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The news out of Guantanamo yesterday was perplexing, with first reports saying that the five detainees--including alleged mastermind Khalid Sheik Mohammed--wanted to plead guilty, then the apparent withdrawal of those pleas when the issue of the competency of two of the men was raised.

Here's how the NY Times reports the story:

GUANTÁNAMO BAY, Cuba — The five Guantánamo detainees charged with coordinating the Sept. 11 attacks told a military judge on Monday that they wanted to confess in full, a move that seemed to challenge the government to put them to death.

The request, which was the result of hours of private meetings among the detainees, appeared intended to undercut the government’s plan for a high-profile trial while drawing international attention to what some of the five men have said was a desire for martyrdom.

But the military judge, Col. Stephen R. Henley of the Army, said a number of legal questions about how the commissions are to deal with capital cases had to be resolved before guilty pleas could be accepted.

The actual proceedings yesterday were far more convoluted than the news reports would have you believe, according to the ACLU's Anthony Romero, who witnessed the hearing. Last night, he had a conference call from Guantanamo with me, Glenn, John Amato from C&L, Digby, and Christy from FDL. He also released this statement:

"This afternoon's hearing was just another chapter in the Guantánamo military commissions debacle. Neither the military judge nor the accused are clear about how these proceedings will move forward. What is abundantly clear is that no matter how hard the government tries to advance the military commissions, this process doesn't work. Questions of the death penalty and the competence of several of the defendants are still unresolved – and not likely to be resolved. The only solution is to shut the military commissions down and start from scratch."

In last night's conference call, Romero emphasized the fact that the military commissions process has been so haphazardly slapped together that even the judge didn't know how to proceed with a guilty plea, whether a death sentence could be imposed if the case wasn't heard by a "jury."

But even more disturbing to Romero, and what should be a red flag for the incoming Obama administration intent on shutting Guantanamo down, was the attempt to show that this proceeding was the actual equivalent of a real trial, a show put on for the visiting press and particularly a handful of 9/11 victims' family members to garner good PR for the military commissions process and for keeping Guantanmo open. Consider this reaction, from one of the family members:

One observer who lost his parents in the attacks said he supports holding the trials at Guantanamo Bay.

"The U.S. is doing its best to prove to the world that this is a fair proceeding," said Hamilton Peterson of Bethesda, Md., whose parents Donald and Jean were on United Flight 93.

"It was stunning to see today how not only do the defendants comprehend their extensive rights ... they are explicitly asking the court to hurry up because they are bored with the due process they are receiving."

The family members saw yesterday what looked like a regular trial, just like Perry Mason, with a judge and prosecutors and defense attorneys. They saw a concerted attempt by the military to make a military commissions proceeding look like the rule of law. What these family members didn't see in the in the proceeding yesterday was that this proceeding is anything but fair in terms of the rule of law. That evidence presented in charging these men was built on hearsay, on coerced testimony, on waterboarding--on torture. None of these cases could have been brought before a real criminal court based on the evidence at hand.

Romero sees a two-pronged effort in play by the Bush administration and the military in this proceeding, aimed at preserving the military commissions process instead of moving the cases to either the UCMJ or civilian courts, and at keeping Guantanamo open. He sees the attempt by Henley to expedite these proceedings at breakneck speed as an effort to have the case against KSM and the other so advanced by Jan. 20 that the Obama administration will have a more difficult time shutting down the military commissions. By having the 9/11 family members on hand to witness "justice" being served at Guantanamo, the administration and the military could be trying to create a groundswell of public support against Obama's promise to shut it down.

That promise is the most critical for one made by candidate Obama for President Obama to keep, for our own moral preservation as a country, our national security, and for our standing in the world community.

The words of "Matthew Alexander," are instructive here. Alexander (a pseudonym) is a former Air Force counterintelligence agent who led an interrogations team assigned to the Special Operations task force in Iraq that was responsible for the intelligence that led to Zarqawi.

I learned in Iraq that the No. 1 reason foreign fighters flocked there to fight were the abuses carried out at Abu Ghraib and Guantanamo. Our policy of torture was directly and swiftly recruiting fighters for al-Qaeda in Iraq. The large majority of suicide bombings in Iraq are still carried out by these foreigners. They are also involved in most of the attacks on U.S. and coalition forces in Iraq. It's no exaggeration to say that at least half of our losses and casualties in that country have come at the hands of foreigners who joined the fray because of our program of detainee abuse. The number of U.S. soldiers who have died because of our torture policy will never be definitively known, but it is fair to say that it is close to the number of lives lost on Sept. 11, 2001. How anyone can say that torture keeps Americans safe is beyond me -- unless you don't count American soldiers as Americans....

My experiences have landed me in the middle of another war -- one even more important than the Iraq conflict. The war after the war is a fight about who we are as Americans. Murderers like Zarqawi can kill us, but they can't force us to change who we are. We can only do that to ourselves. One day, when my grandkids sit on my knee and ask me about the war, I'll say to them, "Which one?"

We're told that our only options are to persist in carrying out torture or to face another terrorist attack. But there truly is a better way to carry out interrogations -- and a way to get out of this false choice between torture and terror.

I'm actually quite optimistic these days, in no small measure because President-elect Barack Obama has promised to outlaw the practice of torture throughout our government. But until we renounce the sorts of abuses that have stained our national honor, al-Qaeda will be winning. Zarqawi is dead, but he has still forced us to show the world that we do not adhere to the principles we say we cherish. We're better than that. We're smarter, too.

Originally posted to Daily Kos on Tue Dec 09, 2008 at 11:40 AM PST.

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