Yesterday marked the final military commission hearing before the eve of President-elect Barack Obama’s inauguration. The question of what will become of Guantánamo was a subject of much speculation in the days before yesterday’s pre-trial hearing in the case of Saudi national Ahmed Mohammed al Darbi. Al Darbi has been held in U.S. custody for six years and is charged with conspiracy and providing material support for terrorism based on alleged connections to al-Qaeda.

Just before concluding yesterday’s hearing, the judge, Army Col. James L. Pohl, raised the issue on everyone’s mind, unaddressed in other post-election hearings. With al Darbi’s trial slated to start in late March, he said, “The court is aware that on January 20 there will be a new commander-in-chief, which may or may not impact on these proceedings.” He cautioned, “Both sides should know that unless and until a competent authority tells us not to, prepare to proceed as scheduled.”

At this, al Darbi motioned that he wished to address the court. Through an interpreter, Al Darbi spoke:

“Your honor, you had mentioned there will be a new president on January 20. I hope this location will be closed as he promised,” he announced. He continued, “I am hopeful that Mr. President Obama will make good on his promise and earn back the legitimacy the United States has lost in the eyes of the world, as a world leader.”

“I am asking this nation that claims to be a world power to respect their Constitution so that they can regain their leadership,” al Darbi added.

As he spoke, al Darbi held up a photograph of Barack Obama. When I looked more closely, I realized that he was holding a copy of the ACLU’s full-page New York Times ad that ran on November 10. The ad consists of a photograph of President-elect Barack Obama and a quotation from his campaign pledge that, “As president, I will close Guantánamo, reject the Military Commissions Act, and adhere to the Geneva Conventions.” It launched an ACLU campaign calling on President-elect Barack Obama to close the Guantánamo Bay prison and end the military commissions on Day One of his presidency. The judge admitted al Darbi’s copy of the ACLU ad into evidence.

Al Darbi’s defense lawyers later said they had no idea how al Darbi obtained the ACLU ad (and the ACLU certainly didn’t give it to him), though the detainees do have some access to news. Al Darbi articulated a now common refrain. For much of the world, Guantánamo has become a symbol of injustice, abuse, and the Bush administration’s excesses in the name of the “war on terror.” It has damaged America’s image and standing in the world. During the campaign, Obama described Guantánamo as “a sad chapter in American history.” Though it may require political capital and hard decisions, President-elect Obama must close Guantánamo immediately upon taking office. By doing so, he can end the poisonous legacy of the Bush administration’s policies and take a critical first step in restoring American values of justice, due process, and human rights.

Friday brought another pre-trial hearing in the military commission case against Canadian Omar Khadr, the last Western national still being held at Guantánamo Bay. Now 22, Khadr was 15 when he was captured by U.S. forces in Afghanistan for allegedly throwing a grenade that killed a U.S. medic, Sgt. Christopher Speer. While the media coverage of Friday’s hearing focused on potential witness testimony that Khadr could not have thrown the grenade, there has been little coverage of a legal debate that threw into question the authority of the military commission here to try Khadr for Sgt. Speer’s murder.

Omar Khadr’s defense team argued Friday that the most serious crime Khadr is charged with—murder of Sgt. Speer—is not a war crime. The defense argued that Khadr cannot be tried for “murder in violation of the rules of war” in a military commission because he is accused of a homicide, not a war crime.

The laws of war are clear: Murder can be a war crime only if the victim belongs to a category of protected people during a battle, such as civilians or wounded soldiers, or if the perpetrator uses a prohibited method of warfare, such as feigning surrender or using a human shield. Khadr is charged with killing a soldier who was engaged in a firefight—not a protected person under the laws of war—and the prosecution never has claimed that he used a prohibited method of battle.

The prosecutors predictably tried to argue Friday that the usual rules don’t apply here. The prosecution based its argument almost entirely on legal texts that pre-date the Geneva Conventions (the core treaties that lay out the laws of war), displaying a breathtaking and deliberate ignorance of those laws. The prosecution’s redefinition of war crimes requires a break from the laws applied in all other post-Nuremberg war crimes tribunals.

Friday’s hearing revealed that this case should never have been brought before a military commission in the first place. The government could have properly charged Khadr in a U.S. federal court, but instead the current administration intentionally bypassed the U.S. legal system to create commissions outside the bounds of law. Now the chickens are coming home to roost: the government faces the possibility that the murder charges against Khadr will have to be thrown out as a result.

While the debate at Friday’s hearing was legalistic and technical, it is profoundly relevant to the current debate about what to do with Guantánamo’s detainees. In recent weeks, even as president-elect Obama has repeated his promise to close Guantánamo, some have used fear-mongering to argue we should open a new Gitmo at home by creating national security courts.

That the most serious charges against Omar Khadr may not even be tried by a war crimes court illustrates why it would be disastrous to import Guantánamo’s military commissions to U.S. shores. It also makes clear that it is time to transfer detainees accused of wrongdoing to U.S. criminal courts to face the American criminal justice system, rather than to perpetuate the Bush administration’s failed military commissions experiment.

President-elect Barack Obama will have to act quickly. Khadr’s trial is scheduled to start on January 26, six days after Obama takes office. And in what defense lawyer Lt.-Cmdr. Bill Kuebler labeled “a last-ditch effort to salvage this broken process,” a final pre-trial hearing has been squeezed in the day before Obama’s inauguration. On day one in office, Obama must shutter the military commissions, not tinker with the Bush administration’s broken system.

Update In an earlier version of this post, the fifth paragraph stated that the government could have properly charged Khadr in a U.S. federal court. This paragraph has been amended to clarify the fact that Friday’s hearing revealed that this case should never have been brought before a military commission in the first place.

No one can imagine what it’s been like for these families and how it felt for them to sit through these proceedings. But the truth is that there are many other 9/11 families with many different viewpoints who weren’t afforded the opportunity to be there, and whose opinions weren’t represented in the initial press coverage. Many of them strongly believe that the prison and the military commissions are a miscarriage of justice that have been politically motivated from the start.

We at the ACLU have been so fortunate to meet and hear from so many incredibly courageous and strong people, who tell us that they believe no closure or real justice can come from a commissions system that allows secret evidence and evidence obtained through torture. Many of them tell us that the military commissions go against the values of the ones they lost.

In order to make their voices heard, more than 30 relatives of 9/11 victims signed on to a statement making it known that that they “do not believe these military commissions to be fair, in accordance with American values, or capable of achieving the justice that 9/11 family members and all Americans deserve.”

In addition, the ACLU teamed up with Robert Greenwald’s Brave New Films to produce this short video. It features four family members talking about why they believe Gitmo and the commissions should be shut down. These are people who have a tremendous amount at stake in seeing that justice is served in the prosecution of 9/11 suspects. What they have to say is truly powerful.

To learn more about the campaign to close Guantánamo and end the military commissions, go to www.closegitmo.com.

The ACLU is representing some of the defendants as part of its John Adams Project. Anthony reflects on what he observed at the hearings, and talks about where the commissions are headed. Stay tuned for more updates from the front line.

As you might know, the ACLU has, along with the National Association of Criminal Defense Lawyers (NACDL), created the John Adams Project, through which we have sponsored expert civilian counsel to team up with the military defense lawyers representing the 9/11 defendants. It’s part of our ongoing struggle to bring a modicum of fairness to these sham prosecutions and to get Guantánamo shut down for once and for all.

As I write this today our struggle to shut Gitmo and shutter the military commissions is far from over and is anything but a fait accompli.

You probably read in the papers that on Monday, all five defendants expressed an interest in entering guilty pleas in the 9/11 case.This wasn’t unexpected news to anyone, as they essentially expressed that viewpoint from the very first hearing in June of this year.

What did change was that the defendants have been meeting as a group since the last hearing. They have recently asked to have all pending law and evidentiary motions withdrawn and that they be allowed to proceed to enter guilty pleas and be sentenced to death. All five men submitted a handwritten motion to the military judge on November 4, 2008 (Election Day) stating that this is how they would like to proceed.

However, like so much in this made-up system, the process for how this might happen is not clear.

First, the defendants have to formally enter guilty pleas, which they did not do for reasons I will explain below.

Second, the military judge has to accept the pleas, but only after an extensive round of questioning and a review of the evidence that supports the entry of those pleas. In normal courts, this process is known as “allocution” and even in these fundamentally flawed commissions, it is hard to imagine any judge accepting guilty pleas in capital cases without undertaking this second stage with rigor and care.

Third, a panel of 12 jurors (most likely military officers) would have to be convened, and they would have to render a unanimous decision in order for the death sentence to be applied.

None of this happened this week. Why?

First, two of the five defendants do not represent themselves.They were not allowed to represent themselves, as there were questions about their intentions and their competency to knowingly and voluntarily waive their right to counsel. One of them, Ramzi bin al Shibh, had been placed on psychiatric medication against his will. The issue of competency is also being raised in the case of Mustafa Ahmed al Hawsawi. These two defendants are still represented by JAG lawyers and by civilian counsel from the John Adams Project. In fact, Jeff Robinson from our John Adams Project did an outstanding cross-examination of Brig. General Thomas Hartmann on the unlawful command influence motion that did not garner any press attention. Legal and evidentiary motions on behalf of bin al Shibh and al Hawsawi have NOT been withdrawn and we expect continued back and forth with the government until issues of their competence have been resolved. Only then could Judge Henley allow them to represent themselves and move to the next stage of entering pleas.

Second, three of the five defendants who do represent themselves (although we are still stand-by counsel for all three) changed their mind from the morning to the afternoon on Monday as to whether they wished to formally enter guilty pleas this week. Ironically, there is a conflict between the rules and the discussion section of the Military Commissions Act that leaves it unclear as to whether the death penalty could attach in an instance where guilty pleas are entered. In other words, if they plead guilty it is not clear they could be executed (”martyred” in their minds). When Mr. Mohammed learned this at lunch, he did a turn-around and said that he was not willing to enter pleas that day until he gained clarity from Judge Henley on this issue.

Third, after the defendants understood that if the pro se defendants proceeded separately without resolution of the other two who are still represented by counsel, the five cases would not continue to proceed together. The idea that moving ahead on Monday on three pleas would essentially leave their other two “brothers” (as Khalid Sheikh Mohammed put it) behind made them reconsider their decision, much to the consternation of the prosecutor and the military judge.

While these events have the potential to impact the nature of the John Adams Project’s involvement, we are not giving up. As I explained, two of the five defendants are still directly represented by the JAG and John Adams lawyers. Although Khalid Sheikh Mohammed did fire his JAG lawyer, Captain Prescott Prince, by the afternoon he had welcomed ACLU lawyer David Nevin back to the counsel’s table, was conferring with him, and was receiving input from him in open court. As in many capital cases, lawyers often encounter an on-again/off-again dynamic with clients — even more so with those who have been tortured and waterboarded.

This is far from over. Guilty pleas have not been entered or accepted, and sentencing is a ways off. What we have done by providing expert civilian defense counsel is ensure that the worst case scenario (entering of pleas, acceptance of pleas, and sentencing in a system void of due process) did not happen in the remaining days of the Bush administration. Without the ACLU and NACDL’s involvement, I can immodestly speculate that those events almost certainly would have happened this week.

What happens next?Well, who can ever say about Gitmo? The judge has set up a briefing schedule on the above issues that requires the last response motion from us on January 4, 2009. It seems like a long-shot that he would set up a hearing to hear the pleas, accept them and sentence the defendants before Inauguration Day, but no one can say with certainty. What is most likely is that this is all dropped in the lap of a new administration. Putting the pressure on the Obama administration to shut down Gitmo and the military commissions right away as he promised is our top priority, since the further this process goes, the harder it may be to stop it entirely. Monday’s Washington Post piece does a good job of exploring this conundrum for the Obama team. Notice the “no comment” from the transition team.

Finally, what was most difficult for all of us at Guantánamo was hearing the 9/11 family members who were down there say that they were proud of America and the way in which the defendants were being afforded justice.They are earnest, well-intentioned people who suffered a great loss, and I can only imagine the mix of emotions that they were feeling as they were sitting in the courtroom alongside of us.But the fact is that their grievous loss and hope for justice does not fix the fact that this commission process is NOT the best example of American justice, as it is a system that allows hearsay, coerced confessions and evidence gleaned from torture and waterboarding.

There are other 9/11 family members who share our views, 24 of whom issued a statement to that effect today, and some whose individual statements are on our website. Nothing changes the basic fact that this system changed the rules of tried-and-true systems of justice (whether civilian or military), and while the military commissions may look, smell and feel like a real court of law, they are not. No court of law would allow individuals who were tortured with the express approval of top government officials to be put to death when their mental health status is still in question.

That’s why we’re sticking with this case, and that’s why we ask for your support.

“Don’t replace the old Guantánamo with a new one” appears on Salon.com today and discusses the emerging narrative in Washington think-tank circles that Congress should enact a law that would authorize the president to imprison alleged terrorists without charge or trial in the U.S. — essentially opening a new Gitmo here at home.

Among their arguments, they point out that “[w]hat underlies the consensus is the theory that our criminal justice system is unequal to the task of detaining terrorists in a dangerous world,” and argue that U.S. has captured and successfully prosecute terrorism suspects in the past — before and after 9/11. In other words, federal laws and procedures already exist to deal with sensitive national security information — there is no need to create an entire new legal system.

In closing, they state:

How an Obama administration chooses to tackle these issues will determine, in large part, the legal legacy of the last eight years. Even the clearest renunciation of torture will be an empty gesture if we simultaneously construct a new detention regime meant to permit prosecutors to rely on torture’s fruits. That our justice system prohibits the imprisonment of human beings on the basis of evidence that was beaten, burned, frozen or drowned out of them is evidence of its strength, not its weakness. It is why we call it a ‘justice system’ in the first place.”

Read the full article here.

Today, ACLU Executive Director Anthony D. Romero is at Guantánamo to observe the pre-trial hearings of the detainees charged with crimes related to the 9/11 attacks. Today we learned the group of four detainees offered to plead guilty to the crimes.

President-elect Obama has said that he will close Guantánamo. Let’s hope he puts this shameful chapter of American justice to an end on Day One.

Unfortunately, the anniversary of the Declaration comes at a time when America’s historical role as a leader in the human rights movement and its moral standing in the world is severely damaged. On January 11^th, one month after the world celebrates the UDHR, America will mark another solemn anniversary – seven years since the first detainees were brought to the prison at Guantánamo Bay. Gitmo has become a symbol for the Bush administration’s worst excesses – including indefinite detention, torture, and unconstitutional military commissions.

Juxtaposed against the UDHR, particularly Articles 5 and 9 which clearly state…

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

No one shall be subjected to arbitrary arrest, detention or exile.

… U.S. policies and practices have illustrated a blatant disregard for international law and human rights.

We now stand at a pivotal turning point. With new leadership, the United States has the potential to regain its moral standing in the world.

As part of our efforts, we are calling on President-elect Obama to close the Guantánamo prison and end the military commissions on day one of his presidency. We are collaborating on videos with Brave New Foundation containing direct testimony from those with firsthand knowledge of the system of injustice that thrives at Gitmo.

Join our efforts to urge President-elect Obama to give us back the America we believe in.

Celebrate the UDHR at 60 with the ACLU. Visit www.udhr60.org and sign the ACLU’s petition calling on the government and newly elected president to recommit to the UDHR. On December 10, the ACLU’s efforts will culminate in the online launch of an exclusive publication about the importance of the UDHR.

Kroft: There are a number of different things that you could do early pertaining to executive orders. One of them is to shutdown Guantanamo Bay. Another is to change interrogation methods that are used by U.S. troops. Are those things that you plan to take early action on?

Obama: Yes. I have said repeatedly that I intend to close Guantanamo, and I will follow through on that. I have said repeatedly that America doesn’t torture. And I’m gonna make sure that we don’t torture. Those are part and parcel of an effort to regain America’s moral stature in the world.

Obama’s statement was widely celebrated as evidence that he intends to act swiftly and decisively to end the Bush administration’s most controversial detention and interrogation policies. But that reaction overstates the meaning and importance of what Obama actually said.

Obama’s response to the question that was asked was perfectly satisfactory as far as it went. He was asked whether he intends to close Guantanamo and “change interrogation methods” and he answered “yes” to both. It would have been rather shocking if he had answered any other way. Could one even imagine Obama proclaiming that he intends to leave Guantanamo open or that he intends to leave unchanged Bush’s interrogation programs?

But his answers, adequate though they may be, actually tell us relatively little about how Obama intends to address the most vexing and important questions in these areas. The intention to close Guantanamo and to ban torture are not policies; they are mere generalities, concepts, aspirations. Even George Bush paid lip service to both goals: “I would like to close the camp and put the prisoners on trial,” Bush said. “We do not torture,” Mr. Bush told reporters.

Obama’s 60 Minutes statement leaves unresolved many of the overarching questions about the policy changes he will mandate in order to reverse the most extreme Bush abuses, including:

• Will he quickly order Guantanamo closed by Executive Order or merely implement an incremental policy designed ultimately to culminate in the closing of Guantanamo — months or even years from now — once all detainees there are tried and/or released?
• Will he abolish the military commissions established by the Bush administration and ensure that all Guantanamo detainees are entitled to full due process in American federal courts or proceedings governed by the Uniform Code of Military Justice?
• Will he take the advice of people such as Brookings Institutions’ Benjamin Wittes and The Washington Post Editorial Page and create a wholly new, separate court for detainees with severely limited due process safeguards, or will he order that they receive the full panoply of due process rights?
• When Obama says that he will make sure that “we don’t torture,” how will “torture” be defined? Will all of the Bush OLC memos re-defining “torture” be withdrawn? Will Obama issue an Executive Order and/or continue to support a law compelling all agencies — including the CIA — to adhere to the interrogation guidelines set forth in the Army Field Manual?

Obama has previously signaled that he would take aggressive and positive action in all of these areas, though there are also some conflicting signs that create some uncertainty. As but one example, earlier this year, Obama expressed clear support for a bill that passed the Senate, but was vetoed by Bush, which would have compelled the CIA to abide by the Army Field Manual. Similarly, Obama unambiguously vowed to The Boston Globe’s Charlie Savage late last year as follows:

As President I will abide by statutory prohibitions, and have the Army Field Manual govern interrogation techniques for all United States Government personnel and contractors.

Yet since then, John Brennan, Obama’s top intelligence adviser (and until yesterday, the leading candidate to lead the CIA), explicitly questioned whether such a measure was desirable.

Moreover, Obama was one of the few Senate Democrats who not only opposed the Military Commissions Act — which authorized Bush’s military commissions — but also went to the floor of the Senate to sponsor amendments that would have limited its reach and, if passed, would have likely caused the Bush administration to veto it. Obama’s opposition to these military commissions was thus reflected not only by his words, but also his past actions. Yet key Obama adviser Cass Sunstein has, in the past, expressed support for Bush’s military commissions.

Perhaps most encouragingly of all, Obama was one of only 15 Senators who voted against the confirmation of Gen. Michael Hayden as CIA Director, a confirmation that passed the Senate with 78 votes. In opposing the nomination, Obama cited the fact that Hayden was “the architect and chief defender of a program of wiretapping and collection of phone records outside of FISA oversight” and that “this is a program that is still accountable to no one and no law.” Obama said he was voting against Hayden “to send a signal to this Administration that even in these circumstances President Bush is not above the law.”

And, Obama explicitly told The Boston Globe’s Savage that the President does not have the authority to eavesdrop outside the parameters of FISA. Yet here, too, his leading advisers — including Sunstein and Brennan — have a history of supporting Bush’s wireptapping programs.

With some significant exceptions — most notably his reversal on FISA and telecom immunity earlier this year — Obama has evinced very good instincts on issues of executive power, torture, Guantanamo, the rule of law, and related matters. Merely holding him to the vows he made during the campaign will go a long way to restoring America’s standing in the world and reversing many of the worst Constitutional abuses of the last eight years.

But closing Guantanamo should be the first step taken, and it should be taken very quickly and decisively. It is true that merely closing Guantanamo without further reforms — particularly the abolition of the military commissions — would be woefully insufficient. As the ACLU’s Anthony Romero put it recently in an interview I did with him:

Shut it down, and shut down the military commissions, because it won’t be good enough if you shut down Guantanamo, and then transfer the detainees and charge them under these trials, and use the same screwed-up rules of the military commission at Fort Bragg or Fort Myers or anywhere else. You’ve got to shut down the existing military commissions as well.

Still, though it would be a symbolic step above all else, and would by itself be inadequate, closing Guantanamo is a powerful and necessary signal to the world about the path the U.S. intends to take under an Obama administration, and it is the one most easily and most quickly effectuated. As the ACLU’s Romero put it:

First day in office, George Bush passed an executive order repealing the Clinton executive order and imposes a global gag rule. So we got it; while the tool is there, I think we ought not to mistake the power of the president being able to exert that power.

President Bush opened up Guantanamo with a stroke of his pen. Do we really want to have to get into a morass of partisan politics and horse trading to close Guantanamo when one president with impunity and with bad motivations opened a prison camp with no legal rights, and now we’re going to be squabbling over the procedural details to do the right thing?

There are many steps which President Obama will need to take to put the U.S. back on the path of basic liberties and human rights. But closing Guantanmo — decisively and immediately — will signal to the world that he is serious about fulfilling the multiple pledges he made to restore America’s standing in the world.

For more on Guantánamo Bay Prison and why it should be closed, check out www.closegitmo.com