Guantánamo Bay, July 15, 2009: As the Obama administration and Congress mull reinventing for the third time a legal system to try terrorism suspects, three hearings were held today at Guantánamo Bay in the military commission cases of Omar Khadr, Mohammed Kamin, and Ibrahim al Qosi.

The good news is that changes the Obama administration has asked for may help improve a process that has never operated in a way that folks familiar with the American legal system would recognize as justice. The bad news is that the system is so flawed that these changes cannot salvage it. Meanwhile, our normal federal criminal courts competently go about the business of trying international terrorism cases, to the tune of over one hundred in the years shortly before and since 9/11. Go figure.

Most of the court time today was spent on motions that the government made seeking a 120-day delay in each of the cases. Doesn’t it seem that something is fundamentally wrong with a system in which after six or seven years of holding a man in prison, the government has to ask for another four months to prepare?

Here are some tidbits from the proceedings I observed today.

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“I will take a shower when you guys are ready to send me home,” said Mohammed Kamin, a detainee who was captured on May 14, 2003, and has been held at Guantánamo since at least 2004. Kamin declined to attend his hearing today, saying he had no interest in participating in the military commission process and declining an offer for a shower before the hearing. (Kamin’s remarks were reported to the court by a representative of the Staff Judge Advocate’s office who spoke to the detainee through his “bean hole” – a waist-high slot in his cell that is used to deliver food.)

“We do not speak on behalf of (Kamin). In fact, he has instructed us not to speak on his behalf,” said Navy Lt. Richard Federico, defense counsel for Mohammed Kamin. Lt. Federico has not met with his client for more than a year. He explained to the court that he has passed through the guards at the detention facility numerous notes to Mr. Kamin requesting a meeting. Federico even went so far as to visit Afghanistan and take pictures of himself with Mr. Kamin’s father and 6-year-old son, but even after seeing those pictures, Mr. Kamin has still refused to participate in the military commission process. As Federico said, after all that has happened, it seems he has no faith that anyone wearing a U.S. military uniform could have his best interests at heart.

“The changes (proposed by the Obama administration) to military commissions are not just slight. You are looking at a tectonic shift in the way these cases are handled,” said Lt. Federico. Standing in front of the judge, Air Force Col. W. Thomas Cumbie, Federico quoted Senate testimony from senior Obama administration officials that suggests the administration will no longer pursue “material support for terrorism” charges against detainees in military commission proceedings – the very charges that Kamin, like a number of other detainees, faces. Federico argued that the new administration’s position suggested that the government was “biding time” and that the case would soon “go away.” In light of these changes, he urged Judge Cumbie to dismiss the case against Kamin.

“It is not a done deal until it is a done deal,” responded Military Judge Cumbie, warning Lt. Federico that the Military Commissions Act had not yet been changed and that reports of legislation that might help Mr. Kamin may not, in the end, become law.

“Laws are updated all the time. Our role is not to criticize. Our job is to implement the law,” said Chief Military Prosecutor John Murphy, when asked after the proceedings about prosecutors’ ability to prepare their cases if they don’t even know what form military commission proceedings might take due to the administration’s review.

“It’s as clear as mud,” Judge Cumbie said, after ruling on issues relating to the uncertain future of the government’s case against Kamin. The judge was frustrated by continuing questions surrounding discovery and the “glacial” pace at which the prosecution was handing over basic documents such as the statements of the accused. Federico told the court that he had received “thousands of pages” of discovery just days before the hearing and that with Kamin having now spent so many years in prison, he was frustrated that it had taken the prosecution so long to hand over the documents necessary for a trial.

“The idea that the government should seek delay after delay while they literally invent a process to try Mr. Khadr is extraordinary,” said defense counsel Navy Lt. Cmdr. William Kuebler, arguing against a 120-day delay in the case against Omar Khadr, a Canadian citizen who was 15-years-old when he was taken to Guantánamo in October 2002.

“I have no trust [in the military lawyers],” said Omar Khadr, who attended his hearing today and told the court that he did not want to continue to have Lt. Cmdr. Kuebler, or any uniformed attorney, play a lead role in his defense. The judge agreed to remove Kuebler pending security clearance for a civilian attorney that Mr. Khadr approves.

One step forward, two steps back.

David Danzig is Deputy Program Director at Human Rights First.

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