Justice at Gitmo

By David B. Rivkin JR. and Lee A. Casey
Friday, August 1, 2008

After years of litigation, the first military commission trial of the war on terror -- United States v. Hamdan -- is underway in Guantanamo Bay, Cuba. Don't believe the critics who say justice isn't being done.

Salim Ahmed Hamdan was captured by American and allied forces in Afghanistan. The government maintains -- and Hamdan has confirmed -- that he was Osama bin Laden's driver and bodyguard. Hamdan is charged with conspiracy to commit war crimes and providing material support for terrorism.

Some of the complaints about the trial are trivial, such as that the proceedings are not televised (neither, of course, are the Supreme Court's). Other complaints are irrelevant, such as the claim that reporters cannot move about the Guantanamo base without an escort (try wandering unescorted into the Oval Office if you are on the White House beat).

Then there are the suggestions that the trial atmosphere feels wrong (all those uniforms in the "jury" box), and that the trial is going too fast compared with civilian cases. Since these are trials by military commission, the uniforms should have been anticipated. A quicker pace is also typical of military proceeding. Unlike civilian trial judges, military judges don't need to juggle civil litigation in addition to criminal cases on their dockets.

The real question, of course, is whether Hamdan is getting due process, and whether his trial is fair. The answer is yes. Hamdan has an able team of defense lawyers determined to squeeze from the system every drop of procedural advantage. They have, for example, made an unsuccessful attempt to have his trial postponed until after he has had a hearing in the civilian courts. Although the Supreme Court ruled in June that Guantanamo detainees can seek "habeas corpus" review, Judge James Robertson -- appointed by President Bill Clinton to the federal district court in Washington, D.C. -- ruled that the military commission trial can go forward.

Second, the defense has argued that the evidence against Hamdan should be excluded because it was obtained through "coercion." This claim mostly involves rough treatment after his capture in Afghanistan (he was held by both Afghan and American forces) and his being questioned during his long detention at Guantanamo.

The trial judge -- a military officer as provided by law -- excluded Hamdan's statements from Afghanistan (where questioning was, at times, by armed interrogators) but very properly rejected the defense claim that merely being held without trial as an enemy combatant, subject to Guantanamo's rules and discipline, was impermissible coercion. Captured enemy combatants can be so held, noted the judge. He consequently gave "little weight to the coercive effect" supposedly inherent in being detained for long periods without access to friends and advisers. Thus was the "best interest of justice" admissibility standard approved by Congress in the 2006 Military Commissions Act applied, proving that uniformed judges will say no to both the prosecution and defense.

Pretrial motions resolved, the prosecution has presented a compelling case. By his own admissions, Hamdan was part of Osama bin Laden's inner circle, even if not in a very senior position. Witnesses state that Hamdan has admitted responsibility for preparing bin Laden's transportation for rapid movement in case of American attacks, and was also aware of the Sept. 11 attacks in advance.

Hamdan has also offered information on other al Qaeda operations and its field logistics -- including bin Laden's manner of travel and security escort. The evidence so far has also confirmed an interesting tidbit about bin Laden's thinking. Because of a lack of a vigorous U.S. military response to the 1998 U.S. Embassy bombings and the 2000 Cole bombing, bin Laden evidently came to believe that the U.S. would never actually come after him in Taliban-controlled Afghanistan.

Under the standards applied in previous wars, these facts -- unless disproved or rebutted by the defense -- would fully justify Hamdan's conviction as an unlawful enemy combatant and a person who has rendered material support to a terrorist organization. He may have been a driver, but one who was trained as a terrorist and provided essential security and logistics support for al Qaeda's commander in chief. He was no more a civilian, entitled to trial in civilian courts, than were Hitler's SS bodyguards.

Hamdan's trial is an important test for the system as a whole. It will be followed in short order by that of Omar Khadr, a Canadian citizen also captured in Afghanistan -- at the age of 15 -- and accused of killing an American military medic. After that, the trials of far more senior al Qaeda members will follow. That includes Khalid Sheik Mohammed, the mastermind of Sept. 11.

In short, based upon the military commission rules and actual practice of the Hamdan trial we've seen so far, the U.S. is according the unlawful enemy combatants at Guantanamo the fairest war-crimes trials in history. That's right, more due process at Gitmo than during the post-World War II Nuremberg tribunal and at least as much as in the more recent Hague tribunal proceedings -- both of which are routinely extolled by the critics of military commissions. But none of this seems to matter to the critics, who continue stubbornly to insist that only the civilian justice system is acceptable for the Guantanamo detainees.

The U.S. must continue the military commission system. Only military courts that provide a fair hearing and sufficient protection for national security information can ultimately provide justice to both the detainees and the American people.