Aug 6th, 2008
Posted by Suzanne Ito, ACLU at 4:24pm	National Security

The Hamdan Decision: A Black Eye to the Rule of Law

This morning's decision in the Hamdan trial came as no surprise. Ben Wizner, the ACLU staff attorney who's been observing the trials in Guantánamo since the week they began, has said as much, repeatedly. But there are a few things that are worth repeating. Namely, that this decision, while expected, is still a grave miscarriage of justice, and even if Hamdan were acquitted of all charges, he would not have been released. The Pentagon claims that because the government has classified Hamdan as an "unlawful enemy combatant," he could be held until the "cessation of hostilities in the war on terror," regardless of what the jury decided. So this was a lose-lose situation for Hamdan (and the Constitution), no matter how you spin it.

(Ignoring for a moment the argument as to how the United States can be at war with the concept of terror, what exactly does that mean? Does that include the war in Afghanistan and Iraq? Will it include any conflict with the axis of evil? What if we go to war with Iran?)

So let's revisit the facts of Hamdan's trial. The military commission system allows secret evidence behind closed doors, hearsay testimony (that's second-hand information at best, certainly not made under oath) and last, but certainly not least, evidence gained through cruel treatment.

The sole conviction was for material support. Material support isn't considered a crime under the laws of war. As Ben points out in his podcast with Glenn Greenwald, the prosecution's argument is that the United States has been at war with Al Qaeda since the 1990's, the time when Hamdan was bin Laden's driver. No one in the U.S. had even heard of Al Qaeda until the 2000 bombing of the USS Cole. So to say Hamdan provided material support in the war on terror is a stretch.

 

This verdict will be appealed and will likely end up in federal court (where the case should have been brought in the first place). Let's hope that a real American court will deliver a decision that brings real justice.

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1. Marc Bailey Says:
   Aug 6th, 2008 at 5:58pm

   Congratulations to the USA Goverment in protecting real American's freedom. If an American was caught in Yeman, he would have been executed years ago. Wake up assholes!!!

2. Danny Says:
   Aug 6th, 2008 at 7:03pm

   The next time my freinds want to rob a bank and i'm the getaway driver. Will you guy's get them to drop the charges? (Even if they kill a few people). Becuase i'm kind-of like a chauffeur?

3. DWexelblat Says:
   Aug 7th, 2008 at 9:35am

   I do not understand the ACLU's position on MCA. I've been an ACLU supporter for a long time, am a proud card-carrying member, and I routinely defend the ACLU against right-wing-types, because for the most part, the ACLU does good work.

   I support the ACLU's position on torture and coersion. I think GTMO should be closed. But there is something fundamentally wrong with trying to treat terrorists as criminals under US civilian jurisprudence, which seems to be your aim in opposing the MCA.

   I think DTA has problems, both in the lack of specificity in the law, and with the process the DoD has established. I've blogged on this at http://www.victoriousopposition.com/index.php/site/staying_after_schoo l/

   But the MCA is a good piece of legislation. It addresses the issues of detainee treatment and coersion. Judge Allred rules against coerced testimony. Judge Allred ruled against the prosecution on the release of potentially-exculpatory evidence. The process worked well.

   Do you realize that the MCA provides more access to the civilian court system than UCMJ does for our soldiers? Under MCA, appeals go through the DC Circuit of the US Court of Appeals before going to the SCOTUS. Under UCMJ, all appeals are by military panel prior to the SCOTUS.

   This is no kangaroo court. Judge Allred did an incredible job. The process works. Let it work.

   I will continue to support the ACLU, because the vast majority of the work you do is good work, but you are wrong on these issues.

4. wild Says:
   Aug 7th, 2008 at 10:34am

   I still dont understand what U.S. law, other than the {AUMF} (authorization to use military force) is being prosecuted against Hamdan?
   And if the {AUMF} truely is the foundation law of the prosecution, how has the prosecution linked or connected Hamdan to the attack that occured on September 11, 2001?
   wild

5. Robin Says:
   Aug 7th, 2008 at 7:42pm

   Ben Wizner is so wrong......WAKE UP AND
   SEE THE PEOPLE WHO WANT TO KILL USA CITIZENS....YIKES! Wizner doesn't care about his own country men.....SCARY!!!

6. Mark Says:
   Aug 10th, 2008 at 11:21am

   You people are sick in your head!!!I can't wait till anorcy.Because I'm an American and hate each and every sick twisted people in your sick group!!!I had a mercenary team and all I need to do is a few phone calls and we are in buesness...You sick fuck heads!!!

7. Gomer Says:
   Aug 13th, 2008 at 8:52am

   What a crock of shit. Want to see who wants U.S citizens dead? How does law and rights fit in a state that steals from its citizens and leave them for dead. Any way its Mississippi so who cares. still attorneys the court and state senators are making off with millions. www.mftms13.wordpress.com

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