January 9, 2006 – Background

Military Commission Trial Observation
Human Rights First, at the invitation of the Department of Defense, is observing the military commission proceedings at the U.S. Navy Base at Guantanamo Bay, Cuba.

Priti Patel is a lawyer with Human Rights First’s U.S. Law and Security Program.

Avi Cover is a Senior Associate of Human Rights First U.S. Law and Security Program.


January 9, 2006

Military commissions at the U.S. Naval Base at Guantanamo Bay, Cuba (GTMO) are set to begin this coming Wednesday, the first time the old naval command center here – now transformed into a court house – will be used for suspected terrorists since late 2004. Pre-trial hearings are scheduled to begin for two detainees, 19-year-old Canadian citizen Omar Khadr and 37-year-old Yemeni citizen Ali Hamza Ahmed Sulayman al Bahlul.

I arrived in GTMO on Sunday to monitor the proceedings for Human Rights First and will be providing reports on the goings on down here. Before things get underway in earnest, here’s a refresher on what all of this is about and why we should care.

Recent Events

The hearings are the first since World War II, and resume at a time when a series of significant other events concerning GTMO are taking place:

Wednesday will mark four years since the first detainees arrived here. It’s quite remarkable how GTMO has seeped into the common vernacular of the world as a symbol of injustice and become a rallying tool for jihadists and other anti-American propagandists. The fairness and wisdom of holding people indefinitely at GTMO and denying them the legal protections of the laws of war – the Geneva Conventions – was immediately questioned by a diverse group that included human rights organizations, the British government and then-Secretary of State Colin Powell .

The hunger strike – there have been on and off strikes by the detainees here almost since the opening of Camp X-Ray (since closed) continues with reports ranging from 40 to 81 detainees still starving themselves and the health of many in serious doubt.

Briefs by numerous groups were filed this past Friday, including by my organization Human Rights First, in the case of Hamdan v. Rumsfeld, addressing the very legality of these commissions under which Mr. Bahlul and Mr. Khadr will be tried. The case is before the Supreme Court with oral arguments scheduled for March. Past efforts by the Defense Department to restart the commissions were stayed by a federal court in light of the pending Supreme Court review. Jonathan Mahler has a great piece on Hamdan in this Sunday’s New York Times Magazine.

Last week the Justice Department announced it would seek to dismiss all lawsuits brought by GTMO detainees seeking to challege the legality of their detention in light of the just passed “Detainee Treatment Act of 2005.” The controversial piece of legislation, introduced by Senators Lindsey Graham (R-SC), John Kyl (R-AZ) and Carl Levin (D-MI) amends the habeas statute by precluding any detainees at GTMO from bringing challenges to their detention in federal court. This would, in effect, overrule the Supreme Court’s decision in June 2004, Rasul v. Bush, which held that all detainees must have access to the federal courts to bring their habeas claims. The new act would limit the detainees to bringing actions only in the D.C. Circuit Court that concern the process afforded them in what are called Combatant Status Review Tribunals (hearings set up to determine whether detainees are “enemy combatants,” in which detainees are not afforded lawyers and have often been unable to learn of any of the evidence against them). Detainees who have been convicted by military commissions would also have access to D.C. Circuit review. One of the issues of contention, and it may well be addressed by the Supreme Court in Hamdan, is whether the Act applies to the current cases already filed in the courts or only to those filed after the Act took effect. Not even the Act’s co-sponsors – Graham and Levin – agree on this point. The D.C. Circuit Court has asked the parties before it to address the ramifications of the Act as well.

Last, the hearings also start as reports grow that many of the detainees held here may be relocated to a detention facility in Afghanistan.
Commission Causes for Concern

Military commissions are not necessarily in and of themselves a problem. Military commissions of different varieties have been used during many armed conflicts, including the Revolutionary War, the Civil War and World War II . The Uniform Code of Military Justice also contemplates the use of such proceedings.

But these novel military commissions at GTMO do not follow the established process for military commissions dictated by the Uniform Code of Military Justice, as well as by the U.S. Constitution and the Geneva Conventions. They are riddled with flaws, many of which will likely be resolved by the Supreme Court.
These military commissions offend the U.S. Constitution because they violate its separation of powers and checks and balances. Unlike the U.S. military commissions used to try eight Nazi Saboteurs in World War II, this time there has been no declaration of war or specific authorization of the commissions by Congress. In these commissions, in contrast, the President appears to have usurped the roles of the Congress and judiciary; the President sets the rules, can change the rules at his discretion, picks the prosecutors, defense attorneys, and judges; and, according to commission rules, controls all avenues of appeal.

The President’s authority to launch these the military commissions at all is questionable, and,raises questions similar to those raised by the recently disclosed President’s domestic surveillance order; the President’s detention of American citizens as enemy combatants; and the Administration’s endorsement of cruel and inhuman interrogation techniques. Professor Noah Feldman touches on these very same issues in an excellent article in this week’s New York Times Magazine. The D.C. Circuit, in upholding the commissions, did not address whether the President has inherent authority to authorize the commissions, but rather held that Congress’ Authorization for Use of Military Force gave the President the power. Like in the Padilla case and now with the NSA eavesdropping, it will likely be left to either the Supreme Court to explain the breadth of the AUMF and for Congress to perhaps further legislate to clarify what it meant and means.

The GTMO military commissions also violate the Third Geneva Convention, a treaty signed and ratified by the United States which requires that prisoners captured by the U.S. during armed conflict be sentenced by the same courts and same procedures provided to U.S. soldiers. This would mean a court martial. Interestingly, uniformed military lawyers have argued for courts martial for some time, both from a legal and practical view – the latter argument being that the courts-martial rules are well-known and have proven adept at handling sensitive security matters. These military commissions, on the other hand, introduce so many new rules that everyone – the prosecutors, the defense lawyers, and the presiding officers are all learning on the run. Not to mention the legal challenges that stalled these commissions for over a year.

The commissions also differ markedly from U.S. civilian or military courts: Proceedings may be conducted partly or entirely in secret, without the defendant himself being informed of the evidence against him; detainees have no right to a speedy trial (unlike defendants in typical U.S. courts); and evidence is admissible as long as it has any “probative value,” which leaves open a serious question as to whether the government will seek to introduce evidence obtained through torture or other unlawfully coercive means. Coupled with the documented treatment and abuse of detainees, and reported efforts by some prosecutors to hide such abuses, the likelihood that the government will seek to introduce such evidence seems high.
It would probably make a lot of sense to let the Supreme Court decide these issues once and for all before many of these significant structural flaws are permitted to irreparably harm Mr. Khadr and al-Bahlul. If evidence obtained through torture is used against these men, it may be impossible to remedy whatever impression is made upon the presiding officers who decide the detainees’ fate. At the very least it seems unwise to set forth on this experiment which holds individuals’ liberty in the balance when the Court is set to decide these issues so soon.

As pre-trial hearings resume Wednesday amidst all of this uncertainty, I’ll do my best to pass along what I learn from commission proceedings (the limit of my narrow invitation to GTMO). At the same time, I’ll try to explore many of the concerns mentioned above – the health of detainees; their possible transfer; and potential changes in military commission rules.


Published on January 9, 2006


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