The Hamdan War Crimes Trial: An Illusion of Justice

from HuffPost:



Sahr MuhammedAlly
The Hamdan War Crimes Trial: An Illusion of Justice
Posted August 6, 2008 | 03:51 PM (EST)




After 7 years, the Bush administration got its first war crimes conviction but not of anyone who plotted the 9/11 attacks, but that of Osama bin Laden's driver. Yemeni national Salim Ahmed Hamdan's crime was to chauffeur bin Laden in Afghanistan, which the government argued allowed bin Laden to plot attacks against the United States. Hamdan was convicted for material support for terrorism and could spend the rest of his life in prison. In fact, whatever sentence a court may determine, the Bush administration claims that it has the authority to hold him indefinitely as an "enemy combatant" until the cessation of hostilities in the so-called "war on terror."

Hamdan, who has a fourth-grade education and was earning $200 a month as one of Osama bin Laden's drivers, has been detained for almost seven years now. It was Hamdan's case in 2006 that led the Supreme Court to rule that President Bush lacked the authority to constitute military tribunals, but Congress subsequently enacted the Military Commissions Act (MCA) to re-constitute those tribunals, rendering Hamdan's victory worthless to him.

I observed Hamdan's trial in Guantánamo Bay, Cuba for Human Rights First. At trial, a parade of government criminal investigators testified that Hamdan was not involved in any terrorist attacks, such as the USS Cole bombing, the Kenya embassy bombings, and or even 9/11. But Hamdan was charged with conspiracy and providing material support to a terrorist organization. The six-member jury, however, convicted him of material support of terrorism. Material support and conspiracy are prosecutable under federal criminal law and many persons have been prosecuted in federal courts under such crimes post 9/11. Hamdan could thus very well have been prosecuted in federal court but the government instead decided to make such offenses war crimes. This in legal terms is ex post facto application of the law-making something a crime when it was not a crime at the time it was committed -- and is prohibited by the U.S. Constitution.

To make the case that military commissions are prosecuting war crimes, the government has argued, as it did in the case of Hamdan, that the United States and al Qaeda have been at war since the early 1990s. This is remarkable since most Americans never heard of al Qaeda until 2000. But the government's view is that al Qaeda in its speeches, websites, and fatwas declaring war on the United States were sufficient to trigger the laws of war. At Hamdan's trial, the government debuted "The al Qaeda Plan"-a made to order $20,000 movie comprised of al Qaeda propaganda videos found on the Internet to prove, among other things, the government's analysis of when the armed conflict with al Qaeda began. This interpretation of when an armed conflict begins or ends is a dangerous stretch, as it would allow any group to say that it is at "war," and would thus trigger a state of armed conflict. .......(more)

The complete piece is at: http://www.huffingtonpost.com/sahr-muhammedally/the-hamdan-war-crimes-tri_b_117325.html