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

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August 6, 2008

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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