In what seemed to be an unusual warning to the Bush administration, U.S. District Judge James Robertson, declaring on July 17 that the war-crimes trial of Salim Hamdan could proceed, said: “The eyes of the world are on Guantanamo Bay. Justice must be done there and must be seen to be done there fairly and impartially.”
What the world found out from observers at the trial was the dismissal of many of our rules of law as specifically required by the commander in chief, President Bush, who all by himself issued a Nov. 13, 2001, military order in which he established military commissions: “Given the danger to the safety of the United States and the nature of international terrorism, and to the extent provided by and under this order, I find consistent with section 836 of title 10, United States Code, that it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.” He didn’t bother with judicial approval.
Although Army Col. Lawrence Morris, chief prosecutor at the Hamdan trial, insisted it was “an open and fair and thorough process,” the result echoed in part the Bush 2001 military order. Some of the testimony was given in closed court; some of it was secret or based on hearsay evidence. To give one of many other examples of the denial of due process in the courtroom, Ben Wizner, an American Civil Liberties Union attorney, reported from the trial: “The name CIA may not be uttered in the courtroom. The closest we get is hearing that there might be other government agencies around. And there was an incredible moment in the court.” A Hamdan lawyer wanted to ask a question “of an FBI witness that must have been about the CIA (concerning secret CIA interrogations of Hamdan). The government objected on classification grounds. The defense lawyer held up the 9/11 Commission Report and said all I want to do is read one sentence from the 9/11 Commission Report” that was on The New York Times best-seller list. He was not permitted.
The fact that the military jury acquitted Mr. Hamdan of the most serious charges - conspiracy to commit terror attacks and conspiracy to kill Americans - does not, says Col. Steven David, one of his defense lawyers, vindicate “the military commission system … There’s only been vindication of the power and reason of (the) six panel members to stand tall, take their oaths seriously and do their duty.”
These six senior military officers on the jury rose, in self-respect, above the wreck of the American justice system in which they had been participating. They did convict Mr. Hamdan of providing material support to a terrorist organization, but contrary to the Bush administration’s chronic revisions of international treaties and laws, the laws of war do not cite material support as a war crime.
A definitive new book on Mr. Hamdan’s previous victory, the Supreme Court 2006 ruling against Mr. Bush’s military commissions (Hamdan v. Rumsfeld), Jonathan Mahler’s “The Challenge: Hamdan v. Rumsfeld and the Fight Over Presidential Power” also describes how the Republican-controlled Congress largely eviscerated that Supreme Court decision in the subsequent Military Commissions Act.
Mr. Hamdan’s 2008 war-crimes trial then became the first major test of whether Mr. Bush can validate these commissions he invented. When the trial was allowed to proceed, Mr. Mahler wrote in Time magazine, the “outcome of Hamdan’s trial could influence not just how terrorism suspects are treated in the future but also whether the whole system that President Bush first authorized in the aftermath of Sept. 11 will survive under the next commander in chief.”
What of the next commander in chief? John McCain supported the Military Commissions Act, and has also agreed with Mr. Bush’s veto of a bill that would have required the CIA (including its secret prisons that Mr. Bush continues to authorize) to adhere to the Army Field Manual by which all of the other armed and security-based services are mandated not to engage in torture. So, it was not surprising that, after Mr. Hamdan’s recent partial conviction, Mr. McCain said in a prepared statement to the media: “Unlike Sen. Obama, who voted against the (Military Commissions Act) and favors giving Al Qaeda terrorists direct access to U.S. civilian courts to contest their detention, I recognize that we cannot treat dangerous terrorists captured on the battlefield as we would common criminals.” Mr. Hamdan was not captured on the battlefield. The military jury cleared him of being “a dangerous terrorist.” And Mr. McCain is oblivious to the fact shown by the Department of Defense’s own records that many prisoners at Guantanamo Bay had no connections with Al Qaeda.
Barack Obama said of the Hamdan trial that it “underscores the dangerous flaws in the administration’s legal framework. It’s time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice.” (I agree with Mr. Obama’s reaction to the trial; but if I vote for him, it will be with repugnance because he is so extreme a pro-abortionist that he opposed, in the Illinois legislature, a bill to preserve babies born alive after botched abortions.) Most importantly, the military jury in the Hamdan trial did show the world that the former Mr. McCain was right when he said of American values against the terrorists: “It’s not about them; it’s about us.” As commander in chief, will Mr. McCain nonetheless continue to implement Mr. Bush’s separate legal system, exemplified by his inventions of the military commissions along with the CIA’s secret prisons and “renditions” of suspects to be tortured in other countries? If he is elected, the world will be watching.
Nat Hentoff’s column for The Washington Times appears on Mondays.