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08 August 2008

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Jay McAnally

Colonel:

When I first heard about Hamdan’s sentence, I immediately thought of you and what your reaction might be (don’t know why, perhaps I read too many blogs).

While my initial reaction is probably a bit idealistic, I felt that this group of officers basically used the sentence as a chance to reprimand the administration for its mishandling of this whole “detainee” thing. They realize, more than most that the way we handle these matters defines the way we can expect others to. And since the military is the most exposed to the risk of mistreatment, the example we set is important to them. Up until this decision, the Guantanamo process hasn’t satisfied this test, and this was a way of saying that – within the rigors of the system.

Your own observations, while more measured and informed by experience, don’t seem to be at odds with mine – perhaps I’m learning something. Hopefully our leaders will too…

Jay McAnally

Clemens

Good commentary. I was a bit taken aback by the virulence of the wildly anti-verdict crowd on the Right, specifically some of the folks at National Review Online. I suppose that simply underlines you idea that justice was done. God bless the colonels.

b

The Gitmo trials have seen some good and strong standing officers who would not follow orders to fudge the results of the trials but judged their humanity.

Gitmo has also seen a bunch of scums and bootlickers in uniform.

I salute the first group.

Tim

From your remarks, I trust colonels and lower. Generals, on the other hand...

Binh

When I heard the prosecution wanted 30 years for this guy, I couldn't believe it. Every time this administration has its day in court, they seem to lose.

zanzibar

"The prosecution's, and presumably the Bush Administration's, desire to send that message was thwarted by six officers who preferred justice." - PL

Justice. What a quaint word! God bless these six officers for upholding their oath to support and defend the constitution of the USA.

Unlike the vast majority of those who inhabit Congress and the upper echelons of this Administration and who take a similar oath - these six military officers have demonstrated what it means to take such an oath. They deserve our respect and our support. Does anyone know how a citizen can send them a thank you note?

fnord

Damn, it is good to see that there are some folks left in the system with a sense of integrity and perspective. Since he was tried for *war crimes*, this sentence makes much sense. I am waiting to see if this sets a presedence for the rest of the "trials". Not to mention what the administrations reaction will be.

praxis

It is good in the end that a simple chauffeur does not get confused with the AQ planners and executioners. It shall not be forgotten that Hamdan "paid" this discovery by sacrificing five years of his life.

On our side, we are still missing one more opportunity to score points against the ideology that supports AQ's endeavour. Hamdan is very well placed to make the case that providing casual support to terrorism is not a good idea.

Seven years into the war on terror and yet, still missing the shots!

Ormolov

"I am waiting to see if this sets a presedence for the rest of the "trials". Not to mention what the administrations reaction will be."

According to the BBC yesterday, Hamdan and others will not necessarily be released after serving their sentences. They can still be held by the Administration as enemy combatants even after all this, to be released at their discretion. And we all know how the decider(s) will decide.

"There will be those... who will insist that Gates or someone signaled, somehow, what the desired outcome was."

If Hamdan serves out the next five months, and then continues to be held at Guantanamo as an enemy combatant, how is this not a show trial and how does it not serve only political ends?

I would love to stand corrected about this.

Sidney O. Smith III

Yes, at least from what I can tell, Hamdan is still designated an “enemy combatant” and will not be released pending an administrative hearing to determine his status. Here’s a quote from an article published Tuesday in the Swamp (via awc).

“As Osama bin Laden's driver awaits the verdict in the first military tribunal case at Guantanamo Bay, the Pentagon made clear today that they are not about to give up custody of Salim Hamdan if he beats the charges against him.

"Even if he were acquitted of the charges that are before him, he would still be considered an enemy combatant and therefore would continue to be subjected...to continued detention," Pentagon spokesman Geoff Morrell said at an afternoon news briefing today.”

http://tinyurl.com/5vfdpy

condfusedponderer

Didn't the Pentagon hold that because Hamdan was an 'illegal enemy combatant' (in my view a fictitious category solely designed to confuse the US audience to be able to bypass the Geneva Conventions), they will continue to hold him anyway, never mind that his term actually runs out?

As soon as the sentence was issued, however, the Pentagon made it clear that it had no intention of releasing Hamdan. It says that it retains the right to keep him in prison for an indefinite period because he has been classed as an “unlawful enemy combatant”.
Sentenced to 66 months, 61 served - 6 months left - means life?

I don't know, I think those judges judged rightly, but their verdict might be thwarted. I really hope that report is wrong.

condfusedponderer

More on that, here: Pentagon quietly celebrates Hamdan sentence.

Does that mean that at the end of his sentence Hamdan will be given a new suit and a free ticket home? Not exactly.

The U.S. will still hold Hamdan as an "enemy combatant," and it will then be up to a Pentagon review board to determine if Hamdan is no longer a threat and can be freed.

According to one Pentagon official, "He (Hamdan) won't be going anywhere anytime soon.

So, great verdict in spirit, but not so fast ...

Sidney O. Smith III

Quick redux, actually just speculation:

Hamdan’s status doe not indicate this is a show trial or whatever. A civilian equivalent, perhaps, is trying a defendant for a state charge while he still has a federal hold. That is, the verdict will not effect the hold, just as this verdict does not effect Hamdan’s status. Plus he has to be tried.

The acquittal of the more serious charge, I would think, has the potential to help the defendant at his administrative hearing, assuming such is admissible. That said, if I were the defense attorney, I would have immediately asked for some kind of consent order (or the equivalent )that would grant the defendant another status besides that of enemy combatant, based upon the acquittal on certain charges. Sure, the prosecution could argue different venue, don’t have the authority etc, but the fact is that if it is refused, then you now have a better understanding of the prosecution’s ultimate intent, e.g. continued detention.

Finally, at least from what I can glean, the push back against potential abuses has come from military lawyers more than the USDOJ. Awhile back, I came across an article that described how some in the JAG world raised red flags. If I had time, I’d try to find a link. But as for the USDOJ, just check the work of the star chamber…opps…office of legal counsel. So credit where credit is due.

Fascinating all around. Strange times, indeed.

Patrick Lang

All

Nah. They will have no choice but to accept the verdict of the commission and release him. pl

Jackie Shaw

Sir,
I sincerely hope you are correct that the DOD will release him. This is the thing I've missed in all my "outrage overload" of the BushII years, where did the DOD get the authority to say who stays and who goes? And I really hope some "justice" finally prevails.

Charles I

Justice has indeed been done by the Colonels, but in spite of rather than according to law. A heartening result whether read as reality check or rebuke, but a blip to the purveyors of the GWOT, and no thanks at all to the Congress that went along with this charade. Twice.

Pat says there's no choice but to release Hamdan. I agree in the sense that the decision will be political rather administrative/legal no matter what they call him. Rationally, calculatingly, keeping him has too many negatives, let him go so you can say its all fair systems go for the really big trials of your more connected (hence, more tortured) evil-doers, terrorists and enemy combatants.

Where can the poor sap go, anyway?

Clemons and Binh, I think think this bit from Say What? at Slate today may reveal the commitment to any cause but the truth common to zealous prosecutor and indignant peanut gallery alike. Its also a prime example of JAG pushback alluded to by S.O.S.III above, I recall similar reporting somewhere:

"Wait a minute, we can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals. We've got to have convictions."
-- Pentagon general counsel William Haynes to Col. Morris Davis, Gitmo chief prosecutor, August 2005

"I concluded that full, fair and open trials were not possible under the current system."
-- Col. Davis, on his subsequent resignation

http://www.doonesbury.com/strip/dailydose/index.html

Is there something to that colonel vs general thing of Tim's, Pat? Extra star on the shoulder flips the magnetic field of the brain out of Colonel Justice mode into some form more suited to congress with the higher echelons and civilian command authorities?

PeterHug

I think this sentence has a number of levels concatenated within it:

first: what Hamdan did was something we actually find worthy of punishment;

second: due process matters--what the US Government (and by extension EVERY US citizen) did to this man while he was in our custody (and that also means our care) was inexcusable;

and third: the next Administration (whoever wins) has a true, pressing moral imperative to clean up the cesspool that Guantanamo and the new US Gulag has become--and what they do to resolve the Hamdan case will serve as an accurate bellweather of where they intend to go.

By scheduling the end of the sentence so close to the change of Adminisatration, the jury may (and I wouldn't presume to push this) be allowing the Bush Administration one last chance to redeem themselves, and, failing that, the incoming Administration an early chance to show that they intend to make some fundamental changes in how they deal with these issues.

Altoid

I've seen both Swift and Katyal interviewed. Both are impressive, but I really have to salute Swift and the JAGs for standing up for law at the cost of their own careers.

Ditto those on this jury, and also the judge in this case, if reports about his statements are accurate. Under Bush and McCain they will have no future (Swift has already left), and probably not much of one even if Obama runs an administration.

But they've really revivified my respect for those people who put their oaths and obligations ahead of political pressures and ambitions, in and out of uniform.

As have the civilian judges who have stood up to this administration's attempts at recreating the Stuart regime of long-ago England. It's the crucial test of our time, recycled from the 17th century.

In this case it was mainly a question of how far these officers would consent to let the military become an adjunct to centralized political control. This rebuke makes me proud.

But I somehow doubt that the commissar in charge of the whole process (whatever her name is, it escapes me at the moment) will allow the review board to release Hamdan.

I'm assuming, of course, that he won't be released as a result of the appeals his lawyers will file now that there's a verdict; the courts probably can't act that fast. But I hope you're right that they'll release this guy, who's essentially nothing more than a sap.

Marcus

A stronger message would have been to acquit him on evidence of torture, after all (according to Il Presidente), "Amerca doesn't torture."

Civil Kemp

At least give the guy a free GPS cell phone as a parting gift.

fnord

Another interesting case wich is tangential to this one is that of Aafia Siddiqui, the Grey Lady of Bangram, wich is up at the US courts now. Having been kept in Bangram for five years, her kids disappeared, she is being charged with trying to shoot one of her US prison guards. According to her sister, she has been raped contionously. And she is a US citizen. And nobody cares. Mr. Hamdan is at least a proven collaborator with mr. bin Laden. Mrs. Siddiqui appears to be the victim of sadism pure and simple.

http://www.guardian.co.uk/world/2008/aug/08/alqaida.pakistan

mlaw230

The new administration will have to think the entire "enemy combatant" classification, but for the mean time, the conviction, regardless of sentence, means that he has been adjudicated an enemy combatant and will have absolutely zero chance of being released, even on habeas.

If one accepts the concept (although I don't) that the President is entitled to detain "enemy combatants" in perpetuity then clearly a defendant convicted of giving aid in support of terrorism qualifies among those who may be detained under executive authority.

Under this Administration's conception of its authority this is a life sentence.

rj

Colonel,
Great post and well put. You say lastly, "There will be those, unwilling to say or think anything good about military people, who will insist that Gates or someone signaled, somehow, what the desired outcome was." I'm not a military person and really have no connections to the military. The only connection I've had comes from graduate school (in the '80s) when officers from the various branches attended seminars I was in. I developed a lot of respect for an institution that spent that much time and money to have its members get higher degrees -- even if, as one officer said one day, "we want to know what the civilians are thinking." I doubt civilian-military relations will ever be perfect, but at least the colonels who judged Hamdam did something that should make all Americans a bit prouder of our military.

Hank Foresman

Colonel:

Great post. As another Colonel and another VMI graduate I like what I read on this site.
The jury proved that the military is not simply doing the bidding of the administration.
The administration has handled this badly from the beginning, rather than treating them as Enemy POWs and affording them the protections of the Geneva Convention, the decision was made to treat them as some new class that dehumanized them.
We will be cleaning this mess up for years to come.

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