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Critics of the Guantanamo tribunals have expressed serious reservations about the overwhelming power imbalance in favour of the prosecution in military-commission cases. The trials, skeptics maintain, are so predetermined as to be shams masquerading as military justice. Yet the U.S. government has been on the losing side of an increasing collection of judicial rulings, successful defence motions, appeals and precedent-setting Supreme Court decisions.

A silver lining seems to be emerging from the Guantanamo cloud.

Consider the case of Salim Ahmed Hamdan, Osama bin Laden's driver and one of 275 detainees still being held in Guantanamo Bay. He is charged with conspiracy to commit terrorist acts and was captured in Afghanistan in 2001 with two surface-to-air missiles in the trunk of his car. "The only things in the air at the time," noted Colonel Morris Davis, the former chief prosecutor, "were doves and us."

Mr. Hamdan's formal trial is scheduled to begin on July 31, but pretrial hearings have been going on for some time. I attended his open military-commission hearings as an academic observer from April 27 to 29, along with a large press contingent and several representatives from prominent human rights organizations.

As "unlawful enemy combatants," detainees at Guantanamo are denied some of the most basic rights and privileges afforded other defendants under U.S. civilian or military criminal law. Most of them have spent years in detention without access to legal counsel; many are still unaware of the charges against them; very few have been given an opportunity to face their accusers or see (let alone challenge) the government's evidence; none of them were protected from supplying self-incriminating evidence; most experienced coercive interrogation; and several suffered cruel, inhuman and degrading treatment (the defining traits of torture). Involuntary confessions make up a substantial portion of the evidence against them.

Col. Davis gave perhaps the most remarkable testimony in Mr. Hamdan's case. He resigned as chief prosecutor of the military commission in 2007 because of what he viewed as unlawful influence. On the witness stand, he painted a vivid picture of the pressure he was under from superiors to prioritize "sexy" cases for maximum political benefit.

Col. Davis all but confirmed that powerful, security-conscious officials in the Pentagon jeopardized the chief prosecutor's independence by forcefully guiding the military commissions' pace and direction. His testimony helped to reinforce the image that prevails in the media of a process plagued by a pathological administration resolved to impose its will on the trials, with no checks or balances.

But that was not the impression I formed as an observer.

Mr. Hamdan's defence team relentlessly challenged every aspect of the prosecution's case — demanding that their client be allowed to communicate with other detainees in order to refute the conspiracy charge, requesting access to witnesses on the no-fly list or to classified information from Mr. Hamdan's interrogation records, objecting to his pretrial confinement and treatment, making a strong case against the admissibility of self-incriminating evidence obtained through coercive interrogations, and so on. Dozens of defence motions have built up the strongest possible collection of arguments and strategies in preparation for the jury trial.

DEDICATED DEFENCE TEAMS

I spent much of my time at Guantanamo discussing the case with four exceptionally bright lawyers from Amnesty International, the American Civil Liberties Union, Human Rights First and Human Rights Watch, highly committed to uncovering problems with the military tribunals. Their criticisms and concerns were never directed at the defence teams. "It's not about the defence," one of them insisted.

Mr. Hamdan himself said, "I do have confidence and trust in God with the lawyers I have." Judge Keith Allred replied: "These people have their lives tied up in your defence. They are here to protect you. You should have great faith in American law. You beat the United States once in our system" — a reference to the Supreme Court's 2006 ruling in Hamdan v. Rumsfeld on the Bush administration's first effort to prosecute captured al-Qaeda and Taliban fighters. The majority concluded that the commissions violated the Uniform Code of Military Justice and the Geneva Conventions of 1949. In essence, the government had no right to establish the commissions without congressional approval — which it then went on to obtain, when Congress passed the Military Commissions Act in 2006.

There have been other important victories in Mr. Hamdan's case. Evidence of political bias and interference was instrumental in Judge Allred's firing of Brigadier-General Thomas Hartmann (the legal adviser for the military commissions and Col. Davis's former boss), who is now excluded from taking any further part in this trial.

And though the prosecution passionately underscored the security implications of letting co-conspirators communicate, Judge Allred let Mr. Hamdan contact other detainees.

Several very important victories in other cases are also worth noting.

On Thursday, the U.S. Supreme Court ruled that the Constitution does apply to detainees at Guantanamo; they now have the right to challenge their detention in regular U.S. courts. The writ of habeas corpus is a mandate to bring prisoners to trial quickly, to establish a justification for their imprisonment. The Military Commissions Act suspended habeas corpus, but the Supreme Court has re-established it for Guantanamo detainees. The decision has important implications for the entire military commission process and may be the most significant victory for defence teams so far. Habeas corpus applications in the ordinary courts may do more to reorient the military-commission process — or possibly short-circuit it altogether.

In May, 2008, all charges against the alleged 20th Sept. 11 hijacker, Mohammed al-Qahtani, were dropped. His lawyer interpreted this dismissal as confirmation that his client's confessions were obtained through torture (prohibited by the Military Commissions Act). This precedent makes similar defence victories likely in many of the remaining 80 or so cases.

Colonel Peter Brownback, the former judge in Omar Khadr's trial, threatened the prosecution with dismissal if they continued to delay discovery, which they were accused of having done since November, 2007. The prosecutors finally complied on May 22 by providing Mr. Khadr's lawyer, Lieutenant-Commander Bill Kuebler, access to his client's confinement and interrogation records.

The prosecutors had to hand over, among other things, classified instructions advising interrogators to destroy notes they made during their sessions with prisoners. He is expected to use this revelation to raise grave doubts about the evidence against Mr. Khadr — most of which was obtained through confessions. Judge Brownback could decide, for example, that the destruction of these notes seriously undermines Mr. Khadr's ability to challenge the prosecution's evidence, a core principle of American justice.

COMPELLING ARGUMENTS

The most powerful government in the world, trying to establish the best possible position in preparation for prosecuting Guantanamo detainees, has not been able to prevent defence teams from winning important, precedent-setting victories for their clients.

Washington officials undertook in 2001 to give their military the authority to capture combatants and obtain actionable intelligence, in order to prevent future attacks on the battlefield or on U.S. soil. None of this can be effectively accomplished, the U.S. government has consistently argued, if soldiers are compelled in the midst of a battle, counterinsurgency or counterterrorist operation to read captured fighters their rights (if any) to remain silent or give them prompt access to a lawyer. American security would be jeopardized, in other words, if the government granted detainees the same constitutional protections as are guaranteed to American citizens (or American soldiers, as per the Uniform Code of Military Justice). And in a continuing post-9/11 security crisis in which both Democratic and Republican leaders remain very worried about the consequences of any security failure, the rights of unlawful enemy combatants will be sacrificed every time.

Of course, the primary mission of Guantanamo defence lawyers is to win for their clients the rights and protections most of us take for granted — regardless of security implications, cumbersome rules of engagement on the battlefield, or recidivism rates of released prisoners. These excellent lawyers are mounting compelling arguments against the government's evidence, the ways in which it was collected, the treatment of their detained clients, and the legitimacy of the entire military commission process.

In many important respects, the military commissions are actually working quite well, not only at Guantanamo itself, but also toward establishing a framework of precedents that will go a long way toward preventing future Guantanamos.

Approximately 650 (of the almost 900) Guantanamo prisoners have now been released. Another 195 are at various stages of being processed for return (because the Office of the Chief Prosecutor has no evidence to try them for a violation of the Law of War), and 80 are scheduled for trial by military tribunal.

Many aspects of the Guantanamo story remain deeply troubling, but if the defence teams representing Mr. Hamdan and Mr. Khadr are any indication of the quality of legal counsel Guantanamo detainees are receiving, there are many reasons to be hopeful.

Frank Harvey, international relations professor at Dalhousie University, is the author of the forthcoming book The Homeland Security Dilemma: Fear, Failure and the Future of American Insecurity.