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The Travesty Continues: Hamdan's Sentencing

Ben Wizner,
ACLU Speech, Privacy, and Technology Project
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August 7, 2008

(Originally posted on Daily Kos.)

There’s been little time for blogging, but then there’s been less need — Hamdan is front-page news worldwide today, and you can read excellent accounts of Wednesday’s remarkable proceedings here, here, and here.

There was a feeling on Wednesday — and this was evident on the faces of the prosecutors — that the jurors had struck a major blow against the Guantánamo military commissions. For the last seven years, uniformed military officers have been pushing back, sometimes dramatically, against the most extreme detention and interrogation policies of the Bush Administration. Charlie Swift, Alberto Mora, Antonio Taguba — and many more whose names are not well known — have stood up for the best traditions of military justice, and for the principle that the United States military must treat its enemies as we demand to be treated by them. We may never know why the military commission members acquitted Hamdan of the most serious charges against him, but there was no mistaking the impact of their decision. Harry Schneider, one of Hamdan’s lawyers, quipped that Hamdan’s phone call home to Yemen would likely be an easier one than the prosecutors’ call to Washington.

The sentencing phase is now underway. The prosecution sought to call one witness: an FBI agent who was on the scene at the World Trade Center on 9/11 who would describe the carnage and chaos of that day. But, having failed to convict Hamdan of participation in a terrorist conspiracy, the prosecution was unable to persuade Judge Allred that 9/11 victim testimony was relevant to Hamdan’s punishment. “Guilt is personal in the United States, sir,” argued Lt. Commander Brian Mizer, one of Hamdan’s lawyers. Judge Allred agreed, stating that Hamdan was “so little involved” in Al Qaeda’s activities, his support was “so small,” that it would be unduly prejudicial to make it appear that he was responsible for the 9/11 attacks.

As has been common in these proceedings, the prosecutors did not give up, and continued to argue throughout the afternoon that the FBI agent should be permitted to testify.

“Nothing could be more closely connected,” argued lead prosecutor John Murphy, than Hamdan’s driving and bodyguard duties and the attacks of 9/11. But Judge Allred was unpersuaded. “I know you think that man, many people want some vindication for those attacks,” he said. But Hamdan’s role was so marginal and attenuated that there was simply no basis for turning the sentencing hearing into another grisly horror show.

Hamdan is expected to take the stand on Thursday and address the jurors directly. We are told that the prosecutors may attempt to close the courtroom for part of this testimony — once again pressing the outrageous argument that Hamdan is in possession of classified evidence simply by virtue of what the United States has done with him and to him since his capture. (Journalists have speculated that what the administration truly wants to conceal is that Hamdan offered to help the United States capture bin Laden in November of 2001 — an offer that was rejected. The defense has obliquely referred to a “squandered opportunity,” but will say no more.)

Today may be the final day of this historic trial. If wiser heads prevail, this first trial by unjust military commission will also be the last.

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