MARION While the nation watched the Sgt. Bowe Bergdahl-Taliban prisoner swap with intense concern, if not outrage, Marion attorney Frank Goldsmith observed the deal from a much more personal vantage point.
NC attorney defends representing Taliban prisoner
For years, he represented one of the just-freed Taliban prisoners.
Goldsmith defended his work this week with an essay in Time magazine and an interview with the Citizen-Times. Although he said he deplored the Taliban regime, Goldsmith said he believes the Guantanamo prisoners deserve legal representation and due process of law, and that many of them have been mischaracterized as bloodthirsty terrorists.
The client Goldsmith and two attorneys from Winston-Salem represented, Khairullah Khairkhwa, was part of the Taliban government when they ruled Afghanistan before 2001, serving as acting minister of the interior and a provincial governor.
What we re hearing is these labels that call them terrorists with the blood of Americans on their hands, Goldsmith said, referring to the five prisoners released. That is absolutely not true of my client, at least. There is no allegation that he spilled any American blood or ever tried to, or that he ever fought against the Americans. There s no evidence he was what anybody would call a terrorist.
A longtime advocate for civil rights, free speech and due process of law, Goldsmith said the American justice system is based on the tenet that everyone, even those perceived as despicable, receive adequate legal representation.
I think the Taliban was a despicable regime, and I have no love lost for the Taliban, Goldsmith said. But that was the government of the country. They weren t all terrorists going out and blowing things up.
Not in the exchange loop
Goldsmith, 68, and the other two attorneys he worked with on the case weren t exactly in the loop, though, when the exchange went down. President Barack Obama approved the exchange of five Taliban prisoners held at Guantanamo Bay for Bergdahl, who left his base in Afghanistan five years ago and became a Taliban prisoner of war.
None of us got any word from the government that this was going to occur, Goldsmith said. We did have some contact from high level people in the Department of Defense about three years ago. I think it was early 2011 they came forward with this idea there would be a transfer to Quatar as an intermediate stage to repatriating these Afghan men.
Goldsmith and his two colleagues ran the plan by their client, who approved. Nothing happened then, but last week the deal went through, although Goldsmith said they were never told it was a direct deal for Bergdahl.
His client, Goldsmith said, is a reserved, stoic former bureaucrat who was deeply distrustful of American lawyers, in part because the U.S. government sent agents to Guantanamo Bay dressed as lawyers in the early days of the prisoner camp.
He had been confined for well over 12 years, almost 12 and a half years, with never being charged with any crime, or any offense, so we re glad that he got released, Goldsmith said. The Afghan government wanted him back, specifically for his potential utility as peacemaker there.
Afghanistan s president Hamid Karzai had mentioned their client by name in a press conference as a possible liaison between the government and Taliban in peace negotiations, and the High Peace Council of Afghanistan also endorsed that idea.
Not captured on the battlefield
Goldsmith understands that many Americans find the prisoner swap deal repugnant, partly because they believe our government should not negotiate with the Taliban or other terrorists.
But he s adamant that Khairkhwa is not a terrorist. He was not captured on the battlefield, but rather in the house of a Pakistani man in Pakistan.
That s a total misrepresentation by our government very, very few of these men were ever captured on the battlefield, Goldsmith said. Our guy was never on a battlefield to my knowledge.
As far as prisoner exchanges, Goldsmith noted that they are not uncommon, and he considers much of the outrage now simply political grandstanding. The Israeli government has swapped up to 1,000 Palestinian militants to retrieve one Israeli soldier, he said.
He also noted that 779 men have passed through the Guantanamo military prison since the 9/11 attacks, and former President George W. Bush released more than 500 of them.
With the war in Afghanistan winding down and the release of the remaining prisoners likely forthcoming, Goldsmith believes Obama was wise to strike a deal while he still had leverage. Bergdahl was American s only prisoner still in Taliban hands.
Kathy LaMotte, an Asheville attorney and executive director of the nonprofit Equal Justice Collaborative that represents indigent clients, is a friend of Goldsmith, who also sits on her board. She admires that he holds the state and federal governments accountable for their actions and encourages people to look beneath the surface of complex legal issues.
It s easy to make allegations and get people fired up, LaMotte said. It s much easier to get everybody convinced that somebody is a terrorist rather than prove that. Frank s job, at times, is working with people who are despised, and Frank takes his work very seriously that everybody deserves to have a hearing, and have whoever is accusing them prove their case with real evidence in a court of law.
A former army lawyer, Goldsmith said he understands the courts martial system and believes Bergdahl is entitled to his day in a military court, if allegations of desertion become legal charges.
We have a great process in the military, Goldsmith said, adding that he had tried many cases in courts martial. We have a process that s very fair in which his guilt could be adjudicated if he has violated the uniform code of military justice. You don t leave him in the hands of the Taliban to mete out justice. You bring him back and you deal with it in a rational way under our legal system.
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