(Originally posted on Huffington Post.)

I've been observing the military commissions since 2004, and Guantánamo never felt more surreal or otherworldly than it did in what we hope were its final days of operation. On Martin Luther King Jr. Day, while then President-elect Obama prepared for his inauguration the next day, the Guantánamo military commissions charged forward with the pretrial hearing of Omar Khadr, the mental competency hearing of Ramzi Bin l-Shibh, and other proceedings in the case of the "9/11 defendants," the men charged with co-conspiring in the September 11 terrorist attacks.

Prior to the hearings on that Monday, the prosecution and defense teams in two cases filed a joint request to postpone the proceedings in anticipation of the changing of the guard in Washington. The military judges denied this request. Instead, "the show must go on" was the message in the days and hours before President Obama took the oath of office and had an opportunity to issue his executive orders. Neither prosecutors, defense lawyers, nor judges acknowledged during the Monday proceedings that there was an imminent change in the way the incoming administration would deal with the military commissions. Federal courts were closed on Monday in observance of Martin Luther King Jr. Day, but it was business as usual at Guantánamo. Ironically, even the Gitmo Gym was closed on Monday, but not the departing Bush administration's kangaroo courts! Three days later, President Obama issued executive orders to close Guantánamo within one year, suspend the military commissions, prohibit CIA prisons, and enforce the ban on torture.

The trial of Omar Khadr, captured in Afghanistan at age 15, was scheduled to start a mere six days after President Obama's inauguration. The ACLU joined a human rights coalition in early January and urgently called President-elect Obama to at least suspend the trial and take a fresh look at the case. Had Khadr's trial proceeded, the United States would have become the first western nation in recent years to hold a war crimes trial for crimes allegedly committed by a child. Our letter warned that proceeding with Omar Khadr's trial would require President Obama to flout international legal standards and practices that recognize that children used as soldiers should be treated as victims in need of rehabilitation and not prosecuted as war criminals by a military commission.

Khadr, who has spent a third of his life at the detention facility, looked much older than his 22 years. Appearing relaxed, he was focused on the pretrial suppression proceedings and closely followed the various statements made. The government shamefully disregarded Khadr's age at the time of his capture, and instead attempted to establish the youth's guilt by questioning him on associations his deceased father might have had with al-Qaeda when he was as young as 10 years old.

Khadr's pretrial hearing revealed another garish truth about the kind of thin evidence the government often uses in its fight against terrorism. An FBI agent testified on behalf of the prosecution, disclosing the government's deplorable reliance on testimony made by this traumatized teenager. Omar Khadr had made statements while still suffering from injuries he sustained from a firefight in Afghanistan that appeared to implicate Maher Arar, a Canadian citizen who was arrested in September 2002 while switching planes in New York's JFK Airport while returning home from a family vacation and then rendered to Syria for torture.

Khadr had been interviewed in Bagram on five separate occasions and was shown a photograph of Maher Arar. Khadr was unable to identify Arar by name. He offered interrogators little more than stating that Arar "looked familiar" from encounters they may have had at a safe house in Afghanistan. Apparently, these statements were the government's main basis to justify its rendition of Arar merely 36 hours after the traumatized 15-years-old told the interrogators what they hoping to hear. A 2006 Canadian Commission of Inquiry has since determined that Arar was in North America during the time in question, and cleared him of any wrongdoing or links to terrorism, and awarded him over $10 million in compensation for the abuse he wrongfully suffered. Arar is still seeking accountability in U.S. courts.

As Monday's proceedings came to an end, military judge Col. Patrick Parish called for reconvening at 9 a.m. the following day, choosing to again ignore that a new president would soon take office. The pretrial hearing reconvened on Tuesday morning — the day of President Obama's inauguration. No attempts were made to delay the proceedings. At 11 a.m., the judge called for a break to allow hearing participants and observers to "watch the inauguration activities in Washington," his first acknowledgement of anything that might radically alter the course of the proceedings in his courtroom.

Human rights observers found themselves gathering with family members of 9/11 victims and military personnel in the "galley," Gitmo's cafeteria, a room decorated with MLK posters but lacking any recognition of the inauguration. The administering of the oath of office drew a muted response, with every party in the room wondering what would come next. Obama was expected to issue several executive orders, including one with directions to close down Guantánamo. Waiting for these orders was comparable to a death watch for a patient whose demise was certain; we were just waiting for the reading of the will.

Around 10:30 p.m. that evening, after many in "Camp Justice" were already in bed, one of the lawyers in Omar Khadr's military defense team rode by on a bicycle to deliver the news. Just hours after his inauguration, President Obama had ordered his secretary of defense to instruct the prosecution to seek a 120-day stay in the military proceedings. The words of the new commander-in-chief reached the Naval Base, forcing it to react to the winds of change that blew from the streets of the capital. Human rights observers ran the order over to the press, having to wake some reporters, who then rushed to file their stories while the flat-screen television displayed images of the new president and First Lady dancing at the inaugural balls.

At 9 a.m. Wednesday morning, we all returned to the courtroom to learn from the chief military defense counsel that Omar Khadr's motion to stay the hearings had been granted unopposed. However, in a separate courtroom, where a hearing for the 9/11 defendants was taking place, Judge Army Col. Steve Hanley wanted to hear the defendants' statements, including the statement of Khalid Sheikh Mohammed, the alleged mastermind of the September 11 attacks. The defendants had declined military legal representation and three of them were allowed to appear on their own (or "pro se") with standby military counsel and civilian legal advisors from the ACLU's John Adams Project. In spite of defendants' opposition to the delay, Col. Hanley decided to grant the government motion and suspended the hearings.

President Obama has made a major step in the right direction and should be highly commended for his bold and decisive actions. His orders to close Gitmo within the year, to end torture, and to close CIA secret prisons or "black sites" put an end to some of the worst Bush administration policies. Yet, this first step is not alone enough. We hope to see a prompt and unconditional withdrawal of all charges in the military commissions pending the review of all cases. Unfortunately, President Obama's executive order left open the option that this flawed system can still be used to try some of the detainees, albeit under revised rules. Just last week, a military judge in the case of Abdel al-Rahim al-Nashiri, who allegedly planned the 2000 attack on the U.S.S. Cole denied the prosecution's motion for a stay of 120 days, meaning the case would go forward even as the Obama administration reviews whether to abandon the commissions altogether. Yesterday, Susan Crawford, Convening Authority of the Military Commissions, withdrew the charges against al-Nashiri.

Many questions remain unanswered, but we are hopeful that President Obama, through his ordered inter-agency task force, will address these questions and restore full credibility to America's commitment to the rule of law and human rights. The option of setting up an alternate judicial system must be finally and permanently repudiated. The United States cannot afford a new Gitmo by simply bringing it onto U.S. soil. U.S. federal courts are perfectly capable of prosecuting terrorism cases and providing both security and due process.

It is critical that electronic and documentary evidence in all cases, especially those of the high-value detainees at CIA black sites, be preserved. If prosecutors choose to re-refer their charges, Guantánamo detainees should be made safe from the possibility of double-jeopardy. Executive orders should look beyond Guantánamo and address U.S. detention facilities abroad, including Bagram. The CIA should no longer be allowed to run any such detention facilities. Finally, the Army Field Manual should be reevaluated to limit any coercive interrogation techniques that U.S. officials might employ anywhere to make sure that they adhere to U.S. international human rights commitments that ban cruel, inhuman or degrading treatment.

This is undoubtedly an historic moment — a possibility for real change. Obama's first words as president signaled a significant breakthrough and promised a new path to the American people and the world:

As for our common defense, we reject as false the choice between our safety and our ideals. Our Founding Fathers, faced with perils that we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man—a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expedience's sake.

There is no doubt that President Obama has talked the talk that has inspired millions of people. On his first days in office, he has started to walk that long walk. The ACLU will vigilantly monitor his progress and extend our support to him whenever he attempts to keep the nation not just safe, but also free.

(Originally posted on Daily Kos.)

This week, while the eyes of the American public and the world focus on the final leg of the presidential race, a new trial commenced at Guantánamo. The trial of Ali Hamza al Bahlul, al Qaeda's alleged media secretary, is only the second full trial to take place at the naval base since the first group of detainees was transferred there from Afghanistan in January 2002.

Al Bahlul is viewed as a particularly colorful defendant by outside observers and members of the press. His previous appearances before the commission provided provocative challenges to a system that is legally and politically tainted. In his challenges to the legitimacy of the military commissions, al Bahlul has built himself a reputation for defiance. He has refused legal representation and has frequently stated his desire to boycott the hearings. In January 2006, he famously raised a hand-made sign in the courtroom that declared a boycott of the hearings. He rarely turns down an opportunity to express his controversial views on America and to reiterate his allegiance to Osama Bin Laden.

On Day One of his hearing yesterday, however, al Bahlul showed marked self-restraint, remaining silent for the six-hour duration. He implemented his boycott strategy by attending the hearing, but refusing to take part in the proceedings. He listened to the remarks of the judge and prosecution without bothering to put on his headset to hear the Arabic translation. More significantly, he instructed his court-appointed military defense lawyer, Major David Frakt, to remain mute. Frakt tried his best to balance his ethical responsibilities as the appointed defense lawyer with his client's wish not to mount a defense. Frakt informed the military judge, Colonel Ronald Gregory, that he intended to respect al Bahlul's request to boycott his own trial. From that point forward, Frakt answered all the judge's questions in the negative and refused to take an active part in the proceedings.

The judge, perhaps realizing that the integrity of the commission lies on his shoulders, responded to Frakt's decision by stating that, in the absence of a defense, he would "intervene to insure a fair trial." He allowed al Bahlul to stay in the courtroom but warned him that he would not be permitted to speak unless he took the stand as a witness. The judge also ruled that he would not allow previous statements made by al Bahlul to be used by the prosecution because they were made in the limited context of explaining al Bahlul's intent to boycott. It became clear, however, that the trial is slowly moving towards its inevitable end: a show trial that might well become another piece of al Qaeda recruiting propaganda — ironically produced at the trial of the alleged al Qaeda propagandist.

The afternoon session was devoted to the selection of the commission's panel, the jury of military officers that will hear the evidence in the case and decide al Bahlul's sentence. Six of the nine military officers selected served on the commission panel that sentenced David Hicks in 2007. Hicks was the Australian prisoner sentenced to a maximum term of seven years in prison for providing material support for terrorism. Hicks' plea agreement suspended all but nine months of the sentence and he is now free in Australia. Was it a coincidence that six out of the 13 members of the panel served in Hicks' controversial case? During yesterday's session, it was clear that the government is not taking any chances; it challenged four members of the panel who had not served in the Hicks commission. For almost seven years, Guantánamo has been the antithesis of justice. These days, the government does not bother even with the appearance of fairness.

This week, I represented the ACLU at the annual Human Dimension Implementation Meeting (HDIM) of the Organization for Security and Cooperation of Europe (OSCE) in Warsaw, Poland. The OSCE is an intergovernmental organization consisting of 56 "participating states," including the United States, Canada, European countries, and Central Asia.

The HDIM is Europe's largest human rights conference, and the most significant OSCE event addressing human rights and democracy in Europe, North America and Central Asia. For two weeks, more than 1,000 government representatives, human rights defenders, scholars, members of civil society and journalists examined the processes and extent to which member countries of the OSCE have implemented their commitments to human rights and democracy.

The ACLU's opening statement on the unfair trials held at Guantánamo Bay, Cuba, triggered an audible buzz from the U.S. delegation's perch at the meeting. The ACLU statement delineated the inadequacy of the Military Commissions Act (MCA), signed into law by President George W. Bush in October, 2006, and noted its lack of "basic substantive and procedural protections codified in the U.S. Constitution, the Geneva Conventions, and numerous international human rights treaties ratified by the U.S." The statement strikes at the incredible inclusion of secret evidence, hearsay evidence and evidence obtained through torture that the MCA allows, and the imbalanced allocation of resources between the prosecution and defense. The statement calls for a special attention to the U.S. failure to meet international juvenile justice standards in its detention, treatment and prosecution of Omar Khadr and Mohammad Jawad who were under 18 at the time of their transfer to and imprisonment at Guantánamo and face charges before a military commission.

The formal response by the U.S. delegate mildly noted that the U.S. took note of the ACLU statement and that the issues raised by the ACLU are subject to debates in the U.S.; debates which consider pending legal cases before courts. He vaguely noted that there is accountability in the U.S., and that free press and independent courts check government actions. Several independent attendees at the meeting acknowledged the American statement as an attempt to gloss over the legitimate concerns of human rights organizations like the ACLU and the international community as a whole.

Freedom House representatives took advantage of this gathering to present their first-ever book written on an individual country (the United States) as a follow-up to a similar report they conducted on freedom in America about 20 years ago. Freedom House is known for its annual reports on freedom around the world in which countries are rated based on their record on civil and political rights. Freedom House's statement attempted to counter increasing international frustration with U.S. policies and defend what is left of America's damaged standing in the world. A former journalist from Moldova asked at the event what right the U.S. has to export democracy to the rest of the world.

The ACLU delivered a second statement on the state of capital punishment in the United States, highlighting the problems within a system that has exonerated 130 wrongfully accused death row prisoners in the last 35 years, provides inadequate counsel and access to the courts for indigent defendants, is fraught with procedural barriers that prevent death row prisoners from receiving adequate reviews of their cases, and is mired in racism — as found by the American Bar Association in a three-year study calling for a moratorium on executions.

Following this, the ACLU and Amnesty International packed the room in a joint round-table discussion entitled "The End of the 'War on Terror'? The Future of Counterterrorism and Human Rights in the OSCE Region." Five U.S. delegates attended the meeting, with one representative gently reiterating the same points made at the Freedom House event a day earlier about America's strengths in its independent judiciary and free press. These are no doubt American hallmarks and played a vital role in exposing secret government programs and thus checked its power, notwithstanding the repeated attempts by the U.S. administration to restrict dissenting speech and investigative reporting, as well as the government's unsuccessful attempt to strip courts of their Habeas jurisdiction.

A special guest and speaker who agreed to join the ACLU and Amnesty International was Dr. Adam Bodnar from the Polish Helsinki Foundation for Human Rights. Dr. Bodnar spoke about the ongoing investigation that was ordered by the Polish Prime Minister regarding reports by the media and human rights groups about secret U.S. detention facilities that operated on Polish soil. In 2007, the Parliamentary Assembly of the Council of Europe's report (PDF)
affirmed that "there is now enough evidence to state that secret detention facilities run by the CIA did exist in Europe from 2003 to 2005, in particular in Poland and Romania."

A recent report by The New York Times sheds more light on the CIA black site, including the revelation that Khalid Sheik Mohammad was waterboarded 100 times while in CIA custody in Poland.

The presence of the American Civil Liberties Union at this high-level conference on international human rights and democracy was warmly welcomed by members of the OSCE and HDIM participants from foreign governments, civil society groups and media. Most other human rights organizations and non-governmental organizations attending the gathering have historically been from locations east of Vienna. The general feeling of the week's proceedings made it abundantly clear that the next U.S. president's administration will have to work diligently to re-establish America's credibility to speak on human rights on any international platform.

Mohammad Jawad's military commission hearing last week was unusual for many reasons. Jawad was a minor when he was captured in Afghanistan and now faces life in prison if convicted for allegedly throwing a hand grenade that wounded two U.S. soldiers and their Afghan interpreter in December 2002. Not only did the pre-trial hearing last 14 hours, but there were several "firsts:" a prisoner (Jawad) testified about the mental torture and abuse he suffered under the frequent flyer sleep deprivation program; a civilian sleep deprivation expert, Harvard Professor Dr. Janet Mullington, testified via video conference from Hanscom Air Force Base about the short- and long-term mental effects of sleep deprivation; and, finally Brig. Gen. Thomas Hartmann, the Legal Advisor to the Convening Authority, testified before the commission.

Brig Gen. Hartmann, a witness for the government, was called to testify to counter the defense testimony of Col. Morris Davis. Col. Davis, the former chief prosecutor of the military commissions, quit his position in October 2007 in protest of Brig. Gen. Hartmann's overbearing interference in the work of the prosecution, and immediately thereafter became a popular defense witness, testifying and speaking publicly about Hartmann's improper political interference. It was truly a surreal scene watching a military supervisor cross-examine his subordinate (Col. Lawrence Morris, the chief prosecutor, cross-examined the deputy chief prosecutor, Lt. Col. William Britt, who served under Col. Davis) and military defense counsel challenge the credibility of a superior officer in the Air Force JAG Corps Reserve. (Unlike Office of Military Commission's-prosecution team, Maj. Frakt of the Office of the Chief Defense Counsel is independent and is not subordinate to the Legal Advisor, Brig. Gen. Hartmann).

The chief prosecutor's task was more than just defending the government's case against Jawad's motion to dismiss all charges due to unlawful influence. Col. Morris also attempted to seize the moment to defend the integrity of this tainted and discredited system and, more importantly, discredit the validity of the former chief prosecutor's account. Col. Davis' testimony in the case of Salim Hamdan resulted in the disqualification of Brig. Gen. Hartmann in any future dealing with that case (PDF), and caused serious damage to the world's perception of this system of injustice.

The military defense counsel, Maj. David Frakt, relied heavily on Col. Davis' testimony and tried to show that Jawad's case was prioritized and charges were advanced only to satisfy Brig. Gen. Hartmann's eagerness to move the process forward. Lt. Col. Britt testified that Brig. Gen. Hartmann was "very enthusiastic" about Jawad's case, believing it would "grab the public's attention." Lt. Col. Britt testified that "there is no doubt in my mind that [Brig. Gen. Hartmann] was the driving force behind the prosecution's effort." Lt. Col. Britt said on the witness stand that he was not aware of any evidence of abuse against Jawad and was not aware of the fact that Jawad was subjected to the frequent flyer sleep deprivation program. He stated this despite the clear evidence revealed in the prison logs that were turned over to the defense team. However, Lt. Col. Britt made it clear on the stand that he would not, as a matter of personal ethics, allow charges against anyone he believed to have been tortured to move forward. This testimony supported the defense assertion that had the prosecution not rushed to file the charges and done their due diligence, as required of them, the charges against Jawad would probably not have been filed.

While Col. Davis' testimony was not very different from his testimony in the Hamdan case, he appeared more wounded, having been denied a medal from the Department of Defense for his service. Col. Davis testified that under Brig. Gen. Hartmann's tenure, the prosecution's office suffered from an "environment of fear" which discouraged prosecutors from speaking their minds. Although the defense's request to get access to Col. Davis' emails when he was the chief prosecutor was not processed, Col. Morris, in cross-examination, used one of the old emails in an attempt to discredit Col. Davis' assertion that charges against Jawad weren't ready to be filed and referred by the Convening Authority.

The prosecution invited Brig. Gen. Hartmann to provide testimony — something that it did not seek in the Hamdan case — in an attempt to offer him the chance to set the record straight. The prosecution asserted that there was no unlawful command influence and tried to paint a picture of, at best, an unpleasant work environment due to personality issues. Brig. Gen. Hartmann testified that his authority over the prosecution does not enable him to order charges, but does enable him in to insure that the system moves in a systematic speed. He expressed dissatisfaction with the work of Col. Davis and defended the statement attributed to him as saying the prosecution should bring cases that capture the imagination of the American people. He confirmed that he created a timeline for the cases to be filed by the prosecution and described his management style as "intense and direct."

Asked specifically about Jawad's case, Brig. Gen. Hartmann testified that he believed Jawad was 16, 17, or 18 years old, and was not aware of the criticism regarding the age of Omar Khadr, another minor (when he was first detained) who is also facing a military commission. But, Brig. Gen. Hartmann denied ordering the prosecution to file charges in this case. Finally, he testified that he was not aware of the frequent flyer sleep deprivation program. He stated this in spite of the fact that Jawad's military defense lawyer, Maj. Frakt, shared with him prior to his testimony a classified version of the prison logs which revealed the frequent flyer program! While the military judge will rule soon on the defense's motion to dismiss all charges due to unlawful influence, the judge ordered a medical examination of Jawad to determine if he is competent to stand trial.

The new details published in a front page story in last Sunday's New York Times about how Khalid Sheikh Mohammed was waterboarded 100 times should make people question how this system will deliver justice. These doubts are only exacerbated when we learn that the Legal Advisor charged with overseeing the process seems to be less interested in whether torture was used against the prisoners than in pushing the trials forward in the midst of the presidential election.

CORRECTION: An earlier version of this post incorrectly stated that officially, Maj. Frakt is under Brig. Gen. Hartmann's command. The Office of the Chief Defense Counsel is independent of the Legal Advisor. Brig. Gen. Hartmann is, however, a superior to Maj. Frakt within the Air Force JAG Corps Reserve.

In addition, the previous version of this post should have emphasized that the charges against Jawad would have undergone due diligence — and probably would not have been filed — had Hartmann not pressured the prosecution to file charges.