August 22, 2004

This will not read like an authoritative ACLU report on the Guantanamo Military Commissions; we hope to provide that later.

I’m dictating this weblog to give our ACLU colleagues and all of you a sense of what this black box known as Guantanamo is like.

I arrived yesterday on a commercial charter plane from Fort Lauderdale. When my colleague from Amnesty International and I stepped off the plane, there was some confusion as to where we were supposed to be going. Finally, after being assigned a roommate (I’m bunking with another colleague from Human Rights Watch), we got dinner at the Officers’ Club.

Without a specific itinerary planned for the Non-Governmental Organization (NGO) participants, we simply tagged along with the media contingent of more than 53 different reporters. They ran the gamut from broadcast, print and wire services, including ABC, the Associated Press, the New York Times, CBS, Washington Post, Miami Herald and many others.

Beginning the day at 6 A.M., we almost got breakfast, but after piling into the bus and then piling into the mess hall, the cooks didn’t show up. So we all got back on the bus and various industrious reporters began to make pots of coffee in the lobby of the Combined Bachelors Quarters (CBQ), which is where we’re staying. Please don’t tell my partner that that’s what it’s known as.

After that, we started on the round of briefings regarding the Military Commissions, the [Enemy] Combatant Status Review tribunals and the facility where the commissions will be held this week. I expect to be in the actual commission room even though most members of the media will be observing in a different building through closed-circuit television (only a small delegation of media is allowed each day in the room where the proceedings are taking place). I’ll report back when I’ve actually observed the commissions and the tribunals.

But, let me give you a quick read of what I’ve learned today.

As to the commissions, we expect we will observe preliminary hearings for four of the accused. The Military Commissions panel will be comprised of five members, presided over by Col. Peter Brownback III, an Army lawyer and the only attorney among the five. We don’t expect to see any witnesses but we do expect the accused to be present in the commission room. In these preliminary proceedings they will read the charges against the accused (i.e. like an arraignment). They will explain the process to the accused and they will conduct voir dire of the commission members to ensure that they can sit on the commission.

As you know, we have raised serious concerns about how these commissions will proceed: the lack of an independent review outside the military chain of command, the expected use of secret evidence and the difficulties incurred by the defense counsel representing their clients. I don’t expect that anything we’ll see this week will fundamentally alter our criticism on these three major points.

We also learned a great deal more about the Combatant Status Review tribunals. Thirty-one tribunals have been completed thus far. Nineteen of the accused have decided to participate, whereas 12 refused to participate. Twenty-three determinations have been sent to Washington, D.C. for review, of which 14 have been validated as “enemy combatants.” Of the 14, only one witness has appeared in these tribunals and none of the 14 have yet been informed of the validation of their designation as enemy combatants.

For the accused who do participate, the proceeding normally takes under two hours: one hour for the unclassified portion and one hour for the classified portion. For those who choose not to participate, the entire Combatant Status Review takes approximately one hour. There are 585 men held here in Guantanamo and there are 177 open Combatant Status Review tribunals.

Two themes have come out of this first day of briefings. One is the ambivalence that the military has toward NGO participants and even the broader media. They want to give us access, but not too much access. They want to be transparent, but the transparency can’t go too far. For instance, tomorrow, members of the media will travel to Camp Delta, but unfortunately the NGO participants were told that we cannot attend that tour, even though we have been given full security clearance to sit in the commission room on Tuesday.

The second theme is that there is a great desire to show how the commissions and the tribunals are fair and just, and how they mirror the American system of justice. But yet, when you compare the rules for both the commissions and the tribunals, you find serious departures from either military justice proceedings or regular criminal proceedings. For instance, under the Combatant Status Review tribunals, which are “administrative” we were told, each detainee is assigned a personal representative who is not a legal representative and whose conversations with the detainee are not confidential in any way. In fact, this personal representative is able to provide both exculpatory and inculpatory evidence that he gleans in his “personal representation” of the detainee.

As to how this all plays out, I hope to be able to tell you more in coming days. As I said to one of the reporters today, this isn’t about the guys in the orange jumpsuits, this is about us. This is about what rules and values will guide an American system of justice that we can hold up to Americans and to the entire world. So far, I have no comfort to give on that front and I doubt that much will change by the end of the week.

I’ll keep you posted and talk to you tomorrow. Please send suggestions for what you’d like me to report on in coming days at gitmo@aclu.org. Let me know what’s on your mind.