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Absurdities, Ironies, and Other Observations

First of all many thanks to Michael Innes for inviting me to share my account of my role in the Hamdan trial in this CTLab symposium. It has been a privilege to work with Michael over the last few years on his numerous cutting edge projects, and I truly feel as if he has pushed me into new and exciting directions. And many thanks to those of you who took the time to read and comment on my article.

I really enjoyed Tim Stevens' edgy piece on the significance of the Hamdan Trial and thank him for placing it in its wider context. As someone working in the 'forest' of the case, it was often difficult to see the 'trees' around me with the same clarity he has. As an historian I was also overwhelmed by the combination of militarese and legalese the Defense Team used on the case. Rather than try to penetrate their 'guild' languages, I simply tried to bring my field work to bear on the case and belatedly tried to understand its wider ramifications.

For this reason Stevens' comments, especially those relating to the ad hoc nature of the 'war crimes' that Hamdan was charged with, are illuminating. While Hamdan was charged with providing driving and bodyguard services for Bin Laden from 1996 to 2001, was there an actual war during this time period? And even if there was an actual war (which is debatable), does serving as a driver/bodyguard constitute an internationally recognized war crime (i.e. did he violate the laws of war)? If not, then Stevens' assertion that Congress created a whole new slate of "war crimes" for Al Qaeda prisoners (that can seemingly be retroactively applied over time and space) would seem to further invalidate the Gitmo legal system.

Tony Waters, like myself, was pleased by the jury's verdict (although I always had a hard time using the word 'jury' for six members of the military who were hand-picked to try the case!). And I could not agree more with Waters' comment that "the stain in the case of Hamdan is made even deeper by the fact that ultimately, the verdict is irrelevant to Hamdan himself who remains in prison without hope of release. A court which cannot protect those it judges is no court at all." While the jury may have vindicated itself, the US military will not have done so until it complies with the Hamdan sentence and releases him according to his sentencing.

LL. Wynn writes of the dichotomy she has encountered in Egyptians' views of America. While they tell her they love Americans, they state that they hate America for its aggression, hypocritical support for local dictators etc. I too have encountered this dichotomy in my travels in the post-9/11 Middle East and increasingly see the 'absurdities' that we in the US have come to accept as par for the course in the war on terror through the eyes of Middle Easterners. Never was the clearer for me than when I watched Turkey's highest grossing film of all time, Valley of the Wolves Iraq (a movie about a Turkish Rambo who goes to Iraq to fight Americans alongside the insurgents). As I watched the reenacted scenes of Abu Ghraib or Muslim captives in orange jump suits being sent to Gitmo, I cringed at the way they were being perceived by the Turks in the cinema around me. The fact that the Defense in the Hamdan case had to focus on whether or not Hamdan wore a uniform in order to prove him worthy of a fair trial is perhaps the most significant absurdity of the case. Clearly he deserved his day in court regardless of whether he was an Ansar fighter or not. Sadly there are some truths to the stereotypical images of American justice portrayed in Valley of the Wolves Iraq.

William Snyder points out the greatest irony of the case: namely, that Hamdan might have gotten a longer sentence had he been tried in civilian court for the crime of Material Support to an FTO (Foreign Terrorist Organization). Johnny Walker Lindh, the "American Taliban," was sentenced to twenty years in prison by a civilian court for his role as Ansar. In this sense the off-shore judicial system at Guantanamo Bay did not serve one of its main purposes, namely to avoid the sort of jury deliberations that might lessen sentences due to inadmissible evidence etc.

I found Jason Ralph's comments on states' reluctance to recognize non-state actors as legitimate to be applicable to my own work on Chechen fighters from the "Chechen Army of the Republic of Ichkeria." Like the Ansars, the Chechen rebels were rarely given POW status by the Russian Federal troops. On the contrary, the Chechens were usually defined as 'terrorists', 'bandformirovanny' (bandit formations), 'illegal secessionists' etc. and not given POW status (many of them were killed in extra-judicial executions). While the former Chechen President, Aslan Mashkadov, insisted that his troops fought in uniform and followed the Geneva Conventions, the Russian state refused to recognize them as legitimate enemies.

The Ansars who fought as a unit in the Taliban Command Structure were similarly denied Geneva Conventions by the US even when they fought frontally, wearing uniforms. Clearly the nomenclature is key in allowing US troops to circumvent the same laws the Russians sought to bypass in Chechnya. While I understand that it is impossible for US troops to treat POWs as criminals (this would involve reading them their rights in combat, among other things), enemy soldiers fighting in uniforms with small arms and anti-aircraft guns are hardly 'unlawful combatants.' The fact that the Taliban, which controlled over 90% of Afghanistan, was not recognized as the government of Afghanistan by the US might however make the enemy 'non-state actors.'

As to Marc Tyrell's question of "when does a non-state actor become a state," in the case of Al Qaeda in Afghanistan, it had become a state-within-a-state by about 1998. Bin Laden and his commanders sat in on Taliban shuras (councils), helped formulate foreign and domestic policies, and may have made up as much as 20% of the Taliban fighting force in many campaigns. The Taliban were not a state sponsor of terrorism, but a state sponsored by terrorism in this sense (although I would argue that the vast majority of Arabs in Afghanistan were not involved in terrorist operations, they were involved in military operations. It was these same non-state actors who were defined as unlawful combatants or terrorists after 9/11).

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