By Michael E. Miller
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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.
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.
The camp spokesmen offered little information about this man. The color of his uniform told us he was a well-behaved prisoner. His living situation, in the maximum-security facility at Guantanamo Bay, meant he was either charged with a war crime, posed a serious threat, or had high intelligence value. Essentially the government's explanation for him is: Trust us. He's bad.
It's almost astonishing how very American the small town of 8000 at Guantanamo Bay seems. There's a homey familiarity to slabs of black asphalt winding through prefab suburban bliss, a grill on nearly every patio. There are the fast-food chains: McDonald's, Subway, Pizza Hut, Starbucks. The souvenir shop that rents the newest DVDs and sells T-shirts with slogans like "Got Freedom?" "The Taliban Towers: The Caribbean's Newest Five-Star Resort," "Behavior Modification Instructor," and (for kids, the modifier jauntily affixed in red crayon font) "Future Behavior Modification Instructor."
There's the outdoor movie theater showing The Hills Have Eyes and Failure to Launch.Cable television with HBO, Telemundo, and an audio-only channel broadcasting National Public Radio. Ben & Jerry's Cherry Garcia ice-cream bars cool in cafeteria freezers. Swings hang in tiny parks. A go-cart course is under construction, and off-duty officers swing clubs on a golf course whose landscape differs only slightly from the brambles and thorns of the desert that surrounds it. Occasional performances by entertainers like Jimmy Buffett and the Pittsburgh Steelers cheerleading squad boost morale. Troopers take scuba lessons near Gitmo's limestone cliffs. At Christmastime, officers' wives offer a tour to showcase holiday décor.
They've brought a lot of the U.S. to Guantanamo, if we define ourselves by brand names and movie titles. But the part of being American that first defined us from the rest of the world somehow got lost on the way.