Although the detainee who appeared in the Commission room today, Saudi citizen Ghassan Abdullah Al Sharbi, speaks fluent English, it has never been more apparent that the detainee and the Commission participants are speaking different languages. In riveting exchanges with Presiding Officer Daniel O’Toole, Al Sharbi made plain that he has fought against the United States, that he is proud of his actions, and that he is prepared to provide a full accounting and accept his punishment but he is emphatically opposed to being represented by a member of the United States military.

The sole issue in today’s proceeding was whether Al Sharbi would be permitted to represent himself before the Commission. He entered wearing prison garb “I want to wear the suit I’ve been wearing for more than four years,” he explained and hardly glanced at his assigned military defense counsel, Lt. William Kuebler. Al Sharbi, who earned a college degree in the United States, firmly and repeatedly stated that he wished to represent himself. “I’m going to make this easy and short for you,” he said. “I fought against the United States. I’m not going or be violent or cause trouble or commotion. I’m going to tell you what I did. I’m proud of what I did.”

The Presiding Officer repeatedly pressed Al Sharbi to acknowledge that he would be better served by counsel particularly because Commission rules permit the prosecution to present evidence that the accused may not see, but his military counsel may. “That is your perspective,” was Al Sharbi’s responsive refrain. “I see him wearing that military suit,” he said, gesturing at Kuebler. “I can’t trust him.”

This issue has arisen before. In denying Ali Hamza Ahmad Sulayman al Bahlul’s request to represent himself before the Commission, the “Appointing Authority,” who appoints and oversees the Presiding Officers, ruled that detainees must be represented by military defense counsel, even against their wishes. So it was somewhat unusual that the Presiding Officer persisted in questioning Al Sharbi as if he were seriously considering granting the self-representation request.

That impression was illusory. After a short recess, the Presiding Officer issued his “findings” once again citing no law and ruled that because Al Sharbi was “not familiar with Commission law,” and was not permitted access to classified evidence, he was not qualified to represent himself, even if such a right existed. (Whether Al Sharbi is “familiar” with the law would have no relevance whatsoever to his entitlement to represent himself under the Constitution or the UCMJ.)

Then things got interesting. Lt. Kuebler reported to the Presiding Officer that he had sought and obtained an ethics opinion from the State Bar of California, where he is licensed to practice, and that California Bar officials had advised him that he may not ethically represent Al Sharbi in these circumstances. He was therefore faced with competing obligations: he was under military orders to serve as Al Sharbi’s defense counsel, but to do so might potentially place his license to practice law at risk.

Presiding Officer O’Toole was plainly irritated, and he reiterated his view that the “fullness and fairness” of the proceedings required the participation of counsel who had access to all prosecution evidence. Nonetheless, he called a halt to the proceedings, and ordered Kuebler to submit a brief laying out his position by noon tomorrow. He will conduct a hearing on Kuebler’s ethical conflict in May. The episode was yet another indication that guidance from the Supreme Court, expected in late June, is sorely needed.

One of the unintentional virtues of a legal system operating without clear rules is that it’s rarely dull. Today was no exception. It was yet another day of firsts.

The Military Commissions featured their very first witness – a balding and burly officer identified colorfully as “Colonel B.” The pseudonym left some seasoned Commission observers, including members of the media, scratching their heads, because Colonel B is no mystery man. He is widely known as the officer in charge of custody operations here and has given media tours under his full name – which remained emblazoned on his uniform throughout today’s proceedings.

At issue today were the conditions of confinement to which the accused, Algerian citizen Sufyan Barhoumi, has been subjected for the last month. Mr. Barhoumi, like Mr. Al Qahtani, is accused of conspiracy for his alleged participation in al Qaeda explosives training. He is missing all but one finger on his left hand — the result, he explained during a so-called “Combat Status Review Tribunal,” of an accidental landmine explosion in 1997. During that prior tribunal, he emphatically denied al Qaeda membership and insisted that he traveled to Afghanistan in 1999 to train for battle against the Russians in Chechnya.

Barhoumi’s military defense counsel, Captain Wade Faulkner, initiated today’s hearing by challenging the transfer of Barhoumi from “Camp 4″ to “Camp 5,” and Colonel B was called to the stand to explain the circumstances of that transfer. Camp 4, Colonel B explained, is where most of the “highly compliant” detainees are housed. It is a medium security facility where detainees live and eat communally – “like a family picnic” – and have 10 to 14 hours of time outside the block and regular access to sports facilities. Camp 5, in contrast, is a traditional maximum security facility, where detainees are confined to their cells for all but two hours each day, and can communicate with the outside world only through a 12-inch “bean hole” in the door through which meals, mail, and other items are passed. For almost a year, until last month, Barhoumi was housed in Camp 4. Then, without warning or explanation, he was transferred to Camp 5.

Captain Faulkner wanted to know why his client was being subjected to what he reasonably considered to be punitive conditions. Colonel B – a straightforward witness taken to saying “negative” for “no” and “vo co” for “vocal command” – offered two reasons. First, he explained, the detention system was being reorganized, and he needed the space in Camp 4. This produced an exchange rich in tautology. Did Barhoumi’s presence in Camp 4, Captain Faulkner inquired, interfere with Colonel B’s reorganization plans? Yes, Colonel B replied.

Faulkner: How?
Colonel B: I need the space in Camp 4 for another detainee.
Faulkner: Why not move the other detainee to Camp 5, instead of moving Mr. Barhoumi?
Colonel B: Because the other detainee has been highly compliant and deserves to be in Camp 4.
Faulkner: Hasn’t Mr. Barhoumi been highly compliant?
Colonel B: Yes.

The second reason for moving Barhoumi to Camp 5, according to Colonel B, was that Army regulations, as well as the Third Geneva Convention – though they had “not quite caught up with the environment” at Guantanamo – suggested that the separation of “pretrial detainees” from the general population was required. This was exactly backwards. Army regulations, consistent with the Fifth and Fourteenth Amendments, require that pretrial detainees – that is, those who have not yet been convicted of a crime – be afforded greater rights than those already convicted. Any separation from the general population is effected in order to ensure that detainees awaiting trial are not subjected to any punishment prior to adjudication of guilt or innocence.

Citation to the Geneva Conventions was even more curious, and was yet another example of the Administration’s highly selective regard for that treaty. The Geneva Conventions plainly do not support the challenged transfer of Barhoumi to Camp 5 and, if they were recognized as binding authority at Guantanamo, would require a radical transformation of the detention and prosecution procedures at the camp – something that is unlikely to occur except under federal court order.

In the afternoon, Commission observers were treated to yet another first: Barhoumi himself took the witness stand to testify about the consequences of his transfer to Camp 5. The transfer, he said, had affected him both physically and psychologically. He removed the bandage on his left hand to reveal his damaged stump. The constant air conditioning was causing him discomfort, he explained, and he was having difficulty operating the sink and toilet, which required the pressing of a button. In Camp 5, there was no other detainee to assist him with various tasks. He believed that his transfer amounted to punishment, and he had considered boycotting Commission proceedings in protest.

Captain Faulkner then formally moved the Presiding Officer to order Mr. Barhoumi returned to Camp 4, or – if the Presiding Officer believed that he lacked the authority to compel such a transfer – to halt Commission proceedings until Barhoumi was returned to Camp 4. The Presiding Officer, after taking a recess to consider the motion, denied it, holding that there was no evidence of punitive intent underlying the transfer, and that Colonel B had provided legitimate reasons for Barhoumi’s transfer to which the Commission should defer.

The ruling, delivered in legal jargon familiar to anyone who has litigated prison conditions cases, sounded very much like a legal opinion, with one exception: It cited no law. Once again, observers and participants were left in the dark as to what body of law – the Constitution, the Uniform Code of Military Justice, international law, or something else – these Presiding Officers will apply to Commission proceedings. Perhaps, in time, the Supreme Court will supply that answer.

The Guantanamo Military Commissions that recommenced today the first war crimes tribunals conducted by the United States since Nuremberg have so far lacked the gravity, dignity, and sense of history of those proceedings. During my last visit here, I had an aimless but interesting discussion with a Canadian journalist about whether the improvised and error-filled proceedings we had just witnessed were better seen as tragedy or farce and that was months before one of the detainees arrived in court wearing an orange tunic dyed the color of prison jumpsuits and suggested that he be addressed as “Count Dracula.”

But the Commissions are similar to Nuremberg in a critical respect: in a very real sense, it is not just the detainees who are on trial here, but the Commission system itself. There is no clear precedent for what the U.S. is attempting here, and the legitimacy of this enterprise depends in large part on whether the U.S. can demonstrate to the world that it can provide justice to those it has accused of war crimes.

Mindful of the need to communicate that message to the world, the military has constructed an elaborate public relations apparatus. Members of the press (and, to a lesser extent, human rights monitors) are given tours and briefings. Every morning, the public relations officers read the day’s press accounts of the Commission proceedings they even read our blogs to assess whether the military’s position is being fairly represented. They are polite and reasonably accommodating. They do a good job. But their assignment is impossible.

As the saying goes, you can put lipstick on a pig, but it’s still a pig. It’s fair to say that the Commission proceedings have been a public relations disaster for the U.S. not because the congenial military spinners lack skill, but because they have such a lousy product to sell. When former members of the prosecution characterize the Commission system as a “fraud on the American people”; when a Commission member, sitting as judge and jury, concedes under questioning that he is unfamiliar with the Geneva Conventions; when the Commissions feature the extraordinary spectacle of a shouting match between two colonels in the U.S. military one the Presiding Officer, the other defense counsel over the lack of clear guidelines for these proceedings; the problem is not one of communications.

This morning’s proceedings in the prosecution of Saudi citizen Jabran Said bin al Qahtani, accused of conspiracy for his alleged participation in al Qaeda explosives training, will hardly change the narrative. Once again, in what has become something of a broken-record routine, the proceedings were dominated by issues of counsel. Like all accused detainees, Mr. al Qahtani is represented by a uniformed military officer even though he made absolutely clear today that he doesn’t want such representation. Indeed, al Qahtani showed nothing but contempt for the proceedings themselves, and chose not even to return for the afternoon proceedings. “You may sentence me if that is God’s will,” he said quietly. “A nation that is an enemy of God is not a leader and cannot be a leader.” Told by the Presiding Officer that he would be better off with a military defense lawyer, who would have access to classified evidence that he, the accused would not, al Qahtani replied, “This is nonsense.”

This presented familiar problems for al Qahtani’s military defense lawyer, Lt. Colonel Brian Broyles. On the one hand, he explained to the Presiding Officer, he believed that his client would be much better off with a vigorous defense. On the other hand, he was doubtful that his ethical obligations permitted him to provide that defense against the wishes of a client. He requested a delay in order to seek guidance from the State Bar of Kentucky and the Standards of Conduct office of the JAG corps. He was given an hour.

After a one-hour recess, Broyles reported that he had spoken by telephone to officials of each entity, and was told that he should “present the best defense that [he was] capable of giving” under the circumstances. He disagreed with those verbal opinions, and requested additional time to obtain written confirmation. The request was denied, and the rest of the day was given over to Broyles’ voir dire of the Presiding Officer. Al Qahtani’s chair was empty and, if the Supreme Court permits these tribunals to continue, is likely to remain so for the duration of his trial.

After a long voir dire hearing, the defense team decided to challenge the presiding officer’s fitness and impartiality on two grounds: 1) his extensive search and research of media articles regarding the case, in violation of the model code for judicial conduct; 2) his pending job application with the Justice Department for a position as an immigration law judge

The defense focused on the second challenge and argued that an immigration judge is subject to the Attorney General, who is very much interested in the outcome of the Khadr case before the military commission.

Attorney General Gonzales attended the Hamdan arguments at the Supreme Court, has defended the military commission and even published a 2001 op-ed defending the creation of the military commissions. He has also been part of the chain of command. Moreover, Mr. Khadr is party to litigation against the U.S. government, which is represented by the Justice Department, including in the current military commission proceedings!

The presiding officer, Col. Chester, denied the challenge and will publish his ruling on April 19. As more detainees appear before the military commission, the flaws in the system are only increasing and becoming more problematic. A system that is built from scratch and does not rely on valid and recognized constitutional and international standards of fairness and due process will only produce a travesty of justice.

Thursday’s long hearing started with a dramatic statement read by Omar Khadr. Lt. Col. Colby Vokey, his assigned military lawyer, asked the presiding officer to allow Omar to make a short statement. Mr. Khadr — who looked much older than 19 — read in English from a handwritten note:

“Excuse me Mr. Judge I’m being punished for exercising my right and being cooperative in participating in this military commission. . For that I say with my respect to you and everybody else here that I’m boycotting these procedures until I be treated humanely and fair.”

You can also see an image of Mr. Khadr’s handwritten statement on the Miami Herald Web site.

Mr. Khadr’s military lawyer explained that Mr. Khadr had been moved to solitary confinement since March 28 and that the government had not informed his attorneys or provided an official explanation for his move. The defense attorneys asserted that Mr. Khadr asked them not to move forward on his behalf. Mr. Khadr seemed desperate to challenge his conditions of confinement and used the threat of boycott as a way to express his complaints. He was not the first prisoner to utilize this threat, as my colleague Ben Wizner observed earlier.

Mr. Khadr is a Canadian citizen who was raised in Canada, Pakistan and Afghanistan, where he was captured in July 2002 when he was 15 years old. He was sent to Guantánamo in October 2002 and held without charges until November 2005. Mr. Khadr is charged with “murder by an unprivileged belligerent’ for his role in a firefight in an Afghan battlefield in which an American soldier was killed. According to his lawyers, Mr. Khadr was held for 40 months in solitary confinement, and was subjected to torture and abuse in U.S. custody both in Afghanistan and Guantánamo.

Despite his youth, he has been treated as an adult since his capture. The commission hearing today was no exception. The only contact he has with adults is with his attorneys and other adult prisoners who are facing charges before military commission.

Nothing is Normal

The presiding officer, Marine Col. Robert Chester, seemed more disturbed by the fact that he was not given a heads-up than by hearing Mr. Khadr’s allegation of ill treatment. He turned to the defense for evidence regarding this allegation and asked whether the defense was ready to present evidence. In a normal court of law, the judge would immediately inquire about the conditions of confinement and request an answer from the prosecution or the detaining authority. But in military commission proceedings, nothing is normal and the only certain thing is that the rules of today might not be the rules of tomorrow.

One of the most fundamental flaws in the system of military commissions is the uncertainty of the procedures and the lack of clarity with regard to the governing legal authorities.The defense has expressed its frustration with the procedural and security hurdles which severely inhibit their ability to carry out the defense. Military defense attorney Lt. Col. Vokey aggressively protested and complained about lack of information from the detaining authorities regarding the treatment and confinement of Mr. Khadr.

Since the decision of the Supreme Court in Rasul v. Bush, which held that the detainees had the right to access the courts, many lawyers have started to represent detainees held in Guantánamo and file writs of habeas corpus on their behalf. Most attorneys who now represent less than half of the 490 detainees do it on pro bono basis despite the unbearable restrictions. These restrictions include limited access to the prisoner and compliance with rigorous rules governing client visits, note taking with a client, and the use of a secure site for review of all notes from client interviews. For example, all lawyers’ notes have to be delivered from Guantánamo to a secure site in the Washington, D.C. area, which could take a long time before they are returned to the lawyer.

At one point in the proceedings Col. Chester directly addressed Mr. Khadr in an attempt to influence his decision to threaten boycotting the proceedings. This happened just after Mr. Khadr’s attorneys explained that he did not want them to proceed before looking into the issue of solitary confinement. The presiding officer tried to convince Mr. Khadr to put his threat of boycott aside until the defense presents evidence regarding his allegation by Friday. Col. Chester said to Mr. Khadr: “I would like you to allow us to do that if you will.”

That sparked an immediate response from his civilian counsel, Muneer Ahmed from Washington College of Law at the American University, who noted his protest over the presiding officer’s inappropriate intrusion into the lawyer-client relationship. Indeed, Col. Chester’s tone and the way he addressed Mr. Khadr raise serious concern about how the presiding officer conceived the due process rights of the prisoner and the lawyer-client relationship.

Finally, defense counsel Ahmed raised the ethical conflict and problem in allowing the proceedings to continue while Mr. Khadr is asking the attorneys not to do so. Nevertheless, the presiding officer decided to continue with the proceedings and suggested to the attorneys that if they have an ethical problem they should withdraw from representation.

If in fact the presiding officer will hear evidence regarding the treatment of Mr. Khadr and his conditions of confinement at Guantánamo, it will be the first time a military commission agrees to such proceedings. Only once before has the issue of conditions come up during the military commission proceedings, when DC District Court Judge James Robertson heard Salim Hamdan’s case and issued an order regarding his transfer from solitary confinement (see page 42 of the order - PDF file).

The four pages of charges against Mr. Zahir contain very little detail regarding the attack on the car. But they are replete with information about al Qaida and its terrorist mission and plans, and about Mr. Zahir’s work as a translator for the Taliban and his other services to al Qaida.

It’s ironic that while Mr. Zahir worked as a translator for the Taliban, in Tuesday’s hearing there was no official translation to Farsi available to him. Despite his prolonged detention at Guantánamo and the fact he was designated as entitled to a trial almost 2 years ago, Mr. Zahir received the written charges against him in English, Arabic and Peshtu but not in his native Farsi.

The charges against Mr. Zahir were merely read aloud to him by his military counsel. One can only wonder in what language he was interrogated, or why his military defense attorney was able to hire a Farsi translator but this entire commission system failed to provide the first Afghan national to be charged with war crimes the elementary right to an interpreter’s assistance free of charge.

To avoid postponing the hearing, both parties agreed that the defense interpreter provide Farsi translation for Mr. Zahir. But adding insult to injury, no one from the military commission nor the chief prosecutor could explain this failure.

Much of Tuesday’s hearing focused on the defense’s voir dire inquiry, their opportunity to question impartiality of the presiding offcier and educate the panel about the facts and the law in the case. While it is rarely used in criminal federal trials, this process gains particular significance in military commission trials where the governing rules and laws are not clearly defined and are subject to change by the appointing authority.

The military defense counsel respectfully asked questions, sometimes very personal, to insure the supposedly impartiality of the presiding officer, Marine Col. Robert Chester. Unfortunately, in many instances the military defense counsel missed the opportunity to follow up on the answers. One particularly important question related to the laws governing the military commissions. The presiding officer has said that he thinks “international law will have some application here,” and he also said that military criminal law, the Uniform Code of Military Justice, and federal criminal law would assist in closing gaps.

When asked about the relevance of the Supreme Court’s U.S. v. Alvarez-Machain decision, the presiding officer replied that he thought it was relevant: “We are outside the U.S. and the accused is a foreign national.” This decision addressed whether federal law enforcement officers, and agents of the Drug Enforcement Administration in particular, can enforce a federal criminal statute that applies to acts perpetrated against a United States official in a foreign country by arresting an indicted criminal suspect on probable cause in a foreign country.

In further questioning by the military defense counsel, the following additional information about the presiding officer was revealed:

• He provided legal advice to General Madison in Afghanistan regarding the participation of women in combat;
• He looked on Lexis-Nexus and found one article on the Nuremberg trials particularly helpful;
• He said that he routinely checks the internet website of Fox news and watches Lou Dobbs on CNN;
• He is not subscribed to any newspaper and that he would watch the O’Reilly Factor “until it gets too obnoxious;”
• He is reading news report and clips regarding the press coverage of the Khadr case in order to raise any problems that would affect the full and fair trial principle;
• He spent 2 1/2 months in Iraq as a military judge but did not have encounter with locals except when he had to buy electricity converter.

During the voir dire hearing many references were made to Khadr’s trial which was scheduled to resume Wednesday. Both hearings are before Marine Col. Robert Chester, so hopefully we will also hear answers to critical follow-up questions for the presiding officer, who also did not hide his plans to seek a judicial appointment after his approaching retirement from the military.

Mr. Zahir’s hearing will resume in July. Meanwhile his military defense counsel will travel to Afghanistan in order to prepare the defense. By the time he returns from Afghanistan hopefully the Supreme Court will have put an end to this kangaroo trial.

Tuesday was the first appearance of Abdul Zahir before the military commission. Mr. Zahir is 35-year-old Afghani who was designated eligible to face this military commission by President Bush in 2004. But he was only formally charged this year, in February 2006.

Mr. Zahir walked slowly into the commission room escorted by military personnel, his hands shackled. He sat next to the defense interpreter and military defense counsel, Lt. Col. Thomas Bogar. Unlike most of the prisoners who have appeared before the commission, he did not have a civilian counsel (though he later he may ask for one in the future). According to the commission rules, prisoners facing charges are entitled to a free military defense counsel and unpaid civilian attorney who must be a U.S. citizen with appropriate security clearance.

The system of military commissions is very deceptive. It appears at first to be a court of justice with a fair process and impartial role. In reality, it is a deficient system rife with legal and procedural problems that, if allowed to persist, ultimately lead to travesty of justice.

The supposed judge is called a “presiding officer,” nominated by a Pentagon official, called the “appointing authority,” who in turn reports to the Secretary of Defense, who reports to the President. As this process comes under increased scrutiny, the administration is doing what it can to make the commission system appear functional, legitimate and most of all fair. Even the dress of the “presiding officer” has changed. This week he wore a black robe over his military uniform, a costume this office did not wear when I was hear in 2004 observing the Hamdan case.

Mr. Zahir is the first Afghan national to appear before the commission. The general allegation against him is conspiracy to commit war crimes. In fact, the allegation of conspiracy to commit war crimes appears almost in all the ten charge sheets filed against the prisoners facing military commission trials. Under international humanitarian law, also known as the Laws of War, the crime of conspiracy to commit war crimes is not recognized, and customary international criminal law clearly defines conspiracy as a crime itself only for the offences of “conspiracy to commit genocide.”

Mr. Zahir is also charged with aiding the enemy (al Qaida and the Taliban) between 1997 and July 2002, and, with others, throwing a grenade on a civilian car in Gardez, Afghanistan, and injuring a Toronto Star reporter who was in the vehicle. It’s interesting that we learned more about Mr. Zahir’s alleged involvement in the attack during the press briefing after the hearing than we knew from the charge sheet or from observing the hearing itself.

to be continued…

One of the cases before the military commission this week is the case of Omar Khadr, a Canadian citizen who was 15-year-old when he was detained in Bagram, Afghanistan in July 2002. He was transferred to Guantánamo in October 2002 and held without charges until November 2005. Omar was held for 40 months in solitary confinement, and according to his lawyers was subjected to torture and cruel, inhuman, and degrading treatment at the hands of U.S. military personnel in both Bagram and Guantánamo.

Despite his young age, Omar has been treated as an adult since his capture, even as other children detained by the U.S. have received educational programs and have been released. He is charged with “murder by an unprivileged belligerent” for his role in a firefight in an Afghan battlefield in which an American soldier was killed.

Coincidently, the Miami Herald just ran an investigative report on its front page about the systemic use of force by guards at the juvenile detention facility Boot Camp in Panama City, Florida. Based on official documents (use of force reports written by the guards themselves) released under Florida’s public record law, even though most of the reports cited “serious disruption” as the reason for the use of force, almost none of the youths actually behaved violently toward the camp guards.

This violation of juvenile human rights is not unique to Florida and Boot camp. It reflects a larger problem in many other U.S. juvenile detention facilities, as well as in many prisons and adult facilities across the nation. While Omar Khadr’s foot might not have stepped on U.S. soil, he and many other detainees in Guantánamo have been subjected to abusive interrogation methods and treatments that have also been reported at other U.S prisons and detention facilities.

The Taguba Report on the Abu Ghraib, for instance, found that military police guards lacked training in detention procedures and relied on personnel with civilian corrections experience to guide them.

There is some media interest in the military commission hearings and major news agencies have sent representatives to cover the resumption of the hearings, including the Saudi news agency and the U.S. funded Arabic-language TV station al Hura and radio Sawa.

On my way to Guantánamo, I read the front page Washington Post story about Bisher al-Rawi and Jamil el-Banna, two permanent UK residents who were abducted and disappeared in Gambia by U.S. intelligence officers in 2002. They were unlawfully rendered to the U.S. military airbase in Bagram, Afghanistan before being sent to Guantánamo, where they continue to be held without charges or fair trials.

Interestingly enough, one of the men was officially a former MI5 informant and both men were cleared to travel to Gambia to do business by the British intelligence services. On March 12, 2003, Rawi wrote a letter to his family in London:

Dear Mum and family, I’m writing to you from the seaside resort of Guantánamo Bay in Cuba. After winning first prize in a competition, I was whisked to this nice resort with all expenses paid (I did not need to spend a penny). . . . Everyone is very nice, the neighbors are very well-mannered, the food is best class, plenty of fun.

Guantánamo still has a long way to go before it becomes an exotic resort for its prisoners. Only with this week’s release and review of additional Guantánamo documents, might we even know who all the prisoners here are. Many of the approximately 490 prisoners still held here are not even officially listed, or accounted for by the U.S. military.

The majority of the detainees still do not have access to lawyers or independent doctors, and many of them have been on hunger strike in protest of their continued indefinite detention and the conditions of their confinement; several were even harshly forced fed and restrained in chairs.

The U.S. has repeatedly refused to allow independent UN experts to visit and monitor the situation in Guantánamo. In February 2006, UN experts concluded that interrogation techniques authorized by the Department of Defense amounted to degrading treatment and “amounted to torture.” The report also concluded that the widespread and prolonged use of solitary confinement under conditions of indefinite detention by the U.S. amounted to inhuman treatment.

The UN report found that reports of excessive violence during the force-feeding of detainees on hunger strike met the definition of torture under the Convention against Torture, which the U.S. ratified in 1994.

The only organization that does have access to Guantánamo prisoners and detention camps is the International Committee of the Red Cross which does not make its findings public. Therefore little is known about the real conditions of confinement in those camps.

Thus far the U.S. military has allowed human rights organizations, including the ACLU, to observe and monitor only the military commission hearings, with no access to all detention facilities and the prisoners. One wonders what the administration has to hide from the world and what message we are sending to other countries when we refuses to allow U.N. independent experts to monitor the conditions or meet privately with prisoners who have been here in isolation for over four years.

As Secretary of State Condoleezza Rice concludes a visit to Iraq and the UK, amid increasing opposition to U.S. policies, and with the Supreme Court challenge to the Guantánamo military tribunals pending a final decision, the military commission hearings are resuming here this week.

Four out of the ten prisoners charged with war crimes and referred for prosecution will come before the commission: Abdul Zahir (35) from Afghanistan, Ali Hamza al Bahlul (39) from Yemen, Omar Khadr (19) from Canada, and Binyam Ahmad Muhammad (27), who was born in Ethiopia but moved to the UK in his teens.

The last time I observed this commission in person was in November 2004. At the time only four prisoners were charged and Salim Ahmed Hamdan’s hearing was scheduled to start but was abruptly halted when a federal district court judge held that the use of military commissions to try detainees violated the U.S. Constitution and international law.

The Supreme Court heard oral arguments in Hamdan v. Rumsfeld last week. A decision is expected by June 2006 on whether this military commission, established by President Bush in November 2001, is duly authorized under Congress’s Authorization for the Use of Military Force; the Uniform Code of Military Justice; or through the “inherent powers” of the President as commander in chief.

Additionally and perhaps more critically the Supreme Court will decide whether Mr. Hamdan and other similarly situated prisoners can even seek enforcement of their rights under the Geneva Convention from Article III courts such as the Supreme Court and other lower courts established by Congress.

The Court’s ruling will be the first judicial examination of the 2005 Detainee Treatment Act, which includes the Graham-Levin Amendment stripping U.S. courts’ jurisdiction over almost any challenges by Guantánamo detainees regarding their detention.

Just days before Hamdan reached the high court, the U.S. military introduced a new commission instruction that could bar the admission of coerced confessions. The move seems like like a desperate attempt to continue to defend the extra-judicial commission, and perhaps even to influence the Justices’ deliberations.

But this new rule, and several others, fail to guarantee an independent trial court, or to provide impartial appellate review. And though they may prohibit the use of evidence obtained through torture, they contain few safeguards to make that prohibition meaningful and they do not exclude evidence exhorted under coercive interrogation techniques that fall short of torture but are still prohibited under the Convention against Torture.