Prosecutors, defense counsel, a military judge, several journalists and a handful of non-governmental organization observers like myself convened at Guantanamo Bay this week for what was to be the first hearing for a Guantanamo defendant under the Obama administration's "new and improved" military commissions.
The hearing came about a month after Congress passed legislation to improve the widely discredited military commissions, and just a few days after US Attorney General Eric Holder announced that five detainees, including the self-proclaimed mastermind of 9/11, Khalid Sheikh Mohammed, would be sent to US federal court for trial.
But if the administration was hoping this hearing might make the case that the new and improved military commissions are a legitimate forum to try detainees, they could not have been pleased with today's proceedings.
The detainee whose hearing took place today in the hilltop courthouse overlooking Guantanamo Bay was Mohammad Kamin, an Afghan who has been held at Guantanamo Bay since 2004. Although he was one of 10 detainees facing charges before the military commissions when President Obama was sworn into office, his name was not among those mentioned by Attorney General Holder last week.
It seems the Justice Department, in making its announcement, failed to decide the fate of the Kamin case. And the result was the usual chaos and confusion that has plagued the military commissions since their inception.
Given no guidance, the lawyers and commission officials had little choice but to continue with Kamin's hearing, debating the merits of the case in a legal Neverland.
Kamin himself didn't show up for the hearing. As he had done throughout the proceedings against him, he boycotted. The one time he appeared, for his arraignment in May 2008, he was forcefully extracted from his cell. When he was informed this morning of today's hearing, he reportedly placed earplugs in his ears, pulled a blanket over his head, and waved away the officials.
And then there are the charges.
Kamin is charged with "material support for terrorism." Yet Jeh Johnson, General Counsel for the Department of Defense, stated during a Senate hearing in July that "material support for terrorism" is not an offense under the laws of war, and therefore should not be prosecuted by military commission. The Military Commissions Act of 2009, which was signed into law as part of the National Defense Authorization Act on October 28, retained the offense despite Johnson's conclusion.
Kamin's appointed defense counsel, Lt. Cmdr. Richard Federico, also challenged the current jurisdiction of the military commissions to try Kamin. "If there is a conviction, it would likely be overturned on appeal," he said. Under the previous 2006 military commissions statute, Kamin was deemed an "unlawful enemy combatant." But the new language only authorizes the prosecution of "alien unprivileged belligerents." Since the government has not alleged that Kamin fits the new category, it is not clear the government has the authority to bring the case to trial.
Participants in the hearing operated without the benefit of a new rules manual, no doubt adding to the fog which envelopes the commissions' procedural guidelines. Reportedly, the Department of Defense has begun work on such a manual, but the date for publication is still unknown. In spite of the murky legal terrain, defense counsel attacked the slow pace at which the government has released internal memos, contact information for witnesses, and unaccounted for interrogation logs. "We are advocates," said Lt. Cmdr. Federico. "We just want the opportunity to engage with these issues."
Air Force Judge Thomas Cumbie, who voiced his frustration with the ongoing delays in the release of documents, described the mantra of the government as "It's in the mail, and it will be there soon." Adding: "And then it doesn't happen."
To date, government prosecutors in the military commissions have successfully litigated only three cases. All three defendants - David Hicks, Salim Hamdan, and Ali Hamza al Bahlul - were convicted of material support for terrorism. In the first two cases it was the only offense for which they were convicted, and both Hamdan's and al Bahlul's convictions are on appeal to the ad hoc Court of Military Commissions Review. It is easy to understand why the government would be hesitant to throw out the charge.
The recent changes to the military commissions are improvements over the previous incarnation, which itself was enacted after the Supreme Court ruled that President Bush's military commissions violated US law. They limit coerced or hearsay evidence and provide greater equity in resources to the defense counsel. However, as illustrated by today's hearing, the 2009 Military Commissions Act still falls short of the due process guarantees of the federal courts or courts martial. The legal standards, procedural rules, and participants remain makeshift and unstable. Prosecutors, defense counsel, and even the judges themselves stumble to make sense of a system without precedent.
The commissions were created by the Bush administration to circumvent legal protections. Under Obama, the underlying purpose remains the same. The new commissions offer little hope for swift and decisive justice in the Kamin case or any other.