On August 6, a mere six and a half years after it brought its first prisoners to Guantánamo Bay, the Bush Administration obtained its first conviction from a military tribunal. White House spokesman Tony Fratto proclaimed that the trial of Salim Hamdan demonstrated that the Military Commissions Act (MCA) provides “a fair and appropriate legal process for prosecuting detainees.” John Wesley Hall, president of the National Association of Criminal Defense Lawyers, had a more sober assessment, suggesting that the government “must be very proud of itself” for “convict[ing] a truck driver of being guilty of driving a truck.”
After all, Hamdan could hardly be described as “the worst of the worst,” as Donald Rumsfeld described the original men brought to Guantánamo. Hamdan was not convicted of engaging in or planning terrorist activity of any kind, much less 9/11. He was acquitted on all the conspiracy charges; the government obtained convictions only for “material support” to terrorism, an extremely expansive charge that was created by the MCA in 2006 and applied, ex post facto, to Hamdan for truck driving that predated the law he allegedly violated. And he will serve only five or six months after getting credit for time served.
The Administration had sought desperately to complete a trial before the end of Bush’s term. But Hamdan’s conviction is unlikely to do anything to repair the damage Guantánamo has done to the US reputation. Only a fair and transparent process could hope to overcome the worldwide skepticism the past six years have created. But the MCA permits introduction of coerced testimony so long as it was obtained through methods short of torture, and the world has seen that this Administration has an extraordinarily expansive view of what constitutes interrogation short of torture. Pursuant to MCA rules, much of the trial took place in secret, closed proceedings–including virtually all aspects that considered Hamdan’s claims that his confessions were coerced. His lawyers were forbidden even to mention the CIA, which interrogated him before his transfer to Guantánamo.
Ideally, war crimes trials are designed to vindicate the moral high ground by holding accountable those who have transgressed the most basic rules governing military combat. Think of the tribunals at The Hague or Nuremberg. The Guantánamo trials are at the other end of the spectrum–their rules are fatally skewed by the prosecution’s unwillingness to let its own war crimes see the light of day. Until we are willing to be accountable for the crimes we have committed, there can be no justice at Guantánamo.
