The circus-like atmosphere of the military commissions in Guantánamo Bay, Cuba, carried on yesterday in top form. Although the primary issue addressed – selection of counsel for the accused – routinely arises and is professionally dealt with in federal court, the hearing today left the proceedings against Omar Khadr in tatters. When all was said and done – and most of it was said and done by the presiding judge, Colonel Parrish, who made little effort to conceal his anger and frustration with Khadr’s lawyers – the judge had slashed Khadr’s trial team of three lawyers to a provisional one, depending on the outcome of yet another hearing set for July.

The preliminary yet fundamental issue of representation for Khadr took center stage this morning amidst vitriolic infighting between the chief of the military-commissions defense office and one of the attorneys detailed from that office to represent Khadr. Although the particulars of the fight are secret, documented in a sealed filing, this much we know: the judge is not happy. And yet, shortly after criticizing Khadr’s lawyers, the judge went to some effort to praise Khadr himself: “Mr. Khadr is coming across in a dignified and professional manner and is very well spoken this morning.”

As even the judge himself recognized, however, today’s and July’s proceedings might be wasted effort. President Obama might, for example, fundamentally alter the commissions or, more modestly, change the rules regarding selection of counsel for those tried before the commissions-both possibilities mentioned by the president in his speech at the National Archives. Perhaps more significantly for Khadr’s case in particular, the president might decide not to try Khadr before a military commission at all.

These possibilities left most present at today’s hearing wondering why anyone bothered to show up, and they highlighted the essential failure of military commissions: they are ad hoc proceedings with few rules and even fewer precedents, with both rules and precedents, sparse as they are, subject to change at any time.

It is difficult to imagine such a broken-down apparatus producing just results viewed with legitimacy by the American people, or by others whose respect we also need in our fight for our principles. But the apparatus continues to churn and sputter in Khadr’s case, leaving a swath of confusion in its wake.

(More Guantanamo dispatches here.)

It is difficult to divine the purpose of today’s closed-door session and tomorrow’s on-the-record hearing of the military commissions at Guantánamo Bay, Cuba. Although President Obama called for the suspension of the Bush-era commissions shortly after taking office four months ago, and despite his recent announcement of his plan to “fix” the commissions, the mystery that is Guantánamo marches on, seemingly oblivious to state-side developments.

The ostensible goal of the hearings is to resolve two preliminary issues in the military-commission trial of Omar Khadr: his selection of counsel - an issue that has plagued virtually every military-commission proceeding - and the prosecution’s request for a stay of the proceedings.

But resolution of those two issues seems a meaningless endeavor in light of President Obama’s decision to scrap the current military commissions and even more so given the replacement for them that President Obama outlined in his speech at the National Archives.

In that speech, the president focused on one overriding theme: he will under no circumstances release someone who he considers to be “dangerous,” whether or not he can prove it. Around that organizing principle, the president constructed a simple system of detention. If there is good evidence of a detainee’s guilt, he will try that detainee in federal court. If there is perhaps some evidence, but it is tainted by coercion or for some other reason would not convince a federal court of the detainee’s guilt, he will try the detainee before a military commission, where the rules are rigged in favor of the prosecution. And if there is no viable evidence of guilt, but the president really thinks the detainee is dangerous, the president will simply detain him - indefinitely and preventively.

This plan, if carried out, would give President Obama the dubious distinction of being the first president in our nation’s history to seek congressional codification of an expansive system of preventive detention. Perhaps even more telling, however, the plan amounts to a plea for Congress to enshrine into law, perhaps with some as-of-yet-undefined oversight, the power that President Bush asserted without any statutory support.

It is in the shadow of this heads-I-win-tails-I-win system of guaranteed detention that this weekend’s military-commission hearings take place. What purpose they serve is a mystery to most here. But on they will go.

(More to come after tomorrow’s on-the-record hearing.)

(Originally posted on Huffington Post.)

I’ve been observing the military commissions since 2004, and Guantánamo never felt more surreal or otherworldly than it did in what we hope were its final days of operation. On Martin Luther King Jr. Day, while then President-elect Obama prepared for his inauguration the next day, the Guantánamo military commissions charged forward with the pretrial hearing of Omar Khadr, the mental competency hearing of Ramzi Bin l-Shibh, and other proceedings in the case of the "9/11 defendants," the men charged with co-conspiring in the September 11 terrorist attacks.

Prior to the hearings on that Monday, the prosecution and defense teams in two cases filed a joint request to postpone the proceedings in anticipation of the changing of the guard in Washington. The military judges denied this request. Instead, "the show must go on" was the message in the days and hours before President Obama took the oath of office and had an opportunity to issue his executive orders. Neither prosecutors, defense lawyers, nor judges acknowledged during the Monday proceedings that there was an imminent change in the way the incoming administration would deal with the military commissions. Federal courts were closed on Monday in observance of Martin Luther King Jr. Day, but it was business as usual at Guantánamo. Ironically, even the Gitmo Gym was closed on Monday, but not the departing Bush administration’s kangaroo courts! Three days later, President Obama issued executive orders to close Guantánamo within one year, suspend the military commissions, prohibit CIA prisons, and enforce the ban on torture.

Read more…

(Originally posted on Daily Kos.)

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.

(Also posted on Daily Kos.)

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.

(Originally posted on Daily Kos.)

After sitting through two military commission hearings here at Guantánamo today, I started asking military officers whether any members of Congress or staff have seen any of the military commission proceedings so far. It was easy to get an answer because so few people have seen any of the military commission hearings. The answer is no.

As the ACLU’s lobbyist on Guantánamo issues for many years, I cannot believe that no member of Congress or staffer has ever come to one of these proceedings. While lots of people from Capitol Hill have flown in for the showy one-day VIP tour of a model camp, none of them have seen the nuthouse that Congress created by passing the Military Commissions Act two years ago.

Here’s just one day of the mess that members of Congress would see if they bothered to come.

The morning hearing today was for Ibrahim al-Qosi. The “worst of the worst”? Well, not unless cooking is a crime. It turns out that the main basis for “conspiracy” and “material support for terrorism” charges against this skinny, graying man who is pushing 50 is that he was a cook in training camps sometimes frequented by Osama bin Laden. A team of three military prosecutors today worked hard to convince the court to not dismiss any of the charges, while rotating teams of military guards took turns making sure this feeble-looking man did not somehow escape the locked courtroom, the hill dotted with machine gun-toting guards, and then make it off the island.

The alleged cook’s main objective at the hearing was to be able to consult privately with his attorney from his native Sudan. As even Justice Antonin Scalia has written, being able to choose one’s own lawyer is so fundamental a right that it is a hallmark of a fair trial. In fact, even Nazi war criminals at Nuremberg were able to have German lawyers. But the prosecutors claimed today that the Military Commissions Act overrides the Geneva Conventions, that the Constitution does not apply, and that the cook therefore cannot talk to his Sudanese lawyer without a security officer listening in on his attorney-client conversations.

The defendant’s military counsel then argued that the defendant cannot be charged with crimes that did not even exist when the cook allegedly committed them. The charged crimes were not crimes until the Military Commission Act was enacted. But the prosecutor argued that the ancient protection of the Ex-Post Facto Clause of the Constitution (which prohibits the government from applying criminal laws retroactively) does not apply at Guantánamo and that Congress could do anything it wanted to do with the Military Commissions Act — even criminalize acts that were not crimes when done.

After a lunch break, the craziness continued with the arraignment of another detainee, Mohammed Hashim, who allegedly was a bit player in Afghanistan. The main goal of the judge was to try to explain to the detainee the few rights that he has under the Military Commissions Act. The defendant appeared to have very little understanding of what was happening. The judge had to keep repeating questions and explanations as either things were lost in translation or the defendant was so confused that he kept telling the judge that he was “ok” with whatever the judge decides — about decisions to waive rights that only the defendant can waive. When the judge eventually moved on, he scheduled trial preparation events for January 20 — Inauguration Day — and even into mid-February. Maybe the judge had not heard President-elect Obama say Sunday night that he plans to shut the whole thing down.

Except for a very tenacious reporter and me, the courtroom today was empty of any civilians other than each defendant, a couple of lawyers, and some government officials. But it would be hard to imagine anyone walking away from the courtroom today — even anyone in Congress who supported the Military Commissions Act — feeling anything but regret about what happened at Guantanamo today. As a country, we traded away our values, jeopardized our Constitution, and wasted an enormous amount of taxpayer’s dollars in this mess. Instead, we should have long ago sent the innocent and the small fry home, and brought whoever the government thought was a big fish to the same federal courts where real criminals are tried every day. At this point, the best thing to happen is for Congress to fall in line behind President-elect Obama and end this fiasco.

(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.

(Originally posted on Daily Kos.)

On Thursday, I observed proceedings in the case of Mohammed Kamin, an Afghan detainee who has been held for more than five years, first in Bagram and then in Guantánamo. Kamin faces possible life in prison on charges that he "provided material support for terrorism by receiving arms training at an Al Qaeda camp in Afghanistan for several months in 2003." Because Kamin is boycotting his hearing, the proceedings were held in his absence.

The proceedings not only offered a glimpse into what is happening in the prison camps but also highlighted several recurring themes with respect to military commission process. They revealed the difficult ethical questions faced by military defense counsel who are assigned to represent detainees but do not wish to participate, the overarching and systemic failure of the discovery process, and the ad hoc nature of the proceedings themselves. Incredibly, more than five years into Kamin’s detention, the government is still trying to figure out how these proceedings should operate, including what kind of resources must be provided to the defense.

The first part of the hearing consisted of witness testimony to establish why Kamin was not present. The officer who had been responsible for bringing him to court said that when she went to Kamin’s cell to notify him of the hearing, he ripped up the notice, began kicking and hitting the cell door and stated that he was innocent and it was President Bush who should be on trial.

A prosecution motion to compel Kamin’s presence by "forcibly extracting" him from his cell was denied after defense lawyers objected on the grounds that it would put Kamin and others at risk. The judge stated that forcing Kamin to appear would serve no purpose and would only lead to a repeat of what had happened last May when a "forcible extraction" order was issued to compel Kamin’s attendance at his arraignment. At that time, Kamin resisted the officers and was brought to court in shackles with bruises, cuts and a swollen eye.

One of the key issues for the defense — and for the court — is to determine if Kamin is competent to waive his right to counsel. Indeed, this is currently an issue in a number of military commission cases where detainees have indicated that they do not want to participate in the proceedings. Defense counsel for Kamin emphasized the "Catch-22" in which he found himself — whether, and how, to represent the interests of a prisoner who has stated that he does not want such representation.

A mental status evaluation that found Kamin competent to participate in the proceedings was recently conducted by two military doctors — one, Col. Elspeth Cameron Ritchie, has been criticized for assisting in the interrogation process — even though the doctors had never met or observed the defendant. Understandably, defense counsel objected to the adequacy of that evaluation emphasizing the need for a civilian psychiatric expert who could challenge its findings and offer advice on representing a detainee who was resistant to such representation. The defense is proposing a civilian psychiatric expert experienced in working with terrorism suspects. The prosecution objected to the need for a civilian expert and insisted that if an additional defense expert was warranted, that person should come from the military. The judge did not rule on the issue. However, he asked the prosecution to start the process of identifying such an expert, while promising that the defense would have an opportunity to challenge the expert’s qualifications.

A key issue in all of the military commission cases is the government’s withholding of documents that are critical for a full and fair hearing. (Indeed, earlier in the week the government dismissed without prejudice five military commission cases, citing, in some accounts, new material received from government agencies which required reassessment of the cases.) Kamin’s case is no exception. Citing the intelligence community’s "systemic failure" to cooperate, the defense noted that the government’s continued delay in responding to discovery requests would ultimately deprive Kamin of government documents to which he is entitled. Defense counsel argued that dismissal of the case with prejudice was warranted not only as a sanction for the government’s failure to comply with the discovery process in a timely manner, but also as a deterrent to the intelligence agencies that continue to drag their feet, jeopardizing the integrity of the process.

The prosecution responded that the "systemic problems" referred to by the defense did not apply in this case, that there simply were not that many responsive documents, and that the proper way to proceed would be a motion to compel. The judge opted for the government’s proposal, in part based on his assessment that Kamin was not being prejudiced by the discovery delay because he had chosen not to cooperate with the proceedings. Highlighting the bizarre nature of the proceedings, in which Kamin has been detained for more than five years and can remain detained even if he were found not guilty, the judge stated "this is not a situation where you have a guy in pretrial confinement or awaiting charges so he can get on with his life."

(Originally posted on Daily Kos.)

On Wednesday, I observed two hearings: the first was in the case of Omar Khadr, the young Canadian who was arrested at the age of 15 and has been detained now for more than six years. The second was the arraignment of Ahmed Ghailani, who has been charged in connection with the 1998 Tanzanian bombings, and was one of about 14 men now at Guantánamo who were subjected to the CIA’s secret interrogation and detention program.

Khadr’s hearing yesterday morning focused largely on issues that have been contested in every military commissions case so far: a dispute about the defense’s access to information in the government’s possession, including possible evidence of coercion, and a dispute over what constitutes an offense that can be prosecuted as a war crime in the military commissions. Because such fundamental issues are still unsettled, and because it appears Khadr’s mental state is of concern (as I discuss below), Khadr’s lawyers have asked that his trial, which is currently scheduled to start on November 10, be postponed.

The principal dispute over evidence — or "discovery" in lawyers’ parlance — focused on the defense’s request for access to seven U.S. "intelligence" interrogators who defense lawyers say are key to establishing the coercion Khadr initially suffered in U.S. custody in Afghanistan, while he was critically wounded. According to his lawyers, those initial harsh interrogations resulted in false information that interrogators transferred to Guantánamo. At Guantánamo, Khadr’s lawyers say, the false information served as the basis for interrogations by law enforcement personnel who used more "sterile" and "benign" techniques. The prosecution has indicated it intends to rely solely on the law enforcement interrogations. Khadr’s lawyers, however, argue that the reliability of the second set of interrogations is undermined by the coercion and abuse of the first set: to establish the extent to which Khadr felt coerced during the law enforcement interrogations, the lawyers say, they need to know what happened to Khadr in U.S. custody in Afghanistan.

Not surprisingly, the prosecution objected to the defense’s discovery request, and said that it was both too late (four months after what prosecutors said was a court-imposed deadline) and "a fishing expedition." Still, upon questioning from the judge, the government conceded that what happened during the intelligence interrogations could impact the subsequent law enforcement interrogations. Prosecutors insisted, however, that "there needs to be a showing" by the defense that coercive interrogation practices were used, and they argued that any such allegations were entirely "speculative." This line of argument would not likely succeed in a regular military or civilian criminal court, in which the standard for discovery generally places the burden on the government to give the defense information that may assist the defense. In any event, the government’s argument flies in the face of what the world knows: that coercive interrogation practices were systemically used at Bagram and Guantánamo, and Khadr himself was a victim of these practices. For just one example of an interrogator describing the practices see the recent CBC documentary which features one of these interrogators describing regretfully what he had done.

The judge did not appear impressed with the prosecution’s arguments, which relied also on the assertion that providing information about, or access to, the seven interrogators three weeks before the trial would be an undue burden on the government.

The second issue discussed during the hearing was the meaning of the term "in violation of the law of war"; under the Military Commissions Act of 2006, only offenses that violate the law of war can be tried in military commissions. The government’s position essentially is that once a person is found to be an "alien unlawful enemy combatant," any wrongful act by that person can be a violation of the law of war. The defense, on the other hand, argued that a person’s alleged status is not enough to establish that a crime has occurred. Instead, according to the defense, the government has to show that the person engaged in acts that violate the established laws of war, e.g., causing harm to civilians or civilian property, or using prohibited means and methods of warfare such as poison gas or human shields. The judge said he would announce his decision later, but asked both sides to provide him with proposed jury instructions on the issue.

The rest of the hearing focused on the defense’s request for a continuance, a request based on the fact that discovery is not yet complete (as I describe above), and also because there appears to be an issue about Khadr’s mental health.

Khadr’s lawyers told the judge that although the defense had requested an independent psychiatric examination of their client in May 2008, the defense’s expert was not permitted to meet Khadr until October 13. Based on the expert’s initial evaluation, it seems the defense submitted information to the judge (we were unable to tell what the information was) that prompted him to ask the defense if Khadr’s competency to stand trial was likely to be an issue. The defense was noncommittal, saying that competency was something that needed to be determined, and to do so, the defense expert needed to establish a rapport with Khadr and further examine him, a process that could take time. The defense’s argument for a continuance was supported by the fact that the delay is partly of the government’s making: the prosecution fought the defense’s request for an independent medical expert, delayed in providing her the necessary security clearance, and has also failed to provide the defense with Khadr’s psychiatric records. Although the judge did not rule today on the defense’s motion for a continuance, the hearing ended with the sense that the trial would not take place until January at the earliest.

In the afternoon, I attended the arraignment of Ahmed Ghailani, a Tanzanian, who is charged, among other things, with participation in the 1998 bombing of the U.S. Embassy in Tanzania. Ghailani’s arraignment was not particularly enlightening. The judge essentially followed a script, advising Ghailani about military commission procedures, informing Ghailani that he has a right to obtain civilian counsel in addition to his assigned military counsel, and repeatedly asking Ghailani if he understood what was going on. The government has stated that it would be ready to go to trial in Ghailani’s case in February, 2009.

Ghailani was indicted 10 years ago in the Southern District of New York for the same crimes that are now the basis for the military commission charges, and several of his co-defendants in the federal proceedings have already been convicted and sentenced after trial in that court. He was captured in July 2004, but instead of prosecuting Ghailani in the established, tested and credible criminal justice system, the government decided to hold him in secret custody abroad, possibly subjected him to the CIA’s euphemistically-named "enhanced interrogation techniques," and then decided to try him in a military proceeding. No doubt each of these decisions will be an issue as the government’s case against Ghailani proceeds.

(Originally posted on Daily Kos.)

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.