“The White House said the trial was fair and looked forward to more tribunals.” (BBC News) I’m sure.
Salim Hamdan, who has been in custody since 2001, was acquitted of conspiracy, but convicted of providing material aid to terrorism. (New York Times) He was convicted by six senior military officers, who deliberated for over eight hours.(New York Times) Shaun Mullen succinctly sets out the background at The Moderate Voice.
The defense argues that he was convicted on a theory of “guilt by association.” (BBC News) They aren’t happy with the verdict.
After closing arguments Monday, Charles D. Swift, a former Navy lawyer who has represented Mr. Hamdan for years, said the two-week proceeding here had been a trial that did not follow the American rule of law and that the defense believed American courts would eventually correct the legal errors here. Mr. Swift called the military commission “a made-up tribunal to try anybody we don’t like.”(NYT)
The ACLU says that the trial was riddled with “overwhelming constitutional and procedural flaws.”
As The New York Times says, “Critics have long claimed that the military commission system here does not
meet American standards of fundamental justice.(NYT) The BBC provides a quick primer on the process:
Under the Military Commissions Act 2006, the military commission or tribunal is made up of between five and 12 US armed forces officers. However, if the death penalty is sought, then at least 12 members have to be on the commission. A qualified military judge will preside over the hearing.
To get a conviction, at least two-thirds of the commission members have to be in favour….
The commissions are in public though the “public” is defined as members of the press and national or international organisations, agreed to by the secretary for defence….
[T]he accused is able to be present for the proceedings unless he is ruled disruptive, to present evidence and witnesses in his defence and to cross-examine any witnesses against him. He will have the right to be shown the evidence against him, though this will be in summary form if the judge decides that sources are kept secret for security reasons….
If convicted, a defendant can appeal to a Court of Military Commission Review and then to the United States Court of Appeal, a civilian court. From there, an appeal might go to the US Supreme Court itself….
There are some serious differences between the commissions and normal US law.
The decision to convict is by two-thirds vote, not unanimity as in a US jury trial. The commission itself of course, in effect the
jury, is made up of military officers not members of the public.A key difference is that any evidence, including hearsay (in which a witness says he/she was told or heard something from someone else), and some obtained by coercion, is allowed, “if the military judge determines that the evidence would have probative value to a reasonable person”.
Evidence that contains classified information will be summarised to protect its sources. (BBC News; more)
And though evidence obtained by torture isn’t admissible, evidence obtained by “coercion” might be. As the BBC notes, “One problem is that “waterboarding” is not classified as torture by the Bush administration.” (BBC News; more) Evidence obtained before the Detainee Treatment Act came into force might be admitted if “the totality of the circumstances renders the statement reliable” and “the interests of justice would best be served”. (BBC News; more)
Ken Gude at The Wonk Room points out how the collective control freak mentality of the Bush administration and its wish for a special process for terror detainees contributed to the wobbliness of the conviction. .
It would have been an open and shut case of material support for terrorism in federal court. Hamdan could have been securely locked away years ago, but the Bush administration chose to pursue the risky path of an untested military commissions system. The judge in Hamdan’s case
was put in the unprecedented position of deciding how much torture was too much in determining which of Hamdan’s statements made during “coercive” interrogations would be allowed into evidence. No U.S. court has yet to decide if the entire military commissions system is lawful, and a negative verdict like the two others already handed down on military commissions by the Supreme Court could invalidate Hamdan’s conviction
putting us back at square one…We waited seven years to convict a low-level al Qaeda figure of a crime he never denied. (More)
At National Security Advisors, David Glazier says that the verdict—which didn’t satisfy the military prosecutors–is actually better for the government.
The ironic reality is that the partial verdict – conviction on five specifications of providing material support to terrorism but acquittal on the charge of conspiracy and three other specifications of providing material support – is actually a much better outcome for the prosecution than a more complete conviction would have been. By limiting the grounds on which the defense can appeal, the verdict as returned largely saves the government from its own egregious overreaching.
But though the current system is much better than that struck down by the Supreme Court in 2004, it still is riddled with legal problems that ensure that the conviction will never be viewed as safe. Despite the Bush administration’s attempt to frame the decision as a victory, Jonathan Turley doubts that such convictions will help Bush’s legacy. As he says, the tragedy isn’t the conviction but the fact that the means by which it was obtained makes it subject to question. (Jonathan Turley)
David Glazier says that there are several flaws in the system generally that ensure that convictions under this process may be subject to serious and continuing doubt in “the world court of public opinion.” (The following is merely a summary; click the link to read details.)
(1) The charges arguably do not violate the law of war and therefore a military panel has no power to decide them.
(2) The conviction was based on evidence obtained through coercion.
Although it is impossible to know without reading the actual courtroom transcripts, it is quite possible that there is sufficient physical evidence or testimony of third parties (e.g., those involved in Hamdan’s capture) to support Hamdan’s conviction on some of the material support allegations without having to rely on his own incriminatory statements. So it is entirely possible that on appeal it will be found that the use of Hamdan’s statements did not materially prejudice him even if they really should not have been allowed in by
any recognized standards of judicial fairness. (NSA)(3) No right to representation by counsel of choice.
(4) The commission procedure may violate equal protection principles. [“Americans are excluded by law, Brits have been by policy, Australians and Canadians get special privileges denied to citizens of Muslim countries, etc.”] (National Security Advisors)
At Balkinization, Marty Lederman addresses the charges. Lederman identifies two problems with the conviction. First, there is a question whether the conduct with which Hamdan was charged occurred during an armed conflict.(Balkinization)
[T]he charges themselves require that there have been an “armed conflict” during the period in question — and the laws of war only permit trial of offenses committed within the period of an armed conflict. It’s not clear which, if any, of Hamdan’s alleged acts occurred after September 11, 2001 — and it also is uncertain whether the conflict that triggers the laws of armed conflict commenced before 9/11/01, when al Qaeda engaged in other terrorist acts against the U.S. (More)
Second, it’s not clear that his conduct violated the rules of war. (Balkinization)
[I]t is not clear that Hamdan’s conduct of “material support” to terrorism (and, in Specification 2, to al Qaeda), in the form of of transportation and “body guard” services, was conduct that violated the laws of war in the period from 1996 to 2001. Judge Allred ruled (see page 2 here) that if such conduct was not a war crime at the relevant time, then Congress is barred by the Ex post Facto Clause from designating such conduct as a war crime after the fact.
Were these forms of “material support” to terrorist acts — or, even more broadly,to an organization that commits terrorist acts (Specification 2) — a violation of the laws of war between 1996 and 2001? A very interesting and important question. See pages 3-6 of Judge Allred’s opinion,
in which he holds that even though there is no recognition of such a war crime in any international instruments, or U.S. field manuals, and even though the Congressional Research Service found no historical support for it, there is some evidence of similar “support” conduct being tried by military tribunals in the Civil War, and thus it was within Congress’s broad authority under the Law of Nations Clause to determine that such conduct was a war crime when Hamdan acted. Whether that holding is correct will be a major issue on appeal. (More)
Ken Gude says that the trial and verdict have completely devalued the whole concept of “a war criminal” and perhaps also assisted al Qaeda’s objectives.
War crimes should be reserved for the most serious offenses and war crimes trials are extraordinary. Charles Taylor is a war criminal. Radovan Karazdic
is a war criminal. Salim Hamdan is a chauffer. He is clearly guilty of the crime of material support for terrorism. But now he has been elevated to the status of warrior, legitimizing al Qaeda terrorists’ belief that they are waging a holy war against the United States and our allies.(The Wonk Room)
At National Security Advisor, David Glazier thinks that the panel did the best job they could under the circumstances.
I think the most positive thing about the verdict is that six anonymous military officers engaged in mature consideration of how to apply the law as it was given to them to the facts that they were presented. Whatever flaws exist in the system, it is not fair to pin it on these individuals, and I believe this highlights that had the government conducted the CSRT process in good faith and made a real effort to present all available information to the participants in those panels, a good deal of the subsequent controversy over Guantanamo could have been avoided. Whether Hamdan should ultimately have been convicted or not, there does seem to be sufficient information in the public record to justify his indefinite detention as a member of a force hostile to the United States engaged in a conflict against it.
But legal scholar and law professor Jonathan Turley thinks that the rest of the world is likely to consider the verdict suspect. He argues that the Bush administration’s invention of a special alternative process to deal with detainees ensures that people will always question whether the detainees received due process.
The verdict is likely to be dismissed around the world due to the means used to secure it. The tribunals have been rightly ridiculed as kangaroo courts, even by conservatives.
Ironically, if President Bush had simply relied on the justice system, these men would likely have been convicted and sentenced years ago. Instead, after spending millions and losing credibility around the world, the Administration is struggling to secure a handful of convictions before Bush leaves office to offer some vindication for this ill-conceived system….
Hundreds of people were held under abusive conditions, including some who were tortured, at Cuba. The vast majority were released due to a lack of evidence. These abuses are the result of a system that metes out justice at the discretion of a president — as system created as an alternative to an independent legal process.
Davenoon at Lawyers, Guns, and Money—in a piece called “Worthless”—writes:
Assuming that victory includes developing a legal system with exactly zero moral legitimacy; convicting a defendant on charges that a civilian court could have managed in one-seventh of the time; and possibly ignoring or rejecting an offer from the defendant to locate bin Laden himself, then I suppose this is the most important accomplishment since the US demolished the Iraqi government, discovered its weapons of mass destruction, and and transformed the entire Middle East into an oil-rich version of New Hampshire.
ACLU Executive Director Anthony D. Romero says:
Any verdict resulting from such a flawed system is a betrayal of American values. The rules for the Guantánamo military commissions are so flawed that justice could never be served. From start to finish, this has been a monumental debacle of American justice. The judgment against Hamdan undoubtedly will be challenged in legitimate courts, but there is no appeal from the judgment of future generations. This system was devised to permit the prosecution of alleged wrongdoing by detainees, while continuing to cover up the wrongdoing by government interrogators. Trials that are shrouded in secrecy and tainted by coercion are the very antithesis of American justice.
And Ken Gude points out certain costs that even the ACLU’s opponents might want to consider:
[R]evelations at the commission point to the Bush administration squandering a real chance to capture senior al Qaeda figures, perhaps even bin Laden himself. Some testimony from government witnesses at the commission about Hamdan’s interrogation was kept
secret, but statements by the defense during the closing argument show that according to government witnesses, Hamdan, who was Osama bin Laden’s driver, made a serious offer of assistance that the government failed to pursue. Hmmm. Now what kind of offer would Osama bin Laden’s driver make that would be worth the defense reminding the jurors about? (The Wonk Room)
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