The recent conviction and sentence of Salim Hamdan for ‘supporting terrorism’ only serves to highlight the problems presented by Military Commissions. With the closure of the detention facilities at Guantanamo Bay after the US Elections now almost a certainty, their days are numbered.
By Lt. Cdr. Frank Ledwidge
Former Justice Advisor to the UK Provincial Reconstruction Team in Helmand
After five years of relentless litigation all the way up to the Supreme Court and back, the United States’ first war crimes proceeding in the controversial Military Commissions is over. The trial of Osama Bin Laden’s driver Salim Ahmed Hamdan stuttered to a close with a verdict and sentence that will see Hamdan released from legal custody late this year. Initially charged with conspiracy and providing support to terrorism in July 2004, Hamdan’s legal team successfully challenged the legality of Military Commissions before the US Supreme Court in June 2006 on the basis that the President did not have the authority to hold tribunals without the express authority of Congress. Congress responded with the Military Commissions Act giving Congressional backing to the system.
Despite its status as the first war crimes trial in the controversial new system, there was little of the flavour of Nuremburg, or even the Hague about Hamdan’s trial. From the start to its anticlimactic conclusion the feisty defence alleged the whole process was tainted with procedural irregularity; evidence allegedly gained through coercion was allowed, secret hearings and procedural irregularities took place, they say, which would have aborted it in any civilian court. Bush administration assertions that the acquittal on the more serious charge of conspiracy and lenient sentence demonstrated the essential fairness of Military Commissions ring hollow. Results have little bearing on the fairness of the process as any trial lawyer would confirm. Acquittals are possible in even the most corrupt proceedings.
For Hamdan himself the verdict and sentence will not be the end of the matter, despite the Naval Judge’s expressed wish that the 38 year old Yemeni return soon to his family. The Bush administration maintains that the war crimes trials before the Military Commissions have no bearing on whether the detainees are held as ‘unlawful enemy combatants’ and therefore subject to imprisonment until the cessation of hostilities. The dilemma as to what to do with Hamdan and indeed any others convicted by the Commissions will not be addressed this side of the Presidential election
Opponents are sensing that the tide is turning against Military Commissions. They argue strongly that the right place for terrorists to be tried is Federal Court, with the attendant safeguards and vital unquestioned legitimacy. The case of John Walker Lindh, a US citizen shows a way forward. Lindh, essentially a misguided American Muslim convert who found himself, to put it mildly in the wrong place – (Mazar-i- Sharif, with the Taliban), at very much the wrong time (October 2001), received a thumping twenty year sentence in Federal Court. He will serve every hour of that sentence.
Provided convictions can be secured, those accused of terrorist offences can expect little mercy in the regular courts. And there is the rub. With most of the high value detainees credibly alleging torture there are doubts as to whether they will ever be able to be tried at all. The fatal taint of torture clings to them and notwithstanding the decisions to admit some fairly dubiously obtained evidence in the Hamdan case, no Federal Judge would accept statements or confessions taken under the kind of duress alleged, whether or not it is labelled torture. If there is other relevant evidence, it would of course be admissible, as it was against Lindh. Cynical observers maintain that this is precisely to ensure convictions rather than see justice done, for which the military commissions were instituted.
Back in those Military Commissions, Canadian citizen Omar Khadr is next on the trial docket, charged with various conspiracies, murder, and aiding the enemy. This is unlikely to improve the perception of the Commissions. Khadr was 15 when arrested in Afghanistan for throwing a grenade at US soldiers. He was therefore a juvenile. He was held without access to lawyers for nearly three years and detained alongside adults in contravention to all accepted international standards. Like most other detainees at Guantanamo he was allegedly subjected to abusive interrogation.
So what now for the Commissions and those accused before them? There can be little question that whoever wins in November, Guantanamo will close. Both Presidential candidates have said as much. Attention is then likely to focus away from interrogation and detention and hone in even more closely to the form of proceedings. Military Commissions have some eloquent advocates, even outside the administration. However, powerful forces in the legal community – in close alliance with the strong civil rights movement – assert that the Military Commissions are nothing less than an assault on the US Constitution. The American Bar Association, one of the world’s most politically powerful NGOs, calls the system ‘inherently flawed’. Against such a consistent and sustained legal and political assault, Military Commissions surely have a very poor long-term prognosis.
The views expressed above are the author's own, and do not necessarily reflect those of RUSI.