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 Consortiumnews.com’s “Who Is ‘Any Person’ in Tribunal Law? or our book, Neck Deep.]
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” responsible for deciding which cases merited prosecution.
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.
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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This story was published on August 7, 2008.