Catching up on Hamdan

Catching up on Hamdan

The sole virtue of being the last among bloggers to weigh in on yesterday’s Hamdan verdict is having a chance to read what everyone else is saying. The New York Times, the ACLU, Human Rights First and others are pretty scathing in their criticism: don’t be fooled by the patina of fairness evinced by the split verdict, this system is irretrievably broken.

The White House’s rhetoric was comparatively reserved, saying in a statement the Times quotes: “The military commission system is a fair and appropriate legal process for prosecuting detainees alleged to have committed crimes against the United States or our interests. We look forward to other cases moving forward to trial.”

The campaigns largely talked past each other on how trials for detainees like Hamdan should be handled. After proclaiming the verdict as evidence of the system’s success after Congress fixed it by passing the MCA in 2006, McCain’s statement says:

This process demonstrated that military commissions can effectively bring very dangerous terrorists to justice. The fact that the jury did not find Hamdan guilty of all of the charges brought against him demonstrates that the jury weighed the evidence carefully. Unlike Senator Obama who voted against the MCA and favors giving Al Qaeda terrorists direct access to U.S. civilian courts to contest their detention, I recognize that we cannot treat dangerous terrorists captured on the battlefield as we would common criminals.

Of course, that’s not quite Obama’s position. That campaign issued this statement:

I commend the military officers who presided over this trial and served on the hearing panel under difficult and unprecedented circumstances. They and all our Armed Forces continue to serve this country with valor in the fight against terrorism. That the Hamdan trial – the first military commission trial with a guilty verdict since 9/11 – took several years of legal challenges to secure a conviction for material support for terrorism underscores the dangerous flaws in the Administration’s legal framework. It’s time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice. And while it is important to convict anyone who provides material support for terrorism, it is long past time to capture or kill Osama bin Laden and the terrorists who murdered nearly 3000 Americans.

And everyone recognizes there are appeals to come, as well there should be. But while there are obviously some important legal questions to be resolved here (on that I hope later better than never), I confess I’m not sanguine about the likelihood of Hamdan prevailing, as much for reasons of atmospherics as law. In many respects, this trial gave the impression of normalcy. The ‘judge’ evaluated a host of pretrial motions, ruling in Hamdan’s favor on some, in the government’s favor on others. The ‘jury’ deliberated at length and thoughtfully, acquitting Hamdan of the broadest (and least plausible) allegations that would have led him to taking direct blame for terrorist attacks of which he was (at most) distantly aware. There are enormous questions of the legitimacy of some of the factual evidence the commission considered, but at base, my understanding is that the central conduct for which he was convicted – driving Osama bin Laden – is not actually much (or at all) in dispute.

Will a federal court look past these facial features to probe the real legal questions here? Only a delinquent court would fail to do so. But judges are not immune to atmospherics like this. And many have a habit to decide only what needs to be decided in the individual case. It’s the perception challenge that will be among Hamdan’s greatest on appeal. I’d welcome being proven wrong.

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Foreign Relations Law, International Human Rights Law
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Michael Slater
Michael Slater

Response…What I, as a layman, find most interesting is that a handful of JAG officers (ably assisted no doubt by their civilian colleagues) have done a far better job of defending the Constitution than the Courts, the Congress or the media.  A lot of people in positions of trust should be hanging their heads in shame.