(Originally posted on Daily Kos.)

There’s been little time for blogging, but then there’s been less need — Hamdan is front-page news worldwide today, and you can read excellent accounts of Wednesday’s remarkable proceedings here, here, and here.

There was a feeling on Wednesday — and this was evident on the faces of the prosecutors — that the jurors had struck a major blow against the Guantánamo military commissions. For the last seven years, uniformed military officers have been pushing back, sometimes dramatically, against the most extreme detention and interrogation policies of the Bush Administration. Charlie Swift, Alberto Mora, Antonio Taguba — and many more whose names are not well known — have stood up for the best traditions of military justice, and for the principle that the United States military must treat its enemies as we demand to be treated by them. We may never know why the military commission members acquitted Hamdan of the most serious charges against him, but there was no mistaking the impact of their decision. Harry Schneider, one of Hamdan’s lawyers, quipped that Hamdan’s phone call home to Yemen would likely be an easier one than the prosecutors’ call to Washington.

The sentencing phase is now underway. The prosecution sought to call one witness: an FBI agent who was on the scene at the World Trade Center on 9/11 who would describe the carnage and chaos of that day. But, having failed to convict Hamdan of participation in a terrorist conspiracy, the prosecution was unable to persuade Judge Allred that 9/11 victim testimony was relevant to Hamdan’s punishment. “Guilt is personal in the United States, sir,” argued Lt. Commander Brian Mizer, one of Hamdan’s lawyers. Judge Allred agreed, stating that Hamdan was “so little involved” in Al Qaeda’s activities, his support was “so small,” that it would be unduly prejudicial to make it appear that he was responsible for the 9/11 attacks.

As has been common in these proceedings, the prosecutors did not give up, and continued to argue throughout the afternoon that the FBI agent should be permitted to testify.

“Nothing could be more closely connected,” argued lead prosecutor John Murphy, than Hamdan’s driving and bodyguard duties and the attacks of 9/11. But Judge Allred was unpersuaded. “I know you think that man, many people want some vindication for those attacks,” he said. But Hamdan’s role was so marginal and attenuated that there was simply no basis for turning the sentencing hearing into another grisly horror show.

Hamdan is expected to take the stand on Thursday and address the jurors directly. We are told that the prosecutors may attempt to close the courtroom for part of this testimony — once again pressing the outrageous argument that Hamdan is in possession of classified evidence simply by virtue of what the United States has done with him and to him since his capture. (Journalists have speculated that what the administration truly wants to conceal is that Hamdan offered to help the United States capture bin Laden in November of 2001 — an offer that was rejected. The defense has obliquely referred to a “squandered opportunity,” but will say no more.)

Today may be the final day of this historic trial. If wiser heads prevail, this first trial by unjust military commission will also be the last.

(Originally posted on Daily Kos.)

On Friday, Hamdan’s lawyers wrapped up their defense with dramatic written testimony from alleged 9/11 mastermind Khalid Sheikh Mohammed, the essence of which was that Hamdan — as the evidence had already demonstrated — was a menial figure in the Al Qaeda universe. The day before, all trial observers without top-level security clearances had been excluded from the courtroom for the testimony of two defense witnesses, so it is conceivable (though highly unlikely — these were defense witnesses, after all) that a verdict could be returned on the basis of evidence that the world will never see.

Judge Allred adjourned the trial until Monday morning, when closing arguments will be delivered by both sides. Meaning: we had the weekend off.

I bumped into most of the defense team in the laundry tent — a gathering point for the overworked and underpacked residents of Camp Justice. And Saturday seemed like a good day for a haircut. Our superb and soulful military escort suggested we stop by a corrugated metal shack where Cuban migrants who were picked up en route to Florida operate a makeshift woodworking and barbershop. There were certain departures from what I would call ordinary barbershop procedure. For example, there were no mirrors. On the other hand, there was plenty of ice cold Modelo with lime. Others can judge the results.

We visited the base’s library for the first time, and I selected from the “free” pile a promising pulp mystery called Deadly Beloved. (Opening line: “The woman in the skimpy black bikini on the perfect beach on the too perfect day was me.”) I bought a camera and a Coast Guard T-shirt (”Patrolling Castro’s Backyard”).

On Saturday night, the base’s many Jamaican workers celebrated Jamaican Independence Day with a cultural exposition and party, with dance troupes and a reggae band flown in from the island, and vats of jerk chicken and curried goat. We shared a picnic table with a sailor and a contractor onshore from a Navy destroyer, and they asked what I was doing on the base. The contractor had never heard of the ACLU, prompting the sailor to look at her quizzically and say: “Have you heard of the Dallas Cowboys?” I’m not a Cowboys fan, but I’ve always thought of the ACLU as America’s Team.

The word “Guantánamo” has become so synonymous with indefinite detention and coercive interrogation that many Americans are unaware of the culturally diverse community that supports — some might even say “materially supports” — the military mission here. This weekend, I was immensely grateful for their presence and their generosity.

On Monday, the trial will conclude with closing statements from the prosecution and defense, after which the military officers who comprise the “commission” will withdraw to deliberate. There will be little suspense — not only because Hamdan will likely not be acquitted, but because, in the twisted world of Guantánamo detention, even acquittal would not lead to release. It is not the jury that will determine Hamdan’s fate, but the nation. Perhaps, when all is said and done, Hamdan’s embarrassing trial will accelerate Guantánamo’s inevitable endgame.

(Originally posted on Daily Kos.)

On Wednesday, we discovered that the government may actually be more intent on covering up its own criminality than in establishing Hamdan’s. Or perhaps the prosecution simply recognizes that an acquittal is virtually inconceivable in any military commission trial. Whatever the reason, the government demonstrated that it would rather lose the testimony of a key witness than allow Guantánamo’s secret interrogation regime to be exposed to public or judicial scrutiny.

At issue was whether Robert McFadden, a Special Agent of the Naval Criminal Investigative Service — the only government witness who purports to have heard Hamdan reveal that he swore bayat, or allegiance, to Osama Bin Laden (Hamdan says he didn’t) — would be permitted to testify. But it was soon apparent that far more was at stake than the testimony of a single witness. The dispute threatened to expose a very different Guantánamo than the one portrayed in the government’s case.

Hamdan and his lawyers have long contended that the prosecution’s Guantánamo — where polite, well-spoken FBI and military investigators bring McDonald’s French fries to detainees and conduct professional, non-coercive interrogations — is at best a small part of the story. Wholly absent from the government’s case are agents of "unnamed" agencies who wake detainees in the dead of night and apply interrogation techniques long banned by civilized nations.

For years, Hamdan’s lawyers have demanded that the government turn over records not only of the polite interrogations conducted by polished prosecution witnesses, but of all interrogations of Hamdan, so that the court could properly evaluate whether his statements were provided voluntarily. Hamdan alleged in earlier proceedings that he himself had been exposed to sleep deprivation and even sexual humiliation by a female interrogator — allegations that government lawyers ridiculed. But Hamdan was telling the truth.

Although the government has had five years to collect these critical records, Hamdan’s lawyers received many of them just days before trial, and others not until after the trial had begun — a truly shocking violation of discovery rules made all the more remarkable by the stakes of this case. We learned today that one of those documents includes a female interrogator’s account of her sexual humiliation of Hamdan. Others describe his being woken repeatedly in the night and moved between cells — including the night before his interview with Special Agent McFadden. On Monday, the military judge had instructed the government that, as sanction for its failure to provide those critical documents in a timely manner, McFadden would be barred from testifying — unless the government could demonstrate convincingly that Hamdan had not been mistreated.

But the government did no such thing, nor did it really even try. It did not present a single witness who was involved in Hamdan’s late-night interrogations, or even in his detention. Quite simply, the government preferred to risk losing a witness who, in an ordinary proceeding, would be deemed absolutely critical to its conspiracy charge against Hamdan, than be forced to put CIA and military intelligence officers on the stand to testify about their routine abuse of detainees.

Although we remain in the dark about the damning details of Hamdan’s treatment by intelligence officers, we did hear some of the more prosaic details of Hamdan’s camp disciplinary record, as detailed meticulously in the "military police desk blotter." Hamdan, we learned, had become "aggressive" and "outraged" and had used "derogatory language towards guard staff" on one occasion when he was denied a soccer ball — presumably when he was living in communal housing prior to his transfer into solitary confinement. On a few occasions Hamdan was discovered with "contraband," begging certain obvious questions and reminding me, unavoidably, of this. One entry noted a "positive behavior status report" (evidently a good thing) for which Hamdan was rewarded, heartbreakingly, with two family photographs. Even Guantánamo’s small kindnesses somehow manage to invoke its cruelty.

Notwithstanding their complete failure to explain why Hamdan would have been deprived of sleep the night before a critical interrogation, government lawyers insisted that there should be no sanction: to exclude testimony, the prosecution contended, would be to "cast sort of a dark cloud over the agents and those who worked with the detainees." But this is exactly backwards. The "dark cloud" has been hovering over Guantánamo for years. It was Donald Rumsfeld who, as early as December, 2002 approved the use of "hooding," "exploitation of phobias," "stress positions," sleep deprivation, and other inhumane tactics for use on detainees here. It was the government that turned the Guantánamo detention facility into a virtual laboratory for cruel and coercive interrogations — and that now insists on being able to prosecute detainees while keeping that cruelty under tight seal.

It was left to one of Hamdan’s civilian lawyers, Seattle attorney Harry Schneider, to sum up the feeling of many observers of this sad spectacle. "It’s not a happy day," Schneider argued, when Mr. Hamdan’s testimony must be considered more credible than the testimony of government agents. "It’s my country, too."

At Guantánamo Bay, sometimes we need that reminder.

(Originally posted on Daily Kos.)

It was movie day at the military commission trial of Salim Hamdan — or rather, in the government’s words, “motion picture presentation” day. The motion picture in question was The Al-Qaida Plan, a 90-minute video commissioned by the Pentagon for use at military tribunals and prepared and presented by one Evan Kohlman, a 29-year-old self-described “International Terrorism Consultant” who has been dubbed “the Doogie Howser of Terrorism.” The purpose of this exercise was to allow the prosecution to present a stockpile of footage depicting bearded Arabs firing guns, charred bodies, gruesome beheadings, and the September 11 carnage — even though every single government witness to take the stand has testified that Hamdan had no role in the planning or execution of any terrorist attack, let alone 9/11.

Kohlman — who studied Al Qaeda in college, does not speak Arabic, has no graduate degree in a relevant field, and has never traveled to Afghanistan or Pakistan — is the kind of witness who might (ok, did) gravely intone: “Unfortunately, I know Bin Laden’s voice better than I know the voices of my own family members” — and who described another Al Qaeda member as “currently dead.” And The Al-Qaida Plan is the kind of film that can present an entire chapter about the rise of the anti-Soviet mujahedeen in Afghanistan without a single mention of the U.S. role in funding those fighters. (Even Tom Hanks and Julia Roberts know better. Still, Kohlman assured the commission members that all of his work was “carefully footnoted.”

He made The Al-Qaida Plan at the government’s request and expense, and its title — chosen by Kohlman and the prosecution — is expressly derivative of the The Nazi Plan, a film that was shown at the Nuremberg tribunals. (That film required only 45 minutes to catalog the Nazi horror, but then again, 9/11 changed everything.) You might think that the government would be less eager to invite comparisons to Nuremberg. Can anyone imagine those historic proceedings commencing with the prosecution of Hitler’s driver? In fact, that driver did appear at Nuremberg: as a witness, not a defendant. As commenter Gary Norton pointed out on Saturday, he was never charged and evidently died of old age.

As it happens, The Al-Qaida Plan was not the first movie I saw at Guantánamo this week. On Friday night, a few of us went to see the new Batman movie, The Dark Knight, at Guantánamo’s Downtown Lyceum, a free, open-air movie theater. (We were glad to see the presiding military judge, Navy Captain Keith Allred, taking in the scene as well.) The picture was poor and the sound quality even worse, so I missed a fair amount and decided to read some reviews.

The Dark Knight, it turns out, is a kind of Rorschach test. Andrew Klavan, in a Wall Street Journal op-ed, makes the claim that the film is “a paean of praise to the fortitude and moral courage that has been shown by George W. Bush in this time of terror and war.” (No, I did not make that up. Click the link, but be forewarned: reading Klavan’s piece might make you dumber.) Meanwhile, over on AlterNet, Michael Dudley sees a film that “reveals the supposed existential crisis of the ‘war on terror’ for the cruel and dehumanizing proposition it is.”

In much the same way, critics and defenders of the Guantánamo military commissions seem to be observing two entirely different trials. Prosecutors and Pentagon public affairs officers are quick to point to recognizable hallmarks of a fair trial system: Hamdan has superb lawyers, for example, and his guilt must be determined beyond a reasonable doubt. I, on the other hand, might emphasize certain departures from ordinary criminal trials, like the unique and extraordinary fact that Hamdan is already serving an effective life sentence as an “enemy combatant,” and may be detained until the “cessation of hostilities” in the “war on terror” — whatever that means — even if he is somehow acquitted. Or, that military commission rules permit a defendant to be convicted on the basis of evidence that has literally been beaten out of him and other prisoners.

On Tuesday, Evan Kohlman and The Al-Qaida Plan will face cross-examination by the defense, and observers will have one more chance to experience pride or shame, tragedy or farce.

(Originally posted on DailyKos.)

There’s a telling scene near the beginning of The Dark Side, Jane Mayer’s indispensable chronicle of the Bush Administration’s descent into torture and criminality. Shortly after the September 11 attacks, CIA Director George Tenet was advised that that CIA had followed two of the hijackers into the United States in 2000, and then dropped the trail — without alerting the FBI to their presence in the U.S. “Upon hearing the news,” Mayer reports, Tenet “reeled back in his chair and groaned. ‘We’re fucked,’ is all he said.”

Well, yes. But who? Certainly not Tenet: after failing to detect one grave threat, then helping to “slam dunk” another (manufactured) one onto the American public, Tenet rode out of town with a $4 million book advance and a Presidential Medal of Freedom. But what about the rest of us?

There’s a sense in which this week’s lamentable proceedings in the military commission trial of Salim Ahmed Hamdan can be traced to the CIA’s pre-9/11 failures. It was the 9/11 attacks that provided the impetus for Cheney and Tenet and Rumsfeld to abandon our nation’s historic commitment to human rights and the rule of law and steer a course for “the dark side.” It was in response to the attacks that those high government officials enlisted unscrupulous lawyers to disfigure the Constitution and international law and, in Mayer’s words, to make “torture the official law of the land in all but name.” And once the United States had become a regime of torture, there was a need to devise a legal system in which the fruits of that systematic cruelty could be used in court — while its methods were concealed from the public.

Hamdan’s trial is the nation’s first war crimes tribunal since the Second World War — a momentous and historic event that, after its first full week, left observers scratching their heads. After seven years of false starts and legal setbacks, with the entire world watching to see if the United States can deliver justice to terrorism suspects, the U.S has chosen to inaugurate these commissions by targeting a marginal figure — and a cooperating witness, to boot. All week, investigators from the FBI and the military took the stand and described Hamdan as “polite,” “cordial,” “cooperative,” “civil,” and even “amiable.” In dozens of interrogations with dozens of investigators, Hamdan willingly described his role as a driver for Osama in Laden, drew maps of Bin Laden’s safe houses and training camps, took agents on tours of those locations in Afghanistan, identified scores of Al Qaeda figures from photo arrays, and provided evidence that was directly helpful to the FBI in its investigation of the USS Cole bombing. Each of these witnesses testified that there was no evidence whatsoever linking Hamdan to the planning or execution of any terrorist attack.

At no time during any of these interrogations was Hamdan — a man with a fourth-grade education — advised that his cooperation and assistance could be used to incriminate and punish him — a circumstance that would exclude all of those statements from any civil or military trial in the U.S. In defending the military commissions’ elimination of the right against self-incrimination, the Bush administration and its defenders have made the claim that our soldiers cannot be expected to provide Miranda warnings in the heat of battle. But that hypothetical is a complete and utter fallacy. Hamdan was not interrogated on a battlefield or in a cave, but in an air-conditioned trailer, thousands of miles and many months removed from any battle. In one particularly poignant instance, Hamdan sat on the floor with his Arabic-speaking FBI interrogators, wept with gratitude after being allowed to call home for the first time, wished the agents a safe journey, and hugged them as they departed. Six years later, the information he shared with those investigators is being used to convict him.

There were glimpses of “the dark side” in this week’s testimony, particularly on Friday, when Hamdan’s lawyers introduced a classified document confirming that on the very same day that Hamdan had provided helpful information to FBI agents, he was awoken at midnight by an “agency” that could not be named, and subjected to interrogation techniques that could not be described. It appears that this entire trial will be conducted without acknowledgment that the CIA even exists.
This is a convenient legal fiction for the government, allowing prosecution of the alleged crimes committed by the detainees, without any discussion of the crimes committed against them.

The final witness of the week provided one of its most memorable lines. FBI Special Agent George Crouch was asked by the defense whether he would be surprised to learn that while Hamdan was standing trial at Guantanamo, other more senior members of Bin Laden’s security detail, including his chief bodyguard who had facilitated his escape fter 9/11, had been released from Guantánamo without ever being charged. Crouch responded: “Nothing surprises me any more.”

I know the feeling.

It’s been a riveting month at Guantánamo. First was the sad spectacle of the “arraignment” of alleged 9/11 conspirators — in a courtroom expressly designed to suppress their statements about brutal torture in CIA custody, and in a system expressly fashioned to permit their execution on the basis of evidence extracted through that torture. The embarrassing proceedings were rushed forward in a last-ditch Bush administration effort to turn Guantánamo to its political advantage, but, as usual, it was the administration that endured ridicule for the very public collapse of its “full and fair” military commission system.

And then, on Thursday, the hammer truly fell with the Supreme Court’s final rebuke to the legal and moral disaster of the Guantánamo detention regime. We shouldn’t need a Supreme Court decision to remind us that executive detention without judicial review violates our most fundamental constitutional values — but we did, and the Court delivered, and we should be proud of the Court and of our system and of all the lawyers who worked for six years to make yesterday’s landmark decision possible.

We have had moments like this in the last four years, only to see defeat snatched from the jaws of victory. This was the third Supreme Court repudiation of Guantánamo “justice,” but after each of the first two victories — Rasul in 2004, and Hamdan in 2006 — the Bush administration and a compliant Republican Congress effectively reversed the Court’s decisions with ill-advised (and, we can now say, unconstitutional) legislation — only to be reversed again by the Court. Could it happen again? There’s a sense, I think, that this constitutional whack-a-mole may be over, and that the administration may have permanently overplayed its hand.

So why is my own celebration muted? I can’t stop thinking about a scene I witnessed in Guantánamo this past April during military commission proceedings against Salim Ahmed Hamdan, whose challenge to the legality of President Bush’s first military commission system resulted in a resounding Supreme Court defeat for the Bush Administration. The military judge saluted Hamdan, telling him that he should be proud to have taken on the government and won. But Hamdan pointed out that his victory had been hollow — that his reward was to face trial once again in unfair and illegal proceeding.

Hamdan the case is already being studied by law students, but Hamdan the man is sitting alone, as you read this, in a windowless cell. He and the other men still detained are closer than ever to having their detention reviewed by an impartial decision maker. But these cases could have been in court many years ago had the administration not fought so tirelessly to evade the rule of law.

Earlier this week I had another painful reminder of the consequences of the administration’s abandonment of the rule of law. I was in Germany visiting my client, Khaled El-Masri, perhaps the best-known victim of the CIA’s so-called extraordinary rendition program. El-Masri, an entirely innocent man, was kidnapped by the CIA, chained to the floor of a plane, injected with drugs, transported to a secret prison in Afghanistan, interrogated under torture, and only released months after the CIA realized it had abducted the wrong man. Like the vast majority of Guantánamo detainees, he was never charged with a crime. Like the Guantánamo detainees, he was transported to a place where, in the administration’s view, no law applied. We may never know how many of the Guantánamo detainees were innocent, like El-Masri. But we know without doubt that when the protections of our Constitution and international law are stripped away, such tragic mistakes go uncorrected. There’s reason to hope that the Boumediene decision will prevent the needless suffering of the next Khaled El-Masri. And that’s certainly worth celebrating.

Last month I participated in a Federalist Society-sponsored debate about the administration’s torture and detention policies. After the event, one of several federal judges in attendance challenged me on my frequent use of the word “torture.” “That word gets thrown around a lot,” he said. “I don’t think making someone listen to loud music or wear women’s underwear on his head is torture.”

I suspect the judge spoke for many Americans. When “enhanced interrogation techniques” are discussed in abstract and generalized terms, it’s much easier to trivialize human suffering, or to ignore it. Abu Ghraib has been universally condemned - or almost universally, anyway - not because the abuses there were any more brutal than elsewhere, but because the ghoulish photos of human beings on leashes, or stacked naked in a pyramid, or standing hooded on a box, were tangible and real in a way that words on a page simply cannot be.

But often words are all we have. Together with my colleagues, I represent several men who were tortured - no other word will suffice - by the CIA in secret “black site” detention facilities. That torture included “loud music.” Here is how Binyam Mohamed, an Ethiopian citizen and U.K resident, was treated in the CIA’s “Dark Prison” in Kabul, Afghanistan:

On his first day in the “Dark Prison,” Mr. Mohamed was hung from a pole in his cell. On his second day, he was allowed only a few hours sleep and then hung up again. By the time he was next taken down - two days after that - his legs were swollen and his wrists and hands had gone numb. Over the following weeks, loud music, the sounds of “ghost laughter,” thunder, aircraft taking off, the screams of women and children, and other frightening and irritating sounds were piped into his cell twenty-four hours a day. To ensure that sleep was difficult, if not impossible, masked guards would visit the cells throughout the night and make loud noises.

Another of our clients, Yemeni citizen Mohamed Farag Ahmad Bashmilah, was similarly treated in another CIA black site:

In this cell, Mr. Bashmilah was subjected to severe sleep deprivation and shackling in painful positions. Excruciatingly loud music was played twenty-four hours per day, seven days per week. Guards deprived him of sleep, routinely waking him every half hour. Initially, the cell was pitch black, his hands were cuffed together, and his legs were shackled together, severely restricting his movement and causing him pain. Later, he was chained to a wall and the light in his cell was left on at all times, except for brief moments when the guards came to his cell . . . . Mr. Bashmilah’s psychological torment was such that he used a piece of metal to slash his wrists in an attempt to bleed to death. He used his own blood to write “I am innocent” and “this is unjust” on the walls of his cell.

We now know that Mr. Mohamed and Mr. Bashmilah were victims of a meticulously designed torture protocol developed for the CIA by psychologists who “reverse-engineered” tactics that had been designed to train soldiers to endure captivity in enemy hands. In this week’s New Yorker magazine, Jane Mayer provides the most comprehensive report to date about the CIA’s black sites and the torture regime that was carried out there in secret. There is a reason why our clients’ ordeals were so similar:

The C.I.A.’s interrogation program is remarkable for its mechanistic aura. “It’s one of the most sophisticated, refined programs of torture ever,” an outside expert familiar with the protocol said. “At every stage, there was a rigid attention to detail. Procedure was adhered to almost to the letter. There was top-down quality control, and such a set routine that you get to the point where you know what each detainee is going to say, because you’ve heard it before. It was almost automated. People were utterly dehumanized. People fell apart. It was the intentional and systematic infliction of great suffering masquerading as a legal process. It is just chilling.”

Mayer describes in remarkable detail the interrogation of alleged 9/11 mastermind Khalid Sheikh Mohammed. Although Mohammed’s own account of his torture by the CIA is deemed too secret for release to the public and has been censored by the Pentagon from an otherwise public Guantanamo hearing transcript, Mayer interviews a friend of one of Mohammed’s CIA interrogators:

The former officer said that the C.I.A. kept a doctor standing by during interrogations. He insisted that the method was safe and effective, but said that it could cause lasting psychic damage to the interrogators . . . . He went on, “When you cross over that line of darkness, it’s hard to come back. You lose your soul. You can do your best to justify it, but it’s well outside the norm. You can’t go to that dark a place without it changing you.” He said of his friend, “He’s a good guy. It really haunts him. You are inflicting something really evil and horrible on somebody.”

Perhaps Americans who have difficulty relating to the agony of suspected terrorists will better appreciate the legal and moral degradation of our descent to the “dark side” through the trauma visited upon the interrogators. We’ve had other such accounts already.

But the most profound and lasting legacy of the Bush Administration’s morbid embrace of torture may lie not in the injuries to detainees or their interrogators, but in the harm to this country’s reputation and standing - and its security. By bringing the words of the victims into U.S. courtrooms, we begin the long and difficult process of restoring America’s legal and moral standing. We can only hope that some federal judges will see past our clients’ words to their humanity.

Part II: Hamdan v. Rumsfeld, the Military Commissions Act, and Boumediene v. Bush

The Hamdan case, which reached the Supreme Court in 2006, involved two critical and distinct legal issues. Salim Ahmed Hamdan, alleged to have been Osama Bin Laden’s driver, had been charged with “conspiracy” in a military commission and had filed a habeas corpus petition challenging the legality of the commission system. The threshold question was whether the Court had jurisdiction over Hamdan’s case - or any Guantanamo case, for that matter. The Bush administration argued that the Detainee Treatment Act (DTA) had stripped federal courts of jurisdiction over all habeas corpus petitions filed by Guantanamo detainees. Hamdan, in turn, argued that the DTA foreclosed only future challenges, and that, in the alternative, any such revocation by Congress of the right to file habeas petitions would itself be an unconstitutional suspension of the writ.

The second issue in the case involved the legality of the president’s Military Commission system. Hamdan contended that the president lacked the unilateral authority to create a military trial system out of step with U.S. and international law and inconsistent with the Uniform Code of Military Justice. The administration claimed that the president’s wartime authority as Commander in Chief granted him the power to establish military commissions to prosecute detainees in the “war on terror.”

The Court’s decision was a stunning repudiation of the administration’s legal theories. First, the Court held that its jurisdiction over pending cases was intact, and that the DTA applied only prospectively - leaving for another day the question whether the Constitution would permit Congress to eliminate habeas corpus rights for Guantanamo detainees. Second, the Court held that the president had exceeded his authority by concocting a military commission system that disregarded the minimum safeguards required by the Geneva Conventions, and ordered that the military trials be halted.

The decision severely undermined the edifice of nearly all of the administration’s post-9/11 legal claims, including its claim that it could eavesdrop on American citizens in contravention of the Foreign Intelligence Surveillance Act.

However, the basis of the Court’s opinions in both Rasul and Hamdan rested on the administration’s disregard of Congress - not of the Constitution. And so, following the Hamdan rebuke, the administration persuaded a compliant Republican Congress to enact the disgraceful Military Commissions Act (MCA) of 2006. The MCA, passed in the run-up to the midterm elections, purported to overrule both the Rasul and Hamdan decisions: Rasul, by expressly revoking the right of Guantanamo detainees to bring habeas corpus petitions, and Hamdan, by authorizing a military commission system nearly identical to the one struck down by the Supreme Court.

And so, after four years, the legal challenges were seemingly back to square one. The military commission trials recommenced - only to be halted, yet again, when the commissions’ presiding officers unexpectedly declared that the new procedures failed to comply with the MCA.

Of greater significance, the administration once again sought the dismissal of all Guantanamo habeas petitions then pending in the lower courts. In Boumediene v. Bush, the Court of Appeals for the D.C. Circuit, in a 2-1 decision, agreed with the administration that the MCA had stripped Guantanamo detainees of the right of habeas corpus - and ruled, for the first time, that the Constitution offered no protection to the detainees against Congress’s suspension of the writ. The same court held that the detainees should contest their detention through the Combatant Status Review Tribunal (CSRT) process - with the option for a limited circuit court review if they were dissatisfied with the results.

At first, the High Court declined to hear the detainees’ appeal in Boumediene - preferring to wait until a lower court had reviewed the CSRT process. But in June, the Court announced that it would hear the appeal after all. (Many observers believe that the Court was influenced by the affidavit of a military reserve officer who participated in the CSRT process and described it as an effective sham. This fall, the Court will finally consider whether the Guantanamo detainees have a constitutional right to challenge their detention through habeas corpus petitions.

If the Court reverses the D.C. Circuit and upholds the historic right of habeas corpus against congressional interference, the Guantanamo endgame will enter its final phase. Once habeas is restored, the government will be compelled, at long last, to provide evidence to a neutral court supporting its assertion that the detainees are, uniformly, “enemy combatants.” And if the quality of that evidence resembles the government’s submissions in the CSRT process, no judge will conceivably permit the indefinite detentions to continue.

But the administration is unlikely to allow such a public dismantling of its claims that Guantanamo houses the world’s most dangerous terrorists. If yet another Supreme Court loss seems likely, watch for renewed White House attempts at a political solution to the Guantanamo mess.

Read Part I of “Guantanamo: The Road to Closure” >>

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Guantanamo has been in the news again: Several congressional bills would restore habeas corpus to detainees or close the prison camp altogether; the Supreme Court has agreed to hear a third Guantanamo-related case, reversing its own recent decision to delay review; and the Court of Appeals for the D.C. Circuit has ordered the Defense Department to produce all relevant information, not just cherry-picked evidence, regarding the detainees who are challenging their “enemy combatant” designations.

We’re now in the sixth year of the national disgrace that may one day be remembered as the Guantanamo Era. Here, in two parts, is a review of how we’ve gotten to where we are:

Part I: From Camp X-Ray to the Detainee Treatment Act.

Our government brought the first detainees to Guantanamo in January 2002, with the express goal of avoiding the jurisdiction of U.S. courts by placing the detainees outside U.S. territory. For 2 1/2 years - until the Supreme Court’s historic 2004 decision in Rasul v. Bush - the Bush administration’s position and policy was that detainees could be held indefinitely, without access to lawyers and without being charged with any crimes, on the sole authority of the president.

The most extreme articulation of that position occurred in a federal courtroom in California. Family members had filed a habeas corpus petition seeking the release of their relatives in Guantanamo, and the administration argued that the court lacked any jurisdiction: Detainees could be held without charge or trial, without access to lawyers, and without any recognized rights under U.S. or international law. Would this be the case, the judges inquired, even if the claims were that [the government] was engaging in acts of torture or that it was summarily executing the detainees? “Yes,” replied the government lawyer. The judges were incredulous. “To our knowledge,” they wrote in their decision, “prior to the current detention of prisoners at Guantanamo, the U.S. government has never before asserted such a grave and startling proposition.”

In June 2004, the Supreme Court’s Rasul decision held that because the naval base at Guantanamo Bay was under the exclusive control of the United States, the federal habeas corpus statute extended to detainees held there. In other words, detainees could challenge their detention in U.S. courts by seeking writs of habeas corpus, the fundamental protection against arbitrary imprisonment developed under the common law, and the administration would have to provide evidence supporting its cursory and wholesale designation of the detainees as “enemy combatants.”

Nine days later, the administration scrambled to create the now notorious “Combatant Status Review Tribunals” (CSRTs) - a transparent attempt to avoid meaningful federal court review by providing the illusion of legal process at Guantanamo. The CSRTs served as a Pentagon rubber-stamp: Detainees were brought before military panels without lawyers, without access to the key government “evidence” being used against them, and without the opportunity to present evidence on their own behalf. Unsurprisingly, virtually all of the detainees were designated “enemy combatants,” though a miniscule number earned the Orwellian moniker “NLEC” - “no longer enemy combatant.”

In a separate development, the administration created and convened “Military Commissions” to bring war crimes charges against a small subset of the detainees. (The vast majority of detainees will never be charged as criminals, but are being held solely as “enemy combatants,” subject to detention until the “cessation of hostilities” in the “war on terror” - in other words, forever.) One of those detainees, Salim Ahmed Hamdan, challenged the authority of the military commission system, and his case reached the Supreme Court in 2006. (I’ll discuss that case in the next entry.)

In the meantime, hundreds of volunteer lawyers had arrived at Guantanamo to provide representation to detainees in habeas proceedings. Federal courts in the District of Columbia began to consider the detainees’ claims that they were being held without justification. In an effort to put a halt to those proceedings, the administration urged Congress to revoke the right of habeas corpus for Guantanamo detainees, and Congress complied by enacting the Detainee Treatment Act (DTA) in 2005, as an amendment to the Defense Appropriations and Defense Authorization Acts. The administration then sought the dismissal of all pending habeas corpus challenges - including Hamdan’s, which was pending before the Supreme Court.

Read Part II of “Guantanamo: The Road to Closure” >>

It was a day of competing narratives. Who was the real David Hicks? In a jarringly strident sentencing argument in which he advocated the maximum sentence – by agreement, seven years – the military prosecutor intoned that the members of the Military Commission who had been flown in to decide Hicks’s sentence were on the “front line in the Global War on Terrorism” and “were face to face with the enemy – in this courtroom.”

Hicks – to whom the prosecutor repeatedly referred by one of his alleged aliases, Muhammad Dawood – had been a “valuable asset” to Al Qaeda, a western jihadist who could infiltrate western nations and cause great harm. “Muhammad Dawood will always be a threat until he changes his beliefs. How strong are those beliefs? 9/11 is a microcosm of that.”

It was one of several invocations of the 9/11 attacks, though it is undisputed that Hicks had no involvement in, or even prior knowledge of, those attacks. Hicks’s defense counsel Major Dan Mori seized on the disparity between the prosecutor’s rhetoric and the actual offense to which Hicks was pleading guilty. Hicks had never hurt anyone; had never fired a weapon at a U.S. soldier; had never planted a mine. He had been, Mori insisted, a misguided, poorly educated adventurer, who had trained with the Kosovo Liberation Army in Albania, then made a mistake by traveling to Pakistan and joining up with extremists.

But for all the prosecution talk of Hicks’s value to Al Qaeda, he had never been assigned a complex terror mission; rather, he had been placed in a trench. Hicks owed apologies to his family and to the Australian and American people, but he had been cooperative in U.S. custody and had already spent five years and four months in detention at Guantánamo – time for which he could not be given credit under the judge’s instruction. If the Commission wanted Hicks to be punished by seven years’ confinement, it should sentence him to one year and eight months – which would amount, in effect, to the maximum sentence.

Five years after the government had publicly branded Hicks one of the world’s most dangerous terrorists, it was more than a little surprising to hear the parties arguing over whether his sentence should be seven years or 20 months – both within the range of sentences a convicted criminal in U.S. courts might receive for selling drugs. But even that was a show. The prosecution and the defense were both aware that, by prior agreement, all but nine months of Hicks’s sentence would be suspended – so whether the Commission members chose the higher or lower sentence would make absolutely no difference. Hicks would be home soon, and free by the end of the year.

It was a remarkable revelation on a day full of them. Earlier, we had learned the details of Hicks’s guilty plea. Hicks agreed that the facts to which he was pleading could be proven against him beyond a reasonable doubt. It was roughly equivalent to an “Alford plea” under U.S. law, and it allowed Hicks to stipulate to the required facts while not directly confirming their truth. The significance of this maneuver would soon be made clear.

Hicks stipulated that the government could prove that he had traveled to Afghanistan in 2001; had attended various Al Qaeda training camps; had met Bin Laden himself and complained of the lack of training materials in English; had, upon learning of the 9/11 attacks, expressed personal approval; had participated in the Afghan war by joining a contingent of Al Qaeda fighters defending the Kandahar airport; and had ultimately been captured by the Northern Alliance while attempting to flee by taxi to Pakistan.

The judge inquired of Hicks whether he had personally reviewed the government’s evidence in support of those facts. Hicks said he had. What evidence had he seen? Hicks replied that he had seen notes from interrogations of himself and other detainees.

So Hicks’s guilty plea amounted to the following: He agreed that the government, on the basis of evidence obtained from him and other detainees through interrogation, could prove his guilt in the Military Commission system.

In other words, Hicks agreed that the facts necessary to prove his guilt in the Commission could be proven using evidence that might have been beaten out of him and others in U.S. custody.

In a separate provision, Hicks agreed that he had not been “illegally treated” while in U.S. custody, but even those words were carefully chosen. Hicks has previously alleged that he was subjected to brutal physical abuse when he was turned over to U.S. forces in Afghanistan.

But, in the Administration’s view, that treatment would not have been illegal at the time. Thus, in denying that he had been “illegally treated,” Hicks in no way denied that he had been abused and coerced.

Moreover, the plea agreement provided that Hicks would not speak to the media about the circumstances of his capture or detention for a period of one year – a provision plainly intended to prevent Hicks from describing his treatment and allowing the world to decide whether he had been tortured or coerced. The government will be hard-pressed to explain how this gag rule can be squared with the mantra that Military Commission proceedings are fair and “transparent.”

Rather than relate the proceedings that followed – which, after all, were essentially meaningless in light of the previous agreement that Hicks would serve no more than nine months – I’ll recommend a few of the better journalistic accounts, one from the L.A. Times and two in The Washington Post, here and As the Secretary of Defense rightly comprehends, the world will not perceive this system as legitimate – nor should it. Let’s hope that this first Guantánamo prosecution was also the last.