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A mixed verdict

Salim Ahmed Hamdan's trial wasn't a kangaroo court, but it also wasn't what American justice should be.

August 07, 2008

The split verdict in the trial of Osama bin Laden's former driver redeems somewhat the military commission system created to deal with alleged enemy combatants held at Guantanamo Bay. But the trial of Salim Ahmed Hamdan fell short of the highest traditions of American justice, and even if he files a successful appeal, he would not be set free.

Hamdan, a Yemeni captured by Afghan warlords in 2001 and turned over to U.S. forces, was convicted by a military jury of providing material support to Al Qaeda but was acquitted of the more serious charge of conspiracy. The six-member jury apparently was convinced by prosecution arguments that Hamdan assisted Bin Laden in eluding capture after the 9/11 terrorist attacks. That the jurors, all senior U.S. military officers, didn't rubber-stamp the charges against Hamdan suggests they were more discerning than opponents of the commission system predicted. But the trial offered few of the protections Hamdan would have enjoyed in a civilian court, and the outcome is unlikely to allay worldwide suspicions about legal proceedings at Guantanamo.

For example, an FBI agent who questioned Hamdan acknowledged that if the interrogation had taken place elsewhere than Guantanamo, he would have given Hamdan a Miranda warning. An argument by Hamdan's lawyers that he had cooperated with the U.S. in pursuing Bin Laden was weakened by the exclusion from the trial of any mention of the CIA's contacts with the defendant. Finally, two defense witnesses were allowed to testify only in closed sessions.

Even more damaging to the image of the United States, military authorities made it clear that even if Hamdan had been acquitted of all charges, he wouldn't have gained his freedom. As an enemy combatant, the Pentagon has said, Hamdan and others so designated can be incarcerated until the end of the so-called war on terror. (Hamdan can appeal the verdict under the Military Commissions Act and might also benefit from a Supreme Court decision in June granting habeas corpus rights to detainees, though that decision involved prisoners who had not received a trial.)

This page has argued repeatedly that, given the length of the confinement of detainees at Guantanamo and the open-endedness of the war on terrorism, it would be preferable to try accused terrorists in the civilian judicial system, where an expeditious trial is guaranteed. That system, it should be remembered, produced the conviction of Omar Abdel Rahman, the "blind sheik" accused of plotting to bomb the United Nations, and a life sentence for Al Qaeda conspirator Zacarias Moussaoui. But if Congress and the administration insist on maintaining a separate judicial system to try alleged terrorists, it needs to be fairer and more transparent, and an acquittal must mean more than a return trip to a prison cell.

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