Hamdan Acquitted—and Convicted
Jacob Sullum | August 6, 2008, 2:27pm
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.
Sashland | August 6, 2008, 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?
R C Dean | August 7, 2008, 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.
