Military commissions: Making it up as we go

Daphne Eviatar delves into the charade and sham that is the military commissions system at Gitmo as the tribunals begin again with Noor Muhammed, a detainee that has wallowed in legal limbo at Guantanamo since 2002.

The military bureaucratic conundrum seemed to leave everyone in the courtroom – and in the observers’ gallery, which was walled off by bullet-and-sound-proof glass -- scratching their heads. (Observers at this courtroom, which was built specially to try the 9/11 suspects, only get to hear the proceedings via an audio feed that transmits the sound after a several-minute time-delay.) Like many questions that arise in these military commission hearings, the answer to this one could not be found anywhere in the rules or the military commission precedent.

That’s partly because the current military commissions, created by the Military Commissions Act of 2009 – have no rules. The military hasn’t issued them yet. The now-outdated rules that governed the previous commission, created by a 2006 law, don’t address this situation either. And there is almost no military commission precedent to speak of. After all, in the eight years since they were created, the military commissions have tried only three cases. Of those, only two detainees even put up a defense. Both have since been released from prison.

Throughout yesterday’s hearing, if there was one thing that the prosecution, defense and judge could agree on, it was that there simply is no law to guide many of the situations that come up in the military commission cases of the Guantánamo detainees.

That there is any possibility that these commissions will continue, much less whether Khalid Sheikh Mohammed will be tried in one of these awful excuses for American justice, is a sad commentary on our post-9/11 climate of fear, paranoia and lack of confidence in our own justice system.