Thursday, August 7, 2008

'Justice' in the Hamdan case

Whatever the justice of the verdict in the case against Osama bin Laden driver Salim Ahmed Hamdan -- and the split decision seems at least defensible -- the process by which that verdict was reached was fundamentally flawed. It's impossible to place much faith in the result of a legal proceeding which stacked the deck in favor of the prosecution, violated fundamental American rules of due process, and in which the outcome was essentially preordained.

One problem is that the sentence came first, with the trial to follow. Early on, the Bush administration labeled Hamdan an "enemy combatant" and ordered him held indefinitely.

So even a total acquittal would have been nothing more than a conversational topic for Hamdan to toss around during the course of an arbitrary sentence that could extend for the duration of his life.

There's also the problem of an impartial proceeding -- the lack thereof, that is. As the ACLU pointed out in its brief (PDF) challenging the military commission that presided in Hamdan's case, "the very same entity that chooses the judge and jury possesses, as the charging prosecutor, a vested interest in the result."

Military commission rules also allow the use of information extracted by coercive means. As the ACLU says, "the commissions have been set up to allow the same people who extract information from detainees through torture to use this evidence to adjudicate the guilt or innocence of the defendant."

That's not just an abstract objection to raise in Hamdan's case. The Los Angeles Times points out:

Hamdan's defense was encumbered by "protective orders" that prohibited even the mention of the CIA or its handling of Hamdan during a month in late 2001 when the defendant disappeared into "a black hole" in Afghanistan, said the tribunal's deputy defense chief, Michael J. Berrigan. He called the two-week trial an "obscenity."

What happened during that missing month? I guess we'll have to use our imaginations.

The U.S. Supreme Court nominally ruled against the military commissions in 2006, finding that they lacked congressional authorization. Congress quickly gave the president the authority to get the process back underway, little changed.

It's not just touchy-feely civil libertarians and defense attorneys who have problems with the proceedings. Col. Morris D. Davis, the former chief prosecutor at Guantánamo Bay, and a man who has described sympathy for detainees as "nauseating," resigned his post in protest of political interference with the legal process. He testified for the defense in the Hamdan case.

The loaded commission apparently remained unmoved by Davis's testimony as to its flaws.

The "trial" went forward. And we'll likely see more such proceedings in the years to come.



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