Gitmo in Disarray, But Pentagon Moves Full Speed Ahead with Military Commissions

Like alcoholics queuing up drinks at closing time, the Bush administration is pressing charges against prisoners at Guantánamo at a frantic rate, anxious to be seen to be validating the chronic lawlessness of the last seven years before November's Presidential election.

At the end of last week, four more prisoners were put forward for trial by Military Commission (the show trials conceived by Dick Cheney in November 2001), bringing to 20 the total number charged -- although one of the 20, David Hicks, opted for a plea bargain last year so that he could return home to Australia, and another, Mohammed al-Qahtani, had his charges dropped last month, when, it appears, the authorities realized that his torture in Guantánamo was far too publicly available to risk it being brought forward as evidence in a trial.

None of the cases has yet come to trial, as the business of arraignments and pre-trial hearings has been so time-consuming and fraught with problems that the fragile veneer of Congress-sanctioned legitimacy that cloaks the Commission process has been threatened on more than one occasion; in particular, last June, when Col. Peter Brownback and Capt. Keith Allred, the judges in the first two cases following that of David Hicks -- of the Canadian Omar Khadr and the Yemeni Salim Hamdan -- shut down the whole process after they realized that the Military Commissions Act (the legislation that had revived the Commissions after the Supreme Court had ruled the whole process illegal in June 2006) had only authorized them to try "unlawful enemy combatants," whereas the tribunal process at Guantánamo, which, according to the terms of the MCA, had made them eligible for trial by Military Commission in the first place, had only found them to be "enemy combatants."

Although this disruption was dealt with when the administration cobbled together an appeal court to dismiss the judges' concerns, both Col. Brownback and Capt. Allred have since demonstrated that, although the Commissions themselves may be nothing more than show trials ("We can't have acquittals," was how the Department of Defense's chief counsel William J. Haynes II, put it), the judges themselves were not prepared to be either ciphers or puppets, and were determined, instead, to do what judges are supposed to do, which is to assess the proceedings and the cases impartially.

Capt. Allred has featured more prominently in the media of late -- first by endorsing former chief prosecutor Col. Morris Davis' complaints about the unacceptable politicization of the Commissions process (complete with Haynes' "no acquittals" comments, and Col. Davis' disdain for the administration's insistence on introducing evidence obtained through torture), and then by delaying the start of Salim Hamdan's trial to allow time for the Supreme Court to deliver a long-awaited ruling on the prisoners' rights.

However, Col. Brownback also weighed in recently, threatening to delay the start of Omar Khadr's trial because of what he perceived as delaying tactics on the part of the prosecution (led by Maj. Jeffrey Groharing), who, he said, had failed to provide Khadr's lawyers with records of his interrogations at Guantánamo, despite repeated requests to do so. "I have been badgered, beaten and bruised by Maj. Groharing since the 7th of November to set a trial date," Col. Brownback exclaimed. "To get a trial date, I need to get discovery done."

While it's possible that Col. Brownback's sudden removal last Thursday as the judge in Omar Khadr's case can be explained because he had actually come out of retirement to serve as a Commission judge, and had reached the end of his required involvement, the timing has struck many observers -- myself included -- as more than a little suspicious, especially as the administration has refused to elaborate on the reasons for Col. Brownback's departure -- or dismissal. It remains to be seen whether any comment will eventually be forthcoming from Col. Brownback himself, or, indeed, whether his replacement, Col. Patrick Parrish, will be more inclined to do his job without raising uncomfortable questions along the way.