by Andy Worthington
As the Olympics and the war in Georgia
threaten to sweep all before them, the significance
of the lenient sentence handed down by a military jury to Guantánamo
prisoner Salim Hamdan in the first full US war crimes trial since the
Nuremberg Trials – and the government’s response to it – is in
danger of being overlooked.
There was, of course, a flurry of activity
on Wednesday and Thursday when the military jury, in the system specifically
designed by the White House to try “enemy combatants” in the “War
on Terror,” first dismissed the charges of conspiracy against Hamdan,
and then proceeded to hand down a sentence of just five and a half years
for material support for terrorism. This leaves Hamdan with just five
months to serve, taking into account the time he has already served
since he was first charged in July 2003 under the first, failed version
of the Military Commission system, which was ruled illegal by the US
Supreme Court in June 2006.
Throughout the media, there was a widespread
understanding that the government had overstated the case against Hamdan
– in Newsweek, for example, Michael Hirsh asked incredulously,
“Is driving a car a war crime?” – and that, despite the verdict,
there remain fundamental flaws
with a system that allows the use of coerced evidence and hearsay.
However, my major concern, as a journalist
and author (of The Guantánamo Files),
who has been studying these issues in detail for several years, was
that the media would overlook the administration’s shocking response
to the verdict: its assertion that it has the right to continue to hold
Hamdan as an “enemy combatant” after his sentence has been served.
This is an assertion which, if allowed
to proceed unchallenged, will demonstrate that the Commissions are nothing
more than a sideshow, and that what propels the administration beyond
all other concerns is its pursuit of dictatorial powers, defending its
self-appointed right to seize anyone anywhere as an “enemy combatant,”
and to imprison them indefinitely.
On this key issue, I’m pleased to note
that the US media has seen fit to challenge the administration. Of particular
relevance is the opinion of the Wall Street Journal,
which, while mounting a stout defense of the Commission process, stated
in an editorial, “Hamdan could be held indefinitely as an enemy combatant,
but the political explosion that option would touch off makes it all
but untenable.”
While the WSJ made sure that it couched
its opinions in terms of what others” response would be to holding
Hamdan after his sentence ends, rather then the fundamental injustice
of doing so, others were prepared to probe the issue more deeply. In
the Washington Post,
Josh White sought the Pentagon’s response, noting that the Department
of Defense was aware of problems relating to the proposal to continue
to hold Hamdan after his sentence runs out. “Defense Department officials
said there are concerns about the public perception of holding Hamdan
after his prison term runs out,” White wrote, “because it could
label the military commissions a “show process” with no meaning
to its sentences.”
White also spotted a note of caution
in a statement by Pentagon spokesman Bryan Whitman, who “said it has
always been the Defense Department’s position that detainees could
be held as enemy combatants even after acquittal at military commissions
or after serving a prison sentence.” “That’s always been
on our minds in terms of a scenario we could face,” Whitman said (emphasis
added), although he then proceeded to reiterate the administration’s
standard line: that Hamdan “will serve his time for the conviction
and then he will still be an enemy combatant, and as an enemy combatant
the process for potential transfer or release will apply.”
For balance, White spoke to Nancy Hollander,
attorney for the “high-value detainee” Abdul Rahim al-Nashiri
(accused of planning the attack on the USS Cole in 2000), who told him
that “it would be “totally unfair” for the government to hold
Hamdan indefinitely.” “We had a court. We had a jury. It was a military
jury. They heard the evidence. They gave him five months,” Hollander
explained. “That ought to be his sentence. Either we believe in American
justice or we don’t.”
In an editorial,
the Post’s editors criticized the Commissions and called for the system
to be brought to an end, and also laid out their own opinion about Hamdan’s
continued detention. “The president may yet try to extend Mr. Hamdan’s
detention,” the editorial stated, adding, “The Supreme Court has
determined that the executive may hold without charge those, such as
Mr. Hamdan, designated as enemy combatants.” While refusing to question
this legislation, stating, “We support the executive’s prerogative
to do so,” the editors proceeded to insist that “it would be unnecessary
and unwise to exercise that power in Mr. Hamdan’s case. To hold a
man who has been judged to be of minimal risk to the country would make
a mockery of the legal proceedings just completed.”
In the New York Times,
William Glaberson also reflected on the Pentagon’s response, noting
that spokesman Cmdr. Jeffrey D. Gordon “pointedly declined to make
any promises” after the sentence was announced. Glaberson explained
that Cmdr. Gordon “said he “would not want to speculate” about
whether Mr. Hamdan would be released at the end of his sentence,”
but added, “I can reassure you that the Defense Department is hard
at work on this issue.”
On Sunday, a New York Times
editorial only touched on the administration’s proposals to continue
to hold Hamdan, but made it clear that the newspaper would continue
to monitor the government’s proposals. “[I]n the twisted world of
Mr. Bush’s prison camps,” the editorial stated, “it is unclear
if Mr. Hamdan will be released after serving his sentence.”
The rest of the editorial was a considered
hatchet job on the whole of the Commission process. Noting that Hamdan
was “hardly a high value target,” the editors cited the comedian
Stephen Colbert, noting that he “captured the absurdity of the proceedings
perfectly on Thursday night when he called the trial “the most historic
session of traffic court ever.” It will not be long, Mr. Colbert added,
“before we track down Ayman al-Zawahiri’s dermatologist.””
The editorial concluded, “Mr. Bush’s
hapless, and often unconstitutional, approach to combating terrorism
will leave his successor a great deal of work to do. The rule of law,
including fair and open trials, must be restored. Guantánamo needs
to be shut down, as Mr. McCain has said many times. Detainees must be
put on trial quickly in real courts, and those who are not guilty must
be freed. Mr. Bush’s supporters have been crowing over the Hamdan
verdict as if it were some kind of a triumph. In truth, it is a hollow
victory in the war on terror, a blow to America’s standards of justice
and image in the world.”
Elsewhere, explicit criticism of the
proposals to continue to hold Hamdan peppered editorials across the
United States. The Kansas City Star,
for example, stated, unreservedly, “It has been suggested that this
trial at least demonstrates that the commission system is fair. Unfortunately,
though, the White House has left open the possibility that it will keep
Hamdan in prison indefinitely even after he has completed his prison
sentence. This sounds like some scenario out of a third-world dictatorship.
It threatens to make a mockery out of the trial and those expected to
follow. Once the government has submitted a case to a judicial process
created by the Bush administration itself, the president should at least
agree to abide by the results.”
The Salt Lake Tribune
was similarly critical. After noting that the jury had “imposed a
surprisingly lenient sentence” on Hamdan, because he was nothing more
than a “bit player” in al-Qaeda, the editorial stated, “It follows
that the government should release him after he completes his sentence
by year’s end. To do otherwise, to continue to hold him as an enemy
combatant for the duration of the so-called “war on terror,” as
the Bush administration has insisted it can, would be absurd. If the
result of his trial and its sentence do not affect the term of his confinement,
what was the point?”
Noting that “the rules in this game
are not the same as in the civilian courts,” that they are “stacked
in the government’s favor, and constitutional rights do not apply,”
the Tribune concluded, “Nevertheless, the jury of officers weighed
that evidence carefully and rejected the pleas of the government that
Hamdan be convicted as a terrorist conspirator and sentenced to life
in prison. These are military officers who must understand better than
most that a terrorist released from custody could return to fighting
the United States and killing Americans. By their verdicts and sentence
they signalled that they believed the defense argument that Hamdan is
a small fish, not a terrorist shark, who just wants to go back to his
family in Yemen. The Bush administration should respect those officers”
judgment.”
While close scrutiny of the administration
remains of paramount importance within the United States, it was also
noticeable that the Times
in London (which is not a bastion of liberalism) devoted a pointed editorial
to the Pentagon’s proposals to hold Hamdan indefinitely. Having discussed
the “legal doubts” over the Commissions” fairness, the Times responded
to Pentagon claims that Hamdan “could be held indefinitely as an “unlawful
enemy combatant” after finishing his sentence,” by stating, “This
remark is as outrageous as it is unprincipled. As a US navy lawyer [Charles
Swift] who first represented Hamdan said: “If he simply goes back
to the same cell, why did we all come down here?” The Pentagon stance
appears motivated by defiance and anger at the verdict. As even the
most hardline Administration officials must recognize, Guantánamo has
inflicted huge damage on America’s reputation around the world, undermining
the faith of its friends in US justice and giving America’s critics
a propaganda gift. If the Pentagon now believes that it can override
the verdict of the very courts it has set up, it mocks any pretence
of a fair trial.”
Tempting though it is to move on to other
topics, I can only hope that the media continues to question whether
the administration actually believes in its own trial system at Guantánamo,
or if it is, instead, committed solely to unfettered executive power.
And US citizens should be just as vigilant, insisting that the next
President of the United States relinquishes the dictatorial powers created
by the current administration. It really is that important.
Andy Worthington is the author of The Guantanamo Files: The
Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press/the University
of Michigan Press). His web site is http://www.andyworthington.co.