Hamdan, cooks, tailors and cobblers

“We can only trust that the next subjects ... will include cooks, tailors, and cobblers without whose support terrorist leaders would be left unfed, unclothed, and unshod, and therefore rendered incapable of planning or executing their attacks.”
- Lt. Col. Stephen Abraham

Salim Hamdan was convicted on five counts of supporting terrorism. Though one, really. The military tribunal judge Capt. Keith Allred said the charges duplicated each other and ordered that he be sentenced only for one count, which he summarized as "driving Mr. bin Laden around Afghanistan." His sentence is 4 months and 22 days additional time in detention, as of 8/10. Left out of most news reports last week was that Hamdan was exonerated of charges of conspiring with Al Qaeda in the plotting 9/11, the USS Cole bombing and US African embassy bombings. Of course he may be held indefinitely as an "enemy combatant." No definitive word yet on that.

Is irony the right word to describe how the failure to convict Hamdan in this Star Chamber proceeding is seen as vindication of the military trial by some few? Hamdan was acquitted of being a terrorist and was not captured on the battlefield. Imagine what the outcome would have been if Hamdan would have been afforded Confrontation Clause rights, legal protection against hearsay evidence and evidence obtained by torture?

As we all know, he is not an American citizen therefore some argue that he does not deserve the privileges that Americans are entitled to under the US Constitution. This begs the question, how did I earn those rights? Through the fortune of my place of birth? Please substitute "white," "male," "property owner," and any number of other modifiers for "an American" in this response to, in a limited sense, accurately trace American jurisprudential history on this subject.

The Confrontation Clause of Sixth Amendment to the US Constitution provides that an accused in any criminal prosecution has the right "to be confronted with the witnesses against him," to look the accuser in the eye and to ASK THEM QUESTIONS, i.e., cross-examine them. Oh, the joy of being a military prosecutor without having to actually prove a single thing by having the evidence presented stand up to any questioning! Or be presented by an actual witness. Or have some notion that that evidence was obtained by humane (or legal, according to international law) means.

And the US evidentiary rule against the admission of hearsay evidence, that's also thrown by the wayside in these continuing military tribunals. In short, hearsay's legal definition is a statement made out of the tribunal's hearing, testified to by a witness, "offered to prove the truth of the matter asserted."

For example, so, Fred gets on the witness stand and says, "Joe said to me he saw Bob ride his bike outside the bike lane." And Bob gets convicted for riding his bike outside the bike lane on the strength of Fred's testimony about what he heard Joe say. Even though Joe lives down the street and is available to testify and be cross-examined on his recollection. Under US civil law, Bob can't be convicted of a crime on that evidence. And it’s not as though there are not exceptions to the rule. They are numerous. Say Joe got hit by a bus after avoiding Bob who was riding outside the bike lane and as he lies dying in Fred's arms, gasps out, "Bob was riding outside the bike lane." The law says that people are unlikely to prevaricate in this supposedly most honest moment of life and, of course, Joe is unavailable to be cross-examined because he was pancaked by the bus. In fact, Joe doesn't actually have to die, but be in real fear of his impending death, and unavailable at trial time, for this evidence to be admissible to prove Bob's guilt.

And enhanced interrogation techniques, of course, though an "essential tool" in the fight against global terrorism, produces evidence that is inherently unreliable, because it's been proven over and over that humans will say just about anything to make the pain stop. They all break, and they all say anything to make the pain stop.

The Confrontation Clause, the hearsay rule, and, of course, US law against obtaining evidence by torture, are all there to maximize the chances that when we convict someone of a crime, the evidence used is reliable, that it is as clear and unvarnished an expression of the facts around an event as we inherently emotional, unreliable, and fallible humans can come up with. Because taking someone's freedom or life away from them, anyone's freedom or life, is the most serious and most consequential thing that WE THE PEOPLE ever do.

To argue that we earned these constitutional protections, for ourselves only, by the fortune of our birth, our nationality, our skin color, our sex, is missing the point in a tragically fundamental way. Compelling argument exist that these protections, and the procedural protections of habeas corpus, and probable cause, and those other pesky Bill of Rights thingies, were not instituted as some sort of privilege available only to us so that we get a relatively even path in a criminal proceeding, because we are the privileged few. And to even think that today something as whimsical as the fortune of birthplace provides you, personally, with any protection against prosecution in a forum like Salim Hamdan faced, is tragically naïve. Just travel abroad and be in the wrong place at the wrong time. Or convert to Islam after getting out of the Army (see Brendan Mayfield). Or give money to an Islamic charity organization doing good work in the West Bank. Go on, give it a whirl. Ride the wheel.

No, the reality is that what we deny to the least powerful of us, we deny to all of us. That essential recognition formed the basis for some compelling few’s dedication to passing the Bill of Rights. Since that time, this has been one of the fundamental definitions of the struggle of making sense of the Constitution, with good people giving their energy, their dedication, and in many cases, their lives, to get to even the imperfect manifestation of fairness set forth in the best interpretation of the rule of law we live under today. That struggle, of course, started long before the USA came on the scene.

Let’s make the best of it.

"It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face-to-face, and has been given a chance to defend himself against the charges." Festus to Paul, Acts 25:16.