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


"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.