It was a busy news weekend and between the Olympics and the war in the Caucasus something nearly as profound got overlooked. Last week a military jury down at Guantanamo returned a split verdict in the case of Salim Hamdan, acquitting him of the most serious charge. The same jury, comprised entirely of active duty officers, then sentenced Osama bin Laden’s former driver to sixty-six months of detention, knowing full well that he had already been imprisoned for sixty-one. That means that there are five months remaining on his sentence, or roughly the same amount of time the Bush Administration has left in office.
That is probably not a coincidence. Both the verdict and the sentence in the Hamdan trial were slaps to the face of the Administration, what’s worse they were delivered by none other than American military officers, the very people the government depends on to fight its war on terror. It’s a perfect nightmare in the very first trial: Hamdan’s guilty, but his sentence is going to expire soon, and he’s not some wayward Australian white boy like David Hicks. He’s an Arab Muslim from Yemen.
As part of its ongoing “have your cake and eat it too” approach to legal affairs the Administration insists that even after Hamdan has finished his sentence he can still be held as an enemy combatant until the “war on terror” concludes hostilities. Take a minute and let that sink in.
Here we have the first trial of a man held in the legal quicksand of Guantanamo. This trial is supposed to be the first of many, not only of men currently in American custody but of other al-Qaeda operatives yet to be captured. The Administration went to considerable time and trouble to set this up (it’s been almost seven years in the making). Yet upon the conclusion of the first trial of its new special system the government insists that the verdict and the sentence are basically meaningless; it plans to hold this man indefinitely regardless of the outcome. The mind reels.
The obvious question then becomes, what the hell was the trial for? (And, by extension, why did we bother to spend all the time and money to set up this military trial system in the first place?) Is it all just some demented public relations scheme to make indefinite arbitrary detention, a concept specifically forbidden by the United States Constitution, seem like something other than what it really is?
There’s also the issue of what is now to be done with this Salim Hamdan. He is a man, a living breathing guy with hopes and dreams and fingernails and facial hair, and he has been tried in the manner explicitly endorsed by the United States Government. His sentence will be complete sometime in January. Back in June the Supreme Court ruled that the detainees at Guantanamo have the right to file habeas corpus petitions in federal court. Would that be his only means of redress should he complete his sentence and still be denied his release? Who knows? Given the amount of legal voodoo the Administration has so far sanctioned to keep its law-free prison operating one presumes they aren’t going to let this little setback deter them. If they want him, and it seems clear that they do if for no other reason than releasing him would set a bad precedent for keeping others indefinitely, they’re going to keep him, and if they need to make up new laws or ignore some others to do it does anyone really think that’s going to stop them?
Hamdan’s fate now more or less explicitly rides on the outcome of the election in November. That was the gauntlet thrown down by the jury. The jurors aren’t stupid; they knew when they made their decision that Bush the Younger’s term and Hamdan’s sentence will conclude concurrently. What happens after that is up to the voters. Presumably a McCain Administration would continue the current policy of indefinite detention, arbitrary power and logical contradiction. We don’t know what an Obama Administration would do, but we know it won’t be a continuance. NPR interviewed one of the Hamdan jurors, a Marine Lieutenant Colonel (via ACLU Blog):
Hamdan is still classified as an unlawful combatant by the Bush administration, and as such could be detained indefinitely in spite of his short sentence. Lt. Col. Patrick said that the jury would be extremely annoyed if that happened. After all, he said, what did we come down here for?
The magnitude of that rebuke - to the Administration from a serving officer - should not be obscured by Olympic flames and artillery shells.
Side Note: Hamdan’s trial went first for two reasons: sex appeal and confidence. The sex appeal came from the fact that he was directly connected to Osama bin Laden, even if only for the mundane task of driving. The confidence came from the fact that the events of his case were for the most part not in dispute. The military felt sure that they could secure a conviction on all counts and look what happened. What does this say about the other cases they’re preparing to try? I’d be willing to wager that most of the other cases are both weaker and less central to the 11 September attacks. They put their best foot forward and fell flat on their face, in a forum where the rules are bent to their advantage no less. It might be time to rethink the whole thing.
For an eight minute rundown of just how stupid, contradictory and downright absurd this whole thing is I highly recommend this ACLU mp3.
