August 24, 2004

Today I witnessed history in the making.

I was one of 49 people inside the military commission courtroom allowed to observe the first military commission in the 60 years since World War II. America's system of justice was on the world stage.

We got to the ferryboat at about 7:30 a.m., but the commission didn't begin until about 10, after a snafu with the closed-circuit television. As the participants in the commission held their breath, Salim Ahmed Hamdan walked in with his lawyer, Lt. Cmdr. Charles Swift, a Navy officer. Mr. Hamdan's face lit up when he saw Mr. Swift. You could see the relief in his face. He was looking around, smiling at everyone. It may have been that he was happy to see so many people after having been kept in solitary confinement, or it could also be that he didn't fully possess a complete understanding of why we were there.

He appears to have lost quite a bit of weight, more than 50 pounds, from the photograph that his defense counsel provided us. But we know nothing about his condition, as obviously he was kept under strict lock-down and away from us.

What happened over the next eight hours had the look of a judicial proceeding, but, as you know, the devil was in the details, and the details left this civil libertarian very unsatisfied.

The problems that the ACLU had identified from the beginning were borne out in concrete detail. First, the issues with the lack of an independent review outside the chain of command became particularly clear. Several commissioners had very active roles in the government's war on terror: two with regards to operations in Guantanamo and one with substantial experience in the battlefields in Afghanistan. The lack of distance and the possible appearance of "victor's justice" was a problem that Mr. Swift underscored in his questioning of the commission, known as "voir dire."

Number two: the rules of evidence are still confused. What we do know is that they are inferior to what's used in military courts martial. One commissioner commented in the voir dire that rules of evidence certainly apply, but the defense counsel reluctantly had to basically say, "No sir, not really." Also Mr. Hamdan was denied an opportunity to review or rebut even a summary of secret evidence being used in his case. The defense lawyer and the ACLU agree that Mr. Hamdan should not receive classified documents, but he must be allowed the opportunity to review and contest a summary of the secret evidence. That's what we do in other contexts.

The third problem concerned the inability of defense lawyers to adequately represent their clients' interests, notwithstanding their heroic efforts. The deck is still very much stacked against the defense - the prosecution has many more resources. At one point, the translation for Mr. Hamdan was so poor that the accused couldn't even understand the charges being read against him. They had to momentarily excuse the translator who was botching it up. The only full statement that Mr. Hamdan said in his native tongue was "please sir, give my attorney an assistant." Mr. Swift is the only lawyer assigned to Mr. Hamdan right now.

Another problem that became painfully clear was that only the presiding officer is a lawyer, whereas the other four commissioners are not. The defense counsel did its best to explain concepts like jurisdiction and post hoc, but this isn't going to be easy and it's certainly going to put the presiding officer in a greater position of power vis-à-vis the other commissioners. Interestingly enough, all of their votes are supposed to count equally. How can that possibly happen when only one is a lawyer and that lawyer is the presiding officer? We will see.

There are also some tangled relationships between the presiding officer and the appointing authority, which will probably get hammered out in coming days through the other commissions. But the big news on that front that dropped today was whether Col. Peter Brownback III should remain as presiding officer.

Notably, the presiding officer does not have an active bar license (though that is apparently not required in military proceedings). But, more importantly, Mr. Brownback held a meeting with the prosecution earlier this summer at which the defense counsel was not present and it appears that he made some statements about whether or not defendants had a right to a speedy trial.

Right before our adjournment at 7 p.m., the defense counsel asked the presiding officer to allow him to enter a transcript of this meeting that was taped unbeknownst to the presiding officer. The presiding officer reopened the questioning and did allow the transcript to be entered, to Mr. Brownback's credit. Whether or not he is removed for cause will be decided in the future. It reminded me of Supreme Court Justice Antonin Scalia having to recuse himself because he expressed an opinion before he saw the facts on the Pledge of Allegiance case. We'll see if that's the case here.

Some of the Aussie media who bought me a Red Stripe beer at the Combined Bachelors' Quarters were asking me if this was the best that America could do. However you answer that question, it certainly doesn't look good.

Finally, I want to say a word to the ACLU family about the good men and women in uniform. Sometimes we civil libertarians see members of the military with suspicion. But let me tell you, some of the best civil libertarians I've met recently are soldiers who believe in due process and are doing their best to conduct a fair trial despite the fatal flaws in this system. They make America look good, because even though they've been dealt a terrible hand, they're defending their clients with all the zeal of a Johnny Cochran.

The prosecution was also quite thoughtful and even-tempered and even-handed. They're making the best of a terrible situation, but our government shouldn't have put them in this situation in the first place. We have a good system of military justice that we should be proud of and we should have used it.

There's also this one Navy guy who's been assigned to escort us around. After all the snafus (take a look at yesterday's Washington Post) he has taken excellent care of us. He believes in the commission's fairness and will vote for George Bush, but he also believes that the NGOs are here to do a job and form an independent opinion.

The fact that there are men and women like him in uniform who support this president, who support these commissions, but who also understand the important role of the ACLU, should give all civil libertarians hope. Remember, Ben Franklin was asked after leaving the Constitutional Convention: "What have you wrought?" "A Republic," he answered, "if you can keep it." With patriots like the defense counsel and with open-minded folks like this Navy guy, we may have a fighting chance.

I'll see you tomorrow.

Anthony

P.S. Some of you asked about our access to Camp Delta. That has been denied, but we are appealing it to the Department of Defense. Apparently tomorrow we should be able to tour the holding cell in the military commission building as well as the offices of the defense counsel. The prosecutor and the presiding officer have so far declined to meet with us. In fact, the presiding officer told us that he'd be happy to meet with us when this whole process was done. And, when I commented that we're only beginning four commissions of the 581 men who are held here at Guantanamo and that it might take a very long time to complete this process, he simply said he was not interested in meeting us at this time. If one thing is for sure, it's that no matter when they wrap up this failed system of justice, the ACLU is going to be around to ask him for that meeting.