Criminal Justice

Does a Fair Outcome for Hamdan Mean the Process Is Fair?

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"What ultimately happened, in spite of the system, was justice," says Charles D. Swift, one of Salim Hamdan's defense attorneys. The officers who heard Hamdan's case certainly deserve credit for fairly weighing the evidence against him, rejecting unsubstantiated conspiracy charges, and selecting an appropriate sentence, five and a half years, for the crime he clearly did commit: providing material support for terrorism by serving as Osama bin Laden's driver. The military judge who presided over the trial likewise did the right thing by giving Hamdan credit for the 61 months he has served at Guantanamo since he was charged. The upshot is that Hamdan could, in theory, be released at the end of the year, assuming the Bush administration does not insist on keeping him locked up until the "cessation of hostilities" in the War on Terror—i.e., for the rest of his life. Even if the current administration does not release Hamdan, the next one might. In short, the outcome of this trial seems just, something the Bush administration's critics should be willing to acknowledge.

At the same time, a similar result could have been reached a long time ago in a civilian trial or a standard court martial, perhaps with some adjustments to prevent the release of classified information. Was there a compelling reason to invent a whole new system, let alone to do so initially without seeking authority from Congress? The result has been years of legal wrangling, interbranch acrimony, and international criticism. Now, nearly seven years after President Bush unilaterally created military tribunals that the Supreme Court ultimately deemed illegal, we have the very first verdict, in a case involving a low-ranking Al Qaeda employee who never helped plan or execute a terrorist attack. While prosecutors requested a sentence of 20 years to life, the jury settled instead on 66 months. Wake Forest law professor Bobby Chesney reports that the median sentence for people convicted of material support in civilian court is nearly twice as long, which suggests the jury considered Hamdan's crime relatively minor.  

Although Hamdan's trial proved fairer than many of the president's critics (including me) expected, there are still some troubling aspects to the process (leaving aside the possibility of indefinite confinement even after the defendant has completed his sentence). The admissibility of evidence obtained through coercive interrogation probably did not make much difference in Hamdan's case, since he readily admitted working for Bin Laden. But it's not hard to imagine situations where information obtained through torture or something close to it would wrongly implicate a defendant or exaggerate his crimes. Likewise, Hamdan's defense was not stymied by secret evidence that his attorneys did not have an adequate opportunity to challenge, but that's a problem future defendants could face.  

An issue that did play a central role in Hamdan's trial is whether his prosecution violated the Constitution's prohibition of ex post facto laws. Providing material support for terrorism has been a federal crime since 1993, although until 2001 it consisted of providing training, money, weapons, or other tangible goods to terrorist groups. The PATRIOT Act, passed in late October 2001, broadened the definition of the crime to include providing "expert advice or assistance." In 2004 Congress again broadened the meaning of "material assistance," defining it to include "any property, tangible or intangible, or service." (It also made receiving training a violation, making it easier to prosecute would-be terrorists who visit Al Qaeda camps.) So driving Osama bin Laden around was definitely a federal crime after 2004 and arguably one after October 2001. Hamdan was captured in November 2001, so he committed the crime for at least a month or so, assuming that driving constitutes "expert advice or assistance." But Hamdan was not tried in civilian court, and Congress did not make material support for terrorism a crime triable by military commissions until 2006. Prosecutors argued that it nevertheless was internationally recognized as a war crime, but that is by no means clear.

Although this issue may seem like a technicality, what's at stake is a basic principle of justice: To be convicted of a crime, people must have advance notice that they are breaking the law. The point is not that Hamdan did not realize being Bin Laden's chauffeur was legally risky, or that he was closely following terrorism-related legislation in the U.S. But once the government has the power to retroactively define crimes, it won't be just Al Qaeda employees who are in jeopardy. 

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  1. Does a Fair Outcome for Hamdan Mean the Process Is Fair?

    No.

    Next topic?

  2. The officers who heard Hamdan’s case certainly deserve credit for fairly weighing the evidence against him, rejecting unsubstantiated conspiracy charges, and selecting an appropriate sentence, five and a half years, for the crime he clearly did commit: providing material support for terrorism by serving as Osama bin Laden’s driver. The military judge who presided over the trial likewise did the right thing by giving Hamdan credit for the 61 months he has served at Guantanamo since he was charged.

    Something tells me the Army Rubber Dogshit Center in Death Valley, CA isn’t going to be hurting for sentries any time soon.

  3. Damn you, NM! You co-opted my cunning plan!

  4. Mine too, LMNOP.

  5. It was pure joy yesterday reading Andy McCarthy’s cries of injustice on the Corner yesterday. Pure joy.

  6. “In short, the outcome of this trial seems just, something the Bush administration’s critics should be willing to acknowledge.”

    This particular critic feels obliged to point out that any action of a kangaroo court is inherently unjust, and is more than a little disgusted that he even needs to point that out here.

  7. The cynic in me wonders if the purpose for a “fair” verdict (relative to expectations) in this first tribunal was to persuade people that this process is perfectly fine, clearing the way for future abuses.

    Still, kudos to the judges.

  8. But once the government has the power to retroactively define crimes, it won’t be just Al Qaeda employees who are in jeopardy.

    Indeed, President Obama may use that power very poorly indeed.

  9. add to the list of questions about the nature of the crime the fact that Hamdan was presumably not driving Bin Laden around US territory, and thus US law doesn’t apply

  10. Dammit! I thought that “John McCain” joke post was cleared from my cookies.

  11. No, military tribunals are totally unfair.

  12. Ich bin damit einverstanden, v?llig ungerecht.

  13. Hitler?! I thought he was Charlie Chaplin!

  14. This outcome happened because the officers involved demonstrated a higher level of responsibility and reason in the application of their duties than the law and the administration required of them.

    That is a mighty think reed on which to hang our freedoms.

  15. Hitler? I just met her!

  16. Ich wei? es nicht, sie offenbar nicht alle so schlimm.

  17. No, military tribunals are totally unfair.

    Military tribunals are as fair, or unfair, as the rules governing their establishment and operation direct them to be.

  18. A travesty. I blame the Jews.

  19. A think reed? What is that, joe?

    🙂

  20. What disturbs me is that the first defendant to come down the pike is a fucking driver. Don’t they have masterminds and mass murderers to try? Where are the truly bad dudes?

  21. Kann ich bitte jetzt nach Hause gehen?

  22. Eh, sie scheinen nicht so schlecht.

  23. Dammit! I thought that “John McCain” joke post was cleared from my cookies.

    John McCain is a particularly stale cookie. This explains his persistence.

  24. Where are the truly bad dudes?

    Kumpel! Ich bin v?llig sagte der exakt gleiche Sache!

    Hat sie h?ren? Nein.

  25. A think reed? What is that, joe?

    Aw, man, what was I JUST talking about?

  26. I find it a curious coincidence that his sentence will have him released a few months after the elections have ended; just the same as it was with David Hicks in Australia. Not to mention punting the “which country is going to take him and what if no one wants to” issue to the next guy.

  27. The Hamdan case was, of course, the perfect case for this experiment. The evidentiary quirks in the process would be vastly more unfair in almost every other conceivable case. And additionally, Hamdan was the perfect defendant, as he had clear links to BL and al qaeda. What about everyone else?

    And even if the process were fair, does it really matter? Hardly anyone at Gitmo is being tried for anything — what sort of process is that?

  28. The upshot is that Hamdan could, in theory, be released at the end of the year, assuming the Bush administration does not insist on keeping him locked up until the “cessation of hostilities” in the War on Terror-i.e., for the rest of his life.

    Which, were we to treat him as a prisoner of war under the Geneva Conventions, as so many urge, would be standard operating procedure.

    Yeah, the ex post facto angle is troubling. Hadn’t known about that.

    The whole affair points up the kinds of clusterfucks we can expect if we treat the fundamentally political/military activity of terrorism as a civil crime. Doing so may create precedents some of us applaud, like the extension of habeas corpus to overseas military bases, but it also opens the door for the erosion of civil liberties due to the iron demands of warfighting. There has traditionally been a distinction between the two, not so much to protect the military from the civilian standards, but to protect the civilians from martial law. I think we may well rue the day that distinction was eroded.

  29. I think we may well rue the day that distinction was eroded.

    Yes, the militarization of our response to the crimes of 9/11 was a tremendous mistake. The blurring of the difference between the war in Afghanistan and the broader effort against Al Qaeda is real threat to our freedoms.

  30. The whole affair points up the kinds of clusterfucks we can expect if we treat the fundamentally political/military activity of terrorism as a civil crime.

    We treated the first WTC bombing as a civil crime. Ditto OKC. Zero clusterfucks.

  31. We treated the first WTC bombing as a civil crime. Ditto OKC. Zero clusterfucks.

    Mmm. It still strikes me as odd (though I’m sure at this point it shouldn’t) just how far down the memory hole the Oklahoma City Bombing really has fallen. Your comment here is the second reference I’ve read or heard about it in nearly five years. The first, oddly enough, was yesterday when I was chatting with a customer.

  32. RC Dean, you can’t pick and chose which POW rights accrue to these people. They’re either POWs (all POW rights) or not (some sort of civilian process required). And it’s absurd to call the War on Terror a “war” under the Geneva Convention, or any common sense definition. The appropriate war would be the war in Afghanistan, which isn’t (hopefuly) interminable.

  33. “Although this issue may seem like a technicality, what’s at stake is a basic principle of justice: To be convicted of a crime, people must have advance notice that they are breaking the law.”

    Are you actually arguing that Hamdan did not know that? He had to know at the very least this was extremely risky, considering the fact that Bin Laden has had several attempts made on his life, from both overt and covert operators. He also had to know that Bin Laden is the head of an organization largely formed to commit illegal acts, and the joining of which is also illegal in many countries. That’s quite an assumption. Now, if Hamdan argued that he was forced to work for Bin Laden, then that is a different story, but I am not aware that he argued that in court.

  34. R.C. Dean,

    Which, were we to treat him as a prisoner of war under the Geneva Conventions, as so many urge, would be standard operating procedure.

    Isn’t it correct that the Bush administration chose not to treat them under the standards of the Geneva Conventions?

  35. It still strikes me as odd (though I’m sure at this point it shouldn’t) just how far down the memory hole the Oklahoma City Bombing really has fallen.

    Considering that it was orchestrated by Saddam and bin Laden through Jose Padilla and using McVeigh as a patsy a la Oswald, yeah, it is odd.

    (just kidding, conspiracy mode off)

  36. God forgive me for doing this, but I’m going to use the Drug War to point out that due process is possible:

    We frequently arrest, try, convict, and punish members of drug cartels. Drug cartels are violent organizations that often have leaders hiding in lawless and corrupt parts of the world. They have far more money and manpower than Al Qaeda, and I’ll bet they have better marksmen and explosives experts. They have ties to guerrilla armies throughout the world. Their ability to evade border security and buy the assistance of law enforcement personnel far exceeds anything Bin Laden could ever hope for.

    By any measure, drug cartels should pose far more difficulties for law enforcement than Al Qaeda. Nonetheless, we use civilian courts to try, convict, and punish members of drug cartels. I won’t pretend that the rules are scrupulously followed, nor will I pretend that there are no abuses–far, far, from it. Nonetheless, the basic structure is retained without resort to “The Decider Decides” or whatever.

    If a drug lord ordered the bombing of a District Attorney’s office, that drug lord would be pursued by law enforcement, dragged to court, tried, and convicted. And nobody here would object. But if a guy with one tenth the resources decide to bomb the same office in the name of religion, people would be screaming for war and the abandonment of due process.

  37. The prohibition against ex post facto laws is definitely a basic principle of justice. But a basic principle of warfare is that if you help the enemy, you are the enemy. If we’re going to be the first nation to integrate a true justice system into our warfare, there are going to have to be some compromises.

    While the danger of ex post facto laws is very real. It should be quite easy to delineate the very clear and unique circumstances in which ex post facto laws may be applied. Particularly, circumstances in which the activities of the accused should provide constructive notice of the illegality of his acts, and it is unlikely that the accused would have had actual notice of the law had it been in effect at the time of his actions. Such laws could only be applied against non-US citizens, participating abroad, in the commission of violent felonies against US citizens.

    If applied to this extremely narrow group of people, notice would not be a significant issue. These people would be participating in the commission of violent felonies so they would have constructive notice that they are legally at risk. Furthermore, they would be operating abroad so it is unlikely that they would have actual notice of any US laws. And lastly, the non-US citizen requirement would entitle US citizens to the presumption that they would have had knowledge of US laws.

    This bright line application of ex post facto laws could avoid any notice or slippery slope issues.

  38. I wish there were some translations of the German comments.

  39. Moreover….

    If we look at ideological violence in the US, there are lots of extremist movements that have resorted to violence (both on the right and left). These movements have enjoyed advantages that Al Qaeda cells could only dream of: Generally their members have skin colors and facial features that attract less scrutiny from law enforcement (e.g. Klansmen, McVeigh and associates, many radical leftists, etc.), often they can rely on sympathetic local populations (e.g. Klansmen, and Eric Rudolph reportedly had help while in hiding), and some of them (e.g. various radical leftists) have come from comparatively educated and affluent classes, making it easier for cell members to draw financial support and (if they aren’t identified by law enforcement) slip back into respectable society and maintain deniability.

    I just don’t see any need to regard Islamist terrorists as enemy combatants as opposed to criminals. If we can try and convict foreign drug lords and domestic bombers, we can try and convict Arab bombers.

  40. Considering that it was orchestrated by Saddam and bin Laden through Jose Padilla and using McVeigh as a patsy a la Oswald, yeah, it is odd.

    Ah, Laruie Mylroie. Is there anything she DOESN’T know?

  41. Am I the only one who finds irony in a guy calling himself, of all things, Edmond Dantes, arguing for the possibly just application of ex post facto laws?

  42. You may want to reread the book or look up “ex post facto” laws

  43. Silly Dick and George. Just because you can dress up a kangaroo in a black robe and powdered wig doesn’t mean you can predict which way it will jump…

  44. Edmond Dant?s was innocent.

  45. Joe,

    The judge was a CPT in the Navy so they really can’t do much to him beyond force him to retire. Honestly, the guy was the cheuffer. Really, that is all he was. I don’t think that judge is some crazy lefty. I think that this guy just really wasn’t that big of a deal in Al Quada. As much as I would like to get all worked up about this, I really can’t. I didn’t hear the evidence or see the trial and from what I have heard, it is not like this guy was KSM or something. I will therefore give the judge the benefit of the doubt and assume justice was done.

  46. After the Boumideinne decisison, John Yoo wrote in a WSJ editorial:
    Judicial micromanagement will now intrude into the conduct of war. Federal courts will jury-rig a process whose every rule second-guesses our soldiers and intelligence agents in the field. A judge’s view on how much “proof” is needed to find that a “suspect” is a terrorist will become the standard applied on the battlefield. Soldiers will have to gather “evidence,” which will have to be safeguarded until a court hearing, take statements from “witnesses,” and probably provide some kind of Miranda-style warning upon capture. No doubt lawyers will swarm to provide representation for new prisoners.

    As I remember, many here mocked Yoo’s predictions.

    Now Jacob Sullum says we should worry about war crimes tribunals that allow information from “coercive interrogation.” Mind you, this is not torture. This is the same kind of interrogation that all criminal defendants had pre-Miranda.

    Jacob Sullum is worried aobut secret evidence used in these tribunals. How can a military work without some secrecy?

    He’s worried that Bin Ladin’s driver and bodyguard (why is it that Hamdan’s referred to as a driver and not a bodyguard, even when he was both?) may be subject to ex post facto laws. As if the guy protecting Bin Ladin for five years and caught with 2 shoulder fired missiles had no idea that he was protecting a terrorist ring-leader.

    All I’m saying here is that Jacob Sullum is calling for exactly the kind of things that people said John Yoo was crazy for predicting.

  47. Edmond Dantes,

    Is being a random Afghan with enemies willing to sell your name and accuse you of terrorist activities with no evidence “circumstances in which the activities of the accused should provide constructive notice of the illegality of his acts.” One could drive a tank (and hundreds of random Afghans, as it were) through that exception. Your second condition is also self defeating. How would you prove that they’ve commited a felony unless they’re extended some form of process? And if you make that determination without process on the basis of an ex post facto law, haven’t you completely eviscerated the condition?

  48. Adul,

    See Jacob’s post when the verdict came out worrying about Hamden being convicted over statements where he had “no right to remain silent”. It is lunacy.

  49. Btw, despite my last post, I don’t think ex post facto laws are the real problem here.

  50. We treated the first WTC bombing as a civil crime. Ditto OKC. Zero clusterfucks.

    OKC was not the act of an organized international group that had managed to seize control of one country and kill thousands of Americans. Size matters.

    The civil-only response to the first WTC bombing was, in retrospect, pathetically ineffective. Ineffective responses lead, as we have learned to our sorrow, to greater pressure on civil rights across the board. The failure of the AQ-is-nothing-but-criminal viewpoint brought us, after all, the PATRIOT Act.

    And that’s my point – if we choose to use the civil justice system, or its standards, to solve the problem of terrorism, we will eventually have to change it so it is actually effective. Those changes are not likely to be changes that folks around here will approve of.

    Isn’t it correct that the Bush administration chose not to treat them under the standards of the Geneva Conventions?

    Sure, because they don’t qualify under the terms of the Conventions as lawful combatants eligible for POW status.

  51. RC Dean,

    No matter whether we use a civil or a military judicial system, it will bleed into the civil world. That’s inevitable for something as grey as the “war on terror.” We agree that most of these people don’t quite fit into the POW terms of the Geneva convention. They don’t quite fit anywhere. That’s the point. If the administration had ever created a clear path and system for these people, we wouldn’t have this travesty of justice (hundreds of people held indefinetely without any legal charges, no proces, no POW rights, no defined legal status whatsoever… nada).

    Anyway, the administration’s various legal losses in the S.Ct and other courts over the last few years don’t require a civil system of justice parallel to the system used by you and I. They require a clear system with certain procedural safeguards. That these people would ever see the light of day, let alone any process whatsover, is almost inconceivable as it stands now. The fairness of one really easy case (Hamdan) is almost beside the point.

  52. Chris S.,

    Your hypo regarding the Afghan with enemies has no bearing on ex post facto laws. That Afghan has the same problem regardless of when the law was created, he’s being accused of a crime he didn’t commit. That’s an issue of evidentiary support and prosecutorial burden, not ex post facto laws.

    Additionally, I never indicated that there should be no process. My narrow point was that there are narrow circumstances in which the application of ex post facto laws doesn’t frustrate justice. This is completely separate from the adequacy of the legal process, non ex post facto laws suffer from flawed process as well.

    Ex post facto laws are prohibited because we want to provide the accused with notice that their actions are unlawful. If the accused is not a US citizen and is committing the acts in a foreign country, he isn’t likely to have actual notice of US laws. Therefore the more pertinent question is whether he should have constructive notice that his actions would be unlawful in the US. If the ex post facto law is directly related to participating in the commission of violent felonies against US citizens, then the accused should have constructive notice that his actions would be unlawful.

    “Violent felonies” may not be the perfect standard, but I mean malum in se crimes, murder, rape, arson, acts that people instinctively know are crimes, universal crimes.

    Also this test, like any other has a grey area, are the actions of the accused sufficiently connected to a “universal crime”, so as to provide constructive notice? Acting as the driver for a terrorist mastermind arguably is sufficiently connected, but I think that’s where the heart of the argument lies.

    The key question isn’t whether ex post facto laws may ever be applied, but when? And I believe my above outlined test, with some refinement, provides that answer.

  53. And that’s my point – if we choose to use the civil justice system, or its standards, to solve the problem of terrorism, we will eventually have to change it so it is actually effective. Those changes are not likely to be changes that folks around here will approve of.

    That’s because it’s not possible to “solve” the problem of terrorism. Making our justice system less just in the pursuit of an unreachable goal… yeah, that’s going to run up against some resistance ’round here.

  54. John,

    I will therefore give the judge the benefit of the doubt and assume justice was done.

    Me, too. That’s why I suspect he’s going to be guarding the rubber dogshit warehouse.

    Abdul,

    All I’m saying here is that Jacob Sullum is calling for exactly the kind of things that people said John Yoo was crazy for predicting. And until any of the things you’re talking about are applied to enemies encountered on the battlefield – as opposed to people trussed up and delivered by people collecting bounties – I imagine the mockery will continue. Yoo is an ass, and his predictions about about the impact of this on soldiers in battle are fantasies.

    RC,

    The civil-only response to the first WTC bombing was, in retrospect, pathetically ineffective.

    The people who oredered and committed the first WTC bombing were tracked down, captured, and are rotting in prison for the rest of their lives.

    Where’s bin Laden?

    I’ll tell you what response has been pathetically ineffective.

  55. OKC was not the act of an organized international group that had managed to seize control of one country and kill thousands of Americans. Size matters.

    …which is why there needed to be a military aspect (the invasion of Afghanistan and overthrow of the Taliban) in addition to the capture and prosecution of the responsible individuals. However, the need to use air power and infantry to get the terrorists’ buddies out of power tells us nothing about the proper way to deal with the criminals themselves.

  56. That’s because it’s not possible to “solve” the problem of terrorism. Making our justice system less just in the pursuit of an unreachable goal… yeah, that’s going to run up against some resistance ’round here.

    It’s been working for the war on drugs for a good 30 years now, hasn’t it? Have you tried to get Sudafed recently? If that’s that much of a pain, surely no one can be doing pot anymore, right?

  57. joe,

    To be fair, that response to the WTC bombing didn’t deter bin Laden et al. from attacking us on 9/11. On the other hand, I find it incredibly frustrating that bin Laden isn’t in a cage on the former WTC site. Or with his head on a pike, I guess, if we can’t do the cage thing.

  58. PL-

    I don’t know if we can really deter ideological extremists. However, an effective response that actually grabs them after they do it (as opposed to flailing around while they slip away) will:

    1) Actually get the guys who did it. It may not deter the next guy, but at least the guys who did it won’t do it again.
    2) Deter less ideological people who might nonetheless consider aiding an extremist.
    3) Probably create fewer messes than flailing around, attacking countries that had nothing to do with it, and shredding the rule of law.

    There may be no perfect deterrence for ideologues, but some responses are clearly less effective than others.

  59. thoreau,

    Heads on pikes are good deterrents. I’ve suggested elsewhere that the candidates should offer the VP slot to any American citizen who can bring them the head of Osama bin Laden.

  60. R.C. Dean,

    The failure of the AQ-is-nothing-but-criminal viewpoint brought us, after all, the PATRIOT Act.

    So, if we had used military force against a few countries, etc. following the first WTC bombing we wouldn’t have the PATRIOT ACT? Is that your assertion? If so, my question would be, what if such force led to further attacks on U.S. soil?

  61. PL-

    I suspect that the extremists would view the heads on pikes as signs of glorious martyrdom, and the deaths of those martyrs as acts to avenge.

    But the wavering recruits, or the guys just forging the fake ID for pay, would probably stay far away from the extremists.

  62. Pro Lib,

    To be fair, that response to the WTC bombing didn’t deter bin Laden et al. from attacking us on 9/11.

    That goes to the question of launching military strikes on known terrorist outposts abroad, which no one I’ve ever read disagrees with.

    On the question of whether the suspects got real, fair trials vs. bs kangaroo court trials, I don’t see much of a difference from a deterrence/prevention perspective.

    AQ-is-nothing-but-criminal viewpoint doesn’t actually exist, and bears no relationship to the argument that the judicial aspect of fighting al Qaeda – the trying of people suspected of involvement after their arrests in non-battlefield situations – should be both reliable, and conform to our values and principles.

  63. Have you tried to get Sudafed recently? If that’s that much of a pain, surely no one can be doing pot anymore, right?

    The adventures of Neu Mejican in the quest for Sudafed.

    Our brave adventurer walks in to Walgreens.
    Goes to the pharmacy counter.
    Asks for some Sudafed.
    Signs name.
    Walks out with his prize.

    Another monumental adventure complete.

  64. I’m all for fair trials, of course. And due process. So long as I get Heads on a Pike?.

    Say, I wonder if there’s a market for such a thing? Not with real heads, of course. Some sort of plasticy thingamabob. I see it as a replacement for garden gnomes and flamingos. Hmmmm.

  65. “Another monumental adventure complete.”
    I hear Johnny Depp will play Neu Mejican in the movie.

  66. Which, were we to treat him as a prisoner of war under the Geneva Conventions, as so many urge, would be standard operating procedure.

    Right – but then you couldn’t try him.

    If a prisoner does not qualify for POW protections, then they are criminals who should face justice in the applicable jurisdiction. That’s the entire point of the POW designation – to make sure angry populations don’t subject military prisoners to criminal proceedings, summary or otherwise.

    But now we are trying to have it both ways: since we want to torture these guys, we can’t declare them POW’s. But if they aren’t POW’s and we try them, convict them and sentence them, then at the end of their sentence they should be free men just like every other criminal tried and convicted by an American court.

    Inventing a third category of prisoner out of whole cloth, as the administration has done here – one who is neither a POW nor a criminal – is contemptible sophistry and anyone party to it deserves to be trussed up and sent to the Hague.

  67. I hear Johnny Depp will play Neu Mejican in the movie.

    Chuck Palahniuk is working on the screenplay with David Fincher right now. They hope to bring Montreal’s Meteor Studios and Hybride Technologies in to do the special effects.

  68. But a basic principle of warfare is that if you help the enemy, you are the enemy.

    No, it’s not.

    If we had sent strategic bombers against Sweden in World War II, it would have been a violation of Sweden’s neutrality and the allies would have been in the wrong.

    The enemy is the enemy. The guy who sells the enemy an apple is not the enemy. The guy who drives the enemy to the airport for pay is not the enemy. Sorry.

    While the danger of ex post facto laws is very real. It should be quite easy to delineate the very clear and unique circumstances in which ex post facto laws may be applied.

    In our Constitution, that delineation has already been done and the answer is “Absolutely never under any circumstances”. It’s nice and easy to understand.

    These people would be participating in the commission of violent felonies so they would have constructive notice that they are legally at risk.

    No, they aren’t. I think the entire concept of designating “criminal organizations” is a misuse and abuse of our conspiracy laws. If you perform routine economic services for an individual, it is absurd to claim that you are part of that individual’s criminal conspiracies as a result. To the extent that our laws assert that you are, our laws are unjust. Osama bin Laden’s CPA and gardener and barber and greengrocer are not part of his criminal conspiracy.

  69. It has been a challenge having Depp around doing his character research. He is very needy.

  70. “There is nothing in the world more helpless and irresponsible and depraved than a man in the depths of a Sudafed binge and I knew we’d get into that rotten stuff pretty soon . . .”

  71. Fluffy,

    I love your idealism.

    But…

    The enemy is the enemy. The guy who sells the enemy an apple is not the enemy. The guy who drives the enemy to the airport for pay is not the enemy. Sorry.

    Let’s take this concept further.
    Is someone who lives in the country we are at war with “the enemy” even if they are opposed to the war? They contribute to the economy that funds the army that we are fighting.

    Arbitrary designation of blame to innocents is part of what makes war, well, war, and also why it is good for absolutely nuthin’ (say it again).

  72. Hamdan was an employee who was paid for his work. How does this equate to “providing material support”? In actuality he COST the terrorists money!

  73. If this outcome is fair, it may be in error. There is a claim that the judge gave the jury wrong instructions which allowed this seemingly fair outcome.

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