Seven Years For This

One of the most absurd trials in American history ended today when Salim Hamdan was sentenced to 5 1/2 years for "providing material support to terrorism" in his capacity as Osama bin Laden's driver. After seven years on the so-called war on terror, we have the guy who changed the oil to show for it, and we held him so long (he got time served) that he's eligible to leave in six months (not that the US government will comply). Mind you that material support for terrorism was not considered a war crime subject to a military tribunal at the time that Hamdan was bin Laden's driver. This is an ex post facto conviction based on the Military Commissions Act of 2006. And what a commission it was. ACSBlog notes:

Salim Hamdan, who is being held at the military’s detention facility in Guantanamo Bay, Cuba, and served as Osama bin Laden’s driver, was convicted by a military tribunal of providing material support for terrorism and acquitted of conspiracy charges, the New York Times reported. ACSBlog published reports from the trial by observers Sahr MuhammedAlly, Aaron Zissler, and Frank Kendall, who represented the organization Human Rights First.

The Associated Press reported “Hamdan's attorneys said the judge allowed evidence that would not have been admitted by any civilian or military U.S. court, and that interrogations at the center of the government's case were tainted by coercive tactics, including sleep deprivation and solitary confinement.” [...]

Yesterday evening, Military Commission Judge Keith Allred acknowledged that he “may very well have instructed the [military commission jury] members erroneously,” but the prosecution and defense apparently agreed to let the original jury instructions stand, the Times reported.

More than anything, this is embarrassing. And there's a whole new generation of tortured prisoners being held to this day:

The U.S. military is segregating violent Iraqi prisoners in wooden crates that in some cases are not much bigger than the prisoners.

The military released three grainy black-and-white photos of what it calls the “segregation boxes” used in Iraq. They show the rudimentary structures of wood and mesh. Some of the boxes are as small as 3 feet by 3 feet by 6 feet tall, according to military officials. They did not release a picture of a box that size.

The military said the boxes are humane and are checked every 15 minutes. It said detainees, who stand in the boxes, are isolated for no more than 12 hours at a time.

Shut up, do-gooders, the boxes are checked, what more do you want?

Hamdan Found Guilty

of material support of terrorism. Well, he was bin Laden's driver. That's fairly material support.

So ends a sorry chapter in American jurisprudence. Did that need to take seven years?

(Interestingly, found not guilty of conspiracy, not that he'd be allowed to leave Gitmo even if he was acquitted)

Justice Denied At Gitmo

I don't know if you've been following the Guantanamo trial of Salim Hamdan, Osama bin Laden's driver, accused of - honestly, the whole trial is over and I don't really know what he's been accused of. Hamdan was a driver who fixed tires and changed oil - that alone is meant to be grounds for the death penalty, I guess. The trial has been filled with interesting revelations and extreme stretches of Constitutional law, but very little resembling any kind of coherent case fingering Hamdan as a terrorist.

We've learned that Hamdan cooperated with interrogators in fingering bin Laden's chief bodyguard - who was in Gitmo as well - but interrogators let him go (so much for gathering actionable intelligence).

We've seen Hamdan's lawyers object to extreme violations of judicial practice over and over, only to see themselves overruled by the judge.

We've seen revelations of all kinds of torture techniques used against Hamdan, including video evidence of the coercive techniques, and while testimony gained through these practices was supposed to be prohibited, the judge reversed himself:

Although Allred acknowledged in a ruling issued the day before trial that Hamdan was subjected to "various types of coercive treatment," he overruled the objection to the tapes, saying that the rules allow the admission of coerced testimony if it is deemed "reliable" and "the interests of justice." Those tapes, he concluded, served the interest of justice and were allowed in. Never mind the coercion.

The opinion released by the judge allowing the testimony despite the coercive treatment was five pages long, with almost all of them blacked out.

We've heard about defense testimony delivered in secret, away from the media and observers, yet with Hamdan still in the room, because there are no plans to ever let him go.

(ACLU Staff Attorney Ben Wizner) points out that Hamdan was allowed to stay in the courtroom and hear the classified information of these two witnesses because they were talking about how Hamdan was tortured. Ben adds: "The government doesn’t mind revealing that information to detainees because it doesn’t plan ever to release them."

There's this bit:

Harry H. Schneider Jr., a defense lawyer, held up a book and said he wanted to ask Mr. McFadden (a witness) a question based on it.

There was a stir at the prosecution table.

“I’m told it’s classified, so I can’t ask you,” Mr. Schneider said.

The book was the 9/11 Commission Report, a former best seller.

Near the end of the trial, jurors were shown a graphic film about the history of Al Qaeda, which seems prejudicial to the extreme. This is incredible.

The disturbing images, including some not previously released by U.S. authorities, were part of a film produced and narrated by a prosecution witness under contract with the tribunal hierarchy, the Office of Military Commissions.

The film was written, produced and narrated by Evan F. Kohlmann, who described himself as an international terrorism consultant who has conducted research for government agencies in the U.S. and several Western countries.

Navy Capt. Keith J. Allred, the judge presiding over the trial of Salim Ahmed Hamdan, a former driver for Osama bin Laden, cautioned the jurors that the film was being shown to provide an understanding of Al Qaeda operations, and that Hamdan was "not alleged to have been involved in any of these attacks."

Most of the film, "The Al Qaeda Plan," involved propaganda videos from Al Qaeda's media wing, As Sahab, and much of the footage had been filmed and broadcast after Hamdan was arrested in Afghanistan in November 2001.

In fairness, Judge Allred only allowed 6 of the 7 segments to be shown.

And yet, after all that, with the judicial thumb clearly on the scale of the prosecution, as the jury goes to deliberation, there is still no verdict, incredibly enough.

The lawyers can explain this one to me, but the judge in the Hamdan case has declined to change his ruling that evidence that Hamdan transported missiles to be used against US soldiers, as opposed to civilians or other protected persons, would not be sufficient for conviction. This is the standard applied to POWs under the Law of War, and NOT the standard put forward by the Bush Administration for the "illegal enemy combatant" category it created and has used to justify creating a separate military tribunal system.

Also, it appears the jury is still deliberating.

This has become such a convoluted travesty that the jury probably doesn't even understand the instructions, the rules for conviction, or anything else. They're obviously being pushed to come up with a conviction and forget about the legal niceties. For the moment they appear to be doing their job.

Rule Of Law Update

Yesterday a judge in the war crimes tribunal for Osama bin Laden's driver Salim Hamdan barred some evidence from the proceedings because of the way in which it was gathered.

The judge in the first American war crimes trial since World War II barred evidence on Monday that interrogators obtained from Osama bin Laden's driver, ruling he was subjected to "highly coercive" conditions in Afghanistan.

But Judge Keith Allred, a Navy captain, left the door open for the prosecution to use statements Salim Hamdan made at Guantanamo, despite defense claims that all of his statements were tainted by alleged abuse including sleep deprivation and solitary confinement.

To be clear, these military commissions are expected to be little more than show trials. And yet, even there, what the Bush Administration authorized shocks the conscience to the degree that evidence has to be thrown out. Not only is torture ineffective and yields bad results, it can't be used to prosecute, either.

Here's what they did to Hamdan:

At Bagram, Hamdan says he was kept in isolation 24 hours a day with his hands and feet restrained, and armed soldiers prompted him to talk by kneeing him in the back. He says his captors at Panshir repeatedly tied him up, put a bag over his head and knocked him the ground.

Will there ever be a reckoning in this country? And if those in the Administration are arguing that evidence obtained through torture is admissable, is that a giveaway for what we can do to them?.