Both the American Civil Liberties Union and Human Rights First were at Guantanamo this week to observe the commencement of the new, revised military commissions. Both were present for the pre-trial hearing of Mohammed Kamin, and both organizations had similar takes on the proceedings.
ACLU:
Continuing the military commission proceedings against Kamin meant more of the same of what we've seen in other proceedings here: uncertainty about the rules, which the government is making up as we go along (even now, the Department of Defense is preparing new rules for the military commissions), and a judge frustrated by delays in the prosecution's failure to hand over fundamental evidence to the defense.
The usual chaos was compounded by uncertainty over where Kamin's case will ultimately be tried. Kamin is accused of a single crime, providing material support for terrorism—an offense that should have been prosecuted in established federal courts. While a military commission conviction for material support for terrorism could possibly be overturned on appeal because such a crime is not a traditional war crime, the offense is covered by the federal criminal law. And federal courts have a proven track record of obtaining convictions for material support for terrorism in numerous cases since 2001.
There is a making-it-up-as-we-go feel to these proceedings which is inevitable for a system of trials for which the Congress, courts and executive keep changing the rules. For example, there was discussion today of a new pre-trial hearing date in December in the Kamin case.
But officials said that the new rules for the military commission proceedings - which the Department of Defense needs to alter to conform with reforms passed by Congress on October 29 - have yet to be released by the Department of Defense. Officials with the Office of Military Commissions at Guantanamo acknowledged today that they have not even seen a draft set of the new rules.
I think most Americans aren't actually privy to how haphazard the military commissions are--they're essentially a new legal system invented from scratch to try detainees against whom we have dubious evidence or only intelligence information. The adjective "military" may give them a certain sense of authority for those who are unaware just how poorly the process has worked so far compared to federal courts, but this is misleading since the DoJ's civilian lawyers are actually more experienced in trying terrorism cases.
Not to belabor the point, but from a practical point of view, why would you want to put Khalid Sheik Mohammed through this kind of shaky process rather than a civilian trial in the Southern District of New York, which has already handled plenty of these types of cases? A civilian trial is still far less of a roll of the dice than the military commissions, even after the revisions.
-- A. Serwer
