by Daphne Eviatar Human Rights 1st, Wed Apr 07, 2010 at 07:28:16 PM EDT
The thing that first strikes you about Guantanamo Bay's "Camp Justice" is what an extraordinary effort was made to create something that never needed to exist. Though federal courts have been interrogating, trying and imprisoning terrorists for more than 200 years, for some reason the U.S. government believed after September 11, 2001 that it needed to create a whole new way of doing that. So it set up this sprawling military camp, complete with housing for lawyers, journalists, observers, two new courthouses, hyped-up security with endless coils of concertina wire -- all to house a few hundred guys who could have been much more efficiently and just as safely held in high-security prisons in the U.S.
If efficient justice was even part of the goal, the case of Noor Muhammed, who appeared for a hearing in the military commission today, is a great example of just how spectacularly the government has failed.
Noor Muhammed was arrested in March 2002 in Pakistan. He's been charged with helping to train Al Qaeda militants at a training camp in Afghanistan from 1996 to 2000. The only act he's charged with that occurred after September 11, 2001 is allegedly trying to evade local authorities by escaping from a safehouse in Pakistan in March 2002.
Noor denies that he was a member of al Qaeda, or an "unprivileged alien enemy belligerent" as the U.S. claims. But though he's been imprisoned at Guantanamo Bay for eight years, themilitary commission still hasn't even held a hearing to decide the answer to that question. If Noor is right, the military commissions don't even have jurisdiction over his case.
Today, Capt. Moira Modzelewski, the military commission judge presiding at the hearing, announced that the hearing on that issue won't be held until August.
Still, the government has flown several dozen prosecution and defense lawyers, observers and journalists down to a hearing at Guantanamo Bay that lasted less than two hours. The issue decided? A complicated military bureaucratic question of whether Noor's previous military defense counsel could continue to represent him now that she'd been ordered by the military to another assignment.
Noor's lead civilian defense lawyer, Howard Cabot, a volunteer New York-based attorney from the private law firm Perkins Coie, made an eloquent argument in favor of retaining the former military counsel, and ultimately convinced the judge of the importance of their ongoing attorney-client relationship. The judge concluded, however, that she can't tell the Army what to do, so could only "strongly recommend" that the lawyer be allowed to continue her representation.
Select civilian and military observers and journalists got to watch all this somewhat baffling bureaucratic wrangling through panes of bullet-proof glass in a huge courtroom built to accommodate the trials of the five September 11 suspects - trials which still have not taken place. We were only permitted to hear the proceedings several minutes after they occurred, though, since they're broadcast on a time-delayed monitor. By the time we heard the court clerk say "All rise," for example, we'd already seen the lawyers in the courtroom rise, the judge enter the room and everyone sit down minutes earlier.
Strangely, this hearing is a small sign of progress, since the military commission proceedings have been largely stalled since President Obama took office and mulled over what to do about them. Human Rights First and many others hoped the administration would terminate the military commission proceeding and try all of the Guantanamo detainees in ordinary federal courts that are experienced at trying terrorist suspects. But that's not what the administration has decided to do. Instead, it is proceeding with at least a handful of cases in these ill-fated military commissions - Noor Muhammed's among them.
That the commissions are ill-fated is demonstrated in part by the fact that in 8 years, they've held only three trials. Only two of those were contested. And both of those defendants, although convicted, have since been released. By contrast, civilian federal courts have tried more than 400 suspected terrorists since September 11, 2001. HRF has documented 195 convictions of terrorists associated with self-described jihadist or Islamist extremist groups since that time.
But the military commission trials are not even scheduled yet. Today, the judge said that Noor's trial - much of which will repeat the presentation of evidence already presented at the hearing to decide the court's jurisdiction over him - won't be held until sometime next year.
Meanwhile, the 40-something year old Sudanese national, wearing a white shirt and graying beard as he sat quietly in the courtroom observing the proceedings today, has been imprisoned on this military camp without a trial for more than 8 years.
Lately, it's become almost fashionable to claim that Gitmo isn't so bad, and is probably better than the supermax prisons where convicted terrorists would go if tried in the United States. Miss Universe, Dayana Mendoza, last year cooed about Gitmo's beautiful beaches. And a press officer on this trip told me that some of the detainees now even get to take painting classes to keep them occupied.
The military has also reportedly made signficant improvements from the original open-air cages where prisoners were completely exposed to the elements, which in Guantanamo Bay can get pretty brutal.
In fact, for the observers privileged enough to travel here to see the military commission hearings (the general public, including relatives of the suspects imprisoned here, are not allowed to attend), it's not really so bad at all. I ate at a Taco Bell yesterday, drank beer at an Irish bar last night, am staying in an air-conditioned tent that's only a few hundred feet from relatively clean, if strangely public, women's latrines. And if you walk past the military barracks down the road to the beach, the view is positively breathtaking. There's even a diving shop where we can rent snorkeling equipment and explore the underside of the 80-degree Caribbean waters.
All that relative comfort can lull an observer into forgetting that on the other side of the military base, the side we don't get to see, men who were seized overseas, many based on statements made by wholly unreliable accusers, have been imprisoned by the United States government without trial - many even without charge - for more than 8 years.
These days, any news about Gitmo is focused mostly on the future trial of Khalid Sheikh Mohammed and his alleged 9/11 terrorist co-conspirators. Although Attorney General Eric Holder announced that trial will take place in federal court in New York, the administration has since wavered and suggested it may bow to political pressure and the irrational fears that have been whipped up to intensify that pressure, and change its mind.
Where the 9/11 trial takes place is extremely important. But it's worth remembering that there are also more than 150 other prisoners that remain here. Most have been accused of vague, unproven acts of assisting terrorism at some point years ago somewhere overseas. Almost none of them has yet received a trial and few have been charged with any crime.