Editor's Note: You can listen to a podcast of Jamil discussing Thursday's hearing at Guantanamo here.

After close to five months of uncertainty regarding the future of the military commission system, hearings resumed today when Canadian national Omar Ahmed Khadr faced his third arraignment. That's right, his third arraignment. Clearly, the wheels of injustice turn very slowly at Guantanamo.

Khadr, who is now 21 years old, was only 15 when he was captured by U.S. forces in Afghanistan. New charges against Khadr were filed for the third time last month after the old charges were thrown out in June by a military judge who ruled that the commission lacked proper jurisdictional authority to prosecute him.

The military judge, Army Col. Peter Brownback, ruled that Khadr had not been designated as an "alien unlawful enemy combatant" as required under the Military Commission Act signed into law by President Bush in October 2006. Khadr is accused of murder, attempted murder, conspiracy, material support and espionage. Most of the charges relate to a 2002 incident in Afghanistan in which Khadr is alleged to have thrown a grenade, killing one soldier and wounding another. Khadr is one of only four captives at Guantanamo who were so far charged. Over 320 other prisoners continue to languish indefinitely without charges and no meaningful access to the courts.

Today's hearing attracted close to 30 reporters, including several Canadian reporters and a Russian television crew that was broadcasting in Arabic! In addition to the five non-governmental organizations that have been granted status as permanent observers - the ACLU, Human Rights Watch, Amnesty International, Human Rights First and the Association of the Bar of the City of New York. In what appears to be an attempt to counter the largely critical contingent of human rights observers, the Pentagon invited three other groups to observe the military commission hearing: the Heritage Foundation, the Carnegie Council and the Veterans of Foreign Wars. As a matter of courtesy, the Canadian government sent a representative to observe the hearing.

Guantanamo's tent city.

A striking difference today from previous military commission hearings was the ongoing erection of a tent city just hundreds of feet away from the current Military Commission building. That building - the former home of a military dentistry - has become too small to accommodate the military commission staff. The Department of Defense had attempted to build a grandiose, $125 million court complex instead, but a successful ACLU lobbying effort stymied the plan, so the tents will have to do.

Khadr appeared relaxed during his hearing today, but looked much older than his actual age. He wore a white Afghan-style dress and had a black religious cap over his head. He agreed to be represented by a military defense lawyer, Navy Lt. Cmdr. William Kuebler, who was joined by Department of Defense civilian attorney Rebecca Snyder and Canadian lawyer Nathan Whitling.

To give more legitimacy to the proceedings, the prosecution - led by Marine Maj. Jeffrey Groharing - was joined by Assistant U.S. Attorney John Murphy. The prosecution was prepared to present its evidence regarding the designation of Khadr as an "alien unlawful enemy combatant" and said that it actually prepared documents and prepared as a witness an FBI agent who the defense could not depose. Of course, the prosecution was eager to move ahead with this trial, assuming that a slam-dunk determination by Col. Brownback that Khadr is indeed an "alien unlawful enemy combatant" was forthcoming - a ruling that would set a good precedent for subsequent cases that come before the military commission. Earlier in the week, however, at a non-public conference, Col. Brownback decided not to hear constitutional and international law arguments regarding the jurisdictional question.

Mindful of a pending motion before the Court of Appeals in the D.C. Circuit, the defense team said they would reserve the right to bring substantive challenges at an appropriate time against the jurisdictional authority of the military commission to try Khadr, and emphasized that while they acknowledge the jurisdiction of the commission, they disagree and have objections which relate to his having been a child when he was captured and held as a prisoner of war.

Finally, and perhaps the most interesting part of today's hearing, was the defense's voir dire inquiry: their attempt to question the impartiality of Col. Brownback. Col. Brownback was at times impatient with the questions presented by Lt. Cmdr. Kuebler. He was asked about a Supreme Court decision in the case against Salim Hamdan, another prisoner held at Guantanamo. The June 2006 decision struck down the old system of military commissions; during voir dire, Col. Brownback said he did not think that the Hamdan ruling found the military commission illegal. He instead stressed that the decision found that according to Common Article 3 of the Geneva Conventions, the President had to go to Congress to get authority for the military commission.

His response was certainly not surprising considering his commission's legitimacy and his personal involvement in the old system was at stake. Col. Brownback also gave an unusual answer when he was asked what he knows about al-Qaeda. He said: "al-Qaeda is an organization or a group dedicated to the spread of Islam." It is quite disturbing that one would equate the spread of Islam with a group like al-Qaeda, which has been classified by almost the entire world community as a terrorist organization responsible for horrific crimes.

Finally, Col. Brownback disclosed that he is friends with General John Altenburg, the convening authority of the military commission system since its inception in 2004. Despite the defense demand that he be disqualified for that reason alone, Col. Brownback decided to deny the request and found that he has no bias and is qualified to preside over Khadr's trial.

Today's hearing was nothing more than another example of the lack of legitimacy and competency of the military commission system. As long as the independence and impartiality of the system is called into question, we will essentially remain at square one. Our only hope for fair trials and justice consistent with U.S. and international law lies in Washington, where Congress must find the political courage to stop this failed legal experiment.

Epilogue:

As part of the Pentagon's new ground rules regarding the status of human rights observers, we were denied access to the media center shortly after the hearing ended. As a result, we were denied access to critical information shared by the defense team with the press at a press conference. The defense lawyer revealed that the government has for years had secret evidence that could help Khadr defend himself. Prosecutors notified Khadr's military lawyer two days ago of the existence of "potentially exculpatory evidence" from a U.S. government eyewitness to the battle in Afghanistan that resulted in Khadr's capture in 2002.

Right now, Guantánamo Naval Base seems very far away from the election going on in the United States. There are restrictions on what members of the military can say in uniform, so there aren't a lot of public conversations about politics. I haven't seen any political posters or bumper stickers. And there are no voting booths here, because those who vote do so by absentee ballot. Here at Guantánamo, it would be easy to forget about the election altogether.

This is ironic, because the outcome of the election is likely to have a profound effect on the lives of the 550 or so detainees who are imprisoned here. For the detainees who haven't been charged with any crime, the election may determine whether they're afforded a meaningful opportunity to challenge their continued detention. For the handful of detainees who've been charged, the election may determine whether they're tried in traditional courts martial, with all the protections those proceedings entail, or in military commissions like the one that over the last three days has been hearing motions in the case of David Matthew Hicks.

Unfortunately, the hearing that took place in the Hicks case today confirmed what the ACLU and other legal and human rights organizations have been saying from the outset: the military commissions, at least as they're set up now, are simply not capable of providing anything resembling fair process. Frankly, the commission today did not even seem interested in fair process. The panel members peppered the defense with hostile questions about even the most conservative legal arguments; by contrast, even when the prosecution proposed outlandish interpretations of international law, the panel members just nodded approvingly. The panelists chuckled when the prosecution compared the defense's complaints about the process - which could result in a life sentence for Mr. Hicks - to a teenage girl's complaints about her prom date. On two occasions, the Presiding Officer, Col. Peter Brownback, dismissively referred to defense counsel Dan Mori as "sunshine."

More troubling still, the panelists - two of whom have no legal training, remember - struggled to understand even the most basic legal concepts. One of the charges levied against Hicks is "destruction of property by an unprivileged belligerent." The defense appropriately moved to dismiss the charge on the grounds that destruction of property is a war crime only if the property is "protected" under the Geneva Conventions; the defense pointed out that the prosecution had not alleged that the destroyed property was protected. Col. Bogdan treated this straightforward argument as frivolous. He asked, "Isn't the status of the property something we should decide at trial?" But, as any lawyer can tell you, the question of whether a crime has been alleged is certainly not something that should be decided at trial. We don't subject a person to a criminal trial if the government can't allege that he's committed a crime.

It's astounding that a kangaroo commission like this one has been invested with the authority to decide whether David Hicks spends his life in prison. The likelihood of his being afforded a full and fair trial seems vanishingly small.

Well, today was certainly exciting. The courtroom drama due to incompetence and systematic problems with the rules is nothing to enjoy even with a front-row seat. We knew from the beginning that Ali Hamza Ahmed Sulayman al-Bahlul's hearing was going to be different than the others. As he walked in you could see a steely, some would say defiant, look in his eyes. He was dressed in western civilian clothes and was a slightly built man. His defense counsel, Cmdr. Phil Sundel and Maj. Mark Bridges, whom I met privately two days ago and was enormously impressed by, were not greeted with any warmth or recognition, unlike Salim Ahmed Hamdan and his lawyer Lt. Cmdr. Charlie Swift. The commission began with Col. Brownback going through the same script that was used in other proceedings, but he quickly got derailed when with Mr. al-Bahlul asked, "Am I allowed to represent myself?"

Col. Brownback responded through the court interpreter (more on that later) that according to Military Commission Order No. 1, Paragraph 4(c), the answer was basically no. "You must be represented at all times by detailed defense counsel," Col. Brownback said. Mr. al-Bahlul responded that he would indeed like to represent himself. Col. Brownback tried to explain how Cmdr. Sundel and Maj. Bridges were chosen, that they had many years experience, that they were chosen by chief defense counsel Col. Gunn (an exceptionally thoughtful, soft-spoken man with a very sharp mind); and then Mr. Brownback said, "In addition to graduating from college and law school, each received extensive training in military law, which is at times a confusing subset of law." There was a chuckle at the back of the room because ironically Mr. Brownback sounded just like the defense counsel over the last couple of days when they were arguing that members of the military commission should be lawyers. ACLU members will remember that four of the five members of the commission are not lawyers. Mr. Brownback continued to explain that someone representing oneself might find it difficult since Mr. al-Bahlul would be "personally involved." Defense counsel "could remain objective in situations where a person about whom things are being said might become emotional or heated." At one point, Mr. al-Bahlul interrupted him and asked, "Are you done?" And Mr. Brownback allowed him to speak.

In response to questions about whether he could represent himself, one translation of Mr. al-Bahlul's statement was "I have some idea of practicing law in Yemen." And when Cmdr. Sundel questioned the accuracy of that translation, Mr. al-Bahlul said, "Don't interrupt me." When he repeated his statement, the translation came back, "I have some people who practice law in Yemen." Throughout the exchange between Mr. Brownback and Mr. al-Bahlul, one had a sense of a very sophisticated defendant. He talked about his knowledge of international law and raised objections to the fact that under these rules he would be denied access to classified evidence. He also reassured the commission that he would conduct himself appropriately while in court.

Mr. al-Bahlul then began the now-famous line that sounded like the beginning of a confession. But the translation was so poor that all of the English speakers in the room were thrown into chaos. I think the official court translator said, "I testify that the American government is under no pressure. I am al Qaeda and the relationship between me and Sept. 11? ." Al Jazeera reported that Mr. al-Bahlul's statement was something to the effect that "the U.S. government has not pressured me. I am a member of al Qaeda and in relation to 9/11? ." The fact that Al Jazeera could get Mr. al-Bahlul's statements right, and the government could not, is incredible. After the court translator gave the flawed translation of Mr. al-Bahlul's statement, Col. Brownback interrupted him and said to his fellow members of the commission that they must not take into account the statements of Mr. al-Bahlul. The prosecution quickly jumped up and took exception with Mr. Brownback.

It felt like chaos was breaking loose. Brownback at some point even held his face in his hands and they took a recess.

Now, how do we interpret this? Here we are two years later and the U.S. government is not prepared to appropriately handle the case against a man who appears to be willing to admit to being a member of Al Qaeda. The hearing with Mr. al-Bahlul should have been the easiest one. But the translation was so poor that English-speaking people like me - or even like the prosecutors, defense counsel or commissioners - couldn't fully understand what was going on. An essential part of a fair system of justice is ensuring adequate translation of the proceedings. You have to ask why can't the U.S. produce world-class translators in order to prosecute an apparently self-confessed member of the Al Qaeda?

Secondly, today's hearing raised basic questions about the commission's rules as we've been saying all along. Mr. al-Bahlul's inability to review even a summary of the evidence against him, his inability to hire a Yemeni lawyer as he requested (given his profound distrust of American lawyers), as well as the way that the presiding officer handled his request to represent himself show that these rules are not working. It appears that the presiding officer was reluctant to even apply one of the few rules that is clear in this process, i.e. the requirement that Mr. al-Bahlul be represented at all times by detailed defense counsel. And, the fact that Mr. al-Bahlul's implicating statements came out in front of all the members of the commission who were then asked to disregard his possibly incriminating statements shows the pitfalls when you confuse the roles of judge and jury. In a civilian court or even in a military court-martial, the difference between the trier of facts and the trier of law is clear. But here, it is confused and commingled. No one, including the presiding officer, seems very comfortable in this made up and ad hoc system of justice. And, what about Mr. al-Bahlul's rights against self-incrimination? Do they or don't they exist? Where do we go from here?

Col. Brownback asked Cmdr. Sundel and Maj. Bridges to prepare a "friend-of-the-court brief" about Mr. al-Bahlul's right to represent himself as well his right to have a foreign lawyer represent him. They were instructed to ensure that they refrained from stating in their documents that they represented Mr. al-Bahlul. As of now, I guess Mr. al-Bahlul is representing himself, notwithstanding the clear rules in the military commission orders. No date was set and we'll see where this ends.

The final word: in the midst of all the chaos of the abysmal translation, and what Mr. al-Bahlul had or had not said, and what was or was not translated, the NGOs and press kept asking the question about whether or not there was an audio recording of the proceeding to consult. Let's go to the audiotape, we said. But we were told over and over again that there was no tape, only a transcript. Incredulous that this would be the case, we kept asking the question of multiple military officials, when one of them finally confirmed for us that an audio recording does exist and that it will be part of the court record. In one of the lightest moments of an otherwise intense day, one TV producer said to a military spokesperson, "Does that mean that there is now a videotape even though you had previously told us there was no videotape?" The official basically responded by saying that to his knowledge no videotape was produced. Who knows?

While we all laughed at the exchange, it is also notable that the system and its key spokespersons seem to be losing credibility even among its initial supporters in the group. We'll see where it all ends tomorrow. I'll keep you posted. Meanwhile the Aussie contingent is giving a barbecue because this is their last night and we're going for a swim.

Anthony

P.S. If you saw the Pentagon briefing from Gen. Hemingway today trying to clean up this mess, it was pretty clear that they were trying to outspin the stories that were coming out of Guantanamo. Then the Gitmo press corps got on the phone with him and began asking him a whole bunch of pesky questions. The wonders of technology... . And thank God we've got a free press to keep the government on its toes.

Today I witnessed history in the making.

I was one of 49 people inside the military commission courtroom allowed to observe the first military commission in the 60 years since World War II. America's system of justice was on the world stage.

We got to the ferryboat at about 7:30 a.m., but the commission didn't begin until about 10, after a snafu with the closed-circuit television. As the participants in the commission held their breath, Salim Ahmed Hamdan walked in with his lawyer, Lt. Cmdr. Charles Swift, a Navy officer. Mr. Hamdan's face lit up when he saw Mr. Swift. You could see the relief in his face. He was looking around, smiling at everyone. It may have been that he was happy to see so many people after having been kept in solitary confinement, or it could also be that he didn't fully possess a complete understanding of why we were there.

He appears to have lost quite a bit of weight, more than 50 pounds, from the photograph that his defense counsel provided us. But we know nothing about his condition, as obviously he was kept under strict lock-down and away from us.

What happened over the next eight hours had the look of a judicial proceeding, but, as you know, the devil was in the details, and the details left this civil libertarian very unsatisfied.

The problems that the ACLU had identified from the beginning were borne out in concrete detail. First, the issues with the lack of an independent review outside the chain of command became particularly clear. Several commissioners had very active roles in the government's war on terror: two with regards to operations in Guantanamo and one with substantial experience in the battlefields in Afghanistan. The lack of distance and the possible appearance of "victor's justice" was a problem that Mr. Swift underscored in his questioning of the commission, known as "voir dire."

Number two: the rules of evidence are still confused. What we do know is that they are inferior to what's used in military courts martial. One commissioner commented in the voir dire that rules of evidence certainly apply, but the defense counsel reluctantly had to basically say, "No sir, not really." Also Mr. Hamdan was denied an opportunity to review or rebut even a summary of secret evidence being used in his case. The defense lawyer and the ACLU agree that Mr. Hamdan should not receive classified documents, but he must be allowed the opportunity to review and contest a summary of the secret evidence. That's what we do in other contexts.

The third problem concerned the inability of defense lawyers to adequately represent their clients' interests, notwithstanding their heroic efforts. The deck is still very much stacked against the defense - the prosecution has many more resources. At one point, the translation for Mr. Hamdan was so poor that the accused couldn't even understand the charges being read against him. They had to momentarily excuse the translator who was botching it up. The only full statement that Mr. Hamdan said in his native tongue was "please sir, give my attorney an assistant." Mr. Swift is the only lawyer assigned to Mr. Hamdan right now.

Another problem that became painfully clear was that only the presiding officer is a lawyer, whereas the other four commissioners are not. The defense counsel did its best to explain concepts like jurisdiction and post hoc, but this isn't going to be easy and it's certainly going to put the presiding officer in a greater position of power vis-à-vis the other commissioners. Interestingly enough, all of their votes are supposed to count equally. How can that possibly happen when only one is a lawyer and that lawyer is the presiding officer? We will see.

There are also some tangled relationships between the presiding officer and the appointing authority, which will probably get hammered out in coming days through the other commissions. But the big news on that front that dropped today was whether Col. Peter Brownback III should remain as presiding officer.

Notably, the presiding officer does not have an active bar license (though that is apparently not required in military proceedings). But, more importantly, Mr. Brownback held a meeting with the prosecution earlier this summer at which the defense counsel was not present and it appears that he made some statements about whether or not defendants had a right to a speedy trial.

Right before our adjournment at 7 p.m., the defense counsel asked the presiding officer to allow him to enter a transcript of this meeting that was taped unbeknownst to the presiding officer. The presiding officer reopened the questioning and did allow the transcript to be entered, to Mr. Brownback's credit. Whether or not he is removed for cause will be decided in the future. It reminded me of Supreme Court Justice Antonin Scalia having to recuse himself because he expressed an opinion before he saw the facts on the Pledge of Allegiance case. We'll see if that's the case here.

Some of the Aussie media who bought me a Red Stripe beer at the Combined Bachelors' Quarters were asking me if this was the best that America could do. However you answer that question, it certainly doesn't look good.

Finally, I want to say a word to the ACLU family about the good men and women in uniform. Sometimes we civil libertarians see members of the military with suspicion. But let me tell you, some of the best civil libertarians I've met recently are soldiers who believe in due process and are doing their best to conduct a fair trial despite the fatal flaws in this system. They make America look good, because even though they've been dealt a terrible hand, they're defending their clients with all the zeal of a Johnny Cochran.

The prosecution was also quite thoughtful and even-tempered and even-handed. They're making the best of a terrible situation, but our government shouldn't have put them in this situation in the first place. We have a good system of military justice that we should be proud of and we should have used it.

There's also this one Navy guy who's been assigned to escort us around. After all the snafus (take a look at yesterday's Washington Post) he has taken excellent care of us. He believes in the commission's fairness and will vote for George Bush, but he also believes that the NGOs are here to do a job and form an independent opinion.

The fact that there are men and women like him in uniform who support this president, who support these commissions, but who also understand the important role of the ACLU, should give all civil libertarians hope. Remember, Ben Franklin was asked after leaving the Constitutional Convention: "What have you wrought?" "A Republic," he answered, "if you can keep it." With patriots like the defense counsel and with open-minded folks like this Navy guy, we may have a fighting chance.

I'll see you tomorrow.

Anthony

P.S. Some of you asked about our access to Camp Delta. That has been denied, but we are appealing it to the Department of Defense. Apparently tomorrow we should be able to tour the holding cell in the military commission building as well as the offices of the defense counsel. The prosecutor and the presiding officer have so far declined to meet with us. In fact, the presiding officer told us that he'd be happy to meet with us when this whole process was done. And, when I commented that we're only beginning four commissions of the 581 men who are held here at Guantanamo and that it might take a very long time to complete this process, he simply said he was not interested in meeting us at this time. If one thing is for sure, it's that no matter when they wrap up this failed system of justice, the ACLU is going to be around to ask him for that meeting.