American military commissions system still on trial

The NY Times has an article reminding us that even after Salim Hamdan's conviction, the system is still on trial. Are the trials legitimate, are they sufficiently open, do they satisfy due process? Will the Bush administration, or its successor, try to keep the detainees there even after they complete their sentences?

Bush administration has long asserted that detainees at Guantánamo, even those who complete war crimes sentences or are acquitted, are enemy combatants who can be held indefinitely.

A Pentagon spokesman, Cmdr. Jeffrey D. Gordon, pointedly declined to make any promises after the short sentence, which surprised the military prosecutors. The morning of the verdict they had been pressing for at least 30 years, and they argued that a life sentence would have sent the right message to terrorists.

Commander Gordon said he “would not want to speculate” about whether Mr. Hamdan would be released at the end of his sentence, adding, “I can reassure you that the Defense Department is hard at work on this issue.” On Saturday, he said no decision had been made.

After the trial, the comments by the participants were argumentative, a new reminder of Guantánamo’s enduring divisiveness and a sign that the final verdict on the military commission system is likely to take a while.

The prosecutors had a victory that had the trappings of defeat, as Mr. Hamdan was acquitted on a conspiracy charge. They acknowledged disappointment. But they kept repeating that they had, after all, won.

“I really think it is a vindication for the system,” said one of them, John Murphy.

The defense lawyers had the opposite challenge. Their defeat in a conviction looked like a victory because Mr. Hamdan had a new chance at life. They kept insisting that the system was as deeply flawed as they had been saying all along.

“This case is not a vindication of the military commission system,” said the chief military defense lawyer for Guantánamo, Col. Steven David. “Quite the contrary.”

It was quintessential Guantánamo, where things are rarely what they seem. The Pentagon’s spokesmen, for example, repeat like a mantra that the detention camp delivers “safe and humane” care. But military investigators have documented a history that includes treatment of one detainee who was isolated, deprived of sleep and forced to perform dog tricks.

Another military mantra is that the tribunal is open and transparent. But no one can go to this remote naval station to attend the sessions without military orders. At the tribunal itself, where many seats are empty, journalists are accompanied at all times by military escorts, who stand guard even outside the latrine.

So it was in keeping with the contradictions of Guantánamo that the Hamdan trial in many ways looked like an American trial and in many ways did not.

There were secret filings. There were closed sessions. There were unexplained mysteries. After a session was cut short because a participant was said to be ill, a military spokeswoman said it was not Mr. Hamdan. The next day, a different spokeswoman disclosed that it had indeed been Mr. Hamdan, who had, she said, been seen at a hospital for flulike symptoms.

There were unknowns. A Pentagon official, Susan J. Crawford, has broad power over the entire tribunal process, including naming the military officers eligible to hear the case. Her title, convening authority, has no civilian equivalent. Her decisions to grant or deny financing for items like the defense’s expert witness fees or defense lawyers’ transportation were not explained during the trial. She has never granted an interview to a reporter.

The defense was permitted to call witnesses. But, the defense lawyers said, remoteness and lack of cooperation from the government meant that was sometimes impossible. One witness who might have been powerful in the courtroom, Mr. Hamdan’s wife, could not make it to the trial. She appeared instead in a muffled videotape.

So much was new at the trial that the proceeding at times seemed like some kind of space exploration. After the military judge, Capt. Keith J. Allred of the Navy, told the panel he was considering a weekend session, he had to tell its members he had been informed that was not possible. “It’s not as easy as a court-martial back home,” he said.

The few familiar guideposts included the battle over Guantánamo itself.

Before the trial, Mr. Hamdan’s lawyers claimed that he had been mistreated by long stretches in solitary confinement. A spokeswoman, Cmdr. Pauline Storum, responded at the time that that was not possible because there were no solitary confinement cells in Guantánamo, only “single-occupancy cells.”

After the verdict, one of Mr. Hamdan’s lawyers, Charles D. Swift, said Mr. Hamdan was moved the night after the verdict into a cell by himself in a prison wing with no other prisoners.

One of the prosecutors had a familiar response that suggested that even after a historic war crimes verdict at Guantánamo, the more things change, the more they stay the same.

The prosecutor, Lt. Cmdr. Timothy D. Stone, said Mr. Hamdan could not be in solitary confinement. “There are no solitary confinement cells on Guantánamo,” he said.