Bin Laden Driver Salim Hamdan Gets Mixed Verdict in First Military Commission Trial

A military jury's verdict on Wednesday in the first U.S. war crimes trial since World War II -- that Yemeni Guantanamo prisoner Salim Hamdan is guilty of material support for terrorism, but not guilty of terrorism itself -- was the culmination of two weeks of proceedings that provided some extraordinary insights into the United States' so-called "War on Terror." And yet, as Jonathan Mahler recently wrote in the New York Times, the lofty ideals of the Nuremberg Trials, which opened with Chief Prosecutor Robert Jackson declaring, "That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that power has ever paid to reason," were not in evidence during the Hamdan trial. Nor have they been manifested in the verdict.

Instead, the limited number of outside observers attending the military commission trial of Hamdan, a driver for Osama bin Laden, witnessed presiding judge Keith Allred -- a principled man in an unenviable position -- struggling to turn a novel legal system unconnected to the laws on which the United States were founded into something resembling a fair trial, one to be respected in legal circles, both in the United States and the wider world. The events of the last two weeks revealed this to be a Herculean task.

Today's military commissions are a modified version of a system conceived in the wake of the 9/11 attacks by Vice President Dick Cheney and his chief counsel, David Addington, and ruled illegal and unconstitutional by the Supreme Court in June 2006. The commissions' many critics have remained unconvinced that they can provide an adequate substitute for either U.S. law as practiced on the mainland or the military's own well-established judicial processes. Little, if anything, that has emerged in the last fortnight has helped assuage their doubts. Instead of vindicating Cheney and Addington's belief that a new legal system was required to try "terror suspects," Hamdan's trial revealed a litany of dubious practices masquerading as justice, including a disgraceful use of propaganda, misplaced prosecutorial zeal, the shameful use of hearsay as evidence, abuse of the Fifth Amendment protection against self-incrimination, and woefully blurred distinctions between valid testimony and coerced testimony. The proceedings also provided observers with piercing insights into the interrogation techniques used in the "War on Terror," which have served only to confirm the supremacy of the agencies that favor kindness and psychological maneuvering over those that favor coercion and brutality.

Two episodes toward the end of the proceedings underscored the commission's failings. In the first, defense testimony from government employees was delivered to a closed court, undermining the essential transparency of the process and tilting perceptions of the trial in favor of the prosecution, whose entire case was conducted in the open. In the second, senior al Qaeda operative Khalid Sheikh Mohammed, though not present in person, delivered a statement dismissing Hamdan as nothing more than a "primitive" man, unequipped to be involved in the planning or execution of terrorist attacks. His statement also managed to further undermine the trial through some acute insights into what he described as fundamental failures of the U.S. intelligence agencies.

A Historic Trial, But Is Anyone Watching?

Despite the supposed significance of the Hamdan case, Mahler noted in the Times that the proceedings "hardly have the feel of history in the making."

They haven't merited much discussion in the presidential campaign; nor are we (as) a nation riveted by the trial of the first defendant. … Instead of a landmark case, one that serves as a resonant reminder of the gulf separating us from our enemies, we have detachment and ambiguity -- not just about the extent of Hamdan's guilt but also about the wisdom of the entire tribunal process as well as many other aspects of the prosecution of the war on terror.

These are valid points, and although the detachment Mahler refers to can partly be explained by a general hollowing-out of political awareness (in which a prurient obsession with the peccadilloes of celebrities has taken root instead), part of people's detachment -- and the ambiguity -- can be explained by the disconnect between the supposed importance of the trial and the reality of the figure at its heart.