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Hamdan Sentence Is a Snub to Prosecution

Posted on Aug 7, 2008
AP photo / Janet Hamlin, Pool

Salim Hamdan, Osama bin Laden’s former driver, has been sentenced by a military jury to five and a half years in prison—most of which he’s already served in detention. The prosecution wanted his sentence to be 30 years or longer, but it needn’t be too upset: The military has said it can hold Hamdan indefinitely if it feels like it. Hamdan’s lawyers are expected to appeal.

Hamdan’s case, though it has been seen as a test of legal rights, is about more than how detainees are tried. It speaks to the Bush administration’s often clumsy approach to fighting its war on terror.

Here we have the driver of Osama bin Laden. Not a mastermind or a hijacker, mind you, but a driver. He has cooperated with his captors and has reportedly told them what he knows. He says he drove for the money, and has apologized for doing so, most recently to the jury that sentenced him.

The reason the White House targeted Hamdan wasn’t because the safety of Americans depended on keeping him off the road. It was because the administration needed a win. The driver is the best it could do, apparently. That’s the kind of thinking that caused the RAND Corp. to determine that “current U.S. strategy against the terrorist group al Qaida has not been successful in significantly undermining the group’s capabilities.”


Osama Bin Laden’s former driver has been sentenced to five-and-a-half years in prison at the first US military trial in Guantanamo Bay.

Salim Hamdan was convicted on Wednesday of supporting terrorism, but acquitted of conspiracy to murder.

Prosecutors had demanded a sentence of not less than 30 years.

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By cyrena, August 7, 2008 at 10:11 pm Link to this comment

A Snub to the “Prosecution?”  I think American citizens need to look again. The MCA isn’t just about Hamden, and the ‘snub’ is on US.
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The Hamdan Principle and You
By Robert Parry
August 7, 2008
The U.S. military commission’s split guilty verdict on Ahmed Hamdan, a former driver for Osama bin Laden, has drawn praise from the Bush administration and criticism from civil rights groups, but what has been overlooked is the chilling message that “the Hamdan principle” sends about future prosecutions in the “war on terror.”

This new principle holds that anyone – regardless of how tangential a connection to actual acts of terrorism – can be prosecuted through the kangaroo court of the military commissions and be sentenced to a long prison term (or even death). Though Hamdan is a Yemeni, the principle would seem to apply to U.S citizens, too.

In effect, a parallel legal system has been created outside the U.S. Constitution in which the President can order someone locked up indefinitely simply by calling the person an “enemy combatant” and then subjecting the person to what amounts to a “star chamber” proceeding that permits use of secret evidence and coerced testimony.

Though some legal experts insist these special courts don’t apply to U.S. citizens, the language of the Military Commissions Act of 2006 and a recent federal court ruling make clear that President George W. Bush’s asserted wartime power to order indefinite detentions covers citizens and non-citizens.

In July, the conservative-dominated U.S. Appeals Court in Richmond, Virginia, opened the door for Bush or a successor to throw American citizens as well as non-citizens into a legal black hole by designating them “enemy combatants,” even if they have engaged in no violent act and are living on U.S. soil.

Though that 5-4 ruling on July 15 addressed the case of Qatari citizen (and Peoria, Illinois, resident) Ali al-Marri, the court’s more liberal judges expressed alarm that the same legal reasoning for denying al-Marri meaningful due process could be used to lock up U.S. citizens.

“For over two centuries of growth and struggle, peace and war, the Constitution has secured our freedom through the guarantee that, in the United States, no one will be deprived of liberty without due process of law,” wrote Judge Diana Motz, a Bill Clinton appointee, who dissented against the court’s approval of sweeping presidential powers.

Motz noted that al-Marri has been imprisoned for more than five years, “without acknowledgement of the protection afforded by the Constitution, solely because the Executive believes that his indefinite military detention – or even the indefinite military detention of a similarly situated American citizen – is proper.”

Further, the assumption of some legal experts that Military Commissions Act doesn’t cover U.S. citizens ignores legal fine print buried deep inside the statute, which was passed at Bush’s bidding in 2006 when Republicans controlled the Congress.
One section of law states that “any person is punishable as a principal under this chapter who commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission.”

Another clause says “any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States ... shall be punished as a military commission … may direct.” [Emphasis added]

Presumably, Osama bin Laden has no “allegiance or duty to the United States.” Such a phrase seems aimed at any American citizen who is viewed by the President as somehow aiding or abetting an enemy of the United States. [For details, see’s “Who Is ‘Any Person’ in Tribunal Law? or our book, Neck Deep.]

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By cyrena, August 7, 2008 at 10:09 pm Link to this comment

2 of 2
Prosecuting a Nobody

The mundane nature of Hamdan’s service to al-Qaeda – as a salaried driver who apparently never engaged in combat – represents another chilling message about the broad sweep of the President’s authority.

If a driver can be deemed an “enemy combatant” and be subjected to prosecution under a military commission, what about someone who might be called “a propagandist” or “a political sympathizer?” Under the powers claimed by the Bush administration, only the President and his appointees decide.

Though the military commission’s verdict in the Hamdan case on Wednesday acquitted the defendant of conspiracy and other more serious charges, the guilty verdict against him for providing material support for terrorism – i.e. driving a car for al-Qaeda – still left him vulnerable to a life sentence.

A former chief prosecutor for the military commissions at Guantanamo Bay, Col. Morris Davis, highlighted the rigged nature of the process when he testified that senior Pentagon officials made clear to him that only guilty verdicts would be acceptable and that some high-profile convictions were needed to boost Republican electoral prospects.

Davis also described the role of Defense Secretary Robert Gates in pushing out Maj. Gen. John Altenburg, who was considered a fair-minded “convening authority” ..

Instead, Gates appointed Susan Crawford, a former Reagan administration official, who merged the duties of the “convening authority” with those of the prosecution, according to Davis.

Davis said he finally resigned in October 2007 when he was put under the command of the Pentagon’s general counsel, William J. Haynes, who had worked closely with Vice President Dick Cheney’s office in developing the theories of the all-powerful President and for permitting detainees to be subjected to the simulated drowning of waterboarding.

Beyond the politicization and use of tainted evidence, the legal process is fixed in another way. Even if Hamdan had been acquitted of all charges or if his time-served would cover his sentence, he would remain locked up indefinitely as long as Bush or a successor believes the “war on terror” continues.

Election Stake

Ultimately, the future of the military commissions and Bush’s expansive view of presidential authority will come down to the November election.

Republican John McCain, who voted for the Military Commissions Act, has vowed to appoint more U.S. Supreme Court justices, like Samuel Alito and John Roberts who favor broad presidential powers. Right now, the Supreme Court has a narrow 5-4 majority against Bush’s imperial theories, but one vacancy on the majority side could change all that.

McCain also says he intends to pursue the “war on terror” until victory is achieved, even though no one can define victory and no one expects this “war” to end in the foreseeable future.

On the other hand, Democrat Barack Obama, a former constitutional law professor, voted against the Military Commissions Act and has said he would funnel accused terrorists into traditional civilian and military courts where normal rules of evidence apply.
After Hamdan’s conviction, McCain issued a statement saying, “Unlike Senator Obama who voted against the MCA 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.”

McCain’s comments, however, ignored that Hamdan was cleared of charges that he was a “dangerous” terrorist. He also wan’t “captured on the battlefield.” He was picked up after dropping off his family near the Afghan border.

The political hyperbole that has long surrounded the “war on terror” is another chilling warning to anyone who might come into the crosshairs of the Bush administration or a future McCain administration: actual facts don’t much matter either.

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By JCF, August 7, 2008 at 8:31 pm Link to this comment
(Unregistered commenter)

When I first heard the verdict being broadcast from NPR on my car radio I shouted for joy! In spite of the complete lop sided odds against the defendant, I’m referring to the prosecution’s stranglehold on the policies and procedures of the trial, he was still judged, what I feel is, decently.  As the trial protocol was released over the last weeks I just became more and more ashamed.  This verdict just goes to show those of us who really feel disgusted with some of our leaders’ recent decisions that there is still a bright light in the United States America that will shine again as our citizens wake up and make a difference as the citizens who sat on that jury did!!!  The great thing about our country is that with our system of government no one person, group, or movement can really do irreparable damage.  Today I’m proud to be an American. As I’m still fairly young, I hope that feeling increases in intensity and frequency.

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By Jim C, August 7, 2008 at 6:49 pm Link to this comment

Blackspeare , I assume you are addressing my comment . If that is so then I rest my case , we live under the whims and wishes of a military junta . I had always believed the military in our country was under the control and subject to the reins of the elected civilian government , not as an independent all powerful entity , the commander and chief is an elected civilian , not one appointed by the military brass . From your post I have to decern I errored in my thinking , the military is the ultimate power . By those standards then the military could detain and imprison indefinitly anyone they deemed a threat to , well , whatever . The constitution be damned if it gets in the way of their omnipotence . While I am aware that when one joins the military you are then subject to ” military law ” for the duration of service ,  I believe that is a rather universal concept , even then our constitution is supreme , not military law , though it is generally defered to . Our constitution refers to people , not citizens for a reason , to protect the rights of everyone from repressive government and its military . I believe that even the top general can be relieved of command by the president , not visa versa . That should give a pretty good idea who the founders meant to be in charge of life and liberty don’t you think ? I will admit that this current group of qusai fascists has blurred the lines but a close ( or even not so close ) reading of the constitution would clear things up I believe . If you think not then please give me a presedent where the military keep someone under detention or penility against the wishes of the civilian government ? It was also the civilian government that ordered these tribunials , not the military , they simply followed instructions as they have through this whole sordid spectical .

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By Blackspeare, August 7, 2008 at 4:47 pm Link to this comment

There is a world of difference between civilian and military law.  The US constitution addresses civilian law.  The military has its own jurisprudence rules which are anything but democratic.  Those prisoners in Gitmo whether facing trial or held incommunicado are going to be there or elsewhere until they’re really harmless old men no matter what.

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By Jim C, August 7, 2008 at 4:34 pm Link to this comment

So the military says it can hold someone as long as it wants no matter what the court says ? What an interesting concept , in other words they claim the same powers as any banana republic under a military dictatorship . Strange , I was always lead to believe we had a constitutional government ruled by law , who new . In fact their own court said the guy has been punished about enough , so exactly who in our brand new all powerful military declaired this ? Can we expect any more such edicts from whoever this all powerful generalissimo is ? Just how powerful is this new military junta ? I just know I’m more proud to be an american every day and will sleep much better knowing our new goose stepping all powerful military is torturing the truth out of and protecting us from poor pathetic smucks like this guy . Heil whoever .

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By KPinSEA, August 7, 2008 at 2:52 pm Link to this comment

He’ll be out in five months.

Wait for it ....... wait for it ..............

Mission Accomplished!

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