This is my final dispatch about the Guantánamo trip. I just got back today; spent the last day trying to absorb much of what I witnessed over the last week and to figure out next steps for our work.

We have the challenge of finding concrete recommendations that will make a difference in improving the system while also continuing our structural criticism that this is a system so fundamentally flawed that it can’t be fixed. How to navigate those two tensions going forward will be one we’ll have to work on. Clearly there are things that need to be fixed if these commissions are to proceed further, i.e. translation and increased resources for defense counsel. But we must also push hard to see whether or not the Bush administration or perhaps a new Kerry administration would be willing to go back to square one and use the rules in our Uniform Code of Military Justice, which is the finest system of military justice in the world. We will keep you posted on our activities regarding the commissions as the motions play out in September and October and as the trials begin in earnest in 2005. This is a long-term commitment and I promise that we’ll give it everything we’ve got.

I also promised that I would give you some musings about what Gitmo is like generally. It felt much larger than I had originally thought. There was “big sky” on all the horizons. The landscape looked a lot like Southern California, much like San Diego or Baja California, not at all lush or tropical. The coastline around Guantánamo is by and large very rocky and the beach I went to on Saturday morning was a lovely rocky beach with the waves crashing over the rocks. As I sat there waiting for my plane yesterday afternoon, I was struck by the dichotomies on Guantánamo. On the one hand the movement of the waves, the butterflies in the burnt grass and the birds soaring above made it feel like a place of enormous freedom and openness. And on the other hand, you had the cement walls, the barbed wire, the concrete barriers that betrayed the highly controlled social environment.

On the beach were a group of Cuban refugees who are housed at Guantánamo. Thirty-eight of them, 35 men and three women, are being held there, as are 14 Haitians — 12 men and two women. Throughout the week, Cuban migrants have begun seeking me out. Realizing that I was a Hispanic human rights lawyer, they wanted me to be aware of their plight. While the United States government is trying to place them into third-party countries, and while their housing and food situation appear to be good given the circumstances (they also looked quite healthy), they did have a number of complaints. Many of them complained that they were being paid $2 or $2.50 an hour for jobs around the base that no one wanted to do and that the four minors, a five, 10 and two 15 year-olds, were not being educated. These ad hoc and informal conversations at the facilities, on the ferry boats and then on the beach during my last day were enough to get me summoned to the office of the Guantánamo base commander, Capt. Leslie McCoy, a thoughtful, accessible and soft-spoken commanding officer with a genuine desire to help the Cubans in their efforts to find a place in third-party countries. We talked about how for many immigrants, including my father, the initial hope of a land of opportunity can be quite disappointing and frustrating. I asked the commander about whether or not they expected to provide educational services to the four children and had a sincere question about whether federal minimum wage laws would apply. Given the fact that the Supreme Court has ruled that there is jurisdiction over Guantánamo, there is a new legal landscape to consider. But since access to the base is so tight, it’s hard to fully understand what is going on and what should be done. I believed Capt. McCoy was sincere in his desire to help them to the best of his ability. We talked about our fathers and how the plights of our parents informed our current work. There is a small group of people stuck in a form of legal limbo and as the eyes of the world community turn to Guantánamo, other questions will surely be asked.

I guess I end where I started my friends, that Guantánamo is a place of dichotomy, of transparency and opacity, of justice and human rights violations, of the brightest and darkest sides of the human experience. These will be matters that we’ll come back to and so you’ll be hearing more from me on these and other issues. Be well and thank you for the company during this challenging week.

Anthony

P.S. Next stop is the defense of the First Amendment and the right to protest, as I head on home to New York City. I’ll keep you posted.

Everyone in the media and NGO group looked beat today; it’s been a long week. [Ed.: As Mr. Romero was dictating this, the afternoon bugle call just played in the background.] But think about it from the vantage point of the members of the military commission. They too must be tired. You have to wonder how they can sustain the energy and the attention on four different cases when they go one after the other and when there are overlapping sets of facts and law. How can they be sure that the findings in one case don’t taint the outcome or findings of another? To give you one concrete example, check this out:

Today’s hearing was focused on the case against Mr. al Qosi. The schedule that was ultimately set for the proceedings was substantially later than the schedule set for the earlier commissions. (That delay was for good reason, which I’ll get to later.) But after setting the motion schedule in the case of Mr. al Qosi, the presiding officer, Col. Brownback, talked about the “implied bias standard.” He noted that since the presiding officer would be receiving papers and motions from other counsel on the very point that would be raised on behalf of Mr. al Qosi, he wanted to simply “offer” the defense counsel the opportunity to submit her motions along with the other cases, so they could all be reviewed by the presiding officer and the appointing authority at the same time. [Ed.: Once again we hear a bugle call.]

So, even though Mr. al Qosi’s case was appropriately set for a later date, if his counsel was to take all the time allotted to her, she’d run the risk of having someone else’s lawyers make the points on issues that might ultimately affect the disposition of her client’s case. She’s in a tough Catch-22: take the time you been allotted and hope that the other lawyers do a good job and don’t mess it up, or give up some of the time allotted to you so that you can be sure that your client’s interests are served. This Catch-22 shows why it might not be a good idea that the same panel members hear all four cases with similar facts and questions of law, since the findings in one commission may taint the outcome of the findings in another.

Mr. al Qosi’s lawyer is the enormously talented and articulate, as well as charismatic, Air Force Lt. Col. (and soon to be judge) Sharon Shaffer. She is incredibly sharp and she lit up the room during her press briefing. She clearly has fire in her as well as an acute mind. She was assigned Mr. al Qosi’s case in February of 2004 and one week later she requested a lawyer to assist her in the case. That request was denied. And today, she stood alone with Mr. al Qosi and his translator (who I believe is still owed some money by the government), while the prosecution team was fully constituted with three military lawyers. It didn’t seem exactly fair. Interestingly, the chief prosecutor said that his three lawyers were more junior in stature than the experienced Ms. Shaffer, so the playing field was leveled.

It’s also worth noting that Ms. Shaffer is the only woman to appear in all these proceedings and the racial diversity among those involved has also been surprisingly poor. Our military is one of the most integrated institutions both in terms of gender and race, and yet you wouldn’t know it from looking at the folks who are involved in this process. These are issues that sometimes come up in jury selection processes in civilian courts. Whether or not it has any impact on the outcome, it does raise an appearance issue.

In any event, Ms. Shaffer was fortunate enough to receive a promotion to a higher rank of Air Force Judge but unfortunately for her client, that promotion only complicated Mr. al Qosi’s case. Ms. Shaffer essentially had two jobs. You’ll also note that defense and prosecution counsel are essentially “loaned” from the various armed forces to the military commissions at the discretion of the forces. Until this week it was not clear whether Ms. Shaffer would be allowed to continue with the military commission detail. She was also not sure whether she should continue, given various codes of ethics rules.

When she could not get the instruction she sought, Ms. Shaffer was forced to file a request to withdraw as Mr. al Qosi’s counsel and it looked like Mr. al Qosi would be without a lawyer for this week’s hearing. I guess somebody finally figured that there was a bunch of press and human rights observers attending Mr. al Qosi’s hearing and that it wouldn’t look so good if he didn’t have assigned counsel. Ms. Shaffer miraculously received word on August 25, two days ago, that she had been given the authority to devote all her time to Mr. al Qosi’s defense and that her certification as a judge would be placed on hold until her representation in this case was complete, thereby addressing the ethics issues. Because of the confusion about Mr. al Qosi’s counsel and her understandable inability to prepare for the commission hearing this week given the ambiguity of her status as detailed counsel, not to mention their denial of her request for an assistant, Mr. al Qosi’s case will be later out of the box than the others.

What’s clear is that the delay is due to the lack of resources that the defense counsel has received. Given the asymmetries of the resources between the prosecution and the defense one has to wonder if the government is more interested in prosecuting these crimes than in having a fair and impartial trial. We need to muster the political will in the various armed services to ensure that the defense counsel has the resources it needs to represent the interests of the accused. As I said before, this process isn’t about them — it’s about us. It’s about our values, what we value and how we value it. And unless we resource the defense counsel adequately, we’re going to put good folks in uniform like Ms. Shaffer in impossible situations. Let’s also remember that the good men and women in uniform who are prosecuting these cases will also be disserved and undermined if the entire process appears unfair and if the playing field remains unequal.

Finally, the chief prosecutor, who briefed the media today in an exciting give-and-take, seemed untroubled by the appearances or reality of the resource asymmetries. Given how obvious the problems are to all of us who are observing the military commissions, one must wonder whether he was merely posturing or whether he is so close to the process and so intent on receiving a conviction that he can’t step back and see some of the structural problems that are evident with the commissions.

Finally, let me point out that the various groups issued a joint statement today (linked on this page) detailing our many concerns and asking that the government replace this fundamentally flawed system with one that works. I’m not sure we can fix the many problems with this system and our government should be able to admit a mistake and decide that it would be much better to proceed through established procedures in the military justice system, which is the best system of military justice in the world. It’s also great that the various groups - the American Bar Association, Amnesty International, Human Rights Watch and Human Rights First - worked together as one team, demonstrating both depth and a real commitment to making a difference. My colleagues from other organizations are truly world-class and have taught me a great deal on issues that can be complex. I hope I accomplished something of the same with them. But, I want to tell the proud card-carrying members of the ACLU that no matter how good or how strong the ACLU is, these issues are much too big for us to go it alone and our partners in this effort also play a critical role.

Talk to you tomorrow.

Anthony

P.S. Tomorrow’s entry will be the last, as I head out of Gitmo tomorrow afternoon. My final dispatch will not focus on the commissions, but will tell you about some of the landscape and social dynamics I’ve been able to observe while here. This black box of Gitmo has become a little bit more illuminated for all of us.

Well, today was certainly exciting. The courtroom drama due to incompetence and systematic problems with the rules is nothing to enjoy even with a front-row seat. We knew from the beginning that Ali Hamza Ahmed Sulayman al-Bahlul’s hearing was going to be different than the others. As he walked in you could see a steely, some would say defiant, look in his eyes. He was dressed in western civilian clothes and was a slightly built man. His defense counsel, Cmdr. Phil Sundel and Maj. Mark Bridges, whom I met privately two days ago and was enormously impressed by, were not greeted with any warmth or recognition, unlike Salim Ahmed Hamdan and his lawyer Lt. Cmdr. Charlie Swift. The commission began with Col. Brownback going through the same script that was used in other proceedings, but he quickly got derailed when with Mr. al-Bahlul asked, “Am I allowed to represent myself?”

Col. Brownback responded through the court interpreter (more on that later) that according to Military Commission Order No. 1, Paragraph 4(c), the answer was basically no. “You must be represented at all times by detailed defense counsel,” Col. Brownback said. Mr. al-Bahlul responded that he would indeed like to represent himself. Col. Brownback tried to explain how Cmdr. Sundel and Maj. Bridges were chosen, that they had many years experience, that they were chosen by chief defense counsel Col. Gunn (an exceptionally thoughtful, soft-spoken man with a very sharp mind); and then Mr. Brownback said, “In addition to graduating from college and law school, each received extensive training in military law, which is at times a confusing subset of law.” There was a chuckle at the back of the room because ironically Mr. Brownback sounded just like the defense counsel over the last couple of days when they were arguing that members of the military commission should be lawyers. ACLU members will remember that four of the five members of the commission are not lawyers. Mr. Brownback continued to explain that someone representing oneself might find it difficult since Mr. al-Bahlul would be “personally involved.” Defense counsel “could remain objective in situations where a person about whom things are being said might become emotional or heated.” At one point, Mr. al-Bahlul interrupted him and asked, “Are you done?” And Mr. Brownback allowed him to speak.

In response to questions about whether he could represent himself, one translation of Mr. al-Bahlul’s statement was “I have some idea of practicing law in Yemen.” And when Cmdr. Sundel questioned the accuracy of that translation, Mr. al-Bahlul said, “Don’t interrupt me.” When he repeated his statement, the translation came back, “I have some people who practice law in Yemen.” Throughout the exchange between Mr. Brownback and Mr. al-Bahlul, one had a sense of a very sophisticated defendant. He talked about his knowledge of international law and raised objections to the fact that under these rules he would be denied access to classified evidence. He also reassured the commission that he would conduct himself appropriately while in court.

Mr. al-Bahlul then began the now-famous line that sounded like the beginning of a confession. But the translation was so poor that all of the English speakers in the room were thrown into chaos. I think the official court translator said, “I testify that the American government is under no pressure. I am al Qaeda and the relationship between me and Sept. 11? .” Al Jazeera reported that Mr. al-Bahlul’s statement was something to the effect that “the U.S. government has not pressured me. I am a member of al Qaeda and in relation to 9/11? .” The fact that Al Jazeera could get Mr. al-Bahlul’s statements right, and the government could not, is incredible. After the court translator gave the flawed translation of Mr. al-Bahlul’s statement, Col. Brownback interrupted him and said to his fellow members of the commission that they must not take into account the statements of Mr. al-Bahlul. The prosecution quickly jumped up and took exception with Mr. Brownback.

It felt like chaos was breaking loose. Brownback at some point even held his face in his hands and they took a recess.

Now, how do we interpret this? Here we are two years later and the U.S. government is not prepared to appropriately handle the case against a man who appears to be willing to admit to being a member of Al Qaeda. The hearing with Mr. al-Bahlul should have been the easiest one. But the translation was so poor that English-speaking people like me - or even like the prosecutors, defense counsel or commissioners - couldn’t fully understand what was going on. An essential part of a fair system of justice is ensuring adequate translation of the proceedings. You have to ask why can’t the U.S. produce world-class translators in order to prosecute an apparently self-confessed member of the Al Qaeda?

Secondly, today’s hearing raised basic questions about the commission’s rules as we’ve been saying all along. Mr. al-Bahlul’s inability to review even a summary of the evidence against him, his inability to hire a Yemeni lawyer as he requested (given his profound distrust of American lawyers), as well as the way that the presiding officer handled his request to represent himself show that these rules are not working. It appears that the presiding officer was reluctant to even apply one of the few rules that is clear in this process, i.e. the requirement that Mr. al-Bahlul be represented at all times by detailed defense counsel. And, the fact that Mr. al-Bahlul’s implicating statements came out in front of all the members of the commission who were then asked to disregard his possibly incriminating statements shows the pitfalls when you confuse the roles of judge and jury. In a civilian court or even in a military court-martial, the difference between the trier of facts and the trier of law is clear. But here, it is confused and commingled. No one, including the presiding officer, seems very comfortable in this made up and ad hoc system of justice. And, what about Mr. al-Bahlul’s rights against self-incrimination? Do they or don’t they exist? Where do we go from here?

Col. Brownback asked Cmdr. Sundel and Maj. Bridges to prepare a “friend-of-the-court brief” about Mr. al-Bahlul’s right to represent himself as well his right to have a foreign lawyer represent him. They were instructed to ensure that they refrained from stating in their documents that they represented Mr. al-Bahlul. As of now, I guess Mr. al-Bahlul is representing himself, notwithstanding the clear rules in the military commission orders. No date was set and we’ll see where this ends.

The final word: in the midst of all the chaos of the abysmal translation, and what Mr. al-Bahlul had or had not said, and what was or was not translated, the NGOs and press kept asking the question about whether or not there was an audio recording of the proceeding to consult. Let’s go to the audiotape, we said. But we were told over and over again that there was no tape, only a transcript. Incredulous that this would be the case, we kept asking the question of multiple military officials, when one of them finally confirmed for us that an audio recording does exist and that it will be part of the court record. In one of the lightest moments of an otherwise intense day, one TV producer said to a military spokesperson, “Does that mean that there is now a videotape even though you had previously told us there was no videotape?” The official basically responded by saying that to his knowledge no videotape was produced. Who knows?

While we all laughed at the exchange, it is also notable that the system and its key spokespersons seem to be losing credibility even among its initial supporters in the group. We’ll see where it all ends tomorrow. I’ll keep you posted. Meanwhile the Aussie contingent is giving a barbecue because this is their last night and we’re going for a swim.

Anthony

P.S. If you saw the Pentagon briefing from Gen. Hemingway today trying to clean up this mess, it was pretty clear that they were trying to outspin the stories that were coming out of Guantanamo. Then the Gitmo press corps got on the phone with him and began asking him a whole bunch of pesky questions. The wonders of technology… . And thank God we’ve got a free press to keep the government on its toes.

Today was the opening of the military commission against David Matthew Hicks, the 29-year-old Australian who has been held in Gitmo for over two years. Today Mr. Hicks saw his mom and dad for the first time in all those years in what was described as an intensely emotional meeting. We spoke to Mr. and Mrs. Hicks during a break and they held a press conference at the end of the day. Mr. Hicks actually reminded me of my dad. With a father’s unconditional love for his son, his concern was that his boy had been denied due process and had been kept from his family for all this time.

He also told us that his son had told him and Mrs. Hicks of his physical and emotional abuse while in U.S. government custody. He didn’t want to go into detail because that will be raised in the subsequent proceedings. But, I thought you would want to know that the ACLU received a response yesterday in our Freedom of Information Act lawsuit demanding any documents relevant to the use of torture on U.S. government bases overseas, including Guantanamo.

Defying a judge’s order to turn over those documents in our litigation that pre-dated the Abu Ghraib scandal, the government has shown once again its disdain for the need to ensure accountability and transparency. This time they’re fighting a U.S. federal judge and we’ll definitely keep you posted on the lawsuit as it evolves. Needless to say, it has obvious implications for the Hicks case and the other Guantanamo commissions. (See news release: ACLU Decries Government’s Continued Stonewalling in Lawsuit Over Torture Documents)

Concerning what happened at the commissions today, we’re beginning to see concrete examples of the structural problems that we were anticipating. Defense counsel, led by the brilliant civilian attorney Josh Dratel and the enormously talented Marine Maj. Michael (Dan) Mori, filed 19 motions to dismiss today. Now think about it. If defense counsel had to file that many motions to dismiss raising basic issues around rules, jurisdiction, constitutional law and international law - it seems pretty clear that the rules and structures for these commissions are woefully inadequate.

Another issue that became clearer today is the significant power of the presiding officer, setting him above the other so-called “peers” on the commission. When defense counsel began asking complicated legal questions of the other commissioners in the voir dire, Mr. Brownback would often step in to “clarify” or even amend the question. For instance, when one commissioner was struggling to understand the standard of guilt needed for these tribunals, Mr. Brownback stepped in to “protect” the commissioners from tough questions. This, of course, may make Mr. Brownback’s “peers” grateful to him and maybe more willing to go along with him in the future. We’ll see?

Finally, you should also know that the Hicks’ defense team is the best-resourced of all of them. It took more than two tables to array the defense counsel and Mr. Hicks, compared to the one of yesterday’s commission. Hicks has two military lawyers, one civilian lawyer, one Australian lawyer and paralegal assistants. But on Friday, only one lawyer is expected to appear.

It appears that this second-class system of justice is getting more refined based on ethnicity and background. John Walker Lindh (a white American) certainly got the best treatment in U.S. criminal court; David Hicks follows - remember that Australia is an ally - and then you have men from Arab and Muslim countries bringing up the rear. This disparate treatment among detainees of different races and ethnicities is increasingly apparent.

Several Arab colleagues who are bilingual also tell me that the level of translation can be dismal at times, that there are significant mistakes in the official charge sheet and that the simultaneous translation in the commission can be incomprehensible at times. (See my weblog from Wednesday.) And for the men being processed through the Combatant Status Review Tribunals, with their “personal representative,” the translation seems to be even worse.

But think, my friends, what if this process doesn’t work in Hicks’ case? If it can’t work here, how can it possibly work with all those commissions that are more poorly staffed and resource-starved? And, how can they possibly recreate this process for the more than 581 men who are still not a part of it and are detained here? Something has to change or the shining example of American justice may unravel, rocking our faith in ourselves as well as the world’s belief in us. We deserve better.

I’ll keep you posted tomorrow.

Anthony

P.S. The relationship between Mr. Brownback and Mr. Altenburg who is the appointing authority and Mr. Brownback’s boss appears to have been even more extensive than I told you yesterday. In today’s voir dire, we learned that Mr. Altenburg spoke at Mr. Brownback’s retirement party, that they attended family weddings and that they know each other pretty well. You’ll remember that Mr. Altenburg is charged with reviewing and possibly overturning any of the rulings made by Mr. Brownback. And, even if this relationship can be fully professional, we have to face facts that it looks bad and may not pass the laugh test with the rest of the world. What’s hard to understand is that given the expected high-profile nature of these commissions, why wouldn’t the government take greater consideration of appearances and go the extra mile to deepen public confidence in this so-called fair and independent process?

P.P.S. Members of the ACLU family asked what they can do. Are you up for an e-mail action alert on the Guantanamo issues and possibly giving us access to the briefings and visits that we’ve been denied? If so, we’ll organize it, ’cause we could use your help.

Today I witnessed history in the making.

I was one of 49 people inside the military commission courtroom allowed to observe the first military commission in the 60 years since World War II. America’s system of justice was on the world stage.

We got to the ferryboat at about 7:30 a.m., but the commission didn’t begin until about 10, after a snafu with the closed-circuit television. As the participants in the commission held their breath, Salim Ahmed Hamdan walked in with his lawyer, Lt. Cmdr. Charles Swift, a Navy officer. Mr. Hamdan’s face lit up when he saw Mr. Swift. You could see the relief in his face. He was looking around, smiling at everyone. It may have been that he was happy to see so many people after having been kept in solitary confinement, or it could also be that he didn’t fully possess a complete understanding of why we were there.

He appears to have lost quite a bit of weight, more than 50 pounds, from the photograph that his defense counsel provided us. But we know nothing about his condition, as obviously he was kept under strict lock-down and away from us.

What happened over the next eight hours had the look of a judicial proceeding, but, as you know, the devil was in the details, and the details left this civil libertarian very unsatisfied.

The problems that the ACLU had identified from the beginning were borne out in concrete detail. First, the issues with the lack of an independent review outside the chain of command became particularly clear. Several commissioners had very active roles in the government’s war on terror: two with regards to operations in Guantanamo and one with substantial experience in the battlefields in Afghanistan. The lack of distance and the possible appearance of “victor’s justice” was a problem that Mr. Swift underscored in his questioning of the commission, known as “voir dire.”

Number two: the rules of evidence are still confused. What we do know is that they are inferior to what’s used in military courts martial. One commissioner commented in the voir dire that rules of evidence certainly apply, but the defense counsel reluctantly had to basically say, “No sir, not really.” Also Mr. Hamdan was denied an opportunity to review or rebut even a summary of secret evidence being used in his case. The defense lawyer and the ACLU agree that Mr. Hamdan should not receive classified documents, but he must be allowed the opportunity to review and contest a summary of the secret evidence. That’s what we do in other contexts.

The third problem concerned the inability of defense lawyers to adequately represent their clients’ interests, notwithstanding their heroic efforts. The deck is still very much stacked against the defense - the prosecution has many more resources. At one point, the translation for Mr. Hamdan was so poor that the accused couldn’t even understand the charges being read against him. They had to momentarily excuse the translator who was botching it up. The only full statement that Mr. Hamdan said in his native tongue was “please sir, give my attorney an assistant.” Mr. Swift is the only lawyer assigned to Mr. Hamdan right now.

Another problem that became painfully clear was that only the presiding officer is a lawyer, whereas the other four commissioners are not. The defense counsel did its best to explain concepts like jurisdiction and post hoc, but this isn’t going to be easy and it’s certainly going to put the presiding officer in a greater position of power vis-à-vis the other commissioners. Interestingly enough, all of their votes are supposed to count equally. How can that possibly happen when only one is a lawyer and that lawyer is the presiding officer? We will see.

There are also some tangled relationships between the presiding officer and the appointing authority, which will probably get hammered out in coming days through the other commissions. But the big news on that front that dropped today was whether Col. Peter Brownback III should remain as presiding officer.

Notably, the presiding officer does not have an active bar license (though that is apparently not required in military proceedings). But, more importantly, Mr. Brownback held a meeting with the prosecution earlier this summer at which the defense counsel was not present and it appears that he made some statements about whether or not defendants had a right to a speedy trial.

Right before our adjournment at 7 p.m., the defense counsel asked the presiding officer to allow him to enter a transcript of this meeting that was taped unbeknownst to the presiding officer. The presiding officer reopened the questioning and did allow the transcript to be entered, to Mr. Brownback’s credit. Whether or not he is removed for cause will be decided in the future. It reminded me of Supreme Court Justice Antonin Scalia having to recuse himself because he expressed an opinion before he saw the facts on the Pledge of Allegiance case. We’ll see if that’s the case here.

Some of the Aussie media who bought me a Red Stripe beer at the Combined Bachelors’ Quarters were asking me if this was the best that America could do. However you answer that question, it certainly doesn’t look good.

Finally, I want to say a word to the ACLU family about the good men and women in uniform. Sometimes we civil libertarians see members of the military with suspicion. But let me tell you, some of the best civil libertarians I’ve met recently are soldiers who believe in due process and are doing their best to conduct a fair trial despite the fatal flaws in this system. They make America look good, because even though they’ve been dealt a terrible hand, they’re defending their clients with all the zeal of a Johnny Cochran.

The prosecution was also quite thoughtful and even-tempered and even-handed. They’re making the best of a terrible situation, but our government shouldn’t have put them in this situation in the first place. We have a good system of military justice that we should be proud of and we should have used it.

There’s also this one Navy guy who’s been assigned to escort us around. After all the snafus (take a look at yesterday’s Washington Post) he has taken excellent care of us. He believes in the commission’s fairness and will vote for George Bush, but he also believes that the NGOs are here to do a job and form an independent opinion.

The fact that there are men and women like him in uniform who support this president, who support these commissions, but who also understand the important role of the ACLU, should give all civil libertarians hope. Remember, Ben Franklin was asked after leaving the Constitutional Convention: “What have you wrought?” “A Republic,” he answered, “if you can keep it.” With patriots like the defense counsel and with open-minded folks like this Navy guy, we may have a fighting chance.

I’ll see you tomorrow.

Anthony

P.S. Some of you asked about our access to Camp Delta. That has been denied, but we are appealing it to the Department of Defense. Apparently tomorrow we should be able to tour the holding cell in the military commission building as well as the offices of the defense counsel. The prosecutor and the presiding officer have so far declined to meet with us. In fact, the presiding officer told us that he’d be happy to meet with us when this whole process was done. And, when I commented that we’re only beginning four commissions of the 581 men who are held here at Guantanamo and that it might take a very long time to complete this process, he simply said he was not interested in meeting us at this time. If one thing is for sure, it’s that no matter when they wrap up this failed system of justice, the ACLU is going to be around to ask him for that meeting.

Today’s activities at Gitmo were full of tension.

We boarded the bus at 7:40 A.M., with the 50-plus members of the media, to travel to the other side of the base by boat. However, before we could do so, the representatives from Amnesty and Human Rights Watch and I were barred from boarding the boat. We had not been given our security credentials even though we arrived on Saturday and now we were told that we couldn’t go aboard the very same boat with the very same group of people we had traveled with yesterday.

After a fuss, we were finally allowed on the boat and transported to the other side, though we were immediately separated from the group of journalists. The access to the press building and press briefings that were granted to us the day before was now revoked. Maybe it had a lot to do with the questions we asked? .

After being shuttled back across the bay and then back again, it became clear that the Non-Governmental Organizations, now including Human Rights First and the American Bar Association, were not going to be granted access in the manner similar to the media. Realizing that we were being run-around and stonewalled, we submitted a written statement requesting access to the presiding officer of the military commissions, translators and law clerks, and to prosecution counsel. All of these requests were denied. We also requested briefings or visits to Camp Delta, the medical facilities, to the interrogation rooms and to the Combatant Status Review tribunals. These were also denied.

We gave a press briefing to members of the media addressing our concerns, and a joint statement protesting this denial of access can be found on the ACLU website.

We did manage, however, to meet for several hours with the defense counsel of the four men who will be brought before the military commissions this week. These men and women are the only bright spots in this otherwise dismal set of circumstances. Most of them are military officials with extensive experience in military justice matters. They are the true Davids to the government’s Goliath. Our briefing revealed the inadequacy of their resources as compared to the prosecution, the inadequate language translation services, and their limited ability to confer with and represent their clients.

Some of the accused are suffering physically and emotionally, and while the lawyering of the defense counsel will surely be as good as the system can muster, it is clear that the odds are very much against them.

The defense counsel are men and women in uniform who believe passionately in the system of justice and some basic American values - so much so, that they are willing to vigorously defend the rights of some of the most hated defendants in America. They are the only ray of hope in a system of justice that is simply broken and cannot be fixed. While I am sure they will do their best before these military commissions, the finest legal minds in the world can’t fix the fact that the rules as now constructed are unfair and fundamentally un-American.

Finally, a word about the battle between the Gitmo officials and the media, which you might see in a papers over the next couple of days. Unbelievably, the presiding officer of the military commissions informed the media at the end of the day that, in the event that classified information was revealed during the commissions this week, the military would seize the notebooks of the reporters to redact that classified information. (FYI, all of us who are here have agreed to basic ground-rules, including one that says we can’t disclose classified information if revealed during the commissions.)

But the fact that the presiding officer believed that he could casually collect the notebooks of the U.S. and international media and return them when he was done with them left many breathless. He later backtracked when he heard of the fury in the pressroom.

It’s midnight and it’s hard to get to sleep. I leave you with this parting thought. The open question that has begun to form in my mind is this: will this ill-conceived system of second-class justice proceed as the government hopes, with all of its current structural flaws and inadequacies, or will it all begin to unravel and collapse because it is unworkable and because they are still making up the rules as they go along? Either way, this is not America at her best. I hope one of us can get some sleep.

I’ll check in with you tomorrow.

Anthony

P.S. I received some of your questions about the personal “representatives” in the Combatant Status Review Tribunals. We’ve been asking a lot of questions about these reps and have asked to observe a CSRT. I don’t know if they have in fact turned over inculpatory evidence but I’ll ask. I can’t, however, promise I’ll get answer.

This will not read like an authoritative ACLU report on the Guantanamo Military Commissions; we hope to provide that later.

I’m dictating this weblog to give our ACLU colleagues and all of you a sense of what this black box known as Guantanamo is like.

I arrived yesterday on a commercial charter plane from Fort Lauderdale. When my colleague from Amnesty International and I stepped off the plane, there was some confusion as to where we were supposed to be going. Finally, after being assigned a roommate (I’m bunking with another colleague from Human Rights Watch), we got dinner at the Officers’ Club.

Without a specific itinerary planned for the Non-Governmental Organization (NGO) participants, we simply tagged along with the media contingent of more than 53 different reporters. They ran the gamut from broadcast, print and wire services, including ABC, the Associated Press, the New York Times, CBS, Washington Post, Miami Herald and many others.

Beginning the day at 6 A.M., we almost got breakfast, but after piling into the bus and then piling into the mess hall, the cooks didn’t show up. So we all got back on the bus and various industrious reporters began to make pots of coffee in the lobby of the Combined Bachelors Quarters (CBQ), which is where we’re staying. Please don’t tell my partner that that’s what it’s known as.

After that, we started on the round of briefings regarding the Military Commissions, the [Enemy] Combatant Status Review tribunals and the facility where the commissions will be held this week. I expect to be in the actual commission room even though most members of the media will be observing in a different building through closed-circuit television (only a small delegation of media is allowed each day in the room where the proceedings are taking place). I’ll report back when I’ve actually observed the commissions and the tribunals.

But, let me give you a quick read of what I’ve learned today.

As to the commissions, we expect we will observe preliminary hearings for four of the accused. The Military Commissions panel will be comprised of five members, presided over by Col. Peter Brownback III, an Army lawyer and the only attorney among the five. We don’t expect to see any witnesses but we do expect the accused to be present in the commission room. In these preliminary proceedings they will read the charges against the accused (i.e. like an arraignment). They will explain the process to the accused and they will conduct voir dire of the commission members to ensure that they can sit on the commission.

As you know, we have raised serious concerns about how these commissions will proceed: the lack of an independent review outside the military chain of command, the expected use of secret evidence and the difficulties incurred by the defense counsel representing their clients. I don’t expect that anything we’ll see this week will fundamentally alter our criticism on these three major points.

We also learned a great deal more about the Combatant Status Review tribunals. Thirty-one tribunals have been completed thus far. Nineteen of the accused have decided to participate, whereas 12 refused to participate. Twenty-three determinations have been sent to Washington, D.C. for review, of which 14 have been validated as “enemy combatants.” Of the 14, only one witness has appeared in these tribunals and none of the 14 have yet been informed of the validation of their designation as enemy combatants.

For the accused who do participate, the proceeding normally takes under two hours: one hour for the unclassified portion and one hour for the classified portion. For those who choose not to participate, the entire Combatant Status Review takes approximately one hour. There are 585 men held here in Guantanamo and there are 177 open Combatant Status Review tribunals.

Two themes have come out of this first day of briefings. One is the ambivalence that the military has toward NGO participants and even the broader media. They want to give us access, but not too much access. They want to be transparent, but the transparency can’t go too far. For instance, tomorrow, members of the media will travel to Camp Delta, but unfortunately the NGO participants were told that we cannot attend that tour, even though we have been given full security clearance to sit in the commission room on Tuesday.

The second theme is that there is a great desire to show how the commissions and the tribunals are fair and just, and how they mirror the American system of justice. But yet, when you compare the rules for both the commissions and the tribunals, you find serious departures from either military justice proceedings or regular criminal proceedings. For instance, under the Combatant Status Review tribunals, which are “administrative” we were told, each detainee is assigned a personal representative who is not a legal representative and whose conversations with the detainee are not confidential in any way. In fact, this personal representative is able to provide both exculpatory and inculpatory evidence that he gleans in his “personal representation” of the detainee.

As to how this all plays out, I hope to be able to tell you more in coming days. As I said to one of the reporters today, this isn’t about the guys in the orange jumpsuits, this is about us. This is about what rules and values will guide an American system of justice that we can hold up to Americans and to the entire world. So far, I have no comfort to give on that front and I doubt that much will change by the end of the week.

I’ll keep you posted and talk to you tomorrow. Please send suggestions for what you’d like me to report on in coming days at gitmo@aclu.org. Let me know what’s on your mind.