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The first military commissions conducted by the U.S. government in more than half a century commence this week at the Guantanamo Bay Naval Base in Cuba. Of the approximately 600 foreign detainees held at Guantanamo, four will appear before a panel of military officers to formally hear the charges against them, setting in motion a process initiated in the wake of the Sept. 11 terrorist attacks. The prisoners — two from Yemen, one from Australia and one from Sudan — have been charged with conspiracy to commit war crimes, including the murder of civilians. Yet even as the controversial process gets under way, significant legal and practical questions remain unresolved. The biggest question is the most basic: Will the military commissions provide the full and fair trials that the Pentagon and the president have promised? No one, not even those directly involved in the process, knows just what to expect. Asked what this week’s hearings will bring, one of the defense lawyers, Navy Lt. Cmdr. Philip Sundel, summed it up by saying, “It beats the hell out of me.” According to Pentagon officials, this week’s hearings will be largely administrative in nature. Each defendant will appear individually before the commission to hear the charges against him, in something resembling an arraignment. No evidence will be presented at the sessions. Defense lawyers say they will raise concerns at this week’s hearings — the majority of which are expected to be open to reporters — about the independence and impartiality of commission members and the integrity of the process. There are also logistical questions that need answers before the cases can proceed to trial. For instance, one detainee has expressed a desire to represent himself. Also, a military lawyer has received a new assignment that may preclude her from continuing in the role of defense attorney. The four defendants are alleged to have direct ties to al-Qaida. None has been accused of planning or participating in the attacks of Sept. 11, 2001. Prosecutors will not seek the death penalty for any of the defendants. Under military commission rules, defendants are considered innocent until proven guilty beyond a reasonable doubt. They have the right to call and to cross-examine witnesses and cannot be forced to testify in their own cases. But while the emerging system incorporates some familiar elements of military courts-martial and federal criminal procedure, there are also vital differences. Evidence will be accepted by military commissions that would not be admitted in ordinary trials; defendants can be excluded from portions of their own trial; defense lawyers must work under unusual restrictions, such as a ban on contacting the media without Pentagon approval; and commission procedures do not include independent judicial review. What’s more, the Pentagon has indicated that detainees acquitted by military commissions will not necessarily be released. Instead, they will likely remain imprisoned as unlawful combatants, just as they are now. Sundel says his biggest concern going into the initial hearings is that the rules seem to keep changing. “It’s now almost three years after military commissions were created, almost seven months after charges were brought against my client, two months since the case was referred to trial, and the Defense Department is still establishing a process,” Sundel says. “You cannot possibly defend a process as fair when it’s being defined as trials are occurring.” Through a spokesman, lead military commission prosecutor Army Col. Robert Swann declined a request for comment. CONTRASTING DEFENSES Sundel and co-counsel Army Maj. Mark Bridges represent Yemeni national Ali Hamza Ahmed Sulayman al Bahlul. According to the prosecution, al Bahlul traveled from Yemen to Afghanistan in 1999 to join al-Qaida. He allegedly worked in the al-Qaida media office, creating instructional videos and recruiting materials, and served as a bodyguard to Osama bin Laden. Bahlul was purportedly with bin Laden on Sept. 11 and made an unsuccessful attempt to set up a satellite connection so that the group could watch news reports of the attack. He was captured by U.S. forces in Afghanistan in November 2001. Sundel and Bridges were assigned to represent al Bahlul in February 2004. Before this week they had met with him only once, in April 2004. At that time, according to a filing from the prosecutor in the case, al Bahlul said he wished to represent himself, and Sundel and Bridges filed a request to withdraw. Unlike in federal criminal court, however, defendants before a military commission have no right to proceed without military counsel, and four months later, it remains unclear how the issue will be resolved. Sundel and Bridges, who have not spoken with their client since April due to problems securing a translator, will represent al Bahlul at this week’s proceeding. Al Bahlul’s attorneys would not comment on his request to represent himself, but say they plan to raise the issue before the commission. They say that their defense has been hamstrung by their inability to communicate with al Bahlul. “Mark and I have done almost nothing because we don’t know what, if anything, our client wants,” Sundel says. In contrast, Navy Lt. Cmdr. Charles Swift, defense attorney for Yemeni national Salim Ahmed Hamdan, has already employed an array of aggressive tactics. Last week, Swift notified the commission that he plans to file eight separate motions to have the case against his client dismissed. Swift — who recently spent three weeks in Yemen lining up potential defense witnesses — plans to argue that the military commission process as it has been implemented violates the U.S. Constitution, federal statutes, the Uniform Code of Military Justice and the Geneva Conventions. Swift’s nervy approach has already gotten results. Initially, this week’s hearings were slated to take place before just one member of the military commission, retired Army Col. Peter Brownback III, who serves as the panel’s presiding officer. On Aug. 10, Swift filed a memo contending that Brownback, a former military judge, was overstepping his authority by holding the sessions alone. Within a week, retired Army Gen. John Altenburg Jr., who oversees the commissions, directed that the hearings occur before the full five-member panel. In addition to vigorously defending Hamdan’s interests before the military commission, Swift has challenged the validity of the entire commission process in federal court. The case, which was filed in Seattle, was transferred Aug. 9 to the U.S. District Court for the District of Columbia, where Guantanamo-related matters have been consolidated. The Pentagon alleges that Hamdan served as a bodyguard and personal driver for bin Laden from 1996 until Hamdan’s capture in November 2001. According to the charging document, Hamdan delivered weapons and supplies from the Taliban to al-Qaida and accompanied bin Laden to training camps, press conferences and lectures. Swift calls the charges “extraordinary.” Even if the specific allegations are true, he says, there is no international precedent for the way the Pentagon is using conspiracy charges. “In Nuremberg, conspiracy charges were used against the absolute highest guys in the organization,” Swift says. “Had conspiracy charges been used this loosely in Nuremberg, you could have imprisoned all of Germany.” IMPENDING REVIEW Nearly three years have passed since President George W. Bush authorized the Pentagon to use military commissions to try suspected al-Qaida terrorists. The U.S. Supreme Court’s recent ruling establishing federal habeas corpus jurisdiction over detainees held at Guantanamo Bay dramatically alters the legal landscape. Now, any conviction by a commission is likely to be appealed in federal court. Australian detainee David Hicks, one of the four prisoners slated for trial before the military commission, is also a named party in the Supreme Court case. The case is now on remand to the D.C. District Court. Any developments in that suit may reverberate in the military commission proceedings. The Pentagon accuses Hicks of receiving extensive training at various al-Qaida camps and fighting alongside the Taliban against U.S. forces in Afghanistan. He was captured in early December 2001. As one of the few non-Arab detainees, Hicks has received more attention from the Western media. Last year, the Australian government intervened to secure concessions from the Defense Department, such as an agreement that Hicks could serve any prison term in Australia. Hicks’ father and stepmother, as well as Australian government officials, are expected to attend his hearing. Hicks also has more legal firepower working on his defense. He is represented by two military lawyers; an Australian lawyer; and U.S. civilian defense attorney Joshua Dratel, a vocal critic of the military commission process. Dratel says the charges against Hicks have been “manufactured” and that the commission process “lacks integrity.” “This ‘make it up as you go along’ method of criminal procedure denies due process and guarantees an unfair system, and an unjust result,” he says. The fourth defendant, Sudanese national Ibrahim Ahmed Mahmoud al Qosi, is alleged to have served as al-Qaida’s deputy chief financial officer in the early 1990s, and later as a personal bodyguard to bin Laden. Al Qosi’s military defense lawyer, Air Force Lt. Col. Sharon Shaffer, was named deputy chief trial judge for the Air Force July 28. While it is unlikely that she will remain on al Qosi’s case — Air Force judges are prohibited from otherwise practicing law — Shaffer will represent al Qosi before the commission in this week’s hearings. Shaffer would not say whether she will seek to be removed from the case. At a press briefing last week, the Pentagon’s Altenburg said he expected this week’s hearings would provide the opportunity for such issues to be debated, asserting that the military commissions will afford due process. “What’s important is to get to those first hearings and to get some of those issues on the table … so that both sides in the adversarial system can make their points,” Altenburg said. He added, “This is the first time we’ve done commissions in 60 years, and we’ll just have to wait and see what happens.”

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