FacebookTwitterGoogle+RedditEmail

The Military Commission Trials, So Far

“We will continue to bring the world’s most dangerous terrorists to justice,” President George Bush said in 2006, explaining why Congress needed to pass a bill to allow detained terrorist suspects to be prosecuted in military commissions. That same month, the Republican-controlled Congress voted in favor of the legislation that the Administration wanted, and early the following year, the first detainees were charged.

To date, the commissions have prosecuted only two people: a driver and a former kangaroo-skinner. Both were clearly not dangerous terrorists, at least in the view of the people charged with deciding their fates, and both received light sentences.

The case of Salim Hamdan, Osama bin Laden’s driver, is the first to have made it to trial; the other prosecution ended in a plea bargain. But the Hamdan trial, which ended this month, was at best a dress rehearsal for more consequential cases to come. It gave the government a chance to test out, in relatively low-stakes proceedings, some of the substantive and procedural arguments that it will rely on in future cases.

To date, the US government has announced charges against 19 other men, including seven cases in which prosecutors are seeking the death penalty. While a number of these cases involve minor defendants like Hamdan, the seven death penalty prosecutions do not.

Whether the seven defendants facing capital charges remain before military commissions, or end up being prosecuted in federal court, their trials will be closely watched and critically scrutinized. The trial of the alleged perpetrators of the September 11 attacks is, above all, the case by which the country’s post-9/11 system of justice will be judged. If that trial is bungled-if it is seen as a sham-the whole of U.S. counterterrorism efforts will be badly damaged.

The Hamdan Trial

The two-and-a-half week trial of Salim Hamdan ended in a guilty verdict in early August. The defendant was convicted of five counts of providing “material support for terrorism” but was acquitted of arguably more serious charges of conspiracy. He was sentenced to five-and-a-half years of incarceration, which, because of time served, means that his sentence will expire at the end of the year.

Although military prosecutors appeared outraged at the lenience of the sentence, the results should be understood, from a more strategic perspective, as a boon to the Administration. The direct stakes for the government were low; what was far more important was for the judgment to enhance the credibility of the military commissions themselves.

While Hamdan was not acquitted, the fact that the commission found him not guilty on some charges, and gave him a low sentence on others, gave ammunition to those who claim that the commissions are not kangaroo courts. “We’re pleased that Salim Hamdan received a fair trial,” said a White House statement issued in the wake of the verdict, summarizing such views.

But serious flaws in the proceedings were still apparent, flaws whose importance will be magnified in later, more high-stakes trials. Notably, the military commission’s lax hearsay rules allowed government prosecutors to introduce into evidence inflammatory and prejudicial material that had little or no connection to the defendant.

In addition, Hamdan’s defense team received hundreds of pages of relevant documents-including information about reportedly abusive interrogations-only days before the trial began. Other documents trickled in after the trial was under way, making it near-impossible for the defense to conduct follow-up investigations.

A key question-one that will most certainly crop up in future trials-involved evidence obtained under coercion. Although the military commissions judge excluded certain of the statements that Hamdan had made in Afghanistan, statements that Hamdan made at Guantanamo were admitted despite reports that he had been subject to sexual harassment, extensive sleep deprivation, and other abuse. Worse, the commission ruling that allowed these statements into evidence was so heavily redacted that its logic and reasoning remained hidden.

Next on the Military Commissions Agenda

Only one more trial-that of Omar Khadr-is scheduled to take place before the November 4 presidential elections. Khadr, a 21-year-old Canadian, was just 15 when he was captured and seriously injured in a firefight in Afghanistan on July 27, 2002.

The US has accused Khadr of throwing the grenade that killed US Army Sergeant First Class Christopher Speer and injured two others. He is charged with murder, attempted murder, conspiracy, providing material support for terrorism, and spying. Although Khadr was a juvenile at the time of his capture, the United States has refused to acknowledge his status as a minor, or to apply universally recognized standards of juvenile justice in his case.

Khadr’s case is currently scheduled to go to trial on October 8. A few other cases-including those of Mohammed Jawad (who was only 17 years old when he was arrested), Ahmed Mohammed Ahmed al-Darbi, Mohammed Kamin, and Ali Hamza Ahmad Suliman al-Bahlul-have also made forward progress. It is possible that one or more of these cases may go to trial by next January.

The Big Cases

The most serious and high-stakes cases that are pending involve the five accused 9/11 defendants-Khalid Sheikh Mohammed, Ramzi bin al-Shibh, Walid bin ‘Attash, Ali Abdul Aziz Ali and Mustafa al-Hawsawi-who are being tried together, and terrorist suspects Ahmed Ghailani and Abd al-Rahim al-Nashiri. The latter two defendants are accused of involvement in the 1998 bombing of the U.S. Embassy in Dar es Salaam, and the 2000 bombing of USS Cole, respectively.

The defendants in these cases face not only the prospect of unfair trials, but also the prospect of the death penalty after unfair verdicts. By moving their cases to federal court, the next president could avoid this outcome.

JOANNE MARINER is a human rights attorney.

 

Your Ad Here
 

 

 

 

More articles by:

JOANNE MARINER is a human rights lawyer living in New York and Paris.

August 14, 2018
Daniel Falcone
On Taking on the Mobilized Capitalist Class in Elections: an Interview With Noam Chomsky
Karl Grossman
Turning Space Into a War Zone
Jonah Raskin
“Fuck Wine Grapes, Fuck Wines”: the Coming Napafication of the World
Manuel García, Jr.
Climate Change Bites Big Business
Alberto Zuppi - Cesar Chelala
Argentina at a Crossroads
Chris Wright
On “Bullshit Jobs”
Rosita A. Sweetman
Dear Jorge: On the Pope’s Visit to Ireland
Binoy Kampmark
Authoritarian Revocations: Australia, Terrorism and Citizenship
Sara Johnson
The Incredible Benefits of Sagebrush and Juniper in the West
Martin Billheimer
White & Red Aunts, Capital Gains and Anarchy
Walter Clemens
Enough Already! Donald J. Trump Resignation Speech
August 13, 2018
Michael Colby
Migrant Injustice: Ben & Jerry’s Farmworker Exploitation
John Davis
California: Waging War on Wildfire
Alex Strauss
Chasing Shadows: Socialism Won’t Go Away Because It is Capitalism’s Antithesis 
Kathy Kelly
U.S. is Complicit in Child Slaughter in Yemen
Fran Shor
The Distemper of White Spite
Chad Hanson
We Know How to Protect Homes From Wildfires. Logging Isn’t the Way to Do It
Faisal Khan
Nawaz Sharif: Has Pakistan’s Houdini Finally Met his End?
Binoy Kampmark
Trump Versus Journalism: the Travails of Fourth Estate
Wim Laven
Honestly Looking at Family Values
Fred Gardner
Exploiting Styron’s Ghost
Dean Baker
Fact-Checking the Fact-Checker on Medicare-for-All
Weekend Edition
August 10, 2018
Friday - Sunday
David Price
Militarizing Space: Starship Troopers, Same As It Ever Was
Andrew Levine
No Attack on Iran, Yet
Melvin Goodman
The CIA’s Double Standard Revisited
Jeffrey St. Clair
Roaming Charges: The Grifter’s Lament
Aidan O'Brien
In Italy, There are 12,000 American Soldiers and 500,000 African Refugees: Connect the Dots 
Robert Fantina
Pity the Democrats and Republicans
Ishmael Reed
Am I More Nordic Than Members of the Alt Right?
Kristine Mattis
Dying of Consumption While Guzzling Snake Oil: a Realist’s Perspective on the Environmental Crisis
James Munson
The Upside of Defeat
Brian Cloughley
Pentagon Spending Funds the Politicians
Pavel Kozhevnikov
Cold War in the Sauna: Notes From a Russian American
Marilyn Garson
If the Gaza Blockade is Bad, Does That Make Hamas Good?
Sean Posey
Declinism Rising: An Interview with Morris Berman  
Jack Dresser
America’s Secret War on Yemen
Howard Lisnoff
The Use and Misuse of Charity: the Luck of the Draw in a Predatory System
Louis Proyect
In the Spirit of the Departed Munsees
Binoy Kampmark
Banning Alex Jones and Infowars
Mundher Al Adhami
On the Iraqi Protests, Now in Their Second Month 
Jeff Mackler
Nicaragua: Dynamics of an Interrupted Revolution
Robert Hunziker
Peter Wadhams, Professor Emeritus, Ocean Physics
David Macaray
Missouri Stands Tall on the Labor Front
Thomas Knapp
I Didn’t Join Facebook to “Feel Safe”
John Carroll Md
Are Haitian Doctors Burned Out?
FacebookTwitterGoogle+RedditEmail