Hamdan Acquitted—and Convicted

Jacob Sullum | August 6, 2008

Today a military tribunal at Guantanamo Bay acquitted Salim Ahmed Hamdan, Osama bin Laden's former driver, of participating in conspiracies to carry out terrorist attacks and kill Americans in Afghanistan. At the same time, the panel of six officers convicted Hamdan of providing material support for terrorism.

That split decision seems about right to me. There was no evidence that Hamdan participated in planning or carrying out the 9/11 massacres or other terrorist attacks, or even that he knew the details in advance, and the other conspiracy allegation was based on little more than the fact that there were two shoulder-fired missiles in the car he was driving when he was captured. But Hamdan admitted that he knowingly worked for a terrorist organization, so there was never any real question that he was guilty of providing material support to Al Qaeda.

The real problem with the charge on which he was convicted is that providing material support for terrorism was not an offense triable by military courts at the time Hamdan committed it, an apparent violation of the Constitution's ban on ex post facto laws (assuming that clause applies at Guantanamo). Then, too, the trial in which he was convicted included secret evidence, hearsay evidence, and evidence obtained through coercive interrogations during which Hamdan had no right to remain silent. His lawyers will raise these and other issues when they appeal the conviction, first to a military panel and then to the federal courts. Perhaps the most glaring anomaly, however, is that Hamdan would have received a life sentence regardless of the trial's outcome. Even if he had been acquitted of all charges, the Bush administration claims the authority to keep him and other "enemy combatants" locked up until the cessation of hostilities in the War on Terror—i.e., forever, for all intents and purposes.

I don't have such sympathy for Hamdan, who deserves to be punished for the role he played in Al Qaeda. But there is a question of proportion here. As Hamdan's attorneys noted, even Hitler's driver was not tried as a war criminal, and prisoners who played more prominent roles in Al Qaeda already have been released. Hamdan has been imprisoned for nearly seven years. Had he been tried and convicted by a civilian court, he probably would be released in a few more years. As it is, it looks like he's a lifer, no matter how his appeals go. 

Comments

thoreau|8.6.08 @ 2:32PM|#

As Hamdan's attorneys noted, even Hitler's driver was not tried as a war criminal.

Yes, but Al Qaeda is so much worse because, um, something.

Anyway, we can't afford notions like "proportionality" or "no ex post facto law" when dealing with Al Qaeda because they're, like, the most dangerous thing ever. Soviet Empire what?

|8.6.08 @ 2:36PM|#

Pulitzer prize winning journalist Seymour Hersh says Cheney was involved in planning false-flag terror attacks on US soldiers.

http://www.youtube.com/watch?v=r29BtzfSz0o

I guess nobody cares if our president contemplates killing US soldiers for propaganda.

Naga Sadow|8.6.08 @ 2:37PM|#

Lie. And keep on lying. Lie long enough and the lie becomes the truth.

|8.6.08 @ 2:39PM|#

Providing material support to terrorists was a defined crime in 2000, IIRC. I seem to remember it being included in a Clinton-era bill.

So, would the ex-post-facto argument here, that the crime is being tried in military court instead of civilian court, actually apply?

The Extispicator|8.6.08 @ 2:42PM|#

I don't know why we engage in all this legal mumbo-jumbo; ex post facto this, constitution that ...

Terrorists are bad and we should detain or, preferably, kill them all. Then we'll see how smug they are about their terrorism. USA, USA, USA.

Naga Sadow|8.6.08 @ 2:47PM|#

This will teach all future terrorists to . . . errr . . . not drive Bin Laden around?

|8.6.08 @ 2:52PM|#

The guy was Bin Ladin's body guard and driver. Being that is different than being Hitler's driver. Hitler was the leader of a sovereign nation. It is true that we declared memebership in the Nazi party to be an ex-post facto crime. So Hitler's driver presumably was a member and therefore guilty of a crime. For whaterver reason the Nuremburg tribunals didn't try the guy. Considering that Al Quada is a lot smaller than the Nazi Party so individual members of Al Quada or more collectively culpable than individual members of the Nazi Party.

As far as not prosecuting more important Al Quada members, too bad. I guess that means we should have prosecuted those guys. It doesn't mean this clown should get off.

"Then, too, the trial in which he was convicted included secret evidence, hearsay evidence, and evidence obtained through coercive interrogations during which Hamdan had no right to remain silent."

A couple of responses. First, most countries outside the common law tradition admit hearsay. There is nothing about admiting hearsay that shocks the conscience or makes the trial illegit. As far as coercive interrogation goes, how coercive and is there any evidence that the evidence illicited is false? To my knowledge there is not but maybe there is. I don't know. The right to remain silent is a curious point. Is it your position Jacob that anyone captured on the battlefield should be given the "right to remain silent" like it is fucking Kojak or something? Does the Fifth Amendment really extend to a foreign national caught on a battlefield in a foreign country? If it does then why don't you just be honest and say that we should give everyone captured a gold plated trial in federal court complete with all of the trappings.

ed|8.6.08 @ 2:55PM|#

Pulitzer prize winning journalist Seymour Hersh says Cheney was involved in planning false-flag terror attacks on US soldiers. I guess nobody cares if our president contemplates killing US soldiers for propaganda.

The same prize-winning (as if that matters) author noted in shocking detail many of JFK's depravities in The Dark Side Of Camelot, many of which would be considered impeachable offenses. The nation chose to ignore it. How dare he debunk their cherished myths?

|8.6.08 @ 2:57PM|#

the CIA materially aided bin laden a few years ago...doesn't that make them guilty of the same crime? if not, what day was it that he switched from good guy to bad guy?

|8.6.08 @ 3:10PM|#

and shouldn't his family been investigated for aiding Bin Laden more instead of being escorted out of the country after 9/11?

Guy Montag|8.6.08 @ 3:25PM|#

It is true that we declared memebership in the Nazi party to be an ex-post facto crime. So Hitler's driver presumably was a member and therefore guilty of a crime.

Not if he was in uniform (and I don't know if Hitler's driver was a Soldier or not), but at that time German Soldiers were prohibited from political party membership.

|8.6.08 @ 3:26PM|#

As all these issues get appealed, the Supreme Court is going to reap what it sowed in Boumedienne. I believe the Court will come to regret that decision, from a narrow, institutional perspective, as it gets dragged deeper and deeper into the quagmire it created by saying that civil due process guarantees apply to hostiles captured during wartime.

TXLimey|8.6.08 @ 3:30PM|#

It's worth pointing out that if we'd captured Hitler's driver in 1941, he would still have been kept captive until the end of hostilities in 1945 if not later. Had we believed him complicit in war crimes, we may then have tried him at Nuremberg. Something tells me that he would probably have been subjected to "aggressive interrogation" as well.

Guy Montag|8.6.08 @ 3:36PM|#

BTW, counter to the notion made recently popular by Sen. Obama, the Nuremberg trials were not covered by US law, they were run in accordance with a London agreement between the Allies. Quite a bit of "US Law" was absant from the proceedings.

Roger47|8.6.08 @ 3:44PM|#

Today is the 7th anniversary of the day George Bush, while vacationing at his ranch, was hand-delivered an intelligence briefing warning that Osama Bin Laden was determined to launch an attack against us in the U.S. This is according to the 911 Commision report. The report goes on to say that there is no evidence that Bush or anyone else in his administration took any action whatsoever in response to this warning. No Follow up whatsoever. Had he been inclined to heed warnings instead of ignore them this trial might not have been necessary

|8.6.08 @ 3:54PM|#

Well, at least the author mentioned the two little things missing from most articles; the two shoulder launched surface to air missiles. Not that driving those around might be some sort of crime...

Do those hate Bush ranters actually think that Hamdan was innocent?

|8.6.08 @ 4:03PM|#

I believe the Court will come to regret that decision, from a narrow, institutional perspective, as it gets dragged deeper and deeper into the quagmire it created by saying that civil due process guarantees apply to hostiles captured during wartime.

The Court only ruled that the judiciary could issue, and prisoners petition for, writs of habeas corpus so long as the military's procedures didn't offer adequate procedures. In other words, it was only because the trials were set up as kangaroo courts, as opposed to the courts martial the military wanted to use, that the Court decided it needed to assert jurisdiction. I suspect that that little matter will be cleared up one or or the other pretty early in 2009.

|8.6.08 @ 4:19PM|#

The amusing thing is that the 'carrying around surface to air missiles' was claimed by only one military officer, who admitted that they were found in one of three cars but he didn't know which one Hamdan was driving.

The sad part is that Hamdan not only refused to fire on American soldiers (hiding in a ditch rather than fire his AK-47), but he repeatedly offered to help us catch bin Laden in return for reduced charges. Guess we thought the driver was more important than the passenger.

|8.6.08 @ 4:39PM|#

Matthew,
That is not amusing, that is a conspriacy theory. I suppose you think Cheney would consider killing Americans as well? what a nutter.

Snerdgrasse|8.6.08 @ 4:43PM|#

His driver? His DRIVER, for the sake of murphy.

At long last, an opportunity to dredge up a Latin tag I had spent 3 or 4 decades hoping to find a use for:

"Parturiunt montes, nascetur ridiculus mus (the mountains are in labor, and a ridiculous mouse will be brought forth). . .

Snerdgrasse|8.6.08 @ 4:47PM|#

Here's to hoping they just let him go and get on with his life. $200 per month!

Pathetic

|8.6.08 @ 4:53PM|#

""""""Well, at least the author mentioned the two little things missing from most articles; the two shoulder launched surface to air missiles. Not that driving those around might be some sort of crime..."""

The US has no ability to make carrying anything illegal in any country other than the US. It didn't matter that he had them, what he was going to do with them was the issue."""

Snerdgrasse|8.6.08 @ 4:56PM|#

. . .for $200 p.m. and a 3rd grade education, should he have said no to transporting weapons? Let's get real. . .

|8.6.08 @ 5:11PM|#

Matthew H:

Thanks for the reference to contradictions in testimony - could you provide a link?

In this article:

http://www.washingtonpost.com/wp-dyn/content/story/2008/07/22/ST2008072201633.html

there is no mention of what you suggest.

I did find more information on the testimony here:

http://www.latimes.com/news/nationworld/nation/la-na-hamdan23-2008jul23,0,3560921.story

which mentions the "didn't know which one Hamdan was driving" but does not match precisely your claims and adds other important information.

it appears that that charge was made by two US military members, but is based on reports from Afghans who made the capture.

So, according to the defense, possessing a "get out of Jihad Jail Free" card from Mullah Omar (allowing him to possess weapons, hmmm) is no big deal because... well, it didn't have Hamdan's name on it...

I guess that, even with the typical confusion, I, and the jury, are not so easily convinced he was just a taxi driver.

In any case, knowingly driving Miss Daisy after 9/11 was a crime and was admitted, therefore guilty as charged.

Somehow, though, you expect us to believe that the US military would had no interest in capturing Miss Daisy in preference to keeping the driver? Sounds kooky, at best. ANY proof?

Snerdgrasse|8.6.08 @ 5:14PM|#

For the sake of justice, he was a driver. A driver! Get real. . .

|8.6.08 @ 5:35PM|#

Snerdgrass:

Just a driver? (despite an AK-47 per Matthew H, a free passage and weapons card from Omar, a couple of missiles, and somehow passing the security test to drive Miss Daisy, and then continuing to do so after he knew OBL planned 9/11)

Get Real.

Making stupid decisions, no education, needing a job, helping OBL out of loyalty or nationalism, are not valid excuses for providing aid and comfort to our enemies. Sympathy, empathy, compassion, maybe, but legally excusable, no way. Seems like the US does have the power and legal right to make his actions illegal (funny assertion TrickyVic)

|8.6.08 @ 5:37PM|#

Seems like the United States is drawing a leaf from Hitler's book. He's an enemy! A threat! But what about fair trial? Forget it, lock him up.

Snerdgrasse|8.6.08 @ 5:43PM|#

Sashland:
Everything's so cut-and-dried in America. Others do not live the way we do. . .you are never going to get this, so stop trying.

You should try making a living in an Arab country as an uneducated native. Not great for the educated ones, either, but most don't starve. You have a family to feed? What would YOU do, Sashland, O Great Keeper of America's Values?

|8.6.08 @ 5:51PM|#

-----

I believe the Court will come to regret that decision, from a narrow, institutional perspective, as it gets dragged deeper and deeper into the quagmire it created by saying that civil due process guarantees apply to hostiles captured during wartime.

The Court only ruled that the judiciary could issue, and prisoners petition for, writs of habeas corpus so long as the military's procedures didn't offer adequate procedures. In other words, it was only because the trials were set up as kangaroo courts, as opposed to the courts martial the military wanted to use, that the Court decided it needed to assert jurisdiction. I suspect that that little matter will be cleared up one or or the other pretty early in 2009.

-----

Yes, but the mess is bigger than this, and entirely created by the President--let's remember that the Court only got involved because of the late 2001/early 2002 Bush decision not to abide by the Geneva conventions, which Powell at the time predicted would produce just this result (judicial oversight that would otherwise be pretty much absent).

Interestingly enough, one of Gonzales's main arguments against Powell (taking advice from Yoo and others at OLC), was that trashing Geneva would give involved U.S. officials better protection from any future war crimes prosecution....

|8.6.08 @ 6:57PM|#

Snerdgrasse:

I'll admit, I'll probably never "get it". How seemingly educated and intelligent people latch onto the "poverty excuse" to ignore the evidence. That self delusion is quite hard to understand but it is real, and dangerous. In this case, I don't want to get infected with that "it".

Yah, that morals thing is so hard for you to get. Is stealing food from a cabin while lost in the woods, or stealing food from a grocery store abandoned in a hurricane, the same moral choice as working for a mass murderer? You might get by with excusing growing poppies but working for OBL, paid or not, is helping him murder.

No other choice you see? How about turning OBL in for a small reward? Or at least leaving when it became obvious what he was supporting. Your implication, that all folks faced with a dilemma of feeding a family are free to make immoral choices, is insulting to the billions who struggle every day to be good, honest people and do the right thing. In fact, many, when faced with the choice of immorality or death, choose to be true despite the consequences. Next you're going to claim our soldiers are only in it for the money?

Got It?

Manchu|8.6.08 @ 6:58PM|#

Lots of people from Yemen managed to find useful employment throughout the gulf. They didn't have to go as far afield as Afghanistan. Trust me, having lived 8 years in the Gulf, Yemini guest workers were quite common. He didn't have to go to Afghanistan to feed his family - that's BS.

To get to Afghanistan you had to WANT to go to Afghanistan. It was no secret in the Arab world the kind of Islamic government that was being conducted there.

It was also no secret who AQ were.

Even if he hadn't known, Hamdan could have got there and said "Ah....er... this wasn't what I signed up for... see ya"...

He didn't, he bought into the program hook line and sinker. We caught him and now he's crying the blues.

People who wring their hands about the poor victims of GITMO disgust me.

Jason|8.6.08 @ 7:28PM|#

It seems to me that all the hand-wringing over the detainees at Guantanamo will lead to future soldiers simply blowing the enemy combatants brains out instead of capturing them. I think we all should tread very carefully here. We may get what we want, and that may be the worse horror yet.

|8.6.08 @ 8:01PM|#

Speaking of proportionality: To all those who are constantly ranting about Bush & Cheney's "lies" and "shredding of the Constitution", try remembering why they were doing it -- to aggressively punish those who have killed Americans, and to thwart those who have plans to kill even more of us. Maybe they went too far (maybe not, considering we haven't been attacked since 9/11). But still -- that pisses you off? Why?

Marsha Stratham|8.6.08 @ 8:01PM|#

A driver? Good god, what next? His cook? The guy who sells vegetables to the camp?

Justice is proportionality. My government has made an ass of itself. Find Bin Laden, guys, and quit the tomfoolery.

Bill|8.6.08 @ 8:45PM|#

Is anyone else bothered by the fact that this guy is not an American citizen and committed his "crime" in another country? How does the US have jurisdiction?

|8.6.08 @ 10:10PM|#

My God someone actually quoted Semour Hersh! What next Zinn or Bin Laden as examples of moral judgement or integrity?

I can't think of anyon4e as mendacious yet sophomoric as Hersh except for the Dalibama.

|8.6.08 @ 10:39PM|#

"Thoreau", are you an absolute idiot? Al Qaeda is much worse than Hitler???? Why? You intimate because they had the audacity to kill 3,000 Americans. Check the numbers, dude. I would say that 5-6 million Jews, Catholics, Romanians and assorted other folks would strongly disagree, not to mention the hundreds of thousands of Americans killed in WWII.
Take the vote away from morons, please.

.|8.6.08 @ 10:42PM|#

In fact, many, when faced with the choice of immorality or death, choose to be true despite the consequences.

Speaking of proportionality: To all those who are constantly ranting about Bush & Cheney's "lies" and "shredding of the Constitution", try remembering why they were doing it

Too bad Bush & Cheney could not be true to their oath to protect, defend and preserve that Constitution ...

thoreau|8.6.08 @ 11:21PM|#

R Chapman, please be assured that I was totally not serious. It was offered as a parody of the bedwetting hawks who would discard our laws out of fear.

|8.7.08 @ 12:38AM|#

I think we are missing the fact that he was not guilty of the two most serious charges. So after seven years they find him guilty of something that he admitted doing from day one. This is suppose to be the beginning of the trials of those this government said were the most serious
offenders and all they could convict him of was
something he never disputed.Pathetic

Rick Barton\'s award winning n|8.7.08 @ 2:07AM|#

Jacob:

Perhaps the most glaring anomaly, however, is that Hamdan would have received a life sentence regardless of the trial's outcome. Even if he had been acquitted of all charges, the Bush administration claims the authority to keep him and other "enemy combatants" locked up until the cessation of hostilities in the War on Terror-i.e., forever, for all intents and purposes...As it is, it looks like he's a lifer, no matter how his appeals go.

Sounds just like old Soviet style "justice". Almost 20 Years after cheering the demise of the most dominant tyranny on the planet, we're sadly watching our own government emulate it.

|8.7.08 @ 5:18AM|#

Al Qaeda is so much worse ?
They didn't plan on exterminating 6 million people so far

Snerdgrasse|8.7.08 @ 6:02AM|#

Sashland: Have you ever been in a 3rd world country and had dialogue with any of the natives? You simply cannot see that it is not merely about values, it's about perspective. You just cut and paste the rules as you see them, and then imagine you're merely adhering to an absolute truth.

Not so. Get out there and live some. You sound like (you may not be, but you sound like. . .) one of the 84% of Americans who've never traveled outside the good ole. . .

Snerdgrasse|8.7.08 @ 6:08AM|#

Next, his cook. Followed by his pedicurist. And why exclude his wife, should he have one? After all, she is aiding and abetting terrorism in no uncertain terms.

Then, we should go for the guy who sells him the Waziristan equivalent of mass transit tickets. And how about the tax collector who handles his file? Not to mention god. . .

As well, of course and automatically, how could I forget. . .his doctor, his dentist, his candlestick-maker, his cobbler.

His DRIVER, for the sake of heaven. His driver. . .

Ain't that America somethin' to see baby
Ain't that America home of the free, yeah

|8.7.08 @ 10:31AM|#

Jason | August 6, 2008, 7:28pm | #

It seems to me that all the hand-wringing over the detainees at Guantanamo will lead to future soldiers simply blowing the enemy combatants brains out instead of capturing them.

Virtually none of the people in Guantanamo were taken prisoner while fighting on a battlefield. Far more common are people who were brought in to American forces by locals, bound and disarmed, for a reward.

You may find it likely that American military personnel would summarily execute people in such a situation, Jason, but I find that exceecdingly unlikely.

|8.7.08 @ 10:52AM|#

The Court only ruled that the judiciary could issue, and prisoners petition for, writs of habeas corpus so long as the military's procedures didn't offer adequate procedures.

The adequacy of the procedures is determined according to Consitutional standards not previously applied to military tribunals. The open questions include:

(1) Just what Constitutional standards apply? The full boat of "civilian" protections? If not, why not?

(2) Just when do military tribunals trigger Constitutional protections? Anytime the location of the tribunal is under American "control"? What does that mean, exactly?

There will be innumerable cases created by Boumedienne, many of them controversial and political, just the kind of case that, over time, the Court has been careful to avoid in the past to preserve its legitimacy and standing.

let's remember that the Court only got involved because of the late 2001/early 2002 Bush decision not to abide by the Geneva conventions,

Actually, the Court ruled that the procedures specified by Congress (in response to the kerfuffle over Gitmo) were inadequate.

You may find it likely that American military personnel would summarily execute people in such a situation, Jason, but I find that exceecdingly unlikely.

In that situation, yes. However, the response to that situation could be something that prevents the triggering of Boumedienne protections (however they are expanded going forward) that could be less than savory, such as remanding to the locals for detention and "questioning".

And, lets not forget, Boumedienne's standard for when Constitutional protections are triggered is extremely vague, and could well be interpreted to include the capture of enemy soldiers in the field. Boumedienne, by its terms, is quite consistent with giving every POW a habeas corpus hearing with whatever protections the Court deems necessary for such hearings.

|8.7.08 @ 11:58AM|#

RC Dean,

The court issued novel rulings, because the administration presented it with a novel situation. Had these trials been carried out according to the military's own judicial procedures, none of this would have happened, and the SCOTUS never would have gotten involved.

|8.7.08 @ 12:59PM|#

Snerdgrasse 6:02

"Natives"? "Perspective"?

"Cut and paste"?

"HIS DRIVER"?

Thanks for proving my point with your delusional rant. Don't let any evidence confuse you.

Hamdan ain't no taxi driver. He knowingly supported a mass murderer. You're lack of both perspective and values negate any valid points that might be buried in your posts.

ANd yes, I hope they do capture his Doctor, and tickle him.

|8.7.08 @ 5:24PM|#

So he gets time served plus a few months.

I'm not so sure of the arugment that you can hold them till the end of the war because we are not very good at ending wars. By that standard, North Korea has the right to contiune holding our POWs.

""Had these trials been carried out according to the military's own judicial procedures, none of this would have happened, and the SCOTUS never would have gotten involved."

I'm suprised how seemingly intelligent people can't grasp that concept.