In a decision that will shock those watching the conclusion of the first full US war crimes trial since the Nuremberg Trials, the military jury that yesterday convicted Salim Hamdan of providing “material support for terrorism” has sentenced him to serve five and a half years in prison. Given that the judge in his case, Navy Capt. Keith Allred, had earlier ruled that he would be given credit for time served since he was first charged under the Commission system in July 2003, this means that he will be eligible for release in five months’ time.
The verdict will do nothing to convince the many critics of the Military Commission trial system that it is valid — as there remain too many issues with the Commissions’ use of hearsay and coerced evidence, of secret testimony, and of attempts to justify elevating “material support for terrorism” to the level of a war crime, despite no precedent for doing so — but it must surely come as a relief to those who thought that the jury might have been persuaded by prosecutor John Murphy, who argued that Hamdan’s “penalty” should be a sentence of at least 30 years, something “so significant that it forecloses any possibility that he reestablishes his ties with terrorists.”
Instead, the sentence is close to the length of time proposed by Hamdan’s defense lawyer Charles Swift, the former military lawyer who brought down the Commissions’ first incarnation as illegal in the Supreme Court in June 2006. Swift argued that Hamdan should receive a sentence of less than four years because “his cooperation with US intelligence services more than outweighed his culpability as a member of [Osama] bin Laden’s motor pool.”
This is, I believe, an extremely important point, as it was apparent during Hamdan’s two-week trial that he had been exploited by those seeking to prosecute him, who had built a case against him through his own words. At issue was the Fifth Amendment protection against self-incrimination, which has been denied to all those deemed “enemy combatants” in the “War on Terror.” While this remains unacceptable — and is intimately connected with the dark heart of the administration’s deliberate policy of shredding the Geneva Conventions to facilitate the illegal interrogation of prisoners (whether coercively or not) — what made it particularly troubling in Hamdan’s case was that, whereas other, non-cooperative prisoners had been released from Guantánamo without ever incriminating themselves, Hamdan was being punished for his cooperation.
While legal challenges to the system will be more muted as a result of this verdict, it is unlikely that Hamdan’s defenders will be persuaded not to pursue their many, valid complaints about a system which, as Charles Swift explained today, remains nothing more than “a made-up tribunal to try anybody we don’t like.”
However, what this sentence also achieves, which was previously unconceivable, is to cap the disturbingly open-ended nature of the administration’s detention policies, in a way that, to date, has only been managed through a plea bargain — that of the Australian David Hicks, who, in the first of the Commission trials following their resuscitation in the fall of 2006 in the Military Commissions Act, received a nine-month sentence to add to the five years and three months he had already spent in US custody.
Until now, the administration has maintained that, if it wishes, it has the right to hold “enemy combatants” without charge or trial until the end of hostilities, which, it has also admitted, might last for generations. A sentence has now superseded that open-ended policy. If one of Osama bin Laden’s drivers gets a sentence of seven years and one month in total (five and a half years plus the 19 months of his imprisonment before he was charged) in a system specifically established by the administration to try and convict “terror suspects,” it is surely now inconceivable that those who planned the whole post-9/11 detention policy can maintain that they can still continue to hold him as an “enemy combatant” after his sentence has been served — or, for that matter, that they can continue to hold any of the 130 or so prisoners in Guantánamo who have not been cleared, and who are not scheduled to face a trial by Military Commission, beyond the end of the year.
With this sentence, it appears that the death knell has just been sounded for the whole malign Guantánamo project.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.
See the following for the response to the verdict by the jury and the media. See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 2007), A bad week at Guantánamo (Commissions revived, September 2007), The curse of the Military Commissions strikes the prosecutors (September 2007), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Guantánamo’s shambolic trials (ex-prosecutor turns, February 2008), Torture allegations dog Guantánamo trials (March 2008), African embassy bombing suspect charged (March 2008), The US military’s shameless propaganda over 9/11 trials (April 2008), Betrayals, backsliding and boycotts (May 2008), Fact Sheet: The 16 prisoners charged (May 2008), Four more charged, including Binyam Mohamed (June 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan’s trial approved, July 2008), A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008), High Court rules against UK and US in case of Binyam Mohamed (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), Meltdown at the Guantánamo Trials (five trials dropped, October 2008), The collapse of Omar Khadr’s Guantánamo trial (October 2008), Corruption at Guantánamo (legal adviser faces military investigations, October 2008), An empty trial at Guantánamo (Ali Hamza al-Bahlul, October 2008), Life sentence for al-Qaeda propagandist fails to justify Guantánamo trials (al-Bahlul, November 2008), Guilt by Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), 20 Reasons To Shut Down The Guantánamo Trials (profiles of all the prisoners charged, November 2008), How Guantánamo Can Be Closed: Advice for Barack Obama (November 2008), More Dubious Charges in the Guantánamo Trials (two Kuwaitis, November 2008), The End of Guantánamo (Salim Hamdan repatriated, November 2008), Torture, Preventive Detention and the Terror Trials at Guantánamo (December 2008), Is the 9/11 trial confession an al-Qaeda coup? (December 2008), The Dying Days of the Guantánamo Trials (January 2009), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Bush Era Ends with Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials (January 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009).
And for a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Obama’s Confusion Over Guantánamo Terror Trials (June 2009).
Soon after my response to the verdict was published, I had the following email exchange with Stephen Abraham:
Stephen Abraham: The only criticism I find with your assessment is the note that the sentence has superseded the open-ended policy. There is nothing presented to suggest that the policy will in any way yield to the commission’s conclusion. Call me cynical …
Andy Worthington: No, I understand your cynicism, believe me, but logically — and I know they’re not logical, but bear with me — they always said they could continue to hold “enemy combatants” even if they were cleared. They never dreamt, I don’t think, that they’d have to justify continuing to hold someone AFTER they’d been “fairly” judged and sentenced in the special terror courts that they themselves established. They simply can’t justify it. I don’t expect them to give in, but I really don’t expect them to have — or even to be able to pretend to have — a leg to stand on.
Stephen Abraham: The BBC just reported the sentence (top of the hour) and made the same observation that he could still be held indefinitely. They characterized the sentence as a slap in the face of the administration. Maybe the recipient of that slap got the message and isn’t inclined to roll over.
Andy Worthington: I’m sure they’re not inclined to roll over, but, to extend the analogy, they’re now going to get kicked.
Stephen Abraham: We have taken our role as the kicker with great nobility. [But] in the end, do they care? Apparently, reputation and legacy are of little importance.
Andy Worthington: Only power.
Stephen Abraham: But that power is not inexhaustible. Consider that all of Bush’s high profile requests for side venues in china were denied. They know he has no power left. [And this was] power that WE allowed them to wield. Our silence. Our consent. Abusers of power never advance by accident. This play was falsely premised on the theory that the price of security was freedom. We chose to embrace both the tyrant and the price. We got nothing in return.
And this from the Talking Dog:
Very nice take on it, Andy.
Note the calendar: the additional 5 months is also, magically, almost exactly how much time is left in the Bush Administration (kind of like how David Hicks’ sentence conformed almost to the exact day of the length of the Howard Government Down Unda’).
Look for either (1) the convening authority to EXTEND the sentence (kind of like what kept happening with CSRTs that had the audacity to find innocent men innocent) … that seems unlikely, of course … I’m betting on (2) a deal will be worked out with Yemen by, oh, the middle of next week for Hamdan to serve out his sentence there, followed by the terrorist reeducation plan. GTMO is going to be over for Hamdan: keeping him at GTMO beyond the length of his sentence will be the political death of the place — that I agree, but Halliburton needs to be paid for building Camps 6, 7, 8 etc. Also — Bush wants to dump the real mess of trying KSM, et al. on THE NEXT PRESIDENT. He will argue on his way out the door, of course, that “the commission system works” … as Addington believes that only the commission system can avoid that whole “torture” thing … (he should have paid attention to Padilla and realize that “legal workarounds” are everywhere). Of course, I haven’t heard from Steve Truitt and Charlie Carpenter for a while on that whole destroying evidence of torture thing … but you know, courts frown on that sort of thing, and the commissions … well, might not. But in the end, either Pres. Obama or Pres. McCain will have to deal with this … that was always the plan.
The Bush Administration will now point to the reasonableness of the sentence (bet J.W. Lindh would be duly disturbed by this, assuming we ever let him know any of this was happening and assuming he survives his 20 year sentence for the high crime of extreme political incorrectness) as further evidence that the entire system works, even though, of course, this demonstrates the precise opposite.
Certainly, a post-sentence deal à la Hicks (calling Susan Crawford) is absolutely essential now, lest the whole thing have to be reviewed by an ever more jaded and sick of all this crap court system.
Well, Hamdan’s nightmare may soon be over, we can hope.
And this from Guantánamo lawyer Kent Spriggs:
Believe me. I was thinking all the same things.
Enjoyed your exchange with Abraham.
A couple of notes. Read with interest the interrogatory answers of Khalid Sheikh Mohammed and Walid bin Attash who explained with clarity that Hamdan was just a hired hand paid a monthly salary (from Osama bin Laden, not al-Qeada) and truly knew nothing about al-Qaeda, its plans, etc., much less being a member. Their take was they were almost offended that some hired hand would be accorded the dignity of being deemed an al-Qaeda player.
More grist for your argument of the contradiction of holding Hamdan after sentence served — the Judge’s comments that he hoped that Hamdan could return to being a husband, dad, etc.
And this is another exchange I had with Stephen Abraham:
Stephen Abraham: Has he been released yet? Did you see, even the government spokesmen have said that as an enemy combatant, they can keep him indefinitely.
Screams for fed custody and trials …
Andy Worthington: Absolutely. My hope is that banging on about the injustice of keeping him imprisoned after his conviction and sentencing in the administration’s own invented system will highlight the utter depravity of those running the show. In the meantime, of course, as you point out, no one should rest from damning the whole Commission system, however much the jury demonstrated their independence of thought.
Stephen Abraham: I would posit the following…
Let us assume a scenario where the police detain a person, keeping him in pre-trial confinement for years. During that time, they help the prosecutors to build a case against the individual based on the most tenuous of facts and incidents bearing little resemblance to credible evidence of guilt. They then allow trial to proceed but only on their conditions, that they be allowed to dictate what evidence will be received, what witnesses will be allowed, and what material will be presented to the individual’s attorneys so that they might adequately prepare their defense. Even if we then assume that the other trial members (judge, jury) will be scrupulous in their observance of proper courtroom procedures, with the foregoing issues preceding trial, what confidence can there be in the outcome? Add to that the fact that the decision of the court/jury is ultimately advisory inasmuch as the jailor, at the end of the term, has the power to refuse to release the individual, thereafter requiring the individual to petition for writ of habeas corpus, alleging, having satisfied the sentence of the court, that there is no longer a lawful basis for his further detention. The jailor then argues in opposition that the individual is still an enemy combatant and has no right to be released until the end of the war on terrorism.
Assuming the foregoing, what was the point of the trial?
Let’s make it an even easier scenario. The individual is sentenced to a life sentence for being an enemy combatant. Nothing else is adjudicated. Years later, his jailors decide to try him for an offense and thereafter impose a sentence of duration less than the duration of his expected lifetime. Of what matter is that subsequent sentence in that it does nothing to reduce by a single day the original sentence?
That is the executive’s theory and the reason why, ultimately, the commissions are irrelevant. They are merely a diversion, a show for the benefit of those who actually feel that a trial will provide some cathartic moment, a means of assuaging our feelings of guilt (for the few who actually feel anything) concerning these life sentences.
Andy Worthington: That’s very sharp.
So what should we do? It sounds like we need to damn the “diversion” of the trials, to expose the extreme horror of indefinite detention without trial that lies behind it. To demonstrate that the dictatorial executive believes in its right to imprison people arbitrarily for life, without even needing a show trial
Stephen Abraham: Keep speaking. The one thing that they can never stop is the truth.
Marilyn Shepherd wrote:
Andy, now that Hamdan has shown that shooting on the battlefield is not a war crime, what will happen to this young man Khadr?
They surely cannot continue the farce, and when does the Supreme Court ruling come down for the second time, which should make the whole thing null and void anyway?
Not sure what’s next. Certainly the legal pressure needs to be sustained to insist that the Commissions are illegal, even though the jury demonstrated some independence of spirit by refusing to deliver a punitive sentence. The big issue for me is making the administration hold to the verdict of its own system, and insisting that Hamdan be released in December. After that, it must surely be untenable to hold the 120 or so prisoners considered less dangerous than him.
Remember that Hamdan was not accused of combat of any kind. With Omar, the issue of supreme importance — given that the administration doesn’t care that he was a child at the time — is for the defense to demonstrate that the prosecution has been lying, and that there is no proof that Omar threw the grenade that killed Sgt. Speer.
As for the Supreme Court, there is no case pending, following the Court’s ruling in favour of the prisoners in Boumediene v. Bush, but challenges to the legality of the Commissions may eventually end up there — in 2010? (though hopefully, by then, Guantánamo will be closed).
I also received this message from Dave Lowe, a former Brit living in Canada:
I read your article “Does It Signal the End of Gitmo?” with interest.
I hope you are right about the end of Gitmo, but even if you are, the damage to the US Constitution caused by the criminals in the White House remains.
This is not just a danger for the American people.
If the Bush regime feels immune from the rule of law, as it obviously does, who knows what they might get up to, both at home and overseas.
We live in dangerous times.
Thanks for the comment. I tried to be provocative with the title of the article, rather than phrasing it as a question, which would have been more accurate, to demonstrate that, logically, the administration cannot continue to hold Hamdan after he has served the sentence delivered in the court they conceived after the 9/11 attacks especially to try “enemy combatants” seized in the “War on Terror.” If the architects of this policy refuse to release him, they will demonstrate that the Commissions are nothing more than a diversion, and their true mission will be exposed as never before: granting the President dictatorial powers, enabling him to seize and imprison anyone he wishes, without any meaningful review or challenge, for as long as he wishes.
So to follow on from your other comments, whether Hamdan is released or not, the mere fact that the administration insists it can continue to hold him after his sentence is served confirms the White House’s utter contempt for the Constitution. Voters really should be aware of this in November.
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