In a decision that will shock those watching the conclusion of the first full U.S. 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 U.S. 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 that, 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 inconceivable, is to cap the disturbingly open-ended nature of the administration’s detention policies, in a way that was only previously 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 U.S. 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.
