I previously discussed commentary by legal and policy experts on the terror detainee procedures used in the Hamdan case. Shaun Mullen has background here. Hamdan has been sentenced to 5 1/2 years, which—as The Washington Post says—is a relatively light sentence. Prosecutors wanted him to get 30 years, if not a life sentence. (WaPo)

[The sentence] means the first detainee at Guantanamo Bay to face a full military commission trial could be released from custody in just five months.

The six military officers who found Salim Ahmed Hamdan guilty of terror charges yesterday came back with the sentence this afternoon, knowing that the judge in the case was going to give Hamdan credit for the five years and one month of his pre-trial incarceration at Guantanamo. (WaPo)

Surely that’s rather telling.

A New York Times op-ed today is critical of the Hamdan proceedings:

Now that was a real nail-biter. The court designed by the White House and its Congressional enablers to guarantee convictions of high-profile detainees in Guantánamo Bay, Cuba — using evidence obtained by torture and secret evidence as desired — has held its first trial. It produced … a guilty verdict….

The rules of justice on Guantánamo are so stacked against defendants that the only surprise was that Mr. Hamdan was actually acquitted on the more serious count of conspiring (it was unclear with whom) to kill Americans during the invasion of Afghanistan after Sept. 11, 2001. (NYT)

Certainly I am not prepared to accuse the panel itself of reaching an improper verdict given the process itself. The sentence itself tells you something about their wish to be fair.

At the sentencing hearing, Hamdan had pleaded for a light sentence and apologized to U.S. victims of terrorist attacks. “It was a sorry or sad thing to see innocent people killed,” Hamdan was quoted as saying.

“I personally present my apologies to them if anything what I did have caused them pain.”

He admitted that he kept working for the al-Qaeda leader even after he learned that bin Laden had planned terrorist attacks….

But he said that his only motive was supporting his family. The Yemeni father of two, who has a fourth-grade education, said he needed a job and that bin Laden paid well and treated him with respect.

Over time, his views of bin Laden changed, Hamdan told the jurors. Standing amid his lawyers, his head bowed, he acknowledged that he knew bin Laden was behind the 1998 bombings of two U.S. embassies in East Africa and the 2000 attack on the USS Cole in a harbor in Yemen.

“It was a big shock for me when someone who had treated you, or we had treated each other with respect and regard and cordially, and then you realize what they were up to,” Hamdan said through an Arabic translator. (WaPo)

The prosecutor wanted a severe sentence:

He called on the jury to “send a message to others that if anyone thinks of providing material support to the sword of terrorism . . . there will be painful consequences.”

Defense lawyers portrayed Hamdan as a minor chauffeur who regrets his time in bin Laden’s service and was only trying to provide for his family.

But setting aside the particulars of Hamdan, the verdict, and the sentence, it certainly is striking how many seasoned military men have—over the course of the last couple of years—come forward to explain why they could not stomach the proceedings against terror detainees.

Col. Morris Davis, the former chief prosecutor in Guantánamo, put the trial in a disturbing light. He testified that he was informed by his superiors that only guilty verdicts would be tolerated. He also said that he was told to bring high-profile cases quickly to help Republicans score a pre-election public relations coup.

Colonel Davis gave up his position on Oct. 4, 2007. That, he wrote in The Los Angeles Times in December, was “the day I concluded that full, fair and open trials were not possible under the current system.”

In his article, Colonel Davis described a highly politicized system in which people who were supposed to be neutral decision-makers were allied with the prosecutors. According to Colonel Davis, Defense Secretary Robert Gates pushed out a fair-minded “convening authority” — the official who decides which cases go to trial, which charges will be heard and who serves on the jury. (NYT)

These allegations give me pause. I can’t agree with James Joyner in criticizing the op-ed for focusing on these allegations.

They remind me of General Taguba’s stand last year against the investigations at Abu Ghraib.

Subsequently “mocked and shunned” for his report, and “forced to retire early because of his pursuit of the issue,” he has now stepped forward to confirm the suspicions of those who believed that “senior Pentagon officials were involved in directing abusive interrogation policies.” The Washington Post, Abu Ghraib Investigator Points to Pentagon (17 June 2007). Taguba said: ““The whole idea that Rumsfeld projects—‘We’re here to protect the nation from terrorism’—is an oxymoron…. He and his aides have abused their offices and have no idea of the values and high standards that are expected of them. And they’ve dragged a lot of officers with them.”” The New Yorker, The General’s Report (25 June 2007).

During the course of the investigation, he said:

His orders were clear…: he was to investigate only the military police at Abu Ghraib, and not those above them in the chain of command. “These M.P. troops were not that creative,” he said. “Somebody was giving them guidance, but I was legally prevented from further investigation into higher authority. I was limited to a box.”” (The New Yorker)

I am also reminded of the declaration in Boumedienne v. Bush by another military officer—Lieutenant Col. Stephen Abraham—who stepped forward to describe the process by which terror detainees were determined to be “enemy combatants.” You can see a summary of his declaration (quoted directly from the attachment) here.

It is telling, surely, that so many military officers are so critical of the procedures used by the Bush administration in these various instances?

Here’s Joyner’s criticism at Outside the Beltway:

Rather than besmirch the character of sworn officers doing their duty and producing an honest and courageous verdict, the real target of the Times should have been the process by which the trial took place. Aside from the general litany of issues surrounding Gitmo and the unlawful combatant designation, the fact of the matter is that the crime of “providing material support for terrorism” was established years after Hamdan was in U.S. custody. He was, therefore, convicted of an ex post facto law. Indeed, one could argue he was additionally subject to a bill of attainder.

I agree that the main issue is process. But it’s significant to me that so many career military officers have found that process so difficult to stomach. I have nothing to say against the military panel that determined the verdict in the Hamdan case. But I am certainly troubled by underlying questions about the role of politics and pressure by the administration in the entire process, including every aspect of their treatment of enemy combatants.

And I am not disposed to be cynical—the constant barrage of new information about the Bush administrations abuses and attempts to abuse power made me this way.

As for the faultiness of the Bush administration’s specialized processes against terror detainees, the issue of the underlying fairness—including the means initially used to classify them as “enemy combatants” or to extract necessary information from them—isn’t going to go away. And unfortunately, those questions are likely to taint all the verdicts and all the sentences, however just the military panels try to be in applying the faulty procedures. That’s what happens when the process you have isn’t the process US or international law considers to be due in the circumstances.
CROSS-POSTED IN A DIFFERENT FORMAT AT BUCK NAKED POLITICS