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.

According to the latest edition of ACLU Legal Director Steven R. Shapiro’s annual overview, there is no doubt that Roberts presides over a conservative court. Indeed, there is little doubt that the Roberts court is even more conservative than the Rehnquist court that preceded it. Read on to find out what cases we can expect to see before the Court and what’s at stake for our civil liberties.

Also very useful:

• Jonathan Hafetz, incoming staff attorney with the ACLU National Security Project, gives a rundown of the case of al-Marri v. Puccuiarelli. Al-Marri is the only designated “enemy combatant” detained in the mainland United States. At issue is whether the president can order the military to seize and indefinitely detain citizens and legal residents in the U.S.
• Chris Hansen, senior staff attorney with the ACLU First Amendment Working Group, explains ACLU v. Mukasey, the ACLU’s successful challenge to the Child Online Protection Act. After two prior trips to the Supreme Court, the law was once again declared unconstitutional by the U.S. Court of Appeals for the Third Circuit in July 2008.
• Laughlin McDonald, Director of the ACLU Voting Rights Project, enlightens us on Northwest Austin Municipal Utilities District v. Mukasey, a challenge to the constitutionality of the recently extended pre-clearance requirements of the Voting Rights Act.

The New York Times and the Christian Science Monitor have also offered their predictions for the term.

Vandeveld writes:

My ethical qualms about continuing to serve as a prosecutor relate primarily to the procedures for affording defense counsel discovery. I am highly concerned, to the point that I believe I can no longer serve as a prosecutor at the Commissions, about the slipshod, uncertain "procedure" for affording defense counsel discovery. One would have thought that after six years since the Commissions had their fitful start, that a functioning law office would have been set up and procedures and policies not only put into effect, but refined.

Indeed. Umansky noted yesterday that Vandeveld is the sixth government prosecutor to resign his post. For more details on how Vandeveld’s resignation played out, and the concerns he raised, check out Hina Shamsi’s account of the Jawad hearings at Guantanamo last week, including Vandeveld’s testimony about his resignation.

It’s a safe bet that future generations will judge the U.S. military’s detention, treatment and trial of prisoners at Guantánamo harshly, as one of the lowest points in this country’s history. But the full story has to include accounts not just of leaders who betrayed this country’s most fundamental values, but also of the lower-ranking military personnel who stood up to confront their own government. During the military commissions hearings last week, military defense lawyers and a prosecutor reminded us, again, that there are men and women of courage and honor who are willing to risk their careers and livelihood to speak out against injustice.

At the beginning of the week, military defense lawyers assigned to advise the 9/11 defendants fought zealously to seek some measure of fairness in a system stacked against these detainees. In the latter part of the week, all the focus was on a dramatic development in the commissions’ case against Mohammad Jawad: Lt. Col. Darrel Vandeveld, the lead prosecutor, resigned because he does not believe he can ethically proceed with the case.

Before the start of Thursday’s hearing in Jawad’s case, Major David Frakt, his lawyer, told the media and observers that Vandeveld had given him a written declaration setting out the reasons for the resignation, which Frakt had filed with the court. During the hearing, Frakt reminded the court that Vandeveld "was quite an aggressive prosecutor" but said "he is nevertheless guided by a strong ethical and moral compass." Frakt told the judge that although Vandeveld feared retaliation against him, he was willing to testify, either by phone or videoconference.

The retaliation Vandeveld feared began even before he testified, and it was fierce and personal. Frakt told the court that the chief prosecutor had directed Vandeveld to undergo a psychiatric evaluation, ordered him to stay at home, and prohibited him from coming into his office pending his official release from military service. Once Brig. Gen. Thomas Hartmann, the new "war-court czar" in charge of logistics for the military commissions, found out about Vandeveld’s declaration, he quickly armed commissions personnel with media talking points that discredited Vandeveld and called his motivations into question. (Frakt had a copy of the talking points, which he provided to the judge.)

Hartmann has a well-documented history of improperly attempting to influence commission proceedings. Until a couple of weeks ago, he oversaw the military commissions as a legal advisor, a position in which he was supposed to maintain neutrality. But, as military judges found in three cases, Hartmann pressured prosecutors to make decisions based on political considerations or otherwise exercised inappropriate control over them. Hartmann was likely reassigned by the Pentagon in an attempt to neutralize criticism, but it seems that the fox was removed from the henhouse only to act as if he were in charge of the farm. Frakt told the court that since Hartmann was reassigned, he has "lost any pretense of impartiality" and that he was "very involved" in efforts to prevent Vandeveld from testifying.

Perhaps because of Vandeveld’s fears of reprisals, on Thursday he initially asked for immunity from prosecution in return for his agreement to testify. It appears Vandeveld had a change of heart, though, because he does not seem to have pressed the issue and he testified without immunity on Friday afternoon. It will be important and telling, in the coming days and weeks, how the Pentagon treats Vandeveld and whether there are further attempts to smear him. Already, Vandeveld’s request to be transferred to Afghanistan or Iraq for the remainder of his time on active duty has been denied and he is being released from active service.

Based on Vandeveld’s own testimony and Frakt’s description of his declaration in court, Vandeveld has three main reasons for resigning. First, Vandeveld said he turned from a "true believer" in the military commissions to feeling "truly deceived" when he realized records were not being provided to defense lawyers as required — and simply could not be — because the process for gathering, maintaining and transferring records was in "utter disarray." According to Vandeveld, the systemic flaws "deprive the accused of basic due process and subject the well-intentioned prosecutor to claims of ethical misconduct."

Second, Vandeveld said that the government has not provided Jawad’s lawyers with exculpatory evidence — evidence that could show Jawad’s innocence — as it is required to do; he provided examples of specific documents that had not been turned over. On cross-examination by the government (his former co-counsel), Vandeveld admitted that he had himself known about the existence of certain of those documents for a year, but had not turned them over to the defense. According to Vandeveld, he was waiting for the documents to be declassified and for a judge to issue an order establishing a schedule for document production. This struck me as odd. Every prosecutor knows that exculpatory evidence has to be turned over to the defense promptly, regardless of whether there’s a court order. Why would a prosecutor willing to resign over documents not being handed over to the defense himself fail to provide those documents? Vandeveld didn’t address that question specifically. Given his general description of pressure to prosecute cases aggressively, quickly and without being too cooperative with the defense, I’d speculate that he was working in an environment in which an ethical prosecutor may need the protection of a judicial order to do the right thing.

Finally, Vandeveld said that he had become troubled that Jawad, who was a teenager at the time of his capture, had not been segregated from adult prisoners and had not been provided with rehabilitation. He added that his view of the case had "evolved" over time because he suspected that Jawad was duped into joining an anti-American group and was drugged before the event of which he is accused — throwing a grenade at two U.S. service members and an interpreter. Vandeveld also referred to the abuse Jawad suffered at Bagram and at Guantánamo. Based on all this, and on his strong belief as a Catholic in "reparative and restorative" justice, Vandeveld had come to the conclusion that the government should offer Jawad a plea deal — a short period of confinement that would include rehabilitation, followed by release. His supervisors refused.

Rather than the plea deal Vandeveld wanted to give him, Jawad faces a maximum sentence of life imprisonment. But Vandeveld’s concerns about prosecuting Jawad were reinforced by the government’s own witnesses who testified on pre-trial evidentiary issues that were also before the court during the hearing. These witnesses told the court they knew at the time of Jawad’s capture that he was a juvenile, and that he may have been forced by adults to throw the grenade. Jawad’s defense counsel questioned whether he even threw the grenade, given that Afghan authorities arrested at least one other person, an adult, in connection with the attack.

The first military interrogator to interview Jawad after his capture admitted that Jawad said he had not wanted to throw the grenade and that "when it came time to commit the act, he got cold feet and was afraid. He was drugged and accompanied by an older gentleman who did not give him the option not to go through with the act." In addition, the interrogator testified, Jawad said he’d been "recruited" by a Taliban-affiliated group, the Hizb-i-Islami, with the understanding that he would be able to make money to support his family, but that "at the time he was recruited, he wasn’t fully aware of what he would be doing." A part of the military interrogator’s testimony took place behind closed doors because the interrogation techniques to which he subjected Jawad are apparently classified. (The ACLU has challenged similar abuses of the classification power in other cases) In open court proceedings, though, Jawad’s counsel made clear that the techniques could include acts of torture and cruel, inhuman and degrading treatment in violation of the Geneva Conventions.

There is a souvenir shop a short drive from the courtroom in which the hearing in Jawad’s case took place. On Friday, after Vandeveld testified and the hearing ended, I walked around the shop looking at T-shirts and coffee mugs emblazoned with Honor Bound to Defend Freedom, the motto of the military task force responsible for detainee operations in Guantánamo. It struck me that the only honor to be salvaged in the courtroom that afternoon had been that of the military lawyers defending Jawad, and the military prosecutor who refused to continue on the case against him.

Mayer kicks off the discussion with a doozy, noting that torture hasn’t come up during the presidential campaign:

…Understandably, this is a toxic subject, reeking of political payback. But I have personally interviewed CIA officers who have said they refused to partake in the “enhanced interrogation” program because they feared that eventually it would lead to criminal charges. They had seen this happen before, and wanted nothing to do with it, even if it meant in some instances, leaving the CIA. The threat of prosecution clearly acted as a deterrent. My question is what happens if there is no accountability for America’s first program of state-authorized torture? Does it send a green light to torture again when the next attack takes place? Is it an invitation to other forms of lawlessness by the U.S. Government? But, if top officials of the Bush Administration who were acting in what they believed to be the best interests of the country’s security, are now prosecuted, is that just? Will the public support it?

We’re curious about this too, and one of the reasons we launched our Constitution Voter campaign: to push issues like torture and “enhanced interrogation techniques" to the forefront of this election. Join us by signing the pledge; let the candidates know we care about these issues and want to hear how they would address them. What’s the plan to close Guantánamo? Will they bring those who authorized the torture of detainees in U.S. custody to justice? Will they ban the use of torture and rendition without exception?

Tell the candidates to address these issues now, while they still need our votes and support. Ask them the hard questions, and let them know they can’t ignore the Constitution.

Given that this is arguably the most high-profile capital trial ever, you might think that the government prosecutors would be killing the defense with kindness when it comes to resources. You might expect that they would take the position that most federal prosecutors take – give them what they want, judge, so we don’t have to try this twice. Instead, part of the week was spent wrangling over defense requests for expert psychiatrists, accurate transcripts, and some other pretty modest items.

The defense requests included one for a telephone between Gitmo and the secure facility in Washington, so counsel would be able to talk with their clients, who are, in effect, their co-counsel (since most are representing themselves, with the help of the ACLU’s John Adams Project lawyers and their military counterparts). Another was for a courier – one courier, thus bringing the grand total to TWO couriers – to get pleadings and papers back and forth from the detainees’ cells to the secure site on Guantanamo.

Bob Swan, the chief prosecutor, told the military judge that there was no way to make the 40,000+ pages of materials searchable for the clients representing themselves, but triumphantly announced “a 287-page index!” When asked if it could be in Arabic, he said, “No”. He said what he’s been saying all week in response to grievous translation problems: we already gave you translators; use them. (Each team has its own translator – well, except for the Azziz Ali team, whose government-sponsored translator wasn’t up on legal terminology.) When it came to a really “expensive” request like a mental health expert for Ramzi bin al Shibh whose competence is in question, the government of course denied it outright.

The prosecutor’s refrain of the day was: “No.” No telephone, no courier, no Arabic transcripts or index or files, and no experts. No, the Constitution doesn’t apply to these men. And absolutely no visits to the infamous Camp 7, where the so-called “high value” detainees are held, so no to the request to evaluate conditions of confinement that would be commonplace even in a capital case without allegations of maltreatment, rendition, and torture-induced insanity.

A possible motive emerged at the end of the day, when Swan claimed that “these defense lawyers” would “rather be in Washington D.C.” than at Guantanamo seeing their clients — which of course is nonsense aimed at driving a wedge between clients and counsel. The prosecution, it seems, longs for the days in June when tortured men held incommunicado for years seemed ready to forego trials altogether and simply agree to their own executions. It appears that the prosecution’s problem is not just with the specific requests that the defense counsel are making but with the very presence of defense counsel in the first place.

ACLU attorneys Hina Shamsi and Denny LeBoeuf are in Guantánamo right now observing the military commission hearings of the accused 9/11 defendants. We’ll have more details soon, so stay tuned!

When the 9/11 defendants first emerged from years of torture and detention in secret CIA custody, it was for arraignment in a Guantanamo courtroom. The government immediately made it clear that any public mention of the prisoners’ abuse was off limits. The audio feed to the spectators’ room (where we observers and the media sit behind soundproof glass) was cut off any time a defendant mentioned being tortured. In today’s hearing, though, it was perfectly acceptable for Khalid Shaikh Mohammed to mention he was waterboarded (the government apparently realized it’s futile to censor what the head of the CIA himself admits).

But the security officer assigned to the court - presumably a CIA employee or contractor - cut off the sound, and a red light (quite literally) flashed in the courtroom, when Mohammed referred to a book by Richard Nixon. The government gives new meaning to “one step forward, two steps back.”

Former President Nixon came up during “voir dire,” a process in which counsel ask a judge questions to determine the judge’s ability to preside impartially and without bias over a case. Because Mohammed is representing himself, with military defense lawyers and attorneys from the ACLU’s John Adams Project advising him, he was able to participate. Mohammed wanted to know whether Judge Kohlmann’s religious affiliation would prevent him from being fair to the defendants. Mohamed noted that the U.S. considers him and his co-defendants to be “fanatic extremists” but he charged that the U.S. itself has its own extremist organizations. Mohamed said to Kohlmann: “If you were part of Jerry Falwell or Pat Robertson’s group, then you would not be impartial.” He went on: “Even former President Richard Nixon, in a book called —” at which point he was silenced. After close to two minutes in which we saw the courtroom as a mime, the sound came back and the judge explained that the audio feed was cut because the security officer had mistakenly thought that Mohammed was intending to address topics that could not be addressed in open court. We were left wondering what it was about a Richard Nixon book that was now presumptively classified. We’ll likely never know.

Today’s hearing was filled with such absurdities, some of which would have been comic if the stakes weren’t so high.

At various points, all we heard through the audio was gobbledygook. For example, at one point we heard “In the beginning of timing of lawyer, I say no difficulty, no situation, I can trust lawyer . . . I ask you previous about right to counsel. What can trust make decision on.” What sounded like a Star Wars character was actually a government-appointed interpreter translating into English questions Mustafa Ahmed al-Hawsawi had asked the judge about the consequences of representing himself. Poor translation has been a hallmark of the military commissions since 2004, when the ad hoc tribunals were first established. But it has reached new heights, with greater consequence, in these cases.

Al-Hawsawi’s defense lawyer, Major Jon Jackson, said at the end of the day that his client doesn’t understand about a quarter of the court proceedings because of incomprehensible interpretation. Al-Hawsawi’s civilian attorney, Nina Ginsberg, explained that because of shoddy interpretation, half of what Al-Hawsawi said to the judge about attorney-client confidentiality concerns, and concerns that he will not be able to obtain from the government documents related to his own torture, was unintelligible. All the defense counsel have asked that the proceedings be stayed until the government (whose responsibility it is) obtains competent interpreters. Failing that, they asked for the transcripts of each day’s proceedings to be made available in English and Arabic so that they can go over each day’s events with their clients and make corrections for the record. The government strenuously opposed the request, stating that it’s enough for the defendants to be present and observe the proceedings. As Jackson said afterwards, “I could not believe my government would not provide transcripts in the native language of the accused that it wants to put to death.”

Perhaps more seriously, Ramzi bin al Shibh was in court today and sat through the proceedings despite the fact that his mental competency - his very ability to be present in all senses of the word - is in question. He was persuaded to attend, it seems, by the notes his co-defendants sent the previous evening, urging him to attend voluntarily and to avoid being forcibly brought to court. To observers of his June 5th arraignment, he appeared considerably heavier; some speculate it could be a result of anti-psychotic medications.

Judge Kohlmann told bin al Shibh that he would be forcibly brought to court any time he refused to attend voluntarily until the question of his competency was resolved. (A competency hearing has not yet been scheduled.) Later, bin al Shibh’s military defense counsel, Commander Suzanne Lachelier, objected to the judge’s questioning her client about his legal rights when his ability to understand and exercise or waive those rights is in question: “While you were instructing him, Judge, he was reading the newspapers. I object.” The judge overruled her.

Moments later, bin al Shibh began to address the court: “She does not speak for me. She does not speak for me.” His voice was urgent, but measured at first. As he went on, he became increasingly agitated. Holding a piece of blank paper in the air, bin al Shibh added, “She says my mental state is not good. I have messages saying she wants to meet with me - why would she want to meet with me if my mental state is not good? That is not logical. She is a liar. I need a lawyer who would defend my interests against her.”

After his outburst, bin al Shibh remained quiet. Over the course of the day, he sometimes wore the earphones that allowed him to listen to the translation, but often took them off. It’s not clear if he, or any of the other defendants, fully understood what happened in court today.

Monday’s hearing in the Guantánamo Military Commission prosecution of the alleged 9/11 plotters was expected to address the now-familiar allegations of improper command influence by Brigadier General Thomas Hartmann, who has already been excluded from three other commission trials for politicizing his legal advice in favor of the prosecution. But if there’s one thing we’ve learned to expect about these military commissions, it’s that nothing goes according to plan. In that regard, Monday didn’t disappoint.

At 9 a.m., when proceedings were scheduled to begin, one seat was noticeably empty: Ramzi bin al-Shibh’s. The other four so-called "High-Value Detainees" were there, as were their military and civilian lawyers and advisors, the prosecutors, the many guards, and the unnamed and never-identified civilian contractors who control security. But bin al-Shibh was nowhere in sight.

For the next 90 minutes, the defendants spoke to their "co-counsel" (three of the detainees are representing themselves) and to each other. Then a recess was announced. There was no explanation.

Court reconvened at 1:30 p.m., and this time the judge explained the reason for the delay: the court was considering how to address bin al-Shibh’s absence. Bin al-Shibh is awaiting a competency determination triggered by the revelation in a previous hearing that he is being treated with anti-psychotic medication. On Monday morning, he refused to leave his cell to appear in court. So the issue was: could bin al-Shibh voluntarily waive his presence? Did he know that such a waiver might affect his future rights, including his right to represent himself?

One way to find out, of course, would have been to force the defendant to come to court, by performing what is called a "cell extraction." That was the judge’s obvious desire: he wanted bin al-Shibh in court, to ask him whether or not he wished to decline his right to be present. The prosecution also favored extraction.

The surprising obstacle to this plan was "JTF GTMO" — the joint task force responsible for all detainee operations at Guantánamo Bay (in effect, the jailers). The military officers responsible for detaining bin al-Shibh (as opposed to prosecuting him) believed that, according to the law, he had a right to refuse attendance, and they would not forcibly extract him without a court order. Both judge and prosecutor were plainly frustrated by this position.

Bin al-Shibh’s military defense counsel, Lt. Cmdr Suzanne Lachelier, argued that until bin al-Shibh’s competency could be assessed, the court should not attempt to assess his waiver of his right to be present. Lachelier pointed out that in federal court and in a military court martial, once a defendant’s mental competency has been seriously questioned, typically all other matters halt until that issue can be resolved.

"The question is one of meaningful presence," she said. "If he is not competent, then forcing him to be here may mean he is here in body only." Lachelier revealed that the drug her client was taking was one typically used to medicate schizophrenia. She referred to pleadings filed by the bin al-Shibh team that contained considerable additional evidence, which she could not discuss in court, which bolstered the claim that he was mentally ill and might not be competent to stand trial or able to participate in his own defense.

The court ultimately decided that JTF GTMO would get their order. Bin al-Shibh would be forced out of his cell and into court — but not before every effort could be made to persuade him. First, the court ordered Lachelier to attempt to persuade her client. Lachelier objected: because the location of the infamous "Camp 7," where the former CIA prisoners are held, is top secret, bin al-Shibh must be transported to meet with his counsel. But for that to happen, "he has to be hooded, placed shackled in a van" — something that Lachelier opposed. Instead, she offered to be hooded herself so that she could visit her client — a remarkable suggestion that highlights yet again the absurdity of Guantánamo’s secrecy regime. The judge declined.

At this moment, Khalid Sheikh Mohammed signaled that he wished to be heard. "If you will let Mr. Nevin explain," he said. David Nevin, Mohammed’s ACLU-sponsored lawyer, said that Mohammed wanted bin al-Shibh to be present in court as well. "If you allow Mr. Mohammed or one or more of the others to visit Mr. bin al-Shibh, perhaps they could persuade him." "No force" said Mr. Mohammed.

The judge then turned to Walid bin Attash, who had asked to be heard previously, and who said he had the same suggestion. Speaking of bin al-Shibh, Attash said: "He doesn’t trust anyone in this government. But he trusts us. With what has happened to us in this situation — we have all lost faith. But we have faith in each other."

The judge ordered that bin al-Shibh be brought to the Commission at 9 a.m. Tuesday. While he would not order a meeting of the codefendants, he suggested that the defendants write a note or series of notes to bin al-Shibh. As we filed out of the gallery, the four capital codefendants and their lawyers were drafting notes to bin al-Shibh.

Earlier, when the judge and the prosecutor were musing together about why JTF GTMO simply couldn’t go into bin al-Shibh’s cell and take him out, the judge observed: "This is a learning process on many levels."

But should the highest-profile capital case in U.S. history really be a "learning process"? Isn’t it time to return to the rules we’ve been using for hundreds of years, the ones the Constitution requires? Putting training wheels on a vehicle headed for the execution chamber — that is not a spectacle that can restore confidence, at home and abroad, in American justice.