Sunday editorial: Verdict for America
One of the darkest eras in the history of the American system of jurisprudence finally has resulted in something that looks like justice.
A military tribunal last week acquitted Salim Hamdan, who was a driver for Osama Bin Laden, of conspiracy to engage in terror, the more serious of two charges brought against him. He was convicted on a lesser count of providing material support to al-Qaida and was sentenced to five and half years in prison.
Supporters of President George W. Bush’s military commission system are claiming victory. They say the outcome proves that the system is fair and independent.
There is some truth to that. But to the extent that there is, it is in spite of Mr. Bush’s efforts, not because of them.
The heartening aspect of the Hamdam case is how, in the end, members of the military court put the rule of law and military honor first. This, after the president and his allies in Congress and the Justice Department had done everything in their power to prevent it.
In early 2002, the administration began accumulating prisoners in Afghanistan and elsewhere in the war on terrorism. Some secretly were shipped off to “dark sites” abroad where they were interrogated with “enhanced techniques” by U.S. intelligence operatives and contractors and, in some cases, by foreign intelligence agents. Still others — called the “worst of the worst” — were shipped to newly constructed prison facilities at the U.S. Naval base at Guantanamo Bay, Cuba. In both kinds of facilities — and in military confinement in Afghanistan and, later, in Iraq — some prisoners were subjected to treatment and interrogation techniques that meet the legal definitions of cruel and inhuman treatment and torture.
The president initially asserted the power to try these “enemy combatants” before a tribunal of his making and under his control, under rules of evidence and procedures that his administration invented, without the participation of Congress or the courts.
In a 2006 decision that bears Salim Hamdan’s name, the Supreme Court ruled that the president had exceeded his constitutional power with this plan. But Congress quickly rubber-stamped a new plan. That one allows military tribunals to conduct business largely in secret. They offer the accused only a limited ability to confront their accusers or learn of the evidence against them. The military officers serving as jurors are allowed to consider hearsay evidence and evidence gained through coercive interrogation techniques.
But even this distorted system ran into military officers who put justice ahead career considerations. This should come as no surprise.
Active-duty and retired military officers have been among the most outspoken critics of the systems of detention, interrogation and prosecution being used to deal with terrorism suspects. Such systems and techniques, the officers say, are unfair, ineffective and illegal and put U.S. military personnel in added jeopardy if they end up in enemy hands.
Hamdan spent 61 months in prison awaiting trial. The presiding judge of the military tribunal ruled that he will receive credit toward his sentence for that time, meaning Hamdan could be released before the end of this year. However, in its official response to the Hamdan verdict, the Pentagon said that “even if he were acquitted . . . [W]e would consider him an enemy combatant and still a danger and would likely still be detained for some period of time thereafter.”
Respect for human rights is by far the most important aspect of American exceptionalism. Sadly, the Bush administration still doesn’t understand that.
(Pictured: U.S. Naval Commander Charles Swift who represent Salim Ahmed Hamdan, a Guantanamo Bay detainee, speaks on his mobile phone after the Supreme Court ruled against the proposed military tribunals June 29, 2006 in Washington, DC. The Supreme Court ruled that the military tribunals created by the Bush administration to try terror suspects violate both American military law and the Geneva Convention. Joshua Roberts/Getty Images)


Wouldn’t it be easier if the Post just said We Hate George Bush?