- The Washington Times - Thursday, August 7, 2008

A split decision Wednesday in the trial of Osama bin Laden’s driver for a war crime eased some concerns about whether terrorism suspects would get fair trials in the military tribunals at the U.S. naval base at Guantanamo Bay, Cuba.

The jury of six military officers acquitted Salim Hamdan of conspiracy charges but convicted him of the lesser charge of providing material support for terrorism, which could send him to prison for life.

“This military judge is to be commended for providing a fair and internationally legally sufficient trial for the accused and the government - regardless of the ultimate verdict,” said Charles “Cully” Stimson, a former deputy assistant secretary of defense for detainee affairs.

But some legal analysts continue to warn that military tribunals set a risky precedent.

Hamdan’s conviction could prompt U.S. adversaries to retaliate by trying Americans under similar procedures, said Herman Schwartz, an American University Washington College of Law professor.

“Certainly there is the possibility of similar trials, which Americans would be very uncomfortable with when they are the defendants,” Mr. Schwartz said. “We would probably condemn them as unfair.”

Anthony D. Romero, executive director of the American Civil Liberties Union, said the Hamdan tribunal - the first U.S. military commission trial since the end of World War II - and its outcome will taint the Bush administration’s legacy.

“The judgment against Hamdan undoubtedly will be challenged in legitimate courts, but there is no appeal from the judgment of future generations,” Mr. Romero said. “This system was devised to permit the prosecution of alleged wrongdoing by detainees while continuing to cover up the wrongdoing by government interrogators.”

The White House welcomed the verdict.

“We’re pleased that Salim Hamdan received a fair trial,” White House spokesman Tony Fratto said. “The Military Commission system is a fair and appropriate legal process.”

About 270 terrorism suspects remain in detention in Guantanamo Bay. Pentagon officials announced Wednesday that they would prosecute more of them under the same procedures as Hamdan.

Hamdan was captured at a roadblock in southern Afghanistan in November 2001 and taken to Guantanamo in May 2002.

The U.S. military accused him of transporting missiles for al Qaeda and helping bin Laden escape U.S. retribution after the Sept. 11 attacks by driving him around Afghanistan. Defense attorneys said he was merely a low-level bin Laden employee.

Hamdan held his head in his hands and wept as a Navy captain on the jury read the sentence.

His trial by the U.S. military was authorized under the Military Commissions Act of 2006, which Congress approved after the Supreme Court’s June 2006 ruling in Hamdan v. Rumsfeld.

The ruling said the Bush administration lacked authority for military tribunals without congressional approval. The decision also said the tribunals violated the Uniform Code of Military Justice and articles of the 1949 Geneva Conventions on treatment of war prisoners.

The court’s ruling was a response to a lawsuit filed by attorneys for Hamdan.

“The Military Commissions Act was intended to set up a new system and was immediately criticized as being inadequate constitutionally,” said Mr. Schwartz, the American University law professor.

The act authorizes trials of “any alien unlawful enemy combatant … by military commission for violations of the law of war, and for other purposes.”

Supporters of the act say immigrant enemy combatants should not get the same trial rights as U.S. citizens.

After the Senate approved the Military Commissions Act, President Bush said it would “allow the continuation of a CIA program that has been one of America’s most potent tools in fighting the war on terror. Under this program, suspected terrorists have been detained and questioned about threats against our country. Information we have learned from the program has helped save lives at home and abroad.”

Critics of the military tribunals say they are flawed because they allow evidence that never would be allowed in a civilian trial.

They include use of testimony coerced through harsh interrogation, secret evidence and hearsay.

Hearsay is an out-of-court statement by a witness or defendant that can be used to prove the guilt or innocence of an accused person.

Hamdan’s attorneys expressed concern that a guilty verdict was inevitable even while the jury deliberated.

“I don’t know if the panel can render fair what has already happened,” said Navy Lt. Cmdr. Brian Mizer, Hamdan’s Pentagon-appointed attorney.

Defense attorneys said evidence presented by prosecutors was coerced in part by sleep deprivation and solitary confinement of witnesses.

After the verdict, the judge convened a hearing to determine Hamdan’s sentence.

This article is based in part on wire service reports.

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