It was a day of competing narratives. Who was the real David Hicks? In a jarringly strident sentencing argument in which he advocated the maximum sentence – by agreement, seven years – the military prosecutor intoned that the members of the Military Commission who had been flown in to decide Hicks's sentence were on the "front line in the Global War on Terrorism" and "were face to face with the enemy – in this courtroom."

Hicks – to whom the prosecutor repeatedly referred by one of his alleged aliases, Muhammad Dawood – had been a "valuable asset" to Al Qaeda, a western jihadist who could infiltrate western nations and cause great harm. "Muhammad Dawood will always be a threat until he changes his beliefs. How strong are those beliefs? 9/11 is a microcosm of that."

It was one of several invocations of the 9/11 attacks, though it is undisputed that Hicks had no involvement in, or even prior knowledge of, those attacks. Hicks's defense counsel Major Dan Mori seized on the disparity between the prosecutor's rhetoric and the actual offense to which Hicks was pleading guilty. Hicks had never hurt anyone; had never fired a weapon at a U.S. soldier; had never planted a mine. He had been, Mori insisted, a misguided, poorly educated adventurer, who had trained with the Kosovo Liberation Army in Albania, then made a mistake by traveling to Pakistan and joining up with extremists.

But for all the prosecution talk of Hicks's value to Al Qaeda, he had never been assigned a complex terror mission; rather, he had been placed in a trench. Hicks owed apologies to his family and to the Australian and American people, but he had been cooperative in U.S. custody and had already spent five years and four months in detention at Guantánamo – time for which he could not be given credit under the judge's instruction. If the Commission wanted Hicks to be punished by seven years' confinement, it should sentence him to one year and eight months – which would amount, in effect, to the maximum sentence.

Five years after the government had publicly branded Hicks one of the world's most dangerous terrorists, it was more than a little surprising to hear the parties arguing over whether his sentence should be seven years or 20 months – both within the range of sentences a convicted criminal in U.S. courts might receive for selling drugs. But even that was a show. The prosecution and the defense were both aware that, by prior agreement, all but nine months of Hicks's sentence would be suspended – so whether the Commission members chose the higher or lower sentence would make absolutely no difference. Hicks would be home soon, and free by the end of the year.

It was a remarkable revelation on a day full of them. Earlier, we had learned the details of Hicks's guilty plea. Hicks agreed that the facts to which he was pleading could be proven against him beyond a reasonable doubt. It was roughly equivalent to an "Alford plea" under U.S. law, and it allowed Hicks to stipulate to the required facts while not directly confirming their truth. The significance of this maneuver would soon be made clear.

Hicks stipulated that the government could prove that he had traveled to Afghanistan in 2001; had attended various Al Qaeda training camps; had met Bin Laden himself and complained of the lack of training materials in English; had, upon learning of the 9/11 attacks, expressed personal approval; had participated in the Afghan war by joining a contingent of Al Qaeda fighters defending the Kandahar airport; and had ultimately been captured by the Northern Alliance while attempting to flee by taxi to Pakistan.

The judge inquired of Hicks whether he had personally reviewed the government's evidence in support of those facts. Hicks said he had. What evidence had he seen? Hicks replied that he had seen notes from interrogations of himself and other detainees.

So Hicks's guilty plea amounted to the following: He agreed that the government, on the basis of evidence obtained from him and other detainees through interrogation, could prove his guilt in the Military Commission system.

In other words, Hicks agreed that the facts necessary to prove his guilt in the Commission could be proven using evidence that might have been beaten out of him and others in U.S. custody.

In a separate provision, Hicks agreed that he had not been "illegally treated" while in U.S. custody, but even those words were carefully chosen. Hicks has previously alleged that he was subjected to brutal physical abuse when he was turned over to U.S. forces in Afghanistan.

But, in the Administration's view, that treatment would not have been illegal at the time. Thus, in denying that he had been "illegally treated," Hicks in no way denied that he had been abused and coerced.

Moreover, the plea agreement provided that Hicks would not speak to the media about the circumstances of his capture or detention for a period of one year – a provision plainly intended to prevent Hicks from describing his treatment and allowing the world to decide whether he had been tortured or coerced. The government will be hard-pressed to explain how this gag rule can be squared with the mantra that Military Commission proceedings are fair and "transparent."

Rather than relate the proceedings that followed – which, after all, were essentially meaningless in light of the previous agreement that Hicks would serve no more than nine months – I'll recommend a few of the better journalistic accounts, one from the L.A. Times and two in The Washington Post, here and here.

What are we to make of all this? How could it happen that, after more than five years, the very first case brought before a Military Commission – a system that, we were told, was necessary because it would be dangerous and impracticable to prosecute arch terrorists in U.S. courts – would result in a sentence of nine months? And what does the Hicks case tell us?

In U.S. courts, the accused must ordinarily be acquitted to be released. In Guantánamo, it turns out, the accused must plead guilty to be released – because, even if he is acquitted, he remains an "enemy combatant" subject to indefinite detention. It is a backdrop so inherently coercive that a guilty plea cannot be seen as a vindication of anything – only as proof of desperation.

As the Secretary of Defense rightly comprehends, the world will not perceive this system as legitimate – nor should it. Let's hope that this first Guantánamo prosecution was also the last.

It was an extraordinary, though typically chaotic, day at the Guantánamo Military Commissions. David Hicks began the proceedings with three lawyers sitting beside him at counsel table. After a series of dubious rulings by the trial judge, he ended the day with only one. Hours later, he agreed to enter a plea of guilty to a single charge of providing material support to a terrorist organization.

Hicks maintained, under questioning, that his guilty plea was unrelated to the loss of his attorneys, but the facts speak for themselves. Though not overtly coerced, Hicks's guilty plea was the product of a coercive system. And this outcome will do little to reduce the perception that the United States has created a result-driven system that is incapable of providing fair trials free of controversy.

No Military Commission proceeding would be complete without a dispute about counsel that nearly derails the case. (See here, and here) Monday's proceedings stuck to the script. The judge asked Hicks whether he was satisfied with his attorneys. He said he was, except that he hoped to add additional lawyers and paralegals so as to achieve "equiality" with the prosecution. But precisely the opposite occurred.

First, following a somewhat arcane discussion, the judge ruled preliminarily (while claiming not to) that one of Hicks's lawyers, Rebecca Snyder, could not represent Hicks, because she had been appointed by the chief military defense counsel but was not herself on active duty. This was wrong – and the judge allowed that he might revisit the issue after briefing -- but the result was the first empty chair at Hicks's table.

Next, and far more troubling, the judge stated that Hicks's civilian defense counsel, well-known criminal defense attorney Joshua Dratel, had not submitted a letter indicating his agreement to comply with the rules and regulations of the Commissions, and therefore was not qualified to serve as counsel. Under Commission rules, a civilian lawyer must sign an agreement issued by the Secretary of Defense indicating that the lawyer agrees to abide by the Commission's regulations. The problem for the judge was that the Secretary of Defense had not yet created that agreement, and therefore Dratel could not sign it.

Instead, the judge had created his own version of the agreement – thereby, in Dratel's words, "usurping the authority of the Secretary of Defense." Dratel would have signed even that version – so long as the agreement made clear that it applied only to regulations that already existed, and not to those (and there are many) that have not yet been issued. "I cannot sign a document that provides a blank check on my ethical obligations as a lawyer," Dratel explained. In simple terms, Dratel was unwilling to pledge compliance with rules that he had not yet seen.

The judge was unpersuaded. "I find no merit in the claim that this is beyond my authority," he said. "That's sometimes what courts do, they find a way to move forward." Because Dratel refused to sign the agreement as written by the judge, he could not serve as counsel. There was a second empty chair.

"I'm shocked," said Hicks, "because I've just lost another lawyer. Now I'm left with poor Mr. Mori." (Major Dan Mori is Hicks's very able military defense counsel.)

This was followed by one of those almost-surreal moments that the Military Commissions routinely produce. The judge had just issued rulings that effectively deprived Hicks of two of his three lawyers. So he decided the time was right to address an issue of fundamental importance: Hicks's clothes. Hicks had arrived in court wearing beige prison attire. The judge said that he thought that a suit and tie, or business casual – which he helpfully defined – would be more appropriate. This practice was "designed to protect the presumption of innocence," the judge explained, because Commission members who observed the accused in prison clothing might be subconsciously prejudiced against him.

Never mind that the President and former Secretary of Defense had already declared Hicks a guilty terrorist; that the Supreme Court had already once intervened to halt illegal proceedings under which he faced trial; that the events of the morning had left him facing serious charges with only a fraction of his legal team. The true threat to a fair proceeding had been identified, and Hicks was wearing it.

It is against this backdrop that Hicks's decision to enter a plea of guilty must be understood. It is expected that Hicks's plea will result in his return to Australia within the next few months. He has been held in Guantánamo for more than five years. By his lawyers' and family's account, he has despaired of his chance of receiving a fair trial in this system, and the day's events hardly could have convinced him otherwise. He does not want to be a symbol of an unjust system. He wants to go home. We'll learn the details of the plea – and perhaps see Hicks formally sentenced – later this week.

The pre-trial hearings in the Hicks case came to an end today, so this may be my last dispatch from Guantánamo. Next week, the commission will hear motions in the case of Salim Ahmed Hamdan, a 34-year old Yemeni who is accused of having served as a bodyguard and driver to Osama bin Laden. Trial in the Hicks case is scheduled to begin in March.

Over the past few days, I've written mainly about the legal process (or lack of it) afforded to the handful of prisoners who, like Hicks, have been charged with war crimes. These are the detainees who'll be tried before military commissions. I want to use this last dispatch to talk about the hundreds of prisoners here who have not been charged with any crime at all. There are 550 or so prisoners held here at Guantánamo right now; only 15 of these have been designated by the President as eligible for trial before the commission, and of these only four have actually been charged. The overwhelming majority of the prisoners held here at Guantánamo have not been charged with any crime or even designated as eligible to be tried. The Defense Department has argued that they can nonetheless be imprisoned indefinitely - perhaps for life - because they're "enemy combatants."

Let's put aside the question of whether the government is legally entitled to detain enemy combatants indefinitely. How do we know that the people locked up here are in fact enemy combatants? Senior government officials seem to harbor few doubts. The Secretary of Defense has referred to the Guantánamo prisoners as "hard-core, well-trained terrorists" and "among the most dangerous, best-trained, vicious killers on the face of the earth." Vice President Cheney has referred to them as "the worst of a very bad lot . . . devoted to killing millions of Americans."

But senior officials said similar things, remember, of the hundreds of immigrants who were detained in the United States after September 2001. None of those people were convicted of a terrorism-related offense. In fact, most were never charged with any crime at all. Notably, one of the military officials in charge of detention camps at Guantánamo recently acknowledged that many of the prisoners pose little threat and have provided little intelligence value. "Most of these guys weren't fighting. They were running," he said.

So how do we know that someone whom the government calls an "enemy combatant" is in fact an enemy combatant? Last year, the Supreme Court held in Hamdi v. Rumsfeld that the government may not detain a person as an enemy combatant unless a neutral tribunal determines - after providing due process - that the person is actually what the government says he is. After that ruling, the government contrived something called the Combatant Status Review Tribunal (CSRT) to make such determinations.

Predictably, the CSRT process does not provide anything like due process. Reversing the presumption of innocence, the tribunal starts by presuming that the prisoner is in fact an enemy combatant, and it's up to the prisoner to prove that he's not. Rebutting a presumption of guilt would be difficult in any context but it is made doubly so here because the prisoner is not given access to all of the evidence and is not provided a lawyer. The prisoner is provided something called a "personal representative," but the personal representative does not have legal training and does not (and cannot) assure confidentiality. Thus, a prisoner's conversations with his representative may be used against him - not only at the CSRT but also in any subsequent criminal proceeding.

The CSRT process has worked exactly as it was intended to. While the CSRT has reviewed the cases of some two hundred prisoners, it has ordered the release of only one. Many prisoners are now refusing to participate in the process at all.

Let me close by saying something more general about what I've seen here at Guantánamo over the last few days. Many of us hoped that the Supreme Court's decisions in Hamdi, Padilla, and Rasul would lead to the adoption of policies here at Guantánamo more consistent with the constitution and with international standards of justice. It's clear that this hasn't happened. Both the military commissions and the CSRTs are fundamentally lawless; they are proceedings designed not to provide fair process but rather to rubber stamp essentially political decisions. There is no doubt that the Supreme Court's rulings were critically important, but Guantánamo remains a legal black hole. Unfortunately, it's clear that there's a lot more work to do.

We have just come back from the Clipper Club, which is the only restaurant on the leeward side of the Base that is open after seven o'clock. We spent most of the day on the other side of the Base, meeting with military officials and attending the commission hearings. It was a very long day. We missed the last ferry and had to come back to the Combined Bachelor's Quarters (CBQ) on a gunboat (something like John Kerry's swift boat, I'm told) and we didn't get back here until well after nine.

The commission building is on a grassy hill at what I think may be the Base's highest point, with a sweeping view over Guantánamo Bay and the windward side of the Base. There are several checkpoints you need to go through in order to get to the building; soldiers with machine guns check your ID, sift through your papers, and test your bags for explosives. When you finally get into the building, you're led into a room that holds about 60 people. As in most courtrooms in the United States, there is a railing that divides the participants from the audience.

Today, the participants included three lawyers each from the prosecution and the defense, and the three-person military commission. David Hicks, well groomed and dressed in a suit, sat with the defense. I sat in the back with representatives of other legal and human rights groups, several journalists, commission staff, a dozen military officials, and a handful of people from the Justice Department and FBI.

The hearing itself was both fascinating and disturbing. The defense, led by Major Michael "Dan" Mori (the "detailed counsel," or appointed military counsel) and Josh Dratel (Hicks's civilian counsel) argued several motions having to do with the commission's jurisdiction, the selection of panel members, and the participation of expert witnesses. I know Josh because we worked together a couple of years ago on litigation before the Foreign Intelligence Surveillance Court of Review, but before today I had never heard him argue in court. I thought he was extraordinarily articulate and well prepared. Dan Mori was also very good. Unfortunately, it's already clear that the defense team has an unusually difficult job, because many of the commission's rules are skewed in favor of the prosecution. (ACLU Executive Director Anthony Romero discussed some of these rules in the dispatches he filed from Guantánamo back in August.) Another reason that the defense's job is unusually difficult is that, astoundingly, only one of the three commission panelists is a lawyer.

I don't have time to write about all of the motions that were considered today, but let me mention one that led to a particularly interesting argument. One of the charges against Mr. Hicks is that he was an "unprivileged belligerent" who attempted to murder U.S. forces in Afghanistan. The defense argued today that the commission doesn't have jurisdiction to consider the charge because the charge doesn't allege a violation of the law of war. The defense argued, persuasively, that with a couple of exceptions the law of war protects only "privileged" persons -- a category that includes civilians but not belligerents. Because Mr. Hicks is not accused of having sought to murder a privileged person, the defense argued, he is not accused of having violated the law of war and the commission doesn't have jurisdiction to consider the charge.

It wasn't clear to me that the two non-lawyers on the panel -- Cols. Christopher Bogdan and Jack Sparks -- fully understood the argument. Col. Bogdan, at least, seemed focused not on the legal status of the U.S. soldiers in Afghanistan but on the legal status of Mr. Hicks. It seemed that, in Col. Bogdan's understanding, Mr. Hicks had violated the law of war simply by virtue of having been an unprivileged belligerent. The defense pressed its point, but with uncertain success. At the close of argument, Dan Mori asked Col. Bogdan whether his questions had been answered. Bogdan just grimaced and said, "maybe."