The road ahead for military commissions

(AP/Janet Hamlin)

(AP/Janet Hamlin)

Here is my story from today’s Chicago Tribune:

WASHINGTON—The government has been trying to prosecute and convict Salim Ahmed Hamdan for war crimes for five years. On Wednesday, a Guantanamo Bay military jury found Hamdan guilty of supporting terrorism, and he now faces life in prison.

So, mission accomplished?


The conviction of Osama bin Laden’s former driver may have provided the Pentagon with a brief moment of certitude, something concrete it can point to as a success. But in reality, it’s just another small step forward in the Byzantine uncertainty that is the military commission process. The only thing certain is there are miles to go until the issue of the validity of Hamdan’s conviction is put to rest.

“We haven’t really proved anything about whether this system is going to work,” said Shayana Kadidal, a lawyer for the Center for Constitutional Rights, which represents several detainees at Guantanamo Bay in Cuba.

Chance for appeals
Hamdan’s case, and perhaps others behind it, will now climb the ladder of America’s federal appeals courts, which could rule that the entire exercise in trying Hamdan was meaningless and order the Defense Department to again refashion the procedures by which the commissions operate, to try it all one more time. Or a court could find the prosecution of Hamdan to be flawed, marred by improper decisions by the judge involving the admission of evidence, access to witnesses — including other Guantanamo detainees—and the application of domestic and international law.

There is no shortage of matters for an appeals court to consider. Hamdan’s trial was a test, the first under a new set of commission guidelines crafted by the Pentagon after the Supreme Court in 2006 threw out the first batch as unconstitutional. There was little expectation that the judge, Navy Capt. Keith Allred, would get everything right the first time. In that sense, Hamdan’s expected series of appeals will again be a test, all with the aim of eventually ironing out the wrinkles in the procedures.

The Pentagon said on Wednesday that the verdict proved the system is working. “Trials by military commission demonstrate that the United States is committed to holding dangerous terror suspects accountable for their actions,” the Defense Department said in a statement.

Waiting behind Hamdan are 80 or so others at Guantanamo whom the Pentagon intends to try before the commissions. They include five alleged Sept. 11 plotters.

Hamdan, 38, was captured in Afghanistan in 2001 during the U.S. invasion. He was interrogated there before being sent to Guantanamo.

Allred found that in Afghanistan, Hamdan was kept in isolation 24 hours a day with his hands and feet restrained, and armed soldiers prompted him to talk by kneeing him in the back. He held that statements obtained before Hamdan reached Guantanamo could not be admitted as evidence because of those “highly coercive” conditions.

But later, Allred ruled that information obtained by investigators at Guantanamo could be used, despite complaints from Hamdan’s attorneys that that information, too, was unlawfully obtained. Prosecutors argued that Hamdan was a key operative of Al Qaeda, at bin Laden’s side in Afghanistan in the years before the Sept. 11 attacks. His defense counsel, conversely, portrayed Hamdan, who has a 4th-grade education, as a bit of a flunky.

After just over two days of deliberations, Hamdan was convicted of material support of terrorism but was acquitted of the more serious charge, conspiracy. The jury will now decide an appropriate sentence. The Defense Department has said it will keep Hamdan as long as necessary, as an enemy combatant, even perhaps beyond his sentence.

Hamdan was first charged by the Pentagon in 2003. Among other things, his lawyers will argue that the crime of which he was convicted wasn’t on the books until after he was charged.

“This is a system unmoored by standard constitutional principles of what constitutes a fair trial in the United States,” said Neal Katyal, a Georgetown University law professor who persuaded the Supreme Court to toss out the Pentagon’s first attempt at establishing a military tribunal system to try suspected terrorists.

Candidates weigh in
On the campaign trail in Ohio, Sen. John McCain, the presumed Republican nominee for president, praised the verdict. “This process demonstrated that military commissions can effectively bring very dangerous terrorists to justice,” he said.

His Democratic rival, Sen. Barack Obama, however, was less effusive. Obama has called for the detainees to be tried by standing military courts or civilian courts. “That the Hamdan trial — the first military commission trial with a guilty verdict since 9/11—took several years of legal challenges to secure a conviction for material support for terrorism underscores the dangerous flaws in the administration’s legal framework,” Obama said in Indiana.


1 Comment

Filed under Guantanamo, War on Terror

One response to “The road ahead for military commissions

  1. Pingback: Innovation in Law Review Publishing (Part 1 of 2) » Gregory S. McNeal

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