Cooking as a Crime, and Other Guantánamo Observations

(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.