Pearl of the Antilles

The White House contends that since terrorists unite under the religious principal of Islamic jihad rather than the flag of a nation, the rules of crime and punishment have changed. In November 2001, George Bush drew on precedent last used during World War II, and declared that captured terrorists would be tried by military tribunals rather than the courts. These tribunals can cater to the nature of specific conflicts; they allow classified evidence and secret witnesses.

"How to deal with an enemy combatant who is a potential terrorist is something we don't have much experience in," says Capt. Bruce Roberts, a blue-eyed public affairs officer with a beleaguered demeanor. "We're trying to be humane in their treatment and their detention because we're the United States. [But] let me ask you this: Is it in the best interest of the U.S. to afford terrorists all the same rights — potential or alleged terrorists, that is — as a prisoner of war?"

As might be imagined, security at these trials — called military commissions — is tight. Visitors, who often include representatives from humanitarian and legal watchdog groups, are searched upon entry. Spiral-bound notebooks are prohibited, presumably because a detainee could break out of his shackles, grab a notebook, pull out the coil, and attempt to stab someone before the approximately twenty soldiers and sailors in the room could catch him. A gauntlet of metal detectors and searches precedes entrance.

The commissions are held in a former dentistry clinic converted into a makeshift courthouse. Dark wood podiums, blue curtains, leather chairs, and the Joint Task Force seal decorate an otherwise nondescript room. The presiding officer, a high-ranking military official who serves in the role of judge, wears a black robe over his uniform, although his khaki collar points protrude.

It is cultivated gravitas, especially because the commissions could soon be declared unconstitutional by the Supreme Court. A military defense attorney, acting on behalf of Yemeni detainee Salim Ahmed Hamdan (who has admitted he worked as Osama bin Laden's chauffeur but contends he never took up arms against the U.S.), sued the government in 2004. He claimed the commissions were an "unprecedented, unconstitutional, and dangerously unchecked expansion of executive authority." The case, Hamdan v. Bush, was argued in late March, and an opinion is expected at the end of this month.

"The first and foremost problem with the commissions is they are not grounded in the rule of law," says Navy Lt. Cmdr. Charles Swift, who filed the suit. "They're based on a law made exclusively by the executive [i.e., the president]. We had a revolution against King George III for exactly that."

Swift is perhaps the most passionate critic of the tribunals. Even though he graduated from the U.S. Naval Academy in 1984 and has been in the military pretty much ever since, he says war is not a one-way street. "They're giving rules that can be changed at any time. The detainee does not have the right to confront witnesses, and he has no right to know the evidence against him," Swift adds. "The presumption of innocence does not exist."

The navy attorney was assigned to Hamdan's case to facilitate negotiations for a plea bargain, but he arrived at what he calls a "moral conclusion" to offer his client another option — particularly after a visit to the base. Once charged with a war crime, Hamdan was segregated from the rest of the prison population. "They call it 'pretrial isolation,'" Swift says. "I call it solitary confinement. After 60 or 70 days of it, he wasn't doing well."

The Supreme Court has the opportunity to define the rules of the war on terror with greater clarity, he says. "The military commissions as put together simply offer no validity," Swift comments. "They do not comply with the rules of war; conspiracy is strictly a domestic crime — it's not a war crime."

And his client, he points out, is now in his fifth year of custody.

"There's a quote by Thomas Paine," Swift says. "He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself.'"

No matter what the Supreme Court decides, the court-appointed lawyer won't be alone in his objection to the tribunals: the UN, the European Union, and a crowd of others have openly declared their disagreement with the make-it-up-as-you-go nature of the commissions.

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The man was slight, about five feet six inches tall, with black hair that stopped above his shoulders. He wore a loose-fitting beige prison uniform and black slip-on sneakers. It was early afternoon on Tuesday, May 16, during his allotted recreational time — two hours in a ten-by-twenty-foot chainlink cage in Camp 5's maximum-security prison.

Although the detainee had exercise equipment at his disposal (an elliptical machine, a manually operated treadmill, even a concrete stepping stone), he preferred not to use it. From the near end of the cell, he would jog forward until he reached the other side and then retreat without turning around. Forward, backward, forward, backward.