(Updated) Torture Trial Ends: Reflections on the Hamdan Verdict

Osama bin Laden's personal driver and bodyguard, who made the magisterial sum of $200 per month, 34-year-old Salim Ahmed Hamdan, who was held years without charges at Guantanamo Naval Base prison, has just been found guilty of lesser charges in the first of a series of planned "military commission" trials by the Bush Administration. Comprehensive news coverage of the Hamdan trial can be found at the Miami Herald.

Hamdan was found not guilty on two counts of conspiracy to foment terrorism in league with Al Qaeda. He was found guilty on five of eight charges of providing material support to terrorists. He has yet to be sentenced, and faces possible life imprisonment. In any case, the Bush Administration has already said that whatever the verdict or sentence, no "enemy combatant" will be released until the "war on terror" is over, i.e., until hell freezes over.

Hamdan's prosecution has been a key judicial and political football, ever since attorneys for Mr. Hamdan pressed his rights to challenge his detention in the courts. The struggle for his habeas rights went up to the Supreme Court, where the court, in Hamdan v. Rumsfeld, upheld the rights of prisoners facing Bush's jerry-rigged military commissions. The ruling meant Bush and the Pentagon had to go back to the drawing board to redo the commissions concept, which in the end meant years more of imprisonment for the detainees and a revamped military commission policy that didn't look all that different from the old one.

While the months and years unfolded, military prosecutors quit, and other military lawyers protested, culminating in the resignation last October of Colonel Morris Davis, the former prosecutor for the commissions, citing political bias and interference in the trials, and castigating the process for allowing the introduction of "evidence" produced by torture.

[Additional note: A commenter on the posting of this story over at Daily Kos notes that that "hearsay evidence is also admissible in these kangaroo courts, as well as coerced testimony and secret evidence." H/T Smintheus]

Torture and the Hamdan Trial

Hamdan is reported to have been subjected during the course of his incarceration to beatings, sleep deprivation, isolation, and sexual humiliation. The impact of this upon the substance of the "trial" -- the first such military commission trial since World War II -- became clear when Army psychologist Colonel L. Morgan Banks III was called to testify in secret session.

If the name seems familiar to my readers, it's because L. Morgan Banks was a member of the American Psychological Association's 2006 PENS task force on psychological ethics and national security. Banks was also Chief Psychologist of the Army's Survival, Evasion, Resistance, Escape (SERE) program, coming to Guantanamo to teach interrogation techniques in early 2003. We now know what kinds of techniques were being taught, e.g. "degradation tactics," "physical debilitation tactics," sensory deprivation, and demonstrating to the prisoner "complete control over victim's fate."

Demonstrating omnipotence and total control, by the way, is why the military, CIA and Bush are so insistent in denying detainee rights, especially habeas corpus. As Jane Mayer reports in her new book, The Dark Side, administration stalwarts Dick Cheney and David Addington were incensed by 2004 Supreme Court rulings granting "enemy combatants" due process rights, such as having an attorney, or challenging their detention in court, convinced by "CIA arguments that any outside contact might jeopardize the psychological control necessary to interrogate terror suspects" (p. 302, emphasis added).

We can only guess at what Banks testimony was. One assumes it had to do with the coercive interrogation and abusive conditions of detention suffered by Mr. Hamdan. The blanked out pages of Banks' testimony are a stark testimony to the failure of justice, and the contemporary practice of the U.S. government to allow testimony induced by torture, a practice that sets back American jurisprudence more than 300 years.

Responding to the Verdict

From today's Miami Herald story, as covered by Carol Rosenberg:

Salim Hamdan, 37, stood and listened with head bowed to an Arabic translation as he became the first man convicted at trial in the first U.S. war crimes tribunal since World War II.

He said nothing but wiped his eyes with his head scarf [An AP story says Hamdan openly wept at the verdict.]....

In finding Hamdan not guilty of two counts of conspiracy, the jury did not entirely accept the Pentagon's theory that the father of two with a fourth-grade education was a key cog responsible for al Qaeda mayhem culminating with the 9/11 terror attacks....

Defense lawyers derided the war court, called a military commission, as relying on federal agents' interrogations conducted from Afghanistan to Guantánamo without notifying Hamdan that he might be prosecuted and without benefit of a lawyer even in his second year here.

"In no other court in this country would the evidence be admissible," said retired Navy Lt. Cmdr. Charlie Swift, who called the trial "by no means transparent."

The Center for Constitutional Rights released a statement by Shayana Kadidal, Senior Managing Attorney at CCR, upon the release of the verdict:

Hamdan’s trial violated two of the most fundamental criminal justice principles accepted by all developed nations: the prohibition on the use of coerced evidence and the prohibition on retroactive criminal laws.

The trial will not create finality – the decision to keep these cases out of the ordinary criminal courts will produce years of appeals over novel legal issues raised by the untested military commissions system. Even after those appeals are finished, the process will never be seen as legitimate by the world. This case was the first trial run of the commissions system, and the decision proves nothing except that the system itself should be scrapped. Terrorism-related crimes should be tried in the time-tested domestic criminal justice system, a system whose rules have been designed over the centuries with one goal: to seek out the truth.”

ACLU Executive Director Anthony Romero has declared the verdict a travesty:

Any verdict resulting from such a flawed system is a betrayal of American values. The rules for the Guantánamo military commissions are so flawed that justice could never be served. From start to finish, this has been a monumental debacle of American justice. The judgment against Hamdan undoubtedly will be challenged in legitimate courts, but there is no appeal from the judgment of future generations. This system was devised to permit the prosecution of alleged wrongdoing by detainees, while continuing to cover up the wrongdoing by government interrogators. Trials that are shrouded in secrecy and tainted by coercion are the very antithesis of American justice.

The Bush White House, of course, sees things differently:

"We're pleased that Salim Hamdan received a fair trial," Deputy spokesman Tony Fratto said in a statement....

"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," Fratto said. "We look forward to other cases moving forward to trial."

Reaction and the "War on Terror"

Typical reactions I have heard to the Hamdan case, as to the situation of the Guantanamo and other "enemy combatant" prisoners in general, include icy statements decrying pity, reminding us of the thousands killed on 9/11, or the U.S. soldiers killed in Iraq and Afghanistan. Others are less engorged with vengeance. Some feel more secure: a message has been sent to the "terrorists," where "terrorist" is a label for something vaguely evil they can't understand, a murky group of persecutors that simply want to destroy "our" way of life.

The vast majority, I think, simply care not to look as the very principles upon which our society is built are trampled into the ground by lordly politicians who play upon fear, and feed their own pockets with the profits of war. Perhaps it is too painful to observe such injustice, yet feel so impotent, so small against the great power of the state. But behind these societal principles are real people, many of them innocent of any charge. (Even as early as 2002, a secret CIA report concluded that as many of 1/3 of the detainees at Guantanamo were innocent.)

There's a myriad of other reactions: We must not get off topic. We have to elect Democrats. There's nothing I can do.

The spirit of the nation has already been shattered. More kangaroo military commissions trials are planned. And the government is only whetting its appetite for anti-democratic rule, outside the limits of justice and due process, honing its machinery of tyranny.

Make no mistake about it: the Hamdan verdict was a victory for the Bush Administration, and for those who would terminate whatever vestiges of moral and just government remain. I know that there are those who would oppose such a demolition of democratic society, many of them within the halls of government, perhaps even within the Pentagon and CIA itself. They will fight. But will they win?

Without public opinion strongly activated against them, the militarists and torturers will win. It's become a cliche, but Martin Niemöller's invocation against inaction in the face of tyranny has also become an omen, a warning with resonant overtones:

First they came for the Jews
and I did not speak out
because I was not a Jew.
Then they came for the Communists
and I did not speak out
because I was not a Communist.
Then they came for the trade unionists
and I did not speak out
because I was not a trade unionist.
Then they came for me
and there was no one left
to speak out for me.

UPDATE (3:25pm, PDT):

The following is a statement by Democratic presidential candidate Barack Obama on the Military Commission ’s guilty verdict in the Salim Hamdan case.

“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 Usama bin Laden and the terrorists who murdered nearly 3000 Americans.”

The critique is mushy and oblique. It covers the fact that this tribunal verdict was completely tainted by the "dangerous flaws", and cannot be taken seriously. To serve on such a kangaroo court is not to "serve this country with valor", as the resignation of the Gitmo chief prosecutor last year made clear.

Meanwhile, here's McCain's slavish ode to Bush (in)justice:

The following is a statement by Republican presidential candidate John McCain on the Military Commission’s verdict:

“I welcome today’s guilty verdict in the first trial held under the Military Commissions Act (MCA). This process of bringing terrorists to justice has been too long delayed, but I’m encouraged that it is finally moving forward. I supported that legislation, which was a good-faith effort by Congress to meet the Supreme Court’s direction to establish a process to bring terrorist detainees to trial. Salim Ahmed Hamdan, a trusted confidante of Usama Bin Laden, was provided a full hearing of the charges against him and was represented by counsel who vigorously defended him. The jury found that the prosecution lawyers had proven, beyond a reasonable doubt, that Hamdan had aided terrorists by supplying weapons to Al Qaeda and Taliban forces in Afghanistan. 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.”

For all his puppet-like support to an inhumane and unjust process, McCain makes the point that Congress (with support of Democrats, btw, though McCain doesn't mention this) helped bring about this unconstitutional parody of jurisprudence.

Link

UPDATE II (9:25pm, PDT):

Scott Horton opines over at Newsweek:

"I would be very surprised if any of this conviction stands at the end of the day," says Scott Horton, a law professor specializing in human rights at Columbia University. "He was convicted of things that are not war crimes by a tribunal that has the power only to prosecute war crimes."

Marty Lederman makes similar but more nuanced point in a lengthy article, What Are the "War Crimes" For Which Hamdan Was Convicted?

UPDATE III (Sunday, 8/10, 12:15pm, PDT):

In a postscript to the Hamdan decision, the military jury, in what some in the mainstream press are calling a rebuke to the administration, sentenced Hamdan to 5-1/2 years. Since the ex-Al Qaeda driver has been in prison for over five years anyway, the effective sentence is only five months. The U.S. prosecutors had been asking the court to put Hamdan away for 30 years.

Some find in this relatively lighter sentence a repudiation by some in the military of Bush's military tribunal system. I tend to agree with an opinion piece yesterday in the New York Times, where William Glaberson wrote:

The verdict and the five-and-a-half-year sentence may not have been as severe as the government had hoped for, but it was a green light for a tribunal that the Pentagon plans to use to prosecute as many as 80 detainees, including five men charged as the plotters and coordinators of the Sept. 11 attack.

And that green light will stay on as long as the public impression is that the question of fairness in these star chamber "trials" -- with their secret testimony, their reliance on coerced testimony, their bogus insistence on "war crimes" that are not recognized by such by any other judicial institution, especially the use of "retroactive" laws -- is still a matter of sincere public debate. And that's precisely what the Times editorialist does, as Glaberson continues:

Nonetheless, the central question about the war crimes system remains unanswered after its first trial: Is it fair enough and open enough to meet Americans’ concept of justice?

The Hamdan verdict was not just, as the man should have never been held for years the way he was, subjected to torture, and tried for retrospectively implemented "laws". His sentence is as much a travesty as the tribunal itself. We will never know how Hamdan may have been judged and/or sentenced in a normal criminal court. Now, the Pentagon and the Bush Administration ponders what to do five months down the line with an "enemy combatant" who has served his term, even by Bush justice. Meanwhile, the wheels of judicial progress runs backward, as does the train of time itself, as the achievements of enlightenment democracy, justice, and penology unravel in the ambition to achieve American preeminence all over the world.