system is fundamentally flawed.”
The biggest problem with these witness statements, in Bogar’s opinion, is that they come from “paid bounty hunters” capitalizing on U.S. incentives for turning in suspected terrorists. “There are a lot of tribal conflicts in Afghanistan, and if a tribal member can settle a feud with another tribe and get paid, all the better for him,” says Bogar.
Bogar has spent time in Afghanistan getting video depositions from witnesses and meeting with high-level Afghani officials. One such meeting was with Sibghatullah Mojaddedi, the first president of Afghanistan after the Soviet Union withdrew. He now heads the peace and reconciliation commission.
“The commission identifies Guantanamo Bay prisoners and asks for their release so that they can be tried in Afghanistan,” Bogar explains. The crimes that Zahir is accused of are within Afghanistan’s jurisdiction, and Bogar hopes he was successful in getting his client’s name on the commission’s list.
In all likelihood, however, Zahir will be tried at Guantanamo. Bogar hopes that the issues revolving around the combat status review hearings will move forward so that Zahir can be formally charged and his case tried.
Bogar, aware that he is defending a prisoner during a time of war, points out that the prisoners “are entitled to due process. These men are accused. The military commissions are supposed to provide them, like anyone else, with a fair trial. My job is to ensure he receives a fair trial.
“Despite what people are saying, these detainees are not all the worst of the worst,” Bogar says. He particularly worries about what more time in isolation will do to the well-being of the detainees. “That’s my issue. If I am going to carry a torch, this is what I am carrying it for.”
Bogar also is concerned with reciprocity. “If we treat these detainees like this, how are we going to be treated? We don’t need to lower ourselves to Al-Qaeda’s level.”
On a recent stopover in India, Bogar and his team were identified as military officials and searched so extensively that they worried something was being planted on them. “If we can arrest people and hold them for five years, why can’t India? It got me really nervous.” After that experience, he jokes that he’ll be “holding off of travel for a while.”
When it is all over, Bogar does not want to return to work at a private firm. Instead, he hopes to do “something in government, maybe general counsel for an agency. Maybe I will teach at an academic level, at a law school or a college.”
Bogar believes that “the education process never stops. Dickinson left in me the need to go out and learn more.”