Osama bin Laden’s driver Salim Hamdan was convicted at Guantánamo Bay yesterday – in his second trial at the hands of the Bush administration.
Had his first in 2004 not been interrupted by a successful appeal to the Supreme Court, he would have been acquitted. For what he has been found guilty of – providing material support to terrorism – was not then under the jurisdiction of the military tribunal that has sentenced him.
Such is justice under George W. Bush. Such is the justice that awaits Omar Khadr and 80 others to be tried by the special military tribunals at Guantánamo.
More than the detainees, though, it is the Bush administration that’s on trial. Thus the United States is on trial. There, the verdict is already in: Guilty.
Guilty of torturing detainees. Guilty of obtaining evidence from torture. Guilty of introducing hearsay evidence in trials. Guilty of hiding evidence from the detainees.
Guilty, therefore, of violating the most basic norms of the rule of law – and betraying American values.
It’s precisely because of all of the above that Bush concocted his kangaroo courts, avoiding both the civilian courts and the military courts martial, both of which would have ensured due process.
“It all stems from the administration’s decision to endorse torture,” says Jameel Jaffer, a Canadian who directs the American Civil Liberties Union’s national security project. “These tribunals are the fruit of that poisonous tree.
“Once the decision was made to use torture, the administration needed a system of rules that would allow them to rely on evidence obtained from torture. Thus these military commissions.”
But what happens in these trials is almost irrelevant. The process is discredited. It is seen as illegitimate by much of the world, including a majority of Canadians and an increasing number of Americans.
As for the Muslim world, where the war against terrorism counts the most, it will engender even more fury.
When Bush opened Guantánamo in 2002 to house the prisoners captured in Afghanistan and elsewhere, he declared them to be “unlawful enemy combatants.”
He stripped them of their Geneva Convention rights and also argued that they be denied habeas corpus, the old principle that a prisoner must be brought before a court to justify his detention.
In 2004, the Supreme Court ruled that the detainees did have that right. But Bush got the Republican-controlled Congress to pass the Detainee Treatment Act (2005), stripping the detainees of habeas corpus.
In 2006, the Supreme Court ruled that Bush did not have the authority to set aside the Geneva Conventions when he set up his 2002 military commissions.
But Congress granted him just such authority, passing the Military Commissions Act. It essentially resurrected his military commission system, authorizing them to prosecute for terrorist crimes, including the provision on which Hamdan has now been convicted.
Bush has had two tracks going at Guantánamo: one for those charged with war crimes and another, through the Combatant Status Review Tribunals, for those who haven’t been charged and may never be.
The latter was ostensibly an alternative to habeas corpus. Except that it wasn’t. The detainees could not have legal counsel. They could not have access to evidence either.
The system was so rigged that a military member of one of the panel quit, saying the tribunals were a farce and, in some instances, fixed. (more…)
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