(Originally posted on AlterNet.)

Born of a need to recognize "the inherent dignity and…the equal and inalienable rights of all members of the human family," the Universal Declaration of Human Rights came into being 60 years ago today. Its passage brought a worldwide awareness of the basic rights and protections to be enjoyed by all human beings everywhere and established the modern human rights system that provides the legal and moral authority for governments, advocates and attorneys to take action anywhere human rights are threatened. Sadly, as a result of eight years of disastrous policies by the Bush administration, one place where those rights are in jeopardy is right here at home.

Under the guidance of Eleanor Roosevelt, the United States was a driving force in the creation of the UDHR, and the document was clearly influenced by our nation’s own Bill of Rights. But, like the
Bill of Rights, the UDHR has suffered as our policies and practices have not always lived up to the ideals for which it stands. In the last eight years in particular, the U.S. has fallen behind in its commitment to recognize and protect human rights at home and abroad. It is remarkable to think that the UDHR’s admonition that "disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind,"would one day apply to our own government.

We are hopeful that the new administration under President-elect Obama will recommit to the Universal Declaration of Human Rights and use it as a guidepost for setting policy at home and abroad. This means protecting the rights to life, liberty and security of individuals; the right of persecuted individuals to seek asylum on our safe shores; the right to freedom of expression even when one’s views are in disagreement with that of the president; the right of all children to an equal education; the right to be treated equally regardless of race, religion, gender, national origin, disability or sexual orientation; and the right to be free from torture, abuse and inhumane treatment, among others. The shameful practices of the Bush administration have trampled those freedoms, but it is not too late to fix them.

To begin with, President-elect Obama should fulfill his pledge to restore America’s moral leadership by shutting down the prison at Guantánamo Bay and the military commissions that take place there on Day One of his presidency, by executive order. He should also issue an executive order on his first day in office that instructs all agencies to take immediate steps to end torture and abuse. And he should prohibit the rendition or transfer of any person to another country where there is a reasonable possibility the person would be subject to torture or abuse or detained without charge. Article 5 of the UDHR states that "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." Closing Gitmo and the military commissions and ending torture, abuse and rendition is crucial to fulfilling that obligation.

By taking these steps, President-elect Obama can start to make a clean break with the past and ensure that we will once again be the country the authors of the UDHR envisioned 60 years ago today. Reaffirming our commitment to the rights and freedoms laid out in that monumental document will send a clear message to the world that the U.S. is ready to lead by example and reclaim its role as a leader in human rights. Just as importantly, it will reaffirm our promise to ensure equality and justice for all at home. Then, and only then, we will be on the path to reclaiming the America we believe in.

To learn more about the UDHR and sign the ACLU’s petition calling on the new administration to recommit to the UDHR, go to www.udhr60.org

(Originally posted on Daily Kos.)

This week, while the eyes of the American public and the world focus on the final leg of the presidential race, a new trial commenced at Guantánamo. The trial of Ali Hamza al Bahlul, al Qaeda’s alleged media secretary, is only the second full trial to take place at the naval base since the first group of detainees was transferred there from Afghanistan in January 2002.

Al Bahlul is viewed as a particularly colorful defendant by outside observers and members of the press. His previous appearances before the commission provided provocative challenges to a system that is legally and politically tainted. In his challenges to the legitimacy of the military commissions, al Bahlul has built himself a reputation for defiance. He has refused legal representation and has frequently stated his desire to boycott the hearings. In January 2006, he famously raised a hand-made sign in the courtroom that declared a boycott of the hearings. He rarely turns down an opportunity to express his controversial views on America and to reiterate his allegiance to Osama Bin Laden.

On Day One of his hearing yesterday, however, al Bahlul showed marked self-restraint, remaining silent for the six-hour duration. He implemented his boycott strategy by attending the hearing, but refusing to take part in the proceedings. He listened to the remarks of the judge and prosecution without bothering to put on his headset to hear the Arabic translation. More significantly, he instructed his court-appointed military defense lawyer, Major David Frakt, to remain mute. Frakt tried his best to balance his ethical responsibilities as the appointed defense lawyer with his client’s wish not to mount a defense. Frakt informed the military judge, Colonel Ronald Gregory, that he intended to respect al Bahlul’s request to boycott his own trial. From that point forward, Frakt answered all the judge’s questions in the negative and refused to take an active part in the proceedings.

The judge, perhaps realizing that the integrity of the commission lies on his shoulders, responded to Frakt’s decision by stating that, in the absence of a defense, he would "intervene to insure a fair trial." He allowed al Bahlul to stay in the courtroom but warned him that he would not be permitted to speak unless he took the stand as a witness. The judge also ruled that he would not allow previous statements made by al Bahlul to be used by the prosecution because they were made in the limited context of explaining al Bahlul’s intent to boycott. It became clear, however, that the trial is slowly moving towards its inevitable end: a show trial that might well become another piece of al Qaeda recruiting propaganda — ironically produced at the trial of the alleged al Qaeda propagandist.

The afternoon session was devoted to the selection of the commission’s panel, the jury of military officers that will hear the evidence in the case and decide al Bahlul’s sentence. Six of the nine military officers selected served on the commission panel that sentenced David Hicks in 2007. Hicks was the Australian prisoner sentenced to a maximum term of seven years in prison for providing material support for terrorism. Hicks’ plea agreement suspended all but nine months of the sentence and he is now free in Australia. Was it a coincidence that six out of the 13 members of the panel served in Hicks’ controversial case? During yesterday’s session, it was clear that the government is not taking any chances; it challenged four members of the panel who had not served in the Hicks commission. For almost seven years, Guantánamo has been the antithesis of justice. These days, the government does not bother even with the appearance of fairness.

Last Friday, President Bush signed the Child Soldiers Accountability Act into law. The act criminalizes the recruitment and use of child soldiers, and gives the government the authority to deport or deny entry into the United States individuals who engage in such activities. This law would bring the United States into greater compliance with its treaty obligations,especially those under the Optional Protocol on the Involvement of Children in Armed Conflict, ratified by the U.S. in 2002.

While both the President and Congress deserve much credit for passing this historic and long-overdue bill, equal attention must be paid now to the U.S. government’s failure to protect the youth who have already been forced into armed conflict. The U.S. shamefully continues to detain alleged former child soldiers at Guantánamo and U.S.-run facilities in Iraq and Afghanistan without recognizing their juvenile status or observing relevant international juvenile justice standards.

In its own report, issued last May to the U.N. Committee on the Rights of the Child, the U.S. government revealed that approximately 2,500 youths under the age of 18 have been held in Guantánamo Bay and U.S.-run facilities overseas, in some cases for months and years without ever being charged with a crime. As of April 2008, there were approximately 500 youths being held in U.S.-run detention facilities in Iraq alone. The government report claims that it is holding Iraqi children in prison in order to educate them to "contribute positively to the future of Iraq."

On November 8, the eyes of the world will be focused on Guantánamo for the start of one of two first-ever trials accusing former child soldiers with war crimes. Omar Khadr, a Canadian citizen held in Department of Defense custody since the age of 15, has been detained at Guantánamo on charges that include crimes he allegedly committed at the age of 10. The second trial, to be held next January, will be that of Mohammed Jawad, an Afghan national captured at the age of 16, a young man whose case has been marred by ethical and legal problems, problems that have even led the government’s prosecutor to resign in protest last month.

Both Khadr and Jawad have claimed that they were subjected to torture and abuse in U.S. custody. Last week, in the first decision of its kind, a military judge found that subjecting Mohammad Jawad to systematic sleep deprivation under Guantánamo’s infamous "frequent flyer" program "constitutes abusive conduct and cruel and inhuman treatment." (PDF). The judge came close to determining that Jawad was subjected to torture but denied him the remedy of dismissing the charges, though he acknowledged that "other remedies are available to adequately address the wrong inflicted upon the accused, including, but not limited to, sentence credit towards any approved period of confinement, excluding statements and any evidence derived from the abusive treatment, and prohibiting persons who may have been involved in any improper actions against the Accused from testifying at trial."

So far, Guantánamo military commissions have only produced one full trial. But for all we know, the prospective trials, held within a tainted system that lacks independence and allows for the admission of evidence obtained through torture, will only magnify the mockery that has been made of American values of justice, especially the long-held cornerstone of the right to a fair trial.

In order for the U.S. to claim the moral high ground on combating the phenomena of recruiting and using child soldiers abroad, it has to show moral leadership and commitment by dismantling its military commissions and providing justice and a humane solution to Khadr and Jawad, a solution that would include measures for rehabilitation and reintegration to society.

This week, I represented the ACLU at the annual Human Dimension Implementation Meeting (HDIM) of the Organization for Security and Cooperation of Europe (OSCE) in Warsaw, Poland. The OSCE is an intergovernmental organization consisting of 56 "participating states," including the United States, Canada, European countries, and Central Asia.

The HDIM is Europe’s largest human rights conference, and the most significant OSCE event addressing human rights and democracy in Europe, North America and Central Asia. For two weeks, more than 1,000 government representatives, human rights defenders, scholars, members of civil society and journalists examined the processes and extent to which member countries of the OSCE have implemented their commitments to human rights and democracy.

The ACLU’s opening statement on the unfair trials held at Guantánamo Bay, Cuba, triggered an audible buzz from the U.S. delegation’s perch at the meeting. The ACLU statement delineated the inadequacy of the Military Commissions Act (MCA), signed into law by President George W. Bush in October, 2006, and noted its lack of "basic substantive and procedural protections codified in the U.S. Constitution, the Geneva Conventions, and numerous international human rights treaties ratified by the U.S." The statement strikes at the incredible inclusion of secret evidence, hearsay evidence and evidence obtained through torture that the MCA allows, and the imbalanced allocation of resources between the prosecution and defense. The statement calls for a special attention to the U.S. failure to meet international juvenile justice standards in its detention, treatment and prosecution of Omar Khadr and Mohammad Jawad who were under 18 at the time of their transfer to and imprisonment at Guantánamo and face charges before a military commission.

The formal response by the U.S. delegate mildly noted that the U.S. took note of the ACLU statement and that the issues raised by the ACLU are subject to debates in the U.S.; debates which consider pending legal cases before courts. He vaguely noted that there is accountability in the U.S., and that free press and independent courts check government actions. Several independent attendees at the meeting acknowledged the American statement as an attempt to gloss over the legitimate concerns of human rights organizations like the ACLU and the international community as a whole.

Freedom House representatives took advantage of this gathering to present their first-ever book written on an individual country (the United States) as a follow-up to a similar report they conducted on freedom in America about 20 years ago. Freedom House is known for its annual reports on freedom around the world in which countries are rated based on their record on civil and political rights. Freedom House’s statement attempted to counter increasing international frustration with U.S. policies and defend what is left of America’s damaged standing in the world. A former journalist from Moldova asked at the event what right the U.S. has to export democracy to the rest of the world.

The ACLU delivered a second statement on the state of capital punishment in the United States, highlighting the problems within a system that has exonerated 130 wrongfully accused death row prisoners in the last 35 years, provides inadequate counsel and access to the courts for indigent defendants, is fraught with procedural barriers that prevent death row prisoners from receiving adequate reviews of their cases, and is mired in racism — as found by the American Bar Association in a three-year study calling for a moratorium on executions.

Following this, the ACLU and Amnesty International packed the room in a joint round-table discussion entitled "The End of the ‘War on Terror’? The Future of Counterterrorism and Human Rights in the OSCE Region." Five U.S. delegates attended the meeting, with one representative gently reiterating the same points made at the Freedom House event a day earlier about America’s strengths in its independent judiciary and free press. These are no doubt American hallmarks and played a vital role in exposing secret government programs and thus checked its power, notwithstanding the repeated attempts by the U.S. administration to restrict dissenting speech and investigative reporting, as well as the government’s unsuccessful attempt to strip courts of their Habeas jurisdiction.

A special guest and speaker who agreed to join the ACLU and Amnesty International was Dr. Adam Bodnar from the Polish Helsinki Foundation for Human Rights. Dr. Bodnar spoke about the ongoing investigation that was ordered by the Polish Prime Minister regarding reports by the media and human rights groups about secret U.S. detention facilities that operated on Polish soil. In 2007, the Parliamentary Assembly of the Council of Europe’s report (PDF)
affirmed that "there is now enough evidence to state that secret detention facilities run by the CIA did exist in Europe from 2003 to 2005, in particular in Poland and Romania."

A recent report by The New York Times sheds more light on the CIA black site, including the revelation that Khalid Sheik Mohammad was waterboarded 100 times while in CIA custody in Poland.

The presence of the American Civil Liberties Union at this high-level conference on international human rights and democracy was warmly welcomed by members of the OSCE and HDIM participants from foreign governments, civil society groups and media. Most other human rights organizations and non-governmental organizations attending the gathering have historically been from locations east of Vienna. The general feeling of the week’s proceedings made it abundantly clear that the next U.S. president’s administration will have to work diligently to re-establish America’s credibility to speak on human rights on any international platform.

Constitution Day serves as a reminder of the importance of this historical document, a document which embodies the concept of the rule of law and acts as the blueprint for the American people. Part of this blueprint includes the Framers’ desire that the United States government respect international commitments made under treaties signed by the President and approved by the Senate. Indeed, the Supremacy Clause makes the Constitution, Federal Statutes, and U.S. treaties "the supreme law of the land."

When the incoming President takes or reaffirms the oath of office, they are committing themselves to “preserve, protect and defend the Constitution of the United States." In doing so, they are obliged to recognize and respect U.S. ratified treaties, at home and abroad. While this commitment is made to the American people at the inauguration ceremony, it echoes and resonates around the world, as the U.S. commitment to the family of nations to respect the rule of law and U.S. international and treaty obligations is vital to the preservation of international peace and security. The erosion of this commitment over the past seven years cannot be over exaggerated, especially in the area of protection and promotion of human rights at home and around the world.

Read more…

Mohammad Jawad’s military commission hearing last week was unusual for many reasons. Jawad was a minor when he was captured in Afghanistan and now faces life in prison if convicted for allegedly throwing a hand grenade that wounded two U.S. soldiers and their Afghan interpreter in December 2002. Not only did the pre-trial hearing last 14 hours, but there were several "firsts:" a prisoner (Jawad) testified about the mental torture and abuse he suffered under the frequent flyer sleep deprivation program; a civilian sleep deprivation expert, Harvard Professor Dr. Janet Mullington, testified via video conference from Hanscom Air Force Base about the short- and long-term mental effects of sleep deprivation; and, finally Brig. Gen. Thomas Hartmann, the Legal Advisor to the Convening Authority, testified before the commission.

Brig Gen. Hartmann, a witness for the government, was called to testify to counter the defense testimony of Col. Morris Davis. Col. Davis, the former chief prosecutor of the military commissions, quit his position in October 2007 in protest of Brig. Gen. Hartmann’s overbearing interference in the work of the prosecution, and immediately thereafter became a popular defense witness, testifying and speaking publicly about Hartmann’s improper political interference. It was truly a surreal scene watching a military supervisor cross-examine his subordinate (Col. Lawrence Morris, the chief prosecutor, cross-examined the deputy chief prosecutor, Lt. Col. William Britt, who served under Col. Davis) and military defense counsel challenge the credibility of a superior officer in the Air Force JAG Corps Reserve. (Unlike Office of Military Commission’s-prosecution team, Maj. Frakt of the Office of the Chief Defense Counsel is independent and is not subordinate to the Legal Advisor, Brig. Gen. Hartmann).

The chief prosecutor’s task was more than just defending the government’s case against Jawad’s motion to dismiss all charges due to unlawful influence. Col. Morris also attempted to seize the moment to defend the integrity of this tainted and discredited system and, more importantly, discredit the validity of the former chief prosecutor’s account. Col. Davis’ testimony in the case of Salim Hamdan resulted in the disqualification of Brig. Gen. Hartmann in any future dealing with that case (PDF), and caused serious damage to the world’s perception of this system of injustice.

The military defense counsel, Maj. David Frakt, relied heavily on Col. Davis’ testimony and tried to show that Jawad’s case was prioritized and charges were advanced only to satisfy Brig. Gen. Hartmann’s eagerness to move the process forward. Lt. Col. Britt testified that Brig. Gen. Hartmann was "very enthusiastic" about Jawad’s case, believing it would "grab the public’s attention." Lt. Col. Britt testified that "there is no doubt in my mind that [Brig. Gen. Hartmann] was the driving force behind the prosecution’s effort." Lt. Col. Britt said on the witness stand that he was not aware of any evidence of abuse against Jawad and was not aware of the fact that Jawad was subjected to the frequent flyer sleep deprivation program. He stated this despite the clear evidence revealed in the prison logs that were turned over to the defense team. However, Lt. Col. Britt made it clear on the stand that he would not, as a matter of personal ethics, allow charges against anyone he believed to have been tortured to move forward. This testimony supported the defense assertion that had the prosecution not rushed to file the charges and done their due diligence, as required of them, the charges against Jawad would probably not have been filed.

While Col. Davis’ testimony was not very different from his testimony in the Hamdan case, he appeared more wounded, having been denied a medal from the Department of Defense for his service. Col. Davis testified that under Brig. Gen. Hartmann’s tenure, the prosecution’s office suffered from an "environment of fear" which discouraged prosecutors from speaking their minds. Although the defense’s request to get access to Col. Davis’ emails when he was the chief prosecutor was not processed, Col. Morris, in cross-examination, used one of the old emails in an attempt to discredit Col. Davis’ assertion that charges against Jawad weren’t ready to be filed and referred by the Convening Authority.

The prosecution invited Brig. Gen. Hartmann to provide testimony — something that it did not seek in the Hamdan case — in an attempt to offer him the chance to set the record straight. The prosecution asserted that there was no unlawful command influence and tried to paint a picture of, at best, an unpleasant work environment due to personality issues. Brig. Gen. Hartmann testified that his authority over the prosecution does not enable him to order charges, but does enable him in to insure that the system moves in a systematic speed. He expressed dissatisfaction with the work of Col. Davis and defended the statement attributed to him as saying the prosecution should bring cases that capture the imagination of the American people. He confirmed that he created a timeline for the cases to be filed by the prosecution and described his management style as "intense and direct."

Asked specifically about Jawad’s case, Brig. Gen. Hartmann testified that he believed Jawad was 16, 17, or 18 years old, and was not aware of the criticism regarding the age of Omar Khadr, another minor (when he was first detained) who is also facing a military commission. But, Brig. Gen. Hartmann denied ordering the prosecution to file charges in this case. Finally, he testified that he was not aware of the frequent flyer sleep deprivation program. He stated this in spite of the fact that Jawad’s military defense lawyer, Maj. Frakt, shared with him prior to his testimony a classified version of the prison logs which revealed the frequent flyer program! While the military judge will rule soon on the defense’s motion to dismiss all charges due to unlawful influence, the judge ordered a medical examination of Jawad to determine if he is competent to stand trial.

The new details published in a front page story in last Sunday’s New York Times about how Khalid Sheikh Mohammed was waterboarded 100 times should make people question how this system will deliver justice. These doubts are only exacerbated when we learn that the Legal Advisor charged with overseeing the process seems to be less interested in whether torture was used against the prisoners than in pushing the trials forward in the midst of the presidential election.

CORRECTION: An earlier version of this post incorrectly stated that officially, Maj. Frakt is under Brig. Gen. Hartmann’s command. The Office of the Chief Defense Counsel is independent of the Legal Advisor. Brig. Gen. Hartmann is, however, a superior to Maj. Frakt within the Air Force JAG Corps Reserve.

In addition, the previous version of this post should have emphasized that the charges against Jawad would have undergone due diligence — and probably would not have been filed — had Hartmann not pressured the prosecution to file charges.

Last week’s Supreme Court rebuke of the Bush administration’s attempt to preserve Guantánamo as a lawless place, a place where human beings are less worthy of protection under U.S. law than iguanas, brought newfound hope that this travesty of justice would finally come to an end. Unfortunately, this was not the case, as this week the military commission hearings resumed in what appears to be a signal from the Pentagon that it is business as usual at Guantánamo. It was during these hearings that we learned more about Guantánamo’s frequent flyer program.

No, this program is not the airline rewards program for the very limited number of commercial flights to Guantánamo, the place chosen by the Bush administration to evade the Constitution and ignore international law. It is a program whereby detainees are constantly and systematically moved from cell to cell to disrupt their ability to sleep. This program is a form of mental torture in direct violation of the U.S. Constitution, the Torture Act, the War Crimes Act, and the U.N. Convention Against Torture.

There were two frequent flyer programs employed at Guantánamo under which prisoners were systematically deprived of sleep. As it turns out, there were official and unofficial frequent flyer programs. The official program (PDF) was authorized to be used against prisoners at Guantánamo (PDF) who were believed to have intelligence information. This program was reportedly eliminated in March 2004. The unofficial program was used as a disciplinary method by guards and military personnel at Guantánamo.

The unofficial frequent flyer program was the focus of one of many motions filed and argued yesterday at Mohammad Jawad’s military commission. Mr. Jawad is an Afghan who was a minor when he was captured in December 2002 after allegedly throwing a grenade that injured two U.S. soldiers and an Afghan interpreter. Mr. Jawad arrived at Guantánamo in January 2003 and despite his status as a minor, the fact that the U.S. government has never made any connection between Mr. Jawad and either al Qaeda or the Taliban, and a statement by the former Commanding General of Joint Task Force-Guantánamo, Maj. Gen. Jay W. Hood (who stopped the official frequent flyer program), that Mr. Jawad was of no intelligence value, Mr. Jawad remains at Guantánamo and has been subject to torture, including the frequent flyer program. Referring to the program, Mr. Jawad stated during his hearing yesterday that “day and night they were shifting me from one place to another…nobody answered why they were giving me this punishment.” Mr. Jawad’s attorney, Major David J. R. Frakt, recounting Mr. Jawad’s experience with the frequent flyer program in May 2004, stated yesterday that over the course of 14 days Mr. Jawad was moved to a different cell 112 times, each time he was shackled and unshackled. Major Frakt argued late into the night yesterday on a motion to dismiss the charges against his client due to the use of torture. He gave an historic closing argument that should be taught in every military academy across the country. What makes this abuse of Mr. Jawad’s basic human right to be free from torture even more indefensible is that on Christmas Day 2003, Mr. Jawad attempted suicide at Guantánamo. With full knowledge of the poor state of Mr. Jawad’s mental health, the U.S. personnel carried out these horrific acts.

Beyond the details of specific torture techniques employed at Guantánamo, this week also brought about new revelations as to where the torture orders originated. We learned of new evidence as to the complicity of high ranking officials, now commonly referred to as Bush’s “torture team”, and of the authorization of torture and other abusive techniques. In addition, we learned that Bush’s “torture team” ignored fierce objections and reservations from military lawyers across the armed services.

I will write again, and in more detail, about yesterday’s 14 hours of hearings at the military commission, including the first appearance as a witness of Brig. Gen. Thomas W. Hartmann, the Legal Advisor to the Convening Authority in the Department of Defense Office of Military Commissions. Brig. Gen. Hartmann testified on the motion to dismiss on basis of unlawful command influence. These hearings, which I believe will not withstand constitutional scrutiny after the Supreme Court’s decision last week, have long been tainted and have lost all legitimacy in the eyes of the World.

The events at today’s hearing suggest distrust and suspicion from the handful of Guantánamo detainees who have been charged by the Bush administration toward the military commissions system. Guantánamo is a place where basic rights, like the right to effective access to counsel, which in a normal court is taken for granted, have to be fought for. Meanwhile, the U.S. government spends an enormous amount of resources constantly reinventing its skewed wheel of justice.

Ibrahim al-Qosi, a 47-year-old Sudanese man, is one of the six detainees who previously declared that he would not cooperate with his government-assigned lawyers . In doing so, al-Qosi stood up for his right to be represented by an attorney of his own choice to defend him against charges of conspiracy and providing material support to terrorism. He has refused to be represented by his detailed military defense counsel, Navy Reserve Cmdr. Suzanne Lachelier. He was adamant today about not compromising his fundamental right to counsel of his own choice and, after being held for over six years in Guantánamo, tested the system’s ability to ensure it.

The lack of trust the detainees have towards the military commissions is not surprising. The U.S. government has isolated Al-Qosi and many other Guantánamo detainees from the world, denied them access to courts, and in many cases tortured and abused detainees. The underlying problem is that the military commissions were created to secure convictions, not to deliver justice as Americans and the world traditionally understands it. And it’s not just critics from the outside who recognize this: a military commissions judge, in the case of Salim Hamdan , found this month that the system is subject to unlawful political influence. It also permits coerced confessions that may have been extracted by torture and secret evidence that a defendant does not have the effective ability to refute. The systemic flaws in the military commissions process have been recognized by no other than the former chief prosecutor at Guantánamo, Col. Moe Davis , who resigned in protest of unlawful command influence from his superiors at the Pentagon. Even Secretary of Defense Robert Gates told a congressional sub-committee last year that the military commissions are tainted and lack international credibility.

Despite his statement last month that he would boycott his military commission and refuse to participate in future hearings, al-Qosi attended today and found the military judge, Air Force Col. Nancy Paul, willing to hear his attempts to enforce his rights. At the start of his hearing, al-Qosi asked to be allowed to phone home, for the first time in over six years. He asked to directly contact his family in Khartoum, Sudan, so they could help him find a civilian lawyer he could trust. Once again, in a normal criminal justice process, access to family members and legal counsel is supposed to be made as promptly as possible and is considered a fundamental human right. But, Guantánamo, in Carl Schmitt’s words, is a "state of exception" where the executive branch sees itself as exempt from the legal restraints to its power that would normally apply.

A decision whether to grant the call has yet to be made, but the military’s Public Affairs Office (PAO) mistakenly told the press otherwise. The PAO told reporters that the request was granted, and that al-Qosi called home Thursday night. Press reports on yesterday’s hearing ran last night, and it wasn’t until this morning that the truth surfaced. The U.S. government should allow al-Qosi to call home via the Red Cross or the Sudanese mission sooner rather than later.

According to the rules of the military commissions, a defendant has the right to a qualified military defense lawyer free of charge and also the right to civilian counsel, but on his own expense. Al-Qosi told the judge that, having spent the last six years in detention, he could not make an informed decision on his own about choosing a civilian lawyer and needed to consult with his family and the Sudanese Bar. The problem is that communication from prisoners to their families and vice-versa may only be facilitated through the International Committee of the Red Cross or through the prisoner’s foreign embassy and the State Department. The question on Thursday was, who would contact these entities? This question was made more complicated because al-Qosi is imprisoned and has refused representation from any government appointed lawyer. Judge Paul, pushing the system’s limitations, ordered the government to do whatever is necessary to facilitate contact between al-Qosi and his family.

Al-Qosi’s decision to end his boycott of the proceedings reportedly came after a delegation from the Sudanese embassy in Washington visited him. This meeting occurred shortly after his first military commission appearance last month. The Sudanese diplomats were at Guantánamo to arrange the release of three other detainees from Sudan, including Al Jazeera TV network cameraman Sami al-Haj. According to al-Qosi, the Sudanese diplomats told him to appear before the military commission in order to request permission to contact his family so that they could arrange civilian legal representation for him.

Al-Qosi’s next hearing will be on July 23. In the meantime, he agreed to allow his detailed military lawyer to contact the Red Cross to facilitate this call. It remains to be seen if he will ever actually get to call home.

Yesterday, another Guantánamo military commission ended in a fiasco when Mohammad Kamin declared he would boycott the proceedings. Kamin, a 30-year-old prisoner from Afghanistan, has been in U.S. custody since May 2003; today was the first time in five years that Kamin was exposed to the outside world. Kamin told his military judge, Air Force Col. W. Thomas Cumbie, that he does not want a lawyer — any lawyer — and that he does not want to represent himself either. This is not the first, and, if the current pattern continues, will not be the last boycott announced here. (Kamin is the sixth prisoner to boycott the proceedings, or decide to represent himself, or reject any U.S. military-appointed attorney, before the military commission). When I first observed the military commission hearings back in 2004, the question among observers was who would be the first Guantánamo prisoner to boycott the commissions. Today, however, the question is who will be the prisoner who does not boycott the new system created under the Military Commissions Act of 2006, an act which all but guarantees an unfair process.

The drama of the day started outside the courtroom. We were notified that the hearing would be delayed because the detainee had not yet arrived at the commission building from the detention camps, an area that is off-limits to human rights observers. We later learned that Kamin was forcefully brought to the court to attend his arraignment, and that the military judge had authorized his involuntary appearance before the commission in what he called "forcible extraction." (Under the rules of the military commission, a charged prisoner must attend his arraignment, but he can choose not to show up to later proceedings, in which case the trial will proceed in his absence.)

After more than two hours of delay, we were allowed into the courtroom, where we discovered that Kamin was already seated with his hands and legs shackled; three guards surrounded him. He was wearing an orange prison uniform — a sign that the military considers him to be "non-compliant" — but he was sitting quietly and listening patiently to what the judge had to say. It is unclear what happened to him, but we could see minor bruises on his face and his neck. In his opening remarks, the judge mentioned that Kamin had tried to spit at and bite one of the guards, but he did not provide any further details and did not inquire about Kamin’s physical well-being.

In the course of the hearing today, it was revealed that Kamin has some mental health issues. His detailed military defense counsel, Navy Lt. Rich Federico, said that he learned of this only a day before the hearing. Mental health problems, unfortunately, are not uncommon at Guantánamo. Prisoners have been suffering from mental health and other serious psychological problems such as post-traumatic stress disorder; these problems probably stem from their indefinite detention, isolation from the outside world, torture and abuse. Just yesterday, the Justice Department’s Inspector General released a long-awaited report addressing allegations of torture and abuse of detainees held by the U.S. at Guantánamo and elsewhere. The report cites concerns raised by FBI agents about the use of such abusive interrogation techniques.

The government alleges that, between January and May 2003, Kamin provided material support to al Qaida by spying on American forces and launching missiles. The charge sheet does not accuse Kamin of harming civilians or U.S. or other military forces deployed in Afghanistan. Throughout today’s hearing, however, Kamin asserted in his native language, Pashto, that he is innocent, that he has no links to al Qaeda, and that all the allegations against him are false. Kamin said at his hearing that before his arrival in Guantánamo he was held in Bagram, the notorious U.S. military air base in Afghanistan. He also said, surprisingly, that he came to Guantánamo of his own free will. He explained that he made this decision after he was told that people at Guantánamo would help him. Soon after Kamin’s arrival at Guantánamo, he realized that his situation had gone from bad to worse. He told his military lawyer that it was like moving from under the pouring rain to being placed under the gutter.

Today’s hearing brought to the surface the ethical dilemma faced by military defense lawyers who are often dismissed by their clients and yet are ordered, at least temporarily, by the military judge to continue to represent them. Federico repeatedly told the judge that he does not have the authority to speak on behalf of Kamin and that his client should have the right to boycott the proceedings. Federico tried to convince the judge that the Military Commission Act of 2006 is not the only legal authority that applies to the proceedings. Indeed, the MCA is the source of the problem: As the old Russian saying goes, "this is where the dog is buried." It is the military commission system itself, created by the Bush administration to circumvent the Constitution and international law, that is causing this disarray. Today’s hearing underscores the flaws in the system, which from Day One has been riddled with ethical and legal problems, including a lack of effective access to counsel; political interference; and admission of coerced evidence that may have been obtained through torture.

Tomorrow’s hearing will likely be a rerun of today; Sudanese national Ibrahim Ahmed Mahmoud al-Qosi, who boycotted the proceedings last month, is scheduled to appear before the commission. His detailed military counsel has been struggling with the same legal and ethical issues as Kamin’s lawyer. Still, the show must go on at Guantánamo at least until the November elections, or the Supreme Court’s decision in Boumediene v. Bush. At issue in Boumediene is whether Guantánamo prisoners have the right to challenge their detention through habeas. A decision is expected by the end of June.

Editor’s Note: You can listen to a podcast of Jamil discussing Thursday’s hearing at Guantanamo here.

After close to five months of uncertainty regarding the future of the military commission system, hearings resumed today when Canadian national Omar Ahmed Khadr faced his third arraignment. That’s right, his third arraignment. Clearly, the wheels of injustice turn very slowly at Guantanamo.

Khadr, who is now 21 years old, was only 15 when he was captured by U.S. forces in Afghanistan. New charges against Khadr were filed for the third time last month after the old charges were thrown out in June by a military judge who ruled that the commission lacked proper jurisdictional authority to prosecute him.

The military judge, Army Col. Peter Brownback, ruled that Khadr had not been designated as an “alien unlawful enemy combatant” as required under the Military Commission Act signed into law by President Bush in October 2006. Khadr is accused of murder, attempted murder, conspiracy, material support and espionage. Most of the charges relate to a 2002 incident in Afghanistan in which Khadr is alleged to have thrown a grenade, killing one soldier and wounding another. Khadr is one of only four captives at Guantanamo who were so far charged. Over 320 other prisoners continue to languish indefinitely without charges and no meaningful access to the courts.

Today’s hearing attracted close to 30 reporters, including several Canadian reporters and a Russian television crew that was broadcasting in Arabic! In addition to the five non-governmental organizations that have been granted status as permanent observers - the ACLU, Human Rights Watch, Amnesty International, Human Rights First and the Association of the Bar of the City of New York. In what appears to be an attempt to counter the largely critical contingent of human rights observers, the Pentagon invited three other groups to observe the military commission hearing: the Heritage Foundation, the Carnegie Council and the Veterans of Foreign Wars. As a matter of courtesy, the Canadian government sent a representative to observe the hearing.

Guantanamo’s tent city.

A striking difference today from previous military commission hearings was the ongoing erection of a tent city just hundreds of feet away from the current Military Commission building. That building - the former home of a military dentistry - has become too small to accommodate the military commission staff. The Department of Defense had attempted to build a grandiose, $125 million court complex instead, but a successful ACLU lobbying effort stymied the plan, so the tents will have to do.

Khadr appeared relaxed during his hearing today, but looked much older than his actual age. He wore a white Afghan-style dress and had a black religious cap over his head. He agreed to be represented by a military defense lawyer, Navy Lt. Cmdr. William Kuebler, who was joined by Department of Defense civilian attorney Rebecca Schneider and Canadian lawyer Nathan Whitling.

To give more legitimacy to the proceedings, the prosecution - led by Marine Maj. Jeffrey Groharing - was joined by Assistant U.S. Attorney John Murphy. The prosecution was prepared to present its evidence regarding the designation of Khadr as an “alien unlawful enemy combatant” and said that it actually prepared documents and prepared as a witness an FBI agent who the defense could not depose. Of course, the prosecution was eager to move ahead with this trial, assuming that a slam-dunk determination by Col. Brownback that Khadr is indeed an “alien unlawful enemy combatant” was forthcoming - a ruling that would set a good precedent for subsequent cases that come before the military commission. Earlier in the week, however, at a non-public conference, Col. Brownback decided not to hear constitutional and international law arguments regarding the jurisdictional question.

Mindful of a pending motion before the Court of Appeals in the D.C. Circuit, the defense team said they would reserve the right to bring substantive challenges at an appropriate time against the jurisdictional authority of the military commission to try Khadr, and emphasized that while they acknowledge the jurisdiction of the commission, they disagree and have objections which relate to his having been a child when he was captured and held as a prisoner of war.

Finally, and perhaps the most interesting part of today’s hearing, was the defense’s voir dire inquiry: their attempt to question the impartiality of Col. Brownback. Col. Brownback was at times impatient with the questions presented by Lt. Cmdr. Kuebler. He was asked about a Supreme Court decision in the case against Salim Hamdan, another prisoner held at Guantanamo. The June 2006 decision struck down the old system of military commissions; during voir dire, Col. Brownback said he did not think that the Hamdan ruling found the military commission illegal. He instead stressed that the decision found that according to Common Article 3 of the Geneva Conventions, the President had to go to Congress to get authority for the military commission.

His response was certainly not surprising considering his commission’s legitimacy and his personal involvement in the old system was at stake. Col. Brownback also gave an unusual answer when he was asked what he knows about al-Qaeda. He said: “al-Qaeda is an organization or a group dedicated to the spread of Islam.” It is quite disturbing that one would equate the spread of Islam with a group like al-Qaeda, which has been classified by almost the entire world community as a terrorist organization responsible for horrific crimes.

Finally, Col. Brownback disclosed that he is friends with General John Altenburg, the convening authority of the military commission system since its inception in 2004. Despite the defense demand that he be disqualified for that reason alone, Col. Brownback decided to deny the request and found that he has no bias and is qualified to preside over Khadr’s trial.

Today’s hearing was nothing more than another example of the lack of legitimacy and competency of the military commission system. As long as the independence and impartiality of the system is called into question, we will essentially remain at square one. Our only hope for fair trials and justice consistent with U.S. and international law lies in Washington, where Congress must find the political courage to stop this failed legal experiment.

Epilogue:

As part of the Pentagon’s new ground rules regarding the status of human rights observers, we were denied access to the media center shortly after the hearing ended. As a result, we were denied access to critical information shared by the defense team with the press at a press conference. The defense lawyer revealed that the government has for years had secret evidence that could help Khadr defend himself. Prosecutors notified Khadr’s military lawyer two days ago of the existence of “potentially exculpatory evidence” from a U.S. government eyewitness to the battle in Afghanistan that resulted in Khadr’s capture in 2002.