Editors' Note: This piece has been corrected.
Two weeks ago, Noor Uthman Mohammed sat in the same high-security military-commissions courtroom at Camp Justice, Guantánamo Bay, that was built to hold the trial of Khalid Sheik Mohammed and the other September 11 defendants. Clad in the white garments of a detainee who has had no recent "discipline" problems, Mohammed stroked his gray-flecked beard as the judge, Navy Cpt. Moira Modzelewski, set the next hearing for August. Mohammed's presumptive trial date is in February 2011, nearly a decade after his 2002 capture in Pakistan alongside Abu Zubaydah. Zubaydah is perhaps best known as the first detainee to be subjected to waterboarding by the Bush administration.
Mohammed is one of the lucky ones. He is, after all, among the 35 Guantánamo detainees getting a trial and not one of the 50 the administration says are "too dangerous to release" but can't be tried. His lawyers -- while frustrated with the pace of the proceedings -- are nonetheless relieved by the changes made to the military commissions.
"There are significant improvements both in terms of procedure, rights available, and rights to resources, in particular in death-penalty cases," says Mike Berrigan, principal deputy chief defense counsel for the Office of Military Commissions. "But there's a large hill to climb." The size of that hill will become apparent in the coming weeks as reporters from all over the world descend on Guantánamo for the initial hearings in the case of Canadian national Omar Khadr, who was captured in Afghanistan in 2002 at the age of 15.
Howard Ross Cabot, a civilian attorney who is a part of Mohammed's defense team, agrees. "Often times I read a lot of critical things about Guantánamo. It's not that it's great, but when you compare where we are today to where they were in 2002, 2003, 2004, we're moving ahead," Cabot says.
None of this is supposed to be happening. Barack Obama was elected having rejected the national-security policies of the Bush administration as a "false choice between security and liberty." Just days after his inauguration, Obama signed an executive order mandating that the prison at Guantánamo Bay be closed within a year. Mohammed's is the first of the new military-commission hearings to occur since that promise was broken. With the administration waffling on its original decision to try the 9-11 defendants in civilian court, the high-security courtroom where Mohammed's hearing took place may yet serve its original purpose.
In the meantime, the ongoing existence of the detention camp at Guantánamo Bay stands as a poignant symbol of the Obama administration's failure to reverse the trajectory of U.S. national-security policy and of its ultimate decision to embrace the core framework of the Bush administration's "war on terror." The military commissions, for example, are fairer. They ban evidence gained through torture, put the burden on the government to argue that hearsay evidence is reliable, (in the past, the presumption went in the other direction), and now require judges to use virtually the same standards as civilian courts in evaluating classified evidence -- all reforms put in place by the 2009 Military Commissions Act.
The detention camps have become more bearable for the detainees, with 85 percent of them now living communally, up from around 40 percent more than a year ago, according to the Joint Task Force (JTF). Only 12 detainees are on hunger strike, (down from a high of 100 in 2006) five of whom are being force-fed, according to a JTF spokesperson. Long-planned construction projects, like a soccer field for Camp Six have been finally completed, giving the detainees more outside space than before. The detainees watch television and have recently been given access to satellite radios that let them listen to the Koran being chanted. In addition to literacy, language, and art classes, a new "life skills" class whose curriculum includes "resumé building" has been set up. Only one detainee has expressed interest so far.
According to Cmdr. Brook DeWalt, the construction projects and other camp improvements are ongoing, despite the Obama administration's stated intent to close the camp. "We as military operators need to continue doing the mission of safe, legal, transparent care and custody, for as long as [the detainees] are here," DeWalt said. "Deadlines come, deadlines go."
The more humane conditions at Guantánamo reflect the path the Obama administration has chosen to take on national security -- embracing Bush-era policies with minor substantive changes and a dramatic change in tone. This is Bush with a smile. Unsurprisingly, many of the underlying problems remain. The commissions are still operating without a manual providing guidelines on the new military commissions statute, because the Department of Defense has yet to provide one. Guantánamo Bay has not ceased to be the national-security liability and terrorist recruitment bonanza that had everyone from George W. Bush to Gen. David Petraeus arguing that it should be closed. While torture and inhumane treatment at Guantánamo have been banned by Obama's executive order, the defining injustice of Gitmo -- the indefinite imprisonment of individuals without trial or charge -- remains. Communal living and art classes won't change that.
When I visited Guantánamo, the group of reporters I was with was given a tour of three of the four camps that hold detainees still believed to be "unprivileged enemy belligerents." Camp Six was converted to maximum security in 2006 following a physical altercation between detainees and guards in Camp Four. Detainees were confined to their cells for most of the day. Now things are visibly different, with most of the detainees in Camp Six living in "ultra light" security conditions, under which they are allowed more freedom of movement within their blocks and have access to satellite radio and television.
Cellblocks are linked by an inner hallway. One-way glass windows allow you to see into them. At the entrance to each block, two guards stand behind a chain-link fence. Detainees can be seen over the guard's shoulders, wandering within the confines of their blocks and handling their daily business. Some fold their laundry, others eat lunch from white Styrofoam containers. Some have close-shorn hair and long, carefully trimmed beards -- others have short beards and long craggy hair. Some stroll about with black headphones, listening to satellite radio Koran. Most of the cells are bare; in others, the detainees hang their artwork.
One of the cellblocks has been converted into a classroom, where underneath the stainless-steel desks lie sets of soft shackles. The officer in charge of Camp Six explains that the blocks have sorted themselves into groups according to interpersonal conflicts and degree of religiosity. According to JTF spokespeople, the detainees organize a leadership structure for each block -- a block leader, a block spokesperson, a block prayer leader. Verifying that this is indeed the way the detainees live is impossible, because they are not allowed to speak to journalists.
Earlier at Camp Justice, following Mohammed's military-commissions hearing, Andrea Prasow, an attorney with Human Rights Watch who represented Salim Hamdan in his military-commissions trial, said she hadn't expected to be back at Guantánamo dealing with detainee issues after Obama's election.
"I pasted the executive order on my office door, and I thought Guantánamo was closing," Prasow said. "It's really disappointing to be here."
Copies of the signed executive order closing Guantánamo also hang on plastic-shielded bulletin boards in the recreation areas of Camps Four and Six. They were put there shortly after Obama signed them. When the Jan. 22 deadline for closing Guantánamo came and went, the guards say, the detainees didn't react much at all.
"It went by quietly," the officer in charge of Camp Six says.
Maybe they knew something we didn't.