06 August 2008

Kangaroo Court Finds Hamdan Guilty Of Something

The military commission trying Salim Ahmed Hamdan, the driver for Osama bin Laden, issued a split verdict on the charges against him. According to the New York Times “the commission acquitted Mr. Hamdan of a consiracy charge, arguably the more serious of two charges he faced, but convicted him of a separate charge of providing material support for terrorism.” One suspects that this means that the commission felt that he helped a terrorist (Osama bin Laden), whom by his own admission he provided services for, but didn't plot any terrorist attacks, although full details of the ten sub-issues decided within the split verdict are not yet available.

The charges carry a maximum sentence of life in prison, but this makes little practical difference to Hamdan until the "war on terrorism" is over, because Hamdan is being detained indefinitely as an "unlawful enemy combatant" anyway. Depending upon the sub-issues resolved by the commission, fairly modest sentence isn't out of the question. Short of a reversal of that "unlawful enemy combatant" finding, he is detained either way, probably at Guantanamo Bay until futher notice, perhaps in different cell block until he completes his sentence, after which he might be returned to his old cell block.

Sentencing hearings are expected in the near future, probably to be completed this week.

It isn't clear how U.S. authorities address the issue which is so easy in civilian criminal proceedings of "time served" which normally reduces a criminal sentence day for day. In the Jose Padilla's criminal proceeding, which is the only applicable precedent, Padilla was not given credit for time served as an unlawful enemy combatant (although he was given credit for time served in civilian custody was transferred to the criminal process), but did have his prior enemy combatant detention considered under the sentencing guidelines as a relevant factor to reduce his sentence.

Unlike Padilla's case, however, Hamdan will have been in military custody both before and after this conviction.


The sentence entered, prospectively, for Hamdan, is five more months. After that, he will just be one more indefinitely detained unlawful enemy combatant again. Clearly, the military commission of six officers was not impressed that Hamdan was anything more than a bit player.

It doesn't appear that there is any way that the sentence can be increased on appeal in the current process.

Salim Hamdan's sentence of 5 1/2 years, including five years and a month already served at Guantanamo Bay, fell far short of the 30 years to life that prosecutors wanted. It now goes for mandatory review to a Pentagon official who can shorten the sentence but not extend it.

It remains unclear what will happen to Hamdan once his sentence is served, since the U.S. military has said it won't release anyone who still represents a threat. The judge, Navy Capt. Keith Allred, said Hamdan would likely be eligible for the same administrative review process as other prisoners.

Hamdan thanked the jurors for the sentence and repeated his apology for having served bin Laden. . . . the commander of the detention center, Navy Rear Adm. David Thomas, said last week that convicted prisoners will be held apart from the general detainee population at the isolated U.S. military base in southeast Cuba.

One important question is whether the expiration of Hamdan's sentence will render any appeals moot before the case receives meaningful review on the merits. Many of the cases that have served as precedents for the military commission debate resulted in executions. There is no case law, of which I am aware, on the collateral effects of a military commission sentences whose term has been fully served.

Normally, quasi-criminal findings in civil cases arising from the same acts as a criminal conviction, such as a parental rights termination case or a suit for civil damages or a license revocation hearing, don't count as a felony conviction (bankruptcy discharge of indebtedness rules, however, sometimes use broader definitions). But, one would assume that Hamdan would be a deportable alien (notwithstanding the fact that he came to U.S. controlled territory involuntarily).


Appeals are certain to follow. As SCOTUS Blog explains:

Under the MCA, a verdict and sentence are first reviewed by a Pentagon official known as the “Convening Authority.” That official has the “sole discretion and prerogative” to modify the verdict and the sentence imposed, but may not increase the sentence.

Beyond that official, there is a right to an automatic appeal if the commission and the Convening Authority have agreed on a guilty verdict. The appeal goes to a special military court, the U.S. Court of Military Commission Review. Only after those two steps have been followed may a case then go to a civilian court — initially, the D.C. Circuit Court.

From there, a case may go to the Supreme Court on certiorari, with the Justices having the authority to grant or deny review.

The issues on appeal will be somewhat narrower than those in prior facial attacks on the system. The presiding military judge of the commission excluded a great deal of the evidence against Hamdan on the grounds that was unreliable because it was coerced, which forecloses important challenges to the conviction.

Perhaps the most important question is whether "material support for terrorism" is a law that may be constitutionally applied to Hamdan. Merely aiding the enemy as a camp follower or civilian support person has not historically been considered a war crime in violation of the law of war, even when the civilian knows that the people he is aiding are engaged in war, or for that matter, war crimes. Material support for terrorism is a crime under federal law in the United States, but is available before the Military Commission arguably only because the Military Commissions Act authorized prosecutions for that charge after Hamdan was in custody in Guantanamo Bay. Hamdan has argued that any new crime military commissions are authorized to prosecute under the Military Commissions Act are ex post facto laws as applied to him.

Also, consider that most of the time that Hamdan was serving as chauffer in Afghanistan, that Osama bin Laden and his organization were legally recognized partners of the then legitimate government of most of Afghanistan, the Taliban. This prosecution is somewhat akin to prosecuting someone for being the driver for the Prime Minster of Vichy France, particularly now that the Military Commission has cleared Hamdan of conspiracy to actually commit any terrorist acts. Hamdan has been found to be, as he has claimed to be from the start, a small fry, not particularly culpable individual, in an organization that attacked the United States.

The Convening Authority is likely to affirm this verdict, and the U.S. Court of Military Commission Review may be reluctant to find the law bringing it into existence to be unconstitutional. But, the D.C. Circuit and the U.S. Supreme Court will likely be more bold in considering the ex post facto argument.

Behind the technicalities of the ex post facto argument, lies the larger policy issue behind the Military Commissions Act's expansion of the scope of matters which may be prosecuted as war crimes before a Military Commission itself. Is there any point in making a distinction between someone being an "unlawful enemy combatant" subject to military detention indefinitely, perhaps for the duration of the "war on terror" and at least for the duration of U.S. involvement in warlike hostilities in Afghanistan, and "material support for terrorism"?

After all, current U.S. policy already distinguishes between Taliban soldiers, who are prisoners of war subject to the Geneva Conventions, and al-Queda operatives, who are considered "unlawful enemy combatants." It isn't obvious to me that it is possible to be an "unlawful enemy combatant" (a determination which must be made on a preliminary basis for the Military Commission to have any jurisdiction over the case at all) without provided "material support for terrorism."

The current Bush Administration's Department of Justice has argued that the civilian crime of material support for terrorism includes even the marginal case of the Swiss grandmother sending a check to an organization she believes to be a charity that is really a front for a terrorist group. For my druthers, being an unlawful combatant of any kind seems to involve action (combat or preparation for combat) much more serious than mere material support of an organization that happens to be a terrorist organization, even if that support is intentional. Hamdan's strongest substantive (as opposed to procedural) issue before the U.S. Court of Military Commission Review that precedes D.C. Circuit review, is that a conviction for the mere material support for terrorism charge, standing alone, does not suffice to establish that he was actually a combatant. And, if one is not a combatant, than surely, one is not an unlawful enemy combatant. And, if one is not an unlawful enemy combatant, then the entire Military Commission apparatus lacks the jurisdiction to try him for war crimes.

This brings out some of the contradiction inherent in the notion of an "unlawful enemy combatant."

Historically, an "enemy combatant" was a soldier employed by a country whom you had declared war upon and hence your enemy. Soldiers who followed the laws of war were "lawful enemy combatants" entitled to prisoner of war protections under the Geneva Conventions who received "combat privilege" for their acts, which would otherwise be crimes, taken on the basis of lawful orders from their military superiors. A POW discovered to have committed war crimes is an enemy combatant who may then prosecuted by a military tribunal for war crimes, which are unlawful.

People who weren't soldiers, were civilians. They were subject to criminal liability for committing civilian crimes, even if those wouldn't be war crimes if committed by a soldier acting pursuant to lawful orders. A military court might adjudicate crimes by committed by civilians in places where there was no functioning civilian justice system, such as occupied territory, in furtherance of general civil order. But, being a civilian criminal is not a basis for indefinite military detention.

Apparent civilians caught in the act of using force against or spying upon military forces were often summarily executed even if they surrendered. This is legal under military law because they don't have combat privilege, so they are unlawful combatants, who may also happen to be enemies because they are citizens of a state with which we are at war.

It isn't obvious, however, that historical military law contemplates a class of persons classified as "unlawful enemy combatants" separate and apart from acts taken by mere civilians who commit civilian crimes without the benefit of combat privilege, who are subject to indefinite detention in a manner akin to prisoners of war, as the Bush Administration has argued and used as a basis for its current regime. The good judgment of the lawyers who came up with this theory has to be questioned, but these are the same people who say that waterboarding people isn't torture.

While the U.S. Supreme Court has authorized indefinite military detention of enemy combatants based upon prisoner of war precedents, it isn't clear from the language of those rulings that the U.S. Supreme Court has made the distinction between "unlawful enemy combatants" and "prisoners of war" that the administration holds as a central element of its anti-terrorism regime, or that the U.S. Supreme Court has agreed that the duration of the "war on terrorism" as opposed to the "war in Afghanistan" has been accepted by the U.S. Supreme Court as the relevant time period for such an indefinite detention.

Hamdan's case, where he is being tried for an offense little different and perhaps less serious than the status that military officials have ascribed to him, is a good one for clarifying these points.

No comments: