The verdict returned by the trial panel (no one should ever mistake a group hand selected by the authority responsible for the decision to prosecute as a "jury') in Guantanamo today reflects extremely well on the six officers given the unenviable task of participating in a badly flawed system. The government is already proclaiming the outcome as vindication of the commission process. The ironic reality is that the partial verdict - conviction on five specifications of providing material support to terrorism but acquittal on the charge of conspiracy and three other specifications of providing material support - is actually a much better outcome for the prosecution than a more complete conviction would have been. By limiting the grounds on which the defense can appeal, the verdict as returned largely saves the government from its own egregious overreaching.
While the commissions conducted under the Military Commissions Act of 2006 are a considerable improvement over those struck down by the Supreme Court in its 2004 Hamdan decision, the reality is that the process still has a number of legal flaws sufficient to ensure that convictions will not ultimately stand up to the test of time in the world court of public opinion. Among these are:
(1) Charges lacking any foundation in the law of war, which means that there is no lawful military jurisdiction over them. The is fairly broad agreement among legal scholars, and four sitting Supreme Court justices have already agreed, that Conspiracy does not constitute a violation of the law of war. Acquittal on this charge means that it will not be appealled, and allows the government the opportunity to continue to prosecute other defendants for this offense for the forseeable future.
Providing material support to terrorism is also quite questionable -- I do not think it is a valid charge -- but the authority is potentially not as clearcut on this point so the government has a better chance of prevailing on an appeal on this charge.
(2) Conviction based on evidence obtained through coercion. While the MCA bans use of evidence obtained via "torture," it leaves the door fairly open for the admission of statements obtained through coercion falling short of actual torture. Realistically any statements made by someone subject to the stress of prolonged isolated confinement, even short of any sleep deprivation, temperature extremes, etc. should fail to meet any reasonable measure of "voluntariness," but that standard is not adopted by the MCA. Although it is impossible to know without reading the actual courtroom transcripts, it is quite possible that there is sufficient physical evidence or testimony of third parties (e.g., those involved in Hamdan's capture) to support Hamdan's conviction on some of the material support allegations without having to rely on his own incriminatory statements. So it is entirely possible that on appeal it will be found that the use of Hamdan's statements did not materially prejudice him even if they really should not have been allowed in by any recognized standards of judicial fairness.
(3) No right to representation by counsel of choice. This is a serious issue for many of the detainees that could ultimately be a fatal flaw in the commission process, but does not seem to be an issue in Hamdan's case. (Today's verdict has no impact on this issue).
(4) Lack of equal protection. A fundamental flaw of the commission process to date has been that a defendant's treatment is in large part based upon nationality -- Americans are excluded by law, Brits have been by policy, Australians and Canadians get special privileges denied to citizens of Muslim countries, etc. While not a legal issue subject to appeal, the fact that Hick's relatives were allowed to attend his trial while Hamdan only got a post-trial phone call to his wife highlights the ongoing nature of this problem. Again today's result does not really impact this issue.
One of things that I do find impressive about the panel's verdict is that the members were apparently able to resist being persuaded to convict on the conspiracy charge by the inflamatory video and arguments the government introduced about al Qaeda atrocities. Had they returned a conviction on that charge, the use of the video would likely have been a core issue on appeal. Given that acquittal, however, it is hard to see how an argument that the video was unfairly prejudicial would gain much traction in an appeal of the material support count.
The judge's instructions to the trial panel, which failed to state that delivering missiles to be used against military forces constitutes a war crime also ultimately works to government advantage in my view. If the government had prevailed on this point, it means that everyone from Ronald Reagan to Charlie Wilson, to my colleagues at the Pentagon during my service in the South East Asia branch of the Joint Chiefs of Staff in 1984-85, to the CIA folks involved in supporting the Mujahidin in Afghanistan during the Soviet Afghan war are war criminals. While U.S. prosecutions for such conduct are obviously unlikely, such an outcome could have consequences from emboldening nations like Russia to press charges to the more mundane but perhaps real possibility that they might persuade some U.S. judges to overturn the conviction to avoid attaching this stigma to fellow Americans.
Overall I think the most positive thing about the verdict is that six anonymous military officers engaged in mature consideration of how to apply the law as it was given to them to the facts that they were presented. Whatever flaws exist in the system, it is not fair to pin it on these individuals, and I believe this highlights that had the government conducted the CSRT process in good faith and made a real effort to present all available information to the participants in those panels, a good deal of the subsequent controversy over Guantanamo could have been avoided. Whether Hamdan should ultimately have been convicted or not, there does seem to be sufficient information in the public record to justify his indefinite detention as a member of a force hostile to the United States engaged in a conflict against it.
I enjoyed this post, which defined the issues as clearly as the murkiness allows, but this seems to me way off key:
"Whether Hamdan should ultimately have been convicted or not, there does seem to be sufficient information in the public record to justify his indefinite detention as a member of a force hostile to the United States engaged in a conflict against it."
I hadn't actually realised there was a law any time, any place, (well maybe just in democracies of the Anglo-Saxon ilk) that permits indefinite detention for such an offence. Where is the offence defined and the propsed punishment defined? Has the offence to be proved? ("sufficient information in the public record" sounds very vague to me"). In what situation is it to be tried (a court of law?).
It strikes me that, if this offence exits, then the entire populations of Germany and Japan 1939 - 1940, not or mention Korea, Vietnam in the 50s and 60s could/should have been brought to the U.S.A. or Guantanamo to be punished.
Posted by: Paddy McAree | August 07, 2008 at 06:02 AM