U.S. NAVAL BASE GUANTANAMO BAY, Cuba — Dozens of journalists, human rights advocates and military lawyers will cram into a makeshift court on the naval base here this week to witness the opening of the first military commissions by the United States since just after World War II.
The commissions are expected showcase why the United States feels that the men held here pose so serious a threat that they must be tried outside the realm of the world’s civilian courts.
Preliminary hearings will begin today for four men charged by the Pentagon with war crimes based on their suspected ties to al Qaeda. Under a system designed by the Defense Department, they will be represented by military-appointed lawyers and their fates will be decided by a panel of military officers.
The manner with which the commissions are to be conducted has drawn fire from human rights groups, who call the military-dominated system unfair. Civilian lawyers will be allowed for the defendants, but their role is expected to be stunted whenever the military introduces classified materials as evidence.
“We’re concerned that the military commission rules lack key fair-trial protections,” said Wendy Patten, who will witness this week’s hearings as the U.S. advocacy director at Human Rights Watch. “The military serves as prosecutor, judge, jury, appeals court and potentially even as executioner.”
President Bush authorized the use of the commissions in November 2001 to try suspects in the war on terror. To date, the administration has declared 15 detainees eligible for the special trials. The first four charged are Ali Hamza Ahmed Sulayman al Bahlul and Salim Ahmed Hamdan of Yemen, David Matthew Hicks of Australia and Ibrahim Ahmed Mahmoud al Qosi of Sudan.
Like the majority of the 585 suspects held here, the four were arrested during the 2001 campaign to topple the al Qaeda-supporting Taliban regime in Afghanistan. They largely are considered al Qaeda foot soldiers, and their trial by military commissions could serve to refine the process for higher-profile terror suspects in the future.
Pentagon documents show that each man is accused of using several aliases during their involvement with al Qaeda. Hamdan is accused of having served as a driver for Osama bin Laden, and al Bahlul and al Qosi are suspected of serving as bodyguards for him. Hicks is accused of training in al Qaeda camps and of having membership in the terror network. His parents are thought to be on hand here to witness the opening of his trial.
Military officials have said that although the commissions authorize use of the death penalty, it is not being sought in the four cases. Retired Army Gen. John D. Altenburg Jr., whom the Pentagon has appointed to oversee the commissions, has said opening hearings largely will resemble the pretrial motions phase of civilian trials.
Much of the time is expected to be spent hashing out issues such as how classified materials will be handled and how interpreters will fit into the process. Other issues might include whether military prosecutors will be able to use as evidence statements made by the accused under interrogation.
Speaking with reporters in Washington last week, Gen. Altenburg acknowledged, “The conditions of any interrogations and the conditions under which any statements that have been made are used in evidence will be looked at scrupulously.”
Noting that the order for the military commissions has been in place for nearly three years, Gen. Altenburg said his concern “is not how quickly we get to the military commissions, but what’s the quality of how we do this and how. We want to get this right.”
“We haven’t done it in 60 years,” he said. “I’m very concerned because the charter, of course, is to have a full and fair trial for each person that’s brought before a commission, and we want to get that right.”
The decision to move forward with the commissions has sparked debate about their significance in light of a June Supreme Court ruling that granted U.S. civilian courts jurisdiction over the cases of foreign nationals held here.
A central complaint made by commission opponents is that the trials set a precedent for an unfair system of justice that ultimately challenges the existing American legal system. Still, although the Constitution does not clearly outline a pretext for military commissions, defense officials and some legal experts agree that significant historical precedents form a basis for them.
But the American Civil Liberties Union (ACLU) says the design of today’s commissions falls short of international due-process standards and the 1949 Geneva Conventions, which set guidelines for treating persons captured in conflicts after World War II.
In preparing for his own departure to Guantanamo last week, ACLU Executive Director Anthony D. Romero said, “The system that I am going to witness cannot be seen as legitimate.
“These are not full and fair trials in keeping with the best of American traditions,” he said. “Key evidence can be kept secret by the prosecution, the only venue for appeal is up the chain of command, and defense attorneys will be hamstrung by bad procedure and lack of privilege.”
In addition to the ACLU and Human Rights Watch, other organizations attending the commissions include Amnesty International, the American Bar Association and Human Rights First.