Military Commissions in Context as Guantanamo Enters Its Fifth Year

by Priti PatelPriti Patel is an attorney at Human Rights First focusing on U.S. detention practices and the impact of these practices on human rights and civil liberties.

As the United States enters its fifth year of detention operations at the U.S. Naval Base at Guantanamo Bay, Cuba, Guantanamo has become a leading symbol of a badly tarnished U.S. human rights reputation around the world.#160; In just the past month, a number of UNSpecial Rapporteurs have called for the closing of detention operations at the base; the U.S. Government hasacknowledged the sometimes violent force feeding of hunger striking detainees protesting basic conditions and treatment at the facility; and a recentanalysis of official data on Guantanamo detainees showed only 8% of those held were considered by the United States to be al Qaeda fighters.

It is amidst these increasingly urgent international objections that much criticized military commission trials resume for three Guantanamo detainees this week.#160; While the focus in the coming days will be in some respects on the details of pretrial hearings - evaluating the impartiality of the presiding officer and the suitability of defense representation - commissioners, counsel and staff must operate in the face of four years worth of indefinite detentions, cruel treatment and abuse.#160; The trials, once underway, will become a central venue for challenging human rights violations the detainees will contend, with substantial evidence, have made justice impossible at Guantanamo Bay.#160;#160;#160;#160;#160; #160;

The three men facing pretrial hearings this week - Sufiyan Barhoumi, Ghassan Abdullah al Sharbi, and Ali Hamza Ahmed Suleiman al Bahlul - are charged with conspiring with members and associates of Al Qaeda to attack civilian and civilian objects, commit murder, destroy property, and commit acts of terrorism. Very little else is known about the men apart from what the government accuses them of doing.#160; At least two of them were not picked up in the heat of battle, or even in Afghanistan.#160; Al Sharbi and Barhoumi were seized in Pakistan months after the bombings in Afghanistan began.#160; In this respect, they are representative of the vast majority of Guantanamo detainees, described in a recent report analyzing government data as including only 5% directly captured by the United States. The majority of those now in custody were turned over by other parties during a time when the United States was offering large sums for captured prisoners.

In other respects, the accusations against al Sharbi and Barhoumi are similar to those levied against U.S. citizen "enemy combatant" JosePadilla, who was seized at Chicago's O'Hare airport in May 2002, and held for over three years in military custody until recently when the government returned him to civilian custody and charged him in U.S. federal court.#160; Yet while Padilla now ostensibly has the right to counsel of his choice, to know all the evidence against him, to have confidential communications with his attorney, and to appeal to an independent civilian court - these three "enemycombatant" detainees still do not.

Indeed, military commission rules leave open the significant chance that information obtained under torture (either from detainees at Guantanamo or those held elsewhereoverseas) could be used against defendants in the proceedings.Accordingto their charge sheets, both al Sharbi and Barhoumi were seized with Abu Zubaydah, who is believed to be held by the United States at an undisclosed location and who reportedly has been tortured while in custody; it seems likely that some of the evidence to be used against al Sharbi and Barhoumi will come from interrogations of Abu Zubaydah.#160; For centuries, the United States has roundlyrejected the use of confessions or other evidence extracted under torture in a judicial proceeding, finding in case after case that the use of such evidence violates constitutional and other fundamental rights. #160;In the military commissions, however, the question is now open again.

In the meantime, the Supreme Court sits poised to hear the case of Salim Ahmed Hamdan, who has also been charged before the military commissions.#160; Before the Supreme Court is the question whether the recently enacted DetaineeTreatment Act of 2005 (also called the Graham-Levin-Kyl Amedment), which amends the habeas statute that has been invoked by Guantanamo detainees in challenging the legality of their detention, deprives the Supreme Court of jurisdiction to hear Hamdan's case, or the cases of any of those now facing military commission trials. #160;The Court will hear oral arguments in Hamdan's case at the end of March.#160;

Despite the intense focus on Guantanamo, the reality remains that commission defendants represent a miniscule percentage of all those held indefinitely worldwide by the United States.#160; Almost 15,000 individuals continueto be held by the United States in Iraq and Afghanistan, and an unknown number of individuals languish in U.S.-run secret locations throughout the world.#160; These detainees remain outside of any independent legal process, even one as heavily flawed as the military commissions. Commission trials are a key testing ground, but will provide at best only a partial answer to the question whether U.S.-held detainees in the "war on terror" will be treated according to the rule of law.