Col. Morris Davis (who we've blogged about before here and here), posted some comments on the Hamdan verdict at Opinio Juris:
While the conviction may have been a "win" for Hamdan, Kevin Jon Heller also suggests that the conviction may be unconstitutional.The jury sentenced Hamdan to 66 months. The judge gave him credit for nearly 61 months of time served, so he has less than 6 months remaining on his sentence. Hamdan won in the Supreme Court in 2006 and ended up back in his cell. He won again a little over a year ago when Judge Allred dismissed charges because the word “unlawful” was missing from the CSRT determination, which is required for MCA jurisdiction. Again, Hamdan won but ended up back in his cell. This time he lost, but in the end losing may equate to winning. It remains to be seen whether the administration intends to keep Hamdan past the end of his sentence; doing so begs the question of why we even bother to hold trials. If you look at Hicks (9 months) and Hamdan (<6 months) it suggests the best way to win at Gitmo is to lose.
Meanwhile, Hamdan is going to be in movies.
Additionally, I would suggest that the President-elect will at least be consulted as to what he wants.
Thus, the easiest decision to be made will be for the current Administration to simply punt.
Drive drunk in Texas, get life.
Is this a great country or what?
Considering that all this administration (especially the President--who has never taken responsibility for anything in his life) has ever done is punt and do everything in their power to make sure the mess they have created is somebody else's problem, that is exactly what I expect them to do.
The moral to the story is that if you want to drive drunk, do it for Bin Laden!
On the other topic of the post, NPR reported last week that Pentagon lawyers were concerned about the Hamden verdict for the reasons stated at Opinio Juris--giving material support for terrorism may be a crime, but it ain't a war crime. Legally, this is the least-supportable verdict the Bushies could get.
And once again, the military defense lawyers deserve praise. They are fighting an unjust system honestly, vigorously, and professionally. They are a credit to their uniform, their country, and the criminal defense bars. Thank you!
True story: A college newspaper once wrote an article about the student body that said the makeup was 51% male and 48% female. That suggests 1% neither male nor female.
My bad example of what this feels like:
Assuming there are no students that went unclassified as a result of some hermaphroditic categorization, what could that last percent be?
I then state that widgets make up the last percent, and they cannot participate in school sports as a right. You can discriminate against them because there is no case law regarding the treatment of widgets. Widgets could be male or female, but are not defined as such. Since the title of widgets is itself not a sex as defined by the medical community, it is therefore not subject to Title 7.
You cannot overrule my decision to classify anyone as a widget.
I will then judge when the widgets can participate, and even if I decree they can participate in sports in 5 months, I can withdraw that decree at any time.
Now please participate in the administrative hearings for when these widgets can participate in school sports. I will allow you a jury of your peers, but I will allow unimpeachable hearsay evidence from unidentified members of the student body who claim you are, in fact, a widget. Good luck.
Hamdan -- standing in for all enemies of the US -- could have taken his grievances to court (whatever the hell they are), but he chose to ignore law and resort to war. It is illogical to then allow him to appeal back to law when he loses the contest of strength.
I kmow this will pain lawyers, but there are things that happen in human affairs where law has no business.
That is the most ridiculous statement you've ever made and you know it. The biggest fear the leftists have is that Bush won't punt on Iran. Think back on all the things you hate most about Bush: He didn't punt on tax cuts; he didn't punt on Afghanistan; he didn't punt on Iraq; he didn't punt on an aggressive national security response to terrorists. Even when he got resistance, he didn't back off, he made congress pass a bill that he wanted with the telecomm immunity intact. You wish he was a punter.
What are you talking about? Was there any evidence that Mr. Hamdan had any grievance against anyone? He was a mechanic and driver. That is part of the reason this case is so absurd. It is a very expensive, very embarrassing and ultimately pointless (except for the political benefits) diversion from the failure to prevent the September 11 attacks or actually pursue or apprehend the real culprits. No protection has been gained through this.
How would support that?
A cynical person might opine that the administration and the OLC would file "The Trial" not in Fiction but in Self-Help.
Which SA7 missiles was he convicted for? None.
torturecoercive interrogation for five and a half years, I'd be asking Al Qaeda to sign me up.There were missiles in the vehicle Hamdan was driving when captured, though Hamdan denied owning them. To ask what missiles he was convicted for possessing is being a tad disingenuous.
Clooney offers good friend Obama advice
"One said last night: ‘They are extremely close. A number of members of the Hollywood community, including Brad Pitt, Ben Affleck and Matt Damon, offered to help raise funds for Barack but it was with George that he struck up this amazing affinity.
‘George has been giving him advice on things such as presentation, public speaking and body language and he also emails him constantly about policy, especially the Middle East.
‘George is pushing him to be more “balanced” on issues such as US relations with Israel.
'George is pro-Palestinian. And he is also urging Barack to withdraw unconditionally from Iraq if he wins."
Yes, but Hamdan was apparently acquitted of that offense. Here's Marty Lederman on this issue:
"Senator McCain today said in response to the verdict that "[t]he jury found that the prosecution lawyers had proven, beyond a reasonable doubt, that Hamdan had aided terrorists by supplying weapons to Al Qaeda and Taliban forces in Afghanistan." I don't think that's right. Hamdan was acquitted on the charges relating to the provision of weapons. Although supplying weapons in theory could have been the basis for the guilty verdict on the second material-support charge, the jurors did not specify the acts supporting that verdict, and it is fairly plain from the remaining verdicts, including the acquittals on those charges specifically dependent on allegations of providing weapons, that the basis for the verdict of guilt was Hamdan's conduct as driver and body guard, not his supplying of any weapons to al Qaeda and the Taliban."
The full post is here.
But as you know, something can be proven at a level of less than "beyond a reasonable doubt," resulting in an acquittal of the charge, even though the evidence is fairly clear (it could be as high as "clear and convincing").
EH was responding to a post from TMac. TMac made a snarky point that was not contingent on whether Hamdan was convicted. EH's response turned to the point of actual conviction (and I am not disputing your analysis with respect to actual conviction) which can be a very different thing from actual possession.
But isn't whether Hamdan "resort[ed] to war" an open question that ought to be someone determined? And wasn't his "grievance" that he didn't have a job. Arguements like this one remind me of that nut Ward Churchill who argued that the people killed on 9/11 where legitimate targets of war because they participated in the economic system that oppressed poor people in third world countries.
If we were literally overwhelmed by the number of "enemy combatants" caputured in war, I would be sympathetic to the idea that we wouldn't need to provide them with legal process, but a few hundred people? It seems that we have the resources to determine the guilt or innocence of that number.
Fair enough. I always thought a Scottish verdict would be helpful (innocent, not proved, guilty). I'm not sure we'll ever hear from this jury, but their thinking would be interesting (and potentially helpful to all of us in sorting out issues such as whether to hold Hamdan as a combatant).
Actually I suspect Bin Laden's policy on drunk driving might make Texas look pretty forgiving.
Even military courts require proof of guilt beyond a reasonable doubt.
Mark Field, you and Arlen Specter appear to agree on the "not proven" verdict (that is how he voted on one of the Clinton impeachment counts).
"Not proved" and "guilty" are what we have now: IIRC from my one stint of jury duty, there is no verdict of "innocent."
Ouch. I take it back.
Wait a minute -- no need for me to. Spector will change his position in a minute or two.
You are correct. The old Scottish verdict allowed an "innocent" finding precisely because it added the third category of "not proved". With only two verdicts, we only find "guilty" or "not guilty", the latter capable of meaning either "not proved" or "innocent".
Here's my thought: if the next jury to try an enemy combatant renders a sentence of life imprisonment, couldn't the Executive defend against future challenges to the military commission procedures by pointing back to the Hamdan verdict? They could argue that the Hamdan case proves that the procedures in place are fair, as Hamdan time-served sentence (or quite near to it, at least).
In the context of whether or how long Hamdan will be confined past his sentence, alleged missiles are not germane.
Possibly. It's hard to talk about the long-run fate of this alternate criminal justice system, because it's quite dependent on largely unrelated events in the offing in November. I would not be at all surprised if Obama (should he be elected) decided to either release or try within the civilian justice system any remaining prisoners at Guantanamo Bay.
I once had a car I would have liked to fix with a missile.
1. Treating Hamdan as a POW and locking him up until the war is concluded and prisoners are released.
2. Treating him like a partisan and shooting him out of hand.
3. Prosecuting him for conspiracy to murder Americans in cold-blood -- or is anybody here falling for the idea that he was really fighting the Tajiks (and I guess we are to suppose the missiles were for use against the Tajik Air Force).
Personally, given the rules of conflict our enemies have been so kind as to have spelled out for us, I'd be content to revert to a proclamation of outlawry and hunt them down and kill them like rabid dogs. As a practical matter, that would smoke out the alleged Islamic moderates, who have so far conveniently played the role of water to the extremist fish (borrowing Mao's metaphor).
It seems to me that some people, like JK, don't think we have any enemies. I do not concur.
For this reason, I have come to suspect that we may have been using the wrong metaphor. It seems to me the piracy metaphor better fits both the conduct and the context.
I'd tend to agree that the charge does not describe a characteristic element of the customary common law of war.
One difference the piracy metaphor makes is that pirates can't be held indefinitely as POWs. Although they can be tried by military tribunals. they have to be either tried or freed.
Of course, it would seem that if Hamdan wants to be freed more quickly, his best course right now might be not to appeal further.
That's a lieutenant colonel in the Marines who apparently considers Hamdan a "soldier", yet would be "extremely annoyed" if he were held indefinitely.
Too many people think pirates are cool. You might as well call them ninjas.
It is not quite correct to say 'Although they can be tried by military tribunals. they have to be either tried or freed.'
On the West Africa Patrol, US Navy officers who captured (suspected) slavers often preferred not to take them to the nearest port for trial, since the nearest port was necessarily in the South where juries would never convict.
If a Royal Navy ship were nearby, the custom was to hand over the slavers to the RN, which did not mess around with trials but just hanged them.
Call it extraordinary rendition if you will.
Welcome to the American judicial system. This happens all the time in run-of-the-mill criminal cases:
Sure. But not for the reasons you think. They've performed the valuable public service of showing this country yet again that, whether they're in uniform or not, lawyers are perfectly willing to sacrifice the lives of their countrymen under arms to aggrandize their profession and assuage their liberal guilt. This lesson hasn't gone over people's heads, and they will remember it in November.
We are in the right in this war. And we will win. No thanks to the likes of you.
Everyone knows ninjas are cooler than pirates.
I'm sure this is going to go right on their resumes, between "burned American flag factory" and "sacrificed infants to the ABA."
That's harsh. It may fit some, but I prefer to think most of them are just bemused by their training. Tell me if I'm wrong, but there's no course in most law schools about when the law should just butt out, is there?
It is a philosophical failure of the law to believe that it is a panacea.
Given that the majority of bloggers here are law professors, you are perhaps not fitting your argument well to your audience (same could be said to Real Public Defender). I think that the average reader of this blog is inclined to accept that the Bill of Rights was a good idea, that unrestrained government power is dangerous, and that acceptance of arguments such as "lawyers should shut up while real men take care of business" have historically resulted in unfortunate consequences (e.g. lynchings, excessive force against civil rights activists, detainment of Japanese during WWII etc etc).
Who do you think ordered and approved sending people of Japanese blood into camps? It wasn't the military, it was lawyers and the court system. FDR, Milton Eisenhower, Earl Warren. Hoover, the guys the liberal hate, wanted no part of it.
In Hawaii the military directly ruled, and they didn't send folks off to camps for no good reason.
Wait, it wasn't the military??
But the act itself allowed LOCAL military commanders to declare Zones where Japanese could not live - this was spread to the entire West coast.
I cannot think of a better forum than a bunch of lawyers to bring up the question, when does the interference of the law do more harm than good?
And it isn't a question of the Bill of Rights. If people like Hamdan are POWS, then they have no habeas recourse, do they?
If they were POW's, then we couldn't torture them.
Hence, it was never on the table for them to be POW's. Because the fundamental consideration, shortly after 9/11, was that we torture our Qaeda and Taliban prisoners.
"Interference" is always a bad thing but when you are talking about actions of the United States government, which is created by fundamental law (ie. the Constitution), and only operates under law, than I don't think you can call law interference - without law, there is no government.
The Administration decided that these people were NOT POW's.
If "quarter was given" (and it didn't have to be) and pirates were taken prisoner, they were tried.
The result of the trial was hanging or freed.
The only defense possible was that the person had been "pressed" into pirate service. This was likely only sustained when their were survinging witnesses on the original ship who had reported details of the taking. Many captured vessel's sailors willingly went with the pirates -- while they survived, they were better treated than the typical sailor of the day.
So cooks (who were seldom "pressed") were hung. But there are cases of doctors or even skilled carpenters who were forece to go with the pirates.
Maybe not everybody.
But if you want to suggest any ways in which American soldiers have ever benefited from our being in the conventions, go ahead. I'm all ears.
Anderson, you are a caricature of the America-hating fact-free idiotarian that people like Charles Johnson like to poke fun at. Let me put a hypothetical to you: Would you, personally, rather be an American prisoner of the Taliban, or a Taliban prisoner of the Americans?
Anyway: Why don't AQ and Taliban prisoners get POW status? (1) You can't question POWs. At all. (2) The GC encourages combatants to follow the rules of war by denying protection to those who don't. AQ and the Taliban never did. Treating them as POWs is contrary to the purpose of the Convention.
I have no idea whether such examples exist. In fact I'd be surprised if they do. But if we get nothing from them, why do you suppose so many of our senior military people support them?
The conventions were intended to create another form of humane protection. That works only if the other side cares what happens to its prisoners, which has never been the case in any conflict we've engaged in east of Suez.
But you're asking why officers go by the book? Because they're officers.
I'm not asking why they go by the book. I know they perform their duty. I'm asking why many of them apparently put more stock in the Geneva accords than you do.
Now, why that would be, I dunno.
As for Morris' speculation, I have my doubts about how many Iraqi conscripts in the 1990s knew anything about the Geneva Conventions, although no doubt they knew plenty about surrendering to Iranians.
They surrendered because they had been under constant bombardment for a month, with little food, and because they had no wish to fight anyhow.
There is a large literature about the psychology of surrender. Probably the big motivator is figuring out how to get past that tense moment when you step out, unarmed, into the battlefield. It does not seem that most soldiers think too much beyond that.
My dad was gunnery officer on USS Case during the Iwo Jima battle. Case ran down and sank a Japanese destroyer loaded with reinforcements for Iwo. About 300 men were swimming in the Pacific and Case moved in and tossed down lines and floats so they could surrender.
The alternative, Geneva Convention or no, was to drown all alone.
Not one grabbed a line.
Pretty disturbing if true.
I understand, the Army was too small, but that does not mean that a professional officer shouldn't have been telling the civilian leadership that it needed a bigger Army to do the job it was being asked to do.
It would have been the president's job to find the new GIs.
On another point, There seems to be a subtext in most discussions about prisoners that assumes that if the US renounced the Geneva Convention, its treatment of prisoners would become worse. (Anderson is far from the only person who seems to assume this.)
There is no historical evidence to support this notion. In fact, although it has been almost entirely forgotten, the Geneva Conventions created terrible problems for the US/UN/ROK in Korea, where the POW camps were organized by terrorist Communist cells that murdered North Korean prisoners who showing signs of wanting to defect.
Under Geneva rules, the capturing power was prevented from taking control of the camps or imposing justice on cold-blooded murderers.
The captors eventually did get control of most of the camps, through indirect means, but it was a great crisis.