A Wrist Slap for a Terrorist

In the first military commission trial ever held at Guantanamo Bay, Osama bin Laden’s former driver and bodyguard — 38-year-old Salim Ahmed Hamdan — has been convicted of providing material support for terrorism. Prosecutors had asked the six Pentagon-appointed jurors to impose a sentence of not less than 30 years, so as to make an example of Hamdan. But instead the defendant was sentenced, on Wednesday, to a mere five-and-a-half years in prison and he will be eligible for release in just six months.

The jurors apparently were influenced by Hamdan’s contention that because there were insufficient career opportunities available in his native Yemen, he had little choice but to take a job working for bin Laden. Reading from a prepared statement, Hamdan said: “It’s true there are work opportunities in Yemen, but not at the level I needed after I got married and not to the level of ambitions that I had in my future.” Moreover, he expressed regret over the “innocent people” who had died as a result of his employer’s actions. “I personally present my apologies to them if anything that I did has caused them pain,” he added.

The military judge, Navy Captain Keith Allred, gave jurors the latitude to impose any sentence from life in prison to no punishment at all. He also instructed them to take into account the fact that Hamdan had a wife and two children to support, and that he already had spent nearly seven years in solitary confinement at Guantanamo.

When the sentence was handed down, Hamdan, undoubtedly stunned by the leniency he had received, told the jurors, “I would like to thank you for what you have done for me.” The judge then told him, “I hope the day comes that you return to your wife and daughters and your country, and you're able to be a provider, a father, and a husband in the best sense of all those terms.” To this, Hamdan replied solemnly, “God willing.”

The foregoing exchange bears an uncanny resemblance to a TV court program, where a rebellious adolescent defendant is shipped off to a boot camp for an afternoon, supposedly experiences an epiphany, and then, wearing an angelic smile and a crisp necktie, returns to the courtroom to report that he suddenly has come to understand the importance of being a sweet and friendly fellow. Everything appears to be tied up in a nice, neat bow, though no observer with any common sense really believes it.

Hamdan’s story — before Afghani troops captured him in November 2001 and handed him over to the U.S. military — was an ugly one. He first became acquainted with bin Laden in Afghanistan in 1996. The two kindred spirits instantly hit it off, and thus Hamdan was happy to take a job with the world’s foremost bloodthirsty savage.

Hamdan kept this job for five years, during which time he proved to be most adept at such diverse tasks as transporting weapons from Taliban warehouses to the head of al Qaeda’s security committee in Afghanistan; purchasing trucks for use by members of bin Laden’s bodyguard unit; and driving bin Laden to various al Qaeda-sponsored training camps and events.

When al Qaeda bombed two U.S. Embassies (killing more than 200 people and wounding over 4,000) in Tanzania and Kenya in August 1998, Hamdan was gainfully employed as one of the drivers in a convoy of vehicles that shuttled bin Laden and his henchmen to safety in remote regions of Afghanistan. After the 9/11 attacks, the ever-dependable Mr. Hamdan was once again behind the wheel of a bin Laden escape car. At the time of his ultimate capture, Hamdan had a number of SA-7 surface-to-air missiles stashed in his car.

In July 2004 Hamdan was charged with conspiring with Osama bin Laden and other al Qaeda bigwigs to commit war crimes against a civilian population. He was ultimately tried before a military commission in proceedings that began on July 21, 2008.

According to the Defense Department, military tribunals, where military officers serve as the judges and jurors, are designed to deal with offenses committed in the context of warfare — including pillaging; terrorism; willfully killing or attacking unarmed civilians; taking hostages; employing poison or analogous weapons; using civilians as human shields; torture; mutilation or maiming; improperly using a flag of surrender; desecrating or abusing a dead body; rape; hijacking or hazarding a vessel or aircraft; aiding the enemy; spying; providing false testimony or perjury; soliciting others to commit offenses that are triable by military jurisprudence; and intending or conspiring to commit, or to aid in the commission of, such crimes.

The Left, however, will have none of this. In its view, military tribunals trample on the civil rights and liberties of defendants who should be entitled to all the constitutional rights and protections afforded by the American criminal court system — where the standards that govern the admissibility of evidence are considerably stricter. Most notably, leftist critics cite the protections afforded by the 5th and 14th Amendments to the Constitution, which state, respectively, that no “person” shall be “compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law”; and that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

But as author Joseph Klein has pointed out, the term “person,” as it appears in the foregoing contexts and throughout the entire Constitution, refers to “the collective populace of the United States,” not to foreign enemies waging war against the nation.

A secondary consideration in determining if military tribunals are the proper venue for the adjudication of a given case involves the question of whether a defendant is a “lawful combatant” or an “unlawful combatant.” The former is entitled to prisoner-of-war status and its accompanying Geneva Convention protections; the latter is entitled to none of that. Article IV of the Geneva Convention defines lawful combatants as those whose military organization meets four very specific criteria: “(a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign [a uniform or emblem] recognizable at a distance; (c) that of carrying arms openly; [and] (d) that of conducting their operations in accordance with the laws and customs of war.” Al-Qaeda fails even to come close to satisfying these conditions.

Apart from the question of whether military tribunals are a good idea philosophically, trying terrorists and war criminals in civilian rather than military courts poses a number of serious problems from a practical standpoint. For one thing, the rules defining admissible and inadmissible evidence in each venue differ dramatically. In civilian trials, neither coerced testimony, nor confessions made in the absence of a Miranda warning, nor hearsay evidence can presented to the court; in military tribunals the opposite is true, provided that the court determines such evidence to have “probative value to a reasonable person.”

Trials of terrorists in civilian courts are beset by further practical limitations as well. Consider, for example, a hypothetical instance where U.S. military personnel capture a foreign terrorist overseas and transport him to the United States, against his will, for trial. Explains attorney Mitchell Lathrop:

“Immediately apparent are the issues of the legitimacy of the exercise of criminal jurisdiction over him by the United States, i.e., his arrest in the first instance, and his involuntary transportation to the United States. Then come the issues of the selection of the proper jurisdiction for the trial, the application of the laws of his own country, the selection of a jury, and even personal and subject matter jurisdiction of U.S. courts. Any qualified defense lawyer would certainly challenge jurisdiction and a series of complicated appeals would inevitably result. In the final analysis, a plea bargain could well result just to avoid the interminable delays.”

Dealing with terrorists under such a set of rules is analogous to participating in a shootout where only the enemy’s weapon is loaded. Moreover, it signals to the watching world that Americans have become consumed by guilt vis a vis the allegedly irredeemable flaws of their own culture and, as a consequence, do not possess the requisite courage for dealing aggressively with those who would seek to destroy their country.

Another exceedingly significant weakness inherent in civilian trials for terrorists is the fact that in such proceedings, there exists a high likelihood that classified intelligence sources will be compromised. If the government wishes to present certain incriminating evidence in a civilian trial, which is open to the public, it must disclose its sources as well as the techniques it used for obtaining the information from them.

This obviously would place those sources in grave danger and would quickly lead to the non-cooperation or disappearance of many of them — to say nothing of the future potential informants who undoubtedly would choose to avoid placing themselves in similar peril. Moreover, the effectiveness of any publicly disclosed information-gathering techniques would thereafter be permanently compromised. As John Dean writes, “Many cases have never been prosecuted against criminals because to do so would force disclosure of a valued intelligence source — be it an informant, an enemy code that had been broken, or an illegal electronic intelligence source.” By contrast, military tribunals permit incriminating evidence to be presented to the judge and jury, while being kept secret from the public as well as from the defendant and his attorney.

Notwithstanding these very reasonable arguments in favor of using military tribunals for foreign enemies captured in the context of war, the legal left contends that such tribunals deny terrorists a host of “rights” to which they ought to be entitled.

After Hamdan was convicted this week of supporting terrorism, the American Civil Liberties Union (ACLU) alleged that his trial had been “filled with overwhelming constitutional and procedural flaws” and “lacked the fundamental legal safeguards found in traditional U.S. courts …” Notwithstanding the light sentence Hamdan had received, ACLU Executive Director Anthony Romero lamented that the verdict had resulted from a “flawed system” and constituted “a betrayal of American values” and “a monumental debacle of American justice.” “This [military tribunal] system was devised,” he said, “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.”

ACLU National Security Project staff attorney Ben Wizner concurred, “Today’s outcome represents nothing more than an illusion of justice. It is time to shut down these commissions and put an end to this shameful chapter in American history.”

Another key player for the legal left is the Center for Constitutional Rights (CCR), which prides itself on having arranged for more than 500 pro bono lawyers to represent the detainees at Guantanamo, “ensuring that nearly all have the option of legal representation.” According to Shayana Kadidal, Senior Managing Attorney of CCR’s Guantánamo Global Justice Initiative, “Hamdan’s trial violated two of the most fundamental criminal justice principles accepted by all developed nations: the prohibition on the use of coerced evidence and the prohibition on retroactive criminal laws.” “This case,” added Kadidal, “was the first trial run of the commissions system, and the decision proves nothing except that the system itself should be scrapped. Terrorism-related crimes should be tried in the time-tested domestic criminal justice system, a system whose rules have been designed over the centuries with one goal: to seek out the truth.”

Here is a general principle upon which you can rely: When there is a legal case involving a defendant who detests the United States and seeks to destroy the country by any means necessary, the ACLU and the CCR can be counted upon to side squarely, unambiguously, and passionately with that defendant. They will portray even the slightest punishment as an injustice of unspeakable proportions. You can bet the ranch on it.