Meanwhile, at Guantánamo, Another Insignificant Afghan Charged

The Military Commissions at Guantánamo -- the trial system for "War on Terror" prisoners that was established in the wake of the 9/11 attacks -- are of enormous significance, as they are the only point at which the Bush administration's post-9/11 detention policies (focused, for the most part, on a disturbing legal limbo between the Geneva Conventions and the U.S. court system, in which prisoners are held indefinitely without charge or trial) are tested in public.

In my book, The Guantánamo Files, I looked in detail at the first incarnation of the Commissions, which was struck down in June 2006 when the U.S. Supreme Court ruled that the entire system was illegal, and its unholy resuscitation, in the fall of 2006, when U.S. politicians of all political hues largely demonstrated their spinelessness or their disregard for justice by passing the Military Commissions Act (MCA). This hideously flawed piece of legislation not only revived the Commissions and gave the President seemingly unlimited powers to seize and indefinitely detain anyone he regards as a "terror suspects" (including U.S. citizens), but also stripped the Guantánamo prisoners of their habeas corpus rights (their 800-year old right to ask why they were being held), which the Supreme Court had granted them in June 2004.

While the Supreme Court struck down the MCA's habeas-stripping provisions in another landmark case in June this year, the executive's unlimited power to detain "terror suspects" at will has not been seriously challenged (and was, indeed, endorsed by the Fourth Circuit Court of Appeals in July, in the case of U.S. resident Ali al-Marri), and the revived Military Commissions have also been allowed to pursue their wayward trajectory without facing a serious legal challenge.

The result, as I have been reporting since last June, is a dysfunctional soap opera that will one day, I'm sure, be regarded as one of the bleakest periods of modern American history. In this saga of novel and ill-defined laws, in which military judges appointed by the government have struggled, for the most part, to fulfil their judicial obligations with honor, serious challenges to the system have been mounted on one occasion by the judges themselves, throughout the entire process by the prisoners' own government-appointed military defense lawyers, and, since last fall, by Col. Morris Davis, the Commissions' former chief prosecutor. Col. Davis resigned after complaining that the process had been politicized, and that his superiors not only endorsed the use of evidence obtained through torture, but also believed that the system should operate without including the option of acquittals.

After the Commissions' first limited success last March, when the Australian prisoner David Hicks accepted a plea bargain, admitting to material support for terrorism in exchange for dropping his complaints of torture by U.S. forces and receiving a short sentence to be served in his homeland, the system has stumbled from one disaster to another, as an almost random mixture of, at best, peripheral figures in the Afghan conflict have been put forward for trial alongside a handful of al-Qaeda operatives alleged to have been involved in the 9/11 attacks, the African embassy bombings of 1998, and the attack on the USS Cole in 2000. Allegations of torture have plagued almost all of these cases, and in others attention has also focused on the prisoners' age: two, Omar Khadr and Mohamed Jawad, were under 18 when captured, and should, according to the United States' international obligations, be rehabilitated rather then punished.

The only other case to advance to trial -- that of Salim Hamdan, a driver for Osama bin Laden, whose trial ended just five weeks ago -- also failed to provide the administration with the justification it sought for creating a brand-new "terror court" after 9/11. After a two-week trial, the military jury failed to be swayed by the government's arguments that Hamdan was guilty of conspiracy, and should received a 30-year sentence, and decided instead that, although he was guilty of providing material support for terrorism, the appropriate sentence was just five and a half years. Allowing for time served since he was first charged, this means that Hamdan will be eligible for release in December.