Today was an exceptionally dramatic day at the U.S. naval base in Guantánamo. The Military Commission abruptly halted its session about 40 minutes into pre-trial arguments in the case of Mr. Salim Hamdan, who was charged in July 2004 with conspiracy to commit terrorism. Everyone in the Commission’s hall was stunned when the presiding judge, Colonel Peter Brownback III, after briefly adjourning the hearing, returned seven minutes later to announce that the proceeding would go into recess “indefinitely.”

No one attending the hearings expected such a dramatic development. The commission was expected to hear oral arguments in more than dozens of motions that were submitted by the defense. These motions challenge the legality, composition and the competence of the Military Commission under United States and international law.

We had started out the day curious to assess the quality of translation, particularly after the poor translation in the opening sessions of the Commission back in August (see Anthony Romero’s dispatches from August 2004). A new system (translation booth and equipment) had recently been installed and new translators were present at today’s hearing. However the length of the proceedings was too short to allow a full assessment of the quality of the translation. (Editor’s note: Dakwar is fluent in Arabic.)

Hamdan, who appeared before the Commission in a traditional Yemeni dress and a jacket that was sent to him by his family, seemed to have lost weight since he was detained in Guantánamo. His lawyer explained to him what had happened as a result of this latest development: that he would no longer be held in solitary confinement (after more than 10 months) and that he would be transferred to Camp Delta where he will be held with other detainees.

A few minutes after the Commission panel rushed out of the hall, Neal Katyal, a Georgetown Law School professor who is the civilian defense lawyer co-representing Hamdan, approached the few reporters who were attending the hearing and told them that apparently the District Court in Washington had ordered a stop the Commission’s proceedings. The court had accepted in part Hamdan’s petition for a writ of habeas corpus that was argued on October 25 of this year. In that petition, Hamdan’s attorneys challenged the lawfulness of the trial before the Military Commission rather than before a court-martial convened under the Uniform Code of Military Justice. (The ruling is online.)

My first reaction to the halt of the Military Commission proceedings by the federal court was that this is the real judicial review in play. After reading the whole decision, a sense of relief and satisfaction captured all of us (observers on behalf of ACLU, Amnesty, Human Rights Watch and Human Rights First). We felt that this decision was long overdue and is a victory to the rule of law, international law and particularly to the Geneva Conventions, which have been sidelined and undermined by the U.S. government. Although the decision was given only in Hamdan’s case by the District Court in Washington (and will likely be subject to an appeal), its practical ramifications should go beyond this individual case to encompass and expose the travesty of the whole situation here in Guantánamo.

Shortly after the session was adjourned, we were escorted to the media center located in the Guantánamo Bay auditorium where press briefings take place. We were anxious to read the full decision and finally after an hour got copies of the 45-page ruling of Judge James Robertson of the District Court in Washington.

Judge Robertson ordered that until a competent tribunal determines that Hamdan is not entitled to the protections afforded to prisoners of war under the third Geneva Convention relative to the treatment of prisoners of war, Military Commission may not try him for the offenses with which he is charged. The judge noted that the Combatant Status Review Tribunal (CSRT) was not established to address detainees’ status under the Geneva Conventions; it was established to comply with the Supreme Court’s ruling in Hamdi. The judge also stated “the President is not a ‘tribunal.’” Under international law a “competent tribunal” need not be a judicial tribunal and may not be required to guarantee the full gamut of rights accorded to an individual before a criminal court of law, however the core due process rights recognized as customary in international humanitarian law should be guaranteed. Judge Robertson also held that the military commission rules violate domestic statutory law because they allow Hamdan to be excluded from hearings and denied access to evidence.

This week there will be no more military commission sessions. It is unclear when and if the Military Commission will resume its hearings. In the meantime, the Combatant Status Review Tribunal (CSRT) continues to hear Guantánamo detainees who appear before it without legal representation and with serious due process deficiencies. While journalists are allowed to attend CSRT’s hearings, human rights observers are still not allowed to attend them — with one single exception, when a representative of Human Rights First was allowed to attend a hearing last Thursday. So far, some 320 of the 550 detainees have appeared before the tribunals, and 104 final judgments were made. Of that group, 103 were found to have been properly deemed unlawful enemy combatants and properly imprisoned; only one detainee was released.

After staying less than 24 hours in Guantánamo Bay you start to be more appreciative for your freedom of movement while off the Naval Base. As representatives of human rights groups, however, we agreed to the military ‘ground rules’ that limit our freedom of movement here, in order to observe the trials of persons who are denied their basic human rights. Only four of the 550 Guantánamo detainees were ‘privileged’ so far to face charges before a Military Commission. This Military Commission was created by a Presidential Order signed in November 2001. The order essentially creates an extra-judicial system for the “detention, treatment and trial of certain non-citizens in the war against terror,” in violation, we believe, of United States and international law.

This week the Military Commission will be hearing the oral arguments on more than a dozen motions that were submitted by Lt. Cmdr. Charles Swift, the military defense counsel who was appointed to represent Mr. Salim Ahmed Hamdan.

Hamdan, a 35-year-old citizen of Yemen, was charged in July 2004 with “conspiracy to commit terrorism.” He responded in 1996 to a call to travel to Tajikistan to aid the Muslims there in their fight against the communists. When his mission to fight against the communists was aborted he accepted a job as a truck driver on one of Bin Laden’s farms in Afghanistan. He got married and later became Bin Laden’s chauffeur. Hamdan denies being member of Al-Qaeda and that he had been involved in hostilities against the United States. According to his attorney, at the time of his capture, he was traveling alone and was not part of a belligerent force, and was seeking to flee hostilities in Afghanistan. In an affidavit that was submitted to the military commission Hamdan said that he was tortured and abused by the American interrogators in Afghanistan. In December 2003, he was separated from other detainees and since then has been held in solitary confinement.

While some of the motions that will be argued by Hamdan’s defense counsel this week are similar to those that were argued last week by David Hicks’s defense counsel, the Commission is obligated to hear the full individual arguments of each case. By filing these motions, Hamdan’s defense will be trying to challenge the legality and the competence of the Commission to hear his case. The following are some of arguments that the Commission will start to hear on Monday afternoon:

• Failure to grant Hamdan a speedy trial in violation of Article 10 Uniform Code of Military Justice and Article 103 of the Third Geneva Convention. (The United States signed and ratified the Geneva Conventions in 1955)

• The Presidential Military Order (which created the Military Commission) illegally intrudes into Congress’ Constitutional duty to make and enforce the law.
• The Presidential Military Order illegally discriminates against aliens in violation of the Equal Protection clause of the Constitution and 42 U.S.C 1842.
• The Commission is improperly constituted under Common Article 3 of the Geneva Conventions which guarantees all persons the right to have their cases heard by a regularly constituted court. The Commission does not satisfy local and international required protections and therefore cannot be considered regularly constituted.
• The Commission lacks personal jurisdiction over Hamdan because he is civilian and not within the jurisdiction of the Commission.
• The charge of “conspiracy to commit terrorism” is not a valid offense under international criminal law. The sole charge against Hamdan is not within the Military Commission’s subject matter as established by the U.S. Constitution and federal statutes.

Tomorrow I hope to report on how those arguments were received. For now, I wanted to briefly mention some historical facts about Guantánamo Bay, which I learned over the course of my last day on the island of Cuba.

In 1903, the new Republic of Cuba leased to the United States an area of 28,817 acres (about 45 square miles) of land and water. The terms of the lease were stipulated in three documents — two agreements and a treaty. The first lease agreement mandated that “the area must be used only for a coaling and naval station.” In a supplementary agreement that was also signed in 1903, the United States contracted to pay Cuba the annual sum of $2,000 in gold. Later in 1934, a treaty signed between the two countries gave the United States a perpetual lease on the area which could be voided only if the U.S. abandoned the area or by mutual agreement between the two parties. Since then this part of Cuba has been (at least de facto) considered an integral part of American territory where the United States exercises essential elements of sovereignty. However, since Fidel Castro came to power in early 1960s, Cuba has refused to cash the American annual checks and has persistently objected to the American presence on Cuban soil.

Long before the United States acquired control over Guantánamo Bay, the place was noted as a one-time haven for pirates from hurricanes, the authorities, and other pirates. Ironically, the United States is now using Guantánamo as haven from impartial judicial review and international scrutiny and norms over the treatment and the prolonged illegal detention of hundreds of non-United States citizens.

The pre-trial hearings in the Hicks case came to an end today, so this may be my last dispatch from Guantánamo. Next week, the commission will hear motions in the case of Salim Ahmed Hamdan, a 34-year old Yemeni who is accused of having served as a bodyguard and driver to Osama bin Laden. Trial in the Hicks case is scheduled to begin in March.

Over the past few days, I’ve written mainly about the legal process (or lack of it) afforded to the handful of prisoners who, like Hicks, have been charged with war crimes. These are the detainees who’ll be tried before military commissions. I want to use this last dispatch to talk about the hundreds of prisoners here who have not been charged with any crime at all. There are 550 or so prisoners held here at Guantánamo right now; only 15 of these have been designated by the President as eligible for trial before the commission, and of these only four have actually been charged. The overwhelming majority of the prisoners held here at Guantánamo have not been charged with any crime or even designated as eligible to be tried. The Defense Department has argued that they can nonetheless be imprisoned indefinitely - perhaps for life - because they’re “enemy combatants.”

Let’s put aside the question of whether the government is legally entitled to detain enemy combatants indefinitely. How do we know that the people locked up here are in fact enemy combatants? Senior government officials seem to harbor few doubts. The Secretary of Defense has referred to the Guantánamo prisoners as “hard-core, well-trained terrorists” and “among the most dangerous, best-trained, vicious killers on the face of the earth.” Vice President Cheney has referred to them as “the worst of a very bad lot . . . devoted to killing millions of Americans.”

But senior officials said similar things, remember, of the hundreds of immigrants who were detained in the United States after September 2001. None of those people were convicted of a terrorism-related offense. In fact, most were never charged with any crime at all. Notably, one of the military officials in charge of detention camps at Guantánamo recently acknowledged that many of the prisoners pose little threat and have provided little intelligence value. “Most of these guys weren’t fighting. They were running,” he said.

So how do we know that someone whom the government calls an “enemy combatant” is in fact an enemy combatant? Last year, the Supreme Court held in Hamdi v. Rumsfeld that the government may not detain a person as an enemy combatant unless a neutral tribunal determines - after providing due process - that the person is actually what the government says he is. After that ruling, the government contrived something called the Combatant Status Review Tribunal (CSRT) to make such determinations.

Predictably, the CSRT process does not provide anything like due process. Reversing the presumption of innocence, the tribunal starts by presuming that the prisoner is in fact an enemy combatant, and it’s up to the prisoner to prove that he’s not. Rebutting a presumption of guilt would be difficult in any context but it is made doubly so here because the prisoner is not given access to all of the evidence and is not provided a lawyer. The prisoner is provided something called a “personal representative,” but the personal representative does not have legal training and does not (and cannot) assure confidentiality. Thus, a prisoner’s conversations with his representative may be used against him - not only at the CSRT but also in any subsequent criminal proceeding.

The CSRT process has worked exactly as it was intended to. While the CSRT has reviewed the cases of some two hundred prisoners, it has ordered the release of only one. Many prisoners are now refusing to participate in the process at all.

Let me close by saying something more general about what I’ve seen here at Guantánamo over the last few days. Many of us hoped that the Supreme Court’s decisions in Hamdi, Padilla, and Rasul would lead to the adoption of policies here at Guantánamo more consistent with the constitution and with international standards of justice. It’s clear that this hasn’t happened. Both the military commissions and the CSRTs are fundamentally lawless; they are proceedings designed not to provide fair process but rather to rubber stamp essentially political decisions. There is no doubt that the Supreme Court’s rulings were critically important, but Guantánamo remains a legal black hole. Unfortunately, it’s clear that there’s a lot more work to do.

Right now, Guantánamo Naval Base seems very far away from the election going on in the United States. There are restrictions on what members of the military can say in uniform, so there aren’t a lot of public conversations about politics. I haven’t seen any political posters or bumper stickers. And there are no voting booths here, because those who vote do so by absentee ballot. Here at Guantánamo, it would be easy to forget about the election altogether.

This is ironic, because the outcome of the election is likely to have a profound effect on the lives of the 550 or so detainees who are imprisoned here. For the detainees who haven’t been charged with any crime, the election may determine whether they’re afforded a meaningful opportunity to challenge their continued detention. For the handful of detainees who’ve been charged, the election may determine whether they’re tried in traditional courts martial, with all the protections those proceedings entail, or in military commissions like the one that over the last three days has been hearing motions in the case of David Matthew Hicks.

Unfortunately, the hearing that took place in the Hicks case today confirmed what the ACLU and other legal and human rights organizations have been saying from the outset: the military commissions, at least as they’re set up now, are simply not capable of providing anything resembling fair process. Frankly, the commission today did not even seem interested in fair process. The panel members peppered the defense with hostile questions about even the most conservative legal arguments; by contrast, even when the prosecution proposed outlandish interpretations of international law, the panel members just nodded approvingly. The panelists chuckled when the prosecution compared the defense’s complaints about the process - which could result in a life sentence for Mr. Hicks - to a teenage girl’s complaints about her prom date. On two occasions, the Presiding Officer, Col. Peter Brownback, dismissively referred to defense counsel Dan Mori as “sunshine.”

More troubling still, the panelists - two of whom have no legal training, remember - struggled to understand even the most basic legal concepts. One of the charges levied against Hicks is “destruction of property by an unprivileged belligerent.” The defense appropriately moved to dismiss the charge on the grounds that destruction of property is a war crime only if the property is “protected” under the Geneva Conventions; the defense pointed out that the prosecution had not alleged that the destroyed property was protected. Col. Bogdan treated this straightforward argument as frivolous. He asked, “Isn’t the status of the property something we should decide at trial?” But, as any lawyer can tell you, the question of whether a crime has been alleged is certainly not something that should be decided at trial. We don’t subject a person to a criminal trial if the government can’t allege that he’s committed a crime.

It’s astounding that a kangaroo commission like this one has been invested with the authority to decide whether David Hicks spends his life in prison. The likelihood of his being afforded a full and fair trial seems vanishingly small.

We have just come back from the Clipper Club, which is the only restaurant on the leeward side of the Base that is open after seven o’clock. We spent most of the day on the other side of the Base, meeting with military officials and attending the commission hearings. It was a very long day. We missed the last ferry and had to come back to the Combined Bachelor’s Quarters (CBQ) on a gunboat (something like John Kerry’s swift boat, I’m told) and we didn’t get back here until well after nine.

The commission building is on a grassy hill at what I think may be the Base’s highest point, with a sweeping view over Guantánamo Bay and the windward side of the Base. There are several checkpoints you need to go through in order to get to the building; soldiers with machine guns check your ID, sift through your papers, and test your bags for explosives. When you finally get into the building, you’re led into a room that holds about 60 people. As in most courtrooms in the United States, there is a railing that divides the participants from the audience.

Today, the participants included three lawyers each from the prosecution and the defense, and the three-person military commission. David Hicks, well groomed and dressed in a suit, sat with the defense. I sat in the back with representatives of other legal and human rights groups, several journalists, commission staff, a dozen military officials, and a handful of people from the Justice Department and FBI.

The hearing itself was both fascinating and disturbing. The defense, led by Major Michael “Dan” Mori (the “detailed counsel,” or appointed military counsel) and Josh Dratel (Hicks’s civilian counsel) argued several motions having to do with the commission’s jurisdiction, the selection of panel members, and the participation of expert witnesses. I know Josh because we worked together a couple of years ago on litigation before the Foreign Intelligence Surveillance Court of Review, but before today I had never heard him argue in court. I thought he was extraordinarily articulate and well prepared. Dan Mori was also very good. Unfortunately, it’s already clear that the defense team has an unusually difficult job, because many of the commission’s rules are skewed in favor of the prosecution. (ACLU Executive Director Anthony Romero discussed some of these rules in the dispatches he filed from Guantánamo back in August.) Another reason that the defense’s job is unusually difficult is that, astoundingly, only one of the three commission panelists is a lawyer.

I don’t have time to write about all of the motions that were considered today, but let me mention one that led to a particularly interesting argument. One of the charges against Mr. Hicks is that he was an “unprivileged belligerent” who attempted to murder U.S. forces in Afghanistan. The defense argued today that the commission doesn’t have jurisdiction to consider the charge because the charge doesn’t allege a violation of the law of war. The defense argued, persuasively, that with a couple of exceptions the law of war protects only “privileged” persons — a category that includes civilians but not belligerents. Because Mr. Hicks is not accused of having sought to murder a privileged person, the defense argued, he is not accused of having violated the law of war and the commission doesn’t have jurisdiction to consider the charge.

It wasn’t clear to me that the two non-lawyers on the panel — Cols. Christopher Bogdan and Jack Sparks — fully understood the argument. Col. Bogdan, at least, seemed focused not on the legal status of the U.S. soldiers in Afghanistan but on the legal status of Mr. Hicks. It seemed that, in Col. Bogdan’s understanding, Mr. Hicks had violated the law of war simply by virtue of having been an unprivileged belligerent. The defense pressed its point, but with uncertain success. At the close of argument, Dan Mori asked Col. Bogdan whether his questions had been answered. Bogdan just grimaced and said, “maybe.”