Lieutenant Colonel Thomas Bogar couldn't have been wearing clothes any worse than the outfit he had on the first time he traveled to Guantanamo. His uniform, which he had to keep on because removing it would have violated military protocol, was too hot for the tropics. Besides, he felt completely out of place the first time he met with his client in a small, sparse cell. Abdul Zahir, was wearing a thin brown prisoner's uniform. His feet were bare and in shackles.
American military prosecutors accuse Zahir, a prisoner at Guantanamo, of being an active al-Qaida collaborator. The Pentagon assigned Thomas Bogar, 43, a tax attorney by profession, to serve as Zahir's defense attorney. He had come to Guantanamo to speak with Zahir and earn his trust, a daunting task at the very least. Zahir, an Afghan, had spent four years being interrogated by Americans in uniform, and now he was suddenly expected to trust yet another American in uniform.
Zahir's shackles were removed, Bogar sat down at the only table in the room, and an interpreter sat down between the two men. The American had spent several weeks studying Zahir's file and was familiar with the charges against his new client: conspiracy, actively supporting the al-Qaida terrorist organization and assaulting a civilian automobile with a hand grenade.
Bogar had formed an entirely different picture of a man with this sort of history: He thought his client would be less polite, less reserved and more dangerous. Zahir and his attorney are part of a historically unparalleled legal case -- one that shines a harsh light on the inadequacies of a judicial system tailored to suit political requirements.
For half a decade, the prisoners at Guantanamo have been in a state of legal limbo as they awaited their trial, but now the Americans are set to try the first of 385 prisoners still being held at the US military enclave on Cuba. The first group of prisoners arrived in Guantanamo in January 2002 dressed in orange overalls with hoods covering their heads. Former US Secretary of Defense Donald Rumsfeld called them "the worst of the worst," presenting the world with the pictures of men cowering on the ground as a victory in one stage of the war on terror.
The hooded figures were locked into cages and interrogated. It took a while, but eventually even the American specialists realized that many of the men they had imprisoned at Guantanamo were not ferocious terrorists. The wire cages were eventually replaced with concrete cellblocks.
Since establishing the camp in 2002, the Bush administration has released close to 300 of the roughly 770 prisoners with the explanation that they were "no longer enemy combatants" -- as if being imprisoned at Guantanamo had somehow had a cathartic effect on them. There have been many suicide attempts at the camp since then, three of them successful.
Although the indictment reads: "The United States of America versus Abdul Zahir," the prisoner will not face trial before a federal court or even an ordinary court-martial. Instead a ruling in his case will come from a military commission for which a separate set of laws has been invented -- a sort of Lex Guantanamo. The executive assigns the prosecutors, defense attorneys and judges. The jurors who will sit on the Guantanamo military tribunals are also exclusively members of the US military.
Zahir is one of the first ten prisoners to be indicted since the beginning of the year. The Pentagon claims it has selected the cases with the most solid evidence. The first group of prisoners to appear before the military tribunals will also include al-Qaida leader Osama bin Laden's driver, Salim Ahmed Hamdan, Australian Taliban fighter David Hicks and Canadian national Omar Khadr, the son of a high-ranking al-Qaida member.
Translator or terrorist?
Zahir is 35, but he looks 45. He was arrested in Logar province in eastern Afghanistan in the summer of 2002, allegedly on a tip the Americans received from members of an enemy clan. At the time there was a $5,000 bounty in Afghanistan and Pakistan -- a lot of money in this part of the world -- for information leading to the arrest of any al-Qaida supporter. Since then Zahir, a father of three children, has been held at Guantanamo as an "unlawful enemy combatant" as they are described in the Pentagon's parlance.
Zahir began working as a translator for the Taliban government in 1997. The current charges against him include conspiracy to commit war crimes, aiding the enemy (al-Qaida and the Taliban) and throwing a grenade at a civilian car. Zahir told Bogar that he had taken the job as a civil servant with the Taliban regime, after spending a long time looking for work, to keep his family fed. He claimed that he was unaware that some of the men he was working for were members of al-Qaida.
Bogar and his team have met with prisoner No. 753 dozens of times since that first visit in February 2006. They don't know if Zahir is telling them the truth, but they believe that the evidence against him is shaky. The classified Zahir file contains many unsigned witness accounts, making it impossible for the attorney to determine who the witnesses are. Anonymous evidence of this nature would not even be allowed in a case before a normal court-martial, but it is being permitted before the military tribunal.
"That's just the way it is. And there's nothing wrong with it, because the country is at war, even though there was never a formal declaration of war," says Brigadier General Thomas Hemingway. As the military commission's legal advisor, Hemingway authored the complicated procedural rules to be used in the trials. The 67-year-old, a highly decorated officer, was brought back from retirement to write the document.
The government has invested millions of dollars in the Guantanamo trials. The defense attorneys are permitted to travel halfway around the world to conduct their research -- to Afghanistan, Yemen, Pakistan -- and to find evidence to support their clients' cases, a difficult undertaking after so many years. "We handle the matter appropriately," says Hemingway.
But how long can "enemy combatants" continue to be held at Guantanamo? If the Pentagon has its way, only 60 to 80 of the 385 prisoners will be put on trial. But how dangerous are these men really, and who are the ones who are still being detained at Guantanamo?
"A Symbol for the Abuse of Power"
When legal experts from the respected Seton Hall Law School in New Jersey were given access to files at the Defense Department, they arrived at some surprising conclusions. According to the documents, the Pentagon itself only classifies 8 percent of the Guantanamo detainees as al-Qaida fighters, and it finds that 40 percent have no connection whatsoever to the terrorist organization.
The Seton Hall report contains another interesting figure: 86 percent of those taken into custody in Afghanistan were handed over to the Americans by Pakistanis or members of the Northern Alliance -- at a time when substantial bounties were being paid for terrorists.
The American public tolerated Guantanamo for a long time -- at least as long as the situation in Iraq didn't seem as bad as it is today and as long as the effort in Afghanistan appeared to be heading toward success. But resistance to Guantanamo has been mounting since then, especially after the Democrats gained control in Congress. According to Democratic Senator Christopher Dodd, the special tribunals have "dishonored our nation's proud history." Dodd's Democratic colleague in Congress, Jim Moran, who heads a congressional investigation into Guantanamo, wants to push a bill through in Congress that would cut off funding for the prison, which he has described as "a symbol for the abuse of power."
The lawyers assigned to defend the prisoners at Guantanamo, all of them officers, work on the second floor of a large office building in Washington. The floor was leased specifically for the duration of the trials. Even the secretaries wear uniforms here, crisp military salutes are the standard greeting in the green-and-gray carpeted hallways and Bogar's boss, Colonel Dwight Sullivan, says "roger" at the end of every telephone conversation.
Defendent Zahir's attorney Bogar, who is by no means a leftist and has even campaigned for the Republicans, also has his office here. He served in the Air Force and then went on to study law. He wears his hair cropped close to his head and has upper arms the size of Arnold Schwarzenegger's. Though he may look like the quintessential soldier, he certainly doesn't talk like one.
Bogar is at a loss to understand how the military tribunals can be permitted to use the unexamined testimony of anonymous witnesses. He is also well aware of the fact that the testimony contained in these unsigned documents could spell death for his client. He also has trouble accepting the notion that it should be left up to a judge to decide whether testimony obtained through torture can be used in the trials.
Preparing for trial
Bogar has put together an all-star legal team to assist him. Kermit Roosevelt, a law professor and the great-great-grandson of President Theodore Roosevelt, is preparing a constitutional complaint that will question the status of the Guantanamo prisoners. The grande dame of American jurisprudence, Eleanor Jackson Piel, now 86, is also part of Bogar's team. As far back as 1945, she was defending Americans of Japanese origin who resisted getting drafted into the war from their internment camps. She says she "didn't think we still did the kinds of things that are happening in Guantanamo."
Meanwhile, in his office in Crystal City, just across the Potomac River, Colonel Morris Davis has a view of nondescript office towers, apartment buildings and a swimming pool. Davis is the senior prosecutor in the Guantanamo case, and he has practically lived in his office for the past 18 months. David actually applied to represent the defendents, but instead the Pentagon assigned him to the prosecution.
Davis is frustrated by the barrage of criticism over the Pentagon's handling of the Guantanamo cases. "Everyone thinks they already know how horribly unfair the trials will be," he says. "But we just want our grandchildren to be proud of us and, like after Nuremberg, to say: Those were good, fair trials back then in Guantanamo."
Davis is by no means a military traditionalist. When he went to Guantanamo for the first time he found inquiries from nine humanitarian organizations on his desk. He met with every one of them, "and they couldn't believe it." He constantly takes pains to try to improve the prosecution's poor image. "They are at Guantanamo because we have to keep them away from the battlefield," the Air Force colonel says.
Davis keeps turning his coffee cup back and forth. He's restless. He wants the trials to finally move forward so that he doesn't have to keep defending his case like that. He says he would prefer to see the Guantanamo trials aired on live television, "so the world could see that the trials are being conducted properly."
Bush's semantic twistings
Eugene Fidell doesn't think much of the colonel's hawkish rhetoric. The laid-back man in corduroy pants and a beige and red-checkered shirt takes decisive steps toward the window. "Look outside, do you see any soldiers?" he asks. "No, it looks very much like peace out there. We're not at war -- those are just the semantic twistings of the Bush administration."
Fidell is the head of the National Institute for Military Justice in Washington, an organization that could hardly be described as left-wing, and he's also a leading authority on the issue of Guantanamo. He's fundamentally opposed to any kind of special laws. "These prisoners could be tried before a normal court in America at any time," he says. Just take the example of Zacarias Moussaoui, the flight school student who was arrested shortly before Sept. 11 and tried in the federal court. Or how about "shoe bomber" Richard Reid, who hid explosives in the soles of his shoes in an attempt to detonate a make-shift bomb on a flight from Paris to New York. He was also tried in a civil court.
Yvonne Bradley expresses little amazement over the fact that the Guantanamo prisoners are being tried before a military commission. "These trials are political," she says. Bradley is a 44-year-old African-American military attorney. She normally represents clients from some of Philadelphia's worst neighborhoods, including many on trial for capital offences -- candidates for the death penalty. Now she has been assigned to defend Binyam Mohammed al-Habashi, a 28-year-old Ethiopian who lived in London, converted to Islam and, in 2001, traveled to Pakistan and Afghanistan. One year later he was arrested on charges of being an al-Qaida supporter. A short time later he was taken to Morocco, allegedly aboard one of the CIA's secret "extraordinary rendition" flights.
He remained in the country for 18 months -- a time during which he alleges he was repeatedly tortured by Moroccans. He claims that he was strung up by his wrists, stripped and tortured for hours and that his tormenters repeatedly sliced into his penis with small, deep incisions.
Bradley doesn't believe that she will be able to achieve anything for her client before the military commission. "If you accept their rules you've lost," she says. "We must take political and legal steps against the trial procedures."
Colonel Bogar is less uncompromising and plans to take advantage of his slim chance of succeeding in his case. And he's found an ally in Washington to champion his cause. Ashraf Haidari is an official at the Afghan embassy, an elegant man who speaks almost perfect English, with an American accent. He greets visitors in a room decorated with gilded marble tables and sofas upholstered with striped material. The pictures hanging on the walls depict a peaceful Afghanistan. Haidari received a visit from representatives of the prosecution on the previous day. They too were looking for information about the defendant, Abdul Zahir.
"Why are they just coming to me now?" asks Haidari, "after five years?" He first learned of Zahir case through Bogar. To this day the Afghan embassy doesn't have an official list of Afghan citizens being held in Guantanamo. But neither has the embassy taken any steps of its own accord to help the detained Afghans.
Haidari and Bogar, the Afghan and the American, have now joined forces in an attempt to enlist the aid of the government in Kabul to invoke the Geneva Convention on behalf of the prisoners. That would allow them to be treated as prisoners of war and it would stipulate that they be tried before a court-martial.
The case against Abdul Zahir is expected to begin in September. Bogar hopes the trial will begin on time, because his tour of duty as a lieutenant colonel in the reserves ends in November. He wants to go home to his wife in Philadelphia, a heart surgeon, and finally start a family. But first he'll have to save America from itself.
Note: This is a corrected version of the original text. It has been modified to remove a translation error.