08/27/2009 05:12 am ET Updated May 25, 2011

Gitmo Trials: Being All They Can Be

Earlier this month I sat in the observer box in an air-conditioned court room in Guantánamo Bay, wondering what it would be like if commission proceedings designed to try suspected terrorists lived up to the old U.S. Army recruiting slogan, "Be all you can be."

Could President Obama and the U.S. Congress transform a deeply flawed legal process -- struck down, at one time by the Supreme Court -- into one that acted like a real court?

I watched as several military defense attorneys passionately argued on behalf of their clients, men who were accused of terrorism and had been held without trial for years.

These military defense attorneys -- the feel-good story of Guantánamo -- were living up to the promise of those old Army recruiting ads. They argued persuasively for the rights of their clients, raising their voices, slamming the lectern, and pushing the system to follow through on its pledge to provide dispassionate justice.

Much of the time in the court room last week was spent on motions to delay the proceedings for 120 days so the Obama administration and Congress could work on proposals to improve the tribunals.

"Delay, delay, delay," Navy Lieutenant Richard Federico, a defense attorney, told the court. "That's all there is here. The government is just treading water."

Creating a new system is enormously complicated. The U.S. federal court system is built on more than 200 years of legal precedents and literally millions of cases. The military commissions designed to try terrorists, by contrast, have existed for less than ten years and charges have only been brought in a handful of cases.

Federico and other defense attorneys pointed out that in normal systems of justice the accused have an expectation -- indeed the right to expect -- that their cases will be heard in a reasonable time period. Yet many detainees, some facing charges, other not, have languished at Guantanamo for years without trials..

This will be the third time that politicians have tried to come up with a system of rules that strikes an "appropriate" balance between the interests of the government in assuring accountability for terrorism crimes while protecting the right of the accused to a fair trial. President Bush first established the commissions by executive order in 2001. The Supreme Court ruled in 2006 that those tribunals did not meet minimal requirements for fair trials.

Scrambling to fill the void, Congress passed the Military Commissions Act in 2006 -- putting in place a few basic tenets of fair trials, like the right of the accused to appeal to an independent judicial body, but leaving much of the broken system in place.

As a candidate, President Obama opposed the use of military commissions, but he now says military tribunals may be "appropriate" to try suspected terrorists so long as more of the unfair rules are changed.

But the tribunals at Guantanamo can not be fixed.They only provide an illusion of justice. As initially constituted, the military commissions afforded a handful of rights, but the dice were loaded in favor of the prosecution. It now appears that under President Obama this equation will change somewhat, but not enough to turn the system into one that both delivers, and is seen to deliver, justice.

Yet the show goes on. And it can be a good one, largely due to the efforts of military lawyers and judges to wring some fairness out of the system.

Some of what I saw earlier this month looked a lot like a regular criminal court proceeding. The defendants -- dressed in flowing white robes -- attended many of the hearings, conferred with their attorneys, and in some cases represented themselves.

Military judges took pains to ensure defendants had an opportunity to speak, and they often did not proceed until the accused understood the sometimes complex legal maneuverings that were unfolding.

But some of what I saw was uncomfortable. The defense is severely disadvantaged under military commission rules. Defense attorneys are routinely denied access to basic resources and often are denied even the opportunity to meet with the men they are trying to defend.

The fixes President Obama suggests do not address larger fundamental inequities. For example, the government says that it can continue to detain the accused indefinitely even if he is found "not guilty."

Glenn Greenwald, an attorney and journalist who writes for Salon, is right when he says, "what makes military commission so pernicious is that they signal that anytime the government wants to imprison people but can't obtain convictions under our normal system of justice, we'll just create a brand new system that diminishes due process just enough to ensure that the government wins. "

This is what led Senator Leahy to criticize the use of military commission proceedings when they were first introduced in November, 2001. "It sends a terrible message to the world that, when confronted with a serious challenge, we lack confidence in the very institutions we are fighting for, beginning with a justice system that is the envy of the world," he said.

Unfortunately what I saw earlier this month was Guantanamo being just about all it could be, despite the President and Congress's tinkering. Real courts provide old-fashioned, American justice, and therefore, more than the tribunals ever can.

David Danzig is the Deputy Program Director at Human Rights First.

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