"Judging" Abdul Zahir

Tuesday was the first appearance of Abdul Zahir before the military commission. Mr. Zahir is 35-year-old Afghani who was designated eligible to face this military commission by President Bush in 2004. But he was only formally charged this year, in February 2006.

Mr. Zahir walked slowly into the commission room escorted by military personnel, his hands shackled. He sat next to the defense interpreter and military defense counsel, Lt. Col. Thomas Bogar. Unlike most of the prisoners who have appeared before the commission, he did not have a civilian counsel (though he later he may ask for one in the future). According to the commission rules, prisoners facing charges are entitled to a free military defense counsel and unpaid civilian attorney who must be a U.S. citizen with appropriate security clearance.

The system of military commissions is very deceptive. It appears at first to be a court of justice with a fair process and impartial role. In reality, it is a deficient system rife with legal and procedural problems that, if allowed to persist, ultimately lead to travesty of justice.

The supposed judge is called a “presiding officer,” nominated by a Pentagon official, called the “appointing authority,” who in turn reports to the Secretary of Defense, who reports to the President. As this process comes under increased scrutiny, the administration is doing what it can to make the commission system appear functional, legitimate and most of all fair. Even the dress of the “presiding officer” has changed. This week he wore a black robe over his military uniform, a costume this office did not wear when I was hear in 2004 observing the Hamdan case.

Mr. Zahir is the first Afghan national to appear before the commission. The general allegation against him is conspiracy to commit war crimes. In fact, the allegation of conspiracy to commit war crimes appears almost in all the ten charge sheets filed against the prisoners facing military commission trials. Under international humanitarian law, also known as the Laws of War, the crime of conspiracy to commit war crimes is not recognized, and customary international criminal law clearly defines conspiracy as a crime itself only for the offences of “conspiracy to commit genocide.”

Mr. Zahir is also charged with aiding the enemy (al Qaida and the Taliban) between 1997 and July 2002, and, with others, throwing a grenade on a civilian car in Gardez, Afghanistan, and injuring a Toronto Star reporter who was in the vehicle. It’s interesting that we learned more about Mr. Zahir’s alleged involvement in the attack during the press briefing after the hearing than we knew from the charge sheet or from observing the hearing itself.

to be continued…