Hamdan Verdict

by hilzoy

From the NYT:

"A panel of six military officers convicted a former driver for Osama bin Laden of one of two war crimes charges on Wednesday but acquitted him of the other, completing the first military commission trial here and the first conducted by the United States since the aftermath of World War II. (...)

The panel rejected two specifications that would have supported a conviction for conspiracy. One asserted that Mr. Hamdan was part of the larger conspiracy with senior Qaeda leaders and shared responsibility for terror attacks including the 2001 terror attack.

The second conspiracy specification rejected by the panel asserted that Mr. Hamdan was part of a conspiracy to kill Americans in Afghanistan in 2001 with shoulder-fired missiles.

But the panel voted to convict Mr. Hamdan of five of eight specifications that made up the charge of providing material support for terrorism. The specifications included accusations that he drove Mr. bin Laden, served as his bodyguard, was a member of Al Qaeda and knew its goals."

So: after seven years, we have convicted Osama bin Laden's driver of, well, being his driver and bodyguard. That was totally worth setting up a brand new court system that throws out what have always been basic American legal standards.

Moreover, all that stripping away of rights got us nothing, since Hamdan had always admitted being bin Laden's driver and bodyguard. However, creating a whole new court system not only ensures a whole raft of appeals that would have been unnecessary had we used standard civilian or military courts, but also left open one huge problem: it's not clear that any of the things Hamdan was convicted of were actually crimes at the time he committed them. Marty Lederman:

"Under current U.S. domestic law, this alleged conduct would be a crime. Between 1996 and late 2001, however, such conduct was probably not criminal under U.S. domestic law. In any event, Hamdan was not tried for violating U.S. domestic law -- he was convicted for violating an alleged law of war.

This raises at least two huge legal questions. First, the charges themselves require that there have been an "armed conflict" during the period in question -- and the laws of war only permit trial of offenses committed within the period of an armed conflict. It's not clear which, if any, of Hamdan's alleged acts occurred after September 11, 2001 -- and it also is uncertain whether the conflict that triggers the laws of armed conflict commenced before 9/11/01, when al Qaeda engaged in other terrorist acts against the U.S. Four Justices in Hamdan thought the armed conflict did not begin until September 2001 (see note 31 of the Stevens opinion); but it remains an unresolved question.

Second, it is not clear that Hamdan's conduct of "material support" to terrorism (and, in Specification 2, to al Qaeda), in the form of of transportation and "body guard" services, was conduct that violated the laws of war in the period from 1996 to 2001. Judge Allred ruled (see page 2 here) that if such conduct was not a war crime at the relevant time, then Congress is barred by the Ex post Facto Clause from designating such conduct as a war crime after the fact. Were these forms of "material support" to terrorist acts -- or, even more broadly,to an organization that commits terrorist acts (Specification 2) -- a violation of the laws of war between 1996 and 2001? A very interesting and important question. See pages 3-6 of Judge Allred's opinion, in which he holds that even though there is no recognition of such a war crime in any international instruments, or U.S. field manuals, and even though the Congressional Research Service found no historical support for it, there is some evidence of similar "support" conduct being tried by military tribunals in the Civil War, and thus it was within Congress's broad authority under the Law of Nations Clause to determine that such conduct was a war crime when Hamdan acted. Whether that holding is correct will be a major issue on appeal."

More interesting analysis here and here (h/t Lederman.)

So, in a nutshell: after seven years of legal wrangling, we have convicted someone who is by no stretch of the imagination a terrorist mastermind of driving bin Laden and being his bodyguard, acts which might not have been crimes when he committed them. And for this we tossed out significant chunks of our legal traditions. What a deal.

Comments

[bedtimeforbonzo]

I think this is what you call a "show trial."

Some show.

[LFC]

"WOO HOO! WE WIN! WE WIN! WE'RE NUMBER ONE!"

-- George W. Bush

[MeDrewNotYou]

So: after seven years, we have convicted Osama bin Laden's driver of, well, being his driver and bodyguard.
And:
I think this is what you call a "show trial."

I'm sure that Vladimir Putin knows a few guys who've run show trials in the past. Why didn't Bush get some help from the experts?

[MeDrewNotYou]

Looking through the links in a little detail, I seriously doubt Hamdan did anything illegal at all. (I'd be interested to hear Hilzoy's opinion on whether he did anything ethically 'wrong' by driving/body-guarding.) I just can't see how providing a mundane service liking driving bin Laden around is a war crime, unless he's the getaway driver after bin Laden robbed and blew up a bank or something.

Could any law-type people looking at the case support me (or shoot me down, your choice!) on this?

[hilzoy]

Fwiw, by all accounts the people who actually participated in the trial did a very good job, and took their responsibilities seriously. (On reflection, I don't know one way or the other about the prosecutor, but the rest seem to have done a great job.) So in that sense, it wasn't a show trial.

On the other hand, they did a great job despite this administration's best efforts to make it a show trial.

[tomeck]

Poster from the old west recently found:

Wanted Dead or Alive
Jesse James, for murder and robbery

But failing that, we'll get his stablehand and barber.

[Bernard Yomtov]

I'm not sure I understand Lederman's first point. Does an armed conflict only begin, for these purposes, when there is an actual attack?

Without refernce specifically to Hamdan, does work done on planning and organizing an illegal act not count if it's done before the first attack?

I'm missing something here.

[The Modesto Kid]

My favorite sentence in the article was, "The Bush administration has long asserted that it could continue to hold detainees even if they were acquitted." This is old news I guess -- I seem to remember reading that statement a while back and grimacing -- it raises the question, why the tribunal? Usually you try an alleged criminal to determine whether you're going to punish him/her. But if the punishment is already set, why go to the expense?

[Matt]

(Warning: possible Godwin's Law violation ahead)

Since I know that we didn't convict Hitler's personal secretary of war crimes, how is it that we could convict Bin Laden's driver? For that matter, I'm fairly certain that we didn't convict Hitler's driver either.

[CharleyCarp]

TMK, that's always been the government's position. We'll see, though, how the remedy phase of Parhat turns out . . .

That's where the real action will be.

[CharleyCarp]

The thinking, I'm guessing, is that they'd work out the kinks with little guys like Hamdan and Hicks, before taking on the big guys. With Khadr, the motivation is different: they can't stand the thought of telling the widow of the soldier that he's said to have killed that not every death in a war is a war crime.

[The Crafty Trilobite]

I see what you mean about grounds for appeal. Lederman's points are good, but there's a more fundamental inequity here. Applying some pre-9-11 thinking for a moment, either this is a war or it ain't.

If this is a war, why are we trying to sentence a grunt to life in prison? The prosecutor asked for a 30-year sentence -- for driving and bodyguarding. (Of course, the judge can now decide for sentencing purposes that the jury got it wrong and Hamdan did conspire at the 9-11 attacks. How that can be constitutional, I have never understood.) Even if we call 9-11 a war crime rather than just a crime crime, chauffeur and bodyguard is not an executive position. If he didn't participate in the actual war crime, that's the end of the story.

Actually, if we call this war, it's a lot harder to justify tormenting this guy: he's SUPPOSED to serve his country in a war. We didn't sentence Wehrmacht officers to life in prison, much less the enlisted men and civilian staff. Heck, did we even sentence the German General Staff to life in prison? Why not, the Blitz did a lot more damage than 9-11. The answer is and always has been that war is not in and of itself a crime. If this is a war, we can't treat him as a criminal for enlisting on the other side.

Alternatively, if it is not a war, and he was found not guilty of conspiracy to commit acts of terrorism, what is the point of applying the "supporting terrorism" law? Are we going to try to capture and punish every person who ever sold Osama bin Laden a falafel sandwich? And if not, why are we hounding this guy in particular? This is nuts.

[Hogan]

If we'd let Hitler and Goebbels escape to the Carpathians and spend the next seven years reconstituting the Nazi Party, maybe we would have tried Hitler's driver for war crimes, just to have something to show for our efforts.

[Mike Schilling]

You're all missing the point: there would have been no 9/11 if Hamdan hadn't driven bin Laden to the meeting where they planned it. Next on the agenda: Osama's tailor (since he wouldn't have attended naked) and his dentist (since he wouldn't have been able to pay much attention if his teeth hurt.)

[Christian G.]

Modesto Kid:
I'm guessing there is still a certain propaganda value here for the government (regardless if they would prefer not holding the tribunals in the first place). There was a trial, justice has been done, this is a bad guy after all. "Rights groups" complain, at least that's what the news scroller told me yesterday when I tuned into CNN international. They always complain, right?
Or so it goes.

[Charles]

Why aren't they prosecuting Doctors Without Borders?

We can understand why they aren't after the Pakistani ISI -- professional courtesy, honor among thieves, call it what you will -- but even as we speak, future terrorists are being given prenatal care by DWB.

[russell]

A question:

If Hamdan is sentenced, as is likely, to more than time served, where will he be held?

Thanks -

[Ugh]

russell -

He'll be put here.

[MeDrewNotYou]

Ugh- Thank God! I was worried you'd make a 'Club Gitmo' joke ala Limbaugh.

[matttbastard]

Hot off the wire:

A six-member U.S. military jury Thursday sentenced Osama bin Laden's driver to 66 months in prison.

With credit extended by the judge for time already served, that likely means he will serve five months before being sent back to the normal population.

[Cirret]

Charleycarp: they can't stand the thought of telling the widow of the soldier that he's said to have killed that not every death in a war is a war crime.

I know you can't speak for such people, and they will certainly not deign to explain themselves to us, but what are they planning to say to all the Iraqi widows whom they haven't troubled to count?

[CharleyCarp]

It's not as good as what happened to Hicks, but you can see why Salim Hamdan thanked the jurors.

[CharleyCarp]

Cirret, the widow is an American, and therefore she counts. Those other people aren't, and don't. It's pretty simple once you accept the rules.

Thinking more about Hamdan's sentence, now Cheney and Bush are asking themselves the same thing as Hilzoy: all this effort, and this is what we get? Look at what John Walker Lindh took, as a plea deal. Obviously we can't know for sure what would have happened elsewhere, but I'd be shocked if even the biggest rah-rah among the government's supporters would even try to argue that Hamdan would've done better in a US district court.

[Hogan]

Wait, so he'll serve his sentence in some part of Gitmo that's even more like a prison than the rest of Gitmo, and after that he gets to go back to plain vanilla Gitmo?

[Michael Drake]

Well, at least this helps to explain why going after bin Laden hasn't a top priority: Pursuing bin Laden himself would have diverted resources away from the pursuit of his house staff.

[Jeff]

Wait, so he'll serve his sentence in some part of Gitmo that's even more like a prison than the rest of Gitmo, and after that he gets to go back to plain vanilla Gitmo?

Yo were expecting something resembling justice? From this crowd? LOL!!!!!!

[Warren Terra]

I note CharleyCarp already raised Hicks, above, and of course Hicks was treated a bit better after his show-trial-equivalent (a guilty plea, iirc), as Hicks was essentially set free at the end of his "sentence" and was in Gitmo a much shorter time.

Still, there are some striking similarities: each was not accused of responsibility for planning or attempting any trans-naitonal activities. Each was sentenced to time served plus five to nine months. And in each case, those several months put the endpoint neatly after a national election: for Hicks, Australia's unpopularly pro-Bush PM was due to face the voters, and for Hamdan, the US's unpopularly is-Bush's Republican party is due to face the voters. The details differ a bit: Hick's detention was to keep him mum until after the election, while Hamdan is to have him "serving his sentence" during the election, but there does seem to be an undue awareness of external schedules.

Of course, Hamdan is scheduled to complete his sentence and then be "detained" until we've Won The War. When did we last defeat an abstract noun, anyhow? And how will Hamdan tell the difference when his sentence is over?

[Hogan]

Yo were expecting something resembling justice?

Nah, just a less convoluted and expensive way of moving someone from one end of the gulag to the other. As Brad DeLong keeps saying, the Bush administration is worse than you can imagine, even when you allow for the fact that they're worse than you can imagine.

[Davis X. Machina]

Hick's detention was to keep him mum until after the election, while Hamdan is to have him "serving his sentence" during the election, but there does seem to be an undue awareness of external schedules.

That's the most elegant euphemism I've heard in years -- an instant all-star in the 'some risk of terminological inexactitude' vein.

[novakant]

For that matter, I'm fairly certain that we didn't convict Hitler's driver either.

Actually that was brought up by the defense in the Hamdan case, lol:

The defense lawyers employed the Nuremberg references to argue that the Pentagon had overreached with its case against a bin Laden driver they described as a poorly educated worker without access to Qaeda’s terror plans. The defense noted that Hitler’s driver, Erich Kempka, was not prosecuted as a war criminal.

[Davis X. Machina]

The defense noted that Hitler’s driver, Erich Kempka, was not prosecuted as a war criminal.

But the prosecution was quick to note that Kempka did keep on making lefts from the right-hand lane, without signalling.

[The Crafty Trilobite]

I hope they'll pursue an appeal anyway. The "supporting terrorism" law is just too broad. Every cab driver in the world now lives in fear.

Okay, they probably did already, definitely the ones in my old neighborhood, but you know what I mean.

[russell]

Wait, so he'll serve his sentence in some part of Gitmo that's even more like a prison than the rest of Gitmo, and after that he gets to go back to plain vanilla Gitmo?

Brilliant.

What a sick sad joke this nation is becoming.

Thanks -

[Nell]

I like the enhanced hande, Crafty one!

Maybe it's the power of suggestion, but your comments seem sharper, too... ;>

[Gary Farber]

"Maybe it's the power of suggestion, but your comments seem sharper, too... ;>"

Truly an extinct cephalon above others.

[CharleyCarp]

Mr. Hamdan has lately been in Gitmo's Camp V -- prison enough for anyone. (It's supposed to be based on a facility in Indiana, iirc. Another fine product of the Haliburton company . . .)

[Nell]

Fwiw, by all accounts the people who actually participated in the trial did a very good job, and took their responsibilities seriously. (On reflection, I don't know one way or the other about the prosecutor, but the rest seem to have done a great job.) So in that sense, it wasn't a show trial.

For what it's worth? It's not worth very much.

It is a show trial process, one in which several members of the military refused to participate, a show of integrity that will not advance their careers.

Whether a supposed judicial process is a show trial has much more to do with the rules and structures under which it operates than the people who carry it out.

Of course, participants operating in the spirit of bad faith in which the whole process was conceived can always make it even more of a sham. But people who are willing to participate in a process they and everyone knows to be a violation even of military justice deserve no special praise, and they do nothing to mitigate the unfairness of the setup.