ACLU staff attorney Jamil Dakwar writes his observations about the hearings taking place at the Guantánamo Bay Naval Base. The hearings are part of the new system of military commissions set up by President Bush.

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11-08-04 — GUANTÁNAMO BAY, CUBA

Dear member of the ACLU family:

Today was an exceptionally dramatic day at the U.S. naval base in Guantánamo. The Military Commission abruptly halted its session about 40 minutes into pre-trial arguments in the case of Mr. Salem Hamdan, who was charged in July 2004 with conspiracy to commit terrorism. Everyone in the Commission’s hall was stunned when the presiding judge, Colonel Peter Brownback III, after briefly adjourning the hearing, returned seven minutes later to announce that the proceeding would go into recess “”indefinitely.””

No one attending the hearings expected such a dramatic development. The commission was expected to hear oral arguments in more than dozens of motions that were submitted by the defense. These motions challenge the legality, composition and the competence of the Military Commission under United States and international law.

We had started out the day curious to assess the quality of translation, particularly after the poor translation in the opening sessions of the Commission back in August (see Anthony Romero’s dispatches from August 2004). A new system (translation booth and equipment) had recently been installed and new translators were present at today’s hearing. However the length of the proceedings was too short to allow a full assessment of the quality of the translation. (Editor’s note: Dakwar is fluent in Arabic.)

Hamdan, who appeared before the Commission in a traditional Yemeni dress and a jacket that was sent to him by his family, seemed to have lost weight since he was detained in Guantánamo. His lawyer explained to him what had happened as a result of this latest development: that he would no longer be held in solitary confinement (after more than 10 months) and that he would be transferred to Camp Delta where he will be held with other detainees.

A few minutes after the Commission panel rushed out of the hall, Neal Katyal, a Georgetown Law School professor who is the civilian defense lawyer co-representing Hamdan, approached the few reporters who were attending the hearing and told them that apparently the District Court in Washington had ordered a stop the Commission’s proceedings. The court had accepted in part Hamdan’s petition for a writ of habeas corpus that was argued on October 25 of this year. In that petition, Hamdan’s attorneys challenged the lawfulness of the trial before the Military Commission rather than before a court-martial convened under the Uniform Code of Military Justice. (The ruling is online at /node/35475.)

My first reaction to the halt of the Military Commission proceedings by the federal court was that this is the real judicial review in play. After reading the whole decision, a sense of relief and satisfaction captured all of us (observers on behalf of ACLU, Amnesty, Human Rights Watch and Human Rights First). We felt that this decision was long overdue and is a victory to the rule of law, international law and particularly to the Geneva Conventions, which have been sidelined and undermined by the U.S. government. Although the decision was given only in Hamdan’s case by the District Court in Washington (and will likely be subject to an appeal), its practical ramifications should go beyond this individual case to encompass and expose the travesty of the whole situation here in Guantánamo.

Shortly after the session was adjourned, we were escorted to the media center located in the Guantánamo Bay auditorium where press briefings take place. We were anxious to read the full decision and finally after an hour got copies of the 45-page ruling of Judge James Robertson of the District Court in Washington.

Judge Robertson ordered that until a competent tribunal determines that Hamdan is not entitled to the protections afforded to prisoners of war under the third Geneva Convention relative to the treatment of prisoners of war, Military Commission may not try him for the offenses with which he is charged. The judge noted that the Combatant Status Review Tribunal (CSRT) was not established to address detainees’ status under the Geneva Conventions; it was established to comply with the Supreme Court’s ruling in Hamdi. The judge also stated “”the President is not a ‘tribunal.'”” Under international law a “competent tribunal” need not be a judicial tribunal and may not be required to guarantee the full gamut of rights accorded to an individual before a criminal court of law, however the core due process rights recognized as customary in international humanitarian law should be guaranteed. Judge Robertson also held that the military commission rules violate domestic statutory law because they allow Hamdan to be excluded from hearings and denied access to evidence.

This week there will be no more military commission sessions. It is unclear when and if the Military Commission will resume its hearings. In the meantime, the Combatant Status Review Tribunal (CSRT) continues to hear Guantánamo detainees who appear before it without legal representation and with serious due process deficiencies. While journalists are allowed to attend CSRT’s hearings, human rights observers are still not allowed to attend them — with one single exception, when a representative of Human Rights First was allowed to attend a hearing last Thursday. So far, some 320 of the 550 detainees have appeared before the tribunals, and 104 final judgments were made. Of that group, 103 were found to have been properly deemed unlawful enemy combatants and properly imprisoned; only one detainee was released.

Jamil Dakwar
ACLU Staff Attorney

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