Hamdan Acquitted—and Convicted


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.