The administration relied on legal experts to help craft rules and procedures, including former FBI director William S. Sessions and former White House counsel Lloyd Cutler, who served Presidents Jimmy Carter and Bill Clinton. Still, the evolution of the commission process has been marked by fits and starts. With the first hearings days away, rules, procedures and the roles of the key players are still being refined, military law experts say.
"Everyone is struggling to figure out what the rules are," said Kevin Barry, a retired Coast Guard captain who now heads the National Institute of Military Justice. "These rules have been kind of made up as they go along."
Special military trials for four prisoners charged with al Qaeda activity will start in this building at the Guantanamo Bay naval base in Cuba.
(Pool Photos Mark Wilson)
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Military defense lawyers assigned to the case called the commission process "confusing" and "ad hoc."
Navy Lt. Cmdr. Charles Swift, a career officer, was serving as the chief of the Navy's legal service office near Jacksonville, Fla., in spring 2003 when he received a call requesting that he represent a suspected terrorist held at Guantanamo Bay. Swift accepted and moved to Washington. The first sign of confusion came the day he arrived for work. He said he was told to go home because "some wires got crossed" and the selection of defense attorneys was "premature." Swift said his supervisor asked him to remain in Washington while he tried to clear up the confusion.
Swift said he stayed, but instead of working as a defense lawyer, he was assigned to be a "staff attorney" for the military. Swift, Sundel and the other defense attorneys objected, saying they should not be put in the position of working for an office that would be coordinating the cases against their eventual clients. "It was an ethical conflict," Swift said.
The Pentagon eventually assigned Swift a client: Salim Ahmed Hamdan, a taxicab driver from Yemen who worked as a chauffeur for Osama bin Laden. Prosecutors allege that Hamdan ferried weapons for bin Laden's terror network and helped the al Qaeda leader escape after several terror operations, including the Sept. 11, 2001, attacks. Swift said his client was a low-level driver who cooperated fully with interrogators and had nothing to do with the planning or execution of any terrorist acts.
Swift said he and his colleagues were troubled by the commission rules that were being drafted and the indefinite detentions of their clients at Guantanamo Bay. Swift, Sundel and three other active-duty military lawyers filed a friend-of-the-court brief with the U.S. Supreme Court last January, challenging their commander in chief's orders that suspected al Qaeda terrorists and Taliban fighters could be held without review from the federal court system. This summer the Supreme Court ruled that detainees at Guantanamo could have access to federal courts, and legal analysts say that ruling extends to those who have been designated to stand trial before the commissions.
So far, Bush has designated 15 detainees as eligible for trial before the commissions. The four who have been formally charged will have their initial hearings this week. In addition to Hamdan, they are: Ali Hamza Ahmed Sulayman al Bahlul of Yemen; Hicks of Australia; and Ibrahim Ahmed Mahmoud al Qosi of Sudan. Hamdan, al Bahlul and al Qosi are charged with conspiracy to commit war crimes. Hicks faces additional charges of attempted murder by an unprivileged belligerent and aiding the enemy.
In some cases, detainees at Guantanamo Bay have been held for more than two years. Swift hired a psychiatrist to evaluate Hamdan's mental condition because he was being held in isolation at Camp Echo, a collection of secluded cinderblock huts off limits to most visitors on the Navy base. "The conditions of his confinement make Mr. Hamdan particularly susceptible to mental coercion and false confession," the psychiatrist wrote in a court filing.
Human rights groups argue that those conditions, in addition to interrogation techniques used to extract information from detainees, could result in coerced confessions and false statements that could be introduced during the military commissions. They also say some suspects may not be competent to understand the charges against them.
"Military commissions do not require that someone be competent to stand trial," said Avi Cover, a senior associate for Human Rights First, a New York-based advocacy group. A representative from Cover's group will be among the advocates attending this week's proceedings and, along with the journalists, had to agree to strict military ground rules, which include prohibitions on disclosing classified material and information that "may endanger the physical safety of participants in commission proceedings."
In June, the military lawyers complained to two U.S. Senate committees about possible coercion. "It is likely that evidence obtained from prisoners abused while in U.S. custody will be introduced as evidence in these military commissions at Guantanamo Bay, and that neither defense counsel nor the members of the commissions would ever be told about the circumstances under which such evidence was obtained," the lawyers wrote the Senate Armed Services and Judiciary committees.
Altenburg, who is supervising the commissions, said he expects that issues of coerced testimony will surface during the trials and will be addressed by the presiding officer, retired Army Col. Peter E. Brownback III, who will decide whether such statements should be admitted as evidence.
"I think that that will be an important issue in at least some of the trials," Altenburg said. "I say that because to the extent that evidence presented by the prosecution is statements made by accused persons, you know, the issue of the nature of the interrogation will be critical."
Critics of the military commissions say the combination of perceived shortcomings in the process will be seen around the world as another sign that the U.S. government believes it can operate under different legal standards. They warn that the indefinite detentions at Guantanamo Bay, coupled with the decision not to apply the Geneva Conventions to certain detainees and the abuses at the Abu Ghraib prison in Iraq, could have consequences for the men and women in the U.S. armed forces.
"This process is compromising our credibility," said David P. Sheldon, a former Navy appellate defense attorney who specializes in military law in Washington. "The individuals who will suffer and pay the price are not just the people being accused of these crimes. It's the citizens and the soldiers who will undoubtedly feel the wrath of people who will likely impose a similar type of grave judgment without regard to due process. If we don't play by the rules of the international community and respect human rights, then why should the rights of our soldiers be respected?"
Altenburg, the supervisor of the military commissions, has heard those arguments before, but he said the defense lawyers and other critics are judging a legal process that has not yet begun. He said the public will see that fair people have been put into positions of authority in the military commissions, and fair outcomes will be the result.
"I don't agree that we are setting a low bar," the retired general said. "I think that much of the criticism is the result of not being there yet. Once people see the professionalism of all the parties involved, I think the criticism will subside. We really do have a fair system."