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Yesterday a military panel rendered a split decision in the prosecution before a Guantánamo military commission of Salim Hamdan, the chauffeur of Al Qaeda leader Osama bin Laden. In the first war crimes prosecution brought by the United States since the close of World War II, Hamdan was accused of participation in an Al Qaeda conspiracy that included attacks on the United States on September 11, on the U.S.S. Cole and the East African embassy bombings as well as of material support. The six military panelists acquitted Hamdan on the major charges of conspiracy, which were the only charges originally brought against him. They convicted him of material support on the grounds that he was in fact bin Laden’s chauffeur. The case now goes into its sentencing phase.
The military actors handling this case performed their roles appropriately under very difficult circumstances. Naval Captain Keith Allred, who presided, was quick to admit errors in judgment on matters on which his rulings were exact and correct but favored the defense. But the prosecutors and defense counsel, as well as the deliberating panel, performed the roles given to them. (In the media, this panel is widely being called a “jury,” which is a disservice to the English language. The panelists were hand picked by a crony of Vice President Dick Cheney whose blantant political manipulation of the process has already been documented. The panel is not in any sense a “jury.”) In fact, the evidence, to the extent outsiders were able to track it, certainly was insufficient to justify the conspiracy charge, so the panelists showed that they were not cowed by the bombast and overplay which has become a prosecutorial mainstay in the Bush era. On the other hand, they convicted Hamdan on material support, and the record shows adequate evidence that Hamdan enlisted in Al Qaeda, pledged his allegiance to the organization and by his conduct supported their program. He admitted to being Osama bin Laden’s chauffeur after all. The verdict therefore seems supported by the evidence.
So was the Hamdan case a “success,” a feather in the cap of the Bush Administration’s guardians of justice? Hardly. As Matt Waxman, who as a senior official in the Rumsfeld Pentagon helped craft this system, has acknowledged, there was another defendant in that courtroom standing alongside Salim Hamdan: it was the American justice system. Judgment will be taken by history, and the case was played to a global audience. The first returns are in, and they are not positive. Worse, the perceptions are likely to get harsher and more negative over time. Even before the verdict came in, observers around the world were focused on the Bush Administration’s own contempt for the military commissions process. It had announced that it was indifferent to the judgment of the commission—if Hamdan were acquitted, he could continue to be held for life, a Pentagon briefer acknowledged. The Hamdan prosecution reveals more about the Bush Administration and its fear and loathing of justice than it reveals about Hamdan.
After six and a half years in which the name “Guantánamo” has become badge of shame and humiliation, there has at last been a prosecution–of an individual whose role was at best completely peripheral. The former chief Guantánamo prosecutor has now openly acknowledged that an independent, objective prosecutor never would have charged Salim Hamdan, because he was an absolute nobody. This is not to say that Hamdan is an innocent, of course.
The Bush Administration could have handled this matter in the tradition that the nation’s greatest modern attorney general, Robert Jackson, set out at Nuremberg. Jackson personally took charge of the first prosecutions, delivering mesmerizing opening and closing statements and a dramatic cascade of evidence that targeted some of the most heinous criminals from the Second World War. Jackson had two important objectives before he reached the question of the guilt or innocence of the individual defendants: he needed to validate the fairness of the process, and he needed to demonstrate, clearly and convincingly in the eyes of the world, that heinous crimes had been committed which justified this extraordinary tribunal process. Jackson accomplished both goals. He also secured the conviction of key kingpins in the Nazi terror state. He did it all within the first year of the Allied occupation of Germany, through a process that helped transform the German people from enemies to friends. In the end, Jackson and his team demonstrated that the American tradition of justice was a potent tool to be wielded against the nation’s enemies.
By contrast, America has now endured seven years of an administration which fears the rule of law, which operates in the shadows as it contravenes criminal statutes and long-cherished traditions and retaliates mercilessly against civil servants who stand for law and principle. George Bush and his political advisors openly castigate law and justice as weaknesses or vulnerabilities–as public suspicions grow that they have darker reasons to be concerned about the law. Instead of following the historic route and using military commissions that follow the nation’s long-standing traditions, they have crafted embarrassing kangaroo courts. When the Supreme Court brought its gavel down on one of their shameful contraptions, they simply concocted another, equally shameful one, openly proclaiming an inferior brand of justice for those who were “not citizens,” exalting in the right to use torture-extracted evidence and to transact the proceedings in secret.
So why prosecute Salim Hamdan? Because Osama bin Laden remains at large, as does Ayman al-Zawahiri and a host of other Al Qaeda leaders. Hamdan would not have figured on a list of the 500 most important Al Qaeda figures. The fact that Hamdan was not only prosecuted, but actually turned into a lead case is shameful, a demonstration of ineptitude at least, if not of contempt for law and legal process altogether. That such a loaded, rigged system actually produced an acquittal on the only serious charges is evidence of the breathtaking incompetence of the Bush strategists.
The Hamdan case demonstrates the flawed planning of the Bush Administration in other respects as well. The military commissions exist to try war crimes. Conspiracy is a war crime. Indeed, Robert Jackson himself labored to make that point at Nuremberg and he succeeded. The conspiracy charges were therefore plainly within the competence of the commissions. And he was acquitted on these charges.
But in the second round, “material support” charges were added—a crime invented after the fact, in violation of basic legal and constitutional norms. Notwithstanding vacuous Congressional pronouncements, “material support” is not a war crime. For obvious reasons—if it were a war crime, then the laws of war would be criminalizing entire populations that are enlisted in the support of the criminal regimes which not infrequently in human history have come to power. In fact, the whole thrust of the laws of war is just the opposite: it seeks to protect the large bulk of the population which is not directly engaged in hostilities. David Glazier has written an impressive summary of the issue, and Kevin John Heller has weighed in with a persuasive presentation but Judge Allred’s own opinion makes the case against his ruling sustaining the charge–he is unable to cite any precedent or authority in support of the Administration’s say-so. My suspicion is that Allred doesn’t believe for an instant that the “material support” charges are sustainable, but he is leaving that call for judges whose future livelihood and happiness does not rest on decisions made by a vindictive executive. Afterall, one of the military commission judges has already paid the price for ruling against the Bush Administration. Colonel Peter Brownback found himself prematurely retired and removed mid-process from a high-profile case.
I agree that prosecutors offered reasonable evidence showing that Hamdan was involved in material support to Al Qaeda. But the fact remains that this is not a war crime. In fact, the law is very clear on this point. That means not that Hamdan is innocent, but that the charge should have been brought in another court, not before a military commission. (The prosecution would have faced serious problems in a U.S. court given the language of the often-amended material support statute, the very late scheduling of Al Qaeda as a terrorist organization, and questions about the application of the old statute to a person operating outside the United States. The “war crimes” gambit appears to be an end-run around all of this.)
The Hamdan proceedings now go into the next stages. First sentencing, and then appeal. If the case is reviewed seriously, then the appeals court will come to the obvious conclusion that “material support” is not a war crime, and will reverse the decision. If the American appeals courts fail to do this, the condemnation of the international community will follow. Either way, the Hamdan process has cheapened the image of American justice in the eyes of the world. Justice has been made to appear to be an expression of the will of the executive, and confidence in the independence and integrity of American courts and prosecutors has been seriously eroded. Prosecution of Al Qaeda operatives should have been an important victory for America in its battle with terrorists. Instead it has been converted into a needless and humiliating defeat.
The Military Commission has now also entered its sentence for Salim Hamdan. He is to serve five and a half years, with credit for time already served. This means he would be eligible for freedom just as George W. Bush leaves office.
There is no room for coincidence about this verdict, its import is clear. The Commission is providing legal cover for the Bush Administration–it assumes that the Bush Administration will not release Hamdan or any of the others charged, regardless of the verdict and sentence it delivers. The Commission also assumes that whatever administration follows Bush, whether Barack Obama or John McCain, will respond fairly to the demands of justice. This is an unmistakable vote of no confidence in the Bush Administration, a rebuke of its transparent design to turn the Gitmo proceedings into a partisan political theater.
We may be frustrated, and even angry with the entire process that George W. Bush has instituted at Guantánamo. It ill serves the country and is a continuing assault on America’s reputation for justice. But there is no reason to be angry at the military officers who prosecuted, defended, presided over and deliberated in these proceedings. They were given a loathsome assignment, but they have discharged it ably and have done much to uphold the military’s reputation for justice and fairness.
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“I will never know what goes on in your mind, or what that shield of a smile behind which we try to advance should tell us.”