So was the Hamdan case a “success,” a feather in the cap of the Bush Administration’s guardians of justice? Hardly. As Matt Waxman , who as a senior official in the Rumsfeld Pentagon helped craft this system, has acknowledged, there was another defendant in that courtroom standing alongside Salim Hamdan: it was the American justice system. Judgment will be taken by history, and the case was played to a global audience. The first returns are in, and they are not positive. Worse, the perceptions are likely to get harsher and more negative over time. Even before the verdict came in, observers around the world were focused on the Bush Administration’s own contempt for the military commissions process. It had announced that it was indifferent to the judgment of the commission—if Hamdan were acquitted, he could continue to be held for life, a Pentagon briefer acknowledged. The Hamdan prosecution reveals more about the Bush Administration and its fear and loathing of justice than it reveals about Hamdan.
After six and a half years in which the name “Guantánamo” has become badge of shame and humiliation, there has at last been a prosecution–of an individual whose role was at best completely peripheral. The former chief Guantánamo prosecutor has now openly acknowledged that an independent, objective prosecutor never would have charged Salim Hamdan, because he was an absolute nobody. This is not to say that Hamdan is an innocent, of course.
The Bush Administration could have handled this matter in the tradition that the nation’s greatest modern attorney general, Robert Jackson, set out at Nuremberg. Jackson personally took charge of the first prosecutions, delivering mesmerizing opening and closing statements and a dramatic cascade of evidence that targeted some of the most heinous criminals from the Second World War. Jackson had two important objectives before he reached the question of the guilt or innocence of the individual defendants: he needed to validate the fairness of the process, and he needed to demonstrate, clearly and convincingly in the eyes of the world, that heinous crimes had been committed which justified this extraordinary tribunal process. Jackson accomplished both goals. He also secured the conviction of key kingpins in the Nazi terror state. He did it all within the first year of the Allied occupation of Germany, through a process that helped transform the German people from enemies to friends. In the end, Jackson and his team demonstrated that the American tradition of justice was a potent tool to be wielded against the nation’s enemies.
By contrast, America has now endured seven years of an administration which fears the rule of law, which operates in the shadows as it contravenes criminal statutes and long-cherished traditions and retaliates mercilessly against civil servants who stand for law and principle. George Bush and his political advisors openly castigate law and justice as weaknesses or vulnerabilities–as public suspicions grow that they have darker reasons to be concerned about the law. Instead of following the historic route and using military commissions that follow the nation’s long-standing traditions, they have crafted embarrassing kangaroo courts. When the Supreme Court brought its gavel down on one of their shameful contraptions, they simply concocted another, equally shameful one, openly proclaiming an inferior brand of justice for those who were “not citizens,” exalting in the right to use torture-extracted evidence and to transact the proceedings in secret.
In "The Rigged Guantánamo Trials and Torture" (which also quotes Horton, among others) we covered some of the many problems with the system set up by the Bush administration. Thinking of the Nuremberg trials, reading the accounts of former Allied interrogators who took pride in obtaining information from Nazis without torture, knowing that Hamdan could have been found innocent yet still not released (and still might not be after his sentence is completed), is all just painful. These are very shameful things that have been done in our name, by men and women in positions of power who were initially scared, perhaps, but long had a hunger for extreme actions, who ignored or punished those who warned them, and possessed a disdain for legality and oversight – and I'd add morality. Much about the Guantánamo detentions and trial process revolves on protecting the Bush administration from war crimes. I don't know any American who wouldn't want to see actual terrorists brought to justice. But the Bush administration has not been seeking that, at least not for a long time. It takes an especially repugnant brand of cowardice and corruption to seek to execute or indefinitely imprison someone to try to cover your own ass.
So why prosecute Salim Hamdan? Because Osama bin Laden remains at large, as does Ayman al-Zawahiri and a host of other Al Qaeda leaders. Hamdan would not have figured on a list of the 500 most important Al Qaeda figures. The fact that Hamdan was not only prosecuted, but actually turned into a lead case is shameful, a demonstration of ineptitude at least, if not of contempt for law and legal process altogether. That such a loaded, rigged system actually produced an acquittal on the only serious charges is evidence of the breathtaking incompetence of the Bush strategists.
If only there were equally incompetent at lying, propaganda, and public relations. Horton's conclusion:
The Hamdan proceedings now go into the next stages. First sentencing, and then appeal. If the case is reviewed seriously, then the appeals court will come to the obvious conclusion that “material support” is not a war crime, and will reverse the decision. If the American appeals courts fail to do this, the condemnation of the international community will follow. Either way, the Hamdan process has cheapened the image of American justice in the eyes of the world. Justice has been made to appear to be an expression of the will of the executive, and confidence in the independence and integrity of American courts and prosecutors has been seriously eroded. Prosecution of Al Qaeda operatives should have been an important victory for America in its battle with terrorists. Instead it has been converted into a needless and humiliating defeat.
Much of the internal resistance to the Bush administration's radical actions has come from rule of law conservatives. Repairing the damage the Bushies have inflicted will take time, but it's a cause where conscientious conservatives can join with conscientious liberals and civil libertarians. Terrorists should be pursued and if captured put on trial, and all those we've held for years should have their day in a legitimate court. Most of all, those prisoners we know to be not guilty should receive deliverance. Innocents shivering in cell blocks long for precisely what some current officials trembling in high office fear: that justice be done.
(Cross-posted at The Blue Herald)