In a trial that defied the antiwar Left’s portrayal of military justice as a cross between star chamber and kangaroo court, the long-awaited first military commission has ended with the war-crimes conviction of Salim Hamdan, formerly the chauffeur, bodyguard and confidant of al-Qaeda leader Osama bin Laden.
A jury of six military officers returned its verdict Wednesday morning at a courtroom at the Guantanamo Bay naval base in Cuba.
The jury diligently deliberated for three days, following instructions that the military judge, Navy Captain Keith J. Allred, conceded may have been more favorable to Hamdan than the law required on the key issue of what constitutes a “war crime.” Though the defendant was convicted of providing material support to al-Qaeda, the panel acquitted him of a companion conspiracy charge.
The acquittal is but one of the indicia of fairness that pervaded the proceedings. Prior to the start of trial, the judge suppressed some of Hamdan’s interrogation statements. However appropriate they may have been for intelligence-gathering purposes, the court reasoned that the “highly coercive environments and conditions under which” Hamdan’s statements were elicited in Afghanistan made them insufficiently reliable for trial. And though Judge Allred found that peacetime interrogation protocols like Miranda warnings and the presence of taxpayer-funded counsel were not required for wartime interrogations of enemy combatants, he ruled that even ostensibly voluntary statements would not be admitted unless a witness could verify that the questioning had not been unduly coercive.
Moreover, Hamdan was given the benefit of arguably exculpatory evidence: permitted to introduce a statement by 9/11 mastermind Khalid Sheikh Mohammed to the effect that Hamdan was a hapless rube who was incapable of helping plan or execute attacks.
Of course, Hamdan was not alleged to have carried out specific acts of terror. His functions in al-Qaeda were the critical ones of enabling bin Laden to operate; to meet and plan attacks with top deputies like KSM; and to protect the mobile command structure so the terror network would survive even if the United States retaliated after jihadist atrocities. On his performance of this role, the evidence of guilt was overwhelming. But it is likely the procedural protections afforded by the military’s rules helped sway the jury in Hamdan’s favor on the conspiracy charge, an outcome that will doubtless be of considerable help to him when the sentencing hearing begins Wednesday afternoon.
Commission critics will never be satisfied unless every terrorist is brought into the civilian courts and given the full due process rights of American citizens (at which point the critics would go back to their pre-9/11 posture of complaining that those trials, too, are unfair). Thus they will continue to pine that much of the evidence against Hamdan was hearsay (even though hearsay is a staple of the international tribunals they claim to prefer, to say nothing of the numerous exceptions allowing hearsay in U.S. civilian trials). They will insist that even if evidence derived from unusual, harsh tactics like waterboarding played no part in the case, interrogations conducted during periods of solitary confinement or insufficient sleep are objectionable even for wartime, war-crimes purposes.
Such caterwauling, however, will no longer fill a void in the public mind. We now have a concrete record of a completed trial that seems to have been scrupulously deferential to Hamdan’s right to a fair proceeding.
And if it wasn’t, we’ll know that soon enough, too. In drafting and enacting the 2006 Military Commissions Act under which this trial was conducted, the Bush administration and Congress provided for multiple levels of appeal, first in the military system, then in the civilian federal courts — the D.C. Circuit Court of Appeals and, ultimately, the Supreme Court. In these tribunals, we will no longer be talking hypotheticals and hyperbole. We’ll be talking about an actual case — the things military justice did do, not scurrilous predictions of what it might do.
Hamdan’s trial featured much discussion of the Nuremburg precedent. Barack Obama and others have scalded the Bush administration’s military commissions as falling short of what they see as Nuremburg’s veneration of the “rule of law.” It may be news to them, though, that the current commissions far surpass the post-World War II tribunals in due process protections for accused war criminals. And the Nazis were not welcomed into American federal court as Hamdan will be to mount additional challenges to his conviction and sentence.
The Hamdan ruling marks only the first step in what will be a long legal process. But it is a step of gigantic significance: a victory, foremost, for American national security.