Before considering whether this week’s outcome means the commissions are out of commission or not, wasn’t there supposed to be a tradition called an Olympic Truce, whereby active hostilities were supposed to stop for the duration of the Games? But of course, the best time to start a war – whoever did it, about which I suspect it’s wise to be agnostic until we know more – by surprise attack is to do it when nobody’s expecting it. Laws of war, indeed! Wars are the province of the ruthless, not the congenitally law-abiding.
Ah, well! At least it’s a lesson, for those inclined to learn.
As to the verdict in the case of Salim Hamdan, reportedly Osama bin Laden’s paid driver from 1997 to late 2001, the lessons may not be so obvious.
It seems to me there are several possible explanations for Hamdan, the first Guantanamo prisoner to be tried by the military commissions finally put in place after fits, starts, and rebuffs from the judicial branch, was sentenced to 66 months for the relatively minor count on which he was convicted – while being acquitted on the more serious charge – when the prosecution had sought a whopping 30-year sentence. And as is usually the case with human beings, the motives may be mixed and the explanations may overlap one another. (And I may have missed seeing the most obvious one.)
It is possible, of course, that the decision simply reflects a display of straightforward and honorable behavior on the part of the military officers involved. Hamdan was obviously not a key terrorist mastermind, but even by being a salaried driver in it only for the money, as he claimed, he had contributed to terrorist activities. Given that he had already served six years at Guantanamo, and the judge had announced that five of those years would be counted toward whatever sentence was handed down, keeping him locked up another six months seemed about right. It would convey to whoever cared to get the message that the senior military officers on that jury thought Hamdan was a small fry, and maybe a waste of the military judicial system’s time and resources.
I have posited in the past that a latent sense of honor still lurks in the psyches of some military officers, even in this time of the kind of quasi-warfare with hard-to-identify enemies that tends to make honor seem antiquated or irrelevant – and been criticized by people who suggest that by the nature of what they do they are all scoundrels. I would suggest, however, that few human beings can be painted in such black-and-white terms. Most of us have mixed or confused motives for what we do, especially when quick decisions are required; soldiers are trained to obey or follow their training without thinking too much. And it is also possible for a person who has done any number of suspect or dishonorable things to do the honorable thing on other occasions, especially if the situation includes some time for reflection.
So straight honor, it seems to me, is a possible hypothesis.
There may also have been a motive to try to save the still deeply flawed military commission system for dealing with suspected terrorists being held at the military prison at Guantanamo Bay. It shows that in the first test of the system, the result was a verdict that seems roughly fair, not as harsh as most neocons might have desired, yet not the summary dismissal the ACLU types might consider appropriate. If the military commission is seen as yet another flawed system in a world where all human systems have some flaws, but one able to produce fundamentally fair results, it might yet survive as the most practical way out of the ongoing embarrassment to the U.S. government represented by Guantanamo.
Measured against anything resembling an ideal institution of justice, or even against the flawed and inconsistent U.S. civilian justice system, the military commission system, created by 2006 legislation in the wake of Supreme Court decisions invalidating the previous system, comes up pretty short. It still allows hearsay evidence and secret documents the defense in some cases may not be able to see, let alone challenge. It seemed so rigged that Col. Morris Davis, formerly the chief prosecutor, quit last October because he "concluded that full, fair, and open trials were not possible under the current system."
However Navy Capt. Keith Allred, who served as judge, went beyond the formal rules to make the trial of Hamdan as fair as possible. And the jury of six senior military officers, in a split verdict, found Hamdan guilty of supporting terrorism, but not guilty of conspiring to commit terrorism. Given that Hamdan was a paid driver for Osama bin Laden from 1997 to 2001, that’s a reasonable conclusion. One could argue, as some have, that charging a paid lackey, even one who would have had to have some inkling of what bin Laden was up to, with "war crimes" is unjustified and maybe somewhat silly. However, it’s difficult to deny that by driving and protecting the leader he did support terrorism. At the same time, it seems unlikely that he conspired to commit terrorism.
That doesn’t seem hard to explain. It was the sentence the jury announced the next day that seemed most surprising and/or interesting. As noted above, the judge had earlier agreed to count five of the six years Hamdan has spent in Guantanamo against his sentence. He could be free to return to his wife and children in Yemen soon.
It is unclear, however, whether President Bush might continue to detain him on the basis of his designation as an "enemy combatant." His lawyers also say they will appeal the verdict to a federal appeals court. So almost seven years after 9/11, and the appropriate retaliation or recompense or punishment that Guantanamo and the military commission system were supposed to be about, there may be miles to go before we sleep.
It seems to me, however, that there’s another plausible hypothesis for the nature of the decision. It is just possible that the military – or at least those involved in this particular trial – were sending a signal to the civilians in the Bush administration, or at least those disappointed at the "leniency" of the sentence, that the military commission system wasn’t going to give them what they wanted. Keep sending us Guantanamo stumblebums and we’ll keep giving them patty-cake sentences. You can get those, and perhaps stiffer sentences, from civilian courts and juries that are more likely to be impressed by government witnesses mumbling the sacred words "national security" to explain why, even though the evidence they’re able to present seems thin, these are really bad dudes.
I’d just as soon they blew up the military commission system and put these cases directly into civilian courts rather than dignifying an organization, al-Qaeda, that may be on the decline anyway, as the Number One Threat to this oh-so-vulnerable republic. The metaphor of war was never a good one for meeting the challenge posed by non-state terrorist outfits, even if success might involve the occasional military-style foray.
How others will react, I don’t know. At stake, of course, are future trials of detainees accused of much more serious crimes, including Khalid Sheikh Mohammed, the alleged 9/11 mastermind. These will present the system with more difficult challenges, including the potentially inflammatory one of how much information acquired through "aggressive" interrogation or torture can be used in the trial. How much discretion will military judges in future trials have or care to exercise? And, of course, most of those future trials will be conducted under the auspices of a new administration, and neither Obama nor McCain is likely to be a carbon copy of the Bushies on this issue.
Have I missed anything? Or rather, how many obvious things have I missed?
