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.

I replied:

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.

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?

I replied:

Hi Marilyn,
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).

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.

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.

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.

Deep sigh.

Well, Hamdan’s nightmare may soon be over, we can hope.