HAMDAN: AN UNCERTAIN FUTURE

By William Fisher

Despite a sentence that effectively means convicted war criminal Salim Hamdan could be a free man before the end of this year, the future of Osama bin Laden’s driver is far from clear.

Found guilty on Wednesday of providing “material support” for a terrorist organization, al Qaida -- but acquitted on the more serious charge of conspiracy that alleged he was part of the al-Qaida effort to attack the United States -- a panel of six Pentagon-appointed military officers sentenced the 40-year-old Yemeni to five and a half years in prison. Given credit for the five years he has already served at the U.S. Navy’s detention center at Guantanamo Bay, Cuba, Hamdan’s release date could be later this year.

But the Bush Administration has said it has no intention of releasing Hamdan. Since he has been designated an “unlawful enemy combatant,” he could be held until the end of the ‘war on terror.” And what would constitute that “end” remains undefined.

What appears clear is that, if Hamdan is to be held beyond his release date, his attorneys will appeal to both the U.S. military and civilian court systems.

Hamdan’s was the first trial held at Guantanamo in seven years, and the first convened by the U.S. since Nazi leaders were tried at Nuremberg after World War Two. Government prosecutors had asked for a sentence of 30 years to life in prison.

In the aftermath of Hamdan’s trial, human rights groups and legal scholars voiced sharp criticism of the trial and the process through which Hamdan was brought to trial, and predicted that his legal journey was far from over.

Critics said the trial, which featured secret and hearsay evidence, closed proceedings, and the introduction of evidence obtained through coercion, was a demonstration of the flawed Military Commission process designed by the Bush Administration.

Vincent Warren, Executive Director of the Center for Constitutional Rights, an advocacy group that has mobilized many of the defense attorneys for Guantanamo inmates, told IPS, “For all the government’s attempts to paint the commissions as another Nuremberg, they remain utterly outside the law and will be mired in challenges for years to come. Hamdan was convicted based on laws that were passed long after he was picked up, and the commission allowed coerced evidence, both illegal under not only international law, but U.S. law, as well.”

His view was echoed by Larry Cox, executive director of Amnesty International USA. He said, “Hamdan’s trial revealed what is common knowledge -- the military commissions are fatally flawed and do not adhere to major aspects of the rule of law. Hamdan suffered nearly seven years of unlawful detention, only to face a process that falls far short. So far the trial continues the Bush administration’s efforts to escape the rule of law and the requirements of justice.”

And Brian J. Foley, Visiting Associate Professor at Boston University law school, told IPS, "The trial was a show trial. The rules of evidence are so tilted in the government's favor that the tribunal is ill-designed for getting at truth. It's hard to credit any verdict, though it's telling that the Executive failed to win the entire case even in its contrived system. That, however, in no way proves the system is fair or that it works."

But others who support the military commission system termed it legitimate and fair. For example, Washington lawyer David Rivkin, a consistent supporter of the administration’s detention policies, said, “This is an enormously compelling indication of how independent the process has been.”

And Deputy White House spokesman Tony Fratto described the trial as fair. He said it would now open the way for prosecutors to proceed to try about 80 Guantanamo detainees for war crimes. Nineteen of these have already been charged.

The verdict and sentence will automatically be appealed to a special military appeals court in Washington. That court can reduce, but cannot increase, his sentence. Hamdan can then appeal to U.S. civilian courts as well.

Defense lawyers said Hamdan's rights were denied by an unfair process crafted by Congress after several Supreme Court decisions that found previous tribunal systems in violation of U.S. and international law. They criticized the use of interrogations as key to the government's case, saying that these were the products of coercive tactics, including sleep deprivation and solitary confinement.

"The problem is the law was specifically written after the fact to target Mr. Hamdan," according to Charles Swift, one of Hamdan's civilian lawyers. Swift began his defense of Hamdan as a U.S. naval officer and continued his representation after he retired from the navy.

Hamdan was convicted of providing material support to terrorism by driving bin Laden around Afghanistan at the time of the Sept. 11, 2001 attacks. But he said he “needed a job” and that he merely had a "relationship of respect" with bin Laden, as would any other employee.

He was acquitted of the far more serious charge of conspiracy to participate in the September 11, 2001 attacks on the U.S. and in other terrorist attacks. He was also found not guilty on three other counts alleging he knew that his work would be used for terrorism and that he provided surface-to-air missiles to al-Qaida.

Hamdan has been held at Guantanamo since May 2002. The military has not said where he would serve a sentence, but 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.

Hamdan has already become an iconic figure in American jurisprudence. It was the lawsuit he brought against then Secretary of Defense Donald Rumsfeld in 2006 that resulted in the Supreme Court ruling that the military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949.”

Following that ruling – one of several major legal setbacks for the Bush administration – Congress hastily passed the Military Commissions Act of 2006, under which Hamdan was tried.

It is unclear why the government chose a case involving arguably the lowest-level Guantanamo detainee as its first defendant. But legal authorities have speculated that prosecutors saw the Hamdan case as a “test run” for the military commission structure and process. Many of the cases yet to come to trial involve so-called “high value” detainees, including Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks. His case is also far more problematic, since the Bush administration has acknowledged that he was subjected to what it calls “enhanced interrogation techniques,” including waterboarding.