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Out Here On The Perimeter

The outgoing U.S. administration has not had a smooth ride in 2008.  In June, the Boumediene v. Bush decision restored the constitutional right of habeas corpus to detainees at Guantanamo Bay .  It also challenged the constitutionality of the Military Commissions Act (2006), the first example of which – the trial of Salim Ahmed Hamdan – ended with only partial victory for the administration.  It also called into question both the status of the commissions and of 'unlawful combatants'.  More damagingly, perhaps, it exposed the motives of an administration hell-bent on convicting a man of war crimes never before covered by that term.

We have read Brian Glyn William's insightful and moving account of the Hamdan trial.  Hamdan has been all over the traditional media for years but what has the rest of the blogosphere been making of the events of August 2008 that resulted in the man characterised as "Bin Laden's Driver" effectively receiving a sentence of less than six months?

Brian William's fellow expert witness for the defense, Geoffrey S. Corn, suggests at The Jurist that the ethical professionalism of the participants in this case cannot, despite the verdict, mitigate for the shortcomings of the commission process in general.  In his view, Hamdan was convicted of a war crime, "not because his conduct fell into a well established category of conduct prohibited by international law during armed conflict, but simply because Congress took a crime never before considered a war crime and gave it that title."

Kevin Jon Heller concurs, and explains why the court's judgement that material support for terrorism constitutes a war crime was inconsistent with both national and international law and convention.  Marty Lederman at Balkinization has a great breakdown of what Hamdan was actually found guilty of, cutting through some of the murk surrounding this case.

Patrick Lang at Sic Semper Tyrannis agrees that justice was done in spite of the system rather than because of it:

The prosecution sought to use this military commission to communicate a message to the world. This message was to be that any association with any group the United States chooses to call "terrorist" will lead, at the least, to a long, long prison sentence.

The prosecution's, and presumably the Bush Administration's, desire to send that message was thwarted by six officers who preferred justice.

In response to those suggesting that the eventual outcome was shaped by the administration rather than by the discretion of the military jurors, Patrick has one word: "Rubbish."  (This word might also apply to one of the less predictable spin-offs from the Hamdan case.  Williams alluded to it, but according to PurpleSlog, George Clooney is all over this like a rash.)

On a more critical note, Andy Worthington, whilst describing Judge Keith Allred as "a principled man in an unenviable position", summed up the trial as:

...a litany of dubious practices masquerading as justice, including the disgraceful use of propaganda, misplaced prosecutorial zeal, the shameful employment of hearsay as evidence, abuse of the Fifth Amendment protection against self-incrimination, and woefully blurred distinctions between valid testimony and coerced testimony.

What of the future of the military commissions, now that the first has been partly ‘successful’ whilst at the same time its very existence has been called into question?  Well, it won't be the last.  At the Long War Journal, for example, Thomas Joscelyne reminds us that Hamdan's colleague Said Boujaadia, also captured in Afghanistan in 2001, was a real threat to security in a way that the affable Hamdan was not.  His case is unlikely to come to court any time soon but when it does will a military court be afforded the same autonomy under a new administration?  The Huffington Post 's Mike Melia thinks not. For him, the Hamdan trial,

provides an indication of what to expect as dozens more Guantanamo prisoners go to court: shifting charges, secret testimony - and quick verdicts.

And what of the future of Hamdan himself?  Not good, according to the folks at Opinio Juris.  "Don’t be fooled by the patina of fairness evinced by the split verdict, this system is irretrievably broken", writes Deborah Pearlstein.  Hamdan's lawyers will doubtless appeal his conviction for 'providing material support for terrorism', but will a federal judge be able to resist the 'atmospherics' of this case?   "It’s the perception challenge that will be among Hamdan’s greatest on appeal", states Pearlstein.

The government already looks unlikely to release him whatever happens in court – after all, he’s ‘won’ twice – and Dave Glazier concludes that "there does seem to be sufficient information in the public record to justify his indefinite detention".

The end of the trial, but not the end of the story for either the system or Hamdan.  Keep watching the blogosphere!

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