Hamdan and Military Tribunals
The most outrageous headline I’ve seen in quite some time, at least from a legitimate media outlet, is the one that accompanies this morning’s NYT editorial on yesterday’s verdict in the Hamdan case: “Guilty as Ordered.”
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 military commission of six senior officers (whose names have not been made public) found Salim Ahmed Hamdan, who worked as one of Osama bin Laden’s drivers until 2001, guilty of one count of providing material support for terrorism.
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.
Now, as longtime readers know, I’ve not been a fan of Guantánamo, the lack of minimal due process for those accused of being illegal combatants generally, or the treatment of Hamdan in particular. Further, I agree with the editorial’s larger point that the way in which Hamdan was convicted taints the process.
That said, the accusation, without the slightest hint of proof or argument, that the jurors violated their oath to judge Hamdan according to the evidence and their conscience, without regard to the wishes of the command, is libelous. Indeed, the fact that the jury acquitted Hamdan of the most significant charge against him serves as prima facie rebuttal of that charge.
Further, the fact that they found Hamdan guilty of the lesser charge of “providing material support for terrorism” is hardly a demonstration of kowtowing to superiors. After all, Hamdan did not dispute that he was Osama bin Laden’s driver and bodyguard. As with the driver of the getaway car in a felony, Hamdan was definitionally guilty once that fact was established.
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.
Dave Schuler and I spent the first twenty minutes or so of last night’s episode of OTB Radio (“Hamdan, Cheeks, and Paris Hilton”) discussing the case in particular and the issue of detentions of terrorist suspects in general. The bottom line here is that there are no easy answers. Neither of us like this process one bit but we don’t have an alternative process in mind that we’d like much better. People like Hamdan are in fact dangerous and very much ought be taken out of commission. They are, however, entitled to some minimal standard of due process to at least establish that they are who they’re claimed to be. And they shouldn’t be imprisoned for seven years before getting said due process. Beyond that, though, it’s not entirely clear how these cases should be handled.
UPDATE: This kangaroo court of military officers simply carrying out their orders ignored the prosecutor’s appeal for the maximum penalty of life in prison and sentenced Hamdan to time served plus five months. It just goes to show how clever they are!
People like Hamdan are in fact dangerous and very much ought be taken out of commission.
Stop him before he drives again?
The man was the chauffeur and bodyguard for the world’s foremost terrorist. We’ve executed drivers, who never carried a weapon, for bank robberies in which an innocent victim was killed through no direct fault of the driver. I’d say Hamdan had much more complicity than that. OBL’s raison detre is mass murder.
Besides, the “as ordered” part doesn’t impugn the jurors. It impugns their instructions.
As JJ writes:
After all, Hamdan did not dispute that he was Osama bin Laden’s driver and bodyguard. As with the driver of the getaway car in a felony, Hamdan was definitionally guilty one that fact was established.
See Kevin Jon Heller on why that “definition” was contrary to law.
I personally hope that Hamdan is sentenced to time served, so that at least that part of his case doesn’t get lost in years of appeals. There remains, of course, the Pentagon’s stated intent to keep him locked up, regardless. Which reminds me of Norbizness’s dueling-headlines post from yesterday (no link due to OTB filter):
Bush: China must end detentions, ensure freedoms
Pentagon: U.S. will still detain Hamdan even if he is acquitted.
The conviction for violating an ex post facto law was just the reason that Robert Taft condemned the Nuremberg trials. Of course, he was rounded on by nearly everybody for this stance. But he did think that the trials violated fundamental principles of American justice.
I don’t think the bank robbery example holds up, regardless of the separate issue as to which body of law applies.
Hamdan was more in the position of being John Gotti’s driver — driving the guy who orders the crimes, but not participating in their commission.
I would appreciate hearing of such a person’s being convicted even under U.S. criminal law, to say nothing of the laws of war or international law.
Interesting. If so, then I’d suggest that such accusations being thrown at the DOJ/FBI on the Ivins thing to be so, also. Greenwald, take note.
That said, you’re quite correct; Hamdan deserves what he gets and more for his role. He was at least complicit in the acts of BinLaden.
But he did think that the trials violated fundamental principles of American justice.
Well, the trials weren’t held under American law, so “American justice” didn’t really apply.
I think the precedent was a bit stretched as far as “crimes against humanity” went. N.b. that everyone executed at Nuremberg was convicted of crimes against humanity, whereas many were convicted only of the better-defined “plotting/conducting a war of aggression” & didn’t face the noose.
OTOH, one would have to conclude that murdering 5 to 6 million Jews wasn’t a crime, which boggles the conscience. And I think plenty of the defendants could’ve been hanged just for what happened to Russian POW’s.
Part of the problem here is that the administration, in taking as long and convoluted path as it has to the first completed trial of this nature, has contributed to an atmosphere in which the NYT headline could be written in the first place.
(And no, I am not defending the headline).
It doesn’t look like there was much opportunity to charge Gotti’s driver:
One presumes he would have been charged, though, in order to squeeze him to testify against his boss.
One presumes he would have been charged, though, in order to squeeze him to testify against his boss.`
At Gitmo, we found other means of persuasion.
James, perhaps you should save your anger for the Bush administration. It’s not just speculation that these are show trials. You should read the opinion written by Judge Keith Allred
And then there’s the reason why the chief prosecutor the military commission resigned his post
Seriously James. If you’re going to get up in a huff about impugning someone’s honor, how about the honor of the USA qua USA. Somehow I think that besmirching our legal system is a little bit more repulsive than any besmirchment of individuals on the jury.
If you run a dodgy system, you have to expect that the onlooking world is going to think you’re running a dodgy system. Having them say so isn’t an insult. The insult is what we’ve let them do to our constitution and legal system.
And let’s fondly remember Jim Hayne’s famous statement in September of 2005:
I can’t possibly imagine why *anyone* would think this was a show trial. It’s a mystery.
Hysterical as usual. Don’t forget their over-the-top response to District v. heller:
Actually a good reminder of how centrist the Washington Post really is, even if somewhat left-leaning.
No doubt. If only bringing Bin Laden to justice was part of the Bush/McCain agenda.
From Anderson’s link to Kevin Jon Heller:
US General Order 100 was drafted by Abraham Lincoln based on the legal scholarship of Francis Lieber. It drew a line between those who supported the rebellion and those who gave aid and comfort to the enemy without coercion. Lieber’s work was highly influential and adopted by many countries, though I honestly don’t know to what extent.
Now the U.S. Army can’t do something that was merely precedented by Abraham Lincoln and the Lieber Code? I find that odd and certainly far less troubling than the Nuremberg Trials (which I don’t lose sleep over I confess).
Heller also seems to believe that there was no terrorism -like acts during the Civil War, that the crimes for which aid and comfort were charged were classical greed/revenge murders. I don’t have my Civil War books at hand, but there was a whole lot of #@#^ going on in Missouri in which partisan houses were being set fire at night due to loyalty or disloyalty.
I recognize I’m feeding the anti-Bush hysteria, but please exlain to us, how you figure Hamden innocent, and what the Adminitrattion gains by hanging Hamden out to dry.
One is a very generic, disputed claim whereas the other is a very specific accusation that flies in the face of evidence and reason.
I don’t doubt that there were those who wanted to politicize these trials. Mostly, though, it was a matter of trying to provide maximum security to the country against terrorism and lacking fully applicable tools to do so. I think they went too far in many cases and indeed did harm to our image around the world in so doing. Then again, I’ve said that repeatedly.
Is it your contention that the officers on the jury simply went along with a show trial and did what they were ordered? That Hamdan wasn’t guilty of the crime (however dubious) of which he was charged according to the letter of the law and jury instruction? And why did these men go ahead and convict on the central charge?
Only if you can argue that Hamden played a role in the crime itself. After all, we didn’t convict Hitler’s driver, a fact noted by Hamden’s defense.
Full Geneva rights …
summary execution on the field of battle …
It is what the convention calls for …
Is it your contention that the officers on the jury simply went along with a show trial and did what they were ordered?
Who knows? Would they actually know whether it was a show trial or not? What you are postulating is that the jury would *have* to know and be in on the show trial. This is simply an unsupported assertion. You’re using the honor of the jurists as a logical defense of the trial, itself. This is simply unsupported by any stretch of logic.
That Hamdan wasn’t guilty
Immaterial. The question is the legitimacy of the trials – that they are above question. With all that we know of the process, the leaks that have occurred, the resignations, the stacks of complaints by military personnel who are defending the accused, it’s quite clear that the legitimacy of these trials is in the gutter.
Now if the jurists don’t know or understand this, that’s not a direct assault on their honor. Perhaps “reasonable” people can disagree on this. However, to claim that this is simply slander (or whatever) against the jurists defies logic and is a useless defense of the legitimacy of the trial itself.
It is what the convention calls for …
It also defines water boarding as a war crime. So, you going to argue for the indictment of this administration?
Can’t pick and choose, dude.
So, are you really arguing that silence isn’t complicity? I think I may be able to find even a lot of human rights types who will argue against you there.
Now the U.S. Army can’t do something that was merely precedented by Abraham Lincoln and the Lieber Code?
I would want to see the relevant portion of the Lieber Code, which I don’t find actually quoted in Judge Allred’s decision (see 4-5). Given the weight of authority, it seems a bit of a stretch to extend “guerilla” operations to Driving Mr. Bin Laden. The bodyguard angle is more culpable, it seems, but I would wonder what overt acts he ever really committed in that line of work.
Regardless, as I’ve said above, I think that for Hamdan’s actual deeds, time served in Gitmo is plenty punishment. Such a sentence would speak well of the commission.
Can we assume that anyone that supports detaining terrorists at Gitmo is a “fan” ?
Of course you are not a “fan” of any other process as you admit so what are we to assume ?
Maybe you can’t come up with a better process because sincere Americans with the security of the US in mind have been dealing daily with this issue for the last 7 years.
People who are not “fans” of Gitmo but good Americans who do their best in a difficult situation. A situation made more difficult by writers who always seem to want to play the “one one hand, but on the other hand” game until the day comes that they are confronted with a clear choice that doesn’t require them to actually judge the terrorists. (They of course, are always ready to judge American servicemen harshly.)
Man, it’s getting so you can’t even conduct a little drumhead trial against furriners without some bleeding heart type throwing a fit.
Seriously- what is the world coming to when Newspaper editorials are allowed to disparage trials that have been revealed to be utterly rigged and in which the accused has no chance of going free even if acquitted?
(James- your argument sounds damn close to “they’re just following orders.” Yeah, maybe so, but that defense didn’t work for the other officers who have participated in human rights violations, now did it? These officers are a disgrace they and everyone involved in this abomination should be drummed out of the service at the very minimum.)
Huh? What exactly did they do that was even ever-so-slightly wrong?
Hamdan was tried by a military tribunal sanctioned by Congress, authorized by the UCMJ, and mandated by the Supreme Court.
These officers weighed the evidence — minus that evidence the military judge threw out as not being kosher — and rejected the most serious charges against Hamdan. They convicted him of a crime of which he was, almost by definition, guilty.
How in the hell are they even mentionable in the same paragraph as the commanders at Auschwitz, rapers of Nanking, and other war criminals of WWII?
Silence about what? The location of OBL? No, I wouldn’t consider that as participation in a crime.
Good luck with that, let me know what you find.
These officers are a disgrace they and everyone involved in this abomination should be drummed out of the service at the very minimum.
The jurors? I’m not following you, Tlaloc. They aren’t lawyers. They were instructed in the law by the judge, and had to rely on his characterization thereof.
Whatever the merits re: Hamdan, the issues are nowhere close to, say, the issue confronting Lt. Calley’s subordinates when he told them to kill *all* the villagers at My Lai. That was obviously wrong, such that IMHO every soldier there who fired a shot should’ve been court-martialled.
It was not so obviously shocking to the conscience for the jury to accept Judge Allred’s characterization of the law, and to find that Hamdan’s duties as chauffeur and bodyguard met the definition of the alleged offense.
I would want to see the relevant portion of the Lieber Code, which I don’t find actually quoted in Judge Allred’s decision (see 4-5).
Sorry, for lack of clarity. The Lieber Code is another name for General Order 100 (link at bottom), which was the result of Lieber’s groundbreaking effort to summarize the laws of war. (J. Allred references “general orders,” but seems to be more interested in evaluating the practical application of those orders in the post-war analysis)
Based upon the language (which probably doesn’t rise to criminal law-level clarity), military commanders tried civilians for aid and comfort of the enemy. I will try to look up some examples, but I would be surpised if this didn’t include people housing horses for guerrilas or hiding them in the barn. Whether this is analagous to driving a car is probably debatable. I don’t think its debatable that noncombat support for the enemy was treated as a military offense.
General Rule 100
Well, actually I’d already looked at that a few days ago, incidental to another dicussion. Owing to the multi-link filter, here, let’s accomplish this, this way.
And as you read those links please note that the most prevelant use of the argument is what I suggested… by human rights types.
So does silence equal complicity, or not?
I won’t get into that directly, but it occurs to me to ask as a sidebar about the mere functionaries at Auschwitz…
BREAKING: Hamdan gets 66 months, including 61 months time served.
Five months from now is January 7?
Maybe the Pentagon will actually let him go a couple of weeks after that ….
I’d have to go back and recheck the Congressional sanction and the SC decision but i’m pretty sure neither one mandated a farce show trial that the accused literally could not win.
That’s what these are. we’ve heard it straight from the source that there are to be no acquittals. Evidence be damned these guys are all going down.
That’s isn’t a trial. not even by the lax standards of military justice.
It’s an obscenity.
Tlaloc, I agree that’s what Haynes (reportedly, and I believe the report) said.
N.b. however that Haynes is gone.
There are serious problems with the system, but I am not going to believe that the jurors (or panel, as Scott Horton has it) were actually instructed how to vote, or threatened if they acquitted — not without particular evidence.
Puh-lease.
Look, for all I care, they could’ve lined Hamdan up against the nearest wall in buttplug Afghanistan (or where ever he was captured) and summarily shot him.
However, the military tribunal is certainly sophisticated enough to 1) know that ruling the way they did would allow guys like you to say exactly what you are saying, 2) know that guys like you would say what you are saying, and 3) that is why the prosecution chose to start with a small fish like Hamdan before moving on to bigger fish. Gotta try to build a little faith and confidence in the system.
If the tribunal isn’t smart enough to figure all that out on their own, they aren’t smart enough to sit on the tribunal.
Bit, you seem to be increasing confused. Where did I say I figured him innocent? Clearly, I am agreeing that he is at least complicit.
And since Bush is on record saying this about Bin Laden:
“I’ll repeat what I said. I truly am not that concerned about him. ”
I think it is safe to say that Justice for the 9/11 victims is not part of Bush’s agenda.
http://www.whitehouse.gov/news/releases/2002/03/20020313-8.html
Sixty six months?
Apparently the members of the military commssion didn’t take this man’s crimes all that seriously. I know someone who got 84 months in Florida for writing $1,300 worth of bad checks. Seven years.
These comments show how completely wrong-headed the whole notion of trials was in the first place. The government wants to detain Hamdan because it believes he is dangerous to the security of the United States during a war (against a complex of state and non-state actors). Nobody really cares if he broke a law in the US or anywhere else. He is an enemy whom we need to neutralize until such time as the organizations for which he works are no longer a threat.
Hans the Wehrmacht driver was equally subject to detention without trial, even if he wasn’t guilty of breaking any laws. The idea of individualized guilt and innocence determinations for enemy combatants is simply bizarre.
Sure, but Hans was likely captured in a Wehrmacht uniform while driving a Wehrmacht vehicle. He was in the employment of a hostile military during a time of a definable war and treated according to definable runs. Hamdan, meanwhile, isn’t part of a uniformed military and isn’t an EPW.
Oh, please… So why try Hamdan, then?
Ah, yes… this all meshes rather well with your “Iraq is a diversion” nonsense.
Look, in the grand scheme of things, Bush is quite correct; Removing BinLaden from the equation is not going to solve, as I’ve indicated before, the larger problem we face, which is radical Islam. BinLaden is a symptom of that illness, not the cause, and removing him still leaves the larger problem of the illness.
If we manage to get the guy fine, that’s a good thing, but it’s not going to solve the problem. OTOH, if we manage to corral radicalised Islam, we’ve cut the legs out from under BinLaden as well.
That said, in six months when this guy gets turned loose, as looks to be happening, now, it’ll be interesting to see where he surfaces.