(Originally posted on Daily Kos.)

Yesterday, I observed proceedings in the case of Ibrahim Ahmed Mahmoud al-Qosi, a Sudanese man who has been detained at Guantánamo for nearly eight years, and one of the detainees Attorney General Holder has decided to prosecute in the military commissions rather than in federal court. In February of 2008, al-Qosi was charged with conspiring with Osama bin Laden and al Qaeda and providing material support for terrorism. Those of us who came to Guantánamo to observe the proceeding in al-Qosi's case walked into court thinking that these charges formed the basis for the government's prosecution.

But nothing having to do with the military commissions ever goes according to plan.

The judge, Lt. Col. Nancy Paul, commenced today's proceeding by informing everyone that there had been a "slight" revision to the schedule. After meeting with counsel in a closed-door conference prior to the hearing, she had decided that in addition to hearing oral argument on the four defense motions that had been briefed long ago and were scheduled to be heard that day, the court would hear oral argument on a last-minute motion by the government to amend the charges against al-Qosi.

Apparently, the government had provided notice two days before Thanksgiving that it would move to amend the charges against al-Qosi to conform to the Military Commissions Act of 2009. The public didn't know of the motion because the government's notice was never entered on the military commission's public docket, not an unusual occurrence in this secrecy-shrouded system of justice.

It was not entirely surprising that the prosecution wanted to amend the charges against al-Qosi. In October, President Obama signed into law the Military Commissions Act of 2009, a.k.a. Military Commissions 3.0. The new act was meant to remedy the due process deficiencies of versions 1.0 and 2.0 — and it did make some progress towards this end, eliminating the government's authority to use statements obtained using cruel, inhuman or degrading interrogation methods, placing on the government the burden to prove the reliability of hearsay, and providing detainees greater latitude in selecting their attorneys. These are notable improvements.

But the tribunals still fall far short of comporting with the Constitution and the Geneva Conventions. As the New York Times revealed earlier this week, they remain unfair and ineffective—a second-class system of justice. The commission's handling of the government's motion to amend the charges against al-Qosi provides a case in point.

In an ordinary criminal prosecution in federal court, the indictment is the foundational document. It tells the defendant what he's been accused of, and why, so that he can adequately prepare his defense. If the government seeks to amend the charge against an accused, the defense is entitled to notice and opportunity to be heard.

In al-Qosi's military commission case, however, the government showed its proposed amendments to the defense—which were three pages long—less than two hours before today's hearing.

The prosecution sought to make three amendments to the charge sheet. The first sought to accuse al-Qosi of being an "unprivileged enemy belligerent," rather than an "unlawful enemy combatant." This proposed amendment was not unexpected, because the MCA of 2009 grants the military commissions jurisdiction to try the former, but not the latter group, in an effort to bring the commissions in line with international humanitarian law.

The second and third proposed amendments were more troubling. The government sought to replace the nine overt acts alleged in support of its conspiracy charge with 12 new overt acts. (I have no idea what those new overt acts are since the government presented its proposed amendments only to the court and defense counsel less than two hours before the hearing. Let's hear it for transparency!) It also sought to expand the time frame of the conspiracy and material support charges to encompass alleged acts that took place between 1992-2001—reaching back four years earlier than the time frame specified in the February 2008 charge sheet. The government seemed to be using the opportunity to amend the charge sheet to reflect the new jurisdictional basis of the MCA of 2009 to significantly shift the nature and scope of the charges against al-Qosi.

Al-Qosi's attorney, Cmdr. Suzanne Lachelier, protested that the defense needed time to brief its opposition to the government's motion, but Judge Paul was firm: "I am going to deal with this issue before we leave the island."

Why would a judge ask the defense to argue its opposition to a motion to amend the charge less than two hours after seeing the proposed amendments? Doesn't due process require the defense the opportunity to prepare a meaningful response?

Apparently, even in Military Commissions 3.0, "due process" and "military commissions" don't sit entirely well with each other. Cmdr. Lachelier nevertheless put forth an articulate, if brief, challenge on the ground that the amendments did not simply conform the charges against al-Qosi to the new MCA of 2009, but actually constituted major changes of which the defense should have been notified in advance and given an opportunity to respond.

While Judge Paul should have required that the defense be given a meaningful opportunity to be heard, the problems with the military commissions can't be attributed solely to the decisions of individual judges. One revealing incident took place towards the end of the argument relating to the prosecution's proposed amendments to the charge sheet.

In response to prosecutor Cmdr. Dirk Padget's insistence that the amendment of the overt acts supporting the conspiracy charge was required to preserve the court's jurisdiction over al-Qosi in light of the passage of the MCA of 2009, Judge Paul asked, quite reasonably, for case law or legislative history in support of the government's position.

Cmdr. Padget responded, "No, Judge. I have no support. Um, I am, uh, flummoxed with these commissions. We are breaking new ground. Of course, you know, we have no case law."

After a seven-year experiment with the military commissions, we are still left with a system in which the players simply don't know the rules. And in most cases, the reason they don't know the rules is that there simply aren't any or because they keep changing. The commissions still lack the established rules, procedures, and case law that are necessary to guide judges in their rulings and the parties in their arguments, and to provide due process to the accused. In an attempt to bring some semblance of order to the proceedings, Judge Paul declared that she would apply rules that were issued under the last iteration of the military commissions — rules that were issued before the MCA of 2009 became law. But even those regulations have barely been tested, and they certainly don't supply the kind of solid foundation that would be available to a judge, the prosecution, and the defendant in an ordinary federal court. And if the new commissions are so different than the old ones, why should the old rules apply at all? And what if the application of the old rules in the prosecution against al-Qosi under a new and reformed statute authorizing the Military Commissions are prejudiced against the defendant?

The charges against al-Qosi underscore even more fundamental flaws in the military commissions system. Those who claim that the military commissions are legitimate argue that similar commissions have been used in our nation's history to prosecute war crimes. Yet the government has charged al-Qosi with only two crimes—conspiracy and material support for terrorism—and neither of these has traditionally been considered a war crime.

At the end of the hearing, Judge Paul said she would rule on the government's motion to amend on Thursday morning.

Regardless of how the judge rules, today's proceedings inspired anything but confidence in the ability of the military commissions to give al-Qosi — or any detainee — a fair trial and speedy trial.

The events at today's hearing suggest distrust and suspicion from the handful of Guantánamo detainees who have been charged by the Bush administration toward the military commissions system. Guantánamo is a place where basic rights, like the right to effective access to counsel, which in a normal court is taken for granted, have to be fought for. Meanwhile, the U.S. government spends an enormous amount of resources constantly reinventing its skewed wheel of justice.

Ibrahim al-Qosi, a 47-year-old Sudanese man, is one of the six detainees who previously declared that he would not cooperate with his government-assigned lawyers . In doing so, al-Qosi stood up for his right to be represented by an attorney of his own choice to defend him against charges of conspiracy and providing material support to terrorism. He has refused to be represented by his detailed military defense counsel, Navy Reserve Cmdr. Suzanne Lachelier. He was adamant today about not compromising his fundamental right to counsel of his own choice and, after being held for over six years in Guantánamo, tested the system's ability to ensure it.

The lack of trust the detainees have towards the military commissions is not surprising. The U.S. government has isolated Al-Qosi and many other Guantánamo detainees from the world, denied them access to courts, and in many cases tortured and abused detainees. The underlying problem is that the military commissions were created to secure convictions, not to deliver justice as Americans and the world traditionally understands it. And it's not just critics from the outside who recognize this: a military commissions judge, in the case of Salim Hamdan , found this month that the system is subject to unlawful political influence. It also permits coerced confessions that may have been extracted by torture and secret evidence that a defendant does not have the effective ability to refute. The systemic flaws in the military commissions process have been recognized by no other than the former chief prosecutor at Guantánamo, Col. Moe Davis , who resigned in protest of unlawful command influence from his superiors at the Pentagon. Even Secretary of Defense Robert Gates told a congressional sub-committee last year that the military commissions are tainted and lack international credibility.

Despite his statement last month that he would boycott his military commission and refuse to participate in future hearings, al-Qosi attended today and found the military judge, Air Force Col. Nancy Paul, willing to hear his attempts to enforce his rights. At the start of his hearing, al-Qosi asked to be allowed to phone home, for the first time in over six years. He asked to directly contact his family in Khartoum, Sudan, so they could help him find a civilian lawyer he could trust. Once again, in a normal criminal justice process, access to family members and legal counsel is supposed to be made as promptly as possible and is considered a fundamental human right. But, Guantánamo, in Carl Schmitt's words, is a "state of exception" where the executive branch sees itself as exempt from the legal restraints to its power that would normally apply.

A decision whether to grant the call has yet to be made, but the military's Public Affairs Office (PAO) mistakenly told the press otherwise. The PAO told reporters that the request was granted, and that al-Qosi called home Thursday night. Press reports on yesterday's hearing ran last night, and it wasn't until this morning that the truth surfaced. The U.S. government should allow al-Qosi to call home via the Red Cross or the Sudanese mission sooner rather than later.

According to the rules of the military commissions, a defendant has the right to a qualified military defense lawyer free of charge and also the right to civilian counsel, but on his own expense. Al-Qosi told the judge that, having spent the last six years in detention, he could not make an informed decision on his own about choosing a civilian lawyer and needed to consult with his family and the Sudanese Bar. The problem is that communication from prisoners to their families and vice-versa may only be facilitated through the International Committee of the Red Cross or through the prisoner's foreign embassy and the State Department. The question on Thursday was, who would contact these entities? This question was made more complicated because al-Qosi is imprisoned and has refused representation from any government appointed lawyer. Judge Paul, pushing the system’s limitations, ordered the government to do whatever is necessary to facilitate contact between al-Qosi and his family.

Al-Qosi's decision to end his boycott of the proceedings reportedly came after a delegation from the Sudanese embassy in Washington visited him. This meeting occurred shortly after his first military commission appearance last month. The Sudanese diplomats were at Guantánamo to arrange the release of three other detainees from Sudan, including Al Jazeera TV network cameraman Sami al-Haj. According to al-Qosi, the Sudanese diplomats told him to appear before the military commission in order to request permission to contact his family so that they could arrange civilian legal representation for him.

Al-Qosi's next hearing will be on July 23. In the meantime, he agreed to allow his detailed military lawyer to contact the Red Cross to facilitate this call. It remains to be seen if he will ever actually get to call home.

The road to a trial is difficult in some cases partly because they involve potential death penalties and claims of torture by interrogators, issues that raise thorny legal questions that could take months or longer to sort out. But even comparatively simple cases without capital penalty issues are proceeding slowly.

Guantanamo military defense lawyers have long said they are not given resources by the Pentagon to match the investigative capability of the military prosecution, which draws on the Federal Bureau of Investigation, Central Intelligence Agency and other agencies. Until a handful of new military lawyers were appointed this week to represent Sept. 11 defendants, the military defense office was sharply outnumbered, with 15 defense lawyers to battle 31 prosecutors.

The advisers were members of the National Security Council's Principals Committee, a select group of senior officials who met frequently to advise President Bush on issues of national security policy.

At the time, the Principals Committee included Vice President Cheney, former National Security Advisor Condoleezza Rice, Defense Secretary Donald Rumsfeld and Secretary of State Colin Powell, as well as CIA Director George Tenet and Attorney General John Ashcroft.