Jameel Jaffer, is the director of the ACLU's National Security Project. He will be in Guantanamo June 4 to observe the proceedings for the ACLU, one of four human rights groups allowed to monitor proceedings at Guantanamo.
Today, the military tribunals at Guantánamo Bay reconvene for the arraignments of Omar Khadr, a 20-year-old Canadian citizen who has been in U.S. custody since he was 15, and Salim Ahmed Hamdan, a Yemeni national who is accused of having served as Osama Bin Laden’s chauffeur and bodyguard. To some, the re-initiation of the tribunals will look like a victory in the long-running effort to bring Guantánamo under the rule of law. Having monitored the fits and starts of the tribunal process for several years now, I am not nearly so optimistic.
More than five years have passed since President Bush authorized the military tribunals at Guantánamo Bay, but it’s possible that Khadr will turn out to be the first prisoner actually tried in this system. This is in part because the Defense Department did not charge any of the detainees held at Guantánamo Bay until June of 2004. Then some of the detainees who had been charged contested the lawfulness of the proceedings, and the tribunals were put on hold while the Supreme Court considered the detainees’ case. In 2006, the Supreme Court struck down the tribunal rules, finding that they violated the Geneva Conventions—and therefore the Uniform Code of Military Justice—because they failed to afford “all the judicial guarantees which are recognized as indispensable by civilized peoples.” Not until October 2006 did President Bush sign into law the Military Commissions Act under which Khadr is now about to be tried. (The Australian David Hicks would have been the first to be tried under the new rules but his trial was averted by a last-minute plea bargain.)
Unlike the old rules, the tribunals’ new rules have been endorsed by Congress. But the rules remain deeply flawed. They permit the use of secret evidence, allow the introduction of evidence that has been extracted through cruel, inhuman or degrading treatment, limit the right of defendants to be represented by counsel of their choosing and fail to provide any guarantee that proceedings will be completed within a reasonable time. The rules are profoundly unfair, and those who have been criticizing them have been entirely justified in doing so. The tribunals offer not justice but the illusion of justice.
But the deeper injustice of Guantánamo does not stem from the unfairness of the tribunals’ rules. Most of the prisoners at Guantánamo have not been charged and will never be brought before the tribunals at all. Some of them have been held for five years already—and there is no end in sight, because the Bush administration has claimed the authority to hold them until the “war on terror” is over. The handful of prisoners who have been charged under the Military Commissions Act will be tried, but there’s no assurance that they will be freed if acquitted. The administration contends that they can be imprisoned indefinitely whether found guilty or not.
It is this situation that is Guantánamo’s deeper injustice, and it is this situation that appears to be driving the detainees to despair. Last week, a Saudi man was found dead in his cell—the fourth detainee to have committed suicide at Guantánamo. Perhaps it is a variety of this same despair that led Omar Khadr last week to dismiss his American attorneys. Today he will appear with Canadian attorneys—if the tribunal permits these attorneys to represent him—or he will appear on his own, without counsel.
The military tribunals are important—they are the closest thing that Guantánamo has to actual courts, and it is critical, not only for the detainees but for the U.S. as well, that they be both fair and perceived as fair. But fixing Guantánamo requires more than fixing the tribunals’ rules. Hundreds of men have been held now for three, four and in some cases more than five years, and the administration insists that it has the power to hold them forever—whether or not they are charged with crimes, and whether or not they are found guilty. This is Guantánamo’s deeper injustice; in debating the fairness of the tribunals, we should not lose sight of it.