The Beginning of the End or the End of the Beginning?

Today’s hearing was perhaps the shortest of the military commission proceedings since they started in August 2004. Mr. Abdul Zahir (pronounced Thaher), a 34-year-old native of Hasarak, Afghanistan, and father of three sons, appeared for less than five minutes before the presiding officer, Marine Col. Robert Chester. After receiving “satisfying answers” from the detaining authorities in Guantánamo, Mr. Abdul Zahir’s military defense attorney, Army Lt. Col. Thomas Bogar, withdrew a motion he had filed to protest Mr. Abdul Zahir’s conditions of confinement.

Lt. Col. Bogar explained after the adjournment that he was trying to improve Mr. Abdul’s Zahir’s conditions of confinement which worsened as a result of his transfer last march from camp 4 to camp 5. For Mr. Abdul Zahir, the transfer to camp 5 meant being held in a single cell in an austere steel and cement block facility that houses all 10 Guantánamo detainees who face charges before military commissions. In camp 4, Mr. Abdul Zahir enjoyed less restrictive conditions and shared a communal facility with other detainees from Afghanistan. Unlike some of the detainees in camp 5, Mr. Abdul Zahir has not threatened to boycott the proceedings and, according to his lawyer, he is still keen to cooperate and prove his innocence before the commission. His lawyer is therefore concerned that the worsening conditions might affect the relationship with his client and ultimately the ability to prepare a proper defense before the military commission. Lt. Col. Bogar stressed that although Mr. Abdul Zahir is still not happy, they decided not to argue the motion and wait until the Supreme Court issues its decision in Hamdan v. Rumselfed.

Apparently, “Abdul Zahir” is the prisoner’s first name. This name appears on the official charge sheet and on the general list of Guantánamo detainees that was released by the Pentagon on Monday. His full name, in case someone at the military commission will bother to know, is: Abdul Zahir Abed al Kader Mohammad. But what difference does it make? He is, after all, another “enemy combatant” facing war crime charges before a military commission, that even if one day will find him not guilty, it would not guarantee his release and freedom since the President can continue to indefinitely detain him as an “enemy combatant.”

Once again, we heard today about the hurdles that impede defense attorneys’ ability to freely access and communicate with their clients and prepare their defense. Lt. Col. Bogar, who is working on Mr. Abdul Zahir’s defense alone, mentioned as an example that a letter that he sent to Mr. Abdul Zahir more than two weeks ago has not yet been handed to him. When I later asked the Military Commission Chief Prosecutor, Air Force Col. Moe Davis, about what his office is doing in this regard he said that they are now working on new operating procedures that will improve mail delivery and will improve telephone access.

Anywhere you go in Guantánamo -- and you can’t really go that far! -- the talk of the day is how the Supreme Court will decide, in less than two months, Hamdan v. Rumsfeld. While military commission officials are trying to project business as usual by scheduling three weeks of commission hearings in June and emphasizing that between 70 and 100 detainees will be charged before the military commission, you can’t escape the question: Is it the beginning of the end or the end of the beginning?

While it’s hard to predict the outcome of the Hamdan decision, one can at least hope for guidance to end the ordeal of the military commission. The Hamdan decision will also determine the future of hundreds of habeas corpus challenges filed in federal courts over the past couple of years by Guantánamo detainees challenging the legality and conditions of their detention.

The next military commission hearing is scheduled in mid June.

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